Hon. Martin D. Eichelberger Opinion No. M-1195

Criminal District Attorney McLennan County Courthouse Re: Whether county fundsmay be Waco, Texas 76701 expended for thepurchase of land for a regional correctionai Dear Mr. Eichelberger: facility, and related question;:,

Inyour recent opinion request you asked the following questions: (1)May county funds be expended for thepurchase of land for a regional correctional facility? (2)Which county fund should be used for such apurchase? (3)If the county is authorized topurchase such land,may this land be deeded either with or without consideration to the State of Texas after the State of Texas has built the facility with a reversionary clause back to the county if the land should cease tobe used as a regional correctional facility? (4)If the land cannot be deeded to the State of Texas, thenmay the county lease the land to the State for a certain number of years? (5)May the State of Texas gain control of the land originally purchased by the county by an act of the Legislature transferring such land to the State?
In 1971, the Texas Legislature enacted Article 4413(32c), Vernon's Civil Statutes, known as the Texas Interlocal Cooperation Act. Section 4eofArticle 4413(32c) specifically authorizes a county, as a "local government" to contract with the State Department of Corrections regarding regional correctional facilities. Section 4e reads inpart:

-58,32-Hon.

ThusMartin D. Eichelberger, page 2 (M-1195)

#I

. . . The contracting parties to interlocal contract or agreement shall have specific authority to contract with the Department of Corrections for the construction, operation andmaintenance of a regional correctional facility provided that title to the land on which said facility is tobe condeeded to the Department of Corrections andprovided further that a contract is executed by and between all the parties as topayment for the housing, maintenance and rehabilitative treatment of persons held in jails who cannot otherwise be transferred under authoritv of existina statutes to the direct responsibility of the Deparfment of Corrections." (Emphasisadded.) the answer to Question One isyes. Prior to 1967 the lawwas well established that the general fund, permanent improvement fund, jury fund and road and bridge fund could not be commingled or used forpurposes other than that forwhich each was raised. Carrol v.Williams, 109 Tex. 155, 202 S.W. 504 (1918);Attorney General's Opinions O-601 (19391,O-869 (1939),O-931 (1939),O-4763 (1942),O-5422 (1943), O-6948 (1945). The 1967 amendment to Section 9ofArticle VIII, Texas Constitution, overruled theprior law as to commingling of the funds prescribed in that Section 9. Attorney General's Opinions M-207 (1968)and M-369 (19691.

IfMcLennan County has commingled all of its taxmoney into one general fund, then payment for the purchase of land for a regional correctional facility would have tobemade out of that general fund. If, on the other hand, McLennan County stillmaintains themultiple constitutional county funds, it is the opinion of this office that thenature of a correctional facility is a "permanent improvement" and the funds should come from the county's permanent improvement fund.

Questions Three and Four are answered inpart byArticle 4413(32cj. The landmust be deeded to the Department of Corrections, but the problem of consideration would depend on the contract between theparties. Consideration could be provided for, or not, bymutual agreement of theparties involved. Such an agreement could form a contract between the Department of Corrections and a county or among the Department and several "local governments" as defined inArticle 4413(32c), Section 4b.

Question Five is controlled by Robbins v. Limestone

..583S-.

Hon. Martin D. Eichelberger, page 3 (M-1195)



# %FiP114 Tex. 345, 268 S.W. 915 (1925),which states atpage tat "where not restricted by the Constitution, the Legislature has full control of theproperty held by a county as an agency of the State, andmay exercise dominion and control over itwithout the consent of the county, andwithout compensating the county for it." The Legislature thusmay give or take property held by a county. SUMMARY Under Article 4413(32c), Section 4e,Vernon's Civil Statutes, county funds out of either the county's general fund, if ithas only one constitutional fund, or the permanent improvement fund, if ithasmultiple constitutional funds,may be expended topurchase land fora regional correctional facility. Although the landmust be deeded to the Department of Corrections, the terms of the interlocal or intergovernmental contract will determine the consideration and any other pertinent provisions relating to the land and the intent of the parties to the contract. Since the Legislature has full control over the property held by a county as an agency of the State, the Legislature may exercise dominion and control over itwithout the consent of the county andwithout compensating the county for it.

Prepared by Linda Neeley Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Gordon Cass William J. Craig 2.T. Fortescue Roland Allen
-5834--

Hon. Martin D. Eichelberger, page 4 (M-1195)

SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

-5835-