Could Harris County accept a donated swimming pool, charge pool admission and camping fees, and use the revenue to operate the pool?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-44: County Park Pool and Camping Fees
Plain-English summary
JM-44 concluded that Harris County's park board could accept a donated swimming pool for an existing county park. Section 11(b) of the statute then governing the board expressly allowed it to accept grants and gratuities for county parks with the approval of the board and commissioners court.
"In our opinion, section 11(b) clearly authorizes the park board to accept the donation of a swimming pool."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
The opinion also concluded that the board could charge admission to the pool. It read the power to make reasonable rules concerning park use as including admission charges for a facility the board was authorized to operate.
"We believe that section 11(a) of article 6079e furnishes the requisite statutory authority for the park board to charge admission to a swimming pool located in a county park."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf"In our view, the authority 'to adopt and promulgate all reasonable regulations and rules concerning the use of any park' includes the authority to charge admission to a facility which the board is empowered to operate."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Admission revenue could be used to maintain and operate the pool and to cover the costs of regulating its use. The same reasoning supported county-imposed camping fees.
"In our opinion, section 11(a) of article 6079e furnishes sufficient authority for the park board to apply any funds derived from admission charges to the maintenance and operation of the pool."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf"If the park board may contract with the concessionaire to operate camping facilities within a county park, it may itself impose camping fees."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What did the rotary club offer to donate?
It offered a swimming pool to be built in an existing Harris County park.
"You state that a rotary club has offered to donate a swimming pool to Harris County to be built in an existing county park."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Could the county park board accept the pool?
Yes. The statute authorized the board to accept grants and gratuities for parks it administered, subject to approval by the board and commissioners court.
"The Board is hereby authorized to accept grants and gratuities (for the benefit of any park or parks administered by the Board or for the use of the Board in carrying out its powers and duties with respect to any such park or parks) in any form and from any source approved by the Board and the Commissioners Court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Why could the board charge pool admission?
JM-44 treated admission charges as reasonable rules concerning use of a park facility that the board had power to operate.
"[T]he authority 'to adopt and promulgate all reasonable regulations and rules concerning the use of any park' includes the authority to charge admission to a facility which the board is empowered to operate."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Could a private concessionaire charge for park facilities?
The opinion read the governing statutes and cited case together as allowing the county to contract for park-facility operation and sell or lease park concessions. It also said the statute impliedly authorized the concessionaire to charge fees.
"Article 6079e has been construed together with article 6081e, V.T.C.S., to mean that a county may: enter into any contract, lease or other agreement with any person, real or artificial, to acquire, construct or operate, etc., any park facilities and to sell or lease park concessions for the operation of all concerns as are consistent with the operation of a public park."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf"Article 6079, V.T.C.S., impliedly authorizes such a concessionaire to charge fees for operating facilities within a county park."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Why could the county charge fees directly if it could use a concessionaire?
The opinion applied the converse of a prior AG opinion's principle: if a county could contract for a service, it could perform the service itself.
"We believe that the converse of the principle announced in Attorney General Opinion H-1123 is equally true: if a county may contract to have services performed, it may perform such services directly."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Could admission revenue pay pool expenses?
Yes. JM-44 said the park board could apply the admission money to pool maintenance and operation.
"[S]ection 11(a) of article 6079e furnishes sufficient authority for the park board to apply any funds derived from admission charges to the maintenance and operation of the pool."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Could Harris County impose camping fees?
Yes, under the same reasoning used for pool fees.
"If the park board may contract with the concessionaire to operate camping facilities within a county park, it may itself impose camping fees."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Background and statutory framework
In 1964, the Harris County Commissioners Court adopted the provision allowing it to exercise a park board's powers.
"In 1964, the commissioners court of Harris County adopted the provisions of section 2 of article 6079e, V.T.C.S., which permit a commissioners court to exercise the powers of a park board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
The opinion began from the rule that commissioners courts could exercise only powers specifically conferred by the constitution or statutes, while retaining broad discretion in exercising express powers.
"It is well established that commissioners courts may exercise 'only such powers as the Constitution itself or the statutes have specifically conferred upon them.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf"Nevertheless, the Supreme Court has stated that commissioners courts have 'broad discretion in exercising powers expressly conferred on them.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Section 11(a) authorized reasonable rules for use of parks administered by the board, and section 11(b) addressed grants and gratuities. Section 10 separately authorized contracts for park-facility operation.
