Untitled Texas Attorney General Opinion

Hon. Ray Lackey Opinion No. o-7214 county hiitor Re: Authority of Commissioners’ Court to Yoakum County expend Permanent Improvement Funds for Com- Plains, Texas nunity Buildings in county parks when said funds were derived from taxes levied for permanent improvement purposes prior to the election authorizing the establishment of Dear Sir: county parks o We are in reoeipt of your letter requesting the opinion of this department on the above stated matter. We greatly appre- ciate the supplemental information which you have furnished us with reference to the subject of your inquiry. It is our understanding that Yoakum County has recently held an election whereby the Commissioners’ Court has been author- ized to levy a tax not to exceed Five Cents (5Q) on the One Hun- dred Dollars ($100.00) valuation for county park purposes. We assume that said election was held pursuant to the provisions of Article 6078, Vernon’s Annotated Civil Statutes. Prior to the holding of said election, you requested our opinion as to whether the Commissioners’ Court is authorized to expend from $14,000.00 to q/20,000.00 out of the Permanent Improvement Fund for the pur- pose of building Community Buildings in two towns in Yoakum County. You have recently advised us that it is now contemplated that the above mentioned Community Buildings will be built as improvements in the county parks. In view of the above circumstances, the following pro- position is raised3 After an election has been held in accordance with the provisions of Article 6078 and the Commissioners’ Court has been authorized to establish county parks, is the Commission- ers’ Court, authorized to expend funds from the Permanent Improve- ment Fund (which were on hand prior to the holding of said elec- tion) for the purpose of constructing Community Buildings in county parks to be established pursuant to the above mentioned elect ion? Article 6078, V.A.C.S., in part providesr “Each Commissioners Court is authorized to levy and collect a tax not to exceed five (5’) cents on each one hundred dollars assessed valuation of the county for the purchase and improvement of lands for use as Hon. Hay Lackey, page 2 (O-7214) county parks * No such tax shall be levied and col- lected until the proposition is submitted to and ratl- fled by the property taxpaying voters of the county at a general or special election called for that purpose, provided, a two-thirds majority of the property tax- paying voters of such county, at an election held for such purpose shall determine in favor of said tax. If said court desires to establish two or more of such county parks, they shall locate them in widely separ- ated portions of the county. Said court shall have full power and control over any and all such parks and may levy and collect an annual tax sufficient in their judg- ment to properly maintain such parks and build and con- struct pavilions and such other buildings as they may deem necessary, lay out and open driveways and walks, pave the same or any part thereof, set out trees and shrubbery, construct dit ehes or lakes, and make such other improvements as they may deem proper. Such parks shall remain open for the free use of the public under such reasonable rules and regulations as said court may prescribe.” Under the above quoted provisions, the method of estab- lishing a county park system is specifically set forth, end, pur- suant to said provisions, thecommissioners’ Court is authorized to levy a tax not to exceed Five Cents (5$) on the One Hundred Dollars ($100.00) valuation for the purpose of purchasing and imarovinn lands for use as county parks. It is a well recognized principle of law that when the Legislature prescribes a definite, certain and fixed method of procedure for a county to follow in the execu- tion of its governmental functions, other methods are by im lica- tion of law excluded. Foster v. City of Waco, 255 S.W. llor: (Sup. Ct.). We point out further that it has been held generally that money raised by taxation for any particular purpose shall be ap- plied to that particular purpose and to y (Carroll v. Williams, 202 S.W. 504; 11 TexOJurulrop0 It is apparen,t that the $14,000.00 to $20,000.00 in the Permanent Improvement Fund to which you refer was derived from & levy or levies of taxes for permanent imorcvemer&aurooses otha fo cow oarks~ fOP as stated by you the above mentioned balance: were on hand uri& to the recent election which author- ized the Commissioners i Court to levy a specific tax fox county park purposes e In view of the above and foregoing, it is our opinion that the Commissioners I Court is not authorized to expend the above mentioned balances in the Permanent Improvement Fund (derived from taxes levied prior .to the time the Commissioners0 Court was author- ized to levy a specific tax and expend county funds for park pur- poses) for the purpose of constructing Commuuity Buildings in county L . . Hon. Ray Lackey, page 3 (O-7214) parks in Yoakum County. You are further advised that the funds for any improvements in the county parks must be derived from a specific tax levied for park purposes in accordance with the provisions of Article 6078, supraQ We polnt out further that al- though the tax levied in accordance with Article 6078 is a speci- fic tax, this department has held that a tax levied under said Article for the purpose of making permanent improveuents in county parks must be construed as a specific levy or allocation within the constitutional limitation for nermanent improvements, and such levy for improvements in county parks eannot operate to increase the total amount levied by the county for permanent improvement purposes beyond the constitutional limitation for permanent im- provements. Likewise, such amount of annual tax that may be lev- hd for the operating expenses of said parks must be dealt with as a specific levy or allocation within the levy for general pur- poses and cannot operate to increase the total general fund levy beyond the constitutional limitation for general purposes, For a further discussion of this matter we refer you to our Opinion No. o-1082, a copy of which is encl,osed for your convenience. When a tax not exceeding Five Cents (5#) on the One Hun- dred Dollars ($100.00) valuation has been levied in accordance with the provisions of Article 6078, the Commissioners9 Court may expend the funds derived from such levy for “the purchase and m of lands for use as county parks.” With reference to the c,“e of improvements which may be made in county parks, we call your atten- tion to Our Opinion No. 0-6700 wherein it was pointed out that it was contemplated by the Legislature that funds raised by taxation under a specific levy for county park purposes should be used prf- in&ly for the purpose of providing facilities for the wsement. recreation and e of the people of the county. We are e:- closing herewith a copy of the above mentioned opinion wherein this matter is fully discussed. In view of the foregoing, you are ad- vised that if the Commissioners s Court, within its sound discre- tion, has determined that the contemplated use or uses of the Com- munity Buildings to be constructed as improvements in the county park system are primarily for the amusement, recreation and enjoy- ment of the people of the county, the Commissioners p Cour,t would be authorized to expend funds derived from the special tax levied for park purposes for the construction of such buildings0 We trust that the above and foregoing will satfsfactor- ily answer your inquiry. APPROVED MAY319 1946 Yours very truly /s/ Carlos C, Ashley ATTOFNEY GENERALOF TEXAS FIRST ASSISTANT By /s,’ J. A. Ellis ATTORNEY GENERAL J+ h. Ellis, Assistant APPROVED:OPINION COMMI!CTES BY: BWB, CHAIRMAN JAE: d jm:wb