Case Information
*1 C
Honorable Coke B. Stevenson
Governor of TbxaS Texan
Austin, Dsar Sir: Opinion Hoe. O-5011
Bet Authority of the Governor of Texar to issue patent to the Podor@ Gtivermwat under facts auhnittsd.
Ik am in receipt of your l*tter of Deoemkr 11, 1942, Iherein you request the opinion of this daputmsnt upon the following question*
"Is the Governor of TOXM authorized to issue pate* to the Federal Goverrrment under the faotr subnittsd?"
The facts as contained in pour attaohed oommunication addressed to Honorable Baeocm Giles,,Ccmmissioner of the General Land Office and nitten by Clifford B. Elm; Division Head of Real Eatate Suboffice, Ar Dspariment, l&w W~~ico, read in eubstanoe as follownc
The United States is requiring military air- port purposes the Southmst Quarter of the Southeast quarter (S.E.* S.E.*) of Seotion 27, Blook CA, Fublio Sohool.Lauds, in Reeves County -- a 40 aore traot of land. Under oondemnation prooeedirgs entit- led: 'United States of Amerioa vsr 2,560 &ares of Land in Reeves County, Texas, State of Terns and Joe Rorshem et al', Civil No., 154 in the U&D&, pea08 Division, an order for possession was entered securing izeaediate~pcssession of said land for the Federal Governnant. Later a Declaration of Taking was filed therein under the terms of which the Fsdsr- al Gwermusnt has aoquired fee simple title to said dssoribad Iands, srospting minerals therein and sub jeot to aortain easements thereon.
A Csrtifioate of Faots prepared by the General wnd Offiae shows that prior to the institution of the aforementioned oondemuation prooeedings that ;heds;; ~~b~a,",~~li~~~~~~,"~:: 2h%.,, her obligation for unpaid purchase price and interest thereon; that said sale of land was marked "Forfeited" *2 Honorable Cok6 3. Stovanson, (0;5011) Page 2
bp the said Land Office on August 26, 1941, for non-payment of i&west and the 86m so stands on the records of the Gemaral Land Offloe.
Lillian 8. Ninkler and her husband, Sam Bnklar, haw b6ea mad6 parties defendant to the said oondsm- nation proceeding by mason of the fast that this office has been uuable to obtain a quitolaim dmd or other instrumnt which muld extinguish "ny right of reinstatawent of the 8aid land purohass which they MY have.
This office offsrs to puro~se,said 40 aore tract of land from the Gwernor of Tarcrs,~aoting for the State of Texas under authority grantsd him in Article 5245, V.A.C.S.; and th6 offer being mcapted, stipula- tions to that effect will be sntarad in the oondamna- tion proceedings, thus obviating the neoessity for aondmnation of 6aid tract of land.
Artiols 5242, Vernon's Aunotated Civil Statutea, provideatiat the United States Govermwmt through its proper acent may purahare landa within the State of Tens and held same as sites onvhich to are& forts, military stations, arsenals, dock yards, etc., and the coasent of the Lsgislatura is hereby expressly given te any suoh purchass.
Arti 5245, V.A.C.S., reads as follow88
"Rhea this State may be the owner of any land do- sired by the United States for any purpose specified in this title, the Guvernor may sell suoh lad to the United States, and upon gryaent of the purohase money therefor into the Treasury, tha Land &mmissiowr, upon the order of the Governor, shall.issus a patent to the United St&es for such land in like manner as ottsr patents are fssued."
Clearly, the abomwquoted statute authorizes the Govercor to sell and patent lands dosired ly ths United States for ,my of the purposss or like purposes speoified in Article 5242, "when the State may be the owner" thereof. It follows, therefore, that whenever the State of Texas is not the owner the lauds desired, etc., that the Governor laoks the requisitm authority to 8611 6~66 or to ptent same~ Unl66s the Stat6 of Tens is the owner of the S.E. t of the 0. 2 of S 60 ti on 27, the land in qusstion, th6 Goveruor would haw no authority-to sol1 the said 40 aores to the Fedwal Goverrraent or to authorise issuanc6 of a patent 011 sulldo
We shall assum for the purpose of this opinion that the condm- nation proooeding~, Civil Cause lib. 154, set out in the submitted facts aa king instituted for the land in question and other lands, was in all things *3 Honorable Coke B. Stevenson, (o-5011) Page S
legal and p?per; that the filing of plqadinga, aourt ordars and other imstruuents therein was in aocordmae with the Federal laws apperfain- ing thereto.
Tit10 40, Se&ion 2SSa of the United States Code Annotated pro- vides in part a8 follows8
"In any proooeding in any oourt of thm United stat06 . . e which has been or may Be instituted in the nun* of 0 e e the United States forth* ao- quisitioa of any laad e e 0 for public use, the petitioner may file in the cause, with the ptition or at any time Befon jud@snt, a deolaration of taking e . 0 to aoquire the lands dosoribod in the petition, declaring that said lands arm themby taken for the use of the United States,
"Upon the filin of said declaration of taklag and the deposi %&&m court to the use of the psrsonr entitled thereto, of'the auount of the esti- mated ocmpensatio~ stated in said dsolaration,
"Upon the l pplioatioa of the parties in inter- est,.the court may order that the money dspositod in the court, or any prt thereof, ba pid forthwith for or on account of the just compsnaationto be awarded in said prooeeding. If the compensatioa finally awarded in rasps& of said landa; or a~ parcel thoreof, shall exaaed the amount of the money so received by any person sntitlod, tha court shall enter judgpmnt agaiast the United Otates the mount of the~deficienoy." (Undersooring oura) A referenoa to the statamsnt of faots suhnittsd h&with will disclose that la said Civil Cause Ho. 164, in whiohthe S.E. 4 of the 8.B. 3 Smtion 27, Reeves County was oondsmned, a daolaration of taking has bea filod. In acoordanoe with the terms of the above quoted F~denl rts$uta title to the lands in question vested in the United St&es of Jlmerica upon tho filing of the said declaration of taking. The only right in the State of Taxas in the land in question which rtill exists *4 Honorable Coke B. Stevenson, (d-5011) Paga 4
after the flling of the deolaration of taking is the right to just oompensatioa for the land so taken.
Title to the land in questioa, known as S.B. 1 of ths,S.B. 4 of Seation 27, Bowes Comty, Tens, having vcrstod ints United States of Azwrioa, the State of Texacoould not be the owaw thereof and Arti- cle 5245, V.A.C.S., authorizing the Goveraoi to rell Stats-ownad land is, therefore, inapplicabl*. If, of eourso, tha United States of Amori- oa, petitioner in the aforcnasntionad cond~atioa suit, proceeds thero- with to final judgment, the defendant, Lillian S. Uinklw, racaiving just compensation for her right of reinstatement in the land in question, and tlw State of Tons being paid the said land, the Governor under the authority granted in Articles 5404 and 5413, V.A.C.S., may noommend or order iosuanoe of patent thereon.
Itia the opinion of this doprtmrnt, thermforo, that the quo&ion sulxnittod must b+ ansxmrod in the negative.
Very truly yours ATTORNEY GESRRAL OF TEXAS By s/ Cheater E. Ollisoa Chester E. Ollison Assistant cSO:ff:egw
dppBavBD8 OtiiniOB Camnltfr( ?y Bw.% - .,. _ ^ - _ Chairman _