            THEATTORNEY                        GENERAL
                           oFTEXA~




Honorable   Robert S. Calvert            opinion    NO.     c-725
Comptroller    of Public Accounts
Capitol   Station                        Re:     Whether  a family rela-
Austin,   Texas                                  tlonshlp  is necessary
                                                 Inorder   to claim a
                                                 homestead exemption from
                                                 the ad valoren     tax, and
Dear Mr. Calvert:                                related  question.

        You requested   an opinion    from this     office    upon the
following    questions:

                   “(1)   Is a family relationship
             necessary  to have available   to a pro-
             perty owner the exemption from Ad
             Valoren Taxes?”

        Further, if the answer to question  (1) is in th.e affirma-
tive,    you have requested us to answer the following   question:

                     “(2)       A husband and wife own a
             home and are allowed        the homestead
             exemption       from State Ad Valoren Tax.
             Neither      has any kin.     Later they divorce,
             with the husband receiving         title   to the
             hone in the settlement         and he continues
             to reside      alone in the home.       May he
             legally      continue   to receive   the homestead
             exemption from State Ad Valorem Tax year
             after    year?”

       The pertinent     Texas constitutional       provisions   which govern
the homestead exemption are Article             XVI, Section   50; Article
XVI, Section       51; Article   VIII,   Sections   l-a and l-b.    The con-
trolling     statutory   provision     is Article   7048a, Section    2, Vernon’s
Civil    Statutes.

     Article   XVI, Section      50 of   the Texas     Constitution      provides,
In part,   as follows :

                   “The homestead of      a family shall be,
             and Is hereby protected       from forced  sale,.        . ,”

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Hon. Robert       S.   Calvert,      Page 2 (C-725)



      Article    XVI, Section          51, which describes  the kind          and
character     of the property          of which the homestead shall           con-
slst,   reads as follows:

                      “The homestead,        not in a town or
               city shall      consist   of not more than two
               hundred acres of land, which may be In
               one or more parcels,          with the inprove-
               nents thereon;       the homestead In a city
               town or village,        shall    consist  of lot,
               or lots,    not to exceed In value five
               thousand dollars,        at the time of their
               designation      as the homestead,       without
               reference     to the value of any improve-
               ments thereon;       provided,      that the same
               shall be used for the purpose of a home,
               or as a place to exercise            the calling     or
               business    of the head of a family;           prc.lf~ded
               also,   that any temporary renting            OT the
               homestead shall not chrge             the chamter        of
               the sane, when no other homestead has been
               acquired e ”

         Article  VIII,   Section       l-a   of   the Texas   Constitution     prc-
vldes,     in part,   as. follows:

                      “From and after January 1, 1951, no
               State ad valoren       tax shall be levied        upon
               any property      within this State for general
               revenue purposes.         From and after January
               1, 1951, the several        counties    of the State
               are authorized       to levy ad valorem taxes
               upon all property       within   their respective
               boundaries     for county purposes         except   the
               first   Three Thousand Dollars         ($3,OCC) value
               of residential      homesteads,     not to exceed
               thirty   cents (3%)      on each One Hundred Dollars
               $y,a;~;;;;;;~           In addition     to all other
                                              ” (Emphasis added
               throughout     unless othekwise      stated).

         Article   VIII,   Section     l-b    of   the Texas   Constitution     pro-
vides     as follows:

                     “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 purpose.”
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Hon. Robert     S. Calvert,   Page 3 (C-725)



     The statutory      enactment,   Article   7048a,   Section   2,   states:

                 “From and after       January 1, 1951,
              the
                several    counties    of the State be
           and they are hereby authorized         to levy,
           assess and collect       ad valoren   taxes
           upon all property       within  their  resnective
           boundaries    for county purposes,
           the first    Three Thousand Dollars
           value of FesidetitiaI



      Exemptions from taxation   are strictly   construed.   In the
case of City of Wichita Falls v. Cooper,      173 S.W.2d 777, (Tex.
Civ.App.  1943, error ref.)   the court stated at page 780:

                  “It Is the universal      rule in this
           state   that the Constitution       has definitely
           provided    for every form of exemption of
           property    from taxation;     that If an exenp-
           tlon Is so made it cannot be enlarged            upon
           either    by the Legislature     or by the courts.
           Some courts     have gone far enough to say
           that if there Is a reasonable          doubt as to
           the meaning of the Constitution           In matters
           of exemption,     the doubt will be resolved
           against    the exemption,    for exemptions      from
           taxation    are not favored by the Constitution
           nor by the Courts In their         construction.
             it    f Dal1        Cochran      (T      1 A        166
           S.Wy ?2, wriyrzhused);        J&ese~:cW~il~%
           121 T;?xl 94, 45 S.W.2d 130, 79 A.L.R, 983:


                  11     .Art.    8, Sect.  l-a (as amended in 1933)
           la lik&wise      specific    and self  enacting  to the
           extent    therein    stated.    There, $3,cxUof assessed
           taxable    value of the residencehomestead        Is
           exempt ,:fron all taxation         for all purposes’
           . . d .

     The exemption provided   for under Article    VIII, Sections
l-a and l-b is limited  to a residence    homestead and does hot
apply to the business  homestead.    Attorney   General Opinion
No. 0-1800 (1940).

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Hon. Robert     S.   Calvert,        Page 4 (C-725)



      A person claiming   the benefits of
                                       .~ the homestead exenp-
tions must prove that there is a familial     relatlonshlp    In
order to obtain   the benefits  of the exemption.     In Plough.
Inc. v. Moore, 56 S.W.2d 681, (Tex.Cir.App.      1933, error r(Ef.),
tne court states   at page 681:

                               In order to obtain      the benefits
              of the lx&&Ion,         the family relationship
              or status must exist       among those claiming
              the benefits     of the exemption.       This nec-
              essarily    presupposes    a condition    of depenm
              dence,   either    in law or fact,     by one or
              more members of the group upon the other
              as the head of the family.          Constitution,
              Art. 16, 850; Revised Statutes,          art.   3833;
              Rzao v. Green, 50 Tex. 483, ‘19% Howard v.
              Marshall    48 Tex. 471, 477; Whltehead v.
              Nickelson,    48 Tex. 517, 529.
                     II
                      . . , .
                     II     The mere fact   that the two
           plaintifiz’were      associated   together   . .               .
           did not entitle      then to have such pro-
           perty exempted from forced        sale either
           as a business     or residential     homestead
           In the absence of the existence         of the
           farnil-y relationship.      . . ,”

       In the often cited     case of Roco v. Green, su ra      the
general   rules    to follow  to determine  whether a Tp-I
                                                        anillal   B-
tionship   exists,    as contemplated   by law are as follows:

                     “1.        It   Is one of social      status,      not
                                of   mere contract.

                     “2.    Legal or moral obligation                 on the
                            head to support the other                 members.

                     "3.        Corresponding  state of dependence
                                on the part of the other members
                                of this support 0”

     In Bahm v.       Starcke,        89 Tex. 203,    34   S.W.      103 (I896),   at
page 105, Chief       Justice        Gaines states:

                     “The divorce    destroys  the particular
              family,   the existence     of which gave the
              right   of exemptions,     and hence destroys
              the right of homestead as to that family
              . . . . Section     50 -roof the Constitution-7
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         .     .




Hon. Robert    S.   Calvert,   Page 5 (C-725)




             exempts ‘the homestead of a family’,     and
             the general   rule is ‘no fanil
             stead’.        The worddiaz’o?-
             family’  ha;e a well-defined    meaning, and
             are not open to a construction     which
             would Include    the homestead of a sinple
             oerson without a fanil~.”

      Based upon the language of the constitutional       provisions,
the statutory    enactment,    the case law and Attorney  General’s
Opinion No. 0-180C (1943),       we hold that a familial  relation-
ship must exist    In order for a property     owner to be entitled
to the residence     homestead exemption from ad valorem taxes
under Article    VIII,  Sections    l-a and l-b of the Texas
Constitution   and Section     2 of Article  7C48a.

       Since question (1) has been answered In the affirmative,
it becomes necessary,    pursuant to your request, to answer
question    (2).

       The cases of Bahn v. Starcke,    su ra; Tanton v. State
National   Bank, 125 Tex. 16 79 S.W h33          '(1935)Clack v.
w1111       189 S.W.2d 533 (4ex Clv,App.      1945 no writ
&erg            v. Hubbard, 326 S,W.2d’605     (Tei.Civ.App.
no writ hist.)      stand for the proposition    that a divorce
destroys   the h&nestead exemption and a single        person without
any dependents    is not entitled  to claim a homestead exemption.

     In accordance     with the foregoing    court decisions,    It Is
the opinion    of this office   that the familial   relationship    hav-
ing been dissolved    by divorce    and there being no minor children
or dependents,    the homestead exemption cannot be allowed.


                          SUMMARY
                          ---B-e-

                   A familial    relationship     Is necessary
      in order to obtain       a homestead exemption to
      the extent     provided   In Article    VIII,  Sections
      l-a and l-b of the Texas Constitution           and
      Section.,2   of Article    7048a, V.C.S.      Under the
      facts   presented,     the divorce    decree dissolved
      the homestead exemption and the property             owner
      should not be allowed       the exemption of the
      residential     homestead from ad valoren       taxation



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                                                              .   .




Hon. Robert     S.   Calvert,   Page 6 (C-725)



              to the extent provided     in Article   VIII
              Sections   l-a and l-b of the Texas Consti-
              tution   and Section  2 of Article    7o48a.
                                     Very    truly   yours,

                                     WAGGONER CARR
                                     Attorney General



                                     BYE
                                            'Terry Reed ~Goodman
                                            Assistant

TRG:ced

APPROVED:
OPINION COMMITTEE

W. V. Geppert,    Chairman
John Banks
Bill  Allen
Marietta    McGregor Payne
John Pettit

APPROVEDFOR THE ATTORNEYGENERAL
By: T. B. Wright




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