                       February 13, 1970


Honorable Ben Barnes                Opinion No.M-574
Office of the Lieutenant Governor
State Capitol Building              Re:   Authority of the Parks
Austin, Texas 78711                       and Wildlife Commission
                                          to expend funds for the
                                          purposes authorized in
                                          the Parks and Wildlife
                                          appropriation item num-
                                          ber 23, of the General
                                          Appropriation Bill, 1970-
                                          71 biennium, and related
Dear Lieutenant Governor Barnes:          questions.
          Your request for an opinion asks the following
questions:
          "1. Does the Parks and Wildlife Commission
     have authority to expend funds,for the purposes
     authorized in Parks and Wildlife appropriation
     item number 231
          "2. From what appropriation fund or funds
     can Parks and Wildlife Department appropriation
     item number 23 be financed?
          "3 . If Parks and Wildlife appropriation
     item number 23 is construed as being made from
     Special Game and Fish Fund Number 9, can money
     from that fund legally be spent for the purposes
     authorized in appropriation item number 231
          "4. If the Parks and Wildlife Commission
     has the authority to expend money from its ap-
     propriation for the purposes spelled out in ap-
     propriation item number 23 -- whether the financ-
     ing comes from Special Game and Fish Fund Number
     9 or from any other source -- can the water ex-
     change pass be used for the passage of boats?"
          We quote the following from the appropriation to the
Parks and Wildlife Department by House Bill 2, Acts of the 61st



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lion.Ben Barnes, page 2   (M-574)




Legislature, 2nd C.S., 1969, at pages 111-117, 118:


                                               "For the Years Ending
                                             August 31,      August 31,
                                                1970            1971
     “23.   For preparation of de-
            tailed plans and specifi-
            cations, and all other
            necessary costs in con-
            nection with first phase
            construction of a water
            exchange pass (and bridge)
            between Corpus Christi Bay
            and the Gulf of Mexico ad-
            jacent to Mustang Island
            according to preliminary
            engineering plans          $    1,500,000       $   1,500,000

            GRAND TOTAL, PARES AND
              WILDLIFE DEPARTMENT      $20,069,313          $19,004,191

            Method of Financing:
            General Revenue Fund      $ 5,169,772           $   4,354,735
            State Parks Fund No. 64       662,280                   730,120
            State Parks Special
              Mineral Fund No. 267            6,595                    6,595
            Special Game and Fish
              Fund No. 9               11,186,501               11,334,484
            Land and Water Recreation
              and Safety Fund No. 63    1,800,000               1,800,000
            Varner Hogg Trust Account
              NO. 961                         6,765                    6,765
            Special Boat Fund No. 59      300,000                   300,000
            Federal Land and Water Con-
              servation Fund No. 223      937,400                  471,492
            Total                      $5                   $19,004,191"


          It is noted that Item 23 does not specify from what
fund or funds said appropriation is made. Likewise the "method
of financing" provision relating to the appropriation does not
indicate which funds are to be used to finance any particular
item of appropriation, We therefore~conclude that whether an
item of appropriation is paid out of.the General Revenue Fund,



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Hon. Ben Barnes, page 3 (M-574)


State Parks Fund No. 64, State Parks Special Mineral Fund No.
267, Special Game and Fish Fund No. 9, Land and Water Recreation
and Safety Fund No. 63, Varner Hogg Trust Account No. 961,
Special Boat Fund No, 59, or Federal Land and Water Conservation
Fund No. 223 is dependent upon the purpose for which the item
of appropriation is made. Item 23 is for the purpose of pro-
viding "a water exchange pass (and bridge) between Corpus
Christi Bay and the Gulf of Mexico  adjacent to 'MustangIsland."
          Moneys appropriated by the Legislature may be ex-
pended for the purpose specified , provided the purpose is for
governmental use or purposes as distinguished from private
purposes. State v. City of Austin, 160 Tex. 348, 331 S.W.Zd
737 (1960); Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761
(1920): Road District No. 4, Shelby County v. Allred, 123 Tex.
77, 68 S.W.Zd 164 (1934); Jefferson County v. Board of County
and District Road Indebtedness,,143 Tex. 99, 182 S.W.2d 908
71944); City of Aransas Pass v. Keeling, 112 Tex. 339, 247
S.W. 918 (1923). It is 'ouropinion that the purpose specified
in Item 23 of the appropriation to'the Parks and Wildlife De-
partment is for a governmental purpose or use as distinguished
from a private use. You are accordingly advised in answer to
your first question that Item 23 may be expended by the Parks
and Wildlife Department for the purposes therein expressed.
          The Parks and Wildlife Department was created by the
provisions of Article 978f-3a, Vernon's Penal Code. This
article provides that the Special Game and Fish Fund shall be
used for the purposes provided in the act and for purposes
provided by law, and also prohibits the use of money heretofore
authorized for park purposes to be expended for any other
purpose than the operation, maintenance or development of
State parks. The Special Game and Fish Fund was created by
the provisions of Article 438633,Vernon's Civil Statutes.
Section 3 of Article 4386b provides:
          "Sec. 3, The Special Game and Fish Fund
     shall be used for the aggregate purposes for
     which the Special Game Fund, the Special Fish
     Propogation and Protection Fund, ,the Fish and
     Oyster Fund, the Sand, Shell and Gravel Fund,
     and the Lake Worth-Eagle Mountain Lake Fund is
     now directed by law to be used,"
          In view of the foregoing,,it is our opinion that
whether Item 23 of the above referred to appropriation is to
be expended from the Special Game and Fish Fund depends upon



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.    .




    Hon. Ben Barnes, page 4 (M-574)


    the use intended to be made by the Parks and Wildlife De-
    partment of the "water exchange pass." In this connection
    it is to be noted that House Bill 952, Acts of the 56th
    Legislature, R,S., 1939, Ch. 84, of the Special Laws (Article
    978f, note V.P,C.) makes it unlawful:
               II
                . . . for any person to use, operate, sail,
         anchor, tie, or moor to the bank any boat, sail-
         boat,  motorboat, skiff, barge, raft, or other
         floating device, or to place any post, piling,
         obstruction, wire, rope, cable, net or trap, in
         or upon the waters of any natural or artificial
         pass which is now or may be hereafter opened, re-
         opened, dredged, excavated, constructed, and
         maintained, by the Game, Fish and Oyster Com-
         mission [now Parks and Wildlife Department] of
         the State of Texas as a fish pass, between the
         Gulf of Mexico and any inland bay, within a dis-
         tance of two thousand, eight hundred (2,800) feet
         inside of such pass, measured from the mouth of
         said pass where it empties into or opens upon the
         Gulf of Mexico." (Brackets and emphasis ours.)
              You are therefore advised in answer to your second
    and third questions that if the Parks and Wildlife Department
    intends to maintain the "water exchange pass" as a fish pass,
    such funds may be expended from the Special Game and Fish
    Fund No. 9; otherwise, such item of appropriation should be
    expended from the General Revenue Fund.
              In answer to your fourth question, if the Parks and
    Wildlife Department maintains the "water exchange pass" as a
    fish pass, such pass cannot be used for the passage of boats.
    On the other hand, if the "water exchange pass" is not main-
    tained by the Department as a fish pass, such pass may be used
    for the passage of boats,
                           SUMMARY
              Item 23 of the appropriation to the Parks and
         Wildlife Department for construction of a "water
         exchange pass" may be expended for the purposes
         specified in Item 23 and such expenditure is pay-
         able from either the Special Game and Fish Fund
         No. 9 or the General Revenue Fund, depending upon
         whether such pass is intended to be maintained
         by the Department as a fish pass. If it is to be



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..,   ,




          Hon. Ben Barnes, page 5 (M-574)



              maintained as a fish pass, such item of appro-
              priation is payable from the Special Game and
              Fish Fund; otherwise it is payable from the
              General Revenue Fund. If the "water exchange
              pass" is maintained by the Department as a fish
              pass, such pass may not be used as a passage for
              boats. If it is not maintained by the Depart-
              ment as a fish pass, it may be used as a passage
              for boats.



                                                   . MARTIN
                                                y General of Texas
          Prepared by John Reeves
          Assistant Attorney General
          APPROVED:
          OPINION COMMITTEE
          Kerns Taylor, Chairman
          W. E. Allen, Acting Co-Chairman
          Roger Tyler
          Houghton Brownlee
          Jack Sparks
          Monroe Clayton
          MEADE F. GRIFFIN
          Staff Legal Assistant
          ALFRED WALKER
          Executive Assistant
          NOLA WHITE
          First Assistant




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