Honorable G. A. Walters 

County Attorney 

San Saba County 

San Saba, Texas 

Dear Sir: 

OPlnlon No. o-2849 

Re: ,Parks - Commissioners1 Courts 

Your request for opinion has been received and': 

carefully considered by this department. owe quote from 

your request as follows: 

"Our commissioners court Issued a warrant 

for $10,000 for paving around the square, the 

courtiouse; and four per cent tax levied to pay 

Interest and principal and create a sinking 

fund to all warrants and pay interest. Now, 

there is sufficient money accumulated in .thls 

fund after the paving was completed to render 

all warrants and 

t 

ay 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 improvement on these premises. My advice to the commissioners court was 

that they would not be permitted to Invest this 

$2,400 in such improvements on the city property. 

I advised them to secure a transfer from the city 

to the county of these premises and then the 

county could use this $2,400 for these lmprovements and would not be required to comply wlth 

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 the majority of the tax paying voters 

of said county favor such tax. 

."Now, what the commissioners court wants to 

know is whether or not this $2,400 can be used by 
Hon. G. A. Walters - page 2 

the county for improving this property belonging to the city without having the same transferred to the county? Second, If the city does 

or does not transfer the property, will the 

county be required to submit the matter at a 

special election and bonds issued for that purpose regardless of the fact that the county now 

has on hand this $2,400 to the credit of the improvement fund? 

"I am unable to find any statutory pravisions or decisions by the court upon which to 

base my opinion and of course I may be wrong. 

We are very anxious to have this part improved 

and this seems to be the only way 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 assessed valuation of the county for the purchase and Improvement of lands 

for use as county parks which 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 collected until 

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-thirds majority of 

the property taxpaying voters of such county, at 

an election held for such purpose shall determine 

In favor of said tax. If s,ald court 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 properly maintain such parks and build 

and construct papillons and such other buildings 

as they may deem necessary, lay out and open 

driveways and walks, pave the same or any part 

thereof, set out trees and shubbery, construct 

ditches or lakes, and make such other lmprovements as they may deem proper. Such parks shall 
Hon. G. A. Walters - page 3 

remain open for the ‘free use of the public 

under such reasonable rules and regulations 

as said court may prescribe." 

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

2S.e~. 1. That any county or any incorporated city of this Sta,te, either independently 

or in cooperation with each other, or with 

the Texas State Parks Board, #ay acquire by gift 

or purchase or by condemnation proceedings, 

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 governing body ~of the city or 

county acquiring same; provided, however, that 

lands to be acquired by any such city or county 

for said purposes may be, In the discretion of 

the governing body thereof, situated within 

the State, either within or without the boundary 

limits of such city, but within the boundary 

limits of said county and within the limits of 

said county wherein said city lies or Is situated. 

TSec. 2. To pay for lands for parks purposes, an incorporated city and/or county may 

Issue bonds , ,and may levy a tax not exceeding 

Ten (10) Cents on the One Hundred Dollars ($100) 

valuation of taxable property 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 accordance with 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 exceeding Ten (10) Cents on the One Hundred 

Dollars ($100) of valuation notwithstanding 

the provisions of Article 6080 of the Revised 

Civil Statutes of 1925. 

"Sec. 3. All parks acquired by authority 

of this Act shall be under the control and 

management of the city or county acquiring same 

or by the city and county jointly, where they 
Hon. G. A.~Walters, Page 4 

have acted jointly In acquiring same, provided that the Commissioners1 Court and the 

City Commission or Clty~councll 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. 

"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 Improvement and operation of such parks." 

We quote from 11 Texas Jurisprudence, page 609, as 

follows: 

"The Constitution prescribes the maximum 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 enumerated purposes are constltutlonal funds; and the commissioners' court has 

no power to transfer money from one fund to 

~ar&%heror to expend, for one purpose, tax 

money raised obstensibly for another purpose. 

"The Immediate purpose of the provision 

is to limit the amount of taxes thatmay be 

raised for these several purposes, respectively; 

but it is also designed to inhibit excessive 

expenditures for any such purpose, and to require that any and all monies raised by taxation for any purpose shall be applied to that 

particular purpose and to no other." 

The above quotation from Texas Jurisprudence is 

supported by 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 a well settled principle of law that a 

county and its commissioners' court has no powers or duties 
. 

Hon. G. A. Walters, Page 5 

except those which are clearly set forth and defined in the 

Constitution and pertinent statutes. Hill County vs. Hamilton, 273 SW 292; Edwards County vs. Jennings, 33 SW 585, and 

cases therein cited too numerous for repetition herein. 

The above'quoted statutes provide the manner and 

method by which counties may establish and finance county parks, 

either independently or In cooperation w$th the cities. It 1s 

a well recognized principle of law that where the Legislature 

prescribes a definite, certain and fixed method of procedure 

for a city'or county to follow in the execution of Its governmental functions other methods are by implication of 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 and maintained by a county, and 

Article 6080 refers exclusively to parks 

bought and maintained by a city, any authority 

for the Qurchase 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 lands 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, oti vice versa." 

We quote from opinion No. O-2140 of this department 

as follows: 

"It is, therefore, our considered opinion that a commissioners' court does not 

have authority to make expenditures from the 

permanent improvement fund for the purpose of 

Improving county parks, In the absence of a 

compliance with one of the above quoted artlcles. (Articles 6078 and 6081e). Since 

neither of these statutes were complied with, 

it naturally follows that you cannot legally 

approve the warrants authorized by 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 Oplnions Nos. 

O-905 and O-2140 of this department. 

In view of the foregoing authorities you are 

respectfully advised that it Is the opinion of this department that the $2,400.00 in the permanent Improvement 

fund of the county may not be used for the Improvement of 

said park regardless of whether 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 truly yours 

ATTORNEY GENERAL 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