February 13, 1970 

Honorable Ben Barnes Opinion No.M-574 

Office of the Lieutenant Governor 

State Capitol Building Re: Authority of the Parks 

Austin, Texas 78711 and Wildlife Commission 

to expend funds for the 

purposes authorized in 

the Parks and Wildlife 

appropriation item number 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 and Wildlife 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 number 23 be financed? 

" 3 . If Parks and Wildlife appropriation 

item number 23 is construed as being made from 

Special Game and Fish Fund Number 9, can money 

from that fund legally be spent for the purposes 

authorized in appropriation item number 231 

"4. If the Parks and Wildlife 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 the water exchange pass be used for the passage of boats?" 

We quote the following from the appropriation to the 

Parks and Wildlife Department by House Bill 2, Acts of the 61st 

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lion. 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 detailed plans and specifications, and all other 

necessary costs in connection with first phase 

construction of a water 

exchange pass (and bridge) 

between Corpus Christi Bay 

and the Gulf of Mexico adjacent to Mustang Island 

according to preliminary 

engineering plans $ 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 Conservation Fund 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 from what 

fund or funds said appropriation is made. Likewise the "method 

of financing" provision relating to the appropriation does not 

indicate which funds are to be used to finance any particular 

item of appropriation, We therefore~conclude that whether an 

item of appropriation is paid out of.the General Revenue Fund, 

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Hon. Ben Barnes, page 3 (M-574) 

State Parks Fund No. 64, State Parks Special Mineral Fund No. 

267, Special Game and Fish Fund No. 9, Land and Water Recreation 

and Safety Fund No. 63, Varner Hogg Trust Account No. 961, 

Special Boat Fund No, 59, or Federal Land and Water Conservation 

Fund No. 223 is dependent upon the purpose for which the item 

of appropriation is made. Item 23 is for the purpose of providing "a water exchange pass (and bridge) between Corpus 

Christi Bay and the Gulf of Mexico adjacent to 'Mustang Island." 

Moneys appropriated by the Legislature may be expended for the purpose specified , provided the purpose is for 

governmental use 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 District No. 4, Shelby County v. Allred, 123 Tex. 

77, 68 S.W.Zd 164 (1934); Jefferson County v. 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 'our opinion that the purpose specified 

in Item 23 of the appropriation to'the Parks and Wildlife Department is for a governmental purpose or use as distinguished 

from a private use. You are accordingly advised in answer to 

your first question that Item 23 may be expended by the Parks 

and Wildlife Department for the purposes therein expressed. 

The Parks and Wildlife Department was created by the 

provisions of Article 978f-3a, Vernon's Penal Code. This 

article provides that the Special Game and Fish Fund shall be 

used for the purposes provided in the act and for purposes 

provided by 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 development of 

State parks. The Special Game and Fish Fund was created by 

the provisions of Article 438633, Vernon's Civil Statutes. 

Section 3 of Article 4386b provides: 

"Sec. 3, The Special Game and Fish Fund 

shall be used for the aggregate purposes for 

which the Special Game Fund, the Special Fish 

Propogation and Protection Fund, ,the Fish and 

Oyster Fund, the Sand, Shell and Gravel Fund, 

and the Lake Worth-Eagle Mountain Lake Fund is 

now directed by law to be used," 

In view of the foregoing,,it is our opinion that 

whether Item 23 of the above referred to appropriation is 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 "water exchange 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 

floating device, or to place any post, piling, 

obstruction, wire, rope, cable, net or trap, in 

or upon the waters 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 [now Parks and Wildlife Department] of 

the State of Texas as a fish pass, between the 

Gulf of Mexico and any inland bay, within a distance of two thousand, eight hundred (2,800) feet 

inside of such pass, measured from the mouth of 

said pass where it empties into or opens upon the 

Gulf of Mexico." (Brackets and emphasis ours.) 

You are therefore advised in answer to your second 

and third questions that if the Parks and Wildlife Department 

intends to maintain the "water exchange pass" as a fish pass, 

such funds may be expended from the Special Game and Fish 

Fund No. 9; otherwise, such item of appropriation should be 

expended from the General Revenue Fund. 

In answer to your fourth question, if the Parks and 

Wildlife Department maintains the "water exchange pass" as a 

fish pass, such pass cannot be used for the passage of boats. 

On the other hand, if the "water exchange pass" is not maintained by the Department as a fish pass, such pass may be used 

for the passage of boats, 

SUMMARY 

Item 23 of the appropriation to the Parks and 

Wildlife Department for construction of a "water 

exchange pass" 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 fish pass. 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 "water exchange 

pass" is maintained by the Department as a fish 

pass, such pass may not be used as a passage for 

boats. If it is not maintained by the Department as a fish pass, it may be used as a passage 

for boats. 

Prepared by John Reeves 

Assistant Attorney 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 

Executive Assistant 

NOLA WHITE 

First Assistant 

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