. - 

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 considered your request for an opinion from which w'e quote: 

“Pleake give.@ so& opinion on the following 

qukstionk pertaining to the exemptibn of hom6steads 

under the provisions of Arficl.6 8, Section la, of 

the Constitution: 

"1 . A Oman owni r&al property which the at one 

time used for the~purposes of a home, he also towns 

city property which he Is livingin and he has occupied the city pro erty for a number of years (2, 5, 

10 or even 20 years P . Can this man claim homestead 

exemptiOn from State taxes on either property or 

should the exemption be Tranted only on the property 

that he is factually using as a home? . 

"2 * A man owns property in A. County which 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 20 7 

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 

in which he lives? 

"3 . A man owns three or'more separate properties 

only one of which 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 the 
Honorable George H. Sheppard, page 2 o-4164 

name of an estate and a homestead exemption has been 

granted, the address shown on.,-the rolls Is a nonresident address. Where the parents are both deceased 

should the homestead exemption be granted when no 

constituent member of the family remains to occupy and 

use the property as 8 home?" 

Article 8, Section la, of the Texas Constitution provides: 

"Three Thousand Dollars ($3,OOOiOO) of the assessed taxable value of all residence homesteads as 

now defined by law Shall be exempt from all taxation 

for all State purposes; provided that this exemption 

shall not be applicable to that poPtion~ of the State 

ad valorem taxes levied for State purposes remitted 

within those counties or other political subdivisions 

now receiving any remission of State taxes, until the 

expiration of such period of remission, unless before 

the explratlon of such period the board or governing 

body of any one or more of such counties or political 

subdivisions shall have certified to the State Comptroller that the need for such remission of taxes has 

ceased to exist in such county or p-olitical Subdlvision; then this Section shall become applicable to. 

each county or political subdivision as and when It 

shall become wlthfn the provisions hereof." ., . 

Article 16, Section 51, defines' a homestead %is contemplated within the provisions of Article 8, Section la, supra. 

In our opinion No. 0-1800 we held: 

"As will be noted, Section la, Article 8, limits 

the exemption to residence-homesteads as now defined 

bg law. Neither the Constitution nor the st&tutory 

laws differentiate between 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 rules with reference to property becoming 

impressed with the homestead characteristic will be briefly 

stated. 

In 22 Tex. Jur. 51, it is sa,ld: 

"The constitutional and statutory PrOVisiOns requlre that property 'be used~ for the',purpose of a 

home' in order that it may be exempt, and, to support 
iicnorable George H. Sheppard, page 3 o-4164 

the claim of homestead exemption, the claimant must 

show that the property has been improved or used ln 

some manner Indicative of an intention to occupy the 

premises as a home." 

The same authority at page 53 says: 

"Proof of intention on the part of the claimant 

to use the property as a home is essential to a conclusion that the premises were exempt. 'Intention 

alone cannot give a homestead right; but it is at 

the same time equally true that all the things combined cannot give It without the intention to dedlcate it to the uses of a home.' * * * It has been 

held since the earliest decisions in this state that 

'intention in good faith to occupy is the prLme factor ' in impressing property with 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 in writing, is not suffisient to give force to the 

exemption. Something must be done which causes that 

intention to attach to the property and give to It 

the character of a home. It must be impressed vlth 

the incidents of's home." 

In 22 Tex, Jur. 71, supported by many authorittes, it 

is said: 

the 

and 

"The homestead continues the homestead as long 

as It is owned. occupied and used as such. It ceases 

to be the homestead only when it is abandoned as such. 

* * + To constitute an 'abandonment' of the homestead, 

it must affirmatively appear that there was not only 

a removal from the home, but a removal coupled with 

an Intention never to return." 

In 22 Tex. Jur. 81, it is said: 

"The issue as to Intention not to use the premises or 'abandonment,' as it is generaliy described, 

Is one of fact to be determlned by a jury. * * *" 

The rules which we have just quoted are applicable to 

proposltlons submi.tted by you. The answer to your first 

second questions would 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 cannot pass upon your first and second 

questions as a matter of law. We are, therefore, unable to 

answer your first and second questions specifically. 

In connection with the facts presented in your third 

question you have advised us orally that each of three or 

more separate properties referred to therein is In excess of 

200 acres of land. In view of the facts thus presented in 

your third question it .is definitely settled that a family iS 

not entitled to two homesteads at the same time. Silvers vs. 

Welch, 127 Tex. 58, 91 S. W. (2d) 686: Only that property 

which Ls actually used as a homestead and has actually become impressed with the homestead characteristic could be 

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 connection with the facts presented in your fourth 

question you have advised us orally that'you are interested 

only‘in the constituent phase of the question and are not interested in the non-resident's phase of the same. _ ,. 

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

"The homestead of a family shall be,, and is hereby protected from forced sale * * * except * * * for 

the taxes due there.on. * * *" 

Neither the Constitution nor the Legislature has attempted to define a 'family," as used In the provisions of the 

Constitution quoted above. In this connection we desire to 

quote from the case of Roco vs. Greene, 50 Tex. 483, where it 

is said: 

"We deduce from the authorltles the following 

general rules to determine when the relation of a 

family, as contemplated by 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 other members 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 founds in the 

Woods vs. Alvarado State Bank, 19 S.W. (2d) 35, where . _ 

."In view of our Constitutional and statutory 

provisions concerning homestead rights, 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 constituents of a'pamlly" 

entitled to claim homestead exemption will be given. A widow, 

with ~no living relatives of here own; living with and ~carlng 

for minor grandchildren of her deceased husband, Is the head 

of her family composed of herself and such minor children ard 

is entitled.to claim the homestead exemption as suCh.' Wolfe 

VS. Buckley; 52 Tex. 641. A single man, living with anY‘supporting his widowed mother, Is the head of a family andmay 

cla.lm the exemptions that were created for the benefit or'the 

family. Barry vs. Hale ~(Civ. App.) 21 S. W. 783: The father 

of illegitimate children owes to them the moral obligation of 

caring for and supporting them-and that such fatherland such 

children, when living together, constitute a famlly, and the 

father as the head of such family is entitled to.claim the.exemption pertaining 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 together under conditions 

wherein it .is the moral duty of the brother to support he-r, 

she being in a ,corresponding state 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 

family relation, 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 living with and being supported by 

h~is unmarried daughters~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 living with a child, that he hasp in 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. Chesnut VS. 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 that were 

created for the benefit of the family. Smlth,Bros. vs. Lucas, 

(Corn. App) 26 S.W. 1055. In our opinion No. O-4176 this department held that when an unmarrlea daughter who owned 'her 

house In which she and her dependent mother lived was 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 

that when a homestead is once established tbe rights 

belonging thereto do not cease to exist by-reason of 

the death or dispersal of the constituent members of 

the family, but such rights continue.for the protection 

of the surviving units of the family, Including the 

head of the family. In the instant case 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 mother would have the effect of dissolvingthe 

homestead rights of the daughter that had'been acquired 

while the mother was l.iving. The fact that 'the daughter 

is the sole survivor of the family is unimportant and 

insufficient to warrant a contrary conclusion." 

We are enclosing a copy of Opinion No. O-4176 which contains 

a detailed discussion of the authorities in support of the 

above conclusion. 

In view of the ever-changing nature of the homestead. 

law, each case as it comes before 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 considered by you as exclusive, because, fromthe history of the court decisions deallrig with homestead law, 

the court is continually enlarging the scope of the word "family" for homestead exemption purposes. 

It is fundamental, of course, that there must be some 

legal constituent of the family in existence before the claim 

of homestead exemption can be lawfully asserted and obtained. 

Likewise, the homestead exemption must necessarily terminate 

when the person's right to assert the same, under the Constitution and laws of this State, ceases to exist. Thompson v. 

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 other words, if 

there Is no surviving constituent of the "family" remaining, 

then there would be no one who could lawfully claim 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/Rarold McCracken 

Harold McCracken 

Assistant 

HM:ej:wc 

Encl. 

APPROVED FEE 18, 1942 

s/Grover Sellers 

FIRST ASSISTAWT 

ATTORElEYGENERAL 

Approved Oplnlon Committee By s/BwB Chairman