The opinion
Honorable Franklin L. Smith Opfnion No. H- 9
County Attorney of Nueces County
Corpue Christi, Texas 78401 Re: Questions relating to the
Constitutional Amendment
Honorable James H. Whitcomb passed on November 7th,
County Attorney of Colorado County 1972 concerning the Home-
Columbus, Texas 18934 stead Exemption for
persons over sixty-five
Honorable Joe Resweber years of age.
County Attorney of Harris County
Houston, Texas
Gentlemen:
Prior to November of 1972 there was no constitutional authority
for any political subdivision of the State of Texas to grant any exemption
from taxation for a homestead. An effort by the City of Wichita Falls
to grant such an exemption was held unconstitutional in City of Wichita
Falls v. Cooper, 170 S. W. 2d 777 (Tex. Civ. App. Ft. Worth, 1943, error
ref. ).
Section l-b(a) of Article 8 of thd Constitution of Texas provides:
“Three Thousand Dollars ($3,000) of the
assessed taxable value of all residence homesteads
as now defined by law shall be exempt from all
taxation for all State purposes. ‘I
Subsection (b) was added in 1972, providing, that, from and after
January 1, 1973, the governing body of any political subdivision of
the State may provide an exemption “not less than Three Thousand
Dollars ($3,000)” of the assessed value of “residence homesteads of
personr sixty-five (65) years of age or older” from all ad valorem
taxes levied by that subdivision. Alternatively. it provides that, upon
petition of twenty percent of the votcrs,~who voted in the last preceding
election held by the political .subdivision, an election shall be called to
determine “by majority vote, ‘I whether such an exemption shall be
provided. There are other conditions not pertinent to your questions.
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Honorable Franklin L. Smith, page 2, (H-9)
Each of you has asked several questions concerning ,the meaning
and effect of this amendment.
If certain’basic facts concerning homesteads are understood,
then the answers to your questions are less difficult.
Section l-b(a) of Article 8 of the Constitution speaks in terms of
a residence homestead “as now defined by law”.
“Homestead” is defined in Article 3833, Vernon’s Texas Civil
Statutes. The statute refers to it as “the homestead of a family.”
The courts have held that the homestead is given by our Constitution
to the family, not to the husband or to’ the wife. Crowder v. Union
National Bank of Houston, 114 Tex. 34, 261 S. W. 375 (1924).
The term “family” is not defined. However it is held that home-
stead is not a mere privilege accorded the head of a family. It is an
estate created for the protection of each constituent member of the
family, including, for instance. an adult, unmarried daughter.
Reconstruction Finance Corp. v. Burguess. 155 S. W. Zd 977, (Tex.
Civ. App. Waco, 1941. error ref. ).
Thus, there is only one homestead per family and the husband
and wife cannot each have his own separate homestead. Crowder v.
Union National Bank of Houston, supra.
The mere living together without a lawful marriage. either
ceremonial or at common law, does not create the necessary family
and does not give rise to a homestead. Barber v. Lee, 337 S. W. 2d
637 (Tex. Civ. App. Eastland, 1960. no writ history).
Attorney General Opinion No. C-725(1966) discusses in much
greater detail the precise question of whether and to what extent a
family relationship is necessary.
Article 16, Section 52 of the Constitution of Texas provides that.
upon the death of the husband or wife, the survivor may elect to
continue to occupy the homestead as homestead. And thus the death
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Honorable Franklin L. Smith, page 3, (H-9)
of a husband leaving a wife does not terminate the homestead character
of their home. Cox v. Messer. 469 S. W. 2d 611 (Tex. Civ. App. Tyler,
1971, no writ history).
The Constitution, however, makes no provision for a divorced
spouse. Bush Royalty Co. v. Rieley, 475 S.-W. Zd 566 (Tex. 1972).
Where the marriage was childless, a divorce destroys homestead
rights. Steitz v. Steitz, 262 S. W. 2d 262 (Tex. Civ. App. Dallas, 1963,
error dism. ). Where there are children 6nd thus a family remaining)
the homestead may continue even after divorce. White v. Edzards,
399 S. W. 2d 935 (Tex. Civ.App. Texarkana, 1966, error ref. n. r. e. ).
It is not necessary that the interest in the land comprising the
homestead be of any particular type. The homestead may be in
separate property of either the husband or the wife or it may be in
community property. Crowder v. Union National Bank of Houston,
supra. A tenant in common may acquire a homestead in land he
owns in common with others. Powell v. Ott, 146 S. W. 1019 (Tex.
Civ.A#p. Texarkana, 1912, no writ history). Homestead may exist
in rented premises. Davis v. Laund. 41 S. W. 2d 57 (Tex. Comm. App.
1931). A life tenant may acquire homestead rights in his life tenancy.
Sullivan v. Barnett, 47i S. W. 2d 39 (Tex. 1971); Moorhouse v. Crew;
273 S. W. 2d 654 (Tex. Civ. App. San Antonio, 1954. error ref. ).
Article 8, Section 1 of the Constitution of Texas requires that
“Taxation shall be equal and uniform. ” Tax exemptions are subject
to strict construction since they are the very antithesis of the equality
and uniformity otherwise required. Hiltop Village Inc. v. Kerrvilla
Ind. Sch. Dist., 426 S. W. 2d 943 (Tex. 1968).
Section l-b(a) of Article 8 of the Constitution of Texas, added in
November 1948, created a favored class of taxpayers-- possessors of
homesteads. Similarly the exemption permitted by subsection (bl of
Article 8, Section l-b, creates a favored class. Whether this violates
the Equal ProtectioaClause of the Fourteenth Amendment to the
Constitution of the United States depends upon the criteria employed
in determining the class. A state may classify its citizens into
reasonable classes and apply different laws to each class or it may
apply its laws differently according to class without violatiq thr
Equal Protection Clause. Bjorgo v. Bjorgo, 402 S. W. 2d 143 (Tex.
1956).
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Honorable Franklin L. Smith, page 4. (H-9)
The Fourteenth Amendment does not prohibit or prevent classi-
fication, provided classification ia reasonable for the purpose of the
legislation; is based on proper and justifiable dirtinctions. conridering
the purpose of the law; is not clearly arbitrary; and ir not a subterfuge
to shield one class and unduly burden another or to oppreea unlawfully
in its administration. 16 AmJur. 2d. Constitutional Law,Scc. 494, p, 860
et seq. ; Carrington v. Rash, 380 U.S. 89, 13 L. Ed. 2d 675, 05 S. Ct.
(1965).
Exempting persona sixty-five years of age or older from the
burdens of taxation, in part. would appear to be a reasonable axerciee
of sovereign discretion. Many such persona are unable to work or
produce income. Many are on pensions or amall fixed incomes, making
it difficult for them to cope with the iirring costs of existence. A
measure which relieves them of Borne financial reapon,ribility for taxes
may have the effect aleo of relieving the political subdivision of the need
to care for them acr public charges.
The exemption permitted by Article 8, Section l-b(b) ia a personal
one ,to be claimed only by a pereon of sixty-five years of age or older
and only to the extent of hia taxable interest in the property which
conatituteo hie residence homestead. Were thin not ao, ,and if it could
be claimed by others, it might prove difficult to eetablinh the reasonable-
ness of the classification.
However, the exemption is not merelya permona one. Homcmtead
rights can rile no higher than the interest of the claimant, and cannot
affect the interests of other8 in the property if those intercrts are not
subordinated to the homertead claim.
It ir our opinion, therefore, that the,exemption permitted by
Article 8, § 16(b) applier to property in the lcnse that the total of all
taxable interentr in any piece of property are subject to the maximum
exemption allowed by law. but no more, regardless of the number of
persons over it&)+-five who claim it as theic ramidence homestead.
On the other .hand, it ia personal in that it may only be claimed by and
for the benefit of a perron over rixty-five yearr of age to the extent of
him personal tax liability, whether asveral or joint.
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Honorable Franklin L. Smith, page 5, (H-91
Turning then’ to the specific questions each of you has asked, the
first asked by Mr. Whircomb is whether a couple is entitled to the
exemption if the husband is sixty-five as of January 1, the wife is under
sixty-five and the property is community property. Since the homestead
belongs to the family and it is a residence homestead of a pereon sixty-
five or older, we answer that question “yes”. This also answers Mr.
Reswebar’s third question.
Mr. Whitcomb then asks if the result would differ if the wife w~rr:
sixty-five and the husband under sixty-five, or if the property is separate
property of the one over sixty-five , or if the property was the separate
property of the one under sixty-five. Our answer to each of these is
“no”. to the extent that the one over sixty-five has any tax liability.
