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Honorable Tom Blackwell

District Attorney Travis County Austin, Texas OpinionNo. C-53

Re: Various questionsrelatlng to unimproved property on the Hlghland Lakeswithin

Dear Mr. Blackwell: Travis County, to be made into a countypark.

Your request for an opinion reads in part as follows:

"TheCounty Auditorhas requested that

your legal opinion be obtained concerning the expenditureof County funds on land leased by the County from the LCRA for Public Park purposes.

"FACTS: The LCRA and others own fee simple

title to unimproved property located on certain of the Highland lakes within Travis County and not within the boundary of any incorporatedcity, town or village. This landhas been offered to Travis County on long term leases (50-99years) without cost providing Travis Countywill make and maintain a public park out of the land.
'QUESTIONNo. 1. Out of what funds canTravis

County legallypay for the construction of permanent improvementson such land?
"QUESTIONNo. 2. Do the constructionof roads,

boat ramps, and other conservationmeasures come under the same rule as permanent improvements.
"QUESTIONNo. 3. Out of what Funds can Travis

County legallypay for the necessary cost of maintenance and supervision of such park?"

-261-Hon. Tom Blackwell, Page 2 (c-53)

Section 1 of Article 6078, Vernon's Civil Statutes, provides:

"EachCommissioner Court is authorized to levy and collect a tax not to exceed five (5~)

cents on each one hundred dollars assessed valuation of the county for the purchase and Improvement of lands for use as county parks. No such tax shallbe leviedand collected until the proposition is submitted to and ratifiedby the property taxpaying voters of such county at a general or special election called for that purpose, provided,a two-thirdsmajority of the property taxpaying voters of such county, at an electionheld for such purpose shall determine in favor of such tax. If said court desires to establishtwo or more of such county parks, they shall locate them In widely separated portions of the county. Said court shallhave 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 constructpavilions and such otherbuildings as theymay deem necessary, lay out and open drivewaysand walks, pave the same or any part thereof, set out trees and shrubbery,construct ditches or lakes, andmake suchother improvementsas they may deem proper. Such parks shall remain open for the free use of the public under such reasonable rulesand regulationsas such court may prescribe."

In construing the above quotedprovisions,it was held in Attorney General's Opinion 0-1082 (1939):

"Article6078, Revised Statutes,authorizes the commissioners' court of any county to levy and collect a tax not to exceed five cents on each one hundred dollars of assessed valuation of the county 'forthe purchaseand improvement of lands for use as countyparks,' after the proposition has been submittedto and ratifiedby the property tax-payingvoters of the county. The full power and controlover such a park Is vested in said court and it 'may levy and collect an annual tax sufficientin their judgment to properly maintain suchparks

-262-Hon. Tom Blackwell, Page 3 (c-53)

Andy build and constructpavilions and such. otherbuildings as theymay deem necessary, lay out and open driveways and walks, pave the same or any part thereof, set out trees and shrubbery, constructditches or lakes, andmake such other Improvementsas they may deem proper. Suchparks shall remain open for the free use of the'publlc under such reasonable rules and regulations as said courtmay prescribe.'

"It is obvious that the money with which to purchase a park site and to Improve the
samemust be paid from the general purpose or the permanent Improvement fund of the countyderived from the ad valorem tax levied and collected under the authority conferred and limitations Imposedby Section 9, Article 8, supra. The statute is silentas to which of these funds is the proper one~tobear,the expense. It is provided In Article 6079, Revised Civil Statutes, 'Allrevenue from the sale of such privileges or concessions shall go into a fund for themaintenance of said parks.'

"The Legislaturehas authorized any county of this State to establishand maintain public parks. Such parks are established for the benevolent purpose of promotinghealth, happiness and general welfare of not only the citizens of the county, but of the people generally. The character of the improvements specifically mentioned in the statuteare designed to accomplish that purpose. Lewis v. City of Fort Worth (Sup.Ct.)89 S.W.(2d) 975.
II

. . . 11 Article 6078 specificallyauthorizes the lo&t to purchase land and improve the
sameby constructingbuildings thereon, etc. It follows that the land for park purposesmay be acquired and paid for out of the same fund available for the erection of public buildings and other permanent improvements. It is our further opinion that current operating expenses of suchparks must be paid out of the general purpose fund of the county." Likewise, it was held in Attorney General's Opinion v-744 (1948) : -263-Hon. Tom Blackwell, page 4 (c-53)

"Tax levied for park improvement is
a charge against the County Permanent Improvement Fund and that levied for malntenance is a charge against the County General Fund."

In Carroll v. Williams, 109 Tex. 155, 202 S.W. 504, 509 (1918),the Court stated:

"Taxes levied ostensibly for any specific purpose or class of purposes designated in section 9 of artlcle~VII1, supra,must be applied thereunto, in good faith; and In no event and under no circumstancesmay there be expended, legally, for one suchpurpose or class of purposes,.taxmoney in excess of the amount raised by taxation declaredly for that particular purpose or class of purposes."
Under the facts submittedwith your request, Travis will obtain the use and~benefit of the property on long term leases (50-99years), in consideration for the County establishing andmaintaining a publicpark out of the land. It is our opinion that suchpurpose constituted a public purpose and is within the expressedpower ranted the commissioners court by the provisions of Article 2078, vernon's Civil Statutes.

In view of the foregoing authorities,you are advised that the construction of improvementson such landmust be paid out of the Permanent ImprovementFund. You are further advised that the constructionof boat ramps and other permanent structures (Includingnecessary repairs and improvement of such structures)must be paid out of the Permanent Improvement Fund. The constructionof roads (includingmaintenance and repair of such roads),however,must be paid out of the Road and-Bridge Fund of them County. Carrollv. Williams,

T In Attorney General's Opinionv-831 (1949), it was he1 that the Permanent ImprovementFundmay not be utilized for the purpose of purchasingmaterials and supplies for the construction of fences for adjacent landownerson rights of way on new county roads and highways, stating that if such expense was a necessary expense to the construction of the road, it would have to be paid out of the Road and Bridge Fund of the County. We believe the sameprinciple is applicable to the construction of roads for the proposed county park. You are therefore advised in answer to your secondquestion that the construction of roadsmust be paid out of the Road and Bridge Fund of the County (includingnecessarymaintenance and repair of such roads).

-264-Hon. Tom Blackwell, Page 5 (c-53)

that such In ansner to your third question,you are.advised the necessary cost of maintenance and supervision of park 1s paid out of the GeneralFund of the County. Attorney General's OpinionsV-744 (1948)and O-1082 (1939). However, as pointed out above, the necessaryrepairs and improvements to structuresbuilt in the park must be paid out of the Permanent ImprovementFund, and necessarymalntenance and repair of roads in the parkmust be paid out of the Road and Bridge Fund.

SUMMARY
The Commissioners Court of Travis County may legallypay for the constructionof permanent improvements (includingnecessary repair and improvementof Buch structures) on a proposed countypark out of the Permanent Improvement Fund. The construction of roads in suchpark (includingmaintenance and repair of such roads) is paid out of the Road and Bridge Fund. The cost of maintenance and supervisionof suchpark is paid out of the General Fund of the County. However, any repairs and improvementsto structuresbuilt in the parkmust be paid out of the Permanent ImprovementFund, and maintenance and repairs of roads in the park must be paid out of the Road and Bridge Fund.

Yours very truly,

WAGGONER CARR Attorney General

Assistant JR:ms

-265-Hon. Tom Blackwell, page 6 (C-53)

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

J; C. Davis V. F. Taylor Ernest Fortenberry James N. Stofer

APPROVED FOR THE'ATTORNEYGENERAL By: Stanton Stone

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