                     7lXnc   ATK-ORNEY            GENERAL

                                 OF      WAS


 ILL        WI&SON
,-RN,?X       GENERAL
                                 February 7, 1962

          Honorable Wayne Burns                Opinion No. WW-1254
          County Attorney
          Howard County Courthouse             Re:   Taxabilityof .private'
          Big Spring, Texas                          kindergartenatidfirst
                                                     grade elementary school.
          DearRr.Burns:
              You have asked whether or not a private kindergartenand
          first grade elementary school Is exempt from.the ad valorem tax.
              Your letter reads In part.96 follows:~'
                     "There Is a pri.qateschool 'InReward,:",
                   County which Is operated by lndlvlduals;
                   and which furnishes'Instructionfor pre-'
                   school age children and for at..leastthe
                   First Grade of schooling for children. '.
                   The entire prexilsesdccupied~by the school
                   Is used solely and exclusively for school
                   purposes by the owners thereof. Credit
                   is given to the students of this school
                   by the local public schools If a child has',
                   satisfactorilycompleted the First grade
                   currlculun,and such child becomes qualified
                   to enter the Second grade of our local
                   public schools In that event. The school
                  .ls operated for profit by the individuals
                   owning the same.~'
              Sec. 2 of Art. VIII, Texas Constitution,provides in
          part:
                        II
                             the legislaturemay,,by general
                     law;J,'eLnptfrom taxation. . . all bulld-

                     purposes and t.henecessary furnlt.ure
                                                         .of
                                       @phasls addedJ
                     all schools. . .'I'
              The Legislatureenacted Article.7150, V.C.S.:,Sec. 1 of
          which reads in part as follows:
                       "The following property shall be exempt
                     from taxation, to-wit:
Honorable Wayne Burns, Page 2      Opinion No. WW-1254


           "1. . . . All public colleges, public
         academies,. . . and all such buildings
         used exclusivelyand owned by persons or
         associationsof persons for school pur-
         poses;. . . .I( @aphasia addedJ
     The Supreme Court of Texas, In Smith v. Feathers,149 Tex.
402, 234 S.W.2d 418, refused the contention by the respondent
that only schools which were "publicly"owned are exempt, and
stated at page 421:
           8,
            . . . If a building is privately owned
         and privately used it Is not a public
         building. We decline 'togive the word
         'such' that meaning. It does not refer
         back to public buildings, but to college
         and academy buildings. . . . The statute
         first exempts public college and academy
         buildings, and that Is followed by an
         exemption of college and academy buildings
         privately owned." @nphasls addedJ
     Smith v. FeathQ8, supra, pertained to a privately owned
sohool of d 1      The bulldlngwas owned by Mr. & Mrs. Ii.0.
Feathers, 2: ?ior to 1948 was operated by the husband and wife
alone. In 1948 an adult daughter of the Feathers became an equal
partner with her parents In the operation of the school. The
partnershipmade an annual partnership Income tax return, and
the profits were divided equally among the three partners. The
daughter did not own any Interest in the building. The Court
stated at page 421:
           "It Is obvious that from the date of
         the formation of that partnership the
         owners of this building fir. & Mrs. H. 0.
         Featherg were not the exclusive operators
         of the school. Had Mr. & Mrs. Feathers
         rented the building to others who used it
         exclusivelyfor school purposes, It would
         not be exempt. . . . It is equally clear
         that if any part of the building was used
         for the purpose of carrying on a business
         or profession by one not the owner, that
         would destroy the exemption. . . : the fact
         that one of the three persons who use It
         as a school owns no Interest in
              destroys the exemption."
Honorable Wayne Burns, Page 3      .. Opinion No- WW-1254


     The Court allowed the exemption for the year 1947, but
denied any exemption for the year 1948 and thereafterwhile
the adult daughter was a partner In the,operation .ofthe school.
     Where the buildlng is also used as a.resldence for the
owners, It Is not owned and used exclusivelyfor school purposes,
and Is not exempt, Red v. Johnson, 53 Tex. 284; unless the owners
of the building conduct a boarding school thereln, and reside
therein to afford protection,guidance, etc., for the.puplls
outside the class room. Red v. Morris, 72 Tex. 554;lO S.W.
681; Cassiano v. Ursullne Academy, b4 Tex. 673.

        With respect to the school.which~ls,thesubdect of this
opinion, we note that you state,."The entire premises occupied
by the school Is used solely and exclusively for school.pur-
poses by the owners thereof." We assume, therefore, from that
statement, that no part of the building which houses the school
is used for a residence,or to conduct some,businessor pro-
fession    therein other than the school, or is rented or used by
any other person than the owners thereof. -You also state,
"The school is operated for profit by the Individualsowning
the same.' We assume from the latter statement that there is
no partner who shares in the profits of the school, except those
who are owners of the building. Under this set of facts, we
hold that the private kindergartenand first grade elementary
school In Howard County which you Inquired about la exempt from
the ad valorem tax.

                        SUMMARY
              A privately owned building, used
         for a kindergartenand first grade elemen-
         tary school, the entire building being
         used solely and exclusively for school
         purposes by the owners thereof, and no
         person sharing in the profits from the
         operation of the school except the owners
         of the building, Is exempt from the ad
         valorcm tax, under Sec. 2, Art. VIII,
         Texas Constitution,and Sec. 1, Art. 7150,
         V.C.S.            ,,:-

                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas



                                   Assistant
Honorable Wayne Burns, Page 3   Opinion No. ~WW-1254




APPROVED:
OPINION COMMITT8E:
W. V. Geppert, Chairman

Marietta McGregor Payne.
Robert Lewis
Bob Shannon
Grady Chandler
REVIgWgDFORTjiEATTORNEYG~L
By: Houghton Brownlee, Jr.
