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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
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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