Honorable Don Hall 

District Attorney 

McLennan County 

Waco, Texas 

Dear Mr. Hall: 

S 

Arrsmm m.T~gas 

June 11, 1965 

Opinion No. C-453 

Re: Whether a county can participate in the cost of 

operating a zoo upon property which is jointly owned 

by the city or county and 

related questions. 

Your letters requesting an opinion of this office read 

in part as follows: 

"The citizens of the C~lty of Waco in a 

recent referendum indicated by a substantial 

majority that they desired for the City to 

support a zoo, which has previously been operating on privately donated funds. The 

privately donated funds had ceased to be 

adequate to support the zoo, and therefore, 

the City has partially supported the zoo for 

a limited period of time. The zoo is located 

on property wholly and solely owned by the 

City of Waco. Certain persons interested in 

the sustenance and operation of the zoo have 

contacted the McLennan County Commissioners 

Court relative to financial assistance to the 

City of Waco and private donors in operatlng 

the zoo. I would greatly appreciate your 

opinion as to the following propositions: 

"(1) Can a County participate In the cost 

of operating a zoo which Is located upon property 

owned solely andolly by the city? 

"(2) Can a County participate in the cost 

of operating a zoo upon property which is jointly 

owned by the Cityand the County? 

"(3) Can a County participate in the cost 

of operating a zoo which Is located upon property 

owned solely andolly by the county? 

-2148- 
Hon. Don Hall, page 2 (C-453) 

"(4) Can a County participate 

of operating a zoo which is located 

property but paxally supported by 

as well as City funds? 

in the cost 

on City 

private funds 

"(5) If a special tax is voted according 

to the provisions of Article 6078, V.A.C.S., which 

provides for County parks and recreation centers, 

can a zoo be operated with public funds obtained 

as a ret of said election? 

"(6) If it is determined by the Attorney 

,General's office that the County can not participate 

in the sustenance and operation of sunder the 

foregoing propositions, and factual situation, are 

there any other methods whereby the County funds 

may be used for the purpose of supporting a - zoo? 

"(7) Does that part of Article 6078, V.A.C.S., 

which reads as follows: 'Such park shall remain 

open for the free use of the public, under such 

reasonable rulesand regulations as said Court may 

prescribe,' mean that no fee can be charged for 

the use of said park or intricate parts thereof; 

or does it mean free access to the park, subject 

to such reasonabrrmlesand regulations as the 

Commissioner's Court prescribe? Can the County 

or City-County lease concessions? 

' 8) If an election Is had pursuant to Article A 078, v.A.c.s., and said election is favorable 

to the establishment of a County park, can a zoo be 

maintained and 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 structures that can be placed in said park 

similar to those restrictions provided for in 

Article 2351, V.A.C.S., and commented upon in 

your opinion #2594? 

"(9) Would anv building in said County 

park be considered Id public building,' as contemplated in Section 7, Article 2351, V.A.C.S. 

wherein the County is required to 'provide and 

keep In repair. . .I 'public buildings'?" 

A county may participate in operating a zoo upon 

property owned solely by the County and designated as a county 

-2149- 
Hon. Don Hall, page 3 (C-453) 

park within the provisions of 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 

construct pavilions and such other buildings as 

they may deem necessary, Q D .and make such $her 

improvements as they may deem proper. ~ . s 

The land so used,and solely owned by the County must 

be designated as a County park open for the free use of the public. 

Discretfonary power to construct and maintain necessary buildings 

and improvements for 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 buildings and improvements are 

deemed necessary and proper by the Commissioners Court. 

Also, a county may participate fn operating a 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 cooperation with 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 suitable by the governing body of the city 

or county, acquiring same; provided, however, that 

lands to be acquired by any such city BP 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 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 operation of 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 authorizes any county or 

incorporated city in this State, either fnclependently or in 

-2150- 
Hon. Don Hall, Page 4 (C-%3) 

cooperation with each other to acquire land for use as parks 

and playgrounds. Section 3 of said Article authorizes counties 

and cities Independently or jointly, to manage or control all 

parks acquired by authority of Article 6081e. It is our opinion 

that construction of a zoo Is a permanent Improvement of a park 

under Article 6o81e and Article 6078 which may only be paid for 

by a county with money out of its permanent improvement fund and 

that the operating expenses thereof may only be paid with money 

out of its 

8 

eneral fund. 

4. 

Atty. Gen. Opinion V-628, Atty. Gem. 

Opinion V-2 Of course, a special election may be conducted 

under Article 6078 and Article 6081e to isolate specific tax 

money for parka and improvements of those parks. 

It Is our opinion that your questions one and four 

must be answered in the negative. Article 6078 authorizes counties 

to acquire and maintain parks solely as county parka. Article 

6081e allows counties and cities, independently or jointly, to 

acquire and maintain parks. Section 3 quoted above requires all 

parks to be controlled and maintained by the county or city or 

city/county acquiring 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 operation of a zoo. 

Section 1 of Article 6078, Vernon's Civil Statutes, 

provides: 

"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 county parks. No such 

tax shall be levied and collected until the proposition is submitted to and ratified 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 taxpaying 

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 

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 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 ditches or lakes, and make 

-2151- 
Hon. Dan Hall, page 5 (C-453) 

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. 

Provisions of Article 6078 clearly state a method to 

be followed by counties In establishing county 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 maintenance land construction of pavilions and such other buildings as they may deem 

necessary and to make such other improvements as they may deem 

proper. It is our opinion that a zoo may be constructed and operated as an improvement by the county on lands purchased or acqulred for parka purposes by special election assessing property 

taxpayers. Atty. Gem. Opinion O-905 allowing construction of a 

baseball park and facility. 

It is our opinion that the word “free” as used in 

Section 1 of Article 6078, means merely that a county park eatablished under 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. Establishment of a 

reasonable admission fee would constitute a reasonable rule or 

regulation by the Commissioner's Court as allowed within Section 

1 of Article 6078. 

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

'NO person, firm or association of persons 

shall have the right to offer for sale or barter* 

exhibit anything or conduct any place of amuaement where a fee 1% charged within said parka 

without first obtaining the consent of the commissioners court or its duly authorized agent, 

paying for such privilege or concession the sum 

agreed upon with said court or its duly authorized 

agent. All revenue from the sale of such privileges 

or concessions ahal; go into a fund for the maintenance of said parka. 

Section 4 of Article 6081e also authorizes concessions 

in parks acquired under Article 6081e and provides: 

"Sec. 4. !l?he management In charge'of any 

park created by authority of this Act shall have 

the right to sell and lease concessions for the 

establishment and operation of such amusements, 

-2152- 
Hon. Don Hall, page 6 (C-453) 

stores, filling stations and all such other concerns as are consistent with the operation of a 

public park, the proceeds of such sales and rentals 

to be useff for the improvement and operation of 

the park. 

The clear and unambiguous language of Section 1 of 

Article 6078, sets forth the powers of the Commisaloners Court 

with respect to buildings and Improvements constructed on 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 sufficient in their 

judgment to maintain such parka and build and 

construct pavilions and such other buildings as 

they may deem necessary. . . .and make sue; 

other improvements as they may deem proper. 

Section 1, Article 6078, allows the Commissioners 

Court discretion as to types of buildings which may be deemed 

necessary within 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 regarding areas of discretion statutorily conferred upon the Commissioners Court. 

County park buildings constructed within the discretion 

of the Commissioners Court are not public buildings as authorized 

by the provisions of Article 2351, Vernon's Civil Statutes, unless 

such buildings are constructed within the certain powers specified 

by Article 2351. The term "public bulldlngs" means a building 

used primarily for public or governmental purposes, or to house 

public or governmental agencies. 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. 

Maintenance of public buildings originate from the certain powers 

specified in Article 2351. 

SUMMARY 

A county may participate in operating a zoo 

located upon 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 property purchased with revenue 

-2153- 
. 1 

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

from a special election within the provisions of 

Article 6078, Vernon's Civil Statutes. A zoo 

may be operated upon land acquired with bond and 

tax funds levied under Article 6081e by a county 

independently or jointly with 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 

-2154-