                                         The Attorney                   General of Texas
                                                                     tune 27, 1983

JIM MATTOX
Attorney General


                                        Honorable Mike Driscoll                      Opinion No. JM-41
Supreme      Court Building
P. 0. BOX 12548
                                        Harris County Attorney
Austin.    TX. 78711. 2546              1001 Preston, Suite 634                      Re: Whether Pacifica Foundation
5121475-2501                            Houston, Texas   77002                       Radio Station is entitled to ad
Telex    9101674~1367                                                                valorem tax exemption for its
Telecopier     5121475-0266                                                          personal property

1607 Main St.. Suite 1400               Dear Mr. Driscoll:
Dallas, TX. 75201-4709
2141742-6944                                 You have asked whether "the personal property of Pacifica
                                        Foundation Radio Station KPFT [is] exempt from ad valor-emtaxes." The
4624 Alberta       Ave.. Suite    160
                                        manager of radio station KPFT-FM, which is located in Houston, Texas,
El Paso. TX.       799052793            has advised us that Pacifica Foundation, which operates the radio
9151533.3484                            station, is a non-profit corporation organized under the laws of the
                                        state of California. The foundation contends that sections 11.18 and
                                        11.23(i) of the Tax Code are applicable. These sections provide as
   20 Dallas Ave., Suite 202
Houston,     TX. 77002-6986
                                        follows:
7131650.0666
                                                    Sec. 11.18. Charitable Organizations
806 Broadway,         Suite 312
                                                    (a) An organization that qualifies as a
Lubbock.     TX.    79401-3479
6061747-5238
                                                 charitable organization as provided by Subsection
                                                 (c) of this section is entitled to an exemption
                                                 from taxation of the buildings and tangible
4309 N. Tenth. Suite B                           personal property that:
McAllen.     TX. 76501-1665
5121662-4547
                                                    (1) are owned by the charitable organization;
                                                    and
200 Main Plaza. Suite 400
San Antonio,  TX. 76205-2797                        (2) except as permitted by Subsection (b) of
5121225~4191                                        this section, are used exclusively by qualified
                                                    charitable organizations.
An Equal      Opportunity/
Affirmative     Action     Employer                  .   .   .   .

                                                     (c) To qualify as a charitable organization
                                                 for    the  purposes    of this   section,   an
                                                 organization. . . must:

                                                    (1) be   organized excl"sively to perform
                                                    religious, charitable, scientific, literary, or
                                                    educational nurnoses
                                                                .  .      and. extent as nermitted
                                                                         --




                                                                            p. 175
                                                               .-


Honorable Mike Drlscoll - Page 2   (JM-41)                          .




             by 'Subsection Cd) of this section, engage
             exclusively in performing one or more of the
                              ._ _
             following charitable tunctions:

                (A) providing medical care without regard
                to the beneficiaries' ability to pay;

                (B) providing support or relief to orphans,
                delinquent,   dependent,   or    handicapped
                children in need of residential care, abused
                or battered spouses or children in need of
                temporary shelter, the impoverished, or
                victims of natural disaster without regard
                to the beneficiaries' ability to pay;

                (C) providing support to elderly persons or
                the handicapped without regard to the
                beneficiaries' ability to pay;

                (D) preserving a    historical   landmark or
                site;

                (E) promoting or operating a museum, zoo,
                library, theater of the dramatic arts, or
                symphony orchestra or choir;

                (F) promoting or providing humane treatment
                of animals;

                ('3 acquiring,    storing,   transporting,
                selling, or distributing water for public
                use;

                (H) answering fire alarms and extinguishing
                fires with no compensation or only nominal
                compensation  to   the   members   of   the
                organization;

                (I) promoting the athletic development of
                boys or girls under the age of 18 years;

                (J) preserving or conserving wildlife;

                (K)  promoting    educational    development
                through loans or scholarships to students;

                (L) providing    halfway    house   services
                pursuant to certification as a halfway house
                by the Board of Pardons and Paroles; or




                               p. 176
Honorable Mike Driscoll - Page 3   (JM-41)




                (M) providing permanent housing and related
                social,   health   care,  and   educational
                facilities for persons who are 62 years of
                age or older without regard to the
                residents' ability to pay; [and
                                            -   satisfy the
                requirements of subsections (c)(2) and
                (c)(3)1.

             Sec. 11.23.

             (i) Community Service Clubs. An association
          that qualifies as a community service club is
          entitled to an exemption from taxation of the
          tangible property the club owns that qualifies
          under Article VIII, Section 2, of the constitution
          and that is not used for profit or held for gain.
          To qualify as a community service club for the
          purposes of this subsection, an association must:

             (1) be organized to promote and must engage
             primarily in promoting:

                (A) the     religious,  educational,   and
                physical development of boys, girls, young
                men, or ybung women;

                (B) the development of the concepts of
                patriotism and love of country; -and

                (C) the    development   of interest    in
                community, national,    and  international
                affairs; [and satisfy the requirements of
                subsections(Z),   (3) and (4).   (Emphasis
                added).

