              EA        ORNEY      GENERAL

                      OF-XAS




                        March 12, 1962

Honorable James S , Grisham     Opinion No. WW-1273
Criminal District Attorney
Canton, Texas                   Re:   Whether a county can law-
                                      fully convey the minerals
                                      to its grantor on lands
                                      acquired for State Highway
                                      purposes on grounds of a
                                      mutual mistake in acquir-
                                      ing a fee simple title
Dear Mr. Grisham:                     instead of an easement.
          Recently our office received an opinion request from
you consisting of the letter comprising your request and a
letter attached thereto, addressed to you and written by County
Judge Truett Mayo. Judge Mayo's letter reads in part:
               I,     Some thirty years past the
          State and County secured right of way
          for a State Highway Andyin so doing the
          right of way deeds were ta{en in the
          name of the County. . . .
Your opinion request then asks the following question:
               "Where the County, in obtaining
          right-of-way easements, does so by ac-
          quiring complete fee title by warranty
          deed, which, of course, includes the
          mineral rights, whereas it was only
          necessary and the county only intended
          to acquire easement over the surface
          rights for the construction and main-
          tenance of roads and the inclusion of
          the mineral rights was a mutual mistake
          between the parties:
               "Under these conditions, may the
          county legally reconvey the mineral
          right~sto the former ownership of thee
          land?"
          Land acquired by a county in the name of the county
for the construction of State highways, is State property
Honorable James S. Grisham, page 2 (WW-1273)


irrespective of the fact that the deed is made out in the name
of the acquiring county. The Supreme Court of Texas in Robbins
v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925) reiterated
in its opinion this law relating to the ownership of public roads
and the control and authority thereover. On page 918, column 1,
the Supreme Court said:
                      But are public roads within
          the borders of a county its property,
          and is its title and control its own
          and inherent in it?
              'In their very nature and as
         exercised by the general sovereignty
         they belong to the state. From the
         beginning in our state the public roads
         have belonged to the state, and not to
         the counties. This is clearly reflected
         in the Constitution and early decisions
         of this court.
              n . . * .

               "Public roads are state property
          over which the.state has full control
          and authority." (Emphasis added.)
          Likewise, the authority to dispose of State lands,
including State highway lands, resides exclusively in t e Legis-
lature of the State. 38 Tex.Jur. 633, State of Texas, B 34; 34
Tex.Jur. 46, Public Lands, 6 25.
          A search of the Texas statutes fails to reveal the
enactment of any statute by the Texas Legislature that would
delegate the legislative right to dispose of public land and
interests in existing State highways to the County Commissioners
Court or any other officers of the county.
          In 34 Tex.Jur. 440, Public Officers, 8 67,   it is
said:
              "Public officers and governmental
         and administrative boards possess only
         such powers as are expressly conferred
         upon them by law or are necessarily
         impli:d from the powers so conferred.
         . . .
Honorable james S. Grisham, page 3. (WW-1273)


          State v. Cage, 176 S.W. 928 (Civ.App., error ref.);
Callaghan v. McGown, ,gO S.W. 319 (Civ.App., error ref.); Eastin
v. Ferguscn, '2 Tex. 643, 23 S-W, 918; Harlingen Ind. School
Disk. V. C. 5. Fage & Bra.* 48 S.W.2d 983 (Com.App.); State
            ~ School Dist. No. 6 v. Farwell Ind. SchoolDist.,
Line C.onsi:1.
38 S.W.2d 61


S"W. 1010 {Civ.App.J; Childress County v. State, 12'(Tex. 343,
92 S.W.2d 1X1; Canales v. Laughlin, m    Tex. 169, 214 S.W.2d
451; Hill v, Sterrett, 252 S.W.2d 766 (Civ.App., n.r.e.).
          Since State highways are State property over which the
State hapsfull control and authority irrespective of whether or
not the right of way was acquired in the name of the county or
the State, an? since the Legislature has enacted no statute
authorizing the conveyances of any interest in an existing State
highway by a County Commissioners Court or any county officers,
nei.therthe &CountyCommissioners Court of Van Zandt County nor
any ether county officials can convey  the mineral rights of any
            L
Stase highw&v ts the criginal owners  of the land, which land
now comprises a part of such highway. Therefore, we answer
y2u1 question In the negative, the county cannot legally recon-
ve,ythe mineral .rights,tothe former owner of such lands.
           There .doesexist, however, a method by which land
not needed for highway purposes and which interest in land
was cc,tIntended ts 'belncL'j.;ledin the acquiring deed but was
iri
  CT1,!.:!3,ed
          by error may be returned to the grantor. The method
to be emp~icyedis set out in Article 6673a,   V.C.S. Said
Article Fr::~vides 'insuch circumstances that the Governor of
+hls ic,+
        z,-
          3 .:;;pona recommendatinn from the State Highway Com-
       __,,..-
mi,ssicn ::?!.a5
               he do so, may exenut,eand deliver such correction
deed a3 is deemed necessary to rectify and resolve such error.

                           S?JMMARY
               The n,.o:z3ty
                          cannot convey to its
          original grant:crrs
                            the mineral estate
          in land to which it has acquired the
          complete fee simple title by general
          :,%rrantydeed fz~rState highway pur-
          poses 'bec.suse
                        of a mlltualmistake
          betweer::,r:e
                      Farties in not excluding
          the miner31 estate from the trans-
          action.
Honorable James S. Grisham, page 4 (W+f-1273)


                 However, Article 6673a, V.C.S.,
            provides that when an interest in land
            acquired for State highway purposes
            was not intended to be included in
            the acquiring deed but was Included
            by error, the Governor of this State,
            upon recommendation of the State High-
            way Commission, may execute and deliver
            such correction deed as is deemed neces-
            sary to rectify and resolve the error.

                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas


                                    BY
                                      Assistant
MR:ljb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Thomas Burrus
Jack Goodman
Leon Pesek
w. 0, Shultz
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.
