OPINION
Lewie Byers and Forrest Williams appeal from the trial court’s order dismissing for want of jurisdiction their suit appealing two no vacancy rulings by the Commissioner of the General Land Office. In five issues, Appellants contend the amendment to the Texas Constitution upon which the trial court based its order violates their rights under other provisions of the Texas Constitution and under the Fifth and Fourteenth Amendments of the U.S. Constitution. We affirm.
Vacant Lands in Texas
When admitted to the Union, Texas retained ownership of all the vacant and unappropriated lands lying within its limits (the public domain). Tex. Nat. Res.Code Ann. § 11.011 (Vernon 2001). Unappropriated public domain is set apart and granted to the permanent school fund of the state. Tex. Educ.Code Ann. § 43.001(a)(2) (Vernon 2006). With certain exceptions not applicable here, vacant and unsurveyed public school land can be located, sold, and leased. Tex. Nat. Res.Code Ann. § 51.173(a) (Vernon Supp.2006). For a tract of land to be vacant, it must be unsurveyed public land, and it must not be in conflict on the ground with lands previously titled, awarded, or sold. Tex. Nat. Res.Code Ann. § 51.172(6)(A) (Vernon 2001);
Strong v. Sunray DX Oil Co.,
The current Commissioner, Jerry Patterson, reported that Texas is made up of 171.4 million acres and estimated that there are between 700,000 and 1.7 million acres of land in Texas which would fit the statutory definition of “vacancy.” A Joint Resolution Proposing a Constitutional Amendment Clearing Land Titles by Relinquishing and Releasing Any State Claim to Sovereign Ownership or Title to Interest in Certain Land: Hearing on S.J.R. 40, Before the Senate Comm, on Natural Resources, 79th Leg., R.S. (April 5, 2005) (Statement of Commissioner Jerry Patterson, General Land Office of Texas). These vacant and unsurveyed lands are for the most part narrow strips between old original surveys or take in land that is not actually covered by existing grants, patents, awards, or surveys. 3 Fred A. Lange, Texas Practice: Land Titles and Title Examination, § 100 (1961).
To purchase or lease a vacancy, a person must follow the procedures specified in the Natural Resources Code, beginning with filing an application. Tex. Nat. Res.Code Ann. § 51.176 (Vernon Supp.2006). When *520 a vacancy is alleged, it is necessary to protect the interests of three parties. Lange, supra, at § 233. The first party is the State, who owns these lands in trust for the public school children of Texas. The second is the discoverer of these possible state owned vacancies. The third is the landowner or good faith claimant who is in possession of the real property because he honestly believes he is the owner of it. Id. The Commissioner will decide whether a vacancy exists. Tex. Nat. Res. Code Ann. § 51.188 (Vernon Supp.2006). Prior to June 17, 2005, applicants could appeal a finding by the Commissioner that no vacancy exists. Act of May 28, 1993, 73rd Leg., R.S., ch. 992, § 1, 1993 Tex. Gen. Laws 4317, 4323 (amended 1995, 2001, 2005) (current version at Tex. Nat. Res.Code Ann. § 51.189 (Vernon Supp. 2006)). The appeal was to a district court in the county where any part of the land at issue was located. Id.
Appellants’ Vacancy Claims
Appellants each separately filed an application with the Commissioner to lease or purchase from the State of Texas parts of 992 acres in Smith County. They asserted the land was vacant because of errors in surveys done in 1835 by William Brook-field when he established the boundaries of the Four-League Grant, also known as the Frost Thorn Surveys. Between them, Commissioners David Dewhurst and Jerry Patterson issued findings of fact and conclusions of law that referenced thirty-one later surveys prepared in the nineteenth century. They determined through these surveys and the evidence presented by Appellants that no vacancy existed in the land at issue. Both applications were denied. 1
Appellants separately appealed to the district court, and the cases were consolidated. Initially, the defendants were Land Commissioner Jerry Patterson, Texas General Land Office, Texaco Exploration & Production, Inc., 2 and Goldston Oil Company. The district court abated the proceeding, and 133 individuals and entities made appearances as good faith claimants asserting a real property interest in the land at issue. While the appeal was still pending in the district court, the people of Texas amended their constitution by adding Article VII, Section 2C, which provides that “the State of Texas relinquishes and releases any claim of sovereign ownership or title to an interest in and to [the land at issue], including mineral rights.... ” Tex. Const, art. VII, § 2C. Chevron then filed a plea to the jurisdiction, which some of the other defendants either joined in or adopted. The district court, relying on this constitutional amendment, entered an order granting the plea to the jurisdiction and dismissing Appellants’ claims with prejudice. Appellants timely filed this appeal.
Standard of Review
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat the plaintiffs’ claims without regard to whether the claims asserted have merit.
Bland Indep. Sch. Dist. v. Blue,
The Power of the People
In their first issue, Appellants assert that the trial court erred in granting the plea to the jurisdiction because the constitutional amendment the order is based on, Article VII, Section 2C, destroys their right to pursue their vacancy applications in violation of the constitutional ban on retroactive laws contained in Article I, Section 16 of the Texas Constitution. They further argue that the amendment violates Article I, Section 29, which limits the power of the government and makes void any law that is contrary to the Texas Bill of Rights. In their second issue, Appellants contend that Article VII, Section 2C is a local or special law in violation of Article III, Section 56 of the Texas Constitution.
Sovereignty Over the Law
A fundamental concept of our government is that the people are sovereign and possess all of the powers of sovereignty. Article I, Section 2 of the Texas Constitution makes this clear:
All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.
Tex. Const, art. I, § 2. The people have sovereign rights and privileges that are beyond the power of government.
See
Tex. Const, art. I, § 2 interp. commentary (Vernon 1997). The government is merely the agent of the people.
See Express Printing Co. v. Copeland,
In their capacity as sovereign, the people of Texas have the sole power to amend or change any provision of the constitution.
Oakley v. State, 830
S.W.2d 107, 109 (Tex.Crim.App.1992). In exercising this power, “[t]hey can amend the Constitution in any particular that they desire[,]”
Stephens v. State,
The constitution of Texas is the fundamental law of the state, “the supreme law of the land.”
Oakley,
Appellants further contend that Article VII, Section 2C impermissibly contravenes Article I, Section 29. Article I, Section 29 states that “everything in [the Texas] ‘Bill of Rights’ is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.” Tex. Const, art. I, § 29. Appellants assert that this language prohibits the people of Texas from adopting a constitutional amendment that conflicts with the Texas Bill of Rights. The first clause of Section 29 establishes that its purpose is to “guard against transgressions of the high powers” delegated to the state government by the Texas Constitution.
Republican Party of Tex. v. Dietz,
Sovereignty Over the Land
In adopting Article VII, Section 2C, the people exercised another of their sovereign roles. The people of Texas own the public domain of Texas.
See Hamilton v. State,
In the 1845 Annexation Treaty by which Texas became the twenty-eighth state of the United States, the people of Texas retained their public domain.
See
Tex. Nat. Res.Code Ann. § 11.011. There have always existed with the people of this State three prominent objects which, through their constitutions and laws, they have worked to accomplish by means of the public domain.
Galveston, Harrisburg & San Antonio Ry. Co. v. State,
Local or Special Law
Article III, Section 56 states that the legislature shall not enact a local or special law. Tex. Const, art. Ill, § 56. By its language, this section is a limitation upon the legislature as the representative of the people. It does not limit the people’s power to amend their constitution. Further, when the people act, they are establishing fundamental or organic law of the State.
Oakley,
Conclusion
The people of Texas are sovereign in determining the fundamental law of the state.
Id.
They are also sovereign in determining the real property that makes up the public domain of Texas.
See Smissen,
Fifth Amendment
In their fourth issue, Appellants contend that the trial court erred in granting the plea to the jurisdiction because application of Article VII, Section 2C constitutes a taking of property without just compensation in violation of the Fifth Amendment to the United States Constitution.