     1n determining the status of the Pacifica Foundation under these
provisions, we must keep the follo"i"g principles in mind:
(1) statutes exempting property from taxation are to be strictly
construed, with all doubts about construction resolved against
exemption, see, e.g., Davies v. Meyer, 541 S.W.Zd 827, 829 (Tex.
1976); Hilltop Village, Inc. v. Kerrville Independent School District,
426 S.W.Zd 943, 948 (Tex. 1968); (2) anyone claiming an exemption
from taxation must, by strict proof, establish the existence of all
facts necessary to create the exemption, see, e.g., Plantation Foods,
Inc. v. City of Dallas, 437 S.W.Zd 396, 398 (Tex. Civ. App. - Dallas
1969, writ ref'd n.r.e.); Radio Bible Hour, Inc. v. Hurst-Euless
Independent School District, 341 S.W.Zd 467, 468 (Tex. Civ. App. -
Fort Worth 1960, writ ref'd n.r.e.).




                                     p. 177
Honorable Mike Driscoll - Page 4     (JM-41)




     In support of its claim that section 11.18 applies, Pacifica
Foundation states that it:.

         is organized for the purpose of disseminating
         noncommercial educational and cultural programs to
         the public. As an Internal Revenue Code Section
         501(c)(3) organization Pacifica depends upon
         public donations and volunteers for its support.
         However, in return it endeavors to provide its
         community with educational and cultural programing
         which cannot be provided by commercial stations.
         For proof one need only look at the foreign
         language programs found on KPFT-FM. . . In order
         to serve the entirety of the cosmopolitan
         comm""ity of Houston, Texas, KPFT broadcasts
         German,   French,   British,    Arabic,   Persian,
         Vietnamese, Chinese, Brazilian, Pakistani and
         Indian programs. In addition, dramatic readings,
         live music, recorded music and news are provided
         to its listeners. As an institution which seeks
         to further the intellectual growth of the total
         community by broadcasting informative musical and
         dramatic programs directed at both the minority
         and majority it performs a qualifying charitable
         function according to 11.18(c) of the Texas Tax
         Code.

     It is exceedingly doubtful that Pacifica Foundation could be
deemed to be "organized exclusively to perform religious, charitable,
scientific, literary, or educational purposes" within the meaning of
section 11.18(c)(l). Even if we assume arguendo that the foundation
could be so characterized, however, we cannot conclude, on the
strength of the information at hand, that the foundation "engage[s]
exclusively in performing one or more of the. . . charitable
functions" enumerated therein. For that matter, it does not appear
that the foundation engages even indirectly, much less exclusively, in
performing any of these functions.       Because the foundation must
satisfy both requirements of section 11.18(c)(l) in order to qualify
for a tax exemption, and because the information before us indicates
that the foundation fails to meet at least one of these requirements,
we conclude that it does not qualify for an exemption under section
11.18. Our conclusion renders it unnecessary for us to decide whether
the foundation satisfies the other requirements of section 11.18(c),
and whether, if the foundation qualified for a statutory exemption, it
would qualify for an exemption under the Texas Constitution. _See Tex.
Const. art. VIII, 92.

     In support of its claim that section 11.23(i) applies, Pacifica
Foundation states, inter alia, that:




                                   p. 178
Honorable Mike Driscoll - Page 5   (JM-41)




             (1) (A) The programing of KPFT-FM is oriented
          to educating young men and women, who also provide
          the bulk of the station volunteers. These same
          individuals receive free training in the operation
          of a radio station.

             (B) The core ,of,the Pacifica philosophy is to
          support the patriotic ideals of Thomas Jefferson.
          Those being that~ any society is pluralistic in
          that it is composed of many diverse elements and
          institutions should serve all of society not just
          the majority.    Our Constitution and form of
          government are best protected when all the diverse
          elements of our society have a forum upon which to
          express their ideas, and a,stage upon which they
          may hold their artistic performances. Pacifica
          exists to be that forum and stage and thereby
          serves our Constitution and country.

             (C) The programs of KPFT-FM. . . are oriented
          toward community, national, and international
          affairs in order to educate our community.

     Section 11.23(i) is titled "Community Service Clubs." It is
doubtful that Pacifica Foundation could qualify as a "club" as this
term is commonly understood. Assuming that the foundation could be
deemed a "club," however, we do not believe that it qualifies as a
"community service club" under the criteria set forth in section
11.23(i)(l). First, we do not see how the foundation could be said to
"be organized to promote and [to be engaging] primarily in promoting"
the "religious, educational, and physical development of boys, girls,
young men, or young women." (Emphasis added). Moreover, even if we
assume that the foundation to some extent furthers all of the three
interests enumerated in section 11.23(i)(l), we do not believe that it
is "organized to promote" and is "engage[dl primarily in promoting"
those three interests. We therefore conclude that the foundation does
not qualify for a tax exemption under section 11.23(i) of the Tax
Code. In light of our conclusions, we need not decide whether the
foundation satisfies the other section 11.23(i) requirements for a tax
exemption, and, if it did qualify for a statutory exemption, whether
it would satisfy the constitutional requirements therefor.

                             SUMMARY

             The facts at hand do not indicate that the
          Pacifica Foundation, which operates radio station
          KPFT-FM in Houston, Texas, qualifies for an




                                   p. 179
Honorable Mike Driscoll - Page 6     (JM-41)




          exemption from ad valorem taxation under either
          section 11.18 or section 11.23(i) of the Tax Code.




                                            JIM     MATTOX
                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney'General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton




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