                                    S
                     Arrsmm   m.T~gas

                       June 11, 1965


Honorable Don Hall                Opinion No. C-453
District Attorney
McLennan County                   Re: Whether a county can par-
Waco, Texas                           ticipate in the cost of
                                      operating a zoo upon prop-
                                      erty which is jointly owned
                                      by the city or county and
Dear Mr. Hall:                        related questions.
          Your letters requesting an opinion of this office read
in part as follows:
         "The citizens of the C~ltyof Waco in a
    recent referendum indicated by a substantial
    majority that they desired for the City to
    support a zoo, which has previously been op-
    erating on privately donated funds. The
    privately donated funds had ceased to be
    adequate to support the zoo, and therefore,
    the City has partially supported the zoo for
    a limited period of time. The zoo is located
    on property wholly and solely owned by the
    City of Waco. Certain persons interested in
    the sustenanceand operation of the zoo have
    contacted the McLennan County Commissioners
    Court relative to financial assistance to the
    City of Waco and private donors in operatlng
    the zoo. I would greatly appreciate your
    opinion as to the following propositions:
         "(1) Can a County participate In the cost
    of operating a zoo which Is located upon property
    owned solely andolly    by the city?
          "(2) Can a County participate in the cost
     of operating a zoo upon property which is jointly
     owned by the Cityand the County?
          "(3) Can a County participate in the cost
     of operating a zoo which Is located upon property
     owned solely andolly    by the county?

                              -2148-
Hon. Don Hall, page 2 (C-453)


         "(4) Can a County participate in the cost
    of operating a zoo which is located on City
    property but paxally supported by private funds
    as well as City funds?
         "(5) If a special tax is voted according
    to the provisions of Article 6078, V.A.C.S., which
    provides for County parks and recreation centers,
    can a zoo be operated with public funds obtained
    as a ret    of said election?
         "(6) If it is determinedby the Attorney
    ,General'soffice that the County can not participate
    in the sustenanceand operation of    sunder    the
    foregoing propositions,and factual situation,are
    there any other methods whereby the County funds
    may be used for the purpose of supportinga -zoo?
         "(7) Does that part of Article 6078, V.A.C.S.,
    which reads as follows: 'Such park shall remain
    open for the free use of the public, under such
    reasonable rulesand regulationsas said Court may
    prescribe,'mean that no fee can be charged for
    the use of said park or intricate parts thereof;
    or does it mean free access to the park, subject
    to such reasonabrrmlesand regulationsas the
    Commissioner'sCourt prescribe? Can the County
    or City-Countylease concessions?
         ' 8) If an election Is had pursuant to Ar-
    ticle A078, v.A.c.s., and said election is favorable
    to the establishmentof a County park, can a zoo be
    maintained and operated out of the funds derix
    from said special tax? If so, would money acquired
    through this special tax, provided for in Article
    6078, V.A.C.S. have any restrictionsas to the
    type structures that can be placed in said park
    similar to those restrictionsprovided for in
    Article 2351, V.A.C.S., and commentedupon in
    your opinion #2594?
          "(9) Would anv building in said County
     park be considered Id public building,'as con-
     templated in Section 7, Article 2351, V.A.C.S.
     wherein the County is required to 'provideand
     keep In repair. . .I 'publicbuildings'?"
          A county may participate in operating a zoo upon
property owned solely by the County and designatedas a county

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Hon. Don Hall, page 3 (C-453)


park within the provisions of Article 6078, Vernon's Civil
Statutes. Article 6078 provides in part:
          I,   .Said court shall have full power and
     controi over any and all such parks and build and
     constructpavilions and such other buildings as
     they may deem necessary, Q D .and make such $her
     improvementsas they may deem proper. ~ . s
          The land so used,and solely owned by the County must
be designated as a County park open for the free use of the public.
Discretfonarypower to construct and maintain necessary buildings
and improvementsfor County parka is granted to the Commissioners
Court by Article 6078. It is OUP opinion that a zoo may be op-
erated in a County park if such buildings and improvementsare
deemed necessary and proper by the CommissionersCourt.
          Also, a county may participate fn operating a zoo upon
property which is jointly owned by the City and County for park
purposes, Sections 1 and 3 of Article 6081e, read in part as
follows:
         'Sec. 1. That any county or any incorporated
    city of this State, either independentlyor in co-
    operation with each other, or with the Texas State
    Parks Board, may acquire by gift or purchase or by
    condemnationproceedings,Lands to be used for public
    parks and playgrounds, such lands to be situated in
    any locality in this State and in any sized tracts
    deemed suitable by the governing body of the city
    or county, acquiring same; provided, however, that
    lands to be acquired by any such city BP county for
    said purposes may be, in the discretion of the gov-
    erning body thereof, situated within the State,
    either within or without the boundary limits of
    such city, but within the boundary limits of said
    county and within the limits o; said county wherein
    said city lies or is situated.
         "Sec. 3. All parks acquired by authority of
    this Act shall be under the control and management
    of the city or county acquiring same or by the city
    and county jointly, where they have acted jointly
    in acquiring same, D . .the expense of the improve-
    ment and the operation of such park to be pafd~by
    the county and/or city, accordfng to the agreement
    to be made between such munfclpalfties. O s *'
         Section 1 of Article 608ie authorizes any county or
incorporatedcity in this State, either fnclependentlyor in

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Hon. Don Hall, Page 4 (C-%3)


cooperationwith each other to acquire land for use as parks
and playgrounds. Section 3 of said Article authorizes counties
and cities Independentlyor jointly, to manage or control all
parks acquired by authority of Article 6081e. It is our opinion
that constructionof a zoo Is a permanent Improvementof a park
under Article 6o81e and Article 6078 which may only be paid for
by a county with money out of its permanent improvementfund and
that the operating expenses thereof may only be paid with money
out of its eneral fund. Atty. Gen. Opinion V-628, Atty. Gem.
Opinion V-284. Of course,  a special election may be conducted
under Article 6078 and Article 6081e to isolate specific tax
money for parka and improvementsof those parks.
          It Is our opinion that your questions one and four
must be answered in the negative. Article 6078 authorizes counties
to acquire and maintain parks solely as county parka. Article
6081e allows counties and cities, independentlyor jointly, to
acquire and maintain parks. Section 3 quoted above requires all
parks to be controlledand maintained by the county or city or
city/countyacquiring same. Land may not be acquired by city
funds or private funds with authorizationof a county to maintain
or control said land for park purposes through operation of a zoo.
            Section 1 of Article 6078, Vernon's Civil Statutes,
provides:
         "Each CommissionersCourt is authorizedto
    levy and collect a tax not to exceed five (5)
    cents on each one hundred dollars assessed val-
    uation of the county for the purchase and improve-
    ment of lands for use as county parks. No such
    tax shall be levied and collecteduntil the proposi-
    tion is submitted to and ratified by the property
    taxpaying voters of the county at a general or
    special election called for that purpose, provided,
    a two-thirdsmajority 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 power and control over any and all such
    parks and may levy and collect an annual tax suf-
    ficient in their judgment to properly maintain
    such parks and build and construct pavilions and
    such other buildings as they may deem necessary,
    lay out and open driveways and walks, pave the
    same or any part thereof, set out trees and
    shrubbery, construct ditches or lakes, and make

                             -2151-
Hon. Dan Hall, page 5 (C-453)


