Honorable W. Lee O'Daniel
Governor ofTexas
Austin, Texas
D'ear Governor O'Daniei:
                            Opinion No. O-2845
                            Re: Sale of miner81 interest in
                                 State School land by the Gov-
                                 ernor to the Federal Govern-
                                 ment.
        Your letter of October 21, 1940, requests the opinion
of this department as to whether Article 5245 of the Revised
Civil Statutes of Texas confers upon the Governor authority to
dispose of the minerals in certain sections of land, located
in El Paso County, Texas. Your letter reads as follows:
        "The United States Government is acquiring
    51,300 acres of land immediately adjacent to Fort
    Rllss, El Paso County, Texas, for the enlargement
    and improvement of the military post there. The
    authority under which this action is taken makes
    it necessary that a fee simple title be acquired.
    This land is all school land and the State of Texas
    own,sthe mineral interests in quite a number of sec-
    tions of this land. Your opinion is respectfully
    requested as to whether Article 5245 of the Re-
    vised Civil Statutes of Texas confers upon the
    Governor authority to make disposition of the min-
    eral interests in this land for this purpose. If
    your conclusion on that proposition is in the af-
    firmative, I shall appreciate your outlining the
    proper procedure to effectuate this sale, includ-
    ing the process of the valuation of the land, etc."
        We assume from the facts stated in your letter that
the minerals you refer to are those contained within lands
set apart by the Constitution of Texas and by the Settlement
Act of 1900 (Art. 5416, R.C.S. of 1925) to the Public Free
School Fund. Until 1931 it was provided by law that upon
sale of these lands all mineraLs should be reserved to the
Public Free School Fund. (Art. 5310, R.C,S. 1925),
        It has been decided in Lemar v. Garner, 121 Tex. 502,
Hon. W. Lee O'Daniel, page 2         O-2845


50 S. W. (2) 769, that upon a sale of school land with reser-
vation of minerals, the title to the minerals does not pass
to the~purchaser, but that title to the minerals remains In
the State for the exclusive benefit of the Public Free School
Fund.
        Articles 5242 and 5245 provide:
        "Article 5242. The United States Government
    through its proper agent, may purchase, acquire,
    hold, own, occupy and possess such lands within
    the limits of this State as it deems expedient
    and may seek to occupy and hold as sites on which
    to erect and maintain light houses, forts, mili-
    tary stations, magazines, arsenals, dock yards,
    custom houses, post offices and all,other needful
    public buildings, and for the purpose of erecting
    and constructing locks and dams, for the stralgh-
    tening of streams by making cutoffs, building
    levees, or for the erection of any other struc-
    tures or improvements that may become necessary
    in developing or improving the waterways, rivers
    and harbors of Texas and the consent of the Leg-
    islature is hereby expressly given to any such
    purchase or acquisition mad: in accordance with
    the provisions of this law.
        %rticle 5245* When this State may be the
    owner of any land desired by the United States for
    any purpose specified in this title, the Governor
    may sell such land to the United States, and upon
    payment of the purchase money therefor into the
    Treasury, the Land Commissioner, upon the order
    of the Governor, shall issue a patent to the United
    States for such land in l!.kemanner as other pa-
    tents are issued."
        Unless the foregoing statutes, which on their face
would seem to authorize the Governor to sell the land in ques-
tion, fail to meet constitutional requirements, It must neces-
sarily be held that you are authorized by those statutes to
sell lands and minerals dedicated to the Public Free School
Fund.
        However, Section 4 of Article 7 of the Texas Constitu-
tion provides:
       "The lands herein set apart,to the Public
   Free School fund, shall be sold under such reg-
   ulations, at such times, and on such terms as
Hon. W. Lee O'Danlel, page 3           O-2845


    may be prescribed by law; and the Legislature
    shall not have power to grant any relief to pur-
    chasers thereof. The Comptroller shall invest
    the proceeds of such sales, and of those hereto-
    fore made, as may be directed by the Board of
    Education herein provided for, in the bonds of
    the United States, theState of Texas, or counties
    in said State, or in such other securities, and
    under such restrictions as may be prescribed by
    law; and the State shall be responsible for all
    investments."
        Without question the sale of mlnerals contained in
land is a sale of land. Texas Co. v. Daugherty, 107 Tex. 226,
176 s. w. 717.
        Since the minerals in question are Public Free School
lands, by express language of the Constitution they can only
be sold under such regulations, at such times, and on such
terms as may be prescribed by law. To constitute a validsale
of school lands, the regulations, the times, and the terms of
the sale must first be prescribed by the Legislature. Chantey
v. State, 84 Tex. 529, 19 S. W. 706.
        In Chantey v. State, It was stated by the Supreme Court:
        "The public school lands can be sold only
    'under such regulations, at such times, and on
    such terms as may be prescribed by law.'"
        And in Smisson v. State, 71 Tex. 222    9 S. W. 112;
Theisen v. Robison, 117 Tex. 489, 8 S. W. (21   646 and Greene
v. Robison, 117 Tex. 516, 8 S. W. (2) 655, It   was'stated that
the times, terms and regulations for sales of   school land are
to be determined by the Legislature.
        The Legislature In Article 5245 has wholly failed to
prescribe either the terms, the tfmes or the regulations for
the sales of lands therein referred to. Determination of the
times of the sale, fixing of the price and the manner of its
payment, and regulations to govern the sale are all absent
from Article 5245. For three reasons we are of the opfnion
that Article 5245 is Ineffective to authorize the Governor to
sell lands or mlnerals belonging to the Public Free School
Fund. To hold otherwise would be to ignore the mandatory re-
quirements of the Constltutlon which plainly state that the
Legislature shall prescribe the regulations, the times, and
the terms for the sale of such lands.
        In Articles 5306-5337,   as amended by House Bill 9 of
Hon. W. Lee O'Daniel, page 4        O-2845


the 46th Legislature, and other statutes the Legislature has
strictly observed the constitutional requlrements In ;;;;zsslg
providing for the sale of Public Free School lands.
statutes fix the terms, the times and the regulations in de-
tail governing the sale of Public Free School lands. It IS:
our opinion that such statutes set forth the only procedure
by which Public Free School lands may now be sold.
        In 1930, in Conference Opinion No. 2815, a"copy ~of
which Is hereto attached, addressed ~toHonorable Dan Moody,
then Governor of Texas, this department made the Identical
ruling that is expressed in this opinion. Since 1930 the
Legislature has not seen fit to amend Article 5245 or to en-
act additional legislation prescribing the terms, regulations
and times for the sale of lands by the Governor for the pur-
poses set forth in Article 5242. This, to us, ,isan'addition-
al indication that our construction of Article 5245 accords
with the Intention of the Legislature.
        As we have held In this opinion that you are-not au=
thorlzed to sell the minerals In the land in question, It be-
comes unnecessary to answer the other inquiries contained in
your letter.
                                  Yours very truly
                               ATTORNEY GENERAL OF TEXAS


                                  BY
                                       Robert E. Repke
                                             Assistant

REK:BT:wc

APPROVED EOV:23, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
