Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Bob Armstrong Opinion No. H-881~
Commissioner
General Land Office Re: Constitutionality of
Austin, Texas 78701 statute granting to City
of Corpus Christi condi-
tional title in submerged
land previously set aside
for school fund.
Dear Commissioner Armstrong:
In 1971 the Texas Legislature enacted an uncodified law
granting the City of Corpus Christi submerged~lands in
Corpus Christi Bay to use as a public beach without compen-
sating the permanent school fund. You have asked whether
the statute attempts an unconstitutional grant of school
lands.
Because it is not found in the codified compilation of
Texas statutes, the pertinent parts of the rather lengthy
1971 provision are set out below:
Section 1. The City of Corpus Christi,
Texas, a home rule city, desires to restore
and maintain a recreation beach, commonly
known as Corpus Christi Beach, and intends
to accomplish this purpose acting in con-
junction with the United States Corps of
Engineers, and other agents and contractors,
and as a result of a survey and report made
by the United States Corps of Engineers,
such restoration has-been found and deemed
to be feasible, and the project has received
Congressional authorization.
The Honorable Bob Armstrong - page two (PI-881)
Sec. 2. In furtherance and in aid of the
above objective there is hereby granted to
the City of Corpus Christi, the United States
Corps of Engineers, their respective agents
and contractors, a construction easement, on
the lands described in Section 3 of this Act,
for the purpose of allowing such city, the
Corps of Engineers, their agents and con-
tractors to conduct dredging, filling,
excavation, and all necessary operations,
without payment to the State for any fill
material of any kind or character removed
from the borrow areas described in Section
3, in furtherance of the purpose stated in
Section 1, on the lands described hereinafter
in Section 3, which lands are owned by the
State of Texas or in which the State has
title or interest. There is expressly
excluded from the provisions hereof any
vested private property rights.
Sec. 3. The lands to which this con-
struction easement is granted shall be
described as follows:
TRACT1
[Description]
TRACT.2 - Proposed Borrow Area
[Description]
TRACT 3 - Alternate Borrow Area
[Description]
Sec. 4. Insofar as the State of Texas
has jurisdiction and authority over the waters
which all or any part of the land described
in Section 3 underlies, grant is hereby made
to the City of Corpus Christi, and the United
States Corps of Engineers , or their contractors
and agents to conduct all operation necessary
in furtherance of the aforesaid objective in,
through and upon said waters.
.p.3709,
The Honorable Bob Armstrong - page three (H-88I):
Sec. 5. The grant of authority herein shall
extend to contracts let in furtherance of the
objective stated herein whether let jointly
by the City of Corpus Christi and the United
States Corps of Engineers, or by either of
them acting alone.
!rs
-
subject to oil and gas directional drilling
only and off-site mining of other minerals.
Sec. 7. All laws or parts of laws in
conflict herewith,are hereby repealed to
the extent of such conflict.
Sec. 8. If any word, phrase, clause,
sentence or part of this Act shall be held
by any court of competent jurisdiction to be
invalid or unconstitutional, or for any other
reasons void or unconstitutional, it shall
not affect any other word, phrase, clause,
sentence or part of this Act, and such
remaining portions shall remain in full force
and effect. Acts 1971, 62nd Leg., ch. 883 at
2708. (Emphasis added).
Section 6 grants Corpus Christi a fee simple determinable
in Tract 1, an estate that will last as long as the land is
used for a public beach. See Eyssen v. Zeppa, 100 S.W.Zd
417 (Tex. Civ. App. -- Texzana 1936,writ ref'd); 22 Tex.
Jur.Zd, Estates 9 7; Restatement of Property §§ 23, 44.
The Honorable Bob Armstrong - page four @-I-8813:
Section 2 grants Corpus Christi, the United States Corps
of Engineers, and their agents and contractors, a construction
easement, which permits them to excavate and remove fill
materials from the borrow area in Tract 2 or 3. The Act
does not provide for compensating the public school fund for
the grant of Tract 1, the removal of materials from the borrow
area, or any other use of the property encompassed in the
construction easement.
We will first consider the grant of Tract 1 to Corpus
Christi, the validity of which turns on whether the land has
been dedicated to the permanent school fund. Article 7, section
2 of the Texas Constitution determines the components of the
permanent school fund.
All funds, lands and other property heretofore
set apart and appropriated for the support of
the public schools; all the alternate sections
of land reserved by the State out of grants
heretofore made or that may hereafter be made
to railroads or other corporations of any
nature whatsoever; one haif of the ublic
domain --
of the State; ~ndl~um~o mone
fhatmay come toe
-- Statgrme -%?
sa e of
Fportionf -- same . . . .(jEm$%isdded).
Article 7, section 4 requires that these lands be sold.
