Untitled Texas Attorney General Opinion

GREG A B B O T T

December 28,2009

The Honorable Mark Homer Opinion No. GA-0752

Chair, Committee on Culture, Recreation

and Tourism Re: Whether multiple contiguous lots may be

Texas House of Representatives claimed as part of a homestead exemption under

Post Office Box 29 10 section 11.130) of the Tax Code (RQ-0808-GA)

Austin, Texas 78768-29 10

Dear Representative Homer:

You ask whether multiple contiguous lots may be claimed as part of a homestead exemption

under section 11.130) of the Tax Code.'

As background, you tell us that an individual purchased a homestead in 1979 and that he

subsequently purchased several lots contiguous to that homestead. Request Letter at 1. For the 2007

tax year, the individual applied for a homestead exemption to include all of the contiguous lots. The

chief appraiser, and then the appraisal review board, ruled that none of the lots other than the

individual's original lot could be claimed as part of the person's homestead because the lots were

located in a platted subdivision, and were not used as part of the individual's homestead. Id.

Section 1 of article VIII of the Texas Constitution requires that "[tlaxation shall be equal and

uniform" and that "[all1 real property . . . in this State, unless exempt as required or permitted by this

Constitution . . . shall be taxed in proportion to its value." TEX.CONST.art. VIII, 5 l(a)-(b).

Section 1-b of article VIII provides for several kinds ofresidence homestead exemption, and declares

that "[tlhe legislature by general law may define residence homestead for purposes of this section."

Id. § 1-b. To that end, a "residence homestead" is defined as:

a structure (including a mobile home) or a separately secured

and occupied portion of a structure (together with the land, not to

exceed 20 acres, and improvements used in the residential occupancy

of the structure, if the structure and the land and improvements have

identical ownership) that:

(A) is owned by one or more individuals, either directly or

through a beneficial interest in a qualifying trust;

'Request Letter at 1 (available at http://www.texasattorneygeneral.gov).

The Honorable Mark Homer - Page 2 (GA-0752)

(B) is designed or adapted for human residence;

(C) is used as a residence; and

(D) is occupied as his principal residence by an owner or, for

property owned through a beneficial interest in a qualifying trust, by

a trustor of the trust who qualifies for the exemption.

TEX.TAXCODEANN.§ 11.130)(1) (Vernon 2008).

We begin with the proposition that "our primary objective is to ascertain and give effect to

the Legislature's intent." City ofMarshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006).

We attempt to discern such intent from the actual language used by the Legislature. See Osterberg

v. Peca, 12 S.W.3d 31, 38 (Tex. 2000). Statutory words and phrases must "be read in context

and construed according to the rules of grammar and common usage." See TEX.GOV'TCODEANN.

§ 3 11.Ol l(a) (Vernon 2005). In addition, "[sltatutory exemptions from taxation are subject to strict

construction because they undermine equality and uniformity by placing a greater burden on some

taxpaying . . . individuals rather than placing the burden on all taxpayers equally." N. Alamo Water

Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991).

You state in your request letter that the chief appraiser and the appraisal review board denied

the homestead exemption to the lots contiguous to the original homestead in part because those lots

had been part of a platted subdivision. We have found no statutory or case law that would recognize

such a distinction between platted and non-platted lots. Indeed, the plain language of the term

"residence homestead" as defined in section 11.13(j) indicates that the original lot and structure,

which the appraisal review board has treated as the individual's residence homestead, and the

additional land and improvements about which you inquire could constitute a "residence homestead"

to the extent that the land and the improvements thereto are used by the owner in the residential

occupancy of the original homestead and have identical ownership. When a statute's language is

clear and unambiguous, its plain meaning must prevail. McIntyre v. Ramirez, 109 S.W.3d 741,745

(Tex. 2003). Moreover, a court has stated that "where separate pieces of property are occupied and

used by the owner for one and the same purpose, and their separate identities and values become

merged and consolidated by such use, no separate valuation and assessment is required." Green v.

