April 15, 1971
Honorable Jules Damiani, Jr. Opinion No. M-837
Criminal District Attorney
405 County Courthouse Re: Liability of medical
Galveston, Texas 77550 fraternities at Uni-
versity of Texas Medical
School at Galveston for
Dear Mr. Damiani: ” ad valorem taxes.
You reqiie,st,odr ol&iion a6 lo
‘1. . . ðer the msdical fraternities at
the University of Texas Medical ‘sirhbol at Galveston
. . i I,
are exempt i&m ‘ad ‘valorkm taxes by reason of ‘either or both of the
following grounds authoiited in Articie VIII, Section i of the Texas Con-
.
etltutioti.
(1) ‘1. . . buiidings used exclusively and owned
by persons or associations of $ersons for
school puipoees . : . ;I’
(2);. ,ya.,:,. .;, institutions
.~ ,of purely ,public charity;
.:. **,
School bu’ildings,‘art exe&i@ by Sectibn 1 of Article ‘7150, veer-
non’s Civil Statutes*, which in its reietiant p6rtiob reads:
“The foIloWing property &I\ be exempt from
taxation, to-wit:
‘* All references to ‘statutes are to Vernon’b Civil Statutes unless
otherwise stated.
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Honorable Jules Damiani, Jr., Page 2 (M-837)
“1. Schools and Churches - Public school
houses. . . All public colleges, public
academies, . . . and all such buildings
used exclusively and owned by persons
or associations of persons for school
~purposes; . . .‘I
Also, you cite Section 22 of Article 7150 (Acts 1967, 60th Leg.,
R. S., p.. 319, ch. 152) which exempts the property of all fraternal organi-
zations, as therein described, when used for certain purposes; this Section
22 reads as follows:
“The property of all fraternal organizations
shall be exempt from taxation for so long as the prop-
erty is owned and used for charitable, benevolent, re'-
ligious, and educational purposes, and is not in whole
or in part leased out to others,’ or otherwise used with
a view to profit.
“The term ‘Fraternal Organization’ as used in
this’ Act shall mean, ‘A lodge, or lodges, engaged in
charitable,’ benevolent, religious, and educational work, ’
-~However; thie Act -shall note apply to any frs -
ternal organization or lodge which pays to its members,
either directly or indirectly, any type of insurance bene-
fit, be it life, health, accident or death benefit, or any
other type of insurance; neither shall any organization
which shall dir~ectly or indiredtly participate or engage
in any political activity, either in support of or in op-
position to any c,andidate seeking any public office, have
or be entitled to benefits as provided under this Act. ”
Our opinion is that the evidence submitted by you is not sufficient
to exempt the properties of these medical fraternities under any of the fore-
going constitutional or statutory grounds.
1.
We first consider whether these properties are exempt as school
buildings under either of the above quoted provisions of the Constitution and
of Article 7150, Section 1.
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Honorable Jules Damiani, Jr., Page 3 (M-837)
In this connection you request that we reconsider our former
Attorney General’s Opinion No. M-12 (1967). in view of the holding of
our Texas Supreme Court in the case of San Antonio Conservation Society,
Inc. v. City of San Antonio, 455 S. W. 2d 743 (Tex. Sup. 1970) and the case
of City of Memphis v. Alpha Beta Welfare Ass’n., 126 S. W. 2d 323 (Term.
Sup. 1939. ) The San Antonio case was decided subsequently to our Opinion
M-12, and the City of Memphis case was decided prior to our Opinion and
was not cited nor referred to in our Opinion.
We quote the entire statement of facts which you submit in support
of your claims for exemption:
“It should be noted from the outset that there
is not sufficient dormitory space for male medical stu-
dents attending the University of Texas Medical Branch.
While some students live in private residences, the
great majority of single male students live at fraternity
houses which are normally operated as non-profit corpo-
rations and charitable associations adjacent to the campus.
The fraternity programs are integrated with the University
of Texas Medical Branch and each fraternity maintains a
supervised study program and a medical library for stu-
dents. Such an arrangement gives each medical fraternity
access to medical journals, textbooks, and specimens. In
addition, each of the fraternities furnish the following edu-
cational benefits to the medical students as an assist to the
Medical Branch:
“1. Maintenance of a library in each fraternity
with access to medical journals, textbooks,
and specimens (osteological, CNS, Histo-
logical, etc. )
“2. Provisions of textbooks and study aids to
most of the members of fraternities in
Years I and II. These aids frequently in-
clude microscopes.
