                                                  June 21.1999



The Honorable David Dewhurst                              Opinion No. JC-0069
Texas Land Commissioner
General Land Office                                       Re: Whether the General Land Office validly
1700 North Congress Avenue                                conveyed title to certain submerged land to the
Austin, Texas 78701-1495                                  City of Aransas Pass in 1944, and related
                                                          questions (RQ-0009)


Dear Commissioner       Dewhurst:

        Your predecessor in office requested an opinion on the validity of a 1944 conveyance from
the Texas Land Commissioner to the City of Aransas Pass ceding an interest in certain state-owned
submerged land to the City of Aransas Pass. The conveyance did not state that any compensation
was paid to the perpetual public school fund established by article VII, section 2 of the Texas
Constitution. The submerged land, or an interest therein, could not have been validly conveyed to
the City of Aransas Pass without compensation to the perpetual public school fund. Assuming no
compensation    was paid to the school fund, the conveyance was not valid.           Moreover, the
Commissioner has no statutory authority to convey state-owned submerged land.

         Your predecessor asked two questions about the validity of the 1944 conveyance, which is
titled “Special Award No. 1.” He first asked whether Special Award No. 1 represents a valid act of
the Land Commissioner, legally sufficient to convey title to the City of Aransas Pass or to ratify an
interest in the described land obtained pursuant to article 6837’ ofthe Revised Civil Statutes without
compensation to the perpetual public school fund. He next asked whether the language of Special
Award No. 1, together with article 6837 could be construed to give the city an exclusive perpetual
easement to use and control the lands for the purposes set out in article 6830* of the Revised Civil
Statutes, and whether such an easement could be granted without compensation to the school fund.
See Letter from Honorable Garry Mauro, Land Commissioner, to Honorable Dan Morales, Attorney
General (Nov. 8, 1996) (on tile with Opinion Committee) [hereinafter “Request Letter”].




         ‘Effective September 1, 1999, article 6837 ofthe Revised Civil Statutes will be repealed and recodified into
chapter 421 ofthe Local Government Code. See Act ofMay 10,1999,76thLeg.,         R.S., H.B. 3157,§ 16 (to be codified
at TEX. LOCAL GOV’T CODE ANN. 5 42 1.005).

          “Effective September 1, 1999, article 6830 of the Revised Civil Statutes will be repealed and recoditied into
chapter421 ofthe Local Government Code. See Act ofMay 10,1999,76th Leg., R.S., H.B. 3157,s 16 (to be codified
at TEX. LOCAL GOV’T CODE ANN. $5 421.001, ,002).
The Honorable    David Dewhurst     - Page 2        (X-0069)




         Article 6830 authorizes the commissioners court of all counties and the municipal authorities
of all cities bordering on the coast of the Gulf of Mexico to build seawalls, breakwaters, levees, and
various other similar or related projects and to incur indebtedness for these improvements. See TEX.
REV. Crv. STAT. ANN. art. 6830 (Vernon 1960). Article 6837 provides as follows:

                           The right to the use and control for the purposes prescribed by
                 this title, of so much of the land and sea bottom below high tide as
                 may be deemed necessary by said commissioners court or governing
                 body, is hereby ceded by the State of Texas to counties and cities
                 availing themselves of the provisions herein.

Id. art. 6837.

        Our answer to the questions is based on the information shown on the face of Special Award
No. 1 and a resolution of the City of Aransas Pass requesting the conveyance. The General Land
Office has provided us with a copy of Special Award No. 1, which is dated May 22, 1944, and
signed by Bascom Giles, then Commissioner of the General Land Office. It states that the City of
Aransas Pass, Texas, has voted and issued bonds for the purposes enumerated in article 6830 of the
Revised Civil Statutes and that the Mayor of Aransas Pass has provided evidence showing that the
city needs to use and control the area described by the conveyance to accomplish the purposes for
which the bonds were issued. See Special Award, General Land Office, Austin, Texas, File No. 1
(May 22, 1944) (on tile with Opinion Committee) [hereinafter Special Award No. 11.

         The City of Aransas Pass has forwarded to us a copy of a resolution of the mayor and city
commissioners, dated May 18,1944, whereby the city applied to Commissioner Giles of the General
Land Office to secure title to certain submerged lands in Nueces County as described by field
notes attached to the resolution.   The resolution states that the city voted at an election held on
April 22, 1944, to authorize the issuance and sale of seawall and breakwater bonds and that the
submerged lands are needed to construct the seawall improvements to be funded by the bonds. The
statutory authority for the bond issuance consisted of title 118 of the Revised Civil Statutes, which
includes articles 6830 and 6837, and a 1920 special law as amended in 1939 that donated certain
state ad valorem taxes to Aransas Pass to use in constructing and maintaining seawalls, breakwaters,
levees, channels, and other shore protections. Act of June 17,1920,36th Leg., 3d C.S., ch. 22,192O
Tex. Gen. Laws 32, as amended by Act of June 8, 1939,46th Leg., R.S., ch. 12, 1939 Tex. Spec.
Laws 989. We assume that the city’s resolution provides the evidence referred to in Special Award
No. 1.

         Special Award No. 1 states that “it appears that said City is entitled to the benefits conferred
 by Article 6837” and continues as follows:

                         NOW,THEREFORE,I,BASCOMGILES,Commissionerof
                  the General Land Office of the State of Texas, in conformity with the
                  above law, do hereby award, cede and relinquish to the City of
The Honorable      David Dewhurst        - Page 3           (X-0069)




                  Aransas Pass, Texas, and its successors, for the purposes enumerated
                  in Article 6830, the use and control of the following described land
                  and sea bottom below high tide:




                  [description    of submerged      land]

                  [mineral reservation      to the state]

         The description of the submerged land set out in the Special Award is identical with the
description in the field notes provided by Aransas Pass. We note, however, that the city in its
resolution sought title to the submerged lands, while the Special Award, consistent with article 6837,
ceded the “use and control” of the described land.

         Special Award No. 1 cites articles 6830 and 6837 of the Revised Civil Statutes as the
authority for the transfer of submerged land to the City of Aransas Pass. These provisions were
adopted in 19013 to give effect to article XI, section 7 of the Texas Constitution, which authorizes
counties and cities bordering on the Gulf of Mexico to levy a tax, go into debt, and issue bonds to
finance the construction of seawalls and breakwaters.

        Article 6837 expressly states that cities like Port Aransas may “use and control” submerged
land to build seawalls, breakwaters, and other structures set out in article 6830. Article XI, section
8 of the Texas Constitution authorizes the legislature to aid the construction of seawalls and
breakwaters in Gulf Coast counties and cities by donating lands from the public domain and thus
appears to provide constitutional authority for article 6837. However, when we review article XI,
section 8 of the Texas Constitution, and articles 6830 and 6837 in the context of other provisions
applicable to submerged lands, we must conclude that they did not authorize the conveyance recited
in the Special Award.

         Before the legislature made any donation of submerged lands pursuant to article XI, section
8 of the constitution, and well before 1944, no public domain land remained to donate pursuant to
that constitutional provision. TEX. CONST. art. XI, 5 8, interp. commentary (Vernon 1993); see
Hague v. Baker, 45 S.W. 1004, 1006 (Tex. 1898). Instead, the legislature adopted a law donating
to the City of Aransas Pass for a period of twenty years eight-ninths of state ad valorem taxes
collected on property in the county to use for the purposes authorized by article XI, section 8. Act
of June 17, 1920,36th Leg., 3d C.S., ch. 22, 1920 Tex. Gen. Laws 32; TEX. REV. Crv. STAT. ANN.
art. 6830 historical note (Vernon 1960) (text of law donating taxes to City of Aransas Pass). The




          ‘Act of Sept. 7, 1901, 27th Leg., 1st C.S., ch. 12, 1901 Tex. Gen. Laws 23 (an act to give effect to article XI,
 section 7 of the Texas Constitution).
The Honorable David Dewhurst         - Page 4         (X-0069)




Texas Supreme Court decided in City ofAransas Pass v. Keeling, 247 S.W. 818 (Tex. 1923), that
the constitutional provision authorized the legislature to make this donation, stating as follows:

                The express wording of the section [article XI, section 8, Texas
                Constitution] recognizes a state interest and a state obligation in the
                protection of coast settlements from calamitous overflows. It must
                have been known that before many years the public domain would be
                exhausted. It would be unreasonable to assume that the framers of
                the Constitution did not intend to make it possible for the Legislature
                to discharge an obligation which would be just as binding after as
                before the exhaustion of the public domain.

