Untitled Texas Attorney General Opinion ( 1947 )

PRICE DANIEL
ATTORNEY GENF.RAL
April 0, 1947
Hon. George H. Sheppard Opinion No. V-123
Comptroller of Public Accounts
Austin, Texas Re: Possible exemptions from
ad valorem taxes of prop-
erties belonging to The ‘.
Fair Foundation.
Dear Sir:
You have requested an opinion from this department as
to whether or not the properties belonging to The Fair Foundatiotf
are exempt from ad valorem taxes.
The copy of the trust indenture which you enclosed with
your request discloses the following facts.
In November, 1937, Robert Walter Fair and wife, Mattie
Fair, settlers, desiring to create a charitable trust and charitable
foundation, to be known as The Fair Foundation, “for general char+
table purposes, including (1) relief of poverty and distress; (2) ad-
vancement of religion; and (3) advancement of education and sci-
ence” conveyed, assigned, set over and delivered to Robert Walter
Fair and Mattie Fair, Trustees of “The Fair Foundation,” their
successors and assigns, all their right, title and interest in and .to
the property.described in Schedule A which was made a part of the
trust indenture, attached thereto, headed “Exhibit A,” and which
reads as follows:
“Prope.rty transferred by us to The Fair Foun-
dation upon signature:
“1. Cash - Two Thousand Dollars
($2,000.00).
“2. One Hundred (100) milligrams
of Radium, now under the super-
vision of Dr. Minnie L. Maffett
and being used at present for
poor and charity patients in
Parkland Hospital at Dallas,
Texas. Said Radium shall al-
ways be used for the benefit
Hon. George H. Sheppard, Page 2 Opinion No. V-123
of charity patients and absolutely
without profit to anyc.ne.
(Signed) R. W. Fair.”
The trustees are to have absolute power of disposal of
this property (both principal and income), and of such other prop-
erty as might later be added by the settlers or by third parties for
any of the charitable purposes previously enumerated subject to
certain limitations, viz.: no contributions are to be made to indi-
vidual persons; “no contributions or investment shall be made for
such purposes fpreviously enumerated/ or either of them exce’pt
through an accredited organization or-institution existing at the
time of such contribution, gift or conveyance, or to one of such in-
stitutions as may be created by the Trustees for such charitable
purposes or either of them, it being their fihe settlers7 intention
to leave absolutely in the discretion of the-Trustees tlie manner,
form and terms of any gift or contributions so long as same shall
be made through well recognrzed and established institutions or
agencies.” (Emphasis added)
Gifts made by third parties are “subject to the terms
and conditions of this trust and also subject to all rules and regula-
tions established by the Trustees hereunder.”
The various other details of the trust, which is expressly
declared to be irrevocable, have no bearing on the question of wheth-
er or not the properties belonging to The Fair Foundation are ex-
empt from ad valorem taxes.
So far as appears from “Exhibit A” the only property be-
longing to The Fair Foundation is personal property; however, in
order to settle all aspects of this question it will be assumed that
The Fair Foundation has acquired real property interests since the
creation r>f the trust.
Article VIII, Section 2 of the Constitution of the State of
Texas provides that the Legislature ma,y exempt certain classes of
property from taxation. This constitutional provision is the foun-
tainhead of all exemptions, for it expressly declares that “all laws
exempting properties from taxation other than the property above
mentioned shall be null and void;” but even though these exemptions
“cannot be enlarged * * ‘2 either by the Legislature or by the Courts,”
(City of Wichita Falls v. Cooper, Civ. App., 170 S. W. (2d) 777, error
refused), It IS the legislatrve enactment, Article 7150, R.C.S., which
,nctually creates exemptions from taxation. The constitutional provi-
sinn is not self enacting but merely provides the limits of legislative
‘_
Hon. George H. Sheppard, Page 3 Opinion No. V-123
exemption. St. Edwards’ College v. Morris, 17 S.W. 512, 82 T. 1;
Little Theatre of Dallas, Inc. v. City of Dallas, 124 S. W. (2d) 863.
Therefore whether or not propertles belonging to The Fair Foun-
dation are exempt from taxation must be determined by examining
the relevant exemptions stated in parts of Section 1 and in Section
7 of Art, 7150 as construed by court decisions. The other sections
of Art. 7150 are inapplicable.
The relevant parts of Section 1 are as follows:
“* * * and all endowment funds of institutions of
learning and religion not used with a view to profit,
and when the same are invested in bonds or mort-
gages, and all such buildings used exclusively and
owned by persons or associations of persons for school
purposes; provided that when the land or ofber prop-
erty has been, or shall hereafter be, bought in by such
institutions under foreclosure sales made to satisfy or
protect bonds or mortgages in which said endowment
funds are invested, that such exemption of such land
and property shall continue for two years after the
purchase of the same at such sale by such institutions
and no longer. This provision shall not extend to the
leasehold estates of real property held under authority
of any college or university of learning.”
Section 7 reads as follows:
“Public charities. - All buildings belonging to in-
stitutions of purely public charity, together with the
lands belonging to and occupied by such institutions
not leased or otherwise used with a view to profit, un-
less such rents and profits and all moneys and credits
are appropriated by such institutions solely to sustain
such institutions and for the benefit of the sick and
disabled members and their families and the burial of
the same, or for the maintenance of persons when un-
able to provide for themselves, whether such persons
are members of such institutions or not. An institu-
tion of purely public charity under this article is one
which dispenses its aid to its members and others in
sickness or distress, or at death, without regard to
poverty or riches of the recipient, also when the funds,
property and assets of such institutions are placed and
bound by its laws to relieve, aid and administer in any
way to the relief of its members when in want, sick-
ness and distress, and provide homes for its helpless
and dependent members and to educate and maintain
the orphans of its deceased members or other persons.”
. ,
Hon. George H. Sheppard, Page 4 Opinion No. V-123
It is noteworthy that although the trust is termed a
“charitable” trust and the various purposes for which it was cre-
ated are referred to as “general charitable purposes,” two of
these purposes, advancement of religion and advancement of edu-
cation and/or science, might well be covered by the quoted por-
tion of Section 1 particularly in view of the fact that the trustees
are expressly given authority to establish institutions for any of
the purposes for which the trust was created. If such a&ion has
been taken by the trustees, it is true that the personal property
which constitutes the endowment fund of institutions of learning
and religion and which is not used for “profit” in the sense of I, ‘.
private gain is exempt from taxation; and such exemption is dc-
corded to all per sonalty so held -- not just to “bonds and mort-
gages.” Harris, et al v. City of Fort Worth, et al, 180 S.W. (2d)
131: but where such nronertv merelv mav be used for endowment
purposes clearly the statutory exe&p* is not gained. Obvious-
ly the fact that the trustees might make a gift (see underlined
portion quoted as to trustees powers to make contributions, etc.)
from the trust estate to established institutions of learnjng’and
religion could not result in gaining an exemption until such gifts
were actually made. It is noteworthy in connection with possible
exemptions under this Section that the Harris Case, supra, con-
strued the clause in Section 1 of Article 7150 which limits to two
years exemption of land bought in under fore,closure sale to nega-
tive the exemption of real estate generally even ‘though a part of
an endowment fund. Of course it is well settled that the buildings
and lands which are owned by persons or associations of persons
for school purposes and which are used exclusively for school
purposes, i.e. in the actual operation of the school, such as yard6
and recreational grounds, are exempt from taxation. Red. v. John-
son, 53 Tex. 284; Cassiano v. Ursuline Academy, 64 Tex. t173; St.
‘Ehward’s College v. Morris, supra; Little Theatre of Dallas,~ E
v. City of Dallas, supra.
