Untitled Texas Attorney General Opinion ( 1950 )


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  •                      EA``ORNEY                  GENERAL
    OF-TEXAS
    PRICE DANIEL
    ATTORNEY
    GENERA,.
    December    20. 1950   ’
    Non. Robert S. Calvert
    Comptroller of Fublic Accounts
    Audin, Texas                      Opinion No. V-l 135
    Ra:   Eligibility of a hounc or
    house trailer located ,on
    leased land for residence
    homestead tax exemption.
    Dear Mr. Calvert:
    Your request states that a recent audit of the 1950
    Tax Roll from Victoria County reflector that the tax ,a8sessor-
    “‘,’
    collector of that county has in a number of in&awes allowe’d the
    taxpayer to claim a homestead exemption on a house located on
    leased land. In other instances the exemption war, allowed on
    house trailers located on leased land. Based on theB,efacb you
    have requested our opinion on the following queltionr:
    1. Does the homertead exemption with ref-
    erence to taxation (Article VIII, Section l-a. Con&i-
    tution of Texas; Article TQ4%, Section 2, Vernon’s
    Civil Statutes) extend to a dwelling located on leased
    land and occupied by the family as a home?
    2. Is a house trailer of ouch a nature and eub-
    ject to such use as to acquire the stattu of a dwelling
    and come witbin the homestead exemption?
    Section 51 of Article XVI of the Texas Constitution
    rete out the constitutional requirements of a homestead as follows:
    “The homestead, not in a town or city, shall
    consist of not more than two hundred acres of land,
    which may be in one or more parcelr, with the im-
    provements thereon; the homestead in a city, town
    or village. shallconsistof lot or lots, not to exceed
    in value five thousand dollars, at the time of their
    designation as the homestead, without reference to
    tbe value of any improvements thereon; provided,
    that the same shall be used for the purposes of a
    Hon. Robert 6. Calve&     page 2 (V-1135)
    home, or as a place to exercise the calling or
    business of the head of a family; provided alao,
    that any temporary renting of the homestead
    shall not change the character of the same, when
    no other homestead has been acquired..
    Article 3833, Vernon.8 Civil Statutes, repose   there
    larue   proviaioru in defining the term ‘homertead.e
    13ia well settled that the homertead exem$ioa doei
    not. red upon ownership in fee of the land upon which $be etruc-
    ture ir rituated. Wheatlay v. Griffin, 
    60 Tex. 209
    (1883); Cul-
    lerr v. James, 66 ‘I’ex. 494 1 S W 314 (1886)f Fir& NatiBBank
    V.    0mua4r, k41 S.W. 199 iTex.‘Civ. App. 1922). Any poreeuory
    Tiatereet rn%nd less than the fee simple title ie eufficient to en-
    title a claimant to the benefito of the provi#iona of the homertead
    law and ‘it followa logically that the homestead right and privila~
    attacher to a tenement or building, coupled with the required oc-
    cupancy, erected upon leaned or rented premieee.” Firrt Nation-
    al Banh v. Dismukes. su ra. Further, a poase~aory%Itetest,       even
    %hOUghOnly permissive+ I) wafficient to support the cbini of home-
    stead exemption where it ia peaceably held and occupied a8 a home
    by tie family. Birdwell v, &rleeon,~lt     S.W. 446 (Tex. Civ. Aep.
    1,902:irror refq.
    Nor would it appear that the leaae on a pwticular lot
    or tract of land would have to be of long tima duration. Aa raid
    in First National Bank v. Dismukes, au ra, “where a head of a
    faniily is in the exclusive posireasion,-5aa ere, of a lot. . . OcCO-
    pied by him as a . . . homestead, it does uot concern the judgment ~’
    creditor whether such claimant possessee a leare for a kmg term
    ‘of pars or of less duration.”
    You are therefore  advised in aamwer to yoor fir8t ~
    uertion that the homestead exemption with reference to taxation
    ?Article VIII, Section 1-a; Con&it&on   of Texan, and Article 78488,
    *3&8.~) does apply to a dwelling located on leaeed laud aud OCCU-
    ,$h&bf,,a family under such condition9 a6 to mahe it a &nemtiad.’
    Your second question canuot be answered cahlpr-
    ,.   .icr;r&. The queationof whether a particular _ dw@ug    ir entitled
    4z,~,~,,tuexemption ,from taxation as the hotMntead of Oe owner OCcUpp-
    ,i‘ngthe same am such is one of fact requiring indepeudent deter-
    ~miuatiti in each instance. Arto v. Maydole, 
    54 Tenn. 244
    (188l)t
    #%hper Co. v. Werner, 11 S-d       U&3 (Tax. Civ. App. 1937). Like-’
    ~a,     whether the homestead &trader has become fixed le t0
    Hon. Robert S. hlvert,    page 3 (v-1135)
    specific property i8 a fact question. Alamo Lumber Co, v.
    Walkarc 
    103 S.W.2d 792
    (Tex. Civ. A&TV?).
    In common acceptance the term ‘homestead* meanm
    the residence of the family, the place where tb honn is. 40
    C.J.S. 430, Homesteads, Sec. 1. “A homestead necessarily    in-
    cludea the idea of a house for a reeideace, or maneion house.
    The dwellings may be a splendid mansion, a cabin, or tent.”
    Garret v. Getaendaner, 115Okla. It, 
    242 P. 525
    (1925).
    Coming now to a determination of whether a house
    trailer may meet the requiremeate necessary to make it a home-
    rtead, we find only two Texas calem which have pamed on the
    question. In the firat came, Clark v. Vitz, 
    199 S.W.2d 736
    (Tex.
    Civ. App. 1945, error ref.), &e nemption wao allowed, but the
    factr clearly ertablished that the house traileF had in effect
    been made a part of the claimant’s home and ‘1188wed by the
    family as a part of tbe home. In the lecoud came, Gann v. Mout-
    210 S.W.td 255 (Tex. Civ. App. 1948, error ref. n.r.o.),
    e court refused the homelrtead exemption, sayiug~
    l!F=
    “Aseuming for tbe purpose of argument that
    appellant did have such poamermory i&exert la the
    land upon which tbe trailer warn parked lo would oup-
    port the homestead claim, we muet decide wketker
    the trailer was ouch type of ltrucume as to aome with-
    in the rule which regard6 the houae a# part of the land,
    witbin tbe contemplation of the coustitutioru%l provision.
    u
    . .   .
    “It is settled that the exemption may be claimed in
    a house owned by the claimant, tboughtbe Iaad bslong to
    another. Where the ownership of ,a hotme is in one person,
    and the ownership of the land is in mother, tie house may
    properly be referred to for some purposes aa a chattel,
    and in such a case it might properly, be aaid tbat the home-
    rtead exemption can attach to a chattel. Etutit does not
    follow that the exemption can attach to any kind of chattel,
    merely because the chattel rests on a tract of land by per-
    mission of the owner of tbe land. . . .
    . . . . To hold that the homestead exemption ap-
    plieo to tbe trailer in tbe case before us would be to
    .
    ~Rcn. Robert S. Calvert,   pa~ge4 (V-1135)
    hold, as a practical matter, that it applies to al-
    most every trailer which is occupied by the owners,
    if they constitute a family which does not own another
    home. It is not unreasonable to assume:that they are
    usually parked, when they are not traveling along the
    highways, on some plot of ground with the permission         .~
    of the owner of the ground. It might be consistent with
    the policy of our homestead laws to enact another law
    exempting automobile trailers wbich,are occupied.as
    homes, but. . . there are no exemptions except those
    provided by law, and the courts cannot protect that
    which is not a homestead.”
    Thus it is to be observed that the question of home-
    stead status with respect to house trailers must be determined
    from all the facts and circumstances, in each individual case,.
    It may or ‘may not acquire a homestead status, depending upon
    the particular facts and circumstances.    In our opinion the courts
    ” of Texas would find a house trailer to be a homestead if located
    on land owned by or in which the claimant held a possessory in-
    terest. and was so used in connection with the land and occupied
    by a,far&)y in such a manner as to give it the factual character-
    istics of a home. On the other hand, were the trailer not so
    used, as in the Gann case, it would not be held to be a homestead.
    #
    SUMMARY
    The exemption’from taxation 'as a homestead
    (Article VIII, Section l-a, Constitution of Texas,, and
    Article 7084a, V.C.S.) extends to a dwelling’ located
    on leased land and occupied by the family as a home.
    Firat National Bank v. Dismukes, 
    241 S.W. 199
    (Tex.
    cb. App;9             ouse   al er may become exempt
    as a homestead, depending upon the facts and circum-
    stances in each’individual case. Clark v. Vitz, ~190
    S.W.td 736 (Tex. Civ.~App. 1945, error ref.); Gami
    .
    :;r~r~wt``10         8.W.2d 255 (Tix.Cb.     App.,1948,   ”                     _I,,
    j
    Vert,bd)    mm       ,,,.                          /
    :        ;~
    I:       .,
    ‘PRIcEpANiEL
    Attorney Oeneral      ‘,,‘.’
    APPROmDt
    Charles D. Mathawi
    -w. v. oeppert                    Fir& Aarirtant
    Tsxation Divhfoa
    Everett Hutchi~Ison
    Executiw Assistant
    Price Daniel                                                                    ,
    Attorney   General
    :
    CD&&b
    

Document Info

Docket Number: V-1135

Judges: Price Daniel

Filed Date: 7/2/1950

Precedential Status: Precedential

Modified Date: 2/18/2017