Hr. Raymond W. Vowel1              Opinion No. ~~-468
Acting Executive Director
Board for Texas State Hospitals   Re: Authority of and proce-
 and Special Schools                  dure for the leasing of
Austin, Texas                         lands of the Alabama-
                                      Couehatta Indian Reser-
                                      vation in Polk County,
                                      Texas for oil and gas
Dear Mr. Vowellr                      development.
          You have requested the opinion of the Attorney Gen-
eral regarding the authority of the Board for Texas State Hos-
pitals and Special Schools, in co-operationwith the Alabama-
Coushatta Indian Tribe, to lease the reservation lands~for
011 and gas purposes. In answering this and related questions
It Is necessary to review certain legislativeand congressional
enactments. For a more exhaustive historical summation, see
our Opinion No. WW-43 dated March 5, 1957.

          By an Act dated February 3, 1854 (4 Qammel 68) the
State of Texas provided funds and authority for the purchase
of 1280 acres of land for the Alabama Indians to be used by
that tribe as a home. The Commissionersappointed under this
Act did arrange for the purchase and conveyance to the tribe
of Alabama Indians of several tracts of land, and the deeds
from the several grantors speclflcallymake reference to the
Act of 1854. Thus to accurately determine the nature of the
estate conveyed to the Indians, we must construe the deed and
the Act together.
         Section 3 of the 1854 Act provides in part as follows:
         II     and that said Indians shall not alien,
    lease,'&,    let, give or otherwise dispose of said
    land or any part thereof to any person whatsoever.
    And should the State of Texas hereafter provide a
    home for said tribe of Indians, and settle them
    thereon, then the said twelve hundred and eighty
    acres of land, with Its im rovements, shall become
    the property of the State.R
          From the quoted section of the Act, it is Immediately
apparent that the Indians received less than a fee simple estate
In the lands. There are specific restrictionsupon the Indians
I@.~Raymond W. Vowell, page 2.(W-468)

which bar any conveyanceor lease by them of their estate or
any part thereof,and further their possession and enjoyiaent
of the lands are dependent upon the Legislatureas shown In
the quoted language.
          It Is well settled In Texas that an 011 and gas
lease is a conveyance of real property and operates to trans-
fer the 011 and gas In place. 31A,Tex,Jur.188, Section 117
and authorities cited therein. By the restriction in Section
3 of the 1854 Act against any transfer by the Indians of their
lands or any part thereof, an 011 and gas lease by the Indians
would be prohibited..
                    ~~Ttie~~~re'veMVma~
                                      estate is in the Stste
of Texas and should the Legislature see fit to provde a law-
ful procedure for leasing these lands, It could do so.

          In 1928 the Indian reservationwas enlarged when an
adjacent tract of 3071 acres was purahased by the United States
"In trust for the Alabama and Coushatta Indians of Texas". .In
1954, b Public Law 627 (68 Stat. 768, 25 U.S.C.A., Secs.'721
et seq.9 Congress terminated federal supervisionover the tribe
and authorized the Seoretary of the Interior to convey the~3071
acres to the State of Texas "in trustyPotithe benefit of the
Indians of the Alabama and Coushatta tribes of Texas, subject
to such conditions regardingmanagement and use a8 the State of
Texas may prescribe and the disposition of such lands shall be
subject to approval of a majority of the adult members of then
Alabama and Couehatta tribes of Texas’!.
          In antlhipatlon of the adoption of Public Law 627,
the Legislatureadopted Senate Conourrent Resolution No. 31,
(Acts 1953, R.S., page 1078) authorlilng the Qovernor to accept
on behalf of the State the transfer of the trust, conditioned
on consent of the tribe by appropriate resolution,and providing
further:
          "That the Governor Is authorized to designate
     the State agency In which such.trustresponslblll-
     ties shall rest; and the agenoy 80 designated shall
     have authority to promulgate rules and regulations
     for the administrationof the trust and the protec-
     tion of the beneficial Interests of the In+lans in
     such lands and other assets."
§y letter addressed to your Board, Governor Allan Shivers desig-
nated said Board as the agency to administer the trust.
          Your first question Is as to whether your Board In co-
operationwith the Indian tribe may offer an oil and gas lease
on said lands. We do not construe the Concurrent Resolution
aforesaid as granting any such power. Even If tiewere mistaken
)Ir.Raymond W. Vowell, page 3 (~~-468)

