Mr. Arnold W. Oliver, P.E. Opinion No. JM-1170
Engineer-Director
State Department of Highways Re: Conveyance of land from the
and Public Transportation Texas Department of Corrections
Dewitt C. Greer State to the State Department of
Highway Building Highways and Public Transporta-
11th h Brazes tion (RQ-1951)
Austin, Texas 78701-2483
Dear Mr. Oliver:
You ask about the construction of a bill requiring the
Department of Corrections to transfer certain real property
to the Department of Highways and and Public Transportation
(hereinafter Highway Department). Specifically, you ask
e whether the bill authorized the Department of Corrections to
reserve the mineral rights in the land in question or
whether the bill required the department to transfer title
in fee simple.
In 1907 the legislature adopted Senate Bill 52, which
provides in part as follows:
SECTION 1. CONVEYANCE OF PROPERTY. (a)
On behalf of the state, the Texas Board of
Mental Health and Mental Retardation and the
Texas Department of Corrections shall sell to
the State Department of Highways and Public
Transportation the tracts of state-owned land
that are described by Section 2 of this Act
for a total amount of $120.6 million.
(b) Before August 31, 1980, the .State
Department of Highways and Public
Transportation shall purchase the land for a
total amount of $120.6 million. All the land
that qualifies for the expenditure of
constitutionally dedicated funds shall be
purchased from the constitutionally dedicated
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Mr. Arnold W. Oliver - Page 2 (JM-1170)
portion of the state highway fund.1 The
remainder shall be purchased from the
statutorily dedicated portion of the state
highway fund.
Acts 70th Leg., 2d C.S., ch. 2, 5 1, at 5 (footnote added).
You state that the Highway Department tendered the
purchase price to the Board of Mental Health and Mental
Retardation (hereinafter MHMR) and the Department of
Corrections. MHMR delivered a deed conveying, without
reservation, the property described in Senate Bill 52. The
Department of Corrections, however, refused to execute a
deed transferring title in fee simple and took the position
that the legislature did not intend that the Department of
Corrections transfer the mineral rights in the land in
question.
1. Article VIII, section l-a, Texas
Constitution provides that revenues fromofmotEr vehicle
registration fees and taxes on motor fuels and lubricants
shall be used only for certain specified purposes, most of
which have to do with financing of roads and highways.
Article VIII, section 7-b provides:
All revenues received from the federal
government as reimbursement for state
expenditures of funds that are themselves
dedicated for acquiring rights-of-way and
constructing, maintaining, and policing
public roadways are also constitutionally
dedicated and shall be used only for those
purposes.
Section l(b) of Senate Bill 52 restates the
constitutional requirement that the Highway Department may
expend funds from the sources described in those
constitutional provisions only for purposes set out in those
constitutional provisions. We note that section 4(b) of
Senate Bill 52 would allow the Highway Department to lease
back to TDC for $1 a year any portion of the land acquired
from TDC pursuant to Senate Bill 52. The constitutionality
of such a lease would be in question if the Highway
Department used funds subject to section 7-a or section 7-b
of article VIII to purchase the land from TDC.
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Mr. Arnold W. Oliver - Page 3 (JM-1170)
The legislature has exclusive control over the
disposition ;if state-owned land. See Lorino Y. Crawford
mna Co,, 175 S.W.Zd 410, 414 (Tex. 1943); Conlev
pauahters of the Renu&&.j& 156 S.W. 197, 200 (Y Pex. 1913;;
Attorney General Opinion JM-242 (1984). Senate Bill 52
states that the Department of Corrections I'shall sell to the
State Department of Highways and Public Transportation the
tracts of state-owned land" described in the bill. The bill
contains no language indicating that the Department of
Corrections should retain any interest in that land. In
grants of land, reservations of mineral interests must be by
clear language. sharp v. Fowler, 252 S.W.Zd 153 (Tex.
1952). In Texas, under both case law and statutory law, a
grant of land will be construed as a grant of an estate in
fee simple unless the conveyance is expressly limited. &
of Stamford King 144 S.W.2d 923 (Tex. Civ. APP. -
Eastland 1940: writ rLf#d) : Prop. Code § 5.001(a). We think
the courts would apply an analogous rule to construction of
a statute requiring one state agency to transfer real
property to another state agency. Therefore, we do not
think the Department of Corrections was authorized to
reserve to itself the mineral estate in the land described
in Senate Bill 52. See aeneraLly Attorney General opinion
WW-207 (1980) (statutes governing Department of Corrections
indicate legislative intent to regulate closely disposition
of land under control of Department of Corrections): G
Acts 1930, 41st Deg., 5th C.S., ch. 67, at 215 (authorizing
Department of Corrections to sell certain property, but
requiring that oil, gas, and mineral rights be reserved to
state): Attorney General Opinion JW-242 (statute permitting
board of regents "to transfer and convey" land under terms
and conditions deemed advisable by regents allowed regents
to convey easement or fee simple title).
Two arguments have been raised in support of TDC's
position. One is that the amount to be paid by the Highway
Department for the land held by TDC is the value the
General Land Office placed on the surface estate in that
land. However, there is no requirement that a state agency
receive "adequate compensationw when state property in its
custody is transferred to the custody of another state
agency. m Attorney General Opinion WW-1273 (1962) (land
acquired in name of county for construction of state
highways is state property regardless of fact that deed is
made out to county); we a180 Tex. Const. art. I, § 17
(requiring payment of adequate compensation when private
property is taken for public purposes).
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Mr. Arnold W. Oliver - Page 4 (JM-1170)
The other argument is that TDC's retention of the
mineral rights is required by the following Appropriations
Act rider:
No state lands shall be sold unless the
mineral rights are retained by the state,
unless impractical.
General Appropriations Act, Acts 1989, 71st Leg., ch. 1263,
art. V, 5 83; General Appropriations Act, Acts 1987, 70th
-g., 2d C.S., ch. 78, art. V, 5 79. Regardless of whether
TDC or the Highway Department holds title to the mineral
rights in the land in question, those rights will be held by
the state. Conseguently,,,that rider has no application to
your question.
SUMMARX
A bill requiring the Department of
Corrections to transfer certain real property
to the Department of Highways and Public
Transportation did not authorize the
Department of Corrections to reserve to
itself the mineral estate in that land.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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