“3. Lecture sessions with faculty and private
physicians in the fraternities. These occur
at the rate of about one/month. Not only do
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Honorable Jules Damiani, Jr., Page 4 (M-837)
.individual fraternities sponsor those
sessions, but the Inter-fraternity Coun-
cil and the Sophomore Class have had
regular ‘Fireside Chats’ in the frater-
nities featuring visiting dignitaries,
faculty and administration.
“4. Tutorial sessions are frequently held in
the fraternities by course instructors at
student’s request. Attempts to review,
clarify and emphasize material are made
during these sessions.
“5. Orientation of new students to medical
school and of each class to its’ ensuing
years and to new assignments is a con-
stant, ongoing procedure.
“6. Study sessions and review sessions of
students and upperclassmen.
“7. ‘Mormal gatherings of students discuss-
ing clinical cases, management, and
philosophy ‘and ethics of medicine occur
continuously.
“8. Provide professional contacts and guid-
ance in the evolving professional behavior.
Social functions form a small part of medi-
cal fraternities activity.
“9. These are not ‘typical Greek Letter fratern-
ities’ but unique both as fraternities and as
medical fraternities. They play a large part
in the culture, heritage and attractiveness of
UTMB.
“10. Provision of housing and preparation of meals
for single students near the campus is of es-
timable value.
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Honorable Jules Damiani, Jr., Page 5 (M-837)
“11. Hospital cafeteria and surrounding
facilities could not support the number
of people who would depend on them if
not for fraternities.
!‘12. Availability of fraternities to hospital is
of great importance when students are on
call and must come to the hospital to give
medications, evaluate patients, work up
new patients or’go to surgery.
“13. There is no ‘school’ organized recreational/
social program. All activities stem from
organization by the individual fraternities
and the Inter-fraternity Council.
“14. ‘Patients being cared for by students are
state patienta. ‘,Without the student’% help
~andavailab ility in many areas, more ad-
ministrative and nursing personnel would
be required.
“15. Fraternities have no reason for existences
i: except to serve the University and its stu-
dent body. The Univereity,depends upon
the fraternities to provide essential services
” ,andto nurture the professional growth of
.medical students.
..,~
.“16. .;Services provided by the fraternities cost
~the University nothing. ‘In- their absence,
considerable expenee might have to be in-
curred to provide these benefits. ”
:Our careful comparison of these facts with those set forth in our
prior Opinion M-12 shows no new facts that would warrant holding the proper-
ties in question to be exempt. We consider the present facts to be only repeti-
tive of those considered in Opinion M-12, without adding any new reason for
holding the properties inquestion to be exempt. We refrain from considering
here again all the reasoning and authorities presented in our former Opinion,
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Honorable Jules Damiani, Jr., Page 6 (M-837)
but rather we refer to, it as the basis both in fact and in the legal authori-
ties there cited for our holding in this present opinion. See also Attorney
General’s Opinion No. M-778 (1971. )
In the City of Memphis case, supra, the court construed a Consti-
tutional exemption of property ‘I. . . held and used for purposes . . . edu-
cational . . .’‘I The Texas Constitutional provision exempts property used
for “school purposes” and also ,institutions of “purely public charity . ”
These provisions are different in wording and cannot be construed to be
the same in all situations. The rule was well stated in the case of Little
Theater of Dallas v. City of Dallas, 124 S. W. 2d 863 (Tex. Civ. App. 1939,
no writ):
~“Appellant cites a number of decisions from the
courts of other states, tending to show that . . . debating
clubs, . . professor’s houses, dormitories and music
associations were exempt from taxation, but these decisions
were based upon and controlled by constitutional and statu-
tory provisions ,peculiar to the respective states, hence are
not controlling as authorities~here. I’
We note that in the City of Memphis case the only issue presented
was whether the,real, estate of a general welfare corpo.ration was used by
it exclusively;for 1’educational purposes, ” a constitutional and statutory
ground fortax exemption. The Court noted:
“The specific purpose for which Alpha Beta
Welfare Association was created, as stated in its charter,
is the ‘promoting and providing for medical and scientific
education-of young men, and for the purpose of, owning
property, both real and personal,. to be used exclusively
in furthering the aforesaid purposes; . . . ’
“The only witnesses who testified on the trial
of the. case were three physicians introduced by the Asso-
ciation. Thus the facts of the case are not in controversy. ”
(126 S. W. 2d 324. )
In its concluding paragraph, the Court concluded that under the great weight
of authority tax exemptions have not been granted to college Greek letter
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Honorable Jules Damiani, Jr. , Page 7 (M-837)
fraternities, except under express statutory authority, and further said:
“In our opinion no blanket .rule can be laid
down and made applicable to all fraternities. Whether
or not the property of a fraternity is exempt from taxa-
tion is dependent, as in all other cases, on the use made
of the property. Each case must be determined on its
own facts . . .I’ (126,s. W. 2d 326. )
We are in agreement with this reasoning; however, aside from the
distinguishing legal and factual. aspects noted above from the factual situa-
tion presented, the holding was made in the City of Memphis case only after
trial and upon undisputed and non-controversial.testimony. Likewise, in
the San Antonio Conservation Society.case, supra, the trial court, upon
stipulations of the parties and a non-controversial fact situation, had held,
and the Supreme Court affirmed, that the Conservation Society had assumed,
to a material extent, that which otherwise might become the obligation or
duty of the -community or state,, the statutory and constitutional test for tax
exemption. The’Court said:
“The City concedes that the whole public re-
ceives the benefits of the Navarro House. ” (455 S. W. 2d
746.), ,’
Under the facts presented, no city, county or state taxing authorities have
stipulated or conceded anything. We are presented only with .a partial state-
ment of miscellaneous facts concerning educational benefits to the medical
students who were fortunate ,enough to be accepted into the fraternity houses.
Then amount of-charity dispensed, the confinement to public charitable pur-
poses of-the-fraternityand.its perpetual dedicatioxiof the property to,public
charity in the charter, the conditions of admission or rejection to,all on a
;non-discriminatory.public charitable basis,. are all additional matters which
must be considered not shown here. In this connection, the general evidentiary
and legal guidelines have been noted in Attorney General Opinion No. C-697
(1966) and in Hilltop Village, Incs v. Kerrville Independent School Dist. , 426
S. W. 2d 943 (Tex. Sup. 1968). to which you are referred. In view thereof,
we are unable to say as a matter of law that the fraternities are entitled to ad
valorem tax exemption. We do not say, however, that in a specific case such
a fraternity is precluded from the legal possibility of showing its property is
owned and used~for school purposes or as an institution of purely public charity.
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Honorable Jules Damiani, Jr. , Page 8 (M-837)
We now consider whether the properties of the fraternities may be
comprehended within Article 7150, Section 22 (Acts 1967, 60th Leg., R. S.,
p. 319, ch. 152) which exempts from taxation property of
‘I. . . all fraternal organizations . . . for
so long as the property is owned and used for charit-
able, benevolent, religious, and educational purposes,
and is not in whole or in part leased out to others, or
otherwise used with a view to profit. ” (Emphasis added. )
The Legislature therein defined the term “Fraternal Organization” to mean,
“A lodge, or lodges, engaged in charitable,
benevolent, religious, and educational work. ”
Assuming without deciding, that the above statute contemplates the
exemption of the property of medical fraternities, nevertheless that statute,
to be constitutional and in harmony with Section 2, Article VIII of the Consti-
tution of Texas, must be construed to provide an exemption for such property
only if owned and primarily used as an “actual place of religious worship, ”
or “for school purposes, ” or as “institutions of purely public charity. ” Un-
less the medical fraternities can bring themselves clearly within one of those
enumerated exceptions, they are not exempt. The Legislature is powerless
to grant an exemption that does not meet this constitutional concept and test.
The City of Waco v. Texas Retired Teacher Residence Corporation, NO.
B-2179. Feb. 17. 1971. Tex. Sun. _ Ct . : Attornev General Oninion Nos. M-778
(1971) and M-517 (1969), and authorities therein cited; City of San Antonio v.
Young Men’s Christian Association, 285 S. W. 844 (Tex. Civ. App. 1926, error
ref. ) Thus, in the case of fraternal associations granted such a tax exemp-
tion by a general statute,, it has been held that such a statute was violative
of the implied limitations of a constitutional provision authorieing the Legis-
lature to exempt property used exclusively for charitable purposes. Supreme
Lodge, M.A.F.O. V. Board of Review, 223 Ill. 54, 79 NE 23, (Ill.Sup., 1906.)
In the above case, the Supreme Court of Illinois pertinently observed:
‘1. . . Obviously, then, if the fraternal bene-
ficiary societies which are relieved from taxation by
the statute under consideration do not fall within one of
the classes whose property the Constitution provides
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Honorable Jules Damiani, Jr., Page 9 (M-837)
may be exempted from taxation by general law,
any act of the Legislature purporting to exempt
their property from taxation is unconstitutional.
The Legislature has no power to exempt from
taxation any property other than that enumerated
in Section 3 of Article 9 of the Constitution. Such
enumeration is an exclusion of all other subjects
of exemption. . . ” (at p. 24. )
In view of our conclusion that college fraternities or sororities, in-
cluding the medical fraternities, are generally held to be not exempt ~from
taxation because they do not exist primarily for charitable or educational and
benevolent purposes, we must necessarily likewise conclude that as a general
rule the property of such organizations is not exempt under Section 22, Ar-
ticle 7150, when harmonized with Section 2, Article VIII of the Texas Consti-
” tution. As observed in Beta Xi Chapter of Beta Theta Pi v. City of New Or-
leans, 137 So. 204 (La. Ct. of App., 1931) while the practice of a fraternity
in performing certain ch aritable work is commendable, tax exemption can-
not be shown unless the character of the work undertaken is one of the principal
objects of the organization, the doing of such work as relieves the State of
some of its burdens, and that the property itself, and not only the organization,
must be devoted to such undertakings. This is the well-settled rule in Texas.
Hilltop Village, Inc. v. Kerrville Ind. Sch. Dist., 426 S. W. 2d 943 (Tex. Sup.
1968); River Oaks Garden Club v. City of Houston, 370 S. W. 2d 851 (Tex. Sup.
1963. ) The case of San Antonio Conservation Society, Inc. v. City of San
Antonio, 455 S.,W. 2d 743 (Tex. Sup. 1970) is not controling under the facts we
have under consideration.
We are unable to say as’ a’matter of law that the medical fraternities
in question constitute “lodges engaged in charitable, benevolent, religious,
and educational work. ” Whenharmonized with Article VIII, Section 2, Con-
stitution of Texas, ’as stated in 51 ‘American Jurisprudence 602, Taxation,
Section 627, this determination is ordinarily and most often a question of fact
in the light of all the facts and circumstances involved, and further:
‘1. . . Although there are holdings to the contrary,
the prevailing rule seems to be that such (fraternal) asso-
ciations are not institutions of ‘purely public charity’ within
the meaning of such a phrase in a tax exemption provision.
In this connection, it has been pointed out that the word ‘purely’
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Honorable Jules Damiani, Jr., Page 10 (M-837)
as thus used is intended to modify the word ‘charity’
and not the word ‘public’, so as to require the insti-
tution to have a wholly altruistic quality and exclude
from it every private or selfish interest or profit or
corporate gain. (Parenthesis ours. )
It is held that it is not enough to exempt property from taxation that
one of several purposes or results of its use is charity. It is required to
be the chief, if not the sole, object. 51 Am. Jur. 605, Taxation, Sec. 631;
Benevolent & Protective Order of Elks v. Houston, 44 S. W. 2d 488 (Tex. Civ.
App. 1931, error ref. ), citing R. C.L.
It is therefore our conclusion that the facts and circumstances sub-
mitted are insufficient to present a case for tax exemption as a matter of
law, the taxpayers having failed to discharge fully their burden of clear proof
and any doubt being resolved against the exemption and in favor of the taxing
power.
SUMMARY
The properties of the medical fraternities at
the University of Texas Medical School at Galveston,
Texas, are not shown to be entitled to ad valorem tax
exemption as a matter of law under the facts and cir-
cumstances presented under either Section 1 or Section
22 of Article 7150, Vernon’s Civil Statutes, as amended,
and Article VIII, Section 2, Texas Constitution.
Yours very truly,
CRAWFORD C. MARTIN
Attorney General of Texas
NOLA WHITE
First Assistant
Prepared by W. E. Allen
Assistant Attorney General
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.
Honorable Jules Damiani, Jr. , Page 11 (M-837)
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
Arthur Sandlin
John Reeves
Ralph Rash
Jack Goodman
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
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