Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Honorable I<. R. Bullock

County Attorney Peoos county Fort Stockton, Texes

Dear Sir:

county purpose rund. e the r0uaning question: 'Stat&es, provides for by the Commissioners d five cents on the on for the puzabase r county parks.

that thia statute is subjeot to tion 9, of the Constl- fails to designate which of the oounty funds it shell be a part, it any, of the oonstitntional county ie oent park levy should be ebarged. Peooa County whether the above meatitined five cent levy for oounty parks should be allooated to and charged as a pert of the oonstltutional'ooanty *permanent improvement fusld,~ and, if not, to what established fund, if any, the park fund should be ohargad?* fnsofar 5~3 we have been able to asaertain, the questian has never been passed upon our oourts or this DepPrtarent.

Bon. M. 2. Bullook, Pago #2.

We must, therefore, look to the Constitution and statutes for our answer.

Sootion 9. Artiolo 8, limits the authority of any oounty to levy ad valorem tares to oortain purposes and proaoribea maximum rate for each purpoee. NO OouMq mey levy taxes in excess or (a) for general edminlatration purposes, twenty-five cents; (b) ror roadsand bridges, fifteen oents; (0) to pay JUIOTS, fifteen oonta; (d) for the creation of publio bulld- iuga . . . and other porm4nont improvements, twenty-rive oonta on the one hundred dollars valuation.

bionop raised taxation for on4 of th8ao enwn4ratod purpoeos may not be expended for another of said purposes. Williams v. Carroll, 182 29; 202 S.W. 5M. The ques- tion is, ti!ereforo, an~lmportant one,

Article 6078, Bovlaod Statutes, authorizoa tho oomaia- aioners* OOUX% of any aouaty to levy and oolleot a tar sot to exoood rive cents on oeob one hundred dolla$a of assessed valuation or the oounty vror the purohoao and improvement af leads for use as oounty pork%,* after the propositfou baa. been submitted to and ratlflod by the property tax-poyling voters 0r the oouuty. The roll power and aontrol wer auoh a pork la vested in said oourt and it Way levy and oolloot, an annual tax auffloiont la their judgment to properly main- tain auoh parks end build end oonstruot pavilions auah other buildings es they smy deem neoessary7 lay out and open driveweya end walks, 'pave the same or any part thoreor, set out Woos end shrubbery, oonstruot ditohea or lakes; and make suoh other improvomonta as they may doom proper. 8UOh parka shall remain open for the Oreo us4 of the public under auoh reasonable rules and regulations ae said court nury pre- '8oribo.v

It Is obvious that the m4nep with whioh to p~rohoao 4 park site and to lapro~o tho saplo must b4 paId S~OEI tho general purpose or the ponaanant improvement fund of the county derived freon the ad velorea tax levied and oollooted under the euthority.oonferred end limitations Imposed by Seotion 9, Article 8, aupra. The statute is &lent 4s to which 0r these funds is tho proper one to bear the expense. It is provided in Artiole 6079, Revised Civil Statutes, *All revenue from the sale of eu4h privileges Or oonoeaal4na shall go into 4 fund forth4 maintenanoe Of said parks.4

me Legis~turo has'authorieoQ any 4otlnty of thia Stat4 to establish and maintain publia ,parks. Suoh ,parks 4ro *3 Hon. E. R. Bullock, Page #S.

established for the.bsnevolent purpoes of pmnotiag heelth, hepplnevs end general welfare of not only the citizens of the County, but or the people generally. The ohereotor or the Improvements sp4clfioelly mentioned in the statute are design- ed to eooomplieh that purpose. Lewis vs. City cf Fort worth, (Sup. Ct.)89 (2d) 975.

The buildlnga.to be ereoted on the sit4 are undoubtedly "public bulldingsW,end all cU the other named lmprovermsnts authorized by the statute to be made thereon em wpermn4nt improvementsW within th4 meaning of those t4rms es used in that provision of Section 9, Article 8, suprs, euthorieing'e oounty to levy e tax Vor the areotion of publio buildings . . . and other psnmnent iaprovsments.*

It appears to UB that the only appropriate tex tlmt could be levied end oolleoted for such purposes 1s the tax to whioh we have just refmrod. Thie la undoubtedly true es to the publio buildlags end other p4ermanent improvtienta made on-the park site; In order t&at it may not be thought we have overlooked the fact t&et the oonstitutioaal aed- tlon und4r 'revlew.prcvides vfor the ereotlcm of public bulld- 1x3 . . ..e end not for the purchase of the sits upon rhiohq suoh building is to emoted, we will brietly.diaausa that ph54 0s the s4otion.

In the ease oikfoon va. Alred, 277 S.U. 787, error din-, missed, the court held that en aleotion authorizing the issuenoe of bonds vror the purpose of the srootion and oquip- ping of the courthouse dnd'tho oouaty jail end the purohaslng of a site or sites therefor* w4s not void for we&,& euth- orlty to Include the propositions for the purohaas oi site end equipaent in t!.o sleotion order. The statute involved ras Article 718, whioh in part, reeds:

"After havLag been authorized es provided in Chapter One of this title, the oomlssiouers oourt of s county nmy lawfully issue bonds of said county for following purposes: "To ereot the county oourthouae and jail, or

either." - With the othes purposea neiued,,~ q, are not here oonoeraod. The court held tha%.whenever'a p&m is given by atetute, everything neoes4e~ to n&co it oif4otual or requisite to *4 ii. R. Bullock, Egge #4. Hon.

attain the end sought is implied. The eifect or the opinion is that notwithstanding the statute provided for the 155uanc4 of bond4 "to ereotv the oounty oourthouse end jail, or either, the court ~4s empowered to purohese sites ror eeoh end pay for same out of the proceeds received from the sale of the bonds.

The opinion is important for the reason that the mousy obtained for the emotion of county courthouses end jells must aoms,from the taxes levied oollected under that provision of Section 0, Article 0, supre, relating to the erection of pub110 buildings end other permanent imprwcmonts. Anderson vs. Parsley (Clv. App.), 37 S. W. (26) 358, error w- fused.

We believe the reasoning of oourt in this base is equally eppliaeble to the constitutional section under rc- view. In feat, suoh is the sfioot of the opinion, for both the' statute end said 'section uae'the term. "to 4reot.e The Constitution controls the statute, When the erect term -to erect*, wed In both, Is COaStNOd.es used in the statute, it necessarily follcwa tho,sam oonattruotion la, by implioetlon, giv4a to that texvn 4s used In the Constitution' to which the 4tatut4 relates. A public buIldIag &maot be erooted without a site ppon which to erect it, Arti~l4 13078 speoifIcally authoria45 the oourt to purchase lead end improve the 84514 oonstruotI.ng buildlags thereon, eta. It SOllOW that the gland for perk purpoaea may be tioquired end paid for out of the asme fund available for the emotion of pub110 build&e and other peinmnent ImproverPente.

It ia our further opinien that ourrent operating expenses oS suoh parks mast paid out of the genei purpose fund of the county.

Yours very truly BWB : pbp

ATTORNEY GENERAL Ol? TE&Q