TEEA~TORNEY GENERAL 

OF TEXAS 

AUSTIN 11. TEWILL WILSON 

A-- GXNERAL July 11, 1960 

Honorable Jack N. Fant Opinion No. WW-881 

County Attorney 

El Paso County Re: Authority of the Commissioners 

El Paso, Texas Court of El Paso County, under. 

Articles 6078 and 6081e, V.C.S., 

to enter Into a contract with 

the City of El Paso for the building, operation, maintenance and 

management of a golf course and 

clubhouse in Ascarate Park, 

theretofore solely acquired, 

managed and controlled by the 

county, the validity of said contract and liability of the county 

to the city under said contract, 

and authority of the county to expend county funds for improvements 

paid for by the city under said 

Dear Mr. Fant: contract. 

In your letter of February 25, 1960, you request the 

opinion of this Department on the following three questions, 

which we quote: 

"1 . Was the Commissioners1 Court authorized 

under Articles 6078 and/or 608le, V.A.T.C.S. to enter Into a contract with the City of El Paso, for 

the building and operation of a golf course and 

clubhouse In Ascarate Park, a County Park theretofore acquired, controlled and managed solely by the 

County under the above statutes, whereby the City 

assumed the responsibility of the operation, maintenance, management and conduct of the golf course, 

clubhouse and concessions on the premises, with 

each party to receive one half of the revenue therefrom after expenses? 

"2. Was or is such contract valid? 

"3 . Is the Commissioners' Court liable to 

the City or is it authorized to expend County 

funds to the City for funds expended by the latter 

for improvements placed on said golf course and 

clubhouse, etc., by virtue o.f said purported contract or otherwise?" 
. . 

Honorable Jack N.Fant, page2. (WW-881) 

The facts stated by your brief are as follows: 

The Commissioners' Court of El Paso County ordered an 

election held to determine whether the County should levy and 

collect a tax for the purpose of acquiring and improving lands 

for county park purposes. An election was duly held under 

Articles 6078 and 6081e, Vernon's Civil Statutes, on August 23, 

1937. The voters approved and on October 11, 1937, the land 

was acquired from the United States Government. The County then 

built on the land what is now known as Ascarate Park. The park 

was acquired, then operated, maintained and controlled solely 

by the County until sometime around January 24, 1954, at which 

time the City of El Paso and the County of El Paso passed resolutions to the effect that it would be to the best interests of the 

people of the City and County for the two to join together in 

improving Ascarate Park by constructin 

hole golf course. On December 23, & 

therein a twenty-seven 

195 , the City and County entered into the following agreement: 

(1 

. . . NOW THEREFORE, in consideration of the 

premises, the City and County agree as follows: 

"(1) The title to the above property is 

vested in the County of El Paso, subject to 

certain restrictions and reversionary clauses, 

and the County hereby agrees that it will not 

use said park nor any part thereof In such a 

fashion as to cause the same to revert to its 

Grantor, the United States of America. 

"(2) The City and County will cause to be 

constructed a clubhouse on the golf course site 

at a cost to be mutually agreed upon, and each 

party agrees to provide one-half of the cost of 

construction, Including architect's fees, at 

such times as called for in the contracts for 

such services and construction, and the City 

and County agrees that the work shall be done by 

contract let upon competitive bids. 

"(3) The City agrees to take the responsibility of the operation, maintenance, management 

and conduct of the golf course, clubhouse, and 

concessions on the premises, and the City further 

agrees that It will account to the County once 

each month for all receipts and disbursements in 

connection with said golf course and agrees that 

one-half of the revenue after expenses shall be 
Honorable Jack N. Fant, Page 3. (W-881) 

paid to the County. 

II 

. . . 

“(7) This contract shall be revocable on 

March 1 of any year, provided however that 

three months' written notice be given to the 

opposite party and at which time the parties 

shall enter into and agree upon new operation provisions. . . . 

This operating agreement was adhered to by the City and 

County until January, 1960. On January 18, 1960, the Commissioners' Court passed a resolution stating in effect that said 

contract with the City would be terminated as of March 1, 1960, 

and that the golf course would then be operated by El Paso County. 

By letter dated January 22, 1960, the Mayor informed the Commissioners' Court that the City would turn over the golf course to 

the County as of March 1, 1960. At that time, the County was to 

assume the entire management, control and financial support of 

the golf course and clubhouse. 

Art. 6078 "Section 2. All parks acquired by 

authority of this Act shall be under the control 

and management of the county acquiring the same, 

provided that the Commissioners Court may by 

agreement with the State Parks Board turn the 

land over to the State Parks Board to be operated 

as a public park; the expense of the improvement 

and operation of such park to be paid by the county 

and/or cooperative Federal agencies according to 

the agreement to be made between such county and 

the State Parks Board." 

Art. 6081e "Section 3. All parks acquired by 

authority of this Act shall be under the control 

and management of the city or county acqulrlng 

same or by the city and county jointly, where they 

have acted jointly in acquiring same, provided that 

the Commissionem' Court and the, City Commission or 

City Council may, by agreement with the State Parks 

Board turn the land over to the State Parks Board 

to be operated as a public park, the expense of the 

improvement and operation of such park to be paid 

by the county and/or city, according to the agreement to be made between such municipalities and 

the State Parks Board." 
Honorable Jack N. Fant, page 4. 

In Opinion O-905, dated December 5, 1939, by a former 

Attorney General, this Department said: 

(w-881) 

"'Counties being component parts of the 

State, have no powers or duties except those clearly set forth and defined in the Constitution and 

statutes. The statutes of Texas have clearly defined the powers, prescribed the duties and imposed the liabilities of the Commissioners' Court, 

the medium through which the different counties 

act, and from these statutes must come all the 

authorities vested In the counties.' Edwards 

County v. Jennings, 33 S.W. 585 (Civ.App. 1695); 

affirmed, 35 S.W. 1053. 

"Article 6078 refers exclusively to parks 

bought and maintained by a county, and Article 6080 

refers exclusively to parks bought and maintained 

by a city. Any authority for the purchase of a 

park by the county to be maintained by the city must 

come if at all from Article 6081e. Section 3 of 

this latter article provides, specifically, that 

park land acquired under its provisions shall be 

managed and controlled by the city or county acquiring same. If the park is acquired jointly by 

the city and county, they must jointly control it. 

No authority is to be found here for acquisition 

by the county and management and control by the 

city, or vice versa." (Emphasis added) 

In Opinion No. O-2594, dated August 19, 1940, also by a , 

former Attorney General, it is stated that: 

II It is the opinion of this 

Department'that if a county park was established 

under authority of Article 6078 and a natatorium 

was constructed In said county park that the authority to manage and control said park and park natatorium would be in the county commissioners' court 

and said court would have no authority to delegate 

such control and management to any school district." 

The authority of the Commissioners' Court as the governing body thereof to make contracts in its behalf is strictly 

limited to that conferred either expressly or by fair or necessary implication by the Constitution and laws of this State. 

Roper v. Hall, 280 S.W. 289 (Civ.App. 1925, rehearing den.) 
Honorable Jack N. Fant, page 5. (W-881) 

law that _ .~ 

"It is a well-recognized principle of 

where the Legislature prescribes a definite, certain method of procedure for a city 

or county, all other methods are bv imnllcation 

of law excluded." Foster v. City of Waco, 113 

Tex. 352, 255 S.W. 1104 (1923). 

In answer to questions one and two, the contract which 

thereby surrendered the management and control to the city was 

a contract without the proper authorization and said contract 

was and would be now invalid between the parties if the County 

had not already reassumed its proper supervision and control. 

In discussing the liability of the County to pay for the 

improvement placed in Ascarate Park by the City, we uote from 

the case of Sluder v. City of San Antonio, 2 S.W.2d 84 

App. 1928), which states the principle that 

1 (Comm. 

II . . the rule thus firmly established 

by the courts of this state rests upon the obligation of a municipality to do justice when it has 

received money, property, or services of another. 

Under such circumstances the plainest principle of 

justice requires that it should not be permitted 

to receive and retain the benefits of a contract 

without paying the reasonable value thereof." 

We quote from another case which says: 

II . . . that such a recovery is not in any 

sense a recognition of the validity of the contract 

which the fundamental law has made valid, but rather 

the recovery is upon another principle of law which 

imposes a duty and legal liability to pay the reasonable value of the property or service of another and 

retained under circumstances justifying the assumption 

that there was an intention to pay." Austin Eros. v. 

Montague County, 10 S.W.2d 71.8 (Comm.App. 1928). 

We have been unable to find a provision in the contract 

whereby the county agreed to pay the city for any improvements 

which the city placed upon the park, and in answering your 

third question, it is not necessary to discuss the legality or 

authorization of such a provision. From the other information 

submitted, there is no Indication of circumstances.which would 

give rise to an implied promise by the County to pay the City 

for the improvements, nor have we discovered any indication 

from the facts presented, either before said improvements were 

made or during the time such improvements were being made, that 

the City expected to receive compensation for the improvements. 
Honorable Jack N. Fant, page 6. (w-881) 

There are numerous holdings to the effect that where 

benefits of a contract have been received that there may be 

a recovery under quantum meruit. We think that the facts, as 

presented, do not fit the legal requirements of the cases wherein quantum meruit has been allowed in this State. An essential 

prerequisite to any liability is the acceptance of benefits by 

one sought to be charged, rendered under such circumstances as 

reasonably to notify him that one performing such services was 

expecting to be paid compensation therefor. 

We are, therefore, of the opinion that the county is 

not liable under the contract or under quantum meruit. 

SUMMARY 

El Paso County cannot lawfully delegate 

the control and supervision of a county 

park acquired under Article 6078 or Artlcle 6081e, Vernon's Civil Statutes, to 

the City of El Paso, and such a contract 

is invalid. The County Is not liable to 

the City for the improvements placed in 

such park under a contract where no provisions were made for payment nor the 

facts presented give rise to quantum 

meruit. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

APPROVED: 

Opinion Committee 

W.V.Geppert, Chairman 

L. P.Lollar 

C. Dean Davis 

Marietta McGregor Payne 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore 

WHP:zt 

William H. Pool. Jr. v 

Assistant