Untitled Texas Attorney General Opinion ( 1946 )

Honorable Tom Koore
'County Attorney
Caldwell County
Lookhart, Texas
Dear Sir: opinion HO. o-7456
Be: Under the facte submitted and
mder the provleione of Article
60&e, Section3, B. c. s., can
CaldwellCountyle&ly levy a
tax of not exceeding five (5)
centa on the $100 property
valuation to create a fund to
help defray the expeneee of
mainterwnce and operatlonof
the park in question?
You hare requested the opinion of tbie Department upon the
rollow~ fa&lal s1ttvat1on:
TheLockhartStateParkle aparkeltuated about3mlles outside
the city limits of I&ldmrt, Texaii, end wlthlt%aldwe~ Comity ofvhlch -
Lookhart Ii the oonnty eeati~ In 1933 art.& l.o&loltlmne became interested
li securing a park for L&sha.rt and after eeveralmeatinge a looalcoimnittee
andarepresentitlve of theStateParkeCcmrmlseIonof theState ofTexas
entered lntoaparolunderetandingthatlfthe lands foraparkeouldbe
eecured, an effort would be made to have the United States C+-venment pro;
vlde foraCJCCamp to improve the pre+lsee,and after the completion
thereof thepark landawould be turned over to theState Parks Board,who c
would take over the managaentad oontrolthereof ae a Stat&&ark.
Pursuant to tbie agreement a bond election was called by the City
of Im&hart to authorize the lsguance of bonds in the mount. of $7,500.00
under the authority of Section 2 and Se&ion 2a of Article 60&e, V.A.C.S.
After the bmd ieeue WE oarrled, the City of Lockhart conmenced the piz-
chase of varloue tracts of land, but the amount of the bond leeue wae
inaufficlent to purchaee all of the lands deemed necessary for the ocm-
pletedpark.
A group of c1tize.m came before the Comnieelonere Court of
Caldwell County and requested that the County aeelat ia the ccmpletlon
of the project. In Auguet, 1935, the Ccaunieelonere Court in a regular
meeting voted to donate "a sum not IB exceed $1,300.00 for the purahaee
of lend for tie Iookhert State Perk," said emu to be paid by l&e issuance 4
Honorable Tcm tire, Page 2 (0-7456)
3 per cent lnterset bearing varremte on the general fund of Caldwell
County; and the County under the foregoing autiorlty purohared land at
,I a ooet of $1,107.00 whloh wae deeded for park purporer.
Photostatlo oopler of the varloum deed* to the State of Texas
reetlng the title to the land6 o-poring the park under the pz~lelare
of Title 102, R. 0. S. reveal that the park lr ocrmpoeedof approximately
352 aoree, the title to whloh lr reeted in the State of Texae for uee ae
a publlo State park. There are p deed8 of oonveyauoe of rarloue traote
and pereels fonulng the abon, totalaoreage. Of theee deede, 5 are frcui
the original grantore to the State of Texan ae grantee, reolting the
..
eonslderatlon a.8 having been paid by the City of Lookhart, aud eaah of
eald oonoeyauoee oontalned the following lmguage:
*It le agreed by and between the State of Texas,
acting herein by and through the State Parks Board, and
the City of Lockhart, aotlng herein by end tbm ite
mayor mad olty oc3umleelonere, that the State of Texan will
aaoept said land ae a STATEPARKend will take poeeeealon and
improve eald land ae a STATEPARK without ooet or expanse to
the City of lookhart,, and will maintain such land ae euoh a
park without ooet or expenme to the City of Lookhart.*
Each of aald deedn of oonreyanoe oontained a revereion ol~une to the.
effeot +&at lf at any tm t&e lraad la abandoned by the State of Texae ae
a State park and it oeaeee to maintain the aame an ruoh, the title will
revert to the Cltg of Lookhwt, ite euoceeeore and aeelme in the abeolute.
The foregOing oanreyamr approximate 333 aoree.
The remaining 3 oon+eyanoeb are made by the orlglnal grantors
to the State of Texan a~ grantee, reoltiag the oonslderatl~ ae haying
been paid by the County of Oaldwell. Two or there 00nmyauoe6 oontaln
the same olaueee ae to the expenee of operation and malntmsaae ae ase
found in the deeda of oonveyanoe wherein the ooneideratlon wae paid by the
city or zockhart, and aIr0 oontaln the lm rererri`` omme ia favor or
the County of Caldwell. The third deed of oonveymoe, being fm 4 v3 ,
aoree, while not oontalning ruoh a rpeolfia olauae oormernlng-operation
a nd ma lntena no ole is oontaiadd ln fho qg@dug 8 deobr of o``~vo)anoo,
nerertheleae reoitesr that ths oomlderat.$otbwar paid by QaldwellOouuty ’
for the purpoee of raid land bolnngamod in oameotion vlth ad u part of
a publlo State parL with the mdonWuUng that tho~grautor at tho requeet
or the oounty or Caldwolland the state of Taxa@ oonro~l Bald lull to be
ueed M a part of the park with the understanding uid agreemnt “by and
between the State of Texan” that the State aotlng throu& ita Parke Board
would Qooopt said Laud, imprero IO crapmalntaln l(11114
ae a part of eaid
parlr and aontalnlng a rimlllar rororelca ol8ueo to Oaldwoll Oounty.
Honorable TomMoore, Page 3 (o-7456)
The park, having been completed in 1940, wae turned over to
the State Parke Bctard end the State of Texae, but without any written
agreement between the City of Loci&art, acting through lte mayor end
oonmleelonere, and the State Parlre Board for the oontrol and operation of
the park. Theminutes or theCity Ccmmleel0nrerl.eOt at the time or the
oalllng of the eloetlon for tie bond8 that upon oompletlon of the park
name ehall be turned over to the State Parke Board.
A written contra&. wan entered into between a local caPlrmlttee
of cltlzene of Lockhert to cooperate with the State Parka Board for the
operation of a golf couree situated in and vhlch le a part of the park,
which hae expired according to its osm terms but which has been continued
by p-1 agreement between the q eme parties. It appears that the State
Parb Board did not have sufficient appropriation to operate the perk
efficiently, and therefore the local ccaomlttee above mentioned called
upon the City or Loctiart and tie Conmieelonere Court or Caldwell County
to help defray the operating expeneee. Caldwell County through ita
Camnleeionere Court then agreed to danate $25.00 a month to help defray
the operating expenses of the park, which funds vere paid froan the general
funde of the county to the Lookhart Golf Aseoclation, but which were not
pald to the State Parke Board. The Citr or Lo&hart acting through its
city ooimcll aleo voting to donate $50.00 a month for the owratlon and
maintenance of the perk which cum wae later tioreased to. the cum of $100.00
a month, which cum wae paid out of the city general fund but not to the
State Parke Board.
Baaed on the foregoing factual situation, you have aeked the
r0llclwiagquestion:
'~"In vi&w of these facts and Article 6C8le, Section 3, Revised
Civil Statutei, oen Caldwell Coimty~legally levy a tcu of not exceeding
rive (5) oente on tie $100.00 property valuatlori to create a fund to
help defray the expeneee of maintenance end operation of this park?"
Tne acquleltlon of public. parks by the State of Texas, and
counties and oltiee thereof is gdrerned by the provleione of Title 103,
B.C.S. of Texae, 1925. Article 6078 provides for the acquisition,
lmprovamentand operation of parka by aountlee. Article 6080 provides
for the acquleltlon, improvement and operation of parka by lnoorporated
oltiee. In view of the factual eltuatlon above stated, neither of
these wM.c`` is applicable.
Chapter 148, Acts 1931, 42nd Legislature, p. 248 (Art. tile,
V.A.C.S. 1925, an amtided) ptividee for the condemnation or purchase
by coantlee or incorporated &ties of land for perk or play grounde and
for cooperation with the State Parka Board. Section 1 thereof is ae
ronma:
Emorable Tan Xoore, Page 4 (O-7456)
“That auy county or any incorporated city 0r thle
State, either Independently or in cooperation with each
other, or with the Texas State Parke Board, may aoquire
by gift or purohaeo or by aondematlon prooeedluge, landn
to be ueed for publlo parke and playgrounds, euoh lmde to
be situated in any looallty In thle State and In any
rited traote deemed eultable by the mvernlng body of the
city or county acquiring name; provided, however, that lande tD
be aoqulmd by any ouch city or oomty for maid purpoeee may
be, In the dleoretion of the govemlng body thereof, eltuated
wlth7n#e State, either wlt;oIn or vithout the boundary llmlta
of each city, b-,t Glthln the b&&s-y Umlte of eald ootmty
and within the limits of eeld county wherein eald oity lien
or le eltuated.”
