The opinion
November 9, 1990
Honorable Garry Mauro Opinion No. JM-1242
Commissioner
General band Office Re: Constitutionality of delega-
Stephen F. Austin Bldg. tion of authority to General 1700
N. Congress Ave. band Office in article 5414a-2,
Austin, Texas 78701 V.T.C.S
state-o~e~la~~%E p~ac~~%~ Of
in
the permanent school fund '
uexchangeOO for a tract to E
patented out under the bill's
provisions (RQ-2059)
Dear Commissioner Mauro:
you ask about the constitutionality and scope of the
authority of the General Land Office under article 5414a-2,
V.T.C.S. Acts 1989, 71st beg., ch. 725, at 3276.
Article 5414a-2 provides for the issuance by the
General band Office of patents to certain state permanent
school fund lands to persons who would have met the reguire-
ments for obtaining such patents under the now expired
provisions of article VII, section 4A, of the Texas Consti-
tution, except that their filing of the documents required
under the latter provisions was not timely.
Article VII, section 4A, which was adopted November 3,
1981, provided for the issuance of a patent to a tract of
permanent school fund land by the commissioner of the
General Land Office to a person who had nheld the land under
color of title, the chain of which dates from at least as
early as January 1, 1932," if there had been a recorded deed
to the person or his predecessors on file for 50 years
preceding November 15, 1981, and if the person or his
predecessors had paid taxes on the land for such 50 year
period. Id. 5 4A(a). See aenerally Attorney General
Opinions JN-907 (1988); JN-364 (1985). Subsection (d) of
section 4A required the applicant for the patent to submit
the necessary documents to the School Land Board within five
years of the effective date of the section. Section 4A
expired January 1, 1990. Id. § aA(
p. 6611
Honorable Garry Mauro - Page 2 (JM-1242)
Article 5414a-2 attempts, in effect, to extend the time
within which persons may obtain patents to permanent school
fund land under the now expired provisions of article VII,
section 4A. Article 5414a-2 took effect September 1, 1989,
and expires on September 1, 1991. LL 55 7, 8.
Clearly, if amendment of the constitution was necessary
in order to authorize the General band Office to issue the
patents which were the subject of article VII, section 4A,
the legislature cannot, once the deadline for obtaining a
patent under the amendment has passed and the amendment has
expired, extend by means of a statute the time during which
such patents may be obtained, unless other provisions of the
statute overcome the constitutional hurdles which necessi-
tated amendment of the constitution in the first place. The
analysis of article VII, section 4A, by the Legislative
Council at the time it was proposed states that "[t]he
attorney general of Texas advises that a constitutional
amendment is necessary to allow the state to pass good title
to these individuals without additional compensation,11
referencing Attorney General Opinion H-881 (1976). That
opinion had concluded that an act granting school fund land
to a city without compensation violated sections 2, 4, and 5
of article VII, which nrender the Legislature powerless to
make a free grant of school lands." a; &88 Texas Legisla-
tive Council, Analyses of Proposed Constidtutional Amend-
ments appearing on the November 3, 1981, Ballot, Information
Report No. 81-3, September 1981.
In addition to providing for the issuance of patents to
persons who would have, but for untimely filing, been
entitled to them under article VII, section 4A, article
5414a-2 -- evidently in an attempt to meet possible consti-
tutional objections -- provides in section 5 that the
applicant must pay $10 per acre to the commissioner of the
General band Office prior to the issuance of the patent to
the land, and in section 4 that the General band Office
shall select and place in the school fund, in "exchange" for
the land to be patented out, another tract of non-school
fund state-owned land of the same value. Section 6 author-
izes the General band Office to adopt rules to implement the
act.
You specifically question the constitutional adequacy
of the $10 per acre payment under section 5. You also ask
whether the General band Office may under section 4 select
another tract of state-owned land and place it in the school
land fund in qlexchangenfor the tract patented out over ~the
P. 6612
Honorable Garry Mauro - Page 3 (JM-1242)
objections of the state agency which possesses and occupies
the property.
Having reviewed the provisions of article 5414a-2,
together with other provisions of law regarding the treat-
ment of state-owned property, we conclude that the very lack
of legislative guidance in section 4 of the bill as to how
the General band Office is to select another tract of
state-owned land for placement in the school land fund in
"exchange" for the tract to be patented out renders this
attempted delegation of authority to the General band Office
constitutionally invalid. It is further our opinion that
the provisions of section 4 are so intertwined with the
remaining provisions of article 5414a-2 that the constitu-
tional infirmity of that portion of the bill renders the
entire bill invalid. We thus do not think it necessary to
reach your question as to the constitutional adequacy of the
$10 per acre payment under section 5. See aenerallv Attor-
ney General Opinion V-987 (1950) (act's provision for
purchase of abandoned river and stream beds by adjacent
property owners for $10 per acre valid, as the determination
of the adequacy of consideration for state-owned land is a
political matter exclusively within the province of the
legislature).
