Untitled Texas Attorney General Opinion ( 1948 )

EATI-ORNEY GENERAL,
OF TEXAS
PRICE DANXEL
ATTORNEYGENERAL
Hon, So Bo, luchanan, Jr, Opfnfon No, V428
County Attorni
Val Verde Coun31 y Rss Authmfty lf Comfs-
Pel MO, Texas s%oneTaQ~Courts to,
eontP9lbut4 to bQflQ*
fng a swfuag pm1
in o~*paTr&fn wfth
a city and the hurl
usabh for the pur-
Deap SfPs
We refir to your letter of June 8? 1948, in
wfrfc’hyou as?3
“Does %he ~Comfssfena~s~ Court have
authorfty to build a swfmfng paaS, fn co-
operation with the City o’f Del Rio, Texas,
upon ParA to be acqufred or whPch has bean
p~evfous~y acrallred fop public park pure
posed
“Bees the CorlmfssPonsPs~ comt haT6
the &%~thOT%%y to eXP&i fWds ~PORI thcl
?emnanorit: Irprovenent rua an&‘oP the Read
Fmd fOP such PUrpOssT’”
“The Commfssfon@~s*Court of VOl Verde
County dcss not wish to levy and collret &
tax as provfdst¶ fn SI&%on 28 he~efnabkWr
quoted, for thr purpme of aeqnfP$ng ,and fr-
roving such a ark anil while the ?srmanent
Prprovrmant m i! of the county mfght be used
for such purpose, same being an improvement
of a public nature9 ft is ay opinion sifa
Court would not be authorized to extend f&&s
from the Road and Brfdgs Funds for such pup-
pose without express Statutory authbrfty, Ho
Statute authorfzfng an expendftum ‘from the
Road and Bridge Fund fop such a pu~psse has
been founcLm
Hon, S. B, Buchanan, Jr. 10 Pago 2 (V-628)
No question concerning the fssuanee of bonds
or time warrants is involved in your fnqufpyo
The factual sftuatfon fs stated fn your let-
ter as followsa
“The Commfssfoners of the Cfty of Del
Rio have asked the cooperation of the Coune
ty of Val Verde in the bufldfng of a swfmm
mPng pool efther upon land now held for
publfc park purposes or to be acquired fop
such purposes,,”
We assume that the land on whfch the park fs
located belongs to Val Verde County or is owned or will
be acquired jofntly by safd County and the City of Del
Rfo, and that the swfmmfng pool will. be paid for with
curPent funds O
Sections 1 and 3 of Article 6081e of Vernonus
Civil Statutes reads
‘bSec, lo That any county or any Incor-
porated city of this State,
entPv or in cooueratfoc with each otha%, or
with the Texas State Parks Board, may ae-
quire by gSft or purchase or by condemnation
proceedfngs, lands to be -used fop public
papks and playgrounds, such Lands to be sft-
uated in any locality in this State and in
any sized tracts deemed suitable by the gov-
ePn%ng body of the city OP county aequfrfing
same; provided, RowePreP, that lands to be
acquired by any such city OP county for said
purposes may be, in the disoreti.on of the
governing body thereof, sftuated within the
State, either wfthfn or without the boundary
lfmits of such efty, but wfthfn the boundary
E”,mfts of safd county, and with’bn the lfmfts
of said eounty wherein safd city lfes or Is
situatedo” (Emphasfs added throughout)
‘tSec. 3. AlLI parks acquired by author-
ity of thfs Act shall be under the control
and management of the @fty OP county acquir-
fng same or by the efty and county jointly9
where they have acted jofntky fn acquiring
same9 provided that the CommfssfonersF Court
Bon, SO B, Buchanan, Jr, - Page 3 (V-628)
and the Cfty Commission or Cfty Councfl may,
by agreement with the State Parks Board,
turn the land over to the State Parks Board
to be operated as a publfc park, the expense
of the improvement and the operation of such
park to be paid by the county and/or city,
according to the agreement tti be made be-
tween such munfcfpalities and the State Parks
Board, I8
Section L of AytfcPe 608le authorizes any coun-
ty or incorporated city in this State, either fndependent-
ly or in codperatfon with aach other to acquire land for
use as parks and playgrounds. Section 3 of safd Article
authorizes eomties and/or eitfes to pay the expense of
fmproving such parks, No cftatfon of authorfty fs neces-
sary to support the proposition that a swimming pool is a
permanent improvement of a park,
QpSnion No, V-28& ef the Attorney General per-
tafned to a county park acquirad under Artfcle 6078, and
the constitutional funds which may be used to purchase,
