OFFICE OF THE ATTORNEY QENERAL OF TEXAS
AUSTIN
GROVERSELLERS
ATxmNlrOENERAL
Honorable T. M. Trimble, First Assistant
State Superintendent of- Public Instruction
Austin 11, Texas
Dear Sir: Opinion No, O-6675
Rsr Mineral leasing of certain
school land In Rusk Oounty,
Texas
Your request for opinion has been r
considerad by this Department.
lows 1
“Attached is a letter from
& Wharton of Houston, Texas, c
which we would like to aybm
ation and opinion, l l *
We quote from the abov otter as follows:
your reply of
rd iffecting this land.
@lcle 2676, Rsvised Statutes)
trol of public free sohools and
ch.countp are vested in the coun-
have management anb control of public aohools and
publio school groundsj and the grounds PUrChaBed
for such a district shall be under the aontrol of
the district trustees. (Art. 2754). All conveyances
for the benefit of the public schools shall vest the
. .
Honorable T. W. Trimble, pa.gr 2
property ln the oounty sohool trustees (Art. 2756).
Trustees of any common school dlstrlot on the order of
the county trustees may sell anj property belonging to
the school dlstrlat (Art. 27 3). Countr Sohool Trustees
constitute a body oorporate 7Art. 2683), a8 do the oommon
school district trustees (Art. 2748). Artlole 5400a au-
thorizes political subdivlslone, which are bodies oor-
porate, to lease lend for mineral development; and the
article sets out the procedure for leaalng.
-3 “Article 2676 ln vesting oontrol of school lands ln
the oounty board appears to oonfllot with Articles 2749
and 2754, which vest control ln the board of trustees
of common rohool dlstrlot. In view of the unoertalntp
resulting from such apparent oonfliots, WI should ap-
preolate your aubmlttFng the following questions to the
Attorney General.
“1. Under the above state of faota 3x1what
body is the title to the land ln quentlon?
‘2. ;;gn;hat body should a mlnapal lease be
“3. If It 1s determined that the Trustees of
the CommonSchool Dlstrlijt ore ths proper
parties to execute the lease, should the
procedure set out in Article 2753 relat-
inn to sales be followed? IS so. how
sh&ld auoh artlole be integrate& with
Artlole 54OOA7”
The general management and aontrol of the publia iree
school& and high schools in each county of this State, unless other-
wise provided by law, are veatsd in the oounty school trustees,
Artlole 2676, Vernonfe Annotated Texas Civil Statutes.
Artlole 2681, Vernon’s Annotated Texas 01~11 Statutes,
provides, ln part, as follower
“The county school trustee8 are authorited to ex-
ercise the authority heretofore vested in the cormlssloners~
court with respect to rubdlvldlng the county into school
dlstrkcts, and making changes in school distrlot lines.
. l l
Article 2683, Vernon’s Annotated Texas Civil Statutes,
reads as follows:
Honorable T. H. Trlmble, page 3
“The county sohool trustees of eaoh oounty shall
aonstltute a body oorporate, by the name of the oounty eahool
trustees of County, State of TBXQLI,and In
that name may aoquire and hold real and personal prop-
erty, sue and be sued, and may reaeive bequests and do-
nations or other moneys or funds coming legally into
their hands, and may perform other aotr for the pro-
motion of education ln the county. The tit10 to any
school property belonging to the oounty, the title of
,whlah has heretofore been vested ln the county judge and
his successors in office, or any school property that may
be acquired, shall vest in the county school trustees and
their successors ln offlao for public free school purposes.”
Article 2748, Vernon’s Annotated Texas Civil Statute0 (ap-
plicable to common school districts) reads, in part, as.foilovrt
“Said trustee6 shall be a body politic and oor-
porate ln law,, and shall be known by and under the title
.and name of dlstrIot.trurtees of district number .*****,
and county of . , . . . . , State of Texas! and as such may
contract and be contracted with, sue and be sued, plead
aor be impleaded, In any aourt of this State of proper
jurisdiction, and may receive any gift, grant, donation
or devise made for the use of the pub110 schools of the
dlstrlot. . . .”
Artlole 2749, Vernon’e Annotated Texas 01~11 Statutes (ap-
plicable to oommon school distrlots) reada, In part, an follovst
“Said trustees shell hove the management and control
of the pub110 schools and pub110 school grounds: and they
shall detormlne how many schools shall be maintained In
their school district, and at what poInta they shall. be
loaatedj . . .”
Artlole 2753, Vernon’s Annotated Texas 01~11 Statutes (ap-
plicable to oommon rchool districts--see R, R, Spencer & Co. v.
Brown, 198, 8. W. 1179) reads as followst
“The trustees of any school district, upon the or-
der of the aounty trustees presorlbIng the terms there-
of, when deemed advisable, mry make sale of any prop-
erty belonging to said school district, and apply~the
proceeda to the purchase of necessary grounds, or to
the building or repalrlng of schoolhouses, or place
the proceeds to the credit of the available school fund
of the district. ‘Id.”
Honorable 91. M. Trlmble, page 4
Article 2754, Vernon’s Annotated Texas Civil Statutes,
reads as follower
“All sohool houses erected,,grounde purohased or
leased for a school diatrlct, and all other property
belonging thereto, shall be under the control of the
district trustees of such district. Acts 1905, p. 263.”
Article 2756, Vernon@s Annotated Texas Civil Statutes,
reads as followst
“All conveyances, deviaea, and bequests of prop-
erty for the benefit of the public sohools made by
any one for any county, city or town, or district,
shall, when not otherwise dirooted by the grantor or
deviser, vest said property in the county school
trusteea, or the board of school trueteea of the
city OP town, or the trustees of the school dla-
trict, or their nuccezaors in office, as the trustees
for those to be benefited thereby, and the came, when not
otherwise directed shall be administered by said offi-
oera under such rule8 as the State Superintendent may
88 tablish. Id. ”
In 1919, this Department in opinion Ao. 1986, written by
Honorable John W. Maxwell, Assistant Attorney General, addressed to
the Speaker and Members of tbe House of Representatives of Texas,
-recorded on pagea 512, 513, 514 and 515, Report of the Attorney
General of Texas for 1918-1920, among other things construed Arti-
ale 2846 of the Revised Civil Statutes of 1911. (Article 2846,
Rev. Clv. St. of 1911 end the present Article 2753, V. A. C. S.,
are identical with the exception that said Artlole 2846 of 1911
authorized the sale of school property upon the order of the
Commissioners’ Court while Article 2753, V. A. C. 8. authorizes
-)salee of school property upon order of the county trustees,) Thle
opinion held that the district trustees were authorized to execute
an 011 and gaas lease.on school land subject to the approval of the
Commisalonere”Court or county echo01 trusteee, dependent on whloh
body wae the proper authority to approve 6ame. The opinion pointed
out at that time there was doubt a8 to which body should approve
the rals or lease and rsaommended that the Leglalature olear up
the question by the enactment of appropriate legislation. The
Legielature has since enaoted Artlole 2753, V. A. 0. S., quoted
hereinabove in thin opinion. He enolore herewith a oopy of
opinion MO. 1986 for your lnformatlon,
Sinae the rendition of opinion 80. 1986, and since the
enactment of Article 2753, V. A. C. S., the 45th Leglrlature OS Texas
Honorable T. M. Trlmble, page 5
on May 5, 1937, enacted House Bill 861, (now oodlfied ~8 Article
5400a, Vernon18 Annotated Texas Civil Statutes) which House BI11
is a comprehensive act providing a definite and certain method of
procedure of making 011 and gas leases by political subdivisions
of Texas. Said House Bill 861 reads as follows;
9 “AUTHORIZINOPOLITICAL SUBDIVISIONSTO LEfiSE LANDS
FOR MINSRALDEVELOPMENT.
“Ii. B. No. 86117 Chapter 279.
“An Act authorizing political subdivlaions of thb
State of Texas to lease lands ovned by such
subdivisions for mineral development purposes
and prescribing the method and manner of mak-
ing such leases, and declaring an emergenoy.
“Be it enacted by the Legislature of the State of
Texas I
‘Section 1. PolItIoal subdIvIsions whioh are bodies
corporate with recognized and defined areas, are hereby
authorized to.leose for mineral development purposea any
and all land8 which may be owned by any such political
subdivision.
3 “Sec. 2. The right tb lease such lands shall be
exerolsed by the governing board, the commission or
commissioners of 8UOh politic81 subdivision which are
by law constituted with the management, oontrol, and
supervision of 8uch subdivision, and when In the dls-
oretlon of suoh governing body they shall determine
that It is advisable to make 8 lease of any such lends
belonging to such district or subdlvlslon, suoh govern-
ing body shall give notice of Its intention to lea86
such lands, describing came, by publioation of such
-notIoe In some newspaper published In the county, hav-
lng e general circulation therein, once a week for a
perlod’of three (3) consecutive weeks, designating
the time and place after suoh publication where such
governing body will receive and coneldtir bid8 for suoh
mineral leases as such gove,rming body may determine to make.
On the date specified In said notice, such governing
board or body ehall receive and consider any and all
bids submitted for the leasing of said lands or any
portions thereof whioh are advertised for leasing, and
In the dlaoretlon of 8UOh governing body shall ew8rd
Honorable T. M. Trlmble, page 6
-+the lease to the hlgheat And best bidder submitting a
bid therefor, provided that if In the judgment of such
governing body the bids auhmltted do hot represent the
fair value of such leaoes, euoh governing body In
their dlnoretion may rojoct same And Again Give notice
And oall for Additional bids, but no lease8 shall In
Any event be made except upon public hearing And oon-
aideration of said bids And after the notioe at) here-
In provided.
“Sec. 2A. Provided that all such leaaee may be
granted by pub110 auotion and that no leases, shall be
executed in Any case except and unless the lessor
-shall retain At least one-eighth royalty, provided
further that In no Oa8e shall the primary term of
aaid lease be for more than A period of ten (10)
years from the date of execution And approval thereof,
“300, 3, The fact that political subdlvialons of
the State have lands owned, held, and used for public
purpoaee but which purposes ~~111not be hindered or
Interfered with by the development of said landa for
mineral purposes, and thAt,ao~e of nald land8 have
pos8ibilities of mineral8 therein And that development
of said lands for mineral purpoees Is necessary in or-
der to conserve said mineral estate and prevent the
108s thereof, oreate an emergency and an Imperative
public necessity that the Constitutional Rule requlr-
lng bill8 to be read on three several days In each
House be suspended And 8AId Rule Is hereby auepended,
And thI8 Act shall take effect and be in force from
And After it8 passage, and It is 80 enacted.
n OTE,--Ii. B, No. 861 passed the BOUQB, Maroh 30,
1937, t p & vote of 113 y%aa, 0 n&yet p88sOd the Senate,
with Amendments, April 29, 1937, by a vote of 22 yeas,
6 nays; House concurred In Senate amendmenta, April 30,
1937, by a vote of 132 yeaa, 0 riaysd
‘Approved &y 5, 1937.
“Effeotive May 5. 1937.”
It is a well-settled prinoiple of law that where the Leg-
islature prescribe8 A definite , certain method of’ procedure for a
-polItIoal subdivision to follo’w, other.methods, by Implication of
law, are excluded. See the following Authorities;
Fbatar v. city Ol t:o.co, 255 3. w. 1104
CItIEolls v. cf.tyQf TWIQll, 14 3. u. 1003
e?cIr.
Brytm lf. Sm~lt~wP~,
5 Tsx. l4lB
Op;ninZcmBo. O-4270 of thla Cepxrt~mmt, mmd&rmd cm Jcmuary 6,
1342, cwnatrum Article 543Dn, V. A. C. 8.. and haltie tImt the Cwm-
mIsalonora~Coilrt of Janpm Caxkty.In mkln:: an ail and gx3 lcnne"orl
;ougtyCncl~ool land, nunt cz::zlg vlth the provioions of Article TWOa,
Wu cnoloom hemuith a copy of mid ot&nZbn for pour fn-
&u?;t&l~*
It la walbm3ttlad law in Foxns that tha ordinrlryfam
-+ ;,‘,y 011 and ~6x3 lmse 1s 62 831~ or omvcpmm .of a.n lntormst In
LT.’ . 31 Tcms Juntsprutlcnce, Xm. 39, 01 CrG~,py. 574, 575 end
576.
It la dlaa a voltertnbllehod rule OS statutory oonstructltm
-thnt at~tutoar IO *pzxrl mtorla’ 8houl.d b:3 aonotrr;cd to~othor nnd where
om statute dm1~ with a subjmt In ~onm%l tomm, uad ono3mr doale
with B hart of the emim aubjoot ln a txcm dotcLiad wag, tEirJtvb
should bo kmxmIzed if poaslblo: but SS there la (‘~19 conflict, the
lnttcr will pmvoll, rog~tiI@m OS vhsthar it VOQ prmscd prior to
tha gmnrzl otfituto# unlona It ap,;x+ara tbzt tho &q$alLatur43 lntcncl-
sd t.9 m.!m the gmm~3.l act cvntroll2ng. Wtherlmd Stntuto cwn-
rtruotion, 326 Ldltlon,Ilalrsck, Vol. 2, pqm 541, 542 end “ 5;%3.
that whomve~ the Lagialaturo
On the,pr6err~ptIan 0tmcta a
prnvia~on it baa sn mind tbo groviou3 atatutoe rolzting to ths onme
8UbjQCt tr.?ttoP,it is hold %I3 th0 Sb3GV33 Of 4LXly%fl'PM3~ l?Qpeal OC
anenkmnt tharoin, the nww gm~loion was cnxotad In accord with the
legislntlvb pollay mbodiotl in thoseprtor statutes and they ehauld
all be cozmtmod to;;;othor. P~oviatona 3.n anact vh f.ch am mltted
in unothor act re3dtIng to the ems eubjaot mrrttor will be applied
in a prvcoodlng u&m tho otheo cot when nQt lnoonalatent with ltr,
p~o3QB. Prior t+tatutoa relating to the omm aubJect Dntter are
to bo compnmd with th,e nov p~wvialmt and If pasakbleby rcnrrwmblo
canatzuctian, both ama to ba so conatru~d that offs?& is glvcn tQ
cyvcry provision of 60ch. Outhoplond Otntutory Conotruotlenl 3rd
rk31t10n, Xwmcks, Vol. 2, ptspe 530 Qlld 531.
we call your attslltion to tne at that said House Bill
861 (ootW%d as Art. 5i4OorO.V. A. C. dotasnot contain any x-e-,,
poallng olauae. Ue are tharoSoro lncllmd to the vl0v that the
safe conutructlon 1s to tallow Articla 54000, V. A. C. 3. and get 4t
3. 10 m?.awerto your t~hfa%l
quebtion, it $3 OUDoptilm tlmt
if the commn ucJwol dbtrtot in IMW t,o hwo tits nuporior tltlo to
the lnnd (e mttw vo do not paoe on hwe) a tinoml losrse can bo