Honorable H. D. Do&en       Opinion No. WW- 389
Executive Secretary
Game and Fish Commission   Re:   Does the Game and Fish Commis-
Austin, Texas                    sion have legal authority~to
                                 expend its funds for the purpose
                                 of maintaining Port Mansfield
             8                   Pass when the primary purpose of
                                 such pass is for use as a navi-
Dear Mr. Dodgen:                 gable waterway?
          You have requested our opinion on the following ques-
tion which we quote f:om your letter of January 29, 1958:
         Vhe Willacy County Navigation District has
    completed a navigation channel existing from
    Port Mansfield across the Laguna Madre and con-
    tinuing with a connecting pass through Padre Is-
    land to the Gulf of Mexico. Some difficulty has
    been experienced with this pass filling with sand
    as a result of erosion on the Gulf side.
         "Judge Johnson, Port Director for the Navi-
    gation District, recently appeared before the Game
    and Fish Commission requesting that the Commission
    expend the sum of approximately $30,000 to remove
    the material that is filling up the mouth of the
    pass so as to keep it open to allow fish migra-
    tions from the Gulf to the inland waters.
         TInasmuch as the Navigation District in ques-
    tion has-constructed this pass and channel at a
    cost of approximately $3,000,000, as a navigation
    venture, the Game and Fish Commission has doubts
    as to the legality of spending Game and Fish con-
    servation funds to help maintain such a pass.
          "As a consequence of this situation, I am re-
     quested to ask your opinion on the subjecf;,,&*;'Does
     the Game and Fish Commission have legal authority,
     in light of H. B. 952, Acts 1939, Regular Session,
     1946 to expend its funds for the purpose of main-
     taining Port Mansfield pass when the primary pur-
     pose of such pass Is for use as a navigable wa'terway?"'
Honorable H. D. Dodgen, page 2   WJ- 389)


          Article 4049c, Vernon's Civil Statutes, constitutes
the authority of the Game and Fish Commission to acquire, con-
struct, and maintain passes from one body of tide-water to
another to allow the passage of fish and the equalization of
the saline content of the various waters. Attorney General's
Opinion R-1930 (1949). This Article reads as follows:
         "Art. 4049c,  Purchase or condemnation of
    lands, water rights, etc., for fresh water
    hatcheries and for constructing and maintain-
    ing channei s.
          "Section 1. The State of Texas, through
     the Game Fish and Oyster Commission, shall have
     the right to acquire by purchase any and all land
     in this State that may be deemed necessary for
     the construction, maintenance, enlargement and
     operation of fresh water fish hatcheries, and for
     the construction and maintenance of passes lead-
     ing from one body of tide-water to another. Upon
     approval of the title by the Attorney General of
     this State said Game, Fish and Oyster Commission
     is hereby authorized to pay for such land so pur-
     chased out of any money that has been, or may be
     hereafter appropriated to it by the Legislature.
          "Sec. 2. The State of Texas, through the
     Game Fish and Oyster Commission shall have the
     right, power and authority to enEer upon, condemn,
     and appropriate lands, easements, rights-of-way
     and property of any person or corporation in the
     State of Texas for the purpose of erecting, con-
     structing, enlarging and maintaining fish hatch-
     eries? buildings, equipment, roads, passage-ways
     to said hatcheries and also shall have the right,
     power and authority to enter upon, condemn and
     appropriate lands, easements, rights-of-way and
     property of any person or corporation in this
     State for the purpose of constructing, enlarging
     and maintaining passes or channels from one body
     of tide-water to another body of tide-water in
     this State. Provided that the manner and method
     of such condemnation assessment, and payment of
     damages therefor shai1 be the same as is now pro-
     vided by law in the case of railroads."
          We do not believe however, that the terms of this Ar-
ticle authorize the expenditure of State moneys for the purpose
Honorable H. D. Dodgen, Page 3    NW- 389)


of maintaining passes primarily for navigational purposes con-
structed by an entity other than the Game and Fish Commission.
We believe that the authority granted to the Game and Fish
Commission by this statute to maintain passes leading from one
body of tide-water to another is limited to passes constructed
by the Game and Fish Commission, as opposed to concerns uncon-
nected with the Game and Fish Commission work.
          Accordingly, we hold that under the facts and circum-
stances recited to us, the Game and Fish Commission may not
expend appropriated public moneys for the purpose of removing
sand and other material from the mouth of a channel constructed
for navigational purposes by the Willacy County Navigation Dis-
trict.
                                 SUMMARY
          Under the stated facts the Game and Fish Com-
     mission may not expend appropriated public moneys
     for the purpose of removing sand and other material
     from the mouth of a channel constructed for naviga-
     tional purposes by the Willacy County Navigation
     District.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas



                                             H. Minton, Jr.
JHM:pf:wb
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Houghton Brownlee, Jr.
Cecil Rotsch
Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
BY W. V. Geppert
