OF XAS

WILL WIISON *x-rORNEY GENERrhL. December 4, 1962

Honorable Jack N. Fant OpinionNo. 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 CommissionersCourt 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 PzrGLake in the County park located in Ei Paso County.You have further asked whether the CommissionersCourt 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 Courtwould suffice so -bts to comply zith the "local la;.i" referred to In Article 1722a.

We must first note that the Countypark presentI.? at i.:;cue is one establishedunder the authority of Artic?es6078 ::.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 properlymaintain such parks and build and constructpavilions and such otherbuildings as theymay deem necessary; lay out and @pen driveways and T!Jrlks, pave the same or any part thereof, set outHon. Jack N. Fant, page 2 (~-1482)

trees and shrubbery, constructditches or lakes, and make such other improvementsas they may deem proper. Such parks shall remain open for the free use of the public under such reasonable rules and regulations
as said courtmay prescribe." (Emphasis added).

Article 1722a,Vernon's Civil Statutes, entitled the Yater Safety Act, is the statutewhich has been enacted to govern the operation of watercraft on the waters of this State. Section 13 thereof is quoted:

"Theprovisions of this Act, and of other applicable laws of this State, shall govern the operation, equipment,numbering and all othermatters relating theretowhenever any vessel shallbe operated on the :latersof this State, or when any activity regulatedby this Act shall take plac,ethereon, but nothing in this Act shallbe construed to prevent the adoption of any ordinance or local law relating to operationand equipment of vessels, the provisions cfTxhichare consistent rliththe provisions of this Ac,t.amendments thereto or regulations issued thereunder, providing further that an incorporatedmunicipalitymay adopt ordinances limiting the horsepoyrerof motorboats on all lakes o-nedby or situated in the jurisdictionallimits of such municipality."

We are thus leftwith two basic questions. One, does the countyhave the authority to issue such a regulaticn; t?Jo, does the proposed regulation conflictwith the provisions of Article 1722a?

It is a general proposition of law that countieshave only those pot:Jers or duties tha, are clearly set forth and defined in the Constitutionand s1atutes. And the powers granted to counties are more strictly construed than those granted to incorporatedmunicipalities. 15 Tex.Jur.2d, Counties, Sec. 80. Further, the commissionerscourt is a court of limited jurisdiction. Canalesv. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (1948); and the commissionerscourt does not have general police powers, CommissionersCourt 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 StamfordRon. 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 issueby virtue'of the fact that a city has impliedpowers and general police poi!ers, whereas a countyhas no such authority. In order to e-.ercise a power, a countymust have been specificallydelegated such power, eitherby 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 ithas been held that a statebzard may not impose a fee where there has been no specificauthorization such fee. Attorney General's OpinionNo. 0-5802 (1944). Further, no nublic officermay claim or receive anvmonev ::iithout-a

law authorizinghim"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 statutoryauthority setting forth a specific amount v;hichfor

the Tex

.

could be imposedby the County of El Paso for the fee here in issue. This conclusion is to Article 6078, reinforcedby referringagain

wherein the county is authorized to exercise full power and control over the park Iwithinits limits. This control is granted in the same sentencewhich authorizes the levy and collection of annual taxes sufficient tc properly maintain suchparks and construct such additions necessary to their proper operation. We may reasonably conclude, therefore, that the "fullpo:!er and control"granted by the T,eg'i::- lature to the county was intendedby the Legisiatu~~e t:?e:~;- tend only to such control as is consistent ?Jiththe ei'i'icient operation of the park. The statute speci.ficz:lyprcvides for the allocation of taxation to f'inancc the i>:;rl-:. The fee proposedhere by El Paso County is c1~e:zrJ.y 2 i>ev::nue measure, not a safetymeasure. The revenue to zuppo:*t the park is to be providedby taxation imposedunder A:ticlc 6078 and not raisedby the levy of inspection fees.

Cur answer to the first question renders neetil~e::e :,ny ans.:!er

to the other questionsposed.

SUMMARY

The CommissionersCourt of El Pa.-:0 Countyhas no authority to levy :.n annual inspection fee upon all motorboats using Ascarate Park Lake, aHon. Jack N. Fant, page 4 (W-1482)

county park located in El Paso county, suchpark lakehaving been establishedunder 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