THE ATTORNEY GENERAL
OP TEXAS
CWAWIrORDc. MAlrrlN AUSTIN.TEXAR 78711
Ax-rORNEY QENERAI. November 25, 1969
Honorable Joe Resweber Opinion No.!+517
County Attorney
Harris County Re: Chapter 652, Acts
Harris County Courthouse of the 61st Legis-
Houston, Texas 77332 lature, 1969 which
exempts from taxation
the property owned
by Garden Clubs.
Dear Mr. Resweber: RQ 550
You have requested an opinion from this office as to
whether the property of the LaPorte Bayshore Garden Club
is exempt from ad valorem taxes by virtue of the exemp-
ting statute (Article 7150, V.C.S., Chapter 652, pi 1950,
Acts 6lst Legislature 1969, R.S.) being unconstitutional
under Art. VIII, Sec. 2, Constitution of Texas.
In order for an organization to be exempt from ad
valorem taxes, it must bring itself within one of the
classes of properties enumerated in Article VIII, Sec-
tion 2 of the Texas Constitution which provides as
follows: ,~
"All occupation taxes shall be equal
and uniform upon the same class of subjects
within the limits of the authority levying
the tax; but the legislature may, ty general
laws, exempt from taxation public property
used for public purposes; actual places or
/-or? 7 religious worship, also any property
owner by a church or by a strictly religious
society for the exclusive use as a dwelling
place for the ministry of such church or
religious society, and which yields no reve-
nue whatever to such church or r,ellgious
society; provided that such exemption shall
not extend to more property than is reasonably
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Hon. Joe Resweber, page 2, (~-517)
necessary for a dwelling place and in
no ,event more than one ‘acre of land; ~’
places of burial not he1.d for private
or corporate profit; all buildings used
exclusively and owned by persons or asso-
ciations of persons for school purposes,
and the necessary furniture of all schools
and property used exclusively and reasonably
necessary in conducting any association
engaged in promoting the religious, educa-
tional and physical development of boys,
girls, young men or young women operating
under a State or National organization of
like character; also the endowment funds
of such institutions of learning and reli-
gion not used with a view of profit; and
when the same are invested In bonds or
mortgages, or In land or other property
which has been and shall hereafter be
bought in by such Institutions under fore-
closure sales made to satisfy or protect
such bonds or mortgages, that such exemp-
tion of such land and property shall con-
tinue only for two years after the purchase
of the same at such sale by such instltu-
tiona and no longer, and institutions of
purely public charity; and all laws exempt-
ing property from taxation other’ than .the .
property above mentioned shall be null and
void m As amended Nov. 6, 1906, proclamation
Jan, 7, 1907; Nov, 6, 1928.”
Pursuant to the authority granted to It by Art.
VIII, Sec. 2, the Legislature enacted Art. 7150, Ver-
non’s Clvll Statutes, which specifies exemptions from, ‘.
ad valorem taxes. The 6lst Legislature by Chapter 652
,amended Article 7153, Vernon’s Civil Statutes, which
provides as f 0110~s z
“Section 1 D Ar’c,icle 7150, Revised, Civil, ,,
Statutes of Texas, 1925, as amendeU, is amended
by adding new Sections 24 and 25 to read as ~:
follows:
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Hon. Joe Resweber, page 3, (M-517)
‘24. All property of organizations,
whether incorpora ted or not, which are
devoted wholly to the promotion and en-
couragement of, or the dissemination of
information concerning, the development,
propagation, growing, or arrangement of
flowers or decorative shrubs, plants, or
trees, is exempt from taxation, provided
the property is owned and used for such
purposes only, is not in whole or in part
leased out to others, and is not in any
manner operated at a profit or houses any
individual or entity which operates a busi-
ness upon said premises at a profit. 1
“Sec. 2, All garden clubs owning real
property in Texas shall be exempt from ad
valorem taxation.”
Inasmuch ?s the last phrase of Art. VIII, Sec. 2,
provides that . all laws exempting property from
taxation other than the property mentioned above shall be
null and void,” it is necessary for the garden club to
come within one of the enumerated classes of properties
to be entitled to an exemption.
The Supreme Court of Texas In City of Houston v.
Scottish Rite Benevolent Ass’n, 111 Tex. 191, 230 S.W,
978 (1921) held that an institution qualifies as ,one
of “purely’public charity” where (1) it ,makes no gain
or profit, (2) it accomplishes ends wholly benevolent,
and (3) It benefits persons indefinite In number and In
personalities, by preventing them, through absolute gra-
tuity, from becoming burdens to society and to the State.
In the recent case of Hilltop Village, Inc. v.
Kerrville Ind. Sch..Dlst., 42o S.W.2d 943 (Tex.Sup. 1968),
the Court in considering the tests of what constitutes a
“purely public charity” stated at page 948:
“River Oaks Garden Club v. City of
Houston, 370 S.W.2d 85l.(Tex,Sup. 1963)j
is our most recent writing upon the sub-
ject of charitable exemption from taxation,
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Hon. Joe Reaweber, page 4, (M-517)
In denying exemption there, we reiterated
the previously stated tests:
‘* * * fA 7n organization is not
an instituti’;ii sf purely public charity
within the meaning of’the constitutional
exemption unless it assumes, to a material
extent, that which otherwise might become
the obligation or duty of the community~
or the state’,; and I* * * unless its funds,~ ‘~ ‘,
property and assets are pledged and used ‘~ ‘,
to provide for the basic needs of the
sick, distressed and needy, whether the
benefits be extended only to a small seg-
ment of society or to the public generally.‘:”
Under our Constitution the Legislature, is powerless,
to exempt an organization unless such organ1za,tlon is
either an institution of “purely public charity” as that
term is employed in our Constitution or unless the organl-
zation comes within one of the enumerated classes of prop-
erties set forth therein.
Whether an organization is an “lnstltutlon~~ of purely,
public charity” is a fact question upon which tnis office
cannot pass. We have been presented no facts as to:‘,the
use .belng made of the property, and the corporate charter
and by-laws The of the LaPort,e Bayshore
Tax Assessor~Coll.ector Garden C.lub are
6hburd”as~kr;‘tain’not
,~” ,,.,. -.
before us D
the facts and make the initial decision. If the LaPorte
Bayshore Garden Club is a “garden club” of the type re-
fused an exemption by the Supreme Court in the River Oaks
case, supra, under the holding in that case, there can be
no exemption.
We are unable to conclude as a matter of law that
the exempting statute is unconstitutional and that under
no conceivable state of facts could the LaPorte Bayshore
Garden Club qualify its property for a charitable exemp-
tlon or for one of the other enumerated classes of prop-
erties set out in Article VIII, Section 2, Constitution
of Texas.
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Hon. Joe Resweber, page 5 (M-517)
SUMMARY
If the LaPorte Bayshore Garden Club
qualifies as an "institution of purely public
charity" as that term is used in Section 2,
Article VIII, Constitution of Texas, or for
one of the other exempted classes of property
enumerated in Article VIII, Section 2 of
such Constitution, it is ,exempt from ad val-
orem taxation and If not an "Institution of
purely public charity", it is not tax exempt.
7
Ve$/truly yours,
I
Prepared by Terry Reed Goodman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
.,
Earl Hines
Arthur Sandlln
Fisher Tyler
Wardlow Lane
MEADEF, GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
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