                OFFICE    OF   THE   ATTORNEY      GENERAL        OF TEXAS
                                        AUSTIN               1
    GROVER    SELLERS




    Xonorable  H. L. Robarson
    County Attorney,  Minkler         County
    Kermit, Texas
                                                                      .t’\
                                                                      \ i
    Dear Sir:                    Attention:      W. T. Ralr
                                                        n-J\                 \
                                 Opinion No. 04175 \                i.
                                 Re: In a -bond eleotion     in ‘a~oUnty
                                      voting lacilidB..,wherabya li*n f9
                                      created 09 thu. real dstate”@erein
                                      situdted,   are bhe voters in such
                                       county,,quali.fleb        to   vote       under
                                       Hrticlei2855a,      Revised Civil
                                      Statutes fhaprender         any kind oi
                               ,,..e.lgroperag fy taxation?
                             /         ‘\               i
                           ,
                                         ‘-.       ‘r, ‘x.
                We are, 1;’ r&ipt           Ot an o$inl.m~ request signed by
    Honorable if. T. H&iri~: imsisbant         County’httorney     of Winkler County,
    reading as ~10wa{~,‘,,                 )    js

                  , “In .a bond’sle&foa       J!l a county voting bonds
             whamby-a lien is OTeatsWon the real estate therein
.            eltuated;‘are.~the      votwr21 in suah oounty qualified      to
             vote   under rrt’hcls    2955a, R. S. that render any kind
             of property r~or ‘taxtition,     or does Article      2955b oon-
             trol a&d’in ordei to be qualified          to vote such voters
             znusb, OWP,and.*render real estate tor taxation before
             they aan .vbte tn such election?
                      ‘i
                     %bdII      ( 2) page 1186, Border    et al. Y. Abel1
             County Attorney.
                     nSee;ns to lean to Article       2955a, R. 9. and
             disregard the validity        of Artiole   2955b, R.S. How-
             ever, since the validity        of said ,rti’cle     is not
             there definitely       passed on and I cannot find any mse
             where the supreme Court h;ls ruled on sdd ‘zticle,               and
             it appearing that there is some confllct            between .\rti-
             cle 2955b, and section        3a, of isticle     6 of the oonstl-
             tutional    provision    adopted November 0th 1932, such
             section Ja, of .zticle        6, not specifying     real estate,
             I am seeking an opinion from your ofrice.
                                                                               ,779
    Honorsble   H. L. iloberson,   puge 2




                 “Can Winkler County, Texas, vote bonds in
          the sum of Fifty thousand dollars,      and with the
          proceeds derived from the sale of said bonds
          chase the surfaos     right only to one hundred s P” ’
                                                              xty
          aores of land and thereon establish      a oounty park;
          the mineral riRhts o? said on8 hundred sixty aorss
          of laid being oested in an oil oompany who has the
          right of ingress,     egress and regress to the surface
          of said one hundred sixty aores of land and who ha8
          the right to thereupon drill     as many 011 wells as
          the epaoing rules will permit and by so doing destroy
          the oounty park Wlnkler County her established?         Or
          is It not a hot      that Winkler County must   purohase
          the mineral rights as well as the surfaoe right be-
          rore Winkler County through its Commlsslonera Court
           can legally   expend any tax or bond monlee oollected
          for the purpose of establishing      or maintaining suoh
           county park?     In other words will Winkler County have
           to own the one hundred sixty aores of land in fee
           simple from surfaoe to oenter of the earth in order
          to spend the tax money of Wlnkler County legally        on
           suoh a pub110 venture?
                  “This request Is very hurriedly made up as
           Hon. J. B. Salmon, County Judge of Winkler County,
           18 now in Austin and hss requested that we get an
           opinion from your office  as soon as possible and
           he in te$szz will call at your oftiae  for suoh opin-
           ion.

                    Replying to your first     question,    you are advised that
*   this departzuant has ruled several tlaes thet HTticle 2955b is un-
    constitutional,     for the reason that it limits qualified           vot~eraZn
    %?m -wn7~hrioa bu’ry renberea               roperty for taxation,      contrary
    to the express language in $0               3e, of srtlcle   6 of the Constitu-
     tion.    In the case of Texas Publia Utilities          Corporation   v. Zolland,
     the Fort Worth Count of civil       Appeals held that all persons who had
     paid their poll tax and who owned taxable property,             either real or
     personal,   were   qualified   to vote if their property was rendered by
     them personally     or throuRh an agent or VISSassessed by the Tax As-
     sessor if the property       owner h:ad railed to render the property.

                ;:e have been unable to find any case wherein the courte
    have passed upon your second question,  but it is our opinion that
    ;Ionor;rbre    ii.   L.   noburson,   page   3




    the County should have a fee simple title        to the land.  Qticle
    6078, as a .?ended by the 47th Legislature,      Chapter 270, page 437,
    conta ins the t ollowlng language :

                     “Said   oourt  shall have full   power and control
            over    any and all such parks and may levy an annual tsx
            eufrloient      in their judgment to properly maintain euoh
            parks and build and oonstruot        pavilions    and suoh other
            buildings      as they may deem neoessary,     lay out and open
            driveways      and walks, pave the same or any part thereof,
            set out trees      and shrubbery,  oonstruot ditohen or lakes,
            and make such other improvements as they may deem proper.
            Suoh    parks shall remain open for the free use of the pub-
            110 under suoh reascnable rules and regulations           as said
            court nay presoribe.W


                 The foregoing  ie inconsistent  with the right of an oil
     company to enter the park and OOnStrUOt suoh roads as it may find
     oonvenient and to drill   88 many 011 wells  as the spacing rules   will
     permit.   The County should own all the rights pertaining    to the
     land before It expends any tax money in providing a oounty park
     otherwise  it could not exeroise Vu11 power and oontrol” over it.
                                                       Yours   very   truly

                                                     ATTORNEY
                                                            GENERALOF TEXAS


.

                                                                      C. F. Gibson
                                                                         ASSi St&ant
