.    .




                      OFFICE      OF THE      ATTORNEY           GENERAL           OF TEXAS
                                                    AUSTIN




    Honorable   Joe Reeder,             Jr.
    County Attorney
    Knoz county
    Benjamin, Texas
    Dear Sir:                                             Opinion No. 0-;rOy
                                                          Re:     18 property        owned and used
                                                                 sxoluelvely by
                                                                 Leroy Teegue P


                  We are In receipt     of your                 letter
    whloh you request      the opinion     of th
    questlon.      Upon our request     ror add
    un that    the local   post was not in
    that    It had been granted     a char
    which you enclosed.        You furthe




                 ~~,Sek.,tl~'29i          Art.    YIXI    0r .our State    Constitution              allows
    the 'LegisIytulv,          by general         lawa,    to exempt    rrom taxation               “lnstltu-
    tlons    of puirely      ptiblic      charity".        The Legislature            ln accordance with
    this   sectlon\ga6sed           article        7150   V.A.C.S.,          and   we quote   the     per-
    tinent    parts    of sucil statute:

                            "The following          property         shall     be exempt
                   from     taxation,    to      wit:
Honoreble         Joe   Reeder,       Jr.    - Page     2



                            “Seotlon     7. IZlbllo          charities.--All            buildings
                   belongl.lg       to institutions            of purely       public      oharlty,
                   together       with the lende           belonging         to and oooupled
                  by such institutions                not leased         or otherwire         used
                  with a view to profit,                  unless      auoh rents       end profita
                  and all       money8 and credits               are appropriated            by such
                   institutions        solely       to austaln          suoh lnatItutlons            and
                  ror the benefit           of the slok end dleabled                   members and
                  their      famllles      end the burial             of the seme,         or for
                  the’ malntenanoe           of persons         when unable         to provide         for
                  thamselve       e , whether       suoh persons           are members of such
                  In’stltutlone        or not.          An .lnstltutlon          of purely        pub110
                  charity        under   this     article        1s one whloh dispenses                lta
                  aid to Its members and others                       in slokness        or distress,
                  or at death,         without        regard       to poverty       or rlohes        of
                 .the reoiplent,          also     when the funds,             property       and
                  assets       of such institutions               are pleoed        and bound by
                  its     laws to relieve,            aid and administer              in any way
                  to the relief          of its members when in want,                      sickness
                  and distress,         and     provide       homes      for   its    helpleee       and
                  dependent        members and to educate                  end maintain         the
                  orphans       of Its     deceased        members or other            persons.        Id.”

                 The purpose         for    which   the national      patriotic              society      was
formed      la   set out In         Title     36 U.S.C.A.,    Section      A3:

                          “43.    The purpose      of this     corporation      shall
                 be : To uphold        and defand     the Constitution          of the
                 United    States     of Amerioa;     to promote        peace   and
                 good will      among the peoples         of the United        States
                 and all     the nations      of the earth;        to preserve        the
                 memories      and Incidents      of the two ‘iiorld Nars iought
                 to uphold      democracy;     to cement       the ties     and comrade-
                 ship born of servlcel           and to conseorate          the efforts
                 of its    members to mutual         helpfulness        and eervlce       to
                 their    county.      As amended     Oct.    29, 1%2,        c. 633, 1,
                 56 stat.      1012.”

           \Ie have been furnished              a copy of the national       ounstitution
and   by-laws  of the Amerioan          La&ion and the 1945-1946 oonstltutlon
and   by-laws  of the Jmsrican          Legion,    Depsrtment     of Texas,   and rind no
language  altering      in any way the purposes            of the American     Legion      as
set out In its     national       charter.       The charter    of the local     post     con-
tains  the following        lanp,ua&e:
Honorable     Joe   Reeder,       Jr.   - Yoga      3



                      “By the eooeptance             of this    Charter,         the
             aald Post aoknowledges                lrrevooeble        jurlsdlotion
             end deolares         ltaelr     to be in all         things       aubjeot
             to the Constitution             of the Amerloan            Legion      and
             of the Department             of Texas,       and the rulea,           regu-
             latlona,      orders       and lawa promulgated              in pursuance
             thereof;      and rurther         the said Feat’ pledges                Itself
             throu&h     its   members,        to uphold,       protect       and defend
             the Conatltution            of the United         States      and the
             principles       of true       Americanism,        for the common
             welfare     of the 11~1~            and In solemn          commemoration
             of those      who died that           liberty     might not pariah
             nom the Earth.”

               In Opinion       lrlo. 0-747,      dated    Juna. 2, 1939,    this   Department
considered       the question        of liability        ror franchise     tares   of Amerloan
Legion     Corporetlons       to be organized           under    Texas Lswa, the appllcatlons
for ohertere        oontalnlq        the following         “typloal”   purpose    provisions   :

                      “It shall      have all    the rights,     powers    and
             privilegea,      granted      to and oonferred      upon oorpora-
             tions      by provision       of Subdivision    2, .“.rtlole     1302,
             Chapter      1, Title      32, of the Revised       Civil    Statutes
             of the State         of Taxes,    which rends     in hsec verba:

                     lVITlle support     of any benevolent,                 oharltable,
             educational        or missionary     undertokiw,*               and partlcu-
             larly    lncludlw,      the rollowing:

                     “‘(a)       To preserve         and strengthen             oomradeshlp
             among its        members;        to perpetuate            the memory end
             history       of our dead;          to support          end maintain
             education        In the moral,            intellectual           and phyaloal
             development          of those       who served          in,     or who may
             serve     in, the ;\rmy , Navy, Xarlne                     Corns or Coaot
             Guard of tha United                States       of America,         in any
             foretin      war,     lnaurreotion           or axpedltlon,             whloh
             service       shall      be aovarned          by the Issuance             of a
             campaign        badge by the Government                   of the United
             States      of ,\merica;        and to malntuin               true    allegiance
             to the Government              of the United            :,:tetes    of America,
             and fidelity           to its      Constitution           and Lowa; to
             fos tsr true         pa trlotlam;         and to malntol~i            and extend
             the Institution             of ;Lmerlcan          freedom:
Honorable           Joe   Reader,       Jr,.   - Page     4



                             “‘(b)     To act aa a charitable              and benevolent
                    organization          for the purpose           of promoting      the
                    welfare,       alleviating         the suffering,         and assisting
                    and aiding         thoee     who have served,          or may .eerve,
                    with the military             foroaa     of the United       Statee,‘of
                    America       In foreign        lands,    their     wldowe,    orphana
                    an4 dependents            and relations.        111

The writer    of the opinion      conoluded    that  Amerloan    Legion      Corporations
were exempt    fron payment     of the franohlae       tax by r’eason      of Art.     7094,
V.A. C.S. which exempta’ from euch tax oorporations              organize4       Y’or
strictly   educational    purposes,      or ror purely    publla    aharlty.     *I

                    It would seem that’ the             tirporations           organized        under       the
“typical*           purpose     oharter      proviolons         just    eet out satisfy             all     the
requirements              of such oorporotlona             being     purely      public      oharitiea..,         Even
though      the       national     charter       of the Amerloan            Legion,       read    in oonneotion
with      the       oharter     of the local         post,     does not present              such a olear-out
case,     the       authorltlea       4laouesed       below lead          ua to ooncluds            that      the
local     post        la a public       charity,      assuming        that     the local        post      is con-
ducting       its       affairs    in accordanoe          wfth :the charter             provfsione.

            In Powera     v. Flret     National                   Bank of Oorslcana,             137 S. iv. (24)
639, 842,   affirmed    in   138   Tex,  ‘604,                 161 S. Wol. (24) 273,            Judge Alexander
defines   a publio   charity     aa followsr

                            “A public       charity      or trus~t la one for the
                    benefit      of the public         at large      or .aome substantial
                    and indefinite         portion       of it.      Charitable       purpose8
                    include      (a), the relief’        of poverty;       (b) the ,advance-
                    ment of education;             (c) the advancarnent           of religion;
                    (4) the promotion            of health;       (a) governmental          or
                    munloipal       purposes;       and    (i)  other    purposes      the
                    aoconpllshment         of which la benefloill               to the commun-
                              Restatement        of the Law ci Trusts,             p. 1140,     Sec.
                    :%:     10 Amer       Jur,     621; 14 C.J.S.,         Charities,       p. 439,~
                    12;‘Soott       On’Truata.,       1972; Perry      on Trusts       dc Trus-
                    tees,     Vol. 2, p. 1184.”

           In the case of Conleg v. Daughters                  or the Republic,          -_106 Tex.
                                                                                                ..
80, 156 S.b.   197,     the court    deals     wlth    a corporation         organlzea      ror tna
declared purpose     of perpetuating         the memory and aplrlt              of the men who
aohleved Texaa’a      independenos,       and to encourage          historical        reaearah
into the early    history     of Texas     , and    promote    the    celebration        of
Honorable       Joe    Reedar,       Jr.   - Page      5


Indapendanoa       Day of the Texas Republic,             and ereot      monuments    upon
plaoaa     made historic      in the war for Texas’s             Independence.       The oourt
held that      the society     was properly       incorporate4        aa an na4uoational
undertaking”      within    the second      subdivision        of Artlole      1121, Revised
Ststutes’,    which wording       Is Identical       with    that    of Section     2 of Artlcla
1302, Vernon’s       Annotated      Civil  Stotutes.

                The    Court   in the        Conlay      Case,     supra,     explains           the    tarm
“e4uoationala          as r0ii0w3:

                         “The purpose          of this      corporation            Is clearly
                 ‘educational’.            Khatavar       educatas         is within         the
                meaning       of ‘educational           un4ertnkin.g’.               Yduoatlon
                in the sense          as used in the statute                   inoludaa:
                 ‘In its      broadest       sense,     . . . not merely               the in-
                struction        raoeivad       at school        or collage,           but the
                whole      course     of training,          moral,       intelleotual           and
                physioal;        la not limited           to the ordinary              inatruc-
                tion     of the child         in tha’prsuits               of literature.
                It comprehends           a proper       attention          to the moral
                and religious           sentiments        of the child.               And it is
                sometimes        used aa avnonymoua             with       “learning”.’
                14 cyc. p. 1230. The sentiment                         of regard         For
                the memory of those              who gave their              lives     for the
                blessings        of this      great     state      stimulates          patriotism,
                and la in the highest                sense     educational.              The facts
                to be preserved            furnish      the means of the beat                   aduca-
                tion    for the VOUM man and woman of this                             state.
                The purpose         ii 1a;dable         in its       influence         upon the
                present      panerotion;          it is laudable,              educational
                and benevolent           for the future            citizens.”          (amphails
                auppliad)

               Since     the purpose       olause    contained       in the national          charter
of the Amarioan          Legion   shows vary       clearly      that     the corporation         is an
“educational       Institution”        and that      the oorporatlon         is not formed          for   .,
private    profit     or gain,     it musti be held          that    the local      post    ie a
public    aharlty.         If an institution         is devoted        to publio      eduastion
without    private       gain   It la an institution            of public      charity.         Southern
Methodist     University        v. Clayton,       142 Tax. 179, 176 S.W. (24) 749, 750;
see also     Fowsrs      v. First    National      Dank or Corslcana,            138 Tax. 604, 161
S.P:. (24) 273, 280, and the opinion                   of the Court of Civil             Appaala      in
the same case,        recorded     in 137 Sill.        (24) 839:                                         ‘b

              As additional            authority        for holding          the        local    post    to     be a
public    charity,    wa cite          the case        of Dodanheimer              v.     Confederate          Memorial
.
        Honorable      Joe    Reader,         Jr.   - Page    6



        Association,    68 Fed.   (2d),    507, certiorari       denied,      292 U.S. 629, 54
        Supreme Court,    643, 78 Law Ed. 1483.            The court     held    the Association
        to be a publio    charity    because    the court     found it was lnoorporated
        for the iollowlng     pur~osaa   :
    .
                                ”            to erect       and maintain            a Confederate
                       hfeaor1ti1’I;lstituta            , and there          to col&ect,          arrange
                       and preserve            statues,       portraits,          photographs,          and
                       hlstorlcal          data relating           to the Southern               Confederacy,
                       calculate4          to enable        future       historians          to obtain       suoh
                       reliable        facts      and data as will              asslst       them In
                       writing       fair,       aocurate       and lmpartia~            history       of, said
                       war and of the South,                  the said         association          being    eduoa-
                       tional,       patriot10          and historical            at,all       times.”

                        Although     we have decided
                                                  ._          that. .__.
                                                                       the local.       post
                                                                                          .     is a purely
        public      charity,     the use to Whlon tha tmllalng                   18 put posse         a more
        difficult question.              The rule     la well      settled       that    the use of a
        building,        avan though      the lnstltut$on          be one of *purely              public     charl-
             ” must be for exclusively              charitable         purposae.          B.P.O.E.       Lodge v.
        ift;    of Houston,        44 S.W. (26) 488.            Then quaat&Tn         of axclualve         use for
        such purpose         la entlraly’ona        of fact      and you have not stated,                  and we
        do not know, the extent              of the use ~of the two pool                 tables      and two
        domino tables.           We are inclined         to believe         that    an incidental,
        occasional         or aporadlc      uaa of these        amusements         by the members on
        meeting      nights    and similar       ocoasions       would not take away the ad
        valoram      tax exemption.          However,      If ‘the building           le used as a social
        club by the members            of the local        post,     the rule       announce4        In the case
        just    cited     would apply,       and the building            and grounds         would not be tax
        exempt.
                       Ve trust         the    foregoing       discussion         fully     answers       the    question
        asked.
                                                                         Yours     Vary     truly

                                                                  AlTORiiZY GENZRiLlL.,OF !?XXAS
