EA MNEY GENERAL 

XAS 

CWAWPORD c. MAIRTlN AUSTIN,TEXAR 78711 

.aT-roRNEY CaENIFRAL 

October 5, 1970 

Honorable Ted Butler Opinion No. M-701 

Criminal District Attorney 

Bexar County, Texas Re: The imposition of'ad valorem 

San Antonio, Texas tax under Article 7146, V.C.S. 

as amended, upon mobile homes 

or trailers, which are owned 

by nonresident servicemen 

and are temporarily situated 

withInTexas ,upon property 

Dear Mr. Butler: not owned by the nonresident. 

Your request for an opinion poses the following question: 

. . 1 does your Opinion No. Ww-742 still 

remaiq effect,ive or with the Amendment to 

Article 7146, V.A.T.S., do you have another' ~"I 

opinion?', 

: 

: Article 7146,:Vernon's Civil Statutes, as amended by Acts 

1969, 61st Leg., eff.' September, 1, 1969, reads'as foll.ows: 

"Real property for the purpose of taxation, 

shall be construed to Include the land itself, 

whether laid out In town lots or otherwise 

and all buildings, structures, and lmprovements, or other fixtures of whatsoever kind 

thereon, and all the rights and privlleges 

belonging or in anywise appertaining'thereto, 

and all mines, minerals, quarries and fossils 

in and under the same, and forms of housing .' 

adaptabae to motlvatlon'by a p.ower connected. 

thereto commonly called 'trallers.',or ~krabile 

homes,' which are or can be used for resideritialp 

business, commercial, or office purposes ., except 

those located within the boundaries of an assessing unit for less than 60 days or unoccupied 

and for sale. The value of any trailer or mobile 

home shall not be included in the assessment of 

the land on which It is located, unless both the 

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Honorable Ted Butler, Page 2,: ~. (M-701) 

land and the trailer or mobile home are 

owned by the same person. If the owner of 

the trailer or mobile home is not the owner 

of the.land, the trailer or mobile home 'shall 

be rendered for taxation separately from the 

land and taxes assessed shall be.a liability 

of the owner of the trailer or mobile home, and 

not a liability of the landowner. Land on which 

a trailer or mobile home is located shall not 

be subject to execution for the collection of 

taxes assessed against a trailer or mobile home ,.: 

unless both are owned by the same person.% "'," .: 

Opinion No. WW-742 (1959), dealt with the question of 

whether a house trailer owned~ by a nonresident serviceman 

could be considered real property and subject to ad valorem 

taxation if it was situated on a plot of land owned by the 

nonresident serviceman, who did not intend that the house 

trailer should become a permanent part of the land, but merely 

his, temporary residence during his period of duty in the .State. 

of Texas. In that opinion this office determined by the use 

of Texas case law criteria defining real property that the 

trailer remained personalty inasmuch as the party annexing 

the trailer to the lot did not intend that It become a permanent accession to the freehold. Further, the trailer was 

determined nontaxable under the Soldiers and Sailors' Relief 

Act, 50 USC App 574, which read and still 

x5rlows : 

reads, 121 ,1?%,?% .a? 

. : 

"For the purposes of taxation in respect of the 

~personal property~. . . of any such person (a 

serviceman) by any State . . .,of which such 

person is not a resident or in which he is not 

dcnniciled . . . personal property shall not be 

deemed to be ldcated or present in or have a 

situs for taxation in such 'state. i s ." 

Article 7146, Vernon's Civil Statutes, before its amendment in 196g'and at the time Opinion No'W-742 was issued, 

provided: ._ 

“Real property for the purpose of taxation, ‘. 

shall be construed to include the land itself, 

whether laid out in town lots~ or otherwise, 

and all buildings, structures and improve'- 

ments, or other fixtures of whatsoever kind 

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Honorable Ted Butler, Page 3,(M-701) " _, 

thereon, and all the rights and privileges 

belonging or in any wise appertaining thereto, 

and all mines, minerals, quarries and fossils 

in and under the same.' 

Thus, mobile homes or trailers were not specifically 

defined as real property under Article 7146, Vernon's Civil 

Statutes,~until this Article was amended on September 1, 1969. 

,Before this date, as was done in Opln,lonWW-742, it was necessary to apply the case law rules of fixtures .to determine:., 

whether property was realty or personalty within the meaning 

of Article 7146, However, once the amendment became effective on the date heretofore mentioned, mobile homes ~or,t~railers 

became real orooertv for ad valorem tax ourooses and were~no 

lonaer subie;t 'to mketing the definition*set forth in case 

authorities e Hurt v. $oope~r, 110 S.W.2d 896 (Tex.Sup. 

1937) : "Thk si%&e having d ef 

cerned M 

?i?ied the word,'we are not'conrith its usual meaning.'! Gifford-Hill & Co. v." State 

of Texas i, 442 S.W.2d 320 (Tex.Sup. 1969) : "In imposing the 

sales ta nix .from which this litigation arose the Legislature 

has specifically defined the term 'sale.' This definition is 

binding on the courts in an interpretation of this Article.") 

In New York Mobile HomesAssociatIon v. Steckel. 9 N.Y.2d 

z53ip;15 N.Y.S.2d 487, 175 N.E.2d 151 816 A.L.R,2d 270.(N.Y. Ct. 

* 1961), the New York Court uph&d an ad valorem 

vision defining the terms "lands9" 'real estateg," and 

tax pro- 

"real 

property" as "forms‘of housing adaptable to motivation by a 

power connected thereto, commonly called 'trailers@ or !mobile 

homes,' which are or can be used for residential, business, 

commercial or office purposes, except those (1) located within 

the boundaries of an assessing unit for less than 60 days D o -’ 

The Court determined the trailers or mobile homes were used as 

residences, that they remained stationary, that their water 

supply came from tubing attached to an outlet in the ground, 

that they were connected to the tark sewage system and that 

they were set on blocks so that m 0 0 there is a rational 

basis for the legislative classification a 0 *",of mobile 

homes or trailers as real property. 

It is, therefore, apparent that Article 7146, Vernon's 

Civil Statutes, as amended9 has changed Opinion WW-742, unless 

this Article as emended conflicts or interferes with 50 USC 

App. 574, Soldiers and Sailors' Relief Act, in which case the 

"Supremacy Clause" rule as itvree v. Bland, 82 

s.ct. 1089, 369 u-s, 663 (1962) would apply. The United 

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Honorable, Ted Butler, Page &,(M-701)~ 

States Supreme Court in Free v. Bland, supra, held that a ~. 

Texas statutory enactment conflicted with a United States 

Treasury Regulation. In making this determination, the, 

Court pronounced the "Supremacy Clause" rule:' 

II 

. . . The relative Importance to the State of 

'Its own law is not material when the~re is a conflict with a valid federal law, for the,Framers 

of our Constitution provided~that the federal 

law must prevail. ,Artidle'VI,,,Ciaus'e,~2a'~:'This 

principle was made clear by Chief Justice., : 

Marshall when he stated' for the Court that:&iy' 

state law, however clearly within a State'.s '.'.~, 

acknowledged power, which interferes with or' 

is contrary to federal law, must yield," 

In reaching an opinion on whether there is a conflict,. 

between'state and federal law in this 'situation,'the hist'ory 

of state taxation of nonresident servicemen under the Soldiers 

and Sailors' Relief Act, supra, must be reviewed. Four important United States Supreme Court decisions under the above 

mentioned Act are Dameron v. Brodhead,,345 U.S. 

v. Busard 3 

v. Neal, 382 U.S. ~9~8~‘~:&!?fi85 

States, 895 U.S. 169,.89 S.Ct. 

A Colorado personal property ad valorem tax imposed on 

property of a nonresident Air Force officer was held. invalid, 

in Demeron v. Brodhead, supra. In reaching its decision; the 

couwoldiers and Sailors' Relief Act stated: 

. . . For this statute merely states that 

the taxable domicile of servicemen'shall not 

be changed by military assignment. This we 

think is within the federal power. 

. . . There is no suggestion that the state 

of original residence must. have imposed a'property tax. O . . Congress appears to have chosen 

the broader technique of the statute carefully; 

freeing servicemen from both income and property 

taxes imposed by any state by virtue of their 

presence there as a result of military orders. 

It saved the sole right of taxation to the state 

of original residence whether or not that state 

exercised the right. O s . 

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Honorable'Ted Butler, Page 5,(M- 701) 

I, We reject the argument that the 

word ;deemed' as used implies a rebuttable 

presumption as to permit taxation in the 

state of temporary presence in some cases." 

The court in California v, Buzard, supras struck down a 

California "license fee" imposed uoon a nonresident serviceman, who attempted to register his-motor vehicle in that state. 

The court held that California could collect the tax under the 

soldiers and Sa ilors' Relief Act only if it was a "license, 

fee. or excise" on the motor veh iicle and. that since the purpose of the California Act was for general revenue? it dfd not 

meet the test of being a "license, fee, or excise, ' The Court 

stated: 

It. 0 The very purpose of #574 in broadly 

freeing the nonresident serviceman from'the 

obligation to pay property and income taxes 

was to relieve him of the burden of supporting the governments of the States where he 

was present solely in compliance with military orders. e D *" 

The authority of a state to levy personal property ad 

valorem taxes on a nonresident serviceman's house trailer under 

the Soldiers and Sailors 1 Relief Act was determined in Sna 

Neal, supra. The serviceman had not registered or lfcense ----F& 

trailer or paid,any taxes on itin his home state, The,Court 

held therein: 

"This a companion case to California v. 

