Untitled Texas Attorney General Opinion ( 1940 )

Honorable William L, Kerr
District Attorney
Pecos; Texas
Dear Sir: Opinion No. O-2594
Re: Commissioners' courts -- Nata-
toriums -- County parks.
Your request for an opinion has been received and care-
fully considered by this Department, We quote from your letter
as follows:
"May Winkler County levy a tax for the Perma-
nent Improvement Fund to pay the costs of con-
structing a natatorium, housing for same, and
other constructions appurtenant thereto, without
calling an election?
"The proposed site for the natatorium is Ker-
mitt Independent School property adjacent to the
High School Building in Kermit. Will you advise
whether the school should give the county a 99
year lease or transfer the title to the county.
"The school proposes to have custody of and
maintain the natatorium after the completion. The
natatorium will be for the benefit of the public."
We are also in receipt of a copy of your opinion upon
the above stated questions where you hold that the first ques-
tion should be answered in the negative and that the commis-
sioners' court is without authority to expend county funds for
a natatorium building to be managed and controlled by a school
district.
We quote from 11 Texas Jurisprudence, pages 563-4-5, as
follows:
"Counties, being component parts of the state,
have no powers or duties except those which are
clearly set forth and defined in the Constitution
and statutes. The statutes have clearly defined
the powers, prescribed the duties, and imposed the
liabilities of the commissioners' courts, the medium
Honorable William L. Kerr, page 2 O-2594
through which the different counties act, and
from those statutes must come all the authority
vested in the counties D . I Q
I!
0 a D . Commissioners' courts are courts of
limited jurisdiction, in that their authority ex-
tends only to matters pertaining to the general
welfare of their counties and that their powers dare
only those expressly or impliedlg conferred upon them
by law, that is, by the Constitution and statutes of
the state D . D .'
The courts of Texas have repeatedly held that county
commissioners' courts may exercise only such authority as is
conferred by the Constitution and statutes of~this state. There
are abundant authorities to this effect. We cite the following:
"Article 5, Section 18, Texas Constitution.
Article 2551, Revised Civil Statutes of Texas.
11 Texas Jurisprudence, pa es 563-566.
Bland v. Orr, 39 S, W. (2dB 558.
Nunn-Warren Publishing Co. v. Hutchinson County,
45 S.W. (2d)651.
Bogg v. Campbell, 48 S.W.2d 515.
Landman v, State, 97 S,W. I2d1 264.
El Paso County v. Elam, 106 3.W. 393.
Howard v. Henderson County, 116 S.W. (2d) ,.791.
Dodson v, Marshall, 118 S-W, (2d) 621.
Mills County v, Lampasas County, 40 S.W, 404."
Article VIII, Section 9, of our State Constitution; pro-
vides among other things, for the levy of a tax by the county
for the erection of public buildings, streets, sewers, waterworks
and other permanent improvements, not to exceed twenty-five cents
on the one hundred dollars in any one gear.
Article 2351, Vernon's Annotated Texas Civil Statutes,
reads in part as follows:
"Each commissioners' court shall
"7a Provide and keep in repair courthouses,
jails and all necessary public buildings . II. *'
Article 6078, Vernon's Annotated Texas Civil Statutes,
reads as follows:
Honorable William L. Kerr, page 3
"Each commissioners court is authorized to
levy and,collect a tax not to exceed five cents on
each $100 of assessed valuation of the county for
the purchase and Improvement of lands for use as
county parks which shall consist of‘not more than
one hundred acres, and shall not exceed more than
four in any one county. No such tax shall be lev-
ied and collected until the proposition is submitted
to and ratified by the property tax-paying voters of
the 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 said 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 powerand
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 buildings as
they may deem necessary, layout 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 fee
use of the public under such reasonable rules and
regulations as said court may prescribe."
Opinion No. 0-1083 of this Department holds that a "com-
munity recreational center" is not a public building withinthe
contemplation of Article VIII; Section 9 of the Constitution
and Section 7 of Article 2351, Revised Civil Statutes of Texas
and that the commissioners' court would be without authority
to expend county funds for such purpose. The opinion points outb
however, that counties have authority to establish "county parks
under the provisions of Article 6078, Verffon'sAnnotated Texas
Civil Statutes.
Opinion No. O-348 of this Department holds that the com-
missioners' court Is without authority to expend county funds
for the erection and construction of a weather forecasting
bureau building.
We have been unable to find any statute authorizing the
commissioners' court to expend county funds for the construc-
tion of a natatorium. We are of the opinion that a natatorium
is not a public building within the contemplation of-Article
VIII, Section 9 of the Constitution and Article 2351, Revised
Civil Statutes of Texas.
Honorable William L. Kerr, page 4 O-2594
You are, therefore, respectfully advised that'it is the
opinion of this Department that your first question should beg'
answered In the negative. However, if the county establishes
a county park after a proper election is held,for that purpose
under Article 6078, supra, we think Article 6078~would be
broad enough to permit the construction of a natatorium In
said park.
In answer to your second question, you are respectfully
advised that it is the opinion of this Department that the
commissioners' court of a county has no legal authority to
expend county funds for the erection and maintenance of a com-
munity natatorium building with management by a school dis-
trict or its agents and employees. It is the further opinion
of this Department that if~a county park was established under
authority of Article 6078 and a natatorium was constructed in
said county park that the authority to manage and~control said
park and park natatorium would be in the county commissioners'
court and said court would have no authority to delegate such
control and management to any school district.
We wish to thank you for your well-reasoned opinions
which has aided us greatly in passing upon these questions.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Wm. J. Fanning
Wm. J.``Fanning
Assistant
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APPROVED AUG 19, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Opinion Committee By s/REKChairman