THE A’ITORNEY GENERAL 

OF’ TE%AS 

Aun-rmr. TXCXAS 787ll 

March 14, 1974 

The Honorable Clayton T. Garrison 

Executive Director 

Texas Parks & Wildlife Dept. 

John H. Reagan Bldg. 

Austin, Texas 78701 

Dear Mr. Garrison: 

Opinion No. H- 257 

Re: Whether Parks and Wildlife may spend state funds, 

matched by federal funds, 

for construction of facilities 

0x1 land owned in whole or in 

part by federal government. 

You have requested an opinion on whether the Parks and Wildlife 

Department (the Department) may contract with the federal government 

to share the cost of constructing recreation facilities for state parks if 

title to the facilities will be retained in whole or in part by the federal 

government. 

The Reservoir Public Parks and Recreational Facilities Act, 16 

U. S. C. A. $460d, authorizes the Corps of Engineers to construct, 

maintain, and operate public park and recreation facilities on the land 

adjacent to reservoir projects under its control. In addition the Act 

authorizes the, Corps to lease the adjoining lands to state and local 

agencies for park purposes. Pursuant to this authority the Corps has 

leased four separate sites to the Parks and Wildlife Department: the 

Department has established and is operating a state park at each one 

of these sites. The leases ordinarily run for a period of fifty years 

and are subj,ect to renewal. 

Recently the Corps has advised the Department that federal funds 

are available to match state expenditures for the construction of 

recreation facilities at each of the park sites the Department leases. 

The Corps has proposed a contract under the terms of which the cost 

of construction would be shared equally and each party would retain 
The Honorable Clayton T. Garrison, page 2 (H-257) 

an undivided interest in completed facilities proportionate to the 

costs it had paid. Immediately upon completion of a facility the 

federal government’s undivided interest in it would be leased to the 

Department for the lifetime of the facility or for the remaining term 

of the lease on the underlying real property. In return the Department 

would be obligated to maintain and operate the facility during the time 

it is occupied by the State. Alternatively the Corps proposes an 

agreement whereby construction costs are again shared equally but 

the federal government retains title to the completed facility in its 

entirety and leases it to the Department to be operated and maintained 

during its lifetime or for the remaining term of the lease on the 

underlying real property, which ever is the shorter term, a period 

of approximately fifty years. The Department asks whether it has the 

authority to enter into either of the agreemen& proposed by the Corps. 

When established, the Department was given all the powers and 

duties that previously had been vested in the Texas State Parks Board. 

Art. 978f-3a, Vernon’s Texas Penal Auxiliary Laws. One of the 

State Parks Board’s most important duties was to acquire state park 

sites by purchase, gift, or otherwise and “to improve, beautify, and 

equip, and to contract with any person, firm, or corporation for the 

improvement, beautification or equipment of the State parks of this 

State to such an extent as to said Board might be deemed advisable. ‘I 

Art. 6070b, V. T. C. S. In 1971 the Legislature created a new special 

fund, the Texas Parks Fund, to be used by the Department for the 

acquisition, planning, and development of state parks. § 3, Art. 7. 06, 

Taxation-General, V. T. C. S. 

Furthermore, the Appropriations Act for fiscal years 1974 and 1975 

contains a ‘substantial appropriation of funds to be used by the Department 

for the planning, acquisition, and development of state parks. (Acts 

1973, 63rdLeg.. ch. 659 at 2007). Item 23 provides: 

“There is hereby appropriated from the Texas Park Fund.. . 

for the purpose of planning, acquisition and development of State 

parks and State historic sites. Such expenditures include, but 

are not limited to, salaries and wages, professional services 

and fees, travel, capital outlay, including land and improvements 

p* 1199 
The Honorable Clayton T. Garrison, page 3 (H-257) 

thereto, and all o.ther necessary costs and expenses whether 

by contract or direct payments. “(emphasis added) 

A special rider found at p. 2012, chapter 659, s, provides as 

follows: 

“Any federal grants, allocations or aids for 

. improving, developing and planning public 

parks. . may be accepted and disbursed through 

the State Treasury by said Department for the 

purposes for which they were granted and are 

hereby appropriated for such purposes. . . . ” 

The effact of these statutes is to equip the Department with broad 

authority, and the necessary funds, to acquire state parks and to 

improve and develop them. They also permit the Department to contract 

with other persons or agencies for the achievement of these objectives 

and to accept and utilize any federal funds offered for these purposes. 

An agreement with the federal government to share the costs of constructing 

recreation facilities in state parks already established by the Department 

will clearly result in an improvement of the parks and is apparently the 

kind of cooperative venture the Legislature envisioned the Department 

would undertake under the authority of Art. 6070b. Therefore it is our 

opinion that the Department has both the statutory authority and the 

necessary appropriations to enter into the contracts proposed by the 

Corps of Engineers. 

But even though statutorily authorized, an agreement made by the 

Department is unlawful if it violates the constitutional prohibition 

contained in Article 3, $ 51, of the Texas Constitution which states: 

“The Legislature shall have no power to make 

any grant or authorize the making of any grant of 

public moneys to any individual, association of 

individuals, municipal or other corporations whatsoever. ” 

p. 1200 
The Honorable Clayton Garrison, page 4 (H-257) 

Because of this provision, it might be argued that the contracts 

require the Department to expend state funds for the benefit of an 

individual, in this case the federal government. 

Texas courts have consistently held tha.t the constitutional prohibition 

against gratuitous grants is not violated so long as the expenditure under 

scrutiny is made for a valid public purpose. Bullock v. Calvert, 480 

S. W. 2d 367 (Tex. 1972). If the primary purpose of the expenditure 

is a proper public one, it matters not that an incidental benefit is derived 

by an individual or a particular group. State v. City of Austin 331 S. W. 

2d 737 (Tex. 1960) and Barrington v. Cokinos, 338 S. W. 2d 133 (Tex. 1960). 

When an expenditure of state funds is required by a contractual arrangement to which the state or one of its agencies is a party, the constitutional 

stricture against gratuitous grants is satisfied if the state receives something of value in return, a “quid pro quo”. Byrd v. City of Dallas, 6 S. W. 

2d 738 (Tex. 1928); see generally Attorney General Opinion H-109 (1973) 

and cases cited therein. 

The agreements suggested,by the Corps of Engineers unquestimably 

have a valid public purpose, e. g. enhancing the recreational value of 

state parks by constructing additional recreational facilities in them. 

Although under their terms the federal government may retain title to 

all facilities constructed, they will be leased to the Department for their 

entire useful life, or at least for as long as the lease of the underlying 

real property continues. The Department will retain control over the 

facilities and, as a result, will be in a position to insure that they are 

used for their intended public purpose. 

Therefore since the contracts in question have a valid public purpose 

and do not’require the Department to expend state funds without receiving 

anything in return, they do not violate the constitutional prohibition 

against the gratuitous grant of public money. The.Department may 

lawfully accept either of the contractual a.rrangements proposed by the 

Corp of Engineers. 

p0 1201 
The Honorable Clayton Garrison, page 5 (H-257) 

SUMMARY ------e-w 

The Parks atid Wildlife Department may contract 

with the federal government to share the cost of constructing 

recreation fakilities for state parks leased from the 

federal government even though title to the facilities will 

be retained by the federal government. 

Yours very truly, 

JOHN L. HILL 

Attorney General of Texas 

Opinion Committee 

p* 1202