               OFFICE   OF THE ATTORNEY GENERAL          OF TEXAS
                                  AUSTIN
GROVERSELLERS
ATTORNEY  GENERAL




    Honorsbli H. Z. raubfoa
    Xmlrtsnt  Fxeoutive 3eorstary
    CSm,        Fish end oyster   Comn,lsrion
    AWti5,        lbXS8

    rasr       sir:




                                                    r of November   7, 194s.




                                                 xe are ,attaohing a
                                     e   type   or mlmagel3snt lioense    .~


                             Of the prOXfiPity Of th0 open sOa
                          Fslo >lnto County, ue would eppreoiate
                          5 nt your earllost 00n~enienoe.~

              The l3r8x08 River Con~rvotfon   and Reobmation  Di8-
   triot is (1 Stete A@S5Oy areated end employed by the State,
   wreuant   to the provlulonr of srotion 39, Artlole 16, of the
   State corietitution, to ooneerve and .&velop the wters 0r the
   Erazos River and tba land sfieoted    Wweb:.    It ir 15 the nature
   Of I quasi-publio oorporatlon,   and bein@ a component part of
          Ronorable 11.. E. Faubion - page 2

          the state,   it derives all of its pokers and. authority by
          expreos delegation    from the state. iLike similar subordinato
          gtate Agencies,   it has only the powe?s and duties which are
          clearly set forth and defined by the Constitution     and Statutes
          of the state.    Titl% 128, oh. 8, special  Acts, page 536,
          v. A* c. s.; Acts 1929, 41St Legislature,    26 C. S.;Sp.   I,..
          page 22, ch. 13, as anended; 37 Tex. Jur. 065, Lower Colorado
          River Authority vs. KcGravr, 125 Tax. 268; Crouoh vs. Posey,
          69 S. W, 1001; 37 Tax. Jur. 950, Sec. 81.
                      Although we are well aware of the worthiness of the
,~
     ,,   oause In this case, there is nothing in the 1anSuage of the
          Act establishing    the Erazos River Conservation end Reclamation
          Distriot whioh either expressly     or by olear inp&ication author-
          izes the proposed contract here.      Wha.tever authority  the Dis-
          trict has to dispose of or burden Its property is.derived
          from Section 12 of Tit10 128, chap. 8, vol. 21, Special Acts,
          pp 536-546, V. A* d. S., as amended, which is set out in the
          following language:
                       “Sec. 12. Nothing in this Act shall be oon-
                strued as authorizing    she Distriot,    and it shall,
                not be authorized to mortgage, or otherwise en-
                ounber any of its property or’ any k ind, real~op;ecr
                sonal or mixed, or any interest      therein,   or
                quire any such property or interest       subjeot.to     a
                mortgage or oonditional    sale, provided that this
                section shall not be construed ss prevonting          the
                pledging of the revenue of the Distriot        as herein
                authorized.    Nothing in this AOt shall be construed
              ‘as authorizing    the sale, release or othor d’isposition
                of sny such property or Interest       by the Dlstriot,
                or any receiver   of any of the District      property,
               .or ,throug,h any court proceedings,     or otherwise;
               provided,    however, that tho District     may sell.for
              .oash any such property or interest        in on ag’grogate
                value not exoeeding the 8um of One Rundrod Thousand
                (~lOO,OOO.OO) DOllaxS in any one year if the Board
               by affirmative    vote of clevon of its members shall
               have determined that the property or interest           is not
               necessary to tho business of the District,          and shall
                          Ronorable 11. R. Faubion-    page 3    .


                              have approved the termsof        any such sale       it
                              being the intention:of      this Act that excipt by
                              sole 06 in this section      oxppre3nly   auti-iorlzed, no
                              such property or interest       shall ever come into
                              the ovtilership or oontrol,     directly   or indireotly'i
                              of any person, firm or corporation         other than a
                              public authority   created under the laws of the.
                              state of Texas.    All property of the District
                              shall be at all tines exempted from forced sale,
:ii.:;i-:_
        y;.:~';5~..:.:_
                     ;        and nothing in this Act contained shall authorize
                              the sale of any of the property of the District
                              under any judgment rendered in any suit end such
                              sales are hereby prohibited        and forbidden.*
                              (Xm~hasis added)
                                     4s seenfrom the underlined portion of the above
                          Sootion 12, t~he District    is expressly  limited and cnnnot
                          'encumbers its property.      TGth resyoct   to the nature of
                          Iour Droposed Contract,     the greet weight of authority    In
                          other jurisdictionfi,.   and also that vihich we, believe is
                          ;resently the law in the State of Texas, is adequately
                          SfrJted by the Galveston Court of civil      Appeals in the case
                          Of Anderson et us v. [Iipson, 144 2. :i'. 2nd 948 (&940), .in
                          :be rOuOme       language:
 .:. ,.:,::~:,:~>: ~.               "The rule laid down by the text writers
                              and'supsorted   by the great weight of authority
                              frox other juris&iotions    is that the right of
                              one person to hunt on premises owned and in the
                              posceseion of another may be acquired by a ernnt
                              or lease of hunting rriviloges,         and that vhen so
                              granted it is not a mere license          but Is 811 in-
                              terest in tho real estate in the'nature          of an
                              incorporeal   hereditament,  and that, as suoh, it
                              is within the statute of frauds and requiros a
                              writing for its oreatlon."       AlSO     seo C. J. S. 4;
                              32 A. L. R. 1527;    17 A?. JUT.    9.57.
                                                            I.
                               .
                                                                 z-f%




2onorable B. E. Faubion - pace 4


           As it is our belief  thatthe  instrument YOU
;ropose to execute oomes within the determination     .of the
Soregoing authorities,  suah instrument viould then amount
to an enoumbrance uPon the property .oS the District,     whloh
1s expressly forbidden by the 1onpuac.e of the statute,     supre.
42 G. J. s. 549; BouvierlS Law Diotionary,    Vol. 2, p. 1530;
words and phrases, Vol. 20, p. 605.
           Further, in a former opinion of this department No.
O-1287, dated Xay 15, 1940, addressed to the Honorable Frank
I). Quinn, it was held that the Eraxos River Gonservstion and
jgeolamation District  did not have the power to convey by deed
P determinable fee interest     in its lands to another state agency
because .the District  had no pov,er sufficiently   speaific  to
dispose of Its property in such manner. Although the deed
therein recited   a consideration    of Yen Dollzrs and other
eood and valuable coilsideration,    11no actual cash consideration
~8s to pass between the parties.'      The Distriot aid  not have
:he power to d:spose of its property by &ift under those
provisions of Section 12 of the Act, supra, readins as fol-
lors:

          ". . . . it being the intention.of    this Act
    that exaopt by sale as In this section expressly
    authorized,    no such property or interest  shall,
    ever come into the ownership or control,     directly
    or indirectly,    of any person, firm or oorporatlon
    other than a public authority    created under the
    laws of the state of Texas."
           The opinion then aonoluded that those provisions
Qf Section 12 regarding the value oSproperty     which may be
*Old for oash in 'any one'year by an eleven member vote of
thO.Distrlct provided the property is not ncccssery    to the
~;$~%a of the District     applied only to sslcs end not to
 I   .
          AS your proposed'controct     here is not 6 sale within
the above statutory provisions,     and beoause it would result
ponorebla   H. EL Faubion - page 5


in en encumbrence upon the DistrfLctsC lends, it is not
authorized ~by the provisions   of Section 12 df the'Act,
supra, end we therefore    answer your question in the
negative.
                                     Very truly   yours
                               A’JT.IYO~XY   G3!.ERALOF TEXAS