Baldwin, 336 S.W.2d 291, 294 (Tex. Civ. App.-Texarkana 1960, writ dism'd) (citing Moody-

Seagraves Co. v. City of Galveston, 43 S.W.2d 967, 970 (Tex. Civ. App.-Galveston 1931, writ

ref d)).2 We note, however, that the question of "[wlhether property is a homestead presents a fact

2Althoughthe definition of the word "homestead" for purposes of forced sale in article XVI, section 5 1 of the

Texas Constitution, and its statutory analogue, section 41.002 of the Property Code, is different &om the defmition of

the term "residence homestead" in subsection 11.130) of the Tax Code, cases dealing with the defmition of "homestead"

may be insmctive for purposes of the question you pose. See In re Norris, 2 15 S.W.3d 85 1,858 (Tex. 2007) ("The Tax

Code . . . more generally employs a looser defmition [of "residence homestead"] that essentially focuses on whether the

structure is owned and occupied as a principal residence"). In a 1991 case, for example, a federal bankruptcy court in

Austin declared that "[allthough never explicitly stated, there appears to be a presumption that land contiguous to the

(continued...)

The Honorable Mark Homer - Page 3 (GA-0752)

question." Brown v. Bank of Galveston, 963 S.W.2d 5 11,515 (Tex. 1998). Thus, the determination

of whether all the lots of which you inquire do, in fact, form part of the residence homestead requires

a factual determination that is not conducive to the opinion process.

You also ask whether a chief appraiser is authorized "to limit the exemption to less than

twenty acres by requiring the land [to] be used in some manner." Request Letter at 2. In a 1983

opinion, this office said that a chief appraiser is not given the discretion to establish a minimum or

maximum amount of acreage as the amount of land receiving the designation "so long as that land

is used in the residential occupancy of the structure receiving residence homestead designation."

Tex. Att'y Gen. Op. No. JM-40 (1983). Accordingly, so long as the chief appraiser determines that

contiguous lots of less than twenty acres are being used as a residence homestead, the taxpayer

would be entitled to an exemption.

'(...continued)

homestead under Texas law is used for the purposes of a home." In re Mitchell, 132 B.R. 553,565 (W.D. Tex. 1991).

The court W h e r noted that the Texas cases "continually describe a homestead as being 'property used for home

purposes.' Comfort, convenience, solitude, and shelter are clearly purposes for which a home is stated to be used within

the meaning of a homestead under Texas law." Id. at 566. Decisions from Texas courts have demonstrated the truth of

the Mitchell court's statement. For example, a 1993 case under article XVI, section 5 1 held that "[allthough actual

residence on part of the rural property is required, one need not reside on all the parcels so long as the other tracts are

used for support of the family." NCNB Tex. Nat'I Bank v. Carpenter, 849 S.W.2d 875, 879 (Tex. App.-Fort Worth

1993, no writ). See also Seidemann v. New Braunfels State Bank, 75 S.W.2d 167, 168 (Tex. Civ. App.-Austin 1934,

writ ref d) (two lots adjoining home are part of homestead).

The Honorable Mark Homer - Page 4 (GA-0752)

S U M M A R Y

Section 11.13(j) of the Tax Code defines "residence

homestead" for purposes of the payment of property taxes to include

"a structure . . . together with the land, not to exceed 20 acres,"

regardless of whether any part of the property is located in a platted

subdivision. If the chief appraiser finds that contiguous lots totaling

less than twenty acres are being used as a residence homestead, the

taxpayer is entitled to an exemption on the entire property. Whether

any particular group of contiguous lots would qualify as a "residence

homestead" is a question of fact.

Very truly yours, A

~tton$yJdneral of Texas

ANDREW WEBER

First Assistant Attorney General

JONATHAN K. FRELS

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Rick Gilpin

Assistant Attorney General, Opinion Committee