HonorableDon Hall

DistrictAttorney McLennan County Waco, Texas

Dear Mr. Hall: S

Arrsmm m.T~gas
June 11, 1965

OpinionNo. C-453
Re: Whether a county can participate in the cost of operatinga zoo upon property which is jointly owned by the city or county and related questions.
Your letters requestingan opinion of this office read in part as follows:

"The citizens of the C~lty of Waco in a recent referendum indicatedby a substantial majority that they desired for the City to support a zoo, which has previouslybeen operating on privatelydonated funds. The privately donated funds had ceased to be adequate to support the zoo, and therefore, the City has partially supportedthe zoo for a limitedperiod of time. The zoo is located on property wholly and solely owned by the City of Waco. Certainpersons interestedin the sustenanceand operationof the zoo have contactedthe McLennan County Commissioners Court relative to financialassistance to the City of Waco and private donors in operatlng the zoo. I would greatly appreciateyour opinion as to the followingpropositions: "(1) Can a County participateIn the cost of operatinga zoo which Is locatedupon property owned solely andolly by the city? "(2) Can a County participatein the cost of operatinga zoo upon property which is jointly owned by the Cityand the County? "(3) Can a County participate in the cost of operatinga zoo which Is locatedupon property owned solely andolly by the county?
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"(4) Can a County participate of operatinga zoo which is located propertybut paxally supportedby as well as City funds? in the cost on City private funds

"(5) If a special tax is voted according to the provisionsof Article 6078, V.A.C.S.,which provides for County parks and recreationcenters, can a zoo be operatedwith public funds obtained as a ret of said election? "(6) If it is determinedby the Attorney ,General's

office that the County can not participate in the sustenanceand operationof sunder the foregoingpropositions, and factual situation,are there any other methods whereby the County funds may be used for the purpose of supportinga zoo? - "(7) Does that part of Article 6078, V.A.C.S., which reads as follows: 'Suchpark shall remain open for the free use of the public,under such reasonablerulesand regulationsas said Court may prescribe,'

mean that no fee can be charged for the use of said park or intricateparts thereof; or does it mean free access to the park, subject to such reasonabrrmlesand regulationsas the Commissioner's

Court prescribe? Can the County or City-Countylease concessions?
' 8) If an election Is had pursuant to Article A078, v.A.c.s., and said election is favorable to the establishment of a County park, can a zoo be maintainedand operated out of the funds derix from said special tax? If so, would money acquired through this special tax, provided for in Article 6078, V.A.C.S. have any restrictions as to the type structuresthat can be placed in said park similar to those restrictions provided for in Article 2351, V.A.C.S., and commentedupon in your opinion #2594? "(9) Would anv building in said County park be considered Idpublic building,'as contemplated in Section 7, Article 2351, V.A.C.S. wherein the County is required to 'provideand keep In repair.

. .I 'publicbuildings'?"
A countymay participatein operatinga zoo upon property owned solely by the County and designatedas a county
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park within the provisionsof Article 6078, Vernon's Civil Statutes. Article 6078 provides in part:

I, .Said court shall have full power and controi over any and all such parks and build and constructpavilionsand such other buildingsas they may deem necessary, Q D .andmake such $her improvements

as they may deem proper. ~ . s The land so used,and solely owned by the Countymust be designatedas a County park open for the free use of the public. Discretfonary

power to constructand maintain necessarybuildings and improvementsfor County parka is granted to the Commissioners Court by Article 6078. It is OUP opinion that a zoo may be operated in a County park if such buildingsand improvements are deemed necessaryand proper by the Commissioners Court. Also, a countymay participatefn operatinga zoo upon property which is jointly owned by the City and County for park purposes, Sections 1 and 3 of Article 6081e, read in part as follows:
'Sec. 1. That any county or any incorporated city of this State, either independently or in cooperationwith each other, or with the Texas State Parks Board, may 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 suitableby the governingbody of the city or county, acquiring same; provided,however, that lands to be acquiredby any such city BP county for said purposesmay be, in the discretionof the governing body thereof, situatedwithin the State, either within or without the boundary limits of such city, but within the boundary limits of said county and within the limits o; said county wherein said city lies or is situated.
"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 have acted jointly in acquiring same, D

. .the expense of the improvement and the operationof such park to be pafd~ by the county and/or city, accordfng to the agreement to be made between such munfclpalfties. O s *' Section 1 of Article 608ie authorizesany county or incorporatedcity in this State, either fnclependently or in
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cooperation

with each other to acquire land for use as parks and playgrounds. Section 3 of said Article authorizescounties and cities Independently or jointly, to manage or control all parks acquiredby authorityof Article 6081e. It is our opinion that constructionof a zoo Is a permanent Improvementof a park under Article 6o81e and Article 6078 which may only be paid for by a county with money out of its permanent improvementfund and that the operatingexpenses thereofmay only be paid with money out of its 8eneral fund.

4. Atty. Gen. OpinionV-628, Atty. Gem. OpinionV-2 Of course, a special electionmay be conducted under Article 6078 and Article 6081e to isolate specific tax money for parka and improvementsof those parks.

It Is our opinion that your questionsone and four must be answered in the negative. Article 6078 authorizescounties to acquire and maintain parks solely as county parka. Article 6081e allows countiesand cities, independently or jointly,to acquire and maintainparks. Section 3 quoted above requires all parks to be controlledand maintainedby the county or city or city/countyacquiring same. Land may not be acquired by city funds or private funds with authorization of a county to maintain or control said land for park purposes through operationof a zoo.

Section 1 of Article 6078, Vernon's Civil Statutes, provides: "Each Commissioners Court is authorizedto 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 county parks. No such tax shall be levied and collecteduntil the proposition is submittedto and ratified by the property taxpayingvoters 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 electionheld for such purpose shall determine in favor of said tax. If said court desires to establishtwo or more of such county parks, they shall locate them in widely separatedportions 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 properlymaintain such parks and build and constructpavilionsand such other buildingsas they may deem necessary, lay out and open drivewaysand walks, pave the same or any part thereof, set out trees and shrubbery,constructditches or lakes, and make
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such other Improvements as they may deem proper. Such parks shall remain open for the free use of the public under such reasonable ?les and regulations as said court may prescribe. Provisionsof Article 6078 clearly state a method to be followedby counties In establishingcounty parks by special election to assess property owners of the County. When a County park has been established,the Commissioner's Court is granted full power and control over tax revenue for maintenancelandconstructionof pavilionsand such other buildingsas they may deem necessaryand to make such other improvements as they may deem proper. It is our opinion that a zoo may be constructedand operated as an improvement by the county on lands purchasedor acqulred for parka purposes by special election assessingproperty taxpayers. Atty. Gem. Opinion O-905 allowing constructionof a baseballpark and facility.

It is our opinion that the word “ free” as used in Section 1 of Article 6078, means merely that a county park eatablishedunder the provision of said Article is to be a place of free resort in the sense that it is not a private park but Is to be open to the public generally. Establishmentof a reasonableadmission fee would constitutea reasonablerule or regulationby the Commissioner's Court as allowed within Section 1 of Article 6078.

Article 6079 in clear and unambiguous language,authorizes concessionsin county parks, Article 6079 provides:

'NO person, firm or associationof persons shall have the right to offer for sale or barter* exhibit anything or conduct any place of amuaement where a fee 1% chargedwithin said parka without first obtaining the consent of the commissioners court or its duly authorizedagent, paying for such privilege or concessionthe sum agreed upon with said court or its duly authorized agent. All revenue from the sale of such privileges or concessionsahal; go into a fund for the maintenance of said parka. Section 4 of Article 6081e also authorizesconcessions in parks acquiredunder Article 6081e and provides:

"Sec. 4. !l?he

management In charge'ofany park created by authority of this Act shall have the right to sell and lease concessionsfor the establishment

and operationof such amusements,

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stores, filling stationsand all such other concerns as are consistentwith the operationof a public park, the proceeds of such sales and rentals to be useff

for the improvement and operationof the park. The clear and unambiguouslanguage of Section 1 of Article 6078, sets forth the powers of the Commisaloners Court with respect to buildingsand Improvements constructedon county park lands. Section 1 of Article 6078 provides In part:

II

. . .Said court shall have full power and control over any and all such parks and may levy and collect an annual tax sufficientin their judgment to maintain such parka and build and constructpavilionsand such other buildingsas they may deem necessary. . . .andmake sue; other improvements as they may deem proper. Section 1, Article 6078, allows the Commissioners Court discretionas to types of buildingswhich may be deemed necessarywithin the county park. Review of such discretion should be made on a case by case basis and rules will not be prematurely set forth by this office regardingareas of discretion statutorilyconferredupon the Commissioners Court. County park buildings constructed within the discretion of the Commissioners Court are not public buildingsas authorized by the provisionsof Article 2351, Vernon's Civil Statutes,unless such buildingsare constructed within the certainpowers specified by Article 2351. The term "publicbulldlngs"means a building used primarily for public or governmental purposes, or to house public or governmentalagencies. Dancy v. Davidson, 183 S.W.2d 195 (Tex.Civ.App.

1944, error ref.). Powers delegated to the Commissioners

Court to maintain and repair county park buildings originate from Section 1 of Article 6078 and Article 6o81e. Maintenanceof public buildings originate from the certainpowers specified in Article 2351.

SUMMARY
A countymay participate in operatinga zoo locatedupon lands used for public park purposes owned by a county or acquired jointly by a city and county within Article 6078 and Article 6oale, Vernon's Civil Statutes. A zoo may be operated by a county upon propertypurchasedwith revenue

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Hon. Don Hall, page 7 (C-453)

from a special electionwithin the provisionsof Article 6078, Vernon's Civil Statutes. A zoo may be operatedupon land acquiredwith bond and tax funds levied under Article 6081e by a county independently

or jointlywith a city.

Very truly yours, WAGGONER CARR Attorney General

By: Qordon Houser Assistant GH:mkh
APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman David Longorla ~Douglas

Chllton John Pettit Roger Tyler
APPROVED FOR TRE ATTORNEY GENERAL BY: T. 8. Wright

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