February 13, 1970

Honorable Ben Barnes OpinionNo.M-574 Office of the LieutenantGovernor State Capitol Building Re: Authority of the Parks Austin, Texas 78711 andWildlife Commission to expend funds for the purposes authorized in the Parks andWildlife appropriation itemnumber 23, of the General Appropriation Bill, 1970- 71 biennium, and related Dear Lieutenant Governor Barnes: questions.

Your request for an opinion asks the following questions:"1. Does the Parks andWildlife Commission have authority to expend funds,for the purposes authorized in Parks and Wildlife appropriation item number 231 "2

. From what appropriation fund or funds can Parks and Wildlife Department appropriation item number23 be financed?
"3

. If Parks andWildlife appropriation item number 23 is construed as being made from Special Game and Fish Fund Number 9, can money from that fund legallybe spent for the purposes authorized in appropriation itemnumber 231 "4. If the Parks andWildlife Commission has the authority to expend money from its appropriation for the purposes spelled out in appropriation item number 23 --whether the financing comes from Special Game and Fish Fund Number 9 or from any other source -- can thewater exchange pass be used for the passage of boats?"
We quote the following from the appropriationto the Parks andWildlife Departmentby House Bill 2, Acts of the 61st

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Ben Barnes, page 2 (M-574)

Legislature, 2nd C.S., 1969, at pages 111-117, 118:

"For the Years Ending August 31, August 31, 1970 1971
“23. For preparation of detailedplans and specifications, and all other necessary costs in connectionwith first phase construction of a water exchange pass (andbridge) between Corpus Christi Bay and the Gulf of Mexico adjacent to Mustang Island according to preliminary engineeringplans $ 1,500,000 $ 1,500,000
GRAND TOTAL, PARES AND WILDLIFE DEPARTMENT $20,069,313 $19,004,191 Method of Financing: General Revenue Fund $ 5,169,772 State Parks Fund No. 64 662,280 State Parks Special Mineral Fund No. 267 6,595 Special Game and Fish Fund No. 9 11,186,501 Land and Water Recreation and Safety Fund No. 63 1,800,000 Varner Hogg Trust Account NO. 961 6,765 Special Boat Fund No. 59 300,000 Federal Land and Water ConservationFund No. 223 937,400 $ 4,354,735 730,120 6,595 11,334,484 1,800,000 6,765 300,000 471,492 Total $5 $19,004,191"

It is noted that Item 23 does not specify fromwhat fund or funds said appropriation ismade. Likewise the "method of financing"provision relating to the appropriationdoes not indicatewhich funds are to be used to finance any particular item of appropriation, We therefore~concludethatwhether an item of appropriation is paid out of.the General Revenue Fund,

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State Parks Fund No. 64, State Parks SpecialMineral FundNo. 267, SpecialGame and Fish Fund No. 9, Land and Water Recreation and Safety Fund No. 63,Varner Hogg Trust AccountNo. 961, Special Boat Fund No, 59, or Federal Land andWater Conservation Fund No. 223 is dependent upon the purpose forwhich the item of appropriation ismade. Item 23 is for the purpose of providing "awater exchange pass (andbridge) between Corpus Christi Bay and the Gulf of Mexico adjacent to 'Mustang Island." Moneys appropriatedby the Legislaturemay be expended for the purpose specified,provided the purpose is for governmentaluse or purposes as distinguished from private purposes. State v. City of Austin, 160 Tex. 348, 331 S.W.Zd 737 (1960);Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761 (1920):Road DistrictNo. 4, Shelby Countyv. Allred, 123 Tex. 77, 68 S.W.Zd 164 (1934);Jefferson Countyv. Board of County and District Road Indebtedness,, 143 Tex. 99, 182 S.W.2d 908 71944); City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 918 (1923). It is 'ouropinion that the purpose specified in Item 23 of the appropriation to'theParks and Wildlife Department is for a governmentalpurpose or use as distinguished from a private use. You are accordinglyadvised in answer to your first question that Item 23may be expendedby the Parks and Wildlife Department for the purposes therein expressed.

The Parks and Wildlife Departmentwas createdby the provisions of Article 978f-3a,Vernon's Penal Code. This articleprovides that the Special Game and Fish Fund shall be used for the purposes provided in the act and forpurposes providedby law, and also prohibits the use of money heretofore authorized for park purposes to be expended for any other purpose than the operation,maintenance or developmentof State parks. The Special Game and Fish Fundwas createdby the provisions of Article 438633, Vernon's Civil Statutes. Section 3 of Article 4386bprovides:

"Sec. 3, The Special Game and Fish Fund shallbe used for the aggregatepurposes for which the Special Game Fund, the Special Fish Propogation and Protection Fund, ,theFish and Oyster Fund, the Sand, Shell and Gravel Fund, and the LakeWorth-Eagle Mountain Lake Fund is now directedby law to be used,"
In view of the foregoing,,it is our opinion that whether Item 23 of the above referred to appropriationis to be expended from the Special Game and Fish Fund depends upon

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Hon. Ben Barnes, page 4 (M-574)

the use intended to be made by the Parks and Wildlife Department of the "waterexchange pass." In this connection it is to be noted that House Bill 952,Acts of the 56th Legislature,R,S., 1939, Ch. 84, of the Special Laws (Article 978f, note V.P,C.)makes it unlawful:

II

. . . for any person to use, operate, sail, anchor, tie, or moor to the bank any boat, sailboat, motorboat, skiff,barge, raft, or other floatingdevice, or to place any post, piling, obstruction,wire, rope, cable, net or trap, in or upon thewaters of any natural or artificial pass which is now or may be hereafter opened, reopened, dredged, excavated, constructed, and maintained, by the Game, Fish and Oyster Commission [nowParks andWildlife Department]of the State of Texas as a fishpass, between the Gulf of Mexico and any inlandbay,within a distance of two thousand, eight hundred (2,800)feet inside of such pass,measured from themouth of saidpass where it empties into or opens upon the Gulf of Mexico." (Bracketsand emphasis ours.)
You are therefore advised in answer to your second and third questions that if the Parks and Wildlife Department intends tomaintain the "waterexchange pass" as a fish pass, such fundsmay be expended from the Special Game and Fish Fund No. 9; otherwise, such item of appropriation shouldbe expended from the General Revenue Fund.

In answer to your fourth question, if the Parks and Wildlife Departmentmaintains the "waterexchangepass" as a fish pass, such pass cannotbe used for the passage of boats. On the other hand, if the "waterexchangepass" is not maintainedby the Department as a fish pass, such pass may be used for the passage of boats,
SUMMARY
Item 23 of the appropriationto the Parks and Wildlife Department for constructionof a "water exchangepass" may be expended for the purposes specified in Item 23 and such expenditure is payable from either the Special Game and Fish Fund No. 9 or the General Revenue Fund, depending upon whether such pass is intended to be maintained by the Department as a fishpass. If it is to be

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Hon. Ben Barnes, page 5 (M-574)

maintained as a fish pass, such item of appropriation is payable from the Special Game and Fish Fund; otherwise it is payable from the General Revenue Fund. If the "waterexchange pass" ismaintained by the Department as a fish pass, such pass may not be used as a passage for boats. If it is not maintainedby the Department as a fishpass, itmay be used as a passage for boats.

Prepared by John Reeves AssistantAttorney General
APPROVED: OPINION COMMITTEE . MARTIN y General of Texas

Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman Roger Tyler Houghton Brownlee Jack Sparks Monroe Clayton
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER ExecutiveAssistant
NOLA WHITE First Assistant

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