    Mr. Arnold W. Oliver, P.E.     Opinion No. JM-1170
    Engineer-Director
    State Department of Highways   Re: Conveyance of land from the
      and Public Transportation    Texas Department of Corrections
    Dewitt C. Greer State          to the State Department      of
      Highway Building             Highways and Public Transporta-
    11th h Brazes                  tion   (RQ-1951)
    Austin, Texas 78701-2483

    Dear Mr. Oliver:

         You ask about the construction of a bill requiring   the
    Department of Corrections to transfer certain real property
    to the Department of Highways and and Public Transportation
    (hereinafter Highway  Department).   Specifically,  you ask
e   whether the bill authorized the Department of Corrections to
    reserve the mineral   rights in the land in question       or
    whether the bill required the department to transfer    title
    in fee simple.

         In 1907 the legislature    adopted Senate Bill 52,   which
    provides in part as follows:

               SECTION 1. CONVEYANCE   OF PROPERTY.   (a)
            On behalf of the state, the Texas Board of
            Mental Health and Mental Retardation and the
            Texas Department of Corrections shall sell to
            the State Department of Highways and Public
            Transportation the tracts of state-owned land
            that are described by Section 2 of this Act
            for a total amount of $120.6 million.

                (b) Before August  31, 1980, the .State
            Department     of   Highways    and    Public
            Transportation shall purchase the land for a
            total amount of $120.6 million. All the land
            that qualifies    for the    expenditure   of
            constitutionally  dedicated  funds shall be
            purchased from the constitutionally dedicated




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Mr. Arnold W. Oliver - Page 2     (JM-1170)




        portion of the state highway    fund.1 The
        remainder  shall   be purchased   from the
        statutorily dedicated portion of the state
        highway fund.

Acts 70th Leg., 2d C.S., ch. 2, 5 1, at 5 (footnote added).

     You state that the Highway    Department  tendered  the
purchase price to the Board of Mental Health     and Mental
Retardation   (hereinafter MHMR)   and the Department     of
Corrections.    MHMR delivered   a deed conveying,   without
reservation, the property described in Senate Bill 52.   The
Department of Corrections, however,   refused to execute a
deed transferring title in fee simple and took the position
that the legislature did not intend that the Department   of
Corrections transfer the mineral    rights in the land in
question.




     1. Article    VIII,    section  l-a,             Texas
Constitution  provides   that revenues  fromofmotEr vehicle
registration fees and taxes on motor   fuels and lubricants
shall be used only for certain specified purposes, most of
which have to do with financing of roads and highways.
Article VIII, section 7-b provides:

           All revenues received     from the federal
        government    as   reimbursement     for    state
        expenditures of funds that are themselves
        dedicated   for acquiring    rights-of-way    and
        constructing,    maintaining,    and     policing
        public roadways are also constitutionally
        dedicated and shall be used only for those
        purposes.

     Section  l(b)   of    Senate Bill    52   restates    the
constitutional requirement that the Highway Department     may
expend  funds   from    the sources    described   in    those
constitutional provisions only for purposes set out in those
constitutional provisions.    We note that section    4(b) of
Senate Bill 52 would allow the Highway Department to lease
back to TDC for $1 a year any portion of the land acquired
from TDC pursuant to Senate Bill 52. The constitutionality
of such a lease would be in question         if the Highway
Department used funds subject to section 7-a or section 7-b
of article VIII to purchase the land from TDC.




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Mr. Arnold W. Oliver - Page 3    (JM-1170)




     The legislature     has exclusive      control over    the
disposition ;if state-owned land.     See Lorino Y. Crawford
mna     Co,, 175 S.W.Zd 410, 414 (Tex. 1943); Conlev
pauahters of the Renu&&.j& 156 S.W. 197, 200 (Y     Pex. 1913;;
Attorney General   Opinion JM-242   (1984).    Senate Bill 52
states that the Department of Corrections I'shall sell to the
State Department of Highways and Public Transportation      the
tracts of state-owned land" described in the bill. The bill
contains no language    indicating that the Department        of
Corrections should retain any interest in that land.          In
grants of land, reservations of mineral interests must be by
clear language.    sharp v. Fowler, 252 S.W.Zd        153 (Tex.
1952).   In Texas, under both case law and statutory law, a
grant of land will be construed   as a grant of an estate     in
fee simple unless the conveyance is expressly limited. &
of Stamford      King 144 S.W.2d 923 (Tex. Civ. APP. -
Eastland 1940: writ rLf#d) : Prop. Code § 5.001(a). We think
the courts would apply an analogous rule to construction      of
a statute requiring one state agency to transfer           real
property to another state agency.       Therefore, we do not
think the Department     of Corrections    was authorized     to
reserve to itself the mineral estate in the land described
in Senate Bill 52.    See aeneraLly Attorney General opinion
WW-207 (1980) (statutes governing Department of Corrections
indicate legislative intent to regulate closely disposition
of land under control of Department of Corrections):        G
Acts 1930, 41st Deg., 5th C.S., ch. 67, at 215     (authorizing
Department of Corrections    to sell certain property,      but
requiring that oil, gas, and mineral rights be reserved       to
state): Attorney General Opinion JW-242 (statute permitting
board of regents "to transfer and convey" land under terms
and conditions deemed advisable by regents allowed regents
to convey easement or fee simple title).

     Two arguments have been raised in support of TDC's
position.  One is that the amount to be paid by the Highway
Department for the land held by TDC is the value          the
General Land Office placed on the surface estate in that
land. However, there is no requirement that a state agency
receive "adequate compensationw when state property in its
custody is transferred   to the custody of another state
agency. m    Attorney General Opinion WW-1273    (1962) (land
acquired  in name of county for construction        of state
highways is state property regardless   of fact that deed is
made out to county); we     a180 Tex. Const. art. I, § 17
(requiring payment  of adequate compensation    when private
property is taken for public purposes).




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Mr. Arnold W. Oliver - Page 4    (JM-1170)




     The other argument   is that TDC's retention  of the
mineral rights is required by the following Appropriations
Act rider:

           No state lands shall be sold unless the
        mineral rights are retained by the state,
        unless impractical.

General Appropriations Act, Acts 1989, 71st Leg., ch. 1263,
art. V, 5 83; General Appropriations Act, Acts 1987, 70th
-g., 2d C.S., ch. 78, art. V, 5 79. Regardless of whether
TDC or the Highway Department holds title to the mineral
rights in the land in question, those rights will be held by
the state. Conseguently,,,that rider has no application   to
your question.

                       SUMMARX
             A bill requiring the Department       of
        Corrections to transfer certain real property
        to the Department    of Highways  and Public
        Transportation   did    not  authorize    the
        Department   of Corrections  to reserve    to
        itself the mineral estate in that land.




                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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