   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                            February 21,2002




Mr. F. Lawrence Oaks                                   Opinion No. JC-0465
Executive Director
Texas Historical Cornmission                           Re: Whether the state owns artifacts removed
15 11 Colorado Street                                  from state lands prior to the adoption of the
Austin, Texas 7871 l-2276                              Antiquities Code in 1969, and related questions
                                                       (RQ-0416-JC)


Dear Mr. Oaks:

         On behalf of the Texas Historical Commission, you request an opinion regarding the
ownership and custody of artifacts removed from state public lands before and after the adoption in
1969 of the Antiquities Code of Texas, chapter 19 1 of the Natural Resources Code.’ You
specifically ask:

                 1.      Does the State of Texas own artifacts that were removed from
                         State lands prior to the effective date of the Antiquities Code
                         in 1969?

                 2.      Does the State of Texas own artifacts that have been removed
                         from city, county, or other political subdivisions’ lands, either
                         prior to the effective date of the amendment to the Antiquities
                         Code in 1977, or subsequently?

                 3.      If it is determined that the State of Texas owns artifacts that
                         were removed from State and/or other governmental lands
                         prior to the effective date of the Antiquities Code of 1969, is
                         the [Texas Historical Commission] legal custodian of items
                         not described in that law?

                 4.      Does [article 147b of the] Penal Code of 1925 evidence an
                         intent on the part of the State to claim the artifacts as of the




        ‘See Letter from F. Lawrence Oaks, Executive Director, Texas Historical Commission, to Honorable John
Cornyn, Texas Attorney General (Aug. 14,200l) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. F. Lawrence Oaks - Page 2                           (JC-0465)




                             date of passage of that law, and have the effect of giving the
                             State a claim to them as of its effective date?

Request Letter, supra note 1, at 2.

         You do not provide any background or factual context. Given the abstract and global nature
of your questions, we answer them to the extent we can in general terms by referring only to the
former Penal Code provisions regulating archaeological explorations, the Antiquities Code, and to
the common law of finds.2 We first conclude that whether the state owns artifacts removed from
state lands prior to 1969 depends on the particular artifacts and where they are found. We cannot
provide a definite answer that would apply to all categories or types of artifacts. With respect to
artifacts found on submerged state Zands, the state, as owner of the land, would own artifacts found
buried in the soil or over which the state had constructive possession; otherwise, the submerged
artifacts would belong to the person who had found them. The state, as owner of the land, would
own artifacts found on unsubmerged state lands that are classified as “mislaid” property; however,
artifacts classified as “lost” property would belong to the person who had found them. We next
conclude that the state would not own artifacts removed prior to 1969 from lands owned by political
subdivisions of the state unless they were determined to be “lost” property and the state had “found”
them. Under the Antiquities Code, the state owns artifacts removed subsequent to 1969 from lands
belonging to political subdivisions of the state. Additionally, we conclude that the Texas Historical
Commission is the legal custodian of artifacts removed from state public lands prior to 1969 if they
are recovered and retained by the state. Finally, we conclude that former articles 147a, 147b, 147b-
1, and 147b-2 of the Penal Code did not, as a matter of law, confer to the state ownership of artifacts
removed from state lands prior to 1969.




           2A letter from Robert J. Truhill, submitted on behalf of the Ysleta Del Sur Pueblo, a federally recognized Native
American Indian Tribe located in El Paso County, asks this office to consider the provisions of the Native American
Graves Protection and Repatriation Act, 25 U.S.C. 5 0 3001-30 13 ( 1994), and whether or not it preempts any provisions
of the Antiquities Code. See Letter from Robert J. Truhill, Diamond Rash Gordon & Jackson, P.C., Attorneys at Law,
to Susan Denmon Gusky, Chair, Opinion Committee, Office of the Attorney General (Sept. 19, 2001). The Native
American Graves Protection and Repatriation Act (the “Act”) requires federal agencies and museums (which term
includes a state agency that receives federal funds and has possession of or control over Native American cultural items)
to inventory Native American human remains and other objects in its possession and return them upon request to the
tribes with the appropriate ethnic or cultural affiliation. See 25 U.S.C. 0s 3001-3005 (1994). The Act also establishes
the ownership rights of Native American tribes and their descendants in “Native American cultural items which are
excavated or discovered on Federal or tribal lands after November 16,199O.” Id. 0 3002 (emphasis added). See Castro
Romero v. Becken, 256 F.3d 349, 354 (5th Cir. 2001) (By its plain terms, the reach of the statute is limited to federal
or tribal lands and does not apply to municipal lands.); Western Mohegan Tribe and Nation v. New York, 100 F. Supp.
2d 122,125-26 (N.D.N.Y. 2000), vacated in part on othergrounds, 246 F.3d 230 (2d Cir. 2001) (federal statute did not
apply because state-owned land was neither federal nor tribal land). We do not consider the Act’s provisions in relation
to the Antiquities Code because the Texas Historical Commission’s request asking about artifacts found on state public
lands does not raise the issue, see Request Letter, supra note 1, and Mr. Truhill is not an authorized requestor, see
TEX.GOV’TCODEANN. 5 402.042 (Vernon 1998). Additionally, Mr. Truhill does not indicate how the Act is otherwise
implicated by the present request.
Mr. F. Lawrence Oaks - Page 3                 (JC-0465)




          We begin our analysis by providing the legal context for your questions. Before the adoption
of the Antiquities Code in 1969, several repealed provisions of the Penal Code regulated
archaeological activity in the state. Former article 147a, adopted in 193 1, made it unlawful __ a
misdemeanor - to remove, destroy, or mutilate archaeological artifacts unless the owner of the
land consented. See Act of Aug. 17, 193 1,42d Leg., 1st C.S., ch. 32, $5 1,2, 193 1 Tex. Gen. Laws
71,7 l-72. In the case of public lands, the statute required the consent of the commissioners court
of the county in which the land was located. See id. Former article 147b, adopted in 1939,
prohibited forging archaeological objects, defacing Native American paintings, marks, or carvings
and required nonresidents of the state to obtain a pen-nit or license from the Secretary of State to
explore or excavate archaeological sites on either private or state lands. See Act of May 10, 1939,
46th Leg., R.S., ch. 1, §§ 1-3, 1939 Tex. Gen. Laws 60, 60-61. Article 147b also provided that a
person who violated its provisions “shall be guilty of a misdemeanor and shall forfeit to the State
all articles and materials discovered by or misrepresented through his action or efforts” and subject
to a fine and/or imprisonment for thirty days. See id. 9 6, 1939 Tex. Gen. Laws, at 61. Former
article 147b-1, adopted in 1963, made it unlawful to excavate on land owned or controlled by the
state or to remove archaeological features from state-owned land except in compliance with articles
 147a and 147b. See Act of Apr. 30, 1963, 58th Leg., R.S., ch. 153, 1963 Tex. Gen. Laws 434.
Finally, former article 147b-2, also adopted in 1963, made it unlawful for “any person, not being the
owner thereof’ to injure, remove, or destroy any historical structure or artifact. See Act of May 8,
 1963, 58th Leg., R.S., ch. 193, 4 1, 1963 Tex. Gen. Laws 519.

         In 1969, the legislature adopted the Antiquities Code of Texas to protect and preserve all
archaeological, historical, or educational sites and artifacts. See Act of Sept. 9, 1969,61 st Leg., 2d
C. S., ch. 2, 8 2, 1969 Tex. Gen. Laws 98,98-99. The law became effective on September 10,1969.
See id. 8 23,1969 Tex. Gen. Laws, at 103. The legislation repealed articles 147a, 147b, 147b-1, and
147b-2 of the Penal Code, although it reenacted the substance of those provisions as part of the
Antiquities Code. See id. 8 8 14-l 7, 20, 22, 1969 Tex. Gen. Laws, at 102, 103. Additionally, it
created the “Antiquities Committee” to generally designate state archaeological landmarks, provide
for discovery and salvage operations, issue permits for archaeological explorations, and to be the
“legal custodian of all items hereinafter described which have been recovered and retained by the
State of Texas.” Id. 5 4, 1969 Tex. Gen. Laws, at 99. Significantly, sections 5 and 6 of the law
expressly made archaeological sites and artifacts located on lands owned by the state or any political
subdivision of the state the “sole property” of the state:

                Sec. 5. All sunken or abandoned pre-twentieth century ships and
               wrecks of the sea and any part [of] or the contents thereof and all
               treasure imbedded in the earth, located in, on or under the surface of
               lands belonging to the State of Texas, including its tidelands,
                submerged lands and the beds of its rivers and the sea within the
               jurisdiction of the State of Texas are hereby declared to be State
               Archeological Landmarks and are the sole property of the State of
Mr. F. Lawrence Oaks - Page 4                       (JC-0465)




               Texas and may not be taken, altered, damaged, destroyed, salvaged
               or excavated without a contract or permit of the Antiquities
               Committee.

               Sec. 6. All other sites, objects, buildings, artifacts, implements, and
               locations of historical, archaeological,     scientific, or educational
               interest, including but expressly not limited to, those pertaining to
               prehistoric and historical American Indian or aboriginal campsites,
               dwellings, and habitation sites, their artifacts and implements of
               culture, as well as archeological sites of every character that are
               located in, on or under the surface of any lands belonging to the State
               of Texas or by any county, city, or political subdivision of the state
               are hereby declared to be State Archaeological Landmarks and are
               the sole property of the State of Texas and all such sites or items
               located on private lands within the State of Texas in areas that have
               been designated as a “State Archeological Landmark” as hereinafter
               provided, may not be taken, altered, damaged, destroyed, salvaged,
               or excavated without a permit from, or in violation of the terms of
               such permit of, the Antiquities Committee.

