February 14, 1975
The Honorable Clayton T. Garrison Opinion No. H- 528
Executive Director
Texas Parks & Wildlife Department Re: May the Parks and Wildlife
John H. Reagan Bldg. Department lease land to pro-
Austin, Texas 78701 vide feed for white-winged
doves under article879a-6,
Penal Auxiliary Laws.
Dear Mr. Garrison:
You have asked our opinion on two questions concerning the Depart-
ment’s authority to expend funds under a program designed to protect the
white-winged dove. One question asks whether certain expenditures are
proper “for acquisition of white-winged dove habitat” and the other asks
whether similar expenditures may legally be made “for research and
management for the protection of white-winged doves. ”
Article 879a-6, Penal Auxiliary Laws, authorizes the Parks and
Wildlife Department to sell white-winged dove stamps and prohibits
hunting the doves without a stamp. Section 4(c) of that article states
that:
The Commission shall deposit the proceeds
from the sale of stamps in the state treasury in
Special Game and Fish Fund No. 9. One-half of
these proceeds may be expended only for research
and management for the protection of white-winged
dove and the other one-half of these proceeds may
only be expended ior the acquisition of white-winged
dove habitat in the state.
1n, an earlier opinion, Attorney General Opinion M-1084 (1972),
this office concluded that despite article 879a-6, the Parks and Wildlife
Department could not expend any funds for the acquisition of white-winged
p. 2383
The Honorable Cisyton T. Garrison page 2 W- 528)
dove habitat because the Legislature had failed to appropriate any funds
for thal purpose. The problem was partially solved with the passage of
the Genera! Appropriation Bill for the biennium beginning Sept. 1, 1973.
It c-ontains an appropriation of $37, 500 for 1974 and a like amount for
1975 “to be expended for the acquisition of white-winged dove habitat. ”
Acts i973, 63rd Leg., ch. 659, p. 2005. But no appropriation has been
made for “research and management for the protection of white wing
dove. ”
It is apparent that the Legislature which enacted article 879a-6,
section 4(c) had two distinct activities in mind because it earmarked
portions of stamp-sale income which could be used for one of the purposes,
but not for the other.
Since the Legislature has seen fit to appropriate funds for only one
of the two authorized programs, the Department is not permitted to expend
funds for the other. Thus, there are no appropriated funds for research
and management for the protection of the white-winged dove, and it is
unnecessary to consider your specific questions about expenditures for
that purpose.
Your other question asks:
1. Is the ‘Department authorized to expend a portion
ol the one-half proceeds dedicated by article 879a-6
Penal Auxiliary Laws, “for acquisition of white-winged
dove habitat” to
a) lease land for the purpose of growing grain
crops or to lease land with standing grain crops to
provide feed for white-winged doves?
b) purchase farmland for the express purpose of
grnwlng grain crops to provide feed for white-winged
doves?
c) purchase farmland for the express purpose of
growing brush (reforestation) to provide nesting and
roosting habiiat~ for white-winged doves’?
p. 2384
The Honorable Clayton T. Garrison page 3 (H- 528)
d) buy equipment and pay salaries and operating
expenses for the purposes of growing brush (reforesta-
tion) to provide nesting and roosting habitat and to grow
crops to provide feed for white-winged doves?
The four general types of activities you mention appear to be related
to the acquisition of habitat for the white-winged dove, and to the extent that
they, in fact, constitute such acquisition, you are authorized by articl,e 879a-6
and by the Appropriations Act to expend funds for those purposes. We do not
believe that the fact that land may be leased rather than purchased will pre-
vent its being acquired for the purposes of the statute. Whether any specific
activity qualifies as a part of a program for the acquisition of habitat in-
volves fact questions which we are not authorized to answer.
SUMMARY
The Legislature has appropriated no funds for
research and management for the protection of the
white-tinged dove. Funds are appropriated and
may be spent for acquisition of habitat for the
white-winged dove.
Very truly yours,
u Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2385