Untitled Texas Attorney General Opinion ( 1963 )

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Honorable Tom Blackwell Opinion No. C-53
District Attorney
Travis County Re: Various questions re-
Austin, Texas latlng to unimproved
property on the Hlgh-
land Lakes within
Travis County, to be
Dear Mr. Blackwell: made into a county park.
Your request for an opinion reads in part as fol-
lows:
"The County Auditor has requested that
your legal opinion be obtained concerning
the expenditure of County funds on land leas-
ed by the County from the LCRA for Public
Park purposes.
"FACTS: The LCRA and others own fee simple
title to unimproved property locat-
ed on certain of the Highland lakes
within Travis County and not within
the boundary of any incorporated city,
town or village. This land has been
offered to Travis County on long term
leases (50-99 years) without cost pro-
viding Travis County will make and
maintain a public park out of the land.
'QUESTION No. 1. Out of what funds canTravis
County legally pay for the construc-
tion of permanent improvements on such
land?
"QUESTION No. 2. Do the construction of roads,
boat ramps, and other conservation mea-
sures come under the same rule as perma-
nent improvements.
"QUESTION No. 3. Out of what Funds can Travis
County legally pay for the necessary
cost of maintenance and supervision
of such park?"
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Hon. Tom Blackwell, Page 2 (c-53)
Section 1 of Article 6078, Vernon's Civil Statutes,
provides:
"Each Commissioner Court is author-
ized to levy and collect a tax not to exceed
five (5~)cents on each one hundred dollars
assessed valuation of the county for the pur-
chase and Improvement of lands for use as
county parks. No such tax shall be levied and
collected until the proposition is submitted
to and ratified by the property taxpaying
voters of such 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 such
tax. If said court desires 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 judg-
ment to properly maintain such parks and build
and construct pavilions and such other build-
ings as they may deem necessary, lay out and
open driveways and walks, pave the same or any
part thereof, set out trees and shrubbery, con-
struct ditches or lakes, and make such other
improvements as they may deem proper. Such
parks shall remain open for the free use of
the public under such reasonable rules and
regulations as such court may prescribe."
In construing the above quoted provisions, it was held
in Attorney General's Opinion 0-1082 (1939):
"Article 6078, Revised Statutes, author-
izes 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 'for the purchase and
improvement of lands for use as county parks,'
after the proposition has been submitted to
and ratified by the property tax-paying voters
of the county. The full power and control over
such a park Is vested in said court and it 'may
levy and collect an annual tax sufficient in
their judgment to properly maintain such parks
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Hon. Tom Blackwell, Page 3 (c-53)
Andybuild and construct pavilions 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 shrubbery, construct ditches or lakes,
and make such other Improvements as they
may deem proper. Such parks shall remain
open for the free use of the'publlc under
such reasonable rules and regulations as
said court may prescribe.'
"It is obvious that the money with which
to purchase a park site and to Improve the
same must be paid from the general purpose
or the permanent Improvement fund of the
county derived from the ad valorem tax levied
and collected under the authority conferred
and limitations Imposed by Section 9, Article
8, supra. The statute is silent as to which
of these funds is the proper one~to bear,the
expense. It is provided In Article 6079,
Revised Civil Statutes, 'All revenue from the
sale of such privileges or concessions shall
go into a fund for the maintenance of said parks.'
"The Legislature has authorized any county
of this State to establish and maintain public
parks. Such parks are established for the bene-
volent purpose of promoting health, 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 statute are designed to ac-
complish that purpose. Lewis v. City of Fort
Worth (Sup.Ct.) 89 S.W.(2d) 975.
II. . .
11 Article 6078 specifically author-
izes the lo&t to purchase land and improve the
same by constructing buildings thereon, etc. It
follows that the land for park purposes may be
acquired and paid for out of the same fund a-
vailable for the erection of public buildings
and other permanent improvements. It is our
further opinion that current operating expenses
of such parks must be paid out of the general
purpose fund of the county."
Likewise, it was held in Attorney General's Opinion
v-744 (1948) :
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Hon. Tom Blackwell, page 4 (c-53)
"Tax levied for park improvement is
a charge against the County Permanent Im-
provement Fund and that levied for malnte-
nance 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 spe-
cific purpose or class of purposes designat-
ed in section 9 of artlcle~VII1, supra, must
be applied thereunto, in good faith; and In
no event and under no circumstances may there
be expended, legally, for one such purpose or
class of purposes,.tax money in excess of the
amount raised by taxation declaredly for that
particular purpose or class of purposes."
Under the facts submitted with your request, Travis
will obtain the use and~benefit of the property on
long term leases (50-99 years), in consideration for the
County establishing and maintaining a public park out of the
land. It is our opinion that such purpose constituted a
public purpose and is within the expressed power ranted the
commissioners court by the provisions of Article 2078, ver-
non's Civil Statutes.
In view of the foregoing authorities, you are advised
that the construction of improvements on such land must be
paid out of the Permanent Improvement Fund. You are further
advised that the construction of boat ramps and other perma-
nent structures (Including necessary repairs and improve-
ment of such structures) must be paid out of the Permanent Im-
provement Fund. The construction of roads (including mainte-
nance and repair of such roads), however, must be paid out of
the Road and-Bridge Fund of themCounty. Carroll v. Williams,
In Attorney General's Opinion v-831 (1949), it was
he1
T that the Permanent Improvement Fund may not be utilized
for the purpose of purchasing materials and supplies for the
construction of fences for adjacent landowners on rights of
way on new county roads and highways, stating that if such ex-
pense 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 same principle is applicable to
the construction of roads for the proposed county park. You
are therefore advised in answer to your second question that
the construction of roads must be paid out of the Road and
Bridge Fund of the County (including necessary maintenance
and repair of such roads).
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Hon. Tom Blackwell, Page 5 (c-53)
In ansner to your third question, you are.advised
that the necessary cost of maintenance and supervision of
such park 1s paid out of the General Fund of the County.
Attorney General's Opinions V-744 (1948) and O-1082 (1939).
However, as pointed out above, the necessary repairs and
improvements to structures built in the park must be paid
out of the Permanent Improvement Fund, and necessary malnte-
nance and repair of roads in the park must be paid out of
the Road and Bridge Fund.
SUMMARY
The Commissioners Court of Travis County
may legally pay for the construction of
permanent improvements (including neces-
sary repair and improvement of Buch struc-
tures) on a proposed county park out of the
Permanent Improvement Fund. The construc-
tion of roads in such park (including mainte-
nance and repair of such roads) is paid out
of the Road and Bridge Fund. The cost of
maintenance and supervision of such park is
paid out of the General Fund of the County.
However, any repairs and improvements to
structures built in the park must be paid
out of the Permanent Improvement Fund, 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
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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'ATTORNEY GENERAL
By: Stanton Stone
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