Id. $0 5,6, 1969 Tex. Gen. Laws, at 99-l 00 (emphasis added). In 1977, the Antiquities Code was
codified without substantive changes in chapter 191 of the Natural Resources Code, and the
substance of sections 5 and 6 at sections 191.09 1, 191.092, and 19 1.093 of that code. See Act of
May24, 1977,65thLeg.,     R.S., ch. 871, $0 1.001, 191.001-.174, 1977 Tex. Gen. Laws2345,2347,
2683,2687; seealso TEX.NAT.RES.      CODEANN. 50 191.091, .092(a), ,093 (Vemon2001).3     In 1995,


       3Sections 191.091, 191.092(a) and 191.093 of the Natural Resources       Code provide as follows:

               5 191.091.   Ships, Wrecks of the Sea, and Treasure Imbedded          in Earth

                    Sunken or abandoned pre-twentieth century ships and wrecks of the sea, and
               any part or the contents of them, and all treasure imbedded in the earth, located in,
               on, or under the surface of the land belonging to the State of Texas, including its
               tidelands, submerged land, and the beds of its rivers and the sea within jurisdiction
               of the State of Texas, are declared to be state archeological landmarks and are
               eligible for designation.

               5 191.092. Other Sites, Artifacts,    or Articles

                    (a) Sites, objects, buildings, artifacts, implements, and locations of historical,
               archeological,    scientific, or educational interest, including those pertaining to
               prehistoric and historical American Indians or aboriginal campsites, dwellings, and
               habitation sites, their artifacts and implements of culture, as well as archeological
               sites of every character that are located in, on, or under the surface of any land
               belonging to the State of Texas or to any county, city, or political subdivision of
                                                                                                           (continued.. .)
Mr. F. Lawrence Oaks - Page 5                            (JC-0465)




the legislature abolished the Antiquities Committee and transferred its powers and duties to the
Texas Historical Commission. See Act of May 8, 1995,74th Leg., R.S., ch. 109, 8 27, 1995 Tex.
Gen. Laws 909,919. The legislature provided that “Committee” in the Antiquities Code means the
Texas Historical Commission. See id. 8 18, 1995 Tex. Gen. Laws, at 915; see also TEX. NAT. RES.
CODE ANN. 8 191.003(l) (Vernon 2001).


         With this background, we return to your questions. We consider your first and last questions
together. You first ask: “Does the State of Texas own artifacts that were removed from State lands
prior to the effective date of the Antiquities Code in 1969?” Request Letter, supra note 1, at 2. You
also ask: “Does [article 147b of] the Penal Code of 1925 evidence an intent on the part of the State
to claim the artifacts as of the date of passage of that law, and have the effect of giving the State a
claim to them as of its effective date?” Id. In light of the first question, we understand the last
question to ask whether former articles 147a, 147b, 147b-1, and 147b-2 of the Penal Code, as a
matter of law, confer to the state ownership of artifacts removed from state lands prior to 1969.

         We conclude in the negative. While the state may in a particular case require the forfeiture
of artifacts removed from state lands or seek to deny the person who removed the artifacts
possession or ownership of them for violation of these provisions,4 we do not believe that the
repealed statutes evidenced a general intent by the state to claim ownership of all artifacts found on
state lands. Like a court, we endeavor to discover the legislature’s intent from the actual language
of the statute. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). By their
terms, the Penal Code provisions regulated archaeological explorations, but did not expressly assert
state ownership over artifacts discovered on state lands. See supra, pp. 2-3. And we have found no




                   the state are state archaeological   landmarks   and are eligible for designation.




                   5 191.093.    Prerequisites to Removal, Altering,            Damaging,      Destroying,
                   Salvaging, or Excavating Certain Landmarks

                       Landmarks under Section 19 1.09 1 or 19 1.092 of this code are the sole property
                   of the State of Texas and may not be removed, altered, damaged, destroyed,
                   salvaged, or excavated without a contract with or permit from the committee.

TEX. NAT. RES. CODE ANN. $9 191.091, .092(a), .093 (Vernon 2001).

          4See Platoro Ltd., Inc. v. UnidentiJied Remains of a Vessel, 37 1 F. Supp. 35 1,354 (S.D. Tex. 1970), rev ‘d, 508
F.2d 1113 (5th Cir. 1975) (Platoro I) (state contending that Platoro’s salvage activities constituted trespass on state land
and were in violation of several statutes including article 147b); Platoro Ltd., Inc. v. Unidentified Remains of a Vessel,
5 18 F. Supp. 8 16, 8 19 n. 1 (W.D. Tex. 198 l), afld in part, vacated in part, 695 F.2d 893 (5th Cir. 1983) (Platoro II)
(state again contending that Platoro’s salvage activities constituted trespass and violated several state statutes including
article 147b); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United
States, 75 B.U.LREV. 559,589 (1995) ( an d cases cited) (“A tinder who commits trespass in acquiring the property may
lose the right to possession.“).
Mr. F. Lawrence Oaks - Page 6                 (JC-0465)




authority - nor have you directed us to any - indicating that these regulatory provisions impliedly
asserted state ownership over all artifacts removed from state land.

         While you do not provide any explanations or legal authority, we presume you ask about the
Penal Code provisions because the state in Platoro Ltd., Inc. v. Unidentified Remains of a Vessel
asserted a claim under former article 147b for possession of 16th century shipwreck artifacts in the
court case that led to the adoption of the Antiquities Code. See R. Randall Bridwell, The Texas
Antiquities Code: An Historical Commentary in a Contemporary Context, 24 SW. L.J. 326 (1970).
Texas was ultimately granted possession of the artifacts in the Platoro case, but not on the basis of
section 147b or any other Texas statute, as far as we can tell. Possession in that case was granted,
although incorrectly, on the basis of sovereign prerogative. See Platoro Ltd., Inc. v. Unidentified
Remains of a Vessel, 5 18 F. Supp. 8 16,8 19 n.1 (W.D. Tex. 198 l), affd in part, vacated in part, 695
F.2d 893 (5th Cir. 1983) (Platoro II).

         The Platoro line of cases are the only cases that appear to have dealt with the ownership of
artifacts removed from state lands prior to the adoption of the Antiquities Code and are presumably
the basis for your suggestions that the state might own such artifacts as a matter of law. The Platoro
line of cases involved a long and complex dispute in which the state asserted ownership over 16th
century artifacts removed by a salvage company from a Spanish galleon that sank off the Texas
shore. See Platoro Ltd., Inc. v. Unidentljied Remains of a Vessel, 695 F.2d 893,901 (5th Cir. 1983)
(Platoro II) (summarizing history of case). The state proffered several legal theories to support its
ownership claim - including the British common-law doctrine of sovereign prerogative, which
allows ownership of an abandoned wreck to revert to the sovereign - and to deny Platoro
possession or a salvage claim because its exploration of the vessel violated state statutes, including
former article 147b. See Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 371 F. Supp. 35 1,
353 (S.D. Tex. 1970), rev’d, 508 F.2d 113 (5th Cir. 1975) (Platoro I); Platoro Ltd., Inc. v.
Unidentified Remains of a Vessel, 5 18 F. Supp. at 8 19 n. 1. In 1976, the United States District Court
for the Western District of Texas ruled in an unpublished opinion that the state owned the artifacts
by virtue of its sovereignty. See Platoro, 5 18 F. Supp. at 820. Platoro did not appeal this ruling.
See id. In 198 1, that same court flatly stated that “[tlhis theory [of ownership] is without merit, but
the Court is bound by the doctrine of res judicata . . . .” Id. at 819-20 (footnote omitted). The court
concluded:

                Therefore, regardless of the accuracy of the application of the law
                reflected in that [ 19761 order, this Court is precluded from applying
                the maritime law of finds as recently enunciated by the Fifth Circuit
                in a very similar and instructive case, Treasure Salvers, Inc. v. The
                Unident@ed Wrecked & Abandoned Sailing Vessel, 569 F.2d 330
                (5th Cir. 1978).

Id. at 820 (footnote omitted); see also discussion infra at pp. 7-8.
Mr. F. Lawrence Oaks - Page 7                          (JC-0465)




         As suggested by the 198 1 Platoro federal district court opinion above, in the absence of a
governing statutory provision, ownership or possession of artifacts found on state land would be
determined by the common law of finds applicable to personal property found on land and in the
water. See, e.g., United States v. Shivers, 96 F.3d 120 (5th Cir. 1996); Treasure Salvers, Inc. v.
Unidentijied Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978); Terry v. Lock, 37
S.W.3d 202,206 (Ark. 2001); Corliss v. Wenner, 34 P.3d 1100 (Idaho App. 2001); Ritz v. Selma
UnitedMethodist Church, 467 N.W.2d266,268-69          (Iowa 1991); Morgan v. Wiser, 711 S.W.2d220,
221-23 (Term. App. 1985); Schleyv. Couch, 284 S.W.2d 333,334 (Tex. 1955). Seegenerally Patty
Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United
States, 75 B.U.L. REV. 559,587 (1995). Whether the state is entitled to ownership or possession
depends on the particular artifacts and where they are found. Because you do not ask about a
particular artifact or situation, we cannot provide a definite answer. We provide instead the general
legal criteria for determining the ownership or possession of artifacts discovered on state public
lands. The analysis differs depending upon whether the artifacts are found on submerged state lands,
or whether they are found on unsubmerged state lands.

        We first look at artifacts found on submerged lands. If an artifact is found submerged in
water, it becomes subject to the law of admiralty, which comprises both the law of salvage and the
law of finds. See Gerstenblith, supra, at 601. The law of finds will apply if the owner is deemed
to have abandoned a ship and its contents; otherwise the law of salvage will apply. See id. at 602.
The United States Constitution creates original federal jurisdiction over maritime and admiralty law
whereby federal courts determine disposition of shipwrecks and associated objects. See id.

         Under the federal maritime law of finds, title to abandoned property vests in the person who
reduces that property to his or her possession regardless of where it is found. See Treasure Salvers,
569 F.2d at 337.5 To determine the ownership of a shipwreck on the outer continental shelf -
outside the territorial waters of the United States - the Fifth Circuit Court of Appeals in Treasure
Salvers relied on the common law of finds rather than federal maritime salvage law and held that
title to abandoned property vests in the person who reduces that property to his or her possession.
See id. at 337. The court noted that whether salvage law or the law of finds “should be applied to
property abandoned at sea is a matter of some dispute.” Id. at 336. The court applied the law of
finds, reasoning that because the application of salvage law was predicated on the “fiction” that the
owner of the wrecked vessel was still in existence, it would be absurd to apply that law to a “vessel
whose very location has been lost for centuries.” Id. at 337. 6 In this case, the court affirmed the



           ‘The Abandon ed Shipwreck Act of 1987,43 U.S.C. $5 2 10 l-2 106 ( 1994), rejects the law of finds and salvage;
grants title to abandoned and embedded shipwrecks to the United States; and transfers title directly to the state in whose
waters the wreck is located. See id. $6 2 105, 2 106. We do not consider this act given that you ask about artifacts
removed from state lands prior to 1969.

          ‘The court no ted that the law of salvage does not contemplate a different result. See Treasure Salvers, 569 F.2d
at 337. “Under either doctrine the property or an award for the value of the salvage efforts goes to the one who is first
able to seize possession. The primary difference between the two doctrines is that under salvage law the claim of the
                                                                                                              (continued...)
Mr. F. Lawrence Oaks - Page 8                        (JC-0465)




private salvage corporation’s title to the shipwreck. See id. The court also rejected the United
States’ claim to the shipwreck as “successor to the prerogative rights of the King of England.” See
id. at 340-43.

         There are two exceptions to the rule granting ownership of abandoned property to the
“finder.” The Eleventh Circuit Court of Appeals in Klein v. UnidentiJied Wrecked & Abandoned
Sailing Vessel, 758 F.2d 15 11 (11 th Cir. 1985), followed Treasure Salvers, but applied the
recognized exceptions to the common-law rule of finds to grant ownership of a shipwreck
submerged beneath the waters of Biscayne National Park in Florida. The court explained:

                           The common law of finds generally assigns ownership of the
                  abandoned property without regard to where the property is found.
                  Two exceptions to that rule are recognized: First, when the
                  abandoned property is embedded in the soil, it belongs to the owner
                  of the soil; [slecond, when the owner of the land where the property
                  is found (whether on or embedded in the soil) has constructive
                  possession of the property such that the property is not “lost,” it
                  belongs to the owner of the land.

Klein, 758 F.2d at 15 14. The Klein court concluded that both exceptions operated to give the United
States ownership of the vessel rather than the private diver who had discovered the wreck. See id.
at 1514-15. The court reasoned “[tlhe ship is buried in the soil. The soil belongs to the United
States as part of its national park system. . . When the United States acquired title to the land from
Florida in 1973, it also acquired title to the shipwrecks embedded in the soil.” Id. Additionally, the
court determined that:

                  [slince 1975 the United States has had constructive possession of the
                  wreck by virtue of a Preliminary Archeological Assessment of
                  Biscayne National Monument prepared for the Park Service. This
                  assessment noted the presence of an 18th century shipwreck in the
                  area of the wreck. Furthermore, the United States has had the power
                  and the intention to exercise dominion and control over the subject
                  shipwreck. Thus, the United States has never legally lost the subject
                  shipwreck . . . .

Id. (footnotes   omitted).

         The Fifth Circuit Court of Appeals has also recognized the “embedded” and “constructive
possession” exceptions to the common-law rule of finds. In a 1996 decision, the Fifth Circuit Court
of Appeals in United States v. Shivers, 96 F.3d 120 (5th Cir. 1996), without distinguishing between


          ‘j(.. .continued)
finder of abandoned property is satisfied by proceeds from the sale of the property paid into court.”   Id. at 337 n. 11.
Mr. F. Lawrence Oaks - Page 9                 (JC-0465)




objects found on submerged and unsubmerged lands, followed Klein and determined that in the
absence of express or statutory title transfer, the United States owned metal tokens found by a private
collector on an unsubmerged site located in the Angelina National Forest. See Shivers, 96 F.3d at
123. The court reasoned that the tokens “were buried in the soil of the [national forest]” and that
“[a]s in Klein, this soil belongs to the United States, and with it the embedded tokens under the first
exception to the federal common law of finds discussed in Klein.” Id. (footnotes omitted).