The Takings Clause of the Fifth Amendment provides that private property shall not be taken for public use without just compensation. U.S. Const. amend. V. In reviewing a takings claim, we first decide whether an appellant has a property interest in the subject of the alleged taking.
3
Adams v. United States,
*524 Appellants assert that once they complied with the administrative requirements associated with filing a vacancy application, they acquired a constitutionally protected property interest in maintaining a cause of action to establish their vacancies and purchasing or leasing the vacant land. At the time Article VII, Section 2C was adopted, the administrative phase of the vacancy process was complete. Therefore, Appellants were not deprived of a ruling on their vacancy applications. Instead they received unfavorable rulings from the Commissioners for which judicial review became unavailable through the application of the amendment. Thus, the substance of Appellants’ argument is that they had a constitutionally protected right to judicial review as provided by the Texas Natural Resources Code at the time they filed the appeals.
It is a fundamental proposition that no one has a vested right in the continuance of present laws in relation to a particular subject.
Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
Had Appellants successfully asserted their vacancy claims, they would have acquired purchase or lease rights to the subject land, as well as a nonparticipating royalty interest and a percentage of the geothermal resources, subject to certain statutory prerequisites. Prior to favorable rulings on their applications and compliance with any other applicable law, these interests were merely contingent and therefore not constitutionally protected property interests. To constitute a property interest that implicates the Takings Clause, a person must have more than a desire for the interest or a unilateral expectation of it.
See Roth,
Appellants did not acquire a property interest protected by the Takings Clause of the Fifth Amendment when they complied with the administrative requirements for filing a vacancy application. Therefore, we need not address whether a taking occurred. We hold that the Takings Clause of the Fifth Amendment to the United States Constitution was not implicated by the people when they adopted Article VII, Section 2C of the Texas Constitution. We overrule Appellants’ issue four.
Fourteenth Amendment
In their third issue, Appellants contend that the trial court erred in granting the plea to the jurisdiction because Article VII, Section 2C violates their rights to substantive due process, equal protection, and procedural due process protected by the Fourteenth Amendment to the United States Constitution. They argue that they *525 had a constitutionally protected interest in their vacancy applications and the associated legal rights and benefits, including the right to appeal the no vacancy determinations. They contend they were singled out for different treatment from other vacancy applicants and there is no rational basis for the differential treatment. Further, they argue that Article VII, Section 2C allowed Appellees to change the facts in mid-litigation, improperly denying Appellants of the right to use judicial procedures.
Substantive Due Process and Equal Protection
A violation of substantive due process occurs only when the government deprives individuals of constitutionally protected rights by an arbitrary use of its power.
Simi Inv. Co. v. Harris County,
The Equal Protection Clause prohibits differential treatment of persons similarly situated without a rational basis.
See Mikeska,
Appellants have not presented any evidence that their circumstances are different from those in which constitutional amendments previously have been adopted. Therefore, we hold that Article VII, Section 2C does not -violate Appellants’ right to equal protection of the laws.
In addressing Appellants’ substantive due process claim, our review focuses on the rational basis relied on by the people of Texas in adopting Article VII, Section 2C of the Texas Constitution because that amendment had the effect of ending Appellants’ appeal of the Commissioners’ no vacancy determinations. The basic ideal of American social structure was a country of free citizens as smallholders living on their own bits of land. Lawrence M. Friedman, A History of American Law 232 (2d ed.1985). It was also the desire of Texas throughout the nineteenth century to encourage families to settle in the state by giving its public lands away freely. See T.R. Fehrenbach, Lone Star: A History of Texas and the Texans 282 (1983). The part of Smith County where the land at issue is located was first surveyed and settled in 1835. The individuals who believe they are successors in interest of title descending from the sovereign have an interest in clearing their real property titles of any irregularity. The people of Texas also have a legitimate interest in maintaining the integrity of real property *526 titles in the state. Anything less would not be keeping faith with the foundational purpose of land ownership established in both the United States and Texas, i.e., the American Dream.
