                     June 4,   1968


The Honorable Joe Resweber     Opinion No. M-240
County Attorney
Harris County                  Re:    Constitutionality of
Houston, Texas                        Senate Bill 105, 60th '.,',:
                                      Legislature, 1967, cod%-
                                      Pied as Section,22 of
                                      Article 7150. Vernon's
Dear Mr. Reswebers                    Civil   Statutes.

       Your request for an opinion reads, in part, as
follows;
                "Carl Smith, Tax Assessor-Collector
          of Harris County has recently requested
          this 'office to obtain an Attorney Ckneral's
          Opinion as to whether or not S.B. 105, 60th
          Legislature,  1967, which is codified as
          Section 22 of Article 7150, V.T.C.S., is
          constitutional."
       You also expressed the opfnlon that said Section 22
is unconstitutional, but you have not presented us wtth any
factual situatfon for application of‘ the statute,
       Thfs opinion will deal only with said Senate Bill 105
(60th Legfslature, p0 319, Ch e 1>2), and it does not relate,
to House Bill N 0.  2, both Legislature. p* 623, Ch 1 3b3
which3fnvolves non-profft corporatfons (as deffned In thi
Texas Non-Profit Corporation Act), and which is also codf-
med as Sectfon 22 of Vernon's Civil Statutes.
        Senate Bill 105, 60th Legislature, 1967, codffied as
Section 22 of Artfcle 7150,~Vernon,JsCivil Statutes, provides
fn parts
               "22.  The property of all fraternal
          organizationi shall be exempt from taxation
          so long as the property is owned and used
          for charitable, benevolent, re3fgIous,,aPld
          educational purposesp and is not fn whole



                         -1171-
The Hon. Joe Resweber, Page 2 (M-240)

          or in part leased out to others, or
          otherwise used with a view to profit.
              "The term 'Fraternal Organization'
         as used in this Act shall mean, 'A lodger
         or lodges, engaged in charitable, benevo-
         lent, religious, and educational work.'
              "However, this Act shall not apply
         to any fraternal organization or lodge
         which pays to its members, either directly
         or indirectly, any type of insurance benefit,
         be It life, health, accident or death benefit,,
         or any other type of insurance; neither shall
         any organization which shall directly or
         indirectly participate or engage in any
         political activity, either in support of or
         in opposition to any candidate seeking any-
         Qub1j.coffice, have or be entitl$d to bene-
         fits as provided under this Act.
                                                                 c
       The constitutionality of the statute In exempting
property from ad valorem taxation Is controlled by Article
VIII, Section 2 of the Texas Constitution, reading as follows:
              “Set, 2. All occupation taxes shall b+
         equal and uniform upon the same class,of sub-
         jects within the limits of the authority levying
         the tax; but the legislature may, by general
         laws, exempt from taxation public property
         tisedfor public purposes; actual places or [of]
         religious worship, also any property armed by
         a church or by 'a strictly religious society for
         the exclusive uae.as a dwelling place for the
         ministry of sticlfchurch or religious.society,
         and which.ylelds 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; places of burial not held for private
         or corporate profit; all buildings,used     -
         exclusively and owned by persons or associa-
         tions of persons for school purposes and the
         necessary furniture of all schools and prop-
         erty used exclusively and reasonably necessary




                         -1172-
           .   .




                The Hon. Joe Resweber, Page 3 ‘(M-240)

                          fn conducting any association.engaged In pro-    "       :'
                          motfng the religious, educational and physical
                          development of boys, girls, young men or young
                          women operating under a State or National      -
                          organization of like character; also the endaw-
                          ment funds of such institutions of learning
                          and religion not used with a view to profit;
                          and when the same are invested in bonds or
                          mortgages, or in land or other property which
                          has been and shall hereafter be bought in by
                          such institutions under foreclosure sales made
                          to satisfy or protect such,bonds or mortgages,
                          that such exemption of such land and property
                          shall continue only for two years after the
                          purchase of the same at such sale by such
                          institutions and no longer, and institutions -
                          of purely public charity; and all laws exempt-
                          ing property from taxation other than the
                          property above mentioned shall be null and
                          void."
                       The controlling question is whether'the exempt pnrposes
                set forth in Section 22 of Article 7150 are broader than the
                exempt purposes provided by the ~Constitution. If the statute
                is subject to a broader construction than Section 2 of Article,
                VIII of the Constitution of Texas, that construction must be
                rejected as an unconstitutional construction. Dicklson,v *
                Woodmen of the World Insurance Society 280 S.W.2d 315 (Tex.
                i71 A    1932, error ref.), I Clt 0: Waco v* Landingham,
                l$T:::   156, 155:S,W.2d 631, 6"33f3[941) th Supreme Court,.
                recog ized that 0 a o it is a’settled~rkle Ef statutory
                constluctfon that where the language of a, statute is broad
                enough to cover matters without, as well as within, t.hepower
                of the.Legislature to enact, courts should construe the statute’
                in a restricted manner, as aptlying only to the’:matte3+lying
                within the legislative power.
                       Statutes wfll be presumed to be constitutfonal, and if
                they may be upheld by a construction in harmony with the
                Constitution it is the duty of the courts to do so, 54 Tex,
                Jur.2d 140-142, Sec. 23, Taxation.
                        The exempt purposes In the statute are defined by the
:.
 y,,.;,
   ..,,
    ;.~,y
      ,~~. ~'.?.
             .' words "ct+arftable,benevo,lent,religious and educational."
:;.~:.-<
    ,,,!.,,      We will compare each~.ofsuch words separately with the language
 z;,
   :&g;
      'i.~
y$$:':':,,:      of Section 22 of Article VIII of the Constitution.
                                                        ._
..&;$;"'.,:L
         ,:.::
            ,:
 $.T~
    2.:

                                         -1173-
The~Hon. Joe Resweber, Page 4 (M-240)

       Charitable. In construing the word charitable in,
the statute, it will be construed to mean "purely public
charity" for ad valorem tax purposes. See City of Houston
v. Scottish Rite Benevolent Ass'n., 111 Tex. 1 1 2 0 S W
m   (1921) River Oaks Garden Club v. City of ~o&st~n~,~O
S,W.2d 85l’(lgb3)   Th   f     th     d "charitable"
be limited to mean "pu~~*'pr~~lIcecr$O~ity."

