.    I




    Honorable J. R. Singleton
    Executive Director
    Texas Parks & Wildlife Commission
    John H. Reagan Duildlng
    Austin, Texas 78701
                                        Opinion No.M-591
                                        Re:   Trinity River
                                              Authority must pay
                                              the Parks and Wlld-
                                              life Commission for
    Dear Mr. Singleton:                       stream bed ,materials.
           You have requested our opinion as to whether your
    agency must charge and collect money from the Trinity River
    Authority of Texas, a governmental agency created by the
    Legislature, for sand, gravel and other material@ which such
    agency has removed from the stream bed of the Trinity River
    In connection with construction of a project known as the
    "Livingston Dam” in Polk and San Jaclnto Counties, Texas.
    Your file reflects that the established price under the ap-
    plicable etatutes is ten cents per cubic yard, and that the
    material removed by Trinity River Authority totals 127,908
    cubic yards of such sand, gravel and other materials for an
    aggregate monetary amount of $12,790.80.
             Attorney General Opinion WW-150 (1959) held that a
    navigation district could dredge without a permit If the
    dredging Is incidental to navigation. Prior to 1911, the
    public was generally free without control or supervision
    to remove mudshell, sand, and gravel from the bottoms under-
    lying public waters of Texas. Goar v. City of Rosenberg
    115 S.W. 653 (Tex.Clv.Apg. 1909, no writ); and see Oplni&
    WW-151 (1957). The power of the Parks and Wildlife Commie-
    elan  to make a charge for removal of such materials from
    the stream   bed Is contained In two etatutes, to-wit:
           Section 1, of Articles 4053, as amended, and 4053d,
    Vernon's Civil Statutes, which read as follows:




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Hon. J. R. Slngleton, page 2 (M-591)


        "Article 4053,
        SECTION 1.   Anyone desiring to purchase any of
                     the marl and sand of commercial
                     value  and any of the gravel, shells
                     or mudshell included within the pro-
                     visions of this Chapter, or otherwise
                     operate In any of the waters or upon
                     any island, reef, bar, lake, bay,-
                     river, creek or bayou Included in this
                     Chapter shall first make written ap-
                       llcation therefor to the Parks and
                       ildlife Commission, designating the
                     limits  of the territory in which such
                     person desires to operate. If the
                     Parks and Wildlife Commission finds
                     that the taking, carrying away or
                     disturbing of the marl, gravel, sand,
                     shells or mudshell In the designated
                     territory would not damage or in-
                     juriously affect any oysters, oyster
                     beds, fish Inhabiting waters thereof
                     or adjacent thereto or that such
                     operation would not damage or in-
                     juriously affect any Island, reef,
                     bar, channel, river, creek or bayou
                     used for frequent or occasional navi-
                     gation, or change or otherwise in-
                     juriously affect any current that
                     would affect navigation, it may issue
                     a permit to such person after such
                     applicant shall have complied with
                     all requirements prescribed by said
                     Parks and Wildlife Commission.   The
                     permit @hall authorize the applicant
                     to take, carry away or otherwise
                     operate within the limits of such
                     territory as may be designated there-
                     in, and for such substance or purpose
                     only as may be named in the permit
                     and upon the terms and conditions of
                     the permit. No permit shall be assign-
                     able, and a failure or refusal of the
                     holder to comply with the terms and
                     conditions of such permit shall operate




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    Hon. Z. R. Singleton, page 3 (M-591)


                      as an immediate termination and
                      revocation of all rights conferred
                      therein or claimed thereunder. No
                      special privilege or exclusive right
                      shall be granted to any person, asso-
                      ciation of persons, corporate or
                      otherwise, to take or carry away
                      any of such products from any terri-
                      tory or to otherwise operate in or
                      upon any Island, reef, bay, lake, river,
                      creek, or bayou included in this Chap-
                      ter. (Emphasis added.)
                                    *++**

          Article 4053d.
                      The Game, Fish and Oyster Commissioner
                      by ,and with the approval of the Governor,
                      may sell the marl, gravel, sand, shell
                      or mudshell included within this Act
                      upon such terms and conditions as he may
                      yeq;lj
                           ~~~~~r~e~u~o~ra~~tp~~~~n~h~~e~~~r
                      for shall be made to said Commissioner.
                      The proceeds arising from such sale shall
                      be transmitted to the State Treasurer and
                      be credited to a special fund hereby
                      created to be known as the sand, gravel
                      and shell fund of the State, and may be
                      expended by the said Commissioner in the
                      enforcement of the provisions of the sand,
                      shell and gravel laws and in the eatablish-
                      ment and maintenance of fish hatcheries,
                      when provided by legislative appropriation,
                      and in payment of refunds provided for
                      in Section 7, Chapter 161, of the General
                      Laws of the Regular Session of the Thirty-
                      eighth Legislature. to counties, cities or
                      towns or any political subdivision of a
                      county, city, or town, as provided for in
                      Section 7, Chapter 161, of the General
                      Laws of the Regular S;;;l;;s;f the Thlrty-
                      eighth Legislature.           providing
                      that the authorization of refunds on sand,




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    Hon. J. R. Singleton, page 4    (M-591)


                      gravel and shell shall be extended
                      to Include refunds to the State High-
                      way Commlssion of money paid the
                      State through the Game, Fish and
                       yster Commission for sand, gravel and
                      shell used by the State Highway C -
                      mission on public roads upon appl?!a-
                      tion for such refunds in the manner
                       rescribed for titles and Counties.
                       rovlded further that not less than
                      seventy-five per cent of the proceed@
                      derived therefrom, after refunds above
                      referred to have been cared for, shall
                      go for the establishment and mainten-
                      ance of fish hatcheries; and the sand,
                      gravel, and shell fund is hereby appro-
                      priated for the purpose of carrying out
                      the provisions of this Act. Said
                      hatcheries to be established from time
                      to time in the State of Texas by the
                      Fish, Game and Oyster Commission, when
                      in their judgment a suitable location
                      is secured and arrangements therefor
                      have been completed. (Emphasis added.)

           Article 4054, Vernon's Civil Statutes, allows cities
    and counties to receive a permit for removal of these materials
    without charge. In Attorney General Opinion No. WW-759 (1959),
    it was held that the provisions of 4053d, providing for mone-
    tary refund of such moneys paid to the Parks and Wildlife Com-
    miesion by the State Highway Commission, could be legally re-
    funded; consequently, this necessarily meant that the pay-
    ment for the materials had to be made In the first Instance.
           The language In Article 4053 also states that "any-
    one" desiring to purchase any of the marl and sand of com-
    mercial value shall first make written application therefor
    to the Parks and Wildlife Commission. This statute, being
    enacted for the public good, is susceptible to a construction
    that state entities are bound thereby although not expresely
    named. 49 Am. Jur. 236, States, etc., Sec. 14. The brned
    language of the above statute, Its requirement that cities




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Hon. J. R. Singleton, page 5   (M-591)


and counties and their political subdivisions obtain a per-
mit   "without charge", and the specific wording as to refunds
for the State Highway Commission (Article 405361)conclusively
evidence a legislative intent that all entities not exempted
from payment or permit provisions must pay for sand and
gravel. 53 Tex. Jur.2d 232-234, Statutes, Sec. 161. Con-
struing these statutes in pari materla, we have thereby
reached the conclusion that all governmental agencies not
exempted from payment, as is the case with Trlnity River
Authority, are subject to the permit and cost provisions of
the statute and therefore must pay for the gravel, etc.,
moved   from a stream bed. Under the provisions of Article
4053d, the proceed.8from such sales of gravel and other de-
signated materials to Trinity River Authority should be
credited to the Special Game and Fish Fund No. 9 for use
therefrom in accordance with the law.

                    SUMMARY
                    -------
       Trinity River Authority ie required to pay the
       Parks and Wildlife Commlsslon or Department for
       removal of marl and sand of commercial value
       and of any of the gravel, shell or mudshells
       from Texas streams in accordance with Articles
       4053 and 4053d, V.C.S. Such moneys should then
       be credited to the Special Game and Fish Fund
       No. 9 of the Parks and Wildlife Department for
       use in accordance with the law
                                     77




Prepared by Roger Tyler
Assistant Attorney Qeneral
APPROVED:                           MEADE F, GRIFFIN
OPINION COMMITTEE                   Staff Legal Assistant

Kerns Taylor, Chairman              ALFRED WALKER
W. E. Allen, Acting Co-Chairman     Executive Assistant

Milton Richardson                   NOLA WHITE
Ray McGregor                        First Assistant
Ivan Williams
Steven Hollahan

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