Honorable TomKoore

'CountyAttorney Caldwell County Lookhart, Texas

Dear Sir: opinion HO. o-7456 Be: Underthe facte submitted and mder the provleione of Article 60&e, Section3,B. c. s., can CaldwellCountyle&ly levy a tax of not exceeding five (5) centaon the $100property valuation to create a fund to help defray the expeneee of mainterwnceand operatlonof the park in question?

Youhare requested the opinion of tbie Departmentupon the rollow~ fa&lal s1ttvat1on:

TheLockhartStateParkle aparkeltuated about3mlles outside the city limits of I&ldmrt, Texaii, endwlthlt%aldwe~ Comityofvhlch - Lookhart Ii the oonnty eeati~ In 1933art.& l.o&loltlmne becameinterested li securing a park for L&sha.rt andafter eeveralmeatinge a looalcoimnittee andarepresentitlve of theStateParkeCcmrmlseIonof theState ofTexas entered lntoaparolunderetandingthatlfthe lands foraparkeouldbe eecured, an effort would be madeto have the United States C+-venmentpro; 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 andSe&ion 2a of Article 60&e, V.A.C.S. After the bmd ieeue WE oarrled, the City of Lockhart conmencedthe pizchase of varloue tracts of land, but the amountof the bond leeue wae inaufficlent to purchaee all of the lands deemednecessary for the ocmpletedpark.

A group of c1tize.m camebefore the Comnieelonere Court of Caldwell Countyand requested that the Countyaeelat ia the ccmpletlon of the project. In Auguet, 1935, the CcaunieelonereCourt in a regular meeting voted to donate "a sumnot IB exceed $1,300.00 for the purahaee of lend for tie Iookhert State Perk," said emuto be paid by l&e issuance 4 cHonorable Tcmtire, Page 2 (0-7456)

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

County; and the Countyunder the foregoing autiorlty purohared land at ,I a ooet of $1,107.00 whlohwaedeeded for park purporer.

Photostatlo oopler of the varloumdeed* 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**  andpereels fonulng the abon, totalaoreage. Of theee deede, 5 are frcui the original grantore to the State of Texanae grantee, reolting the eonslderatlon a.8having been paid by the City of Lookhart, audeaah 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 mayormadolty oc3umleelonere, that the State of Texanwill aaoept said land ae a STATE PARK endwill take poeeeealon and improve eald land ae a STATE PARKwithout ooet or expanse to the City of lookhart,, andwill maintain such land ae euoh a park without ooet or expenmeto the City of Lookhart.*

Each of aalddeedn of oonreyanoe oontained a revereion ol~une to the. effeot +&atlf at any tm t&e lraad la abandonedby the State of Texae ae a State park and it oeaeee to maintain the aamean 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 madeby the orlglnal grantors to the State of Texana~ grantee, reoltiag the oonslderatl~ ae haying been paid by the County of Oaldwell. Two or there 00nmyauoe6 oontaln the sameolaueee ae to the expenee of operation andmalntmsaae ae ase found in the deeda of oonveyanoewherein the ooneideratlon waepaid by the city or zockhart, andaIr0 oontaln the lm rererri~~ omme ia favor or the Countyof Caldwell. Thethird deed of oonveymoe, being fm 4 v3 aoree, while not oontalning ruoh a rpeolfia olauae oormernlng-operation
andmalntenanoo le 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 bolnngamodin 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 crapmalntaln l(11114 ae 

### a part of eaid parlr and aontalnlng a rimlllar rororelca ol8ueo to Oaldwoll Oounty. ,Honorable TomMoore, Page 3 (o-7456)

Thepark, having been completed in 1940, waeturned over to the State Parke Bctardend the State of Texae, but without anywritten agreementbetween the City of Loci&art, acting through lte mayorend oonmleelonere, and the State ParlreBoard for the oontrol and operation of the park. Theminutes or theCity Ccmmleel0nrerl.eOtat the time or the oalllng of the eloetlon for tie bond8that upon oompletlon of the park
nameehall be turned overto the State Parke Board.

A written contra&. wanentered into between a local caPlrmlttee of cltlzene of Lockhert to cooperatewith the State Parka Board for the operation of a golf couree situated in andvhlch le a part of the park, which hae expired according to its osmterms but which has been continued by p-1 agreementbetween the qemeparties. It appears that the State Parb Board did not have sufficient appropriation to operate the perk efficiently, and therefore the local ccaomltteeabove mentioned called upon the City or Loctiart and tie Conmieelonere Court or Caldwell County to help defray the operating expeneee. Caldwell Countythrough ita Camnleeionere Court then agreed to danate $25.00 a monthto help defray the operating expenses of the park, which funds vere paid froanthe general funde of the county to the Lookhart Golf Aseoclation, but which were not pald to the State Parke Board. TheCitr or Lo&hart acting through its city ooimcll aleo voting to donate $50.00a monthfor the owratlon and maintenance of the perk which cumwae later tioreased to. the cumof $100.00
a month, which cumwaepaid out of the city general fund but not to the State Parke Board.

Baaedon the foregoing factual situation, you have aeked the r0llclwiag

question:

'~ "In vi&wof these facts andArticle 6C8le, Section 3,Revised Civil Statutei, oen Caldwell Coimty~ legally levy a tcu ofnot 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 6078provides for the acquisition, lmprovamentandoperation of parka by aountlee. Article 6080provides for the acquleltlon, improvementand 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, 42ndLegislature, 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 TanXoore, Page 4 (O-7456)

“That auy county or any incorporated city 0r thle State, eitherIndependently or in cooperation with each other, or with the Texas State Parke Board, mayaoquire by gift or purohaeo or by aondematlon prooeedluge, landn to be ueed forpubllo parke andplaygrounds, euoh lmde to be situated in any looallty In thle State and In any rited traote deemedeultable 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 maidpurpoeee 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 andwithin 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 mayissue bonde, andmaylevy a tax not exceeding Ten (10) Cents on the OneHundredDollare ($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 paymentthereof 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 OneHundredDollem ($100) valuation notwlt&etundlzigthe provlslone of Article 6080of the Revleed 01~11Statute8 of 1925."

Sootion 3 or the act is +erollova:

“All parke acquired by authority of this Act ahall be under the control endmanageme&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 orCity CounoiT may, by aareementwith the State ParkeBoard, turn the land

overto the State Perks Board to be operated ae a pub110 park, the exDeneeof the Improvement and operation of euoh park to be pald by the county and/or city, according to the agreementto be madebetween 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 TomMoore, Page 5 (O-7456)

fund for the improvementaud operation of euoh psrke.” (Rnlphaelsour6)

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 oondenmatlonpmoeodinns, land8 to be used for pub110parke

. . .” (Emphasleours). The land8which 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 mayissue bonde .smderthe provlelone of Chapter 1, Title 22, R. C. 6. l925; audArticle 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** whoare 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 Countyor Celdtiell in no wayattempted to ocunply

with either Section ~2 of Article 608l.eor 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 lawthat a county and ite cQmnleslonere~ court have no powere or duties except thoee which are clearly set forth and defined $n the Constitution andpertin&it i+Auteei Hiti CountyVei Remllh, 273S. U. 292; EdwardsCounty?e. J&in@, 33 8. W. 585, end caeee therein cited too numeroueforrepetition herein.

The above quoted statutes provide, the mannerendmethodby,whlch counties mayestablish 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 methodeare by impllcetl~ of ,Lavexcluded. Footer ve. City of Waco, 255S. V. I.@+ (Sup. Ct.).

In view of the fact that the Countyof 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 TolnMoore, 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 OountyofCaldwell whloh
wanlnoluded in the Lookhmart State Park.

By /e/ 0. K. Rloharde C. K. Rlohards Aeeletant

BY/a/ B.W.B.