     such other Improvementsas they may deem proper.
     Such parks shall remain open for the free use of
     the public under such reasonable ?les and regula-
     tions as said court may prescribe.
          Provisions of Article 6078 clearly state a method to
be followed by counties In establishingcounty parks by special
election to assess property owners of the County. When a County
park has been established,the Commissioner'sCourt is granted
full power and control over tax revenue for maintenancelandcon-
struction of pavilions and such other buildings as they may deem
necessary and to make such other improvementsas they may deem
proper. It is our opinion that a zoo may be constructedand op-
erated as an improvementby the county on lands purchased or ac-
qulred for parka purposes by special election assessing property
taxpayers. Atty. Gem. Opinion O-905 allowing constructionof a
baseball park and facility.
          It is our opinion that the word “free” as used in
Section 1 of Article 6078, means merely that a county park ea-
tablishedunder the provision of said Article is to be a place
of free resort in the sense that it is not a private park but
Is to be open to the public generally. Establishmentof a
reasonable admission fee would constitutea reasonable rule or
regulationby the Commissioner'sCourt as allowed within Section
1 of Article 6078.
          Article 6079 in clear and unambiguous language, au-
thorizes concessionsin county parks, Article 6079 provides:
         'NO person, firm or association of persons
    shall have the right to offer for sale or barter*
    exhibit anything or conduct any place of amuae-
    ment where a fee 1% charged within said parka
    without first obtaining the consent of the com-
    missioners court or its duly authorized agent,
    paying for such privilege or concessionthe sum
    agreed upon with said court or its duly authorized
    agent. All revenue from the sale of such privileges
    or concessions ahal; go into a fund for the mainten-
    ance of said parka.
          Section 4 of Article 6081e also authorizes concessions
in parks acquired under Article 6081e and provides:
          "Sec. 4. !l?hemanagement In charge'of any
     park created by authority of this Act shall have
     the right to sell and lease concessionsfor the
     establishmentand operation of such amusements,

                            -2152-
Hon. Don Hall, page 6 (C-453)


     stores, filling stations and all such other con-
     cerns as are consistentwith the operation of a
     public park, the proceeds of such sales and rentals
     to be usefffor the improvementand operation of
     the park.
          The clear and unambiguous language of Section 1 of
Article 6078, sets forth the powers of the CommisalonersCourt
with respect to buildings and Improvementsconstructedon county
park lands. Section 1 of Article 6078 provides In part:
          II
            . . .Said court shall have full power and
     control over any and all such parks and may levy
     and collect an annual tax sufficient in their
     judgment to maintain such parka and build and
     construct pavilions and such other buildings as
     they may deem necessary. . . .and make sue;
     other improvementsas they may deem proper.
          Section 1, Article 6078, allows the Commissioners
Court discretion as to types of buildings which may be deemed
necessary within the county park. Review of such discretion
should be made on a case by case basis and rules will not be
prematurely set forth by this office regarding areas of dis-
cretion statutorilyconferredupon the CommissionersCourt.
          County park buildings constructedwithin the discretion
of the CommissionersCourt are not public buildings as authorized
by the provisions of Article 2351, Vernon's Civil Statutes,unless
such buildings are constructedwithin the certain powers specified
by Article 2351. The term "public bulldlngs"means a building
used primarily for public or governmentalpurposes, or to house
public or governmentalagencies. Dancy v. Davidson, 183 S.W.2d
195 (Tex.Civ.App.1944, error ref.). Powers delegated to the
CommissionersCourt to maintain and repair county park buildings
originate from Section 1 of Article 6078 and Article 6o81e.
Maintenance of public buildings originate from the certain powers
specified in Article 2351.

                     SUMMARY
          A county may participate in operating a zoo
     located upon lands used for public park purposes
     owned by a county or acquired jointly by a city
     and county within Article 6078 and Article 6oale,
     Vernon's Civil Statutes. A zoo may be operated
     by a county upon property purchased with revenue

                                -2153-
.   1




        Hon. Don Hall, page 7 (C-453)


             from a special election within the provisions of
             Article 6078, Vernon's Civil Statutes. A zoo
             may be operated upon land acquired with bond and
             tax funds levied under Article 6081e by a county
             independentlyor jointly with a city.
                                        Very truly yours,
                                        WAGGONER CARR
                                        Attorney General


                                        By:
                                           Qordon Houser
                                           Assistant
        GH:mkh
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
         David Longorla
        ~DouglasChllton
         John Pettit
         Roger Tyler
        APPROVED FOR TRE ATTORNEY GENERAL
        BY: T. 8. Wright




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