7lXnc ATK-ORNEY GENERAL OF WAS

**ILL** WI&SON ,-RN,?X GENERAL February 7, 1962

HonorableWayne Burns Opinion No. WW-1254 CountyAttorney Howard County Courthouse Big Spring, **Texas** DearRr.Burns: Re: Taxabilityof .private' kindergartenatid

first grade elementaryschool.

You have asked whether or not a private kindergarten and first grade elementaryschool Is exempt from.thead valorem tax. Your letter reads In part.96 follows: ~' "There Is a pri.qate school 'In

Reward,:", Countywhich Is operatedby lndlvlduals; and which furnishes' Instructionfor pre-' school age childrenand for at..least the First Grade of schoolingfor children. '. The entire prexilses dccupied~bythe school Is used solely and exclusivelyfor school purposesby 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 LegislatureenactedArticle. 7150, V.C.S.:,

Sec. 1 of which reads in part as follows:

"The followingproperty shall be exempt from taxation,to-wit:HonorableWayne Burns, Page 2 Opinion No. WW-1254

"1.
. . . All public colleges,public academies,.

. . and all such buildings used exclusivelyand owned by persons or associations

of persons for schoolpurposes;. . . .I(@aphasia addedJ The Supreme Court of Texas, In Smith v. Feathers, 149 Tex. 402, 234 S.W.2d 418, refused the contentionby the respondent that only schoolswhich were "publicly"owned are exempt, and stated at page 421:

8,

. . . If a building is privately owned and privatelyused it Is not a public building. We decline 'togive 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 followedby an exemptionof college and academy buildings privatelyowned." @nphasls addedJ Smith v. FeathQ8, supra, pertained to a privatelyowned 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 profitswere divided equally among the three partners. The daughterdid not own any Interest in the building. The Court stated at page 421:

"It Is obvious that from the date of the formationof 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 exclusivelyfor school purposes, It would not be exempt.
. . . It is equally clear that if any part of the buildingwas used for the purpose of carrying on a business or professionby 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."HonorableWayne Burns, Page 3
.. Opinion No- WW-1254

The Court allowed the exemption for the year 1947, but denied any exemptionfor the year 1948 and thereafterwhile the adult daughterwas a partner In the, operation .of

the school. Where the buildlng is also used as a.resldencefor the owners, It Is not owned and used exclusivelyfor schoolpurposes, and Is not exempt,Red v. Johnson, 53 Tex. 284; unless the owners of the building conducta boarding school thereln,and reside therein to affordprotection,guidance, etc., for the.puplls outside the class room. Red v. Morris, 72 Tex. 554;lO S.W. 681; Cassianov. UrsullneAcademy, 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 exclusivelyfor 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 operatedfor profit by the Individualsowning the same.' We assume from the latter statementthat 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 kindergartenand first grade elementary school In Howard County which you Inquiredabout la exempt from the ad valorem tax.

SUMMARY

A privatelyowned building,used for a kindergarten and first grade elementary school, the entire building being used solely and exclusivelyfor school purposesby the owners thereof,and no person sharing in the profits from the operationof 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

AssistantHonorableWayne 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: HoughtonBrownlee,Jr.