Buzard. e D 0 We reverse on the authority of our holding today in Buzard that 

the failure to pay the motor vehicle 

'license, fee, or excise' of the home 

State entitles the host State only to 

exact motor vehicle taxes qualifying as 

'licenses, fees, or excises,s the ad 

valorem tax, as the Mississippi Supreme 

Court acknowledged, is not such an 

exactfon. 0 D 0 

A Sales and Use Tax on a nonresi'dent serviceman was upheld 

In Sullivan v, United States, supra, as not being within the 

coverage of the A c t 0 The following quotation reflects: 

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Honorable Ted Butler, Page 6,(M- 7Oi)' 

'Section 574 does not relieve servicemen 

stationed away fromhome from all taxes: of 

the host State. It was enacted with the 

much narrower design 't prevent multiple 

State taxation ~of the pFoperty.1' And the:. ~ 

substantial risk of double taxatkon:un$er::~' 

multi-state ad valorem property taxes' does~ 

not exist with respect to sales and use 

taxes. . . ." (Emphasis added.) 

Thus, it is apparent that State ad valoreni taxes.. onper- : 

sonal property of nonresident military personnel will not be 

upheld inasmuch as they violate the Soldiers and Sailors' Relief 

Act, supra. 

The case of United States v. Chester CountvBoard of Assessment and.Revisio 

Supp. 1001 (E.D. 

longing.to nonresldentservice- 

"Real Estate" as ": . . house 

property taxes on house trailen 

men. The Pennsylvania Act defined 

trailers and mobile homes permanently attached to land or connected with water, gas, electric or sewage facilities,,., . '. ." 

In reviewing this provision, the Court .determined: 

11 

..,. 

"The salutory purpose of the.federal act 

[Soldiers and Sailors' Relief Act] is to 

relieve nonresident servicemen of the burden of supporting state and local governments, whenever their presence results 

solely from compliance with military orders. 

11 

. . . . 

"In effect; ,by appropriate exercises of its, % 

taxing powers, Pennsylvania has givenan. 

artificial, statutory real property designation to a specific class of house trailers 

which. otherwise, still retain the basic 

characteristic of tangible personal property,' namely, mobility. 

"We conclude that this statute, intended to 

raise revenue for the ooeration of local 

governments within the &ate,.as sought to 

be applied to the personal property,of.non- 

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Ted Butler,, Page 7,(M- 701) 

resident servicemen in active service 

under military orders, is in irreconcflable conflict with the clearly defined 

Congressional purpose of #574 fn broadiy 

freeing the nonresident servicemen from~ 

the obligation to pay property and income 

taxes. . . . 

Thus, under federal case law authority, a state cannot 

through statutory enactment change the nature of property and 

tax that property when it was prohibited by federal law from 

taxing the property in its original nature. To state the rule 

more simply, a State cannot tax indirectly what It is prohibited 

by federal law from taxing directly. To apply a real property 

ad valorem tax to the property in question would result in a 

pyramiding of taxes, because the State of the servicemen's 

domicile would still have the right to levy an ad valorem tax 

on the same.property. As stated in the ca,ses he,reinabpveU. 

cited, the purpose of the Soldiers and Sailors' Relfef Act 

Is to remedy this situation. 

On the basis of this reasoning, it is concluded that the 

"Supremacy Clause" of the United States Constitutfon prohibits 

the application of Article 7146 to the factual sftuatfon in 

auestlon inasmuch as this Article interferes with 50 U,S,C. 

App. 574, Soldiers and Sailors' Relief Act,~ and mustyield to 

the provisions of that Act. We are of the opfnfon thatmobfle 

homes or trailers of nonresident servfcemen are not subject to 

ad valorem taxation. 

SUMMARY 

Article 7146, V.C,S,, defining mobile 

homes or trailers as real property for 

ad valorem tax purposes must yield to the 

provisions of 50 U.S.C, App. 57b9 Soldiers 

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Honorable Ted Butler, page 8,(ti- 701) 

and Sailors' Relief Act, by virtue of 

th "Supremacy Cl " of the United 

Stztes Constituti%~e*rtiele VI, Clause 

2. Thus;'mobile homes or trailers owned 

by nonresident 

ject to ad' valorem taxation. 

of Texas 

Prepared by Harriet D. Burke 

Assistant At,torney General 

Atto 

lT 

ey General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

S, J. Arenson 

R. D, Green 

Jack Sparks 

John Reese 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant ' 

NOLA WRITE 

First Assistant 

,