THEATI-ORNEY GENERAL 

OFTEXAS 

AUSTIN,I.TEXAR 

January 31, 1958 

Mr. W. J. Cutbirth, Jr., Opinion No. WW-357. 

Game and Fish Commission, 

Austin 14, Texas Re: Authority of the Game and Fish 

Commission to construct a small 

field laboratory on Federallyowned property licensed to the 

Dear Mr. Cutbirth: Game and Fish Commission. 

You have requested an opinion from this'office concerning the legality of the proposed construction by the Texas Game 

and Fish Commission of a small laboratory building on a tract of 

land owned by the Federal Government and held by the Game and 

Fish Commission under a twenty-year license at will. 

According to the facts, the Game and Fish Commission 

obtained possession of this land under a license from the Federal 

Government on October 11, 1946. At the time the Commission acquired possessiion of this property, there was located on the a', 

tract of land a small house which was used by the Commission 

for a laboratory in connection with marine biological research 

on Lake Texhoma. Flood waters during the Spring of 1957 damaged 

this building, and the Game and Fish Commission at present plans 

to replace this orlglnal building with another small building to 

be used for the same purpose. 

The license granted to the Game and Fish Commission Is 

for a period of twenty (20) years from October 11, 1946. The 

license Is revocable at will by the Secretary of War. The property Is to be used by the Game and Fish Commission as an official 

headquarters for Game Wardens and other official activities. 

The tract of land is adequately described In the license agreement. This license also provides that no liability shall accrue 

to the United States government because of the use of such facilities by the Commission, and that the use of such facilities is 

to be under the supervision and approval of the District Engineer. 

The license also grants authority to the Game and Fish Commission 

to construct such buildings and other structures as It may deem 

necessary. Further provisions are contained in the license 

which exempt the United States from any liability for the actlvities performed on the land by the Game and Fish Commission, and 

a right of ingress and egress is reserved to the United States 
Mr. w. J. Cutbirth, Jr., Pa& 2 (WW-3%'). 

for the purpose of removing timber and such other purposes as 

the United States may deem necessary. We also note that this 

land la subject to being flooded by the United States Government without llablllty. A final provision of the license provides that upon the expiration of the term of the license, or 

upon Its relinquishment by the Game and Fish Commission "all 

property of the licensee" may be removed by the Game and Fish 

Commission, and in the event the license is cancelled by the 

Secretary of War, said property must be removed within the 

time prescribed by the Secretary in such act of revocation. 

If the property la not removed within such period, it shall 

become the property of the United States Government, or in the 

alternative,, the Secretary of War may cause the property to be 

removed at the expense of the Game and Fish Commission. 

This office has previously held, in Att,orney General's 

Opinion No. O-6935 (1945), that the Game and Fish Commlssion has 

authority to erect buildings to house laboratory facilities 

under the provisions of Article 4030, Vernon's Annotated Civil 

Statutes; This statute provides for the making of scientific 

investigations and surveys of the marine life of the State for 

the better protection and conservation of same. We believe 

that the power to construct laboratory buildings is a necessary 

power Incidental to the right to make scientific investigations 

and surveys as provided In Article 4030, supra, and is a reasonable Dower to be implied from such statutory grant. We annrove 

this holding and cite in 

47 S.W. 2d 261, 121 Tex. 

And&son v. Brandon, 

360, 102 Tex. 323, 24 

Brown v. Clark, 116 S 

1909). 

also holds that the Game and Fish C&nmlssion would have author-. 

ity to purchase land upon which to construct such laboratory 

buildings, and cites in support of such holding Herring v. 

Houston National Bank, 114 Tex. 394, 269 S.W. 1031 (1925). 

We note that the appropriation to the Game and Fish 

Commission under House Bill 133, Acts 55th Legislature, Regular 

Sesslon,,Chapter 385, page 870 and page 987, provides for an 

appropriation out of the Special Game and Fish Fund "for necessary equipment and other canlta1 a&ay'! for the year ending 

August 31, 1958, and a similar amount for the year ending August 

31, 1959. The Special Game and Fish Fund referred to in the 

Appropriation Bill Is the successor to the "Fish and Oyster 

Fund" created by Article 4030 for the purpose of making sclentiflc investigations and surveys. Art. 4386a, V.C.S. It la 

our opinion that the provision for capital outlay and necessary 

equipment would include and encompass the construction and 

equipping of a laboratory building of the type described by 

you in your opinion request. 
Mr. W. J. Cutbirth, Jr., Page 3 (W'W357). 

Having concluded that the Game and Fish Commlsslon 

has authority to construct the laboratory buildings here In 

question, we turn now to the question of whether the Commlsslon may do so under the terms of'the license granted by the 

Federal Government, with a view to the problem of whether a 

State agency may construct buildings on property which it does 

not own in fee.~ As we have stated, the license granted by the 

Federal Government Includes the rlght,,as far as the Federal 

Government 1s concerned, to construct bulldlngs and other 

structures on the land involved, However, the license Is 

revocable at will and is for a term of twenty years, renewable 

at the option of the parties. 

We have been unable to find any authority, either In 

the State of Te as or In the other jurlsdictlons of the United 

States, concern r? ng the power of a State agency to build upon 

land over which It has a right of possession or ownership of 

less than fee simple absolute. However, In Opinion No. V-1170, 

this office oonsidered the right of the Hoard for Texas State 

Hospitals and Special Schools to place permanent Improvements 

upon land held by the State subject to a mineral reservation 

and conditions subsequent. Under the terms of the deed involved 

In this opinion, the Federal Government sold to the S,tate of 

Texas a tract of land known as Camp Fannin, wherein the Federal 

Government retained all mineral rights under the property in-.> 

volved. There were further llmltatlons to the effect that the 

State would not resell or lease the property and would use the 

property for a tuberculosis hospital for a period of twenty-five 

years. There was a further provision that the Federal Government, during national emergencies, was entitled to full unrestricted use, control and possession of the property, including 

all additions and Improvements made by the State of Texas. In 

this opinion It was held that the question of whether a bullding.was to be placed upon this particular land under the clrcumstances was to be determined in the exercise of sound discretion by the Hoard for Texas State Hospitals and Special 

Schools. 

Acoordingly, it is our opinion that the determination 

of whether a laboratory building of the type described in your 

request is to be built on the property licensed to the State of 

Texas by the Federal Government 1s a matter to be determined by 

the Game and Fish Commlsslon In the exercise of sound discretion. 

We would point out that there is some question as to 

whether a building constructed on the property belonging to the 

Federal Government could be removed under the provisions of the 

license. There Is a distinct possibility that such a building 

would become attached to the land as a fixture and would revert 
MI-. w. J. Cutbirth, Jr., Page 4 (WW-357). 

to the Federal Gavernment as a part of the land. As such, it 

might not constitute "property" under the license, and there 

could arise some question as to the right of the Game and Fish 

Commission to remove It from the land upon termination of the 

license. 

Because of the terms of this agreement, and because 

of the nature of the estate held by the Commlsslon, we would 

suggest thatno structure be bull,t on this land which was not 

fully movable as constructed, that is, on skids or other means. 

We would point out that this land Is subject to flooding by the 

Federal Government, and the State will have no right to collect 

from the Federal Government for any damages occasioned by such 

flooding. We would also point out that all the other privileges 

reserve5 to the United States Government could be exercised without recourse by 

to the property 

the Commission Insofar as any damages occasioned 

of the State of Texas would be concerned. 

SUMMARY 

The Game and Fish Commission has 

authority under Article 4030, V.C.S., 

to construct a building to house 

laboratory faclllties for the purpose 

of making scientific Investigations 

and surveys of marine life. The 

appropriation to the Game and Fish 

Commission for the biennium ending 

August 31, 1959, authorizes expenditure::of funds for such purposes. 

Whether or not the Game and Fish 

Commission is to construct a small 

laboratory building on a tract of 

land licensed to the Game and Fish 
.c 

Mr. W. J. Cutblrth, Jr., Page 5 (WW-357). 

Commission by the Federal Government 

1s a question to be determined ln 

exercise of sound discretion by the 

Game and Fish Commission. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

John H. Mlnton, Jr.; 

Assistant 

JHM:jl:pf 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

J. Mark McLaughlin 

Jack Goodman 

Ralph R. Rash 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert.