                     April 1, 1960

Mr. Weldon Holcomb            Opinion No. WW- E23
Criminal District Attorney
Tyler, Texas                  Re:    Exemption from ad
                                     valorem taxation of
                                     properties of Cald-
                                     well Schools, Inc.,
                                     under Article 7150,
                                     Vernon's Civil Stat-
Dear Mr. Holcomb:                    utes.
      We are in receipt of your letter in which you re-
quest an opinion of this Department as to whether or
not the following properties owned by Caldwell Schools,
Inc. are exempt from ad valorem taxation under the laws
of the State of Texas.
          "No. l-being: West part of Lot 4,
     Block 80, and Lot 10, Block 184, City of
     Tyler, located at 419 South Bonner Street.
     This tract is used as the principal site
     of Caldwell Play School for pre-school chil-
     dren. It is in the nature of a kindergarten
     and is not officially connected with the
     Tyler Public Schools. Each child pays a
     fee, the principal expenses are paid by the
     City of Tyler and Caldwell Schools, Inc.
     There are no profits, It is operated as a
     benevolent public service. The property is
     used for no other purpose.
          "No. 2-being: The block of land located
     at 727 South Chilton known as the Old Chilton
     Home. On this property are two principal
     buildings, residences which have been convert-
     ed to school purposes. The property is used
     exclusively for the Caldwell Play School for
     certain activities which can not be carried
     on on the first tract referred to above.
           "No. 3-being: 78 acres of land in the
      A. G. Barrett and Harris Fenton Surveys, Smith
      County. This property is used exclusively as
Mr. Weldon Holcomb, page 2 (WW-823)


      a children's zoo, and for F,utureFarmers As-
      sociation activities in the raising of their
      cattle and pigs. The F,ut,ureFarmers Associa-
      tion projects are under public school super-
      vision; the Zoo, charitable in purpose. There
      is no admission fee, no profit. The entire
      expense is paid by Caldwell Schools, Inc. Any
      person may be admitted to the Zoo, but It is
      designed principally for children."
      Your request also informs us that the Caldwell
School, Inc. is a charitable corporation, organized under
the laws of the State of Texas and that the three above
described properties belong to this corporation.
      Subsequent to your request, the attorneys for Cald-
well Schools, Inc., advised us of the following facts
concerning the school:
          "Although it is for pre-school age chil-
      drenin the nature of a kindergarten, (a) it
      does teach the children a limited amount of
      writing, such as reading and writing their names,
      (b) it teaches art, (c) it teaches them how to
      study, (d) it teaches them things that educators
      agree may be taught to children in this age group,
      so that they will be better prepared for the first
      grade work.
          "H~i.gh
                school students, as part of their high
      school work, take practice teaching courses in
      the school, that is, they practice with the in-
      struction of the children as a I?
                                      art of their
      accredited high school courses.
      Section 2 of Article VIII of the State Constitution
provides in part:
          II
           . . .the Legislature may, by general laws,
      exempt from taxation. . .a11 buildings used ex-
      clusively and owned by persons or associations
      of persons for school purposes . . . institutions
      of purely public charity; . . .'
      The Legislature, pursuant to Section 2, Article
VIII, enacted Article 7150, Vernon's Civil Statutes,
which provides in part:
Mr. Weldon Holcomb, page 3 (WW-&3)


