Untitled Texas Attorney General Opinion

EATI-ORNEY GENERAL, OF TEXAS PRICE DANXEL ATTORNEYGENERAL Hon, So Bo, luchanan, Jr, Opfnfon No, V428 County Attorni Val Verde Coun31 y Rss Authmfty lf Comfs- Pel MO, Texas s%oneTaQ~Courts to, eontP9lbut4 to bQflQ* fng a swfuag pm1 in o~*paTr&fn wfth a city and the hurl usabh for the pur- Deap SfPs We refir to your letter of June 8? 1948, in wfrfc’hyou as?3 “Does %he ~Comfssfena~s~ Court have authorfty to build a swfmfng paaS, fn co- operation with the City o’f Del Rio, Texas, upon ParA to be acqufred or whPch has bean p~evfous~y acrallred fop public park pure posed “Bees the CorlmfssPonsPs~ comt haT6 the &%~thOT%%y to eXP&i fWds ~PORI thcl ?emnanorit: Irprovenent rua an&‘oP the Read Fmd fOP such PUrpOssT’” “The Commfssfon@~s*Court of VOl Verde County dcss not wish to levy and collret & tax as provfdst¶ fn SI&%on 28 he~efnabkWr quoted, for thr purpme of aeqnfP$ng ,and fr- roving such a ark anil while the ?srmanent Prprovrmant m i! of the county mfght be used for such purpose, same being an improvement of a public nature9 ft is ay opinion sifa Court would not be authorized to extend f&&s from the Road and Brfdgs Funds for such pup- pose without express Statutory authbrfty, Ho Statute authorfzfng an expendftum ‘from the Road and Bridge Fund fop such a pu~psse has been founcLm Hon, S. B, Buchanan, Jr. 10 Pago 2 (V-628) No question concerning the fssuanee of bonds or time warrants is involved in your fnqufpyo The factual sftuatfon fs stated fn your let- ter as followsa “The Commfssfoners of the Cfty of Del Rio have asked the cooperation of the Coune ty of Val Verde in the bufldfng of a swfmm mPng pool efther upon land now held for publfc park purposes or to be acquired fop such purposes,,” We assume that the land on whfch the park fs located belongs to Val Verde County or is owned or will be acquired jofntly by safd County and the City of Del Rfo, and that the swfmmfng pool will. be paid for with curPent funds O Sections 1 and 3 of Article 6081e of Vernonus Civil Statutes reads ‘bSec, lo That any county or any Incor- porated city of this State, entPv or in cooueratfoc with each otha%, or with the Texas State Parks Board, may ae- quire by gSft or purchase or by condemnation proceedfngs, lands to be -used fop public papks and playgrounds, such Lands to be sft- uated in any locality in this State and in any sized tracts deemed suitable by the gov- ePn%ng body of the city OP county aequfrfing same; provided, RowePreP, that lands to be acquired by any such city OP county for said purposes may be, in the disoreti.on of the governing body thereof, sftuated within the State, either wfthfn or without the boundary lfmits of such efty, but wfthfn the boundary E”,mfts of safd county, and with’bn the lfmfts of said eounty wherein safd city lfes or Is situatedo” (Emphasfs added throughout) ‘tSec. 3. AlLI parks acquired by author- ity of thfs Act shall be under the control and management of the @fty OP county acquir- fng same or by the efty and county jointly9 where they have acted jofntky fn acquiring same9 provided that the CommfssfonersF Court Bon, SO B, Buchanan, Jr, - Page 3 (V-628) and the Cfty Commission or Cfty Councfl may, by agreement with the State Parks Board, turn the land over to the State Parks Board to be operated as a publfc park, the expense of the improvement and the operation of such park to be paid by the county and/or city, according to the agreement tti be made be- tween such munfcfpalities and the State Parks Board, I8 Section L of AytfcPe 608le authorizes any coun- ty or incorporated city in this State, either fndependent- ly or in codperatfon with aach other to acquire land for use as parks and playgrounds. Section 3 of safd Article authorizes eomties and/or eitfes to pay the expense of fmproving such parks, No cftatfon of authorfty fs neces- sary to support the proposition that a swimming pool is a permanent improvement of a park, QpSnion No, V-28& ef the Attorney General per- tafned to a county park acquirad under Artfcle 6078, and the constitutional funds which may be used to