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




                                         -37-
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).


                                          -38-
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.




                                          -39-
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.



                                              -4o-
. .       ,

      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.
                     -+-
         _,
,.   .        ,,.-

         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
