OFFlCE OF THE ATTORNEY CENERM STATE OF TEXAS
JOHN CORNYN
July 10,2000
The Honorable Patricia Gray Opinion No. JC-0252
Chair, Committee on Public Health
Texas House of Representatives Re: Whether a municipal park board may
P.O. Box 2910 authorize a hotel under its management and
Austin, Texas 7X768-2910 control pursuant to section 306.032 of the Local
Government Code to offer memberships in the
hotel’s health and fitness center to non-hotel
guests, including local residents (RQ-0194-K)
Dear Representative Gray:
You ask whether a municipal park board may authorize a hotel under its management and
control pursuant to section 306.032 of the Local Government Code to offer memberships in the
hotel’s health and fitness center to non-hotel guests, including local residents. While section
306.032 authorizes a municipal park board to manage and control only hotels that serve the purpose
of attracting visitors and tourists to the municipality, its does not expressly require a municipal park
board to deny local residents the use of such a hotel’s facilities. Moreover, chapter 306 of the Local
Government Code generally contemplates that facilities under the management and control of a
municipal park board will be open to the genera1 public, without regard to residency, and gives
municipal park boards broad rulemaking authority to regulate use of facilities under their control.
Accordingly, we conclude that a municipal park board may adopt rules authorizing a hotel under its
management and control to offer memberships in the hotel’s health and fitness center to non-hotel
guests, provided that this use of the hotel’s facilities does not interfere with the hotel or fitness
center’s statutorily mandated purpose.
You provide the following background information: In 1983, the City of Galveston (the
“City”) leased property to the Moody Foundation, which developed the Moody Gardens Complex,
including an aquarium, tropical biome, and convention center. See Letter from Honorable Patricia
Gray, Texas State Representative, to Honorable John Comyn, Attorney Genera1 of Texas, at 1 (Feb.
17,200O) (on file with Opinion Committee). Later, the lease was assigned from the City to the Park
Board of Trustees of the City of Galveston (the “Park Board”), see id., as is authorized by section
306.032 of the Local Government Code. At the same time, Moody Gardens, Inc. (“Moody
Gardens”) entered into an agreement with the Park Board to operate and manage the Moody Gardens
Complex. See id. Thereafter, the Moody Gardens Hotel (the “Hotel”) was constructed at the Moody
Gardens Complex. See id.
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In October 1998, the Park Board adopted rules governing the operation of the Moody
Gardens Complex, including the Hotel. See id. Those rules provide that Moody Gardens may not
offer or sell health club memberships to non-hotel guests. See id. at 2. The Park Board and the City
would like to know if the Park Board may now amend those rules to authorize Moody Gardens to
sell memberships in the Hotel’s health and fitness center to non-hotel guests, including residents of
Galveston. See id.
In addition, we note that you inform us that the City entered into a lease agreement with the
Galveston Health and Racquet Club (the “Club”) whereby the City agreed to exert its best efforts
to avoid leasing to or operating any business competing with the Club. See id. at 1. Although it
appears that your inquiry stems in part from the Club’s opposition to the Hotel offering health and
fitness center memberships to non-hotel guests, we have been asked only about the Park Board’s
statutory authority under chapter 306 of the Local Government Code. We have not been asked about
the legal effect of the agreement, if any, and we do not address it.
Chapter 306 of the Local Government Code authorizes a home-rule municipality with a
population of more than 40,000 to create a park board of trustees for the purpose of acquiring,
improving, equipping, maintaining, financing, or operating parks. See TEX.LOC. GOV’TCODE ANN.
§§ 306.001, ,011 (Vernon 1999). Municipal park boards are authorized to purchase and improve
parks and related facilities, see id. 5 306.031, to advertise the municipality’s “recreational
advantages” to attract “visitors, tourists, residents, and other users, ” id. 5 306.037, and to enter into
contracts, leases and other agreements, see id. § 306.038. Furthermore, municipal park boards have
authority to adopt rules relating to the use of parks and facilities under their management and
control:
The board may adopt and enforce reasonable rules, including
rules establishing ameans of enforcing other rules, relating to the use
ofparks and facilities under the management and control ofthe board,
including use by the public or by lessees, concessionaires, or other
persons carrying on a business activity within the area of the parks
and facilities.
Id. 5 306.039.
We understand that the Park Board derives its authority to manage and control the Hotel from
section 306.032 of the Local Government Code, a provision of chapter 306 that applies only to a
home-rule municipality that has a population of less than 80,000 and borders on the GulfofMexico.
See id. 5 306.032(a); It provides in pertinent part as follows:
(b) In addition to other powers under this chapter, the
municipality or the board of the municipality may acquire by any
method, including by gift, devise, lease, or purchase or may improve
land or buildings, or may construct or enlarge buildings, to be used
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for public parks, playgrounds, or other facilities that serve the
purpose ofattracting visitors and tourists to the municipality. The
municipality or board may lease the facilities, as lessor or lessee, on
terms the municipality or board considers appropriate. The land may
be located inside or outside the boundaries of the municipality, but
must be located inside the limits of the county in which the
municipality is located.
(c) In a municipality subject to this section, the facilities
placed under the management and control of the board may include:
(2) civic centers, civic center buildings, auditoriums,
exhibition halls, or coliseums;
(3) marinas or cruise ship terminal facilities;
(4) hotels or motels;
(5) parking or storage facilities for motor vehicles or
other conveyances;
(6) golf courses;
(7) trolley or trolley transportation systems; and
(8) other facilities considered advisable in connection
with the preceding facilities that serve the purpose of
attracting visitors and tourists to the municipality.
Id. 5 306.032(b), (c) (emphasis added).
You ask, in essence, whether a municipal park board may authorize a hotel under its
management and control pursuant to this statute to sell memberships in the hotel’s health and fitness
center to non-hotel guests, including local residents. We conclude that a municipal park board may
do so, for the following reasons.
As a threshold matter, we note that section 306.032 clearly authorizes a municipal park board
to manage and control a hotel that includes a health and fitness center. On its face, the statute
authorizes a municipal park board to manage and control various types of facilities “that serve the
purpose of attracting visitors and tourists to the municipality.” Id. § 306.032(b). Subsection(c), in
subparts (1) through (7), provides specific examples of the types of facilities that may be placed
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under the management and control of the municipal park board, such as parks and civic centers, and
it expressly includes hotels in subsection (c)(4). See id. 5 306.032(c)(4). Thus, section 306.032
expressly authorizes a municipal park board to manage and control a hotel that serves the purpose
of attracting visitors and tourists to the municipality. Section 306.032 does not expressly provide
that such a hotel may include facilities normally associated with resort hotels, such as swimming
pools or a health and fitness center, but we believe that the authority to offer these kinds of services
and amenities is implicit in the authority to manage and control a hotel that serves the purpose of
attracting visitors and tourists to the municipality. Moreover, in addition to listing specific examples
ofpermissible facilities, subsection(c). subpart (8) generally authorizes the management and control
by a municipal park board of “other facilities considered advisable in connection with the
preceding facilities that serve the purpose ofattracting visitors and tourists to the municipality.” Id.
5 306.032(c)(S).
Section 306.032 does not address whether the general public, including local residents, may
use facilities and “connected facilities” or whether such use must be limited to visitors and tourists,
but based on our review of chapter 306 as a whole we conclude that section 306.032 may not be
construed to require this limitation. First, the general mission of municipal park boards under
chapter 306 is to provide parks to the general public, without regard to residency. See, e.g., id.
$8 306.011 (authorizing creation of board “for purpose of acquiring, improving, or operating
parks”), ,031 (authority to manage parks, including historical sites of “statewide historical
significance”). Indeed, as we have noted, section 306.037 authorizes a park board to advertise the
municipality’s recreational advantages “for the purpose of attracting visitors, tourists, residents, and
other users of the public facilities operated by the board.” Id. 5 306.037 (emphasis added). Second,
section 306.039 gives a municipal park board broad rulemaking authority to adopt rules relating to
use of parks and facilities under its management and control “including use by the public or by
lessees, concessionaires, or other persons carrying on a business activity within the area of the parks
and facilities.” Id. 5 306.039. We believe that this broad rulemaking authority grants a municipal
park board the discretion to authorize a section 306.032 facility to engage in activities that are not
inconsistent with the purpose of attracting visitors and tourists to the municipality and that are not
specifically prohibited by chapter 306 or other law.
