                 The Attorney General of Texas
                                   October    29, 1980
< WHITE
wy General

             Honorable Ben 2. Grant, Chairman            Opinion No. !&‘-X9
             Judiciary Committee
             House of Representatives                    Re: Failure to timely apply for
             Austin, Texas 78769                         residence   homestead exemptions
                                                         and related matters
             Honorable Neal Pfeiffer
             Criminal District Attorney
             Bastrop County
             P. 0. Box 753
             Bastrop, Texas 78602

             Gentlemen:

                    Each of you has questioned the effect of a taxpayer’s failure to timely
             apply for a residence homestead exemption from local ad valorem taxes.
             Repnssentative   Grant’s inquiry is limited to the exemptions addressed in
             subsection (c) of article VIII, section l-b of the Texas Constitution. He asks
             if tax exemptions thereunder are lost if taxpayers fail to make timely
             applications therefor.

                    Mr. Pfieffer’s question embraces exemptions afforded pursuant to
             subsection (b) of that section, as well as subsection (c) exemptions. He asks
             if a school district may allow homestead exemptions - and be reimbursed
             under section 20.81(a) of the Education Code for the loss of revenue
             occasioned thereby - where taxpayers’ applications for exemptions were
             made out of time because the district failed to provide taxpayers timely
             notice of the need to file them, or to provide them proper forms for the
             purpose.

                    Recent Texas cases have emphasized that one who seeks a favored
             position with reference to the imposition of taxes labors under the burden of
             showing clearly that he comes within the terms of the constitutional
             provision he invokes.    See Smithy v. Pa ett 596 S.W. 2d 530 (Tex. Civ.
             4~. -Beaumont      1979, 1writ ,Mnd
                                              rs                 where the framers of a
             constitutional provision regarding a tax exemption have not specified when a
             taxpayer must show himself qualified for the exemption provided, the courts
             will determine the intent from the entire enactment.     Moore v. White, 569
             S.W. 2d 533 (Tex. Civ. App. - Corpus Christi 1978, writ r&d n.r.e.). See
             Gragg v. Cayuga Ind. School District, 539 S.W. 2d 861 (Tex.), appeal dism3
             429 U.S. 973 (19762




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       In Moore, supra, the court determined .that an application for special tax
treatmenaer         the Qgricultural   use” provision of, the constitution,    article VIII,
section I-d, Texas Constitution, filed in December of a tax year was untimely, and thus
not entitled to recognition, because the taxpayer “waited until after the [taxing
authority’s]   plans of taxation were put into effect before filing her claim for
exemption.”     569 S.W. 2d at 536. In Gragg, suppa, the supreme court held that a
taxpayer was not entitled to an “agricultural use” exemption from market value
taxation because “[hl e sat by and permitted the assessments to be made, the tax rolls
to be prepared, and [al suit for taxes to be filed against him before challenging the
refusal of the tax assessor to give his land the agricultural use designation.” 539 S.W.
2d at 870. It would thus appear that taxpayers can estop themselves by tardiness from
asserting rights to tax advantages allowed them by the constitution.        See also Jay
Devers, 563 S.W. 2d 880 (Tex. Civ. App. - Eastland 1978, no writ); Attorney General
m         H-988 (1977).

       In our opinion, the same rationale would apply to applications for residence
homestead exemptions under s&me&ions (b) and (cl, section l-b, article VIII of the
constitution.    The subsection (cl provision? afforditg a $5,000 homestead exemption,
like the sgricultural use provision of section l-d, is self-executing.  And like the l-d
provision, the l-b provisions operate to exempt part of the market value of property
from taxation, not the entire property.       None of the exemptions are automatically
allowed.     Each person  who  wishes to a&me    the benefits thereof must show himself
entitled to them.

