Untitled Texas Attorney General Opinion

Mr. William J. Burke Executive Director, " 'I State Boardof Control .~ Austin, Texas '; Opinion Rdr.~~-60 Re: The authority of the State Board of Co&sol to sell or lease State owned tide- lands in Clear Creek, Harris County.;Texas, for the pur- ., pose of constructingpiers, boat docks, fishing cabins, residences,etc. Dear Mr. Burke: ., In a:recent opinion request of this office, you, in effect, state the fc~l'lowlng: :~ . In the 1930's Mr. James~H. Charleston'builta fishing wharf and pier consisting,,@a;vood frame building resting on wooden piles, on submerged,landsIn Clear Creek,nesr its mouth in Galveston Bay, Harris County, Texas'.This land is regarded as State land. You then ask whether the State Board of Control has authority to execute Iea~s$s. or -authorityto sell such lands as above described under the provisionsof Articles 665 and 666a, Vernon's ~CivilStatutes, or under any,other acts of the Legislature. ~.;,... ,~ Article 666a'providesthat the 'StateBoard .ofControl may lease for agriculturalor 'commercialpur$oses all public grounds'underthe cha'rgeand contro.1of the State Board of Control. Article 665 provides that the State Board of Control shall have charge and control of all public buildings, grounds, Mr. William J. Burke, Page 2 (~~-60) and property of the State. A search of Vernon'8 Clvll Statute8 fail8 to reveal any other Legislativeacts which might pertain to the leasing or sale by the State Board of Control of lands such as those described above. It is said in 38'Tex. Jur., Section 19, State of Texas, page 836: "Power la respect to State property rights 18 vested In the Legislature,and the Legls- lature alone may exercise the power necessary to the enjoyment and protection of those right8 by the enactment of statutes for that purpose." Thu8, authority for the dispo8itiODor control of State 'propertyor lands must emanate from,elther the Texas Constitutionor the Legislature.The Constitutionof Texas does not authorlee the State Board of Control to dispose of tidelands.And it is sald.ln Lorlno v. Crawford Packin Com- 142 Tex. 51, 175 S.W. 2a 410 at page56,- Tc$x~, -&--- i%P 26 by Justice Sharp, regarding legislatived&sposition of tidelands or lands under navigable waters: "The rule is firmly establishedin this State that land under navigable water8 is, withdrawn from the general provisions of the statutes conferringupon the Laud Commissioner the right to contract for the sale or lease thereof, and passes by grant or sale only *hen SO expressly provided for by the soverelnn auth- and there Is no presumptionthat the authorieedsuch grant or sale."(Emphasis See City of Galveston'v.Mann, 135 Tex. 319, 143 S.W. 2d 1028; State v. BradforT 121 Tex. 515, 50 S.W. 2d 1065; Landry v. BobisLm Tex: 295, 219 S.W. 819; DeMeritt v. Robison, 102 Tex. 358, 116 S.W. 796; Hynes v. Packard, 92- Tex.44, 45 s.W. 562; City of Galveston v. Menard Tex. 349; Diversion Lake Club v. Heath 1 b T 12 gA2:.W. 2d 441; Rosborough v. PI&on, 12 Tex: Cfv. izp. 1:; 34 S.W. ;/';;Heard v. Town of Refuglo, 129 Tex. 349, 103'S.W. 2d Mr. William J. Burke, Page 3 &w-60) Since the days of the Republic, the courtsof this State have clearly and emphaticallyheld that leases, grants or sales of tidelands or lands underlying navigablewaters are authorized and valid only'when clearly and expressly provided for by the sovereign authority.We are therefore of the opinion that the authorizationto the State Board of Control to lease public grounds belonging to the State of Texas under Article 666a is not such a clear and ex- press authorizationby the sovexgn as will permit the State Board of Control to lease or sell lands covered or periodicallyinundated by tidal waters. 'Iftidelands or submerged lands were to be included in Article 666a, the act would have had to describe the lands as such. We must therefore advise you that the State Board of Control has no authority to lease or sell the lands periodicallyinundated by tidal waters in Clear Creek, Harris County, Texas, referred to in your opinion request. SUMMFLRY The State Board of Control has no authority to lease or sell lands periodicallyinundated by tidal waters in Clear Creek, Harris County, Texas. Yours,very truly, WILL WILSON ~AttorneyGeneral of Texas APPROVED: OPINION COMMITTEE H. Grady Chandler Chairman JMR:bk