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THEA~ORNEY GENERAL 

OS-TEXAS 

December 11, 1959 

Mr. H. D. Dodgen 

Executive Secretary 

Opinion No. WW-759 

Game & Fish Commission Re: Whether Nueces County is 

Austin, Texas entitled to a refund of 

the amount paid the State 

for sand, shell and gravel 

used in the construction 

Dear Mr. Dodgen: of a toll road. 

We have received your request for an opinion as 

follows: 

"Nueces County has by contract built a 

toll road in and along Padre Island and a 

specific fee or charge is made for each car 

that travels over the road. When the indebtedness is retired, we are informed by the 

county that the road is to become a part of 

the State Highway system. 

"Please inform me whether, in your opinion Nueces County is entitled to a refund of 

the amount paid the state for sand, shell and 

gravel used in the construction of this toll 

road. All refunds are made under legislative 

appropriation." 

Article 4051, Vernon's Civil Statutes, provides 

that all the sand and marl of any commercial value, and 

all the gravel, shell and rnudshell of any kind whatsoever, lying on all the islands, reefs, bars, lakes, and 

bays within the tidewater limits from the most interior 

point seaward coextensive with the jurisdiction of this 

State, are placed under the management, control and protection of the Qame and Fish Commission. 

Article 4053, Vernon's Civil Statutes, authorizes 

the Game and Fish Commission to grant permits for the 

removal of marl, sand, gravel, shell or mudshell from 

such places and areas as are under its control, If 

satisfied that such removal wlll not be detrimental to 

any oysters, oyster beds, or fish, and will not damage 
- . 

Mr. H. D. Dodgen, Page 2 (WW-7'59) 

any island, reef, bar, channel, river, creek or bayou 

used for navigation or otherwise coming under its jurisdiction. 

Article 4054, Vernon's Civil Statutes, provides 

that when any county, subdivision of a county, city or 

town should desire any marl, gravel, sand, shell or mudshell for use in building a road, if the work Is to be 

done by said municipality, a permit to use such material may be granted without charge. When the building of 

roads for said municipalities is to be done by contract, 

then the municipality may obtain a refund from the Qame 

and Fish Commission of the tax levied and collected on 

said marl, gravel, sand, shell and mudshell. 

Article 405311, Vernon's Civil Statutes, authorizes the Game and Fish Commission to sell the marl, 

gravel, sand, shell and mudshell upon such terms and conditions as it may deem proper, but for not less than four 

cents per ton, "and payment therefor shall be made to 

said Commissioner. The proceeds arising from such sale 

shall be transmitted to the State Treasurer and be credit- 

. ed to a special fund hereby created to be known as the 

sand, gravel and shell fund of the state, and may be expended by the said Commissioner in the enforcement of the 

provisions of the sand, shell and gravel laws and in the 

establishment and maintenance of fish hatcheries, when provided by legislative appropriation, and in the payment of 

refunds provided for in Section 7, Chapter 1.61, of the 

General Laws of the Regular Session of the Thirty-eighth 

Legislature, to counties, cities or towns or any political subdivision of a county, city, or town, as provided 

for in Section 7, Chapter 1.61, of the General Laws of the 

Regular Session of the Thirty-eighth Legislature." 

Under the above statutes, as an aid to road 

building programs of counties and cities, the Game and 

Fish Commission is authorized to grant free of chargo a 

permit to use the sand, gravel and shell under'its jurisdiction, if these materials are used in a road built by 

the county or city itself. If a road is built by a 

county or city under a contract, the county or city may 

obtain a refund from the Commission of the amounts which 

have been paid for these materials used by the contractor. 

The question is asked whether the refund should be 

denied in this particular instance because the county intends to pay for the cost of the road by charging tolls 
Mr. H. D. Dodgen, Page 3 @W-759) 

for its use until an amount of money equal to its cost 

has been collected. At the time when the cost of the 

road has been fully paid by tolls received, the road 

is to become a part of the State Highway system. 

Section 52-b of Article III of the Constitution 

of Texas reads as follows: 

"Sec. 52-b. The legislature 

shall have no power or authority to in 

any manner lend'the credit of the State 

or grant any public money to, or assume 

any indebtedness, present or future, 

bonded or otherwise, of any individual, 

person, firm, partnership, association, 

corporation, public corporation, public 

agency, or political.subdivision of the 

State, or anyone else; which is now or 

hereafter authorized to construct, 

maintain or operate toll roads and turnpikes within this State. Added Nov. 2, 

1954. " 

This Section prohibits the lending of credit or granting 

of public money by the State to anyone constructing or 

operating toll roads within the State. 

It is noted, however, that Article 4053d which 

authorizes the sale of gravel, sand and shell by the 

Game and Fish Commission, also provides for a special 

fund into which the money collected from such sales shall 

be placed, and also provides for refunds to be made from 

this special fund. At the instant when money is paid into this special fund by a contractor, who is building a 

road for a city or county, that money is earmarked to be 

refunded to the city or county which is having the road 

built. Therefore, it is our opinion that any money collected which is subject to refund to the municipalities 

named in Article 4054 is not "public money" in the sense 

in which that term is used in Section 52-b of Article III 

of the Constitution of Texas. 

The purpose of the refund from the special fund of 

the Qame and Fish Commission to a county which has had a 

road built by contract is to aid that county in its roadbuilding program. Whether the cost of a road is paid by 

county funds raised by taxing the residents of the county, 

or by charging a fee of the users of the road after completion, does not alter the reason for the refund, 
Mr. H. D. Dodgen, page 4 

which is to decrease the 

possible, 

wi-759) 

cost of the road as much as 

In this particular instance, it is our opinion 

that the Game and Fish Commission may refund to Nueces 

County the amount paid the State for sand, gravel and 

shell used in construction of a road on Padre Island, 

even though the cost of the road is to be paid by 

charging tolls for its use until the cost is paid in 

full, provided that any refund made by the Game and 

Fish Commission is used to decrease the cost of the 

road for which tolls will be charged. 

SUMMARY 

The Game and Fish Commission may 

refund to Nueces County money paid 

for sand, gavel and shell used in a 

road built by contract on Padre Island, even though the cost of the 

road is to be paid by charging tolls 

for its use, provided that the amount 

refunded is used to decrease the total 

cost which the tolls charged will be 

used to pay. 

* Yours very truly, 

WILL WILSON 

Attorney General of Texas 

PSP:ms 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppertj Chairman 

Mary Kate Wall 

James R., Irion III 

Tom I. McFarling 

James P. Ryan 

Phocion S. Park III 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY Leonard Passmore