Honorable H. D. Do&en Opinion No. WW- 389
Executive Secretary
Game and Fish Commission Re: Does the Game and Fish Commis-
Austin, Texas sion have legal authority~to
expend its funds for the purpose
of maintaining Port Mansfield
8 Pass when the primary purpose of
such pass is for use as a navi-
Dear Mr. Dodgen: gable waterway?
You have requested our opinion on the following ques-
tion which we quote f:om your letter of January 29, 1958:
Vhe Willacy County Navigation District has
completed a navigation channel existing from
Port Mansfield across the Laguna Madre and con-
tinuing with a connecting pass through Padre Is-
land to the Gulf of Mexico. Some difficulty has
been experienced with this pass filling with sand
as a result of erosion on the Gulf side.
"Judge Johnson, Port Director for the Navi-
gation District, recently appeared before the Game
and Fish Commission requesting that the Commission
expend the sum of approximately $30,000 to remove
the material that is filling up the mouth of the
pass so as to keep it open to allow fish migra-
tions from the Gulf to the inland waters.
TInasmuch as the Navigation District in ques-
tion has-constructed this pass and channel at a
cost of approximately $3,000,000, as a navigation
venture, the Game and Fish Commission has doubts
as to the legality of spending Game and Fish con-
servation funds to help maintain such a pass.
"As a consequence of this situation, I am re-
quested to ask your opinion on the subjecf;,,&*;'Does
the Game and Fish Commission have legal authority,
in light of H. B. 952, Acts 1939, Regular Session,
1946 to expend its funds for the purpose of main-
taining Port Mansfield pass when the primary pur-
pose of such pass Is for use as a navigable wa'terway?"'
Honorable H. D. Dodgen, page 2 WJ- 389)
Article 4049c, Vernon's Civil Statutes, constitutes
the authority of the Game and Fish Commission to acquire, con-
struct, and maintain passes from one body of tide-water to
another to allow the passage of fish and the equalization of
the saline content of the various waters. Attorney General's
Opinion R-1930 (1949). This Article reads as follows:
"Art. 4049c, Purchase or condemnation of
lands, water rights, etc., for fresh water
hatcheries and for constructing and maintain-
ing channei s.
"Section 1. The State of Texas, through
the Game Fish and Oyster Commission, shall have
the right to acquire by purchase any and all land
in this State that may be deemed necessary for
the construction, maintenance, enlargement and
operation of fresh water fish hatcheries, and for
the construction and maintenance of passes lead-
ing from one body of tide-water to another. Upon
approval of the title by the Attorney General of
this State said Game, Fish and Oyster Commission
is hereby authorized to pay for such land so pur-
chased out of any money that has been, or may be
hereafter appropriated to it by the Legislature.
"Sec. 2. The State of Texas, through the
Game Fish and Oyster Commission shall have the
right, power and authority to enEer upon, condemn,
and appropriate lands, easements, rights-of-way
and property of any person or corporation in the
State of Texas for the purpose of erecting, con-
structing, enlarging and maintaining fish hatch-
eries? buildings, equipment, roads, passage-ways
to said hatcheries and also shall have the right,
power and authority to enter upon, condemn and
appropriate lands, easements, rights-of-way and
property of any person or corporation in this
State for the purpose of constructing, enlarging
and maintaining passes or channels from one body
of tide-water to another body of tide-water in
this State. Provided that the manner and method
of such condemnation assessment, and payment of
damages therefor shai1 be the same as is now pro-
vided by law in the case of railroads."
We do not believe however, that the terms of this Ar-
ticle authorize the expenditure of State moneys for the purpose
Honorable H. D. Dodgen, Page 3 NW- 389)
of maintaining passes primarily for navigational purposes con-
structed by an entity other than the Game and Fish Commission.
We believe that the authority granted to the Game and Fish
Commission by this statute to maintain passes leading from one
body of tide-water to another is limited to passes constructed
by the Game and Fish Commission, as opposed to concerns uncon-
nected with the Game and Fish Commission work.
Accordingly, we hold that under the facts and circum-
stances recited to us, the Game and Fish Commission may not
expend appropriated public moneys for the purpose of removing
sand and other material from the mouth of a channel constructed
for navigational purposes by the Willacy County Navigation Dis-
trict.
SUMMARY
Under the stated facts the Game and Fish Com-
mission may not expend appropriated public moneys
for the purpose of removing sand and other material
from the mouth of a channel constructed for naviga-
tional purposes by the Willacy County Navigation
District.
Yours very truly,
WILL WILSON
Attorney General of Texas
H. Minton, Jr.
JHM:pf:wb
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Houghton Brownlee, Jr.
Cecil Rotsch
Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
BY W. V. Geppert