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 

Big Spring, Texas 

DearRr.Burns: 

Re: Taxability of .private' 

kindergarten atid first 

grade elementary school. 

You have asked whether or not a private kindergarten and 

first grade elementary school Is exempt from.the ad valorem tax. 

Your letter reads In part.96 follows: ~' 

"There Is a pri.qate school 'In Reward,:", 

County which Is operated by lndlvlduals; 

and which furnishes' Instruction for pre-' 

school age children and for at..least the 

First Grade of schooling for children. '. 

The entire prexilses dccupied~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', 

satisfactorily completed 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 legislature may,, by general 

law;J,'eLnpt from taxation. . . all bulldpurposes and t.he necessary furnlt.ure .of 

all schools. . .'I' @phasls addedJ 

The Legislature enacted 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 exclusively and owned by persons or 

associations of persons for school purposes;. . . .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 'to give 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 

2: ?ior 

The bulldlngwas owned by Mr. & Mrs. Ii. 0. 

Feathers, to 1948 was operated by the husband and wife 

alone. In 19 48 an adult daughter of the Feathers became an equal 

partner with her parents In the operation of the school. The 

partnership made 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 

exclusively for 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 thereafter while 

the adult daughter was a partner In the, operation .of the 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,the subdect of this 

opinion, we note that you state,. "The entire premises occupied 

by the school Is used solely and exclusively for school. purposes 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,business or profession 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 Individuals owning 

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 kindergarten and 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 kindergarten and first grade elementary 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.