Honorable G. A. Walters

County Attorney San Saba County San Saba, Texas

Dear Sir: OPlnlon No. o-2849 Re: ,Parks- Commissioners1Courts

Your request for opinionhas been received and': carefully consideredby this department. owequote from your request as follows:

"Our commissionerscourt Issued awarrant for $10,000 for paving around the square, the courtiouse;and fourper cent tax levied to pay Interest and principal and create a sinking fund to allwarrants and pay interest. Now, there is sufficientmoney accumulated **in** .thls fund after the pavingwas completed to render allwarrants and tay Interest and leave a surplus of about $2, 00 to the credit of the permanent improvement fund. The City of San Saba
owns the premlses'deslred to be Improved for a public park. The city Is unable to finance these improvements to supplement the government funds promised for the project. The city asked the county to finance this improvementon thesepremises. My advice to the commissionerscourtwas that theywould not be permitted to Invest this $2,400 in such improvementson the cityproperty. I advised them to secure a transfer from the city to the county of thesepremises and then the county could use this $2,400 for these lmprovements andwould not be required to complywlth Art. 6078 above referred to by levying a tax and collecting the same by submitting to the tax paying voters, of the county a special election called for that purpose requiring that twothirds of themajority of the tax paying voters of said county favor such tax.

."Now,what the commissionerscourtwants to know iswhether or not this $2,400 can be used byHon. G. A. Walters - page 2

the county for improving thisproperty belonging to the citywithout having the same transferred to the county? Second, If the city does
or does not transfer the property,will the countybe required to submit thematter at a special election and bonds issued for that purpose regardless of the fact that the countynow has on hand this $2,400 to the credit of the improvement fund?

"I am unable to find any statutory pravisions or decisionsby the courtupon which to basemy opinion and of course I may be wrong. We are very anxious to have this part improved and this seems to be the onlyway that it can be done if authorized."

Article 6073,Vernon's Annotated Texas Civil Statutes, reads as follows:

"Each commissioners court Is authorized to levy and collect?

a tax not to exceed five cents
on each $100 of assessedvaluation of the county for the purchase and Improvement of lands for use as countyparkswhich shall consist of not more than one hundred acres, and shall not exceed more than four in any one county. No such tax shall be levied and collecteduntil the proposition is submitted to and ratified by the property tax-payi&ng voters of the county at
a general or special election called for that purpose, provided, a two-thirdsmajority of the property taxpayingvoters of such county, at
an election held for such purpose shall determine In favor of said tax. If s,aldcourt desire? to establish two or more of such county parks they shall locate them in widely separated portions of the county. Said court shall have full power and control over any and all such parks and may levy and collect an annual tax sufficient in their judgment to properlymaintain such parks and build and constructpapillons and such other buildings
as theymay deem necessary, lay out and open driveways andwalks, pave the same or any part thereof, set out trees and shubbery, construct ditches or lakes, andmake such other lmprovements as theymay deem proper. Such parks shallHon. G. A. Walters - page 3

remain open for the ‘freeuse of the public under such reasonablerules and regulations
as said courtmay prescribe."

Article 60&e, Sections 1, 2 and 3, ,Vernon'sAnnotated Texas Civil Statutes, reads as follows:

2S.e~. 1. That any county or any incorporated city of this Sta,te, either independently
or in cooperationwith each other, orwith the Texas State Parks Board, #ay acquireby gift
or purchase or by condemnationproceedings, lands to be used for public parks and playgrounds, such lands to be situated in any locality in this State and in any sized tracts deemed suitable by the governingbody ~ofthe city or county acquiringsame; provided,however, that lands to be acquiredby any such city or county for said purposesmay be, In the discretionof the governingbody thereof,situatedwithin the State, eitherwithin orwithout the boundary limits of such city, but within the boundary limits of said county andwithin the limits of said countywherein said city lies or Is situated.

TSec. 2. To pay for lands for parks purposes, an incorporated city and/or countymay Issue bonds, ,and

may levy a tax not exceeding Ten (10) Cents on the One Hundred Dollars ($100) valuation of taxableproperty in such city and/or county to pay the interest and provide
a sinking fund to retire such bonds, the issuance of such bonds,~ and the collection of taxes in payment thereof to be in accordancewith the provisions of Chapter 1, Title 22, Revised Civil Statutes of 1925, governing the Issuance of bonds by cities, towns, and/or counties in this State; this section shall be construed to authorize the levying of said tax not exceedingTen (10) Cents on the One Hundred Dollars ($100) of valuationnotwithstanding the provisions of Article 6080 of theRevised Civil Statutes of 1925.

"Sec. 3. All parks acquiredby authority of thisAct shall be under the control and management of the city or county acquiring same or by the city and county jointly,where theyHon. G. A.~Walters, Page 4

have acted jointly In acquiring same, provided that the Commissioners1Court and the City Commission or Clty~councllmay, by agreementwith theState 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 theState Parks Board.

"All counties and incorporated cities
are authorized to levy a tax of not exceeding five (5) cents on the One Hundred ($100.00)Dollars property valuation to create a fund for the Improvementand operation of such parks."

We quote from 11 Texas Jurisprudence,page 609, as follows:

"The Constitutionprescribes themaximum rate of taxes for general purposes, for roads and bridges, for juries, and for permanent improvements,respectively. The monies arising from taxes levied and collected for each of the enumeratedpurposes are constltutlonal funds; and the commissioners'court has
no power to transfermoney from one fund to ~ar&%heror to expend, for one purpose, tax money raised obstensibly for anotherpurpose.
"The Immediatepurpose of the provision is to limit the amount of taxes thatmay be raised for these several purposes, respectively; but it is also designed to inhibitexcessive expenditures for any such purpose, and to require that any and allmonies raised by taxation for any purpose shall be applied to that particularpurpose and to no other."

The above quotation fromTexas Jurisprudence is supportedby the cases of Commissioners'Court of Henderson County vs. Burke, 262 SW 94; Ault vs,. Hill County, 116 SW 359; Section 9, Article 8 of the State Constitution; and Carroll vs. Williams, 202 SW 504.

It is awell settled principle of law that a county and its commissioners'court has no powers or duties. Hon. G. A. Walters, Page 5

except thosewhich are clearly set forth and defined in the Constitutionand pertinent statutes. Hill County vs. Hamilton, 273 SW 292; Edwards County vs. Jennings, 33 SW 585, and
cases therein cited toonumerous for repetitionherein.

The above'quotedstatutes provide themanner and method by which countiesmay establish and finance countyparks, either independentlyor In cooperationw$th the cities. It 1s
awell recognizedprinciple of law thatwhere the Legislature prescribes a definite, certain and fixedmethod of procedure for a city'or county to follow in the execution of Its governmental functions othermethods are by implicationof law excluded. Foster vs. City of Waco, 255 SW 1104 (Sup.Ct.).

We quote from Opinion No. O-905 of this department
as follows:

"Article 6078 refers exclusively to parp.bought andmaintained by a county, and Article 6080 refers exclusively to parks bought andmaintained by a city, any authority for the Qurchase of a park by the county to be maintained by the citymust come If at all from Article 6081e, Section 3 of this latter article provides, specifically, thatpark lands acquired under its provisions shall be managed and controlledby the city or county acquiring same. If the park is acquired jointlyby the city and county, theymust jointly control it. No authority Is to be-foundhere for acquisitionby the county andmanagement and controlby the city, oti

vice versa."

We quote from opinionNo. O-2140 of thisdepartment
as follows:

"It is, therefore,our consideredopinion that a commissioners'court does not have authority tomake expenditures from the permanent improvement fund for the purpose of Improving county parks, In the absence of a compliancewith one of the above quoted artlcles. (Articles 6078 and 6081e). Since neither of these statuteswere compliedwith, it naturally follows thatyou cannot legally approve thewarrants authorizedby the commissioners' courts to be drawn on said permanent improvement fund in payment of the costs of the contemplated improvements."__.. .

Hon. 0. A. Walters, page 6

We enclose herewith copies of OplnionsNos. O-905 and O-2140 of this department.

In view of the foregoingauthoritiesyou are respectfully advised that it Is the opinion of this department that the $2,400.00 in thepermanent Improvement fund of the countymay not be used for the Improvement of said park regardless ofwhether or not said park is transferred to the county and regardless of whether or not an election Is had to vote bonds or vote a tax for park purposes.
Very trulyyours

ATTORNEYGENERAL OF TEXAS

WJFzAW:Bt

APPROVED DEC. 3, 1940

Gerald C. Mann Attorney General Of %XaS

APPROVED Opinion Committee by BWB, Chairman By Wm. J. Fanning Assistant