Mr. Jack N. Fant Opinion No. WV-1423 

County Attorney 

Room 201 Re: Whether certain lots and 

City-County Building the permanen.t improvemen~ts 

El PL~SO, Texas and per;onul propertie.- 

thereon are exempt from 

ad valorem taxe.; as b) pui3- 

Dear Mr. Fant: lit library. 

You have asked the opinion of the Attorney General as to 

whether certain town lots in the City of El Paso, Tex-i~, .ind 

the permanent improvements thereon together 1~3th the personal 

properties therein are exempt from Texas ad valorem taxeu. 

Such exemption is claimed by the owner of theiie properties 

on the basis that the properties are a public library and exempt 

from ad v-alorem taxes by Article 7150, subd. 8, Vernon's Civil 

Statute; which is as follows: 

"The following property shall be 

exempt from taxation, to-wit: 

8.' Public libraries. -- 9.11 public 

libraries and personal property belonging to the ;:cme." 

PERTINENT FhCTS 

A . The Real Estate and Improvements 

The real estate in yue.,tion is lots 17, 18, 19 and 20 in 

block 69 of Franklin Heights Addition to the City of El Paso, 

Texzs. This realty, in the aggregate, fronts 100 feet on Montana Street and is bordered on one side by Brown Street to a 

depth of 120 feet. The property is zoned a3 apartment. Improvement, consist of a -t:'io+tory building (constructeti a.j a 

private dwelling) with a full basement; the building is approximately 56 feet by 49 feet in size. On the rear portion 

of the tract of land is a two-story combination garage and 

servant 1 j quarters. The improvements are approximately fifty 

years old and are not modern, though they have been remodeled 

to some extent to meet the needs of the present owner and user. 
Mr. Jack N. Fant, page 2 Opinion No. W-1423 

The market value of the realty and permanent improvements 

has been appraised at $42,200. 

This property is at a location which is conveniently accessible to the public as a library. 

B. Ownership of the Properties under Consideration 

Title to the realty and permanent improvements is vested 

in fee in the El Paso County Medical Society, a private Texas 

corporation which is now subject to the Texas Non-Profit Corporation Act. The purpose clause of the charter of this corporation is as follows: 

"The purposes of this corporation 

shall be to associate in a single body 

the duly licensed and regular practitioners of medicine in El Paso County, 

Texas, for the purpose of promoting 

medical knowledge, elevating the standard of medical education, encouraging 

free intercourse among its members, and 

inculcating principles of professional 

ethics orotectinn its members against 

impositions, establishing a library for 

the use of its members, dispensing charity among the worthy sick, and assisting 

in upholding and enforcing the laws enacted to protect the public against any 

who may offer to practice medicine in 

violation of the laws of the State of 

Texas." (Underscoring added). 

The realty and improvements have vested under the terms 

of the will of S. T. Turner, deceased, who devised the property 

to the El Paso County Medical Society, its successor or successors, 

I, 

. . . to use as a club house, library or any other useful purpose to 

which they may from time to time desire to appropriate it, to be known 

as the Turner Home of the El Paso 

County Medical Society." 

c. Facts Pertinent to the Operation of the Property as a 

Public Library 
Mr. Jack N. Fant, page 3 Opinion No. NW-1423 

Tne following more pertnent and controlling facts have 

been furnished by you: 

"1. Floor Space 7248 Square Feet. 

4 rooms and hall on each floor. 

"1st floor: 

by 174 ft. 

Library Space 48 ft 

Hall 52 ft by 12 ft. 

Reading Room 25 ft x 17 ft. 

"Kitchen and two pantries 27 ft 

by 17 ft. Powder room and storage 

room 4 ft by 17 ft. 

"2d floor: 

by 17+ ft. 

Assembly room 52 ft 

Hall 52 ft by 12 ft. 

Ladies Lounge, bath and closet 25 

ft by 17 ft. Storage rooms 27 ft 

by 17 ft. 

"Rasement: Furnace room. Storage 

room for books and periodicals 884 Sq. 

ft. Hall 624 Sq. ft. Storage rooms 

used by the City Museum 52 ft by 17+ 

ft. 

"2. About 1945 sq ft used for library. 1265 sq ft for material and 

reading room. 680 sq~ft used for star,- 

age. Librarian's office is in the library proper. About 2,000 sq. ft used 

by City Museum for storage. (This is 

donated by the Society.) Kitchen and 

pantries, furnace room and halls. 

