Honorable H. Pat Edwards 

civil District Attorney 

Hall of Rbcorda 

Dallas, Texas 

Dear SIX-: Attention: Mr. FraakHcCullough 

Opialoa no. o-4285 

Re: Are tihe po?opertles, the title 

to which passed to.tbe City 

of Dallas ,uadeP the'Wil1 of 

Dr. W.-W. Samuell, exempt 

from taxation? 

'-we --.aee %-r&pt- .of.- ~JOur lcettwlr ~-r4qG4tiiag -aa 

opi& of this department, which reada In pet ~88 follows: 

Commi~~Foaeca~ Court, requ6stlag that certain’ 

pmpertlee to i?hioh it obtained title under Dr. 

W. W. Samuell~a~Ul.ll be exempt from State aad 

oounty texea. Thirty-four tracts are set out 

la the reeolutloa, .The Interests passing to the 

city under this ail1 range all the way from ccmplete title to a l/3 Interest in 4om4 of the 

tracts. I 8111' attaching a copy of the letter accompaaying the resolution. 

%ome of the .propertles are adapted to public park use aad are now belag used a8 ,auch, aad 

I have no doubt but that these me properly exempt 

from taxatloa. Bowever, sane of the properties 

at a future date may be sold and the proceeds 

therefYom put Into a trust fund. And farther, 

other portioas of the property can not be sold 

aad the Income therefrom is to be ased for park 

purposea. We are coafroated with the qaestloa 

as to whether the properties la the~laat tie 

catagoriea are exetipt from State and-Coahtg taxation because of the city's Interest therein. 
Honorable H. Pat Edwards. Page 2~ (O-4285) 

. - 

“I’.am submlttlag the followIag two questions with the request that you be kind enough 

to give as your oplalon thereoa: 

"1. Aris the properties, the title to which 

passed to the City of I)allaa under the Samuel1 

Will, and which may be sold at some future time 

depending upon the city's election, the proceeds 

therefrom to be put In a trust fuad for park purposes, subject to taxation? 

"2. Are the properties passlag under said 

wlll which caa not be sold, aad the Income from 

which Is to bs used for park purposes, subject to 

taxation? 

n . . . 

“It appears, . . . , la Dallas County, that 

It has been ti long exlstlag ciistom for the ComWe have Arefully-~~er4mLaed ,the judgmeat construing 

the will aad comspoadeace attaahed ~to your cplnion request 

but as they are copies we assume that you do aot.$sh to have 

either returned aad are therefore retaining them for our files. 

In ardor to answer your request as. set out we sre 

grouping the properties as set out la the jadgmeat which coastrued the Samuel WI11 as follows: 

i.. 

1. Our first auswer 'till therefore laclude: 

(a) The tracts,cf land adjudged to be fit for and 

adapted to park purposes by the Park B4oFB of the City of 

Dallas. 

2. Our second answer vi11 laolude: 

(b) The.tracts of laad pbyalcallg and~ecoaomlcally 

uaflt aad lnoapable of being put Into actual parks, but which 
Boaoral+e.H. Pat Edwards, Page 3 (O-4285) 

are commercially improved and revenue-bearing and which 

. have been ordered to be retained la order to provide revenues to be used la Improving and malatalnlng the lands 

mentioned In paragraph (a) or to be exchanged for sole 

title to such tracts. 

(c) The tracts of land physloally and economlcally Incapable of being put to actual park uses, or being 

used for reveaue, the sale of which-has been decreed In 

order that the proceeds thereffom might be used for the 

purposes expr?ssed la~paragraph (a). 

We first desire to point out that the various 

uadlvlded Interests la the properties dovIsed to the City 

of Dallas passing to others than the Park Board of Dallas 

are subject to taxation under authority of Galveston Wharf 

Comlylng v. Ga.lveston, 63 Tex. 14, 25. The prop&lea. passe 

Ing to the City Park Board, that Is those properties meatloaed la paragraph 

the Will la clauses I 

of the court's judgment construing 

a), (b) aad (c), if they are entitled 

to tax exemption, would be exempt after December 31, 1937, 

-the..date of Dr.. Samuell's death, under a<arIty of +~%well 

.i% Colnpaag,si~H~~settle;87 5. W. 911, and'-vpim$ti of the 

Att.c~+%a&a% A&. O-2124; both of whloh~hold i$t~& llabillty P%~--tnrssS~Ie fIxed as of January 1; l f each:++. 

Unless th+-W&11-+rorides vthsrwlae tltle~~wculd ~vaSt., lmmedIately .ln the various.devlsees thereof as ~1s held In,Long 

v:Sheltoa;~155 S. W. 95, (Error Refused), ln~the followlug language: 

"An estate by devise stakes effect lmmedlately upotl,death of the test&or uale~ss otherwlse 

dlrected~,.-aad property then passes to the devlsee. 

The d-iffem@t .legal requirzmeat~s ~84~ to probating 

aad record-lag wills am-merely de~slgned -as.means 

to sub&anti&e, preserve ~aad give aotlce~.of such 

lastrumeat as evidences. of title. See also Artl610 3314, R.C.S. of Texas, and 44 T. J. '778, et 

seq." 

Our first aaswer Is that the property Involved Is 

not subject to taxation by reason of the followlig authorities: 

Article VIII, Section 1, of the Texas Constltutlon, provides that: 

"Taxation shall be equal and uniform. All 

property In this state, whether owned by natural 

persons cz corporations other than mualclpal, 
Honorable I& Pat Edwards, Page 4 (O-4285) 

shall bi taxed In ~proprotloa to Its value which 

shall be ascertained as may be provided by law." 

Article VIII, Section 2, of the Constitution of 

Texas, prbvldes In part as follows: 

"All ocoupatlon taxes shall be equal and 

uniform from the same class and subjects within the limits of the authority levying the tax; 

but the Legislature may, by general law, exempt 

from taxation public property used for public 

purposes; . . . aad all laws exempting property 

from taxation other than the property above meaHoned shall be null and void." 

Article XI, Section 9, of the Texas Constitution, 

provides that: 

"The property of couatlea, cities and towns, 

owned and held only for public purposes, such 

as public buildings and the sites therefor. Fire 

.+@+ea.mnd,&ihe fuwntture +hereof,.aad all propert 

pub 3 

use-d, a'liiteaded for extinguishing fires, 

Ic grounds and all other property devoted 

exclusI.ve~ly, to the.use. and ~benefit~ of,the public 

shall be~extipt froP foree&s*le ,aad-~fromtaxatia, pwo-ui,ded, n&h&z&g herein 4hal.l ~pev@nt the 

e&wcsment vf,~the ~vendors llea, the ~eechatilca 

~'.bu%lders- lien, ~0~ mother liens aow ~exfstlng." 

'Article 7150, R.&S. 1925, contains the f&lowing pr4vlsIons: 

"The following property shall be exempt 

from taxation, to-wit: 

11 . . . 

"4. Public property. - All property, whether 

real e persoaal, belonging exclusively to this 

state, or any political subdlvlsloa thereof, or the 

United States. . .* 

As the property Involved nil1 be used for "public 

pUrpoae*" we believe that the tracts of land set aside as 

parks as deaorlbed la Section 7, clause (a) of the ceurt's 

jndgmeat construing the Will of Dr. Samuall are exempt from 

taxation. 
Honorable~H. Pat Edwards, Page 5 (o-4285) 

Wk have been unable to find anp auf;porlty dlrectly In point on our second answer as to tne otner olaasea 

of properties which vi11 not be used for parks. 

In the case of City of Abllene v. State, (writ 

iillsmlased) 113 S. W. (2d) 631, the City of Abilene had 

acquired land In Jones County for the purpose of a reserVoIr site for Impounding water for the use of the City. 

The City had secured from the proper authorities the necdssary appropriation of water, done engineering work and 

authorized the issuance of bonds, but had been unable to 

acquire all the land necessary and had not done any construction work or actually used any of the land for reservoir purposes. For five years prior to ths suit the City 

had been leasing the land, but all leases had been subject 

to the right to build the dam and reservop at any time, 

the City not having abandoned its Intentltih tonccompllsh 

the purpose for which the landa were acquired. The court 

held: 

"It Is, therefore, our view that when ;the 

.d+acts &:a.~ given eaae.~establtsh the .ewnerugip 

.of:-~preper~~by~aie%parl corporation, which has 

.~Uw;gquirsd fe? ~aa.autherlM pnbllc pmpoae, 

p0rpe4efer which It Is owned aad,'held 

~~.~-8~.~.~~a~;.such &a~pei.ty is to.be 

.MgaMed:-au~ussd fo~pub~llc~ pnrpc4ebr and-the 

Legislature has the power to provide 

law for Its exemption from taxation." 

by general 

In the case of the State v. Cit.+ of ioustoa, et 

al, 140 S..W: (2d) 277, 278, the court expressed its conclusion in the folloving language: 

"The' fact that the ,poperty was ranted to 

p&vat= persona, aad was therefore closed to the 

public, does not aeoessarlly determine that s&ah 

property la not held fcr a public purpose. Certainly the stIpul&ed facts lead to the conclusion 

that ao much of the property as was not bought 

to be devoted directly to the opening of the Boulevard was bought for the purpose of ooaserving the 

rRoadways to Turning Basin Funds'. If the pr0perty 

was bought and is being held to preserve such 

fund, how caa It be said that It was not bought, 

and Is not being held for a pabllc porpoas? 

