Honorable 0. F. Steger    Opinion No. n-224
County Attnrney
Colorado County           Re: Whether Hill Memorial Park
Columhup, Texas~ 76934         Foundation, a trust property
                               dedicated for educational,
                               charitable and/or recreational
                               purposes and to be operated on
                               a non-profit basis for the pub-
                              'UC, 18 exempt from ad valorem
Dear Mr. Steger:               taxes.
     Your recent letter requests the Attorney General to render
an opinion on the followlnejquestlon:
         "18 the real property described In the deed and
    declarationof trust.from Thomas E. Sparka et ux to
    F. p. Braahear et al, as trustees ~forRl.11Memorial
    Park Foundation .datedMarch 27,'1967 and recorded
    In Volume 261 a& pages.6+75 of the deed records of
    Colorado,County Texas, exempt from the levy of ad
    valor&m State, bounty and School District taxes
    under the provlalonaof Article VIII, Section 2 of
    the Constitutionof the State of Texas and Article
    7150 of the Revised Civil Statutes of (he State of
    Texas?"
     It appears that the propertg In question, approximately
one hundred twenty acres, was conveyed in trust to be used at
all times "solelya8 a public park for educational charitable
and/or recreationalpurposea." The land is to be deslgnateda8
IjlllMemorial Park Foundation. The trustees are given certain
powers and duties, lncludlng the following:
          1. To obtain and accept contributionsfor Improvement
     of the premises.
          2.  To hold, manage, control.,etc., the propertyabove
     as a public park.
              To establish rules and regulations for u8e of the
     prem&    by the.publ3.c.


                              -1072-
Honorable c+.P. Steger, page 2       (M-224)


          4.~ Tu collect reasonablefees to be limited in
     amount to the reasonableexpenee of maintainingthe
     premises.
          5.. To employ others and make contracts and
     leases for purpose of operating the premises.
          6.   To employ counsel and compensatethem.
          7. .To pay themselves.reasonablecompensation
     for their services and expenses unlegs the trustee
     has made a contributionto the trust.
          8. To make mineral leases, gravel leases, etc.,
     with the-~proceeds going to improve the premlsis or
     to purchase other,.propertles 'forthe same purposes
     as this trust.:
      .*
          9. To organize a non~profltcorporationand.trans-
     fer the prope&les of the~trust to such corporationfor
     the same @urpotSes as set forth in the deed.
     The deed..alzoprovides that no part of the.tryst.ehali'&ure
to the-benefitof.any lndlvldual,.t~t the %ruat Is to be iarevo-
cables,and that the grantors rese$ve'nointerest In the trust;
It Is further?provided that one.of the three trustees shall tiea
member of the cl$y government of WeQnar,.Texas. The remainlpg
two trustees are private citizens. Also, upon failure of the
trust set 'forthIn the deed; the property Is to pass to other
charitableorganizations.
     The property Is currently belng'operated at least in part
as a golf course open to the public and for which use an admlssiol!
charge Is required.
      An examinationof~the various provisionsof Article.7150
Vernon's Clvj.1Statutes shows that the.only sect.ionapplicabieto
 HI11 Memorial Park FounAatlon-issection 7 pertaining to exemptions
 for~'chasltles.It does not, as a    bllc park, qual,lfyas "public
 land held for public purposes”witrln'sectlon4 of the-rjtatute,
 s%ticeIt Is not owned'and controlledby the State or any.of Its
 pol$tlcalsubdivisions. Attorney &neral Opinion NO. WW-1423 (1962
 Section 7 of the above article-wasenacted pursuantto Section 2 of
.ArtloleVIII of the Texas Constltutlon,which allows the Leglslatur
 by general lawsi to ~exemptfrom taxat1on~"1nst1tut1ons of purely
 public chaslty.. Section 7 reads as follows:


                                 -   1073-
InorableG. F. Steger, page 3: $42%)


        “7. Publl~~.Charltles.All buildings and personal
   property belonging to lnstitut$onsof purely public
   charity, Cogeth~ wlth'the l&ridsbelonging to and occupied
   by such~lnsti.tutlonsPnotleased or other?wiseused-tiitha
   view to-profit, unless such ren'tsand proflts.andall moneys
   and.credi.ts:a.re
                   appropriatedby suqh instltutlons.solelyto
   auataln.~uahXnstltutlonsand for the benefit of the sick
   anddisabled members and their families and the burial of
   the.sama,..orfor..themaintenanceof persons when unable to
   provide forthemselves, whether such persons are members.of
   such +ns.tltutlonsor not. An institutionof purely public
   charity under this article Is one whlciidispenses..'tts
                                                         aXd .
   to lts.memberaand others In sickness or distress; .or death,
   wlthout:re~rd'~o poverty OF'riches of ,theri&ipietit;-also
 '~itheq.Afii~s;..'prbparty,~and
                            aaaets,of.such lnst$tutlons'are
   mced.aid.boutid.bg its law'to'rclieve‘;~Sd-.aha~dmini'ster
   ,$ll.a'liyiiay.
              to :thwrellef of ita members.whefi.ln:want,sick-
   ~BSS and.distress. and provlde~homesfor its helpl$ss and
   dependeat members and I?"educate and~malntaln the rirphans
                           or&her personsf. 'and'any'
   ~'Its'..deceriaed~lliembers                       oo'rpor6tldn
   -'state       of a'hon-pxQ?ftatidpVFely charitable nature
   ar).d..fmhied..;Por
                  the Oh%rltable'andb&evoSent mrposes of ..
   wyregWn&~cq&ty     t0 an$mals,-;topromote humane,alid.Hnd
   treatmerit' an$malsJ and to'aid and.asslat by all ,I$@1
   'andprdper maan$.the enforcemen%of the laws of this state:
   for the preventionof cruelty to an+mals of every ld.ndAndy
   natwe." ~(Ea~phasls added.!
    Xn.determlnlngwhether the property under considerationIs
xe@pt It must be kept In mind that legislativeexemptions are sub-
eqt to the .&le,of strict construction.City of Wichita Falls v.
m$70,SYW.2d       777 (Tex.Civ.Ap 1943,'error ref.)* Clty~o;
       nlo v. YMCA* 285 S.W. 844 ~&x.Clv.App. 1926 &or re )
!SO'%nydoubta to whether 6~ not the tixemptlonl~'valld Is.&   l

e resolved against allowltigthe exemption. Hedgecroft v. City of
@uston; 150 Tex. 7%. 244 S.W.26 632 (1951). -In addltibn. a claim
-5K sptlon must bi?ivithlnnot onlg tlieie
                                        ie&slative-definition of
plrely mbllc charity,", but also within the constitutionalgrant
              City of~Houston v. Scottish Rite Benevolent As8’n.j


 " ~The~Texas.SupremeCourt has on several occasions set out the
.eflnltlon
         and test of charity in the context df.ad valorem taxation
nd;exemptlon. In the City of Houston v. Scottish Rlte~Benevolent
;asOclatlonUl Texi 191 230 S.W. 968 981 (1921), the court de-
ggd:"purely public charity" thusly:,"


                            -1074-
Honorable 0. F. Steger, page 4 :(I&224).


         "In,OUP: opinlon;',the
                              Legislaturemlght._r!ason-
    ably cohclude that an institutionwas one of .'pure&y
    pubPlc :charlty.~~where:~
                            Flrst, It made no gain or
    profit; second, It ,accompllshedends wholly benev-
    olent; and third, it benefited persons, Indefinite
    In numbers and.in pe~aona~lltlesby preventing them,
    through absolute gratuity from becoming burdens to
    soclety~and to the state."
     The,court~furtherelaborated on the "quid pro quo" test
above by stating at page 981.:
          "Chirl~y need not be ufilversaltolbe public.
     It ia public ~iihen-.St
                          affects,all.the people of a'
     communitiyor,se&e bj?;azkmlrig'to a ina$erlal,exr
     tent that:~whlch otherwis6'M.ght,become,the.:'dbll-
     gatl"r or ,duts.ofthe'commrinity?r~ftate;"'
     .InRiver Oaks Garden Club i.~Cl&of Xouaton;'~370S;W~.?d
851 (Tei.Sup..1963) the'court repeated.thetests above; while
holding taxable a n&-profit corporationwhose pur,poaewas,prl-
marlly.to educate and enlighten Its members and,the public In the
art af growing and,arrangingflowers. ..Tbecourt rested,lts deck-
alon that this was not a purely public charltg-on the ground,that
the activity was not ane which the governmentsIs under,an..obllgatlon
or duty to finance,. Eurlng.the.c~ourseof this opinion while dls-
cussing the legislativedefinition, the court said:
          %hlle the primary purpose of the legislative
     definitionwas probably to Insure that exemption was
     accorded orooertv of organizationsdispensing charity




     &irlty kthln the meaning of the constltutlbnalexemption
     unless It assumes, to a material extent, that which other-
     wise might become the obligation or duty of the community
     or the state." (Emphasisadded.)