In this Interpretation,however, it Is well settled that sub-
stantive rights of this character may be created only by stat-
ute and not by resolution.
          In Caples v:.Cole, 129 Tex. 370, 102 S.W.2d 173; re-
hearing den. 129 Tex. 370, 104 S.W.2d 3, the Court said:
         "The Constitutionhas clearly prescribed the
    method to be pursued In the enactment of laws and
    their amendments. . . . The Legislature prescribes
    the method by which a purchaser may acquire lands
    belonging to the State: All sales of public lands
    must be authorized.bylaw."
          It was held in such case that a resolution was insuf-
ficient to grant such authority. For similar holdings, see
Terre11 Wells Swimming Pool v. Rodriguez, 182 S.W.2d 824, error
re .; Humble Oil & Refining Co. v. State, 104 S.W.2d 174, error
ref.; Moshelm v. Rollins, 79 S.W.2d 672, error dism.; Clt of
San Antonio v. Mlcklejohn, 8 Tex. 79, 33 S.W. 735. AZ-&
    . . . 7 (Comment,1953
          In Attorney GeneralI'sOpinon No. o-6827, written by
Honorable William J. Fanning, now a Justice of the Texarkana
Court of Civil Appeals, It was held that House Concurrent Reso-
lution No. 41 of the 49th Legislature was "ineffectiveand does
not authorize the Land Commissioner of Texas to sell the land
.describedin the resolution. For the Commissionerto be so"au-
thorized an act of the Legislature would be required and a mere
resolution la wholly insufficient". And see Attorney General!s
Opinions Nos. Q-5241, 0-3697, O-193 and R-1792. We are further
of the.oplnlon that the general statutes giving your Board co&
trol and management of the reservation do not give your Board
authority to grant 011 and gas leases.
         The authority to lease the 3071 acres, however, itj
not dependent on such concurrent resolution. Your Board suc-
ceeded the Board of Control in the control and management of
the State eleemosynary institutions,now designated as "Texas~
State Hospitals and Special Schools", within which category
the ~statutespecificallyincludes "the Alabama and Coushatta
Indian Reservation,Livingston, Texas". Article 317&b, V.C.S.
The:3071 acres is a part of such reservation.
          Oil and gas leases on lands of eleemosynaryinstltu-
tlons were specificallypermitted by Article 3183a. Subsequent .-
to the enactment of such statute, Article 5382d, V.C.S., was
adopted In 1951 setting up procedures for the leasing of State
department lands. The act repealed all conflicting laws,and since
Its adoption, it has been uniformly construed by the General
Land Office, the Attorney General and the other State agencies
                                           I.
or. Raymond W. Vowell, page 4 (W-468)

