Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable I<.R. Bullock
County Attorney
Peoos county
Fort Stockton, Texes
Dear Sir:
county purpose rund.
e the r0uaning question:
'Stat&es, provides for
by the Commissioners
d five cents on the
on for the puzabase
r county parks.
that thia statute is subjeot to
tion 9, of the Constl-
fails to designatewhich of the
oounty funds it shell be a part,
it any, of the oonstitntionalcounty
ie oent park levy should be ebarged.
Peooa County whether the
above meatitinedfive cent levy for oounty parks
should be allooated to and charged as a pert of
the oonstltutional'ooanty*permanentimprovement
fusld,~and, if not, to what establishedfund, if
any, the park fund should be ohargad?*
fnsofar 5~3we have been able to asaertain, the questian
has never been passed upon by our oourts or this DepPrtarent.
Bon. M. 2. Bullook, Pago #2.
We must, therefore,look to the Constitutionand statutes for
our answer.
Sootion 9. Artiolo 8, limits the authority of any oounty
to levy ad valorem tares to oortain purposesand proaoribea
maximum rate for each purpoee. NO OouMq mey levy taxes in
excess or (a) for general edminlatrationpurposes, twenty-five
cents; (b) ror roadsand bridges, fifteen oents; (0) to pay
JUIOTS, fifteen oonta; (d) for the creation of publio bulld-
iuga ... and other porm4nont improvements,twenty-riveoonta
on the one hundred dollars valuation.
bionopraised by taxation for on4 of th8ao enwn4ratod
purpoeosmay not be expended for another of said purposes.
Williams v. Carroll, 182 S.W. 29; 202 S.W. 5M. The ques-
tion is, ti!ereforo,an~lmportantone,
Article 6078, Bovlaod Statutes, authorizoatho oomaia-
aioners* OOUX% of any aouaty to levy and oolleot a tar sot
to exoood rive cents on oeob one hundred dolla$a of assessed
valuation or the oounty vror the purohoao and improvement af
leads for use as oounty pork%,* after the propositfoubaa.
been submitted to and ratlflod by the property tax-poyling
voters 0r the oouuty. The roll power and aontrol wer auoh
a pork la vested in said oourt and it Way levy and oolloot,
an annual tax auffloiontla their judgment to properly main-
tain auoh parks end build end oonstruot pavilionsend auah
other buildings es they smy deem neoessary7 lay out and open
driveweya end walks, 'pavethe same or any part thoreor, set
out Woos end shrubbery, oonstruot ditohea or lakes; and
make suoh other improvomontaas they may doom proper. 8UOh
parka shall remain open for the Oreo us4 of the public under
auoh reasonablerules and regulationsae said court nurypre-
'8oribo.v
It Is obvious that the m4nep with whioh to p~rohoao 4
park site and to lapro~o tho saplomust b4 paId S~OEItho
general purpose or the ponaanant improvementfund of the
county derived freonthe ad velorea tax levied and oollooted
under the euthority.oonferredend limitationsImposed by
Seotion 9, Article 8, aupra. The statute is &lent 4s to
which 0r these funds is tho proper one to bear the expense.
It is provided in Artiole 6079, Revised Civil Statutes,
*All revenue from the sale of eu4h privilegesOr oonoeaal4na
shall go into 4 fund forth4 maintenanoe Of said parks.4
me Legis~turo has'authorieoQany 4otlntyof thia Stat4
to establish and maintain publia ,parks. Suoh ,parks4ro
Hon. E. R. Bullock, Page #S.
establishedfor the.bsnevolentpurpoes of pmnotiag heelth,
hepplnevs end general welfare of not only the citizens of the
County, but or the people generally. The ohereotor or the
Improvementssp4clfioellymentioned in the statute are design-
ed to eooompliehthat purpose. Lewis vs. City cf Fort worth,
(Sup. Ct.)89 S.W. (2d) 975.
The buildlnga.tobe ereoted on the sit4 are undoubtedly
"public bulldingsW,endall cU the other named lmprovermsnts
authorizedby the statute to be made thereon em wpermn4nt
improvementsWwithin th4 meaning of those t4rms es used in
that provisionof Section 9, Article 8, suprs, euthorieing'e
oounty to levy e tax Vor the areotion of publio buildings
... and other psnmnent iaprovsments.*
It appears to UB that the only appropriatetex tlmt
could be levied end oolleoted for such purposes 1s the tax
to whioh we have just refmrod. Thie la undoubtedlytrue es
to the publio buildlags end other p4ermanent improvtienta
made on-the park site; In order t&at it may not be thought
that we have overlookedthe fact t&et the oonstitutioaalaed-
tlon und4r 'revlew.prcvides vfor the ereotlcm of public bulld-
1x3 .. ..e end not for the purchase of the sits upon rhiohq
suoh building is to be emoted, we will brietly.diaausa
that ph54 0s the s4otion.
In the ease oikfoon va. Alred, 277 S.U. 787, error din-,
missed, the court held that en aleotion authorizingthe
issuenoe of bonds vror the purpose of the srootion and oquip-
ping of the courthousednd'tho oouaty jail end the purohaslng
of a site or sites therefor*w4s not void for we&,& euth-
orlty to Include the propositionsfor the purohaas oi site
end equipaent in t!.osleotion order. The statute involved
ras Article 718, whioh in part, reeds:
"After havLag been authorized es provided in
Chapter One of this title, the oomlssiouers oourt
of s county nmy lawfully issue bonds of said county
for the following purposes:
"To ereot the county oourthouae and jail, or
either."-
q, are not here oonoeraod.
With the othes purposea neiued,,~
The court held tha%.whenever'ap&m is given by atetute,
everythingneoes4e~ to n&co it oif4otual or requisite to
Hon. ii. R. Bullock, Egge #4.
attain the end sought is implied. The eifect or the opinion
is that notwithstandingthe statute provided for the 155uanc4
of bond4 "to ereotv the oounty oourthouse end jail, or
either, the court ~4s empowered to purohese sites ror eeoh
end pay for same out of the proceeds received from the sale
of the bonds.
The opinion is importantfor the reason that the mousy
obtained for the emotion of county courthousesend jells
must aoms,from the taxes levied end oollectedunder that
provision of Section 0, Article 0, supre, relating to the
erection of pub110 buildings end other permanent imprwcmonts.
Anderson vs. Parsley (Clv. App.), 37 S. W. (26) 358, error w-
fused.
We believe the reasoning of the oourt in this base is
equally eppliaebleto the constitutionalsection under rc-
view. In feat, suoh is the sfioot of the opinion, for both
the'statute end said 'sectionuae'the term."to 4reot.e The
Constitutioncontrols the statute, When the erect term -to
erect*, wed In both, Is COaStNOd.es used in the statute,
it necessarilyfollcwa that tho,sam oonattruotion la, by
implioetlon,giv4a to that texvn4s used In the Constitution'
to which the 4tatut4 relates. A public buIldIag &maot be
erooted without a site ppon which to erect it, Arti~l4
13078speoifIcallyauthoria45the oourt to purchase lead end
improve the 84514by oonstruotI.ng buildlags thereon, eta.
It SOllOW that the gland for perk purpoaea may be tioquired
end paid for out of the asme fund available for the emotion
of pub110 build&e and other peinmnent ImproverPente.
It ia our further opinien that ourrent operating expenses
oS suoh parks mast be paid out of the genei purpose fund
of the county.
Yours very truly
BWB
: pbp
ATTORNEY GENERAL Ol?TE&Q