              THE       A’ITORNEY               GENERAL
                              OF’ TE%AS
                         Aun-rmr.    TXCXAS     787ll




                                    March   14, 1974


The Honorable Clayton T. Garrison                  Opinion No.   H-   257
Executive Director
Texas Parks & Wildlife Dept.                       Re:   Whether Parks and Wild-
John H. Reagan Bldg.                                     life may spend state funds,
Austin,  Texas  78701                                     matched by federal funds,
                                                         for construction  of facilities
                                                         0x1 land owned in whole or in
                                                         part by federal government.
Dear Mr.   Garrison:

     You have requested an opinion on whether the Parks and Wildlife
Department (the Department) may contract with the federal government
to share the cost of constructing     recreation facilities for state parks if
title to the facilities will be retained in whole or in part by the federal
government.

    The Reservoir    Public Parks and Recreational     Facilities   Act, 16
U. S. C. A. $460d,    authorizes the Corps of Engineers       to construct,
maintain,   and operate public park and recreation      facilities  on the land
adjacent to reservoir    projects under its control.     In addition the Act
authorizes   the, Corps to lease the adjoining lands to state and local
agencies for park purposes.       Pursuant to this authority the Corps has
leased four separate sites to the Parks and Wildlife Department:            the
Department has established       and is operating a state park at each one
of these sites.    The leases ordinarily    run for a period of fifty years
and are subj,ect to renewal.

   Recently the Corps has advised the Department        that federal funds
are available to match state expenditures     for the construction   of
recreation   facilities at each of the park sites the Department leases.
The Corps has proposed a contract under the terms of which the cost
of construction    would be shared equally and each party would retain
The Honorable    Clayton   T.   Garrison,     page 2   (H-257)




an undivided interest in completed facilities     proportionate  to the
costs it had paid.   Immediately    upon completion of a facility the
federal government’s    undivided interest in it would be leased to the
Department for the lifetime of the facility or for the remaining term
of the lease on the underlying real property.       In return the Department
would be obligated to maintain and operate the facility during the time
it is occupied by the State.    Alternatively  the Corps proposes an
agreement whereby construction        costs are again shared equally but
the federal government     retains title to the completed facility in its
entirety and leases it to the Department to be operated and maintained
during its lifetime or for the remaining term of the lease on the
underlying real property,     which ever is the shorter term, a period
of approximately   fifty years.    The Department asks whether it has the
authority to enter into either of the agreemen&       proposed by the Corps.

     When established,     the Department was given all the powers and
duties that previously    had been vested in the Texas State Parks Board.
Art. 978f-3a,   Vernon’s     Texas Penal Auxiliary      Laws.   One of the
State Parks Board’s     most important duties was to acquire state park
sites by purchase,    gift, or otherwise and “to improve,        beautify,  and
equip, and to contract with any person,        firm, or corporation     for the
improvement,     beautification    or equipment of the State parks of this
State to such an extent as to said Board might be deemed advisable. ‘I
Art. 6070b, V. T. C. S.         In 1971 the Legislature   created a new special
fund, the Texas Parks Fund, to be used by the Department for the
acquisition,  planning, and development        of state parks.    § 3, Art. 7. 06,
Taxation-General,     V. T. C. S.

    Furthermore,     the Appropriations    Act for fiscal years 1974 and 1975
contains a ‘substantial appropriation    of funds to be used by the Department
for the planning, acquisition,   and development     of state parks. (Acts
1973, 63rdLeg..    ch. 659 at 2007).    Item 23 provides:

           “There is hereby appropriated      from the Texas Park Fund.. .
       for the purpose of planning,     acquisition and development of State
       parks and State historic   sites.   Such expenditures     include, but
       are not limited to, salaries    and wages,   professional    services
       and fees, travel,  capital outlay, including land and improvements




                                            p* 1199
The Honorable       Clayton   T.   Garrison,         page   3        (H-257)




      thereto,  and all o.ther necessary              costs and expenses        whether
      by contract or direct payments.               “(emphasis   added)

A special   rider   found at p. 2012,     chapter       659,    s,         provides   as
follows:

         “Any federal grants,   allocations or aids for
      .    improving,  developing and planning public
      parks. .   may be accepted and disbursed through
      the State Treasury  by said Department    for the
      purposes for which they were granted and are
      hereby appropriated   for such purposes.    . . .”