“3. The El Paso County Medical 

Society meet once a month fr,om 6 p.m. 

to 9 p.m. The Ladies Auxiliary meet 

during the winter months from 10 a.m. 

to 12~30 p.m. 

“4. The library is used by students 

from Texas Western College, the general 

public and doctors. The public and students use it more than the doctors. It 

is opened from 1 to 5 p.m. Monday thru 

Friday. 
Mr. Jack N. Fant, page 4 Opinion No. NW-1423 

“5 * The library has never been closed 

to the general public since it was originally opened over 10 years ago. 

“6 . The librarian does not hold a 

degree in library science. The El Paso 

County Medical Society pays her $150.00 

monthly. Hours are from 1 to 5 p.m. 

Monday thru Friday. The librarian takes 

care of the telephone for the Medical 

Society, keeps up with the membership 

and dues. This would require about one 

hour an afternoon, 

“7. The library is located on a 

corner lot and the grounds are used by 

the puclic when needed. 

“8 D Four years ago, all of the outof-date books were discarded and they 

have been replaced with up-to-date later 

editions. A few of the old books were 

kept. At the present time, about 20% of 

the books are out of date except for historical purposes and most of these have 

definite historical value. The periodicals are kept up-to-date with no missing 

issues. When the periodicals are bound, 

if there are any missing issues, they 

are replaced to make the bound volumes 

complete." 

9. You state that the usual library 

indices and cross references are available and that the books are catalogued. 

10. You state that the property is 

"centrally located in an ideally accessible location". 

"11. Several people besides the 

doctors come in every afternoon between 1 and 5 and use the library 

material. The library is used principally by students in olur local college and high schools. Some other layman use it. The doctors themselves use 

it least of all. It is very difficult 
Mr. Jack N. Fant, page 5 Opinion No. WW-1423 

to say what percentage of the library 

material has been used by anyone other 

than doctors within the last year. It 

would probably be about 25% (doctors' 

use) but this is a rough estimate. 

"12. The library has been advertised at our local college, Texas Western College. The Chairman of the 

Biological Sciences Department there 

has made this known to the students 

by verbal announcements and by a notice 

on the bulletin. The Public Library 

also sends many students to our medical 

library. Only the Public Library is 

advertised in the Yellow Pages of the 

Telephone Directory." 

II. 

OUR OPINION BASED ON THE FOREGOING FACTS 

Our opinion is that neither the realty, permanent improvements nor personal properties under consideration are 

exempt from State ad valorem taxes by reason of being a public library. 

The pertinent constitutional provision which authorizes 

exemption of the kind of properties under consideration is 

Article VIII, Section 2. The relevant portion of this article 

reads as follows: 

II the legislature may, by 

generai iaws, exempt from taxation 

public property,,used for public 

purposes; . . . 

.Article 7150, subd. 8, V.C.S. effects the permissive 

exemption authorized by Art. VIII, Sec. 2 (supra) as to public libraries in the following language: 

"The following property shall 

be exempt from taxation, to-wit: 

6.' Public * libraries. -- All 

public libraries and personal property belonging to the same." 
Mr. Jack N. Fant, page 6 Opinion No. WW-1423 

Tne constitutional provision requires that a public library to be exempt must be, first, "public property", and 

second, that the public library properties must be "used for 

public purposes". 

1. 

We first consider whether the realty, the permanent improvements thereon and the personal properties comprising the 

library and its furnishings are "public property" within 

the meaning of Ar'ticle VIII, Sec. 2 of the Constitution. "'he 

early case of Saint Edwards College v. Morris, Tax Collector, 

82 Tex. 1, 17 S.W. 512 (1891) considered that portion of Art. 

VIII, Sec. 2 of the Constitution which we now have under consideration (which was in the identical language as now). With 

reference to the nature of property as being "public property 

used for public purposes" the Court stated: 

"It can not be claimed that the 

property of appellant is public property used for public purposes, for 

to give it such character it is believed that the ownership should be 

in the State or some of its municipal subdivisions, and it may be that 

its use would have to be not onl? 

under their control but for a purpose for which the State or such municipal subdivisions are authorized to 

use property held by them for the 

benefit of the public." (Underscoring added). 

See also Texas Turnpike Company v. Dallas Count& 153 Tex. 474, 

271 s.w.2d 400 (1954). 

We are aware of the statements of our Suprem? :ourt with 

reference to this Art. VIII, Sec. 2 of the Constitution made in 

erty, Tax Collector v. Thompson, 71 Tex. 192 9 S.W. 99 

) wherein the Court stated 

"That section of t:~ie Constitution 

seems to apply to property owned by 

persons or corporations in private 

right, but which, from the use to 

which it is applied, is, in a qualified sense, deemed public property." 
Mr. Jack N. Fant, page 7 Opinion No. WW-1423 

Later in that same case the Court reitterated this statement 

in the following language: 

8, 

“As before said, section 2, art. 

of the constitution, gave to the 

legislature the power to exempt 

property held in private ownership, 

but used for purposes which give to 

it a public character.” 

This latter quotation from Daugherty v. Thompson is 

quoted in Lower Colorado River Authority v. Chemical Bank and 

Trust Co., 144 Tex. 326, 190 S.W.2d 48 (1945) (at page 51). 

We reconcile these apparently contradictory statements 

by our Supreme Court in the following manner. The Daugherty 

case (supra) considered the taxability of school lands belonging to Frio County which were under a ten-year lease to an individual. The quoted statements from that case were made with 

reference to ownership of the lands by Frio County. In that 

respect the lands considered were owned by Frio County in its 

own private right. While these lands were public in that they 

were owned by the county, a political subdivision of the State, 

they also were private in that they were bne property of Frio 

a public corporation. 

E%'Atl. 72'8 (c 

The case of Coyle v. Gray, 7 Houst. 

ourt of Errors and Appeals of Delaware L-law 

co;rt of last resortJ 1884) makes this distinction clear wherein the Court said: 

,1 

. . . The inhabitants of a city, 

who are in fact the corporators under 

a charter creating a municipality, are 

a portion of that general public which 

constitute a state. And they are also 

that particular public which constitute a municipality. The municipality 

may hold property in which all the inhabitants of a state or of a county may 

be said to have an interest in some 

respect, but not as owners or proprietars. And it may also hold property 

in which the inhabitants of the municipality alone may properly be said 

to have an interest. Both classes of 

property are public, -- the one, as 

to the people of the whole st,ate or 

county; the other, more particularly, 

as to the inhabitants of the municipality . It is only in this sense 
Mr. Jack N. Fant, page 8 Opinion No. WW-1423 

that the words 'public' and 'private' 

can with propriety be applied to such 

property, when held by a municipality. 

Although the property held for the 

municipality is in fact public, as 

common to all the inhabitants of a 

city, it nevertheless may justly be 

said to be private property, as being 

such property as is exempt from being 

taken or applied to any other public 

use by the state, or by authority of 

the state, without compensation being 

made." (at P. 733). 

We believe the same interpretation was meant in Lower 

Colorado River Authority v. Chemical Bank and Trust Co., 

(supra). 

Our State Constitution nowhere provides for the exemption 

from ad valorem taxes of property which is privately owned 

although used for public purposes. The Legislature could not 

by Art. 7150, subd. 8, (supra) convert private property used 

as a publlc library into public property. In Texas Turnpike 

Company v. Dallas County (supra) the Court stated: 

If 

. . . Public cwnership, for taxexemption purposes, must grow out of 

the facts; it is a legal status, based 

on facts, that may not be created or 

conferred by mere legislative, or even 

contractual, declaration. , . .' 

(at p. 402). 

The following quotation from Davis v. City of Atlanta, 206 Ga. 

652, 58 S.E.2d 140 (Ga.Sup. 1950) very clearly states this 

principle. 

"Under Board of Trustees v. City 

of Atlanta, 113 Ga. 883, 39 S.E. 394 

154 L.R.A. 806J, the fact that privately owned property is devoted exclusively to a public use does not 

thereby make it public property so 

as to exempt it from municipal ad valorem taxation. Indeed, not even legislative enactment can make it such 

nor so exempt it. In that case the 

court held unconstitutional an act of 

the legislature which declared that 
. . . 

Mr. Jack N. Pant, page 9 Opinion No. WW-1423 

armory property shall be public property and exempt from municipal and 

other taxation. 

"In that case the court said: 

'It is claimed . . . the property is 

used exclusively for public purposes 

in maintaining the military company 

known as the Gate City Guard, which 

is a part of the regular volunteer 

milltary.forces of the state. That 

private property is used exclusively 

for public purposes does not change 

the nature of the property, or the 

title thereto, so as to convert it 

into public property. . . . Private 

property cannot be converted into 

public property by the simple declaration of the general assembly; 

and especially is this true when 

the purpose of the declaration is 

to relieve private property from a 

burden which the constitution says 

in unmistakable terms shall be borne 

by it for the benefit of the public."' 

See also Attorney General Opinion No. O-1621 (1939). 

We believe the law Is settled to the effect that real 

estate and the permanent improvements thereon and personal 

property therein to which neither the State nor any of its 

political subdlvisions nor agencies nor representatives have 

any title, nor right of control under any form of grant vesting In any such public entity a right of control over said 

property, can be "public property" within the meaning of Art. 

VIII, Sec. 2 of our State Constitution. 

properties under consideration, 

As to the library 

the public has only access, 

and that at the sufferance of the El Paso County Medical Society as its invitees. We have fcund no authority, in Texas 

or in any other jurisdiction of the:United States, which would 

authorize property to which the public has this type of access 

right only to be qualified as being public property for purposes of being exempt from taxation. 

The properties in question must be "used for public 

purposes" as provided in Art. VIII, Sec. 2 of the Constitution (supra). 
Mr. Jack N. Fant, page 10 Opinion No. WW-1423 

As to whet.her a particular usage is a public purposewithin contemplation of the above constitutional provision 

must be determined in each l.ncldence uwon the warticular 

facts. In Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 

1033 (1934) the Court stated: 

"In discussing what is a public 

purpose, McQulllin on Municipal 

Corporations (2d Ed.) vol. 6, p. 292, 

sec. 2532, says: 'What is a public 

purpose cannot be answered by any 

precise definition further than to 

state that if an object is beneficial 

to the inhabitants and directly connected with the local government it 

will be considered a public purpose.'" 

Again, in the case of A & M Consolidated Independent School 

District v. City of Bryan, 143 Tex. 348 184 S.W.2d 914 with 

reference to publicly owned property being used for a public 

purpose, the Court stated: 

"The property in question appears 

to be used for a public purpose. It 

is used primarily for the comfort and 

welfare of the people, and all the public has the right to use it under reasonable and uniform regulations." 

(at p. 916). 

However, the Courts have also well established what is 

not a public purpose. The following two authorities are typical: 

"It Is not all things which answer a public need or fill a public 

want that it is within the authority 

of the State to furnish for the people's 

use or support at the public expense." 

Waples et al v. Marrast, 108 Tex. 5, 

184 S.W. 180 (1916). 

"It is well settled that there 

must be a general public -- right to 

a definite use of the property, as 

distinguished from a use by a private individual or corporation which 

may prove beneficial or profitable 
. . * 

Mr. Jack N. Fant,, page 11 Opinion No. W-1423 

to some portion 

(emwhasis added 

na,ls, TV. Louisi 

71 L 223 5 

:930)aiP. 340;. 

of the public," 

'1. RI ver & Rail Termiana 'Ry. & Nav. C 0.9 

0. 7 (La.Sup. 

The specific limited exemptions stated in Art. 7150 V.C.S. 

make certain the proposition that not the use only of properties 

which promote the welfare of the public Is a public purpose 

which will exempt those propertles from ad valorem taxes. The 

following usages of portions of the land and improvements under 

consideration do not comport with the use of property for a 

public library: (1) the two-story combination garage and 

servants quarters, (2) about one-fifth (l/5) of the time of 

the librarian spent in taking care of the telephone for the 

Medical Society and keeping up with the Society's membership 

and dues, (3) space used for storage by the City Museum and 

(4) meetings by the El Paso County Medical Society and its 

Ladies' Auxiliary; 

Without a doubt; the library facilities furnished arc 

of benefit to the public; but the law is ~~11 se~ttled that 

not all benefits to the public are recognized in law as being 

for public pu.rposes in considering the properties a3 being 

tax exempt. Our opinion is that the El Paso County Medical 

Society may not voluntarily and gratuitously ?,rd in it:> own 

private capacity make avai lnblc to the public the bencflt; 

of it; library and thereby zlnkc the librc?ry exeinpt from zcj 

valorem taxes. 

The properties owned by the El Paso County 

:$edical Society furnished by it voluntarily to 

the public as a public library, but to which 

the public has access only at the sufferance 

of the Society as its invitees, are not exempt 

from ad valorem taxes as a public library under Art. 7150, subd. 8, V.C.S. as "public property used for public purposes" within contemplation of Art. VIII, sec. 2 of the Texas Constitution. 

Yours very truly, 
, , 

Mr. Jack N. Fant, page 12 Opinion No. WW-1423 

BY 

APPROVED: 

OPINION COIXMITTEE 

Morgan Nesbitt, Chairman 

L. P. Lollar 

Robert A. Rowland 

FXVIEWED FOR THE .ATTORNEY GENERAL 

BY: Leonard Passmore