                                December    13,   1974


The Honorable   Clayton T. Garrison                 Opinion No.   H-   472
Executive Director
Texas Parks and Wildlife Department                 Re: Authority of Parks and
Austin,  Texas  78701                               Wildlife Department to grant
                                                    easements   over park pro-
                                                    perty.

Dear Mr.   Garrison:

       Your letter     requesting   our opinion   states:

                     At the present time, the Department has several
                pending requests for easements       to cross property
                under the jurisdiction   of this Department.      One of
                these requests involves a waterline while another
                request involves a road right-of-way       easement.    In
                each case, the request for the easement has been
                submitted by a private individual and the easement,
                if granted by the Commission,      would be for the sole
                benefit of the individual involved.     In other words,
                no benefit would result to the state by the granting
                of either of these easements     with the exception of
                any monetary consideration      received for the ease-
                ment itself.    Assuming   that the individual request-
                ing the easement has no pre-existing       legal title or
                prescriptive   right and cannot establish a way of
                necessity,   please answer the following question:

                    Does the Parks and Wildlife Department have
                authority to grant an easement to a private individual
                over and across property under the jurisdiction     of the
                Department when the easement,       if granted, would
                accure to the solve benefit of the individual requesting
                the easement?




                                       pn 2153
The Honorable    Clayton   T.   Garrison      page 2   (H-472)




        By a supplemental       request    you have also   asked:

                    Does the Parks and Wildlife Commission     have
                authority to issue easements  directly or without
                approval of the State Board for Lease established
                by Article  5382d, Vernon’s  Texas Civil Statutes?

         The Parks and Wildlife Department,       under the policy direction
of the Parks and Wildlife Commission       (Article 978f-3a,   Vernon’s   Texas
Penal Auxiliary   Laws),   like every other state department,     agency,   or
subdivision  derives its power from the constitution and laws of the
State of Texas.     Canales v. Laughlin,    214 S. W. 2d 451, 453 (Tex. Sup.
1948); Anderson v. Wood,      152 S. W. 2d 1084 (Tex. Sup. 1941); Attorney
General Opinions H-445 (1974); H-392 (1974); H-374 (1974); H-51 (1973);
and H-45 (1973).

                    As in the case of other administrative   agencies
                the Commission    has only those powers granted by
                statute together with hose necessarily   implied
                from the authority conferred or duties imposed . . .

       Nueces County Water Control and Improvement       District v. Texas
Water Rights Commission,    481 S. W. 2d 924 at 929 (Tex. Civ. App. --Austin
1972, writ ref’d n. r. e.).

         This rule is particularly    applicable to attempts to dispose of
state-owned   real property:    CapIes v. Col,e, IO2 S. W. 2d I73 (Tex. Sup.
1937); Fort Worth Cavalry Club v. Sheppard,         83 S. W. 2d 660 (Tex. Sup.
1935); Conley v. Daughters,of      the Republic,  156 S. W. 197 (Tex. Sup.
1913).

         The granting of an easement in land is the granting of an interest
in land and requires the same authorization.     Settegast v. Foley Bros.  Dry
Goods Co.,    270 S. W. 1014 (Tex. Sup. 1925); Burgess v. City and County
of Dallas Levee Improvement      District, 155 S. W. 2d 402 (Tex. Civ. App.
--Eastland   1941, writ ref’d w. o. m.).




                                          pe 2154
The Honorable   Clayton   T.   Garrison        page 3   (H-472)




         When we examine the Constitution and laws of the State for
authority in the Parks & Wildlife Department to grant easements         across
property within its jurisdiction    to private individuals for private purposes
we find that contained in section 13a of article 5382d, V. T. C. S.      The
statute,  generally,   created Boards for lease of lands owned by any
departments,    agency or board of the state.     It is apparent that the
original statute,was    designed to govern the granting of oil and gas leases
on public lands.     For example,    section 7 provides that the lease shal.1
be for a primary term not to exceed five years “and as long thereafter
as oil, gas or other minerals     covered by such lease is produced . . . .I’

       However,  in 1955 the Legislature added section 13a for the
avowed purpose of allaying confusion existing as to the authority to
grant easements on state lands (Acts 1955, 54th Leg.,   ch. 239, p. 670):

                     The appropriate       board for lease is authorized to
                grant easements       on the land covered by this Act for
                irrigation   canals,    laterals,    flumes    and ditches,
                telephone,     telegraph and electric power lines,          and
                pipelines for the gathering or transportation            of oil,
                gas, water and other fluids or substances,             together
                with such devices,       equipment and appurtenances          as
                may be necessary.         Such easements       may be granted
                on such terms and conditions as the board for lease
                may deem to the best interest of the State of Texas.
                Provided,     that the provisions       of this Section 13a shall
                not apply to lands owned by the State of Texas as a
                part of the penitentiary        system nor shall this Act be
                construed as repealing House Bill No. 330, Acts of
                the 48th Legislature        of the State of Texas,     Regular
                Session,     1943, Chapter 177, page 281, being Article
                6203d,    Vernon’s    Texas Civil Statutes,       or any amend-
                ments thereto.

        In our opinion, therefore,  the Department   does have the authority
to grant an easement for a waterline provided it acquires    the approval of
the Board of Leases created by article 5382d, V. T. C.S.      However,   we
are unable to find any authority in this statute for the granting of an




                                          p.   2155
The Honorable   Clayton     T.   Garrison    page 4     (H-472)




easement to a private person to construct a roadway unless it is an
appurtenance   necessary  to the types of projects listed in section 13a.
If an easement can be granted under article 5382d, adequate considera-
tion must be present either in money or other benefit to the State.
Otherwise it may be construed as a grant to a private individual in
violation of sections 50, 51 or 52 of article 3 of the Texas Constitution.

         We do note that under strict statutory guidelines your Department
does have the authority to exchange real property or interests   in real
property for other land or interest therein.    Vernon’s  Texas Penal
Auxiliary  Laws, art. 978f-4a.

                                     SUMMARY

                    The Parks and Wildlife Department     may grant
                an easement for a waterline to a private person for
                adequate consideration   under the terms of article
                5382d, V. T. C. S.   That statute normally does not
                authorize    an easement      to be granted    for a road.

                                                      Very    truly your 8,




APPROVED:




Opinion   Committee


lg




                                       p.   2156