To summarize: It would appear that no personal prop-
erty belonging to The Fair Foundation is entitled to exemption
from ad valorem taxes under the provisions of Section 1, Article
7150, Revised Civil Statutes, which exempts from taxation the en-
dowment funds of institutions of learning and religion not used
with a view to profit, for the reason that it does not appear that
The Fair Foundation has yet established any such institution of
learning and religion. If in fact such an institution has been es-
tablished by The Fair Foundation, then, under the holding of the
Harris case, supra, all the personal property which constitutes
the endowment of the institution and which is not used for “profit”
in the sense of private gain is exempt from taxation; however, no
real property comprising ~a part of the endowment fund is exempt.
from taxation save such as is bought in to protect bonds, mort- .
gages, etc. and that’only for’~a period of two years. The buildings
. .
Hon. George H. Sheppard, Page 5 Opinion MO. V-123
and lands which are owned by an institution of learning and which
are used exclusively for school purposes are &xempt frbm taxa-
tion.
Turning next to a consideration of the exemption which
is granted by Section 7 of Article 7150, it is noteworthy that it may
be claimed by “institutions of purely public charity.” Justice Green-
wood in the case of City of Houston v. Scottish Rite Benev. Ass’n.,
111 Tex. 191, 230 S.W. 978, said that ‘an institution was one of pure-
ly public charity’ where: First, it made no gain or profit; second, ~’
it accomplished end,s wholly benevolent; and third, it benefited per-.
sons, indefinite in numbers and in personalities, by preventfrig
them, through absolute gratuity, from becoming burdens to society
and to the state. ” The purposes of The Fair Foundation are in ac-
cord with these requirements, and it will be assumed that there
has been in fact no departure from these purposes.
Having decided that The Fair Foundation is an “institu-
tion of purely public charity,’ the remaining question as to the scope
of the exemption accorded it by virtue of Section 7 is excellently
dis&ussed in the early case of Morris v. bone Star Chapter, No; 6,
Roval Arch Masons. 68 Tex. 69/. 5 S.W. m. in whichJudae Gaines
construed the then existing constitutional provisions in’the-fOllOWing
way:
“The word ‘institution’ properly means an asso-
ciation organized or established for some specific
purpose, (see the word in Webster’s dictionary)though
it is sometimes used in statutes and in common par-
lance in the sense of the building or establishment in
which the business of such a society is carried on***.
Hence that part of the section under considerationwhich
contains this word may have been intended to read, ei-
ther ‘all buildings used exclusively andowned by per- . :
sons or associetions of persons for school purposes,
* * * and all institutions /meaning establishments with
houses, grounds, etc.lofpurely public charity,’ or
‘all buildings used ezclusively and owned by persons
or associations of persons for school purposes, * * *
and all buildings used exclusively and owned by insti-
tutions of purely public charity.‘.” * * We are of the
opinion that the latter reading gives the more reason-
able construction of the language as used in the consti-
tution of our state. This * * * is in accord with the
spirit of the other provisions contained in the section.
The legislature is empowered to exempt only ‘actual
places’ of religious worship, and actual burial grounds
not held for profit, and, for school purposes, merely
the buildings (including the grounds on which they are
Hon. George H. Sheppard, Page 6 Opinion No. V-123
situate) and the necessary furniture. In neither
case is property which is not actually used,as a
place of worship or burial, or for a school house,
exempt, although it may be used for the support
of religion or education, or to secure the decent
burial of the dead. If it had been intended to ex-
empt all the property of charitable institutions, it
would seem that more general terms would have
been used. Besides, the omission of the word ‘all’
before the word ‘institutions’ would indicate that
the former construction was not intended, it was
used before the word ‘buildings’ and the word
‘schools’ in the same sentence, when the mean-
ing in both instances would have been clear with-
out it. It would seem, therefore, to have been
omitted before the word ‘institutions’ because its
insertion there would have changed the meaning
which was intended to be conveyed.”
Judge Gaines next decided that the property in contro-
versy was embraced within that designation, or kithin the de-
scription contain&d in subdivision 6, Article 4673, Revised
Statutes, which section he construed and applied to the facts
of that case. He then concluded: “the building in question is
not ‘used exclusively’ by appellee in the sense given to these
words in the Constitution; the exclusive use meant being the
actual and direct use for the purposes of the association, and
not a use by others for revenue, although that revenue may be
exclusively appropriated for the objects of the charity. The
legislature in exercising the power conferred by the constitu-
tion seems to follow the construction we have adopted and~ex-
empt ‘all buildings belonging to institutions of purely public
charity, together with the lands belonging to and occupied by
such institutions, not leased or otherwise used with a view to
profit, and all moneys and credits appropriated solely to sus-
taining such institutions.’ This means that a building leased
for profit is not exempt although such profit may be appropri-
ated solely for the purposes of the charity, and not to the pri-
vate gain of its promoters or stockholders. The other provi-
sions in the same article show this; * * *. This position is
also sustained by the analogy of the section, which exempts
the property of counties, cities, and towns. The exemption is
limited to their property owned and held only for public pur-
poses, such as public buildings and sites therefor. Const.
Art. XI, e 8 * * *. Many of the states have statutes of simi-
lar import to our constitutional and statutory provisions upon
this subject; and so far as our investigation has gone, it is
generally held that the renting of even a part of the building
for profit, though the proceeds be devoted exclusively to the
Hon. George H. Sheppard, Page 7 Opinion No. V-123
charity, subjects such part, at least, to taxation.” A long list of
authorities is then given.
Although the constitution has been amended and the stat-
ute changed since the time of the Morris case, the substance of
the opinion, as set out in the above excerpt, has been expressly
approved by the Supreme Court in City of Houston v. Scottish Rite
Benevolent Association, supra, and by the Commission of Appeals
in State v. Settegast, 254 S.W. 925. It has been followed by a long
line of subsequent decisions (not all ofwhich expressly cite the
Morris case as authority for the later holding) which clearly es’
tablished the rule that the property exemption granted to “public
charities” covers only real property and the improvements there-
on with a further requisite that the charity must make an actual,
direct and exclusive use of the property for charitable purposes.
iew, v. Markham - McRee Memorial Hospital, 137
S W (2d) In2 Santa Rosa Infirmary v. C ity of San
Co,. App., 2$ S. W. 926; B enevolent and Protec-
tive Order of Elks v. City of Houston, Tex. Civ. App., 44 S W
; ar am Hospital v. City of Longview, 191 S. W. i2dj
695.
To summarize: The only real property on which The
Fair Foundation could claim,exemption by virtue of Section 7 of
Article 7150 would be ,such buildings and lands as belong to and
are exclusively used by The Fair Foundation for charitable pur-
poses; the fact that income from real property is devoted to the
charitable purposes of the trust is not enough to gain the exemp-
i tion; nor does any exemption exist for the personal property
owned by public charities.
SUMMARY
If the trustees of The. Fair Foundation, a charitable
trust, have established an institution of learning and re-
ligion and have established an endowment fund for said
institution, then by virtue of Section 1 of Article 7150, R.
C.S., the personal property which constitutes the fund or
any part thereof and which is not used with a view to
“profit” in the sense of private gain is exempt from ad
valorem taxes; however, no real property comprising
part of such endowment fund is exempt fr.om taxation
save such as is bought in to protect bonds, mortgages,
etc.‘and that only for a period of two years. The,build-
ings and lands which are owned by an institution of learn-
ing and which are used exclusively for school purposes
are exempt from taxation. If no such institutions have
.been established, the only real property on which The
Fair Foundation could claim exemption by virtue of Sec-
tion 7 of Article 7150 would be such buildings and lands
. .I.
Hon. George H. Sheppard, Page 8 Opinion No. V-123
as belong to and are exclusively used by The Fair
Foundation for charitable purposes. Section 7 of
Article 7150 does not grant any exemption for the
personal property owned by public charities.
Very truly yours,
ATTORNEY GENERAL OF TEXAS
ByBl$$fGG-p
Assistant
.:MP/lh
APPROVED APR 8.1947
ATTORNEYGENERALOFTEXAS