Could qualifying Texas cities acquire state-owned riverbeds through annexation, and did that let them commercially remove sand and gravel?

City annexation of state-owned riverbeds

Plain-English summary

Texas Attorney General Jim Mattox concluded that article 7467a constitutionally relinquished state-owned stream and riverbeds to the limited group of cities covered by the statute when those cities annexed the land under separate annexation authority.

"Subject to the interest of the public free school fund in the mineral estate in river beds and channels which are held by the state in trust for the public, article 7467a, V.T.C.S., constitutionally relinquishes title to the portions of river beds and channels which certain qualified cities may acquire through annexation effected pursuant to other authority."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

The title remained subject to the permanent-school-fund mineral estate and the public trust. Article 7467a was a relinquishment of the state's remaining interest, not an unrestricted fee-simple grant.

"Thus, the title relinquished remains impressed with a public trust despite the lack of an express reservation."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

The recovered page-6 passage resolved the sand-and-gravel issue. Sand and gravel were surface substances rather than minerals under the cited school-fund statutes, but other laws placed their control with the Parks and Wildlife Department.

"See Moser v. United States Steel Corporation, 676 S.W.2d 99, 102 (Tex. 1984) reh'g overruled; Heinatz v. Allen, 217 S.W.2d 994, 997 (Tex. 1949). Thus, these surface substances are excluded from dedication of the mineral estate to the public free school fund."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Cities could use riverbed products through statutory procedures for civic improvement projects, but article 7467a did not authorize commercial exploitation.

"Products, including gravel, may not be removed therefrom except for civil improvement projects and cannot be exploited commercially by a city without further express legislative authority."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Currency note

This opinion was issued in 1985. 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.

What the opinion said for affected groups in 1985

Qualifying municipalities

Only cities and towns meeting article 7467a's 1920-census population requirement were covered. The statute did not itself authorize annexation; it operated when boundaries expanded under other law.

"Article 7467a does not itself authorize annexation; it merely relinquishes state-owned stream and river beds when a city's boundaries are expanded by annexations effected pursuant to other authority."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Parks and Wildlife Department

The department retained statutory authority over sand, gravel, marl, mud shell, and other products of public riverbeds.

"The legislature has expressly placed control of sand and gravel within the jurisdiction of the Parks and Wildlife Department."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Permanent School Fund officials

The relinquishment did not include mineral interests or income already dedicated to the school funds. A later annexation transferred only the interest the state still held.

"Thus, the act cannot and does not operate to relinquish an interest of which the state has otherwise disposed."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Municipal and natural-resource attorneys

The opinion treated article 7467a as a public-purpose quitclaim subject to public-trust limits. Annexation validity remained governed by separate statutes and fact-specific adjacency rules.

"The adjacency of a particular annexation depends upon facts which we cannot determine in the opinion process."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Common questions

Did article 7467a itself let a city annex a riverbed?

No. It relinquished the state's interest after annexation occurred under other authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Did every Texas city qualify?

No. The statute applied only to incorporated cities and towns with at least 40,000 inhabitants under the 1920 census. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Did a city receive the mineral estate?

Not where that estate or its income had been dedicated to the public school funds. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Were sand and gravel part of the mineral estate?

No under the cited cases. The opinion classified them as surface substances, while separate statutes controlled their removal. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Could a city sell riverbed gravel commercially?

No under article 7467a alone. The opinion required further express legislative authority. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Background and legal framework

Article 7467a relinquished state claims to beds and channels within the present or future limits of qualifying municipalities so state ownership would not hinder civic improvements. Texas held submerged lands in trust for the public, and grants of those lands were strictly construed.

"Texas holds its submerged lands as state property in trust for the public."

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Key citations

• V.T.C.S. article 7467a
• Texas Natural Resources Code section 11.041
• Parks and Wildlife Code sections 1.011 and 86.001 et seq.
• State v. Bradford, 50 S.W.2d 1065 (Tex. 1932)
• Moser v. United States Steel Corporation, 676 S.W.2d 99 (Tex. 1984)
• Heinatz v. Allen, 217 S.W.2d 994 (Tex. 1949)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0299
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0299.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Obvious character-level OCR errors have been corrected where verified against the scan and reporter citations; minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

JIM MATTOX
Attorney General

March 18, 1985

Mr. Charles D. Travis
Executive Director
Texas Parks & Wildlife Department
4200 Smith School Road
Austin, Texas 78744

Opinion No. JM-299

Re: Constitutionality of article 7467a, V.T.C.S., which authorizes specified municipalities to acquire state streambeds by annexation

Dear Mr. Travis:

You question the constitutionality of an uncodified statute which authorizes certain qualifying municipalities to acquire, through annexations which are effected pursuant to other authority, the beds of state-owned watercourses. Acts 1925, 39th Leg., ch. 155, at 366 (V.T.C.S. art. 7467a). In particular, you express concern about a municipality's annexation of only the beds of watercourses for the sole purpose of assuming ownership of the beds from the state. Your request results from anticipation of conflicts between the Parks and Wildlife Department and municipalities with regard to the department's responsibility to manage and protect the sand and gravel in state-owned stream and river beds.

Article 7467a provides as follows:

Section 1. The State of Texas hereby relinquishes, quit claims and grants unto all incorporated cities and towns that have a population of forty thousand inhabitants, or more, according to the 1920 census, all of the beds and channels, and also all of the abandoned beds and channels, of all rivers, streams and other channels that are now or that may hereafter be within the present or future corporate limits of such cities or towns, in so far as the beds and channels, and such abandoned channels, of such rivers, streams and other channels may be owned or claimed as the property of said State.

Sec. 2. The fact that such incorporated cities and towns through which rivers and streams may flow and channels may exist may be hindered in their civic improvements by reason of the State's claim of property rights therein, creates an emergency, and an imperative public necessity exists that the constitutional rule requiring bills to be read upon three separate days in each House be suspended and that this Act be placed upon its third reading and final passage and take effect from and after its passage, and it is so enacted. (Emphasis added).

exists that the constitutional rule requiring
bills to be read upon three separate days in each
House be suspended and that this Act be placed
upon its third reading and final passage and take
effect from and after its passage, and it is so
enacted. (Emphasis added).

In addition to a general constitutional challenge, you suggest that
the first underscored clause, in section 1, as a grant in advance of
state-owned property, is corstitutionally suspect insofar as it allows
the specified municipalities, rather than the state, to determine the
amount of state property thet. the municipalities will “acquire.”

As a preliminary matter, we emphasize that article 7467a applies
only to “incorporated cities: and towns that have a population of forty
thousand inhabitants, or more, according to the 1920 census. .. ."
V.T.C.S. art. 7467a, §1. ‘for example, because of this requirement,
the Texas Supreme Court ir. Maufrais v. State, 180 S.W.2d 144, 146
(Tex. 1944), held that art‘.cle 7467a does not extend to the city of
Austin because the city lacked the requisite population as of the 1920
census. Consequently, the scope of the act is limited.

Several courts have di.scussed briefly the general applicability
of article 7467a without questioning its validity. See, e.g.,
Coastal Industrial Water Authority v. York, 532 S.W.2d 949, 951 (Tex.
1976); Maufrais v. State, 180 S.W.2d, at 146; State v. Bradford, 50
$.W.2d 1065, 1078 (Tex. 1.932); Hogue _v. Glover, 302 $.W.2d 757,
761-762 (Tex. Civ. App. - Waco 1957, writ ref'd n.r.e.). None of the
reported cases, however, was called upon to directly address the
constitutionality of the act. Nor have any reported cases discussed
the nature and extent of tie interest relinquished by article 746/7a.
Consequently, analysis of your request requires consideration of
numerous basic principles apvlicable to submerged lands.