purchase, improve and operate pubPfe papks, In that regard the per- tfnent part of said opinion reads8 “AF%fele 6078 authorizes the tax upon a vote of a two-thirds majority, for the PUP- chase and fmprovement of lands for rase as county parks O 1% is obvious %ha% this tax would come out of the eons%i%a%ionaP perma- nent improvement %ax (Artfele VIII9 SecO 93 O The purpose as se% forth in the proposition submitted to %he voters spacif9ed a dl,ffar- en% purpose 9 to-wit : constructing $ maintafn- fng and operating public parks” The operat- ing or current expenses of a county park wonild, in our opinfon, ‘be payable out of the general fund of the county rather than the permanent Improvement fad, It Is evident, therefore, that a cons%itu%ion,?l tax, other than the one covered by Article 6,078,was attempted to be au%horized at the elect-ion held on May 18, 1946, You arep therefore, advised that 1% is the opinion of this de- partment that the qualSffed property taxpay- .., ing voters of Yoakum County did no% author- ize the tax for %he purchase and Improvement Bon, S. B. Buchanan9 Jr,, o Page 4 (V-628) of lands for US8 as County parks wfthfn the contemplation of Artfcle 6078 at the election held on that date0 It, there- fore, becomes unnecessary to determLne whether the legal requirements relating to the posting of notices the conduct of the election, the canvass %ng of the re- turns, etc., were met, “This department has heretofore de- termined that the construction of a swfm- mfng pool fs a park improvement under Ar- ticle 6078. See copies of Opinions Rum* bers O-2594 and O-7319, These opfnfons hold that time warrants may be issued against the tax mentioned in Article 6078 ff such tax ts authorized wfthfn the terms of that article. Lasater ve Lopez, 217 SW0 373; Adams v. McGfll, 146 S.W, (2) 332 (W. E, Ref.), “You are9 therefore% advfsed that if Yoakum County authorizes the tax en accord- ance with the PrOViSiOBS of Article 6078, time warrants may be fsswd agains% such tax for park fmprovement purposea, which improvement would consfst of the eonstruc- tfon of swimming pools and bathhouses fn the county parks of Yoakum Countyq’” We adhere to that opinion and hold that a swfm- ming pool fn a public park fs a permanent ?mprovement which may only be pafd for by a county wfth money of its permanent improvement fund and that the operating expenses thereof may only be pafd wfth money of its general fund whether the park be owned by such county fndependently un- der Article 6078 or in cooperation wfth a city under Artf- de 6081e. In the case of Carroll va Williams, 109 Tex. 155, 202 SOW, 504, the Supreme Court of Texas safds “Taxes levied ostansfbly for any spee- fffc purpose or class of purposes designated in section 9 of artfcle 8, supra, must be applied thereunto fn good faith; and in no even% and under no circumstances may there be expended, legally, for one such purpose or cEass of purpose& tax money tn excess Hon, S, B, Buchanan, Jr0 - Page 5 O-628) of the amount raised by taxation declared- iy for that particular purpose or class of purposes, But thfs rule would not prevent the proper expendfturep for such purpose OP purposes, of any unexpended balance :n the corresponding fund 'brought over from any prevfous year or yearssEa The Commfssionersj Court of Vai Verde County may not use money obtained by taxarion for its Road and Bridge ~Fund fn building a swwimmingpocl in a public park, SUMMARY_ The Commissfoners' Court of Val Verde County may bufld a swimming peel in a public park owned by the county, or! in cooperation with the Cfty of Dei Rio, in a public park -o',ntly owned by said county and city, Art, %0&e $ V . C 0 S,a Said Court may 'build or partiefpate in bulldIng such a swimming pool and expend money from fts permanent fmprovement fund for such purpose3 but may not expend money rais- ed for the county Road and Bridge Fmd for such purpose, Con&, Art, VIII,, Sect,> 9a Carroll v0 Williams, 109 Tex, 155, 202 S.. W, 5oko Yours very triliy-, ATTORNEYGENERALOF TEXAS By ,@/~.&-!--d W, T, WfllBams WTWswb Assistant APPROVED: RNEY GENERAL