                        December 31, 1986




Eonosable Ray Farabee             Opinion No.   JM-612
Chairman
Committee on State Affairs        Re: Whether cooperative housing is
Texas State Senate                entitled to the residence homestead
P. 0. Box 12068                   tax exemption under article VIII,
Austin, Texas   78711             section l-b, of the Texas Constitu-
                                  tion and related questions

Dear Senator Parabee:

     You ask the following two questions:

            1. Are the homes (and stock) of persons who
         live in cooperative housing entitled to the
         residence homestead tax exemption provided by
         article VIII, section l-b, of the Texas Constiu-
         tion? In a cooperative housing arrangement, the
         homeowqers purchase stock in a nonprofit corpora-
         tion which is organized to provide housing to its
         members. Title to the real estate, however,    is
         held in the corporate name, and the homeowners
         obtain long-term leases from the corporation, but
         do not have title to any real property.

             2. Are these same home and stock in coopera-
          tive housing eligible for protection from forced
          sale under article XVI, section 50, of the Texas
          Constitution. and section 41.002 of the Property
          Code? Assume for both of these questions that the
          stockholder lives in the home as his primary
          residence and does hot claim a different home as
          au exempt homestead.

     We answer both your questions in the negative. We will answer
each in turn. For purposes of this opinion, we assume that the
nonprofit corporation providing the cooperative housing was organized
pursuant to article 1396-50.01, V.T.C.S., the Cooperative Association
Act. Section 44 of the act exempts each association organized under
the act from the franchise tax, see also Tax Code 1171.075. and from
license fees imposed by the state or by any political subdivision.
There is, however, no provision in the act which purports to exempt,
either partially or totally, the property of such associations from ad
valorem taxation.



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     Article VIII, section l-b, of the Texas Constitution permits in
some instances and requires in other instances the granting by taxing
units of residence homestead exemptions from ad valorem taxation.
Section l-b itself does not define "residence homestead;" rather, it
provides that "[tlhe legislature by general law may define residence
homestead for, purposes of this section." Tex. Const. art. VIII,
51-b(c). The legislature defined the phrase in section 11.13 of the
Tax Code and set forth the following iu subsection (3):

         For purposes of this section, 'residence homestead'
         means a structbre (including a mobile home) or a
         separately secured and occupied portion of a
         structure (together with the land, not to exceed 20
         acres. and improvements used in the residential
         occupancy of the structure, if the structure and
         land and improvements have identical ownership)
         that:

             (1)   is owned by one or more individuals;

             (2)   is designed or adapted for human residence;

             (3)   is used a5 a residence; and

             (4) is occupied as his principal residence by
          an owner who qualifies for the exemption. (Emphasis
          added).

     Essentially, you first ask whether a person, otherwise qualified,
may receive a residence homestead exemption in an instance In which
the individual seeking the exemption does not own the structure upon     .
which the exemption is sought; rather, the individual owns stock in a
nonprofit corporation whose assets consist of the structure upon which
the exemption is sought.

     For two reasons, ke conclude that ownership of stock in a
corporation whose assets consist of a structure upon which the owner
of the stock seeks aa exemption is not an omership           interest
sufficient to entitle the owner of the stock to claim an exemption on
the corporation's assets. First. stock in corporation5 is not taxed
in Texas. Article VIII, section 1. of the Texas Constitution provides
in pertinent part that

          [a]11 real property and tangible personal property
          in this State, whether owned by natural persons or
          corporations, other than xuuicipal, shall be taxed
          in proportion to its value, which shall be ascer-
          tained a5 may be provided by law. The Lagisla-
          ture may provide for the taxation of intangible
          property. . . .



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Honorable Ray Farabee - Page 3 (m-612)




Section 11.02(a) of.the Tax Code provides in pertinent part, except as
provided in a subsection not relevant here, that "intatigiblepersonal
property is not taxable."      Quite obviously, no ad valorem tax
exemption can attach to property which is not taxed in the first
place. Accordingly, no residence homestead ad valorem tax exemption
can attach to stock in a corporation.

     Second, irrespective of whether stock in a corporation is taxed,
stock owuers are not liable for taxes on the assets of a corporation.
An ownership interest less than ownership in fee simple absolute may
be sufficient to confer a tax liability. For example, conveyance of
an interest in minerals conveys an interest in realty which is taxable
in the hands of the grantee seoarately from the grantor's interest.
Bashara v. Saratoea I~debendent'School~District, 163 S.W.Zd 631 (Tex.
1942); Watkins v. Certain-Teed Products Co- rk, 231 S.W.2d 981 (Tex.
Civ. App. - Amarillo 1950, no writ). A tena--It in
                                                --~aoasossion
                                                   =-.        of a life
estate possesses an interest which is taxable. Triwble v. Farmer, 305
S.W.2d 157 (Tex. 1957); State v. Vaughan, 319 S.W.2d 349 (Tex. Civ.
ADD.
 SI   - Austin 1958. no writ).      An oil lease constitutes "real
propertyw and is subject to taxation. Eager v. Stakes, 294 S.W. 835
(Tex. 1927); Big Lake Oil Co. v. Reagan County, 217 S.W.2d 171 (Tex.
Civ. App: - El Paso 1948, writ ref'd). A vendee of land is considered
the owner for purposes of taxation even though a vendor's lien is
retained for the price. Rarve v. Provident Insurance Co.. 156 S.W.
1127 (Tex. Civ. App. - Austin 1913. no writ).

     Ou the other hand, a contingent remainder in property does not
constitute a taxable title to real property. Tarrant County Water
Supply Corp. v. Hurst-Euless-Bedford Independent School District. 391
S.W.2d 162 (Tex. Civ. APP. - Fort Worth 1965, writ ref'd n.r.e.).
Except as provided by section 25.07 of the Tax Code, a leasehold
interest in real property is not subject to taxation. -See Tax Code
$523.13, 25.06; Irving Independent School District v. Delta Airlines,
Inc., 534 S.W.2d 365 (Tex. Civ. App. - Texarkana 1976. writ ref'd
n.t.e.). See also Tax Code 525.02; Underwood v. Pigwan, 32 S.W.2d
1102 holding approved (Tex. Comm'n App. 1932); Connell v. State, 55
S.W. 980 (Tex. Civ. App. 1900, no writ).

     The corporation is liable for any ad valorem taxes imposed upon
the assets of the corporation; an owner of stock in that corporation
is not so liable. Thus, no tax exemption cau be claimed by such an
owner. Accordingly, no residence homestead ad valorem tax exemption
can attach to stock in a nonprofit corporation, even if the assets of
that  corporation consist of cooperative housing. We next turn to
whether a corporation way qualify as a residence homestead exemption
claimant or whether only natural persons may qualify. We conclude
that only natural parsons may qualify.

     First, it is clear from a reading of the relevant portions of the
Tax Code that the legislature intended only natural persons and not
corporations to be entitled to claim a residence homestead exemption.



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The shove-underscored portions of section     11.13(j) clearly evince
legislative intent that only natural persons receive the exemption:
subsection (j) requires that the structure be "owned by one or more
individuals" and "is occupied as his principal residence by an owner
who qualifies for the examption."      (Emphasis added).    Subsection
11.13(b) confers an exemption from taxation by a school district to
"an adult.', Subsection5 (c) and (d) of section 11.13 confer a
mandatory and a so-called "local option,' exemption to lran individual
who is disabled or is 64 or older.', Subsection (h) prohibits "joint
or community owners”  from receiving the same exemption for the same
residence homestead in the same year.      See also Tax Code 911.41
(concerning the administration of exemptions where a person who
qualifies for axamption is not the sole owner of the exempt property).

     In contrast, it is instructive to examine the language employed
by the legislature in setting forth ownership requirements for other
exemption5 from ad valorem taxation. Section5 11.18 and 11.20 employ
the term "an organization." Sections 11.21 and 11.27 use "a person.,'
Section 11.19 refers to a qualifying "association' of a very par-
ticular kind. And section 11.23 purports to confer exemption5 to
specified "organi5ation5," "associatlon5," "persons,', and "corpora-
tions." Manifestly, the legislature chose such term5 with care; if
the legislature intended that corporations be entitled to residence
homestead cxamptions. it is reasonable to assume that the term
"person,,would have been used in defining "residence homestead' in
section 11.13 rather than the term 'individual.'

     There is a second, more compelling, reason to conclude that the
legislature intended "individual,'in section 11.13 of the Tax Code to
reach only natural persons and not corporations. The con5titution
limits the homestead exemption to natural persons. The legislature
may not broaden by statute the scope of an exemption beyond that which
is conferred by the con5titution and any attempt to do so is void.
Tex. Coast. art. VIII, '52; Dickison v. Woodmen of the World Life
Insurance Society, 280 S.W.Zd 315 (Tex. Civ. App. - San Antonio 1955,
writ ref'd) . If nronerdv comes within a statutory tax exemption, it
can be exempt only because it clearly falls within the ambit of the
constitution. State v. ,American Legion Post No. 58, 611 S.W.2d 720
(Tex. Civ. App. - El Paso 1981, no writ). We could not constitu-
tionally con5true section 11.13 to reach corporations.

     Article VIII, section l-b, of the Texas Constitution, the
constitutional provision pursuant to which section 11.13 of the Tax
Code was passed, unquestionably envinces legislative intent that only
natural persons, and not corporations, be entitled to residence home-
stead ad valorem tax exemptions. Subsection (b) of section l-b, which
authorizes political subdivisions to grant the so-called 'local
option' residence homestead exemption codified in section 11.13(d) of
the Tax Code imposes ownership requirements on "persons, married or
unmarried, including those living alone . . .,' and "married or un-
married persons sixty-five (65) years of age or older, including those


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Honorable Ray Farabee - Page 5 (JM-612)




living alone. . . ." Subsection (b) permits by petition and referendum
the granting of residence homestead exemptions of "disabled persons or
of persons sixty-five (65) years of age or over. . . ." Subsection
(c) of article VIII, section  l-b confers a residence homestead exemp-
tion for public school purposes to a "married or unmarried adult,
including one living alone. . . ."       It further authorizes the
legislature to exempt a specified value of the residence homestead
exemption of "a person who is disabled as defined in Subsection (b)
of this section and of a person sixty-five (65) years of age or
older. . . ." Throughout subsection (c), language such as "eligible
disabled person" and "eligible disabled or elderly person" is
employed. Other subsections also refer to natural persons. See.
s,    Tex. Const. art. VIII, II-b, cd), (e).

       It has been suggested that our answer to your first question
implicitly overrules Attorney General    Opinion M-632 (1970) which
concluded that certain agricultural products in the physical
possc5sion of a cooperative marketing association were exempt from ad
valorem    taxation under article VIII, section 19. of the Texas
Constitution which exempts, inter alla, "[flarm products, livestock,
and poultry in the hands of the producer." See also Attorney General
opinion E-938 (1977). The issue in Attorney General Opinion M-632
turned upon ownership of the property claimed to be exempt. Legal
title to the property remained with the farmers; at no point did title
pass to the marketing association itself.       See Agriculture Code
0052.001 - 52.151 (successor statutes to now-repealed articles 5737 to
5764, V.T.C.S.). In the facts you submit, you claim that legal title
to the property remains with the association and at no time passed to
those owning stock in the association. In both Attorney General
Opinion M-632 and in the instant case, tax exempt status depends upon
ownership. In the instances of the above-mentioned farming coopera-
tives, title to property remained with the farmers. Ownership of the.
housing cooperative remains with a corporation. The conclusion we
reach here in no way undermines the correctness of the earlier
opinions.

       Additionally, it is suggested that the conclusion we have reached
would have the effect of denying to an owner of a condominium the
right to receive a residence homestead exemption. Again, we disagree.
An even cursory perusal of chapter 81 of the Property Code indicates
that ownership of a condominium combines separate ownership of an
individual apartment with common ownership of other elaments. Property
Code 1581.002. 81.104; see Dutcher v. Owens, 647 S.W.2d 948 (Tex.
1983). In the instant Guest,        an owner of the stock possesses no
estate   in the property sought to be deemed exempt. It is clear that
the framers of article VIII, section l-b' intended that natural
persons and not corporations be permitted to claim residence homestead
exemptions from ad valorem taxation.

     The law does not favor tax exemptions, since they are the
antithesis of equality and uniformity. Hilltop Village, Inc. v.


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Kerrville Independent School District, 426 S.W.2d 943 (Tex. 1968).
Constitutional and statutorv nrovisions creatinn them are to be
construed narrowly with all doubts resolved against granting the
exemption. City of Longview v. Markham-McKee Municipal Hospital, 152
S.W.2d 1112 (Tex. 1941). Accordingly, we conclude that neither the
homas nor the stock of persons who live in cooperative housing is
entitled to the residence homestead tax examption provided by section
11.13 of the Tax Code and article VIII, section l-b, of the Texas
Constitution when title to the real estate is held in the name of the
corporation and the owners of the stock obtain only long-term leases
from the corporation but do not possess title to the real property
upon which the exemption is sought.

     With your second question, you ask whether these same homes and
stock are eligible for protection from forced sale under section
41.002 of the Property Code and article XVI, section 50, of the Texas
Constitution. For essen ially the same reasons that we answered your
first question in the ne1 ative , we answer your second question in the
negative.

     Article      XVI, section 50, of the Texas Constitution provides the
following:

               550.    Homestead; protection fqrm    forced. sale;
                  mortgages, trust deeds and liens

                  Sec. 50. The homestead of a family, or of a
               single adult person, shall be, and is hereby
               protected from forced sale, for the payment of all
               debts except for the purchase money thereof, or a
               part of such purchase. money, the taxes due
               thereon, or for work and material used in con-
               structing improvements thereon, and in this last'
               case only when the work and material are con-
               tracted for in writing, with the consent of both
               spouses, in the case of a family homestead, given
               in the same manner as is required in making a sale
               and conveyance lof the homestead: nor may the owner
               or claimant &the    property claimed as homestead,
               if married, sail or abandon the homestead without
               the consent of the other    spouse, given in such
               manner as may be prescribed by law.    No mortgage,
               trust deed, or other lien on the homestead shall
               ever be valid, except for the purchase money
               therefor, or improvements made thereon, as herein-
               before provided, whether such mortgage,    or trust
               deed, or other lien, shall have been created by
               the owner alone, or together with his or her
               spouse, in case the owner is married. All pre-
               tended sales of the homestead involving any
               condition of defeaaance shall be void.         This


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          amendment    shall become     effective   upon   its
          adoption.   (Emphasis added).

