Honorable H. D. Do&en OpinionNo. WW- 389

Executive Secretary Game and Fish Commission Re: Does the Game and Fish CommisAustin, Texas sionhave legal authority~to expend its funds for the purpose ofmaintaining PortMansfield 8 Passwhen the primarypurpose of suchpass is for use as a naviDear Mr. Dodgen: gablewaterway?

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

Vhe Willacy County Navigation Districthas completed a navigation channel existing from PortMansfield across the LagunaMadre and continuingwith a connecting pass through Padre Island to the Gulf of Mexico. Some difficultyhas been experiencedwith 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 Commissionrequesting that the Commission expend the sum of approximately $30,000 to remove thematerial that is filling up themouth of the pass so as to keep it open to allow fish migrations from the Gulf to the inlandwaters.

TInasmuchas the Navigation District in questionhas-constructed this passand channel at a cost of approximately $3,000,000,as a navigation venture, the Game and Fish Commissionhas doubts
as to the legality of spendingGame and Fish conservation funds tohelp 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 Commissionhave legal authority, in light of H. B. 952,Acts 1939, Regular Session, 1946 to expend its funds for the purpose of maintaining Port Mansfield passwhen 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 equalizationof the saline content of the various waters. Attorney General's OpinionR-1930 (1949). ThisArticle reads as follows:

"Art.4049c, Purchase or condemnation of lands, water rights, etc., for freshwater hatcheries ing channe s.

i and for constructingand maintain-

"Section 1. The State of Texas, through the Game Fish and Oyster Commission, shallhave the right to acquire by purchaseany and all land in this State thatmay be deemednecessary for the construction,maintenance, enlargementand operation of fresh water fish hatcheries, and for the constructionand maintenance of passes leading from one body of tide-water to another. Upon approval of the title by theAttorney General of this State saidGame, Fish and OysterCommission is hereby authorized to pay for such land so purchased out of any money thathas been, or may be hereafter appropriated to it by the Legislature.

"Sec. 2. The State of Texas, through the Game Fish and Oyster Commission shallhave the right, power and authority to en er upon, condemn, E 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 saidhatcheries and also shallhave the right, power and authority to enter upon, condemn and appropriate lands, easements, rights-of-wayand 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 themanner and method of such condemnation damages therefor sha 1 be the same as is now proi assessment,and payment of

vided by law in the case of railroads."

We do not believe however, that the terms of thisArticle authorize the expenditure of Statemoneys for the purposeHonorable H. D. Dodgen, Page 3 NW- 389)

of maintaining passes primarily for navigational purposes constructedby an entity other than the Game and Fish Commission. We believe that the authority granted to the Game and Fish Commissionby 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 concernsunconnected with the Game and Fish Commissionwork.

Accordingly,we hold that under the facts and circumstancesrecited to us, the Game and Fish Commissionmay not expend appropriated publicmoneys for the purpose of removing sand and othermaterial from the mouth of a channel constructed for navigational purposesby the Willacy County Navigation District.

SUMMARY

Under the stated facts the Game and Fish Commission may not expend appropriated publicmoneys for the purpose of removing sandand othermaterial from the mouth of a channel constructedfor navigational purposesby the Willacy County Navigation District.

Yoursvery 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