Untitled Texas Attorney General Opinion ( 1972 )


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  •           .   .   .
    :   I.
    October20, 1972
    Honorable Spencer Brown                 Opinion No. M-   1241
    Kerr County Attorney
    Schrelner Bank Bulldln                  Re:   Whether exemption from
    Kerrvllle, Texas 7802%                        ad valorem   taxes may be
    ,accorded'property car-
    ried on the tax rolls
    aa owned by The Church
    In the Hills, Inc., a
    defun.c,t, non-profit
    Dear Mr. .Brown:                              corporation.
    You have requested an opinion of this Office,on the above
    captioned question, and in so doing, have supplied us with the
    following pertinent facts.
    The Churc,hin the Hills, Inc. was ,chartered October 15,
    1945. The purpose for which the corporation was organized was
    the "support of any benevolent, charitable, educational or
    religious undertaking as authorized by Subdivlslon 2 of,,Article
    1302 of the Revised Civil Statutes of Texas of 1925 ... , The
    charter further stated that "no part of the earnings or assets
    of this corporation shall ever be &se    to carry on any ac-'
    tlvitles other than those stated in Su%division 2 of Article
    1302." On September 1, 1956, the chart,erof said corporation
    was forfeited because It had failed to file the refiortrequired
    by Article 9.01 of the Texas Non-Roflt Corporation Act.
    The following excerpt Is from a letter by the,Honorable
    John P. Hill submitted in support of the clalm‘for exemption.
    "This tract containing approximately 82 acres
    was given to the fkurch In The Hills by E. J. Nick7 es
    about 1946 or 1948,. My father, Dr. P. B. Hill, who
    was former Captaln & Chaplain of the Texas Rangers,
    Missionary to Korea and Pastor of the First Presby-
    terlan'church of San Antonio for 20 years. Durlng
    that 20 years he broadcast his Sunday morning Service
    -6076-
    Honorable Spencer Brown, page 2      (M-1241)
    over W.0:A.I. in San Antonio. When he retired and
    moved to Hunt,Texas, he continued his broadcasts
    over W.O.A.I.  under the nsme of The Church In The
    Hills. At his death, the broadcasts continued from
    his recordings for two more years.
    "I was made Treasurer and later, President of
    the organization and secured donations to It.
    '"In some cases, where someone would make a
    substantial donation, I would allow them to hunt
    deer and turkey on the 82 acre tract.
    "I leased the 16 ac. adjoining the 82 acres In
    question from the Hill Country Cowboy Camp Meeting
    Assoclatlon,~which my father also organized some 33
    years ago and which 16 acres Dad helped pick out,
    and purchas'ed. The Camp Meeting 1,sstill golng on
    starting the first Sunday In August through the
    second Sunday In August and during those eight days
    the ranchmen's and visitors kids run all over the
    82 acres having fun and recreation.
    "There are no salaries or expenses of any kind
    taken from the revenue or donations to the Church In
    The Hills. The proceeds go to worthy students who are
    unable to pay the high college tuition of first class
    schools,,Missionaries in various countries, struggling
    churches"and the like.
    "InMarch or April, 1965, ... the charter was
    allowed to lapse or expire and The Church In The
    Hills continued to operate as an Association of the
    surviving members of the P. B. Hill family and
    several well qualified advisers (at no salary or
    expenses to anyone). A11 proceeds going to the
    Scholarships, Missionaries, Seminaries.
    "It 1s my belief that the property In question
    should come under Art. 7150, Section 1, Schools &
    Churches as well as Section 2, Christian Associations,
    and 2a, Religious, Educational and physical develop-
    ment associations."
    -607-t-
    Honorable Spencer Brown, page 3’    (M-1241)
    We quote the following excerpt from a letter written to
    you by the Tax Assessor-Collector of Kerr County, Texas:
    “The pertinent facts that were presented to
    this office concerning the ... &opertg.are      as
    follows :,
    (1) Commisloners Court Order #11413 directed
    that a request for tax exemption be filed
    on each property requesting ad valorem
    tax,exemptions.,
    (2)   Request filed on property in question by
    John P. Hill, President of The Church of
    The’Hills Inc.
    (3)   Exemption denied by Kerr County Tax Office.
    Ex!n``~;;t~n;ed .because:
    apsed tid original  not pre-
    aented to substantiate ownership or
    puFpo8a of creation.
    b   Land being ‘leased for deer hu.nting.
    IC 1 Revenue received distributed to
    church grbups according to owner*
    but no evidence presented.
    (d) Owner’s reply to Application Ques-
    tion #12 was 81nvestmentt.
    (4)   Applicant ap$ealed to Ctiissionera Court
    under authority granted by Attorney General’s
    Oljln+on&6g M-328.
    Exemption denied by Commissioners Court .~
    ‘,11
    56    Owner claims that Buthority to grant tax
    exemption lies in the power granted in
    the Texas Constitution, Article VIII,
    Section 2, Article 7150 (1, 2, & 2A VACS).”
    The Tax Assessor-Collector has also advised us that the
    tax records show’The’Church In The Hlllsl Inc. as owner of the
    property in question. The reference to ‘owner” in the above
    quoted excerpt therefore refers to “John P. Hill, president of
    The Church In The Hills, Znc.“, a position which he obviously
    cannot hold In what is now a defunct corporation.
    We agree with the concluaion’of the Tax Assessor-Collector
    and the Commissioners’ Court that exemption should be denied
    In this case,
    -6078-
    Honorable Spencer Brown, page 4          (M-1241)
