Untitled Texas Attorney General Opinion ( 1973 )

THE ATTORNEY GENERAL
OF TEXAS
Arrs-. ~EXAR 787ll
JOHN IA. aILL
*-- 0s
August 16, 1973
The Honorable Robert S. Calvert Opinion No. H- 88
Comptroller of Public Accounts
State Finance Building Re: Exemptions from taxation
Austin, Texas of property owned by cer-
tain disabled veterans and
their surviving spouses
Dear Mr. Calvert: and children, and others
In November, Section 2 of Article 8 of the Constitution of Texas was
amended by adding Subsection (b) as follows:
;‘The Legislature may, by general law, exempt
property owned by a disabled veteran or by the sur-
viving spouse and surviving minor children of a dis-
abled veteran. A disabled veteran is a veteran of the
armed services of the United States who is classified
as disabled by the Veterans’ Administration or by a
successor to that agency; or ~the military service in
,which he served. A veterah who is ceitified as having
a disability of less than 10 percent is not entitled to
an exemption. A veteran having a disability rating of
not less than 10 percent nor more than 30 percent may
be granted an exemption from taxation for property
valued at up to $1, 500. A veteran having a disability
rating of more than 30 percents but not more than 50
percent may be,granted’an‘exemp$ipn.fFom tax?ation.
for property&oed kk tip-io’$2, OOQ. A vetkramhavirig
a disdbilit$ rating of maze, than 50 percent. but’not more
th&x 70 p&icentmay be :granted.,+n exemption from tax-
ation for-propert? vaiied tit up’& $2, 500. A veteran
who has a disability Sating >of more than 70 percent, or
a, veter&‘Sh6 has a di?$biii$y rating of note less than 10
percent-and’had d?%ained the age of 65, or a disabled
veteran whose &‘s;ibili’%y consists of the loss ‘or loss of
use of-one or more limbs, total blindness in one or both
eyes, or paraplegia, may be granted an exemption from
p. 400
The Honorable Robert S. Calvert, page 2 (H-88)
taxation for property valued at up to $3,000. The
spouse and children of any member of the United
States Armed Forces who loses his life while on
active duty will
- be granted an exemption from tax-
ation for property valued at up to $2,500. A deceased
disabled veteran’s surviving spouse and children w
be granted an exemption which in the aggregate is
equal to the exemption to which the decedent was en-
titled’at the time he di’ed. ” (emphasis added)
Pursuant to the authorization contained in this Amendment, the
Legislature enacted House Bill 80 “relating to exemption from taxation
of property owned by disabled veterans and surviving spouses and chil-
dren of deceased veterans. ” Section 13 of House Bill 80 states that its
purpsse “is to provide for exemptions under the authority of Article
VU? 5 2(b) of the Texas Constitution. ”
The constitutional language creates two separate categories of
tax relief beneficiaries and treats them diffe&ntly: (1) those in the
severely disabled veteran class (or their surviving wives and children)
& be accorded certain exemptions from tax liability for their prop-
erty; and (2) the survivors (wife and children) of on-,duty military per-
sonnel who die twill be granted “an exemption from taxation for property
valued at up to $2,500. ”
You have submitted four specific questions to us concerning the
effect of House Bill 80. However, it is appropriate that we first deter-
mine whether any part of the constitutional provision is self-executing,
and examine the constitutionality of the Act. If Article 8 6 2(b) of the
Constitution is-in ‘no part self-executing and if House Bill 80 is uncon-
stitutional, then answers to your questions would no longer be needed.
Generally, a constitutional provision may be said to be self-executing
if it supplies a sufficient rule by means of which the right given may be en-
joyed and protected or the duty imposed map be enforced; and it is not self-
executing when it merely indicates principles, without layi,ng down rules by
._~
which these principles may be given ‘+e force of ii+. Mitchell County v.
City National Bank, 43 S. W. 880, 883 (Tex. 1898); City of Corpus Christi
v. City of Pleasanton, ,276 S. W. 2d 798 (Tex. 1955).
p. 401
The Honorable Robert S. Calvert, page 3 (H-88)
Obviously, Article 8 6 2(b) of the Constitution is not self-executing
with regard to exemptions for disabled veterans and their surviving spouses
and surviving children. The Legislature has been given discretion where
exemptions in their favor are concerned. The Constitution does not command
that any relief be given such persons. We think it within the authority of the
Legislature to attach reasonable limitations and conditions to the enjoyment
of such relief as it gives, if any, and that no exemption for such persons can
exist unless the Legislature has created it by valid statute.
After careful study we have also concluded that the constitutional pro-
vision concerning exemptions for survivors of those “on-duty” military per-
sonnel who die is not self-executing in the “immediately operative” sense
[Compare Strang v. Pray, 35 S. W. 1054 (Tex. 1896)], but rather contemplates
and requires legislation on the subject. It speaks prospectively in that context
(“will be granted . . . ‘I) (I’ . . . any member . . . who loses his life while on
active duty. . . . “) and, in our opinion, is mandatory but not self-executing.
The provision does more than simply state a principle, but it obviously
looks to the intervention of another authority. It does not indicate when the
right to an exemption will accrue. It shapes, but does not e~,the exemption;
it specifies that the exemption “will be given”. We believe the passage places
a mandatory duty upon the Legislature to enact a law specifying the effective
date of the exemption for survivors of on-duty military personnel, but the
exemption cannot be given effect until the Legislature acts. Duncan v. Gabler,
215 S. W. 2d 155 (Tex. 1948). See 16 C. J.S. Constitutional Law $48, at p. 142;
16 Am. Jur. 2d, Constitutional Law 0 94, at p. 280.
We are led to the foregoing conclusion by the manner in which the pro-
visionis integrated with the remainder of the section clearly contemplating
prerequisite legislative action; by the absence of words of present execution
used in other sections, e.g., “shall be exempt” (Art. 8 5 5 1, l-b; Art. 11 s 9) ;
by the absence of any language indicating self-execution such as. “This amend-
ment is self-operative” (Article 1, 5 3a); “This amendment shall become effective
upon its adoption” (Article 3 § 65) ; and by the fact that,the title of House Joint
Resolution No. 35, Acts 1971, 62nd Legislature, R. S., pi 4136, proposing the
amendment anticipates that the Legislature ,will be instrumental in providing
all the contemplated exempti’ons, including those to be enjoyed by such survivors.
Consequently, we are of the ,opinion that the effective date for any Article 8
5,2(b) exemption applicable to survivors of on-duty military personnel is depen-
dent upon valid legislation on the subject.
p. 402
The Honorable Robert S. Calvert, page 4 (H-88)
Is H. B. 80 valid legislation? The Legislature has specifically
provided that the provisions of the Act are non-severable and that the
invalidity of any one of its provisions will render the whole Act void.
Section 14 of H. B. 80 reads:
“Sec. 14. The provisions of this Act are
declared to be non-severable, and’if any pro-
vision of this Act is declared invalid by a final
judgment of a court of competent jurisdiction
as to any person, the Act is void. ”
In our judgment the Courts will, if presented the question, declare
some of its provisions invalid and the statute (because of its non-sev-
erable clause) : who Ily void.
The Constitution says, in part:
11. . . The spouse and children of any member of
the.United States Armed Forces who loses his life
while on active duty will be granted an exemption
from taxation for property valued at up to $2, 500. ”
Section 5 of House Bill 80, purportedly implementing this portion of
Art.. 8, s 2(b), provides:
“Sec. 5. The surviving spouse of a person who
dies while on active duty in the armed services of
the United States his entitled to an exemption of the
first $2,500 of the assessed value of the spouse’s
property during the period that the surviting spouse
remains unmarried. ”
Putting aside other questions about the statutory language, it is clear
that-the Legislature is without power to place limitations upon an unlimited
exemption commanded by the Constitution, in the absence of constitutional
authority to do so. Strang v. Pray, 35 S. W. 1054 (Tex. 1896). The Consti-
tution grants no such legislative discretion with regard to the ,exemptions
that must be allowed survivors of on-duty military personnel. ‘~ The Consti-
p. 403
The Honorable Robert S. Calvert, page 5 (H-88)
tution does not limit such an exemption to surviving spouses of such
personnel only so long as they do not remarry, and in our opinion any
attempted statutory limitation to that effect would be held inoperative.
What is more, 5 8(b) of H. B. 80 purports to grant an exemption
to the estate of a deceased veteran. We find no constitutional authority
for such a provision. The exemptions permitted by the Constitution are,
we think, personal to the natural individuals designated and there is no
provision in Article 8 6 2(b) of the Constitution authorizing an exemption
for an artificial person. Subsection 8(b) of H. B. 80 is therefore invalid,
in our opinion. See Deason v. Orange- County Water Control and. Imp.
Dist. No. 1, 244 S. W. 2d 981 (Tex. 1952); City of Amarillo v. Amarillo
Lodge No. 731, A.F. & A.M., 488 S. W. 2d 69 (Tex. 1973).
The Constitution does not specify the kind of property owned by dis-
abled veterans or their survivors for which no taxes need,be Raid, nor
which taxes they may escape. It only indicates~ the value of property for
which tax liability might be abrogated by legislative action. ,Notwithstanding
an ambiguity caused by the first sentence of Article 8 § 2(b); (‘I . . . may. . .
exempt property . . . ‘I). we think it contemplates a personal status ,entitling
one to be exempt from paying taxes for property valued below a certain
figure. This is made clear by the language used to ~establish ~exemption
maximums for veterans with variously classified disabilities, (,I’Y . . . an
exemption from taxation -for property valued at up to . . . ..‘I),
The constitutional amendment here ,was submitted to the people in the
form of a “for or against” proposition reading:
“The constitutional amendment allowing certain
tax exemptions to disabled veterans, their surviving
spouses and surviving minor children, and the surviv-
ing spouse and. s‘urvi,ting minor children of members
of the, armed forces who lose their life while on active
duty. ” Acts 1971, 62nd Legislature, Regular Session,
p. 4136. (emphasis added)
p. 404
The Honorable Robert S. Calvert, page 6 (H-88)
It did not mention the exemption of property; it specified the people to
whom tax advantages were to-be allowed.
If there is any ambiguity in the constitutional provision itself,
it must be presumed that the ballot title fairly represented totie people
the character and purpose of the proposed change. See R.R. Comm.
v. Sterling Gil & Refining Co. 218 S. W. 2d 415 (Tex. 1949); g.
Evans, 414 S. W. 2d 684 (Tex. Civ.App., Austin,l967.,writ. ref. ,n. r: e.);
Whiteside v. Brown, 214 S. W. 2d 844 (Tex. Civ.App.,Austin,l948,writd.ism,
W. o. j.); 16 Am. Jur. 2d, Constitutional Law, 5 36, at p. 208; 16 C. J. S.,
Constitutional Law, §9(3), at p. 56.
The purpose of the constitutional provision, we think, is similar
to the purpose of the “over 65 homestead exemption” also added in 1972
(Article 8, $1-b(b) ; see Att&ney General Opinion H-9 (1973)], i. e., to
allow the benefited class to acquire and hold property of a limited value
~wlthout assuming a tax burden therefor. We think the provision is in-
tended to afford relief to those severely disabled veterans and to those
surviving spouses and child~ren (of deceased disabled veterans or of de-
ceased persons on active military duty) in less fortunate circumstances
who might bbsent such relief) become public charges.
‘. It is our conclusion, then, that none of the exemptions contemplated
by Article 8s 2(b) of the Texas Constitution can become effective until there
is further legislation on the subject, and that no purpose would be served
by detailing the intended operation of H. B. 80. We will therefore defer
your specific questions. Moreover, because we feel the invalidity of $8(b)
of H.B. 80 will cause the entire Act to fall, we need not discuss other as-
pects of the statute which might also cause it to be unconstitutional.
SUMMARY
1. The constitutional exemption commanded by
Article 8 $ 2(b) of the Texas Constitution for
survivors of military ~personnel who die while
on active duty is mandatory but not self-exe-
cuting and its effective date depends on legis-
lation. Exemptions ,for disabled veterans and
their survivors are dependent upon legislative
discretion.
p. 405
The Honorable Robert S. Calvert, page 7 (H-88)
2. The exemptions from tax liability accorded or
authorized by Article 8, 5 2(b) of the Constitution
are personal to the natural beneficiaries named
and may not be accorded artificial persons as
H. B. 80, 63rd Leg., R.S., attempts to do.
3. The Legislature is not empowered to attach con-
ditions to the enjoyment of the constitutionally
shaped exemption for surviving spouses of on-duty
military personnel:
4. The “non-severable” clause contained in H. B.
80 will cause the statute enacted to be declared
void in its entirety.
5. None of the exemptions contemplated by Article
8 § 2(b) of the Constitution will become effective
until there is further legislation on the subject.
Very ~truly yours,
Attorney General of Texas
ROVED:
nn
E&-?x
DAVID M. KENDALL, Chairman
Opinion Committee
p. 406