The Honorable Clayton T. Garrison                  Opinion   No.   H-     170
Executive   Director
Texas Parks & Wildlife Department                  Re:   The authority of the Texas
John H. Reagan Building                                  Parks & Wildlife Department
Austin,   Texas 78701                                    to contract with counties for
                                                         the cleaning and maintenance
                                                         of a public beach located
Dear Mr.   Garrison:                                     within a state park

      You have requested     our opinion on the following    questions:

             “I .   Does the Parks and Wildlife Department have
                    authority to contract with a county to authorize
                    the, county to clean and maintain a public beach
                    located within a state park if the county meets
                    the requirements    of Article 5415d-1, V. T. C. S. ?

             “2.    [If the answer to question 1 is in the affirmative,
                    d]oes the Parks and Wildlife Department have
                    authority to reimburse    a county for cleaning a
                    public beach within a state park out of funds
                    [specifically] appropriated   to the Department
                    [in Item 20 of the Appropriations    Act for fiscal
                    1974 and 1975]? ”

        Counties which meet the requirements     of Article  5415d-1 are all counties
which border on the Gulf of Mexico and have public beaches within their boun-
daries.    Section 5 of that Article allocates the responsibility    for cleaning and
maintaining public beaches among the State, counties and incorporated           cities.
The State has the duty of cleaning and maintaining public beaches located within
state parks, and a county has the duty of cleaning and maintaining public beaches
located within that county but outside of an incorporated      city.   Sections 8 and 9
of the Article permit counties to contract with cities and other counties for




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The Honorable   Clayton   T.   Garrison,    page 2   (H-170)




beach maintenance   services,   and $7 provides a mechanism   by ,which the
State may pay a portion of the costs incurred by cities and counties in
cleaning and maintaining the city and county beaches.    The Act does not
specifically refer to contracting authority between the State and a county
for the maintenance   of state park beaches.

      We believe the Parks and Wildlife Department and counties have
ample authority to contract with each other for the maintenance    of state
parks by virtue of $1 of Article 6081r, V. T. C. S., which provides,   in part:

             I, . . . The Parks and Wildlife Department is hereby
             authorized and directed to cooperate . . . willfiother
             departments     of the state and local governments      . : . .
             It is the intent of the Legislature    to add to the purposes,
             functions and duties of . . . counties,      to acquire lands
             for public recreation     purposes,   to c0nstruc.t thereon
             facilities ‘for public use, to provide for.the operation,
             maintenance and supervision        of such public recreation
             areas,    and to enter into agreements     with other local,
             state or Federal Agencies for planning,        construction,
             maintenance,     and operation of such facilities,     together
             with necessary     access roads thereto,     and to maintain
             adequate sanitary standards on the land and water areas
             as a part of and adjacent to such recreation        areas. ”
             (emphasis added)

       Article  6081r is the vehicle by which Texas became eligible to receive
grants under the Land and Water Conservation        Act of 1965. 16 USC $4601-4
to 11. That Act and the Texas Article      6081r require a comprehensive     state-
wide plan for the development of outdoor recreation       resources.  We believe
the Legislature    necessarily  included state parks in the scope of Article    6081r,
and thus authorized a county to contract with the State for maintenance        of a
state park.    Cf. Interagency   Cooperation Act, Art. 4413 (32), V. T. C. S. ;
Interlocal   Cooperation   Act, Art. 4413(32c).  V. T. C. S.

      Any contract would be subject to the prohibitions   of Article 3, $ 51, of
the Texas Constitution,  and a county would be required to provide actual ser-
vices before it would be eligible to receive state funds.   Although the type of




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The Honorable       Clayton   T.   Garrison,    page 3    (H-170)




contract you mention appears to avoid any Article  3, 5 51, problem,  your
attention is directed to Attorney General Opinion No. H-109 (1973) for a
discussion  of the constitutional prohibition.

       Your second question involves the use of funds appropriated    for
“beach cleaning” in Item 20, p. 111-113, of the Appropriations   Act for fiscal
1974 and 1975 (House Bill 139, 63rd Legislature)   to pay a county for its
services  rendered in cleaning a state park beach.    That item provides:

                                                      ‘For the Years Ending
                                                      August 31, August 31,
                                                         1974        1975

             “20.     For payments to cities
                      and counties for mainte-
                      nance and cleaning of
                      Public beaches NTE [not
                      to exceed] $50,000  for any
                      single grant, subject to
                      equal matching and contingent
                      upon there being no admission
                      fees charged for entry onto
                      such beaches                  200,000               200,000”

       The “pre-existing   law” required by Article   3, $44, of the Constitution
to support the appropriation   in Item 20 is Article  5415d-1, V. T. C. S., an act
designed “to allocate responsibility   for cleaning the beaches of this state. . . . ”
18WI.
       Section 7 provides      for a “state     share”   of the cost   of cleaning   beaches.
Section 7(c) reads:

                    l’(c) No county or city shall receive as its ‘state
             share’ a sum greater than one-half     the amount such
             county or city expends for the purpose of cleaning and
             maintaining public beaches within its jurisdiction    during
             the state fiscal year for which reimbursement      is sought,




                                           p.   779
The Honorable    Clayton   T.   Garrison,    page 4   (H-170)




             nor shall any such county or city receive as its ‘state
             share’ a sum greater than $50,000   for any state fiscal
             year. ”

      Your first question requires a determination       of the meaning of “public
beaches within its jurisdiction,   ” i. e. , whether this refers to city or county
beaches or to State-owned     state park beaches as well.

      The Act applies to home-rule      cities with more than 60,000 inhabitants
and counties on the Gulf of Mexico having within their boundaries “public
beaches . ” defined by 5 11(b) as a beach area, whether public or privately
owned, to which the public has acquired the right of access.

      The responsibility  for cleaning public beaches within its corporate
boundaries is placed upon a city, town or village; for those not within a
city, upon the counties; and for those~within state parks, upon the State. (5 5)

       The provisions    would lead to the conclusion that “public beaches
within its jurisdiction”   refers to those over which each unit of government
is given responsibility   by $5, and that the Item 20 funds were not to be
“shared” with cities and counties for state park beaches.

       However,    $1(b) states it to be the public policy of the state that the
right to access to public beaches “creates       a responsibility for the state. . .
to assist local governments     in the cleaning of beach areas which are subject
to the access rights of the public as defined by Chapter 19, Acts of the 56th
Legislature,   2nd Called Session,    1959, as amended (Article 5415d. Vernon’s
Texas Civil Statutes). ” That statute applies to access to state-owned         beaches,
and would seem to lead to the conclusion       that “public beaches” within the
jurisdiction  of cities or counties of Article    5415d-1 include state-owned    beaches.

       Therefore,  it is oar opinion that Item 20 funds may be used to reimburse
a county for cleaning a public beach within a state park provided the county is
willing to meet the requirements    of the appropriation. You did not ask and we
do not answer what other appropriated     funds may be used for that purpose.




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The Honorable   Clayton   T.   Garrison,    page 5       (H-170)




                                    SUMMARY

                  The Texas Parks and Wildlife Department and
           counties on the Gulf Coast have authority to contract
           with each other for the cleaning and maintenance of
           state park beaches.     The Department may use funds
           appropriated  specifically  in Item 20 of the Appropria-
           tions Act for 1974 and 1975 to reimburse    a county for
           its services in maintaining   state park beaches provided
           the county is willing to meet the conditions of the appro-
           priation.

                                       Very       truly yours,




                                       Attorney       General      of Texas




DAVID M. KENDALL,         Chairman
Opinion Committee




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