Untitled Texas Attorney General Opinion

THE A’ITORNEY GENERAL
OF’ TE%AS
Aun-rmr. TXCXAS 787ll
March 14, 1974
The Honorable Clayton T. Garrison Opinion No. H- 257
Executive Director
Texas Parks & Wildlife Dept. Re: Whether Parks and Wild-
John H. Reagan Bldg. life may spend state funds,
Austin, Texas 78701 matched by federal funds,
for construction of facilities
0x1 land owned in whole or in
part by federal government.
Dear Mr. Garrison:
You have requested an opinion on whether the Parks and Wildlife
Department (the Department) may contract with the federal government
to share the cost of constructing recreation facilities for state parks if
title to the facilities will be retained in whole or in part by the federal
government.
The Reservoir Public Parks and Recreational Facilities Act, 16
U.S. C. A. $460d, authorizes the Corps of Engineers to construct,
maintain, and operate public park and recreation facilities on the land
adjacent to reservoir projects under its control. In addition the Act
authorizes the, Corps to lease the adjoining lands to state and local
agencies for park purposes. Pursuant to this authority the Corps has
leased four separate sites to the Parks and Wildlife Department: the
Department has established and is operating a state park at each one
of these sites. The leases ordinarily run for a period of fifty years
and are subj,ect to renewal.
Recently the Corps has advised the Department that federal funds
are available to match state expenditures for the construction of
recreation facilities at each of the park sites the Department leases.
The Corps has proposed a contract under the terms of which the cost
of construction would be shared equally and each party would retain
The Honorable Clayton T. Garrison, page 2 (H-257)
an undivided interest in completed facilities proportionate to the
costs it had paid. Immediately upon completion of a facility the
federal government’s undivided interest in it would be leased to the
Department for the lifetime of the facility or for the remaining term
of the lease on the underlying real property. In return the Department
would be obligated to maintain and operate the facility during the time
it is occupied by the State. Alternatively the Corps proposes an
agreement whereby construction costs are again shared equally but
the federal government retains title to the completed facility in its
entirety and leases it to the Department to be operated and maintained
during its lifetime or for the remaining term of the lease on the
underlying real property, which ever is the shorter term, a period
of approximately fifty years. The Department asks whether it has the
authority to enter into either of the agreemen& proposed by the Corps.
When established, the Department was given all the powers and
duties that previously had been vested in the Texas State Parks Board.
Art. 978f-3a, Vernon’s Texas Penal Auxiliary Laws. One of the
State Parks Board’s most important duties was to acquire state park
sites by purchase, gift, or otherwise and “to improve, beautify, and
equip, and to contract with any person, firm, or corporation for the
improvement, beautification or equipment of the State parks of this
State to such an extent as to said Board might be deemed advisable. ‘I
Art. 6070b, V. T. C. S. In 1971 the Legislature created a new special
fund, the Texas Parks Fund, to be used by the Department for the
acquisition, planning, and development of state parks. § 3, Art. 7. 06,
Taxation-General, V. T. C. S.
Furthermore, the Appropriations Act for fiscal years 1974 and 1975
contains a ‘substantial appropriation of funds to be used by the Department
for the planning, acquisition, and development of state parks. (Acts
1973, 63rdLeg.. ch. 659 at 2007). Item 23 provides:
“There is hereby appropriated from the Texas Park Fund.. .
for the purpose of planning, acquisition and development of State
parks and State historic sites. Such expenditures include, but
are not limited to, salaries and wages, professional services
and fees, travel, capital outlay, including land and improvements
p* 1199
The Honorable Clayton T. Garrison, page 3 (H-257)
thereto, and all o.ther necessary costs and expenses whether
by contract or direct payments. “(emphasis added)
A special rider found at p. 2012, chapter 659, s, provides as
follows:
“Any federal grants, allocations or aids for
. improving, developing and planning public
parks. . may be accepted and disbursed through
the State Treasury by said Department for the
purposes for which they were granted and are
hereby appropriated for such purposes. . . .”
The effact of these statutes is to equip the Department with broad
authority, and the necessary funds, to acquire state parks and to
improve and develop them. They also permit the Department to contract
with other persons or agencies for the achievement of these objectives
and to accept and utilize any federal funds offered for these purposes.
An agreement with the federal government to share the costs of constructing
recreation facilities in state parks already established by the Department
will clearly result in an improvement of the parks and is apparently the
kind of cooperative venture the Legislature envisioned the Department
would undertake under the authority of Art. 6070b. Therefore it is our
opinion that the Department has both the statutory authority and the
necessary appropriations to enter into the contracts proposed by the
Corps of Engineers.
But even though statutorily authorized, an agreement made by the
Department is unlawful if it violates the constitutional prohibition
contained in Article 3, $ 51, of the Texas Constitution which states:
“The Legislature shall have no power to make
any grant or authorize the making of any grant of
public moneys to any individual, association of
individuals, municipal or other corporations what-
soever. ”
p. 1200
The Honorable Clayton Garrison, page 4 (H-257)
Because of this provision, it might be argued that the contracts
require the Department to expend state funds for the benefit of an
individual, in this case the federal government.
Texas courts have consistently held tha.t the constitutional prohibition
against gratuitous grants is not violated so long as the expenditure under
scrutiny is made for a valid public purpose. Bullock v. Calvert, 480
S.W.2d 367 (Tex. 1972). If the primary purpose of the expenditure
is a proper public one, it matters not that an incidental benefit is derived
by an individual or a particular group. State v. City of Austin 331 S.W.
2d 737 (Tex. 1960) and Barrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960).
When an expenditure of state funds is required by a contractual arrange-
ment to which the state or one of its agencies is a party, the constitutional
stricture against gratuitous grants is satisfied if the state receives some-
thing of value in return, a “quid pro quo”. Byrd v. City of Dallas, 6 S.W.
2d 738 (Tex. 1928); see generally Attorney General Opinion H-109 (1973)
and cases cited therein.
The agreements suggested,by the Corps of Engineers unquestimably
have a valid public purpose, e. g. enhancing the recreational value of
state parks by constructing additional recreational facilities in them.
Although under their terms the federal government may retain title to
all facilities constructed, they will be leased to the Department for their
entire useful life, or at least for as long as the lease of the underlying
real property continues. The Department will retain control over the
facilities and, as a result, will be in a position to insure that they are
used for their intended public purpose.
Therefore since the contracts in question have a valid public purpose
and do not’require the Department to expend state funds without receiving
anything in return, they do not violate the constitutional prohibition
against the gratuitous grant of public money. The.Department may
lawfully accept either of the contractual a.rrangements proposed by the
Corp of Engineers.
p0 1201
The Honorable Clayton Garrison, page 5 (H-257)
SUMMARY
------e-w
The Parks atid Wildlife Department may contract
with the federal government to share the cost of constructing
recreation fakilities for state parks leased from the
federal government even though title to the facilities will
be retained by the federal government.
Yours very truly,
JOHN L. HILL
Attorney General of Texas
Opinion Committee
p* 1202