### TEEA~TORNEY GENERAL OF TEXAS

AUSTIN 11. TEWILL WILSON A-- GXNERAL July 11, 1960

Honorable Jack N. Fant Opinion No.

### WW-881 CountyAttorney El Paso County Re: Authority of the Commissioners El Paso, Texas Court of El Paso County,under. Articles 

### 6078and 

### 6081e,V.C.S., to enter Into a contractwith the City of El Paso for the building, operation,maintenanceand management of a golf course and clubhouse in Ascarate Park, theretofore solelyacquired, managed and controlledby 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 Commissioners1Court authorized under Articles 

### 6078and/or 

### 608le,V.A.T.C.S. to enter Into a contractwith the City of El Paso, for the building and operation of a golf course and clubhouse In Ascarate Park, a County Park theretofore acquired, controlledand managed solely by the Countyunder the above statutes,whereby the City assumed the responsibilityof the operation,maintenance, managementand conduct of the golf course, clubhouseand concessionson the premises,with each party to receive one half of the revenue therefrom after expenses?
"2. Was or is such contractvalid?


### "3. Is the Commissioners'Court liable to the City or is it authorized to expend County funds to the City for funds expendedby the latter for improvementsplaced on said golf course and clubhouse,etc., by virtue o.fsaidpurported 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 determinewhether the County should levy and collect a tax for the purpose of acquiring and improving lands for county park purposes. An electionwas 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 landwhat is now known as Ascarate Park. The park was acquired, then operated, maintained and controlled solely by the County until sometimearound 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 improvingAscarate Park by constructin hole golf course. On December 23, & therein a twenty-seven 195 , the City and County entered into the followingagreement:

(1

. . .NOW THEREFORE, in considerationof 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 restrictionsand reversionary clauses, and the Countyhereby agrees that itwill not use saidpark nor any part thereof In such a fashionas to cause the same to revert to its Grantor, the United States of America. "(2) The City and Countywill cause to be constructeda 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 Countyagrees that the work shallbe done by contract let upon competitivebids. "(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 connectionwith said golf course and agrees that one-half of the revenueafter expenses shall beHonorable Jack N. Fant, Page 3. (W-881)

paid to the County. II

. . .

“(7) This contract shallbe revocable on March 1 of any year, provided however that three months'written notice be given to the oppositeparty and at which time the parties shall enter into and agree upon new operation provisions.

. . . This operating agreementwas adhered to by the City and Countyuntil January, 1960. On January 18, 1960, the Commissioners' Courtpassed a resolution stating in effect that said contractwith the City would be terminatedas of March 1, 1960, and that the golf coursewould then be operated by El Paso County. By letter dated January 22, 1960, the Mayor informed the Commissioners' Court that the Citywould turn over the golf course to the County as of March 1, 1960. At that time, the Countywas to assume the entire management, control and financial support of the golf course and clubhouse.

Art. 6078 "Section2. All parks acquired by authority of this Act shallbe under the control and management of the countyacquiring the same, provided that the CommissionersCourt may by agreementwith 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 suchpark to be paid by the county and/or cooperative Federal agencies according to the agreement to be made between such countyand the State Parks Board."

Art. 6081e "Section3. 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 Councilmay, by agreementwith the State Parks Board turn the land over to the State Parks Board to be operated as a public park, the expense of the improvementand operation of suchpark to be paid by the countyand/or city, according to the agreement to be made between such municipalitiesand 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)

"'Countiesbeing componentparts of the State, have no powers or duties except those clearly set forth and defined in the Constitutionand statutes. The statutes of Texas have clearly defined the powers, prescribed the duties and imposed the liabilitiesof the Commissioners' Court, the medium throughwhich the different counties act, and from these statutesmust come all the authoritiesvested In the counties.' Edwards County v. Jennings, 

### 33 S.W. 585 (Civ.App.1695); affirmed, 

### 35 S.W. 1053.

"Article

### 6078refers 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 maintainedby the city must come if at all from Article 6081e. Section 

### 3 of this latterarticle provides, specifically,that park land acquired under its provisions shall be managedand controlledby 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 foundhere for acquisition by the county and managementand control by the city, or vice 

### versa." (Emphasisadded)

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 countypark was established under authority of Article 

### 6078and a natatorium was constructed In said countypark that the authority to manage and control saidpark and park natatoriumwould be in the county commissioners'court and said courtwould have no authority to delegate such control and management to any schooldistrict."
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 implicationby the Constitutionand 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-recognizedprinciple of

where the Legislatureprescribes a definite, certainmethod of procedure for a city or county, all other methods are bv imnllcation of law excluded." Fosterv. City of Waco, 

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

In answer to questions one and two, the contractwhich thereby surrenderedthe managementand control to the citywas a contractwithout the proper authorizationand said contract was and would be now invalid between theparties if the County had not already reassumed its proper supervisionand control.

In discussing the liability of the County to pay for the improvementplaced in Ascarate Park by the City,we uote from the case of Sluderv. 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 justicewhen it has received money, property, or servicesof another. Under such circumstancesthe plainest principle of justice requires that it shouldnot be permitted to receive and retain the benefits of a contract without paying the reasonablevalue thereof."

We quote from another casewhich says:

II

. . . that such a recovery is not in any sensea recognition of the validity of the contract which the fundamental law has made valid, but rather the recovery is upon another principle of lawwhich imposes a duty and legal liability to pay the reasonable value of the property or service of another and retainedunder circumstances justifying the assumption that therewas 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 countyagreed to pay the city for any improvements which the cityplaced upon the park, and in answeringyour third question, it is not necessary to discuss the legality or authorization of such a provision. From the other information submitted, there is no Indicationof circumstances.whichwould give rise to an impliedpromise by the County to pay the City for the improvements,nor have we discovered any indication from the factspresented, either before said improvementswere made or during the time such improvementswere 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 thatwhere benefits of a contracthave been received that there may be a recoveryunder quantummeruit. 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 acceptanceof benefits by one sought to be charged, renderedunder such circumstancesas reasonably to notify him that one performing such serviceswas expecting to be paid compensation therefor.

We are, therefore, of the opinion that the county is not liable under the contract or under quantummeruit.

SUMMARY
El Paso County cannot lawfullydelegate the controland supervisionof a county park acquiredunder 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 improvementsplaced in suchpark under a contractwhere no provisionswere made for payment nor the facts presented give rise to quantum meruit.

Yoursvery 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