Honorable G. A. Walters
County Attorney
San Saba County
San Saba, Texas
OPlnlon No. o-2849
Re: ,Parks - Commissioners1 Courts
Dear Sir:
Your request for opinion has been received and':
carefully considered by this department. owe quote from
your request as follows:
"Our commissioners court Issued a warrant
for $10,000 for paving around the square, the
courtiouse; and four per cent tax levied to pay
Interest and principal and create a sinking
fund to all warrants and pay interest. Now,
there is sufficient money accumulated in .thls
fund after the paving was completed to render
all warrants and ay Interest and leave a sur-
plus of about $2,t00 to the credit of the perm-
anent improvement fund. The City of San Saba
owns the premlses'deslred to be Improved for a
public park. The city Is unable to finance these
improvements to supplement the government funds
promised for the project. The city asked the
county to finance this improvement on these pre-
mises. My advice to the commissioners court was
that they would not be permitted to Invest this
$2,400 in such improvements on the city property.
I advised them to secure a transfer from the city
to the county of these premises and then the
county could use this $2,400 for these lmprove-
ments and would not be required to comply wlth
Art. 6078 above referred to by levying a tax
and collecting the same by submitting to the
tax paying voters,of the county a special elec-
tion called for that purpose requiring that two-
thirds of the majority of the tax paying voters
of said county favor such tax.
."Now, what the commissioners court wants to
know is whether or not this $2,400 can be used by
Hon. G. A. Walters - page 2
the county for improving this property belong-
ing to the city without having the same trans-
ferred to the county? Second, If the city does
or does not transfer the property, will the
county be required to submit the matter at a
special election and bonds issued for that pur-
pose regardless of the fact that the county now
has on hand this $2,400 to the credit of the im-
provement fund?
"I am unable to find any statutory pra-
visions or decisions by the court upon which to
base my opinion and of course I may be wrong.
We are very anxious to have this part improved
and this seems to be the only way that it can be
done if authorized."
Article 6073, Vernon's Annotated Texas Civil Sta-
tutes, reads as follows:
"Each commissioners court Is authorized to
levy and collect?a tax not to exceed five cents
on each $100 of assessed valuation of the coun-
ty for the purchase and Improvement of lands
for use as county parks which shall consist of
not more than one hundred acres, and shall not
exceed more than four in any one county. No
such tax shall be levied and collected until
the proposition is submitted to and ratified by
the property tax-payi&ngvoters of the county at
a general or special election called for that
purpose, provided, a two-thirds majority of
the property taxpaying voters of such county, at
an election held for such purpose shall determine
In favor of said tax. If s,aldcourt desire? to
establish two or more of such county parks they
shall locate them in widely separated 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
judgment to properly maintain such parks and build
and construct papillons 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 shubbery, construct
ditches or lakes, and make such other lmprove-
ments as they may deem proper. Such parks shall
Hon. G. A. Walters - page 3
remain open for the ‘free use of the public
under such reasonable rules and regulations
as said court may prescribe."
Article 60&e, Sections 1, 2 and 3, ,Vernon'sAnno-
tated Texas Civil Statutes, reads as follows:
2S.e~.1. That any county or any incorpo-
rated city of this Sta,te,either independently
or in cooperation with each other, or with
the Texas State Parks Board, #ay acquire by gift
or purchase or by condemnation proceedings,
lands to be used for public parks and playgrounds,
such lands to be situated in any locality in
this State and in any sized tracts deemed suit-
able by the governing body ~of the city or
county acquiring same; provided, however, that
lands to be acquired by any such city or county
for said purposes may be, In the discretion of
the governing body thereof, situated within
the State, either within or without the boundary
limits of such city, but within the boundary
limits of said county and within the limits of
said county wherein said city lies or Is situated.
TSec. 2. To pay for lands for parks pur-
poses, an incorporated city and/or county may
Issue bonds , ,andmay levy a tax not exceeding
Ten (10) Cents on the One Hundred Dollars ($100)
valuation of taxable property in such city
and/or county to pay the interest and provide
a sinking fund to retire such bonds, the issu-
ance of such bonds,~and the collection of taxes
in payment thereof to be in accordance with the
provisions of Chapter 1, Title 22, Revised
Civil Statutes of 1925, governing the Issuance
of bonds by cities, towns, and/or counties in
this State; this section shall be construed
to authorize the levying of said tax not ex-
ceeding Ten (10) Cents on the One Hundred
Dollars ($100) of valuation notwithstanding
the provisions of Article 6080 of the Revised
Civil Statutes of 1925.
"Sec. 3. All parks acquired by authority
of this Act shall be under the control and
management of the city or county acquiring same
or by the city and county jointly, where they
Hon. G. A.~Walters, Page 4
have acted jointly In acquiring same, pro-
vided that the Commissioners1 Court and the
City Commission or Clty~councll may, by
agreement with the State Parks Board, turn
the land over to the State Parks Board to
be operated as a public park, the expense
Of the Improvement and operation of such park
to be paid by the county and/or city, accord-
ing to the agreement to be made between such
municipalities and the State Parks Board.
"All counties and incorporated cities
are authorized to levy a tax of not exceed-
ing five (5) cents on the One Hundred
($100.00) Dollars property valuation to
create a fund for the Improvement and opera-
tion of such parks."
We quote from 11 Texas Jurisprudence, page 609, as
follows:
"The Constitution prescribes the max-
imum rate of taxes for general purposes, for
roads and bridges, for juries, and for perm-
anent improvements, respectively. The monies
arising from taxes levied and collected for
each of the enumerated purposes are constl-
tutlonal funds; and the commissioners' court has
no power to transfer money from one fund to
~ar&%heror to expend, for one purpose, tax
money raised obstensibly for another purpose.
"The Immediate purpose of the provision
is to limit the amount of taxes thatmay be
raised for these several purposes, respectively;
but it is also designed to inhibit excessive
expenditures for any such purpose, and to re-
quire that any and all monies raised by taxa-
tion for any purpose shall be applied to that
particular purpose and to no other."
The above quotation from Texas Jurisprudence is
supported by the cases of Commissioners' Court of Hender-
son County vs. Burke, 262 SW 94; Ault vs,.Hill County, 116
SW 359; Section 9, Article 8 of the State Constitution; and
Carroll vs. Williams, 202 SW 504.
It is a well settled principle of law that a
county and its commissioners' court has no powers or duties
.
Hon. G. A. Walters, Page 5
except those which are clearly set forth and defined in the
Constitution and pertinent statutes. Hill County vs. Hamil-
ton, 273 SW 292; Edwards County vs. Jennings, 33 SW 585, and
cases therein cited too numerous for repetition herein.
The above'quoted statutes provide the manner and
method by which counties may establish and finance county parks,
either independently or In cooperation w$th the cities. It 1s
a well recognized principle of law that where the Legislature
prescribes a definite, certain and fixed method of procedure
for a city'or county to follow in the execution of Its govern-
mental functions other methods are by implication of law ex-
cluded. Foster vs. City of Waco, 255 SW 1104 (Sup.Ct.).
We quote from Opinion No. O-905 of this department
as follows:
"Article 6078 refers exclusively to
parp.bought and maintained by a county, and
Article 6080 refers exclusively to parks
bought and maintained by a city, any authority
for the Qurchase of a park by the county to be
maintained by the city must come If at all from
Article 6081e, Section 3 of this latter article
provides, specifically, that park landsacquired
under its provisions shall be managed and con-
trolled by the city or county acquiring same.
If the park is acquired jointly by the city and
county, they must jointly control it. No au-
thority Is to be -found here for acquisition by
the county and management and control by the
city, otivice versa."
We quote from opinion No. O-2140 of this department
as follows:
"It is, therefore, our considered op-
inion that a commissioners' court does not
have authority to make expenditures from the
permanent improvement fund for the purpose of
Improving county parks, In the absence of a
compliance with one of the above quoted artl-
cles. (Articles 6078 and 6081e). Since
neither of these statutes were complied with,
it naturally follows that you cannot legally
approve the warrants authorized by the com-
missioners' courts to be drawn on said permanent
improvement fund in payment of the costs of the
contemplated improvements."
__.. .
Hon. 0. A. Walters, page 6
We enclose herewith copies of Oplnions Nos.
O-905 and O-2140 of this department.
In view of the foregoing authorities you are
respectfully advised that it Is the opinion of this de-
partment that the $2,400.00 in the permanent Improvement
fund of the county may not be used for the Improvement of
said park regardless of whether or not said park is trans-
ferred to the county and regardless of whether or not an
election Is had to vote bonds or vote a tax for park pur-
poses.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By Wm. J. Fanning
Assistant
WJFzAW:Bt
APPROVED DEC. 3, 1940
Gerald C. Mann
Attorney General Of %XaS
APPROVED Opinion Committee
by BWB, Chairman
Untitled Texas Attorney General Opinion
Combined Opinion