                                 March 13,      1967


Honorable  Hurshel            R. Harding               Opinion      No. M-41
County Attorney
Parmer County                                          Re:   Whether the severed
Farwell,  Texas                                              minerals     which are
                                                             owned by Parmer County
                                                             as part of Its public
                                                             school    lands,   located
                                                             in Gaines and Andrews
                                                             counties,     are subject
                                                             to taxation      In the
Dear Mr. Harding:                                            county where located.

      In your          opinion    request    you stated:

              “Farmer County owns minerals    in Gaines
      and Andrews Counties,     Texas, having sold the
      surface     of these lands a number of years ago.
      Over the last several      years the tax assessor-
      collector     of one or both of these counties
      mails to Parmer County an assessment       of taxes
      for the minerals     which Parmer County owns.”

      We have also been advised   that the above minerals
were a part of the public   lands given to Parmer County
by the State for the endowment of Its Permanent School
fund.   These 3.ands were subsequently   sold and a portion
of the mineral estate   was reserved   to the county.   The
lands have been leased for a number of years and there
was production   of 011 and gas on the lands in Gaines
County during the tax years involved     here.

        You have requested     our opinion    as             to whether the
severed mineral     estate    owned by Parmer                County in lands
located    in Gaines and Andrews Counties                    are taxable  under
Article    VII, Section    6a., Constitution                 of Texas, and
Article    7150a, Vernon’s     Civil  Statutes.

      The pertinent  constitutional                    provisions        and statutory
enactments  are as follows:

      Article          VII,   Section   6,   Constitution           of   Texas.

                “All     lands    heretofore,      or hereafter           granted
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Honorable       Hurshel     R. Harding,          page 2 (M-41)



     to the several       counties     of this State for
     educational      purposes,    are of rightthe
     property     of said counties        respectively,      to
     which they are granted,          and title      thereto
     is vested      in said counties,        and no adverse
     possession      or limitation       shall   ever be
     available     against     the title     of any county.
     Each County may sell         or dispose      of its
     lands in whole or in part,            in manner to be
     provided     by the Commissioners’          Court of the
     county..    .Said lands,     and the proceeds        there-
     of, when sold,       shall be held by said counties
     alone as a trust for the benefit              of public
     schools    therein;.    . .”

      Article      VII,     Section      6a,     Constitution        of   Texas.

            “All agriculture     or grazing   school
     land mentioned     in Section   6 of this article
     owned by any county shall be subject          to
     taxation    except for State purposes       to the
     same extent as lands privately         owned.”
     Added Nov. 2, 1926, proclamation         Jan. 20,
     1927.
      Article      7150a,     Vernon’s          Clvll   Statutes.

           “Any county in this State owning any
     land mentioned and referred       to in Sectlon
     6a of Article    VII of the Constitution      of
     Texas. . . , is hereby authorized     to pay taxes
     duly and lawfully     levied on the same out of
     the County’s    revenue derived    from such land...”

      Article      XI,    Section       9,   Constitution       of    Texas.       ‘:

             “The property   of counties,  cities  and
      towns, owned and held only for public       pur-
      poses,   such as.. ., and all other property
      devoted exclusively     to the use and benefit
      of the public    shall  be exempt from forced
      sale and from taxation,...”

      Article    VII, Section    6a, and Article  7150a were
added in 1927.       Prlor to that time, It was settled      that
the oublic    school    lands owned by the several   counties
were-not    subject   to taxation.    baugherty  v. Thompson,
71 Tex. 192, 9 S .M. 99 (1888).        That court also held
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Honorable     Hurshel   R. Harding,       Page 3   (M-41)



that:

              “Forbidding   the taxation  of the         lands
        it forbids   the taxation   of an estate         less
        than the fee,...”

        Article   VII, Section   6a, read in relationto
Article     VII, Section    6, now makes all the agriculture
and grazing      school  lands owned by the several      counties,
and granted to them by the State for educational             pur-
poses,    subject    to taxation  except for State purposes.
The question      then is, does a severed mineral       interest
come within the term “all        agriculture  and grazing      school
land mentioned       in Section  6 of this article...?”