Texas holds its submerzed lands as state property in trust for
the public. Tex. Const. art. XVI, §59(a); Carrithers v. Terrmar Beach
Community Improvement Ass'n., 645 S.W.2d 772 (Tex. 1983), cert.
denied, 104 S.Ct. 422; Heard v. Town of Refugio, 103 $.W.2d 728 (Tex.
1937); State v. Bradford, 50 S.W.2d 1065 (Tex. 1932). State ownership
extends to the beds of navigable and to certain non-navigable water-
courses. San Antonio River Authority v. Lewis, 363 S.W.2d 444, 447
(Tex. 1963); Heard v. Town of Refugio, 103 $.W.2d, at 730-31; see Tex.
Water Code §21.001(3). Subject to constitutional limits, the power to
control the disposition of state property resides in the legislature.
See Conley v. Daughters of the Republic, 156 S.W. 197 (Tex. 1913),
reh'g denied, 157 S.W. 937; Attorney General Opinion MW-62 (1979); see
also Attorney General Opinion M-356 (1969) (certain reappropriations
of property may require constitutional amendment). The legislature
may relinquish title to the land beneath public waterways. State v.
Bradford, 50 $.W.2d, at 1078; Moore v. Ashbrook, 197 S.W.2d 516, 518

ka

(Tex. Civ. App. - San Antonio 1946, writ ref'd); Attorney General
Opinion MW-489 (1982).

Because submerged lands are impressed with a public trust, grants
which include the beds of public waterways must be express and are
strictly construed against grantees. State v. Bradford, 50 S.W.2d, at
1075; Heard v. Town of Refupio, 103 S.W.2d, at 732; Attorney General
Opinions Mw-489 (1982); H-€8i (1976). The language of article 7467a,
however, deals expressly and exclusively with the beds and channels of
watercourses that are ownel or may be claimed as the property of the
state. Therefore, the pivotal questions include (1) whether any
constitutional provisions jrevent this kind of relinquishment at all
or prevent the manner in which the state relinquishes the submerged
lands, and (2) the nature and extent of the interest relinquished.

One constitutional prevision in particular provides that certain
public lands are dedicated to the public free school fund. Article
VII, section 2 of the Texas Constitution determines which lands are
part of this fund:

All funds, lands and other property heretofore
set apart and «appropriated for the support of
public schools; 211 the alternate sections of land
reserved by the State out of grants heretofore
made or that may hereafter be made to railroads or
other corporations of any nature whatsoever; one
half of the public domain of the State; and all
sums of money thit; may come to the State from the
sale of any portion of the same, shall constitute
a perpetual public school fund. (Emphasis added).

See also Tex. Const. art. VII, §§4, 5; State v. Bradford, 50 S.W.2d,
at 1073.

The Texas Supreme Court: in State v. Bradford, 50 S.W.2d, at 1075,
examined section 2 of article VII and concluded that the drafters of
the Texas Constitution did not intend article VII, section 2, by its
terms, to appropriate the beds of navigable watercourses to the school
fund. Thus, article VII, section 2, does not, independent of legisla-
tion, automatically place one-half of the beds of public watercourses
in the public free school. fund. State v. Bradford, 50 S.W.2d, at
1075; Attorney General Opinions H-881 (1976); M-356 (1969); C-90
(1963); V-987 (1950). Moreover, although the legislature has
extensive authority to determine what shall initially constitute the
school fund's one-half of the public domain, once appropriated, the
legislature's action is final. Hogue v, Baker, 45 S.W. 1004, 1005-106
(Tex. 1898); Attorney General Opinions H-881; M-356.

The Bradford court also considered whether the "Settlement Act of
February 23, 1900" placed the beds of navigable streams in the
permanent school fund. Acts 1900, 26th Leg., lst C.S., ch. 11, at 29.

Mr. Charlies D. Travis - Page 4 (JM-299)

After citing numerous statttes which were enacted subsequent to the
Act of February 23, 1900 and which dealt expressly with the beds of
navigable watercourses, the court concluded that this later legisla-
tion was patently inconsistent with the contention that the legisla-
ture intended the Act of Feltruary 23, 1900 to set apart and grant such
public lands to the permanent school fund. 50 S.W.2d, at 1073-75.
Consequently, as of the tim: when article 7467a was enacted, March 30,
1925, the state still held (‘he beds of navigable watercourses in trust
for the public; the river bed portion of the public domain had not
been dedicated to the permanent free school fund or otherwise granted
to any other individual(s) or entity(s).

During the same legislative session which spawned article 7467a,
the Thirty-ninth Legislature emphasized that river beds were not
dedicated to the permanent school fund by passing article 4026,
¥V.T.C.S., which provided that:

All of the public rivers .. . together with their
beds and bottoms, and all of the products thereof,
shall continue end remain the property of the
State of Texas except in so far as the State shall
permit the use of said waters and bottoms. ...
(Emphasis added).

This act was repealed by the Sixty-fourth Legislature, Acts 1975, 64th
Leg., ch. 545, §2(a)(2), at. 1804, and replaced with substantially the
same language, by section 1.011 of the Parks and Wildlife Code. Thus,
the provision, as originally enacted in article 4026, is relevant to
the validity of article 74i)’a in light of the provision dealing with
the permanent school fund because it shows that this land was not part
of the fund. It is also relevant to the nature and extent of the
interest relinquished by article 7467a.

The previous discussicr. demonstrates that the state's stream and
river beds had not been dedicated to the permanent school fund prior
to the enactment of article 7467a. Because article 7467a operates to
relinquish state river beds at various times to qualifying
municipalities as those cities grow, dedications to the permanent
school fund made subsequent to the enactment of article 7467a are also
relevant. Later dedications, however, do not invalidate article
7467a; rather, they affect the nature and extent of the interest
relinquished. As will be seen, they affect the extent of the interest
relinquished because at dates subsequent to the passage of article
7467a, the legislature did dedicate different portions of the estate
in its river beds to the permanent school fund. Article 7467a
purports only to relinquish the interest in state stream and river
beds which “may be owned o1 claimed as the property of said State."
Thus, the act cannot and dves not operate to relinquish an interest of
which the state has otherw:.se disposed.

In 1921, prior to the enactment of article 7467a, the legislature
enacted a provision which (1) transferred all unexpended money in the
state treasury at that time to the credit of the Game, Fish and Oyster
Fund which had been received as or from royalty on oil and gas leases
issued upon river beds to the available public free school fund, and
(2) dedicated all sums of money received thereafter as royalty upon
oil and gas leases from leases issued upon river beds to the available
public free school fund. Acts 1921, 37th Leg., ch. 55. The interest
relinquished by article 7467a is subject to and limited by this
royalty interest.

Similarly, subsequent to the passage of article 7467a and sub-
sequent to the Texas Su»reme Court's decision in Bradford, the
legislature dedicated all the income from the mineral development of
the state's river beds to ‘he permanent school fund. Acts 1935, 44th
Leg., ch. 140, §2, repealed by Acts 1969, 6lst Leg., ch. 51, at 3025.
Section 15. 01 (a) (6) of the Texas Education Code replaced the provision
and provides for the same dedication of the income from the mineral
development of submerged linds.

In 1939, the legislature severed the surface and mineral estates
in the state's river beds znd granted the entire mineral estate in the
state's river beds to the permanent school fund. Acts 1939, 46th
Leg., ch. 3, at 465 (V.T.0.S. art. 5421c-3, §2, now repealed). The
provision was repealed in ]977, and replaced with section 11.041(a) (1)
of the Texas Natural Resources Code. Acts 1977, 65th Leg., ch. 871,
at 2689. The state may cause such a horizontal severance of the
surface and mineral estatz3 in its submerged lands. See generally
State v. Aransas Dock and Channel Co., 365 $.W.2d 220, 222 (Tex. Civ.
App. ~ San Antonio 1963, writ ref'd).

The interest relinquished by article 7467a does not include the
royalty interest dedicated tio the available public free school fund in
1921. Similarly, any relinquishment which became effective or which
may become effective upon t:he expansion of the boundaries of qualified
cities and towns, as envisioned by article 7467a, subsequent to the
grant in 1935 of the mineral estate income from river beds to the
permanent fund and to the grant in 1939 of the mineral estate itself
in river beds to the permanent fund, does not include these interests,
Once the legislature has dedicated land to the permanent school fund,
it cannot reappropriate the land without a constitutional amendment.
Hogue v. Baker, 45 S.W. 1004; Eyl v. State, 84 S.W. 607, 611 (Tex.
Civ. App. 1904, writ ref'd):; Attorney General Opinions H-881; M-356.

