Mr. Enrique H. Pane OpinionNo. M-809

CountyAttorney El Paso County ,Re: 1)Authority of the El Paso Room 201 City-County Bldg. Council of Governments to El Paso, Texas 79901 enter into contractwith DonaAna County, New Mexico, for development of a recreational area. 2)Authority of City of El Paso to enter into a contractwith El Paso Council of Governments for development of recreational area partly in city limits and partly in Dear Mr. Pena: New Mexico.

In your recent letter you givebackground information concerningthe organization of the El Paso Council of Governments and request the opinion of this office on the following questions:

1. Whether the El Paso Council of Gwernments can enter intoa contractwith Dona Ana County, acting through its Board of Commissioners, for the development of a recreational area where the land liesboth in the State of New Mexico and the State of Texas.

2. Whether the City of El Paso is authorized to enter into a contractwith the El Paso Council of Governments for the development, operation and maintenance of a recreational area, where such recreational area lies partlywithin the city limits of the City >fEl Paso, part of it is in the County of El Paso, and a portion of the area iswithin the County of Dona Ana, State ofNew Mexico.

We are of the opinion that if the El Paso Council of Governments enters into a contractwith the City of El Paso, whereunder the city is to develop, operate,and maintain as a -4331-Mr. Enrigue H. Pena. page 2 (M-889)

recreational area the land described inyour inquiry, then the contract may also include as a party Dona Ana County, New Mexico. That county'sobligationunder that contract isprimarily to contribute $25,000 to the development of the area and to maintain police patrol over the land situated inNewMexico.

A contract of this kind iswithin the purview ofArticle lOllm,Vernon's Civil Statutes*, under which the El Paso Council of Gwernments derives its powers. The Legislature clearly drafted Article 1Ollmwith a view to giving the Councilbroad powers to accomplish thepurposes of the Act; it shouldbe given a liberal constructionto carry out.the purposes and objectives. Attorney General's OpinionNo. M-689 (1970). Section lD of this Article reads, inpart, as follows:

,I

. . . It is the intention of thisAct to permit the greatest possible flexibilityamong the variousparticipating governmentalunits to organizeand establish Commissionsmost suitable to the nature of the area problems as they see them." Further evidence that the Legislaturedid not intend to restrictby thisAct the powers of thegovernmental units acting through the Council is found in the following language from Section 3 ofArticle 101lm:

” . . . But nothing in thisAct shallbe construedto limit the powers of the participating gwernmental units as provided by existing law
. . ." Section 7 of this Article provides for interstate cooperation as follows:

*Referencesto and quotations from thisArt. 1Ollm include the amendments to itmade by S.B. 242, Acts 1971, 62nd Leg., R.S., effectiveMay 28, 1971.

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Mr. Enrique H. Pena, page 3 (M-889)

"Section7. Interstate Commissions. With advance approval of the Governor, a Commission includinga region or area which is contiguousto an area lying in another state may joinwith any similar commission or planning agency in such areas to form an interstateRegional Planning Commission ormay permit the Commission in the contiguousarea to participate in the planning functions of a Commission formed pursuant to thisAct, and the funds prwided under the provisions of Section 6 of this Act may be commingled with the funds prwided by the state governments having jurisdictionover the contiguous areas." Although the projecthere considered would notbe developedby an interstateRegional Planning Commission as authorizedby Section 7, we note that the Legislature evidencedby this Section its recognition of the need for and its approvalof interstate cooperation.

Section 4(a) expressly authorizes theCommission to make plans for the development of the area, includingparks and recreation sites.

Section 4(d) 'providesauthority for the Council to acquire a leasehold interest in the subject land in the following language:

"(d) A Cosunission may purchase, lease or otherwise acquire, hold, sell or otherwisedispose of real and personal property. . . ." Authority for the Commission to assist in the development of the recreational area is found in the following language from Section 4(b)%

II

. . .The commission may assist the participatinggovernmental units individuallyor collectively in carrying out plans or recommendations developedby the Commission.
. . ."
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Section 4(c) ofArticle 1Ollm provides that the Commission may contractwith one ormore of its member governments to perform certain services. We think that the three party contract here discussedwould be authorized, even though Dona Ana County is not a member gwernment, because the contract to perform the service of developing and maintaining the recreational facility is undertaken by the city of El Paso, a member government. We see no reason why bona Ana County could not join as a supplier ofmoney; that county already has a duty under New Mexico law to maintain order in all that major portion of the park area which lies inNew Mexico.

Section 6(a) ofArticle 1Ollm reads as follows: "Funds. (a)A Regional Planning Commission is authorized to apply for, contract for, receive and expend for itspurposes any funds or grants from any participatinggwernmental unit or from the State of Texas, federal government, or any other source." It also shouldbe observed thatArticles 4413d-1 and 441311-2,

Vernon's Civil Statutes,which.are to be considered in pari materia with Article lOllm, declare the public policy of the state is n . . . to render technical assistance and to assume responsibility for coordinatingrelationshipsbetween localgovernmental units and federal agencies.
. . ." in any federal grant program. It is our opinion that the powers of the City of El Paso and the Council of Governments,both of which are gwernmental units and political subdivisions of the state, extend to Dona Ana County and the Federal agencieswith respect to the proposed contract.

In reply to your second question, our answer is in the affirmative, if:

(1)The cityholds the land as one of the lesseesunder the Federal governmentwhich owns all of the land: and

(2)The city administers and operates the recreational facilities, either singly or jointly in cooperationwith one or more other gwernmental units. -4334-Mr. Enrique Ii.Pena, page 5 (M-889)

The City of El Paso is charteredunder Chapter 5, Special Laws of Texas, Acts of the 30thLegislature, Regular Session, 1907, page 24. Section 1 **of** thatAct prwides that the city II

. . .may take, acquire,hold and purchase, lease, grant, sell or convey such property, real, personal ormixed, as the needs or purposes of the corporationmay require, eitherwithin or without the limits of the city, includingreal estate without the limits of the city of El Paso, for
. . . for public parks
. . ." (Emphasissupplied.) Section 2 of theAct of 1907 includes the following language: II

. . .and it shall have and exercise all pwers ofmunicipal government not prohibited to itby this charter orby some general law of the State of Texas, orby the provisions of the Constitution of the State of Texas." We are of the opinion that Section 1 of the Act of 1907 authorizes the city to acquire a lease on the land in question and to develop it as a recreational facility. The statute expressly authorizes the holding of real propertywithout the limits of the city, and does not restrict such holding to landwithin the county or the state. The broad powers granted under Section 2 of the same Act would also authorize suchholding.

We are of the opinion that thebroad powers granted to the city under Section 2 will permit the city to contractwith the El Paso Council of Governments for the development, operation and maintenance of the recreational area.

In addition to theAct of 1907 chartering the City of El Paso there are Texas statuteswhich authorize a city to develop and maintain recreational facilities. We direct your attention toArticle 1015c-1,Vernon's Civil Statutes. An examination of that statute discloses the following features:
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1. A city is expressly authorized to establish, operate and supportpublic recreational facilities. Sec. 1:

**2.** The statute does not restrict the location of the park to the city, county, or state.

**3.** A city W . . .may establish,provide, acquire,maintain, construct,equip, operate and superviserecreational facilities and programs either singly or jointly in cooperationwith one (1) or more other gwernmental units." Sec. 3.

**4.** The statute expressly permits a city to establish, operate or support public recreational facilitiesand programs on landheld as lessee. Sec. 7.

**5.** The statute expressly permits the city to accept any gift ofmoney or other personalproperty for use in the establishment,operation, or support of public recreation facilities and programs. Sec. 7. SUMMARY Dona Ana County of New Mexico may be a third party to the proposed contractbetween the El Paso Council of Governments and theCity of El Paso, under which the City of El Paso is to develop, operate, and maintain as a recreationalarea land which lies partly in the City **of** El Paso and partly in Dona Ana County, New Mexico. DonaAna County's obligationunder that contract isprimarily to contribute $25,000 to the developmentof the area and to maintain police patrol over the land situated inNew Mexico. The City of El Paso is authorized to enter into the proposed contractwith the El Paso Council of Governments for the development,operation and maintenance of a recreational area,where the land constituting such recreationalarea liespartly within the city limits **of** the City, partlywithin

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Mr. Enrigue H. Pena, page 7 (M-889)

the County of El Paso, and a part **of** the land is within the County of bona Ana. State of New Mexico. The citywill hold the land as one of the lessees and will administer and operate the recreational area, either singly or in cooperationwith one or more other governmentalunits. Art. lOllm, 1015c-1, 4413d-1 and 441311-2, V.C.S., andActs 30th Leg., 1907,R.S., Spec. Laws, Ch. 5, P. 24 (Charterof the City of El Page). ,/ i V ry truly y rs, : I .' 9.4 @$ t!i

;:_ j!? WF C. MARTIN Atto ey General of Texas Prepared by James S. Swearingen Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Melvin Corley Sam Jones Scott Garrison Austin C. Bray, Jr. MEADE F. GRIFFIN Staff LegalAssistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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