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:




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