No other statutes grint a greater interest in the state's sub-
merged river bed lands to another entity or individual. But see Tex.
Nat. Res. Code §11.041(a)}(3) (Texas-Gulf of Mexico tidelands grant to
school fund not limited tc mineral estate and could include tidewater
portions of river beds); see, e.g., Attorney General Opinions H-881
(1976); C-90 (1963). You especially express concern about sand and
gravel. Sand and gravel are not, however, minerals within the meaning

of the statutes recodified in section 11.041 of the Natural Resource
Code. See Moser v. United States Steel Corporation, 676 S.W.2d 99,
102 (Tex. 1984) reh'g overruled; Heinatz v. Allen, 217 S.W.2d 994, 997
(Tex. 1949). Thus, these surface substances are excluded from
dedication of the mineral estate to the public free school fund. See
Attorney General Opinion C-90. Control of these substances depends
upon other statutory provisicms to be discussed later.

Two other constitutional provisions deserve mention at this
point. Article III, section 51 of the Texas Constitution denies the
legislature the power to meke any grant of public money to any
individual or entity. Section 59a of article XVI indicates that the
conservation, development, and preservation of all natural resources

related to rivers and streams in the state are declared public rights
and duties.

As indicated previously, Texas courts have held that the legisla-
ture may relinquish title to the land beneath public watercourses,
State v. Bradford, 50 $.W.21, at 1078; Moore v. Ashbrook, 197 S.W.2d
at 518; Attorney General Opinion MW-489. Occasionally, the public use
and enjoyment of property urder navigable waters “may be promoted end
increased, by allowing portions of it to become private property."
Coastal Industrial Water Authority v. York, 532 $.W.2d, at 953
(quoting from City of Galveston v. Menard, 23 Tex. 349, 393 (1859).

The Texas Supreme Court. in ‘State 1 v. Bradford, considered both
article III, section 51 and article XVI, section 59a, in the context
of the "Small Bill," article 5414a, V.T.C.S., 50 S.W.2d, at 1076-77.
Analysis of the court's treatment of these provisions is helpful to
the case at hand. The "Small Bill" is a retrospective act which
“validated" the titles to lands whose surveys had been made across
streams subsequently claimed to be navigable. With regard to article
III, section 51, the court held that the “Small Billi" was valid
because the state had recuived and retained consideration for the
patents and awards validatec by the act. 50 S.W.2d, at 1077.

Similarly, the act was expressly held not to contravene section
59a of article XVI because the act

reserves to the state, and the public generally,
and excepts from the operation of the act, the
natural resources located in the river beds
affected and, by ‘implication, the necessary accom-
panying rights of ingress and egress to those
resources, and all other rights necessary to their
proper use and development.

50 S.W.2d, at 1076. The court indicated, generally, that

the state has authority to validate the titles of
the land lying in the beds of navigable streams

issued in good falith, reserving unto the state for
the use of the public all rights reserved by the
statutory and constitutional provisions pertaining
to navigable streams. ... (Emphasis added).

50 S.W.2d, at 1077.

Application of these principles to the validity of article 7467a
under article III, section 51 and article XVI, section 59a is roughly
analogous. We conclude that the public interest protected by both of
these provisions is preserved by the fact that the legislature
intended that the submerged lands relinquished by article 7467a remain
impressed with a public trust when held by qualifying municipalities.
The legislature will not. be presumed to have intended an
unconstitutional result.

The language employed by the legislature in article 7467a mani-
fests the legislative intent that the interest in state stream and
river beds which is relinquished by article 7467a does not amount to
an unrestricted grant of fee simple title. Section 1 of the act
contains the operative words "relinquish" and "“quitclaim." By
analogy, under Texas’ law on deeds, a quitclaim is based on the theory
that the grantor has either no title or imperfect title but that the
grantor nevertheless possesses some present interest in the property,
undefined in its nature, that is released by the quitclain. See
Richardson v. Levi, 3 S.W. 444 (Tex. 1887); Green v. West Texas Coal
Mining & Developing Co., 225 S.W. 548 (Tex. Civ. App. - Austin 1920,
writ ref'd); Breen v. Morehead, 126 S.W. 650 (Tex. Civ. App. 1910),
aff'd, 136 S.W. 1047. Moreover, section 2 of the act indicates that
the purpose of the act is that qualified cities will not "be hindered
in their civic improvements by reason of the State's claim of property
rights therein. . .." The language used in both sections of article
7467a, interpreted in light of the rules of construction for grants of
submerged land, that grants of public land be strictly construed
against grantees, evidences the legislative intent to relinquish
state- owned stream and river beds which lie within the boundaries of
qualifying municipalities ‘or public purposes only. Thus, the title
relinquished remains impressed with a public trust despite the lack of
an express reservation. See Attorney General Opinion MW-489 (1982);
Tex. Water Code §5.021 (public has continuing rights in waters of
navigable watercourses); Carrithers v. Terrammar Beach Community

Improvement Ass'n., 645 S.W.2d, at 772; see also Parks and Wild. Code,
§1.011(c) (discussed infra).

You suggest that article 7467a is also constitutionally suspect
because it allows the specified municipalities, rather than the state,
to determine the amount of state property that the municipalities will
acquire. The Texas Constitution, in article III, section 1, and in
article I, section 28 prohibits the delegation of legislative power to
make or suspend law. Nevertheless, Texas law consistently recognizes
a distinction between a delegation of legislative power to make a law

and the discretionary exercise of a power conferred by a law. See
Attorney General Opinions MVl-383 (1981); MW-11 (1979).

Both article 7467a and the annexation statutes, see, e.g.,
V.T.C.S. art. 970a and art. 1183 et seq., provide sufficient authority
and standards to guide any power given to qualifying municipalities to
"acquire" state property ty state relinquishment upon municipal
annexation. We emphasize that article 7467a does not itself authorize
annexation; it merely relinquishes state-owned stream and river beds
when a city’s boundaries are: expanded by annexations effected pursuant
to other authority. See, e.g., art. 970a and art. 1183 et seq.
Annexation powers are limited in several ways. For example, with
regard to home rule cities, article 1175 requires that annexed land be
adjacent to the city and nol: within another city. City of Longview v.
State ex rel. Spring Hill Utility District, 657 S.W.2d 430 (Tex.
1983). Similarly, section 7 of article 970a applies the same
adjacency test to all cities. Fox Development Company v. City of San
Antonio, 468 §.W.2d 338, 339 (Tex. 1971).

You also express concern about a particular municipality's
annexation of only the bed: of watercourses for the sole purpose of
assuming ownership of the beds from the state. Article 7467a was not,
however, intended to authorize annexations of only river beds. As
indicated, article 7467a does not itself authorize annexation; its
purpose was to prevent hindrance of qualifying cities’ civic improve-
ments caused by the state's ownership of river beds within municipal
boundaries. V.T.C.S. art. /467a, §2. Nevertheless, the long-standing
rule in Texas is that, other than limits imposed by the Voting Rights
Act, the only limit on the power of a city to annex additional
territory is that it be adjacent to the city and not within the
boundaries of another municipality. Fox Development Company v. City
of San Antonio, 468 S.W.2d, at 339. Article 970a, in section 7 B-1,
also imposes a width limit, prohibiting too-narrow strip annexations.
Further, certain unusual si:irip annexations have been held invalid on
the basis of a lack of adjacency. See, e.g., City of West Orange v.
State ex rel. the City of Orange, 613 S.W.2d 236 (Tex. 1981). The
adjacency of a particular annexation depends upon facts which we
cannot determine in the opinion process.

