.    *

                                                           R-09




    Honorable Jim D. Bowmer          Opinion No. V-09
    County Attorney
    Bell County                      In Re:   Exemption rrom taxa-
    Belton, Texas                             tlon of certain
                                              property owned by the
                                              Episcopal Church at
                                              Belton, Texas, used
                                              as a dormitory ror
                                              Episcopal  girls at-
                                              tending LYaryHardin
                                              Baylor College.
    Dear Sir:
               You present for   the opinion of this department
    the question contained in    your letter  of December 20,19l+6,
    which is copied below for    a statement of the facts    upon
    which our opinion will be    based.   Your letter follows:
               "The tax assessor-collector of this county
         has asked me to obtain your opinion on the fol-
         lowing tax problem which has arisen.
                "The Episcopalian    Church Diocese for Texas
         owned and maintained a house In Belton, Texas,
         from about 1929 to about 1940, as a dormitory
         for Episcopalian     girls attending Uary Hardin
         Baylor College,     a Baptist college.     It is pre-
         sumed they paid their room and board in the
         same manner as if they had been residing         at
         the normal college-owned      dormitory.     The dorm-
         itory itself   was not an official     part of the
         school,    The school itself,    Its dormitories,
         etc.,   are tax exempt.     The Episoopalian    Church
         has not rendered this house for taxation,         and
         has recently    sold it.    The problem now arises
         as to its exemption from taxes during the
         years it was so used.
              We would great.ly     appreciate   your opinion
         as to the propriety  of    exempting this property
         from State and County     taxes when It was used
         for the sbove purposes,     both prior to and after
         the 1931 amendments to     Article   7150."
                                                               ,   ,




Honorable   Jim D. Bowmer - page 2


.’         (1) It appears from the admitted facts that
the Episcopal Church, Diocese of Texas, armed and main-
tained a house in Belton, Texas, from 1929 to about
1940, as a dormitory for Episcopal girls attending Mary
Hardin Baylor College,  a Baptist College;
                                                      (,.
           (2) The girls paid room and board in the
same manner as if they had been residing at the.,dormi-
tories owned and maintained by the College;
             (3) The dormitory   was in no way an official
part   of the College; and

           (4) The Episcopal Church did not render this
dormitory for taxation during the time it was so owned
and maintained.
          The question presented is the status of this
property for ad valorem taxes for the period of time it
was thus owned and maintained by the Episcopal Church;
that is, whether taxable or exempt.
               Certain types of property are exempt from tax-
ation by the express terms of the Constitutions,   - _ and this-
                                                             ~.
the Legislature       has no power to tax.   Lower Colorado Rl-
ver Authority .v. Chemical Bank & Trust Co.        (Supreme
Court) 190 S. W. (2d) 48.        Other kinds of property,   and
the property here in question is of that character,         may
be exempt from taxation by the Legislature        only by the
authority      conferred upon it under the Constitution    OS
this State.       Thi’s power is derived from Section 2 of Ar-’
title    VIII o$ the Constitution,     which reads in part as
roll&y:.    ‘7
              R. . . the legislature   may, by general
        laws, exempt from taxation    . . . all build-
        ings used exclusively    and owned by persons or
       1assoclat   ons 0
        and the necessary furniture    of all schools
       and property used ,exclusively    and reasonably
       necessary in conducting any association       en-
       gaged in promoting the religious,      education-
       al and physical    development of boys, girls,
       young men or young women operating under a
       State or National organization     of like oharao-
        ter;.   . .”
Honorable   Jim I?. Boumer, pn,;e :!


          Pursuant to the authority  thus conferred
upon the Legislature   by Sec. 2 of Article  VIII of
the Constltutlon   OS quoted above, the Legislature
enprted Art. 71501 R. C. S., in language in part as
r0ii0ws:

          “All public colleges,    public academies,
      and all endovmen: funds of lnst!tutions           of
      learning and religion     not used with a vlev~
      to profit,   snd vhen the same are invested
       In bonds or mortgages, and all such e---e bulld-
      lngs used exclusively     am%iii%-by      p em
                                                   --- ons
      or assyciatlons   of persons for school pur-
      poses ; .-

           If the dormitory here in question is exempt
from ad valorem taxes, it must be by virtue of the
terms of Art. 7150 quoted above,          The exemptlon from
taxation of.dornltcries       ovned and maintained by the
College proper Is not questioned.          But does the same
rule apply to the dormitory here In question ovned
by the Episcopal Church, a religious         organization,
that has no official      connection with the College? We
have no dlfficuity     in classifying     the Episcopal
Church as an “association       of persons,“. but our dlf-
rimtg    arises    in determlnlng whether or not the
dormltory 1s used “ex’cluslvely       for school purposes,”
and whether or not under the terms of Art. 7150,
such building nust be used and maintained by the
College as contra distlngulshed        from ,owned and maln-
talned by a separate religious        or6anlzatlon   which
has no official     connection with the College.        A
careful search of the opinions of this department
and decisions    of our appellate     courts fail t,o reveal
that this identical     question has been passed upon by
this departKent cr the courts of this State.            We
think It may be correctly       said that the young ladles
occupying this Episcopal Church dormitory constitute
as much a part of the student ~body of the College          as
do the young ladies occupying the dormitories           ovned
and maintained by the College.         If one is used for
school purposes, we see no plausible         reason why the
other might not likewise be so considered.
Honorable   Jim D. Bowmer, page 4


          Courts of other jurisdictions     have had occa-
sion to consider what constitutes     "school purposes"
under certain tax exemption statutes      similar to the
one we have in Art. 7150, and we take occasion here
to note some of these decisions.      In the case of In
Re: Syracuse.Universitg,    212 N. Y. S. 253, (Supreme
Court, Appellate  Division,  State of New York) the
Court made a comprehensive stateyent as to the mean-
ing of the term 'school purposes      in the following
language:
           "Dormitories,     dining halls,    hospitals,
     training schools for nurses and stores for
     supplies,     and athletic    fields   used by the
     students for athletic        games and exercises,
     and not as sources of institutional            Income,
     are essential      parts of universities       and
     colleges:     for education contemplates,        not
     only the mental and moral, but the physical
     training and welfare,        and the proper main-
     tenance of those In attendance upon the
     institution.       People ex rel. Board of Trus-~
     tees of Mt. Pleasant Academy v. Mez er et
     al.,   98 App. Div. 237, go N.Y.S. 48 8 , af-
     firmed 181 N.Y. 511, 73 N.E. 1130; State
     v. Carleton College,        154 Mlnn. 280, 191
     N.W; 400; People ex rel. Adelphl College
     v. Wells et al.,       97 Ap     Div. 312, 8g
     N.Y.S. 957, affirmed 1t;'0 N.Y. 534, 72 N.E.
     1147.     It does not appear that any profit
     Is derived by the university          from amounts
     paid by students for residencas,           food, or
     hospital     care.
            "So, too, the university   farm, used for
      demonstration and instruction    purposes,   is
      an appropriate   part of the university    equlp-
      ment, and comes within the same general
     category   hereinbefore  mentioned.
           "The occupation by the chancellor    of
     the official   residence  furnished him by the
     university   is clearly  an educational pur-‘
     pose, and makes that property exempt from
     taxation under the statute.      In re Mary
     Immaculate School of Eagle Park, 188 App.
     Div. 5, 175 N.Y.S. 701, and cases cited."
Honorable   Jim D. Bowmer, page 5


            In the case of State v. Fisk University, 10
S.W. 284,   (Supreme Court of Tennessee) the Court said:
            “. To
               .  give
                    I.. the language. of the constitu-
   ’ tlon -tne strict_ . construction
                                  -__    contended- for
                                                     _.
     by tne complainants would lead to excluding
     every portion of the property not actually
     used in education.       It would Include only
     school buildings,      desks, books, etc.,     Andy ‘.
     would exclude ornamental promenade grounds,
     play-grounds,      and gymnasium buildings,     and
     infirmary or hospital      buildings   for the
     pupils.      The agreed case falls    to show that
     any of this property is used for profit,           or
    ~for purposes not embraced within the duties
     of the defendant, as an institution         of
     learning.
            “There are many adjudged cases from
     different    states,    and much in the textbooks,
     which are not easily to be reconciled,grow-
     lng out of exemptions somevhat similar to
     those under consideration       here.    It Is not
     our aim at this time to discuss these cases,
     nor to define nor limit what uses may or
     may not be within the exemptions referred
     to.    We only decide that the intention        of
     the legislature      must govern in ascertaln-
     in& the extent of such exemptions, and that
     In arriving     at such Intention     the same
     strictness     of construction   will not be in-
     dulged where the exemption is to rellglous,
     scientific,     literary,   and educational    ln-
     stitutlons    that will be applied in con-
     sidering    exemptions to corporations      created
     and operating for private gain or profit....”
           A more recent case by the Supreme Court of
Tennessee than the one first   noted is the case of City
of Memphis v. Alpha Beta Welfare Association,      126 S.W.
(2d) 323,  in which we  find a statement  of facts   and a
pronouncement of the law which we deem-helpful      in con-
sideration  of the problem here considered,   as follows:
           “The Alpha Beta Chapter of the Phi Chi
     Medical Fraternity    in the Medical School of
     the University   of Tennessee, at Memphis, is
     unincorporated.    Its membership is made up
     of the alumni of the Phi Chi Fraternity    re-
Eonorable   Jim D. Bowmer, page 6


     siding in the City of Memphis, who are in
     good standing, and the active members of
     the chapter are the undergraduates of the
     Medical School.
            "The specific  purpose of the Phi Chl
     Medical Fraternity    Is to promote the wel-
     fare of medical students morally and sci-
     entifically.     For admission to the active
     chapter, a student must be desirable     from
     a scholastic    and moral standpoint.   No one
     % eligible   for membership In the active
     chapter except matrlculants     in the Unlver-
     slty of Tennessee Medical Department.
            "Prior to the organization    of the As-,
     soclatlon,    in 1950, the student members of
     the Alpha Beta Chapter of the Phi Chi Fra-
     ternity were living     in boarding houses,
     scattered    around over the city,   the Univer-
     sity being without dormitories.       As the re-'
     sult of the appeal of the then undergradu-
     ate members of the Fraternity,     a number of
     the leading doctors of Memphis interested
     themselves In organizing      the Welfare Asso-
     clationln     order that sui'table property
     might .be acquired and the student members
     of the Fraternity    housed under one roof.
     This was considered very essential       to the
     welfare of these members and to the success-
     ful carrying out of the purposes of the
     Fraternity.
            "It appears that'about     fifty   students
     live In the house In question and each one
     pays $57.50~ per month, which covers board,
     lodging,   and Fraternity   dues.      They main-
     tain a mess, with which the Association
     has nothing to do.      Supervision     Is exer-
     cised by the Assoclaticn     over the physical
     condition   of the premise's and over the con-
     duct of the student residents.          A high
     standard of moral and ethical         conduct is
     demanded.
           "It is shown that the alumni of the
     Phi Chi Chapter have furnished the students
     with a considerable  number or‘books, the
     majority  of which are mcdLca1 Ln their
Honorable   Jim D. Bower,    page 7


     scope; but others are upon subjects  of
     general information and interest.   Addl-
     tlonal books are being added to this ll-
     brary from time to time.

            “No teaching staff is maintained by
     the Association    or by the Fraternity.   No
     classes of any kind are conducted on the
     premises.    However, other things of a
     cultural and educational     nature are relied
     on as entitllng~the    Association  to tax
     exemption.    . . .n
           “In the instant case, both the trial
     judge and the Court of Appeals have de-
     termined that the property in question is
     used exclusively   for educational purposes
     bnd tiith this finding we feel constrained
     to concur.. .I’
          In the case of Ward Seminary for .Young Ladies.
v. Mayor, et al.,  of Nashville,    167 S.W. 113, (Supreme
Court of Tennessee) the following     general statement vas
made as to what constitutes    “school purposes”:
             “The result of the whole case Is that
     ve hold the property of the complainant
     which is in reality      used in educational
     irork, such as the school buildings,      dormi-
     tories,    exercise   grounds and the usumd
     appropriate     equipment of this character of
     institution,      to be exempt from taxation..   .‘I
           In’tbe recent case of Harris v. City of Fort
Worth; 180 S.W.   (2d) 131,.Justlce Sharp of the Supreme
Cdurt, in approving what Mr. Justice Robertson said in
the early case of Cassiano v. Ursullne Academy, 64 Tex.
673, said:
           “It has been the policy   of the state
     since 1849 to encourage educational    egter-
     prises by exempting them from any share of
     the burdens of    overnvent.   Pasch. Dig.,
     arts. 5147, 514 8 , 7485, 7688. ., . .
            “The education of the masses      is now
     recognized   as a function of state      govern-
     ment.    Those  who, from charitable     considera-
     tions,   to forward sectarian   views,     or for
     prtvate profit,    have organized or     conducted
                                    .a
Honorable    Jim D. Bowtnsr, page 8


      schools,    have aszinked t'na ntek il? the
      performance of a duty it owes to its
      citizens    which cannot be too thoroughly
      performed, and vhich the state has never .
      assumed that it had either the means or
      the machinery of doing sufficiently      well
      wlthout private assistance.      The Ursuline
      Academy is performing its part in this
      branch of the public service,     and it
      should rather be encouraged by aids, than'
      impaired In Its usefulness     by a tax upon
      Its pitiful    revenues."
            We do not. think that Justice Sharp meant to
abrogate the rule of stric,t construction     against tax
exemptions which has always prevailed     In this State,
but merely intended the above statement to evidence
the liberality   of the Legislature   In extending the
exemptions authorized    in Art. 7150.
              We think Texas will ccmpare favorably with
any state in the Union in the number, efficiency,              and
value of educational         institutions     owned and malntalned'~
by religious      organizations.        Such schools and colleges
have been fostered        and built up, and it has been the
policy     of our State to encourage them. It is a matter
of common kn.owledge that there has been established              and
maintained for the laudable purpose of better protect-
ing and conserving        the religious,     moral, and physical
well being of young men and young women attending varl-
ous educational       Institutions      In this State, dormitories,
which have always been considered            exempt from taxation.
The Catholic Church owns and maintains at the University
of Texas NewmanHall, a Catholic dormitory for girls of
that faith attending the University             of Texas; the Scot-
tish Rite, a Masonlc organization,             owns and maintains
at the University       of Texas a dormitory for girls,        al-
though not exclusively         for girls    of Masonic family af-
filiation,     but primarily      for that purpose; and the
Methodist Church ovns and maintains Carothers Dormitory
at the University       of Texas and at the Texas College for
Women at Denton, Texas, a dormitory fcr young ladies of
the Methodist Church, and as far as we know there has
not been any attempt by the taxing aufhoritles              to la-    .
pose ad valorem taxes upon these various dormitories,
although they have no official            connection with the re-
spective     university    or college.      These dormitories   have
been thus owned and maintained for many years, and we
must assume at all times with the knowledge and approval
.   I.   ,




             Honorable   Jim D. Bowmer, $age 9


             of the Legislature  a.s to their tax exempt status.
             To now hold such dormitories    subject   to ad valorem
             taxes would in our view depart from what we believe
             to be the well established    and saluta?y policy    of
             this State.   We, tF.erefore,  put aside e.s lmmaterlal
             the fact that this dormitory is owned by the Epls-
             copal Church, which has no official     connection with
             Nary Hardln Baylor College.
                        It vi11 be observed that~ the language of
             Art. 71!iO; R. C. S., uses only the term “buildings”
             as comprehended within the exemption, but this need
             not give us concern because the courts have settled
             this question in the early case of Cassiano v. Ur-
             sullne Academy,.supra,  from which ws qrote as fol-
             lovs :
                        “The word bulldin     is a term as
                  broad as the wor7nK&.         House hRs been
                  construed to mean both the structure     and
                  the land on vhlch it stands.      Gerke v.
                  Purcell,  25 Ohio St., 227; Mullen v..
                  Commlrs.t 85 Pa.St.,    288; Trln;ty  Church
                  v. Boston, 118 Mass,, 164, and cases
                  cited in it.”
                        Therefore,  the ground upon which the build-
             ing is located and the building are both exempt under
             the Constitution   and s’tatutes of this State, but only
             so much grotid as is necessary for the intended and
             reasonable use of the building may be exempt.
                         In determining whether or not this dorml-
             tory, ovned, maintained R.nd operated by the Episcopal
             Church, Is used exclusively      for school ]:urposes wlth-
             in the limits of the Constitution       and ststutes   of
             this State, we are constrained       to follow what we con-
             ceive to be the most modern and reasonable construc-
             tion placed upon the term “school purposas” by our
             courts, and prefer the construction        that whatever
             fosters   the moral, splrltual,     and physical well being
             of the students is as much a “school purpose” as the
             actual academic instruction      vhlch the students re-
             celve.    We assume, as we think your opln:on request
             does, that this dormltciry is not owned, onerated and
             maintained by the Episcopal Church for profit,         but
             exclusively   for school p-drposes consistent      vith the
             aim? we h?,ve expressed above as to what constitutes
             such a purpose.     We therefore    hold that this dorml-
                                                            .   ,




Honorable   Jim D. Bowmer,, page10


tory Is exempt from ad valorem taxes during the time It
was owned, maintained and operated by the Episcopal
Church.



            A dormitory owned, maintained and operated
    'by the Episcopal Church, for use by the.~glrls of
     Episcopal families    attending Mary Hardin Baylor
     College at Belton, Texas, is exempt from ad
     valorem taxes, and'thls     notwithstanding   it has
     no other ofzicial    connection with the College,
     and comes vithin the purvjev of the ConstitutJon,
     Section 2 af Article     VIII, and the statutes,
     Article   7150, R. C. S., of this State as a bulld-
     ing used exclusively     for school purposes.
                               Very truly   yours

                         ATTORNEYGENERALOF TEXAS

                          BY




LPL:AMM
                          APPROVEDJANUARY27. 1947


                          ATTORNEYGENERAL
APPROVED
OPINION
COMMITTEE
By O.~S.
  Chairman
