Honorable Joe Resweber
County Attorney
Harris County Courthouse
Houston, Texas 77002
                           Opinion No.   M-307
                           Re:   Whether a certain property
                                 owned by a Diocese of the
                                 Roman Catholic Church, and
                                 also containing a chapel, is
Dear Mr. Resweber:               exempt from ad valorem taxation.
       In your request for an opinion, you stated your
question as follows:
            "Is the property described as Lot 12,
       Broadacres, Houston, Harris County, Texas,
       which is owned by the Galveston-Houston
       Diocese of the Roman Catholic Church and
       used as the residence of the Bishop, exempt
       from State and County ad valoram taxation?”
       You stated that all of the lots in Broadacres Sub-
division are restricted to a residential use on1   according
to an instrument recorded in Volume 526,page 48is'of the
Deed Records of Harris County, Texas; and that the use of
any property in the subdivision as a church would violate
Paragraph 1 of the restrictions contained in said instrument,
providing that any house built on any lot in the subdivision
"shall be used for residence purposes only."
       You also point out that this Diocese owns two addition-
al properties in Harris County, one being the Chancery Build-
ing, and the other being the residence of Bishop W. J. Nold;
and that the Chancery Building was granted an exemption from
taxation by Opinion of the Attorney General No. M-21; and
that the residence of Bfshop W. J. Nold has for some time been
carried on the tax rolls as exempt property.




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Hon. Joe Resweber, page 2 (M-307)


       You furthermore make reference to the affidavit of
the very Rev. Msgr, James J, Madden, which indicated that
the improvements located on the property in question consist
of 'a house which includes a semi-public chapel" which is
being used "as the BFshop's residence, and the Chapel for
worship services."
       We agree that the constitutional and statutory pro-
visions applicable are as stated in your memorandum brief,
from which we quote as follows:

            "Article 8, Section'1 of the Texas Consti-
       tution provides in part that 'all
       in this State, whether owned by
                                     -w na ura persons
       or corporations, other than municipal, shall be
       taxed in proportion to its value, which=lTe
       ascertained as may be provided by law.'
            "This section of the Constitution is quali-
       fied by Section 2 of Article 8 of the Texas
       Constitution which provides in part that t . . .
       the legislature may, by general law's,exempt from



       place for the ministry of such
                                   ..~ church or relfgio$s
       society, and which yields no revenue whatever to
       such church or religious society; provided that,
       such exemption shall not extend to more property
       than is reasonably necessary for a dwelling place
       and in no event more than one acre of land; . '*,,-I
            "The enabling statute, enacted by the Texas
       Legislature and codified as Article 7150, V.T.CSS,,
       provides in part the following:
            rrsThefoXLowing property shall be exempt from
       taxation, to-wit:
            '10 Schools and Churches. -- Public school
       houses and



                           ttached to such buildinas neces-
       caky for the proper occupancy, use and enJo;ment of
       the same, and which yields no revenue whatever to
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.




    Hon. Joe Resweber, page   3   (M-   307)


           such church or religious society provided
           that such exemption as to the dwelling place
           for the ministers shall not extend to more
           property than is reasonably necessary for a
           dwelling place and in no event more than one
           acre of land. I
           “Article 7150b, V.T.C.S., provides the follow-
           ing:
                 “‘There is hereby exempted from taxation
          any property owned exclusively and in fee by a
          church,for the exclusive use as a dwelling place
          for the ministry of such church and which property
          yields no revenue whatever to such church; provid-
                         exemption shall not extend to more
          “i$t~;~F~EZ&    I6 reasonably necessary for a dwell-
                        d in no event more than one acre of land;
          an prov ded further, that the fact that the.ministry
          uses a portion of the dwelling as their study, library
          or office shall not prevent the property from being
          considered as being used exclusively as a dwelling
          place I For purposes of this Act,, “church” includes
          a strictly religious society; and the “ministry of
          such church” means those persons whose principal oc-
          cupation Is that of serving in the clergy, ministry,
          priesthood or presbytery of an organized church or
          religion, whether they are assigned ,toa local church
          parish, synagogue, cathedral or temple or to’some
          larger   unit of the church organization and whether
          they perform administrative functions or not.” (Our’
          emphasis supplied throughout.)
           Under these constitutional and statutory provisions,,
    the property in question would be exempt from ad valorem taxes
    if used ,exclusively as an actual place of religious worship.
    Likewise, if used exclusively as a dwelling for the,ministry
    it would be exempt, unless the Diocese already had a different
    and separate parcel-1        estate exempted as a dwelling for
    the minis try. It is our understanding that this Diocese al-
    ready claims and has been afforded anexemption on another
    property as a dwelling for its ministry. See Attorney General’
    Opinion No, M-21 (1967).The Diocese as a,church is entitled
    to only one exemption for parsonage purposes, Houston v,
    South Park Baptist Church of Houston, 393 S.W.2d 354 {Tex.Civ.
    App, 1965, error ref.). Therefore, if an exemption is afforded
    to the property in question undes the possibilities hereinafter
    detailed on grounds that it is a parsonage, the Diocese would

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Hon. Joe Resweber, page 4 (M-307)


necessarily lose its present exemption on the other par-
cel of real estate.
       Under the “actual place of religious worship” pro-
visions, property may attain exempt status even though it
is also incidentally used as a dwelling place for the minis-
try s By the same token, under the “dwelling for ministry”
provisions, property may attain exempt status even though it
isalso incidentally used as a place of worship. Attorney
Generals’ Opinions Nos, O-4909 (1943) and M-21 (1967).
       However, the primary or dominant use of the house
determines the particular exemption that is applicable.
Syracuse Center of Jehovah’s Witnesses v.’Syracuse, 163 Misc.
 33  297 N.Y,S    5tSf lb6 A L.R, 1237* 84C J S 44 9, Taxation,
Sect 232; 84 c:J.s.‘583,   Taxation, Sk. 288d:  ‘It is settled
in Texas that the incidental use of property can neither de-
feat nor determine its status   for tax exemption purposes.
Hilltop Village, Incorporated v. Kerrville Independent School
District, 426 SaW.2d 943 (Tex,Sup.Ct. 1966) s It must b
exempt because of,one exemption provision or the other,,enot
a combination of them. Trinity Methodist Episcopal Church v.
City of San Antonio, 201 S.W. bbg (Tex.Civ.App,lglo, error
ref.)
       Applying these principles to the matter at hand, it
is the opinion of this office that:
       (1)   If the dominant or primary use of the house
             is a dwelling for the ministry, with its use
             as a place of worship being merely incidental,
             then it is exempt under the “dwelling,for minis-
             try” provisions, provided that the Diocese has
             no other property which is accorded an exemption
             under such provisions,
       (2)   If the dominant or primary purpose of the house
             is an actual place of relfgfoue worship, with
             the resfdence of the Bfshop being a mere inci-
             dental use, then it is exempt under the “actual
             place of religious worship” provisions.
       (3) The question of dominant or primary use under
           circumstances such as are here presented is ones
           of fact; and such questions of fact cannot be    ::
           resolved fn an opinfon by the Attorney General’s



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.       .




    Hon. Joe Resweber, page 5 (M-307)

                             ,
                Office. Attorney General 0 inlon Nos.
                c-697 (1966) and M- 187 (1961).
           With regard to the covenant which restricts the use
    of this property for residential purposes, we can envision
    that such covenant might well complicate and make extremely
    difficult any attempt to prove that the dominant use of the
    property is other than residential. Such restrictive covenants
    are enforceable against the church and its properties, yet the
    trier of facts may find an abandonment of the restrictions. See
    Cannon v. Ferguson, 190 S.W,2d 831, 834 (Tex.Civ.App. 1945, no
    writ), 13 A,L.R.2d 1239; Chandler v. Darwin, 281 S.W.2d 363, 367
    (Tex.&v.App. 1955, no writ); Terre11 Hills Baptist Church v.
    Pawel, 286 S.W.2d 204, 209 (Tex.Civ.App. 1956        it)    d
    Thornton v. Wings of Faith Tabernacle, Inc., 69~"Sw~.2d'5$
    5'74 T    i       1956          f   n.r.e. 7; Cowling v. Co&an,
    312 &.if$i $2'446    (sip%i?l~Sj:    However, the status of
    the property for tax.purposas must be determined by the rules
    above announced, not by the mere existence alone of the covenant
    made between private parties,
           Circumstances involving the tax exempt *tatus of the
    property inquired about present a fact ouestion as to dominant
    or incidental use, a question which the taxing authority must
    initially determine and which the trier of fact6 in a court of
    law must ultimately determine in the event of litigation. I



            Property of a Diocese of the Roman Catholic
            Church used as the.residence of the Bishop
            and also containing a chapel may be exempt
            from ad valorem taxes in accordance with the
            primary or dominant use of the property. An
            incidental or subservient use will neither
            determine nor defeat any exemption which is
            available because of primary usage. A Diocese
            which claims its limit of one tax exemption on
            a separate property used as's dwelling place for
            its ministr,y is not entitled to claim exemption
            onsuch ground as to another property, and as
            to such other property exemption may only be
            claimed if the primary or dominant use is
            established as an actual place of religious
            worship. The existence of a covenant between



                            -1495-
Hon. Joe Resweber, page 6 (M- 307)


       private parties
                    . restricting
                        _     _     the use. of real
         -. 1
       escace can not, alone, aetermlne tne status of
       the property for tax exemption purposes.
       Whether a particular use is primary or inci-
       dental is a question of fact which may not be
       resolved by the Attorney General’s   Office.’




                                  D C,   MARTIN


Prepared by Alfred Walker and Fisher Tyler
Assistant Attorneys General
APPROVED :
OPINION COMMITTEE
Kerns B. Taylor, Chairman
Jack Goodman
Mark White
Pat Cain
Bob Flowers
Hawthorne Phillips
Staff Legal Aesfstant




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