. I
Honorable J. R. Singleton
Executive Director
Texas Parks & Wildlife Commission
John H. Reagan Duildlng
Austin, Texas 78701
Opinion No.M-591
Re: Trinity River
Authority must pay
the Parks and Wlld-
life Commission for
Dear Mr. Singleton: stream bed ,materials.
You have requested our opinion as to whether your
agency must charge and collect money from the Trinity River
Authority of Texas, a governmental agency created by the
Legislature, for sand, gravel and other material@ which such
agency has removed from the stream bed of the Trinity River
In connection with construction of a project known as the
"Livingston Dam” in Polk and San Jaclnto Counties, Texas.
Your file reflects that the established price under the ap-
plicable etatutes is ten cents per cubic yard, and that the
material removed by Trinity River Authority totals 127,908
cubic yards of such sand, gravel and other materials for an
aggregate monetary amount of $12,790.80.
Attorney General Opinion WW-150 (1959) held that a
navigation district could dredge without a permit If the
dredging Is incidental to navigation. Prior to 1911, the
public was generally free without control or supervision
to remove mudshell, sand, and gravel from the bottoms under-
lying public waters of Texas. Goar v. City of Rosenberg
115 S.W. 653 (Tex.Clv.Apg. 1909, no writ); and see Oplni&
WW-151 (1957). The power of the Parks and Wildlife Commie-
elan to make a charge for removal of such materials from
the stream bed Is contained In two etatutes, to-wit:
Section 1, of Articles 4053, as amended, and 4053d,
Vernon's Civil Statutes, which read as follows:
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. -
Hon. J. R. Slngleton, page 2 (M-591)
"Article 4053,
SECTION 1. Anyone desiring to purchase any of
the marl and sand of commercial
value and any of the gravel, shells
or mudshell included within the pro-
visions of this Chapter, or otherwise
operate In any of the waters or upon
any island, reef, bar, lake, bay,-
river, creek or bayou Included in this
Chapter shall first make written ap-
llcation therefor to the Parks and
ildlife Commission, designating the
limits of the territory in which such
person desires to operate. If the
Parks and Wildlife Commission finds
that the taking, carrying away or
disturbing of the marl, gravel, sand,
shells or mudshell In the designated
territory would not damage or in-
juriously affect any oysters, oyster
beds, fish Inhabiting waters thereof
or adjacent thereto or that such
operation would not damage or in-
juriously affect any Island, reef,
bar, channel, river, creek or bayou
used for frequent or occasional navi-
gation, or change or otherwise in-
juriously affect any current that
would affect navigation, it may issue
a permit to such person after such
applicant shall have complied with
all requirements prescribed by said
Parks and Wildlife Commission. The
permit @hall authorize the applicant
to take, carry away or otherwise
operate within the limits of such
territory as may be designated there-
in, and for such substance or purpose
only as may be named in the permit
and upon the terms and conditions of
the permit. No permit shall be assign-
able, and a failure or refusal of the
holder to comply with the terms and
conditions of such permit shall operate
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.
Hon. Z. R. Singleton, page 3 (M-591)
as an immediate termination and
revocation of all rights conferred
therein or claimed thereunder. No
special privilege or exclusive right
shall be granted to any person, asso-
ciation of persons, corporate or
otherwise, to take or carry away
any of such products from any terri-
tory or to otherwise operate in or
upon any Island, reef, bay, lake, river,
creek, or bayou included in this Chap-
ter. (Emphasis added.)
*++**
Article 4053d.
The Game, Fish and Oyster Commissioner
by ,and with the approval of the Governor,
may sell the marl, gravel, sand, shell
or mudshell included within this Act
upon such terms and conditions as he may
yeq;lj
~~~~~r~e~u~o~ra~~tp~~~~n~h~~e~~~r
for shall be made to said Commissioner.
The proceeds arising from such sale shall
be transmitted to the State Treasurer and
be credited to a special fund hereby
created to be known as the sand, gravel
and shell fund of the State, and may be
expended by the said Commissioner in the
enforcement of the provisions of the sand,
shell and gravel laws and in the eatablish-
ment and maintenance of fish hatcheries,
when provided by legislative appropriation,
and in payment of refunds provided for
in Section 7, Chapter 161, of the General
Laws of the Regular Session of the Thirty-
eighth Legislature. to counties, cities or
towns or any political subdivision of a
county, city, or town, as provided for in
Section 7, Chapter 161, of the General
Laws of the Regular S;;;l;;s;f the Thlrty-
eighth Legislature. providing
that the authorization of refunds on sand,
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Hon. J. R. Singleton, page 4 (M-591)
gravel and shell shall be extended
to Include refunds to the State High-
way Commlssion of money paid the
State through the Game, Fish and
yster Commission for sand, gravel and
shell used by the State Highway C -
mission on public roads upon appl?!a-
tion for such refunds in the manner
rescribed for titles and Counties.
rovlded further that not less than
seventy-five per cent of the proceed@
derived therefrom, after refunds above
referred to have been cared for, shall
go for the establishment and mainten-
ance of fish hatcheries; and the sand,
gravel, and shell fund is hereby appro-
priated for the purpose of carrying out
the provisions of this Act. Said
hatcheries to be established from time
to time in the State of Texas by the
Fish, Game and Oyster Commission, when
in their judgment a suitable location
is secured and arrangements therefor
have been completed. (Emphasis added.)
Article 4054, Vernon's Civil Statutes, allows cities
and counties to receive a permit for removal of these materials
without charge. In Attorney General Opinion No. WW-759 (1959),
it was held that the provisions of 4053d, providing for mone-
tary refund of such moneys paid to the Parks and Wildlife Com-
miesion by the State Highway Commission, could be legally re-
funded; consequently, this necessarily meant that the pay-
ment for the materials had to be made In the first Instance.
The language In Article 4053 also states that "any-
one" desiring to purchase any of the marl and sand of com-
mercial value shall first make written application therefor
to the Parks and Wildlife Commission. This statute, being
enacted for the public good, is susceptible to a construction
that state entities are bound thereby although not expresely
named. 49 Am. Jur. 236, States, etc., Sec. 14. The brned
language of the above statute, Its requirement that cities
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Hon. J. R. Singleton, page 5 (M-591)
and counties and their political subdivisions obtain a per-
mit "without charge", and the specific wording as to refunds
for the State Highway Commission (Article 405361)conclusively
evidence a legislative intent that all entities not exempted
from payment or permit provisions must pay for sand and
gravel. 53 Tex. Jur.2d 232-234, Statutes, Sec. 161. Con-
struing these statutes in pari materla, we have thereby
reached the conclusion that all governmental agencies not
exempted from payment, as is the case with Trlnity River
Authority, are subject to the permit and cost provisions of
the statute and therefore must pay for the gravel, etc.,
moved from a stream bed. Under the provisions of Article
4053d, the proceed.8from such sales of gravel and other de-
signated materials to Trinity River Authority should be
credited to the Special Game and Fish Fund No. 9 for use
therefrom in accordance with the law.
SUMMARY
-------
Trinity River Authority ie required to pay the
Parks and Wildlife Commlsslon or Department for
removal of marl and sand of commercial value
and of any of the gravel, shell or mudshells
from Texas streams in accordance with Articles
4053 and 4053d, V.C.S. Such moneys should then
be credited to the Special Game and Fish Fund
No. 9 of the Parks and Wildlife Department for
use in accordance with the law
77
Prepared by Roger Tyler
Assistant Attorney Qeneral
APPROVED: MEADE F, GRIFFIN
OPINION COMMITTEE Staff Legal Assistant
Kerns Taylor, Chairman ALFRED WALKER
W. E. Allen, Acting Co-Chairman Executive Assistant
Milton Richardson NOLA WHITE
Ray McGregor First Assistant
Ivan Williams
Steven Hollahan
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