    Article VIII, Section 2 of the Texas Constitution1 provides
    the’constitutional authorlzatlon for legislative exemption from
    taxation. The pertinent portion of that Article reads as follows:
    “Sec. 2. ...the legislature may, by general
    laws, exempt from taxation .,. actual places or fifJ
    religious worship ... .’
    Pursua t to the above Constitutional authorization,  the 60th
    Legislature!I amended Section 1 of Article 7150 by adding the fol-
    lowing thereto:
    t     *     l     +        l       *      l   *
    “l(a) .The term ‘actual places of religious
    worship’, shall include property owned by a church
    or by a strictly religious Institution or organ-
    ization; Including the personal property therein
    and the grounds attached to such buildings neces-
    sary for the proper use and enjoyment of same,
    used exclusively to support and serve the spread
    1 Other Gonstltutional authorizations contained In this
    Article, such as that provided for the exemption of “property
    used exclusively and reasonably necessary In conducting any
    association engaged In promoting the religious, educational and
    physical development of boys, girls, young men or younn;women
    operating under a State or National organization of like charac-
    ter; also the endowment funds of such Institutions of learning
    and religion not used with a vlew,to profit; and when the asme
    are Invested In bonds or mortgages, or in land or other property
    which has been,and shall hereafter be bought In by such lnstitu-
    tlons under forecloeure sales made to satisfy or protect such
    bonds or mortgages, that such exemption of such land and property
    shall continue only for two years after the purchase of the same
    at such sale by such institutions and no longer, ...' are clearly
    Inapplicable to the facts of the case under consideration, as are
    Sections 2 and 2a of Article 7150; enacted in pursuance thereto
    and equally relied upon by the taxpayer In the lnatant case.
    2 Acts .Lg67, ch. 336, p. 802, 81.
    -6079-
    Honorable Spencer Brown, page 5      (M-1241)
    of a religious   faith, and to effect accompanying
    filq   religious,   charitable, benevolent and edu-
    cat onal purposes by the dissemination of lnfor-
    matlon on,a religious    faith through radio, tele-
    vision and similar media of communication. Such
    church,~rellglous'lnstltutlon,or organization
    shall be, or shall be sponsored by, a faith group,
    denotilnationor association of churches, which
    ordains ministers or.ele.ctsChristian Science
    Readers and establl,sheshouses of worship com-
    pletely dedicated to the propagation of the reli-
    glous faith of such faith groups, denominations
    or association of-churches."
    This seotlon~la valid Insofar as It Is within the Constltu lonal
    authorizations and llmltatlons of Article VIII, Sectdon 2.3
    It ia evident that the property described In your request
    la not within the plain terms of the statute   In that the prop-
    erty Is not owned by a church or a strictly rellglous   lnstltutlon
    or organization. Furthermore, the exemption Eccorded real prop-
    e.rty belonging to such Institutions Includes ... personal prop-
    erty therein and the grounds attached to such buildlnR8 necessary
    for t-proper     use and enjoyment of same ...". (hphasls ours.)
    Stated differently, the authorized exemption for I'actualplaces'
    of religious worship" extends only to the real property owned by
    a zhurch or reli+ous    institution, and, further, requires that
    a building" or house of worship' of some kind be erected there-
    on.
    We thln~kthat this conclusion is'necessitated by a long line
    of decisions either approved or written by our Supreme Court. It
    was held in Trinity Methodist Episcopal Church v. City of San
    Antonio, 201 S W b6 (T     C   A    1916          f )       t
    ~parsonad;e'was9note$e``;       %er   ei;h:````~fo~s````~lo~a~
    authorlzatlon or the then statutory exemption       . . . houses
    3 City of Wichita Falls v. Cooper, 
    170 S.W.2d 777
    (Tex.Clv.
    App. 1943 error ref )* Dlcklaon v. Woodmen of the    World Life
    Insurance'Soc., 280 i.i.sd 315 (Tex.Clv.App. 1955,   error ref.);
    4 Tex.Jur.2d 200, 201, ~64, and authorltlea cited   therein.
    Article 7507, 4 Vernon's Saylea' Texas Civil Statutes
    (1914;.
    -6080-
    Honorable Spencer Brown, page 6       (M-1241)
    used exclusively for public worship, the books and furniture
    therein and the grounds attached to such buildings necessary
    for the proper occupancy, use and enjoyment of the same, and
    not leased or otherwise used with a view to profit.” We quote
    the following excerpt from pages 669, 670:
    “The Constitution provides that all ‘t.axatlon
    shall be equal and uniform,’ and that ‘all property
    In this states,whether owned by natural persons or
    corporations, other than municipal, shall be taxed
    In proportion to its value,  which shall be ascer-
    tained as may be provided by law. I Const . art. 8,
    Bl. To this provision general exceptions are made,
    under which the Legislature may exempt certain prop-
    erty specifically described. Section 2. In consld-
    erlng eXemptlone It is the rule that the law must be
    strictly construed and not enlarged, but confined to
    the very terms of the provision as to the exemption.
    Cooley, Taxation, p, 357.   Following this rule the
    burden devolves upon any one seeking an exemption
    to bring himself clearly within the terms of the
    statute ‘or constitutional provision, and further,
    should any reasonable doubt as to the property being
    exempt arise, the doubt must be resolved In favor
    of the government levying the tax. Morris v. Masons,
    
    68 Tex. 698
    , 
    5 S.W. 519
    .
    *     +        l    +     +
    II
    ... The Constitution undoubtedly Intended in
    granting permission to the Legislature to exempt
    houses used exclusively for rellglous  worship from
    taxation to grant permission to exempt the land on
    which the house Is built  and other ground on which
    to enter and leave the church and ground Immediately
    surrounding the house which would be ‘grounds attached
    to such buildings necessary for the proper occupancy,
    use and,enjoyment of the same.” What would be nec-
    essary grounds would be a question of fact, but this
    would not render the statute unconstitutional. The
    Constitution will not be so construed as to defeat
    its own purposes, which would be the case If only
    the ground actually covered by the house used for
    -6081-
    Honorable Spencer,Brown, page 7’     (M-1241)
    religious worship was exempt. The construction
    must be reasonable and not such as to defeat the
    very end deslred."5
    Although Section 2 of Article VIII was subsequently amended
    in 1928 so ai to authorize legislative exemption of "any property
    owned by a church or by a strictly religious society for,the ex-
    clusive    use as a dwelling place for the ministry of such church
    or religious society, and which yields no revenue whatever to
    such church or religious society ...",6 the above quoted lnter-
    pretatlon of the authorization for exemption of "actual places
    of rellglous~worship" remains unchanged.7
    SUMMARY
    Property carried on the ad valorem tax rolls as
    owned by The Church In the Hills, Inc., a defunct,
    non-profit corporation, and having no actual place
    of religious worship thereon, Is not exempt from
    taxa~tiohunder Article 7150(l)(a), V.A.T.S.
    5 Later cases enunciating the general principles stated In
    the first quoted paragraph may be found In 54 Tex.Jur.2d 200-206,
    Tsxatlon, 8864-65.
    6 Implemented by the enactment of Article 7150b, V.A.T.S.
    The 1928 amendment has been construed ;y the Supreme Court as em-
    powering the Legislature to determine ... who, and what activities
    shall constitute the ministry of a church", rather than limiting
    the exemntlon to a dwelling olace for Its mlnlstrv owned and used
    by an lnblvldual church. McCreless v. City of Sak'Antonio, 
    454 S.W.2d 393
    (Tex.Sup. 1970).
    7 54 Tex.Jur.2d 214-216, Taxation, 869.
    -6082-
    Honorable Spencer Brown, page 8       (M-1241)
    Prepared by Marietta McGregor Payne
    Assistant Attorney General
    APPROVED:
    OPINION COmMITTEE
    Kerns Taylor, .Chalrman
    W. E. Allen, Co-Chairman
    James H. Broadhurst
    Bill Campbell
    Gerald Ivey
    Bob Davis
    SAMTJEL D. MCDANIEL
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    NOLA WHITE
    First Assistant
    -6083-
    

Document Info

Docket Number: M-1241

Judges: Crawford Martin

Filed Date: 7/2/1972

Precedential Status: Precedential

Modified Date: 2/18/2017