R-611

.4TTcmNEY GENERAL June 30, 1947

Hon. J.P. WIllLams CountyAttorney V-284
Yoakum County Plains, Texas OpinionNo.

Re: Voting of County Park tax and issuance of TimeWarrants to be paid therefrom.

Dear Sir:

We quote your letter of June 16, 1947 in part as follows:
"Iwould like to have your opinion as to whether Yoakum County has authority to issue interestbearing time warrants for the purpose of const??ucting swimmingpools 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 CommissionersICourt of Yoakum County called an electlon to be held on May 1.8,1946 to determine the following proposition:

I, 'Whetheror not the Commissioners'Court of Yoakum County, Texas shallbe authorized to levy an annual ad valorem tax not to exceed five cents on a one hundreddollar valuation of all taxable propertywithin said county for the purpose of constructing,maintaining and operating 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.'
"Thenotice of the electlonwas posted in each of,the electionprecincts in the county on April 24, 1946.
"The election prevailedb% more than a twothirds (2/3)majority vote.
After the above-quotedmatter you set out in your letter a copy of the notice of Intention to Issue time warrants, which you statewas published in accordancewith the Bond and Warrant Law of 1931 (Article2368a,V.C.S.).Hon. J.P. Williams, page 2 v-284

We do not have sufficient facts beforeus to determine whether the electionwas held in accordancewith the requirements of law. However, at the outsetwe are confrontedwith the questionwhether, in view of the propositionabove-quoted, the tax authorized by Article 6078, V.C.S,, was legally submitted to and ratifiedby the property taxpaying voters of the county.

The first paragraph of Article 6078 provides as follows:
"EachCommissionersCourt 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 shallbe levied and collecteduntil the proposition is submitted to and ratifiedby the property taxpaylng voters of the county at a general or special election called for that purpose, provided,a t,wothirds majority of the property taxpayingvoters of such county, at an election held for suchpurpose shall determine in favor of said tax* If said court desires to establish two OP more of such county parks, they shall locate them inwidely 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 sufficient in their judgment to properlymaintain such parks and build and construct pavilions and such other buildings as .theg may deem necessary-, lay out and open driveways and walks, pave the same or any part thereof, set out tirees and shrubbery,constructditches or lakes, and make such other improvementsas they may deem proper. Such parka shall remain open for the freeuse of the public under such reasonable rules and regulations as said court may prescribe." (Emphasisadded)

Itwill be noted that the purpose for which the tax may be levied is for the "purchaseand improvementof lands for use as county parks*" However, the purpose as set out In the proposition is for "constructing,maintainingand operatingpublic parks." In otherwords, the statutorypurposewas not included~ in the.proposition submitted to the qualified voters. Moreover, it is our opinion that the purpose as votedupon does not come within the statutorypurpose, and that the election is to be held for naught.

It is well established in law that the authority to exercise the taxing power is to be strictly construedand 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,

. . 0The power to tax carrieswith it the possible exercise of it to impose oppressiveburdens upon the people, and when this power is legally appropriatedby the governing authority of a nmnicipal corporation, the recordmust affirmatively show,by a strict constructlon of the languageused, 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 twothirdsmajority, for the purchase and improvement of lands for use as county parks. It is obvious that this tax would come out of the constitutionalpermanent improvementtax (ArticleVIII, Sec. 9). The purpose as set forth in the propositlon submitted to the voters specifieda different purpose, to-wit: constructing, maintaining and operatingpublic parks. The operating or current expenses of a county park would, in our opinion,be payable out of the general fund of the county rather than the permanent improvementfund. It is evident, therefore, that a constitutional tax, other than the one covered by Article6078, was attempted to be authorized at the electionheld 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 Countydid not authorize the tax for the purchase and improvement of lands for use as county parks,within the contemplation of Article 6078 at the electionheld on that date. It, therefore,become3unnecessary to determinewhether the legal requirementsrelating to the posting of notices, the conduct of the election, the canvassing of the returns, etc.,were met.

This department has heretoforedetermined that the construction of a swimmingpool is a park improvementunder Article 6078. See copies of OpinionsNumbers O-2594 and O-7319. These opinions hold that timewarrants may be issued against the tax mentioned inArticle 6078 is such tax is authorizedwithin 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 authorizes the tax in accordancewith the provisions of Article 6078, time warrants may be issued against such tax for park improvement purposes,which improvementwould consist of the construction of swlmmingpools 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 letterwould meet the requirements 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 submission of the proposition to the qualified property taxpaylng voters of a countywhich 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 foruse as county parks. was specified ,t propositionwherein the purpose constructing,maintaining and operating public parka within said county",does not meet the terms ofArticle 6078, since it includes "maintenanceand 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, timewarrants may be issued against that tax for park improvementpurposes,which improvementscould consist of the construction of swimmingpools and bathhouses in the county parks.
Very truly yours
ATTORNEY GENERAL OF; TEXAS

GWS:s:jrb: By s/GeorgeW, Sparks (George W. Sparks Assistant

APPROVED a/Price Daniel ATTORNEY GENERAL