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Honorable George B. Sheppard Comptroller.'of

Public Accounts Austin, Texas
Dear Sir: Opinion NO. 0-4164 Re: Questions relating to homestead exemption for state taxation purposes. This department has received and consideredyour request for an opinion fromwhich w'equote:

“Pleake give.@ so& opinion on the following qukstionk pertaining to the exemptibn of hom6steads under the provisions of Arficl.68, Section la, of the Constitution:
"1

. A Omanowni r&al propertywhich theat one time used for the~purposes of a home, he also towns city propertywhich he Is livingin and he has occupied the city pro erty for a number of years (2, 5, 10 or even 20 yearsP. Can this man claim homestead exemptiOn from State taxes on either property or should the exemption be Tranted only on the property that he isfactuallyusing as a home?

. "2* A man owns property in A. Countywhich he at one time occupied and used as a home. He has moved to B. County bought other property which he is 1lvIng in and he has occupied the propert number of'years (2,~5, 10 or 207 in B. County for a

. Can this man claim homestead exemption from State taxes in either County or should the exempti'on be granted only in the County inwhich he lives?
"3

. A man owns three or'more separateproperties only one ofwhich he has ever used as a home. Can he claim homestead exemptIon from State taxes on the property that has the greatest value or should the exemp-, tion.be granted only on the property that he is actually using as a home? "4

. On the tax rolls of the several counties we find numerous cases of property assessed in theHonorable George H. Sheppard, page 2 o-4164

name of an estate and a homestead exemptionhas been granted, the address shown on.,-the rolls Is a nonresident address. Where the parents are both deceased should the homestead exemptionbe grantedwhen no constituentmember of the familyremains to occupy and use the property as 8 home?" Article 8, Section la, of the Texas Constitutionprovides: "ThreeThousandDollars ($3,OOOiOO)of the assessed taxablevalue of all residence homesteadsas now defined by law Shall be exempt from all taxation for all State purposes; provided that this exemption shall not be applicable to thatpoPtion~of the State ad valorem taxes levied for State purposes remitted within those counties or otherpolitical subdivisions now receiving any remission of State taxes, until the expirationof such period of remission, unless before the explratlonof such period the board or governing body of any one or more of such counties or political subdivisionsshall have certified to the State Comptroller that the need for such remission of taxes has ceased to exist in such county or p-oliticalSubdlvision; then this Section shallbecome applicable to. each county or political subdivisionas and when It shallbecomewlthfn the provisionshereof."
.,. Article 16, Section 51, defines' a homestead %iscontemplatedwithin the provisions ofArticle 8, Section la, supra.

In our opinionNo. 0-1800we held:
"Aswill be noted, Section la, Article 8, limits the exemption to residence-homesteadsas now defined bg law. Neither the Constitutionnor the st&tutory laws differentiatebetween or define residence or business homesteads,but our courts have universally held that a-'family

may claim either. But Article 8, Settion la, limits the exemption to residence homesteads." The general ruleswith reference to property becoming impressedwith the homestead characteristicwill be briefly stated.
In 22 Tex. Jur. 51, it is sa,ld:

"The constitutionaland statutory PrOVisiOns requlre that property 'beused~for the',purposeof a home' in order that it may be exempt, and, to supportiicnorable GeorgeH. Sheppard, page 3 o-4164

the claim of homestead exemption, the claimantmust show that the property has been improvedor used ln somemanner Indicative of an intentionto occupy the premises as a home." The same authority at page 53 says: "Proofof intentionon the part of the claimant to use the property as a home is essential to a conclusion that the premises were exempt. 'Intention alone cannotgive a homestead right; but it is at the same time equally true that all the things combined cannot give Itwithout the intentionto dedlcate it to the uses of a home.' * * * It hasbeen held since the earliestdecisions in this state that 'intentioningood faith to occupy is the prLme factor' in impressingpropertywith a homestead character. * * * A determination of the issue as to the existence of intention is ordlnarlly a function of the jury."
In Lasseter vs. Blackwell, (Corn. of App.) 227 S.N. 944, the court said:

"It is conceded that intention,although expressed inwriting, is not suffisient to give force to the exemption. Something must be done which causes that intentionto attach to the property and give to It the character of a home. It must be impressedvlth the incidentsof's home."
In 22 Tex, Jur. 71, supported by many authorittes, it is said:

the and "Thehomestead continues the homesteadas long as It is owned. occupied and used as such. It ceases to be the homestead only when it is abandonedas such. * * + To constitute an 'abandonment'of the homestead, itmust affirmatively appear that therewas not only a removal from the home, but a removal coupledwith an Intentionnever to return."
In 22 Tex. Jur. 81, it is said: "The issueas to Intentionnot to use the premises or 'abandonment,'as it is generaliy described, Is one of fact to be determlned by a jury. * * *" The ruleswhich we have just quoted are applicable to proposltlons submi.tted by you. The answer to your first secondquestionswould depend upon the facts In each par-Honorable George R. Sheppard, page 4 o-4164

titular case to which facts the above rules could be applied, and therefore,we cannotpass upon your first and second questions as a matter of law. We are, therefore,unable to answer your first and secondquestions specifically.

In connectionwith the facts presented in your third question you have advised us orally that each of three or more separatepropertiesreferred to therein is In excess of 200 acres of land. In view of the facts thus presented in your third question it .isdefinitely settled that a family iS not entitled to two homesteadsat the same time. Silvers vs. Welch, 127 Tex. 58, 91 S. W. (2d) 686: Only that property which Ls actuallyused as a homestead and has actually become impressedwith the homestead characteristic couldbe properly claimed as exempt for taxation purposes under Article 8;Section la, of the Texas. Constitution. Cocke vs. Conquest, 120 Tex. 43, 35 S. W. (2d) 673;~22 Tex. JLV.. 53,, supra. Your third question is answered accordingly.

. In connectionwith the facts presented in your fourth question you have advised us orally that'you are interested only‘in the constituentphase of the question and are not interested in the non-resident'sphase of the same.

_ ,. Article 16, Section 50, of the Texas Constitution,provides that:

"Thehomestead of a family shallbe,,and is hereby protected from forced sale * * * except * * * for the taxes due there.on. * * *" Neither the Constitutionnor the Legislature has attempted to define a 'family," as used In the provisions of the Constitutionquoted above. In this connectionwe desire to quote from the case ofRoco vs. Greene, 50 Tex. 483, where it is said:
"Wededuce from the authorltles the following general rules to determinewhen the relation of a family, as contemplatedby the laws, exists: "(1) It Is one of a social status,not of mere contract. "(2) Legal or moral obligation on the head to ?Dzp-gxx+"

+s?f% Q+hfq rocunlyrra.- "(3) Corresponding state of dependence on the part of the othermembers for thls~support." See also 22 Tex. Jur. pp.~41 to 47, lncluslve.Ronorable George H. Sheppard, page 5 o-4164

cernlng yse of It Is said:

One of the latest expressions of our Supreme Court conthe nature of~~the homestead exemption is foundsin the Woods vs. Alvarado State Bank, 19 S.W. (2d) 35, where

. _
."Inview of our Constitutionaland statutory provisions concerning homesteadrights,we have concluded that in this state the homestead is to be regarded as an estate created not only for the protection of the family as a whole, but for the units of the family, including those who survive,and embracing the head of the family at the time of its dlssolution,whether the dissolution has been brought about by death or by dispersal, as distinguished from a mere privilege accorded the head of thenfamily for the benefit of the family as a whole.
Some specific examples of the constituentsof a'pamlly" entitled to claim homestead exemptionwill be given. A widow, with ~noliving relatives of hereown; livingwith and~carlng for minor grandchildren of her deceased husband, Is the head of her family composed of herself and suchminor children ard is entitled.to claim the homestead exemptionas suCh.'Wolfe VS. Buckley; 52 Tex. 641. A single man, livingwith anY‘supporting his widowed mother, Is the head of a family andmay cla.lm the exemptions thatwere created for the benefit or'the family. Barry vs. Hale ~(Civ.App.) 21 S.W. 783: The father of illegitimatechildren owes to them the moral obligation of caring for and supporting them-and that such fatherland such children,when living together, constitutea famlly, and the fatheras the head of such family is entitled to.claim the.exemptionpertaining thereto. Lane vs. Phillips, 69 Tex. 240; 6~s. W. 610; Rutherford vs. Mothershed (NV. App.) 92 S.W. 1021. A brother and sister living togetherunder conditions wherein it .isthe moral duty of the brother to support he-r, shebeing in a ,correspondingstate of dependence upon him for such support, creates a family, of which he is the head and as such is entitled to claim the exemption. Drought & Co. vs. Stallworth, (Civ. App.) 100 S. W. 188. A grandmother and her grandchild living together, she caring for and supporting the child - the child's parents being unable to do so- creates a familyrelation,with her as the head. Bank vs. Sokolski; (Civ.App.) 131 S.W. 818; Smith vs. Wright, (Civ.App.) 36 S.W. 324. A dependent father livingwith and being supportedby h~is unmarrieddaughters~constitutes a family;and such daughters may claim the homestead exemption to property, to which they hold the legal title, though there may be trust therein for the benefit of the father. Hutehenrider vs. Smith, (Corn. App.) 242 S. W. 204. One livingwith a child, that he haspin good faith adopted, is the head of the family composed of himself and such child, and as such may claim the exemptions that per-Honorable George Ii.Sheppard, page 6 O-4164

tain to a family. ChesnutVS. Specht, (Clv.App.) 272 S.W. 830. A divorced husband, living with and caring for his minor step-children,the children of his divorced wife, 'is the head of a family and may claim the exemptions thatwere created for the benefit of the family. Smlth,Bros.vs. Lucas, (Corn. App) 26 S.W. 1055. In our opinionNo. O-4176 this department held thatwhen an unmarrlea daughter who owned 'her house In which she and herdependent mother livedwas entitled to the homestead exemption,withln.the provlslons of Article 8, Section la, of the Constltutlon,upon the death of her mother. We quote from said opinion:

"It seems to be the settled law of this state thatwhen a homestead is once established tbe rights belonging thereto do not cease to existby-reason of the death or dispersal of the constituentmembers of the family,but such rights continue.for the protection of the survivingunits of the family, Including the head of the family. In the instantcase the unmarried adult daughter and her mother,while living together, constitute a family,with the daughter as its head,. Therefore,we see no good reason to hold that the death *' of the motherwould have the effect of dissolvingthe homesteadrights of the daughter that had'been acquired while the motherwas l.iving. The fact that 'thedaughter is the sole survivor of the family is unimportant and insufficientto warrant a contrary conclusion."
We are enclosinga copy of OpinionNo. O-4176which contains a detailed discussion of the authorities in support of the above conclusion.

In view of the ever-changingnature of the homestead. law, each case as it comesbefore the court is considered separately and sui generis. stituent of a "family: Therefore', the examples of a conthat we have set out herein, are not to be taken nor consideredby you as exclusive,because, fromthe history of the court decisions deallrig with homestead law, the court is continuallyenlarging the scope of the word "family" for homestead exemptionpurposes.

It is fundamental, of course, that there must be some legal constituent of the family in existencebefore the claim of homestead exemption can be lawfully asserted and obtained. Likewise, the homestead exemptionmust necessarily terminate when the person's right to assert the same, under the Constitution and laws of this State, ceases to exist. Thompsonv. Kay, (Sup. Ct.) 77 S. W. (2d).201,and cases therein cited; 22 Tex. Jur. Sec. 226, pp. 326, 327.Honorable George H. Sheppard, page 7 o-4164

Since you are only interested In the constituency of a family, in your fourth question, It is answered in accordance with our expressions hereinabove stated. In otherwords, if there Is no surviving constituent of the "family"remaining, then therewould be no one who could lawfullyclaim and be entitled to the homestead exemption.

We trust that in this manner we have answered your Inquiry.
Yours very truly
ATTORNRYGRNERAL OF TEXAS

By s/RaroldMcCracken Harold McCracken

Assistant HM:ej:wc Encl.

APPROVED FEE 18, 1942 s/GroverSellers FIRST ASSISTAWT ATTORElEYGENERAL Approved Oplnlon Committee By s/BwB Chairman