# 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 offacilities 0x1land owned inwhole or in part by federal government.

You have requested an opinion onwhether the Parks andWildlife 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 inwhole or inpart 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 onthe land adjacent to reservoir projects under its control. Inaddition the Act authorizes the,Corps tolease 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 ofthese sites. The leases ordinarily run for aperiod offifty 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 ofthe park sites the Department leases. The Corps has proposed a contract under the terms ofwhich the cost of construction would be shared equally and each party would retainThe Honorable Clayton T. Garrison, page 2 (H-257)

anundivided interest in completed facilities proportionate to the costs ithad paid. Immediately upon completion ofafacility the federal government’s undivided interest initwould be leased to the Department for the lifetime ofthe facility or for the remaining term ofthe lease onthe underlying real property. Inreturn 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 itto the Department tobe operated andmaintained during its lifetime or for the remaining term ofthe lease onthe underlying real property, which ever is the shorter term, aperiod of approximately fifty years. The Department asks whether ithas the authority to enter into either ofthe agreemen& proposed by the Corps.
When established, the Department was given all the powers and duties that previously hadbeen vested inthe Texas State Parks Board. Art. 978f-3a, Vernon’s Texas Penal Auxiliary Laws. One ofthe State Parks Board’s most important duties was to acquire state park sites by purchase, gift, or otherwise and “to improve, beautify, and equip, andto contract with any person, firm, or corporation for the improvement, beautification or equipment ofthe State parks ofthis State to such an extent as to said Board might be deemed advisable. ‘I Art. 6070b, V.T. C.S. In 1971the Legislature created anew special fund, the Texas Parks Fund, tobe 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 offunds tobe 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 ofplanning, acquisition and development of State parks and State historic sites. Such expenditures include, but are not limited to, salaries andwages, professional services andfees, travel, capital outlay, including land and improvements

p* 1199The 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 atp. 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 ofthese statutes is to equip the Department with broad authority, andthe 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 ofthese 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 inan improvement ofthe 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 ifitviolates the constitutional prohibition contained inArticle 3, $51, ofthe Texas Constitution which states:

“The Legislature shall have nopower to make any grant or authorize the making ofany grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever. ”

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

Because of this provision, itmight be argued that the contracts require the Department to expend state funds for thebenefit ofan individual, inthis case the federal government.
Texas courts have consistently held tha.tthe constitutional prohibition against gratuitous grants is not violated so long as the expenditure under scrutiny is made for avalid public purpose. Bullock v. Calvert, 480 S. W. 2d 367 (Tex. 1972). Ifthe primary purpose ofthe expenditure is aproper public one, itmatters not that an incidental benefit is derived by an individual or aparticular group. State v. City ofAustin 331S.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 towhich the state or one of its agencies is aparty, the constitutional stricture against gratuitous grants is satisfied ifthe state receives something ofvalue inreturn, a “quid pro quo”

. Byrd v. City ofDallas, 6S.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 avalid 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 atleast for as long as the lease ofthe underlying real property continues. The Department will retain control over the facilities and, as a result, will be in aposition to insure that they are used for their intended public purpose. Therefore since the contracts in question have avalid public purpose and donot’require the Department to expend state funds without receiving anything in return, they donot violate the constitutional prohibition against the gratuitous grant ofpublic money. The.Department may lawfully accept either ofthe contractual a.rrangements proposed by the Corp of Engineers.

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

SUMMARY ------e-w The Parks atidWildlife 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