Moreover, articles 1133-87, V.T.C.S., specifically authorize
limited purpose annexations of only navigable streams for a specified
distance outside of a city's boundaries. See City of Port Arthur v.
Jefferson County Fresh Wat2: Supply District No. 1, 596 S.W.2d 553,
555 (Tex. Civ. App. - Teaumont 1980, writ ref'd n.r.e.). The
Municipal Annexation Act, article 970a, did not repeal articles
1185-89. Id. at 556. Ariziicles 1183-87 were expressly intended as
limited purpose annexation statutes which do not confer general
regulatory powers over subject land. City of Nassau Bay v. Winograd,
582 S.W.2d 505, 508 (Tex. Civ. App. - Houston [lst Dist.] 1979, writ
ref'd n.r.e.)..

Your request regarding the constitutionality of article 7467a
stems from concern over .otential conflicts between the Parks and
Wildlife Department and municipalities with regard to the department's
responsibility under chapter 86 of the Texas Parks and Wildlife Code
to manage and protect the sand and gravel found in state-owned
streambeds. Because the submerged lands relinquished to qualifying
cities by article 7467a are impressed with a public trust, the cities
do not have unrestricted power in the first place over the river beds
within their boundaries. See Attorney General Opinion MW-489.
Moreover, the legislature has expressly placed control of sand and
gravel within the jurisdiction of the Parks and Wildlife Department.

As indicated previously, during the same legislative session
which resulted in article 7467a, the Thirty-ninth Legislature passed
article 4026, which reserved to the state the beds of all public
rivers and placed regulat:lon of such beds in what is now the Texas
Parks and Wildlife Departinent. The provision was repealed in 1975,
and replaced by section 1.)il(c) of the Parks and Wildlife Code. Acts
1975, 64th Leg., ch. 545, §2(a)(2), at 1804. Section 1.011(c)
provides, in part:

All the beds and bottoms and the products of
the beds and bottoms of the public rivers...
are the property of this state. The state may
permit the use «of the waters and bottoms and the
taking of the products of the bottoms and waters.
(Emphasis added).

Section 1.011(d) provides:

The Parks anil Wildlife Department shall regu-
late the taking and conservation of fish, oysters,
shrimp, crabs, turtles, terrapins, mussels,
lobsters, and all other kinds and forms of marine
life, or sand, gravel, marl, mud shell, and all
other kinds of shell in accordance with the
authority vesteci) in it by this code. (Emphasis
added).

See also Parks and Wild. Code §86.001 et seq.

Where the legislature intends a particular patent or grant to
authorize a political subdivision to exercise control over the
products of submerged lands or flats, the legislature has expressly so
provided. See Parks and Wild. Code §86.012; Texas Parks and Wildlife
Department v. Champlin Petroleum Company, 616 S.W.2d 668 (Tex. Civ.
App. - Corpus Christi 1981, writ ref'd n.r.e.); see also Amdel
Pipeline Inc. v. State, 5451 S.W.2d 821 (Tex. 1976); Attorney General
Opinion MW-367 (1981). he legislature has provided counties and
cities with a procedure for using the products of river beds without

payment, see Parks and Wild. Code §§86.013, 86.014, but has not given
them jurisdiction over such products.

Consequently, we conclude that article 7467a was not intended to
confer upon qualifying cities the power to control the products of the
river beds relinquished by tte act. The act was necessary to prevent
property law hindrance in civic improvements caused by the state
holding title to river beds which are located within municipal
boundaries. Although such cities hold the authority to make certain
public improvements in, over, and around the river beds within their
boundaries, their power is not unlimited. Just as they cannot
alienate land impressed with a public trust without express
legislative authority, see Attorney General Opinion MW-489, they
cannot alienate the products. of land impressed with a public trust
without express legislative authority.

SUMMARY

Subject to the interest of the public free
school fund in the mineral estate in river beds
and channels which are held by the state in trust
for the public, article 7467a, V.T.C.S., constitu-
tionally relinquishes title to the portions of
river beds and channels which certain qualified
cities may acquire through annexation effected
pursuant to other authority. Such submerged lands
remain impressed with a public trust, and
products, including gravel, may not be removed
therefrom except for civil improvement projects
and cannot be exploited commercially by a city
without further express legislative authority.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible

Colin Carl

Susan Garrison

Tony Guillory

Jim Moellinger
Jennifer Riggs

Nancy Sutton