Article KVI, section 51, of the Texas Constitution defines residence
homestead for purposes of protection from forced sale:

          551. Amount of homestead; uses

            Sec. 51. The homestead, not in a town or city,
         shall consist of not more than two hundred acres
         of land. which may be in one or more parcels, with
         the improvements thereon; the homestead in a city,
         town or village, shall consist of lot or lots
         amounting to not more than one acre of land,
         together with any improvements on the land;
         provided, that the same shall be used for the
         purposes of a home, or as a place to exercise the
         calling or business of the homestead claimant,
         whether a single adult person, or the head of a
         family; provided also, that any temporary renting
         of the homestead shall not channe the character of
         the same, when no other h&stead          has been
         acquired. (Emphasis added).

Section 41.001 of the Property Code essentially tracks article XVI,
section 51, while section 41.002 essentially tracks the language of
article XVI, section 50.

     Again, it is clear from even a cursory reading of the above-cited
provisions that only natural persons as opposed to corporations may
qualify for residence homestead protection ,from forced sale. See
Shepler v. Kubena. 563 S.W.2d 382 (Tex. Civ. App. - Austin 1978.10
writ). The public policy reasons for such a construction are clear.
Exemptions from forced sale were unknown to the common law and are
purely statutory creations. Pickens v. Pickens, 83 S.W.Zd 951 (Tex.
1935). Under the c-on      law. a debtor was deprived of all of his
property and then, frequently, imprisoned. Smith v. McBryde, 173 S.W.
234 (Tex. Civ. App. - San Antonio 1915, no writ). The purpose of
exemption laws is to afford protection to a person in the pursuit of a
lawful occupation and to assure to the family of the debtor the
shelter of a home, the means of securina a livelihood. and the
earnings of the head of the household. See. ;.g., Rodgers v.-Ferguson,
32 Tex. 533 (1870). Exemption laws were passed not merely for the
purpose of protecting the poor from creditors who would deprive the
debtor and his family of their means of subsistence, but also to
protect persons in the pursuit of legitimate occupations in order that
they do not become charges on the public. Gaddy v. First 'National
Bank, 283 S.W. 277 (Tex. Civ. App. - Beaumont 1923. no writ).

     We are well. aware that constitutional and statutory 'provisions
regarding homestead exemptions from forced sale for debt traditionally


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Eonorable Ray Farabee - Page 8 (JM-612)




have been liberally construed in order to effectuate their beneficent
purposes. Andrews v. Security National Bank of Wichita Falls, 50
S.W.2d 253 (Tex. 1932); City of San Antonio V. Toeppewein, 133 S.W.
416 (Tex. 1911). We are unwilling, however, to do violence to the
clear language of the provisions at issue. The language of the
constitutional and statutory provisions appears to us to be plain and
unambiguous and its meaning  clear and obvious. We must, therefore,
"enforce the statute as written and have no right to create or to find
an ambiguity where none exists in order to call into play generally
recognized rules which are used as aids to the construction of
ambiguous statutes.,, Col-Tex Refining Co. V. Railroad Commission of
-,      240 S.W.Zd 747, 750 (Tex. 1951) (citations omitted).       Our
intrepretation must express

         only the will of the makers of the law, not forced
         nor strained, but simply such as the words of the
         law in their plain sense fairly sanction and will
         clearly sustain.

Railroad Commission of Texas V. Miller, 434 S.W.2d 670, 672 (Tex.
1968) (citation omitted). Accordingly, we conclude that, in the
instance which you describe, the own&  of the stock may not receive
the benefit of article XVI. sections 50 and 51, of the Texas
Constitution and sections 41.001 and 41.002 of the Property Code to
claim on the homes which they lease the status of homesteads exempt
from forced sale for debt.

                             SUMMARY

             Neither the residence owned by the corporation
          nor the corporate stock owned by persons who live
          in cooperative housing is entitled to the resi-
          dence homestead tax exemption provided by section
          11.13 of the Tax Code and article VIII, section
          l-b, of the Texas Constitution or to the protec-
          tion afforded homesteads exempt from forced sale
          for debt.      ~




JACK EIGRTOWBR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General




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Honorable Ray Farabce - Page 9   (34-612)




RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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