June 4, 1968
The Honorable Joe Resweber Opinion No. M-240
County Attorney
Harris County Re: Constitutionality of
Houston, Texas Senate Bill 105, 60th '.,',:
Legislature, 1967, cod%-
Pied as Section,22 of
Article 7150. Vernon's
Dear Mr. Reswebers Civil Statutes.
Your request for an opinion reads, in part, as
follows;
"Carl Smith, Tax Assessor-Collector
of Harris County has recently requested
this 'office to obtain an Attorney Ckneral's
Opinion as to whether or not S.B. 105, 60th
Legislature, 1967, which is codified as
Section 22 of Article 7150, V.T.C.S., is
constitutional."
You also expressed the opfnlon that said Section 22
is unconstitutional, but you have not presented us wtth any
factual situatfon for application of‘ the statute,
Thfs opinion will deal only with said Senate Bill 105
(60th Legfslature, p0 319, Ch e 1>2), and it does not relate,
to House Bill N 0. 2, both Legislature. p* 623, Ch 1 3b3
which3fnvolves non-profft corporatfons (as deffned In thi
Texas Non-Profit Corporation Act), and which is also codf-
med as Sectfon 22 of Vernon's Civil Statutes.
Senate Bill 105, 60th Legislature, 1967, codffied as
Section 22 of Artfcle 7150,~Vernon,JsCivil Statutes, provides
fn parts
"22. The property of all fraternal
organizationi shall be exempt from taxation
so long as the property is owned and used
for charitable, benevolent, re3fgIous,,aPld
educational purposesp and is not fn whole
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The Hon. Joe Resweber, Page 2 (M-240)
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 lodger
or lodges, engaged in charitable, benevo-
lent, religious, and educational work.'
"However, this Act shall not apply
to any fraternal organization or lodge
which pays to its members, either directly
or indirectly, any type of insurance benefit,
be It life, health, accident or death benefit,,
or any other type of insurance; neither shall
any organization which shall directly or
indirectly participate or engage in any
political activity, either in support of or
in opposition to any candidate seeking any-
Qub1j.coffice, have or be entitl$d to bene-
fits as provided under this Act.
c
The constitutionality of the statute In exempting
property from ad valorem taxation Is controlled by Article
VIII, Section 2 of the Texas Constitution, reading as follows:
“Set, 2. All occupation taxes shall b+
equal and uniform upon the same class,of sub-
jects within the limits of the authority levying
the tax; but the legislature may, by general
laws, exempt from taxation public property
tisedfor public purposes; actual places or [of]
religious worship, also any property armed by
a church or by 'a strictly religious society for
the exclusive uae.as a dwelling place for the
ministry of sticlfchurch or religious.society,
and which.ylelds no revenue whatever to such
church or religious society; provided that such '
exemption shall not extend to more property
than is reasonably necessary for a dwelling
place, and in no event more than one acre of
land; places of burial not held for private
or corporate profit; all buildings,used -
exclusively and owned by persons or associa-
tions of persons for school purposes and the
necessary furniture of all schools and prop-
erty used exclusively and reasonably necessary
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. .
The Hon. Joe Resweber, Page 3 ‘(M-240)
fn conducting any association.engaged In pro- " :'
motfng the religious, educational and physical
development of boys, girls, young men or young
women operating under a State or National -
organization of like character; also the endaw-
ment funds of such institutions of learning
and religion not used with a view to 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 foreclosure sales made
to satisfy or protect such,bonds or mortgages,
that such exemption of such land and property
shall continue only for two years after the
purchase of the same at such sale by such
institutions 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."
The controlling question is whether'the exempt pnrposes
set forth in Section 22 of Article 7150 are broader than the
exempt purposes provided by the ~Constitution. If the statute
is subject to a broader construction than Section 2 of Article,
VIII of the Constitution of Texas, that construction must be
rejected as an unconstitutional construction. Dicklson,v *
Woodmen of the World Insurance Society 280 S.W.2d 315 (Tex.
i71 A 1932, error ref.), I Clt 0: Waco v* Landingham,
l$T::: 156, 155:S,W.2d 631, 6"33f3[941) th Supreme Court,.
recog ized that 0 a o it is a’settled~rkle Ef statutory
constluctfon that where the language of a, statute is broad
enough to cover matters without, as well as within, t.hepower
of the.Legislature to enact, courts should construe the statute’
in a restricted manner, as aptlying only to the’:matte3+lying
within the legislative power.
Statutes wfll be presumed to be constitutfonal, and if
they may be upheld by a construction in harmony with the
Constitution it is the duty of the courts to do so, 54 Tex,
Jur.2d 140-142, Sec. 23, Taxation.
The exempt purposes In the statute are defined by the
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.' words "ct+arftable,benevo,lent,religious and educational."
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,,,!.,, We will compare each~.ofsuch words separately with the language
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y$$:':':,,: of Section 22 of Article VIII of the Constitution.
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The~Hon. Joe Resweber, Page 4 (M-240)
Charitable. In construing the word charitable in,
the statute, it will be construed to mean "purely public
charity" for ad valorem tax purposes. See City of Houston
v. Scottish Rite Benevolent Ass'n., 111 Tex. 1 1 2 0 S W
m (1921) River Oaks Garden Club v. City of ~o&st~n~,~O
S,W.2d 85l’(lgb3) Th f th d "charitable"
be limited to mean "pu~~*'pr~~lIcecr$O~ity."
Benevolent. The word benevolent Is generally held
to mean "charitable." Black's Law Dictionary, 4th Rd.,
Q. 201. "Purely public charity" is the only phrase in
Section 2 of Article VIII of the Constitution that might
be considered as synonymous with "benevolent." However,
the Supreme Court of Texas In the River Oaks Garden Club
case, supra, held that the accomplishment of "ends wholly
benevolent" was only one-third part of the definition of
an "institution of purely public charity." Therefore, the
word ".benevolent"will be construed and limited to mean the
same as "purely public charity."
the:flrst portion of Article VIII
Section%%%*co%%red reads: "actual places OP reliilous
worship, also any property owned 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 revenue whatever to such church'or religious
society; provided that .suchexemption shall not extend to ~'
more property than is reasonably necessary for a dwellil;tg
place and in no event more than one acre of land, . e D
In construing this exemption, it has many times been
held that the exemption goes only to the explicit property
defined In the Constitution. City of San Antonio v. Young
The second part of Article VIII; Section 2 to be .-
examined fn regard to "religion" is as follows: "and Qrop-
erty 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."
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,:,
The Hon. Joe Resweber, Page 5 (M-240) ',
Thus* then"religious purpose" of Section 22 of Article
7150 wfll be limited wfth respect to this clause of the
Constitution to those
^_^ fraternal
_ . organizations
- - ._ which
_. are of
the cnaracter speclrled In such Clause. -8 conclusion 1s
also applicable to the only other constitutional exemption
relating to "religious," f,e., "also the endowment funds of
such fnstftutfons of learning and religion not used with a
view to profit," This provision relates to endowment funds
and not to property generally, Harris v. City of Ft. Worth,
142 Tex. 600, 180 S,W.2d 131 (192F4).
We thus conclude that the phrase "religious purpose"
wfll be construed to encompass only the religious activities
which are within the confines of the last three quoted portions
of the Constitution.
:
Educational. With respect to "educational," the only
applicable clauses"of Section 2 of Article VIII are those
dealing wfth buildings and furniture of institutions which
are used exclusively for school purposes, and endowment funds
of such fnstftutions.
In order to fit th#se"'educational" exemptions, the ~-
property must be of the exact nature described in the Constl- .'
tutlon, and no statute will be construed so as to afford a
broader exemption. 82 Tex. 1, ~
17 S.W, 512 Bn891); o-871~(193g).
WRfle the statute in question does not specifically
require that the property be owned and used exclusively for
the named purposes, we are required to construe the statute
to have been passed with a constitutional intent and thus such
property must be owned and used wholly and completely for one
or more of the constitutionally exempt urposes. See Smith
v, Feather, 149 Tex. 402, 234 S,W.2d 411 (1950); Morris v~.
Lone Star Chapter No. 6, 68 Tex. 698, 5 S.W, 519 flBgl)*
David Graham Hall Foundation v. Highland Park Independ&
e e s 02 0 0 762 I- X. Clv.App. 19b3, writ yef., n.r.C.).
It is our opinfon that Article 7150, Section 22,.is
valid, as constftutfonally limited as herein construed, .ln '-
conferring an ad valorem property tax exemption on that QI'CP-
erty of those fraternal organizations which is wholly, cozy',
pletely and exclusively owned and used by them for,purely
public charitable, religious and educational purposes. There-
fore, the applfcation of the statute to the particular facts
presented will determine in caeh case whether the property
Is exempt, Insofar as this statute is subject to a broader
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Joe'Resweber, Page 6 (M-240)
The lion;.
,.I.:
<
construction, that construction will not be adopted because
such would be unconstitutional.
SUMMARY
Senate BSll 105, Acts 60th Legislature,
1967, codified as Section 22 of Article 7150,
Vernon's Civil Statutes, is constitutional;
however, Its effect is limited by the restrlc-
tlve provisions of Article VIII, Section 2 of
the Constitution of Texas. (This opinion does ,_
not deal with House Bill No. 372, Acts 60th
Legislature, p. 855, Ch. 363, which was also
codified as Section 22 of Article 7150, Vernon's
Civil Statutes:)
s very truly,
Tzm=
C. MARTIN
General of Texas
Prepared by Alfred Walker
Assistant Attorney General
APPROVED:
OPINION COMMITTEEi
Hawthorne Phillips, Chairman
Kerns ,Taylor, Co-chairman
Jack Goodman
Bill C aig
Ralph +iash
MariettiaMcGregor Payne
A. J. CARUBBI, Jr.
Executive Asslstant "
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