                        The Attorney              General of Texas
                                          ‘November        6,     1980
MARKWHITE
Attorney General   Honorable Charles Evans                            Opinion No. MW-265
                   Chairman, Committee on
                     Government Organization                          Re: Validity of taxing entities
                   House of Representatives                           granting permissive freezes on ad
                   Austin, Texas 78711                                valorem taxes for persons over the
                                                                      age of 65

                   Dear Representative   Evans:

                          In 1979, the Texas Legislature enacted the Property Tax Code. Acts
                   1979, 66th Leg., ch. 841, as amended by Acts 1979, 66th Leg., ch. 302, art. 11,
                   Sl at 697. Section 11.26 of the code freezes the amount of ad valorem taxes
                   which a school district can impose on residence homesteads of individuals
                   over the xe of 65 at the amount imposed the first year the homestead
                   qualified for the exemption afforded by section ll.l3(c~ You ask whether
                   taxing entities other than school districts may determine to freeze ad
                   valorem taxes of persons over the age of 65.

                          In City of Beaumont v. Fertitta, 415 S.W. 2d 902 (Tex. 1967), the Texas
                   Supreme Court observed that “the Legislature dues not need any constitu-
                   tional authority to exempt property from taxation that is not required by the
                   Constitution to be taxed.” 415 S.W. 2d at 910. Conversely, the legislature
                   does need constitutional authority to exempt property from taxation if the
                   constitution does require such property to be taxed. See also Dickison v.
                   Woodmen of the World Life Insurance Society, 280 S.W. 2d 315 (Tex. Civ.
                   App. -San Antonio 1955, writ rcf’d).          Article VIII, section 1 of the
                   Constitution of Texas provides that all real and tangible personal property
                   “shall be taxed in proportion to its value.” (Emphasis added).

                          Article VIII, section 1 further provides that “the Legislature. . . may
                   exempt all or part of the personal property homestead of a family or single
                   adult.” Sections l-b(a) and l-b(b) of article VIII exempt portions of the
                   assessed taxable value of residence homesteads from ad valorem taxation.
                   Section l-b(c) provides that $5,000 of the market value of the residence
                   homestead of an adult is exempt from ad valorem taxation for “general
                   elementary and secondary public school purpcees” and that the legislature
                   may exempt up to $10,000 of the market value of the residence homestead of
                   persons 65 years of ege or older from ad valorem taxation for such purposes.
                   Finally, section l-b(d) provides that:

                                  Except as otherwise provided by this subsection, if
                              a person receives the residence homestead exemption
                              prescribed by Subsection (c) of this section for




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Honorable Charles Evans - Page Two          (MW-265)



           homesteads of persons sixty-five (65) years of age or older, the
           total amount of ad valorem taxes imoceed on that homestead
           for general elementary and secondary public school purposes
           mav not be increased while it remains the residence homestead
           of “that person or that person’s spouse who receives the
           exemption.    However, those taxes may be increased to the
           extent the value of the homestead is increased by improvements
           other than repairs or improvements       made to comply with
           governmental requirements. (Emphasis added).

The tax freeze which was first embodied in House Bill 1060, Acts 1979, 66th
Legislature, chapter 302, article 7, section 7, at 691, and which now finds expression in
section 11.26 of the Property Tax Code, is specifically authorized by article VIII,
section l-b(d) of the constitution.

        We can find no constitutional authority that would permit taxing entities other
than school districts to freeze the amount of ad valorem taxes imposed on residence
homesteads of individuals over the age of 65. The constitutional piovlsions previously
cited provide for across-the-board exemptions of portions of the assessed taxable value
of residence homesteads from ad valorem taxes thereafter levied by the taxing entity.
However, exempting a portion of the assessed taxable value of a homestead from taxes
that may thereafter be levied is quite different from freezing those taxes at a certain
figure for certain individuals.     The underlined portion of article VIII, section l-b(d),
cited above, clearly indicates that constitutional authority exists only for freezes upon
ad valorem taxes imposed for public school purposes,.&,        those collected by school
districts.  Because this is the only constitutional provision that permits freezes upon
the taxes levied by a taxing entity, we conclude that taxing entities other than school
districts are without constitutional authority to grant such freezes. If such tax freezes
were permitted on selected classes of property without constitutional authority, an
equal and uniform problem would arise. -See Tex. Const. art. VIII, S2.

        We note, however, that article 7329a, V.T.C.S., prohibits cities snd school
districts from filing suit to collect delinquent ad valorem taxes on the residence
homestead of persons sixty-five years or older. See Attorney General Opinion H-364
(1974). The uncollected taxes, penalties, and inte=t remain a first priority lien upon
the land until paid

                                     SUMMARY

               Taxing entities other than school districts have no authority
           under the Constitution of Texas to freeze the amount of ad
           valorem taxes imposed upon the residence homesteads of
           persons 65 or older.

                                           m&
                                              Attorney General of Texas




                                        p. 843
Honorable Charles Evans - Page Three        m-265)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan Garrison, Acting   Chairman
Jon Bible
Rick Gilpin




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