                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                  April 2 1,2004



Mr. Robert L. Cook                                   Opinion No. GA-01 82
Executive Director
Texas Parks and Wildlife Department                 Re: Whether the Texas Parks and Wildlife Department
4200 Smith School Road                              may convey real property or an interest in real property
Austin. Texas 78744-3291                            the State received under a court-approved final
                                                    judgment “solely for the use and benefit of the         .
                                                    Department, acting in the Public Trust .        only for
                                                    public park purposes, for promoting public beach
                                                    access, and for off-beach parking” (RQ-0131-GA)

Dear Mr. Cook:

        You ask two questions about the authority of the Texas Parks and Wildlife Department (the
“Department”) to convey real property or an interest in real property that the State received under
a court-approved final judgment “solely for the use and benefit of the . Department, acting in the
Public Trust    only for public park purposes, for promoting public beach access, and for off-beach
parking.“’

         The real property at issue is a 5.9998 acre tract on Galveston Island that the Department
obtained in 1987 following a lawsuit to determine the ownership of a remainder interest in a 68.86
acre tract that included the 5.9998 acre tract. See Mitchell Dev. Corp. of the S. W v. State, No.
296,346 (250th Dist. Ct., Travis County, Tex. Jan. 9,1987) (Agreed Final Judgment at 1,8); Request
Letter, supra note 1, at 2. The 68.86 acre tract had been the property of Mace Stewart, who in 1950
bequeathed a life estate in his “Galveston Island Home” to his wife and children and the remainder
in the same to the State:

                 [DIpon the death of my child last surviving, such “surface estate” in
                 the forementioned land shall vest in the State of Texas to be used and
                 maintained as a Fish, Game, and Oyster preserve and for any other
                 public purpose the Legislature of the State of Texas, or other
                 competent State government official, may deem proper for use of


         ‘Mitchell Dev. Corp. of the S. W. v. Stare, No. 296,346 (250th Dist. Ct., Travis County, Tex. Jan. 9, 1987)
(Agreed Final Judgment at 7-9); see Letter from Robert L. Cook, Executive Director, Texas Parks & Wildlife
Department, to Honorable Greg Abbott, Texas Attorney General, at 1-2 (Nov. 14, 2003) (on tile with the Opinion
Committee, also available of http://www.oag.state.tx.us)  [herein&m Request Letter].
Mr. Robert L. Cook - Page 2                     (GA-01 82)




                same, hereby expressing my desire that the State of Texas, should it
                desire to do so, shall call the property the “Mac0 Stewart Public
                Park.”         The devisees above named shall not have any right or
                authority to convey, mortgage, encumber or in any manner dispose of
                the “surface estate” referred to in this subsection    nor to rent or
                lease such surface estate for a longer period, under any one lease or
                agreement, of more than five (5) years.

Request Letter, supro note 1, at 1-2 (quoting Will of Mace Stewart). Mitchell Development
Corporation purchased the life estate on the 68.86 acre tract from Mr. Stewart’s heirs, see id. at 2,
but a dispute arose between Mitchell Development Corporation and the State regarding the
ownership of the remainder interest. See id. Under the Agreed Final Judgment (the “Judgment”)
settling the dispute between the parties, the State received

                title to and possession of the following tract of land solely for the use
                and benefit ofthe Texas Parks and Wildlife Department, acting in the
                Public Trust:

                Being 5.9998 acres, more or less, out of lots 109 and 117 of the
                Section 3 of the Trimble and Lindsey Survey, Galveston Island,
                Galveston County, Texas, . . . .

                        The said 5.9998 acre tract shall be used only for public park
                purposes, for promoting public beach access, and for off-beach
                parking.

Mitchell Dev. Colp. of the S. II?, No. 296,346 (Agreed Final Judgment at 7-9). The Judgment was
signed by the 250th District Court and approved by representatives of the Mitchell Development
Corporation of the Southwest and the State of Texas. See id. at 10.

         You state that an individual who has obtained an option to purchase property adjacent to the
5.9998 acre tract has requested a road easement across it. Request Letter, supra note 1, at 2. Ifthis
individual purchases the adjacent property, he or she will establish a private residence on the land.
See id. “There is currently not an existing road over which the easement is requested.” Id.
Department staff, having reviewed the easement request, “has recommended that [it] be denied
based on the terms ofthejudgment, [the Department’s] resource needs, and [the Department’s] best
interests.” Id.

        Given this fact situation, you ask whether the Department may convey an easement over the
5.9998 acre tract to provide road access to a private residence. See id. at 2. You also ask whether
the Department may convey the tract, or an interest in the tract (such as a conservation easement),
“to another person or entity for a use consistent with the uses stated in the judgment, specifically for
‘public park purposes, for promoting public beach access and for off-beach parking.“’ Id. Your
questions assume that the Judgment effectively supersedes the will, and we adopt that assumption
here.
Mr. Robert L. Cook - Page 3                    (GA-01 82)



        This office typically does not opine on matters that have been resolved “through judicial
action,” where the proper remedy is the appeal of a court order to an appellate court. Tex. Att’y Gen.
Op. No. N-287 (1984) at 2; see Tex. Att’y Gen. Op. No. O-1847 (1940) at 2 (“It is not within the
proper scope of the functions of this department to serve as a quasi appellate tribunal for the
correction ofwhat are conceived to be errors committed by the courts of this state.“). Although the
lawsuit that resulted in the Judgment is long over, we are reluctant to construe the Judgment. C$
Tex. Att’y Gen. Op. No. JM-287 (1984) at 2 (declining to issue an opinion on a court order that is
subject to appellate review and collateral litigation); Tex. Att’y Gen. ORD-560 (1990) at 3 (declining
to determine the availability of certain prison documents that are subject to a court order in an
ongoing lawsuit).

        In this case, however, two statutes, sections 13.008 and 13.009 of the Parks and Wildlife
Code, mitigate the need to construe the Judgment. Section 13.008 of the Parks and Wildlife Code
authorizes the Department to receive donations of land and provides for transfer of title in fee
simple:

                        (a) The department may solicit and receive donations of land
                for public purposes and may refuse donations of land not acceptable
                for public purposes.

                      (b) If title to a site has vested in the department and if
               ownership of the site is no longer in the best interest of the
               department, the department may transfer the title:

                               (1) to another state department or institution
                       requesting the site;

                               (2) to the donor of the land if the donor
                       requests the return of the site;

                              (3) to the United States if it has undertaken the
                       development of the site for public purposes;

                               (4) to the grantor ifthe deed to the department
                       contains a reversion clause . ;

                               (5) to any legally authorized entity if the
                       property is to be used for public purposes.

                        (c) A two-thiidsvote oftbe [Parks and Wildlife Commission]
                is necessary for action taken under this section.

TEX.PARKS&WILD.CODEANN.4 13.008 (Vemon2002); seealso id. 5 11.001(l) (definingthe term
“Commission”). Section 13.009 applies to the Department’s real property generally and authorizes
Mr. Robert L. Cook - Page 4                   (GA-01 82)




the Parks and Wildlife Commission’s executive director, with the Commission’s approval, to sell
real property or an interest in real property “if ownership of the real property is no longer in the”
Department’s best interest. Id. 5 13.009(a).

        Chapter 34 of the Natural Resources Code, which you cite, see Request Letter, supra note
1,‘at 1, applies only to the lease of, or to granting an easement in, Department-owned land “for
the purpose ofprospecting or exploring for and mining, producing, storing, caring for, transporting,
preserving, selling, and disposing of’ the property’s minerals. See TEX. NAT. RES. CODEANN.
$5 34.002(a), .05 1, ,064 (Vernon 2001). Because you do not ask about granting mineral interests in
the property, chapter 34 does not apply. See Request Letter, supra note 1, at 1.

         We conclude first that the Department may not convey an easement over the property to an
adjoining property owner. Section 13.008 applies only to the transfer of title to donated property.
See TEX.PARKS&WILD. CODEANN. 9 13.008(b) (V emon 2002). The sale of an easement is not a
transfer oftitle, but of an interest in the property. Consequently, section 13.009, which permits the
executive director to sell an interest in real property if owning the property is no longer in the
Department’s best interest, controls the situation. See id. § 13.009(a). You have not asserted that
owning the easement interest is no longer in the Department’s best interests; indeed, you indicate
that the Department’s staff has recommended that the easement request be denied based on the
Department’s best interests. Request Letter,supra note 1, at 2. Assuming, therefore, that conveying
the easement would not be in the Department’s best interest, the Department has no statutory
authority to convey it. Even if the Department determined that the conveyance would be in its best
interest, a court may find that the conveyance would not comply with the terms of the Judgment,
which restricts the land’s use to “public park purposes . . . promoting public beach access, and . .
for off-beach parking.” Mitchell Dev. Corp. of the S. K, No. 296,346 (Agreed Final Judgment at 9).

         We conclude second that the Department may convey the tract under section 13.008 or an
interest in the tract under section 13.009 “to another person or entity for a use consistent with the
uses stated in” the Judgment, but only if the Department has determined that owning the site or the
interest is no longer in the Department’s best interest. Request Letter, supra note 1, at 2; see TEX.
PARKS& WILD. CODEANN. $4 13.008(b), .009(a) (V emon 2002). Unless the Department has so
concluded, it may not transfer the property under section 13.008 to a “legally authorized entity” to
use for public purposes. See TEX. PARKS& WILD. CODEANN. 5 13.008(b)(5) (Vernon 2002).
Likewise, unless the Department has so concluded, it may not sell the property or an interest in the
property under section 13.009. See id. 5 13.009(a).
Mr. RobertL. Cook - Page 5                   (GA-0182)




                                      SUMMARY

                       Assuming that the relevant Agreed Final Judgment would
              permit it, the Parks and Wildlife Department may not convey an
              easement in donated real property to an adjoining property owner
              unless the Department has concluded that owning the easement
              interest is not in the Department’s best interest, under section 13.009
              of the Parks and Wildlife Code. Similarly, the Department may not
              convey the donated real property in its entirety under section 13.008
              or an easement interest in donated real property under section 13.009
              to a person or entity for a use consistent with the Agreed Final
              Judgment unless the Department first determines that its ownership
              of the property or interest is no longer in its best interest.

                                             very truly yours,




                                                       General of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