It has been suggested that subsection (c)(8) o f section 306.032 expressly precludes a
municipal park board from managing and controlling a facility connected with a hotel that offers
memberships to non-hotel guests, including local residents. Again, subsection(c) contains a list of
specific facilities that may be placed under the management and control of a municipal park board.
That list ends with subsection (c)(8), which generally provides for “other facilities considered
advisable in connection with the preceding facilities that serve the purpose of attracting visitors and
tourists to the municipality.” Id. 5 306,032(c)(8). Briefs submitted on behalf of the Galveston
Health and Racquet Club suggest that a connected facility authorized by subsection (c)(8) is limited
to serving tourists and visitors. For example, one brief states that in order for a facility to be
authorized by subsection (c)(8) “it must relate to the operation of an enumerated facility [i.e., a
facility listed in subparts (1) through (7)] and have as its purpose the attraction of visitors and
tourists to the Ciq. A health club facility selling memberships for its use to local residents of the
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City cannot in any way be deemed to have the purpose of attracting visitors and tourists to the City.”
Letter from J. Michael Fieglein, Attorney at Law, to Honorable John Comyn, Attorney General of
Texas, at 4 (Mar. 29, 2000) (on tile with Opinion Committee) [hereinafter “Fieglein Brief’]
(emphasis in the original). That brief concludes that “since the sale of memberships to non-Hotel
guests at the Hotel fitness center does not serve the purpose prescribed by the enabling legislation,
it is not an authorized facility and it is outside the scope of authority granted by the statute.” Id. at
6.
As noted above, we agree that section 306.032(c)(8) limits a municipal park board to
managing and controlling connected facilities that serve the purpose ofattracting visitors and tourists
to the municipality. Indeed, we believe it is clear from subsection (b) of section 306.032 that this
limitation applies not only to connected facilities but also to all the facilities specifically listed in
subsections (c)(l) through (7). See TEX. Lot. GOV’T CODE ANN. 5 306.032(b) (Vernon 1999)
(authorizing municipal park board to acquire, construct, or enlarge park and playground buildings
“or other facilities that serve the purpose of attracting visitors and tourists to the municipality”),
(c)(1)-(7) (listing permissible facilities). Clearly, a municipal park board is not authorized to manage
and control a facility or a connected facility under section 306.032 that does not serve the purpose
of attracting visitors and tourists.
We do not agree, however, that the language limiting the purpose of section 306.032 facilities
is intended to prohibit the use of these facilities by local residents. First, as we have noted, the
legislature vested the authority to manage and control section 306.032 facilities in a municipal park
board, an entity that is not limited to providing facilities to any particular segment ofthe public. See,
e.g., id. 5 306.037 (authorizing municipal park board to advertise the municipality’s “recreational
advantages” to attract “visitors, tourists, residents, and other users”). Had the legislature intended
use of section 306.032 facilities to be wholly limited to visitors and tourists, we believe that the
legislature would have either made this limitation express or vested the authority to control and
manage these facilities in an entity other than a municipal park board.
Furthermore, the Club’s construction of section 306.032 would mandate the exclusion of
local residents from other section 306.032 facilities, There is no legal distinction between allowing
city residents to use facilities on a one-time basis, such as admission to a park for a day, and offering
local residents memberships in facilities. If we were to interpret section 306.032 to prohibit a
municipal park board from permitting a hotel to offer memberships in its connected facilities to
anyone but visitors and tourists, it would also mean that a municipal park board could not authorize
other section 306.032 facilities to serve city residents. We doubt that the legislature intended to deny
city residents use of section 306.032 facilities like parks, exhibition halls, hotel restaurants, parking
facilities, golfcourses, and trolley transportation systems. See TEX. GOV’TCODEANN. § 3 11.023(5)
(Vernon 1998) (in construing statute, court may consider consequences of a particular construction).
