                                    February      14, 1975


The Honorable     Clayton    T.    Garrison             Opinion   No.   H-   528
Executive   Director
Texas Parks & Wildlife        Department                Re: May the Parks and Wildlife
John H. Reagan Bldg.                                    Department    lease land to pro-
Austin,   Texas     78701                               vide feed for white-winged
                                                        doves under article879a-6,
                                                        Penal Auxiliary    Laws.

Dear   Mr.    Garrison:

         You have asked our opinion on two questions            concerning    the Depart-
ment’s   authority    to expend funds under a program         designed   to protect  the
white-winged      dove.   One question    asks whether    certain   expenditures    are
proper   “for acquisition     of white-winged     dove habitat” and the other asks
whether    similar   expenditures     may legally   be made “for research       and
management       for the protection    of white-winged   doves. ”

           Article  879a-6,  Penal Auxiliary     Laws,  authorizes   the Parks and
Wildlife     Department   to sell white-winged     dove stamps and prohibits
hunting     the doves without a stamp.      Section 4(c) of that article  states
that:

                        The Commission    shall deposit the proceeds
                   from the sale of stamps in the state treasury      in
                   Special Game and Fish Fund No. 9. One-half          of
                   these proceeds   may be expended only for research
                   and management    for the protection  of white-winged
                   dove and the other one-half   of these proceeds     may
                   only be expended ior the acquisition    of white-winged
                    dove habitat    in the state.

          1n, an earlier  opinion,  Attorney   General   Opinion M-1084 (1972),
this office    concluded  that despite article   879a-6,   the Parks and Wildlife
Department       could not expend any funds for the acquisition     of white-winged




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The Honorable     Cisyton    T.    Garrison      page   2   W- 528)




dove habitat because the Legislature       had failed to appropriate      any funds
for thal purpose.    The problem      was partially    solved with the passage    of
the Genera!   Appropriation     Bill for the biennium beginning      Sept. 1, 1973.
It c-ontains an appropriation     of $37, 500 for 1974 and a like amount for
1975 “to be expended for the acquisition       of white-winged     dove habitat. ”
Acts i973, 63rd Leg.,       ch. 659, p. 2005.       But no appropriation    has been
made for   “research     and management         for   the protection   of white   wing
dove. ”

         It is apparent  that the Legislature    which enacted article 879a-6,
section 4(c) had two distinct    activities  in mind because it earmarked
portions   of stamp-sale   income    which could be used for one of the purposes,
but not for the other.

        Since the Legislature    has seen fit to appropriate      funds for only one
of the two authorized   programs,     the Department     is not permitted   to expend
funds for the other.    Thus, there are no appropriated        funds for research
and management     for the protection    of the white-winged     dove, and it is
unnecessary   to consider   your specific    questions   about expenditures    for
that purpose.

        Your    other   question    asks:

                  1. Is the ‘Department    authorized    to expend a portion
                  ol the one-half   proceeds    dedicated   by article   879a-6
                  Penal Auxiliary    Laws,    “for acquisition    of white-winged
                  dove habitat” to

                      a) lease land for the purpose of growing grain
                  crops or to lease land with standing grain crops to
                  provide   feed for white-winged  doves?

                      b) purchase  farmland  for the express  purpose     of
                  grnwlng  grain crops to provide   feed for white-winged
                  doves?

                       c) purchase    farmland   for the express   purpose  of
                  growing   brush (reforestation)     to provide  nesting and
                  roosting   habiiat~ for white-winged    doves’?




                                            p. 2384
The Honorable      Clayton   T.   Garrison      page   3     (H- 528)




                       d) buy equipment    and pay salaries   and operating
                  expenses   for the purposes    of growing  brush (reforesta-
                  tion) to provide  nesting and roosting    habitat and to grow
                  crops to provide   feed for white-winged     doves?

          The four general        types of activities    you mention appear to be related
to the acquisition      of habitat for the white-winged         dove, and to the extent that
they, in fact,      constitute    such acquisition,     you are authorized     by articl,e 879a-6
and by the Appropriations           Act to expend funds for those purposes.            We do not
believe   that the fact that land may be leased rather than purchased                 will pre-
vent its being acquired         for the purposes      of the statute.    Whether   any specific
activity   qualifies    as a part of a program        for the acquisition    of habitat in-
volves   fact questions       which we are not authorized        to answer.

                                     SUMMARY

                       The Legislature   has appropriated    no funds for
                  research     and management   for the protection   of the
                  white-tinged     dove.  Funds are appropriated     and
                  may be spent for acquisition     of habitat for the
                  white-winged     dove.

                                                           Very   truly     yours,




                                                   u       Attorney       General    of Texas




C. ROBERT   HEATH,           Chairman
Opinion Committee




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