### THEATI-ORNEY GENERAL

OFTEXAS

AUSTIN,I.TEXAR

January 

### 31, 1958

Mr. W. J. Cutbirth, Jr., OpinionNo.

### WW-357. Game and Fish Commission, Austin 14, Texas Re: Authority of the Game and Fish Commission to construct a small field laboratoryon Federallyowned property licensed to the Dear Mr. Cutbirth: Game and Fish Commission.

You have requested an opinion from this'office concerning the legality of theproposed constructionby the Texas Game and Fish Commissionof a small laboratorybuilding on a tract of land owned by the Federal Governmentand held by the Game and Fish Commissionunder a twenty-year license at will.

According to the facts, the Game and Fish Commission obtainedpossession of this land under a license from the Federal Government on October 11, 

### 1946. At the time the Commission acquiredpossessiion of this property, therewas located on the a', tract of land a smallhouse which was used by the Commission for a laboratory in connectionwith marine biological research
on Lake Texhoma. Flood waters during the Spring of 1957 damaged thisbuilding, and the Game and Fish Commission at present plans to replace this orlglnalbuilding with another smallbuilding to be used for the samepurpose.

The licensegranted 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 tobe used by the Game and Fish Commission as an official headquarters for GameWardens and other official activities. The tract of land is adequatelydescribed In the license agreement. This license also provides thatno liability shall accrue to the United States governmentbecause of the use of such facilities by the Commission, and that theuse of such facilities is to be under the supervisionand approval of the District Engineer. The license also grants authority to the Game and Fish Commission to construct suchbuildings and other structuresas 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 StatesMr. w. J. Cutbirth, Jr., Pa& 2 (WW-3%').

for thepurpose of removing timber and such other purposes as the United Statesmay deem necessary. We also note that this land la subject to being floodedby the United States Government without llablllty. A final provision of the licenseprovides that upon the expiration of the term of the license, or upon Its relinquishmentby the Game and Fish Commission "all property of the licensee"may be removedby the Game and Fish Commission, and in the event the license is cancelledby the Secretary of War, saidpropertymust be removedwithin the time prescribedby the Secretary in such act of revocation. If theproperty la not removedwithin suchperiod, it shall become theproperty of the United States Government, or in the alternative,,

the Secretary of War may cause theproperty to be removed at the expense of the Game and Fish Commission.

This office has previouslyheld, in Att,orney General's OpinionNo. O-6935 (1945),that the Game and Fish Commlssionhas authority to erect buildings to house laboratory facilities under theprovisions of Article 4030,Vernon's Annotated Civil Statutes; This statuteprovides for themaking of scientific investigations and surveys of the marine life of the State for the better protection and conservationof same. We believe that thepower to construct laboratorybuildings 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 statutorygrant. 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&nmlssionwould have author-. ity to purchase land upon which to construct such laboratory buildings, and cites in support of such holding Herring v. Houston NationalBank, 114 Tex. 394, 269 S.W. 1031 (1925).

We note that the appropriationto the Game and Fish Commissionunder House Bill 133, Acts 55th Legislature,Regular Sesslon,,Chapter385, page 870 andpage 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 theyear endingAugust 31, 1959. The Special Game and Fish Fund referred to in the AppropriationBill Is the successor to the "Fish and Oyster Fund" createdby Article 4030 for thepurpose of making sclentiflc investigationsand surveys. Art. 4386a,V.C.S. It la

our opinion that the provision for capital outlay and necessary equipmentwould include and encompass the constructionand equipping of a laboratorybuilding of the type describedby 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 laboratorybuildings here In question,we turnnow to the question of whether the Commlsslonmay do so under the terms of'the license granted **by** the Federal Government,with a view to theproblem of whether a State agencymay constructbuildings on propertywhich it does not own in fee.~ Aswe have stated, the licensegranted by the Federal Government Includes the rlght,,as far as the Federal Government 1s concerned, to constructbulldlngs and other structures on the land involved, However, the license Is revocable at will and is for a term of twentyyears, 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 jurlsdictlonsof 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 rightsunder theproperty in-.> volved. Therewere further llmltatlons to the effect that the State would not resell or lease theproperty and would use the property for a tuberculosishospital for a period of twenty-five years. Therewas a furtherprovision that the Federal Government, during national emergencies,was entitled to full unrestricteduse, control and possession of theproperty, including all additions and Improvementsmade by the State of Texas. In this opinion It was held that the question of whether a bullding.was tobe placed upon thisparticular land under the clrcumstanceswas to be determined in the exercise of sounddiscretionby the Hoard for Texas State Hospitals and Special Schools.
Acoordingly,it is our opinion that the determination of whether a laboratorybuilding of the type described in your request is to be built on theproperty licensed to the State of Texasby theFederal Government 1s a matter tobe determinedby 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 constructedon theproperty belonging to the Federal Government couldbe removedunder the provisions of the license. There Is a distinctpossibility that such a building would become attached to the land as a fixture and would revertMI-.

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 terminationof 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 structurebe bull,ton this landwhich was not fully movable as constructed, that is, on skids or other means. We would point out that this land Is subject to floodingby the Federal Government,and the State will have no right to collect from the Federal Government for any damagesoccasionedby such flooding. We would also point out that all the other privileges

United States Government couldbe exercisedwithreserve5 to the out recourseby to the property the Commission Insofar as any damages occasioned

of the State of Texaswould be concerned.

SUMMARY

The Game and Fish Commissionhas authorityunder 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 appropriationto the Game and Fish Commission for the biennium ending August 31, 1959, authorizes expenditure::of

funds for suchpurposes. Whether or not the Game and Fish Commission is to construct a small laboratorybuilding on a tract of land licensed to the Game and Fish.c

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

Commissionby theFederal Government 1s a question to be determined ln exercise of sound discretionby the Game and Fish Commission.

Yours very truly,

WILL WILSON AttorneyGeneral 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.