DocketNumber: V-744
Judges: Price Daniel
Filed Date: 7/2/1948
Status: Precedential
Modified Date: 2/18/2017
sAmc-0``xx GSNERAL OF TElxAs PRICE DANIEL r\TTORNEYGENERAL Hon. LaVerne P. McCann Opinion No. V-744 County Attorney Hockley County Re: Authority Of commia- Levelland, Texas sloners 1 Court to levy taxes to main- . tain public parks.,. Denr Sir: Your letter requests an opinion on several questions the f’lrstof which reads: “In case the voter3 of t’heCounty authorize the issuance of bonds to pur- chase and/or improve lands for Park purposes under Art. 6081X RCS, would the Commissioners Court, after the building of auoh Parks, have authority to levy a maintenance tax to.maintain ruch Parks independently of Art, 6078 ROM If’so, would such tax so levied for meint+ance be chargbable against the General Rand?” Tn Opinion No, V-669 of this offi& it ia aaid: ftArtlclr6078, Vernonts Civil Stat- utes, providea a method by which the Com- misslonerst Court may purchase and improve parks and pay for such purchase and im- provemont with money derived from a tax levy of not exceeding five cents on saoh one hundrrd dol&ru a&ressed valuation of property, after authorization to do so by two-third3 vote of the property taxpaying voter3 at an election held for such pur- pose. Such Court la further authorized to levy an annual tax to maintain such ``f``~.Pa``si~r````````~) “Article 60810,’Vernon’s Civil Stat- utes, protides a method by which a county Hon. LaVerne F. McCann -,Page 2 (V-744) or en incorporated city, independently or ,jolntlywith each other, ma and implbve public parks and--l?=Q p aygroun a ', and pay for the same with proceeds of bonds issued for,, such purpose. *It is made plain in Article 60854 that it is limited to the issuance of bonds and that the proceeds of bonds ia- sued under that Article may not be used for any purpose other than the purchase and improvements of land for park pur- oses. The ten cent tax authorized in hat statute can be used only to pay Fhs requirements of bonds issued thereunder. "Article 6078 and 60814 stand separ- ately* and, if submitted at the same time must be submitted sepa,ratelyon the bal- Let at an eIection authorized thereby, respectively, and may not ,bs submitted jointly." Article 60814, V. C. S. provides a method by which a,county or an 'incorporatedcity0 independently or jointly, may acquire and improve public perks and playgrounds and pay for the same with the proceeds of bonds issued for such purpose. Section 3 of said article provides that 'all dounties and incorporated cities are authorized to levy a tax not exceeding five (5) cents on the one hun- dred (#JOO,OO) dollars property valuation to create a fund f'orthe Improvement and operation of such parks." Such tax is in addition to the ten cent tax to pay the bonds voted to purchase and improve parks, In Opinion O-7456 by a former Attorney General it is held that the park in question was not acquired under Article 60814, and therefore the county could not levy the five cent tax authorized by said section 3 of said Article, It is there said: "It is a 44ttl4a prinoipl4 of law that a county and its commissioners oourt have no powers or duties except those which are clearly set forth and defined in the Constitution and pertinent stat- utes, Hill County v. Hamilton, 273 S. W. Hon. LaVerne F. MoCann c Page 3 (VJ744) 292; Edwards County v. Jennings,33 S.W. 585
, and oases therein cited too numerous for repetition herein, "The above-quoted statutes provide the manner and method by which oountlas may establish and finance oounty parks, either independently or in cooperation with the cities. It is a well-recogniz- ed principle of laidthat where the Leg- islature prescribes a defninte, aertain and fixed method of prooedure for a City or County to follow in the exeoutlon of its governmental functions other methods are by implication of law 4xclud4d, Fos- ter v. City of WOO, 255 S, Wo 1104 (Sup, CL?), 'In view of the fact that the CountP ,. OS caiitw1 aid not ao~ipe the lands in4 @ha&m'within:th4 Leekhart Bride P4xk in themanner provided by Article 6081e, V, A. C. Ss,,as amended, the C~saiancess* Court of Caldwell County la WitNUt 8uhh- ority to levy a tax of.5 cents on the $100 property valuation in the County of Caldwell to create a fund to help defray the expenses of mainten&cs and operation of this park." Applying the same rule to Article 6078, no tax authorized'by it may be levied for the improve- ment--ormaintenance of parks acquired under authority of Article 60814, !:..:! Tax levied for park improvement is a charge against the County Permanent Improvement find and that levied for maintenance i$ a oharge'against the County General Fund, Your second question reada: "In case the voters of the County by ;.' a two-thirds majority vote decided in fa- vor of the tax authorized under Art, 6078 RCS, would the Commissioners Court be au- thorized to levy any amount of tax it deem- ed neoessary to properly maintain such Hon. LaVomQ P. Whtm - Page 4 (V-7441, parks or it be limited to a tax not to exceed five cents on each one hundred dollars valuati~onfor al.1purpeses auth- orized under A&. 6078 RCS, inc3uding maintenance?” .. Under express provisions of Article 6078, v. co s., when authorized by a two-thirds vote of the property tax-paying voters of a county, the Com- miseionersl Court may annually levy five cent8 on raeh one hundred dollara~of taxable propert in the county for the ,purchaaeand ,improvementof 9ands for ume aa county parks,’ It ia also provided in said Article that euoh Court,lllprg an@pilJy levy such additional tax as such court may deem neoesaary to maintain ayh ‘parks0 Said tax leyied for the pur- chase and mprovement of 6uoh parks Is a charge against the County Permanent Improvement Fund and atichas is levied~for malntenence thereof is a &arge against the County Oeneral Fund. Your third quertlon reads: “Is the tex levy authoriaed by Art. 6078.RCS a arpeoiallevy in addltlon to the regular constitutional levy for g4n- oral and/or permanent improvements pur- pQa48, Or is suah amount aa may be lev- ied under Art, 6078 RCS chargeable l inat or to be included within the over-alf?levy pormlttod for general and/or permanent improvements purposea?” In our Opinion V&a it was held that *Art. 6078 authorized the tax upon a vote of two-thlrdr ma- rohaqo jority f4r the JTB~ and improvewnt of land2 for use a8 oounla Dar se It la Obvloua that this tax would o4me &t-of ‘the Permanent Improvement tax.” (Art. VIII, Sec. 9, Texas Constitution,) By the same token a.maintenance tax levied by the Commlsslo!ymra8 Court pursuand to Art. 6078 would be chargeable a- gainst the regular constltutloaal levy for ,general fund purpoees and not in addition thereto. Where the voters of a county authorize the isausmce of bonds for the purchase and Eon. LaVerne F. MoCann - Page 5 (V-744) improvement of county parks and levy of the tax under Article 6081e, V. C. S., such county may not le.vytaxes for maintenance purposes under Article 6078, V. C. S. illhere the voters of a county authorize the annual levy of a tax of five cents on the one hundred dollars valuation of prop- erty for the purchase and improvement of lands for use as county parks as authorized in Article 6078, V. C. S., the Commissioners' Court may annually,levy such tax and annual- ly levy an additional tax sufficient in their judgment to properly maintain such parks and to make such improvements as auth- orized in said Article. Taxes levied for the acquisition and im- provement of parks are chargeable against the regular constitutional levy for perma- nent improvement purposes, and taxes levied for maintenance of parks are chargeable against the regular constitutional levy for general fund purposes. Yours very truly, ATTOBH%Y GENERAL OF TElAS APPROVED: .