Untitled Texas Attorney General Opinion ( 1972 )

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:
-58,32-
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
..583S-
.
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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