Honorable Tom Koore 

'County Attorney 

Caldwell County 

Lookhart, Texas 

Dear Sir: opinion HO. o-7456 

Be: Under the facte submitted and 

mder the provleione of Article 

60&e, Section 3, B. c. s., can 

CaldwellCountyle&ly levy a 

tax of not exceeding five (5) 

centa on the $100 property 

valuation to create a fund to 

help defray the expeneee of 

mainterwnce and operatlonof 

the park in question? 

You hare requested the opinion of tbie Department upon the 

rollow~ fa&lal s1ttvat1on: 

TheLockhartStateParkle aparkeltuated about3mlles outside 

the city limits of I&ldmrt, Texaii, end wlthlt%aldwe~ Comity ofvhlch - 

Lookhart Ii the oonnty eeati~ In 1933 art.& l.o&loltlmne became interested 

li securing a park for L&sha.rt and after eeveralmeatinge a looalcoimnittee 

andarepresentitlve of theStateParkeCcmrmlseIonof theState ofTexas 

entered lntoaparolunderetandingthatlfthe lands foraparkeouldbe 

eecured, an effort would be made to have the United States C+-venment pro; 

vlde foraCJCCamp to improve the pre+lsee,and after the completion 

thereof thepark landawould be turned over to theState Parks Board,who 

would take over the managaentad oontrolthereof ae a Stat&&ark. 

Pursuant to tbie agreement a bond election was called by the City 

of Im&hart to authorize the lsguance of bonds in the mount. of $7,500.00 

under the authority of Section 2 and Se&ion 2a of Article 60&e, V.A.C.S. 

After the bmd ieeue WE oarrled, the City of Lockhart conmenced the pizchase of varloue tracts of land, but the amount of the bond leeue wae 

inaufficlent to purchaee all of the lands deemed necessary for the ocmpletedpark. 

A group of c1tize.m came before the Comnieelonere Court of 

Caldwell County and requested that the County aeelat ia the ccmpletlon 

of the project. In Auguet, 1935, the Ccaunieelonere Court in a regular 

meeting voted to donate "a sum not IB exceed $1,300.00 for the purahaee 

of lend for tie Iookhert State Perk," said emu to be paid by l&e issuance 4 

c 
Honorable Tcm tire, Page 2 (0-7456) 

. . 

3 per cent lnterset bearing varremte on the general fund of Caldwell 

County; and the County under the foregoing autiorlty purohared land at 

,I a ooet of $1,107.00 whloh wae deeded for park purporer. 

Photostatlo oopler of the varloum deed* to the State of Texas 

reetlng the title to the land6 o-poring the park under the pz~lelare 

of Title 102, R. 0. S. reveal that the park lr ocrmpoeed of approximately 

352 aoree, the title to whloh lr reeted in the State of Texae for uee ae 

a publlo State park. There are p deed8 of oonveyauoe of rarloue traote 

and pereels fonulng the abon, totalaoreage. Of theee deede, 5 are frcui 

the original grantore to the State of Texan ae grantee, reolting the 

eonslderatlon a.8 having been paid by the City of Lookhart, aud eaah of 

eald oonoeyauoee oontalned the following lmguage: 

*It le agreed by and between the State of Texas, 

acting herein by and through the State Parks Board, and 

the City of Lockhart, aotlng herein by end tbm ite 

mayor mad olty oc3umleelonere, that the State of Texan will 

aaoept said land ae a STATE PARK end will take poeeeealon and 

improve eald land ae a STATE PARK without ooet or expanse to 

the City of lookhart,, and will maintain such land ae euoh a 

park without ooet or expenme to the City of Lookhart.* 

Each of aald deedn of oonreyanoe oontained a revereion ol~une to the. 

effeot +&at lf at any tm t&e lraad la abandoned by the State of Texae ae 

a State park and it oeaeee to maintain the aame an ruoh, the title will 

revert to the Cltg of Lookhwt, ite euoceeeore and aeelme in the abeolute. 

The foregOing oanreyamr approximate 333 aoree. 

The remaining 3 oon+eyanoeb are made by the orlglnal grantors 

to the State of Texan a~ grantee, reoltiag the oonslderatl~ ae haying 

been paid by the County of Oaldwell. Two or there 00nmyauoe6 oontaln 

the same olaueee ae to the expenee of operation and malntmsaae ae ase 

found in the deeda of oonveyanoe wherein the ooneideratlon wae paid by the 

city or zockhart, and aIr0 oontaln the l m rererri~~ omme ia favor or 

the County of Caldwell. The third deed of oonveymoe, being fm 4 v3 

aoree, while not oontalning ruoh a rpeolfia olauae oormernlng-operation a nd ma lntena noo l e is oontaiadd ln fho qg@dug 8 deobr of o~~~vo)anoo, 

nerertheleae reoitesr that ths oomlderat.$otbwar paid by Qaldwell Oouuty ’ 

for the purpoee of raid land bolnng amod in oameotion vlth ad u part of 

a publlo State parL with the mdonWuUng that tho~grautor at tho requeet 

or the oounty or Caldwoll and the state of Taxa@ oonro~l Bald lull to be 

ueed M a part of the park with the understanding uid agreemnt “by and 

between the State of Texan” that the State aotlng throu& ita Parke Board 

would Qooopt said Laud, imprero IO crap malntaln l (11114 aea part of eaid 

parlr and aontalnlng a rimlllar rororelca ol8ueo to Oaldwoll Oounty. 

, 
Honorable Tom Moore, Page 3 (o-7456) 

The park, having been completed in 1940, wae turned over to 

the State Parke Bctard end the State of Texae, but without any written 

agreement between the City of Loci&art, acting through lte mayor end 

oonmleelonere, and the State Parlre Board for the oontrol and operation of 

the park. Theminutes or theCity Ccmmleel0nrerl.eOt at the time or the 

oalllng of the eloetlon for tie bond8 that upon oompletlon of the park 

name ehall be turned over to the State Parke Board. 

A written contra&. wan entered into between a local caPlrmlttee 

of cltlzene of Lockhert to cooperate with the State Parka Board for the 

operation of a golf couree situated in and vhlch le a part of the park, 

which hae expired according to its osm terms but which has been continued 

by p-1 agreement between the q eme parties. It appears that the State 

Parb Board did not have sufficient appropriation to operate the perk 

efficiently, and therefore the local ccaomlttee above mentioned called 

upon the City or Loctiart and tie Conmieelonere Court or Caldwell County 

to help defray the operating expeneee. Caldwell County through ita 

Camnleeionere Court then agreed to danate $25.00 a month to help defray 

the operating expenses of the park, which funds vere paid froan the general 

funde of the county to the Lookhart Golf Aseoclation, but which were not 

pald to the State Parke Board. The Citr or Lo&hart acting through its 

city ooimcll aleo voting to donate $50.00 a month for the owratlon and 

maintenance of the perk which cum wae later tioreased to. the cum of $100.00 

a month, which cum wae paid out of the city general fund but not to the 

State Parke Board. 

Baaed on the foregoing factual situation, you have aeked the 

r0llclwiag question: 

'~ "In vi&w of these facts and Article 6C8le, Section 3, Revised 

Civil Statutei, oen Caldwell Coimty~ legally levy a tcu of not exceeding 

rive (5) oente on tie $100.00 property valuatlori to create a fund to 

help defray the expeneee of maintenance end operation of this park?" 

Tne acquleltlon of public. parks by the State of Texas, and 

counties and oltiee thereof is gdrerned by the provleione of Title 103, 

B.C.S. of Texae, 1925. Article 6078 provides for the acquisition, 

lmprovament and operation of parka by aountlee. Article 6080 provides 

for the acquleltlon, improvement and operation of parka by lnoorporated 

oltiee. In view of the factual eltuatlon above stated, neither of 

these wM.c~~ is applicable. 

Chapter 148, Acts 1931, 42nd Legislature, p. 248 (Art. tile, 

V.A.C.S. 1925, an amtided) ptividee for the condemnation or purchase 

by coantlee or incorporated &ties of land for perk or play grounde and 

for cooperation with the State Parka Board. Section 1 thereof is ae 

ronma: 
Emorable Tan Xoore, Page 4 (O-7456) 

“That auy county or any incorporated city 0r thle 

State, either Independently or in cooperation with each 

other, or with the Texas State Parke Board, may aoquire 

by gift or purohaeo or by aondematlon prooeedluge, landn 

to be ueed for publlo parke and playgrounds, euoh lmde to 

be situated in any looallty In thle State and In any 

rited traote deemed eultable by the mvernlng body of the 

city or county acquiring name; provided, however, that lande tD 

be aoqulmd by any ouch city or oomty for maid purpoeee may 

be, In the dleoretion of the govemlng body thereof, eltuated 

wlth7n#e State, either wlt;oIn or vithout the boundary llmlta 

of each city, b-,t Glthln the b&&s-y Umlte of eald ootmty 

and within the limits of eeld county wherein eald oity lien 

or le eltuated.” 

Section 2 t.h0re0r, ae effective at the time or the aoquieltlon 

of thin perk, reade au rollowe: 

“To ay ior lanas for perk purpoeee, an inoorporated 

city and P or county may issue bonde, and may levy a tax not 

exceeding Ten (10) Cents on the One Hundred Dollare ($100) 

valuation of taxable property in ouch city and/or county to 

pay the interest end provide a sinking fund to retire such 

bonda, the leeueuce of ouch bonds, and the collection of taxes 

in payment thereof to be in accordance with the pro~lelone or 

Chapter 1, Title 22, Revleed Civil Statutes of Texas, 1925, 

@verning the lonuance of bonds by cities, tome, and/or counties 

in this State; this Section ehall be oonetrued to authorlie 

the levying of eaid tax not exceeding Ten (10) C&&e ti the 

One Hundred Dollem ($100) valuation notwlt&etundlzig the 

provlslone of Article 6080 of the Revleed 01~11 Statute8 of 

1925." 

Sootion 3 or the act is +e rollova: 

“All parke acquired by authority of this Act ahall be 

under the control end manageme& of the city or oount~ 

acquiring mme or by the city and county .jolntl& where they 

hare acted JolnrJy in aoqulrlng ~eame, proTided that the Cammieeionere ’ Court and the City Commiselon or City CounoiT 

may, by aareement with the State Parke Board, turn the land 

over to the State Perks Board to be operated ae a pub110 

park, the exDenee of the Improvement and operation of euoh 

park to be pald by the county and/or city, according to the 

agreement to be made between such muuicipalltlee and the 

State Parke Board. 

“All countlee and incorporated oltlee are authorized 

to levy e tax of not exceeding five (5) oenta on the One 

Hundred ($100.00) Dollare property valuation to oreate a 

. 
- c 

Honorable Tom Moore, Page 5 (O-7456) 

fund for the improvement aud operation of euoh psrke.” 

(Rnlphaels our6) 

Sootion 1 or Article 60&e, eupra, provide8 that “any county 

or any inoorporated olty of this State, either lndopondently or in 

oooperatlon with eaoh other, or with the Texas State Parti Board, may 

aoqulre by gift or mrcheee or by oondenmatlon pmoeodinns, land8 to 

be used for pub110 parke . . .” (Emphasle ours). The land8 which the 

County of Caldwell aoqulmd by leeuance of the warrante on its general 

fund were acquired by purchase. 

Section 2 or Article 608~3, eupra, provides that to pay for lands 

for perk purpoeee, a county may issue bonde .smder the provlelone of Chapter 

1, Title 22, R. C. 6. l925; aud Article 701 contained in said chapter end 

title provides that the boude of a county ehallnever be lesued for any 

purpose unless a proposition for the leauance of such bonda shell have been 

first eubmltted to the qualified voter6 who are property tiupayere of ouch 

oounty. 

‘-... 

i.; While the City of Lo&he& did cmp,ls vith the provlelone of 

Section 2 of Brtlcle 608le, ae to theiseuence or bonds In ocmpllauce with 

Article 701, the prooeede of which were ueed to pay for part of the land 

included ln the perk, neverthelees, the County or Celdtiell in no way attempted to ocunply with either Section ~2 of Article 608l.e or Article 791 in 

I paying for the lands which it caused to be deeded to the State or Texas and 

which are included In the Lockhart State Park. 

It is a vell-eettled principle of law that a county and ite 

cQmnleslonere~ court have no powere or duties except thoee which are clearly 

set forth and defined $n the Constitution and pertin&it i+Auteei Hiti 

County Vei Remllh, 273 S. U. 292; Edwards County ?e. J&in@, 33 8. W. 

585, end caeee therein cited too numeroue forrepetition herein. 

The above quoted statutes provide, the manner end method by ,whlch 

counties may establish end finance county parl!s, either Independently or 

In cooperation vith t3x+ 0ltles. It’ ie a well-re&oeplzed principle or law 

that where the Leglelature preecrlbee a de$lnite, oei’te3.n and fired method 

of ,prooedure for a City or County to follow 1p .the erecation of its govemmental functions other methode are by impllcetl~ of ,Lav excluded. 

Footer ve. City of Waco, 255 S. V. I.@+ (Sup. Ct.). 

In view of the fact that the County of Caldwell dw hot aoqulre 

the hnds included within the Lockhart State Park ln the mimer provided 

by Article 6081e, V.A.C.S., an amended, the Comieelouers’ Court of Caldwell County is without authority to levy a tfu or 5 cents on the $100 

property valuation In the County of Caldwell to create a Amd to help 

defray the expeueee of maintenance and, operation of this park. 
Honorable Toln Moore, Page 6 (O-7456) 

There are other ralld legalbaeea for thle holdlug, but in 

rlew of the forego- it is not neoeeeary to dleouae theee legal queetlcma 

at thla tlm3. ThieDepartmsntexpreeslyrefralna fmmpaaelngupon the 

legality of the, aoquleltlon of the land by the Oounty of Caldwell whloh 

wan lnoluded in the Lookhmart State Park. 

By /e/ 0. K. Rloharde 

C. K. Rlohards 

Aeeletant 

BY /a/ B.W.B.