improve and operate pubPfe papks, In that regard the per-
tfnent part of said opinion reads8
“AF%fele 6078 authorizes the tax upon a
vote of a two-thirds majority, for the PUP-
chase and fmprovement of lands for rase as
county parks O 1% is obvious %ha% this tax
would come out of the eons%i%a%ionaP perma-
nent improvement %ax (Artfele VIII9 SecO 93 O
The purpose as se% forth in the proposition
submitted to %he voters spacif9ed a dl,ffar-
en% purpose 9 to-wit : constructing $ maintafn-
fng and operating public parks” The operat-
ing or current expenses of a county park
wonild, in our opinfon, ‘be payable out of the
general fund of the county rather than the
permanent Improvement fad, It Is evident,
therefore, that a cons%itu%ion,?l tax, other
than the one covered by Article 6,078,was
attempted to be au%horized at the elect-ion
held on May 18, 1946, You arep therefore,
advised that 1% is the opinion of this de-
partment that the qualSffed property taxpay- ..,
ing voters of Yoakum County did no% author-
ize the tax for %he purchase and Improvement
Bon, S. B. Buchanan9 Jr,, o Page 4 (V-628)
of lands for US8 as County parks wfthfn
the contemplation of Artfcle 6078 at the
election held on that date0 It, there-
fore, becomes unnecessary to determLne
whether the legal requirements relating
to the posting of notices the conduct of
the election, the canvass %ng of the re-
turns, etc., were met,
“This department has heretofore de-
termined that the construction of a swfm-
mfng pool fs a park improvement under Ar-
ticle 6078. See copies of Opinions Rum*
bers O-2594 and O-7319, These opfnfons
hold that time warrants may be issued
against the tax mentioned in Article 6078
ff such tax ts authorized wfthfn the terms
of that article. Lasater ve Lopez, 217
SW0 373; Adams v. McGfll, 146 S.W, (2)
332 (W. E, Ref.),
“You are9 therefore% advfsed that if
Yoakum County authorizes the tax en accord-
ance with the PrOViSiOBS of Article 6078,
time warrants may be fsswd agains% such
tax for park fmprovement purposea, which
improvement would consfst of the eonstruc-
tfon of swimming pools and bathhouses fn
the county parks of Yoakum Countyq’”
We adhere to that opinion and hold that a swfm-
ming pool fn a public park fs a permanent ?mprovement
which may only be pafd for by a county wfth money of its
permanent improvement fund and that the operating expenses
thereof may only be pafd wfth money of its general fund
whether the park be owned by such county fndependently un-
der Article 6078 or in cooperation wfth a city under Artf-
de 6081e.
In the case of Carroll va Williams, 109 Tex. 155,
202 SOW, 504, the Supreme Court of Texas safds
“Taxes levied ostansfbly for any spee-
fffc purpose or class of purposes designated
in section 9 of artfcle 8, supra, must be
applied thereunto fn good faith; and in no
even% and under no circumstances may there
be expended, legally, for one such purpose
or cEass of purpose& tax money tn excess
Hon, S, B, Buchanan, Jr0 - Page 5 O-628)
of the amount raised by taxation declared-
iy for that particular purpose or class of
purposes, But thfs rule would not prevent
the proper expendfturep for such purpose
OP purposes, of any unexpended balance :n
the corresponding fund 'brought over from
any prevfous year or yearssEa
The Commfssionersj Court of Vai Verde County
may not use money obtained by taxarion for its Road and
Bridge ~Fund fn building a swwimmingpocl in a public park,
SUMMARY_
The Commissfoners' Court of Val Verde
County may bufld a swimming peel in a public
park owned by the county, or! in cooperation
with the Cfty of Dei Rio, in a public park
-o',ntly owned by said county and city, Art,
%0&e $ V . C 0 S,a
Said Court may 'build or partiefpate in
bulldIng such a swimming pool and expend
money from fts permanent fmprovement fund for
such purpose3 but may not expend money rais-
ed for the county Road and Bridge Fmd for
such purpose, Con&, Art, VIII,, Sect,> 9a
Carroll v0 Williams, 109 Tex, 155, 202 S.. W,
5oko
Yours very triliy-,
ATTORNEYGENERALOF TEXAS
By ,@/~.&-!--d
W, T, WfllBams
WTWswb Assistant
APPROVED:
RNEY GENERAL