                                         The Attorney          General of Texas
                                                             July 8, 1982

MARK WHITE
Attorney General


                                        Honorable Dan W. Heard                 Opinion No.MW-489
Supreme      Court Building             Criminal District Attorney
P. 0. Box 12548
                                        Calhoun County                         I&: Status of property con-
Austin.    TX. 76711. 2546
5121475.2501
                                        P. 0. Box 1001                         veyed to city of Port Lavaca
Telex    9101674-1367                   Port Lavaca, Texas   77979             by state of Texas
Telecopier     5121475.0266
                                        Dear Mr. Heard:
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
                                             In 1921, the Texas Legislature granted 75 acres of submerged land
2141742.6944                            to the city of Port Lavaca. 1921 Tex. Gen. Laws, ch. 80, Pl, at 158.
                                        Section 1 of the grant reads as follows:
4624 Alberta       Ave., Suite    160
El Paso, TX.       79905.2793
                                                 All right, title and interest of the State of
9151533.3464                                     Texas... is hereby granted to said city for public
                                                 purposes only... (Emphasis added).
1220 Dallas Ave., Suite          202    Section 2 of the grant gives the city the power to erect buildings and
HOUS~O”, TX. 77002.6966
7131650-0666
                                        other improvements for public purposes, to rent the buildings for
                                        public purposes, and to build seawalls and breakwaters. This section
                                        also prohibits the city from taking dredging material from the bay,
606 Broadway,        Suite 312          and from placing or permitting any building on the land except for
Lubbock,     TX.    79401-3479          ornamental or civic purposes. In other sections, the state reserves
6061747.5236
                                        the mineral rights and the right to build wharves, piers, and
                                        buildings for state or government purposes.
4309 N. Tenth. Suite S
McAHen,      TX. 76501-1665                  The city now wants to convey part of this land to a certain
5121662.4547                            individual as part of the settlement of a dispute between the city and
                                        two companies which also claim an interest in the submerged lands.
200 Main Plaza, Suite 400               The settlement contract calls for the city to convey to this
San Antonio,  TX. 76205-2797            individual "its rights from its patent to the remainder of the fee in
5121225.4191                            the franchise area of Bauer (Channel Dock and Harbor Company, Inc.)
                                        and to recognize the validity of the grant by the state of Texas to
An Equal       Opportunity1
                                        Bauer of its franchise area."       According to the terms of the
Affirmative      Action    Employer     agreement, the individual would become the sole stockholder of Bauer
                                        Channel Dock and Harbor Company, Inc. (hereinafter referred to as
                                        Bauer, Inc.). You advise that Bauer, Inc., is a channel and dock
                                        company chartered by the state in 1959 under now-repealed statutes
                                        which granted xhannel and dock companies certain rights to use and
                                        profit from submerged lands in exchange for improving them for
                                        navigation and commerce. However, you also inform us that there was
                                        no legislative action at that time relating to title or possession of
                                        these lands.




                                                                p. 1736
Honorable Dan W. Heard - Page 2   W-489)




    Your questions are as follows:

               1.   Can the city of Port Lavaca legally sell
          any of the land patented to the city by the 1921
          Legislative Act?

               2.   Are there any statutes, legislative act,
          laws, etc., that repeal any section of the special
          legislation of 1921?

               3.   Is the city patented area     still for
          public purposes only today?

               4.   Is the city patent a limited grant and
          if so, can the city of Port Lavaca convey a good,
          clear, fee simple title to any of the area to any
          individual or corporation?

     Municipal property held in a governmental capacity, i.e., for a
public use, cannot be sold without legislative authority but must be
devoted to the uses and purposes for which it was intended. Property
possessed and used by municipal corporations as public agencies of the
state for the purpose of governmental administration cannot be
alienated by them without special authorization. Weekes v. City of
Galveston, 51 S.W. 544 (Tex. Civ. App. - 1899, writ ref'd); 10 E.
McQuillin, "Municipal Corporations" 5928.37, 28.38, at 77, 83 (3rd ed.
1981). If the city of Port Lavaca owns the submerged land in trust
for the public, then it cannot alienate the land without express
authority from the Texas Legislature. The city's general power to
sell land does not give the city the power to sell land burdened with
a public trust. That power must be granted specifically. Compton v.
Waco Bridge Company, 62 Tex. 715 (1883).

     The legislature granted "[a]11 rights, title and interest of the
State to all the land... to [the] city for public purposes only."
(Emphasis added). This language, interpreted in light of the rules of
construction for grants of submerged land and the circumstances
surrounding the grant, shows that the legislature intended to grant
the city the land for public purposes only, and that it imposed a
public trust which restricts the city's power to alienate the land.

     The state holds submerged lands in trust for the public. The
state, as sovereign, through its legislature, may grant fee simple
title to submerged lands. City of Galveston v. Menard, 23 Tex. 349
(1859). The state has, however, always had a policy to hold submerged
lands in trust for the people. Title to submerged lands passes only
on a very definite and express grant from the legislature. There is a
presumption that title has not passed, and any grant is strictly
construed against the grantee.     Id.; Lorino v. Crawford Packing
Company, 175 S.W.2d 410 (Tex. 1943);ollan    v. State, 308 S.W.Zd 122




                              p. 1737
.   I




        Honorable Dan W. Heard - Page 3     (MI'-489)




        (Tex. Civ. App. - Fort Worth 1957, writ ref'd n.r.e.); City of
        Galveston v. Mann, 143 S.W.2d 1028 (Tex. 1940). These rules of
        construction support the conclusion that when the legislature granted
        the land "for public purposes only," it did not intend to pass fee
        simple, unrestricted title to the city. This language is evidence of
        the state's intent to protect the public's rights by imposing a public
        trust on the land. See Weekes v. City of Galveston, B,      (grant and
        later joint resolution evidenced legislature's intent to give city
        title to submerged land but also to impose public trust on that land),
        Hollan v. State, supra, (grant of "all right, title and interest of
        State of Texas... for public purposes and for the development of
        commerce only... [the navigation district] shall not at any time
        grant, convey, give or alien said lands..." held not to pass title in
        submerged land to navigation district). The state's reservation of
        the right to construct navigation improvements, docks, and wharves is
        consistent with this construction.

