Untitled Texas Attorney General Opinion ( 2009 )

GREG A B B O T T
December 28,2009
The Honorable Mark Homer Opinion No. GA-0752
Chair, Committee on Culture, Recreation
and Tourism Re: Whether multiple contiguous lots may be
Texas House of Representatives claimed as part of a homestead exemption under
Post Office Box 29 10 section 11.130) of the Tax Code (RQ-0808-GA)
Austin, Texas 78768-29 10
Dear Representative Homer:
You ask whether multiple contiguous lots may be claimed as part of a homestead exemption
under section 11.130) of the Tax Code.'
As background, you tell us that an individual purchased a homestead in 1979 and that he
subsequently purchased several lots contiguous to that homestead. Request Letter at 1. For the 2007
tax year, the individual applied for a homestead exemption to include all of the contiguous lots. The
chief appraiser, and then the appraisal review board, ruled that none of the lots other than the
individual's original lot could be claimed as part of the person's homestead because the lots were
located in a platted subdivision, and were not used as part of the individual's homestead. Id.
Section 1 of article VIII of the Texas Constitution requires that "[tlaxation shall be equal and
uniform" and that "[all1 real property . . . in this State, unless exempt as required or permitted by this
Constitution . . . shall be taxed in proportion to its value." TEX.CONST.art. VIII, 5 l(a)-(b).
Section 1-b of article VIII provides for several kinds ofresidence homestead exemption, and declares
that "[tlhe legislature by general law may define residence homestead for purposes of this section."
Id. § 1-b. To that end, a "residence homestead" is defined as:
a structure (including a mobile home) or a separately secured
and occupied portion of a structure (together with the land, not to
exceed 20 acres, and improvements used in the residential occupancy
of the structure, if the structure and the land and improvements have
identical ownership) that:
(A) is owned by one or more individuals, either directly or
through a beneficial interest in a qualifying trust;
'Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
The Honorable Mark Homer - Page 2 (GA-0752)
(B) is designed or adapted for human residence;
(C) is used as a residence; and
(D) is occupied as his principal residence by an owner or, for
property owned through a beneficial interest in a qualifying trust, by
a trustor of the trust who qualifies for the exemption.
TEX.TAXCODEANN.§ 11.130)(1) (Vernon 2008).
We begin with the proposition that "our primary objective is to ascertain and give effect to
the Legislature's intent." City ofMarshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006).
We attempt to discern such intent from the actual language used by the Legislature. See Osterberg
v. Peca, 12 S.W.3d 31, 38 (Tex. 2000). Statutory words and phrases must "be read in context
and construed according to the rules of grammar and common usage." See TEX.GOV'TCODEANN.
§ 3 11.Ol l(a) (Vernon 2005). In addition, "[sltatutory exemptions from taxation are subject to strict
construction because they undermine equality and uniformity by placing a greater burden on some
taxpaying . . . individuals rather than placing the burden on all taxpayers equally." N. Alamo Water
Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991).
You state in your request letter that the chief appraiser and the appraisal review board denied
the homestead exemption to the lots contiguous to the original homestead in part because those lots
had been part of a platted subdivision. We have found no statutory or case law that would recognize
such a distinction between platted and non-platted lots. Indeed, the plain language of the term
"residence homestead" as defined in section 11.13(j) indicates that the original lot and structure,
which the appraisal review board has treated as the individual's residence homestead, and the
additional land and improvements about which you inquire could constitute a "residence homestead"
to the extent that the land and the improvements thereto are used by the owner in the residential
occupancy of the original homestead and have identical ownership. When a statute's language is
clear and unambiguous, its plain meaning must prevail. McIntyre v. Ramirez, 109 S.W.3d 741,745
(Tex. 2003). Moreover, a court has stated that "where separate pieces of property are occupied and
used by the owner for one and the same purpose, and their separate identities and values become
merged and consolidated by such use, no separate valuation and assessment is required." Green v.
Baldwin, 336 S.W.2d 291, 294 (Tex. Civ. App.-Texarkana 1960, writ dism'd) (citing Moody-
Seagraves Co. v. City of Galveston, 43 S.W.2d 967, 970 (Tex. Civ. App.-Galveston 1931, writ
ref d)).2 We note, however, that the question of "[wlhether property is a homestead presents a fact
2Althoughthe definition of the word "homestead" for purposes of forced sale in article XVI, section 5 1 of the
Texas Constitution, and its statutory analogue, section 41.002 of the Property Code, is different &om the defmition of
the term "residence homestead" in subsection 11.130) of the Tax Code, cases dealing with the defmition of "homestead"
may be insmctive for purposes of the question you pose. See In re Norris, 2 15 S.W.3d 85 1,858 (Tex. 2007) ("The Tax
Code . . . more generally employs a looser defmition [of "residence homestead"] that essentially focuses on whether the
structure is owned and occupied as a principal residence"). In a 1991 case, for example, a federal bankruptcy court in
Austin declared that "[allthough never explicitly stated, there appears to be a presumption that land contiguous to the
(continued...)
The Honorable Mark Homer - Page 3 (GA-0752)
question." Brown v. Bank of Galveston, 963 S.W.2d 5 11,515 (Tex. 1998). Thus, the determination
of whether all the lots of which you inquire do, in fact, form part of the residence homestead requires
a factual determination that is not conducive to the opinion process.
You also ask whether a chief appraiser is authorized "to limit the exemption to less than
twenty acres by requiring the land [to] be used in some manner." Request Letter at 2. In a 1983
opinion, this office said that a chief appraiser is not given the discretion to establish a minimum or
maximum amount of acreage as the amount of land receiving the designation "so long as that land
is used in the residential occupancy of the structure receiving residence homestead designation."
Tex. Att'y Gen. Op. No. JM-40 (1983). Accordingly, so long as the chief appraiser determines that
contiguous lots of less than twenty acres are being used as a residence homestead, the taxpayer
would be entitled to an exemption.
'(...continued)
homestead under Texas law is used for the purposes of a home." In re Mitchell, 132 B.R. 553,565 (W.D. Tex. 1991).
The court W h e r noted that the Texas cases "continually describe a homestead as being 'property used for home
purposes.' Comfort, convenience, solitude, and shelter are clearly purposes for which a home is stated to be used within
the meaning of a homestead under Texas law." Id. at 566. Decisions from Texas courts have demonstrated the truth of
the Mitchell court's statement. For example, a 1993 case under article XVI, section 5 1 held that "[allthough actual
residence on part of the rural property is required, one need not reside on all the parcels so long as the other tracts are
used for support of the family." NCNB Tex. Nat'I Bank v. Carpenter, 849 S.W.2d 875, 879 (Tex. App.-Fort Worth
1993, no writ). See also Seidemann v. New Braunfels State Bank, 75 S.W.2d 167, 168 (Tex. Civ. App.-Austin 1934,
writ ref d) (two lots adjoining home are part of homestead).
The Honorable Mark Homer - Page 4 (GA-0752)
S U M M A R Y
Section 11.13(j) of the Tax Code defines "residence
homestead" for purposes of the payment of property taxes to include
"a structure . . . together with the land, not to exceed 20 acres,"
regardless of whether any part of the property is located in a platted
subdivision. If the chief appraiser finds that contiguous lots totaling
less than twenty acres are being used as a residence homestead, the
taxpayer is entitled to an exemption on the entire property. Whether
any particular group of contiguous lots would qualify as a "residence
homestead" is a question of fact.
Very truly yours, A
~tton$yJdneral of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee