                                March 6, 1975


The Honorable M. L. Brockette                   Opinion No. H- 548
Commissioner of Education
Texas Education Agency                          Re: Whether a school district
201 East Eleventh Street                        may condition eligibility for a
Austin, Texae 78701                             homestead exemption for persons
                                                65 and over upon a claim of the
                                                exemption by a certain date.

Dear Commissioner    Brockette:

        You have requested our opinion regarding the constructton of
certain aspects of article 8, I ection l-b of the Texas Constitution, which
permits school districts and other political subdivisions to exempt not
less than $3000.00 of the assessed value of residence homesteads of
persons 65 years of age or older, Specifically,    you ask:

                   1. Whether a resolution requiring that an appli-
               cant for the homestead exemption apply for and
               claim the exemption by April 30 of each year is
               valid.

                  2. Whether a person claiming the exemption
               must be at least 65 years of age on or before
               January ! of the year in which he claims the
               exemption.

                   3. Whether, if the first question is answered
               in the negative, the school district must refund
               tax overpayments to persons who failed to apply
               for and claim the exemption on or before April
                                                                              .
               30.




                                        p. 2461
The Honorable M. L. Brockette      page 2   (H-548)




                     4. Whether, if the first question is answered
                 in the negative, a person may claim the exemption
                 at the time taxes are paid, i. e., after Januqry 31
                 of the year following the year such taxes became
                 due.

       Article   8, section l-b provides in part:

                      From and after January 1, 1973, the governing
                 body of any county, city, town, school district or
                 other political subdivision of the State may exempt
                 by its own action not less than Three Thousand
                 Dollars ($3,000) of the assessed value of residence
                 homesteads of married or unmarried persons sixty-
                 five (65j years of age pr older; including those
                 living alone, from all ad’valorem taxes thereafter
                 levied by the political subdivision. . . .

This provision is absolute in terms.   Once a political subdivision elects
to grant a homestead exemption for persons 65 years of age or older, at
least $3,000 of the assessed value of the subject property is exempt. In
Attorney General Opinion H-309 (1974) we held that a person does not 1-e
this exemption by failure to claim it prior to the statutory rendition date.
See also, Attorney General Opinion O-6842 (1945).

         We interpret these opinions to mean that once the homestead exemp-
tion has been granted, any subsequent action which operates to deprive a
taxpayer of the benefits of the exemption results, essentially, in the
taxation of exempt property.      The Legislature has no such power, Lower
Colorado River Authority v. Chemical Bank and T.rust Co., 190 S. W. 2d
48 (Tex. Sup. 1945)) and in our opinion all political subdivisions are similarly
ree tricted.   An application of the foregoing analysis to the instant situation
is decisive of the question raised.    Were a political. subdivision to penalize
a taxpayer by depriving him of the benefits of his exemption for failure to
claim it by a specified date, the result, would necessarily be taxation of
exempt property.     It is therefore our opinion that while a political sub-
division may enact a cutoff date for administrative purposes, this date may
not operate to nullify the benefits of the homeetead exemption.


                                         p. 2462.
The Honorable M. L. Brockette      page 3 (H-548)




        Your second question concerns whether a person claiming the
exemption must be at least 65 years of age on or before January 1 of
the year for which he claims the exemption.   As we held in H-9 (1973),
a person must have reached 65 years of age on or before January 1 of the
tax year to qualify for the exemption, and we therefore answer your
second question in the affirmative.

        Your third question concerns whether refunds must be paid to
eligible per sons who paid their taxes without claiming the exemption
within the specified time.  There are no statutory provisions governing
refunds of ad valorem taxes paid but not owed.

         The rules applicable in cases where taxes have been exacted and
collected in violation of constitutional provisions, and where no statutes
determine the matter of refunds, were laid down by the Texas Supreme
C+rt . in National Biscuit Co. v. State, 135 S. W. 2d 687 (Tex. 1940).
They are:

               (1) a person who voluntarily pays an illegal tax has
               no claim for repayment:
               (2) a person paying an illegal tax under duress has
               a valid claim for repayment:
               (3) duresa in the payment of an illegal tax may be
               either express   or implied, and a legal duty to
               refund exists in both cases:
               (4) a taxpayer need not take the risk of incurring
               the threatened penalties or punishments while the
               invalidity of the tax is being litigated in order to
               claim duress; and
               (5) in the absence of a statute   to the contrary, it is
               immaterial to the taxpayer’s right of repayment
               whether or not the tax wa;s.@aid’under protest.      ‘.

         Although it has been concluded that the.mere threat of becoming
delinquent on an illegal ad valorem tax is ineufficient to constitute duress
entitling a taxpayer to a refund, [Attorney General Opinion O-6282(1945)],
a different ,reeult haa been reached where refusal to pay the illegal part of



                                      p. 2463
The Honorable M. L. Brockette     page 4 (H-548)




the tax demanded would risk delinquency penalties on both the valid and
invalid portions of the assessment, [City of San Antonio v. Grayburg Oil Go.,
259 S. W. 985 (Tex. Civ. App. --San Antonio 1924, no writ)], or where
imminent foreclosure is feared, [Galveston County v. Galveston Gas
Company, 54 Tex. 287 (1881)].

         “In determining whether taxes have been voluntarily paid, inquiry
must be made into the intention of the parties at the time the money was
paid. ” Galveston City Company v. City of Galveston,     56 Tex. 486,492
(1882). If at that time there was a noncoerced willingness to pay on the part
of the taxpayer, with full knowledge of the facts, then the payment cannot
be said to have been involuntarily made, or made under compulsion, legal
or moral.

        Such inquiries involve disputed questions of fact which we are not
equipped to resolve.   But we note that coercions of an implied nature
have been held sufficient to warrant refunds, State v. Connecticut General
Life Insurance Co. ,    382 S. W. 2d 745 (Tex. 1964) ; Crow v. City of Corpus
Christi, 209 S. W. 2d 922 (Tex. 1948), and that the concept of duress has
expanded considerably since the time of its recognition as a .common law
doctrine.  21 Tex. Jur. 2d, Duress and Coercion, $2.       See also Attorney
General Opinion WW-736 (1959).

         Your fourth question concern6 whether an exemption may be claimed
at the time the taxpayer tenders payment on delinquent taxes, assuming the
tender is made after January 31st of the year following the year in which
taxes were due.

        If property is exempt, it is not subject to tax. The attempted exac-
tion or collection of an unconstitutional tax is illegal. National Biscuit
Company v. State, supra.     It follows that a demand for ad valorem taxes
on exempt property by a school district with no right to exact them can be
resjsted at any time on grounds of illegality.   Attorney General Opinion
H-309 (1974).                                                       a

                                SUMMARY

                   While a political rubdivision may choose a
               date for administrative purposes by which a person


                                     pa 2464
.   ‘. l _




        The Honorable M. L. Brockette   page 5   (H-548)




                      is to claim a homestead exemption under article 8,
                      section l-b of the Texas Constitution, failure to
                      claim the exemption prior to such a date does not
                      nullify the exemption.

                          Persons must be 65 years of age on or before
                      January 1 of the ‘tax year in order to qualify for
                      the exemption.

                         Whether a school district must refund tax over-
                      payments depends on the facts of each case.

                          An article 8, section l-b exemption remains valid
                      at the time of payment of taxee.

                                                      Very truly yours,




                                                      Attorney General of Texas

        APPROVED:




        DAVID M. KENDALL,     First Assistant




        C. ROBERT HEATH,     Chairman
        Opinion Committee

        lg




                                            p. 2465