       But this is not to say that the legislature cr other taxing authorities      may
arbitrarilv  establish cutoff dates for the recognition of claims to ‘constitutional
exemptiohs and by that device stiject constitu&naIly       exempt property to taxation.
See Prop. Tax Code SlL43(d), .43(e). In.Lower Colorado River Authority v. Chemical
Gk      & Rust Co., 190 S.W.. 2d 48 (Tex. 1945X the supreme dourt held, “What the
constitution   exempts from taxation the legislature has no power. to require to be
taxed.” On a number of occasions this off& has applied that hold% to legislatively
or administratively   established deadlines for claiming homestead exemptions, saying in
each case that a failure to meet the deadline did not in itself deprive the taxpayer of
the exemption.      See Attorney General Opinions MW-146 (1980); H-548 (1975); H-309
0974); G-6842 (19451:

      Where the constitution &es not exempt a particular kind of property but merely
permits its exemption without prescription, the legislature may ordinarily limit the
exemption as it pleases. Did&on v. Woodmen of the World Life Ins. Sot., 280 S.W. 2d
315 (Tex. Civ. App. -Sat??                                                    a power is
expressly given by the constitution and the mode of its exercise is rescribed, such            ’
mode is exclusive of all others. Parks v. West, ill S.W. 726 (Tex. 1908. 5 Although the
$10,000 “elderly” and “disabled” exemptions permitted by article VIII, section l-b,
subssction (cl of the constitution are not self-executing, the provision does expressly
provide the way eligibility for them may be conditioned by the legislature.        It may
“base the amount. . . and condition eligibility. . . on economic need.” The express
permission to condition eligibility cn economic need is an implied prohibition against
other eligibility conditions. -See Ferguson v. Wilcox, 28 S.W. 2d 526, 532 (Tex. 1930):’In




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our opinion, neither the legislature nor other taxing authorities may constitutionally
make eligibility for residence homestead exemptions depend won compliance with an
arbitrary filing deadline. See
                           -   Attorney General Opinion MW-146 (1980).

      Whether a late-filing taxpayer is estopped from claiming a homestead exemption
in a particular case will depend on the facts of the matter, but a legislatively
designated cutoff date will not necessarily control the question. A person estopped to
claim an exemption because he delayed asserting his rights beyond the time
administratively  feasible for redressing the wrong has not been subjected to an
unconstitutional  exercise of legislative power; he has brought the difficulty lpon
himself. See generally 22 Tex. Jur. 2d Estoppel Sl, at 660.

       Applying the foregoing conclusions to Mr. Pfeiffer’s question, we believe the
school district may recognize otherwise-allowable     homestead claims made out of time.
In fact, it would be difficult for the district to show taxpayers estopped from claiming
them where the ‘district itself was responsible for the late filiw. See Grandview Ind.
School District v. Store& 590 S.W. 2d 215 (Tex. Civ. App. - Waco l97G       writ).

       But, we do not believe the district will be necessariIy entitled to reimbursement
from the state under article 20.81(a) of the Education Code. That provision was passed
to comply with a constitutional dictate found in article VIII, section l-b, s&section (CA
It makes payable to a school district the “amount of taxable value actually lost” by
applications of the, statute implementing article VIII, section l-b of the constitution,
but to receive the payment, a school district is statutorily required to apply for it on
or before a legislatively established cutoff date, November Ist of the tax year. Educ.
Code S20.84. Although estoppel is not ordinarily available as a defense agahwt claims
of a political subdivision of the state, we think the rationale of the G        and Moore
cases previously discussed might be applied to estop the school district *T tom clas
the reimbursement      where its own delav made reimbursement         not administratively
feasible -See City of Hutchins v. Prasifka, 450 S.W. 2d 829 (Tex. 1970).

                                    SUMMARY

              A legislatively    designated  cutoff date for homestead
           exemption claims under article VIII, section l-b ‘of the Texas
           Constitution will not alone operate to deprive a taxpayer of an
           exemption, but the taxpayer may become estopped to claim the
           exemption if his &lay makes its recognition administratively
           impracticable.




                                             MARK        WHITE
                                             Attorney   General of Texas




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JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINION COMMPITEE

Susan Garrison, Actiw Chairman
Jon Bible
Myra McDaniel
Bruce Youngblood




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