                  HEA~~~ORNEY             GENERAL
                           OF-TEXAS

GROVER SRLLERS             AUSTIN ,~.T~xan
              ON
.~TT<,RNIEYGdcNEKAL



      Honorable Bascom Giles
      Commissioner
      General Land Office
      Austin 14, Texas
      Dear Mr. Giles:           Opinion No. O-5553
                                Re: Authority of the Governor and
                                     the Commissioner of the General
                                     Land Office to Issue patents on
                                     escheated permanent free school
                                     land.
             Reference is made to your   letter of April 1, 1944 which
      is as follows:
             "The School Land Board and the Commissioner of
          the General Land Office are offering certain es-
          cheated lands for sale at the general sale of school
          lands scheduled May 2nd of this year.
             "These lands are being offered under authority
          conferred by Chapter 60, Acts of the 3rd Called Ses-~
          sion of the 43rd Legislature, 1934, and the applica-
          ble provisions of House Bill 9, Acts of 1939. More
          than four years has elapsed since the lands escheated
          to the State.
             "Some question has been raised as to the author-
          ity of the Governor and the Commissioner of the Gen-
          eral Land Office to issue patents on escheated lands
          after they have been sold and fully paid for under
          the above law.
            "Will gou therefore kindly advise me if the
         Governor and the Commissioner have legal authority
         to issue patents on these lands after they are sold
         and fully paid for."
            We are in accord with your view that escheated permanent
     free school land is to be offered for sale by the School Land
     Board and the Commissioner of the General Land Office under the
     authority conferred by the provisions of Chapter 60. Acts of
     43x7 Legislature, Third Called Session, 1934, and the applicable
     provisions of House Bill 9, Acts of 1939.
Honorable Bascom Giles -- page 2            0 -5553


       Under the provlsions of Article 3272, Vernon's Annotated
Civil Statutes, escheat occurs and vests title In the State
immediately upon the death of the intestate without heirs. The
succeeding Article under Title 53, Vernon's Annotated Civil
Statutes prescribes the manner under which the State establishes
its title. Ellis v. State, 21 S.W. 66; Robinson v. State 87
s.w.    (2a)   297.

       Article 3286, Vernon's Annotated Civil Statutes provides
that if any person, as an heir, or devisee or legatee appears
after the death of the testator or intestate and claim any part'
of the money or property, he may file a petition against the
State ascerting such claim provided such suit is instituted with-
in four years after the date of the final judgment escheating
such property to the State, and not thereafter.
       You state in your letter that more than four years have
elapsed since the date final judgment was entered escheating
the land being offered for sale, and no such claimant has ap-
peared. We assume that the escheat proceedings In the District
Court were regular in all respects. These facts being true,
the State's title to the escheated land is now absolute. The
question remaining is "How may escheated permanent free school
lands be titled by the State of Texas?"
       In the case of Weideranclersv, State of Texas, 64 Texas
133, the Supreme Court in an opinion by Mr. Justice Stagton
said:


          "The constitution expressly confers upon the district
       courts jurisdiction of 'all suits in behalf of the state
       to recover penalties, forfeitures and escheats' (art.
       V, sec. 8, Const. ); but the same constitution declares
       that 'the legislature shall provide a method for de-
       termining what lands have been forfeited, and for giv-
       ing effect to escheats.' Const., art. XIII, sec. 1.
            * D . 0 . 0 .II
           11

       In carrying out the provisions of the Constitution, the
43ra Legislature, Third Called Session, 1934, enacted Chapter
60, now codified as Article 3281 in Vernon's Annotated Civil
Statutes, and which provides:
          "All lands heretofore or hereafter escheated
       to the State of Texas by provisions of this Title
       are hereby dedicated, appropriated andset apart to
       the Permanent Free School Fund of the State of Texas.
Honorable Bascom Giles -- page 3         0 -5553



    .   D   Any escheated permanent free school lands
            .   .



   may be sold by the Commissioner of the General Land
   Office for not less than one-tenth of the.purchase
   price in cash and the balance of said purchase price
   payable in nine equal annual installments, said
   deferred installments to bear interest at the rate
   of six (6) per cent per annum. Any lands SO sold
   shall be sold to the highest bidder as alaeother
   public free school lands but no escheated lands shall
   be sold at a price of less than Two Dollars and Fifty
   Cents ($2.50) per acre. All sales of escheated per-
   manent free school lands shall be with a reservation
   to the State of all the minerals in the land in
   favor of the Permanent Free School Fund. . . . .'
       Escheat has been defined by the Supreme Court of Texas
in the case of Hughes v. State, 41 Texas 10, as follows:
      "Title to land by escheat originated from and
   was a consequence of the feudal law, whereby, upon
   the failure of heirs of the person last seized, who
   may lawfully take the estate by succession, it fell
   back or reverted to the original grantor, his decend-
   ants, or successors. And, as under the general
   doctrine of tenures in the American States, the State
   occupies the place of the feudal lord by virtuesof
   its sovereignty, it is universally asserted that,
   when the-title to land fails for lack of heirs or
   devlsees, who may lawfully take, it reverts or es-
   cheats to the State as property to which it is en-
   titled."
       In this connection;we find the Supreme Court of Texas
in the case of Weideranders v. State, supra, holding:


      "The object of such a proceeding is not simply
   to have a decree declaring the escheat and vesting
   the title in the state; but by and through process,
   to be issued under the judgment, to divest not only
   the title of persons entitled to take the property
   of the deceased as his.heirs, if perchance any such
   there be, but also by a sale to divest the title of
   the state, and to start, and confer upon the purchaser,
   a new title deraigned directly from the sovereign of
   the soil."
       This holding of the Supreme Court of Texas was adopted
verbatim by the Supreme Court of the United States in the Texas
                                                           .   .




Honorable Bascom Giles -- page 4         o-5553



case of Hamilton v. Brown, 161 U.S, 256, 40 Law Edition 697,
and followed by the Texas Court of Civil Appeals in the case
of Unknown Heirs of Buchanan v. Creighton.-- McShane 011 Company,
176 S.W. 914.
       The Supreme Court in the case of Hughes v. State, supra,
with respect to the disposition of escheated land said:


                 The survey and patent of the land to
   de la Tuile severed it from the mass of the public
   domain, and though it may be reinvested in the State
   again as escheated property, it will not become
   thereby subject to location or pre-emption until
   this has been done, if then, without direct leglsla-
   tion subjecting it to such appropriation. . . . ..


       It might be well to note that the decisions of the
Courts quoted above followed and referred to the old Statute
which provided that e&heated lana'be sold by the sheriff by
order of the Court declaring the escheat, the sheriff failing,
then by the Attorney General. That the Legislature, under the
Constitution, Is to give effect to escheats, and is authorized
to dedicate, appropriate and set apart unsold land belonging
to the State to the Permanent Free School'Fund, is well s~ettled.
Chapter 60, supra, amended the escheat law changing the met~hcd
of sale, and dedicated, appropriated and set apart escheated
land to the Permanent Free School Fund. It ~1snow soid subject
to the reservations in the Amendatory Act that are not in con-
flict with the provisions of House Bill 9+
       In connection with the titling of land owned by the    '-
State, we find a discussion of this subject in an opinion wrlt-
ten by Mr. Justice Gaines in the case of Taylor v. Hall, 71
Texas 213, In which he said:
       !I
        * 0 a 0 .
       8,
        D . o . 0 Since the passage of the act which'
    established the general land office and provided for
    issuing patents, no law has been passed which re-
    cognized any other method of extending titles from
    the State to those who acquired rights to specific
    portions of its public domain.   0 . . . 0
       1,
        . 0 . D . To the rule of authorizing patents
    to issue in case of legislative confirmations ,or
i




    Honorable Bascom Giles -- page 5           o-5553



        relinquishment there were a few exceptions at a very
        early day. But we think the statutes above refer-
        red to are sufficient to indicate a well defined
        policy on the part of the Legislature to provide for
        patents to all lands, the title to which were con-
        firmed by or emanated directly from the Republic
        orState.   . . . . .
           11
            . . . . .II
           Insofar as we can determine, the policy approved and
    followed by Judge Gaines has remained and is the policy of the
    State of Texas at this time. The escheated lands having reverted
    to the State and all previous titles or claims to It having
    been nullified by the escheat proceedings, we think title to
    thls land is to begin anew direct from the sovereign of the
    soil. You are accordingly advised that it is the opinion of
    this office that the Governor and the Commissioner of the Gen-
    eral Land Office have legal authority to issue patents on es-
    cheated permanent free school lands after it has been sold
    and the purchase price has been paid In full.
                                         Yours very truly
                                   ATTORNEY GENERAL OF TEXAS
                                         By s/Jack W. Rotiland
                                              Jack VI Rowland
                                              Assistant
    JwR/pw/wc
    APPROVED APR 25, 1944
    s/Gee. P Blackburn
    (Acting)'ATTORNEY GENERAL OF TEXAS
    Approved Opinion Committee By s/BWB Chairman
