Untitled Texas Attorney General Opinion

. ’
THEA'ITORNEY GENERAL
OF’TEXAS
AU~TN. TRXAS %%7ll
August 1, 1974
The Honorable Ned Granger Opinion No. H- 364
Travis County Attorney
Travis County Courthouse Re: Constitutionality of Article
Austin, Texas 7329a, V. T. C. S., exempting
from forced sale for taxes,
homestead of person over 65.
Dear Mr. Granger:
you have requested our opinion as to whether Article 7329a,
V.T.C.S., is constitutional in view of Article 16, Sec. 50 and Article
8, Sec. 10 of the Constitution of the State of Texas.
Article 7329a is the provision enacted in 1971 (Acts 1971, 62nd
Leg., p. 2858,ch 937), whereby the collection of delinquent taxes by
foreclosing upon the homestead of a person 65 years of age or older may
be deferred. Section 50 of Article 16 of the Constitution concerns, inter
alia, the protection of homesteads from forced sale. Section 10 of Article
8 of the Constitution deprives the Legislature of power to release persons
or property from the payment of certain taxes.
Because Article 16, Section 50 states in part:
The homestead of a family, or of a single adult
person, shall be, and is hereby protected from
forced sale, for the payment of all debts except
for . . . the taxes due thereon . . . ,
and because Article 8Section 10 states in part:
The Legislature shall have no power to release
the inhabitants of, or property in, any county,
p. 1703
The Honorable Ned Granger page 2 (H-364)
city or town from the payment of taxes levied
for State or county purposes . . . ,
you suggest:
The legislature, in promulgating Article 7329a
has gone outside this Constitutional provision
and broadened the exemption of homesteads
from forced sale. By exempting homesteads
belonging to persons 65 years of age or older
from forced sale, the legislature has narrowed
the exceptions and broadened the exemption.
While the legislature has not exempted the
property from taxes, it has in effect released
the property owners over 65 years of age from
the payment of taxes so long as they continue to
occupy the property as a homestead.
Section 1 of Article 7329a reads:
Any person who is 65 years of age or older and
who owns and occupies a homestead, as defined
in Article XVI, Section 51 of the Texas Constitu-
tion, against which any taxing unit has filed any
suit to collect delinquent ad valorem taxes may,
in addition to any other pleading, file an affidavit
that such person owns and occupies such property
as his or her homestead and that the affiant has
already passed his or her sixty-fifth (65th) birthday.
If the taxing unit does not file a controverting
affidavit, or if upon bearing such controverting
affidavits it shall be found that the affiant owns
and occupies such property as homestead and has
already passed his or her sixty-fifth (65th) birthday,
no further action shall be taken in said cause until
said homestead is no longer
--- owned and occupied by
such affiant who hadpassed such sixty-fifth (65th)
birthday. (emphasis added)
p. 1704
The Honorable Ned Granger page 3 (H-364)
The underlined clause, in our opinion, expresses no intent to
release the affiant from ad valorem tax liability, but only one to defer
foreclosure upon his homestead until the affiant no longer owns and
occupies it. The statute does not grant an .aQtomatic deferment of
ad valorem tax liability. The wording of the statute is permissive and
places a burden on the affiant to act in his own behalf:
Any person who is 65 years of age or older . . . .
may.. . file an affidavit . . .
Furthermore, section 2 of the Article states:
This Act shall not extinguish or release the delinquent
taxes, penalties, interest or costs against such home-
stead property, and in any suit upon which action is
deferred pursuant to this Act no plea of limitation,
laches, or want of prosecution shall apply against the
taxing unit. (emphasis added)
Section 3 thereof continues with:
Penalty and interest shall continue to accrue during
the period of deferment prescribed in this Act and
delinquent taxes, penalties, interest and costs shall
at all times remain a first and paramount lien upon
the land and all mutations. thereof until paid, to the
end that no taxing unit shall lose its taxes, penalty,
interest and costs upon such homestead property
because of deferment of action pursuant to this Act.
(emphasis added)
We do not think it can be correctly said that the deferment contempla-
ted here is the indirect equivalent of a tax-payment release prohibited by
Article 8,Section 10 of the Constitution. There is no suggestion made that
the statute works any direct release of taxes, but rather that the provision
may have that effect. As said in Mexia Independent School District v. City
of Mexia, 133 S.W.2d 118 (Tex. 1939) where similar charges were made,
p. 1705
The Honorable Ned Granger page 4 (H-364)
” . . . [I]t is possible under the Act in question for [the authorities] . . .
to fail to properly foreclose the liens held by the taxing units , . . , but
this is a danger inherent in all governmental functions performed by
human agents . . . [T]he mere existence of this possibility does not
render all our tax law unconstitutionaL” 133 S.W.2d 122. Without
more we cannot say the statute contravenes Article 8.,Sec. 10.
Nor do we think a statute of this kind is prohibited by Article 16,
Sec. 50 of the Constitution. That secti on acts as a protection for home-
steads from forced sale to satisfy the classes of debts embraced by it.
But it does not command or require the immediate forced sale of home-
steads for those classes of debts not embraced by it. Rather, it does not
prevent such a sale. For instance, it has never been suggested that
Article 7277, V. T. C. S., is unconstitutional on account of Article 16,
Sec. 50 although it has been in force since 1879 and defers tax sales of
real property until a list of delinquents has been posted a certain length
of time.
Article 7329a, V. T. C. S., in our opinion, does not purport to
exempt the homesteads of affiants from forced sale for “the taxes due
thereon” in contravention of Article 16, Sec. 50 of the Constitution. It
merely allows the postponement of action leading to that result.
SUMMARY
Article 7329a, V. T. C. S., allowing deferment
of the collection of delinquent taxes by foreclosure
upon the homestead of a person aged 65 years of age
or older does not contravene Article 8, Sec. 10, or
Article 16, Sec. 50, of the Texas Constitution.
Very truly yours,
JOHN L. HILL
Attorney General of Texas
p. 1706
. .
.
The Honorable Ned Granger page 5 (H-364)
DAVID M. KENDALL,
&LIlLiw Chairman
Opinion Committee
p. 1707