Can a Texas waterfront owner rebuild eroded land that became School Fund property and keep title without paying the fund?

TX AG Opinion GA-0407: Is the free-title coastal land restoration law constitutional?

Plain-English summary

The Commissioner of the General Land Office, who also chairs the School Land Board, asked whether a 2005 statute, Natural Resources Code section 33.613, violated the Texas Constitution. The statute let a waterfront property owner whose land had eroded into a bay restore the eroded land using private money and then take title to it in fee simple, without paying the Permanent School Fund anything for it.

The constitutional backdrop matters. Texas holds the land under the Gulf's bays and inlets in trust for the public, and article VII, section 2 of the Constitution sets aside submerged lands for the Permanent School Fund. Under long-settled coastal property law, a littoral owner gains title to land added gradually by accretion but loses title to land worn away by erosion, and that rule does not give the owner a claim to land the owner artificially built back. So when the shoreline erodes, the submerged land becomes Fund property.

Article VII, section 4 says Permanent School Fund lands "shall be sold" on terms set by law, bars the legislature from granting relief to purchasers, and, as courts have read it, forbids giving public school lands away. The opinion concluded that section 33.613 ran straight into that command: it conveyed fee simple title to restored Fund land to the littoral owner with no compensation to the Fund. Courts and prior AG opinions have repeatedly struck down or rejected conveyances of Fund land without payment, and the opinion lined those up.

The opinion then dealt with the rest of the statute. The requirement that owners restore eroded land with private money could not be separated from the promise of getting fee simple title, since the legislature would not have demanded restoration without that reward. So subsection (b) failed in its entirety. And because the statute's rulemaking command in subsection (d) depended on subsection (b), the Land Office could not adopt rules under it. Having found a violation of section 4, the opinion did not need to decide whether the statute also violated section 5.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion concluded a specific 2005 statute was unconstitutional. The legislature may have repealed or rewritten the coastal land restoration provisions since, and the constitutional and statutory landscape around the Permanent School Fund continues to develop. Anyone with a coastal land title question today should check current law rather than rely on this opinion.

Who this opinion affected (as of 2006)

The General Land Office and School Land Board: The opinion told them section 33.613(b) was unconstitutional and that the Land Office could not adopt the restoration rules the statute required, because that rulemaking duty depended on the invalid grant-of-title provision.

Waterfront (littoral) property owners on Texas bays: It meant they could not use section 33.613 to reclaim eroded, submerged land and take free title to it; land that eroded into the bay remained Permanent School Fund property unless lawfully purchased.

The Permanent School Fund: It protected the Fund's constitutional entitlement to compensation, reaffirming that Fund land may be disposed of only by sale, not by gift.

Common questions

Who owns waterfront land after it erodes into a Texas bay?
According to the opinion, the state. Submerged land passes to the state and is dedicated to the Permanent School Fund, and a landowner does not regain title by artificially restoring land that eroded away.

Why was section 33.613 unconstitutional?
The opinion concluded it conveyed fee simple title to Permanent School Fund land without compensating the Fund, which violates article VII, section 4 of the Texas Constitution and its bar on giving public school lands away.

Did any part of the statute survive?
No. The opinion found the restoration requirement inseparable from the invalid grant of title, so subsection (b) fell entirely, and the rulemaking duty in subsection (d) depended on (b), so the Land Office could not act on it.

Could the owner still get the land back some other way?
The opinion did not authorize free title. It noted that Fund land "must be sold and may be disposed of only by sale," so any transfer would have to be a sale that compensates the Fund.

Background and statutory framework

Texas holds title to land under the Gulf's bays and inlets in trust for the public (Natland Corp. v. Baker's Port, Inc., 865 S.W.2d 52 (Tex. App.-Corpus Christi 1993, writ denied); Lorino v. Crawford Packing Co., 175 S.W.2d 410 (Tex. 1943)). A littoral owner (one whose land borders an ocean, sea, or lake) gains title by accretion but loses it by erosion, and does not gain title to artificially restored land (Brainard v. State, 12 S.W.3d 6 (Tex. 1999); Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ. App.-Corpus Christi 1966, writ ref'd n.r.e.); Coastal Indus. Water Auth. v. York, 532 S.W.2d 949 (Tex. 1976)). Article VII, section 2 sets aside submerged lands for the Permanent School Fund (Tex. Const. art. VII, § 2; State v. Post, 169 S.W. 401 (Tex. Civ. App.-Austin 1913), rev'd on other grounds, 171 S.W. 707 (Tex. 1914); Tex. Nat. Res. Code Ann. § 11.041(a) (Vernon 2001)). Article VII, section 4 directs that Fund lands "shall be sold" on terms set by law and bars relief to purchasers, and section 5 limits appropriations from the Fund (Tex. Const. art. VII, §§ 4, 5, 5(a), (c), (f)). Courts have read section 4 to require that Fund land be sold and not given away (Weatherly v. Jackson, 71 S.W.2d 259 (Tex. 1934); Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex. 1969); Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149 (Tex. 1952)).

Section 33.613, adopted in 2005, applied to land that on December 1, 1955 was privately owned and not submerged and that fronts a bay, required the owner to restore eroded land with private resources, and gave the owner fee simple title to the restored land subject to public beach rights and existing leases (Tex. Nat. Res. Code Ann. § 33.613(a), (b), (e) (Vernon Supp. 2005); Act of May 27, 2005, 79th Leg., R.S., ch. 867). Presuming the statute constitutional and construing it to avoid constitutional problems where possible (Brooks v. Northglen Ass'n, 141 S.W.3d 158 (Tex. 2004); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996); Tex. Gov't Code Ann. § 311.021(1) (Vernon 2005)), the opinion nonetheless found the conveyance of fee simple title without compensation violated section 4, consistent with prior opinions (Tex. Att'y Gen. Op. Nos. H-881 (1976) (Corpus Christi public beach grant), JC-0069 (1999) (former article 6837, Revised Civil Statutes, now Local Government Code section 421.005; Act of May 10, 1999, 76th Leg., R.S., ch. 227; Tex. Loc. Gov't Code Ann. § 421.005 (Vernon Supp. 2005)), JM-1123 (1989); Act of May 24, 1971, 62d Leg., R.S., ch. 883). Applying the severability rule (Empire Gas & Fuel Co. v. State, 47 S.W.2d 265 (Tex. 1932)), the opinion held the restoration requirement inseparable from the invalid title grant, so subsection (b) failed entirely, and the rulemaking duty in subsection (d) depended on (b), so the Land Office could not adopt rules. It did not reach section 5.

Citations

Statutes:

• Tex. Const. art. VII, §§ 2, 4, 5, 5(a), (c), (f)
• Tex. Nat. Res. Code Ann. §§ 33.613, 33.613(a), (b), (d), (e), 11.041(a) (Vernon 2001 & Supp. 2005)
• Tex. Gov't Code Ann. § 311.021(1) (Vernon 2005); Tex. Loc. Gov't Code Ann. § 421.005 (Vernon Supp. 2005)
• Act of May 27, 2005, 79th Leg., R.S., ch. 867; Act of May 24, 1971, 62d Leg., R.S., ch. 883; Act of May 10, 1999, 76th Leg., R.S., ch. 227

Cases:

• Natland Corp. v. Baker's Port, Inc., 865 S.W.2d 52 (Tex. App.-Corpus Christi 1993, writ denied)
• Lorino v. Crawford Packing Co., 175 S.W.2d 410 (Tex. 1943)
• Brainard v. State, 12 S.W.3d 6 (Tex. 1999)
• Butler v. Sadler, 399 S.W.2d 411 (Tex. Civ. App.-Corpus Christi 1966, writ ref'd n.r.e.)
• Coastal Indus. Water Auth. v. York, 532 S.W.2d 949 (Tex. 1976)
• State v. Post, 169 S.W. 401 (Tex. Civ. App.-Austin 1913), rev'd on other grounds, 171 S.W. 707 (Tex. 1914)
• Weatherly v. Jackson, 71 S.W.2d 259 (Tex. 1934)
• Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887 (Tex. 1969)
• Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149 (Tex. 1952)
• Brooks v. Northglen Ass'n, 141 S.W.3d 158 (Tex. 2004)
• Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996)
• Empire Gas & Fuel Co. v. State, 47 S.W.2d 265 (Tex. 1932)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0407
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0407.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 2, 2006

The Honorable Jerry Patterson
Commissioner
Texas General Land Office
Post Office Box 12873
Austin, Texas 78711-2873

Opinion No. GA-0407

Re: Whether Natural Resources Code section 33.613 violates article VII, section 4 or 5 of the Texas Constitution (RQ-0388-GA)

Dear Commissioner Patterson:

As commissioner of the General Land Office (the "Land Office") and chairman of the School Land Board, you ask whether Natural Resources Code section 33.613, adopted by the Seventy-ninth Legislature, violates article VII, section 4 or 5 of the Texas Constitution.[1] See TEX. CONST. art. VII, §§ 4, 5; TEX. NAT. RES. CODE ANN. § 33.613 (Vernon Supp. 2005); Act of May 27, 2005, 79th Leg., R.S., ch. 867, § 3, sec. 33.613, 2005 Tex. Gen. Laws 2943, 2943-44. Section 33.613, you summarize, "allows a littoral property owner . . . to obtain title to submerged land dedicated to the Permanent School Fund" by restoring the land to its original boundaries and "without compensating" the Fund. Request Letter, supra note 1, at 1; see also TEX. NAT. RES. CODE ANN. § 33.613(b) (Vernon Supp. 2005). You suggest that section 33.613 contravenes the requirement of article VII, sections 4 and 5 that submerged land belonging to the Permanent School Fund must be "sold" and that the Fund must be compensated for such sales. Request Letter, supra note 1, at 1; see also TEX. CONST. art. VII, §§ 4, 5.

The State of Texas holds title to land covered by the Gulf of Mexico's bays, inlets, and arms "within tidewater limits . . . and those lands constitute public property that is held in trust for" the public's use and benefit. Natland Corp. v. Baker's Port, Inc., 865 S.W.2d 52, 57 (Tex. App.-Corpus Christi 1993, writ denied); accord Lorino v. Crawford Packing Co., 175 S.W.2d 410, 413 (Tex. 1943); Tex. Att'y Gen. Op. No. JM-1123 (1989) at 1. In general, a littoral owner[2] acquires title to land added to the shoreline through accretion but loses title to land taken from the shoreline through erosion. See Brainard v. State, 12 S.W.3d 6, 17, 23 (Tex. 1999); Natland Corp., 865 S.W.2d at 57; see also Tex. Att'y Gen. Op. No. JM-1123 (1989) at 1-2. "Accretion is 'the process of increasing real estate by the gradual and imperceptible disposition by water of solid material, through the operation of natural causes so as to cause that to become dry land that was once before covered by water.'" Brainard, 12 S.W.3d at 17 (quoting Butler v. Sadler, 399 S.W.2d 411, 421 (Tex. Civ. App.-Corpus Christi 1966, writ ref'd n.r.e.)); see also Natland Corp., 865 S.W.2d at 57 ("accretion denotes the natural process of increasing real property by the gradual and imperceptible disposal of solid material to the shoreline"). "'Erosion,'" on the other hand, is the gradual and imperceptible "'process of wearing away the land.'" Brainard, 12 S.W.3d at 17 (quoting Coastal Indus. Water Auth. v. York, 532 S.W.2d 949, 952 (Tex. 1976)); see also Natland Corp., 865 S.W.2d at 57 ("[e]rosion is the process of wearing away the land"). The littoral landowner's right to accretions does not extend to new accretive land if the landowner artificially influenced the accretion, however: "Man-made or artificial additions" that a landowner causes or participates in "do not change the boundaries between his land and the State's." Natland Corp., 865 S.W.2d at 57; accord Brainard, 12 S.W.3d at 23.

Article VII, section 2 of the Texas Constitution sets aside all submerged lands for the Permanent School Fund. See TEX. CONST. art. VII, § 2; State v. Post, 169 S.W. 401, 406 (Tex. Civ. App.-Austin 1913), rev'd on other grounds, 171 S.W. 707 (Tex. 1914); Tex. Att'y Gen. Op. No. JC-0069 (1999) at 4; see also TEX. NAT. RES. CODE ANN. § 11.041(a) (Vernon 2001) (including within the Permanent School Fund "the mineral estate in river beds and channels"; "the mineral estate in areas within tidewater limits"; and the arms, beds, and shores of the Gulf of Mexico). According to article VII, section 4, the lands "set apart" to the Permanent School Fund "shall be sold under such regulations, at such times, and on such terms as may be prescribed by law; and the Legislature shall not have power to grant any relief to purchasers thereof." TEX. CONST. art. VII, § 4. Consistent with article VII, section 4, land belonging to the Permanent School Fund "must be sold and may be disposed of only by sale." Weatherly v. Jackson, 71 S.W.2d 259, 266 (Tex. 1934). "Article [VII], [s]ection 4 . . . says that Public School Lands 'shall be sold.' There must be a sale; otherwise, one collides with the constitutional prohibition of gifts of public lands." Cobra Oil & Gas Corp. v. Sadler, 447 S.W.2d 887, 898 (Tex. 1969). The state may not dispose of Permanent School Fund land by gift. See Wheeler v. Stanolind Oil & Gas Co., 252 S.W.2d 149, 152 (Tex. 1952); accord Tex. Att'y Gen. Op. No. H-881 (1976) at 4.

Proceeds from the sale of submerged lands must be used to acquire other land or investments for the Permanent School Fund. See TEX. CONST. art. VII, § 4; see also id. § 5(a) ("The permanent school fund consists of all land appropriated for public schools by this constitution or the other laws of this state, other properties belonging to the permanent school fund, and all revenue derived from the land or other properties."); id. § 5(f) (authorizing the State Board of Education to invest Permanent School Fund monies). With express narrow exceptions, article VII, section 5 forbids the legislature from enacting a law appropriating any part of the Permanent School Fund to any purpose other than the Fund. Id. § 5(c).

Against this constitutional backdrop, we consider the issue you raise: whether Natural Resources Code section 33.613, "which allows the restoration of Submerged [Permanent School Fund] Land and, subsequently, the granting of title to the Property Owner without" compensating the Fund, violates article VII, section 4 or 5 of the Texas Constitution. Request Letter, supra note 1, at 1. Section 33.613, adopted in 2005, applies to land that

(1) on December 1, 1955, was privately owned and not submerged or owned by the School Land Board; and

(2) fronts on a bay and not the Gulf of Mexico.

TEX. NAT. RES. CODE ANN. § 33.613(a) (Vernon Supp. 2005). Section 33.613(b) appears to require littoral landowners to whom the statute applies to artificially reclaim eroded land and subsequently to hold the land in fee simple:

In accordance with land office rules, the owner of property immediately landward of a public beach or submerged land, including state mineral lands, that has been affected by coastal erosion shall restore the affected land to its original boundaries as evidenced in a residential subdivision plat for residential lots of one acre or less filed in the real property records of each county in which the affected land is located. The owner shall use only private resources and money for restoration authorized by this section. After restoration the owner owns the restored land in fee simple, subject to:

(1) the common[-]law rights of the public in public beaches . . . ; and

(2) the rights of a public school land lessee holding a lease on the property on September 1, 2005.

Id. § 33.613(b); see also id. § 33.613(e) (prohibiting the use of state money for land restoration). Newly adopted section 33.613(b) thus purports on its face to accomplish two things: (1) to require littoral property owners whose property has been "affected by coastal erosion" to "restore the affected land," using only private resources and money; and (2) to convey fee simple title to restored land to the littoral landowner. Id. § 33.613(b).

You posit that section 33.613 is unconstitutional because it allows a littoral property owner to obtain title in fee simple to submerged Permanent School Fund land through artificial reclamation that the owner causes or participates in without requiring the owner to compensate the Fund. See Memorandum Brief attached to Request Letter, supra note 1, at 2. You further suggest that this grant of title is "completely unrelated to 'the support of the public free schools' and is the type of 'relief' that article VII, section 4 specifically prohibits. Id.

We must presume that a statute is constitutional. See Brooks v. Northglen Ass'n, 141 S.W.3d 158, 169 (Tex. 2004) (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 625 (Tex. 1996)); Post, 169 S.W. at 406; see also TEX. GOV'T CODE ANN. § 311.021(1) (Vernon 2005) (stating the presumption that the legislature, when enacting a statute, intends the statute to be consistent with the state constitution). We are enjoined to "avoid constitutional problems if possible." Brooks, 141 S.W.3d at 169 (citing Barshop, 925 S.W.2d at 625). Moreover, if a statute can be construed to be valid, a court has a duty to so construe it. Empire Gas & Fuel Co. v. State, 47 S.W.2d 265, 275 (Tex. 1932). And if portions of a statute are legal while other portions are not, a court may effect the legal provisions by separating them from the illegal, but only if the provisions are "separable and not dependent" upon each other. Id.

The statute purports to convey fee simple title to restored lands without providing for compensation to the Permanent School Fund. See TEX. NAT. RES. CODE ANN. § 33.613 (Vernon Supp. 2005). Article VII, section 4's plain language, as well as judicial constructions and opinions of this office, direct that a statute cannot convey fee simple title to Permanent School Fund land to littoral property owners without requiring compensation to the Fund. TEX. CONST. art. VII, § 4. Attorney General Opinion H-881, for example, considers the constitutionality of a statute "granting the City of Corpus Christi submerged lands in Corpus Christi Bay to use as a public beach without compensating" the Permanent School Fund. Tex. Att'y Gen. Op. No. H-881 (1976) at 1. Under the statute, the legislature granted the City fee simple title to the submerged lands so long as the City used the land for a public beach. Id. at 3 (quoting Act of May 24, 1971, 62d Leg., R.S., ch. 883, 1971 Tex. Gen. Laws 2708, 2708-10). Finding that the land had been dedicated to the Permanent School Fund, the opinion concluded that the legislature could not constitutionally grant the tract to the City "without requiring compensation to" the Fund. Id. at 6. Attorney General Opinion JC-0069 similarly construes a conveyance of submerged land pursuant to former article 6837, Revised Civil Statutes, which ceded "[t]he right to the use and control . . . of so much of the land and sea bottom below high tide as" a county or municipality bordering on the Gulf of Mexico considers necessary to build seawalls, breakwaters, levees, and drainways. Tex. Att'y Gen. Op. No. JC-0069 (1999) at 2 (citing former article 6837 of the Revised Civil Statutes).[3] The opinion concludes that, consistently with article VII, section 4, the land could not have been conveyed without compensation to the Permanent School Fund. See id. at 6; cf. Empire Gas & Fuel Co., 47 S.W.2d at 275 (determining that a statute conveying title to 15/16 of all minerals in public school lands to the owner of the soil violated article VII, section 4); Tex. Att'y Gen. Op. No. JM-1123 (1989) at 4 (concluding that a littoral property owner who has lost to the state title to a portion of his tract through submergence may not regain title if the land is subsequently artificially restored).

In addition, the requirement that littoral landowners restore eroded coastal land with private resources and "money for restoration authorized by" section 33.613 is inseparable from the bestowal of fee simple title on the littoral landowner who restored the land. We do not believe the legislature intended to require landowners to restore eroded land without the promise of regaining fee simple title.

For this reason, we believe section 33.613(b) in its entirety contravenes article VII, section 4 of the Texas Constitution. See Empire Gas & Fuel Co., 47 S.W.2d at 275 (stating that a court may not effect legal statutory provisions that are inseparable from illegal provisions). Given our conclusion under article VII, section 4, we need not consider the constitutionality of section 33.613 under article VII, section 5.

You also ask whether the Land Office constitutionally may adopt rules concerning the artificial reclamation of land as required by section 33.613(d). See Request Letter, supra note 1, at 1. Section 33.613(d) requires the Land Office to have adopted reasonable rules to regulate land restoration under section 33.613 by December 1, 2005. See TEX. NAT. RES. CODE ANN. § 33.613(d) (Vernon Supp. 2005). In our opinion, the statutory rulemaking requirement wholly depends on the legality of subsection (b), which purports to convey fee simple title to littoral landowners who restore eroded, submerged land without compensation to the Permanent School Fund. Accordingly, the Land Office may not adopt rules as section 33.613(d) purports to require. See Empire Gas & Fuel Co., 47 S.W.2d at 275 (stating that a court may not effect statutory provisions that are inseparable from unconstitutional statutory provisions).

SUMMARY

Natural Resources Code section 33.613, which allows a littoral property owner to artificially restore submerged land that has been lost through erosion and is dedicated to the Permanent School Fund and thereby receive title to the land in fee simple without compensating the Fund, violates article VII, section 4 of the Texas Constitution.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Jerry Patterson, Commissioner, Texas General Land Office, to Honorable Greg Abbott, Attorney General of Texas (Aug. 26, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. A littoral owner's land "borders an ocean, sea, or lake." Brainard v. State, 12 S.W.3d 6, 21 n.7 (Tex. 1999).

3. The substance of former article 6837 of the Revised Civil Statutes has been codified as section 421.005 of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. § 421.005 (Vernon Supp. 2005); Act of May 10, 1999, 76th Leg., R.S., ch. 227, §§ 16, 28, 1999 Tex. Gen. Laws 721, 1025-26, 1056 (adding section 421.005 to the Local Government Code and repealing article 6837, Revised Civil Statutes).