Hon. Martin D. Eichelberger        Opinion No.   M-1195
Criminal District Attorney
McLennan County Courthouse         Re:   Whether county funds may be
Waco, Texas 76701                        expended for the purchase of
                                         land for a regional correctionai
Dear Mr. Eichelberger:                   facility, and related question;:,

             In your recent opinion request you asked the following
questions:

           (1) May county funds be expended for the pur-
     chase of land for a regional correctional facility?

           (2) Which county fund should be used for such
     a purchase?

           (3) If the county is authorized to purchase
     such land, may this land be deeded either with or
     without consideration to the State of Texas after
     the State of Texas has built the facility with a
     reversionary clause back to the county if the land
     should cease to be used as a regional correctional
     facility?

          (4) If the land cannot be deeded to the State
     of Texas, then may the county lease the land to the
     State for a certain number of years?

           (5) May the State of Texas gain control of the
     land originally purchased by the county by an act
     of the Legislature transferring such land to the
     State?

          In 1971, the Texas Legislature enacted Article 4413(32c),
Vernon's Civil Statutes, known as the Texas Interlocal Cooperation
Act. Section 4e of Article 4413(32c) specifically authorizes a
county, as a "local government" to contract with the State De-
partment of Corrections regarding regional correctional facilities.
Section 4e reads in part:



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Hon. Martin D. Eichelberger, page 2       (M-1195)



          #I
               .   The contracting parties to interlocal
                   .   .

     contract or agreement shall have specific authority
     to contract with the Department of Corrections for
     the construction, operation and maintenance of a
     regional correctional facility provided that title
     to the land on which said facility is to be con-
                  deeded to the Department of Corrections
     and provided further that a contract is executed
     by and between all the parties as to payment for
     the housing, maintenance and rehabilitative treat-
     ment of persons held in jails who cannot otherwise
     be transferred under authoritv of existina statutes
     to the direct responsibility of the Deparfment of
     Corrections. " (Emphasis added.)

Thus the answer to Question One is yes.

          Prior to 1967 the law was well established that the
general fund, permanent improvement fund, jury fund and road and
bridge fund could not be commingled or used for purposes other
than that for which each was raised. Carrol v. Williams, 109
Tex. 155, 202 S.W. 504 (1918); Attorney General's Opinions O-601
(19391, O-869 (1939), O-931 (1939), O-4763 (1942), O-5422 (1943),
O-6948 (1945). The 1967 amendment to Section 9 of Article VIII,
Texas Constitution, overruled the prior law as to commingling of
the funds prescribed in that Section 9. Attorney General's
Opinions M-207 (1968) and M-369 (19691.

          If McLennan County has commingled all of its tax money
into one general fund, then payment for the purchase of land for
a regional correctional facility would have to be made out of that
general fund. If, on the other hand, McLennan County still main-
tains the multiple constitutional county funds, it is the opinion
of this office that the nature of a correctional facility is a
"permanent improvement" and the funds should come from the county's
permanent improvement fund.

           Questions Three and Four are answered in part by Article
4413 (32cj. The land must be deeded to the Department of Corrections,
but the problem of consideration would depend on the contract be-
tween the parties. Consideration could be provided for, or not,
by mutual agreement of the parties involved. Such an agreement
could form a contract between the Department of Corrections and
a county or among the Department and several "local governments"
as defined in Article 4413(32c), Section 4b.

          Question Five is controlled by Robbins v. Limestone

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    Hon. Martin D. Eichelberger, page 3    (M-1195)



          114 Tex. 345, 268 S.W.   915 (1925), which states at page
    %FiP
      t at "where not restricted   by the Constitution, the Legis-
    lature has full control of the property held by a county as an
    agency of the State, and may exercise dominion and control over
    it without the consent of the county, and without compensating
    the county for it." The Legislature thus may give or take
    property held by a county.

                           SUMMARY

              Under Article 4413(32c), Section 4e, Vernon's
         Civil Statutes, county funds out of either the
         county's general fund, if it has only one consti-
         tutional fund, or the permanent improvement fund,
         if it has multiple constitutional funds, may be
         expended to purchase land for a regional correctional
         facility. Although the land must be deeded to the
         Department of Corrections, the terms of the inter-
         local or intergovernmental contract will determine
         the consideration and any other pertinent provisions
         relating to the land and the intent of the parties
         to the contract.  Since the Legislature has full
         control over the property held by a county as an
         agency of the State, the Legislature may exercise
         dominion and control over it without the consent
         of the county and without compensating the county
         for it.




    Prepared by Linda Neeley
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Gordon Cass
    William J. Craig
    2. T. Fortescue
    Roland Allen

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Hon. Martin D. Eichelberger, page 4   (M-1195)



    SAMUEL D. MCDANIEL
    Staff Legal Assistant

ALFRED WALKER
Executive Assistant

    NOLA WHITE
    First Assistant




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