                      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:        .