             We conclude that the city of Port Lavaca owns the land in
        question in trust for the public. Accordingly, it is without power to
        convey it without express authority from the state legislature.
        Zachry v. City of San Antonio, 305 S.W.2d 558 (Tex. 1957); City of
        Fort Worth v. Taylor, 337 S.W.2d 160 (Tex. Civ. App. - Fort Worth
        1960), aff'd. 346 S.W.2d 792 (1961); Weekes v. City of Galveston,
        supra.

             It is suggested that article 969a-1, V.T.C.S., gives the city of
        Port Lavacs the power to convey submerged land to a private individual
        with no restrictions as to use. Article 969a-1, section 1, states:

                 Any city to which the state of Texas or the
                 Republic of Texas has heretofore relinquished its
                 right, title and interest in or to any island,
                 flats, or submerged lands be, and is hereby
                 granted power and authority to lease, sell, option
                 and convey all or any portion of such... submerged
                 lands, and to enter upon development plans and
                 contracts for any or all of these purposes with
                 any person, firm, or corporation. public or
                 private. The foregoing powers may be exercised at
                 such time and upon such considerations and terms
                 and for such periods of years as the governing
                 body of such city shall determine to be proper and
                 in the public interest....

             It is our opinion, however, that the act does not confer upon
        municipalities the power to sell land held in trust for public
        purposes. Submerged land may be held by a municipality in either its
        proprietary or governmental capacity.     Land held in a city's
        governmental capacity is subject to restrictions and duties not
        imposed upon land held in proprietary capacity. Weekes v. City of



                                          p. 1738
                                                                         .


Honorable Dan W. Heard - Page 4   (MW-489)




Galveston, supra. It has always been the policy of the state not to
grant submerged lands to individuals. Id. The city's power to convey
the submerged lands, described in article 969a-1, is limited by this
longstanding policy and by the words of the grant. Compton v. Waco
Bridge Company, e.       Submerged land granted for public purposes
only cannot be conveyed to private persons for private purposes under
the general authority provided by article 969a-1.

     The history of grants of certain submerged lands to the city of
Corpus Christ1 supports this reading of article 969a-1. In 1919, the
legislature conveyed certain submerged land to the city of Corpus
Christi, using language almost identical to that used in the instant
grant to Port Lavaca. The legislature later ratified conveyances made
by the city to private persons. Tex. Laws 1941, ch. 40; V.T.C.S. art.
54213. In 1961, eight years after article 969a-1 was passed, the
legislature found it necessary to convey explicitly the right to lease
part of the remaining submerged land without restrictions as to use.

          The city of Corpus Christ1 is hereby authorized
          and given the power and authority to lease those
          certain submerged lands described in Section 4
          herein and heretofore relinquished by the State of
          Texas to the citv of Cornus Christi. to anv
          person, firm or. corporaiion, owning lands;
          landfill or shore area adjacent to the described
          submerged lands, without restrictions as to public
          or private use thereof.... (Emphasis added).

V.T.C.S. art. 54213-2, 51. If article 969a-1 had given the city the
power to lease public lands for private purposes, the legislature
would not have made this grant. State of Texas v. Aransas Dock and
Channel Company, 365 S.W.Zd 220 (Tex. Civ. App. - San Antonio 1963,
writ ref'd).

    Article 5421j-2 limits the power of the city to lease:

         [Alny lease shall contain a provision prohibiting
         the Lessee... from erecting or maintaining thereon
         any structure or structures, such as buildings,
         with the exceptions of yacht basins, boat slips,
         piers, dry docks, breakwaters, jetties, or the
         like.

sec. 2. It also recognizes the public's continued right to use the
waters. to wit:

         [Tlhe right to use the waters embraced by the
         lease shall be reserved to the public, though the
         boat slips, piers [etc.]   may be limited to the
         private use of the Lessee.




                              p. 1739
.   .

        Honorable Dan W. Heard - Page 5     (MW-489)




        Despite the existence of article 969a-1, then, the legislature
        explicitly granted the city a restricted right to lease. In our
        opinion, article 969a-1 does not provide the kind of explicit
        authority necessary for a city to convey submerged land held for
        public purposes. Article 54213-Z does provide such explicit authority
        to the city of Corpus Christi, but no such statute has been passed for
        the benefit of the city of Port Lsvacs. A general power to sell
        property does not override restrictions in the instrument which
        conveyed the property. Compton v. Waco Bridge Company, supra.

             Thus, without express legislative authority, the city of Port
        Lavaca may not sell any of the submerged land patented to the city in
        1921. We do not address other statutes or constitutional requirements
        which might also be applicable.

                                      SUMMARY

                     The city of Port Lsvaca cannot legally sell any
                  of the submerged land patented to the city unless
                  it receives the express authorization of the
                  legislature, because the city holds the land in
                  trust for the people of the city and for the
                  public generally.




                                                    MARK      WHITE
                                                    Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        RICHARD E. GRAY III
        Executive Assistant Attorney General

        Prepared by Susan Plettman
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Susan L. Garrison, Chairman
        Jon Bible
        Rick Gilpin
        Patricia Hinojosa
        Jim Moellinger
        Susan Plettman




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