Untitled Texas Attorney General Opinion ( 1970 )


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  • .    I
    Honorable J. R. Singleton
    Executive Director
    Texas Parks & Wildlife Commission
    John H. Reagan Duildlng
    Austin, Texas 78701
    Opinion No.M-591
    Re:   Trinity River
    Authority must pay
    the Parks and Wlld-
    life Commission for
    Dear Mr. Singleton:                       stream bed ,materials.
    You have requested our opinion as to whether your
    agency must charge and collect money from the Trinity River
    Authority of Texas, a governmental agency created by the
    Legislature, for sand, gravel and other material@ which such
    agency has removed from the stream bed of the Trinity River
    In connection with construction of a project known as the
    "Livingston Dam” in Polk and San Jaclnto Counties, Texas.
    Your file reflects that the established price under the ap-
    plicable etatutes is ten cents per cubic yard, and that the
    material removed by Trinity River Authority totals 127,908
    cubic yards of such sand, gravel and other materials for an
    aggregate monetary amount of $12,790.80.
    Attorney General Opinion WW-150 (1959) held that a
    navigation district could dredge without a permit If the
    dredging Is incidental to navigation. Prior to 1911, the
    public was generally free without control or supervision
    to remove mudshell, sand, and gravel from the bottoms under-
    lying public waters of Texas. Goar v. City of Rosenberg
    
    115 S.W. 653
    (Tex.Clv.Apg. 1909, no writ); and see Oplni&
    WW-151 (1957). The power of the Parks and Wildlife Commie-
    elan  to make a charge for removal of such materials from
    the stream   bed Is contained In two etatutes, to-wit:
    Section 1, of Articles 4053, as amended, and 4053d,
    Vernon's Civil Statutes, which read as follows:
    -2815-
    .   -
    Hon. J. R. Slngleton, page 2 (M-591)
    "Article 4053,
    SECTION 1.   Anyone desiring to purchase any of
    the marl and sand of commercial
    value  and any of the gravel, shells
    or mudshell included within the pro-
    visions of this Chapter, or otherwise
    operate In any of the waters or upon
    any island, reef, bar, lake, bay,-
    river, creek or bayou Included in this
    Chapter shall first make written ap-
    llcation therefor to the Parks and
    ildlife Commission, designating the
    limits  of the territory in which such
    person desires to operate. If the
    Parks and Wildlife Commission finds
    that the taking, carrying away or
    disturbing of the marl, gravel, sand,
    shells or mudshell In the designated
    territory would not damage or in-
    juriously affect any oysters, oyster
    beds, fish Inhabiting waters thereof
    or adjacent thereto or that such
    operation would not damage or in-
    juriously affect any Island, reef,
    bar, channel, river, creek or bayou
    used for frequent or occasional navi-
    gation, or change or otherwise in-
    juriously affect any current that
    would affect navigation, it may issue
    a permit to such person after such
    applicant shall have complied with
    all requirements prescribed by said
    Parks and Wildlife Commission.   The
    permit @hall authorize the applicant
    to take, carry away or otherwise
    operate within the limits of such
    territory as may be designated there-
    in, and for such substance or purpose
    only as may be named in the permit
    and upon the terms and conditions of
    the permit. No permit shall be assign-
    able, and a failure or refusal of the
    holder to comply with the terms and
    conditions of such permit shall operate
    -2816-
    .
    Hon. Z. R. Singleton, page 3 (M-591)
    as an immediate termination and
    revocation of all rights conferred
    therein or claimed thereunder. No
    special privilege or exclusive right
    shall be granted to any person, asso-
    ciation of persons, corporate or
    otherwise, to take or carry away
    any of such products from any terri-
    tory or to otherwise operate in or
    upon any Island, reef, bay, lake, river,
    creek, or bayou included in this Chap-
    ter. (Emphasis added.)
    *++**
    Article 4053d.
    The Game, Fish and Oyster Commissioner
    by ,and with the approval of the Governor,
    may sell the marl, gravel, sand, shell
    or mudshell included within this Act
    upon such terms and conditions as he may
    yeq;lj
    ~~~~~r~e~u~o~ra~~tp~~~~n~h~~e~~~r
    for shall be made to said Commissioner.
    The proceeds arising from such sale shall
    be transmitted to the State Treasurer and
    be credited to a special fund hereby
    created to be known as the sand, gravel
    and shell fund of the State, and may be
    expended by the said Commissioner in the
    enforcement of the provisions of the sand,
    shell and gravel laws and in the eatablish-
    ment and maintenance of fish hatcheries,
    when provided by legislative appropriation,
    and in payment of refunds provided for
    in Section 7, Chapter 161, of the General
    Laws of the Regular Session of the Thirty-
    eighth Legislature. to counties, cities or
    towns or any political subdivision of a
    county, city, or town, as provided for in
    Section 7, Chapter 161, of the General
    Laws of the Regular S;;;l;;s;f the Thlrty-
    eighth Legislature.           providing
    that the authorization of refunds on sand,
    -2817-
    .      .
    Hon. J. R. Singleton, page 4    (M-591)
    gravel and shell shall be extended
    to Include refunds to the State High-
    way Commlssion of money paid the
    State through the Game, Fish and
    yster Commission for sand, gravel and
    shell used by the State Highway C -
    mission on public roads upon appl?!a-
    tion for such refunds in the manner
    rescribed for titles and Counties.
    rovlded further that not less than
    seventy-five per cent of the proceed@
    derived therefrom, after refunds above
    referred to have been cared for, shall
    go for the establishment and mainten-
    ance of fish hatcheries; and the sand,
    gravel, and shell fund is hereby appro-
    priated for the purpose of carrying out
    the provisions of this Act. Said
    hatcheries to be established from time
    to time in the State of Texas by the
    Fish, Game and Oyster Commission, when
    in their judgment a suitable location
    is secured and arrangements therefor
    have been completed. (Emphasis added.)
    Article 4054, Vernon's Civil Statutes, allows cities
    and counties to receive a permit for removal of these materials
    without charge. In Attorney General Opinion No. WW-759 (1959),
    it was held that the provisions of 4053d, providing for mone-
    tary refund of such moneys paid to the Parks and Wildlife Com-
    miesion by the State Highway Commission, could be legally re-
    funded; consequently, this necessarily meant that the pay-
    ment for the materials had to be made In the first Instance.
    The language In Article 4053 also states that "any-
    one" desiring to purchase any of the marl and sand of com-
    mercial value shall first make written application therefor
    to the Parks and Wildlife Commission. This statute, being
    enacted for the public good, is susceptible to a construction
    that state entities are bound thereby although not expresely
    named. 49 Am. Jur. 236, States, etc., Sec. 14. The brned
    language of the above statute, Its requirement that cities
    -2818-
    Hon. J. R. Singleton, page 5   (M-591)
    and counties and their political subdivisions obtain a per-
    mit   "without charge", and the specific wording as to refunds
    for the State Highway Commission (Article 405361)conclusively
    evidence a legislative intent that all entities not exempted
    from payment or permit provisions must pay for sand and
    gravel. 53 Tex. Jur.2d 232-234, Statutes, Sec. 161. Con-
    struing these statutes in pari materla, we have thereby
    reached the conclusion that all governmental agencies not
    exempted from payment, as is the case with Trlnity River
    Authority, are subject to the permit and cost provisions of
    the statute and therefore must pay for the gravel, etc.,
    moved   from a stream bed. Under the provisions of Article
    4053d, the proceed.8from such sales of gravel and other de-
    signated materials to Trinity River Authority should be
    credited to the Special Game and Fish Fund No. 9 for use
    therefrom in accordance with the law.
    SUMMARY
    -------
    Trinity River Authority ie required to pay the
    Parks and Wildlife Commlsslon or Department for
    removal of marl and sand of commercial value
    and of any of the gravel, shell or mudshells
    from Texas streams in accordance with Articles
    4053 and 4053d, V.C.S. Such moneys should then
    be credited to the Special Game and Fish Fund
    No. 9 of the Parks and Wildlife Department for
    use in accordance with the law
    77
    Prepared by Roger Tyler
    Assistant Attorney Qeneral
    APPROVED:                           MEADE F, GRIFFIN
    OPINION COMMITTEE                   Staff Legal Assistant
    Kerns Taylor, Chairman              ALFRED WALKER
    W. E. Allen, Acting Co-Chairman     Executive Assistant
    Milton Richardson                   NOLA WHITE
    Ray McGregor                        First Assistant
    Ivan Williams
    Steven Hollahan
    -2819-
    

Document Info

Docket Number: M-591

Judges: Crawford Martin

Filed Date: 7/2/1970

Precedential Status: Precedential

Modified Date: 2/18/2017