Id. at 820. Thus, the purpose of article XI, section 8, could be fulfilled, but not through the donation
of unallocated public land, because none remained.

        Prior to the 1944 Special Award, the legislature had placed submerged lands in the school
fund established by article VII, section 2 of the Texas Constitution.4 Article VII, section 4 of the
Texas Constitution provides that land in the school fund shall be sold under regulations, times, and
terms prescribed by law. Accordingly, any submerged lands could not be removed from the fund
without compensation to it.

         A survey of the legal history of the submerged lands shows that the 1944 Special Award
could not transfer title to them. The Texas Constitution, as adopted in 1876, allocated public lands
for various purposes, including the support of public education. Article VII, section 2 of the Texas
Constitution places “one half of the public domain of the State” into “a perpetual public school
fund.” TEX. CONST. art. VII, 3 2. The lands are to be sold and the proceeds must be used to buy
more land for the school fund or invested for the support of the public schools. Id. art. VII, 55 4
(sale of lands in school fund and investment of proceeds); 5 (principal of land sales and of
investments constitutes permanent school fund; interest therefrom constitutes available school fund).

         In 1898, the Supreme Court in Hague v. Baker determined that article VII, section 2, vested
in the school fund one-halfofthe   public land that remained after deducting public lands appropriated
by other constitutional provisions. The court judicially determined that the half of the public domain
not dedicated to the school fund had already been exhausted and that the remaining lands belonged
equitably to that fund. It held that the legislature had authority to determine the mode of partition
of the public domain by choosing to allocate land or half the proceeds of land sales to the school
fund, but that where the legislature had taken affirmative action to allocate the land or proceeds of




        ‘Act ofMay 9, 1939,46th Leg., R.S., ch. 3, $$2, 5(2), 1939 Tex. Gen. Laws 465,473,475,    see TEX. EDUC.
CODE 5 43.001 (Vernon 1996); Act of May 13,1941,47th    Leg., R.S., ch. 286, $3,1941 Tex. Gen. Laws 454,456, see
TEX. NAT. RES. CODE $5 11.012(c), .041 (Vernon 1978).
The Honorable     David Dewhurst         - Page 5            (X-0069)




the sale, its action was final. Hague v. Baker, 45 S.W. at 1006; see also Tex. Att’y Gen. Op. No.
M-356 (1969).

        The legislature responded to Hague v. Baker by ordering a complete audit of all land
accounts. Act ofMarch 2, 1899,26th Leg., RX, ch. 16, 1899 Tex. Gen. Laws Texas 14; Butler v.
Sadler, 399 S.W.2d 411,416-17 (Tex. Civ. App.Xorpus        Christi 1966, writ ref’d n.r.e.). In 1900,
the legislature adopted the Settlement Act, which allocated to the school fund all of the
unappropriated public domain remaining in the state, “except that included in lakes, bays and islands
along the Gulf of Mexico within tide water limits.” Act of February 23, 1900,26th Leg., 1st C.S.,
ch.11, 5 1, 1900 Tex. Gen. Laws 29, 3 1. In 1939, the legislature dedicated the mineral estate in
submerged lands to the school fund and provided that they were subject to lease for the production
of minerals5   In 1941, the legislature placed the submerged lands in their entirety in the public
school fund.6

         Submerged lands, as lands under navigable waters, were held in trust for the people by the
state, and could be sold only by the legislature. Lorino v. Crawford Packing Co., 175 S.W.2d 410,
413 (Tex. 1943); City of Galveston v. Mann; 143 S.W.2d 1028, 1033-34 (Tex. 1940); State v.
Bradford, 50 S.W.2d 1065,1069-70 (Tex. 1932); City ofPortZsabe1 v. Missouri Pac. R.R. Co., 729
S.W.2d 939, 943 (Tex. App.-Corpus Christi, 1987 writ ref d n.r.e.); Butler v. Sadler, 399 S.W.2d
at 415-16. The Supreme Court stated this rule as follows:

                  The soil covered by the bays, inlets, and arms of the Gulf of Mexico
                  within tidewater limits belongs to the State, and constitutes public
                  property that is held in trust for the use and benefit of all the people.
                  The rule is firmly established in this State that land under navigable
                  waters is withdrawn from the general provisions of the statutes
                  conferring upon the Land Commissioner the right to contract for the
                  sale or lease thereof, and passes by grant or sale only when so
                  expressly provided for by the sovereign authority; and there is no
                  presumption that the State has authorized such grant or sale.

                   Although such property may not be sold by the Commissioner of the
                   General Land Office or other executive officer, its sale or grant may
                   be authorized by the Legislature.

                   The reason for this distinction between ordinary public lands and
                   those covered by navigable waters is obvious. It has always been the



         ‘Act of May 9, 1939,46th Leg., R.S., ch. 3, $5 2, S(2), 1939 Tex. Gen. Laws 465,473,475.         See TEX. NAT.
 RES. CODE $5 11.041 (Vernon 1978); 52.011 (Vernon Supp. 1999).

          ‘ActofMay   13,1941,47thLeg.,R.S.,ch.286,§3,1941              Tex.Gen.Laws454,456;seeT~x.N~~.RES.CODE
 65 11.012(c), .041 (Vernon 1978).
The Honorable   David Dewhurst     - Page 6        (JC-0069)




                policy of the State to dispose of ordinary public lands to settlers, and
                under usual circumstances it may be presumed that the State has
                parted with title; but navigable waters and streams are reserved to the
                State for the use of the public generally, and no one should have an
                exclusive right to the enjoyment of such property, unless anduntil the
                Legislature has granted such right. Therefore, it has been the policy
                of the State to retain title to lands covered by navigable waters, and
                the presumption is that there has not been any act of the State
                divesting itself of title.

Lorino Y. CrawfordPacking   Co., 175 S.W.2d at 413-14 (citations omitted). Thus, laws authorizing
the Land Commissioner to contract for the sale or lease of public school lands did not apply to the
submerged lands. Id.; City of Galveston v. Mann, 143 S.W.2d at 1033-34; City of Port Isabel v.
Missouri Pac. R.R. Co., 729 S.W.2d at 943.

         The submerged lands described in the Special Award could not be conveyed without payment
to the school fund. Moreover, the Commissioner did not have authority to grant title to submerged
lands. Accordingly, the information on the face of the Special Award does not show that title to the
described land has been transferred to the City of Aransas Pass.

        Your predecessor also asked whether the Special Award can be construed to grant “an
exclusive perpetual easement to use and control” ofthe lands for the purposes set out in article 6830.
Request Letter supra, at 2. The resolution from the City of Aransas Pass applies for title to the
submerged land, while the Special Award uses the language “cede and relinquish to the City of
Aransas Pass, Texas, and its successors, for the purposes enumerated in Article 6830, the use and
control” of the described submerged lands. Special Award No. 1, supva. We cannot determine in
an attorney general opinion whether or not this language of the Special Award attempted to grant
an easement. See Lo- Vaca Gathering Co. v. Missouri-Kansas-Texas       R.R. Co., 476 S.W.2d 732,741
(Tex. Civ. App.-Austin     1972, writ refd n.r.e.) (intent of parties is consideration of primary
importance in interpreting an easement). We note, however, that the phrase “use and control” has
been used to describe the scope of an easement. See Pittman v. City ofAmarillo, 598 S.W.2d 941,
944 (Tex. Civ. App.-Amarillo    1980, writ ref d n.r.e.) (city’s easement in land for street purposes
included the right to use and control as much of the land as was reasonably needed for street
purposes).   The Special Award describes the interest in submerged lands as “use and control,”
providing some evidence that it intended to transfer an easement.

          Ifwe assume that the Special Award was intended to grant “an exclusive perpetual easement
 to use and control” of the lands for the purposes set out in article 6830, we must conclude that it was
 invalid.    The Commissioner’s     statutory authority to grant easements over submerged lands
 did not include authority to grant an easement for the purposes of article 6830. A 1943 enactment
The Honorable     David Dewhurst         - Page 7          (JC-0069)




authorized the Commissioner            of the General Land Office to execute grants of easements          for the
following purposes:

                 rights of way for telephone, telegraph, electric transmission and
                 power lines, for oil pipe lines, gas pipe lines, sulphur pipe lines, and
                 other electric and pipe lines     across all unsold Public Free School
                 Land, and across all islands, salt water lakes, bays, inlets, marshes
                 and reefs owned by the State within tidewater limits, and across that
                 portion of the Gulf of Mexico within the jurisdiction of Texas.’

The legislation also provided for compensation to the school fund by persons holding such
easements on unsold public school lands and submerged lands.’ In 1944, the Land Commissioner
had no authority to grant an easement for the purposes set out in the Special Award.

        Your predecessor also inquired about the legal effect of an instrument dated April 21,1958,
whereby the Nueces County Navigation District, reciting the city’s ownership pursuant to Special
Award No. 1, relinquished its authority over lands, including those described in the Special Award,
to the City of Aransas Pass. The relinquishment document also recited the validation of Special
Award No 1, by former article 969a-1 of the Revised Civil Statutes, See Request Letter supra, at
 1.

        We have no information about any claim the Nueces County Navigation District may have
had on the land in question and cannot comment on that aspect of the document. We can point out
that former article 969a-1, adopted in 1953, authorized “[alny city to which the State ofTexas or the
Republic of Texas has heretofore relinquished its right, title and interest in or to any island, flats, or
other submerged lands       to lease, sell, option and convey” such submerged lands.9 This provision
applies to submerged land that the state has transferred to a city and does not provide for validating
any questionable grant of submerged land. Accordingly, it cannot be read to authorize the validation
of the Special Award.

         We finally point out that the state, in its sovereign capacity, is not subject to the defense of
estoppel. State v. Durham, 860 S.W.2d 63, 67 (Tex. 1993). The acts and conduct of the Land
Commissioner, including mistakes oflaw, cannot estop the state fromrecoveringpublic          school lands
improperly conveyed. Texas Co. v. State, 281 S.W.2d 83,88 (Tex. 1955); Weatherlyv. Jackson, 71




         ‘Act of April 23, 1943,48th Leg., R.S., ch. 174,§ 1, 1943 Tex. Gen. Laws 275 (current version at TEX. NAT.
 RES. CODE ANN., ch. 51, subch. G. (Vernon 1978, Supp. 1999)).

         ‘Act of April 23, 1943,48th     Leg., R.S., ch. 174.5 4, 1943 Tex. Gen. Laws 275,276,

           9ActofApd121,1953,53dLeg.,R.S.,      ch. 80.5 1.1953T.z~. Gen. Laws 126; repe&dbyActofMay     1,1987,
 ‘IOthLeg., R.S., ch. 149, 5 49(l), 1987 Tex. Gen. Laws 707, 1306 (current version at TEX. Lot. GOV’T CODE ANN.
 5 253.002 (Vernon 1988)).
The Honorable   David Dewhurst     - Page 8      (JC-0069)




S.W.2d 259,266 (Tex. 1934); see also Grayburg Oil Co. v. State, 50 S.W.2d 355, 358 (Tex. Civ.
App.-Austin  1932, writ ref d).

                                       SUMMARY

                         A 1944 conveyance from the Land Commissioner to the City
                of Aransas Pass attempted to cede an interest in certain state-owned
                submerged land to the City of Aransas Pass. The Land Commis-
                sioner did not have authority to transfer submerged land. Moreover,
                submerged land, or an interest therein, could not have been validly
                conveyed to the city without compensation to the perpetual public
                school fund established by article VII, section 2 of the Texas
                Constitution.   The acts and conduct of the Land Commissioner,
                including mistakes of law, cannot estop the state from recovering
                public school lands improperly conveyed.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General
