                      AUSTXN. TEXAS   78711
                            September 30, 1969




Sonorable Joe Resweber           Op. No. M-482
county Attorney
Harris County
Harris County Courthouse         Re:    Constitutionality of Article
Houston, Texas    77002                 1581c, Vernon's Civil Statutes
Dear Mr. Resweber:
     You have requested the opinion of this office as to the con-
stitutionality of Article 1581c, Vernon's Civil Statutes, as it
relates to the power of the Commissioners Court of Harris County
to authorize the executionsof a deed by the County to relinquish,
without consideration, title to certain land to the successors in
title to the grantor thereof. The original grantor had donated
the land to Harris County in 1896 for a right-of-way in connection
with a road laid out by jury view in 1895, without the inclusion
of a reversionary clause benefiting the grantor.~
     The power of the County to sell or lease real estate is con-
tained in Article 1577, Vernon's Civil Statutes, and'is set out
below:

         "The Commissioners Court may, by an order to be
         entered on its minutes, appoint a Commissioner
         to sell and dispose~of any real estate of the
         county at public auction, and notice of said
         public auction shall be advertised at least
         twenty (20) days before the day of sale, by the
         officer, by having the notice thereof published
         in the English language once.a week for three
         (3) consecutive weeks preoeding such sale in a
         newspaper in the county in which the real estate
         is located and in the county which owns the real
         estate, if they are not the same   In its order
         appointing the Commissioner, the Commissioners
         Court may provide for reasonable compensation to
         be paid to the Commissioner for his services in
         connection with such sale   The deed of such
         Commissioner made in conformity to such order for


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Honorable Joe Resweber, page 2 (M-482)

         and in behalf of the county, duly acknowledged
         and proven and recorded, shall be sufficient to
         convey to the purchasers all the right, title
         and interest and estate which the county may
         have in and to the premises to be conveyed. Pro-
         vided, however, that where abandoned right-of-way
         property is no longer needed for highway or road
         purposes and the county decides to sell said right-
         of-way property, it shall be sold with the follow-
         ing priorities: (1) to abutting or adjoining
         landowners; (2) to the original grantors, his
         heirs or assigns of the original tract from whence
         said right-of-way was conveyed; or (3) at public
         auction as provided above; provided further, when-
         ever any real property, or interest therein, is
         owned by any county and is sold or exchanged or
         conveyed hereunder and is being used by a public
         utility or common carrier having the right of
         eminent domain for right-of-way and easement
         purposes, the sale, exchangei conveyance and
         surrender of possession herein provided for shall
         be and remain in all things subject to the right
         and continued use of such public utility or
         common carrier. Nothing contained in this Article
         shall authorize any Commissioners Court to dis-
         pose of any lands given, donated or granted to
         such county for the purpose of education in any
         other manner than shall be directed by law."
     Article 1581c, Vernon's Civil Statutes, was passed in 1947 and
has not been subsequently amended. It provides as follows:
          'Section 1. Commissioners Courts of the respective
          counties in this State are authorized and empowered
          to abandon and relinquish to the donors of such
          lands and their successors in the title, all lands
          donated to their county for county seats, court-
          houses and other county purposes, in all cases where
          such land has been abandoned and not used for more
          than forty (40) years for the purpose of such dona-
          tion, at the date of the order of such Court aban-
          doning and relinquishing the same, provided, however,
          that the provisions of this Act shall not apply
          unless it is shown that such donors and their suc-
          cessors in title have been in actual continuous,
          open, peaceful and adverse possession of such lands
          for a period of forty (40) years next preceding tbe
          order of such court abandoning.,relinquishing or
          conveying of such realty by the Commissioners Court.

                              -2303-
Sonorable Joe Resweber, page 3 (~-482)

         *Sec. 2. All orders and judgments of the respective
         Commissioners Courts in this State abandoning or
         conveying or relinquishing lands which had been
         conveyed to their respective counties for county
         seat, courthouse or other county purpose, hereto-
         fore made, in cases where such land has not been
         used for the purpose of its donation for more
         than forty (40) years, are hereby validated.
         "Sec. 3. Commissioners Courts of the respective
         counties in this State are authorized and empowered
         to reconvey and relinquish to the donors of such
         land, or to their successors in the title, all
         lands which were donated and conveyed to any such
         counties for county seat , county court, or other
         county purposes, which lands have been or may be
         abandoned and unused for such county purpose for
         a period of more than forty (40) years, as for
         failure of consideration of such grant to any such
         county."

     This statutory provision attempts to give the County Commissioners
authority to return to the grantor, his heirs or assigns, land donated
to the County for county road purposes , and which apparently has not
been used for more than forty (40) years. Such authority is in direct
contravention of the procedures for disposing of county land established
under Article 1577, above quoted, last amended in 1967, and the last
expression on this subject by the Legislature.
     Article 3, Section 52 of the Texas Constitution provides, in
part, as follows:
         "Sec. 52. The Legislature shall have no power to
         authorize any county, city, town or other political
         corporation or subdivision of the State to lend
         its credit or to grant public money or thing of
         value in aid of, or to any individual, assocration
         or corporation whatsoever , or to become a stock-
         holder in such corporation, association or company:
         .0.11 (Emphasis added.)
     This constitutional provision clearly bars the County Commis-
sioners from granting county'land, a thing of value to the county, to
the original grantor, his heirs or assigns, without following the pro-
cedures outlined in Article 1577. Dreeben v. Whitehurst, 68 S.W.Zd
1025 (Tex.Conun.App.1934); Attorney General's Opinion NO. O-2660 (1940).
     Article 6674q-9, Vernon's Civil Statutes, contained a provision
similar to Article 1581c, also calling for release of state land to
original grantors in special cases   This provision was held to be

                              - 2304-
Honorable Joe Resweber, page 4 (Mi482)

in conflict with the later amended provisions of Article 6673a, Vsr-
non's Civil Statutes, setting out a detailed procedure for disposi,,g
of state land no longer needed in the State Highway program. State
v. Easley, 404 S.W.2d 296 (Tex.Sup.Ct. 1966). Pursuant to the-
~asley case and the terms of Article 6673a, the State Highway De-
partment disposes of surplus right-of-way land by sale unless a
determination is made that the land is of no value.to the State of
Texas.
     For the‘reasons set out above, we axe of the Opinion that
Article 1581c, Vernon's Civil Statutes, is in conflict with Article
3, Section 52 of the Texas Constitution and Article 1577, Vernon@s
Civil Statutes, and is therefore void.
                               SUMMARY
          The provisions of Article 1581c, Vernon's Civil
     Statutes, are in conflict with Article 3, Section 52 of
     the Texas Constitution and Article 1577, Vernon's Civil
     Statutes, and therefore void.




Pre ared by James II.Quick
Ass P stant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Jim Swearingen
Rick Fisher
Gordon Cass
Bill Allen
MEADE F<-GRIFFIN
Staff Legal Assistant
BAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant

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