         In sum, former articles 147a, 147b, 147b- 1, and 147b-2 of the Penal Code did not, as a matter
of law, confer to the state ownership of artifacts removed from state lands prior to 1969. In the
absence of a governing statutory provision, ownership or possession of artifacts found on state land
before 1969 would be determined by the common law of finds applicable to personal property found
on land and in the water. Ownership of artifacts discovered on or in submerged lands is determined
by the federal maritime law of finds. Under the law of finds, an artifact found on submerged land
is treated as abandoned property and ownership is assigned to the person who found it and first
reduced it to possession.    However, title to an artifact found embedded in the soil or over which
artifact the owner of the land has constructive possession is given to the landowner. Accordingly,
with respect to artifacts found on submerged state lands prior to 1969, the state, as owner of the land,
would own submerged artifacts found embedded in the soil or over which the state had constructive
possession; otherwise, the submerged artifacts would belong to the person who had found them.

         We next turn to artifacts found on unsubmerged state lands. The common law of finds with
respect to objects found on land is slightly different from the federal maritime law of finds and its
application in Texas less clear. The common law divides found personal property into five
classifications: abandoned, lost, mislaid, treasure trove, and embedded. See Corliss v. Wenner, 34
P.3d 1100, 1104 (Idaho App. 2001); see generally 1 AM. JUR. 2D Abandoned, Lost and Unclaimed
Property 5 8 1- 14 (1994). The classification of the property determines its ownership or possession.
See Corliss, 34 P.3d at 1103-04; Ritz v. Selma United Methodist Church, 467 N.W.2d 266,268-69
(Iowa 1991). We consider each property classification.

         Abandoned property is property that the owner has discarded or voluntarily forsaken with
        the intention of terminating ownership, but without vesting ownership in another person. See
        Terry v. Lock, 37 S.W.3d 202,206 (Ark. 2001); see also Morgan v. Fox, 536 S.W.2d 644,
        652 (Tex. Civ. App.-Corpus        Christi, 1976, writ ref d n.r.e.) (essential element of
        abandonment is intention to abandon, which must be affirmatively established; non-use and
        passage of time alone do not constitute abandonment of vested rights). The finder who
        reduces abandoned property to possession acquires absolute title to it, with no duties to the
        original owner. See Ritz, 467 N.W.2d at 269; see also Greggv. Caldwell-Guadalupe Pick-up
        Stations, 286 SW. 1083, 1084 (Tex. Comm’n App. 1926, holding approved) (title to
        abandoned personal property vests in first person who reduces its possession).

l
        Lost property is property with which the owner has involuntarily and unintentionally parted
        through neglect, carelessness, or inadvertence and of whose whereabouts the owner has no
        knowledge. See Terry, 37 S.W.3d at 206; see also Schley v. Couch, 284 S.W.2d 333, 334
Mr. F. Lawrence Oaks - Page       10           (JC-0465)




        (Tex. 1955). The general rule is that the finder of lost property becomes the owner thereof
        as against the whole world except the true owner. See Ritz, 467 N.W.2d at 269.

l       Mislaid property is property that the owner has intentionally set down in a place where the
        owner can again resort to it, but then forgets its location. See Terry, 37 S.W.3d at 207; see
        also Schley, 284 S.W.2d at 335. “Mislaid property is presumed to be left in the custody of
        the owner or occupier of the premises upon which it is found, and it is generally held that the
        right of possession to mislaid property . . . is in the owner or occupant of such premises” as
        against all persons except the true owner. Schley, 284 S.W.2d at 335-36 (citations omitted).

.       Embedded property is personal property that has become part of the natural earth, and
        includes anything not made of gold or silver, or their paper equivalents, such as pottery,
        sunken wreck of a steamship, or a sack of gold-bearing quartz rock wholly or partially buried
        in the ground. See Corliss, 34 P.3d at 1104. Possession of embedded property is given to the
        owner of the land on which the property was found. See id. ; see also Gerstenblith, supra,
        at 592 (Classification of personal property in this category “may depend on the extent to
        which it is buried in the soil” and may “arguably [be] misclassified as mislaid; the distinction
        is not significant, however, because possession of both mislaid and embedded property is
        given to the real property owner.“).

        Treasure trove is a special category reserved exclusively for gold or silver coins, plates,
        bullion, and sometimes its paper money equivalents, found concealed in the earth or another
        private place. See Terry, 37 S.W.3d at 207. Treasure trove carries with it the idea of
        antiquity, i.e., that the treasure has been concealed for so long as to indicate that the owner
        is probably dead or unknown. See Corliss, 34 P.3d at 1104. Notwithstanding that a treasure
        trove is not lost property - its essential character is that it shall have been concealed by the
        owner for safekeeping - it has historically been treated the same as lost property in granting
        the right to possession to the finder. See id. ; Morgan v. Wiser, 7 11 S. W.2d 220, 221-23
        (Term. App. 1985).

         Texas state courts appear to have dealt only with two of the five “found” categories, i.e., lost
and mislaid property. Texas expressly does not recognize the “treasure trove” doctrine. See Schley,
284 S.W.2d at 334. Nor does it appear to recognize embedded property as a separate category. In
Schley v. Couch, 284 S.W.2d 333 (Tex. 1955), the Texas Supreme Court dealt with money found
by the plaintiff buried under the defendant’s garage. The court decided that the treasure trove
doctrine would not apply, but that the case “should be governed by rules of law applicable to lost
and mislaid property.” Id. at 335. While stating that “[tlhe character of the property [as lost or
mislaid] is to be determined from all the facts and circumstances present in the particular case
involving property found[,]” the court determined that the money in this case was mislaid, as a
matter of law: the bills had been carefully placed in a jar and then buried in the ground, which
indicated that “the owner did not part with them inadvertently, involuntarily, carelessly or through
neglect.” Id. at 336. The court then held that:
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                          Property which is found embedded in the soil under
                 circumstances repelling the idea that it has been lost is held to have
                 the characteristics of mislaid property. The finder acquires no rights
                 thereto, for the presumption is that possession of the article found is
                 in the owner of the locus in quo, and, accordingly it is held that the
                 right to possession of such property is in the landowner.

Id. As the concurring opinion by Justice Calvert noted, the majority opinion failed to recognize the
fourth category of found property - embedded property - but adopted the rule applicable to this
category of property although classifying it as mislaid property.      See id. at 337 (Calvert J.,
concurring).

          In sum, under the common law of finds as construed by the Texas courts, ownership or
possession of property found on unsubmerged land is dictated by its classification, based on all the
facts and circumstances surrounding the found property, as either “mislaid” or “lost.” If the property
is classified as “lost” property, the person who found the property is given ownership. On the other
hand, if it is classified as “mislaid,” the person who owns the land where it was found is awarded
possession. Accordingly, the state, as owner of the land, would own artifacts found on state lands
prior to 1969 if they are classified as “mislaid” property. However, if the artifacts are classified as
“lost” property, they would belong to the person who had found them.

        You next ask: “Does the State of Texas own artifacts that have been removed from city,
county, or other political subdivisions’ land, either prior to the effective date of the amendment to
the Antiquities Code in 1977, or subsequently ?” Request Letter, supra note 1, at 2.

         Based on our prior discussion, the state would not own artifacts removed, prior to the
adoption of the Antiquities Code in 1969, from lands owned by political subdivisions of the state
unless the artifacts were determined to be “lost” property and the state had “found” them. Under the
statute as adopted in 1969 and as currently codified in the Natural Resources Code, the state owns
artifacts found on lands belonging to political subdivisions of the state. See Act of Sept. 9, 1969,
61 st Leg., 2d C. S., ch. 2, 8 6,1969 Tex. Gen. Laws 98, 100; Act of May 24, 1977,65th Leg., R.S.,
ch. 87 1, 8 8 1.OOl, 191.092, 1977 Tex. Gen. Laws 2345,2347,2687        (nonsubstantive codification);
TEX. NAT. RES. CODE ANN. $5 191.091, .092(a), .093 (Vernon 2001);7 see also Gerstenblith, supra,
at 599 (“[V]irtually every state government has declared its right to ownership and control of any
archaeological objects found on publicly owned or controlled land.“). You do not contend that this
provision of the statute is facially unconstitutional.    And, we must presume, without “clear and
certain” evidence to the contrary, that it is constitutional. See Gen. Sews. Comm ‘n v. Little-Tex
Insulation Co. Inc., 39 S.W.3d 591,598 (Tex. 2001); McKinney v. Blankenship, 282 S.W.2d 691,
697 (Tex. 1955); Rooms With a View, Inc. v. Private Nat ‘1Mortgage Ass iz, Inc., 7 S.W.3d 840,845



        7 See supra, note 3.
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(Tex. App.-Austin 1999, pet. denied); Salvatierra v. VIA Metro. Transit Auth., 974 S.W.2d 179,182
(Tex. App.-San Antonio 1998, pet. denied); see also TEX. GOV’T CODE ANN. 8 3 11.02 l( 1) (Vernon
1998) (stating that legislature is presumed to have intended to comply with state and federal
constitutions). Whether the state’s claim of ownership in a particular situation would violate a state
constitutional provision, we cannot say. See, e.g., Tex. Antiquities Comm. v. Dallas County. Coil.
Dist., 554 S.W.2d 924, 930 (1977) (“One agency of the state does not possess powers to divest
vested property and contract rights of another state agency” unrestrained by particular constitutional
prohibitions.).

         We understand that you were under the mistaken impression that the state did not assert
ownership over artifacts located on or in lands belonging to political subdivisions of the state until
1977. You aver that the Antiquities Code was “amended” in 1977 “to claim objects under land
‘belonging to the State of Texas or to any county, city, or political subdivision of the state . . . .“’
Request Letter, supra note 1, at 1; see Act of May 24, 1977,65th Leg., R.S., ch. 871, 5 191.092,
1977 Tex. Gen. Laws 2345, 2687. Yet, the state asserted ownership over such artifacts as of the
effective date of the Antiquities Code of 1969. See Act of Sept. 9, 1969,6 1st Leg., 2d C.S., ch. 2,
4 6, 1969 Tex. Gen. Laws 98, 100. As indicated earlier, section 6 of the Antiquities Code of 1969
provided that:

                       All other sites, objects, buildings, artifacts, implements, and
                locations of historical, archaeological,     scientific, or educational
                interest, including but expressly not limited to, those pertaining to
                prehistoric and historical American Indian or aboriginal campsites,
                dwellings, and habitation sites, their artifacts and implements of
                culture, as well as archeological sites of every character that are
                located in, on or under the surface of any lands belonging to the State
                of Texas or by any county, city, or political subdivision of the state
                are hereby declared to be State Archaeological Landmarks and are
                the sole property of the State of Texas . . . .

See Act of Sept. 9, 1969, 61 st Leg., 2d C.S., ch. 2, 8 6, 1969 Tex. Gen. Laws 98, 100 (emphasis
added). The 1977 codification of the Antiquities Code was nonsubstantive.     See Act of May 24,
1977,65th Leg., R.S., ch. 871, 0 1.OOl, 1977 Tex. Gen. Laws 2345,2347.

         Finally, you ask: “If it is determined that the State of Texas owns artifacts that were removed
from State and/or other governmental lands prior to the effective date of the Antiquities Code of
1969, is the [Texas Historical Commission] legal custodian of items not described in that law?”
Request Letter, supra note 1, at 2. We conclude that the Texas Historical Commission is the legal
custodian of artifacts removed prior to 1969 from state public lands if they are recovered and
retained by the state. Section 191.05 l(a) of the Natural Resources Code provides that: “The
committee is the legal custodian of all items described in this chapter that have been recovered and
retained by the State of Texas.” TEX. NAT. RES. CODEANN. 5 191.05 l(a) (Vernon 2001). Under the
statute, the “committee” is the Texas Historical Commission. See id. 8 191.003( 1); see also Act of
Mr. F. Lawrence Oaks - Page 13               (JC-0465)




May 8, 1995,74th Leg., R.S., ch. 109,§ 27,1995 Tex. Gen. Laws 909,919 (abolishing Antiquities
Committee and transferring its powers and duties to Texas Historical Commission). Section 19 1.05 1
is very broad. It covers all archaeological, historical, or educational items recovered and retained
by the state. See TEX. NAT. RES. CODE ANN. $j§ 191.091, .092 (Vernon 2001) (describing sites and
items covered by this chapter). While the state cannot pursuant to the Antiquities Code assert
ownership, as a matter of law, over artifacts discovered prior to the code’s effective date, we see no
reason why the commission is precluded from acting as the legal custodian of such artifacts
described by chapter 19 1 to the extent recovered and retained by the state under the common law of
finds or otherwise.
Mr. F. Lawrence Oaks - Page 14               (JC-0465)




                                       SUMMARY

                Whether the state owns artifacts removed from state lands prior to the
       adoption of the Antiquities Code in1 969 depends on the particular artifacts and where
       they were found. With respect to artifacts found on submerged state lands, the state,
       as owner of the land, would own artifacts found buried in the soil or over which the
       state had constructive possession; otherwise, the artifacts would belong to the person
       who had found them. With respect to artifacts found on unsubmerged state lands,
       the state, as owner of the land, would own artifacts classified as “mislaid” property;
       however, artifacts classified as “lost” property would belong to the person who had
       found them. The state would not own artifacts removed prior to 1969 from lands
       owned by political subdivisions of the state unless the artifacts were determined to
       be “lost” property and the state had “found” them. Under the Antiquities Code, the
       state owns artifacts removed subsequent to its effective date from lands belonging to
       political subdivisions of the state. Additionally, the Texas Historical Commission
       is the legal custodian of artifacts removed from state public land prior to 1969 to the
       extent they are recovered and retained by the state. Finally, former articles 147a,
       147b, 147b- 1, and 147b-2 of the Penal Code did not, as a matter of law, confer to the
       state ownership of artifacts removed from state lands prior to 1969.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
