Hon. Bascom Giles, Commissioner
General Land Office
Austin, Texas
                            Opinion No. V-7g2
                            Re:   Authority of the School Land
                                  Board to sell or lease a 110
                                  acre tract of land acquired
                                  by the State in the purchase
                                  of a site for Prairie View
                                  Normal and Industrial College
,DearSir:
          You have asked us whether a certain 110 a&e
tract of land in Waller County vnow belongs to the Rub-
lit Free School Fund under the Drovisionsof Article
5421~ of Vernon's Civil Statutes D e *,and does the
School Land Board have authority to either lease or
sell said land," We answer both questions in the neg-
ative.
          The tract in question was conveyed in 1877
by deed to R, B, Hubbard, Governor of the State of
Texas and his successors in office, when the site of
Prairie View Normal and Industrial College was pur-
chased, in considerationof the purchase of certain
other land, The conveyancewas *to and for any and
all uses and purposes to which the same may be appro-
priated destinated or in any manner utilized by the
grantee herein mentioned, o 0 .n
            The land was described in the deed as follows:
            ”
                0One hundred and ten (110) other ac-
                    a   0

     res of land off of a three hundred and twenty
     (320) acre survey patented to the heirs of Sol-
     omon Smith No, 726, Vol, 11 the said one hun-
     dred and ten (110) acres lying on the south side
     of said three hundred and twenty (320) and ad-
     joining the said Law Survey and is described by
Hon. Dascom Giles, Page 2   (V-782)



    metes and bounds in Decree of Tartition in Dis-
    trict Court of Austin County in Matters Pro-
    bate between Helen M. Kirby and the Estate of
    Jared E. Kirby, dec'd., to which reference is
    here made for more particular description."
          You have not furnished us with copies of the
instrumentson file in your office relating to the lo-
cation, survey and patenting of the Solomon Smith Sur-
vey in tiallerCounty. Volume 1 of "Abstractof All
Original Texas Land Titles Comprising Grants and Loca-
tions to August 31 1941," prepared by you shows that
  tent No. 726, Vol. 11, for 320 acres of land in Wal-
Fer County was issued on November 17, 1854, to the H&s
of Solomon Smith. Since you raise no question,we take
it that you deem the Solomon Smith Survey and patent to
be valid and the 110 acre tract to be included therein.
          The Act to establishan Agriculturaland Me-
chanical College of Texas for the benefit of the col-
ored youths was approved August 14 1876, It provided'
for the establishmentof such a college; authorizedthe
Governor to appoint a Commissionto select a site, con-
taining not less than five hundred acres of land suit-
able for agriculturalpurposes; authorizedthis commis-
sion to receive donations of land and money to aid in
the erection and maintenance of the college; and placed
the college,,when located and established,under the
supervisionand control of the Board of Agricultural
and Mechanical College. This Act appropriatedthe sum
of twenty thousand dollars, or so much as deemed neces-
sary to locate, erect furnish and operate the college.
(See Acts 1876, p$ 136,)
          The deed in 1877 ~,toGovernor Hubbard,,previ-
ously referred to, conveyed 800 acres in consideration
of the sum of $12,000 in treasury warrants; and "in
considerationof the sale of said eight hundred (800')
acres," the grantors did "give, grant and donate" to
the Governorand his successors 588 acres adjoining
the 800 acres and for the same purpose, the 110 acre
tract now in &aestion. It is clear from the deed and
from the Act that the 110 acre tract was acquired by
the State for the purpose of establishingand locating
the contemplatedcollege. Though not expressly stated
in the deed, title so acquired isin the State of Tex-
as. Walsh v. University of Texas, 169 S,N, 2d 993
('Xv, App., 1942, writ ref,)
Hon. Bascom Giles, Page 3   (V-7821


