                               ATTORNEYGENERALOF TEXAS
                                             GREG        ABBOTT




                                                October 28,2004



The Honorable Todd Staples                             Opinion No. GA-0265
Chair, Infrastructure Development         and
   Security Committee                                  Re: Whether the Gun Barrel City Economic
Texas State Senate                                     Development Corporation may fund the construction
Post Office Box 12068                                  of a youth football field (RQ-0221-GA)
Austin, Texas 7871 I-2068

Dear Senator Staples:

        You ask whether the Gun Barrel City Economic Development        Corporation  (the
“Corporation”) may, based on the ballot language approved by the city’s voters, fund the
construction of a youth football field.’

         On May 3, 1997, the voters of Gun Barrel City (the “City’) approved the adoption of a one-
half percent sales and use tax under section 4B, article 5 190.6 of the Revised Civil Statutes, the
Development Corporation Act of 1979 (the “Act”). See TEX. REV. Crv. STAT. ANN. art. 5190.6
(Vernon 1987 & Supp. 2004-05).’ Section 4B authorizes an eligible city to create an industrial
development corporation and to levy a sales and use tax for the benefit of the corporation, if
approved by a majority of the voters at an election called for that purpose. See id. 5 4B(b), (d).
Other than the tax rate and descriptions of specific projects, section 4B does not specify the contents
of the tax election proposition or ballot to be submitted to the voters. See id. See also Tex. Att’y
Gen. Qp. No. JC-0494 (2002) at 1-2. Upon receipt of the sales tax proceeds, the city must deliver
the tax proceeds to the corporation to pay the costs of “projects” as defined by section 4B(a). See
id. 5 4B(g)(l)-(2). At the time of the Gun Barrel City election, projects included “land, buildings,
equipment, facilities, and improvements” found by the corporation’s board to:

                           (A) be required or suitable          for use for professional and
                  amateur (including children ‘s) sports,      athletic, entertainment, tourist,
                  convention, andpublicparkpurposes            and events, including stadiums,
                  ball parks, auditoriums, amphitheaters,        concert halls, learning centers,



          ‘Letter from Honorable Todd Staples, Chair, Senate Infrastructure Development & Security Committee,       to
Honorable Greg Abbott, Texas Attorney General (May 4, 2004) (on file with Opinion Committee, also availabk          at
http://www.oag.state.tx.us) [hereinafter Request Letter].

          ‘We will cite the present version of article 5190.6, section 4B, except when we need to refer to provisions
existing at the time of the May 3, 1997 election.
The Honorable Todd Staples            - Page 2            (GA-0265)




                   parks and park facilities, open space improvements,            municipal
                   buildings, museums, exhibition facilities, and related store, restaurant,
                   concession,     and automobile      parking   facilities,  related area
                   transportation facilities, and related roads, streets, and water and
                   sewer facilities, and other related improvements that enhance any of
                   those items; or

                            (E3)promote or develop new or expanded business enterprises,
                   including a project to provide public safety facilities, streets and
                   roads, drainage and related improvements, demolition of existing
                   structures, general municipally owned improvements, as well as any
                   improvements or facilities that are related to any ofthose projects and
                   any otherproject that the board in its discretion determines promotes
                   or develops new or expanded business enterprises.

Act of May 22, 1993,73d Leg., R.S., ch. 1022, 4 3, 1993 Tex. Gen. Laws 4424,4426                               (emphasis
added) (former TEX. REV. CIV. STAT. ANN art. 5190.6, 5 4B(a)(2)).3

         A prior opinion of this office, Attorney General Opinion JC-0494 (2001), addressed the
election you inquire about, but you state that this opinion considered a ballot proposition different
from the one that the voters actually saw and approved. See Request Letter, supra note 1, at 2.
Attorney General Opinion JC-0494 quoted from the city ordinance calling the election. See GUN
BARRELCITY,TEX., ORDINANCENO. 1997-005 (1997). Theordinance, datedMarch 11,1997, called
a special election to be held on May 3, 1997, to submit to city voters “a proposition of whether an
additional sales and use tax of % of one percent shall be imposed for the promotion and development
of new and expanded business enterprises.” Id. 5 1. The ordinance provided for

                   the proposition to be expressed             on the official ballot in a form
                   substantially as follows:

                                               PROPOSITION NO. 1

                            The adoption of an additional % of one percent sales and use
                   tax for the promotion and development ofnew and expanded business
                   enterprises.

                               For                         Against

Id. 5 3. Another ordinance canvassed the special election returns and found that “the proposition for
the adoption of a Section 4B sales and use tax at the rate of one-half of one percent” passed at the
special election held May 3, 1997. GUN BARREL CITY, TEX., ORDINANCENO. 1997-007 (1997).


          ‘The terms”leamingcenter”and      ‘~unicipalbuildings”~~   longer appear in article 5 190.6, section4B(a)(2)(A)
and the conjunction “or” was removed from the end of this provision and placed at tbe end of section 4B(a)(2)(D).         In
the present version of section 4B(a)(2)(B), the phrase ‘Ybat create or retain primary jobs” has been inserted following
tbe phrase “expanded business enterprises.” TEX. REV. Crv. STAT. ANN. art. 5 190.6, $4B(a)(2) (Vernon Supp. 2004.05).
The Honorable Todd Staples - Page 3                (GA-0265)




        Relying on the ballot proposition set out in the city ordinance, Attorney General Opinion
JC-0494 considered whether the section 4B tax revenues could be used to build a youth league
football field at the city park, where no discernible economic advantage was associated with the
project. See Tex. Att’y Gen. Op. No. JC-0494 (2002) at 2 (quoting Request Letter)! Attorney
General Opinion JC-0494 noted that section 4B(a)(2)(A) d oes not require the projects it authorizes
to promote economic development, even though the overall purpose of the Act is to promote
economic development.      See TEX. REV. CIV. STAT. ANN. art. 5190.6, $5 3,21 (Vernon Supp. 2004-
05). The opinion did not decide whether section 4B(a)(2)(A) authorizes projects that do not promote
business development, because the ballot proposition approved by the voters required the sales tax
to be used for economic development purposes. See Tex. Att’y Gen. Op. No. JC-0494 (2002) at 3-4.
This question about section 4B(a)(2)(A) is, however, relevant to your inquiry.

         You provide a certified copy of the official ballot voted upon at the May 3, 1997 election.
The ballot provides, in English and Spanish, that voters are to vote for or against the following
proposition:

                 The adoption of a Section 4B sales and use tax at the rate of one-half
                 of one percent to undertake projects as described in Section 4B of
                 Article 5190.6, including but not limited toprojectsfor thepromotion
                 ofprofessionalandamateur      athletics andsports, including stadiums,
                 ball parks, auditoriums, projects related to entertainment, convention,
                 tourist, and exhibition facilities, amphitheaters, concert halls, and
                 public parks, park facilities and events, open space improvements,
                 learning centers, municipal buildings, museums, and related stores,
                 restaurant, concession, and automobile parking facilities, related area
                 transportation facilities, and related roads, streets, and water and
                 sewer facilities, recycling facilities andprojects to promote new or
                 expanded business enterprises including public safety facilities,
                 streets and roads, drainage, and related improvements, demolition of
                 existing structures, and general improvements          that municipally
                 owned, as well as any other improvements or facilities that are related
                 to any of the above projects and any other project that the board
                 determines willpromote new or expanded business enterprises, and
                 the maintenance and operations expenses for any of the above
                 described projects.

OFFICIALBALLOT, SPECIALELECTION,CITY OFGUNBARRELCITY, TEXAS (May 3,1997) (emphasis
and boldface added) [hereinafter Official Ballot].




          ‘See Letter from Honorable Jim Solis, Chair, Committee on Economic Development,        Texas House of
Representatives, to Honorable John Comyn, Texas Attorney General (Nov. 7,200l) (on tile with Opinion Committee,
also avnikzbk of http://www.oag.state.tx.us) (RQ-0462-K, requesting Attorney General Opinion JC-0494).
The Honorable Todd Staples - Page 4                       (GA-0265)




         The City Secretary has informed us that the Mayor of Gun Barrel City drafted the Official
Ballot proposition intending to list all authorized uses ofthe sales tax revenues.5 The ballot language
first paraphrases the definition of “project” in section 4B(a)(2)(A), stating that the sales and use tax
may be used, among other things, for “‘projects for the promotion of professional and amateur
athletics and sports, including stadiums, [and] ball parks.” Official Ballot. The section 4B(a)(2)(A)
projects are not required to “promote new or expanded business enterprises.” Id. The ballot then
paraphrases the former section 4B(a)(2)(B) definition ofproject, which, unlike section 4B(a)(2)(A)
projects, must “promote new or expanded business enterprises.‘*

         Legislative history shows why section 4B(a)(2)(A) d oes not refer to economic development.
Section 4B as adopted authorized only those projects now defined by section 4B(a)(2)(A). See Act
ofMar. 21, 1991,72dLeg., R.S., ch. 11, 5 2,199l Tex. Gen. Laws 37,37. The enactment included
the following legislative finding:

                           The legislature finds for all constitutional      and statutory
                   purposes that the authority granted by this Act is for the public
                   purposes of development and diversification of the economy of the
                   state and an eligible city, the elimination of unemployment           or
                   underemployment    in the state and an eligible city, and the expansion
                   of commerce in the state and that this Act accomplishes those public
                   purposes.

