                            THE        ATTORNEY    GENERAL
                                          OF TEXAS
                                        Arrs-.      ~EXAR         787ll
      JOHN   IA.   aILL
*--            0s
                                                   August     16, 1973


             The Honorable Robert S. Calvert                        Opinion No.   H-   88
             Comptroller   of Public Accounts
             State Finance Building                                 Re:    Exemptions    from taxation
             Austin,  Texas                                                of property owned by cer-
                                                                           tain disabled veterans and
                                                                           their surviving spouses
             Dear     Mr.   Calvert:                                       and children,   and others

                   In November, Section 2 of Article  8 of the Constitution                 of Texas   was
             amended by adding Subsection (b) as follows:

                                      ;‘The Legislature    may, by general law, exempt
                             property owned by a disabled veteran or by the sur-
                             viving spouse and surviving minor children of a dis-
                             abled veteran.      A disabled veteran is a veteran of the
                             armed services       of the United States who is classified
                             as disabled by the Veterans’ Administration             or by a
                              successor    to that agency; or ~the military service in
                             ,which he served.      A veterah who is ceitified       as having
                             a disability of less than 10 percent is not entitled to
                             an exemption.      A veteran having a disability         rating of
                             not less than 10 percent nor more than 30 percent may
                              be granted an exemption from taxation for property
                             valued at up to $1, 500. A veteran having a disability
                              rating of more than 30 percents but not more than 50
                             percent may be,granted’an‘exemp$ipn.fFom               tax?ation.
                             for property&oed          kk tip-io’$2, OOQ. A vetkramhavirig
                             a disdbilit$ rating of maze, than 50 percent. but’not more
                              th&x 70 p&icentmay        be :granted.,+n exemption from tax-
                             ation for-propert?      vaiied tit up’& $2, 500.      A veteran
                              who has a disability      Sating >of more than 70 percent,       or
                              a, veter&‘Sh6    has a di?$biii$y rating of note less than 10
                              percent-and’had     d?%ained the age of 65, or a disabled
                              veteran whose &‘s;ibili’%y consists       of the loss ‘or loss of
                              use of-one or more limbs,         total blindness in one or both
                              eyes, or paraplegia,       may be granted an exemption from




                                                     p.     400
The Honorable    Robert   S. Calvert,        page 2   (H-88)




             taxation for property valued at up to $3,000.    The
             spouse and children of any member of the United
             States Armed Forces who loses his life while on
             active duty will
                          -   be granted an exemption from tax-
             ation for property valued at up to $2,500.    A deceased
             disabled veteran’s   surviving spouse and children w
             be granted an exemption which in the aggregate is
             equal to the exemption to which the decedent was en-
             titled’at the time he di’ed. ” (emphasis added)

       Pursuant to the authorization  contained in this Amendment,    the
Legislature  enacted House Bill 80 “relating to exemption from taxation
of property owned by disabled veterans and surviving spouses and chil-
dren of deceased veterans. ” Section 13 of House Bill 80 states that its
purpsse “is to provide for exemptions    under the authority of Article
VU? 5 2(b) of the Texas Constitution. ”

       The constitutional   language creates two separate categories       of
tax relief beneficiaries  and treats them diffe&ntly:      (1) those in the
severely   disabled veteran class (or their surviving wives and children)
&     be accorded certain exemptions from tax liability for their prop-
erty; and (2) the survivors    (wife and children) of on-,duty military per-
sonnel who die twill be granted “an exemption from taxation for property
valued at up to $2,500.   ”

        You have submitted four specific questions to us concerning the
effect of House Bill 80. However,       it is appropriate     that we first deter-
mine whether any part of the constitutional       provision is self-executing,
and examine the constitutionality     of the Act.    If Article   8 6 2(b) of the
Constitution is-in ‘no part self-executing    and if House Bill 80 is uncon-
stitutional, then answers to your questions would no longer be needed.

        Generally, a constitutional  provision may be said to be self-executing
if it supplies a sufficient rule by means of which the right given may be en-
joyed and protected or the duty imposed map be enforced; and it is not self-
executing when it merely indicates     principles, without layi,ng down rules by
                                ._~
which these principles     may be given ‘+e force of ii+.  Mitchell County v.
City National Bank, 43 S. W. 880, 883 (Tex. 1898); City of Corpus Christi
v. City of Pleasanton,    ,276 S. W. 2d 798 (Tex. 1955).




                                        p.    401
The Honorable    Robert   S.   Calvert,        page 3   (H-88)



       Obviously,   Article 8 6 2(b) of the Constitution is not self-executing
with regard to exemptions for disabled veterans and their surviving spouses
and surviving children.     The Legislature    has been given discretion    where
exemptions   in their favor are concerned.       The Constitution does not command
that any relief be given such persons.       We think it within the authority of the
Legislature   to attach reasonable   limitations   and conditions to the enjoyment
of such relief as it gives, if any, and that no exemption for such persons can
exist unless the Legislature    has created it by valid statute.

       After careful study we have also concluded that the constitutional         pro-
vision concerning exemptions       for survivors   of those “on-duty” military per-
sonnel who die is not self-executing      in the “immediately    operative”   sense
[Compare Strang v. Pray,       35 S. W. 1054 (Tex. 1896)], but rather contemplates
and requires legislation   on the subject.    It speaks prospectively    in that context
(“will be granted . . . ‘I) (I’ . . . any member . . . who loses his life while on
active duty. . . . “) and, in our opinion, is mandatory but not self-executing.

       The provision does more than simply state a principle,         but it obviously
looks to the intervention  of another authority.    It does not indicate when the
right to an exemption will accrue.    It shapes,   but does not e~,the      exemption;
it specifies that the exemption “will be given”.      We believe the passage places
a mandatory duty upon the Legislature      to enact a law specifying the effective
date of the exemption for survivors     of on-duty military personnel,      but the
exemption cannot be given effect until the Legislature       acts.   Duncan v. Gabler,
215 S. W. 2d 155 (Tex. 1948).    See 16 C. J.S.   Constitutional   Law $48, at p. 142;
16 Am. Jur. 2d, Constitutional    Law 0 94, at p. 280.

       We are led to the foregoing       conclusion    by the manner in which the pro-
visionis integrated with the remainder         of the section clearly contemplating
prerequisite legislative    action; by the absence of words of present execution
used in other sections,     e.g.,    “shall be exempt” (Art. 8 5 5 1, l-b; Art. 11 s 9) ;
by the absence of any language indicating self-execution            such as. “This amend-
ment is self-operative”      (Article 1, 5 3a); “This amendment shall become effective
upon its adoption” (Article 3 § 65) ; and by the fact that,the title of House Joint
Resolution No. 35, Acts 1971, 62nd Legislature,             R. S., pi 4136, proposing the
amendment anticipates       that the Legislature     ,will be instrumental  in providing
all the contemplated     exempti’ons,    including those to be enjoyed by such survivors.
Consequently,   we are of the ,opinion that the effective date for any Article 8
5,2(b) exemption applicable to survivors         of on-duty military personnel is depen-
dent upon valid legislation      on the subject.




                                          p.    402
The Honorable    Robert    S.   Calvert,    page 4    (H-88)




       Is H. B. 80 valid legislation?    The Legislature   has specifically
provided that the provisions    of the Act are non-severable   and that the
invalidity of any one of its provisions   will render the whole Act void.
Section 14 of H. B. 80 reads:

                     “Sec. 14. The provisions    of this Act are
              declared to be non-severable,    and’if any pro-
              vision of this Act is declared invalid by a final
              judgment of a court of competent jurisdiction
              as to any person,   the Act is void. ”

      In our judgment the Courts will, if presented the question,   declare
some of its provisions   invalid and the statute (because of its non-sev-
erable clause) : who Ily void.

        The Constitution   says,    in part:

              11. . . The spouse and children of any member of
              the.United States Armed Forces who loses his life
              while on active duty will be granted an exemption
              from taxation for property valued at up to $2, 500. ”

        Section 5 of House Bill 80,        purportedly   implementing     this portion   of
Art..   8, s 2(b), provides:

              “Sec. 5. The surviving spouse of a person who
              dies while on active duty in the armed services       of
              the United States his entitled to an exemption of the
              first $2,500 of the assessed    value of the spouse’s
              property during the period that the surviting     spouse
              remains unmarried. ”

        Putting aside   other questions        about the statutory   language,   it is clear
that-the Legislature is without power to place limitations    upon an unlimited
exemption commanded by the Constitution,      in  the absence  of constitutional
authority to do so.  Strang v. Pray, 35 S. W. 1054 (Tex. 1896).       The Consti-
tution grants no such legislative  discretion with regard to the ,exemptions
that must be allowed survivors    of on-duty military personnel. ‘~ The Consti-




                                           p. 403
The Honorable    Robert   S.   Calvert,    page 5 (H-88)




tution does not limit such an exemption to surviving spouses of such
personnel only so long as they do not remarry,     and in our opinion any
attempted statutory  limitation to that effect would be held inoperative.

       What is more,    5 8(b) of H. B. 80 purports to grant an exemption
to the estate of a deceased veteran.      We find no constitutional   authority
for such a provision.     The exemptions    permitted by the Constitution are,
we think, personal to the natural individuals designated and there is no
provision in Article   8 6 2(b) of the Constitution authorizing   an exemption
for an artificial person.    Subsection 8(b) of H. B. 80 is therefore     invalid,
in our opinion.   See Deason v. Orange- County Water Control and. Imp.
Dist. No. 1, 244 S. W. 2d 981 (Tex. 1952); City of Amarillo        v. Amarillo
Lodge No. 731, A.F.      & A.M.,    488 S. W. 2d 69 (Tex. 1973).