       Benevolent. The word benevolent Is generally held
to mean "charitable." Black's Law Dictionary, 4th Rd.,
Q. 201. "Purely public charity" is the only phrase in
Section 2 of Article VIII of the Constitution that might
be considered as synonymous with "benevolent." However,
the Supreme Court of Texas In the River Oaks Garden Club
case, supra, held that the accomplishment of "ends wholly
benevolent" was only one-third part of the definition of
an "institution of purely public charity." Therefore, the
word ".benevolent"will be construed and limited to mean the
same as "purely public charity."
                        the:flrst portion of Article VIII
Section%%%*co%%red         reads: "actual places OP reliilous
worship, also any property owned by a church or by a strictly
religious society for the exclusive use as a dwelling place
for the ministry of such church or religious society, and
which yields no revenue whatever to such church'or religious
society; provided that .suchexemption shall not extend to ~'
more property than is reasonably necessary for a dwellil;tg
place and in no event more than one acre of land, . e D
       In construing this exemption, it has many times been
held that the exemption goes only to the explicit property
defined In the Constitution. City of San Antonio v. Young




       The second part of Article VIII; Section 2 to be    .-
examined fn regard to "religion" is as follows: "and Qrop-
erty used exclusively and reasonably necessary In conducting
any association engaged in promoting the religious, educa-
tional and physical development of boys, girls, young men or
young,women operating under a State or National organization
of like character."



                        -1174-
    .   .




                                                       ,:,

            The Hon. Joe Resweber, Page 5 (M-240)            ',

                    Thus* then"religious purpose" of Section 22 of Article
            7150 wfll be limited wfth respect to this clause of the
            Constitution to those
                               ^_^ fraternal
                                   _       . organizations
                                              -      - ._ which
                                                              _. are of
            the cnaracter speclrled In such Clause. -8    conclusion 1s
            also applicable to the only other constitutional exemption
            relating to "religious," f,e., "also the endowment funds of
            such fnstftutfons of learning and religion not used with a
            view to profit," This provision relates to endowment funds
            and not to property generally, Harris v. City of Ft. Worth,
            142 Tex. 600, 180 S,W.2d 131 (192F4).
                   We thus conclude that the phrase "religious purpose"
            wfll be construed to encompass only the religious activities
            which are within the confines of the last three quoted portions
            of the Constitution.
:
                   Educational. With respect to "educational," the only
            applicable clauses"of Section 2 of Article VIII are those
            dealing wfth buildings and furniture of institutions which
            are used exclusively for school purposes, and endowment funds
            of such fnstftutions.
                   In order to fit th#se"'educational" exemptions, the ~-
            property must be of the exact nature described in the Constl-   .'
            tutlon, and no statute will be construed so as to afford a
            broader exemption.                                 82 Tex. 1,      ~
            17 S.W, 512 Bn891);                               o-871~(193g).
                   WRfle the statute in question does not specifically
            require that the property be owned and used exclusively for
            the named purposes, we are required to construe the statute
            to have been passed with a constitutional intent and thus such
            property must be owned and used wholly and completely for one
            or more of the constitutionally exempt urposes. See Smith
            v, Feather, 149 Tex. 402, 234 S,W.2d 411 (1950); Morris v~.
            Lone Star Chapter No. 6, 68 Tex. 698, 5 S.W, 519 flBgl)*
            David Graham Hall Foundation v. Highland Park Independ&
             e e   s 02      0 0   762 I- X. Clv.App. 19b3, writ yef., n.r.C.).
                   It is our opinfon that Article 7150, Section 22,.is
            valid, as constftutfonally limited as herein construed, .ln '-
            conferring an ad valorem property tax exemption on that QI'CP-
            erty of those fraternal organizations which is wholly, cozy',
            pletely and exclusively owned and used by them for,purely
            public charitable, religious and educational purposes. There-
            fore, the applfcation of the statute to the particular facts
            presented will determine in caeh case whether the property
            Is exempt, Insofar as this statute is subject to a broader


                                      -1175-
         Joe'Resweber, Page 6 (M-240)
The lion;.
                           ,.I.:
                              <



construction, that construction will not be adopted because
such would be unconstitutional.

                      SUMMARY
                 Senate BSll 105, Acts 60th Legislature,
            1967, codified as Section 22 of Article 7150,
            Vernon's Civil Statutes, is constitutional;
            however, Its effect is limited by the restrlc-
            tlve provisions of Article VIII, Section 2 of
            the Constitution of Texas. (This opinion does ,_
            not deal with House Bill No. 372, Acts 60th
            Legislature, p. 855, Ch. 363, which was also
            codified as Section 22 of Article 7150, Vernon's
            Civil Statutes:)
                                        s very truly,

                                            Tzm=
                                            C. MARTIN
                                            General of Texas


Prepared by Alfred Walker
Assistant Attorney General
APPROVED:
OPINION COMMITTEEi
Hawthorne Phillips, Chairman
Kerns ,Taylor, Co-chairman
Jack Goodman
Bill C aig
Ralph +iash
MariettiaMcGregor Payne
A. J. CARUBBI, Jr.
Executive Asslstant    "




                           -1176-
