OF XAS 

WILL WIISON 

*x-rORNEY GENERrhL. 

December 4, 1962 

Honorable Jack N. Fant Opinion No. brw-1482 

Cunty Attorney 

El ?nso County Re: Authority of the CommisE! Paso, Texas sioners Court ~)f El Paso 

County, under the provisions of the Water 

Safety Act, Article 

1722a, V.C.S., to levy 

and collect an annual 

inspection fee from all. 

motorboats using Ascarate 

Park Lake in the County 

park located in El Paso 

County; and related quesDear Mr. Fant: tions. 

You have asked for an opinion of this office as to 

:,;hether or not the Commissioners Court of E1 Paso County, 

under the provisions of the Water Safety Act, rirtic.'e 1722a, 

Vernon's Civil Statutes, has authority to levy and collect 

an annual inspection fee from all motorboats using Accarate 

PzrG Lake in the County park located in Ei Paso County. You 

have further asked whether the Commissioners Court has the 

zuthority to designate a deputy sheriff or other legally constituted county officer to inspect the motorboats and to collect 

the inspection fee, and further, whether an order of the Commizcioners Court would suffice so -bts to comply zith the "local 

la;.i" referred to In Article 1722a. 

We must first note that the County park presentI.? at 

i.:;cue is one established under the authority of Artic?es 6078 

::.nd 6081e, Vernon's Civil Statutes. Articl~e 6078 is quoted in 

pi% as follow: 

1, 

. . . Said court shall have full power 

and control over any and all such parks and 

mav levv and collect an annual tax sufficient 

in"their judgment to properly maintain such 

parks and build and construct pavilions and 

such other buildings as they may deem necessary; lay out and @pen driveways and T!Jrlks, 

pave the same or any part thereof, set out 
Hon. Jack N. Fant, page 2 (~-1482) 

trees and shrubbery, construct ditches 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." (Emphasis 

added). 

Article 1722a, Vernon's Civil Statutes, entitled the 

Yater Safety Act, is the statute which has been enacted to 

govern the operation of watercraft on the waters of this 

State. Section 13 thereof is quoted: 

"The provisions of this Act, and of 

other applicable laws of this State, shall 

govern the operation, equipment, numbering 

and all other matters relating thereto whenever any vessel shall be operated on the 

:laters of this State, or when any activity 

regulated by this Act shall take plac,e thereon, but nothing in this Act shall be construed 

to prevent the adoption of any ordinance or 

local law relating to operation and equipment 

of vessels, the provisions cf Txhich are consistent rlith the provisions of this Ac,t. amendments thereto or regulations issued thereunder, 

providing further that an incorporated municipality may adopt ordinances limiting the horsepoyrer of motorboats on all lakes o-ned by or 

situated in the jurisdictional limits of such 

municipality." 

We are thus left with two basic questions. One, does the 

county have the authority to issue such a regulaticn; t?Jo, does 

the proposed regulation conflict with the provisions of Article 

1722a? 

It is a general proposition of law that counties have 

only those pot:Jers or duties tha, are clearly set forth and defined in the Constitution and s 1 atutes. And the powers granted to counties are more strictly construed than those granted 

to incorporated municipalities. 15 Tex.Jur.2d, Counties, Sec. 

80. Further, the commissioners court is a court of limited 

jurisdiction. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 

451 (1948); and the commissioners court does not have general 

police powers, Commissioners Court v. Kaiser, 23 S.W.2d 840 

:Civ.App., 1929, error ref.) In support of the proposed inspection fee, we have been cited'to the case of City of Stamford 
Ron. Jack N. Fant, page 3 (EN-1482) 

v. Ballard, 345 S.W.2d 596 (Civ.App., 196@), wherein it :.ras 

h ld that a city ordinance imposlng'an inspection fee upon 

r&t boats on a city lake was valid This case cannot control on the present issue by virtue'of the fact that a city 

has implied powers and general police poi!ers, whereas a 

county has no such authority. In order to e-.ercise a power, 

a county must have been specifically delegated such power, 

either by Constitution or by statute. Mills Counti. 

Lampasas County, 90 Tex. 603, 40 S.FJ. 403 !1697). 

With reference to the subject of fees, it L5houi.d be 

noted that it has been held that a state bzard may not impose a fee where there has been no specific authorization 

such fee. Attorney General's Opinion No. 0-5802 (1944). 

Further, no nublic officer may claim or receive anv monev 

::iithout-a law authorizing him"to do so and cl~early"fixing 

amount to which he is entitled. Binford v. Robinson, 112 

84, 244 S.W. 807 (1922). li!e find no clear unquestionable 

statutory authority setting forth a specific amount v;hich 

for 

the 

Tex . 

could be imposed by the County of El Paso for the fee here 

in issue. This conclusion is 

to Article 6078, 

reinforced by referring again 

wherein the county is authorized to exercise 

full power and control over the park Iwithin its limits. This 

control is granted in the same sentence which authorizes the 

levy and collection of annual taxes sufficient tc properly 

maintain such parks and construct such additions necessary to 

their proper operation. We may reasonably conclude, therefore, that the "full po:!er and control" granted by the T,eg'i::- 

lature to the county was intended by the Legisiatu~~e t:? e:~;- 

tend only to such control as is consistent ?Jith the ei'i'icient operation of the park. The statute speci.ficz:ly prcvides for the allocation of taxation to f'inancc the i>:;rl-:. 

The fee proposed here by El Paso County is c1~e:zrJ.y 2 i>ev::nue 

measure, not a safety measure. The revenue to zuppo:*t the 

park is to be provided by taxation imposed under A:ticlc 

6078 and not raised by the levy of inspection fees. 

Cur answer to the first question renders neetil~e::e :,ny 

ans.:!er to the other questions posed. 

SUMMARY 

The Commissioners Court of El Pa.-:0 

County has no authority to levy :.n 

annual inspection fee upon all motorboats using Ascarate Park Lake, a 
Hon. Jack N. Fant, page 4 (W-1482) 

county park located in El Paso 

county, such park lake having been 

established under the authority of 

Articles 6078 and 6081e, V.C.S. 

Yours very truly, 

WILL WILSON 

Attorney General.of Texas 

MLC:ms 

Malcolm L. Quick 

Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

L. P. Lollar 

Tom Peterson 

Bob Eric Shannon 

REVIEWED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore