                              ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                                  July 27,2012



The Honorable Billy W. Byrd                          Opinion No. GA-0958
Upshur County Criminal District Attorney
405 North Titus Street                               Re: Whether a commissioners court may execute a
Gilmer, Texas 75644                                  surface lease of county school land that contains a
                                                     term obligating the lessee to make expenditures for
                                                     land management and maintenance (RQ-1044-GA)

Dear Mr. Byrd:

        You ask whether a commissioners court may execute a surface lease of county school land
that contains a term obligating the lessee to make an expenditure for land management and
maintenance. I As a preliminary matter, although you have attached a lease to your request letter, this
opinion does not purport to construe the terms of the contract. The construction of particular
contracts and leases is not a function of the opinion process. Tex. Att'y Gen. Op. No. GA-0252
(2004) at 6. However, we may advise whether a public entity is generally authorized to agree to a
particular contractual term if the question may be answered as a matter of law. Tex. Att'y Gen. Op.
No. GA-0176 (2004) at 2.

        Article Vll, section 6 of the Texas Constitution governs the ownership and disposition of
county school lands. TEX. CONST. art. Vll, § 6. The provision authorizes a county to "sell or
dispose" its county school lands, the proceeds of which are to be held in trust in perpetuity in the
county permanent school fund. See id.; TEX. EDUC. CODE ANN. § 45. 113(a)(2), (c) (West Supp.
2011). Income from the trust "constitutes a portion of the county available school fund and may be
distributed as permitted by law." TEX. EDUC. CODE ANN. § 45.113(c) (West Supp. 2011). The
Texas Supreme Court has construed article Vll, section 6 to also authorize counties to lease their
county school land. See Falls Cnty. v. Delaney, 11 S.W. 492, 492 (Tex. 1889).

        An early court of appeals opinion determined that article Vll, section 6 did not preclude a
commissioners court from leasing county school land for pasture pursuant to a lease that required
the lessee to spend $500 to construct a fence on the land. McInnes v. Wallace, 38 S.W. 816, 817-18
(Tex. Civ. App.-San Antonio 1896, writ denied). The court noted that the commissioners court


         ISee Letter from Honorable Billy W. Byrd, Upshur Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1-2 (Feb. 28, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").
The Honorable Billy W. Byrd - Page 2                    (GA-0958)




had reasonable discretion to set the rental price, that the funds were not diverted to anything other
than school purposes, and that the $500 would never become a part of the school fund. Id. at 817.
The court also observed that providing for a fence was necessary for the county to be able to lease
pasture land. Id. The court finally held that it was not a "breach of the trust reposed in a county to
lease its school lands" with a requirement in the lease that the lessee spend $500 to build a fence on
the land. /d. at 818.

         You do not direct us to, and we have not found, any authority casting doubt on a county?s
ability to enter into a lease that requires the lessee of county school land to expend funds for land
management and maintenance. 2 Accordingly, we conclude that a court would likely recognize a
county's general authority to do so, provided the lease term is consistent with school fund purposes
and otherwise comports with law. We express no opinion, however, on the legality of any specific
lease term that may be contemplated by Upshur County.




          2Prom materials attached to your request, it appears a principal concern was an opinion of this office that
determined that a commissioners court could not use funds from the lease or rental of county school land to build a house
or make improvements on the land. Request Letter attachment (citing Tex. Att'y Gen. Op. No. IM-729 (1987)). Because
that opinion addressed only the general authority of a county to expend funds, it is not relevant to the question presented
to this office involving a lease term requiring the lessee to make expenditures. See McInnes, 38 S.W. at 817-18
(distinguishing the question of whether a county commissioners court had the authority "to make out of the collected
rental money of school lands improvements that would be needed to render the lands effective in producing a larger and
steadier school fund").
The Honorable Billy W. Byrd - Page 3        (GA-0958)




                                     SUMMARY

                      A court would likely conclude that a county is generally
              authorized to enter into a lease that requires the lessee of county
              school land to expend funds for land management and maintenance.
              We express no opinion, however, on the legality of any specific lease
              term that may be contemplated by Upshur County.

                                            Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