Paul Pruitt, executive of a land title company headquartered in Dallas, testified in the trial court that his company and other named title companies would not insure the title to any of the real property at issue, or contiguous tracts, while the vacancy claims are pending. He further explained that the property was unmarketable because of the uncertainty of the title created by Appellants’ vacancy claims. He testified that no money would be loaned by any financial institution for home mortgages, home improvements, or development of the property at issue.
Disruptions in the lives of the individuals and entities who own property interests in this acreage are not beneficial for an economically and socially healthy society. Amending the constitution to allow the individuals and entities in this case to have clear titles to their real property and to take part in the economic life of their community is a rational decision the people of Texas logically made. We hold that the people’s adoption of Article VII, Section 2C of the Texas Constitution was rationally related to furthering a legitimate state interest. Therefore, Article VII, Section 2C does not violate Appellants’ right to substantive due process.
Procedural Due Process
Procedural due process ensures that government decisions will be made with sufficient procedural safeguards.
See Mathews v. Eldridge,
The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.
Roth,
Moreover, Appellants were afforded ample due process. Each appellant had the opportunity to present his application to the General Land Office. Based on a review of the appointed surveyor’s survey, objections to the survey, Land Office staff recommendations, and public records of *527 the Land Office, the Commissioner made findings of fact and conclusions of law when he denied Byers’s application. Byers appealed the decision to the district court and successfully argued that the case should be remanded to the Land Office for consideration of a second survey, one prepared at Byers’s request. The Commissioner reconsidered the application with the benefit of both surveys and again concluded that no vacancy existed. In response to Williams’s application, the Land Office vacancy panel heard evidence and public comment in a public hearing, reviewed materials on file, Williams’s application, and other submissions of Williams and opponents of the application, and visited the site of the alleged vacancy. The panel submitted extensive findings of fact and conclusions of law, together with analysis of the issues and a recommendation to the Commissioner that a final order of “Not Vacant Land” be issued. The Commissioner reviewed the records and evidence, adopted the panel’s findings and conclusions, and issued a final order of “Not Vacant Land” in response to Williams’s application. Thus, the record shows that Appellants received procedural due process before the Commissioner entered no vacancy rulings. Appellants also had the opportunity to participate in the constitutional amendment process and make their interests and opinions known. Appellants were thus afforded meaningful opportunities to persuade the people of Texas to reject this constitutional amendment. We hold that Appellants’ procedural due process rights under the Fourteenth Amendment were not violated by the people when, by amendment to the Texas Constitution, they made the final decision in Appellants’ vacancy claim rather than leaving it up to the courts. We overrule Appellants’ issue three.
Conclusion
Through Article VII, Section 2C, the people of Texas relinquished any rights they had to the land at issue. That amendment does not violate Article I, Sections 16 and 29, or Article III, Section 56 of the Texas Constitution. Nor does it violate the Fifth or Fourteenth Amendments to the United States Constitution. Appellants have not shown that Article VII, Section 2C was an improper exercise of the power of the people of Texas to amend their constitution. Because the State of Texas does not possess title to the land at issue, it is not subject to the vacancy statutes. It follows that the trial court cannot grant any relief to Appellants and it properly granted the plea to the jurisdiction. We need not reach Appellants’ fifth issue because it is not necessary to the disposition of this appeal. See Tex.R.App. P. 47.1.
We affirm the trial court’s order granting the plea to the jurisdiction and dismissing the cause with prejudice.
Notes
. Had the Commissioner ruled the land was vacant, Appellants would have been entitled to a perpetual nonparticipating royalty interest of not less than 1/32 or more than 1/16 of all oil, gas, and sulphur and not less than one percent or more than two percent of the value of all geothermal resources and all other minerals produced from the land. Act of May 28, 1993, 73rd Leg., R.S., ch. 991, § 1, 1993 Tex. Gen. Laws 4317, 4326 (amended 2001, 2005) (current version at Tex. Nat. Res.Code Ann. § 51.195(b) (Vernon Supp.2006)).
. Chevron USA, Inc. is the successor in interest to Texaco Exploration & Production, Inc.
. Property interests are not created by the Constitution.
Board of Regents v. Roth,