Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
November 19, 1981
MARK WHITE
Attorney General
Supreme Court Building
Honorable Roy Blake, Chairman Opinion No. Mu-391
P. 0. Box 12548 Senate Committee on Administration
Austin. TX. 78711 State Capitol Building, G-27-J Re: Whether residences owned
512/475-2501 Austin, Texas 78711 by the Texas Department of
Telex 9101874-1367 Corrections and used by its
Telecopier 512/4754266
employees are taxable
1807 Main St.. Suite 1400 Dear Senator Blake:
Dallas. TX. 75201
21417428944
You have inquired about the tax status of certain property held
by the Texas Department of Corrections. You state that the department
4924 Alberta Ave.. Suite 160 owns a number of housing facilities which are serving as private
El Paso, TX. 7QQu5 residences of the department's employees. You ask whether such use is
9156933494 a "private use- such that this property is taxable under the Texas
Constitution and the Property Tax Code.
1220 Dallas Ave.. Suite 202
Houston. TX. 77002 Article VIII, section Z(a) of the Texas Constitution provides
713165oo666 that "the legislature may, by general laws, exempt from taxation
public property used for public purposes." Article XI, section 9 of
the constitution provides that "all other property devoted exclusively
808 Broadway, Suite 312
Lubbock. TX. 79401
to the' use and benefit of the public shall be exempt... from
90617476239 taxation." Section 11.11(a) of the Property Tax' Code, effective on
January 1, 1980, provides that "property owned by this state or a
political subdivision of this state is exempt from taxation if the
4309 N. Tenth. Suite 8
property is used for public purposes." Section 11.11(d) of the
McAllen. TX. 79501
512t952-4547
Property Tax Code, also effective January 1, 1982, provides in part:
(d) Property owned by the state that is not
200 MaIn Plea. suite 400 used for public purposes is taxable. Property
San Antonio, TX. 79205
owned by a state agency or institution is not used
512a25-4191
for public purposes if the property is... used to
provide private residential housing for
An Equal Opportunityl compensation to members of the public other than
Affirmative Action Employer students and employees of the state agency or
institution owning the proPert .... (Emphasis
added).
Acts 1981, 67th Leg., 1st C.S., ch. 13, 130, at 127. Section 11.11(d)
of the Property Tax Code does not expressly make the housing
facilities taxable. It in fact suggests, although it does not state.
that use of housing by state employees constitutes a public purpose.
p. 1330
Honorable Roy Blake - Page 2 (MN-391)
In order to answer your question, we must determine whether the use of
residences by employees of the department constitutes a public or
private purpose within the meaninn of the constitution. See David
--
Graham Hill-Foundation v. Highland-Park Independent School District,
371 S.W.2d 762 (Tex. Civ. App. - Dallas 1963, writ ref'd n.r.e.).
Briefs submitted to this office raise the question of whether the
employee's use of state-owned housing primarily benefits the prison
system or the employee as a private individual. In our opinion, the
relevant legislation defines the provision of housing to an employee
as compensation or an emolument. Article 616629, V.T.C.S., provides
that certain prison employees shall receive lodging in addition to
their salaries. The General Appropriations Act gives certain prison
employees an entitlement to emoluments, which include "housing
belonging to the Department of Corrections." Acts 1981. 67th Leg.,
ch. 875, at 3309. The Board of Corrections may also authorize
emoluments to other employees. Id. The housing used by Department of
Corrections employees has thus been characterized by the legislature
as an emolument. "Emolument" is the urofit arisine from office or
employment and it is more comprehensive than salary. Thomas v. _
Abernathy County Line Independent School-~District,278 S.W. 312 (Te z-
Civ. App. - Amarillo 1925), r*!v'd on other grounds, 290 S.W. 152 (Tex.
Comm'n App. 1927); Taxpayers7 League of Carbon County v. McPherson, 54
P.Zd 897 (Wyo. 1936); At torney General Opinion WW-719 (1959). Thus.
we believe the legislature intended the use of housing ‘to be part of
the employee's compensation.
In our opinion, the department's use of housing to compensate its
employees constitutes a public use. State funds appropriated to
compensate public employees are not taxable to the state merely
because.they will eventually be spent by the employees for private
purposes. Nor, in our opinion, is the housing in question taxable.
See generally City of Sherman v. Williams, 19 S.W. 606 (Tex. 1892).
SUMMARY
The use of residential property owned by the
Department of Corrections to provide housing as
compensation to its employees constitutes a public
use of the property. The property is not subject
to ad valorem taxation.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 1331
Honorable Roy Blake - Page 3 (Mw-391)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
W. Reed Lockhoof
Jim Moellinger
p. 1332