Section 4 of article 5414a-2 provides:
(a) On approval of an application, the
General Land Office shall identify a tract of
state-owned land not dedicated to the perma-
nent school fund that has the same value as
the tract for which a patent is requested and
shall exchange that state-owned tract for the
tract for which the patent is requested
according to procedures established for that
purpose by the land office.
(b) General band Office appraisers must
determine the value of each tract before an
exchange of land authorized by this Act may
occur.
(c) The School band Board must approve an
exchange of land authorized by this Act. Be-
fore approving an exchange, the board must
make a finding that no loss to the permanent
school fund will occur as a result of the
exchange.
p. 6613
Honorable Garry Nauro - Page 4 (JM-1242)
(d) An exchange of land authorized by
this Act is not subject to the requirements
of Section 31.159, Natural Resources Code.
In section 4, the legislature has attempted to delegate
broad authority to the land office to select a tract of
state-owned land for placement in the school land fund in
wexchangew for a tract of school land to be patented out to
a person qualifying under other provisions of the bill.
Although article II, section 1, of the Texas Constitution,
the "separation of powers'. provision, reposes all legisla-
tive power in the legislature, courts have upheld the power
of the legislature to delegate to state agencies the author-
ity to promulgate rules, regulations, and procedures neces-
sary to carry out their statutory duties. m Trann v.
Shell Oil Co, 198 S.W.2d 424, 438 (Tex. 1946); Housinq
Auth. of the Citv of Dallas v. Hiaainbotham, 143 S.W.Zd 79,
87 (Tex. 1940).
However, the legislature may not delegate to an agency
"arbitrary, uncontrolled, and unreviewable discretion."
State v. S ietv f r Friendless Children I 102 S.W.2d 318
(Tex. Civ. zip. - Aistin 1937), Q verruled on other arounds
111 S.W.2d 1075 (Tex. 1938). Generally, a legislative
delegation of authority must be accompanied by standards or
guidelines for the performance of the duties delegated in
order to be valid. B , sunrg; ed-Safe. Inc.
State, 752 S.W.Zd 638 (Tex. App. - Houston [lst Dist.] 198:;
no writ); In re Johnson, 554 S.W.Zd 775 (Tex. Civ. App. -
corpus Christi 1977), wies' writs of error resnectively
ref'd n.r.e and dism*d w.o.it 569 S.W.2d 882 (Tex. 1978) ;
Oxford v. Hill 558 S.W.2d 557 (Tex. Civ. App. - Austin
1977, writ ref#d); se also Attorney General Opinion JN-1134
(1990) (Texas Racing Act's attempted delegation of authority
to Texas Racing Commission to regulate racetracks that do
not allow pari-mutuel betting invalid for lack of stan-
dards).
The authority of the state to allocate state land to
its agencies and of state agencies to convey this property
to others is discussed in Attorneys General Opinion JM-242
(1984):
The disposition of state-owned land is a
matter over which the legislature has exclu-
sive control and the power of an agency of
the state to convey state property may be
exercised only under the legislature's
authorization. g&z Lorino v. Crawford
p. 6614
Honorable Garry Mauro - Page 5 (JM-1242)
wCo., 175 S.W.Zd 410, 414 (Tex. 1943);
C nlev v. Dauahters of the Renubl,.&,156 S.W.
1:7 200 (Tex. 1913); Attorney General
Opikons JW-149 (1984); WW-62 (1979); C-207
(1964): V-878 (1949). The terms of legisla-
tive authorization for the conveyance of land
must be strictly complied with. &R State vL
Ra;l;y, 404 S.W.Zd 296 (Tex. 1966): Wilson v<
fo n v of Calhoun, 489 S.W.2d 393 (Tex. Civ.
APP. - corpus Christi 1972, writ ref‘d
n.r.e.); Attorney General Opinions JM-149
(1984); WW-62.(1979). In Conlev v. Dauahters
of the ReDUbllq the Texas Supreme Court said
that the legislkure
has in general *the same rights and powers
in respect to property as an individual.