         The history      of the State’s      school   grants to its
 counties       is set out in the interpretive          commentary of
 Article       VII, Section    6, and will      not be repeated      here.
 It is sufficient         to note that these grants were generally
made upon vacant and unsurveyed               public   lands.     They were
given to the counties            and, therefore,      were never classi-
 fied by the General Land Office              as being either      agriculture,
grazing        or timber lands,     as was required       for the sale of
 public     lands.     It is our opinion,        however,    that the Legis-
 lature     used the term “all        agriculture     and grazing     school
 lands..     .‘I to distinguish     between the several        broad
 classifications        of public     lands generally      made by the
General Land Office           in the sale of lands and not to dis-
 tingulsh       between the various       estates    in land.     Childress
 Count      v. Morton Independent         School Dist.,95      S.W.
1-p                    193b)      At the time of the enactme%            Ai’”
Article        VII, Section’Ga,     timber upon public        school   lands
when sold became the personal              property    of the vendee,       and
 was .subject       to taxation.      Montgomery v. Peach River Lumber
-Co., 1.17 S .W. 1061, (Tex.Clv.App.           1905 error dism.w.0.j.).

       It   is not the use or classification          of the land at
the time      of the assessment      that is controlling    here, but
the use     or classification       at the time of the grant.
Section     6 refers    to “all   lands heretofore     or hereafter
granted.    . . ” It is the agriculture       and grazing   lands
granted     to counties     by the State that are made taxable.

        The estate   to be taxed is the entire   fee of the land.
Article    7146 V.C.S.;   Humble 011 and Refining    Co. v. State
   S W 2d 5s       560 (Tex.Ci   A     m,   error ref. ) . In that
casi <he co&t       said:  (P. %O

              “Until,   however,     the mineral     estate   has
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Honorable    Hurshel     R. Harding,    page 4     (M-41)



      been severed,        the rendition of the land
      carries    with    it the value of the entire
      estate .‘I

      Article    7146, Vernon’s   Civil Statutes,  defines  “Real
Property”   as lncludlng    the land itself   and all mines
and minerals   in and under the same.

       Article    XIV, Section 7, of the Texas Constitution
released     the minerals   in and under public  lands to the
owner of the soil       and provided  that the minerals would
be subject      to taxation  as other property.

       If the minerals       were taxable    while a part of the
fee title    owned by Parmer County, what is there within
Section    6a of Article      VII that would exempt them when
severed?     Section     6a, specifically     provides!,that       the
enumerated school        lands shall be taxable.                .to the
same extent as lands privately            owned.‘!     It has long
been settled      in this State that a conveyance             or
reservation      of a mineral     or royalty    interest      creates     an
interest    in land that Is subject         to taxation       apart from
the surface      estate.     Stephens County v. Mid-Kansas Oil
& Gas Co., 113 Tex. 160 254 S W 290 (1923);                    State r
Downman, 134 S.W. 787, tTex.Civ.App.,               1911 error ref.,
-1          US 353); Sheffield        v. R”,g$ v.  124 Stakes
                                                        Tex 290li6 77      S W.
                                                                        Tex.
2d 1021     80 S.W.2d
LIE&, :$    g.;.    $    miv.s;.                     Jp%he&,         lg;;ex.
174’S.W.2d’43      (1943); Ra~hara.~?k%%&                Indep%ent          ’
School Dist.,      139 Tex. 532, 163 S.W.2d          b31, (1942).

       Assuming that the land was at the time of the grant
either   agriculture    or grazing    land, it is our opinion
that Parmer County Is liable        for all taxes properly
assessed   against   the mineral    interest   It reserved    in the
sale of its school      lands.   See also,    Phillips   Chemical
Co. v. Dumas Independent       School DlstrTct,      159 Tex. 116
3 6 2d 362 389 (19 8 I         d Attorney    General’s   Opinions’
nimber o-6693 and 0~7&?(1946).

                          SUMMARY

              Assuming that the lands in question,        at
       the time of the grant were either       agriculture
       or grazing    lands,   the severed minerals    which
       are owned by Parmer County as part of its
       public   school   lands located   in Gaines and
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Honorable         Hurshel    R. Harding,     page 5 (M-41)



             Andrews Counties  are subJect to taxation
             in the county where located    under the
             terms of Article  VII, Section   6a, Consti-
             tution  of Texas, and Article   7150a, Vernon’s
             Civil  Statutes.


                                                 9V   truly     yours,




    MFS:mh
                                                              ??kF
                                                              Qkneral    of   Texas

    Prepared     by Marvin    F. Sentell
    Assistant     Attorney    Qeneral

    APPROVED
    OPINION COMMITTRE
    Hawthorne Phillips,    Chairman
    W. V. Qeppert,    Co-Chairman
    John Pettit
    kkghton     E%rownlee
    Bill  Allen
    STAFF LEGAL ASSISTANI'
    A. J. Carubbi,    Jr.




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