The lands herein set apart to the Public
Free School fund shall be sold under such
regulations, at such times, and on such
terms as may be prescribed by law . . . .
This provision prevents the Legislature from giving the land
away, although it might postpone sale and instead lease the
land. Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149,
;;;o,(Tex. Sup. m52); Reed v. Rogan, 59 S.W. 255 (Tex. Sup.
.
Article 7, section 5 governs the disposition of proceeds
from the sale of school lands.
The principal of all bonds and other funds,
and the principal arising from the sale of
the lands hereinbefore set apart to said
school fund, shall be the permanent school
p; ,37X:
The Honorable Bob Armstrong - page five (H-881)
fund . ., . . And no law shall ever be
enacted appropst=g-any part ofhe
permanent . . . school fund to z other
purpose whatever . . . (Emiihasisadaed).
These constitutional provisions render the Legislature
powerless to make a free grant of school lands. Moreover, once
the Legislature has dedicated land to the permanent school
fund, it may not withdraw it. The Texas Supreme Court in
Hague v. Baker, 45 S.W. 1004, 1005 (Tex. Sup. 18981, stated
that azim, section 2, "fixed the right of the school
fund in one-half of the unappropriated public domain, but
left the legislature . . . with extended authority over the
segregation of that interest . . . ." The Court went on to
say that "where the legislature has taken affirmative action,
and has provided pro tanto for the segregation of the interest
of the school fund, its action is final . . . .'I Id. at 1006.
It was held in E&v. State, 84 S.W. 607, 611 (Texxiv.
App. 1904, writ refq),t once it appropriated lands to
the school fund, "the Legislature could not by subsequent
legislation change or destroy the character of these lands as
public school lands . . . .'I In 1900 the Settlement Act
settled permanently the division of much of the public domain
but excluded lakes, bays , and islands on the Gulf of Mexico
within tide water limits. Acts 1900, 26th Leg., 1st C. S.,
ch. 11 at 29. When the Legislature subsequently placed
lands excluded by the Settlement Act in the public school
fund, its decision was also final as to them. Attorney
General Opinion M-356 (1969).
In 1941 the Legislature enacted article. 5415a, V.T.C.S.
The pertinent portion of that statute reads as follows:
Sec. 3. The State of Texas owns, in
full and complete ownership, the waters
of the Gulf of Mexico and of the arms of
the said Gulf, and the beds and shores of
the Gulf of Mexico, and the arms of the
Gulf of Mexico, including all lands that
are covered by the waters of the said
Gulf and its 'arms, either at low tide or
high tide, within the boundaries of Texas,
as herein fixed; -----
and that all of said
lands --
are set apart -and granted --
to the
p. 3712
The Honorable Bob Armstrong - page six (H-881)
Permanent Public Free School Fund of the
State, andmbeeT?f-%?mbenefit
ofe Public Free School Fund of this
State according to the provisions of law
governing the same. (Emphasis added).
Grants of lands under navigable waters are strictly construed
against the grantee, and any ambiguity will be resolved in
favor of the State. State v. Bradford, 50 S.W.Zd 1065, 1075
(Tex. Sup. 1932). The Supreme Court has said that "before a
statute will be construed to include land under navigable
waters, such as river beds and channels, it will have to be
expressed in plain and positive language and not in general
language." Id. We believe that the underlined language of
article,5415axpressly and unambiguously grants tidelands
and submerged lands to the public school fund. Moreover, it
has been construed to have made this grant. Butler v. Sadler,
399 S.W.Zd 411, 419 (Tex. Civ. App. -- Corpus Christrl966,
writ ref'd n.r.e.); Attorney General Opinion M-356 (1969).
In view of the clear language dedicating submerged glands to
the permanent school fund and the inability of the Legislature
to revoke its grant, we conclude that,the Legislature could
not constitutionally grant Tract 1 to Corpus Christi without
requiring compensation to the permanent school fund.
Section 2 of the 1971 Act grants a construction easement
over all three tracts in furtherance of the Corpus Christi-
Beach restoration project. We believe that the grant of.
this easement was inextricably intertwined with the grant of
the restored beach to Corpus Christi. The invalidation of
section 6 impairs the purpose underlying section 2 so that
the latterprovision cannot stand alone.
Although the Act contains a saving clause, it has no
meaning when sections 2 and 6 are removed. Therefore, we
believe that the 1971 Act is unconstitutional in that it
violates article 7, sections 2, 4 and 5 of the Texas
Constitution.
p. 3713
The Honorable Bob Armstrong - page seven (H-881)
SUMMARY
An Act granting the City of Corpus Christi
submerged lands without compensation to
the Public Free School Fund is unconstitu-
tional in that it violates article 7,
sections 2, 4 and 5 of the Texas Constitu-
tion.
_Very truly yours,
Attorney General of Texas
APPROVED:
jwb
p. 3714