The     Honorable              Clayton          T.     Garrison                     Opinion         No.        H-     181
Executive          Director
John      H.    Reagan             Building                                         Re:            Can     the        Texas          Parks          and
Austin,         Texas         78701                                                                Wildlife           Department                   legally
                                                                                                   fund        a project             for     the    con-
                                                                                                   struction              and    maintenance
                                                                                                   of artificial              reefs          located
                                                                                                   in the        Gulf       of Mexico
                                                                                                   approximately                     thirty        miles
Dear      Mr.      Garrison:                                                                       from         the     Texas          coastline?


           Your      letter          requesting             our     opinion         states       that     the       Parks       and         Wildlife
Department              is    considering               the construction                  of artificial             reefs       in the           Gulf
of Mexico          at a distance                of approximately                    thirty       miles         from       the    coastline.
The     project         would         entail         the   expenditure              of State       funds.             You     ask          whether
the    Department                  may      “legally        fund        a project         and     maintenance”                  of     such        reefs.


           In June           of 1967 this            office       issued        Opinion          M-87      dealing           with          the
seaward          boundary             of     Texas         and    the     extent      to which           Texas         could         extend         its
regulation         of fishing.                 The      conclusion            reached            was:


                                     “The       gulfward           boundary           of the State              of Texas
                     is       a Line three             marine            leagues       distant          from     the        coast
                     and           in such      waters            Texas       is   empowered              to control             and
                     regulate               fishing.           Texas        cannot        unilaterally              extend       its
                     gulfward                boundary            by legislation.             ”


           As     to whether               Texas       could       regulate         fishing        outside          the     three          league
gulfward          boundary               the opinion             cited     Skiriotes         v. Florida,   313 U.S.    69
(1941)     but declined               to answer             the question.                 Nothing   has occurred    since                               that
time      to alter           the    effect      of that          opinion        insofar     as it expressed     the extent    to
which       the State          of     Texas          has    regulatory             jurisdiction.      In United   States   v.




                                                                   p.     463
                                                                                                                                                                                   n




The      Honorable              Clayton             T.     Garrison,                  page        2         (H-101)                                                                -.




Louisiana,            394       U.S.           1 (1969),              the     “coastline”               from             which           jurisdiction
extends          three         leagues          was        defined.


           The      Submerged                   Lands           Act         (43 U.S.             C.    5 1332)            reserves               to the      United
States      jurisdiction,                 control              and      the        power          of disposition                     over        the    subsoil
and      seabed      of the            outer         continental                   shelf.         This            is    so even            though         § 1333
extends          state     law         to this           area         for     certain            purposes.                    Guess         v.    Read,            290
F.     2d 622       (5th       cir.,       1961).


           Therefore,                  it is        our     opinion               that,     insofar               as it is          proposed            to construct
or     maintain          artificial             reefs           more          than        three        marine              leagues           from         the      coast
of    Texas       but within             the        outer         seaward                 limit       of the            continental              shelf,       the     reefs
would      be in waters                  over         which            the        United         States           Government                  has       asserted             its
jurisdiction.                  You      have         not asked                us to,         and we have                      not        reviewed          the appro-
priate      federal            statutes,             regulations,                     and decisions                      which           might       bar      or     limit
such      construction                 in the absence                         of agreement                   by the           U. S.         Therefore,               we
express          no opinion              on the            right        of Texas              to build                 such     structures              in the ab-
sence      of agreement                   with           the     U.S.


           Assuming               no federal                   obstacle              to the construction                            of    such      reefs,         and
that     their     construction                     and        maintenance                  would            aid        in the       propagation,                  distri-
bution,          management                or        protection                   of fish        in Texas                waters,            we      think       $6    of
Article          4032b-1,            V. T. C. S.,                authorizes                 appropriation                       of Special             Game          and
Fish      Fund      moneys               (Article              438613,            V. T. C.S.)                for        such        a project.               That
section          reads         in part:


                                       “Sec.          6.        All     moneys              received                   . . .     shall       be
                         remitted              to the          Game            and        Fish        Commission                     [now
                         Parks          and         Wildlife            Commission]                     .    , . and                 be
                         deposited              .    .     . to the            credit        of the Special                     Game
                         and     Fish          Fund,            and         sha,ll     be used              for        the propagation,
                         distribution,                    management                      and protection                       of fish       in
                         all    salt      waters               and      all       fresh      waters               within        this        State
                         . . .         . ” (emphasis                    added)


           The      expenditure                     of State           money              outside           the State            in order              to protect
proper        interests              inside          of it is           not        prohibited.                    Compare                Attorney           General




                                                                             p.     464
The     Honorable               Clayton                 T.     Garrison,              page       3 (H-181)




Opinion         M-1053           (1972).                 But Special                Game         and     Fish          Fund         money,          like
other     State      money,                 is         subject     to the           requirements                   of Article               8 5 6 of
the     Texas       Constitution                       that:


                                       “No             money       shall          be drawn             from        the      Treasury
                         but in pursuance                         of    specific            appropriations                     made         by
                         law.      .    .        .‘I


          In Attorney                  General                 Opinion            V-4,12     (1947)        it was           said,      with        reference
to Article          8 6 6:


                                       “This             constitutional                provisions                is      not
                         limited            to funds             paid        into     the    General               Fund,
                     and         applies                to funds         dedicated               to a special
                         purpose.                      Opinion         O-700,          dated           May       5,      1939.
                         Such      constitutional                       provision            controls              all      appro-
                     priations                    out        of the     State         Treasury             and        money
                         not     appropriated                     by the            Legislature               cannot           be
                         withdrawn                     from      the     Treasury.                 .   . . ”


           We      are     unable                to find         any     appropriation                   of money               from        the Special
Fish      & Game           Fund             (or         from      any      other        source)           for         such      a use        in House
Bill     139,     63rd          Leg.,             the Appropriation                        Act     for       the      1974 and          1975 fiscal
years      or     in Senate              Bill           1, 62nd         Leg.,          3rd       Called          Session,             the     1973 act.
In the     absence              of such                an appropriation,                     the       funds          cannot         be used         for     such
a purpose.               Compare                   Attorney             General             Opinions             M-1084             (1972),       M-574
(1970).


           Therefore,                  in answer                 to your            question           as to whether                   your       Department
may      legally         fund      and            maintain             the     off-shore               reefs,          we      would        advise         that    we
do not pass              on the         question                 concerning                a possible              conflict          with        Federal          law,
but that,          in any         event,                a Legislative               appropriation                  must         follow        a favorable
resolution          of that            facet            of the problem                    before         such         an artificial               reef     may
be constructed.


                                                                        SUMMARY


                                        The            submerged              lands         of the       continental                 shelf,
                         seaward                 of the three                marine          league             extent         of   Texas




                                                                             p.     465
The   Honorable          Clayton      T.     Garrison,            page        4 (H-101)




                  land,     is     subject      to the      jurisdiction              of the    Federal
                  Government             and,      subject        to there        being        no conflict
                  with     Federal         law,     the State        of       Texas      may     fund      and
                  erect     artificial          reefs     in that     area        with       funds    from
                  the Special          Game        and     Fish     Fund,         provided           the
                  Legislature            enacts         an appropriation               for     that purpose.


                                                           Very      truly       yours,




                                                                         L.     HILL
                                                           Attorney            General         of Texas




 DAVID     M.     KENDALL,               Chairman
 Opinion    Committee




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