'Cleraly the iact: that the City Is renting 

the property to private persons pending tlae lntcrval before its sale cannot change the eharac- 
Honorable Ii,. Pat Edwards, Page 6 (O-4285) 

ter of the City's Interest In the property when 

the GltJr-does sell such property, it must aecessarlly acquire the proceeds to 'Roadways to 

Turning Basin Funds and Bonds'.! 

Ih the case of State v. City of Houston, supra, the 

court decreed exemption on the theory that the property was 

actu%Jly bought and used for public purpose and any surplus 

was simply being held pending sale, while la our case the 

property Itself will not be used for a public purpose. In 

the case of the City of Abllene v. State, above, the court 

decreed tax exemption on the theory that the property was 

held for an auth6rIzed public &rpose which had not been 

abandoned but was only temporarily held In abeyance. Our 

particular facts Indicate that the specific propsrtles 

will never be used for publla purposes, but will be sold or 

leased for revenue purposes. In the case of City of Sherman 

v. Williams, 19 S. W. 606, the property declared tax exempt 

was rented by the City to private IadIvl~uals pending sale 

upon whIch~the poceeda therefrom would be placed directly 

in the tax faad so that it stood as a substltate for tz+xea 

due ,to. +he City, whlla th4~pSopsrty .+mreln %nvolsed--deea 

but-staud--as,;a suhtituik ~fcr any fund but is held only for 

the -be&fit ?f~t* ps3Ykfuu~i 

Theoa4e~vf~Senta~Awa-inf~~v. City ef.Saa 

Aiittilo, 259 S;&. .926,,.931, discusses tax exemptions In 

~the followI- wage? 

%t&, is the 'Coastltutloa requires the propertgi.~as. ~a prerequisite to Its Eight to exemptloa, 

to. be uxoluslvely used by the charlt~b~e'laatltuClan, It t4 apparent, lf'ae part of It Is rented 

out and the relation of the landlord aad tenant 

created, that.very fact wpuld necessarily destroy 

the excluslvd use necessary to b4 retained by the 

owaer to bring Its property wlthln the plaLn terms 

of the Constitution, aad It has been thorsPore 

held, as It was la that case (Morris v. Mason, 

5 S. W. 519) aad In State v. Settegast, (Tex. Cw. 

App.) 234 S. W. 925, that the leasing of all or 

any part of the charitable lnstltuticn's property 

to those not themselves engaged In a wholly charitable work, or the eccupanoy of eveq a part of the 

property by others under what ambuaCa to an equivalent situation (City of Houston v. Scottish Rite 

Association, 230 S. W. 9@), destroys the exempt 

chara&er of *he props& aad It is plain that in 

these cases there could ve been no other holding. 
Honorable R. Pat Rdwards, Page ~7 (o-4285) 

"The constitutional requiremeat Is twofold; 

the property must be owned by the organlsatloa 

clalmlng the exemption; It muat be exclusively used 

by the crganleatlon, as dlstlngulshed from a partial use by It, aad a partial use by others, whether 

the others pay rent or not. City of Houston v. 

ScottlshRlte, etc., aupra.' 

In St. Edwards College, v. Morris, 17 s. w. 512, 

513, the following language is used: 

I, . . . Under the statutory exemption from 

irtlon of lands connected with public collages, 

., the connection of buildings and of lands 

referred to, may not be one of mere~contlgulty, 

but one of connected use, for a commou purpose, 

public In its nature and not foreign to the leading purposes for which public colleges and academies are established and maintained." 

In Galveston Wharf Company v. Galveston, 63 Tex. 

Rep. 14, at page 23, the ~cltg's Interest In a wharf was 

held exempt In the folloting language: 

"It Is property held only for purposes 

essentially public, and may be said to be DDEvoted exclusively to the use and'beneflt of 

the public; indeedi It would be hard to Imagine 

a use more essentially public than la that of 

a~wharf which extends, along the front of a city, 

and upon which is received a large part of the 

articleswhich go to make up the Inward and outward commerce of the.state. It Is a property which 

all persons and vessels have the right to,use, 

under proper regulations, and.wIthout the use of 

which the business' of the city oould not be conducted. That compensation Is received for Its use 

does not wIthdraw from Its public oharacter. 

"There may be property~ owned by municipal 

corporations which would be subject to taxation, 

but the enumeratlon'of certain thlngs in the 

section of the ConstitutFon quoted, as exempt 

from taxatloa, vas not intended to operate as a 

declaration that things not enumerated were 

SUbjCCtj but sisplg to lndlaate the character 

of things, and uses to whiah they must be appro-~ 

priated, In order to be entitled to the exemptlon." 
Honorable R. Rat Edwards, Rage 8 (o-4285) 

In Red v. Morris, 10 3. W. 681, the following 

language is used: 

"We think, that pursuant to the same policy, 

the Legislature, meant, by the employment of the 

terms of the Constitution, to prevent the owners 

of property from taking advantage of the exemption, when they leased the property to others 

for profit, to be used by the latter for the maintenance .of schools." 

In nearly all cases construing tax exemption of 

property we fLnd the following language: 

'ExemptLons from taxation are never favored, and in the construction or Interpretation of 

the law extending exemptlons from taxation to 

any citLzen or class of property all doubts are 

resolved against the exemption. Morris v. Mason, 

5 3. W. 519; City of Houston v. ScottishRite 

Benevolent Association, 230 S. W. 978; Cltg; of 

Abllene v. State, ,113 S. W. (2d) 631,~ 635. 

In all the above cases the courts in construing the 

rights of property to tax exemption look prlmarlly to the basic 

purposes for which such property is acquired and the use to whloh 

it is devoted. The asses referring to sahools and charitable 

institutions deny or grant tax exemption on the theory of 

whether or not the property is "exclusively used" for such purposes, while those referring to the lxroperties of cities do not 

limit tax exemption to such strict terms but to such as are 

"owned and held for public purposes." All authorities Lndlcate 

that the properties must be aaqulred and held for only those 

purposes expressly decrlared exempt by the Constitution. Thus 

property owned by cities must be devoted to present public 

purposes, as In the Galveston Wharf Co. case, above, or acquired 

In furtherance of a present Intention to devote it to a deffnlte public purpose, such as in City of Abilene ease, Burma. 

Our present situation Is based on the tax exemption of property 

which cannot be dlreetlg mused for public purposes at this time, 

or In the future, and may, at the most, be only lndlreatlg 

benefialal to the public by furnishing funds for construction 

or maintenance of parks. We oannot believe that the property 

not used as parks are exempt from taxation, for to hold otherwise would permit a city to acquire and hold vast tracts of 

land, free from all taxes, at the expense of the other local 

property owners. 
Honorable R. Pat Edwards, Page 9 (O-4285) 

We therefore believe that the,propertles Involved 

In our second.-answer, that is, those described in section VII, 

clause (b) and (d) of the court's judgment construing the will 

of Dr. Samuell, are subject to taxation. 

Your question also relates to the necessity of an 

order of the Commissioners f Court purporting to direct the 

Tax Assessor to place the property on his exempt rolls. 

In 40 Tex. Jur., Section 996, page 133, it is said: 

"The board of equalization Is ooncerned with 

the valuation of the property on the rolls, not 

with the listing of them. . . More partZ.cularly, 

the board may not add to the roll property not entered, nor eliminate an entry appearing on the tax 

roll. County of Galveston v. Galveston Gas Co., 10 

S. W. 583; Sullivan v. Bitter, 113 S.W. 193." 

In 40 Tex. Jur., Section 98, page 137, Lt is said: 

"The authority to assess property, save in 

exoeptlonal cases, is vested In the assessor of 

taxes of the several aounties of the state and 

the method of making such assessment is plainly 

pointed out by statute, SullFvan v. Bitter, supra." 

We therefore believe that there Fe no necessity 

for any such order as the above authorities plainly Indicate 

that it would not have any legal effect. 

We trust that the foregoing ansvers your Inquiries. 

Yours very truly 

APPROVED MAY 12, 1942 

Grover Sellers 

FIRST ASSISTANT 

ATTGRWEXGPWDPAL 

AFH:ul:mjs 

ATTORNEYGEWERALQPlPEXAS 

By /s/Alfred F. Herbelin 

Alfred F. Rerbelin 

Assistant 

APPROVED OPINIOW COMMITTEE 

BP /s/RWF CRAIRMAIV