  _ OFFICE   OF THE ATTORNEY    GENERAL   . STATE 0~ TEXAS

    JOHN CORNYN




                                                    August 1,200l



The Honorable Jeff Wentworth                                  Opinion No. JC-0399
Chair, Redistricting Committee
Texas State Senate                                           Re: Whether       the Llano County Commissioners
P.O. Box 12068                                               Court may       delegate its authority over county
Austin, Texas 7871 l-2548                                    school lands    to the Board of Trustees of the Llano
                                                             Independent     School District (RQ-0350-JC)


Dear Senator Wentworth:

         You request an opinion on whether the Llano County Commissioners Court may delegate
its authority to sell, lease, or otherwise dispose of county school lands to the Llano Independent
School District if the district agrees to waive the liability of the commissioners court for actions
taken in connection with the school lands.’ See TEX. PROP.CODE ANN. § 114.032 (Vernon Supp.
2001). Pursuant to article VII, section 6 ofthe Texas Constitution, the Llano County Commissioners
Court is trustee of the county school lands granted to the county, and it may not delegate its
responsibility for the land to another entity.

        Your inquiry concerns the public school lands granted to Llano County for the benefit of
education in the county.2 Beginning in 1838, the Republic of Texas set apart land to each county to
fund the establishment ofpublic schools. See TEX.CONST. art. VII, 5 6, inter-p. commentary (Vernon
1993). Article VII, section 6 of the Texas Constitution provides for the ownership and disposition
of the county school lands as follows:

                   All lands heretofore, or hereafter granted to the several counties of
                   this State for educational purposes, are of right the property of said
                   counties respectively, to which they were granted, and title thereto is



         ‘You state y our question in terms of whether the Llano County Commissioners            Court may delegate its
management authority over the school land property to the school district. See Letter from Honorable Jeff Wentworth,
Chair, Senate Redistricting Committee, to Honorable John Cornyn, Texas Attorney General (Feb. 16,200l) [hereinafter
Wentworth Brief]. By management, we understand you to refer to the commissioners court’s authority to sell, lease,
and otherwise dispose of the school lands, including other duties incident to its ownership of the lands as trustee for the
schools in the county. See generally Logan v. Stephens Co., 83 S.W. 365 (Tex. 1904).

         2See Wentworth    Brief, supra note 1.
The Honorable      Jeff Wentworth        - Page 2          (JC-0399)




                   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 thereof, when sold, shall be held by said counties
                   alone as a trust for the benefit of public schools therein . . . .

TEX. CONST. art. VII, 8 6. See also TEX. Lot. GOV’T CODE ANN. 9 263.003 (Vernon 1999)
(commissioners court may dispose of county school lands only as provided by law); Act of June 2 1,
1969,61 st Leg., R-S., ch. 889,§ 1, sets. 17.8 l-.83,1969 Tex. Gen. Laws 2735,2846-47, reprinted
in TEX. EDUC. CODE ANN. tit. 2 app. at 195-96 (Vernon 1996) (former sections 17.8 l-.83 of the
Education Code).3 A county may lease as well as sell its school lands. See Falls County v. DeLaney,
11 S.W. 492 (Tex. 1889). The funds generated by the sale or lease of county school lands are placed
in the available school fund of the county. See TEX. CONST. art. VII, $j6; TEX. EDUC.CODEANN.
tit. 2 app. at 195-96 (Vernon 1996) (former TEX. EDUC.CODEAN-N.9 17.82); Tex. Att’y Gen. Op.
No. O-2111 (1940) at 3.

        Most counties in Texas have sold their county school lands and invested the proceeds in
authorized securities. See 36 DAVIDB. BROOKS,TEXASPRACTICE:COUNTYANDSPECIALDISTRICT
LAW 5 30.2 (1989). Llano County, however, still holds more than 17,000 acres of county school
land located in Tom Green County.4 The beneficiaries of these lands are the Llano Independent
School District (“Llano ISD”), which is located entirely within Llano County, and the Bumet
Consolidated Independent School District, a small part of which is located in Llano County. Over
the years, some of the property has been sold, but most of it has been leased for grazing, hunting,
mineral exploration, and excavation .5 You state that the Llano County Commissioners Court has
often sold or encumbered this property without consulting the school districts and has sporadically
reported activities regarding this property to the districts.6




           3These provisions were repealed in 1995, but section 11.30 1 of the Education Code provides for their continued
application to county public school lands. See Act of May 29, 1995,74th Leg., R.S., ch. 260, 6 58, 1995 Tex. Gen.
Laws 2207,2498; TEX. EDUC. CODE ANN. $11.301 (Vernon 1996). They may be found in the appendix following               title
2 of the Education Code. See TEX. EDUC.
                                      CODE ANN. tit. 2 app. at 195-96 (Vernon 1996).


           4Brief from George E. Grimes, Jr., Walsh, Anderson, Brown, Schulze & Aldridge, P.C., to Susan D. Gusky,
Chair, Opinion Committee, Office of Attorney General, at 2 (Apr. 13, 2001) (on file with Opinion Committee)
[hereinafter Grimes Brief].

         ‘Wentworth   Brief, supra note 1, at 1; Grimes Brief, supra note 4, at 5.

         6Wentworth   Brief, supra note 1, at 2.
The Honorable     Jeff Wentworth       - Page 3   (JC-0399)




         The school districts would like the Llano County Commissioners Court to delegate its
authority over the school lands to the Board of Trustees of the Llano ISD. In exchange, the school
districts would agree to waive the commissioners court’s liability as trustee for the school lands
pursuant to Property Code section 114.032, which authorizes releasing the trustee’s liability by a
written signed agreement between the trustee and beneficiary. See generally County Sch. Trs. v.
Brazoria County, 240 S.W. 675,676 (Tex. Civ. App.-Galveston 1922, no writ) (county is liable for
amount of county school fund that commissioners court diverted to county purposes, plus interest);
Comanche County v. Buds, 166 S.W. 470, 472 (Tex. Civ. App.-Fort Worth 1914, writ ref d)
(county liable for proceeds of a sale of school lands, which were diverted to county purposes). We
must determine whether the Llano County Commissioners Court may delegate its authority to sell,
lease, or otherwise dispose of the county school lands to the Llano ISD on these terms.

         Article VII, section 6 of the Texas Constitution establishes an express trust in which the
commissioners court acts as trustee of the county school lands for the benefit of the public schools
in the county. See, e.g., Delta County v. Blackburn, 93 S.W. 419,422 (Tex. 1906); Brazoria County,
240 S.W. at 676; Buds, 166 S.W. at 473-74; Tex. Att’y Gen. Op. No. JC-0004 (1999) at 2, H-506
(1975) at 2, H-239 (1974) at 1, V-l 089 (1950) at 3. It gives the commissioners court the power to
sell or otherwise dispose of school lands and leaves it free to provide the manner of sale. See Martin
County v. Magnolia Petroleum Co., 252 S.W.2d 266,269 (Tex. Civ. App.- Amarillo 1952, no writ).

         Article VII, section 6 also prevents the commissioners court from delegating its authority to
dispose of the county school lands of which it is trustee. See Logan v. Stephens County, 83 S.W.
365,367 (Tex. 1904). The commissioners court has no power to delegate to another person or entity
its discretionary authority to sell, lease, or otherwise dispose of the lands. See Williams v. Pure Oil
Co., 78 S.W.2d 929,931 (Tex. 1935); Potter County v. C. C. Slaughter Cattle Co., 254 S.W. 775,
777-78 (Tex. 1923); Gallup v. Liberty County, 122 S.W. 291, 294 (Tex. Civ. App.-San Antonio
1909, writ ref d); Logan, 83 S.W. at 367. An order of the commissioners            court attempting to
delegate authority to sell the land is invalid, and a sale and deed executed by an agent under such
order is also invalid. See Pure Oil Co., 78 S.W.2d at 931; Logan, 83 S.W. at 367. Based on these
authorities, we conclude that the Llano County Commissioners Court may not delegate its authority
as trustee of the county school lands to the Llano ISD.

         We are however informed that “it is the intention of the Llano Independent School District
that its written agreement with Llano County will provide that any action taken by the School
District will be expressly ratified by the Llano County Commissioners’ Courtyy7 It is thus suggested
that the commissioners court may delegate authority to sell or lease school lands if it binds itself to
ratify each action by the school board, including a sale, lease, or other disposition of the land.




        7Grimes Brief, supra note 4, at 7.
The Honorable    Jeff Wentworth    - Page 4         (JC-0399)




          In a judicial decision on the ratification of an invalid sale of school lands, the court defined
“ratification” as follows:

                Ratification is the election by a person, and the expression of such
                election by words or conduct, to accept an act or contract previously
                done or entered into in his behalf by another who had at the time no
                authority to do the act or make the contract on his behalf.

Gallup, 122 S.W. at 296 (quoting 1 WILLIAMLAWRENCECLARK& HENRYH. SKYLES: TREATISE
ONTHELAW OFAGENCY 9 98 (1905)); see also T & R Assoc., Inc. v. City ofAmarillo,          688 S.W.2d
622, 630 (Tex. App.-Amarillo   1985, writ ref d n.r.e.) (giving similar definition of “ratification”).
The commissioners court, with knowledge of all material facts, may ratify a sale of school lands that
is invalid because it was made by a person other than the commissioners court. See Boydstun v.
Rockwall County, 24 SW. 272,274 (Tex. 1893); Brazoria County v. Rothe, 168 S.W. 70’74 (Tex.
Civ. App.- San Antonio 1914, writ ref d); Gallup, 122 S. W. at 296.

         Ratification necessarily involves an exercise of discretion by the commissioners    court
because the court must decide, based on its knowledge of all material facts, whether to accept or
reject the sale or other disposition of county school lands. Absent statutory or constitutional
authority, the commissioners court may not delegate powers requiring the exercise of judgment and
discretion to another entity. See Guerra v. Rodriguez, 239 S.W.2d 915 (Tex. Civ. App.-San Antonio
1951, no writ); Padgett v. Young County, 204 S.W. 1046,1052 (Tex. Civ. App.-Fort Worth 1918,
writ dism’d); see also Clear Lake City Water Auth. v. Clear Lake Utils. Co., 549 S.W.2d 385,391
(Tex. 1977).

         Moreover, ratification necessarily takes place after the transaction has occurred. Thus, an
attempt to “ratify” a transaction before it takes place is not ratification, but actually the prior
authorization of the transaction. See generally Armstrong v. Palmer, 2 18 S. W. 627’63 1 (Tex. Civ.
App.-Amarillo      1920, writ ref d) (prior and contemporaneous        acts of principal authorize the
transaction in advance and are not a basis for ratification); 3 TEX. JUR.3DAgency, Ej116 (1996); 1
WILLIAMLAWRENCECLARK& HENRYH. SKYLES,TREATISE                     ONTHELAW OFAGENCY 9 98 (1905)
(an act, in order to be the subject of ratification, must have been unauthorized). As we have already
determined, the commissioners court may not authorize another person to exercise its authority over
school lands. The attempt to ratify in advance would be an invalid effort to delegate the county’s
constitutional authority over the school lands to the Llano ISD. Accordingly, the commissioners
court may not bind itself to ratify each sale, lease, or other disposition of the school land by the
school board.

        It is also suggested that the proposed contract is authorized by certain provisions of the Texas
Trust Code, TEX. PROP.CODEANN., tit. 9, subtit. B, $5 111.001-l 15.017 (Vernon 1995 & Supp.
200 1). For example, section 113 .O18 of the Property Code authorizes a trustee to “employ attorneys,
The Honorable Jeff Wentworth       - Page 5         (JC-0399)




accountants, agents, including investment          agents, and brokers reasonably necessary in the
administration of the trust estate.” TEX. PROP.CODEANN. 5 113.018 (Vernon Supp. 2001). Section
113.060 of the Property Code authorizes a trustee to delegate investment decisions to an investment
agent, subject to a number of conditions, including notifying the beneficiary before entering into an
agreement with an investment agent. Id. cj 113.060. Section 114.032 provides that a written
agreement between a trustee and a beneficiary, including a release, consent, or other agreement
relating to a trustee’s duty, power, responsibility, restriction, or liability, is final and binding on the
beneficiary and persons represented by the beneficiary if it is signed by the beneficiary and if certain
other conditions are met. See id. 4 114.032.

         This office has on occasion relied on provisions of the Texas Trust Code to determine a
county’s authority with respect to investing the available school fund. See Tex. Att’y Gen. Op. Nos.
M-l 104 (1972) at 2 (restriction against trustee selling property to trust); JC-0004 (1999) at 2
(“prudent investor” standard). No opinion states that the Texas Trust Code applies in its entirety to
the trust in county school lands established by Texas Constitution article VII, section 6. Moreover,
to the extent that provisions of the Texas Trust Code are inconsistent with the duties of the
commissioners court established by article VII, section 6 of the Texas Constitution, they may not
apply to the commissioners court as trustees of the county school lands. See TEX. PROP.CODEANN.
5 113 -001 (Vernon 1995) (“A power given to a trustee by this subchapter does not apply to a trust
to the extent that the instrument creating the trust . . . conflicts with or limits the power.“).

         The Llano County Commissioners Court has a nondelegable duty under article VII, section
6 of the Texas Constitution to sell or otherwise dispose of the county school lands granted to it for
educational purposes. It may not delegate its constitutional authority to agents employed under
Property Code section 113.018 nor may it delegate its investment decisions to investment agents
pursuant to section 113.060 of the Property Code. The commissioners court is liable for failure to
carry out duties as trustee of the county school lands, and it may not free itself from liability pursuant
to section 114.032 of the Property Code. We conclude that the Llano County Commissioners Court
may not contract with the Board of Trustees of the Llano ISD to delegate its authority to sell, lease,
or otherwise dispose of the county school lands to the school district.
The Honorable   Jeff Wentworth     - Page 6       (JC-0399)




                                        SUMMARY

                         Pursuant to article VII, section 6 of the Texas Constitution,
                the Llano County Commissioners          Court is trustee of the county
                school lands granted by the state to Llano County for educational
                purposes, and it has a nondelegable duty under the constitution to sell
                or otherwise dispose of the school lands. The commissioners court
                may not delegate its authority to sell, lease, or otherwise dispose of
                the county school lands to the Llano Independent School District.
                Provisions of the Texas Trust Code that are inconsistent with the
                constitutionally-mandated    role of the commissioners court as trustee
                of the county school lands do not apply to the trust in these lands and
                their proceeds.




                                                      N CORNYN
                                               Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
