                      The Attorney          General of Texas
                                      September 10, 1981
MARK WHITE
Attorney General


                   Honorable Charles D. Travis             Opinion No. Mw-367
                   Executive Director
                   Texas Parks & Wildlife Department       Re: Authority of Department
                   4200 Smith School Road                  of Parks & Wildlife to refund
                   Austin, Texas 78744                     fees paid by Jacintoport for
                                                           dredged material taken from
                                                           Carpenter's Bayou
                   Dear Mr. Travis:

                        Your request for our opinion concerns a demand made by the
                   Jacintoport Corporation for a refund of the $25,000 fee it paid to the
                   Parks and Wildlife Department for the right to perform certain
                   maintenance dredging. We understand the facts are as follows:

                        In January, 1980, Jacintoport applied to the U.S. Army Corps of
                   Engineers for a permit to perform maintenance dredging of a barge
                   canal in the Carpenter's Bayou area. The Corps of Engineers declined
                   to issue a permit, however, because of objections raised by the Parks
                   and Wildlife Department. The department contended that because the
                   state owned the materials to be dredged, it was authorized to charge
                   Jacintoport a fee for their removal. Jacintoport paid a $25,000 fee
                   and obtained its permit.

                        Jacintoport has since demanded a refund of this fee. Among other
                   things, it claims that it performed no dredging on state-owned
                   property, and that the department therefore lacked authority to charge
                   this fee. At the department's request, the General Land Office
                   researched the question qf ownership of the canal, and advised the
                   commissioner that the state has never claimed Carpenter's Bayou. We
                   understand that you do not dispute this conclusion. Rather, your
                   question is whether, acting in reliance on this information, the
                   department may lawfully refund the $25,000 fee to Jacintoport.

                        Section 86.002 of   the Parks and Wildlife Code provides, in
                   paragraph (a), that:

                            No person may disturb or take marl, sand, gravel,
                            shell or mudshell under the management and
                            protection of the commission...for any purpose
                            other than that necessary or incidental to
                            navigation or dredging under state or federal




                                             p. 1227
Charles D. Travis - Page 2 (MW-367)



          authority without first having acquired from the
          commission a permit authorizing the activity.

Marl and sand of commercial value and gravel, shell, and mudshell are
under the commission's management and protection if located:

          within the tidewater limits of the state, and on
          islands within those limits, and within the
          freshwater areas of the state not embraced by a
          survey of private land, and on islands within
          those areas.

Parks & Wild. Code 986.001. Section 86.012 of the code authorizes the
cormnissionto sell these substances, and section 86.016 provides that
the proceeds from their sale shall be deposited in the Special Came
and Fish Fund (renamed Game, Fish, and Water Safety Fund; see Acts
1979, 66th Leg., ch. 260 at 546).

     Section 11.031 et seq. of the code describes various funds in the
state treasury, including the Game, Fish, and Water Safety Fund
referred to above. Parks & Wild. Code 9511.031-11.034. Section
11.040 provides as follows:

          (a) Any funds deposited in the state treasury by
          the department by mistake of fact or mistake of
          law shall be refunded by warrant    issued against
          the fund in the state treasury into which the
          money was deposited.    Refunds necessary to make
          the proper correction shall be appropriated by the
          general appropriations act.

          (b) The comptroller may require written evidence
          from the director of the department to indicate
          the reason for the mistake of fact or law before
          issuing the warrant authorized in Subsection (a)
          of this section.

          (c) This section does not apply to any funds that
          have been deposited under a written contract or to
          any funds on deposit as of June 8, 1971, which are
          the subject of litigation in any of the courts of
          this state or the United States.

      These provisions establish that if the land is not under the
 commission's management and protection, the commission lacked
 authority to charge Jacintoport a $25,000 fee for dredging materials
 therein. Section 11.040 authorizes the refund of funds deposited in
 the treasury under a "mistake of fact or mistake of law." In our
 opinion, a fee for dredging materials which the commission charged
 under an erroneous assumption that it had a duty to manage and protect
 them would be a deposit in the treasury under a "mistake of fact."
-See Lusk V. Parmer, 114 S.W.2d 677 (Tex. Civ. App. - Amarillo 1938,




                               p. 1228
.   .
        Charles D. Travis - Page 3   (MW-367)



        writ dism'd) (discussion of meaning of "mistake of fact"). Thus, the
        remaining question is whether the General Land Office's determination
        that the state has never claimed Carpenter's Bayou is sufficient
        authority for the commission properly to conclude that the dredged
        materials were not under its management and protection and, therefore,
        that a "mistake of fact" occurred.

             Sections 31.001 et seq. of the Natural Resources Code govern the
        General Land Office.    Section 31.011 provides that the General L.and
        Office "shall register all land titles emanating from the state if not
        prohibited by the constitution." See also Tex. Const. art. XIV, §I.
        Section 31.051 provides that the duties of the commissioner of that
        office consist, among other things, of executing and performing:

                  (2) ...a11 acts and other things relating to
                  public land of the state or rights of individuals
                  in public land which is required by law....

             Ashby v. Ringstaff, 464 S.W.2d 891 (Tex. Civ. App. - Austin 1971,
        writ ref'd n.r.e.), holds that the land commissioner has no power to
        adjudicate between rival claimants whose titles to land have become
        fixed. See also Atlantic Refining Co. v. Noel, 443 S.W.2d 35 (Tex.
        1968) (commissioner has no power to divest or enlarge title to land by
        ordering and accepting resurvey). In this instance, however, the
        General Land Office is not attempting to resolve any dispute between
        rival claimants to Carpenter's Bayou, nor is it attempting to divest
        or enlarge any title to land.   On the contrary, we understand that it
        has merely concluded that its records indicate the state has never
        claimed Carpenter's Bayou. Since all land titles "emanating from the
        state" must be registered with the Land Office, we believe that office
        certainly has authority to examine those titles, as well as other maps
        and records in its files, and make an authoritative determination as
        to whether the state has ever claimed certain property. See Caples v.
        Cole, 102 S.W.Zd 173 (Tex. 1937) (commissioner's finding on issue of
        fact conclusive unless clearly illegal, unreasonable, or arbitrary);
        46 Tex. Jur. 2d Public Lands §§l-13. We further believe that the
        Parks and Wildlife Commission, acting in reliance on              this
        determination, may properly conclude that a "mistake of fact" has
        occurred within section 11.040, enabling it to refund the $25,000 fee
        to Jacintoport. Funds for this purpose were appropriated by the
        Sixty-Sixth Legislature. Acts 1979, 66th Leg., ch. 843, at 2698.

             It is argued in an accompanyl~ngbrief that the commission had no
        authority to charge the fee because (1) the material dredged was
        analyzed by a geotechnical consulting firm as clay and silt, rather
        than marl, sand, gravel, shell, or mudshell; and (2) section 86.002 of
        the Parks and Wildlife Code does not require a permit to be obtained
        unless the enumerated substances are taken for a purpose "other than
        that necessary or incidental to navigation or dredging under state or
        federal authority." -See Amdel Pipeline, Inc. v. State, 541 S.W.2d 821
        (Tex. 1976). We need not address these issues, however, because of
        our conclusion regarding the question you raise.




                                      p. 1229
Charles I).Travis - Page 4    (MW-367)




                              SUMMARY

              Acting in reliance on the General Land
         Office's determination that the state of Texas
         never claimed Carpenter's Bayou as state property,
         the Parks end Wildlife Department may lawfully
         refund the $25,000 fee it charged the Jacintoport
         Corporation for dredging materials therein.




                                         MARK      WHITE
                                         Attorney Genera.1of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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