           "The following property shall be exempt
      from taxation, to-wit:
          "1 . Schools and Churches . . . all such
     buildings used exclusively and owned by per-
     sons or associations of persons for school
     purposes; . . .II
           "7. Public charities. - All buildings
      belonging to institutions of purely public
      charity, together with the lands belonging
      to and occupied by such institutions not
      leased or otherwise used with a view to prof-
      it, unless such rents and profits and all
      moneys and credits are appropriated by such
      institutions solely to sustain such institu-
      tions and for the benefit of the sick and dis-
      abled members and their families and the burial
      of the same, or for the maintenance of persons
      when unable to provide for themselves, whether
      such persons are members of such institutions
      or not. An institution of purely public char-
      ity under this article is one which dispenses
      its aid to its members and others in sickness
      or distress, or at death, without regard to
      poverty or riches of the recipient, also when
      the funds, property, and assets of such insti-
      tutions are placed and bound by its laws to re-
      lieve, aid and administer in any way to the re-
      lief of its members when in want, sickness and
      distress, and provide homes for its helpless and
      dependent members and to educate and maintain the
      orphans of its deceased members or other persons."
      The Constitutional provisions quoted above are per-
missive and not mandatory or self-enacting, and consequent-
ly a charity to be exempt must fall within the terms of
Article 7150, Vernon's Civil Statutes. Section 7 of Ar-
ticle 7150, quoted above, specifically defines the kinds'
of public charities that are to be exempted and Caldwell
Schools, Inc., although eleemosynary in nature is not
a "charitable corporation" as defined by this section.
      The properties in question, therefore, must come
within the requirements of Section 1 of Article 7150,
Vernon's Civil Statutes, in order to be exempt from ad
valorem taxation.
Kr. Weldon Holsomb, page 4 (~~-823)


      Judge Robertson, in the case of Cassiano v. Ursu-
line Academy, 64 Tex. 673, expressed the policy of the
State regarding this exemption as'follows:
           "It has been the policy of the state since
      1849 to encourage educational enterprises by
      exempting them from any share of the burdens
      of government. . . .
           "The education of the masses is now recog-
      nized as a function of state government. Those
      who from charitable considerations, to forward
      sectarian views, or for private profit, have or-
      ganized or conducted schools, have assisted the
      state in the performance of a duty it owes to its
      citizens, which cannot be too thoroughly perform-
      ed, and which the state has never assumed that it
      had either the means or the machinery of doing
      sufficiently well without 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."
      The Cassiano case further established that the exemp-
tion was to include the land on which the school buildings
stand and that private educational institutions were not to
be discriminated against in granting such an exemption.
       Chief Justice Hickman in Smith v. Feather, 234 S.W.
2d 418, cites Cassiano v. Ursuline Academy, supra, and
comments on the policy behind the exemption as follows:
           "Private schools were in greater propor-
      tion then than they are today, and the theory
      back of their exemption was that they were ren-
      dering a distinct public service which under our
      theory of government was recognized as a function
      of the state."
      The buildings involved in Smith v. Feather, supra, were
used exclusively for operation for profit of a schmffer-
ing courses in interior architecture and decoration and com-
mercial art. It was argued that this was not a school with-
in the purview of the Constitution and statute. The Court
writes on this point as follows:
           "We know of no rule or decision which
      requires or even would authorize a holding
Mr. Weldon Holcomb, page 5 (w-823)


         that this institution was not a school within
         the terms of the statute."

      In Harris v. City of Fort Worth, 180 S.W. 2d 131, the
Court says:
           "The Constitution and the Statutes of
      this State evince a liberality in the exemp-
      tion from taxation of property for educational
      or religious purposes. ~ . .
      In view of the constitutional and statutory provisions
and the authorities referred to above, it is our opinion that
tracts Nos. 1 and 2 are exempt from taxation but that tract
No. 3 is not exempt as it does not come within the purview of
Article 7150.
                          SUMMARY
           Tracts Nos. 1 and 2 of Caldwell Schools,
           Inc. are entitled to exemption from ad
           valorem taxation under Article 7150, Ver-
           non's Civil Statute, as properties used
           for "school purposes;" tract No. 3 is
           not entitled to exemption under Article
           7150, Vernon's Civil Statutes.

                           Yours very truly,
                           WILL WILSON
                           Attorney General of Texas



                               Robert A. Rowland
                               Assistant Attorney General
RAR:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Jack N. ,Price
John L. Estes
J. Arthur Sandlin
Bob Eric Shannon
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
