Case Information

*1 T. Garrison Opinion No. H- 181 Executive Director Re:

John H. Reagan Building Can the Texas Parks and Austin, Texas Wildlife Department

fund a project the con- struction of artificial reefs located in the Gulf of Mexico approximately thirty miles Dear Mr. Garrison: the Texas coastline?

Your letter requesting our opinion states that the Parks Department is considering the construction of artificial in the Gulf of Mexico at a distance of approximately thirty miles the coastline.

The project would entail the expenditure of State funds. You ask whether the Department may “legally fund a project and maintenance” of such reefs.

In June of 1967 this office issued Opinion M-87 dealing with the boundary of Texas and the extent to which Texas could extend its regulation of fishing. The conclusion reached was:

“The gulfward boundary of the State of Texas is a Line three marine distant and in such waters Texas is empowered to control Texas cannot unilaterally extend regulate fishing. gulfward boundary by legislation. ” As to whether Texas could regulate fishing the three gulfward boundary the opinion cited Skiriotes v. Florida, 313 U.S. 69 Nothing has occurred since that (1941) but declined to answer the question. time to alter the effect of that opinion as it expressed the extent to In United States v. which the State of Texas has regulatory

n -. page 2 (H-101) Louisiana, 394 U.S. 1 (1969), the “coastline” from which jurisdiction extends three leagues was defined.

The Submerged Lands (43 U.S. C. 5 1332) reserves to the United States jurisdiction, control and the power of disposition over the subsoil and seabed of the outer continental shelf. This is so even though § 1333 extends state law to this area for certain purposes. Guess v. Read, F. 2d 622 (5th cir., 1961). it is our opinion that, as it is proposed to construct

or maintain artificial reefs more than three marine

of Texas but within the outer limit of the continental the reefs would be in waters over which the United States Government has asserted You have not asked us to, and we have not reviewed the appro- priate federal statutes, regulations, and decisions which might bar or limit such construction in the absence of agreement by the U. S. Therefore, we express no opinion on the right of Texas to build such structures in the ab- sence of agreement with the U.S.

Assuming no federal obstacle to the construction of such reefs, that their construction would aid in the propagation, distri- bution, management or protection of fish in Texas waters, we think $6 of Article 4032b-1, V. T. C. S., authorizes of Special Game and Fish Fund moneys (Article 438613, V. T. C.S.) for such a project. That section reads in part:

“Sec. 6. All moneys received . . . shall be remitted to the Game and Fish Commission [now Parks Commission] . , . and be deposited . . . to the credit of the Special Game and Fish Fund, and sha,ll be used the propagation, distribution, management and protection of fish in all salt waters and all fresh waters within this State . . . . ” (emphasis added)

The expenditure of State money the State in order to protect proper interests inside of it is not prohibited. *3 page 3 (H-181)

Opinion M-1053 (1972). But Special Game and Fish Fund money, like other State money, to the requirements of Article 8 5 6 of the Texas Constitution that:

“No money shall be drawn the Treasury but in pursuance of specific appropriations made by law. . . .‘I

In Attorney General Opinion V-4,12 (1947) it was said, with reference to Article 8 6 6:

“This constitutional provisions is not limited to funds paid into the General Fund, and applies to funds dedicated to a special purpose. Opinion O-700, dated May 5, 1939. Such constitutional provision controls all appro- priations out of the State Treasury and money not appropriated by the Legislature cannot be withdrawn the Treasury. . . . ” We are unable to find any appropriation of money the Special Fish & Game Fund (or from any other source) for such a use in House Bill 139, 63rd Leg., the Appropriation for the 1974 and 1975 fiscal years or in Senate Bill 1, 62nd Leg., 3rd Called Session, the 1973 act.

In the absence of such an appropriation, the funds cannot be used for such a purpose. General Opinions M-1084 (1972), M-574 (1970). in answer to your question as to whether your Department

may fund and maintain the off-shore reefs, we would advise that we do not pass on the question concerning a possible conflict with Federal but that, in any event, a Legislative must follow a favorable resolution of that facet of the problem before such an artificial reef may be constructed.

SUMMARY The submerged lands of the continental of the three marine extent of Texas *4 page 4 (H-101) land, to the jurisdiction of the Federal Government and, subject to there being no conflict with Federal the State of Texas may fund and erect artificial in that area with funds the Special Game and Fish Fund, provided the Legislature enacts an appropriation that purpose. Very truly yours, L. HILL of Texas DAVID M. KENDALL, Chairman

Opinion Committee

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