Untitled Texas Attorney General Opinion ( 1958 )

THEATI-ORNEY GENERAL
OFTEXAS
AUSTIN,I.TEXAR
January 31, 1958
Mr. W. J. Cutbirth, Jr., Opinion No. WW-357.
Game and Fish Commission,
Austin 14, Texas Re: Authority of the Game and Fish
Commission to construct a small
field laboratory on Federally-
owned property licensed to the
Dear Mr. Cutbirth: Game and Fish Commission.
You have requested an opinion from this'office concern-
ing the legality of the proposed construction by the Texas Game
and Fish Commission of a small laboratory building on a tract of
land owned by the Federal Government and held by the Game and
Fish Commission under a twenty-year license at will.
According to the facts, the Game and Fish Commission
obtained possession of this land under a license from the Federal
Government on October 11, 1946. At the time the Commission ac-
quired possessiionof this property, there was located on the a',
tract of land a small house which was used by the Commission
for a laboratory in connection with marine biological research
on Lake Texhoma. Flood waters during the Spring of 1957 damaged
this building, and the Game and Fish Commission at present plans
to replace this orlglnal building with another small building to
be used for the same purpose.
The license granted to the Game and Fish Commission Is
for a period of twenty (20) years from October 11, 1946. The
license Is revocable at will by the Secretary of War. The prop-
erty Is to be used by the Game and Fish Commission as an official
headquarters for Game Wardens and other official activities.
The tract of land is adequately described In the license agree-
ment. This license also provides that no liability shall accrue
to the United States government because of the use of such facil-
ities by the Commission, and that the use of such facilities is
to be under the supervision and approval of the District Engineer.
The license also grants authority to the Game and Fish Commission
to construct such buildings and other structures as It may deem
necessary. Further provisions are contained in the license
which exempt the United States from any liability for the actlvi-
ties performed on the land by the Game and Fish Commission, and
a right of ingress and egress is reserved to the United States
Mr. w. J. Cutbirth, Jr., Pa& 2 (WW-3%').
for the purpose of removing timber and such other purposes as
the United States may deem necessary. We also note that this
land la subject to being flooded by the United States Govern-
ment without llablllty. A final provision of the license pro-
vides that upon the expiration of the term of the license, or
upon Its relinquishment by the Game and Fish Commission "all
property of the licensee" may be removed by the Game and Fish
Commission, and in the event the license is cancelled by the
Secretary of War, said property must be removed within the
time prescribed by the Secretary in such act of revocation.
If the property la not removed within such period, it shall
become the property of the United States Government, or in the
alternative,,the Secretary of War may cause the property to be
removed at the expense of the Game and Fish Commission.
This office has previously held, in Att,orneyGeneral's
Opinion No. O-6935 (1945), that the Game and Fish Commlssion has
authority to erect buildings to house laboratory facilities
under the provisions of Article 4030, Vernon's Annotated Civil
Statutes; This statute provides for the making of scientific
investigations and surveys of the marine life of the State for
the better protection and conservation of same. We believe
that the power to construct laboratory buildings is a necessary
power Incidental to the right to make scientific investigations
and surveys as provided In Article 4030, supra, and is a reason-
able Dower to be implied from such statutory grant. We annrove
this holding and cite in And&son v. Brandon,
47 S.W.2d 261, 121 Tex. Brown v. Clark, 116 S
360, 102 Tex. 323, 24 1909).
also holds that the Game and Fish C&nmlssion would have author-.
ity to purchase land upon which to construct such laboratory
buildings, and cites in support of such holding Herring v.
Houston National Bank, 114 Tex. 394, 269 S.W. 1031 (1925).
We note that the appropriation to the Game and Fish
Commission under House Bill 133, Acts 55th Legislature, Regular
Sesslon,,Chapter 385, page 870 and page 987, provides for an
appropriation out of the Special Game and Fish Fund "for neces-
sary equipment and other canlta1 a&ay'! for the year ending
August 31, 1958, and a similar amount for the year ending August
31, 1959. The Special Game and Fish Fund referred to in the
Appropriation Bill Is the successor to the "Fish and Oyster
Fund" created by Article 4030 for the purpose of making sclen-
tiflc investigations and surveys. Art. 4386a, V.C.S. It la
our opinion that the provision for capital outlay and necessary
equipment would include and encompass the construction and
equipping of a laboratory building of the type described by
you in your opinion request.
Mr. W. J. Cutbirth, Jr., Page 3 (W'W357).
Having concluded that the Game and Fish Commlsslon
has authority to construct the laboratory buildings here In
question, we turn now to the question of whether the Commls-
slon may do so under the terms of'the license granted by the
Federal Government, with a view to the problem of whether a
State agency may construct buildings on property which it does
not own in fee.~ As we have stated, the license granted by the
Federal Government Includes the rlght,,as far as the Federal
Government 1s concerned, to construct bulldlngs and other
structures on the land involved, However, the license Is
revocable at will and is for a term of twenty years, renewable
at the option of the parties.
We have been unable to find any authority, either In
the State of Te as or In the other jurlsdictlons of the United
States, concernr?
ng the power of a State agency to build upon
land over which It has a right of possession or ownership of
less than fee simple absolute. However, In Opinion No. V-1170,
this office oonsidered the right of the Hoard for Texas State
Hospitals and Special Schools to place permanent Improvements
upon land held by the State subject to a mineral reservation
and conditions subsequent. Under the terms of the deed involved
In this opinion, the Federal Government sold to the S,tateof
Texas a tract of land known as Camp Fannin, wherein the Federal
Government retained all mineral rights under the property in-.>
volved. There were further llmltatlons to the effect that the
State would not resell or lease the property and would use the
property for a tuberculosis hospital for a period of twenty-five
years. There was a further provision that the Federal Govern-
ment, during national emergencies, was entitled to full unres-
tricted use, control and possession of the property, including
all additions and Improvements made by the State of Texas. In
this opinion It was held that the question of whether a bulld-
ing.was to be placed upon this particular land under the clr-
cumstances was to be determined in the exercise of sound dis-
cretion by the Hoard for Texas State Hospitals and Special
Schools.
Acoordingly, it is our opinion that the determination
of whether a laboratory building of the type described in your
request is to be built on the property licensed to the State of
Texas by the Federal Government 1s a matter to be determined by
the Game and Fish Commlsslon In the exercise of sound discretion.
We would point out that there is some question as to
whether a building constructed on the property belonging to the
Federal Government could be removed under the provisions of the
license. There Is a distinct possibility that such a building
would become attached to the land as a fixture and would revert
MI-.w. J. Cutbirth, Jr., Page 4 (WW-357).
to the Federal Gavernment as a part of the land. As such, it
might not constitute "property" under the license, and there
could arise some question as to the right of the Game and Fish
Commission to remove It from the land upon termination of the
license.
Because of the terms of this agreement, and because
of the nature of the estate held by the Commlsslon, we would
suggest thatno structure be bull,ton this land which was not
fully movable as constructed, that is, on skids or other means.
We would point out that this land Is subject to flooding by the
Federal Government, and the State will have no right to collect
from the Federal Government for any damages occasioned by such
flooding. We would also point out that all the other privileges
reserve5 to the United States Government could be exercised with-
out recourse by the Commission Insofar as any damages occasioned
to the property of the State of Texas would be concerned.
SUMMARY
The Game and Fish Commission has
authority under Article 4030, V.C.S.,
to construct a building to house
laboratory faclllties for the purpose
of making scientific Investigations
and surveys of marine life. The
appropriation to the Game and Fish
Commission for the biennium ending
August 31, 1959, authorizes expendi-
ture::offunds for such purposes.
Whether or not the Game and Fish
Commission is to construct a small
laboratory building on a tract of
land licensed to the Game and Fish
.c
Mr. W. J. Cutblrth, Jr., Page 5 (WW-357).
Commission by the Federal Government
1s a question to be determined ln
exercise of sound discretion by the
Game and Fish Commission.
Yours very truly,
WILL WILSON
Attorney General of Texas
John H. Mlnton, Jr.;
Assistant
JHM:jl:pf
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. Mark McLaughlin
Jack Goodman
Ralph R. Rash
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert.