Untitled Texas Attorney General Opinion ( 1988 )

December 9, 1988
Honorable Lloyd Criss Opinion No. JM-991
Chairman
Committee on Labor and Re: Taxation of a home-
Employment Relations stead occupied by a sur-
Texas House of Representatives viving spouse (RQ-1416)
P. 0. Box 2910
Austin, Texas 78769
Dear Representative CriSS:
You ask whether an .amendment to article VIII, section
l-b, of the Texas Constitution is applicable only to home-
steads occupied by surviving spouses whose husbands or wives
died after the amendment took effect. The amendment limits
the taxation of certain homesteads for school purposes.
Article VIII, section l-b, is one of several constitu-
tional provisions concerning homesteads. Article XVI, sec-
tion 51, defines a homestead for purposes of exemption from
forced sale, and section 50 of that article provides that
t.he sale of a homestead cannot be forced except to satisfy
purchase-money liens, improvement liens, or tax liens.
Section 52 of article XVI specifies that upon the death of a
spouse, the homestead property is not to be distributed
among the heirs of the deceased so long as it is used as a
homestead by the surviving spouse or, as permitted under
court order, is used and occupied by the deceased's minor
children.
Article VIII of the Texas Constitution deals with
taxation and revenue. As amended in 1978, section 1 thereof
requires that taxation be equal and uniform, and that all
real property and tangible personal property in the state be
taxed, except that it requires the exemption of certain
household furnishings and permits the exemption of "personal
property homestead."
Until 1932, the homestead was not excepted from the
"equal and uniform I1taxation requirement. Jufkin v. Citv of
Galveston, 58 Tex. 545 (1883). Section l-a was added to
article VIII in that year and amended in 1933. As amended,
the section provided that $3,000 of the assessed taxable
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Honorable Lloyd Criss - Page 2 (JM-991)
value of residential homesteads should be exempt from all
taxation "for state purposes." The amendment did not
authorize an exemption from local taxes. Citv of Wichita
Falls v. Coower, 170 S.W.2d 777 (Tex. Civ. App. - Fort Worth
1943, writ ref'd).
Fifteen years later, in 1948, section l-a was amended
to abolish the levy of state ad valorem taxes for general
revenue purposes and to permit counties to levy ad valorem
taxes on property for county purposes "except the first
Three Thousand Dollars ($3,000) value of residential home-
steads." Section l-b was added to article VIII at the same
time to exempt $3,000 of the assessed taxable value of all
residence homesteads llfrom all taxation for all State
purposes" (not merely for general revenue purposes).
Section l-a of article VIII has been amended only one
.other time. In 1973 it was amended to apply to "residential
homesteads of married or unmarried adults, male or female,
including those living alone.1' Section l-b, on the other
hand, has been amended five times since 1948. YOU inquire
only about the most recent amendment, but an appreciation of
those that preceded it is useful to its understanding.
In 1972, section l-b was divided into subsections, and
for the first time it was provided, in subsection (b), that
the governing body of any political subdivision could exempt
bv its own action "not less than" $3,000 of the assessed
value of residence homesteads of persons 65 years of age or
older from all ad valorem taxes "thereafter levied by the
political subdivision." See S.J.R. No. 7, 62d Leg., 4126
(1972): Attorney General Opinion H-9 (1973). A year later,
section l-b(b) was made applicable to residence homesteads
"of married or unmarried persons sixty-five (65) years of
age or older, including those living alone.1' See S.J.R.
No. 13, 63d Leg., 2469, at 2470 (1973).
An amendment adopted in 1978 changed section l-b(b) to
include the homesteads of certain disabled persons and to
base the amount of an exemption upon market value rather
than assessed value. It also added subsections (c) and Cd)
to the section. See H.J.R. No. 1, 65th Leg., 2d C.S., 54
(1978). Subsection (c) generally exempted $5,000 of the
market value of residence homesteads "for general elementary
and secondary school purposes" and authorized the legisla-
ture to exempt up to $10,000 of a homestead's market value
for disabled persons and persons aged 65 or older. Subsec-
tion (d) read:
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Honorable Lloyd Criss - Page 3 (JM-991)
(d) Except as otherwise provided by this
subsection, if a person receives the resi-
dence homestead exemption prescribed by Sub-
section (c) of this section for homesteads of
persons sixty-five (65) years of age or
older, the total amount of ad valorem taxes
Jmwosed on that homestead for aeneral elemen-
tar-v and secondarv wublic school wurnoses may
not be increased while ,it remains the resi-
dence homestead of that werson or that
person's swouse who receives the exemwtion.
However, those taxes may be increased to the
extent the value of the homestead is in-
creased by improvements other than repairs or
improvements made to comply with governmental
requirements. (Emphasis added.)
