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                                    AUSTXN 11. TRxAn
            PRICE DANIEL
            ATTORNEY
                   GENERAL
                                    September 15, 1949

                  Hon. D. C. [freer          Oplnlon Ho. v-903
                  State Highway Engineer
                  Texas Highway Department   Re: The authority of the
                  Austin, Texas                  -fhne, Fish & Oyster
                                                  Commlseion to refund
                                                  all royalty for sand
                                                  and mudshell pald by
                                                  contractorof the
                                                  Texas Highway Depart-
                                                  ment that was used on
                                                  constructionof Fed-
                                                  eral aid highwaya.
                  Dear Mr. Qreers
                            YOUP request for an opfnfon of this office concern-
                  ing the above matter reads in part as followss
                             "On June 24, 1949, the State Highway Com-
                       mlsslon filed its applicationfor refund of
                       royalties on sand and mudshell paid to the game,
                       Fish & Oyster Commlsslonthrongh its contractors
                       engaged In constructionof a public road, nuely,
                       U. S, Highway #75, ia the city of'Houstoni. The
                       applicationwas made in the manner preserfbed aad
                       on forms furnIshed to ua by the &me, Fish and
                       Oyster Commission for the purpose of applying for
                       refunds of royalties under the authority of Arti-
                       cle $053d, Revised Civil Statutea of Texas, o a m
                            "The kixtp Fish & Oyster Cosmlusloa, ia a
                       letter to Hr. D. 6. Qremr. State Highway hglneer,
                       dated July 9, 199, has questioned the rmt'of
                       the State Highway Commission to the refund of all
                       royalty paid on the sand and mudshell ured OR thlr
                       project because U. S. Highway #75 18 a 'Federal
                       Aide Highway. 0 LI0
                            "We would apppealate it if yuu will advise us
                       If in your opinion the State Highway Comnl8slon is
                       entitled to reimbursementof all of the royalty
                       paid to the Game, Fish & Oyster 6ommlsslon on sand
                                                          -    .




Hon. D. C. STROP, page 2, (V-903)


    and mudshell used by It In the construetlon
    of U. S. Hlghwag #75,
                      L   in Houston, as applied
     for."
          The authority for the Game, Fish & Oyster Coa-
mission to make the refund referred to in your letter and
the authority of the State Highway Commlsalon to apply for
su6p r&bud can be found in Article   4053d, V~PUOO.‘~Civil
Statutea, which provides aa followr:
          "The Game, Fish and Oyster Collprisalone~
                                                  by
    and with the approval of the Governor, ray sell
    the marl, gravel, sand, shell OP mndshell in-
    eluded within this Act, upon such term ad con-
    ditions as he may deem proper, but POP not lees
    than four (4#) cents per ton, and payment there-
    for shall be made to aaid Commissioner. The pro-
    ceeds arising from such sale shall be tPf&tIBaitted
    to the State Treasurer and be credited to a ape-
    clal fund hereby created to be knovn as the sand,
    gravel and shell fund of the Stats, and ray be
    expended by the said Commissionerin the enforce-
    ment of the provisions of the aand, ahell and
    gravel laws and in the establishmentand malnte-
    nance of fish hatcheries,when provided by legls-
    latlve appropriation,and in the paFat of re-
    funds provided for In Section 7, Chapter 161 of
    the general Lawa of the Regular Seerion of the
    Thirty-eighthLegislature,to eouatlrs, cities,
    or towtqlOP any political subdlvlaianof a cotm-
    sty,city or tom, a8 provi&ed for la Section 7,
    Chapter 161, of the @enera Laws of the Beguzlar
    Session of ,theThbty;otghth    Legislature.




          The underlined portion of the above quoted rtatute
was added by -the~Thlrty-nlathtigi6latme fn 1925 to allow
the State Highway Commission to apply for refund of moneys
paid for saudi,gravel aad shell used oa public roads a8 had
theretofarebeen allowed only to oountfes, cities or towns
Hon. D. C. @reer, page 3 (v-93)


or political subdivlslonsthereof. The questlen presented
in yeur Inquiry is whether the State El&&vay Ccmlsslcn
would be authorized to ,rrefund of all royalty paid for
sand and mudshell ue& on U. S. Highway tie.75, a Fedopti
Aid Highvay.
          A Federal Aid Highway System Is set up and dearlg-
noted aa such by each State with the approval of the Comm¶.s-
sloner of Public Roads. The Congress of the United States
i8 authorlse& to appropriatefunds to be apportionedamong
the various States, on a designated basis, to assist In the
constructionof highways In this designated system;@3 U.S.
C.A.,Sec. l-25). However, the State, through the Texas
Hi&way Department, la aharged with the responsibilityof
drawing the plans aad speclflcatlonsfor the hlghways, with
receiving competitivebids from authorlsedcantractors,and
obligates Itself to pay to the-sucoessfulbidder the entire
amount of the eontract, It la true that Federal funds ma,i
be allocated to the Stat8 to help defray the eesta ef buQ
oonstruatlonafter the highway Is entirely crsmpletedand ii
It is apprweQ by the Federal agenoy, provided the State has
not received all of the Federal funds apportionedta it. We
do net believe that this of Itself Is a d&iterminin$fwter
in answering your Inquiry but It Is pointed cut as en8 factor
vhlch enters into our deliberations In reaching the oonolu-
slon set @ut herein. The funds whiah the Wiite reo8iVOs
from the FeQeral Gevernmemt ar8 net e~aMaPlcaQf*r l@8 paMlo-
ular project but are depgslted In the State H&&My !kMi to
be used for the sp8clflc purpese sf th8 ImprevrrrWt01 this
State Highway System, This Is apparent frem rerdlng Art$GO
66748, Vernem~s Civil Statutes, which provlctosas fNA+vlrBr
           "'Allaroaeysnew tar krrqaftrr aepn 1%& la
     the State Tre,asuryto 6reQit of the 'atsit
     way Fundl, It'kludlruPall #edePal aid Lne
     posited to the credit of said fund W&M!:
     gf the Fed pal Hl@.hwayAot and all c&.iii%$ aid
     moneys de&&ited to th8 @redIt of said &ti W+Uer
     the terms of thie Aot shall be subject to alg! #3-
     prlatlon for the specifle purpose of *RrgP dLt~
     of said system cf State Highways by thb '?kate
     Highway Department." (lbphaslsaQQed)
          Your atteation IS also called to Artiple 66746,
Voraon~s C&vi1 Stat&as, vhioh provides, in parti:
                                                        -   .




Hu. B. c. Greer, page 4 (v-923)


          "All further laproremeatof raid State
    Elgkay Qstor with Federal aid rhall bo udo
    under the erolu81re and direct aoatml of tho
    State HlghirayDepartment and with appreprfa-
    tloa8 made by the Legislature out of the atat0
    %lgh~ay Fund. The further Improvementor raid
    rptu without Foderal old may be made by the
    State lilghaayDepartment olther vlth or vItL-
    out awnty.ald. awrejll, plam, rpoolfloatkens
    aad estlmatrs for all Further lmpmvement of
    8aid system with Federal aid or vith Fedora1
    and Stato aid shall be made and prepared by the
    State Highway Bopa*tment. Rs furt&ir~tipxwvo-
    nut of arid system shall be udo under the
    dlreet control of tho eomi~altmerr! aourt oi
    aq county unlesr and until the plans and spool-
    fluatlana fo,rarId ImpweWnt    hare boon lpp&ovod
    b the Statr H     way Mglneer. . . . .'
    (&iha. la addedy”

          The Federal @onrtmont In q%preprlatlb&funds to
t&o State for constrWtlea ef Fedora1 Aid R%&hvay SfrtW#
doo8 set loqulro anj iatorbat er tit10 therein. Ia OChor
wordy, the highway, ovom though it may bo a pofilon l? a
F&oral Ald Highway Syston, iTa part of tke.atatoEighYar
By8tem under the ex~luslve control aud jurlrdict&onof the       1
‘purr HIghway Dopartmelat.The Skto ewn~ %ho hlgka~and
18 alone rerponslbloPer the repair and ~p k ealfp it In
the rutRr0.




         The Stat0 Hlghwr~ Comml8,rlonir lntltlel
    te a refund of all none paid to the State,
    threu@ the Oars, Flab E Qystor Cerlrrion, ior
    sad and mudshell used In th@ con8bUOtiU of
    8. 9. Bi.gkray#75. (Art, 4@53& V.C.S.)
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        HOU. D. C. OFeor, poee 5 (v-903)




                                   Ymlra Vor~trulJ
                                              OFTEXAS
                              ATTQRllBY@J!BERAL


                              By   --zIld&
        WSL/rt                     Willl8ias. *Lott
                                   Aaslstrnt




                              FIRST ASSISTAWT
                              ATTORNEYCSEiEi~L
