The opinion
Gerald C. Mann AUBTIN 1,. Texan
xxx-m--x
ATTO~NECY GHNEHAL
r-------
Honorable 0. J. S. Ellingson \ Ovarruled by.&%&
~ ‘!
General Manager
7
Texas Prison System
Huntsville, Texas
Dear Sir: Opinion No. O-3629
Re: A&hor!.ty of the Texas
Prison Board to gran.t an
easement across Texas
Prison, farm land to the
Texas Highway Department.
We have your letter of recent date, wherein you request the oplniion
of this department upon the io!llowing questinns which we quote:
*I. Does the Texas Prison Board have th.e right to
grant an easement across Texas Prison farm ?.and .tc,the
Texas Highway Department?
“2. If not, would it be legal for them to set the fexxe
back and permit the wldenirzg of the highway withoui: grazzt-
ing an easement ?”
Accord&g to your latter &a: Texas Hi,ghway Depsrtmen4: deaL;??s ;-iu
immediately widen and reconstruct U. S. High-way No. 90 h”, Fn=t. Berd
County, between the HarrE.s Couxxty Line and th.e cl,‘@ nf Rns,enbe:rg, !.n ac-
cordance with the 1941 regular federal, aid px’ogram. That prw::ii,n nC Q;he
highway between Sugarland and Richmond passes a.long the Imperial. Staf:r
Farm property belonging to the Texas Prison System, and 8.35 ar:-es d
additional right-of-way will be requi,red for ‘the prupe:r design an.d PCIT~IL-
struction of this highway, you stat,*.
The Texas Prison Board, of course, is a state agency with very Iim-
ited powers. It is a departmen” * of the state government in the r.aZaire nf a
quasi-corporation, created and empPoy+&;by the state fo:r the pirpr;;~e of !
carrying out the duty of the state to incarcerate and care for persons con.-
victed of crime. It is a companerit part of thhp,state., d,,kes al.l of :I:!5pawe’x
and authority by delegation from the state. See 37 Tex. Ju,?. 65.
Honorable 0. J. S. Elllngson. Page 2, O-3629
By Article 6166g, Vernon’s Annotated Statutes, full control of the
prison system is placed by the Legislature in the Texas Prison Board.
However, such “control” is limited in the sense that the prison board
has no powers or duties except those which are expressly set forth and
defined therein, and such additional powers as must necessarily be
implied from the expressed powers. Edwards County v. Jennings (Civ.
APP., 1895), 33 S. W. 585. Article 6166g reads as follows:
“The Texas Prison Board, together with the manager
hereinafter provided for, shall be vested with the exclusive
management and control of the Prison System, and all prop-
erties belonging thereto, subject only to the limitations of
this Act, and shall be responsible for the management of
the affairs of the Prison System and for the proper care,
treatment, feeding, clothing and management of the prison-
ers confined therein.”
The above quoted statute does not, of course, confer upon the Texas
Prison Board any authority to grant the necessary easement. However, we
direct your attention to Article 6715, Vernon’s Annotated Statutes, by which
we believe that the Legislature has attempted to provide for the situation dis-
closed by your Letter. This Article reads as follows:
“No publi,c roads shall. be opened across lands owned and
used or for actual use by the State, educational, eleemosynasy,
or other public State inst:%tutions for public purposes and not
subject to sale under the general laws of the State, without the
consent of the trustees of said institution and the approval of
the Governor. Roads heretofore opened across such lands may
be closed by the authorities i.n charge of any such lands when-
ever they deem it necessary to protect the interests of the State,
upon repayment to the county where the land i.s situated with
eight per cent interest, the amoun,t actually paid out by sai.d
County for the condemnation of said land as shown by the records
of the commissioners’ court.”
Before determming whether or not the above quoted Article is applicable
to the situation you have set out, we must first determine whether the use of the
word ““trustees” restricts the Arti.cle to such institutions as are controlled by
boards whose members are specifically designated by statute as “trustees.”
A “trustee” is defined as ‘one trusted to keep or administer something
. . . a person, whether real or Juristic, to whom property is legally committed
Honorable 0. J. S. Ellingson, Page 3, O-3629
in trust; one entrusted with the property of another.” Webster’s New In-
ternational Dictionary (Second Edition, Unabridged), 1938).
A trust *in its simplist elements is a confidence reposed in one per-
son, who is termed trustee, for the benefit of another, who is called the
cestui que trust, respe,cting property which is held by the trustee for the
benefit of the cestui que trust. It has also been defined as an obligation
on a person to whom the legal title to property has been transferred aris-
ing out of a confidence reposed in him to apply the property faithfully and
according to such confidence,” 26 R. C. L., 1168, and cases cited.
It is our opinion that the Texas Prison Board qualifies as a Board
of Trustees under the definitions we have set out above. And we further
believe, that it was not the Legislative intent to restrict the application
of Article 6715 to such institutions as were controlled by a board of trus-
tees, specifically so called.
To so hold would be to restrict the application of that statute unduly,
especially in view of the fact that the state eleemosynary institutions are
controlled and administered by the Board of Control, whose members are
no where designated as trustees, and that our educational institutions are
in general controlled and administered by board,s of regents and boards
of directors, whose members are designated as regents and directors
respectively. See also 42 Tex. Jur. 825, Section 8.
It is, therefore, the opinion of this department, and you are so ad-
vised, that the granting of an easement across Texas Prison farm lands
to the Texas Highway Department for highway purposes, is a matter within
the sound discretion of the Texas Prison Board and the Governor under the
provisions of Article 6715. In our opinion that Statute authorizes such Board,
with the approval of the Governor, to grant the necessary easement.
Our answer to your first question makes it unnecessary that we answer
your second.
Trusting that we have fully answered your inquiry, we are
fggTs~l ,;;
ATTORNEY GENERAL
PM:ej Approved Peter Maniscalco, Assistant
Opinion
Corn ittee
By/%-t&
Chairman