It may acquire property, real or personal,
by conveyance, will, or otherwise, and
hold or dispose of the same or apply it to
any purpose, public or private, as it sees
fit. The power of the state in respect to
its property rights is vested in the
Legislature, and the Legislature alone can
exercise the power necessary to the
enjoyment and protection of those rights,
by the enactment of statutes for that
purpose. . . .*
&& at 200.
The legislature has generally adopted a specific
statute granting a particular agency the use of a particular
tract of land: in addition, the grant of a right to reconvey
state land has been express, and subject to conditions.
See. e.a., V.T.C.S. art. 5547-205 (as added by Acts 1987,
70th beg., ch. 956, S 5.01, at 3217); Educ. Code .Q§65.39,
67.23, 67.51, 85.25; Attorney General Opinions WW-62 (1979);
H-1158 (1978). State agencies and universities have also
acquired land by eminent domain, through purchase, or by
donation, and some of these acquisitions are subject to
conditions as to use of the land imposed by statute or the
donor. See. a., Educ. Code 55 65.33, 65.36, 69.21. The
general la&&e of article 5414a-2 is, in our opinion,
insufficient to alter the terms of specific statutes grant-
ing land for the use of an agency, to lift conditions placed
on land acquired by state agencies, or to authorize any
state agency to transfer land to the General Land Office.
We find no standards in section 4 of article 5414a-2 or
p. 6615
Honorable Garry Mauro - Page 6 (JM-1242)
elsewhere in the bill to guide the General band Office in
its selection of a tract of state-owned land for placement
in the fund. Article 5414a-2 attempts to delegate to the
General band Office the legislature's full discretion as to
allocating land to state agencies and changing allocations
it has already made. Accordingly, it is unconstitutional as
violative of article II, section 1, of the Texas Constitu-
tion.
The lack of direction in article 5414a-2 as to the
manner in which the General Land Office is to select a tract
of state-owned land for placement in the permanent school
fund is particularly troubling in view of the provisions of
chapters 32 and 51 of the Natural Resources Code, under
which land in the permanent school fund may be sold to the
public by the General band Office commissioner and the
School band Hoard without further legislative approval. We
are unaware of any other provisions of,Texas law granting an
agency blanket authority to select and place state-owned
property in the permanent school fund, thus rendering it
subject to further disposition under chapters 32 and 51, or
to dispose of the property outright, without regard to the
use to which the property is being put by the agency pos-
sessing it. m Nat. Res. Code ch. 31, subch. E (as added
by Acts 1985, 69th Leg., ch. 102, § 2, at 544) (recommenda-
tions and reports regarding disposition of state-owned
property not being used or being substantially under-used).
We are not unmindful of the rule that in construing a
statute a court should indulge every possible presumption in
favor of its validity. TraDD v. Shell Oil Co - at
440. If a statute is susceptible of more than on; construc-
tion a court will give to it the one which sustains its
validity. State v. ShODDerS World 380 S.W.2d 107 (Tex.
1964). In an effort to so construe &ticle 5414a-2, we have
searched the Texas statutes for other provisions which
might, if read together with article 5414a-2, provide
sufficient limitations and guidance for the General band
Office in carrying out the directive of section 4 to "iden-
tify" another tract of state-owned land for nexchange' with
the tract to be patented out of the school fund. We are
unable however to find any such provisions.
Further, it is our opinion that the provisions of sec-
tion 4 of article 5414a-2, delegating to the General band
Office authority to select a tract of state-owned land for
placement in the permanent school fund, are so intermingled
with the remaining provisions of the bill -- evidently
having been placed there to avoid an unconstitutional
p. 6616
Honorable Garry Mauro - Page 7 (JM-1242)
depletion of the permanent school fund -- that they cannot
reasonably be severed from the remaining provisions of the
bill. See Swer v. Florw, 115 S.W.2d 604 (Tex. 1938).
If the delegation provisions fail because of constitutional
infirmity, as we have concluded they do, then the entire
bill likewise fails. We thus need not address your question
as to the adequacy of the $10 per acre compensation provided
for in section 5 of the bill.
SUMMARY
The delegation of authority to the General
Land Office made in article 5414a-2, V.T.C.S.,
to select a tract of state-owned land for
placement in the permanent school fund in
wexchangew for a tract to be patented out
under the provisions of the bill, is un-
constitutional. The provisions of the bill
unconstitutionally delegating such authority
are so intermingled with the remaining por-
tions of the bill that they cannot be severed.
The entire bill is thus unconstitutional.
JIM MATTOX
Attorney General of Texas
NARYKELLER
First Assistant Attorney General
Lou MCcREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEANLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIW
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 6617