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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
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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:
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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.)
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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