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                     HE    ,%ITORNEY             GENERAL
                                       1I’EXAS




       Honorable Robert S. Calvert
       Comptroller of Public Accounts
       Austin, Texas
                                         Opinion No. W- 603
                                         Re:     Under the provisions
                                                 of Article 4413 (32),
                                                 V.C.S., may the Game
                                                 & Fish Commission
                                                 enter Into a contract
                                                 with the State High-
                                                 way Department for
                                                 clearing and grubbing
       Dear Mr. Calvert:                         a radio tower site.
              You have requested an opinion on the following
       questions:
                  "Under the provisions of Article
             4413 (32), V.C.S., may the Game & Fish
             Commission enter Into a contract with
             the State Highway Department for clear-
             ing and grubbing a radio tower site.
                  "(1). In view of the Constitutional
             restriction fle   7 a, Art. VIII, Constl-
             tution of Texas
                           9- please advise if in your
             opinion moneys deposited in the State High-
             way Fund may be expended for performing the
             services for which the enclosed account was
             presented?
                         In view of the Constitutional
             restrX&       ec. 7-a, Art. VIII, Constltu-
             tlon of Texas
                         5 , please advise If in your
             opinion moneys deposited in the State High-
             way Fund may be expended for services ren-
             dered under the provisions of Article 4413
             (32) and Article 6674t, V.C.S."
              The factual background of this request is as follows:
       On the 6th day of November, 1958, the State Highway Depart-
Honorable Robert S. Calvert, page 2 (W-603)


ment and the Game and Fish Commission entered into an inter-
agency contract pursuant to the provisions of Article 4413 (32),
V.C.S., whereby the Texas Highway Department agreed to fur-
nish engineering services, supervision, labor; drilling equlp-
ment, laboratory equipment, and technical services to complete
the clearing and grubbing of a site for a radio tower in the
Austin City Park near Lake Austin, Travis County, Texas, and
the Game and Fish Commission agreed to reimburse the State
Highway Department for all expenses incurred by the Highway
Department in the performance of the services. This contract
was executed by the Game and Fish Commission and the State
Highway Department and approved by the State Board of Control.
The approval of the State Board of Control had the effect of
finding (a) that the services specified were necessary and
essential for activities and work that are properly within the
statutory  functions and programs of the affected agencies of the
State Government; (b) the proposed arrangements would serve the
interests of efficient and economical administration of the
State Government; and (c) the specified bases for reimbursing
actual costs were fair, equitable, and realistic and in con-
formity with the limitations of funds prescribed in the cur-
rent appropriations act or other applicable statutes.    Sec.
5, ,Art. 4413 (32), V.C.S.
         Pursuant to this contract the Texas Highway Department
performed the services called for in the contract and presented
a voucher to the Comptroller for the payment of the cost In
accordance with the terms of the contract. Thisvoucher was
approved by the State Highway Department, the Game and Fish Com-
mission,    and the Board of Control.
        Since the services performed by the Highway Department
did not involve the construction of any highway, street, road,
or other building or structure, the prohibition contained in
Section   3 of Article 4413 (32) does not apply.
      Section 7-a of Article VIII of the Constitution of Texas
provides as follows:
            "Subject to legislative appropriation, alloca-
      tion and direction, all net revenues remaining
      after payment of all refunds allowed by law and
      expeases of collection derived from motor vehicle
      registration   fees, and all taxes, except gross
      production and ad valorem taxes, on motor fuels
      and lubricants used to propel motor vehicles over
      public roadway,s,, shall be used for the sole pur-
      pose of acquiring rights-of-way, constructing,
      maintaining, and policing such public roadways,
      and for the administration of such laws as may be
-.--   -




       Honorable Robert S. Calvert, Page 3 (~~-603)


           prescribed by the Legislature pertaining to the
           supervision of traffic and safety on auoh roads;
           and for the payment of the prinaipal and interest
           on county and road district bonds or warrants
           voted or lasued prior to January 2, 1939, and de-
           clared eligible prior to January 2, 1945, for
           payment out of the County and Road District High-
           way Fund under existing law; provided, however, that
           one-fourth (t) of such net revenue from the motor
           fuel tax shall be allocated to the Available School
           Fund; and provided, however, that the net revenue
           derived by counties from motor vehicle registration
           fees shall never be less than the maximum amounts..
           allowed to be retained by each County and the per-
           centage allowed to be retained by each County under
           the laws in effect on January 1, 1945. Nothing
           contained herein shall be construed as authorizing the
           pledging of the State's credit for my purpose.'
                 While this provision of the Conrtitution restricts
       the expenditure of moneys in the State Highway Fund, it does
       not apply to the expenditure of funds by the Game and Fish
       Commission. The only expenditure of publla moneys involved
       In your request is money appropriated to the Game and Fish
       Commission. Therefore It is our opinion that the provie$ons
       of Section 7-a, Article VIII, Constitution of Texas, have no
       application to the validity of the contract submitted with
       your request,
                 Article 6674t, Vernon's C~lvilStatutes, authorizes
       the Texas Highway Department, upon request of the Board for
       Texas State Hospitals and Special Schools or the State Youth
       Development Council to enter into agreements with the Board
       or Council for the construction, maintenance, and repair of
       roads within any of the Institutions under their management
       and control, and authorizes these agencies to reimburse the
       Texas Highway Department for the cost of such work performed.
       Since the aocount submitted with your request does not apply
       to any Institution under the management and control of either
       the Hospital Board or the Youth Council, the provlsZons of
       Artfcle 6674t have no application to your request.
                 In vLew of the foregoing you are advised that the
       contract attached with your request Is valid, and that the
       Texas Highway Department Is entitled to reimbursement In
       accordance with its provisions. You are also advised that
       the voucher attached to your request may be paid.
Honorable Robert S. Calvert, page 4 (WW-603 )


                        SUMMARY
            The Texas Highway Department and
            the Game and Fish Commission have
            the authority to enter Into an
            Inter-agency contract pursuant to
            the provisions of Article 4413
            (32), Vernon's Civil Statutes,
            whereby the Texas Highway Depart-
            ment would perform services nec-
            essary for the clearing and grub-
            bing of a radio tower site, and
            the Game and Fish Commission to
            reimburse the Texas Highway De-
            partment for the actual cost of
            such services.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas



                                     John Reeves
                                     Assistant
JR:rm: me
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Dean Davis
C. K. Richards
Elmer McVey
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert
