HonorableH. Pat Edwards

civil DistrictAttorney Hall of Rbcorda Dallas, Texas
Dear SIX-: Attention: Mr. FraakHcCullough Opialoano. 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 ~88follows:

Commi~~Foaeca~

Court, requ6stlagthat certain’ pmpertlee to i?hioh it obtained title under Dr. W. W. Samuell~a~Ul.ll be exempt from State aad oounty texea. Thirty-fourtracts are set out la the reeolutloa, .The Interestspassing 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'

attachinga copy of the letter accompaayingthe 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 properlyexempt from taxatloa. Bowever, sane of the properties at a future datemay 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 coafroatedwith the qaestloa as to whether the properties la the~laat tie catagorieaare exetipt from State and-Coahtgtaxation because of the city's Interest therein.HonorableH. Pat Edwards. Page 2~ (O-4285) . -

“I’.am submlttlagthe followIagtwo questions with the request that you be kind enough to give as your oplalonthereoa:
"1. Aris

the properties,the title to which passed to the City of I)allaa under the Samuel1 Will, and whichmay be sold at some future time dependingupon the city's election,the proceeds therefrom to be put In a trust fuad for park purposes, subject to taxation?
"2. Are the propertiespasslag 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 tilong exlstlag ciistom for the ComWe have Arefully-~~er4mLaed ,thejudgmeat construing the will aad comspoadeace attaahed~to your cplnionrequest but as they are copies we assume that you do aot.$sh to have either returned aad are thereforeretaining them for our files.

In ardor to answer your request as.set out we sre grouping the propertiesas set out la the jadgmeatwhich coastrued the SamuelWI11 as follows: i.. 1. **Our first**  auswer 'till therefore laclude: (a) The tracts,cf land adjudged to be fit for and adapted to park purposesby the Park B4oFB of the City of Dallas.
2. Our second answer vi11 laolude:

(b) The.tracts of laad pbyalcallgand~ecoaomlcally uaflt aad lnoapableof being put Into actual parks, but whichBoaoral+e.H.Pat Edwards, Page 3 (O-4285)

are commerciallyimprovedand revenue-bearing and which

. have been ordered to be retained la order to provide **rev**

enues to be used la Improvingand malatalnlngthe lands mentioned In paragraph (a) or to be exchanged for sole title to such tracts.

(c) The tracts of land physloallyand economlcally Incapableof being put to actual park uses, or being used for reveaue, the sale of which-hasbeen decreed In order that the proceedsthereffommight be used for the purposesexpr?ssed la~paragraph (a).

We first desire to point out that the various uadlvlded Interestsla the propertiesdovIsed to the City of Dallas passing to others than the Park Board of Dallas are subject to taxationunder authority of GalvestonWharf Comlylng

v. Ga.lveston,

63 Tex. 14, 25. The prop&lea. passe Ing to the City Park Board, that Is those propertiesmeatloaed 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'sdeath, under a<arIty **of** +~%well .i% Colnpaag,si~H~~settle;87 5. W. 911, and'-vpim$ti of the Att.c~+%a&a% A&. O-2124;both of whloh~holdi$t~&llabilltyP%~--tnrssS~Ie fIxed as of January 1; lf each:++. Unless th+-W&11-+rorides vthsrwlae tltle~~wculd ~vaSt.,lmmedIately .lnthe various.devlsees thereof as ~1s

held In,Long v:Sheltoa;~155 S. W. 95, (ErrorRefused), 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 taxationby reason of the followligauthorities:

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

"Taxationshall 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 ascertainedas may be providedby law." Article VIII, Section 2, of the Constitutionof Texas, prbvldes In part as follows:

"All ocoupatlontaxes shall be equal and uniform from the same class and subjectswithin the limits of the authority levyingthe tax; but the Legislaturemay, by general law, exempt from taxation public propertyused for public purposes;

. . . aad all laws exemptingproperty the propertyabove meafrom taxation other than Honed shall be null and void." 9, of the Texas Constitution, Article XI, Section providesthat:

"The property of couatlea,cities and towns, owned and held only for public purposes,such as public buildingsand the sites therefor. Fire .+@+ea.mnd,&ihefuwntture+hereof,.aadall propert pub 3 use-d,

a'liiteadedfor extinguishing fires, Ic grounds and all other propertydevoted 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."
'Article7150, R.&S. 1925, containsthe f&lowing pr4vlsIons:

"The followingproperty 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 subdlvlsloathereof, 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 construingthe Will of Dr. Samuall are exempt from taxation.Honorable~H.Pat Edwards, Page 5 (o-4285)

Wk have been unable to find anp auf;porltydlrectly In point on our second answer as to tne otner olaasea of propertieswhich 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 Impoundingwater for the use of the City. The City had secured from the proper authoritiesthe necdssary appropriationof water, done engineering work and authorizedthe issuance of bonds, but had been unable to acquire all the land necessaryand had not done any constructionwork **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~

pnrpc4ebrand-the Legislaturehas 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 expressedits 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 aeoessarllydeterminethat 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 ooaservingthe 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? 'Cleralythe iact:

that the City Is renting the property to private persons pending tlaelntcrval before its sale cannot change the eharac-HonorableIi,. Pat Edwards, Page 6 (O-4285)

ter of the City's Interest In the propertywhen the GltJr-does

sell such property,it must aecessarllyacquire the proceedsto 'Roadways to Turning Basin Funds and Bonds'.!
Ih the case of State v. City of Houston, supra, the court decreed exemptionon the theory that the property was actu%Jlybought and used for publicpurpose and any surplus was simplybeing held pending sale, while la our case the propertyItself 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 propertywas held for an auth6rIzedpublic &rpose which had not been abandonedbut was only temporarily held In abeyance. Our particularfacts Indicate that the specificpropsrtles 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 propertydeclaredtax exempt was rented by the City to private IadIvl~uals pending sale upon whIch~thepoceeda therefromwould be placed directly in the tax faad so that it stood as a substltatefor 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, discussestax exemptionsIn ~the followI- wage?

%t&, is the 'Coastltutloa requires the propertgi.~as.

~a prerequisiteto Its Eight to exemptloa, to. be uxoluslvelyused by the charlt~b~e'laatltuClan, It t4 apparent, lf'ae part of It Is rented out and the relation of the landlordaad tenant created,that.very fact wpuld necessarilydestroy the excluslvduse necessaryto 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 (Morrisv. 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 charitablelnstltuticn's property to those not themselvesengaged In a wholly charitable work, or the eccupanoyof eveq a part of the propertyby others under what ambuaCa to an equivalent situation (City of Houston v. ScottishRite Association,230 S. W. 9@), destroysthe exempt chara&er of *he props& aad It is plain that in these cases there could ve been no other holding.HonorableR. Pat Rdwards, Page~7 (o-4285)

"The constitutional requiremeatIs twofold; the propertymust be owned by the organlsatloa clalmlngthe exemption;It muat be exclusively used by the crganleatlon, as dlstlngulshed

from a partial use by It, aad a partialuse 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 languageis used:

I,

. . . Under the statutoryexemptionfrom irtlon of lands connectedwith public collages,

., the connectionof buildingsand of lands referred to, may not be one of mere~contlgulty, but one of connecteduse, for a commoupurpose, public In its nature and not foreign to the leading purposes for which public collegesand academies are establishedand maintained."

In GalvestonWharf 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 propertyheld only for purposes essentiallypublic, and may be said to be DDEvoted exclusivelyto the use and'benefltof the public; indeedi It would be hard to Imagine a use more essentiallypublic 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 propertywhich all persons and vessels have the right to,use, under proper regulations,and.wIthoutthe use of which the business' of the city oould not be conducted. That compensationIs received for Its use does not wIthdraw from Its public oharacter.
"Theremay be property~ owned by municipal corporations

which would be subject to taxation, but the enumeratlon'of certain thlngs in the section of the ConstitutFonquoted, as exempt from taxatloa,vas not intendedto operateas a declarationthat things not enumeratedwere 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."HonorableR. 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 employmentof the terms of the Constitution, to prevent the owners of property from taking advantage of the exemption, when they leased the propertyto others for profit, to be used by the latter for the maintenance .of

schools."

In nearly all cases construingtax exemption of propertywe fLnd the following language:

'ExemptLons

from taxation are never favored, and in the constructionor Interpretation of the law extendingexemptlons from taxationto any citLzen or class of propertyall 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 construingthe rights of property to tax exemption look prlmarllyto the basic purposes

for which such property is acquiredand the use to whloh it is devoted. The asses referring to sahoolsand charitable institutions

deny or grant tax exemptionon 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 exemptionto such strict terms but to such as are "ownedand held for public purposes." All authoritiesLndlcate that the properties must be aaqulred and held for only those purposesexpresslydecrlared exempt by the Constitution. Thus property owned by cities must be devoted to presentpublic purposes,as In the GalvestonWharf Co. case, above, or acquired In furtheranceof a present Intentionto devote it to a deffnlte public purpose, such as in City of Abilene ease, Burma. Our present situation Is based on the tax exemptionof property which cannotbe dlreetlgmused for public purposesat this time, or In the future, and may, at the most, be only lndlreatlg benefialalto the public by furnishingfunds for construction or maintenanceof 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 propertyowners.HonorableR. Pat Edwards, Page 9 (O-4285)

We thereforebelieve that the,propertles Involved In our second.-answer, that is, those describedin section VII, clause (b) and (d) of the court's judgmentconstruingthe will of Dr. Samuell, are subject to taxation.

Your questionalso relates to the necessityof an order of the Commissioners f Court purportingto direct the Tax Assessor to place the propertyon his exempt rolls.

In 40 Tex. Jur., Section 996, page 133, it is said:
"The board of equalizationIs ooncernedwith the valuationof the property on the rolls, not with the listing of them.

. . More partZ.cularly, the board may not add to the roll propertynot entered, nor eliminatean entry appearingon the tax roll. County of Galvestonv. GalvestonGas Co., 10 S. W. 583; Sullivan v. Bitter, 113 S.W. 193."
In 40 Tex. Jur., Section 98, page 137, Lt is said:
"The authorityto assess property, save in exoeptlonalcases, is vested In the assessor of taxes of the several aounties of the state and the method of making such assessmentis plainly pointed out by statute,SullFvan v. Bitter, supra."

We thereforebelieve 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 foregoingansversyour Inquiries.
Yours very truly
APPROVEDMAY 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