                  THE   ATTORNEYGENERAL
                           OF TEXAS
                          AUSTIN   ~.TEXAS
   WI&     WILSON
*IToRNEY     GENERAL
                           September 20, 1960


     Texas State Parks Board                 Opinion No. WW-941
     Austin, Texas
                                             Re:   Custody and control
                                                   of Sections 28, 56 and
                                                   60 in Block G-9, H.E.
                                                   & W.T. Ry.Co. Surveys,
                                                   Sections 6 and 24 in
                                                   Block G-23, C.T. & M.C.
                                                   Ry.Co. Surveys and Sec-
                                                   tion 30 in Block M-l
                                                   of S. A. Glass Survey,
                                                   all in Brewster County,
                                                   Texas.
     Qentlemen:
               YOU recently have requested the opinion of this
     Department
         _.     on the status of the subject lands. Specifically,
     you aesire to know whether they belong to the Public Free
     School Fund and hence subject to the control and admlnistra-
     tlon of the School Land Board or, as a result of a series of
     enactments pertaining to the establishment of Big Bend National
     Park, they belong to the State of Texas for park purposes in
     which event they would be under the administration of the Texas
     State Parks Board.
               It is our opinion that these lands now constitute
     a part of the unsold public free school lands and are under
     the control and jurisdiction of the School Land Board.
               A brief review of pertinent legislative provisions
     is appropriate.
               A state park to be known as Texas Canyons State Park
     was created in Brewster County, Texas, by H. B. 771, 43rd Leg.,
     R.S., oh. 95, p. 226, effective May 29, 1933, and unsold por-
     tions of certain sections of school lands were therein trans-
     ferred from the Public Free School Fund to the State for park
     purposes and placed under the jurisdiction of the Texas State
     Parks Board.
               Other lands were likewise transferred to the Parks
     Board and the name of the park was changed to Big Bend State
Texas State Parks Board, page 2 (WW-941)

Park by H. B. 26, 43rd Leg., 1st C.S., ah. 100, p0 275, ef-
fective October 27, 1933, and now codified as Article 6077c,
R.C.S.
          On October 26, 1937, this latter Act was amended
to increase the park area to approximately 736,000 acres with
appropriate provisions for transfer of the jurisdiction there-
of to the Parks Board. S. B. 13, 45th Leg., 2nd C.S., ch. 9,
P. 1875.
          By S. B. 123, 46th Leg., R.S., ch. 5, p. 520, ef-
fective May 12, 1939, and codified as Article 6077e, R.C.S.,
the park area was increased to approximately 788,000 acres,
its name changed to Big Bend National Park, and provision
made for ultimate conveyance to the United States Government.
Custody and control of the additional area, as before, was
transferred from the Public Free School Fund to the State of
Texas for park purposes and in addition thereto the State
Parks Board, prior to transferring jurisdiction to the United
States Government, was authorized to exchange any lands there-
tofore acquired that were situated outside of the area de-
scribed by metes and bounds in the Act for lands loc,atedwith-
in such area.
          You have informed us that thereafter the boundaries
of Big Bend National Park were readjusted by the Parks Board
in conjunction with officials of the National Park Service
and a final conveyance of the park area made to the United
States, The subject lands, being beyond the boundaries of
the readjusted park area, were not included in the area so
conveyed to the United States.
          We thus find that as of the execution of the deed
to the United States, custody and control of the subject lands
had been transferred by the Legislature from the School Land
Board to the Parks Board but, as authorized by statute, they
had been administratively excluded as a part of Big Bend Nation-
al Park. Such were the conditions that existed on May 8, 1943,
when S. B. 75 became effective. Acts 48th Leg., R-S,, oh. 291,
p. 425. By this Act the Legislature validated all land ac-
quisitions and conveyances by the Parks Beard in the final es-
tablishment of Big Bend National Park. Particularly germane
to the present inquiry, the Legislature there expressly con-
sidered that the area which had theretofore been transferred
for park purposes, but excluded from the area finally decided
upon and conveyed to the United States for Big Bend National
Park had been abandoned for park purposes and the act of
abandonment;by the Parks Board was validated,
          Section 4 of the validating Act reads In part:
.   .   c




            Texas State Parks Board, Page 3 (WW-941)

                     "Where boundaries of the Big Bend
                National Park were in certain instances re-
                adjusted . . . and certain lands transferred
                from the State of Texas for the benefit of
                certain school funds to the State Parks Board
                for park purposes were left without the read-
                justed boundaries, and thus abandoned for park
                purposes, the act of abandonment of Texas Parks
                Board is hereby validated and these lands which
                are described hereinbelow are transferred t
                the State of Texas to be held for the benefit
                of the department OP fund for which they were
                originally held before the transfer for park
                purposes.                                     )
            The Act then describes some 55 sections of land in Brewster
            County but despite the fact that the subject lands were be-
            yond the boundaries of the Big Bend National Park, they were
            omitted from the specific property descriptions contained in
            the Act. The ambiguity thus created predicates the present
            question.
                      We need not be concerned with the rules of law re-
            lating to the construction of deeds and of property descrlp-
            tions o Here, ownershlp of these lands always has been in the
            State of Texas. The question simply is whether one OP another
            of the State agencies has jurisdiction and control thereof and
            the answer must be found from the paramount legislative intent
            as indicated in the Act.
                      We think it plain that "these lands" which by the
            Act were returned to the appropriate funds whence they origi-
            nated were those beyond and "without the readjusted boundaries"
            of Big Bend National Park. We can perceive of no reason what-
            ever for the Legislature retaining a park purpose status for
            the subject lands and thus treat them differently from all
            other lands involved in the national park development. That
            the Legislature did not so intend is evidenced by the fact
            that since 1943 no legislative appropriations have been made
            for, nor has there been any de facto use of the subject lands
            for park purposes. The mere fact that the Act purported spe-
            cifically to desoribe the lands there referred to and omitted
            from this specific description the lands In question is an
            apparent oversight on the part of the agency which prepared
            this information for the Legislature; an oversight readily
            explained by the fact that they were dealing with hundreds of
            thousands of acres and the further fact that, as shown by
            the legislative review, the tentative boundaries of the park
            changed many times before final definition.
                      It is therefore OUP opinion that the Legislature by
            S. B. 75 confirmed and validated the abandonment of the subject
Texas State Parks Board, page 4 (WW-941)

lands for park purposes and restored jurisdiction and control
thereof to the School Land Board as unsold public free school
lands.
                           SUMMARY
          Jurisdiction and control of the subject lands
     were by S. B. 75 transferred from the Texas State
     Parks Board to the School Land Board of Texas as
     unsold public free school lands.
                                      Very truly yours,
                                      WILL WILSON
                                      Attorney General of Texas




                                            Assistant
JRR:bh
APPROVED:
OPINION COMMITTEE
W. 71. Geppert, Chairman
C. Dean Davis
William R. Hemphlll
Iola B. Wilcox
REVIEWED FOR THE ATTORNEY GENERAL
BY:
        Leonard Passmore
