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                   THEA~ORNEY                  GENERAL
                                 OS-TEXAS



                                 December 11, 1959

        Mr. H. D. Dodgen           Opinion No. WW-759
        Executive Secretary
        Game & Fish Commission     Re:   Whether Nueces County is
        Austin, Texas                    entitled to a refund of
                                         the amount paid the State
                                         for sand, shell and gravel
                                         used in the construction
        Dear Mr. Dodgen:                 of a toll road.
             We have received your request for an opinion as
        follows:
                  "Nueces County has by contract built a
             toll road in and along Padre Island and a
             specific fee or charge is made for each car
             that travels over the road. When the indebt-
             edness is retired, we are informed by the
             county that the road is to become a part of
             the State Highway system.
                  "Please inform me whether, in your opin-
             ion Nueces County is entitled to a refund of
             the amount paid the state for sand, shell and
             gravel used in the construction of this toll
             road. All refunds are made under legislative
             appropriation."
             Article 4051, Vernon's Civil Statutes, provides
        that all the sand and marl of any commercial value, and
        all the gravel, shell and rnudshellof any kind whatso-
        ever, lying on all the islands, reefs, bars, lakes, and
        bays within the tidewater limits from the most interior
        point seaward coextensive with the jurisdiction of this
        State, are placed under the management, control and pro-
        tection of the Qame and Fish Commission.
             Article 4053, Vernon's Civil Statutes, authorizes
        the Game and Fish Commission to grant permits for the
        removal of marl, sand, gravel, shell or mudshell from
        such places and areas as are under its control, If
        satisfied that such removal wlll not be detrimental to
        any oysters, oyster beds, or fish, and will not damage
                                                                -   .




  Mr. H. D. Dodgen, Page 2 (WW-7'59)



  any island, reef, bar, channel, river, creek or bayou
  used for navigation or otherwise coming under its juris-
  diction.
          Article 4054, Vernon's Civil Statutes, provides
  that when any county, subdivision of a county, city or
  town should desire any marl, gravel, sand, shell or mud-
  shell for use in building a road, if the work Is to be
  done by said municipality, a permit to use such mater-
  ial may be granted without charge. When the building of
  roads for said municipalities is to be done by contract,
  then the municipality may obtain a refund from the Qame
  and Fish Commission of the tax levied and collected on
  said marl, gravel, sand, shell and mudshell.
          Article 405311,Vernon's Civil Statutes, author-
  izes the Game and Fish Commission to sell the marl,
  gravel, sand, shell and mudshell upon such terms and con-
  ditions as it may deem proper, but for not less than four
  cents per ton, "and payment therefor shall be made to
  said Commissioner. The proceeds arising from such sale
  shall be transmitted to the State Treasurer and be credit-
. ed to a special fund hereby created to be known as the
  sand, gravel and shell fund of the state, and may be ex-
  pended by the said Commissioner in the enforcement of the
  provisions of the sand, shell and gravel laws and in the
  establishment and maintenance of fish hatcheries, when pro-
  vided by legislative appropriation, and in the payment of
  refunds provided for in Section 7, Chapter 1.61,of the
  General Laws of the Regular Session of the Thirty-eighth
  Legislature, to counties, cities or towns or any politi-
  cal subdivision of a county, city, or town, as provided
  for in Section 7, Chapter 1.61,of the General Laws of the
  Regular Session of the Thirty-eighth Legislature."
          Under the above statutes, as an aid to road
  building programs of counties and cities, the Game and
  Fish Commission is authorized to grant free of chargo a
  permit to use the sand, gravel and shell under'its juris-
  diction, if these materials are used in a road built by
  the county or city itself. If a road is built by a
  county or city under a contract, the county or city may
  obtain a refund from the Commission of the amounts which
  have been paid for these materials used by the contractor.
          The question is asked whether the refund should be
  denied in this particular instance because the county in-
  tends to pay for the cost of the road by charging tolls
Mr. H. D. Dodgen, Page 3 @W-759)


for its use until an amount of money equal to its cost
has been collected. At the time when the cost of the
road has been fully paid by tolls received, the road
is to become a part of the State Highway system.
        Section 52-b of Article III of the Constitution
of Texas reads as follows:
                "Sec. 52-b. The legislature
       shall have no power or authority to in
       any manner lend'the credit of the State
       or grant any public money to, or assume
       any indebtedness, present or future,
       bonded or otherwise, of any individual,
       person, firm, partnership, association,
       corporation, public corporation, public
       agency, or political.subdivision of the
       State, or anyone else; which is now or
       hereafter authorized to construct,
       maintain or operate toll roads and turn-
       pikes within this State. Added Nov. 2,
       1954."
This Section prohibits the lending of credit or granting
of public money by the State to anyone constructing or
operating toll roads within the State.
        It is noted, however, that Article 4053d which
authorizes the sale of gravel, sand and shell by the
Game and Fish Commission, also provides for a special
fund into which the money collected from such sales shall
be placed, and also provides for refunds to be made from
this special fund. At the instant when money is paid in-
to this special fund by a contractor, who is building a
road for a city or county, that money is earmarked to be
refunded to the city or county which is having the road
built. Therefore, it is our opinion that any money col-
lected which is subject to refund to the municipalities
named in Article 4054 is not "public money" in the sense
in which that term is used in Section 52-b of Article III
of the Constitution of Texas.
        The purpose of the refund from the special fund of
the Qame and Fish Commission to a county which has had a
road built by contract is to aid that county in its road-
building program. Whether the cost of a road is paid by
county funds raised by taxing the residents of the county,
or by charging a fee of the users of the road after com-
pletion, does not alter the reason for the refund,
Mr. H. D. Dodgen, page 4 wi-759)

which is to decrease the cost of the road as much as
possible,
        In this particular instance, it is our opinion
that the Game and Fish Commission may refund to Nueces
County the amount paid the State for sand, gravel and
shell used in construction of a road on Padre Island,
even though the cost of the road is to be paid by
charging tolls for its use until the cost is paid in
full, provided that any refund made by the Game and
Fish Commission is used to decrease the cost of the
road for which tolls will be charged.

                      SUMMARY
         The Game and Fish Commission may
         refund to Nueces County money paid
         for sand, gavel and shell used in a
         road built by contract on Padre Is-
         land, even though the cost of the
         road is to be paid by charging tolls
         for its use, provided that the amount
         refunded is used to decrease the total
         cost which the tolls charged will be
         used to pay.

              *        Yours very truly,
                       WILL WILSON
                       Attorney General of Texas


                          Phocion S. Park III
                          Assistant
PSP:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppertj Chairman
Mary Kate Wall
James R., Irion III
Tom I. McFarling
James P. Ryan
REVIEWED FOR THE ATTORNEY GENERAL
BY Leonard Passmore