The second question asked by both Mr. Whitcomb and Mr. Smith
and Mr. Resweber’s fourth is whether a surviving spouse under sixty-five
years of age would be entitled to keep the exemption if the spouse over
sixty-five died after the exemption had been granted. Our answer is that.
even though the property would retain its character as homestead upon
the election of the surviving spouse, it would not be a residence homestead
of a person sixty-five years of age or older and therefore the exemption
would terminate.
Mr. Whicomb’s third question and Mr. Resweber’s fifth ask whether
the surviving spouse keeps the entire exemption if both are eligible for
the eiemption on January 1st but one later’dies. By Article 7151, Vernon’s
Texas Civil Statutes , property is listed for taxation with reference to the
quantity held or owned on January 1st of each year for which it is listed
or rendered. Therefore if the exemption applies on January 1st it will
continue for that tax year. A surviving spouse who is not si.xty-five will
have the advantage of the exemption for that period of time but will lost
it for the next tax ysar. However a surviving spouse who is sixty-five
is entitled to the entire exemption in any event.
The fifth question asks whether the homestead exemption would
apply where one or both of the spouses owns the property as an undivided
interest with a person under sixty-five who is not living on the property.
A tenant in common may have homestead rights in property he owns in
common wilh others. If he does and if he is over sixty-five, then he
may be entitled to the exemption.
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. . ,
Honorable Franklin L. Smith, page 6. (H-9)
Mr. Whitcomb’r sixth question ask8 if the exemptioxwould apply
to a person owning a life estate. There may be a homestead in a life
estate. Therefore our answer would be that, to the extent a pereoti’
owning a life estate has a homestead, if he is over sixty-five, he may
also claim the exemption.
Mr. Smith’s first question is whether or not both husband and
wife must be over age sixty-five to claim the exemption. Our answer
is “no”. Either would suffice.
Mr. Smith’s third question asks what proof the tax assessor
should require to establish that the taxpayer ia over sixty-five. There
is no definitive answer. Basically he should require whatever proof
will eatirfy him, within rearon. Certainly a birth certificate or
similar official document should suffice. But there may be other
means of proof which also, should be adequate.
Mr. Resweber’s first question asks whether a person can qualify
for the exemption if he becomes sixty-five on January 1st of the tax year.
Article 7151, Vernon’s Texas Civil Statutes, provides that the listing of
property for taxation shall be with reference to the quantity held or
owned on the first day of January. Property acquired on the first of
January is to be listed by the person acquiring it. The same rule would
apply to a person becoming age rixty-five on January 1. He would
qualify for the exemption.
Mr. Resweber’r second question deals with a person who,becomee
sixty-five iin January second. Such a person would not be entitled to
the exemption for the year in which he became sixty-five.
Mr. Rcrweber’e sixth question asks whether, if the survivor rdle
the homestead, b&oh&e wSU be entitled to the exemption if he buyn a
home at a later date. We have already indicated that, whether the survivor
retains an exemption in the @ame homestead will depend upon whether the
survivor is over ,sixty-five. The same will be true if the survivor sells
the homestead and later reinvests the proceeds. He or she will be
entitled to the exemption in the new homestead only if he or she is over
sixty-five.
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Honorable Franklin L. Smith, page 7, (H-9)
Mr. Resweber’s seventh question asks whether the exemption
would be retained if the person owning the homestead is in a rest
home. Our answer’ would have to be that he would retain the exemption
if the homestead facttially qualified as his re,sidence homestead. This is
a question of fact and we are in no position to answer for all the possi-
bilities.
Mr. Resweber in his tenth question asks about the situation where
both the husband and wife are over sixty-five and are entitled to an
exemption of the homestead. If they later divorce, is the person retaining
ownership of the homestead entitled to continue the exemption? If the
property remains homestead, as for instance if there are minor children
living with the spouse, then the exemption would continue. This would
be a question of fact.
-SUMMARY-
The exemption from ad valorem ta,xes
provided by Section l-b(b) of Article 8 of the
Texas Constitution will apply if the property
constitutes the residence homestead of a person
sixty-five years of age or older, regardless of
the age of any other person interested in the
homestead, and will terminate when there no
longer is any person sixty-five years of age
or older protected by it.
Very truly yours,
Attorney General of Texas
APPROVED
&ret Assistant
DAVID W. KENDALL, Chairman
Opinion Committee