Honorable H. D. Do&en Opinion No. WW- 389 

Executive Secretary 

Game and Fish Commission Re: Does the Game and Fish CommisAustin, Texas sion have legal authority~to 

expend its funds for the purpose 

of maintaining Port Mansfield 

8 Pass when the primary purpose of 

such pass is for use as a naviDear Mr. Dodgen: gable waterway? 

You have requested our opinion on the following question which we quote f:om your letter of January 29, 1958: 

Vhe Willacy County Navigation District has 

completed a navigation channel existing from 

Port Mansfield across the Laguna Madre and continuing with a connecting pass through Padre Island to the Gulf of Mexico. Some difficulty has 

been experienced with this pass filling with sand 

as a result of erosion on the Gulf side. 

"Judge Johnson, Port Director for the Navigation District, recently appeared before the Game 

and Fish Commission requesting that the Commission 

expend the sum of approximately $30,000 to remove 

the material that is filling up the mouth of the 

pass so as to keep it open to allow fish migrations from the Gulf to the inland waters. 

TInasmuch as the Navigation District in question has-constructed this pass and channel at a 

cost of approximately $3,000,000, as a navigation 

venture, the Game and Fish Commission has doubts 

as to the legality of spending Game and Fish conservation funds to help maintain such a pass. 

"As a consequence of this situation, I am requested to ask your opinion on the subjecf;,,&*;'Does 

the Game and Fish Commission have legal authority, 

in light of H. B. 952, Acts 1939, Regular Session, 

1946 to expend its funds for the purpose of maintaining Port Mansfield pass when the primary purpose of such pass Is for use as a navigable wa'terway?"' 
Honorable H. D. Dodgen, page 2 WJ- 389) 

Article 4049c, Vernon's Civil Statutes, constitutes 

the authority of the Game and Fish Commission to acquire, construct, and maintain passes from one body of tide-water to 

another to allow the passage of fish and the equalization of 

the saline content of the various waters. Attorney General's 

Opinion R-1930 (1949). This Article reads as follows: 

"Art. 4049c, Purchase or condemnation of 

lands, water rights, etc., for fresh water 

hatcheries 

ing channe i s. 

and for constructing and maintain- 

"Section 1. The State of Texas, through 

the Game Fish and Oyster Commission, shall have 

the right to acquire by purchase any and all land 

in this State that may be deemed necessary for 

the construction, maintenance, enlargement and 

operation of fresh water fish hatcheries, and for 

the construction and maintenance of passes leading from one body of tide-water to another. Upon 

approval of the title by the Attorney General of 

this State said Game, Fish and Oyster Commission 

is hereby authorized to pay for such land so purchased out of any money that has been, or may be 

hereafter appropriated to it by the Legislature. 

"Sec. 2. The State of Texas, through the 

Game Fish and Oyster Commission shall have the 

right, power and authority to en E er upon, condemn, 

and appropriate lands, easements, rights-of-way 

and property of any person or corporation in the 

State of Texas for the purpose of erecting, constructing, enlarging and maintaining fish hatcheries? buildings, equipment, roads, passage-ways 

to said hatcheries and also shall have the right, 

power and authority to enter upon, condemn and 

appropriate lands, easements, rights-of-way and 

property of any person or corporation in this 

State for the purpose of constructing, enlarging 

and maintaining passes or channels from one body 

of tide-water to another body of tide-water in 

this State. Provided that the manner and method 

of such condemnation 

damages therefor sha i 1 be the same as is now proassessment, and payment of 

vided by law in the case of railroads." 

We do not believe however, that the terms of this Article authorize the expenditure of State moneys for the purpose 
Honorable H. D. Dodgen, Page 3 NW- 389) 

of maintaining passes primarily for navigational purposes constructed by an entity other than the Game and Fish Commission. 

We believe that the authority granted to the Game and Fish 

Commission by this statute to maintain passes leading from one 

body of tide-water to another is limited to passes constructed 

by the Game and Fish Commission, as opposed to concerns unconnected with the Game and Fish Commission work. 

Accordingly, we hold that under the facts and circumstances recited to us, the Game and Fish Commission may not 

expend appropriated public moneys for the purpose of removing 

sand and other material from the mouth of a channel constructed 

for navigational purposes by the Willacy County Navigation District. 

SUMMARY 

Under the stated facts the Game and Fish Commission may not expend appropriated public moneys 

for the purpose of removing sand and other material 

from the mouth of a channel constructed for navigational purposes by the Willacy County Navigation 

District. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JHM:pf:wb 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

Houghton Brownlee, Jr. 

Cecil Rotsch 

Jack Goodman 

H. Minton, Jr. 

REVIEWED FOR THE ATTORNEY GENERAL 

BY W. V. Geppert