Untitled Texas Attorney General Opinion ( 1942 )

EA``ORNEY GENEMAL
OF TEXAS
I)ear Sir: Opinion No. O-4931
Re: Whether man living in one county
may claim his ranch in another
county az his homestead.
Your request for an opinion on the above question
reads as follows:
"A man is employed and maintains a residence in
'4' county. He owns no real estate in 'A' county.
He owns a ranch in 'B' county. Although he has never
maintained his principal residence on the ranch, he
and his wife, on various occasions have spent several
days and nights on the 'B' county property.
!'Ishall thank you to advise me whethwor not,
in your opinion, this msn Is entitled to a homestead
exemption from State taxes on the 'B' county real
estate."
The situation presented in your letter is not such
that it may be said az a matter of law that the ranch either
is or is not this man's homestead. Whether or not certain
property constitutes the homestead of a family is largely de-
termined by the intention of the hesd of the family, together
with the particular circumstances which may tend to establish
or discredit such intention. For this reason we cannot give
a categorical answer to your question.
The essential elements of a homestead and the rules
applicable thereto are set out in our opinions Numbers o-1638
and o-4164, copies of which are attached hereto. By way of
supplementing these opinion3 we shall discuss a few~additional
authorities which we believe to be peculiarly applicable to
your question.
In Taylor Feed Pen Company v. Taylor National Bank,
(ct. of Civ. Appeals, 1915) 181 3.W. 534, (Judgment and modified
on other grounds by the Commission of Appeals, 215 S.W. 850)
Honorable Tom A. Craven, page 2 O-4931
the court announced the following rule at page 540:
"While actual residence is not necessary under
all circumstances to fix the homestead character upon
land, a mere intention to occupy land some time in
the future as a homestead, unaccompanied by any act
clearly evidencing such intention, is not sufficient
to attach to such land the homestead character.'
(Authorities cited)
In Parker v. Cook, (Court of Civil Appeals, 1909) 122
S.W. 419, the facts were quite similar to those presented in
your question. Mr. Cook owned a 61. acre farm in Red River
County, which was adequately equipped to serve as a home for
himself and family, which he designated as his homestead. He
and his family never actually occupied this property but in-
stead he moved to Fort Worth, where he followed his trade as
a carpenter. ,It appearing that Mr. Cook was unable to make a
living at his trade of carpenter while living on the Red River
County farm, the Court held that such farm could not conzti-
tute his homestead, being unfit a,zto him to meet the require-
ments of a home. Said the court:
II
. . . The tract of land was a farm; but Cook
was a carpenter, not a farmer. He Intended to occu-
py the farm whenever conditions changed so that he
could go there and make a living for his family and
money to pay his debts. Such a time might never come.
There was no evidence to show that there was any good
reason for expecting it in the near future. To sus-
tain the homestead claim in this caze would be carrg-
ing the effect of intention alone beyond the limits
fixed by any adjudicated case we have examined. . ."
In First Coleman National Bank of Coleman v. Childz,
Eastland Court of Civil Appeals, 1938) 113 S. W. (2d) 602,
writ refused) the court declared:
"Under the circumstances of this case, the
mortgagor, or Child3 and his wife are estopped to
assert the homestead claim to the 200 acres in
question, regardless of the fact that the husband,
after moving from the farm to the city property,
made certain uses of the farm for raising stock and
agricultural products, both of which were consumed
in the maintenance of his family while residing in
the city property. In other words, the use of rural
land by a city or.town resident does not in itself
support homestead claims therein. Alexander v. Wil-
son, zupra; Roberts v. Cawthorn, 26 Tex. Civ. App.
477, 63 S.W. 332."
Eonorable Tom A. Craven, Page 3 0 -4931
In Nunn'z textbook on "Texas Homestead" at page 95,
the following prerequisites for the acquisition of a home-
stead are laid down:
"There is no constitutional or statutory provi-
sion directing the manner by which the homestead char-
acter is impressed upon lands other than the ztipula-
tier,: 'provided, that the zame shall be used for the
purposes of a home, or as a place to exercise the call-
ing or business of the head of the family.' In the
judicial interpretation and application of this pro-
vision it has become well settled that the homestead
character is impressed upon property: (a) by the actual
use and occupancy of the property as a homestead; (b)
or by a present intent to so use and occupy the same,
coupled with acts of preparation, demonstrating such
intent.
"Intent, in itself, will not impress the home-
stead character upon property, but such intent must
be accompanied with a preparation, demonstrating such
intent; and the said acts of preparation must be pro-
secuted with reasonable diligence to the extent that,
within a reasonable time, they will result in the
actual use and occupancy, or else it will be deemed
that the intent to zo use and occupy has been aban-
doned. Ultimate, actual use and occupancy of the
prs;:ertgas a homestead is contemplated in all cazes.
If the intent be abandoned before the occup5jncybe-
gins,,no homestead rights are acquired. . .
While the facts submitted in your letter are inadequate
to permit us to answer your question as a mattter of law, we
believe the foregoing authorities support the following con-
clusions which may guide you in the determination of the ques-
tion:
1. If the man has never actually maintained his prin-
cipal residence at the ranch in "B" county so as to impress it
with the character of a homestead, occasional visits of several
days are ineffectual to accomplish such a purpose.
2. If the man hss no immediate intention of terminat-
i~g his employment in "A" county, and if the ranch in "B" county
is not suitably located as a residence while engaged in such
emPloymen~tin 'A" county, then the ranch cannot constitute his
:homestead.
Honorable Tom A. Craven, page 4 0 -4931
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Walter R. Koch
Walter R. Koch
Assistant
WRK:AMM:wc
ENCLOSURES
APPROVED NOV 13, 1942
s/Gerald C. Mafin
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman