Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
September 10, 1981
MARK WHITE
Attorney General
Honorable Charles D. Travis Opinion No. Mw-367
Executive Director
Texas Parks & Wildlife Department Re: Authority of Department
4200 Smith School Road of Parks & Wildlife to refund
Austin, Texas 78744 fees paid by Jacintoport for
dredged material taken from
Carpenter's Bayou
Dear Mr. Travis:
Your request for our opinion concerns a demand made by the
Jacintoport Corporation for a refund of the $25,000 fee it paid to the
Parks and Wildlife Department for the right to perform certain
maintenance dredging. We understand the facts are as follows:
In January, 1980, Jacintoport applied to the U.S. Army Corps of
Engineers for a permit to perform maintenance dredging of a barge
canal in the Carpenter's Bayou area. The Corps of Engineers declined
to issue a permit, however, because of objections raised by the Parks
and Wildlife Department. The department contended that because the
state owned the materials to be dredged, it was authorized to charge
Jacintoport a fee for their removal. Jacintoport paid a $25,000 fee
and obtained its permit.
Jacintoport has since demanded a refund of this fee. Among other
things, it claims that it performed no dredging on state-owned
property, and that the department therefore lacked authority to charge
this fee. At the department's request, the General Land Office
researched the question qf ownership of the canal, and advised the
commissioner that the state has never claimed Carpenter's Bayou. We
understand that you do not dispute this conclusion. Rather, your
question is whether, acting in reliance on this information, the
department may lawfully refund the $25,000 fee to Jacintoport.
Section 86.002 of the Parks and Wildlife Code provides, in
paragraph (a), that:
No person may disturb or take marl, sand, gravel,
shell or mudshell under the management and
protection of the commission...for any purpose
other than that necessary or incidental to
navigation or dredging under state or federal
p. 1227
Charles D. Travis - Page 2 (MW-367)
authority without first having acquired from the
commission a permit authorizing the activity.
Marl and sand of commercial value and gravel, shell, and mudshell are
under the commission's management and protection if located:
within the tidewater limits of the state, and on
islands within those limits, and within the
freshwater areas of the state not embraced by a
survey of private land, and on islands within
those areas.
Parks & Wild. Code 986.001. Section 86.012 of the code authorizes the
cormnissionto sell these substances, and section 86.016 provides that
the proceeds from their sale shall be deposited in the Special Came
and Fish Fund (renamed Game, Fish, and Water Safety Fund; see Acts
1979, 66th Leg., ch. 260 at 546).
Section 11.031 et seq. of the code describes various funds in the
state treasury, including the Game, Fish, and Water Safety Fund
referred to above. Parks & Wild. Code 9511.031-11.034. Section
11.040 provides as follows:
(a) Any funds deposited in the state treasury by
the department by mistake of fact or mistake of
law shall be refunded by warrant issued against
the fund in the state treasury into which the
money was deposited. Refunds necessary to make
the proper correction shall be appropriated by the
general appropriations act.
(b) The comptroller may require written evidence
from the director of the department to indicate
the reason for the mistake of fact or law before
issuing the warrant authorized in Subsection (a)
of this section.
(c) This section does not apply to any funds that
have been deposited under a written contract or to
any funds on deposit as of June 8, 1971, which are
the subject of litigation in any of the courts of
this state or the United States.
These provisions establish that if the land is not under the
commission's management and protection, the commission lacked
authority to charge Jacintoport a $25,000 fee for dredging materials
therein. Section 11.040 authorizes the refund of funds deposited in
the treasury under a "mistake of fact or mistake of law." In our
opinion, a fee for dredging materials which the commission charged
under an erroneous assumption that it had a duty to manage and protect
them would be a deposit in the treasury under a "mistake of fact."
-See Lusk V. Parmer, 114 S.W.2d 677 (Tex. Civ. App. - Amarillo 1938,
p. 1228
. .
Charles D. Travis - Page 3 (MW-367)
writ dism'd) (discussion of meaning of "mistake of fact"). Thus, the
remaining question is whether the General Land Office's determination
that the state has never claimed Carpenter's Bayou is sufficient
authority for the commission properly to conclude that the dredged
materials were not under its management and protection and, therefore,
that a "mistake of fact" occurred.
Sections 31.001 et seq. of the Natural Resources Code govern the
General Land Office. Section 31.011 provides that the General L.and
Office "shall register all land titles emanating from the state if not
prohibited by the constitution." See also Tex. Const. art. XIV, §I.
Section 31.051 provides that the duties of the commissioner of that
office consist, among other things, of executing and performing:
(2) ...a11 acts and other things relating to
public land of the state or rights of individuals
in public land which is required by law....
Ashby v. Ringstaff, 464 S.W.2d 891 (Tex. Civ. App. - Austin 1971,
writ ref'd n.r.e.), holds that the land commissioner has no power to
adjudicate between rival claimants whose titles to land have become
fixed. See also Atlantic Refining Co. v. Noel, 443 S.W.2d 35 (Tex.
1968) (commissioner has no power to divest or enlarge title to land by
ordering and accepting resurvey). In this instance, however, the
General Land Office is not attempting to resolve any dispute between
rival claimants to Carpenter's Bayou, nor is it attempting to divest
or enlarge any title to land. On the contrary, we understand that it
has merely concluded that its records indicate the state has never
claimed Carpenter's Bayou. Since all land titles "emanating from the
state" must be registered with the Land Office, we believe that office
certainly has authority to examine those titles, as well as other maps
and records in its files, and make an authoritative determination as
to whether the state has ever claimed certain property. See Caples v.
Cole, 102 S.W.Zd 173 (Tex. 1937) (commissioner's finding on issue of
fact conclusive unless clearly illegal, unreasonable, or arbitrary);
46 Tex. Jur. 2d Public Lands §§l-13. We further believe that the
Parks and Wildlife Commission, acting in reliance on this
determination, may properly conclude that a "mistake of fact" has
occurred within section 11.040, enabling it to refund the $25,000 fee
to Jacintoport. Funds for this purpose were appropriated by the
Sixty-Sixth Legislature. Acts 1979, 66th Leg., ch. 843, at 2698.
It is argued in an accompanyl~ngbrief that the commission had no
authority to charge the fee because (1) the material dredged was
analyzed by a geotechnical consulting firm as clay and silt, rather
than marl, sand, gravel, shell, or mudshell; and (2) section 86.002 of
the Parks and Wildlife Code does not require a permit to be obtained
unless the enumerated substances are taken for a purpose "other than
that necessary or incidental to navigation or dredging under state or
federal authority." -See Amdel Pipeline, Inc. v. State, 541 S.W.2d 821
(Tex. 1976). We need not address these issues, however, because of
our conclusion regarding the question you raise.
p. 1229
Charles I).Travis - Page 4 (MW-367)
SUMMARY
Acting in reliance on the General Land
Office's determination that the state of Texas
never claimed Carpenter's Bayou as state property,
the Parks end Wildlife Department may lawfully
refund the $25,000 fee it charged the Jacintoport
Corporation for dredging materials therein.
MARK WHITE
Attorney Genera.1of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1230