            THEATTORNEY                    GENERAL
                    ~ OFTEXA~



                          April   3, 1969

Honorable J. R. ‘Singleton           Opinion No. M-368
Btietiutive Mi%ctor’
Texti& PBrki9‘and Wildlife           Re:    Authority df’ Parks .aaid
 ‘IXptirtm&t                                Wildlife  Departniint to
Austin, Texas 78701                         price and iall remov-
                                            abIe sedlmetitary -      ‘.
                                            matdriale’ from wat&s .
Dear Mr. Singleton2                         of the State of Texas.
         Your request for our’oplnlon,      dated March 31,   1969,
sets   out the following question;
             “Does the Parks and Wildlife      Commis-
               sldn have the, authority-undei
               Article   40536, R,CiS,;, to .estab-
               lish a eelllng   price,   in the sense
               of the teti commercial value~as
               used In Article   4051, RiC.SI, on
               the marl9 sand or other sedimen-
               tary,materlals   to be removed from
              .C?alveston Bay and used as fill
               material?”
          The Parks and Wildlife    Department has received an        .
appIioatfon    from a dredging company for a permit to re-
move soil deposits from the bottom of Qalveston Bay.
This material will be placed on shore and used as fill,         to
build up privately-owned       lands on Galveston Island.    You
have,another application       for a permit to remove soil de-
posits from the bottom of Galveston Bay to be placed on
shore in a stockpile      for sale as land fill   to be used
6n’dr‘adjadent     td Galveston Island;     You have determined
thbt ttilti laridf!S.ll~mat~~ial dotisitits df marl,-satid Bnd ahell;
that ft is In great demand in thfs~areag and that its uiie
ai‘labd’fil~~materlall~      increa&& the value bf the land:
YOU~h&ii@‘dohtilUdid that this material .do&s have~‘a &tier-
cizil ‘vaIti&&s that term is used in Article      4051, Vernon’s
Civil Statutes 0




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Hon. J. R. Singleton,    page 2 (M-368)


       Article   4051 provides;
            “All the Islands,     reefs,  bars9 lakes,
             and bays within the tldewater’l%mits
             from the most interior      point ~seaward’
             do-extensive    with-fhe~ju~iidlbfion       of
             this State, and sudh.of thefresh’
             water’ islands;   lakesp rlYers,‘~c~eeks
             and bayous within the interior ‘of
             this State as may’not be embraced’in
             any survey of private land, together~,
             with all the marl and sand of commer-
             cial value, and a21 the shells,         mud-
               h 11 or gtiavel of’whatsoever       klnd~
             t”h% may be’ln ‘or upon anyidIand,
             reef ore bar, and ln:or’ upon the
             bottoms of any lake, bay, shallow
             water, rivers,    creeks and bayous and-
             fish hatcheries    and ovstdr beds with-
             in the jurisdiction      and territory
             herein defined,    are included within




                 the territory   included herein be
             disturbed except as hereln provided.
             Acts 2nd C.S. 1919 p. 216.”
             (Eh%phasls added. )
         In Attorney General Opinion M-84 (June g,, 1967),      we
advised you that The Parka and Wildlife       Department has the
authority and duty-to manage9 control and protect all the
marl and sand of commercial value.      You have Ptidfcated fn
your request that the soil deposits proposed to be removed
and used as shore land fill   are classified     as marl and
sand.    The facts you set out do not indicate use of the
materials under the provisions   of Articles     4054, 405&a or.
4054b, Vernon’s Civil Statutes.     The a plfcation    should,’
therefore,   be processed under Article    e 053, Vernon’s Civil
Statutes 9
Hon.    2. R. SIngleton,     page 3 (m-368)


          Article   4053d,   Vernon’s   Civil   Statutes,   provides,   in
part:
               “The”Gtie,   Fish and Oyster Commis-
                ~gi.on (noM.the Parks and Wildlife
                Department.     Article  978f-3a,   ‘.
                Vernotils’PenaI   CMe.j’bs+ atid’with




         Article  4052, Vernon’s Civil Statutes,  bg virtue of
Article ‘978f-3a,   Vernon’s Penal Code, vests in the Parksand
Wildlife   Department broad and full power, and discretion;
over all matters pertaining     to the sale of these materials.
             Within the llmlts          of your question,  and the
submitted facts we, therefore,           answer your question in the
affirmative.
                               SUMMARY
                The Parks and Wlldlffe     Department
                has the authority,     with consent of
                the Governors to establish’s      sell-
                ing price,     In the sense of the term
                “commercial value” as used in Article
                40511 Vernon’s Civil Statutes,       on
                marl, sand or other sedimentary
                materials    to be removed from Galves-
                ton Bay and used as fill.       This
                authorft     is authorized pursuant to
                Article   t 053d, Vernon’s Civil Statutes.




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Hon. J, R. Singleton,      Page   4   (M-368)


Prgptire&By
Vinhe'"Ttiplo?
Assistant Attorney      General
APPROVED:
OPINIONCOMMITTEE
Kerns~Taylbr;Chalman
George Kelton, Vice-Chairman
Bill Allen
Janieki S. Swearingen
Sally Phillips
Milton Richardson
W; V. GEPPERT
Staff Legal Assistant




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