February 14, 1975

The Honorable Clayton T. Garrison Executive Director Opinion No. H- 528 Texas Parks &Wildlife Department John H. Reagan Bldg. Austin, Texas 78701 Re: May the Parks and Wildlife Department lease land toprovide feed for white-winged doves under article879a-6, Penal Auxiliary Laws. Dear Mr. Garrison:

You have asked our opinion on two questions concerning the Department’s authority to expend funds under aprogram designed toprotect the white-winged dove. One question asks whether certain expenditures are proper “for acquisition ofwhite-winged dove habitat” and the other asks whether similar expenditures may legally be made “for research and management for the protection ofwhite-winged doves. ”

Article 879a-6, Penal Auxiliary Laws, authorizes the Parks and Wildlife Department to sell white-winged dove stamps and prohibits hunting the doves without a stamp. Section 4(c) ofthat article states that: The Commission shall deposit the proceeds

from the sale of stamps in the state treasury in Special Game and Fish Fund No. 9. One-half of these proceeds may be expended only for research and management for the protection ofwhite-winged dove and the other one-half ofthese proceeds may only be expended ior the acquisition ofwhite-winged dove habitat in the state. 1n,an earlier opinion, Attorney General Opinion M-1084 (1972), this office concluded that despite article 879a-6, the Parks and Wildlife Department could not expend any funds for the acquisition ofwhite-winged

p. 2383The Honorable Cisyton T. Garrison page 2 W- 528)

dove habitat because the Legislature had failed toappropriate any funds for thal purpose. The problem was partially solved with the passage of the Genera! Appropriation Bill for the biennium beginning Sept. 1, 1973. It c-ontains anappropriation of $37, 500for 1974and alike amount for 1975“to be expended for the acquisition ofwhite-winged dove habitat. ” Acts i973, 63rd Leg., ch. 659, p. 2005. But noappropriation has been made for “research and management for the protection ofwhite wing dove. ” Itis apparent that the Legislature which enacted article 879a-6, section 4(c) had two distinct activities in mind because it earmarked portions ofstamp-sale income which could be used for one ofthe purposes, butnot for the other.

Since the Legislature has seen fit toappropriate funds for only one ofthe two authorized programs, the Department is not permitted to expend funds for the other. Thus, there are noappropriated funds for research and management for the protection ofthe white-winged dove, and it is unnecessary to consider your specific questions about expenditures for that purpose.

Your other question asks:

1. Is the ‘Department authorized to expend aportion ol the one-half proceeds dedicated byarticle 879a-6 Penal Auxiliary Laws, “for acquisition ofwhite-winged dove habitat” to a) lease land for thepurpose ofgrowing grain crops or tolease land with standing grain crops to provide feed for white-winged doves? b)purchase farmland for the express purpose of grnwlng grain crops toprovide feed for white-winged doves? c) purchase farmland for the express purpose of growing brush (reforestation) to provide nesting and roosting habiiat~ for white-winged doves’?

p. 2384The Honorable Clayton T. Garrison page 3 (H- 528)

d) buy equipment and pay salaries and operating expenses for the purposes ofgrowing brush (reforestation) to provide nesting and roosting habitat and togrow crops to provide feed for white-winged doves? The four general types ofactivities you mention appear tobe related to the acquisition ofhabitat for the white-winged dove, and tothe extent that they, in fact, constitute such acquisition, you are authorized by articl,e 879a-6 and by theAppropriations Act to expend funds for those purposes. We do not believe that the fact that land may be leased rather than purchased will prevent its being acquired for the purposes ofthe statute. Whether any specific activity qualifies as apart ofaprogram for the acquisition ofhabitat involves fact questions which we are not authorized to answer. SUMMARY The Legislature has appropriated nofunds for research and management for the protection ofthe white-tinged dove. Funds are appropriated and may be spent for acquisition ofhabitat for the white-winged dove. Very truly yours,



# u Attorney General of Texas

C. ROBERT HEATH, Chairman Opinion Committee

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