OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN 1
GROVER SELLERS
Xonorable H. L. Robarson
County Attorney, Minkler County
Kermit, Texas
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Dear Sir: Attention: W. T. Ralr
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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?
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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?
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%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