R-611




.4TTcmNEY   GENERAL


                                       June 30, 1947


     Hon. J.P. WIllLams                  Opinion No. V-284
     County Attorney
     Yoakum County                       Re: Voting of County Park tax and
     Plains, Texas                           issuance of Time Warrants to be
                                             paid therefrom.
     Dear Sir:
                       We quote your letter of June 16, 1947 in part as fol-
      lows :
                 "I would like to have your opinion as to whether
            Yoakum County has authority to issue interest-
            bearing time warrants for the purpose of const??uct-
            ing swimming pools and bathhouses in the county
            parks of Yoakum County. The applicable Statute is
            Article 6078.
                        "The factual situation is as follows:   On April
            16, 1946, the CommissionersI Court of Yoakum County
            called an electlon to be held on May 1.8, 1946 to de-
            termine the following proposition:
                        I,
                            'Whether or not the Commissioners' Court of
                      Yoakum County, Texas shall be authorized to
                      levy an annual ad valorem tax not to exceed five
                      cents on a one hundred dollar valuation of all
                      taxable property within said county for the
                      purpose of constructing, maintaining and oper-
                      ating public parks withln said county; one park
                      to be located in the vicinity of Plains, and
                      one to be located in the vicinity of Denver
                      city. '
                        "The notice of the electlon was posted in each
                      of,the election precincts in the county on April
                      24, 1946.
                        "The election prevailed b% more than a two-
                      thirds (2/3) majority vote.
              After the above-quoted matter you set out in your let-
     ter a copy of the notice of Intention to Issue time warrants,
     which you state was published in accordance with the Bond and
     Warrant Law of 1931 (Article 2368a, V.C.S.).
Hon. J.P. Williams, page 2        v-284



         We do not have sufficient facts before us to determine
whether the election was held in accordance with the require-
ments of law. How ever, at the outset we are confronted with the
question whether, in view of the proposition above-quoted, the
tax authorized by Article 6078, V.C.S,, was legally submitted to
and ratified by the property taxpaying voters of the county.
         The first paragraph of Article 6078 provides as fol-
lows:
        "Each Commissioners Court is authorized to
   levy and collect a tax not to exceed five (5) cents
   on each one hundred dollars assessed valuation of
   the county for the purchase and improvement of lands
   for use as county parks.   No such tax shall be
   levied and collected until the proposition is sub-
   mitted to and ratified by the property taxpaylng
   voters of the county at a general or special elec-
   tion called for that purpose, provided, a t,wo-
   thirds majority of the property taxpaying voters
   of such county, at an election held for such pur-
   pose shall determine in favor of said tax* If said
   court desires to establish two OP more of such
   county parks, they shall locate them in widely
   separated portions of the county. Said court shall
   have full power and control over any and all such
   parks and may levy and collect an annuai tax suf-
   ficient in their judgment to properly maintain such
   parks and build and construct pavilions and such
   other buildings as .thegmay deem necessary-,lay
   out and open driveways and walks, pave the same or
   any part thereof, set out tireesand shrubbery, con-
   struct ditches or lakes, and make such other im-
   provements as they may deem proper. Such parka
   shall remain open for the free use of the public
   under such reasonable rules and regulations as
   said court may prescribe." (Emphasis added)
         It will be noted that the purpose for which the tax may
be levied is for the "purchase and improvement of lands for use
as county parks*" However, the purpose as set out In the propo-
sition is for "constructing, maintaining and operating public
parks." In other words, the statutory purpose was not included~
in the.proposition submitted to the qualified voters. Moreover,
it is our opinion that the purpose as voted upon does not come
within the statutory purpose, and that the election is to be held
for naught.
         It is well established in law that the authority to ex-
ercise the taxing power is to be strictly construed and must be
closely followed,
Hon. J.P. Williams, page 3           v-284



         In the case of State ex rel. Rea et al. v. Etheridge
et al., 32 S.W. (2) 828 (Corn.App., opinion adopted by Sup. Ct.(,
the court held as follows:
            8,
             . . 0 The power to tax carries with it the
       possible exercise of it to impose oppressive bur-
       dens upon the people, and when this power is
       legally appropriated by the governing authority
       of a nmnicipal corporation, the record must af-
       firmatively show, by a strict constructlon of the
       language used, that the power has been lawfully
       acquired. . . .'I
            See also Wood v. City of Galveston, 76 Tex. 126, 13 S.W.
227;     City of Austin v. Nalle, 85 Tex. 520, 22 S.W. 668, 960.
         Article 6078 authorizes the tax upon a vote of a two-
thirds majority, for the purchase and improvement of lands for
use as county parks. It is obvious that this tax would come out
of the constitutional permanent improvement tax (Article VIII,
Sec. 9). The purpose as set forth in the propositlon submitted
to the voters specified a different purpose, to-wit: constructing,
maintaining and operating public parks. The operating or cur-
rent expenses of a county park would, in our opinion, be payable
out of the general fund of the county rather than the permanent
improvement fund. It is evident, therefore, that a constitutional
tax, other than the one covered by Article 6078, was attempted to
be authorized at the election held on May 1.8, 1946. You are,
therefore, advised that it is the opinion of this department that
the qualified property taxpaying voters of Yoakum County did not
authorize the tax for the purchase and improvement of lands for
use as county parks, within the contemplation of Article 6078 at
the election held on that date. It, therefore, become3 unneces-
sary to determine whether the legal requirements relating to
the posting of notices, the conduct of the election, the canvass-
ing of the returns, etc., were met.
         This department has heretofore determined that the con-
struction of a swimming pool is a park improvement under Article
6078. See copies of Opinions Numbers O-2594 and O-7319. These
opinions hold that time warrants may be issued against the tax
mentioned in Article 6078 is such tax is authorized within the
terms of that article. Lasater v. Lopez, 217 S.W. 373; Adams v.
McGill, 146 S.W. (2) 332 (W.E. Ref.).
         You are, therefore, advised that if Yoakum County author-
izes the tax in accordance with the provisions of Article 6078,
time warrants may be issued against such tax for park improvement
purposes, which improvement would consist of the construction of
swlmming pools and bathhouses in the county parks of Yoakum County.
Hon. J. P. Williams, page 4         v-284



         You are further advised that it is our opinion that such
a notice as the one outlined in your letter would meet the re-
quirements of Sections 2 and 3 of Article 2368a.  Of course,
notice is required for each contract in excess of $2,000.00.
                               SUMMARY
         1. Article 6078, V.C.S., authorizes the sub-
    mission of the proposition to the qualified property
    taxpaylng voters of a county which would authorize
    the commissioners' court of that county to levy and
    collect a tax not to exceed five (5) cents on each
    one hundred dollars assessed valuation of a county
    for the purchase and improvement of lands for use as
    was
    county
        specified
           parks. ,t proposition wherein the purpose
                      constructing, maintaining and oper-
    ating public parka within said county", does not
    meet the terms of Article 6078, since it includes
    "maintenance and operation" and was not limited to
    permanent improvements.
         2. If the terms of Article 6078 are met and
    the commissioners' court is legally authorized to levy
    and collect such tax, time warrants may be issued
    against that tax for park improvement purposes, which
    improvements could consist of the construction of
    swimming pools and bathhouses in the county parks.
                                Very truly yours
                              ATTORNEY GENERAL OF;TEXAS
                                By s/George W, Sparks
                                     (GeorgeW. Sparks
                                     Assistant
GWS:s:jrb:

APPROVED
a/Price Daniel
ATTORNEY GENERAL