                              -1075-
Horiotiable
         a.,F. Steger, page 5 ~(n+24~)


     The eat recent case In thls area is Hilltop Village Inc. v.
Kerrvllle Ude&nde"    School District, 11 !Pex.Sup. Ct. Journal No.
26     314 (    h 27 1968) The court reiterates the teat set out
ab&i*and quotes the'above &sag& with approval In holding that
ap Institutionprovldw special resldentli+l   care for older cltl-
zens was not entitled t6 exemption because of special provisions
in lte bylaws maklng.a@isslon to the Institutiona matter of .
negotiationand mutual"agreement. The court Indicated, however,
that a home for the needy aged might qualify under the terms of the
statute for an exemption.
      The allowance of an exemption from ad valorem taxation for a
 "public park" set up In the manner chosen by the grantors In the
.deedunder considerationappears to be a matter of first Impression
 lneofar as the Constitutionand statutes allow an exemption for.
 "wely public charity". An appllcatlbn of the definition of'-.'
 "parelypublic charity" and the dletlnctionsmade by.the courts
 to the sltwtlon presented here leads to the conclusion that Hiil
-MemorialPark Foundation Is not exempt from ad valorem taxtitloti :
 It Is to be noted froinan examinationof Texas cases,~lncludlng:..
 t.hosequoted above that only when a.sltuation falls within the
 traditionaldeflnl&on of a "purely public charity" Is an exemp-.
 tlon allowed. 18 SouthwesternLaw Journal 703 711 (1964);
'AttorneyGeneral*s'bplnlon.No.C-69 (1966). fiorInstance, h;;$-'.
 pita&s have been accorded the status of "purely public charity';:
.a8has an lnflrmarjrand organizationsset up to care for the needy
 where the ,propertywas used excluslvely~bythe charity.
     IB.11Memorial Park Foundation In providing for a public
park to be used for educational charitableand for recreational
PWposes regardless of Its la&able purposes does not fit the
~~r&ltlo&l tests~or definitions of purely public charlty,or viel-
    :~.Slncewe must resolve all doubts against the exemption
and employ a strict constructionof the statute, we are hot free
to conclude that Its "funds, property and assets are
and used to provide for the basic needs of the sick, #%%sed
my"        within the concept of Article 7150. Section 7. O-
Phasls supplied.)
      St perhaps should be emphasized that this opinion Is not to
Abetaken as passing on whether or~not the Hill Memorial Park..
~mundatlon Is a "purely public charity" or "charlt;able trust"
Under the common law of this state for indeed    %alld  charitable
 trustsmay be Institutions of purely public chiirltywithin the
 Qeanlngof Section 2, Article  VIII of the Constitution but they
 are not necestiarllyso." River Oaks Garden Club v. Cl&y of HoustonJ
 supra.


                              -1076-
Honorable 0. F. Steger, page 6        (M-224)



                                 SUMMARY
                The RI11 Memorial Park Foundation,a trust 'property .:
            dedicated for'educational., charitableand/or recreattonal-
            purposesand to be operated on a non-profit-basisfor the
            public, under the stated-facts lwnot exempt from ad
            valorem taxes under Article 73.$3,Vernon's Civil Statutes.




Prepared by R0bert.C. Crouch
Assistant Attoqeg.General
-APPRCVRD:
OPINION COMMITmek-
Eauthorne~Phillips,Chairman
Kerns Taylor Co-C$alrman
W. V. Geppe&   -  .~'
Neil~Wllllams
Bfarvln'Sentell
Harold Kennedy
    A. J.    CARUEBI   JR.
    Executive AsSiStant
:




                                    -1077-
