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### THEA~ORNEY GENERAL

OS-TEXAS

December 11, 1959

Mr. H. D. Dodgen Executive Secretary OpinionNo. WW-759

Game & Fish Commission Re: Whether Nueces County is Austin, Texas entitled to a refund of the amountpaid the State for sand, shell and gravel used in the construction Dear Mr. Dodgen: of a toll road.

We have receivedyour request for an opinion as follows:

"NuecesCountyhas by contractbuilt a toll road in and along Padre Islandand a specific fee or charge is made for each car that travels over the road. When the indebtedness is retired,we are informedby the county that the road is to become a part of the State Highway system.
"Pleaseinform me whether, in your opinion Nueces County is entitled to a refund of the amountpaid the state for sand, shelland gravelused in the constructionof 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 commercialvalue, and all the gravel, shelland rnudshell of any kindwhatsoever, lying on all the islands, reefs, bars, lakes, and bays within the tidewater limits from the most interior point seaward coextensivewith the jurisdictionof this State, are placed under the management, control andprotection of the Qame and Fish Commission.
Article 4053, Vernon's Civil Statutes,authorizes the Game and Fish Commissionto grantpermits for the removal of marl, sand, gravel, shell or mudshell from suchplaces 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 comingunder its jurisdiction.

Article 

### 4054,Vernon's Civil Statutes,provides that when any county, subdivisionof a county, city or town shoulddesire any marl, gravel, sand, shell or mudshell for use in building a road, if the work Is to be done by saidmunicipality,a permit to use such material may be grantedwithout charge. When the building of roads for said municipalities is to be done by contract, then the municipalitymay obtain a refund from the Qame and Fish Commissionof the tax levied and collectedon said marl, gravel, sand, shell and mudshell.

Article 405311,

Vernon's Civil Statutes,authorizes the Game and Fish Commissionto sell the marl, gravel, sand, shelland mudshell upon such terms and conditions as it may deem proper, but for not less than four centsper ton, "andpayment therefor shallbe made to said Commissioner. The proceeds arising from such sale shallbe 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 establishmentand maintenanceof fish hatcheries,when provided by legislativeappropriation,and in the payment of refunds provided for in Section 

### 7, Chapter 

### 1.61, of the General Laws of the Regular Sessionof the Thirty-eighth Legislature, to counties, cities or towns or any political subdivisionof a county, city, or town, as provided for in Section 

### 7, Chapter 

### 1.61, of the General Laws of the Regular Sessionof the Thirty-eighthLegislature."

Under the above statutes,as an aid to road buildingprograms of countiesand cities, the Game and Fish Commission is authorized to grant free of chargo a permit to use the sand, gravel and shellunder'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 Commissionof the amountswhich have beenpaid for these materialsused by the contractor.

The question is asked whether the refund shouldbe denied in thisparticular instancebecause the county intends to pay for the cost of the road by charging tollsMr. 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 fullypaid by tolls received, the road is to become a part of the StateHighway system.

Section 52-b of Article III of the Constitution of Texas reads as follows:

"Sec. 52-b. The legislature shallhave 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.subdivisionof the State, or anyone else;which isnow or hereafter authorized to construct, maintain or operate toll roads and turnpikes within this State. Added Nov. 2, 

### 1954."
This Sectionprohibits the lending of credit or granting of public money by the State to anyone constructingor operating toll roads within the State.

It is noted, however, that Article 4053dwhich authorizes the sale of gravel, sandand shellby the Game and Fish Commission,also provides for a special fund intowhich the money collected from such sales shall be placed, and alsoprovides for refunds to be made from this special fund. At the instantwhen 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 countywhich is having the road built. Therefore, it is our opinion that any money collectedwhich is subject to refund to the municipalities named in Article 4054 is not "publicmoney" in the sense inwhich that term is used in Section 52-b of Article III of the Constitutionof Texas.

The purpose of the refund from the special fund of the Qame and Fish Commissionto a countywhich **has** had a road built by contract is to aid that county in its roadbuildingprogram. Whether the cost of a road is paid by county funds raised by taxing the residents of the county, or by charginga 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 thisparticular instance, it is our opinion that the Game and Fish Commissionmay refund to Nueces County the amountpaid the State for sand,gravel and shellused in constructionof 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 ispaid 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 Commissionmay refund to Nueces Countymoneypaid for sand, gavel and shellused in a road built by contract on Padre Island, even though the cost of the road is to be paid by charging tolls for itsuse, provided that the amount refunded is used to decrease the total costwhich the tolls chargedwill be used to pay.

* Yours very truly,

WILL WILSON Attorney General of Texas

PSP:ms

APPROVED: OPINION COMMITTEE W. V. GeppertjChairman
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