Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
MARK WHITE November 21, 1980
Attorney General
Honorable Joe Resweber Opinion No. NW-274
Harris County Attorney
1001 Preston, Suite 634 Re: Whether Harris County can
Houston, Texas 77002 maintain a fishing pier extending
into another county
Dear Mr. Resweber:
You have asked whether Harris County can expend funds to repair and
maintain a fishing pier extending out from Harris County’s Sylvan Beach
Park over the public waters of Galveston Bay, which are in Chambers
County. You have informed us that Harris County owns the pier. You have
also advised us that the necessary federal permits for maintenance of a pier
over public waters have been issued by the U.S. Army Corps of Engineers,
and that no sgreement exists between Harris and Chambers Counties
regarding the park. Inquiry is therefore limited to the authority of Harris
County in the matter.
Article V, section 18 of the Texas Constitution states that the
commissioners courts shall exercise “such powers and jurisdiction over all
county business, as is conferred by this Constitution and the laws of the
State, or as may be hereafter prescribed.” As the supreme court stated in
Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948):
The Constitution does not confer on the commis-
sioners courts ‘general authority over the county
business’ and such courts can exercise only such
powers as the Constitution itself or the statutes have
‘specifically conferred upon them.’ See Mills County
v. Lampasas County, 90 Tex. 603, 606, 40 S.W. 403,
404; Anderson v. Wood, 137 Tex. 201, 203, 152 S.W.2d
1084, 1085. While the commissioners courts have a
broad discretion in exercising powers expressly
conferred on them, nevertheless the legal basis for
any action by any such court must be ultimately
found in the Constitution or the statutes.
214 S.W.2d at 453.
p. 872
Honorable Joe Resweber - Page Two
The applicable statute in this instance is article 6079e, V.T.C.S., which outlines
the powers available to the county in “acquiring, improving, equipping, maintaining,
financ@, and operating” public parks owned by the county. V.T.C.S. art. 6079e, S2.
These powers may be exercised by a specially created Board of Park Commissioners, or
by the county commissioners themselves. In Harris County, the commissioners court
has elected to act as the Board of Park Commissioners. The authority for maintenance
and operation of county parks is set forth in section 9 of article 6079e, which provides
as follows:
Subject to the supervision of the Commissioners Court, the
Board shall maintain and operate any park or parks administered
by said Board, and subject to the approval of said Court, the
Board shall have full and complete authority to enter into any
contract, lease, or other agreement connected with or incident
to or in any manner affecting the acquisition, financing,
construction, equipment, maintenance, or operation of any
facility or facilities located or to be located on or pertaining to
any park or parks administered by the Board; and any such
contract, lease, or other agreement may be for such length or
period of time and won such terms and conditions as may be
prescribed therein. The Board shall also have authority to
disburse and pay out moneys and funds under its control for any
lawful purpose for the benefit of such park or parks.
Article 6079e, V.T.C.S., does not expressly confine the authority of Harris
County to maintenance of park property within the county itself. See Attorney
General Opinion H-1170 (1978) (Potter and Randall Counties may Ktribute to
operation of park located in Potter County). Although article 6081e, V.T.C.S., limits
the county’s territorial jurisdiction to acquisition of park sites within county
boundaries, no land acquisition is involved here. See Attorney General Opinion H-392
(1974) (authority of county to purchase land outside its territorial limits); see also
Attorney General Opinion H-462 (1974); Letter Advisory No. 133 (1977)(county
ownership of land outside its boundaries).
At Sylvan Beach Park, the shoreline is the boundary between Harris County and
Chambers County. The pier begins at Harris County and extends for approximately
220 feet over Chambers County. The language in article 6079e appears to be a grant
of broad authority for the county commissioners to enter into any contract or
agreement which would be of benefit to the park, including maintenance of a fishing
pier which extends into another county. The county of course must maintain sufficient
control over the pier to ensure that the public purpose for this expenditure is carried
out. See Tex. Const. art. III, S52; Attorney General Opinion H-413 (1974).
p. 873
Honorable Joe Resweber - Page Three
SUMMARY
Harris County may maintain a park fishing pier which
extends from a Harris County Park into public waters located in
another county.
f-7
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Amie Rodnick
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Acting Chairman
Jon Bible
Rick Gilpin
Amie Rodnick
p. 874