Another amendment adding subsection (e) to section l-b
was adopted in 1981. It required any general homestead
exemption granted by a political subdivision to be in the
amount of at least $5,000. See H.J.R. No. 81, 67th Leg.,
4222 (1981).
Finally, in 1987, subsection (d) of section l-b (set
out above) was amended by inserting a sentence reading:
If a person sixty-five (65) years of age or
older dies in a year in which the person
received the exemption, the total amount of
ad valorem taxes imposed on the homestead for
general. elementary and secondary public
school purposes may not be increased while it
remains the residence homestead of that
person's surviving spouse if the spouse is
fifty-five (55) years of age or older at the
time of the person's death, subject to any
exceptions provided by general law.
See H.J.R. No. 48, 70th Leg., 4124 (1987). You have asked
us to construe this 1987 amendment.
Amendments are made pursuant to article XVII, section
1, of the Texas Constitution. In declaring the objective
and meaning of amendments, courts should give the words
their natural, obvious, .and ordinary meaning as understood
by the citizenry. Amendments should be construed with
reference to all other provisions of the constitution and --
with a view to giving every provision effect -- they should
be construed in a way that will carry out the broad general
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Honorable Lloyd Criss - Page 4 (JM-991)
principles of government. State v. Clements 319 S.W.2d 450
(Tex. Civ. App. - Texarkana 1958, writ ref'di.
In arriving at the intent of the electorate and of the
drafters, the primary focus must be upon the language used.
See Booth v. Striwwleman, 61 Tex. 378 (1884) (rules for con-
stitutional construction analogous to rules for statutory
construction); Duval Corooration v. Sadler, 407 S.W.2d 493
(Tex. 1966) (intent ascertained from language used and its
legal context): 12 Tex. Jur.3d, Constitutional Law §§ 13-15.
It is presumed that the words used were carefully selected.
Leander Indewendent School District v. Cedar Park Water
Suwwlv Corworation, 479 S.W.Zd 908 (Tex. 1972).
The initial portion of the 1987 amendment reads:
If a person sixty-five (65) years of age or
_ older dies . . .
This language connotes a future event, as does the entire
constitutional passage. The final words of the provision
decisively indicate that only deaths in the future are to
trigger benefits that accrue
if the spouse &. fifty-five (55) years of age
or older gt the time of the werson's death
subject to any exceptions provided by genera;
law. (Emphasis added.)
Tex. Const. art. XVII, 5 l-b.
If the provision had been intended to embrace past events,
the underscored word 'Iis" would have been written l'wast'
.
The use of the verb ais,n together with the prepositional
phrase "at the time of the person's death," imparts clearly
a natural, obvious, and ordinary meaning that looks to
future events.
Very great difficulties would accompany a different
interpretation. If the word I1is.@'
in the foregoing sentence
fragment were read 'lwas,@lthe amendment might mean that a
widow who was fifty-five at the time her husband died in
1975 would receive the benefit of a freeze, but a widow, now
sixty-three,. who was only fifty years old when her husband
died in the same year, would not. The latter widow was not
"fifty-five (55) years of age or older bt the time of h
person's death". If the advantage of a l@freeze" wZrZ
available to either of them, would the taxes be "frozen" at
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Honorable Lloyd Criss - Page 5 (JM-991)
their level when the husband died in 1975? Would the excess
taxes collected in the interim have to be returned?
There are no appellate cases construing the constitu-
tionally mandated lNfreeze,** and only one attorney general
opinion has dealt with it. Attorney General Opinion MW-265
(1980) equated the effect of a section l-b(b) tax freeze
with a tax exemption but differentiated the two. The opi-
nion suggested that, absent constitutional authorization,
both the freeze and the exemption would be violative of the
"equal and uniform@* command of article VIII, section 1, of
the Texas Constitution.
Those who argue for an "expansive" interpretation of
the freeze language (to cover deaths occurring before the
constitutional amendment took effect) urge that the expan-
sive construction should be chosen because it "is most fair
to the greatest number of people." However, that test leads
to an opposite result. Taxes are fairer for the most people
when there are no tax exemptions at all. Expanding exemp-
tions does not expand fairness. As we noted in Attorney
General Opinion JM-612 (1986):
The law does not favor tax exemptions,
since they are the antithesis of equality and
uniformity. Hilltow Villaae. Inc. v. Kerr-
ville Indewendent School District, 426 S.W.Zd
943 (Tex. 1968). Constitutional and statu-
tory provisions creating them are to be
construed narrowly with all doubts resolved
against granting the exemption. Citv of
Lonoview v. Markham-McRee Municiwal Hoswital,
152 S.W.Zd 1112 (Tex. 1941).
A residence may be liberally classified as the home-
stead of both spouses for other constitutional purposes, but
the "over 65 exemption" has not been read broadly. One
spouse cannot claim the tax exemption if the constitution
gives it only to the other spouse. Riwlev v. Stewhens, 686
S.W.2d 757 (Tex. App. - Austin 1985, writ ref'd n.r.e.).
In Riwlev v. Stewhens, suwra, a couple claimed a
section l-b homestead exemption. The wife was over the age
of 65 but the residence was owned as separate property by
the husband (who was not yet 65). Because the constitution
authorized the legislature to define "residence homestead"
for purposes of the section -- and it had done so by defin-
ing a residence.homestead as property occupied "by an owner
who qualifies for the exemption" -- the court said the
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Honorable Lloyd Criss - Page 6 (JM-991)
couple could not claim the exemption from taxes. The wife
was not the owner of the property and the husband was not
yet eligible for the exemption.
Shortly after the "over 65 homestead exemption" was
added to the constitution, this office found it necessary to
read into the constitutional language the same kind of
Riwlev v. Stewhens restrictions later included by the
legislature in its "residence homestead" definition. The
interpretation was thought necessary in order to save the
exemption from invalidity under the Equal Protection Clause
of the Fourteenth Amendment to the Constitution of the Unit-
ed States. See Attorney General Opinion H-9 (1973). That
restrictive interpretation was thought necessary because,
without it, the constitutional language would have been too
broad.
In the case of the 1987 amendment, broadening the
"freeze" provision to include past deaths would not make it
less vulnerable to Equal Protection attacks. It would make
entirely selective (and arbitrarily retroactive in its
operation) the limitation that the surviving spouse must
have been 55 Years or more at the time of the death to enjoy
the benefit.l-
1. There are parallels between the "65 or older"
homestead exemption of article VIII, section l-b, and the
@'disabled veterans" homestead exemption allowed by section
2(b) of that article. In 1976, this office concluded in
Attorney General Opinion H-894 that, as implemented by the
legislature, constitutional permission to grant a veteran's
surviving spouse and children an exemption equal to the
exemption "to which the decedent was entitled at the tine he
died I1Tex. Const. art. VIII, § 2(b) (emphasis added), was
-I
not limited to the families of those who died after the tG!f-
fective date of the statutory implementation, even though no
veteran could have been "entitled" to an exemption before
that time. Attorney General Opinion H-894 (1976); see At-
torney General Opinion H-88 (1973).
In our opinion, Attorney General Opinion H-894 was
wrongly decided. The only justification for the opinion's
conclusion was:
To restrict the statutory exemption . . . only to
(Footnote Continued)
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Honorable Lloyd Criss - Page 7 (JM-991)
Attorney General Opinion H-9 said:
The Fourteenth Amendment does not prohibit
or prevent classification, provided classifi-
cation is reasonable for the purpose of the
legislation: is based on proper and justifi-
able distinctions, considering the purpose of
the law; is not clearly arbitrary; and is not
a subterfuge to shield one class and unduly
burden another or to oppress unlawfully in
its administration.
Attorney General Opinion H-9 (1973), at 4.
This continues to be the law. gee Western 8 Southern Life
Insurance Co. v. State Board of Eaualization, 451 U.S. 648
(1981); Carrinaton v. Rash, 380 U.S. 89 (1965); 16A Am.
Jur.2d Constitutional Law 5 746. We are of the opinion that
the 1987 constitutional amendment speaks prospectively and
that its limitation of taxation. on exempted homesteads
during the occupancy of surviving spouses is applicable only
if the non-surviving spouse died after the amendment took
effect.
(Footnote Continued)
survivors of those disabled veterans who have died
since January 1, 1976, would give [it] negligible
immediate effect. . . .
Attorney General Opinion H-894 (1976), at 2.
No appellate court has directly considered the H-894 conclu-
sion, but five years later in State v. American Leaion Post
No. 58, the court said:
[Elxemptions granted by [statute] must be read in the
light of Article VIII, 'sec. 2, of the Constitution
since the Constitution expressly makes null and void
all exemptions attempted thereunder by the legislature
not authorized by the Constitution. If the property
comes within a statutory exemption, it can be exempt
only because it is clearly embraced within the consti-
tutional authorization.
611 S.W.2d 720, 723 (Tex. Civ. App. - El Paso 1981, no
writ).
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Honorable Lloyd Criss - Page 8 (JM-991)
SUMMARY
The 1987 amendment to article VIII, sec-
tion l-b(d), of the Texas Constitution, that
limits, for school purposes, the taxation of
homesteads occupied by surviving spouses of
persons entitled to "sixty-five years of age
or older" exemptions applies only to spouses
who survive persons dying after the constitu-
tional amendment took effect.
;fZh
JIM MATTOX
Attorney General of Texas
MARY KELLER
First pssistant Attorney General
LOU MCCREARY -.
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
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