Gerald   C. Mann                          AUBTIN    1,. Texan
xxx-m--x
   ATTO~NECY      GHNEHAL

                                                                   r-------
         Honorable   0. J. S. Ellingson                            \ Ovarruled      by.&%&
                                                                                         ~      ‘!
         General   Manager
                                                                                         7
         Texas Prison System
         Huntsville,  Texas

         Dear   Sir:                                       Opinion No. O-3629
                                                           Re: A&hor!.ty of the Texas
                                                                Prison Board to gran.t an
                                                                easement across   Texas
                                                                Prison, farm land to the
                                                                Texas         Highway   Department.

                We have your letter of recent date, wherein you request the oplniion
         of this department upon the io!llowing questinns which we quote:

                      *I. Does the Texas Prison Board have th.e right to
                 grant an easement across  Texas Prison farm ?.and .tc,the
                 Texas Highway Department?

                      “2. If not, would it be legal for them to set the fexxe
                 back and permit the wldenirzg of the highway withoui: grazzt-
                 ing an easement ?”

                 Accord&g    to your latter &a: Texas Hi,ghway Depsrtmen4: deaL;??s ;-iu
         immediately    widen and reconstruct     U. S. High-way No. 90 h”, Fn=t. Berd
         County, between the HarrE.s Couxxty Line and th.e cl,‘@ nf Rns,enbe:rg, !.n ac-
         cordance with the 1941 regular     federal, aid px’ogram.    That prw::ii,n nC Q;he
         highway between Sugarland and Richmond passes a.long the Imperial. Staf:r
         Farm property belonging to the Texas Prison System, and 8.35 ar:-es d
         additional right-of-way    will be requi,red for ‘the prupe:r design an.d PCIT~IL-
         struction of this highway, you stat,*.

                 The Texas Prison Board, of course, is a state agency with very Iim-
         ited powers.    It is a departmen” * of the state government      in the r.aZaire nf a
         quasi-corporation,     created and empPoy+&;by      the state fo:r the pirpr;;~e of       !
         carrying   out the duty of the state to incarcerate    and care for persons con.-
         victed of crime.     It is a companerit part of thhp,state., d,,kes    al.l of :I:!5pawe’x
         and authority by delegation from the state. See 37 Tex. Ju,?. 65.
Honorable   0. J. S. Elllngson.   Page   2, O-3629




       By Article 6166g, Vernon’s   Annotated Statutes, full control of the
prison system is placed by the Legislature     in the Texas Prison Board.
However,   such “control” is limited in the sense that the prison board
has no powers or duties except those which are expressly      set forth and
defined therein, and such additional powers as must necessarily      be
implied from the expressed    powers.   Edwards    County v. Jennings (Civ.
APP., 1895), 33 S. W. 585. Article    6166g reads as follows:

            “The Texas Prison Board, together with the manager
      hereinafter  provided for, shall be vested with the exclusive
      management    and control of the Prison System, and all prop-
      erties belonging thereto, subject only to the limitations   of
      this Act, and shall be responsible   for the management    of
      the affairs of the Prison System and for the proper care,
      treatment,  feeding, clothing and management    of the prison-
      ers confined therein.”

       The above quoted statute does not, of course,    confer upon the Texas
Prison Board any authority to grant the necessary     easement.   However,   we
direct your attention to Article 6715, Vernon’s Annotated Statutes, by which
we believe that the Legislature  has attempted to provide for the situation dis-
closed by your Letter. This Article   reads as follows:

            “No publi,c roads shall. be opened across     lands owned and
       used or for actual use by the State, educational,     eleemosynasy,
       or other public State inst:%tutions for public purposes    and not
       subject to sale under the general laws of the State, without the
       consent of the trustees  of said institution and the approval     of
       the Governor.    Roads heretofore     opened across   such lands may
       be closed by the authorities   i.n charge of any such lands when-
       ever they deem it necessary      to protect the interests  of the State,
       upon repayment to the county where the land i.s situated with
       eight per cent interest, the amoun,t actually paid out by sai.d
       County for the condemnation      of said land as shown by the records
       of the commissioners’    court.”

       Before determming      whether or not the above quoted Article    is applicable
to the situation you have set out, we must first determine      whether the use of the
word ““trustees” restricts    the Arti.cle to such institutions as are controlled  by
boards whose members       are specifically   designated by statute as “trustees.”

        A “trustee” is defined as ‘one trusted to keep or administer    something
. . . a person,  whether real or Juristic, to whom property  is legally  committed
    Honorable    0. J. S. Ellingson,    Page    3, O-3629




    in trust; one entrusted    with the property of another.”          Webster’s     New In-
    ternational  Dictionary    (Second Edition, Unabridged),          1938).

           A trust *in its simplist elements is a confidence reposed in one per-
    son, who is termed trustee,     for the benefit of another, who is called the
    cestui que trust, respe,cting property which is held by the trustee for the
    benefit of the cestui que trust.    It has also been defined as an obligation
    on a person to whom the legal title to property has been transferred        aris-
    ing out of a confidence reposed in him to apply the property faithfully and
    according   to such confidence,”     26 R. C. L., 1168, and cases cited.

            It is our opinion that the Texas Prison   Board qualifies    as a Board
    of Trustees    under the definitions we have set out above.      And we further
    believe, that it was not the Legislative   intent to restrict   the application
    of Article   6715 to such institutions as were controlled     by a board of trus-
    tees, specifically   so called.

            To so hold would be to restrict     the application  of that statute unduly,
    especially    in view of the fact that the state eleemosynary      institutions are
    controlled    and administered   by the Board of Control, whose members           are
    no where designated as trustees,       and that our educational     institutions are
    in general controlled     and administered    by board,s of regents    and boards
    of directors,    whose members     are designated as regents and directors
    respectively.     See also 42 Tex. Jur. 825, Section 8.

            It is, therefore,    the opinion of this department,   and you are so ad-
    vised, that the granting of an easement across         Texas Prison     farm lands
    to the Texas Highway Department          for highway purposes,    is a matter within
    the sound discretion       of the Texas Prison Board and the Governor       under the
    provisions     of Article   6715. In our opinion that Statute authorizes    such Board,
    with the approval      of the Governor,   to grant the necessary    easement.

            Our answer    to your   first   question    makes   it unnecessary     that we answer
    your   second.

            Trusting   that we have fully answered         your inquiry,   we are




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    ATTORNEY       GENERAL
    PM:ej                        Approved                  Peter   Maniscalco,     Assistant
                                   Opinion
                                 Corn   ittee
                                 By/%-t&
                                   Chairman
