Untitled Texas Attorney General Opinion

THEATTORNEY GENERAL oFTEXA~ Honorable Robert S. Calvert opinion NO. c-725 Comptroller of Public Accounts Capitol Station Re: Whether a family rela- Austin, Texas tlonshlp is necessary Inorder to claim a homestead exemption from the ad valoren tax, and Dear Mr. Calvert: related question. You requested an opinion from this office upon the following questions: “(1) Is a family relationship necessary to have available to a pro- perty owner the exemption from Ad Valoren Taxes?” Further, if the answer to question (1) is in th.e affirma- tive, you have requested us to answer the following question: “(2) A husband and wife own a home and are allowed the homestead exemption from State Ad Valoren Tax. Neither has any kin. Later they divorce, with the husband receiving title to the hone in the settlement and he continues to reside alone in the home. May he legally continue to receive the homestead exemption from State Ad Valorem Tax year after year?” The pertinent Texas constitutional provisions which govern the homestead exemption are Article XVI, Section 50; Article XVI, Section 51; Article VIII, Sections l-a and l-b. The con- trolling statutory provision is Article 7048a, Section 2, Vernon’s Civil Statutes. Article XVI, Section 50 of the Texas Constitution provides, In part, as follows : “The homestead of a family shall be, and Is hereby protected from forced sale,. . ,” -3486- Hon. Robert S. Calvert, Page 2 (C-725) Article XVI, Section 51, which describes the kind and character of the property of which the homestead shall con- slst, reads as follows: “The homestead, not in a town or city shall consist of not more than two hundred acres of land, which may be In one or more parcels, with the inprove- nents thereon; the homestead In a city town or village, shall consist of lot, or lots, not to exceed In value five thousand dollars, at the time of their designation as the homestead, without reference to the value of any improve- ments thereon; provided, that the same shall be used for the purpose of a home, or as a place to exercise the calling or business of the head of a family; prc.lf~ded also, that any temporary renting OT the homestead shall not chrge the chamter of the sane, when no other homestead has been acquired e ” Article VIII, Section l-a of the Texas Constitution prc- vldes, in part, as. follows: “From and after January 1, 1951, no State ad valoren tax shall be levied upon any property within this State for general revenue purposes. From and after January 1, 1951, the several counties of the State are authorized to levy ad valorem taxes upon all property within their respective boundaries for county purposes except the first Three Thousand Dollars ($3,OCC) value of residential homesteads, not to exceed thirty cents (3%) on each One Hundred Dollars $y,a;~;;;;;;~ In addition to all other ” (Emphasis added throughout unless othekwise stated). Article VIII, Section l-b of the Texas Constitution pro- vides as follows: “Three Thousand Dollars ($3,000) of the assessed taxable value of all residence homesteads as now defined by law shall be exempt from all taxation for all State purpose.” -3487- Hon. Robert S. Calvert, Page 3 (C-725) The statutory enactment, Article 7048a, Section 2, states: “From and after January 1, 1951, the several counties of the State be and they are hereby authorized to levy, assess and collect ad valoren taxes upon all property within their resnective boundaries for county purposes, the first Three Thousand Dollars value of FesidetitiaI Exemptions from taxation are strictly construed. In the case of City of Wichita Falls v. Cooper, 173 S.W.2d 777, (Tex. Civ.App. 1943, error ref.) the court stated at page 780: “It Is the universal rule in this state that the Constitution has definitely provided for every form of exemption of property from taxation; that If an exenp- tlon Is so made it cannot be enlarged upon either by the Legislature or by the courts. Some courts have gone far enough to say that if there Is a reasonable doubt as to the meaning of the Constitution In matters of exemption, the doubt will be resolved against the exemption, for exemptions from taxation are not favored by the Constitution nor by the Courts In their construction. it f Dal1 Cochran (T 1 A 166 S.Wy ?2, wriyrzhused); J&ese~:cW~il~% 121 T;?xl 94, 45 S.W.2d 130, 79 A.L.R, 983: 11 .Art. 8, Sect. l-a (as amended in 1933) la lik&wise specific and self enacting to the extent therein stated. There, $3,cxUof assessed taxable value of the residencehomestead Is exempt ,:fron all taxation for all purposes’ . . d . The exemption provided for under Article VIII, Sections l-a and l-b is limited to a residence homestead and does hot apply to the business homestead. Attorney General Opinion No. 0-1800 (1940). -3488- Hon. Robert S. Calvert, Page 4 (C-725) A person claiming the benefits of .~ the homestead exenp- tions must prove that there is a familial relatlonshlp In order to obtain the benefits of the exemption. In Plough. Inc. v. Moore, 56 S.W.2d 681, (Tex.Cir.App. 1933, error r(Ef.), tne court states at page 681: In order to obtain the benefits of the lx&&Ion, the family relationship or status must exist among those claiming the benefits of the exemption. This nec- essarily presupposes a condition of depenm dence, either in law or fact, by one or more members of the group upon the other as the head of the family. Constitution, Art. 16, 850; Revised Statutes, art. 3833; Rzao v. Green, 50 Tex. 483, ‘19% Howard v. Marshall 48 Tex. 471, 477; Whltehead v. Nickelson, 48 Tex. 517, 529. II . . , . II The mere fact that the two plaintifiz’were associated together . . . did not entitle then to have such pro- perty exempted from forced sale either as a business or residential homestead In the absence of the existence of the farnil-y relationship. . . ,” In the often cited case of Roco v. Green, su ra the general rules to follow to determine whether a Tp-I anillal B- tionship exists, as contemplated by law are as follows: “1. It Is one of social status, not of mere contract. “2. Legal or moral obligation on the head to support the other members. "3. Corresponding state of dependence on the part of the other members of this support 0” In Bahm v. Starcke, 89 Tex. 203, 34 S.W. 103 (I896), at page 105, Chief Justice Gaines states: “The divorce destroys the particular family, the existence of which gave the right of exemptions, and hence destroys the right of homestead as to that family . . . . Section 50 -roof the Constitution-7 -3489- . . Hon. Robert S. Calvert, Page 5 (C-725) exempts ‘the homestead of a family’, and the general rule is ‘no fanil stead’. The worddiaz’o?- family’ ha;e a well-defined meaning, and are not open to a construction which would Include the homestead of a sinple oerson without a fanil~.” Based upon the language of the constitutional provisions, the statutory enactment, the case law and Attorney General’s Opinion No. 0-180C (1943), we hold that a familial relation- ship must exist In order for a property owner to be entitled to the residence homestead exemption from ad valorem taxes under Article VIII, Sections l-a and l-b of the Texas Constitution and Section 2 of Article 7C48a. Since question (1) has been answered In the affirmative, it becomes necessary, pursuant to your request, to answer question (2). The cases of Bahn v. Starcke, su ra; Tanton v. State National Bank, 125 Tex. 16 79 S.W h33 '(1935)Clack v. w1111 189 S.W.2d 533 (4ex Clv,App. 1945 no writ &erg v. Hubbard, 326 S,W.2d’605 (Tei.Civ.App. no writ hist.) stand for the proposition that a divorce destroys the h&nestead exemption and a single person without any dependents is not entitled to claim a homestead exemption. In accordance with the foregoing court decisions, It Is the opinion of this office that the familial relationship hav- ing been dissolved by divorce and there being no minor children or dependents, the homestead exemption cannot be allowed. SUMMARY ---B-e- A familial relationship Is necessary in order to obtain a homestead exemption to the extent provided In Article VIII, Sections l-a and l-b of the Texas Constitution and Section.,2 of Article 7048a, V.C.S. Under the facts presented, the divorce decree dissolved the homestead exemption and the property owner should not be allowed the exemption of the residential homestead from ad valoren taxation -3490- . . Hon. Robert S. Calvert, Page 6 (C-725) to the extent provided in Article VIII Sections l-a and l-b of the Texas Consti- tution and Section 2 of Article 7o48a. Very truly yours, WAGGONER CARR Attorney General BYE 'Terry Reed ~Goodman Assistant TRG:ced APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman John Banks Bill Allen Marietta McGregor Payne John Pettit APPROVEDFOR THE ATTORNEYGENERAL By: T. B. Wright -3491-