"The Board shall have the power and authority, subject to the approval of the Commissioners Court, to adopt and promulgate all reasonable regulations and rules concerning the use of any park or parks administered by said Board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf"Furthermore, the board is specifically empowered by section 10 of article 6079e to contract for the operation of park facilities."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Holding
"Harris County is authorized by section 11(a) of article 6079e, V.T.C.S., to charge fees for admission to a swimming pool located in a county park."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Citations and references
Statutes discussed by JM-44:
- "article 6079e, V.T.C.S." Official PDF
- "article 6081e, V.T.C.S." Official PDF
Cases cited by JM-44:
- "Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948)" Official PDF
- "Lovett v. Harris County, 462 S.W.2d 405, 409-410 (Tex. Civ. App. - Houston [1st Dist.] 1970, writ ref'd n.r.e.)" Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0044
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0044.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
July 22, 1983
Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002
Opinion No. JM-44
Re: Authority of Harris County to charge admission to swimming pool in county park and related questions
Dear Mr. Driscoll:
You have requested our opinion regarding the authority of Harris County to charge admission to a swimming pool located in a county park, and related questions. You state that a rotary club has offered to donate a swimming pool to Harris County to be built in an existing county park. You first ask whether Harris County may accept such a donation.
In 1964, the commissioners court of Harris County adopted the provisions of section 2 of article 6079e, V.T.C.S., which permit a commissioners court to exercise the powers of a park board. Section 11 of that statute provides:
Sec. 11. (a) The Board shall have the power and authority, subject to the approval of the Commissioners Court, to adopt and promulgate all reasonable regulations and rules concerning the use of any park or parks administered by said Board.
(b) The Board is hereby authorized to accept grants and gratuities (for the benefit of any park or parks administered by the Board or for the use of the Board in carrying out its powers and duties with respect to any such park or parks) in any form and from any source approved by the Board and the Commissioners Court, including the United States Government or any part thereof, the State of Texas or any agency thereof, any private or public corporation, or any other person or persons.
(c) Such Board shall have the right to sue and be sued in its own name.
In our opinion, section 11(b) clearly authorizes the park board to accept the donation of a swimming pool.
You next ask whether Harris County may charge admission to the swimming pool. It is well established that commissioners courts may exercise "only such powers as the Constitution itself or the statutes have 'specifically conferred upon them'." Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Nevertheless, the Supreme Court has stated that commissioners courts have "broad discretion in exercising powers expressly conferred on them." Id. We believe that section 11(a) of article 6079e furnishes the requisite statutory authority for the park board to charge admission to a swimming pool located in a county park. In our view, the authority "to adopt and promulgate all reasonable regulations and rules concerning the use of any park" includes the authority to charge admission to a facility which the board is empowered to operate. V.T.C.S. art. 6079e, §11(a).
Furthermore, the board is specifically empowered by section 10 of article 6079e to contract for the operation of park facilities. Article 6079e has been construed together with article 6081e, V.T.C.S., to mean that a county may:
enter into any contract, lease or other agreement with any person, real or artificial, to acquire, construct or operate, etc., any park facilities and to sell or lease park concessions for the operation of all concerns as are consistent with the operation of a public park.
Lovett v. Harris County, 462 S.W.2d 405, 409-410 (Tex. Civ. App. - Houston [1st Dist.] 1970, writ ref'd n.r.e.). Article 6079, V.T.C.S., impliedly authorizes such a concessionaire to charge fees for operating facilities within a county park.
In Attorney General Opinion H-1123 (1978), this office held that the Dallas County commissioners court was authorized, with the cooperation of the sheriff or criminal district attorney, to provide funds for a contract with a rape crisis center for the performance of services which the county itself might have performed. This conclusion was based on the broad authority of counties in the administration of justice. The opinion stated: "Since the county may perform the services itself, it may contract to have them done."
In our opinion, it would be anomalous to conclude that a county may contract with a concessionaire for the operation of park facilities, including a swimming pool, and that the concessionaire may charge admission fees, but that the county itself may not charge such fees. We believe that the converse of the principle announced in Attorney General Opinion H-1123 is equally true: if a county may contract to have services performed, it may perform such services directly. Thus, the park board is empowered to charge admission fees to the swimming pool.
You also ask whether funds derived from admission to the pool may be used to maintain and operate the pool, and to defray the costs incurred in regulating its use. In our opinion, section 11(a) of article 6079e furnishes sufficient authority for the park board to apply any funds derived from admission charges to the maintenance and operation of the pool.
Your final question is whether Harris County may charge camping fees in connection with the operation of a county park. We believe that the principles discussed above are also applicable here. If the park board may contract with the concessionaire to operate camping facilities within a county park, it may itself impose camping fees.
SUMMARY
Harris County is authorized by section 11(a) of article 6079e, V.T.C.S., to charge fees for admission to a swimming pool located in a county park.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Susan Garrison
Jim Moellinger
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