                      The Attorney                General of Texas
                                           July   8,   1980
MARKWHITE
Attorney General
                   Honorable James M. Windham                 Opinion No. Mw-2 07
                   Chairman
                   Texas Board of Corrections                  Re: Authority of the Department
                   Livingston, Texas 77381                     of Corrections to lease land under
                                                               its control for the removal of sand
                                                               and gravel

                   Dear Mr. Windham:

                          Ycu have asked whether the Texas Board of Corrections is authorized
                   to lease land under its control for the purpose of selling sand and gravel in
                   deposits located on said land. Since you have specified that the land in
                   question is under the control of the Department of Corrections, we assume
                   that none is stiject to the provisions of section 86.001, et seq., of the Parks
                   and Wildlife Code. We understand that applicants would bid competitively
                   for “permits,” or surface leases, and that the Board would determine which
                   applicants, if any, would receive contracts. A rental fee for the lease of the
                   surface area would be charged, as well as a fixed fee at the market rate per
                   cubic yard for the sand and gravel sold Lease revenue would be deposited in
                   the Mineral Lease Fund, and funds collected as royalty from the sale of sand
                   and gravel would be deposited in the Department Operating Fund.

                          Various statutes authorize the Board of Corrections to lease land under
                   its control. Article 61660, V.T.C.S., permits the Board to lease “real estate
                   for &cultural      or grazing purpcees” or “other fixed property... upon such
                   terms as it may &em advantageous. . . .I’ Article 6203a, V.T.C.S.,
                   establishes a “Board for Lease of Texas Prison Lands” and provides that
                   lands may be leased “to any person... or corporation... for the purpose of...
                   exploring for and mining, producing... and disposing of the oil and/or gas
                   therein. . . J’ Finally, article 6203aa-1, V.T.C.S., allows the Board of
                   Corrections to “lease state-owned land under its... control at its fair market
                   lease value for an initial period not to exceed 20 years” under such terms as
                   the Board &ems appropriate.

                          Other statutes authorize the Board of Corrections to sell or otherwise
                   dispose of certain property. see, e.g., article 61660, V.T.C.S., (sale of prison
                   products and personal and moveable property); article 6166~8, V.T.C.S.,
                   (sale of prison made goods); article 6203c, V.T.C.S., (sale of Shaw Farm and
                   Prison-made     Goods Act of 19631       However, no statute explicitly or
                   implicitly authorizes the sale of sand and gravel in deposits located on




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Honorable James M. Windham - Page Two           (MW-207)




leased land. The question, therefore, is whether express or implied authority to lease
land for this purpose is needed, or whether the Board of Corrections may proceed
absent some clear prohibition against its doing so.

       We conclude that the former is the correct interpretation.     Viewed as a whole,
the statutes governing the Department of Corrections, articles 6166, et se+, V.T.C.S.,
clearly indicate an intent on the part of the legislature to regulate closely the hinds of
dispositions that the Board of Corrections may make of property under its control.
The fact that the legislature has singled out certain purposes for which, and conditions
under which, property may be leased or sold, i.e., real estate may be leased for
agriculture or grazing, land may be leased for purposes of extracting oil and gas, and
certain products may be sold, leaves little room for doubt that the legislature did not
intend other property dispositions to be made. Article 61660, for example, specifically
authorizes the sale of personal and moveable property, but only the lease of real estate
or other fixed=perty       and appurtenances.     Had the legislature~hed       to confer
unlimited authority won the Board of Corrections to disease of land as it sees fit, it
could easily have done so. See, e.g., Education Code 565.39, which vests in the
University of Texas System board of regents the “exclusive management and control
[of System lands]” and authorizes the regents to “sell, lease, and otherwise manage,
control, and use the lands in any manner... and under terms and conditions the board
deems best. . . .l(

                                     SUMMARY

               Absent express statutory authority, the Board of Corrections
           may not lease land under its control for the purpose of selling
           sand and gravel in depceits located on said land.

                                              Very truly yours,



                                              MARK      WHITE
                                              Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General




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APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Jon Bible
Susan Garrison
Ride Gilpin
Bruce Youngblood




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