Moreover, we must avoid a construction of the statute that would lead to this absurd result. See
Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.
1996) (“Courts should not read a statute to create an absurd result.“) (citation omitted); TEX.
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GOV’T CODE ANN. 5 3 11.021 (Vernon 1998) (“In enacting a statute, it is presumed that a just and
reasonable result is intended.“).
Comparisons have been made between section 306.032 and chapters 35 1 and 352 of the Tax
Code, which authorize the levy of a municipal and county hotel occupancy tax that “may be used
only to promote tourism and the convention and hotel industry,” TEX. TAX CODEANN. 5 35 1.101(a)
(Vernon Supp. 2000) (municipal tax), or for the purpose of attracting visitors and tourists to the
county, see id. 5s 352.101-,108 (county tax). Opinions of this office concluded that these taxes
could not be used to support basic governmental infrastructure, such as city recreational facilities
or a county golf course, as these kinds of improvements would not serve the purpose of attracting
visitors and tourists. See Tex. Att’y Gen. Op. Nos. JM-965 (1988), JM-184 (1984). These opinions
addressed the proper use of statutorily dedicated funds. These opinions did not address the proper
use of facilities financed with these funds, and they do not suggest that a city or county may not
allow a tourist facility financed with hotel occupancy taxes to do business with local residents as
well as visitors and tourists.
In sum, section 306.032 authorizes a municipal park board to manage and control various
types of facilities “that serve the purpose of attracting visitors and tourists to the municipality,” TEX.
Lot. GOV’T CODE ANN. 5 306.032(b), (c)(8) (V emon 1999), including hotels and connected
facilities, see id. § 306.032(c)(4), (8). While section 306.032 authorizes a municipal park board to
manage and control only hotels and connected facilities that serve the purpose of attracting visitors
and tourists to the municipality, the statute does not limit use of these facilities to visitors and
tourists. Furthermore, chapter 306 of the Local Government Code generally contemplates that
facilities under the management and control of a municipal park board will be open to the general
public, without regard to residency, and gives municipal park boards broad rulemaking authority to
regulate use of facilities under their control. For these reasons, we conclude that a municipal park
board may adopt rules authorizing a hotel under its management and control to offer memberships
in the hotel’s health and fitness center to non-hotel guests, including local residents. With regard
to the situation giving rise to your inquiry, we do not address whether such rules would conflict with
the City’s lease agreement with the Galveston Health and Racquet Club. See supra page 2.
We caution that a municipal park board may not authorize a section 306.032 hotel to offer
memberships in its health and fitness center to non-hotel guests if this use of the facilities interferes
with the hotel or fitness center’s statutorily mandated purpose of attracting visitors and tourists to
the municipality. Section 306.032 does not authorize amunicipal park board to manage and control
a hotel that does not serve the purpose of attracting visitors and tourists. This limitation applies with
equal force to the facilities connected with the hotel.
Finally, it has been suggested that section 306.032 facilities should not be permitted to
compete with local businesses for the patronage of local residents. See, e.g., Fieglein Brief, supra,
at 2 (noting that business operations of Moody Gardens “compete tax free against local business
taxpayers”). It is for the legislature to determine whether the statute should be amended to limit the
permissible uses of section 306.032 facilities to address any hardship caused to local businesses.
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Furthermore, although we cannot conclude that a municipal park is precluded by law from
authorizing use of a hotel fitness center by local residents on a membership basis, a municipal park
board has broad discretion with respect to the use of facilities under its management and control and
is certainly not affirmatively required to permit such use.
SUMMARY
A municipal park board may adopt rules authorizing a hotel
under its management and control pursuant to section 306.032 of the
Local Government Code to offer memberships in the hotel’s health
and fitness center to non-hotel guests, including local residents,
provided that this use of the hotel’s facilities does not interfere with
the hotel or fitness center’s statutorily mandated purpose ofattracting
visitors and tourists to the municipality. We do not address whether
such rules would conflict with any preexisting lease agreement.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee