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

Criminal District Attorney 

McLennan County Courthouse Re: Whether county funds may be 

Waco, Texas 76701 expended for the purchase of 

land for a regional correctionai 

Dear Mr. Eichelberger: facility, and related question;:, 

In your recent opinion request you asked the following 

questions: 

(1) May county funds be expended for the purchase of land for a regional correctional facility? 

(2) Which county fund should be used for such 

a purchase? 

(3) If the county is authorized to purchase 

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 to be used as a regional correctional 

facility? 

(4) If the land cannot be deeded to the State 

of Texas, then may 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 4e of Article 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 in part: 

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Hon. 

Thus 

Martin 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 and maintenance of a 

regional correctional facility provided that title 

to the land on which said facility is to be condeeded to the Department of Corrections 

and provided further that a contract is executed 

by and between all the parties as to payment 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. " (Emphasis added.) 

the answer to Question One is yes. 

Prior to 1967 the law was well established that the 

general fund, permanent improvement fund, jury fund and road and 

bridge fund could not be commingled or used for purposes other 

than that for which 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 9 of Article VIII, 

Texas Constitution, overruled the prior law as to commingling of 

the funds prescribed in that Section 9. Attorney General's 

Opinions M-207 (1968) and M-369 (19691. 

If McLennan County has commingled all of its tax money 

into one general fund, then payment for the purchase of land for 

a regional correctional facility would have to be made out of that 

general fund. If, on the other hand, McLennan County still maintains the multiple constitutional county funds, it is the opinion 

of this office that the nature 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 in part by Article 

4413 (32cj. The land must be deeded to the Department of Corrections, 

but the problem of consideration would depend on the contract between the parties. Consideration could be provided for, or not, 

by mutual agreement of the parties 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 in Article 4413(32c), Section 4b. 

Question Five is controlled by Robbins v. Limestone 

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

%FiP 114 Tex. 345, 268 S.W. 915 (1925), which states at page t at "where not restricted by the Constitution, the Legislature has full control of the property held by a county as an 

agency of the State, and may exercise dominion and control over 

it without the consent of the county, and without compensating 

the county for it." The Legislature thus may 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 it has only one constitutional fund, or the permanent improvement fund, 

if it has multiple constitutional funds, may be 

expended to purchase land for a regional correctional 

facility. Although the land must 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 it without the consent 

of the county and without 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 

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

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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