Attorney General Opinion WW-1482

OF XAS WILL WIISON *x-rORNEY GENERrhL. December 4, 1962 Honorable Jack N. Fant Opinion No. brw-1482 Cunty Attorney El ?nso County Re: Authority of the Commis- E! Paso, Texas sioners Court ~)f El Paso County, under the pro- visions of the Water Safety Act, Article 1722a, V.C.S., to levy and collect an annual inspection fee from all. motorboats using Ascarate Park Lake in the County park located in El Paso County; and related ques- Dear Mr. Fant: tions. You have asked for an opinion of this office as to :,;hether or not the Commissioners Court of E1 Paso County, under the provisions of the Water Safety Act, rirtic.'e 1722a, Vernon's Civil Statutes, has authority to levy and collect an annual inspection fee from all motorboats using Accarate PzrG Lake in the County park located in Ei Paso County. You have further asked whether the Commissioners Court has the zuthority to designate a deputy sheriff or other legally consti- tuted county officer to inspect the motorboats and to collect the inspection fee, and further, whether an order of the Com- mizcioners Court would suffice so -bts to comply zith the "local la;.i" referred to In Article 1722a. We must first note that the County park presentI.? at i.:;cue is one established under the authority of Artic?es 6078 ::.nd 6081e, Vernon's Civil Statutes. Articl~e 6078 is quoted in pi% as follow: 1, . . . Said court shall have full power and control over any and all such parks and mav levv and collect an annual tax sufficient in"their judgment to properly maintain such parks and build and construct pavilions and such other buildings as they may deem neces- sary; lay out and @pen driveways and T!Jrlks, pave the same or any part thereof, set out Hon. Jack N. Fant, page 2 (~-1482) trees and shrubbery, construct ditches or lakes, and make such other improvements as they may deem proper. Such parks shall re- main open for the free use of the public under such reasonable rules and regulations as said court may prescribe." (Emphasis added). Article 1722a, Vernon's Civil Statutes, entitled the Yater Safety Act, is the statute which has been enacted to govern the operation of watercraft on the waters of this State. Section 13 thereof is quoted: "The provisions of this Act, and of other applicable laws of this State, shall govern the operation, equipment, numbering and all other matters relating thereto when- ever any vessel shall be operated on the :laters of this State, or when any activity regulated by this Act shall take plac,e there- on, but nothing in this Act shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels, the provisions cf Txhich are con- sistent rlith the provisions of this Ac,t. amend- ments thereto or regulations issued thereunder, providing further that an incorporated munici- pality may adopt ordinances limiting the horse- poyrer of motorboats on all lakes o-ned by or situated in the jurisdictional limits of such municipality." We are thus left with two basic questions. One, does the county have the authority to issue such a regulaticn; t?Jo, does the proposed regulation conflict with the provisions of Article 1722a? It is a general proposition of law that counties have only those pot:Jers or duties tha, are clearly set forth and de- fined in the Constitution and s 1 atutes. And the powers grant- ed to counties are more strictly construed than those granted to incorporated municipalities. 15 Tex.Jur.2d, Counties, Sec. 80. Further, the commissioners court is a court of limited jurisdiction. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (1948); and the commissioners court does not have general police powers, Commissioners Court v. Kaiser, 23 S.W.2d 840 :Civ.App., 1929, error ref.) In support of the proposed inspec- tion fee, we have been cited'to the case of City of Stamford Ron. Jack N. Fant, page 3 (EN-1482) v. Ballard, 345 S.W.2d 596 (Civ.App., 196@), wherein it :.ras h ld that a city ordinance imposlng'an inspection fee upon r&t boats on a city lake was valid This case cannot con- trol on the present issue by virtue'of the fact that a city has implied powers and general police poi!ers, whereas a county has no such authority. In order to e-.ercise a power, a county must have been specifically delegated such power, either by Constitution or by statute. Mills Counti. Lampasas County, 90 Tex. 603, 40 S.FJ. 403 !1697). With reference to the subject of fees, it L5houi.d be noted that it has been held that a state bzard may not im- pose a fee where there has been no specific authorization such fee. Attorney General's Opinion No. 0-5802 (1944). Further, no nublic officer may claim or receive anv monev ::iithout-a law authorizing him"to do so and cl~early"fixing amount to which he is entitled. Binford v. Robinson, 112 84, 244 S.W. 807 (1922). li!e find no clear unquestionable statutory authority setting forth a specific amount v;hich for the Tex . could be imposed by the County of El Paso for the fee here in issue. This conclusion is to Article 6078, reinforced by referring again wherein the county is authorized to exercise full power and control over the park Iwithin its limits. This control is granted in the same sentence which authorizes the levy and collection of annual taxes sufficient tc properly maintain such parks and construct such additions necessary to their proper operation. We may reasonably conclude, there- fore, that the "full po:!er and control" granted by the T,eg'i::- lature to the county was intended by the Legisiatu~~e t:? e:~;- tend only to such control as is consistent ?Jith the ei'i'i- cient operation of the park. The statute speci.ficz:ly prc- vides for the allocation of taxation to f'inancc the i>:;rl-:. The fee proposed here by El Paso County is c1~e:zrJ.y 2 i>ev::nue measure, not a safety measure. The revenue to zuppo:*t the park is to be provided by taxation imposed under A:ticlc 6078 and not raised by the levy of inspection fees. Cur answer to the first question renders neetil~e::e :,ny ans.:!er to the other questions posed. SUMMARY The Commissioners Court of El Pa.-:0 County has no authority to levy :.n annual inspection fee upon all motor- boats using Ascarate Park Lake, a Hon. Jack N. Fant, page 4 (W-1482) county park located in El Paso county, such park lake having been established under the authority of Articles 6078 and 6081e, V.C.S. Yours very truly, WILL WILSON Attorney General.of Texas MLC:ms Malcolm L. Quick Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Reeves L. P. Lollar Tom Peterson Bob Eric Shannon REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore