Untitled Texas Attorney General Opinion

The Attorney General of Texas October 29, 1980 < WHITE wy General Honorable Ben 2. Grant, Chairman Opinion No. !&‘-X9 Judiciary Committee House of Representatives Re: Failure to timely apply for Austin, Texas 78769 residence homestead exemptions and related matters Honorable Neal Pfeiffer Criminal District Attorney Bastrop County P. 0. Box 753 Bastrop, Texas 78602 Gentlemen: Each of you has questioned the effect of a taxpayer’s failure to timely apply for a residence homestead exemption from local ad valorem taxes. Repnssentative Grant’s inquiry is limited to the exemptions addressed in subsection (c) of article VIII, section l-b of the Texas Constitution. He asks if tax exemptions thereunder are lost if taxpayers fail to make timely applications therefor. Mr. Pfieffer’s question embraces exemptions afforded pursuant to subsection (b) of that section, as well as subsection (c) exemptions. He asks if a school district may allow homestead exemptions - and be reimbursed under section 20.81(a) of the Education Code for the loss of revenue occasioned thereby - where taxpayers’ applications for exemptions were made out of time because the district failed to provide taxpayers timely notice of the need to file them, or to provide them proper forms for the purpose. Recent Texas cases have emphasized that one who seeks a favored position with reference to the imposition of taxes labors under the burden of showing clearly that he comes within the terms of the constitutional provision he invokes. See Smithy v. Pa ett 596 S.W. 2d 530 (Tex. Civ. 4~. -Beaumont 1979, 1writ ,Mnd rs where the framers of a constitutional provision regarding a tax exemption have not specified when a taxpayer must show himself qualified for the exemption provided, the courts will determine the intent from the entire enactment. Moore v. White, 569 S.W. 2d 533 (Tex. Civ. App. - Corpus Christi 1978, writ r&d n.r.e.). See Gragg v. Cayuga Ind. School District, 539 S.W. 2d 861 (Tex.), appeal dism3 429 U.S. 973 (19762 p. 821 Honorable Ben Z. Grant - Page Two (Mv-259) In Moore, supra, the court determined .that an application for special tax treatmenaer the Qgricultural use” provision of, the constitution, article VIII, section I-d, Texas Constitution, filed in December of a tax year was untimely, and thus not entitled to recognition, because the taxpayer “waited until after the [taxing authority’s] plans of taxation were put into effect before filing her claim for exemption.” 569 S.W. 2d at 536. In Gragg, suppa, the supreme court held that a taxpayer was not entitled to an “agricultural use” exemption from market value taxation because “[hl e sat by and permitted the assessments to be made, the tax rolls to be prepared, and [al suit for taxes to be filed against him before challenging the refusal of the tax assessor to give his land the agricultural use designation.” 539 S.W. 2d at 870. It would thus appear that taxpayers can estop themselves by tardiness from asserting rights to tax advantages allowed them by the constitution. See also Jay Devers, 563 S.W. 2d 880 (Tex. Civ. App. - Eastland 1978, no writ); Attorney General m H-988 (1977). In our opinion, the same rationale would apply to applications for residence homestead exemptions under s&me&ions (b) and (cl, section l-b, article VIII of the constitution. The subsection (cl provision? afforditg a $5,000 homestead exemption, like the sgricultural use provision of section l-d, is self-executing. And like the l-d provision, the l-b provisions operate to exempt part of the market value of property from taxation, not the entire property. None of the exemptions are automatically allowed. Each person who wishes to a&me the benefits thereof must show himself entitled to them. But this is not to say that the legislature cr other taxing authorities may arbitrarilv establish cutoff dates for the recognition of claims to ‘constitutional exemptiohs and by that device stiject constitu&naIly exempt property to taxation. See Prop. Tax Code SlL43(d), .43(e). In.Lower Colorado River Authority v. Chemical Gk & Rust Co., 190 S.W.. 2d 48 (Tex. 1945X the supreme dourt held, “What the constitution exempts from taxation the legislature has no power. to require to be taxed.” On a number of occasions this off& has applied that hold% to legislatively or administratively established deadlines for claiming homestead exemptions, saying in each case that a failure to meet the deadline did not in itself deprive the taxpayer of the exemption. See Attorney General Opinions MW-146 (1980); H-548 (1975); H-309 0974); G-6842 (19451: Where the constitution &es not exempt a particular kind of property but merely permits its exemption without prescription, the legislature may ordinarily limit the exemption as it pleases. Did&on v. Woodmen of the World Life Ins. Sot., 280 S.W. 2d 315 (Tex. Civ. App. -Sat?? a power is expressly given by the constitution and the mode of its exercise is rescribed, such ’ mode is exclusive of all others. Parks v. West, ill S.W. 726 (Tex. 1908. 5 Although the $10,000 “elderly” and “disabled” exemptions permitted by article VIII, section l-b, subssction (cl of the constitution are not self-executing, the provision does expressly provide the way eligibility for them may be conditioned by the legislature. It may “base the amount. . . and condition eligibility. . . on economic need.” The express permission to condition eligibility cn economic need is an implied prohibition against other eligibility conditions. -See Ferguson v. Wilcox, 28 S.W. 2d 526, 532 (Tex. 1930):’In p. 822 Honorable Ben 2. Grant - Page Three (MM-259) our opinion, neither the legislature nor other taxing authorities may constitutionally make eligibility for residence homestead exemptions depend won compliance with an arbitrary filing deadline. See - Attorney General Opinion MW-146 (1980). Whether a late-filing taxpayer is estopped from claiming a homestead exemption in a particular case will depend on the facts of the matter, but a legislatively designated cutoff date will not necessarily control the question. A person estopped to claim an exemption because he delayed asserting his rights beyond the time administratively feasible for redressing the wrong has not been subjected to an unconstitutional exercise of legislative power; he has brought the difficulty lpon himself. See generally 22 Tex. Jur. 2d Estoppel Sl, at 660. Applying the foregoing conclusions to Mr. Pfeiffer’s question, we believe the school district may recognize otherwise-allowable homestead claims made out of time. In fact, it would be difficult for the district to show taxpayers estopped from claiming them where the ‘district itself was responsible for the late filiw. See Grandview Ind. School District v. Store& 590 S.W. 2d 215 (Tex. Civ. App. - Waco l97G writ). But, we do not believe the district will be necessariIy entitled to reimbursement from the state under article 20.81(a) of the Education Code. That provision was passed to comply with a constitutional dictate found in article VIII, section l-b, s§ion (CA It makes payable to a school district the “amount of taxable value actually lost” by applications of the, statute implementing article VIII, section l-b of the constitution, but to receive the payment, a school district is statutorily required to apply for it on or before a legislatively established cutoff date, November Ist of the tax year. Educ. Code S20.84. Although estoppel is not ordinarily available as a defense agahwt claims of a political subdivision of the state, we think the rationale of the G and Moore cases previously discussed might be applied to estop the school district *T tom clas the reimbursement where its own delav made reimbursement not administratively feasible -See City of Hutchins v. Prasifka, 450 S.W. 2d 829 (Tex. 1970). SUMMARY A legislatively designated cutoff date for homestead exemption claims under article VIII, section l-b ‘of the Texas Constitution will not alone operate to deprive a taxpayer of an exemption, but the taxpayer may become estopped to claim the exemption if his &lay makes its recognition administratively impracticable. MARK WHITE Attorney General of Texas p. 823 Honorable Ben Z. Grant - Page Four (Mv-259) JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD E. GRAY III Executive Assistant Attorney General Prepared by Bruce Youngblood Assistant Attorney General APPROVED: OPINION COMMPITEE Susan Garrison, Actiw Chairman Jon Bible Myra McDaniel Bruce Youngblood D. 824