    The effact of these statutes is to equip the Department with broad
authority,  and the necessary      funds, to acquire state parks and to
improve and develop them.         They also permit the Department to contract
with other persons or agencies for the achievement          of these objectives
and to accept and utilize any federal funds offered for these purposes.
An agreement with the federal government          to share the costs of constructing
recreation   facilities   in state parks already established     by the Department
will clearly result in an improvement       of the parks and is apparently the
kind of cooperative     venture the Legislature    envisioned the Department
would undertake under the authority of Art. 6070b.           Therefore  it is our
opinion that the Department has both the statutory authority and the
necessary   appropriations     to enter into the contracts proposed by the
Corps of Engineers.

   But even though statutorily authorized,  an agreement   made by the
Department is unlawful if it violates the constitutional prohibition
contained in Article 3, $ 51, of the Texas Constitution which states:

         “The Legislature   shall have no power to make
      any grant or authorize the making of any grant of
      public moneys to any individual,  association of
      individuals, municipal or other corporations  what-
      soever.        ”




                                               p.   1200
The Honorable    Clayton   Garrison,     page 4     (H-257)




   Because of this provision,   it might be argued that the contracts
require the Department    to expend state funds for the benefit of an
individual, in this case the federal government.

    Texas courts have consistently     held tha.t the constitutional prohibition
against gratuitous grants is not violated so long as the expenditure under
scrutiny is made for a valid public purpose.        Bullock v. Calvert,    480
S. W. 2d 367 (Tex. 1972).     If the primary purpose of the expenditure
is a proper public one, it matters not that an incidental benefit is derived
by an individual or a particular    group.   State v. City of Austin     331 S. W.
2d 737 (Tex. 1960) and Barrington      v. Cokinos,    338 S. W. 2d 133 (Tex. 1960).
When an expenditure of state funds is required by a contractual         arrange-
ment to which the state or one of its agencies is a party, the constitutional
stricture against gratuitous grants is satisfied if the state receives       some-
thing of value in return, a “quid pro quo”.       Byrd v. City of Dallas, 6 S. W.
2d 738 (Tex. 1928); see generally Attorney General Opinion H-109 (1973)
and cases cited therein.

    The agreements       suggested,by    the Corps of Engineers unquestimably
have a valid public purpose,        e. g. enhancing the recreational    value of
state parks by constructing       additional recreational   facilities in them.
Although under their terms the federal government            may retain title to
all facilities   constructed,   they will be leased to the Department      for their
entire useful life, or at least for as long as the lease of the underlying
real property continues.        The Department will retain control over the
facilities   and, as a result,    will be in a position to insure that they are
used for their intended public purpose.

   Therefore   since the contracts in question have a valid public purpose
and do not’require   the Department to expend state funds without receiving
anything in return, they do not violate the constitutional   prohibition
against the gratuitous grant of public money.     The.Department     may
lawfully accept either of the contractual  a.rrangements   proposed by the
Corp of Engineers.




                                        p0 1201
The Honorable   Clayton   Garrison,     page 5    (H-257)




                                SUMMARY
                               ------e-w

        The Parks atid Wildlife Department      may contract
     with the federal government to share the cost of constructing
     recreation  fakilities for state parks leased from the
     federal government     even though title to the facilities will
     be retained by the federal government.

                                      Yours   very truly,




                                      JOHN L. HILL
                                      Attorney General      of Texas




Opinion   Committee




                                       p* 1202
