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                         THEA'ITORNEY                              GENERAL
                                              OF’TEXAS
                                       AU~TN.        TRXAS       %%7ll




                                                August      1, 1974


        The Honorable  Ned Granger                                 Opinion       No.   H- 364
        Travis  County Attorney
        Travis  County Courthouse                                  Re: Constitutionality   of Article
        Austin,  Texas                                             7329a, V. T. C. S., exempting
                                                                   from forced    sale for taxes,
                                                                   homestead   of person over 65.

        Dear   Mr.   Granger:

                  you have requested    our opinion as to whether Article    7329a,
        V.T.C.S.,     is constitutional  in view of Article   16, Sec. 50 and Article
        8, Sec. 10 of the Constitution     of the State of Texas.

                  Article    7329a is the provision        enacted in 1971 (Acts 1971, 62nd
        Leg.,    p. 2858,ch       937), whereby      the collection     of delinquent   taxes by
        foreclosing      upon the homestead        of a person 65 years of age or older may
        be deferred.        Section   50 of Article     16 of the Constitution      concerns,   inter
        alia,   the protection      of homesteads      from forced      sale.   Section 10 of Article
        8 of the Constitution        deprives   the Legislature       of power to release     persons
        or property      from the payment        of certain    taxes.

                 Because     Article   16, Section     50 states      in part:

                           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 taxes due thereon   . . . ,

        and because     Article    8Section     10 states    in part:

                           The Legislature        shall have no power to release
                           the inhabitants      of, or property  in, any county,



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The Honorable     Ned Granger       page   2     (H-364)




                  city or town from the payment of taxes          levied
                  for State or county purposes . . . ,

you suggest:

                  The legislature,      in promulgating    Article    7329a
                  has gone outside this Constitutional         provision
                  and broadened      the exemption    of homesteads
                  from forced     sale.    By exempting    homesteads
                  belonging   to persons 65 years of age or older
                  from forced     sale, the legislature    has narrowed
                  the exceptions     and broadened     the exemption.

                      While the legislature     has not exempted    the
                  property   from taxes,    it has in effect released
                  the property   owners over 65 years of age from
                  the payment of taxes so long as they continue to
                  occupy the property    as a homestead.

        Section   1 of Article   7329a reads:

                  Any person who is 65 years of age or older and
                  who owns and occupies         a homestead,     as defined
                  in Article    XVI, Section 51 of the Texas Constitu-
                  tion, against which any taxing unit has filed any
                  suit to collect    delinquent   ad valorem     taxes may,
                  in addition to any other pleading,        file an affidavit
                  that such person owns and occupies            such property
                  as his or her homestead         and that the affiant has
                  already    passed his or her sixty-fifth       (65th) birthday.
                  If the taxing unit does not file a controverting
                  affidavit,   or if upon bearing     such controverting
                  affidavits   it shall be found that the affiant owns
                  and occupies      such property    as homestead      and has
                  already    passed his or her sixty-fifth       (65th) birthday,
                  no further action shall be taken in said cause until
                  said homestead       is no longer
                                      ---             owned and occupied by
                   such affiant who hadpassed         such sixty-fifth    (65th)
                  birthday.      (emphasis    added)

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The Honorable     Ned Granger        page   3   (H-364)




          The underlined   clause,  in our opinion,      expresses   no intent to
release    the affiant from ad valorem    tax liability,    but only one to defer
foreclosure      upon his homestead  until the affiant no longer owns and
occupies    it.   The statute does not grant an .aQtomatic    deferment   of
ad valorem      tax liability. The wording   of the statute is permissive    and
places a burden on the affiant to act in his own behalf:

                  Any person who is 65 years of age or older             . . . .
                  may..    . file an affidavit . . .

Furthermore,      section   2 of the Article     states:

                  This Act shall not extinguish         or release  the delinquent
                  taxes,   penalties,   interest    or costs against such home-
                  stead property,     and in any suit upon which action is
                  deferred   pursuant to this Act no plea of limitation,
                  laches,   or want of prosecution        shall apply against the
                  taxing unit.     (emphasis     added)

Section   3 thereof   continues   with:

                  Penalty    and interest    shall continue to accrue during
                  the period of deferment          prescribed    in this Act and
                  delinquent    taxes,   penalties,    interest   and costs shall
                  at all times remain      a first and paramount         lien upon
                  the land and all mutations.         thereof   until paid, to the
                  end that no taxing      unit shall lose its taxes,        penalty,
                  interest   and costs upon such homestead            property
                  because of deferment        of action pursuant to this Act.
                   (emphasis    added)

         We do not think it can be correctly       said that the deferment      contempla-
ted here is the indirect    equivalent   of a tax-payment    release    prohibited    by
Article   8,Section 10 of the Constitution.      There is no suggestion      made that
the statute works any direct release        of taxes,  but rather that the provision
may have that effect.     As said in Mexia Independent        School District      v. City
of Mexia,     133 S. W. 2d 118 (Tex.   1939) where similar      charges    were made,



                                                p. 1705
The Honorable     Ned Granger        page 4     (H-364)




” . . . [I]t is possible    under the Act in question       for [the authorities]    . . .
to fail to properly   foreclose    the liens held by the taxing units , . . , but
this is a danger inherent      in all governmental     functions performed        by
human agents . . . [T]he mere existence            of this possibility   does not
render all our tax law unconstitutionaL”           133 S. W. 2d 122. Without
more we cannot say the statute contravenes            Article   8.,Sec. 10.

         Nor do we think a statute of this kind is prohibited      by Article     16,
Sec. 50 of the Constitution.      That secti on acts as a protection    for home-
steads from forced     sale to satisfy the classes    of debts embraced     by it.
But it does not command      or require   the immediate    forced  sale of home-
steads for those classes     of debts not embraced     by it.  Rather,   it does not
prevent   such a sale.    For instance,   it has never been suggested      that
Article  7277, V. T. C. S., is unconstitutional     on account of Article     16,
Sec. 50 although it has been in force       since 1879 and defers tax sales of
real property   until a list of delinquents    has been posted a certain     length
of time.

         Article  7329a, V. T. C. S., in our opinion,        does not purport       to
exempt the homesteads       of affiants   from forced    sale for “the taxes       due
thereon”   in contravention    of Article    16, Sec. 50 of the Constitution.        It
merely   allows  the postponement       of action leading to that result.

                                         SUMMARY

                       Article   7329a, V. T. C. S., allowing    deferment
                  of the collection    of delinquent   taxes by foreclosure
                  upon the homestead       of a person aged 65 years      of age
                  or older does not contravene        Article 8, Sec. 10, or
                  Article    16, Sec. 50, of the Texas Constitution.

                                                       Very   truly   yours,




                                                       JOHN L. HILL
                                                       Attorney General        of Texas




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            The   Honorable   Ned Granger    page   5   (H-364)




            DAVID M. KENDALL,
                              &LIlLiw  Chairman
            Opinion Committee




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