          According to your letter, this tract has nev-
er been used by the State. In fact, it is recited in
H,C.R. No. 4l of the 49th Legislature, 1945, that the
tract has been within the enclosure of a private citi-
aen and in constant use, by him, we presume, for more
than twenty-five years, It is not stated whether such
possession is adverse, under claim of title, or in rec-
ognition of title in the State, We have been furnished
no abstract from which we could determine whether or
not the State acquired good title under its deed. Such
title, if acquired could not be lost by adverse pos-
session, Art. 551+, V. C. S,
          The college for which this land was acquired
is under the control and supervision of the board of
directors of the Agriculturaland Mechanical College,
with the same powers and duties as conferredby law
for the government of the Agriculturaland Mechanical
College. Art. 2638, R.C.S.; Arta 2643b, Sec,2, V.C.S,
Our opinion V-320, dated June 30, 1947, held that nei-
ther the Local Board of Managers of North Texas Agri-
cultural College, nor the Board of Directors of Texas
Agriculturaland Mechanical College was authorizedto
convey an excess tract of land except through act of
the Legislature. Our opinion O-2417 dated June 24,
1940, held that neither such Board 0) Directors,the
Land Commissioner,the Board of Coutrol, nor the At-
torney General had statutory authority to execute a
conveyanceof certain lands theretofore acquired by
the Agriculturaland Mechanical College. We believe
these opinions to be correct and therefore concludes
that there is no statutoryauthority for the sale of
the 110 acre tract of land in Waller County which was
acquired for the State under the authority of the Act
to establish an Agriculturaland Mechanical College of
Texas for the benefit of colored youths, The Legisla-
ture seems to have been of the same opinion, since in
1945 it attempted by resolution to authorize the Com-
missioner of the General Land Office to sell this land.
H, C, 8, No, 41, 49th Leg., 1945.
          There is no State official or board vested
with general sales power over state-ownedlands. The
Commissionerof the General Land Office is a ;;;stiF-
tional officer of the Executive Department.
Sec. 1, Constitutionof Texas. He is required tAnpek
form such duties as are or may be required of him by
Hon. Bascom Giles, Page 4   (V-782 1


law." Id. sec. 23. He has no .authorityexcept that
which has been conferredupon him by law. 34 Tex.,
Jur. 31.
          The General Land Office itself is not a
sales office. It is the office "&here ali land ti-
tles which have emanated or Maryhereafter emanate
from the State shall be registered. . . ." Art. XIV,
Sec. 1, Const. of Texas; 34 Tex, Jur.28, 29.
          The power and duty to sell public school
land is in the Legislature, Art. VII Sec. 4, Const,
of Tex@. As stated in Schneiderv. tipscomb Co,
N. F:L. Ass'n:
          "T&e Commissionerdoes not make the sale.
     It is aEcomplishedby the offer made by the
     State in the statute which prescribes the
     terms and conditions of the sale, and by the
     acceptance of the offer by the intending pur-
     chaser in his taking the several steps for
     purchase as set out in the statute." (202 S.W,
     2d 832 at 836, Tex. Sup., 1947.)
          The Legislaturemay impose upon the heads
of the Executive Departmentduties regarding such
lands. Arnold v. Stat.e,71 Tex.'239, 9 S.W. 120
(1888). Between the abolition of the State.Land
Board in 1887,and the creation of the School Land
Board in 1939, the duty to pass upon applications
to purchase was placed upon the Commissioner of the
General Land Office. As stated by Mr, J. H. Walker
in his 1934-1936Report:
          "The constitutionalfunctionsof the of-.
     fice of Land Commissionerare restrictedto
     the registrationof titles and activities in-
     cident thereto. The basic enactmentwas in
     line with prior constitutionsand legislation
     which imposed upon the commissionersonly min-
     isterial duties. The selling and granting of
     land were placed,withother authorities. NOW
     the Commissioneris at the head of a great bus-
     iness institution." (p. 4.1
          The duties of the School Land Board are pre-
scribed by Articles 5421~~3, 5421c-4 and 5421c-5,V.C.S,
Hon. Bascom Giles, Page 5    (V-782)


