       HE                NEY     GENERAL
                          EXAS
                AUSTIN    ~~.%-ExAs

                December 16, 1948

Hon. Bascom Giles, Commissioner
General Land Office
Austin, Texas            Opinion No* V-741.
                           Re: Inclusion of Public
                               Squares shown on maps
                               of City of Austin as
                               Public School Land.
Dear Sir:
         We refer to your letter in which you submit
the following:
           "When the town of Austin was fixed
     as the capital of the State, Congress on
     January 14, 1839, directed.the townsite
     to be platted and the property to be sold
     according to said plat. Said Act has this
     provision: 'That the said agent, before
     the sale of said lots, shall set apart a
     sufficient number of the most eligible for "
     the Capitol, Arsenal, Magazine, University,
     Academy, Churches, Common Schools, Hospital,
     Penitentiary, and for all other necessary
     public buildings and purposes.1 In compli-
     ance therewith, the platas made and which
     is on file in this office shows that a num-
     ber of tracts designated as 'Public Squares,'
     "Churches,' 'Hospital,* and 'Armory' and
     some others were not subdivided into lots.
     The same were not sold.
         "Since that time, some of these blocks
     have been,~by the Legislature, sold to the
     City of Austin, and some of them have been
     used by the State on which to erect public
     buildings.
          "Among other blocks designated as 'Pub-
     lic Square' aa revealed by said plat is the
Eon. Eaecom Gil$m - Page 2            (V-741)



      block lying between Trinity         and Nueces and
      4th and 5th Streets.         The South half of the
      block    is vacant    and lies  along the railroad
      ~~t;3!ihd       60 far aa our records     show, never
      be&n‘nbs”h~~fcii.‘~any purpose and is very val-
      uiibPe tnackage-‘property.       The North half of
      said block is now occupied,         partly by the
      0. Henry Museum and partly         by one of the
      fire   stations    of the City OS Austin.

            “Another’block    lies between San Antonio
      and Guadalupe and 4th and 5th Streets      aiid”is,
      entirely    vacmt.     This is also very valuable
      business    property..

             “So far as the reoorda of this office
      ahow, the Legislature      has never disposed    of
      any portion   of’ said two ‘blocks  above de-
      scribed.    We wish you would kindly ,investiy      ~.~~
      gate the matter and let us have your oplnion~,
      as to whether these two said tracts        of land*
      or any portion    thereof,   belong to ,the Public-
      School .Fund and if so, can same be dlspos ed
      of as Public   School Land.*

         In final  analysis   you-ask  if blocks of land
shown On the Land Office    map of the City of Austin,   as
public squares in said city,    have passed to the public
school fund and become subject     to sale as such.

           Court houses,   jails, streets,   and public
squares are not mentioned in the law of 1839 to which
you refer,   but all such muses were therein      authorized  by
the,language    “other necessary  public   buildings    and pur-
poses.!         -

              An Act of the 26th Legislature,            First    Called
Session,     1900, recites       that “for the purpose of adjust-             ~,
ing and finally       settling     the controversy      between the
permanent sohool       fund and the State of~,Texas,           growing
out of the division         of the public     domain, there,i,s       here-
by set apart and granted to saio school, fund four mil-
lion,    four hundred and forty-four          thousand and one bun-
dred and ninety-five          acres,  or all of the unappropriated
public     domain remaining       in the State of Texas 01 what-
ever character,       and wheresoever      located,,including         lands
hereafter     reoovared     by the State.”
Hon. Bascom Giles - Page 3   (V-741)


          The maps and records in the General Land
Office show that the public squares mentioned in your
inquiry,are part of a grant titled by the Mexican
Government to Thomas J. Chambers on June P, 1835.
The Chambers title was held by the Supreme Court of
Texas, in the case of Chambers v. Fisk, 22 Tex. 504,
to be a valid grant. In 1925 the State of Texas aet-
tied with the Chambers heirs for $20,000.00. There-
fore these public squares have never been unappro-
priated public domain at any time since they were ac-
quired by the State.
           These public squares were specially reserv-
 ed and set aside as such as authorized by the Congress
 of the Republic of Texas as they are shown on said map,
and recognized by the State of Texas.
          In Roberts v. Terrell, 101 Tex. 577, 110 S.W.
733, the Supreme Court said:
          "Having once specifically reserved as
     set apartor withdrawn certain lands from
     such appropriation, it is not to be supposed
     that by subsequent legislation the Legisla-
     ture intended to authorize the appropriation
     of them.unless such intention is clearly ex-
     pressed; and it has therefore been held in a
     great number of cases in this State and else-
     where that general laws authorizing locations
     or entries upon and surveys of public lands,
     or public domain or vacant land do not apply
     to lands that have previously been so appro-
     priated, reserved, set aside or withdrawn."
          See also Taylor v. Hoya,,29 S.W. 540; Keuch-
ler v. Wright, 40 Tex. 600, 606; State v. Delesdsnier,
7 Tex. 108; and Ray v. State, 1~53S.W. (2) 660.
          The fact that the Legislature has always dis-
posed of the reserved tracts within the City of Austin
by Special Act clearly indicates its belief that such
tracts were not included in the Settlement Act. In this
connection see: Acts 1911, 32nd Leg. 1st C.S., Ch. 18,
p. 105; Acts 1913, 33rd Leg., Ch. 34, p* 66; Aots 1913,
33rd Leg., Ch. 23, pa 43; Acts 1929, 41st Leg., Ch. 259,
                              Ch. 312, p. 695; Acts 1929,
                             Ch. 7; Acts 1929, 41s;7;;g,,
                               No. 91, Acts 1941,
Leg., Pa 1508; Acts 1945, 49th Leg., Ch. 44, pa 64.
Hon. Bascom Glles   - Page 4   (V-741)



           We are of the opinion   that the two blocks  of
Land shown on the 1839-1840 maps of the City of Austin
as public  aquares do not belong to the Public School
R.znd and may not be disposed   of as suah,  Their dispos-
al or dedication   to the Public School Fund for future
sale is matter wholly within    the province of the Legis-
lature.




          Public   squarea shown on the 1839-1840
     mans of the City of' Au&in do not belong
     to-the   Public &hool    Fund and may not b$
     aold as such.      Their diapositlon is a
     matter wholly within the province      of the
     Legislature.

                                         Yours   very   truly,

                                 ATTORNEYGENERALOF TEXAS




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                                 ATTORNEYGENERAL
