Untitled Texas Attorney General Opinion ( 1947 )

R-611
.4TTcmNEY GENERAL
June 30, 1947
Hon. J.P. WIllLams Opinion No. V-284
County Attorney
Yoakum County Re: Voting of County Park tax and
Plains, Texas issuance of Time Warrants to be
paid therefrom.
Dear Sir:
We quote your letter of June 16, 1947 in part as fol-
lows :
"I would like to have your opinion as to whether
Yoakum County has authority to issue interest-
bearing time warrants for the purpose of const??uct-
ing swimming pools and bathhouses in the county
parks of Yoakum County. The applicable Statute is
Article 6078.
"The factual situation is as follows: On April
16, 1946, the CommissionersI Court of Yoakum County
called an electlon to be held on May 1.8, 1946 to de-
termine the following proposition:
I,
'Whether or not the Commissioners' Court of
Yoakum County, Texas shall be authorized to
levy an annual ad valorem tax not to exceed five
cents on a one hundred dollar valuation of all
taxable property within said county for the
purpose of constructing, maintaining and oper-
ating public parks withln said county; one park
to be located in the vicinity of Plains, and
one to be located in the vicinity of Denver
city. '
"The notice of the electlon was posted in each
of,the election precincts in the county on April
24, 1946.
"The election prevailed b% more than a two-
thirds (2/3) majority vote.
After the above-quoted matter you set out in your let-
ter a copy of the notice of Intention to Issue time warrants,
which you state was published in accordance with the Bond and
Warrant Law of 1931 (Article 2368a, V.C.S.).
Hon. J.P. Williams, page 2 v-284
We do not have sufficient facts before us to determine
whether the election was held in accordance with the require-
ments of law. How ever, at the outset we are confronted with the
question whether, in view of the proposition above-quoted, the
tax authorized by Article 6078, V.C.S,, was legally submitted to
and ratified by the property taxpaying voters of the county.
The first paragraph of Article 6078 provides as fol-
lows:
"Each Commissioners Court is authorized to
levy and collect a tax not to exceed five (5) cents
on each one hundred dollars assessed valuation of
the county for the purchase and improvement of lands
for use as county parks. No such tax shall be
levied and collected until the proposition is sub-
mitted to and ratified by the property taxpaylng
voters of the county at a general or special elec-
tion called for that purpose, provided, a t,wo-
thirds majority of the property taxpaying voters
of such county, at an election held for such pur-
pose shall determine in favor of said tax* If said
court desires to establish two OP more of such
county parks, they shall locate them in widely
separated portions of the county. Said court shall
have full power and control over any and all such
parks and may levy and collect an annuai tax suf-
ficient in their judgment to properly maintain such
parks and build and construct pavilions and such
other buildings as .thegmay deem necessary-,lay
out and open driveways and walks, pave the same or
any part thereof, set out tireesand shrubbery, con-
struct ditches or lakes, and make such other im-
provements as they may deem proper. Such parka
shall remain open for the free use of the public
under such reasonable rules and regulations as
said court may prescribe." (Emphasis added)
It will be noted that the purpose for which the tax may
be levied is for the "purchase and improvement of lands for use
as county parks*" However, the purpose as set out In the propo-
sition is for "constructing, maintaining and operating public
parks." In other words, the statutory purpose was not included~
in the.proposition submitted to the qualified voters. Moreover,
it is our opinion that the purpose as voted upon does not come
within the statutory purpose, and that the election is to be held
for naught.
It is well established in law that the authority to ex-
ercise the taxing power is to be strictly construed and must be
closely followed,
Hon. J.P. Williams, page 3 v-284
In the case of State ex rel. Rea et al. v. Etheridge
et al., 32 S.W. (2) 828 (Corn.App., opinion adopted by Sup. Ct.(,
the court held as follows:
8,
. . 0 The power to tax carries with it the
possible exercise of it to impose oppressive bur-
dens upon the people, and when this power is
legally appropriated by the governing authority
of a nmnicipal corporation, the record must af-
firmatively show, by a strict constructlon of the
language used, that the power has been lawfully
acquired. . . .'I
See also Wood v. City of Galveston, 76 Tex. 126, 13 S.W.
227; City of Austin v. Nalle, 85 Tex. 520, 22 S.W. 668, 960.
Article 6078 authorizes the tax upon a vote of a two-
thirds majority, for the purchase and improvement of lands for
use as county parks. It is obvious that this tax would come out
of the constitutional permanent improvement tax (Article VIII,
Sec. 9). The purpose as set forth in the propositlon submitted
to the voters specified a different purpose, to-wit: constructing,
maintaining and operating public parks. The operating or cur-
rent expenses of a county park would, in our opinion, be payable
out of the general fund of the county rather than the permanent
improvement fund. It is evident, therefore, that a constitutional
tax, other than the one covered by Article 6078, was attempted to
be authorized at the election held on May 1.8, 1946. You are,
therefore, advised that it is the opinion of this department that
the qualified property taxpaying voters of Yoakum County did not
authorize the tax for the purchase and improvement of lands for
use as county parks, within the contemplation of Article 6078 at
the election held on that date. It, therefore, become3 unneces-
sary to determine whether the legal requirements relating to
the posting of notices, the conduct of the election, the canvass-
ing of the returns, etc., were met.
This department has heretofore determined that the con-
struction of a swimming pool is a park improvement under Article
6078. See copies of Opinions Numbers O-2594 and O-7319. These
opinions hold that time warrants may be issued against the tax
mentioned in Article 6078 is such tax is authorized within the
terms of that article. Lasater v. Lopez, 217 S.W. 373; Adams v.
McGill, 146 S.W. (2) 332 (W.E. Ref.).
You are, therefore, advised that if Yoakum County author-
izes the tax in accordance with the provisions of Article 6078,
time warrants may be issued against such tax for park improvement
purposes, which improvement would consist of the construction of
swlmming pools and bathhouses in the county parks of Yoakum County.
Hon. J. P. Williams, page 4 v-284
You are further advised that it is our opinion that such
a notice as the one outlined in your letter would meet the re-
quirements of Sections 2 and 3 of Article 2368a. Of course,
notice is required for each contract in excess of $2,000.00.
SUMMARY
1. Article 6078, V.C.S., authorizes the sub-
mission of the proposition to the qualified property
taxpaylng voters of a county which would authorize
the commissioners' court of that county to levy and
collect a tax not to exceed five (5) cents on each
one hundred dollars assessed valuation of a county
for the purchase and improvement of lands for use as
was
county
specified
parks. ,t proposition wherein the purpose
constructing, maintaining and oper-
ating public parka within said county", does not
meet the terms of Article 6078, since it includes
"maintenance and operation" and was not limited to
permanent improvements.
2. If the terms of Article 6078 are met and
the commissioners' court is legally authorized to levy
and collect such tax, time warrants may be issued
against that tax for park improvement purposes, which
improvements could consist of the construction of
swimming pools and bathhouses in the county parks.
Very truly yours
ATTORNEY GENERAL OF;TEXAS
By s/George W, Sparks
(GeorgeW. Sparks
Assistant
GWS:s:jrb:
APPROVED
a/Price Daniel
ATTORNEY GENERAL