Untitled Texas Attorney General Opinion ( 1962 )

7lXnc ATK-ORNEY GENERAL
OF WAS
ILL WI&SON
,-RN,?X GENERAL
February 7, 1962
Honorable Wayne Burns Opinion No. WW-1254
County Attorney
Howard County Courthouse Re: Taxabilityof .private'
Big Spring, Texas kindergartenatidfirst
grade elementary school.
DearRr.Burns:
You have asked whether or not a private kindergartenand
first grade elementary school Is exempt from.the ad valorem tax.
Your letter reads In part.96 follows:~'
"There Is a pri.qateschool 'InReward,:",
County which Is operated by lndlvlduals;
and which furnishes'Instructionfor pre-'
school age children and for at..leastthe
First Grade of schooling for children. '.
The entire prexilsesdccupied~by the school
Is used solely and exclusively for school
purposes by the owners thereof. Credit
is given to the students of this school
by the local public schools If a child has',
satisfactorilycompleted the First grade
currlculun,and such child becomes qualified
to enter the Second grade of our local
public schools In that event. The school
.ls operated for profit by the individuals
owning the same.~'
Sec. 2 of Art. VIII, Texas Constitution,provides in
part:
II
the legislaturemay,,by general
law;J,'eLnptfrom taxation. . . all bulld-
purposes and t.henecessary furnlt.ure
.of
@phasls addedJ
all schools. . .'I'
The Legislatureenacted Article.7150, V.C.S.:,Sec. 1 of
which reads in part as follows:
"The following property shall be exempt
from taxation, to-wit:
Honorable Wayne Burns, Page 2 Opinion No. WW-1254
"1. . . . All public colleges, public
academies,. . . and all such buildings
used exclusivelyand owned by persons or
associationsof persons for school pur-
poses;. . . .I( @aphasia addedJ
The Supreme Court of Texas, In Smith v. Feathers,149 Tex.
402, 234 S.W.2d 418, refused the contention by the respondent
that only schools which were "publicly"owned are exempt, and
stated at page 421:
8,
. . . If a building is privately owned
and privately used it Is not a public
building. We decline 'togive the word
'such' that meaning. It does not refer
back to public buildings, but to college
and academy buildings. . . . The statute
first exempts public college and academy
buildings, and that Is followed by an
exemption of college and academy buildings
privately owned." @nphasls addedJ
Smith v. FeathQ8, supra, pertained to a privately owned
sohool of d 1 The bulldlngwas owned by Mr. & Mrs. Ii.0.
Feathers, 2: ?ior to 1948 was operated by the husband and wife
alone. In 1948 an adult daughter of the Feathers became an equal
partner with her parents In the operation of the school. The
partnershipmade an annual partnership Income tax return, and
the profits were divided equally among the three partners. The
daughter did not own any Interest in the building. The Court
stated at page 421:
"It Is obvious that from the date of
the formation of that partnership the
owners of this building fir. & Mrs. H. 0.
Featherg were not the exclusive operators
of the school. Had Mr. & Mrs. Feathers
rented the building to others who used it
exclusivelyfor school purposes, It would
not be exempt. . . . It is equally clear
that if any part of the building was used
for the purpose of carrying on a business
or profession by one not the owner, that
would destroy the exemption. . . : the fact
that one of the three persons who use It
as a school owns no Interest in
destroys the exemption."
Honorable Wayne Burns, Page 3 .. Opinion No- WW-1254
The Court allowed the exemption for the year 1947, but
denied any exemption for the year 1948 and thereafterwhile
the adult daughter was a partner In the,operation .ofthe school.
Where the buildlng is also used as a.resldence for the
owners, It Is not owned and used exclusivelyfor school purposes,
and Is not exempt, Red v. Johnson, 53 Tex. 284; unless the owners
of the building conduct a boarding school thereln, and reside
therein to afford protection,guidance, etc., for the.puplls
outside the class room. Red v. Morris, 72 Tex. 554;lO S.W.
681; Cassiano v. Ursullne Academy, b4 Tex. 673.
With respect to the school.which~ls,thesubdect of this
opinion, we note that you state,."The entire premises occupied
by the school Is used solely and exclusively for school.pur-
poses by the owners thereof." We assume, therefore, from that
statement, that no part of the building which houses the school
is used for a residence,or to conduct some,businessor pro-
fession therein other than the school, or is rented or used by
any other person than the owners thereof. -You also state,
"The school is operated for profit by the Individualsowning
the same.' We assume from the latter statement that there is
no partner who shares in the profits of the school, except those
who are owners of the building. Under this set of facts, we
hold that the private kindergartenand first grade elementary
school In Howard County which you Inquired about la exempt from
the ad valorem tax.
SUMMARY
A privately owned building, used
for a kindergartenand first grade elemen-
tary school, the entire building being
used solely and exclusively for school
purposes by the owners thereof, and no
person sharing in the profits from the
operation of the school except the owners
of the building, Is exempt from the ad
valorcm tax, under Sec. 2, Art. VIII,
Texas Constitution,and Sec. 1, Art. 7150,
V.C.S. ,,:-
Yours very truly,
WILL WILSON
Attorney General of Texas
Assistant
Honorable Wayne Burns, Page 3 Opinion No. ~WW-1254
APPROVED:
OPINION COMMITT8E:
W. V. Geppert, Chairman
Marietta McGregor Payne.
Robert Lewis
Bob Shannon
Grady Chandler
REVIgWgDFORTjiEATTORNEYG~L
By: Houghton Brownlee, Jr.