Honorable H. Pat Edwards
civil District Attorney
Hall of Rbcorda
Dallas, Texas
Dear   SIX-:               Attention: Mr. FraakHcCullough
                           Opialoa no. o-4285
                           Re: Are tihepo?opertles,the title
                               to which passed to.tbe City
                               of Dallas ,uadePthe'Wil1 of
                               Dr. W.-W. Samuell, exempt
                               from taxation?

            '-we
               --.aee
                    %-r&pt-   .of.-
                                 ~JOurlcettwlr
                                            ~-r4qG4tiiag -aa
opi&       of this department,which reada In pet ~88follows:


       Commi~~Foaeca~Court, requ6stlag that certain’
       pmpertlee to i?hiohit obtained title under Dr.
       W. W. Samuell~a~Ul.llbe 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 ccm-
       plete title to a l/3 Interest in 4om4 of the
       tracts. I 8111'
                     attaching a copy of the letter ac-
       compaayingthe resolution.
             %ome of the .propertlesare adapted to pub-
       lic 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
       catagorieaare exetiptfrom State and-Coahtgtaxa-
       tion because of the city's Interest therein.
                                                               . -
Honorable H. Pat Edwards. Page 2~ (O-4285)


          “I’.am submlttlagthe followIag two ques-
     tions with the request that you be kind enough
     to give as your oplalon thereoa:
            "1. Aristhe properties,the title to which
    passed to the City of I)allaaunder 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 pur-
    poses, 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 ciistomfor the Com-




          We have Arefully-~~er4mLaed,thejudgmeat construing
the will aad comspoadeace attaahed~toyour 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 propertiesas set out la the jadgmeat which coa-
strued the Samuel WI11 as follows:
                               i..
          1. Our first   auswer 'tilltherefore 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 commerciallyimproved and revenue-bearingand which
.   have been ordered to be retained la order to provide rev-
    enues to be used la Improving and malatalnlngthe lands
    mentioned In paragraph (a) or to be exchanged for sole
    title to such tracts.
              (c) The tracts of land physloallyand economlcal-
    ly Incapable of being put to actual park uses, or being
    used for reveaue, the sale of which-hasbeen 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
    Comlylngv. Ga.lveston,63 Tex. 14, 25. The prop&lea. passe
    Ing to the City Park Board, that Is those propertiesmea-
    tloaed la paragraph of the court's judgment construing
    the Will la clauses Ia), (b) aad (c),if they are entitled
    to tax exemption, would be exempt after December 31, 1937,
             of Dr..Samuell's death, under a&ltarIty of +~%well
    -the..date
    .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~&lla-
                        fIxed as of January 1; lf each:++.
    billty P%~--tnrssS~Ie
    Unless th+-W&11-+rorides vthsrwlae tltle~~wculd~vaSt.,
                                                        lmmed-
    Iately .lnthe various.devlseesthereof as ~1sheld In,Long
    v:Sheltoa;~155 S. W. 95, (Error Refused), ln~the follow-
    lug language:
                "An estate by devise stakeseffect lmmedlate-
         ly upotl,death  of the test&or uale~ssotherwlse
         dlrected~,.-aad property then passes to the devlsee.
         The d-iffem@t.legalrequirzmeat~s   ~84~
                                               to probating
         aad record-lagwills am-merely de~slgned   -as.means
         to sub&anti&e, preserve~aadgive aotlce~.ofsuch
         lastrumeat   as evidences. of title. See also Artl-
         610 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 Constltu-
    tlon, provides that:
              "Taxation shall be equal and uniform. All
         property In this state, whether owned by natural
         persons cz corporationsother than mualclpal,
Honorable I& Pat Edwards, Page 4   (O-4285)


     shall bi taxed In ~proprotloato Its value which
     shall be ascertainedas may be provided by 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 subjects with-
     in the limits of the authority levying the tax;
     but the Legislaturemay, by general law, exempt
     from taxation public property used for public
     purposes; . . . aad all laws exempting property
     from taxation other than the property above mea-
     Honed 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,&ihefuwntture+hereof,.aadall prop-
     ert use-d,a'liiteadedfor extinguishingfires,
     pub3Ic 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-~fromtaxa-
     tia, pwo-ui,ded,n&h&z&g herein 4hal.l~pev@nt the
     e&wcsment   vf,~the~vendorsllea, the ~eechatilca
     ~'.bu%lders-lien, ~0~motherliens aow ~exfstlng."
         'Article 7150, R.&S.   1925, contains the f&low-
ing pr4vlsIons:
          "The following property shall be exempt
     from taxation, to-wit:
          11
           . . .
          "4. Public property. - All property, whether
     real e persoaal, belonging exclusivelyto 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;porltydlrect-
ly 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 reser-
VoIr site for Impoundingwater for the use of the City.
The City had secured from the proper authoritiesthe nec-
dssary appropriationof water, done engineeringwork and
authorizedthe issuance of bonds, but had been unable to
acquire all the land necessary and had not done any con-
struction work or actually used any of the land for reser-
voir 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 Intentltihtonccompllsh
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.tyis to.be
    .MgaMed:-au~ussdfo~pub~llc~  pnrpc4ebrand-the
     Legislature has the power to provide by general
     law for Its exemption from taxation."
          In the case of the State v. Cit.+of ioustoa, et
al, 140 S..W: (2d) 277, 278, the court expressed its con-
clusion 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. Cer-
     tainly 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 Boule-
     vard was bought for the purpose of ooaservingthe
     rRoadwaysto 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 tlaeln-
     tcrval 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-doessell such property, it must aec-
     essarlly acquire the proceeds to 'Roadwaysto
     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 auth6rIzedpublic &rpose which had not been
abandoned but was only temporarilyheld In abeyance. Our
particularfacts 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~ualspending sale
upon whIch~the poceeda therefrom would 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
               suhtituik
but-staud--as,;a          ~fcrany 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 prop-
     ertgi.~as.
              ~aprerequisiteto Its Eight to exemptloa,
     to.be uxoluslvely used by the charlt~b~e'laatltu-
     Clan, It t4 apparent, lf'ae part of It Is rented
     out and the relation of the landlord aad tenant
     created, that.very fact wpuld necessarilydestroy
     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 charitablelnstltuticn'sproperty
     to those not themselves engaged In a wholly chari-
     table work, or the eccupanoy of eveq a part of the
     property by others under what ambuaCa to an equiv-
     alent situation (City of Houston v. Scottish Rite
     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 hold-
     ing.
Honorable R. Pat Rdwards, Page ~7 (o-4285)


          "The constitutionalrequiremeat Is twofold;
     the property must be owned by the organlsatloa
     clalmlng the exemption; It muat be exclusivelyused
     by the crganleatlon,as dlstlngulshedfrom a par-
     tial 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 lead-
     ing purposes for which public colleges and acad-
     emies are establishedand maintained."
          In GalvestonWharf Company v. Galveston, 63 Tex.
Rep. 14, at page 23, the ~cltg'sInterest In a wharf was
held exempt In the folloting language:
          "It Is property held only for purposes
     essentiallypublic, and may be said to be DDE-
     voted exclusivelyto 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 out-
     ward commerce of the.state. It Is a property which
     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 con-
     ducted. That compensationIs received for Its use
     does not wIthdraw from Its public oharacter.
           "There may be property~owned by municipal
     corporationswhich would be subject to taxation,
     but the enumeratlon'ofcertain thlngs in the
     section of the ConstitutFonquoted, as exempt
     from taxatloa, vas not intended to operate as a
     declarationthat 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 exemp-
    tion, when they leased the property to others
    for profit, to be used by the latter for the main-
    tenance .ofschools."
          In nearly all cases construingtax exemption of
property we fLnd the following language:
         'ExemptLonsfrom taxation are never favor-
    ed, and in the constructionor Interpretationof
    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
    BenevolentAssociation, 230 S. W. 978; Cltg;of
    Abllene v. State, ,113S. W. (2d) 631,~635.
          In all the above cases the courts in construingthe
rightsof property to tax exemption look prlmarlly to the basic
purposesfor which such property is acquired and the use to whloh
it is devoted. The asses referring to sahools and charitable
institutionsdeny or grant tax exemption on the theory of
whether or not the property is "exclusivelyused" for such pur-
poses, while those referring to the lxropertiesof cities do not
limit tax exemption to such strict terms but to such as are
"owned and held for public purposes." All authoritiesLndlcate
that the propertiesmust be aaqulred and held for only those
purposes expressly decrlaredexempt 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 furtheranceof a present Intentionto devote it to a deff-
nlte 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 musedfor public purposes at this time,
or In the future, and may, at the most, be only lndlreatlg
benefialalto 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 other-
wise 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 thereforebelieve that the,propertlesInvolved
In our second.-answer,that is, those described in sectionVII,
clause (b) and (d) of the court's judgment construingthe will
of Dr. Samuell, are subject to taxation.
          Your question also relates to the necessity of an
order of the Commissionersf Court purportingto 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 equalizationIs 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 en-
     tered, 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
     exoeptlonalcases, 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 authoritiesplainly Indicate
that it would not have any legal effect.
            We trust that the foregoing ansvers your Inquiries.
                                       Yours   very   truly

APPROVED MAY 12, 1942            ATTORNEYGEWERALQPlPEXAS
Grover Sellers
FIRST ASSISTANT                   By   /s/Alfred F. Herbelin
ATTGRWEXGPWDPAL                           Alfred F. Rerbelin
                                                   Assistant
AFH:ul:mjs
APPROVED OPINIOW COMMITTEE
BP /s/RWF    CRAIRMAIV