Section 2 t.h0re0r, ae effective at the time or the aoquieltlon
of thin perk, reade au rollowe:
“To ay ior lanas for perk purpoeee, an inoorporated
city andPor county may issue bonde, and may levy a tax not
exceeding Ten (10) Cents on the One Hundred Dollare ($100)
valuation of taxable property in ouch city and/or county to
pay the interest end provide a sinking fund to retire such
bonda, the leeueuce of ouch bonds, and the collection of taxes
in payment thereof to be in accordance with the pro~lelone or
Chapter 1, Title 22, Revleed Civil Statutes of Texas, 1925,
@verning the lonuance of bonds by cities, tome, and/or counties
in this State; this Section ehall be oonetrued to authorlie
the levying of eaid tax not exceeding Ten (10) C&&e ti the
One Hundred Dollem ($100) valuation notwlt&etundlzig the
provlslone of Article 6080 of the Revleed 01~11 Statute8 of
1925."
Sootion 3 or the act is +e rollova:
“All parke acquired by authority of this Act ahall be
under the control end manageme&of the city or oount~
acquiring mme or by the city and county .jolntl& where they
hare acted JolnrJy in aoqulrlng ~eame, proTided that the Cam-
mieeionere ’ Court and the City Commiselon or City CounoiT
may, by aareement with the State Parke Board, turn the land
over to the State Perks Board to be operated ae a pub110
park, the exDenee of the Improvementand operation of euoh
park to be pald by the county and/or city, according to the
agreement to be made between such muuicipalltlee and the
State Parke Board.
“All countlee and incorporated oltlee are authorized
to levy e tax of not exceeding five (5) oenta on the One
Hundred ($100.00) Dollare property valuation to oreate a
.
- c
Honorable Tom Moore, Page 5 (O-7456)
fund for the improvement aud operation of euoh psrke.”
(Rnlphaels our6)
Sootion 1 or Article 60&e, eupra, provide8 that “any county
or any inoorporated olty of this State, either lndopondently or in
oooperatlon with eaoh other, or with the Texas State Parti Board, may
aoqulre by gift or mrcheee or by oondenmatlon pmoeodinns, land8 to
be used for pub110 parke . . .” (Emphasle ours). The land8 which the
County of Caldwell aoqulmd by leeuance of the warrante on its general
fund were acquired by purchase.
Section 2 or Article 608~3, eupra, provides that to pay for lands
for perk purpoeee, a county may issue bonde .smder the provlelone of Chapter
1, Title 22, R. C. 6. l925; aud Article 701 contained in said chapter end
title provides that the boude of a county ehallnever be lesued for any
purpose unless a proposition for the leauance of such bonda shell have been
first eubmltted to the qualified voter6 who are property tiupayere of ouch
oounty.
‘-...
i.; While the City of Lo&he& did cmp,ls vith the provlelone of
Section 2 of Brtlcle 608le, ae to theiseuence or bonds In ocmpllauce with
Article 701, the prooeede of which were ueed to pay for part of the land
included ln the perk, neverthelees, the County or Celdtiell in no way attemp-
ted to ocunplywith either Section ~2of Article 608l.e or Article 791 in
I paying for the lands which it caused to be deeded to the State or Texas and
which are included In the Lockhart State Park.
It is a vell-eettled principle of law that a county and ite
cQmnleslonere~ court have no powere or duties except thoee which are clearly
set forth and defined $n the Constitution and pertin&it i+Auteei Hiti
County Vei Remllh, 273 S. U. 292; Edwards County ?e. J&in@, 33 8. W.
585, end caeee therein cited too numeroue forrepetition herein.
The above quoted statutes provide, the manner end method by ,whlch
counties may establish end finance county parl!s, either Independently or
In cooperation vith t3x+0 ltles. It’ ie a well-re&oeplzed principle or law
that where the Leglelature preecrlbee a de$lnite, oei’te3.n and fired method
of ,prooedure for a City or County to follow 1p .the erecation of its govem-
mental functions other methode are by impllcetl~ of ,Lav excluded.
Footer ve. City of Waco, 255 S. V. I.@+ (Sup. Ct.).
In view of the fact that the County of Caldwell dw hot aoqulre
the hnds included within the Lockhart State Park ln the mimer provided
by Article 6081e, V.A.C.S., an amended, the Comieelouers’ Court of Cald-
well County is without authority to levy a tfu or 5 cents on the $100
property valuation In the County of Caldwell to create a Amd to help
defray the expeueee of maintenance and, operation of this park.
Honorable TolnMoore, Page 6 (O-7456)
There are other ralld legalbaeea for thle holdlug, but in
rlew of the forego- it is not neoeeeary to dleouae theee legal queetlcma
at thla tlm3. ThieDepartmsntexpreeslyrefralna fmmpaaelngupon the
legality of the, aoquleltlon of the land by the Oounty of Caldwell whloh
wan lnoluded in the LookhmartState Park.
By /e/ 0. K. Rloharde
C. K. Rlohards
Aeeletant
BY /a/ B.W.B.