Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

February 24,2004

The Honorable Marsha Monroe Opinion No. GA-01 56

Terre11 County Attorney

Terre11 County Courthouse Re: Whether Terre11 County may expend venue-

105 East Hackberry project sales and use taxes collected under chapter

Sanderson, Texas 79848 334 of the Local Government Code for certain

improvements (RQ-0 103-GA)

Dear Ms. Monroe:

You ask about Terre11 County’s authority to expend venue-project sales and use taxes

collected under chapter 334 of the Local Government Code for improvements described in an

expenditure plan, which you have included with your request.’

I. Backmound

Chapter 334 of the Local Government Code authorizes cities and counties to impose sales

and use taxes to finance venue projects,2 which it specifically limits to certain kinds of facilities,

improvements, and infrastructure. See TEX. LOC. GOV’T CODE ANN. 9 334.001(2)-(5) (Vernon

Supp. 2004). A county or municipality may by resolution “provide for the planning, acquisition,

establishment, development, construction, or renovation of a venue project” if, among other things,

the resolution is approved “by a majority of the qualified voters of the municipality or county voting

at an election called . . . for that purpose.” Id. 8 334.021(a)(3) (Vernon 1999); see also id. 8 334.024

(Vernon Supp. 2004) (election requirements). “The resolution must designate each venue project,”

id. 8 334.02 1(b) (V emon 1999), as must the order calling the election, see id. 8 334.024(b) (Vernon

Supp. 2004). The proposition on the ballot at the election must describe the venue project and

specify the type of tax and maximum tax rate. See id. $334.024(c). Proceeds of any tax approved

by the voters and imposed by a municipality or county under chapter 334 must be deposited in a

venue-project tind and may be used for reimbursing or paying “the costs of planning, acquiring,

‘Letter from Honorable Marsha Monroe, Terre11 County Attorney, to Honorable Greg Abbott, Texas Attorney

General (Aug. 25, 2003) (on file with Opinion Committee) [hereinafter Request Letter]; id. (Exhibit C, Expenditure

Plan).

2A municipality with a population of more than 1.9 million and a county with a population of more than 3.3

million may proceed under chapter 334 only if they create a sports and community venue district under chapter 335. See

TEX. Lot. GOV’T CODE AN-N. $334.002 (Vernon Supp. 2004).

The Honorable Marsha Monroe - Page 2 (GA-0156)

establishing, developing, constructing, or renovating” an approved venue project or operating or

maintaining an approved venue project. See id. 8 334.042(b), (d) (Vernon 1999).

You inform us that on September 11,2000, the Terre11 County Commissioners Court adopted

a resolution “calling for a county election for the purpose of imposing a sales and use tax in the

amount of one-half of one cent for the purpose of financing venue projects and related

infrastructure.” Request Letter, supra note 1, at 1. In November 2000, the Terre11 County voters

approved a proposition authorizing the county to impose a sales and use tax to fund a specifically

described venue project. See id. at 2. Since the tax’s effective date, the county has collected

approximately $284,000, which it has deposited in a venue-project fund. See id.

The commissioners court resolution calling for the election on the tax describes a “parks and

recreation system venue project” that would provide for improvements at existing parks and would

also include acquisition of land and improvements at the three specific “public-use” sites. See id.

(Exhibit A, Resolution). The proposition approved by the voters authorized the county to “provide

for improvements to all existing parks and for acquisition and development of land and

improvements for additional public use” at the three specific sites. See id. (Exhibit B, Proposition).

With your request, you attach as an exhibit a document entitled “Terre11 County Venue Funds

Expenditure Plan” and a map of a proposed project. See id. (Exhibits C-D, Expenditure Plan &

Map). The county now proposes to expend the chapter 334 tax proceeds on a venue project that

consists of a convention and visitors center, two annexes to the center, and related infrastructure.

See id.

II. Analysis

You ask about Terre11 County’s authority to expend chapter 334 tax proceeds on the

improvements outlined in the Expenditure Plan. In particular, you ask:

1. Is the expenditure of funds on the venue project described

in Exhibit C authorized by the proposition approved by the voters of

Terre11 County on November 7,2000?

2. Is the expenditure of funds on the venue project described

in Exhibit C authorized by the applicable provisions of Chapter 334

of the Texas Local Government Code?

Request Letter, supra note 1, at 2-3. Because chapter 334 of the Local Government Code is integral

to answering your question about the ballot proposition, we address your second question first.

The Honorable Marsha Monroe - Page 3 (GA-01 56)

A. Whether the Expenditure Plan is Authorized by Chapter 334

1. Statutory Definitions of “Venue Project, ” “Venue, ” and ‘Related

Infrastructure ”

Sales and use taxes deposited in a venue-project fund may be expended only

on voter-approved venue projects. See TEX. LOC. GOV’T CODE ANN. 9 334.042 (Vernon 1999).

Under chapter 334, the term “venue project” means a “venue and related infrastructure that is

planned, acquired, established, developed, constructed, or renovated under this chapter.” Id. 9

334.001(5) (V emon Supp. 2004). Section 334.001(4) specifically defines the term “venue” to mean

(A) an arena, coliseum, stadium, or other type of area or

facility:

(i) that is used or is planned for use for one or

more professional or amateur sports events,

community events, or other sports events, including

rodeos, livestock shows, agricultural expositions,

promotional events, and other civic or charitable

events; and

(ii) for which a fee for admission to the events

is charged or is planned to be charged;

(B) a convention centerfacility or related improvement such

as a convention ten ter, civic ten ter, civic ten ter building, civic ten ter

hotel, auditorium, theater, opera house, inusic hall, exhibition hall,

rehearsal hall, park, zoological park, museum, aquarium, or plaza

located in the vicinity of a convention center or facility owned by a

municipality or a county;

(C) a tourist development area along an inland waterway;

(D) a municipal parks and recreation system, or

improvements or additions to a parks and recreation system, or an

area or facility that is part of a municipal parks and recreation

system;

(E) a project authorized by Section 4A or 4B, Development

Corporation Act of 1979 (Article 5 190.6, Vernon’s Texas Civil

Statutes), as that Act existed on September 1, 1997; and

(F) a watershed protection and preservation project; a

recharge, recharge area, or recharge feature protection project; a

The Honorable Marsha Monroe - Page 4 (GA-0156)

conservation easement; or an open-space preservation program

intended to protect water.

Id. 8 334.001(4) (em ph asis added). Given the nature of the projects Terre11 County has proposed,

subsections (4)(B) and (4)(D) are most relevant to your query. See id. Clearly, subsections (4)(A),

W(C)9 and (4)(F) clo not apply. Section 334.001(4)(E), amended in 2001 after the adoption of the

sales and use tax in your county, does not apply to projects approved before its effective date.3

However, as we will discuss at greater length below, in 2000 when the voters approved the Terre11

County proposition, section 334.001(4)(E) included within the definition of “venue” “any other

economic development project authorized by other law.” Act of May 22,1997,75th Leg., R.S., ch.

55 1, 8 1, 1997 Tex. Gen. Laws 1929, 1930 (enacting section 334.001(4)(D)), amended by Act of

May 19,1999,76th Leg., R.S., ch. 784,s 1,1999 Tex. Gen. Laws 3408,3409 (renumbering section

334.001(4)(D) as 334,001(4)(E)).

In addition to a venue, a venue project may include related infrastructure. See TEX. LOC.

GOV’T CODE ANN. 9 334.001(5) (Vernon Supp. 2004). Section 334.001(3) defines “related

infiastmcture” to include

any store, restaurant, on-site hotel, concession, automobile parking

facility, area transportation facility, road, street, water or sewer

facility, park, or other on-site or off-site improvement that relates to

and enhances the use, value, or appeal of a venue, including areas

adj acent to the venue, and any other expenditure reasonably necessary

to construct, improve, renovate, or expand a venue, including an

expenditure for environmental remediation.

Id. 8 334.001(3) (emphasis added). Related infrastructure must relate to and enhance a venue or

areas adjacent to the venue. See id.

2. Venue Project Based on a ‘Park Venue”

Taken together, these definitions provide that a “venue project” consists of

a venue under section 334.001(4) and any related infrastructure, as defined above. See id. 0

334.001(3)-(5). F rom the resolution and the proposition you have provided, it appears that Terre11

County originally proposed to undertake a venue project that would include improving existing

county parks and adding new park-like “public-use” areas. See Request Letter, supra note 1

(Exhibits A-B, Resolution & Proposition). However, section 334.001(4)(D) includes within the

definition of “venue” a municipal park system as opposed to a county park system. See TEX. LOC.

GOV’T CODE ANN. 0 334.001(4)(D) (V emon Supp. 2004). Thus, the ballot proposition does not

propose a “venue” under section 334.001(4)(D).

3See Act of May 24,2001,77th Leg., R.S., ch. 1044, $0 1, 10(b), 2001 Tex. Gen. Laws 2310,2311,2313.

The Honorable Marsha Monroe - Page 5 (GA-0156)

3. Venue Project Based on a Tonvention-Center Venue”

Given the difficulty in construing chapter 334 to authorize a venue project

centered on a county-park venue, it appears that the county has drafted the Expenditure Plan to bring

the proposed improvements under section 334.001(4)(B), which provides for convention-center

venues. See Request Letter, supra note 1 (Exhibit C, Expenditure Plan). Section 334.001(4)(B)

provides that the term “venue” includes “a convention center facility or related improvement . . .

located in the vicinity of a convention center or facility.” TEX. LOC. GOV’T CODE ANN. 8

334.001(4)(B) (V emon Supp. 2004). According to its plain language, a section 334.001(4)(B)

“improvement” must be related to a convention center facility and must be located near a convention

center or facility. Thus, an improvement must be developed and constructed either (i) in conjunction

with a new convention center, or (ii) for an existing convention center.

Chapter 334 does not define the term “convention center facility,” but the term is defined in

two provisions authorizing cities and counties to collect and expend hotel occupancy taxes. See TEX.

GOV’T CODE ANN. 5 3 11 .Ol l(b) (Vernon 1998) (words and phrases that have acquired a technical

or particular meaning, whether by legislative definition or otherwise, must be construed accordingly).

In chapter 35 1 of the Tax Code, the terms “convention center facilities” and “convention center

complex” are defined in pertinent part as “facilities that are primarily used to host conventions and

meetings. The term means civic centers, civic center buildings, auditoriums, exhibition halls, and

coliseums that are owned by the municipality or other governmental entity or that are managed in

whole or part by the municipality.” TEX. TAX CODE ANN. 8 351.001(l) (Vernon 2002). Similarly,

in chapter 352 of the Tax Code, those terms are defined to mean “civic centers, civic center

buildings, auditoriums, exhibition halls, and coliseums that are owned by the county or that are

managed in whole or part by the county.” Id. 8 352.001(2).

The Expenditure Plan proposes a new convention and visitors center, two annexes to the

center, and related infrastructure. See Request Letter, supra note 1 (Exhibit C, Expenditure Plan).

These improvements constitute a “venue project” as defined by section 334.001(3), (4)(B), and (5)

if(i) the county intends to develop and construct a convention center facility and to undertake the

other improvements and infrastructure described in the Plan in conjunction with the development

and construction of the convention center facility, and (ii) the other improvements are related

improvements located in the convention center facility’s vicinity or infrastructure that relates to and

enhances the convention center facility. See TEX. LOC. GOV’T CODE ANN. 8 334.001(3), (4)(B)

(Vernon Supp. 2004).

The Expenditure Plan does not provide sufficient information for this office to determine as

a matter of law whether the Plan meets these two requirements. First, it is not clear from the

Expenditure Plan that the proposed convention and visitors center would be a facility, such as a civic

center, civic center building, auditorium, exhibition hall, or coliseum, primarily used to host

conventions and meetings. See id. 9 334.001(4)(B); see also TEX. TAX CODE ANN. @351.001(2),

352.001(2) (Vernon 2002). In addition, the map attached to the Plan indicates that the specific site

for the proposed convention center will depend upon land acquisition costs and other factors. See

Request Letter, supra note 1 (Exhibit D, Map). Thus, it is not certain that the county actually has

The Honorable Marsha Monroe - Page 6 (GA-01 56)

firm plans to develop and construct a convention center facility in conjunction with the other

improvements and infrastructure. If the county does not plan to develop a convention center facility,

the Expenditure Plan improvements do not constitute a “venue project” within section 334.001(3),

(4)(B), or (5). Moreover, the county proposes to develop or improve two convention-center

“annexes,” but it is not clear from the Expenditure Plan whether the annexes would relate to the

convention center and would be located in its vicinity, see TEX. LOC. GOV’T CODE ANN. 0

334.001(4)(B) (Vernon Supp. 2004)’ or would be infrastructure that “relates to and enhances the use,

value, or appeal of’ the convention center, id. $334.001(3). This determination will depend in part

upon the convention and visitor center’s ultimate location. This office cannot make the fact findings

necessary to determine that the Expenditure Plan complies with the statutory requirements. See Tex.

Att’y Gen. Op. Nos GA-0106 (2002) at 7, JC-0328 (2000) at 4. However, the information you have

presented strongly suggests that Terre11 County has not proposed a venue project under section

334.001(4)(B).

4. Venue Project Based on an “Economic Development Project Venue ”

Finally, the commissioners court may consider whether the proposed

improvements constitute a venue under former section 334.001(4)(E). At the time the voters

approved the project, former section 334.001(4)(E) included within the definition of “venue” “any

other economic development project authorized by other law.” Act of May 22’1997’75th Leg., R.S.,

ch. 55 1’8 1, 1997 Tex. Gen. Laws 1929, 1930 (enacting section 334.001(4)(D)) (emphasis added),

amended by Act of May 19,1999,76th Leg., R.S., ch. 784’8 1,1999 Tex. Gen. Laws 3408’3409

(renumbering section 334.001(4)(D) as 334.001 (4)(E)).4

Former section 334.001(4)(E) incorporated into the definition of “venue” statutes specifically

authorizing economic development projects, see id. ; it did not incorporate statutes authorizing

traditional governmental infrastructure. Thus, in order to proceed under forrner section

334.001(4)(E), the Terre11 County Commissioners Court would need to (i) identify a law in effect

at the time the voters approved the proposition that authorized an economic development project,

and (ii) determine that the venue outlined in the ballot proposition constitutes an economic

development project under that law. For example, in 2000, section 4B(a)(2)(B), article 5 190.6 of

the Revised Civil Statutes authorized funding for projects to “promote or develop new or expanded

business enterprises.“5 In order to proceed under former section 334.001(4)(E) as it incorporated that

provision, the cornmissioners court would have to specifically find that the venue will promote or

4The act that amended former section 334.001(4)(E) continued prior law in effect for purposes of projects

approved before its effective date. See Act of May 24,2001,77th Leg., R.S., ch. 1044, 6 10(b), 2001 Tex. Gen. Laws

2310,2311,2313.

‘TEx. REV. Crv. STAT. ANN. art. 5 190.6, 0 4B(a)(2)(B), as enacted by Act of Mar. 2 1, 1991,72d Leg., R-S.,

ch. 11,s 2,199l Tex. Gen. Laws 37, amended by Act of May 22,1993,73d Leg., R.S., ch. 1022, $j 3,1993 Tex. Gen.

Laws 4424,4426, amended by Act of May 29,1997,75th Leg., R.S., ch. 1237,s 1,1997 Tex. Gen. Laws 47 10, amended

by Act of May 25,1999,76th Leg., R.S., ch. 865, $4,1999 Tex. Gen. Laws 3546,3548.

The Honorable Marsha Monroe - Page 7 (GA-01 56)

develop new or expanded business enterprises! C$ Tex. Att’y Gen. Op. No. JC-0494 (2002)

(concluding that sales taxes collected under section 4B of the Development Corporation Act of 1979

pursuant to an election proposition that limited tax use to business development purposes could not

be used to construct a youth league football field at the city park that would not promote business

development). We do not further consider whether the proposed project could be a venue project

within the meaning of former section 334.001(4)(E), and are not aware of any facts to support such

a finding, but we suggest that the commissioners court examine the applicability of this provision.

B. Whether the Expenditure Plan is Authorized by the Election Proposition

You also ask whether the venue project described in the Expenditure Plan is

authorized by the proposition approved by the voters. See Request Letter, supra note 1, at 2.

1. Legal Standard

Chapter 334 expressly requires that a resolution and ballot language proposing

a venue project describe a specific venue project and provides that sales and use taxes deposited in

a venue-project fund may be expended only for voter-approved venue projects. See TEX. LOC.

GOV’T CODE ANN. §§ 334.023, .024, .042 (Vernon 1999 & Supp. 2004). Consistently with those

requirements, the Terre11 County Commissioners Court proposed and the Terre11 County voters

approved ballot language outlining a specific venue project. See Request Letter, supra note 1

(Exhibits A-B, Resolution & Proposition). Texas courts have held that the express terms of

resolutions and orders calling a tax or bond election, at which voters are asked to approve financial

undertakings of a governmental body relating to the purposes for which funds shall be used, become

a contract with the voters who are entitled to receive substantially all of the benefits and security of

that contract. See, e.g., San Saba County v. McGraw, 108 S.W.2d 200 (Tex. 1937); Fletcher v.

Howard, 39 S.W.2d 32 (Tex. 193 1) (bond proceeds may not be diverted from highway described in

county order as it existed on date of election); Black v. Strength, 246 S.W. 79 (Tex. 1922) (bond

proceeds may not be diverted from improvements designated in order adopted subsequent to election

order but prior to election); Moore v. Coffman, 200 S.W. 374 (Tex. 1918) (bond-financed bridge

must be constructed at location designated in election order); Tex. Att’y Gen. Op. Nos. GA-0049

(2003) at 3, JC-0400 (2001) at 4-5.7

When election orders are not specific as to the projects for which taxes or bond proceeds will

be used, the governing body has some discretion to make decisions about how funds will be spent.

See Barrington v. Cokinos, 338 S.W.2d 133, 143 (Tex. 1960) (holding that voters’ approval of

%ee id.

‘In addition, representations of the governing body outside of its formal election orders or resolutions r-nay also

give rise to a contract with the voters regarding the use of funds. See Inverness Forest Improvement Dist. v. Hardy St.

Investors, 541 S.W.2d 454, 460 (Tex. Civ. App.-Houston [lst Dist.] 1976, writ ref d n.r.e.) (letter reflecting water

district improvements had effect of pledging to voters that those improvements would be made with bond proceeds).

But see Taxpayers for Sensible Priorities v. City of Dallas, 79 S.W.3d 670, 676 (Tex. App.-Dallas 2002, pet. denied)

(extraneous documents are not part of the contract with voters).

The Honorable Marsha Monroe - Page 8 (GA-01 56)

generally worded bond proposition to pay costs to eliminate railroad grade crossings gave city

governing body discretion to use bond proceeds to acquire a right of way for the railroad); Fletcher

v. Ely, 53 S.W.2d 817,818 (Tex. Civ. App.-Amarillo 1932, writ ref d) (“in the absence of a definite

identification of the specific road to be paved, a discretion exists in the commissioners’ court as to

which of two or more routes may be followed between control points named in the pre-election

orders”). On the other hand, when the voters approve a specific project, “the proceeds of the bond

issue are ‘earmarked’ with the character of a trust fund which may not be diverted to another purpose

or project.” Ely, 53 S.W.2d at 818 (citing Black v. Strength, 246 S.W. 79 (Tex. 1922)).

Courts construe election propositions like other instruments - “the intent of the parties . . .

is the dominant ruling factor and . . . they should always be construed in the light of the

circumstances surrounding the parties at the time of their making.” Id. at 8 18. “The law does not

require a literal performance, but there must be left to the parties substantially the benefits expected.

If the changes have not materially detracted from these benefits, there has been a substantial

compliance.” Id. at 821; see also TRayer v. Greer, 229 S.W.2d 833,835 (Tex. Civ. App.-Amarillo

1950, writ ref d n.r.e.) (“the order calling the bond election must be substantially complied with so

that those who voted for the bonds would receive the benefits they had the right to expect”).

2. Applying the Legal Standard to the Facts

The Terre11 County voters approved the following proposition:

Authorizing Terre11 County, Texas to provide for improvements to all

existing parks and for acquisition and development of land and

improvements for additional public use and other improvements that

relate to and enhance the use, value, or appeal of the public use sites

designated as the East Gate Entrance Park, located on Highway 90 on

the east side of Sanderson, adjacent to the Budget Inn, the Old Town

Plaza, located near the Union Pacific Depot and Bunkhouse on

Downie Street; and the Jav[e]lina Hill Scenic Overlook located at the

northwest comer of the intersection off Wilson Street and U.S.

Highway 90; and to impose a sales and use tax at the rate of one-half

(?4) cent for the purpose of financing the venue project described

herein.

Request Letter, supra note 1 (Exhibit B, Proposition). In addition, the commissioners court

resolution ordering the election lists specific improvements at each location. In particular, it lists

a covered pavilion and restrooms in connection with general park improvements; parking and “road,

street, water, or sewer facilities” at East Gate Entrance Park; a public plaza and visitor center at the

Old Town Plaza; and nature trails at Javelina Hill Scenic Overlook. See id. (Exhibit A, Resolution).

Given the election’s specificity, venue-project funds may be expended only for the

improvements described in the proposition and resolution; the election’s terms must be construed

The Honorable Marsha Monroe - Page 9 (GA-0156)

in light of the voters’ intent. Ely, 53 S.W.2d at 818. Moreover, the voters are entitled to

“substantially the benefits expected.” Id. at 820.

Reflecting the shift in reliance from section 334.001(4)(D) to section 334.001(4)(B), the

Expenditure Plan transforms a project based on a county-park venue into a project based on a

convention-center venue. See Request Letter, supra note 1 (Exhibit C, Expenditure Plan). The

proposed work, however, appears to include much of the work described in the commissioners court

resolution and ballot proposition. The Expenditure Plan provides that the venue project consists of

a convention and visitors center at the Old Town Plaza site and two “annexes” to the center - “West

Convention and Visitors Center Annex” and “East Convention and Visitors Center Annex.” See id.

The “West Convention and Visitors Center Annex” would be located at the Javelina Hill site and

the “East Convention and Visitors Center Annex” would be located across the street from

Bicentennial Park, an existing county park. See id. (Exhibit D, Map). The related infrastructure

would include gardens and an outdoor museum adjacent to the convention and visitors center; a

nature tourism trail and visitor’s exercise trail and picnic area adjacent to the “West Convention and

Visitors Center Annex;” and a pavilion, water playscape, and swimming pool renovations and

improvements adjacent to the “East Convention and Visitors Center Annex.” See id. (Exhibit C,

Expenditure Plan).

Although much of this work appears to be contemplated by the ballot proposition and

commissioners court resolution,* several specific projects listed in the Expenditure Plan were not

specifically outlined in the election orders,’ and the Expenditure Plan appears to omit certain

improvements approved by the voters.” More importantly, whereas the ballot proposition focuses

on improvements to existing parks and the development of new public-use sites, the Expenditure

Plan centers on a convention and visitors center at the Old Town Plaza site and related

‘Compare Exhibits A-B, with Exhibits C-D, Request Letter, supra note 1.

‘In contrast to the Expenditure Plan, the election orders do not specifically mention a water playscape, gardens

and outdoor museum, exercise trail, or picnic area. Compare Exhibits A-B, with Exhibits C-D, Request Letter, supra

note 1. It is not clear whether these improvements could be included within more general items in the election orders.

‘Tor example, the proposition provides “for improvements to all existing parks.” Request Letter, supra note

1 (Exhibit B, Proposition). We understand that Terre11 County has two existing parks, Bicentennial Park and Memorial

Park. See Terre11 County Parks, avaiZabZe at http://www.sandersontx.org/parks.html. The Expenditure Plan appears to

provide for improvements at Bicentennial Park but not Memorial Park, which is not mentioned in the Plan. See Request

Letter, supra note 1 (Exhibits C-D, Expenditure Plan & Map). Furthermore, the proposition provides for public-use sites

at three areas: “the East Gate Entrance Park, located on Highway 90 on the east side of Sanderson, adjacent to the Budget

Inn”; “the Old Town Plaza, located near the Union Pacific Depot and Bunkhouse on Downie Street”; and “the Jav[e]lina

Hill Scenic Overlook located at the northwest comer of the intersection off Wilson Street and U.S. Highway 90.” Id.

(Exhibit B, Proposition). The Expenditure Plan provides for the development of a convention center at the Old Town

Plaza site and for improvements at the “Javelina Scenic Overlook,” which it calls “the West Convention Center Annex.”

Id. (Exhibits C-D, Expenditure Plan & Map). But the Expenditure Plan does not appear to provide for improvements

at the “the East Gate Entrance Park,” which is specifically listed in the proposition and described in the resolution.

Compare Exhibits A-B, with Exhibits C-D, Request Letter, supra note 1.

The Honorable Marsha Monroe - Page 10 (GA-01 56)

improvements.” The election orders do not expressly include a convention and visitors center;

rather, the commissioners court resolution describes a “visitor center” at the Old Town Plaza, which

is listed in the ballot proposition as one of three public-use sites to be developed.‘2 Thus, the

expenditure plan has a different emphasis from the election order.

III. Mav Terre11 CounW Spend Taxes Collected under Local Government Code

Chapter 334 for Improvements Described in its Expenditure Plan

A. Standard of Review Applicable to the Commissioner Court’s Decisions

The commissioners court is the county’s principal governing body. See TEX. CONST.

art. V, 8 18; Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77,80 (Tex. 1997). Pursuant to

article V, section 18 of the Texas Constitution, the “District Court shall have appellate jurisdiction

and general supervisory control over the County Commissioners Court, with such exceptions and

under such regulations as may be prescribed by law.” TEX. CONST. art. V, 8 18. See TEX. GOV’T

CODEANN. 8 24.020 (Vernon 1988) (tracking language of Texas Constitution, article V, section 18);

Agan, 940 S.W.2d at 80. A party may invoke the district court’s constitutional supervisory control

over a commissioners court judgment only when the court acts beyond its jurisdiction or clearly

abuses its discretion. See Agan, 940 S.W.2d at 80 (commissioners court had discretion to allocate

among county officers responsibilities not statutorily assigned to a specific officer); Ector County

v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992) (district court lacks jurisdiction to set constable’s

salary). Discretionary matters are for the commissioners court to resolve in the first instance, subject

to judicial review. See Agan, 940 S.W.2d at 80. “If the Commissioners Court acts illegally,

unreasonably, or arbitrarily, a district court may so adjudge.” Id.; see also Lewis v. City of Fort

Worth, 89 S.W.2d 975,978 (Tex. 1936) (city officers’ discretion to spend bond proceeds is limited

by rule that bonds voted by the people must be expended for purposes for which they were voted.)

Thus, where a statute vested particular duties in the county treasurer, the Agan court held that the

commissioners court could not reassign them to the county auditor. See Agan, 940 S.W.2d at 82.

B. Application of Review Standard to Terre11 County

We have addressed the legal questions raised by your request but we cannot resolve

the related fact questions in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. GA-0106

(2002) at 7, JC-0328 (2000) at 4. The Terre11 County Commissioners Court must make these

determinations in the first instance, subject to judicial review for abuse of discretion. See generaZZy

Agan, 940 S. W.2d at 80. We note, however, that the specific differences between the improvements

outlined in the election orders and the Plan, coupled with the shift in focus from a county-park venue

project to a convention-center venue project, provide evidence that the Expenditure Plan is not

consistent with either the voter’s intent or the description of a venue project as a convention center

facility under section 334.001(4)(B). Although this office cannot assess the ultimate factual

‘I Compare Exhibits A-B, with Exhibits C-D, Request Letter, supra note 1.

12Compare Exhibits A-B, with Exhibits C-D, Request Letter, supra note 1.

The Honorable Marsha Monroe - Page 11 (GA-01 56)

significance of these differences, the information you have presented strongly suggests that Terre11

County’s proposed expenditures will not comply with the applicable legal requirements for the

expenditure of venue-project funds.

c. How Terre11 County May Lawfully Expend the Chapter 334 Tax Proceeds

In the event this office “opine[s] that the expenditure of the venue funds on the venue

project described in Exhibit C is not authorized by the voters or Texas law,” you also ask us to

address “(a) how the venue funds can lawfully be expended, or (b) how [] Terre11 County should

otherwise dispose of the venue funds.” Request Letter, supra note 1, at 3 (Question 3). We have

suggested that the commissioners court consider whether the proposed project could be a venue

project within the meaning of former section 334.001(4)(E). Because the commissioners court has

not addressed the relevance of this provision, it is unnecessary to consider the alternative disposition

of these tax funds at this time.

The Honorable Marsha Monroe - Page 12 (GA-0156)

SUMMARY

The terms of the election pursuant to which the Terre11 County

voters approved the venue-project tax for park improvements

constitute a contract with the voters, and Terre11 County is authorized

to use venue-project funds for improvements outlined in the current

Expenditure Plan only if the improvements are consistent with the

election orders.

Improvements proposed by Terre11 County constitute a “venue

project,” as defined by Local Government Code section 334.001(3),

(4)(B), and (5), only if Terre11 County intends to develop and

construct a convention center facility and to undertake other

improvements and infrastructure in conjunction with the development

and construction of the convention center facility, and if the other

improvements are related improvements located in the convention

center facility’s vicinity or infrastructure that relate to and enhance

the convention center facility.

eneral of Texas

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Susan L. Garrison

Assistant Attorney General, Opinion Committee