## 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 LegisHouston, Texas 77332 lature, 1969 which exempts from taxation the property owned by Garden Clubs. Dear Mr. Resweber: RQ550 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 exempting 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, Section 2of the Texas Constitution which provides as follows: ,~

"All occupation taxes shall be equal and uniform upon the sameclass 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? 7religious worship, also any property owner by achurch or by a strictly religious society for the exclusive use as adwelling place for the ministry of such church or religious society, andwhich yields norevenue 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 adwelling place and in no,event more than one ‘acre of land;
~’ places of burial not he1.dfor private or corporate profit; all buildings used exclusively and owned bypersons or associations of persons for school purposes, and the necessary furniture of all schools andproperty used exclusively and reasonably necessary in conducting any association engaged in promoting the religious, educational and physical development of boys, girls, young menor young womenoperating under a State or National organization of like character; also the endowment funds of such institutions of learning and religion not used with aview of profit; and when the sameare 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 madeto satisfy or protect such bonds or mortgages, that such exemption of such land and property shall continue only for twoyears after the purchase of the sameat such sale by such instltutiona and no longer, and institutions of purely public charity; and all laws exempting property from taxation other’ than .the

. property above mentioned shall be null and voidm Asamended 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, Vernon’s Clvll Statutes, which specifies exemptions from, ‘

. ad valorem taxes. The 6lst Legislature byChapter 652 ,amended Article 7153, Vernon’s Civil Statutes, which provides as f0110~sz

“Section 1D Ar’c,icle 7150, Revised, Civil, ,, Statutes of Texas, 1925, as amendeU, is amended byadding newSections 24and 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 encouragement 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 ownedand used for such purposes only, is not in whole or in part leased out to others, and is not in any manner operated at aprofit or houses any individual or entity which operates a business upon said premises at aprofit. 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 aninstitution qualifies as,one of “purely’public charity” where (1) it ,makesnogain or profit, (2) it accomplishes ends wholly benevolent, and (3) It benefits persons indefinite In number and In personalities, by preventing them, through absolute gratuity, 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 OaksGarden Club v. City of Houston, 370 S.W.2d 85l.(Tex,Sup. 1963)j is our most recent writing upon the subject of charitable exemption from taxation,

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

In denying exemption there, wereiterated 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 amaterial 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 asmall segment 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 organlzation comes within one of the enumerated classes of properties set forth therein. Whether an organization is an “lnstltutlon~~ of purely, public charity” is afact question upon which tnis office cannot pass. Wehave been presented nofacts asto:‘,the use .belng madeof the property, and the corporate charter and by-laws of the LaPort,e Bayshore Garden C.lubare not before usD TheTaxAssessor~Coll.ector 6hburd”as~kr;‘tain’,~” ,,.,.-. the facts andmakethe initial decision. If the LaPorte Bayshore Garden Club is a “garden club” of the type refused an exemption by the Supreme Court in the River Oaks case, supra, under the holding in that case, there can be no exemption. Weare unable to conclude as amatter of law that the exempting statute is unconstitutional and that under noconceivable state of facts could the LaPorte Bayshore Garden Club qualify its property for acharitable exemptlon or for one of the other enumerated classes of properties 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 2of such Constitution, it is ,exempt from ad valorem 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: OPINIONCOMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Earl Hines Arthur Sandlln Fisher Tyler Wardlow Lane MEADE F, GRIFFIN Staff Legal Assistant NOLAWHITE First Assistant .,

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