Id. 5 1, 1991 Tex. Gen. Laws 37,37. Thus, the legislature found that section 4B(a)(2)(A) projects
accomplished public purposes relating to economic development and did not require the board of
an economic development corporation to make a similar finding for individual projects within
section 4B(a)(2)(A).

         We turn to the Official Ballot that you have submitted. The language that the Official Ballot
placed before the voters differs considerably from the language of Proposition No. 1 set out in the
Gun Barrel City Ordinance No. 1997-005. See generally Scarborough v. Eubank, 53 S.W. 573,574
(Tex. 1899) (the important matter in every election is that the will of the voters be fairly expressed,
correctly declared, and legally enforced). Accord Ferrell v. Harris County Fresh Water Supply, 24 1
S.W.2d 242,244 (Tex. Civ. App.-Galveston        1951, no writ) (quoting Scarborough, 53 S.W. at 574).

        The courts look to the language actually voted upon to ascertain the voters’ intent, and the
ballot proposition becomes part of the city’s “contract with the voters.” See Barrington v. Cokinos,
338 S.W.2d 133,142 (Tex. 1960) (the proceeds ofbonds voted by the people must be expended for
the purposes forwhich theywere voted); Taxpayersfor Sensible Priorities v. Dallas, 79 S.W.3d 670,


         ‘Telephone   Conversation   with Christy Eckerman,   City Secretary, Gun Barrel City, Texas (Aug. 19,2004).

           6We do not consider any issue about the validity of the election that the difference between the city ordinance
and the official ballot language may raise. The deadline for filing an election contest suit has passed. See TEX. ELEC.
CODE ANN. 5 233.006       (Vernon 2003). Nothing indicates that the election in question was void and therefore subject
to collateral attack. SeeBrown v. Blum,    9 S.W.3d 840, 846 at n. 8 (Tex. App.-Houston       [14th Dist.] 1999, pet. dism’d
w.o.j.) (election is void when city is wholly without authority to call the election).
The Honorable Todd Staples     - Page 5        (GA-0265)




672 (Tex. App.-Dallas 2002, pet. denied) (contract between city and voters consisted of bond
proposition itself). See also Fletcher v. Howard, 39 S.W.2d 32,35 (Tex. 193 1) (bond proceeds may
not be diverted from highway described in county order); Robbins v. Limestone County, 268 S.W.
915, 919 (Tex. 1925) (taxes levied and collected for particular purpose may not be diverted to
purposes other than for which they were voted); Tex. Att’y Gen. Op. Nos. GA-0156 (2004) at 7-8,
JC-0400 (2001) (summarizing law on “contract with the voters”). Proceeds of the section 4B sales
tax may be used only for the purposes authorized by statute and expressly approved by the voters.
See Tex. Att’y Gen. Op. Nos. GA-0156 (2004) at 7-8, JC-0494 (2002) at 4, K-0400 (2001) at 4.

         Under the language of section 4B(a)(2)(A) and the Official Ballot, the Board of the Gun
Barrel City Economic Development Corporation may use sales tax collected under section 4B sales
taxes for “land, buildings, equipment, facilities, and improvements           found by the board of
directors to      be required or suitable for use for professional and amateur (including children’s)
sports, athletic.   and public park purposes.” TEX. REV. Civ. STAT. ANN. art. 5 190.6,s 4B(a)(2)(A)
(Vernon Supp. 2004-05). Accordingly, the Gun Barrel City Economic Development Corporation
may use the section 4B sales tax to fund the construction of a youth football field. See Tex. Att’y
Gen. Op. No. JC-0400 (2001) at 7 (“nature/birding center” is within the scope of public park
purposes authorized by section 48 and incorporated by reference into ballot proposition).

        While Attorney General Opinion K-0494 correctly stated the law, it was based on incorrect
facts. It is overruled to the extent it is inconsistent with this opinion.
The Honorable Todd Staples - Page 6            (GA-0265)




                                        SUMMARY

                        Consistent with the election proposition approved by the
               voters in 1997, the sales taxes collected in Gun Barrel City under
               section 4B ofthe Development Corporation Act of 1979 may be used
               to fund facilities for amateur sports, including children’s sports,
               athletic, and public park purposes. The legislature has determined
               that section 4B(a)(2)(A) projects accomplish public purposes relating
               to economic development and the board of an economic development
               corporation is not required to make this finding for individual projects
               within this provision. Attorney General Opinion JC-0494 (2002),
               which was based on incorrect facts, is overruled to the extent it is
               inconsistent with this opinion.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
