                 THE       ATTORNEY               GENERAL
                                 OP     TEXAS

CWAWIrORDc. MAlrrlN          AUSTIN.TEXAR        78711
 Ax-rORNEY QENERAI.                   November   25, 1969


          Honorable  Joe Resweber                  Opinion   No.!+517
          County Attorney
          Harris County                           Re:    Chapter 652, Acts
          Harris County Courthouse                       of the 61st Legis-
          Houston,  Texas 77332                          lature,  1969 which
                                                         exempts from taxation
                                                         the property  owned
                                                         by Garden Clubs.
          Dear Mr. Resweber:                             RQ 550
                You have requested     an opinion  from this office      as to
          whether the property     of the LaPorte Bayshore Garden Club
          is exempt from ad valorem taxes by virtue of the exemp-
          ting statute   (Article   7150, V.C.S.,    Chapter 652, pi 1950,
          Acts 6lst  Legislature     1969, R.S.)  being unconstitutional
          under Art. VIII,    Sec. 2, Constitution     of Texas.

                 In order for an organization     to be exempt from ad
          valorem taxes,    it must bring itself    within one of the
          classes   of properties  enumerated in Article     VIII,    Sec-
          tion 2 of the Texas Constitution       which provides    as
          follows:                                                         ,~

                        "All occupation      taxes shall     be equal
                and uniform upon the same class             of subjects
                within the limits        of the authority       levying
                the tax; but the legislature            may, ty general
                laws, exempt from taxation           public   property
                used for public        purposes;    actual   places    or
                /-or? 7 religious       worship,    also any property
                owner 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 reve-
                nue whatever to such church or r,ellgious
                society;      provided   that such exemption shall
                not extend to more property            than is reasonably




                                  -2467-
Hon.   Joe Resweber,      page 2,    (~-517)


       necessary     for a dwelling        place and in
       no ,event more than one ‘acre of land;                     ~’
       places    of burial     not he1.d for private
       or corporate      profit;     all buildings       used
       exclusively      and owned by persons          or asso-
       ciations    of persons for school           purposes,
       and the necessary         furniture      of all schools
       and property      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;       also the endowment funds
       of such institutions          of learning      and reli-
       gion not used with a view of 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 fore-
       closure    sales made to satisfy           or protect
       such bonds or mortgages,            that such exemp-
       tion of such land and property              shall    con-
       tinue only for two years after              the purchase
       of the same at such sale by such instltu-
       tiona 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 m As amended Nov. 6, 1906, proclamation
       Jan, 7, 1907; Nov, 6, 1928.”

       Pursuant to the authority        granted to It by Art.
 VIII,   Sec. 2, the Legislature      enacted Art. 7150, Ver-
 non’s Clvll    Statutes,     which specifies    exemptions    from, ‘.
 ad valorem taxes.        The  6lst Legislature     by  Chapter   652
,amended Article     7153, Vernon’s     Civil   Statutes,   which
 provides    as f 0110~s z

              “Section  1 D Ar’c,icle 7150, Revised, Civil, ,,
       Statutes    of Texas, 1925, as amendeU, is amended
       by adding new Sections       24 and 25 to read as     ~:
       follows:




                          -2468-
Hon.   Joe Resweber,     page     3,   (M-517)


               ‘24.    All property      of organizations,
       whether incorpora ted or not, which are
       devoted wholly to the promotion             and en-
       couragement       of, or the dissemination        of
       information       concerning,     the development,
       propagation,        growing,   or arrangement     of
       flowers      or decorative     shrubs,   plants,    or
       trees,     is exempt from taxation,         provided
       the property        is owned and used for such
       purposes      only,    is not in whole or in part
       leased out to others,          and is not in any
       manner operated          at a profit   or houses any
       individual      or entity     which operates     a busi-
       ness upon said premises           at a profit.   1

              “Sec. 2,   All garden clubs  owning real
       property    in Texas shall  be exempt from ad
       valorem taxation.”

       Inasmuch ?s the last phrase of Art. VIII, Sec. 2,
provides    that       . all laws exempting property    from
taxation    other than the property   mentioned above shall   be
null and void,”    it is necessary  for the garden club to
come within one of the enumerated classes       of properties
to be entitled    to an exemption.

       The Supreme Court of Texas In City of Houston v.
Scottish    Rite Benevolent     Ass’n,  111 Tex. 191, 230 S.W,
978 (1921)      held that an institution     qualifies  as ,one
of “purely’public      charity”   where (1) it ,makes no gain
or profit,     (2) it accomplishes     ends wholly benevolent,
and (3) It benefits       persons indefinite    In number and In
personalities,      by preventing    them, through absolute    gra-
tuity,   from becoming burdens to society        and to the State.

       In the recent    case of Hilltop   Village, Inc. v.
Kerrville   Ind. Sch..Dlst.,     42o S.W.2d 943 (Tex.Sup.     1968),
the Court in considering      the tests   of what constitutes    a
“purely   public  charity”   stated at page 948:

             “River Oaks Garden Club v. City of
       Houston,   370 S.W.2d 85l.(Tex,Sup.     1963)j
       is our most recent   writing    upon the sub-
       ject of charitable   exemption from taxation,




                         -2469-
Hon.   Joe Reaweber,     page     4,   (M-517)


       In denying exemption there,               we reiterated
       the previously stated tests:

               ‘* * * fA 7n organization         is not
       an instituti’;ii     sf purely public     charity
       within     the meaning of’the     constitutional
       exemption unless it assumes,          to a material
       extent,     that which otherwise      might become
       the obligation       or duty of the community~
       or the state’,;      and I* * * unless its funds,~                  ‘~   ‘,
       property     and assets    are pledged and used             ‘~ ‘,
       to provide       for the basic needs of the
       sick,    distressed     and needy, whether the
       benefits     be extended only to a small seg-
       ment of society        or to the public     generally.‘:”

       Under our Constitution       the Legislature,   is powerless,
to exempt an organization        unless such organ1za,tlon     is
either   an institution      of “purely  public   charity”   as that
term is employed in our Constitution           or unless   the organl-
zation   comes within one of the enumerated classes           of prop-
erties   set forth    therein.

       Whether an organization     is an “lnstltutlon~~       of purely,
public   charity”   is a fact question      upon which tnis office
cannot pass.      We have been presented      no facts    as to:‘,the
use .belng made of the property,        and the corporate         charter
and by-laws The of the LaPort,e  Bayshore
                    Tax Assessor~Coll.ector  Garden   C.lub  are
                                                6hburd”as~kr;‘tain’not
                                                                     ,~” ,,.,. -.
before   us D
the facts    and make the initial     decision.     If the LaPorte
Bayshore Garden Club is a “garden club” of the type re-
fused an exemption by the Supreme Court in the River Oaks
case,   supra, under the holding      in that case,      there can be
no exemption.

      We are unable to conclude      as a matter of law that
the exempting statute    is unconstitutional      and that under
no conceivable  state   of facts    could the LaPorte Bayshore
Garden Club qualify   its property      for a charitable   exemp-
tlon or for one of the other enumerated classes          of prop-
erties set out in Article     VIII,    Section 2, Constitution
of Texas.




                         -2430-
Hon.   Joe Resweber,    page 5 (M-517)


                           SUMMARY


               If the LaPorte Bayshore Garden Club
       qualifies    as an "institution     of purely public
       charity"    as that term is used in Section         2,
       Article    VIII, Constitution     of Texas, or for
       one of the other exempted classes           of property
       enumerated in Article       VIII,  Section    2 of
       such Constitution,      it is ,exempt from ad val-
       orem taxation    and If not an "Institution         of
       purely public    charity",    it is not tax exempt.
                                               7
                                         Ve$/truly     yours,

                                      I




Prepared    by Terry Reed Goodman
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,     Chairman
George Kelton,     Vice-Chairman
                                                                 .,
Earl Hines
Arthur Sandlln
Fisher Tyler
Wardlow Lane

MEADEF, GRIFFIN
Staff Legal Assistant

NOLA WHITE
First Assistant




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