Untitled Texas Attorney General Opinion ( 1980 )

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