sAmc-0~~xx GSNERAL
OF TElxAs

PRICE DANIEL r\TTORNEY

GENERAL

Hon. LaVerne P. McCann County Attorney Hockley County Levelland,Texas Opinion No. V-744
Re: Authority Of commiasloners1Court to levy taxes tomain-

. Denr Sir: tain public parks.,.

Your letter requestsan opinion on several questions the f’lrst of which reads:
“In case the voter3 of t’he County authorize the issuance of bonds to purchase and/or improve lands for Park purposes under Art. 6081X RCS, would the CommissionersCourt, after the building of auoh Parks,have authority to levy a maintenance tax to. maintain ruch Parks independently of Art, 6078 ROM If’so, would such tax so levied for meint+ance be chargbableagainst the General Rand?”

aaid: Tn Opinion No, V-669 of this offi& it ia

ftArtlclr

6078, Vernonts Civil Statutes, providea a method by which the Commisslonerst Court may purchase and improve parks and pay for suchpurchase and improvemontwith money derived from a tax levy of not exceeding five cents on saoh one hundrrd dol&ru a&ressed valuation of property, after authorizationto do so by two-third3vote of the property taxpaying voter3 at an electionheld for such purpose. Such Court la further authorized to levy an annual tax tomaintain such ~~f~~~.Pa~~si~r~~~~~~~~~) “Article 60810,’

Vernon’s Civil Statutes, protides a method by which a countyHon. LaVerne F. McCann -,Page 2 (V-744)

or en incorporated city, independently or ,jolntly

with each other,ma and implbvepublic parks --l?=Q ', and p aygroun a and pay for the same with proceeds of bonds issued for,,

such purpose. *It is made plain in Article 60854 that it is limited to the issuance of bonds and that theproceeds of bonds iasuedunder that Article may not be used for any purpose other than the purchase and improvements of land for park puroses. The ten cent tax authorized in hat statute can be used only to pay Fhs requirementsof bonds issued thereunder. "Article 6078 and 60814 stand separately* and, if submittedat the same time must be submitted sepa,rately on thebalLet at an eIection authorized thereby, respectively,andmay not ,bssubmitted jointly." Article 60814,V. C. S. provides a method by which a,county or an 'incorporated city0 independently or jointly,may acquire and improve public perks and playgrounds and pay for the samewith theproceeds of bonds issued for such purpose.

Section 3 of said article provides that 'all dounties and incorporated citiesare authorized to levy a tax not exceeding five (5) cents on the one hundred (#JOO,OO)dollars property valuation to create a fund f'orthe Improvementand operation of such parks." Such tax is in addition to the ten cent tax topay the bonds voted to purchase and improveparks,

In Opinion O-7456by a formerAttorney General it isheld that thepark in question was not acquired under Article 60814, and therefore the county couldnot levy the five cent tax authorizedby said section3 of said Article, It is there said:

"It is a 44ttl4a prinoipl4of law that a county and its commissionersoourt have no powers or duties except those which are clearly set forth and defined in the Constitution and pertinent statutes, Hill County v. Hamilton, 273 S. W.Hon.

,. LaVerne F. MoCann c Page 3 (VJ744)

292; Edwards County v. Jennings, 33 S. W. 585, and oases therein cited toonumerous for repetitionherein, "The above-quoted statutesprovide the manner and method by which oountlas may establishand finance oountyparks, either independentlyor in cooperation with the cities. It is a well-recognized principle of laidthat where the Legislatureprescribes a defninte, aertain and fixedmethod of prooedure for a City or County to follow in the exeoutlon of its governmentalfunctions othermethods are by implication of law 4xclud4d, Foster v. City of WOO, 255 S, Wo 1104 (Sup, CL?),
'In view of the fact that the CountP OS caiitw1 aid not ao~ipe the lands in4 @ha&m'within:th4 Leekhart Bride P4xk in themanner provided by Article 6081e, V, A. C. Ss,,

as amended, the C~saiancess* Court of Caldwell County la WitNUt 8uhhority to levy a tax of.5 cents on the $100 property valuation in the County of Caldwell to create a fund to help defray the expenses ofmainten&cs and operation of this park." Applying the same rule to Article 6078,no tax authorized'by itmay be levied for the improvement--or

maintenance ofparks acquiredunder authority of Article 60814, !:..:!

Tax levied for park improvement is a charge against the County Permanent Improvement find and that levied for maintenance i$ a oharge'againstthe County General Fund,

Your second question reada:

;.' "In case the voters of the Countyby

a two-thirdsmajority vote decided in favor of the tax authorizedunder Art, 6078 RCS, would the CommissionersCourt be authorized to levy any amount of tax it deemed neoessary to properly maintain suchHon. LaVomQ P. Whtm - Page 4 (V-7441,

parks or it be limited to a tax not to exceed five cents on each one hundred dollars valuati~on for al.1

purpeses authorizedunder A&. 6078 RCS, inc3uding maintenance?”

. .
v. co s.,

Under express provisions of Article 6078, when authorizedby a two-thirdsvote of theproperty tax-payingvoters of a county, the Commiseionersl Courtmay annually levy five cent8 on raeh one hundred dollara~ of taxablepropert in the county for the ,purchaaeand ,improvement of 9ands for ume aa county parks,’ It ia also provided in saidArticle that euoh Court, lllprg an@pilJy levy such additional tax as such court may deem neoesaary to maintain ayh ‘parks 0 Said tax leyied for the purchase and mprovement of 6uoh parks Is a charge against the County Permanent ImprovementFund and atich as is levied~formalntenence thereof is a &arge against the County Oeneral Fund.

6078 In our Opinion V&a it was held that *Art. authorized the tax upon a vote of two-thlrdrmajority f4r the JTB~ rohaqo and improvewnt of land2 for use a8 oounla Dar se It la Obvloua that this tax

Your third quertlon reads:
“Is the tex levy authoriaedby Art. 6078.RCS a arpeoial levy in addltlon to the regular constitutionallevy for g4noral and/or permanent improvementspurpQa48, Or is suah amount aa may be levied under Art, 6078 RCS chargeable l or to be includedwithin the over-al f?inat pormlttod for general and/orpermanentlevy improvementspurposea?”



### wouldo4me &t-of ‘thePermanent Improvement tax.” (Art.VIII, Sec. 9, Texas Constitution,) By the same token a.maintenance tax levied by the Commlsslo!ymra8 Court pursuand to Art. 6078would be chargeableagainst the regular constltutloaallevy for ,general fund purpoees and not in addition thereto.

Where the voters of a county authorize the isausmceof bonds for the purchase andEon. LaVerne F. MoCann - Page 5 (V-744)

improvementof countyparks and levy of the taxunder Article 6081e, V. C. S., such countymay not le.vytaxes formaintenance purposes under Article 6078, V. C. S. illhere the voters of a county authorize the annual levy of a tax of five cents on the one hundred dollars valuation of property for the purchase and improvement of lands foruse as countyparks as authorized in Article 6078, V. C. S., the Commissioners' Courtmay annually, levy such tax and annually levy an additional tax sufficient in their judgment to properlymaintain such parks and tomake such improvementsas authorized in said Article.
Taxes levied for the acquisition and improvement of parks are chargeable against the regular constitutionallevy for permanent improvementpurposes, and taxes levied for maintenance of parks are chargeable against the regular constitutionallevy for general fund purposes.
Yours very truly,
ATTOBH%Y GENERAL OF TElAS

APPROVED:

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