Untitled Texas Attorney General Opinion ( 1969 )

THEATTORNEY GENERAL
~ OFTEXA~
April 3, 1969
Honorable J. R. ‘Singleton Opinion No. M-368
Btietiutive Mi%ctor’
Texti& PBrki9‘and Wildlife Re: Authority df’ Parks .aaid
‘IXptirtm&t Wildlife Departniint to
Austin, Texas 78701 price and iall remov-
abIe sedlmetitary - ‘.
matdriale’ from wat&s .
Dear Mr. Singleton2 of the State of Texas.
Your request for our’oplnlon, dated March 31, 1969,
sets out the following question;
“Does the Parks and Wildlife Commis-
sldn have the, authority-undei
Article 40536, R,CiS,;, to .estab-
lish a eelllng price, in the sense
of the teti commercial value~as
used In Article 4051, RiC.SI, on
the marl9 sand or other sedimen-
tary,materlals to be removed from
.C?alveston Bay and used as fill
material?”
The Parks and Wildlife Department has received an .
appIioatfon from a dredging company for a permit to re-
move soil deposits from the bottom of Qalveston Bay.
This material will be placed on shore and used as fill, to
build up privately-owned lands on Galveston Island. You
have,another application for a permit to remove soil de-
posits from the bottom of Galveston Bay to be placed on
shore in a stockpile for sale as land fill to be used
6n’dr‘adjadent td Galveston Island; You have determined
thbt ttilti laridf!S.ll~mat``ial dotisitits df marl,-satid Bnd ahell;
that ft is In great demand in thfs~areag and that its uiie
ai‘labd’fil``materlall~ increa&& the value bf the land:
YOU~h&ii@‘dohtilUdid that this material .do&s have~‘a &tier-
cizil ‘vaIti&&s that term is used in Article 4051, Vernon’s
Civil Statutes 0
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Hon. J. R. Singleton, page 2 (M-368)
Article 4051 provides;
“All the Islands, reefs, bars9 lakes,
and bays within the tldewater’l%mits
from the most interior point ~seaward’
do-extensive with-fhe~ju~iidlbfion of
this State, and sudh.of thefresh’
water’ islands; lakesp rlYers,‘~c~eeks
and bayous within the interior ‘of
this State as may’not be embraced’in
any survey of private land, together~,
with all the marl and sand of commer-
cial value, and a21 the shells, mud-
h 11 or gtiavel of’whatsoever klnd~
t”h% may be’ln ‘or upon anyidIand,
reef ore bar, and ln:or’ upon the
bottoms of any lake, bay, shallow
water, rivers, creeks and bayous and-
fish hatcheries and ovstdr beds with-
in the jurisdiction and territory
herein defined, are included within
the territory included herein be
disturbed except as hereln provided.
Acts 2nd C.S. 1919 p. 216.”
(Eh%phasls added. )
In Attorney General Opinion M-84 (June g,, 1967), we
advised you that The Parka and Wildlife Department has the
authority and duty-to manage9 control and protect all the
marl and sand of commercial value. You have Ptidfcated fn
your request that the soil deposits proposed to be removed
and used as shore land fill are classified as marl and
sand. The facts you set out do not indicate use of the
materials under the provisions of Articles 4054, 405&a or.
4054b, Vernon’s Civil Statutes. The a plfcation should,’
therefore, be processed under Article e 053, Vernon’s Civil
Statutes 9
Hon. 2. R. SIngleton, page 3 (m-368)
Article 4053d, Vernon’s Civil Statutes, provides, in
part:
“The”Gtie, Fish and Oyster Commis-
~gi.on (noM.the Parks and Wildlife
Department. Article 978f-3a, ‘.
Vernotils’PenaI CMe.j’bs+ atid’with
Article 4052, Vernon’s Civil Statutes, bg virtue of
Article ‘978f-3a, Vernon’s Penal Code, vests in the Parksand
Wildlife Department broad and full power, and discretion;
over all matters pertaining to the sale of these materials.
Within the llmlts of your question, and the
submitted facts we, therefore, answer your question in the
affirmative.
SUMMARY
The Parks and Wlldlffe Department
has the authority, with consent of
the Governors to establish’s sell-
ing price, In the sense of the term
“commercial value” as used in Article
40511 Vernon’s Civil Statutes, on
marl, sand or other sedimentary
materials to be removed from Galves-
ton Bay and used as fill. This
authorft is authorized pursuant to
Article t 053d, Vernon’s Civil Statutes.
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Hon. J, R. Singleton, Page 4 (M-368)
Prgptire&By
Vinhe'"Ttiplo?
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns~Taylbr;Chalman
George Kelton, Vice-Chairman
Bill Allen
Janieki S. Swearingen
Sally Phillips
Milton Richardson
W; V. GEPPERT
Staff Legal Assistant
‘,
.,
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