Untitled Texas Attorney General Opinion

. - _ 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.) . - 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