Like the Land Commissioner,the other members of the
Board, the Governorand Attorney General are execu-
tive officers performing "such other duties as may be
required by law." See Art. IV Sec. 22, Const. of
Texas. The Act creating this board requires, in sub-
stance, that it advertise school lands for lease or
sale and entertain and pass on bids therefor. H.B. 9,
Acts 1939, pe 465. It has no powers not related to
these functions or not otherwise conferredby law.
          Your letter refers to Article 5421c, V.C.S.
Section 1 thereof reads as follows:
          "All lands heretofore set apart to the
     public free school funds under the constitu-
     tion and laws of Texas and all the unappro-
     priated and unsold public domain remaining in
     this State of whatever character,except riv-
     er beds, and channels, and islands, lakes and
     bays and other areas within tide water limits,
     are subject to control and sale under the pro-
     visions of this Act."
          It is, perhaps, this provision which has
raised the question of the authority of the School
Laz& Bprg t; sell the 'WailerCounty land. Article
             Ds sets apart and grants to the permanent
scho;l &n;:
          n     0 all lands heretofore set apart
     under ihe"constitutionand laws of Texas, and
     all of the unappropriatedpublic domain re-
     maining in the State of whatever character,
     and wheresoeverlocated, includingany lands
     hereafter recovered by the State except that
     included in lakes, bays and islands along the
     Gulf of Mexico within tidewater limits.*
          We note that the wording of Article 5416 and
that of Section 1 of Article 5421~ is very similar. It
would be reasonable therefore to construeArticle 5421~
as placing on the market for sale only that part of the
public domain belonging to the school fund.
          Indeed, this was the view taken in 1941 by
Hon. George W. Barcus, then Assistant Attorney General
and now a member of your department. In his brief in
Hon. Bascom Giles, Page 6    (V-782)


Ra v. State Mr. Barcus wrote as follows regarding the
--=+i--’
aut ority under Article 5421~ to sell an
                                       alleged unsup-
veyed area of public domain:
         "Upon examiningthe caption of the Act,
    we find the definite statement that the Act
    is one 'to regulate the sale and lease of
    lands set apart for the benefit of the public
    free school fund' and to provide for the dis-
    position and sale of minerals in certain coast-
    61 areas and '811 unsold public free school
    lands, both surveyed and unsurveyed'    d
    ser     part in the caption, we find'tahzt%e
    Act is one 'providinggenerally the method and
    means for the sale of public school lands and
    the lease and development of the public school
    lands and coastal areas'.* (Emphasisin orig-
    inal.)
          "At no place in the caption do we find any
     mention nor any language used which indicates
     that any lands other than public free school
     land is included within the sale, provisions
     and regulations of the Act, or that any area
     other than public free schoollandand certain
     coastal areas are includedwithin the leasing
     provision. o .of the Act, with the exception
     of,a special class of e Q D land which is spe-
     cially treated in Section 5.
          "It is true that if Section 1 is consid-
     ered alone and without relation to the caption
     of the Act or to remaining sections the word-
     ing of such isolated section is broad enough
     to include any land in Texas except river beds
     and certain coastal areas.
          "Appellee in the case at bar contends that
     when all of the provisions of Article 5421~ are
     read as a comprehensivewhole and in connection
     with the caption of said Act Section 6 of the
     &zt must be construed to authoriae and dea$hFth
     the sale of unsurveyed school land ,only.
     land described in applicantrsapplicationnever
     having been appropriatedto the school fund, it
     follows that an intended sale thereof under Ar-
     ticle 5421~ is unauthorizedby law. o a 0n (Ap-
     pelleets brief, Ray v* State, 153 S.WO 2d 660,
Hon. Bascom Giles, Page 7    (V-782)



     No. 8992 in Austin Court of Civil Appeals,
     1941, error ref. W.M.)
          This constructionis supported by the terms
of the Act. The "vacant and unsurveyed land" subject
to sale or lease under Section 6 of Article 5421~ is
now specificallydefined as "an area of unsurveyed
school land. . . ." The surveyed land subject to sale
is defined as:
          ‘1 ,   all tracts or parts of tracts
                 l   .

     heretofore surveyed either on the ground or
     by protraction,and set apart for the public
     school funds and which is unsold, and for
     which field notes are on file in the General
     Land Office or which may be delineated on the
     maps of said office as such. . . ."
          The School Land Board Act of 1939 likewise
;;pfTrt;h;hisconstruction. (H.B. 9, Acts 1939, p.
          s act sets apart the mineral estate in is-
lands and certain submergedareas to the School Fund
and provides (Sec. 5) that:
          "All lands set apart for the permanent
     free school fund and the several asylum funds
     by the Constitutionand the laws of this
     State and the mineral estate in river beds
     and channels and the mineral estate in all
     area* within tidewater limits. . . are subject
     to control and disposition in accordancewith
     the provisionsof this section and other per-
     tinent provisions of this Act and other laws
     not in conflict herewith. . D aIt (Art. 5421c-3,
     Sec. 1, V.C.S.)
          Chapter 498, Acts 1941, makes the same pro-
vision, though in slightly different words.
          Under the previoue constructionby this of-
fice as expressed in the aforementionedbrief, the
crucial inquiry is whether the 110 acre tract patented
in 1854 as part of the Solomon Smith survey and ac-
 uired by the State in the purchase of the site for
  airie View in 1877, has ever been set apart for the
ilr
public school fund. Under a broad constructionof
Article 5421c, the inquiry is whether this tract is
Qnappropriated . . . public domain."
Hon. Bascom Giles, Page 8   (v-782)



         The lands set apart to the school fund under
the Constitutionare the following:
          "All funds, lands and other property here-
     tofore set apart and appropriatedfor the sup-
     port of public schools; all the alternate sec-
     tions of land reserved by the State out of
     grants heretofore made or that may hereafterbe
     made to railroads or other corporationsof any
     nature whatsoever;one-half of the public do-
     main of the State; and all sums of money that
     may come to the State from the sale of any por-
     tion of the same, shall constitutea perpetual
     school fund.". Article ~VII,Sec. 2, Constitution
     of 1876. see Hogue v. Baker, 92 Tex. 58, 45 S.W.
     1004 (ld98,.

          It is ourconclusion that the above provision
does not affect the status of a tract of patented land
;;q$r;d for a legislativepurpose by the State in 1877
          The prior laws setting apart funds and lands
to the &chool fund have been reviewed. None concern
patented land reacquired by deed. See Constitutionof
1845, Article X, Sec. 2; Act of Jan. 31, 1854, 3 Cam.
Laws 1461. Act of August 29, 1856 4 Gam. Laws 525; Act
of Feb. 11, 1858, 4 Gain.Laws 1061; Constitutionof
1866, Article X, Sec. 3; Constitutionof 1869, Article
I&sse;f76; and Act of March 18, 18'73$ 3 Sayles Early
    9    0
          The Solomon Smith Survey was not an "alternate
section," Nor was this patented survey "public domain"
in 1876. See Day Land and Cattle Co. v. State, 68 Tex.
526 at ,547,548 4 S.W. 865 (18871,; Kuechler v. Wright,
40 Tex. 600 at A46 ~~(
                    1874); Decourt v. Sproul, 66 Tex,
368 (1886); Mills v. Needham, 67 S.W. 1097. (Civ. App.
1902, err. ref.) Lands reacquiredby the State after
1876 did not automaticallypass to ,the school fund.
State v. Powell, 132 S.W, 746 (Civ. App., 1,911).
          At this point our two lines of in uiry merge.
The SettlementAct of 1900 (Acts 1900, 1st 2 *S., p. 29)
set apart and granted to the school fund:
          "      all of the unappropriatedpublic
     domain'rimiiningin the State of Texas of
     whatever character and wheresoeverlocated.
     0 e 0"
Hon. Bascom Giles, Page 9    (V-782 I



          "Unappropriatedpublic domain" within the
meaning of this Act has been defined as ". . . land
which in fact is not included within the bounds of any
                Weatherly v. Jackson, 123 Tex. 213,
;E?:    id.23; at 265 (1934) The Act also applied to
certain surveyed lands which'had lapsed into an un-
appropriated status for failure of an individualto
perfect his claim, Barber v. Giles, 208 S. W. 2d
553 at 554 (Tex. Sup., 1948).
          Areas reserved for the use of the govern-
ment or the people, however, were "aocropriated"and
therefore did not pass to the school fund. State v.
Bradford, 121 Tex. 515 50 S.d. 2d 1065 (1932); Ander-
son v. Polk, 117 Tex. 213 297 S.W. 219 (1927); see
Taylor v. Hoya, 29 S.W. 340 (Civ. App., 1895).
          This is the necessary result of the rule
stated in Roberts v. Terrell, 101 Tex. 577, 110 S.X~.
733 at 735 (1908) that:
          "Having once specificallyreserved or
     set apart or withdrawn certain lands . . .
     it is not to be supposed that by subsequent
     legislationthe Legislature intendedto au-
     thorize the aporopriationof them unless such
     intentionwas clearly expressed and it has
     therefore been held ina great number of cases
     that general laws authorizing locations or
     entries upon and surveys of public lands, or
     public domain, or vacant lands, do not apply
     to lands that have previously been so appro-
     priated, reserved, set aside, or withdrawn."
 See State v. Delesdenier,7 Tex. 76 at 107 (1851);.Kue-
 chler v. Wright, 40 Tex. 600 at 646 (1874); Gammage v,
 Powell, 61 Tex. 629 (1884); Day Land and Cattle Co. v.
 State, 68 Tex. 526 at 547 4 S.uJ.865 (1887); Landry v.
 Robieon, 110 Tex. 295 214 S.W. 819 at 820 (1920). Do-
 lan v. Walker 121 Tel;.361 49 S.uJ.2d 695 at 698,
-State v. Bradhord supra, ai 1069; Lorino v. Crawf&d
 Packing Co., 142 '!ex.51, 175 S.W. 2d 410 at 413 (1943);".
 Wilcox v. Jackson 13 Peters 498 (U. S. 1839); Newhall
 V. Sanger 92 U. 6. 761 23 L. Ed, 769 [1875)*Opinion
 of 0. W. terrell AttorAey General of Republii to Pres-
 ident, January 25, 1842 (Land Office files); Opinion of
 Attorney General to Land Commissioner,dated May 19,
 1874 (Land Office files); Opinions of Attorney General,
Hon. Bascom Giles, Page 10   (V-782)


Vol, 11 p. 667 (1886); Vol. 12 p. 342 (1888);Vol.
    g. LO (1891)* Vol. 14, p, 359 (1892); Vol. 24,
it'8 (1911). Voi 39 p 63 (1914).Opinion No
2783 dated Augu& 21: 1429 to Hon.'J. H. Walked;
Opinion No. V-741, dated Dec. 16, 1948, to Hon.
Bascom Giles.
          The "ar~propriation~of land is not depen-
dent on possession and use. Weatherly v. Jackson,
supra. Non-user of the Solomon Smith 110 acre tract
would therefore not render it subject to sale as uni
appropriatedpublic domain. In the Ray case, supra,
the appellants argued that an unused, filled-in por-
tion of the Trinity River bed was unappropriated
public domain and subject to sale under Article 5421c,
saying that:
         n      regardless of whether the land
    is par; if'the public school,fund still the
    sale was valid under the Act of 1431, Chap,
    271, p. 452, and that statute provides for
    the sale of all unappropriatedand~unsold
     ublic d~omainremaining in the State. . . .*
    PAppellants'brief, p. 10, Ray v. State, 153'
    S.W. 2d 660).
          The Court held invalid the Land Commissioners'
award of the area, saying:
         *We are of the view that no part of the
    land involved is unappropriatedpublic domain
    belonging to the permanent school fund or un-
    surveyed school land and subject as such to
    sale because all of the land is a part of the
    Trinity river bed, a navigable stream, the ti-
    tle to which is in the State for the benefit of
    the public at large. . . .*
         "If, however, we are mistaken in the view
    that the State has not abandoned the 32 acre
    tract as a part of the Trinitfr River bed and
    ,itis abandoned river bed, still it is not sub-
    ject to sale either aa unappropriatedpublic
    domain .oras unsurveyed school land in the ab-
    s.a~s~e~08 legislationauthorising such sale.
    . . .n (153 S.W. 26 at 662).
.




    Hon. Bascom Giles, Page 11   (V-782)



              Our conclusion has other support. The phrase
    Vacant" or "unappropriateddomainI1has an ancient mean-
    ing in this jurisdiction. Under Spanish law, vacant
    lands meant the unappropriatedroyal domain. The %at-
    Ural" or Vacant" lands were the King's special prerog-
    ative, to be sold or granted as a reward of merit or as
    a matter of pure favor. Lands held by the government or
    its subdivisionsfor public purposes were, on the other
    hand, reserved from sale. Sheldon v. Milmo, PO Tex. 1,
    36 S. W. 413, 415 (1886).

              The phrase "vacant domain" was used in the
    first general colonizationlaw that of March 24, 1825.
    Saylest Early Laws, Art. 40. Qubsequent laws relating
    to the dispositionof the.public domain spoke of vacant
    unappropriatedlands. See Act of Dec. 2, 1850, Sayles'
    Early Laws, Arts. 2164, 2374; Act. of Dec. 21 1853, Say-
    lest Early Laws, Art. 2577; Act of Feb. 4, 1844, Sayles'
    Early Laws, Art. 2381; Act of Feb. 13; 1854, Sayles'
    Early Laws, Art. 2427; Act of Feb. 11 1858 Sayles'
    Early Laws, Art. 2757. Acts of Feb. lb 1858 Jan. 1
    1862, and March 4, 1863, Saylesl Early'Laws,'Arts.2'?57,
    2977, 3055; Acts of Dec. 15, 1863 and Nov. 7, 1864
    Sayles' Early Laws, Arts. 3122, 3182; Act of March io;
    1875, Sp. Laws 14th Leg. p* 69; Act of Aug. 16, 1876,
    Saylest early hws   Art. 4242; Act. of Feb. 20, 1879;
    and Act of July 14' 1879 amended by Act of March 11
    1881, R. S. 1879, Art. 3b76a. The Articles of Annex:-
    tion spoke of ". . . all the vacant and unappropriated
    lands. . ." See Art. 5415, R. C. S., 1925. The Act of
    January 22, 1845, describes vacant public domain as land
    n* . . which has been neither filed upon, entered, lo-
    cated nor surveyed by virtue of some genuine, legal and
    valid certificate,or other evidence of title to land
    0 . ." 2 Gam. bWS 1072.
              The tabulations prepared for the Settlement Act
    show that previouslytitled:Zandwas not included in the
    wunappropriatedpublic domain." See Report of Charles
    Rogan, Land Commissioner,dated.November1, 1899; Message
    of the Governor S. J. 1st C.S. 26th Leg., 1900, p. 14.
    .Whilesuch tabulations are not determinativeas'to a par-
    ticular tract (Eyl. v. Stat,e,84 S.ti.607 (Civ. App.,
    1904)), they indicate in general the lands intended,to
    pass to the school fund. State v. Bryan, 210 S.W. 2d
    455 at 457 (Civ. App., 1948, error ref.,wEG;h;A); &is
    the legislative intent which controls.
    ker, 133 Tex. 255, 128 S.W. 2d 1138 (1939).     l     -,
                                                             .




Hon. Bascom Giles - Page 12      (V-782)


           You are, therefore, respectfullyadvised that
the 110 acre tract of land out of the Solomon Smith sur-
w   in Wailer County, acquired by the State in 1877 as
Dart of the site of Prairie Vie.w,does not now belong to
the Public Free School Fund; and that, under present laws,
the School Land Board does not have,authorityto.sell or
lease said land.


                        SUMMARY

                A tract of patented land acquired
           by the State in 1877 in the purchase of
           a college site is not subject to sale or
           lease by the School Land Board und;zr&",i-
           cle 5421~ or other present laws.
           tract, though not now used by the State,
           remains appropriatedto the purpose for
           which it was acquired pursuant to legis-
           lative authority and therefore is not un-
           appropriatedpublic domain and has never
           ps;edSto the school fund. Article 5421c,
                   * Article 5416, R. C. S.; State v.
           Biadhori' 121 Tex. 515 50 S.W. 2d 1065.
           Roberts :. Terre11 1Oi Tex. 577 110 S:W.
           733; Ray v. State,'153 S. W. 2d 660; At-
           torney General's Opinion V-741.
                                  Yours very truly,
                              ATTORNEY GENERAL OF TJ&AS




                                        Assistant




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