Untitled Texas Attorney General Opinion ( 1941 )

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Honorable George B. Sheppard
Comptroller.'ofPublic Accounts
Austin, Texas
Dear Sir: Opinion NO. 0-4164
Re: Questions relating to homestead
exemption for state taxation
purposes.
This department has received and considered your re-
quest for an opinion from which w'e quote:
“Pleake give.@ so& opinion on the following
qukstionk pertaining to the exemptibn of hom6steads
under the provisions of Arficl.68, Section la, of
the Constitution:
"1. A Oman owni r&al property which theat one
time used for the~purposes of a home, he also towns
city property which he Is livingin and he has oc-
cupied the city pro erty for a number of years (2, 5,
10 or even 20 yearsP . Can this man claim homestead
exemptiOn from State taxes on either property or
should the exemption be Tranted only on the property
that he is factually using as a home? .
"2* A man owns property in A. County which he at
one time occupied and used as a home. He has moved to
B. County bought other property which he is 1lvIng in
and he has occupied the propert in B. County for a
number of'years (2, ~5, 10 or 207 . Can this man claim
homestead exemption from State taxes in either County
or should the exempti'onbe granted only in the County
in which he lives?
"3. A man owns three or'more separate properties
only one of which he has ever used as a home. Can he
claim homestead exemptIon from State taxes on the prop-
erty that has the greatest value or should the exemp-,
tion.be granted only on the property that he is actual-
ly using as a home?
"4 . On the tax rolls of the several counties
we find numerous cases of property assessed in the
Honorable George H. Sheppard, page 2 o-4164
name of an estate and a homestead exemption has been
granted, the address shown on.,-the
rolls Is a non-
resident address. Where the parents are both deceased
should the homestead exemption be granted when no
constituent member of the family remains to occupy and
use the property as 8 home?"
Article 8, Section la, of the Texas Constitution pro-
vides:
"Three Thousand Dollars ($3,OOOiOO) of the as-
sessed taxable value of all residence homesteads as
now defined by law Shall be exempt from all taxation
for all State purposes; provided that this exemption
shall not be applicable to that poPtion~of the State
ad valorem taxes levied for State purposes remitted
within those counties or other political subdivisions
now receiving any remission of State taxes, until the
expiration of such period of remission, unless before
the explratlon of such period the board or governing
body of any one or more of such counties or political
subdivisions shall have certified to the State Comp-
troller that the need for such remission of taxes has
ceased to exist in such county or p-oliticalSubdlvi-
sion; then this Section shall become applicable to.
each county or political subdivision as and when It
shall become wlthfn the provisions.,hereof."
.
Article 16, Section 51, defines'a homestead %iscontem-
plated within the provisions of Article 8, Section la, supra.
In our opinion No. 0-1800 we held:
"As will be noted, Section la, Article 8, limits
the exemption to residence-homesteads as now defined
bg law. Neither the Constitution nor the st&tutory
laws differentiate between or define residence or busi-
ness homesteads, but our courts have universally held
that a-'familymay claim either. But Article 8, Set-
tion la, limits the exemption to residence homesteads."
The general rules with reference to property becoming
impressed with the homestead characteristic will be briefly
stated.
In 22 Tex. Jur. 51, it is sa,ld:
"The constitutional and statutory PrOVisiOns re-
qulre that property 'be used~for the',purposeof a
home' in order that it may be exempt, and, to support
iicnorableGeorge H. Sheppard, page 3 o-4164
the claim of homestead exemption, the claimant must
show that the property has been improved or used ln
some manner Indicative of an intention to occupy the
premises as a home."
The same authority at page 53 says:
"Proof of intention on the part of the claimant
to use the property as a home is essential to a con-
clusion that the premises were exempt. 'Intention
alone cannot give a homestead right; but it is at
the same time equally true that all the things com-
bined cannot give It without the intention to dedl-
cate it to the uses of a home.' * * * It has been
held since the earliest decisions in this state that
'intention in good faith to occupy is the prLme fac-
tor ' in impressing property with a homestead character.
* * * A determination of the issue as to the existence
of intention is ordlnarlly a function of the jury."
In Lasseter vs. Blackwell, (Corn.of App.) 227 S.N. 944,
the court said:
"It is conceded that intention, although express-
ed in writing, is not suffisient to give force to the
exemption. Something must be done which causes that
intention to attach to the property and give to It
the character of a home. It must be impressed vlth
the incidents of's home."
In 22 Tex, Jur. 71, supported by many authorittes, it
is said:
"The homestead continues the homestead as long
as It is owned. occupied and used as such. It ceases
to be the homestead only when it is abandoned as such.
* * + To constitute an 'abandonment' of the homestead,
it must affirmatively appear that there was not only
a removal from the home, but a removal coupled with
an Intention never to return."
In 22 Tex. Jur. 81, it is said:
"The issue as to Intention not to use the prem-
ises or 'abandonment,' as it is generaliy described,
Is one of fact to be determlned by a jury. * * *"
The rules which we have just quoted are applicable to
the proposltlons submi.ttedby you. The answer to your first
and second questions would depend upon the facts In each par-
Honorable George R. Sheppard, page 4 o -4164
titular case to which facts the above rules could be applied,
and therefore, we cannot pass upon your first and second
questions as a matter of law. We are, therefore, unable to
answer your first and second questions specifically.
In connection with the facts presented in your third
question you have advised us orally that each of three or
more separate properties referred to therein is In excess of
200 acres of land. In view of the facts thus presented in
your third question it .is definitely settled that a family iS
not entitled to two homesteads at the same time. Silvers vs.
Welch, 127 Tex. 58, 91 S. W. (2d) 686: Only that property
which Ls actually used as a homestead and has actually be-
come impressed with the homestead characteristic could be
properly claimed as exempt for taxation purposes under Article
8;Section la, of the Texas. Constitution. Cocke vs. Conquest,
120 Tex. 43, 35 S. W. (2d) 673;~22 Tex. JLV..53,, supra. Your
third question is answered accordingly.
.
In connection with the facts presented in your fourth
question you have advised us orally that'you are interested
only‘in the constituent phase of the question and are not in-
terested in the non-resident's phase of the_ same. ,.
Article 16, Section 50, of the Texas Constitution, pro-
vides that:
"The homestead of a family shall be,,and is here-
by protected from forced sale * * * except * * * for
the taxes due there.on.* * *"
Neither the Constitution nor the Legislature has at-
tempted to define a 'family,"as used In the provisions of the
Constitution quoted above. In this connection we desire to
quote from the case of Roco vs. Greene, 50 Tex. 483, where it
is said:
"We deduce from the authorltles the following
general rules to determine when the relation of a
family, as contemplated by the laws, exists:
"(1) It Is one of a social status, not of mere
contract.
"(2) Legal or moral obligation on the head to
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"(3) Corresponding state of dependence on the
part of the other members for thls~support." See
also 22 Tex. Jur. pp.~41 to 47, lncluslve.
Ronorable George H. Sheppard, page 5 o-4164
One of the latest expressions of our Supreme Court con-
cernlng the nature of``thehomestead exemption is foundsin the
yse of Woods
._ vs. Alvarado State Bank, 19 S.W. (2d) 35, where
It Is said:
."In view of our Constitutional and statutory
provisions concerning homestead rights, we have con-
cluded that in this state the homestead is to be re-
garded as an estate created not only for the protec-
tion of the family as a whole, but for the units of
the family, including those who survive, and embrac-
ing the head of the family at the time of its dls-
solution, whether the dissolution has been brought
about by death or by dispersal, as distinguished from
a mere privilege accorded the head of thenfamily
for the benefit of the family as a whole.
Some specific examples of the constituents of a'pamlly"
entitled to claim homestead exemption will be given. A widow,
with ~no living relatives of hereown; living with and ~carlng
for minor grandchildren of her deceased husband, Is the head
of her family composed of herself and such minor children ard
is entitled.to claim the homestead exemption as suCh.' Wolfe
VS. Buckley; 52 Tex. 641. A single man, living with anY‘sup-
porting his widowed mother, Is the head of a family andmay
cla.lmthe exemptions that were created for the benefit or'the
family. Barry vs. Hale ~(Civ. App.) 21 S.W. 783: The father
of illegitimate children owes to them the moral obligation of
caring for and supporting them-and that such fatherland such
children, when living together, constitute a famlly, and the
father as the head of such family is entitled to.claim the.ex-
emption pertaining thereto. Lane vs. Phillips, 69 Tex. 240;
6~s. W. 610; Rutherford vs. Mothershed (NV. App.) 92 S.W.
1021. A brother and sister living together under conditions
wherein it .isthe moral duty of the brother to support he-r,
she being in a ,correspondingstate of dependence upon him for
such support, creates a family, of which he is the head and
as such is entitled to claim the exemption. Drought & Co. vs.
Stallworth, (Civ. App.) 100 S.W. 188. A grandmother and her
grandchild living together, she caring for and supporting the
child - the child's parents being unable to do so- creates a
family relation, with her as the head. Bank vs. Sokolski;
(Civ. App.) 131 S.W. 818; Smith vs. Wright, (Civ. App.) 36 S.W.
324. A dependent father living with and being supported by
h~isunmarried daughters~constitutes a family; and such daughters
may claim the homestead exemption to property, to which they
hold the legal title, though there may be trust therein for
the benefit of the father. Hutehenrider vs. Smith, (Corn.App.)
242 S.W. 204. One living with a child, that he hasp in good
faith adopted, is the head of the family composed of himself
and such child, and as such may claim the exemptions that per-
Honorable George Ii. Sheppard, page 6 O-4164
tain to a family. Chesnut VS. Specht, (Clv. App.) 272 S.W.
830. A divorced husband, living with and caring for his
minor step-children, the children of his divorced wife, 'is
the head of a family and may claim the exemptions that were
created for the benefit of the family. Smlth,Bros. vs. Lucas,
(Corn.App) 26 S.W. 1055. In our opinion No. O-4176 this de-
partment held that when an unmarrlea daughter who owned 'her
house In which she and her dependent mother lived was entitled
to the homestead exemption, withln.the provlslons of Article
8, Section la, of the Constltutlon, upon the death of her
mother. We quote from said opinion:
"It seems to be the settled law of this state
that when a homestead is once established tbe rights
belonging thereto do not cease to exist by-reason of
the death or dispersal of the constituent members of
the family, but such rights continue.for the protection
of the surviving units of the family, Including the
head of the family. In the instant case the unmarried
adult daughter and her mother, while living together,
constitute a family, with the daughter as its head,.
Therefore, we see no good reason to hold that the death *'
of the mother would have the effect of dissolvingthe
homestead rights of the daughter that had'been acquired
while the mother was l.iving. The fact that 'thedaughter
is the sole survivor of the family is unimportant and
insufficient to warrant a contrary conclusion."
We are enclosing a copy of Opinion No. O-4176 which contains
a detailed discussion of the authorities in support of the
above conclusion.
In view of the ever-changing nature of the homestead.
law, each case as it comes before the court is considered sep-
arately and sui generis. Therefore',the examples of a con-
stituent of a "family: that we have set out herein, are not
to be taken nor considered by you as exclusive, because, from-
the history of the court decisions deallrigwith homestead law,
the court is continually enlarging the scope of the word "fam-
ily" for homestead exemption purposes.
It is fundamental, of course, that there must be some
legal constituent of the family in existence before the claim
of homestead exemption can be lawfully asserted and obtained.
Likewise, the homestead exemption must necessarily terminate
when the person's right to assert the same, under the Consti-
tution and laws of this State, ceases to exist. Thompson v.
Kay, (Sup. Ct.) 77 S. W. (2d).201, and cases therein cited;
22 Tex. Jur. Sec. 226, pp. 326, 327.
Honorable George H. Sheppard, page 7 o-4164
Since you are only interested In the constituency of
a family, in your fourth question, It is answered in accordance
with our expressions hereinabove stated. In other words, if
there Is no surviving constituent of the "family" remaining,
then there would be no one who could lawfully claim and be en-
titled to the homestead exemption.
We trust that in this manner we have answered your
Inquiry.
Yours very truly
ATTORNRYGRNERAL OF TEXAS
By s/Rarold McCracken
Harold McCracken
Assistant
HM:ej:wc
Encl.
APPROVED FEE 18, 1942
s/Grover Sellers
FIRST ASSISTAWT
ATTORElEYGENERAL
Approved Oplnlon Committee By s/BwB Chairman