        The Constitution does not specify the kind of property owned by dis-
abled veterans or their survivors     for which no taxes need,be Raid, nor
which taxes they may escape.      It only indicates~ the value of property for
which tax liability might be abrogated by legislative     action.    ,Notwithstanding
an ambiguity caused by the first sentence of Article      8 § 2(b); (‘I . . . may.    . .
exempt property . . . ‘I). we think it contemplates     a personal status ,entitling
one to be exempt from paying taxes for property valued below a certain
figure.    This is made clear by the language used to ~establish ~exemption
maximums      for veterans with variously   classified disabilities,   (,I’Y . . . an
exemption from taxation -for property valued at up to . . . ..‘I),

        The constitutional  amendment here ,was submitted       to the people in the
form   of a “for or against” proposition reading:

                    “The constitutional  amendment allowing certain
             tax exemptions  to disabled veterans,    their surviving
             spouses and surviving minor children,      and the surviv-
             ing spouse and. s‘urvi,ting minor children of members
             of the, armed forces who lose their life while on active
             duty. ” Acts 1971, 62nd Legislature,   Regular Session,
             p. 4136.   (emphasis added)




                                          p.   404
The Honorable     Robert   S.   Calvert,        page 6   (H-88)




It did not mention the exemption of property;              it specified   the people   to
whom tax advantages were to-be allowed.

        If there is any ambiguity in the constitutional   provision itself,
it must be presumed that the ballot title fairly represented totie people
the character and purpose of the proposed change. See R.R.            Comm.
v. Sterling Gil & Refining Co. 218 S. W. 2d 415 (Tex. 1949); g.
Evans, 414 S. W. 2d 684 (Tex. Civ.App.,     Austin,l967.,writ.   ref. ,n. r: e.);
Whiteside v. Brown, 214 S. W. 2d 844 (Tex. Civ.App.,Austin,l948,writd.ism,
W. o. j.); 16 Am. Jur. 2d, Constitutional   Law, 5 36, at p. 208; 16 C. J. S.,
Constitutional    Law, §9(3), at p. 56.

        The purpose of the constitutional  provision,  we think, is similar
to the purpose of the “over 65 homestead     exemption” also added in 1972
(Article 8, $1-b(b) ; see Att&ney    General Opinion H-9 (1973)], i. e., to
allow the benefited class to acquire and hold property of a limited value
~wlthout assuming a tax burden therefor.      We think the provision is in-
tended to afford relief to those severely   disabled veterans and to those
surviving spouses and child~ren (of deceased disabled veterans or of de-
ceased persons on active military duty) in less fortunate circumstances
who might bbsent such relief) become public charges.


     ‘. It is our conclusion,   then, that none of the exemptions   contemplated
by Article 8s 2(b) of the Texas Constitution can become effective until there
is further legislation    on the subject,   and that no purpose would be served
by detailing the intended operation of H. B. 80.        We will therefore defer
your specific questions.      Moreover,     because we feel the invalidity of $8(b)
of H.B.     80 will cause the entire Act to fall, we need not discuss other as-
pects of the statute which might also cause it to be unconstitutional.

                                       SUMMARY

             1.      The constitutional     exemption commanded by
                     Article   8 $ 2(b) of the Texas Constitution for
                     survivors    of military ~personnel who die while
                     on active duty is mandatory but not self-exe-
                     cuting and its effective date depends on legis-
                     lation.   Exemptions     ,for disabled veterans and
                     their survivors     are dependent upon legislative
                     discretion.




                                           p.    405
 The Honorable     Robert   S.    Calvert,    page 7     (H-88)




              2.     The exemptions from tax liability accorded or
                     authorized by Article 8, 5 2(b) of the Constitution
                     are personal to the natural beneficiaries   named
                     and may not be accorded artificial   persons as
                     H. B. 80, 63rd Leg.,  R.S.,   attempts to do.

              3.     The Legislature   is not empowered to attach con-
                     ditions to the enjoyment of the constitutionally
                     shaped exemption for surviving spouses of on-duty
                     military personnel:




              4.      The “non-severable”    clause contained in H. B.
                      80 will cause the statute enacted to be declared
                      void in its entirety.

              5.     None of the exemptions     contemplated   by Article
                     8 § 2(b) of the Constitution will become effective
                     until there is further legislation   on the subject.

                                                        Very ~truly yours,




                                                        Attorney   General   of Texas

     ROVED:
                                 nn




E&-?x


 DAVID M. KENDALL,           Chairman
 Opinion Committee




                                             p.   406