Involved as repealing and supersedingArticle 3183a, except
as to Sec. 17a which forbids the leasing of certain named
State parks. That this was the lntentlon of the statute is
made clear in the following language of the emergency clause
of said statute (Acts 1951, ch. 325, page 556):
         "The fact that the ffeneralLand Office has
    a large list of prospective bidders on oil and
    gas leases, and the General Land Office is gen-
    erally known throughout the 011 and gas industry
    as the leasing agency for the State and that con-
    fusion exists In the oil and gas Industry because
    of the large number of Boards for Lease in exist-
    ence, all of which makes It desirable that the
    leasing of lande.ownedor controlled by the varl-
    ous departments,agencies and boards be done~under
    a uniform law and administeredby one agency . . .
    creates an emergency. . .n
All "eleemosynary".tracts and State park tracts leased since
the enactment of such statute in 1951 have been leased under
the said A~rticle5382d, rather than under Article 3183a. We
reaffirm the correctnetmofsuch departmental construction.
         Section 1 of Article 5382d provides In part as fol-
lows:
         "The'rela hereby created Boards for lease of
    lands owned by any Department,Board or Agency of
    the State of Texas, which Boards for Lease shall
    consist of the Commissionerof the General Land Of?
    flee,'who shall be 'chairman,the Attorney (feneral
    and the particular President or Chairman of the
    Board or Agency, or Head of the,.Departmentcharged
    with the responsibilityof management or control
    of lands now owned by; or that may hereafter be
    owned by, or held In trust for, the.use and benefit
    of said Department;Agency or Board."
The emergency clause quoted In the preceding paragraph makes it
clear that the legislativeIntent was'that the act should apply
to‘land "owned or controlled"by a State department. Title to
the land, under Public Law 627, supra, Is In the State of Texas
"Intrust for the benefit of the Indians of the Alabama and
Couahatta tribes of Texas". In a strict sense, ownership of
all State department lands is In the State of Texas. Deeds
are.sometimestaken in the name of the department, veryoften
in the name of the State for the use and benefit of a.named,
department,and sometimes simply in the name of the State. The
aaption of the 1951 act Includes the following:
Mr. Raymond W. iowell, page 5 (~~-468)

        "Providingfor the leasing of lands now owned
    by. e'. or held In trust for the use and benefit
    of State departments,agencies or boards. . .It
Clearly the land in question Is held in trust by the State for
the use and benefit of the Alabama-CoushattaIndian Reservation,
uhlch Is an agency,of your Board, and hence the land Is held In
trust for the Board itself. Consideringthe act as a whole, we
believe it was clearly Intended by t,heLegislature to co,ver
State land under the management and control of a particular de-
partment.
          It follows.from what.we have said that we are of the
opinion that the 3071 acre tract may properly be leased for oil
and Gaelunder the provisions of Article 5382d, subject, however,
to,approval by the Indians as provided,in Public Law,627, supra.
This answers your second question.
          Your third question Inquires as to the proper disposl-
tion of the proceeds from the leasing of such lands. Your at-
tention is respectfullydirected to Section 16 of Artlcle'33826,
which provides in part as follows:
          "Any amountsreceived under and by virtue of
     this Act shall be deposited in the,State Treasury
     to the credit of special fundedto he known as the
     '(appropriateDepartment, Board or Agency) Special
     Mineral Fund'~,,whichfunds are hereby created, and
     shall be used exclusivelyfor the benefit of the
     appropriateDepartment, Board or Agency; provided,:
     however, no money shall ever'be expended from these
     funds except by leglslatlve~appropriationand then
     for the'purposesand in the'amounts stated In the
     Act appropriatingsame.",.
AS stated In the statute, a specific legislative appropriation
Is required before such proceeds may be spent.
                          SUMMARY

          Because the Act of 1854 forbids the leasing
     or alienation of any part of the original 1280
     acre tract In the Alabama-CoushattaIndian Reser-
     vation, such land may not be leased for 011 and
     gas. The remaining 3071 acres of said reservation
     which were conveyed by the United States to the
     State of Texas under a 1954 CongressionalAct may
     be so leased under the provisions of Article 5382d,
Hr.   Raymkd     W. Voweil,,page6 (~~-4.68)

       V.C.S., with majority approval of the Tribe. SWh
       statute requires that~the proceeds from such a
       lease are placed In a special fund and may not be
       spent except by legislativeappropriatlim.
                                         Yours very truly,
                                         WILL WILSON
                                         Attorney Oeneral of Texas




JAStdhs

APPROVED:
OPINION COMMJTTEE:
Qeo. P. Blackburn, Chairman
Richard B. Ston6
L. P. Lollar
RRVIEWE3FORTKEA!tTORNEY        ORNERAL
BY:
      W. V. Geppert
