Untitled Texas Attorney General Opinion ( 1939 )

Honorable Geo. B. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion NO. 0-1638~
Re: Designationof property owned and
hela under conditions set forth
as homestead.
We acknowledge receipt of your letter of October 26,
1939, in which you request the opinion of this department on
the question of whether or not real estate held under the con-
ditions therein set forth can be claimed as a residence home-
stead for the purpose of exempting lt from the payment of
state taxes, as authorl%ed by Section 1 (a)~,Article VIII, of
the Constitution of Texas. We quote from.your letter the
fact situation therein set out:
"A state employee, at one time owned property In
Collln County that had been used as a home, prior to
the time the person was employed by the State: The
employment requires the person to live in the City of
Austin and the property was designated for a number
of years, as a residence homestead and the exemption
was allowed by the Tax Assessor-CoLLector, of Collln
county. This person, during the years In question,
voted In Collln County; as authorlsed by Article
2958, Revised Civil Statutes.
"About two years ago the property was sold and
the money received from the sale, was used to pur-
chase a home In the city of Waxahachie, Ellis County,
Texas. Since the purchase of the property at
Waxahachle, the person has been,paylng a~poll tax in
Ellis County.
'Due to the f,actthat the employment requties the
taxpayer to reside Inthe CIt,yof Au&In, she has not
lived on the Waxahachie property. Under the clrcum-
stances, could the Waxaha.chie'property,beclaimed as
a resld~encehomestead, In order to receive the benefit
of the homestead amendment?"
Your letter.of October 30, 1939, supplementing YOUI'
letter of October 26th, contains the following statement:
Hon. Geo. H. Sheppard, page 2 o-1638
"Complying with your request, you are advised that
,the State employee referred to in our letter of Oct.
27th, has informed us that it.Is her purpose to use
the property In Waxahachie, Texas, as her residence
homestead, when she quits working for the State or at
such time the employment might permit her to reside
in that city."
In rendering an opinion on this subject, it is neces-
sary for us to assume that the state employee to whom you re-
fer In your letter Is a person entitled to claim, under the
Constitution and statutes of the State of Texas, the homestead
exemption, ana further that such person is acting In good faith.
The determination of the Issues of existence of Intention-to
claim, and the actual existence of a homestead, are fact ques-
tions and ordinarily fall within the function of a jury. See
22 Tex. Jurls. on Homesteads, para raph 32; Steves v. Smith,
6 3. W. 891; Whit.ham& Co.
107 S.W. 141; Fole' v. Holtkamp, i?
vs. Kemp, 66 3. W. 92d,462.
InvestIgatIon.of the numerous decisions In Texas"rela-
tlve to".the'establlshmentof the homestead reveals that while
Intention alone Is Insufficient to confer the'homestead right,
at the same time all other elements combined cannot confer It
unless the Intention to establish a'home Is present. See 22
Tex. Jurls. on Homesteads , paragraph 32. This Intention to
appropriate the property and to dedicate It as a homestead must
be evidenced by unmistakable acts disclosing the Intention to
carry out such design, ora reason must be given sufficient to
disclose why the,intentlon was not or could not be demonstrated
by such acts,. See 22 Tex. Juris. on Homesteads, paragraph 35;
Foleg'v. Holtkamp, 66 S.W. 891. Proof of actual occupancy is
not always essential. See 22 Tex. Jurls. on Homesteads,para-
graph 36, and ,authorItlestherein,clted~.
In the case of Cameron v. Gebhard, 85 Tex. 61.0,22 S.W.
1033, the Supreme Court of Texas made the following statement:
"From these decisions It Is apparent that Intention
Is almost the only thing that may not be~dispensed with
In some state of case, and it fo>lows that this inten-
tion In good faith to occupy Is the prime factor In se-
curing the benefits of the exemption. Preparation -
that Is, such acts as manifest this Intention - is but
the corroborating witness to the declaration of lnten-
tion, .the safeguard against fraud, and an assurance of
the bona fldes'of the declared *Intention of the party:
If a homestead cannot be acquired until it Is occupied,
then no one can acquire a homestead exempted from forced
sale unless he buys an Improved place; and then he must
.``
:.ti~:~
Geo. Ii.Sheppard, page 3 O-1638
h;~vfP race with the sheriff for possession."
This general rule as announced by the Supreme Court of
Texas has been unlformly.followed b
Sae Xlkerson v. Jones, 40 3. W. 10&i~%&~"~"F%``~ '$?'
3. W. 626; Whitham & Co. v. Kemp, 66 3. W. (2d) 462; At&son
v. Jackson Eros., 259 3. W. ?80: 22 Texi Juris. on Fomeatsads,
paragraphs 31-36, inclusive.
The following quotation Is taken from the case of
Brown v. Logan, 7 3. W. (2d) 189:
"It has been held since the earliest decisions In
this State that 'intention In good faith to occupy Is
the prime factor' in Impressing property with the home-
stead character. (Citing Cameron v. Gebhard, supra)
It Is also well settled that actual occupancy of prop-
erty is not essential, but that present Intention to
occupy In the future, coupled with acts of preparation
looking to its actual occupancy, is sufficient to lm-
press the property with the homestead character."
In the case of Wade v. First National Bank of QuInlan,
263 3. W. 654, the court made the following statement:
"The written designation of the homestead, when
filed and recorded as required by the statute, becomes
at least prima facie evidence of what constitutes the
family homestead; and , unless this is Impeached because
of some evasion of the law protecting the homestead, It
becomes conclusive of that fact.“
Because it presents a fact Issue which we cannot under-
take to pass upon, It is impossible to give a complete answer
to your question. If the person to whom you refer had at the
time of purchase a bona fide Intention to occupy the premises
as a homestead and this Intention is still present, if she oc-
cupies or claims no other property as homestead, and if she is
a person entitled to claim a homestead, she Is entitled to and
can claim the homestead exemption under the circumstances set
forth In your letter.
Hon. Geo. H. Sheppard, page 4 d-1638
Yours very truly
ATTOR~GIWtALOFTRXAS
By s,(Ross Carltori
Ross Carlfon
Assistant
RC:N:wc
APPROVED NOV ii,Ii39 :
s/v. P. more.
FIRST ASSISTANT
ATTORNEY WNERAL
Approved Oplnlon Commlt``ee
By i$BWB ~iqiiruian