# The Attorney General of Texas

October 29, 1980

<WHITE wyGeneral
Honorable Ben 2. Grant, Chairman

Judiciary Committee House ofRepresentatives Austin, Texas 78769 Opinion No. !&‘-X9

Re: Failure to timely apply for residence homestead exemptions and related matters Honorable Neal Pfeiffer Criminal District Attorney Bastrop County P.0. Box753 Bastrop, Texas 78602
Gentlemen:

Each ofyou has questioned the effect of ataxpayer’s failure to timely apply for a residence homestead exemption from local ad valorem taxes. Repnssentative Grant’s inquiry is limited to the exemptions addressed in subsection (c)of article VIII,section l-b ofthe Texas Constitution. Heasks if tax exemptions thereunder are lost if taxpayers fail to make timely applications therefor.

Mr. Pfieffer’s question embraces exemptions afforded pursuant to subsection (b)of that section, as well as subsection (c)exemptions. Heasks if a school district may allow homestead exemptions - and be reimbursed under section 20.81(a) of the Education Code for the loss of revenue occasioned thereby - where taxpayers’ applications for exemptions were made out of time because the district failed to provide taxpayers timely notice of the need to file them, or to provide them proper forms for the purpose.
Recent Texas cases have emphasized that one who seeks a favored position with reference to the imposition oftaxes labors under the burden of showing clearly that he comes within the terms of the constitutional provision he invokes. See Smithyv. Pa ett 596 S.W. 2d 530 (Tex. Civ. 4~. 1 ,Mnd where the framers of a -Beaumont 1979, writ rs constitutional provision regarding atax exemption have not specified when a taxpayer must show himself qualified for the exemption provided, the courts will determine the intent from the entire enactment. Moore v. White, 569 S.W. 2d 533 (Tex. Civ. App.-Corpus Christi 1978, writ r&d n.r.e.). See Gragg v. Cayuga Ind. School District, 539S.W.2d861(Tex.), appeal dism3 429 U.S.973 (19762

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In Moore, supra, the court determined .that an application for special tax treatmenaer the Qgricultural use” provision of, the constitution, article VIII, section I-d, Texas Constitution, filed inDecember of atax year wasuntimely, and thus not entitled to recognition, because the taxpayer “waited until after the [taxing authority’s] plans of taxation were put into effect before filing her claim for exemption.” 569 S.W. 2d at 536. In Gragg, suppa, the supreme court held that a taxpayer was not entitled to an “agricultural use” exemption from market value taxation because “[hle sat by and permitted the assessments to be made, the tax rolls to be prepared, and [al suit for taxes to be filed against him before challenging the refusal of the tax assessor to give his land the agricultural use designation.” 539S.W. 2d at 870. It would thus appear that taxpayers can estop themselves bytardiness from asserting rights to tax advantages allowed them by the constitution. See also Jay Devers, 563 S.W. 2d 880 (Tex. Civ. App.- m H-988 (1977). Eastland 1978,no writ); Attorney General

In our opinion, the same rationale would apply to applications for residence homestead exemptions under s&me&ions (b) and (cl, section l-b, article VIIIof the constitution. The subsection (cl provision? afforditg a $5,000 homestead exemption, like the sgricultural use provision of section l-d, is self-executing. And like the l-d provision, the l-b provisions operate to exempt part of the market value ofproperty from taxation, not the entire property. None of the exemptions are automatically allowed. Each person who wishes to a&me the benefits thereof must show himself entitled to them.

But this is not to say that the legislature cr other taxing authorities may arbitrarilv establish cutoff dates for the recognition of claims to ‘constitutional exemptiohs and by that device stiject constitu&naIly exempt property to taxation. See Prop. Tax Code SlL43(d), .43(e). In.Lower Colorado River Authority v. Chemical Gk & Rust Co., 190S.W..2d 48 (Tex. 1945Xthe supreme dourt held, “What the constitution exempts from taxation the legislature has no power. to require to be taxed.” On a number of occasions this off& has applied that hold% to legislatively
or administratively established deadlines for claiming homestead exemptions, saying in each case that a failure to meet the deadline did not in itself deprive the taxpayer of the exemption. See Attorney General Opinions MW-146(1980); H-548 (1975);H-309 0974); G-6842 (19451:
Where the constitution &es not exempt aparticular kind ofproperty but merely permits its exemption without prescription, the legislature may ordinarily limit the exemption as it pleases. Did&on v. Woodmen of the WorldLife Ins. Sot., 280S.W.2d 315 (Tex. Civ. App.-Sat?? a power is expressly given by the constitution and the mode of its exercise is rescribed, such 5 ’ mode is exclusive of all others. Parks v. West, ill S.W.726 (Tex. 1908. Although the $10,000 “elderly” and “disabled” exemptions permitted by article VIII, section l-b, subssction (cl of the constitution are not self-executing, the provision does expressly provide the way eligibility for them may be conditioned by the legislature. It may

“base the amount.

.. and condition eligibility.

. . on economic need.” The express permission to condition eligibility cn economic need is an implied prohibition against other eligibility conditions. See Ferguson v.Wilcox, 28S.W.2d526, 532(Tex. 1930):’In
-

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our opinion, neither the legislature nor other taxing authorities may constitutionally make eligibility for residence homestead exemptions depend won compliance with an arbitrary filing deadline. See Attorney General Opinion MW-146(1980).
- Whether a late-filing taxpayer is estopped from claiming ahomestead exemption in a particular case will depend on the facts of the matter, but a legislatively designated cutoff date will not necessarily control the question. Aperson estopped to claim an exemption because he delayed asserting his rights beyond the time administratively feasible for redressing the wrong has not been subjected to an unconstitutional exercise of legislative power; he has brought the difficulty lpon himself. See generally 22Tex. Jur. 2dEstoppel Sl,at 660. Applying the foregoing conclusions to Mr. Pfeiffer’s question, we believe the school district may recognize otherwise-allowable homestead claims made out oftime. In fact, it would be difficult for the district to show taxpayers estopped from claiming them where the ‘district itself was responsible for the late filiw. See Grandview Ind. School District v.Store& 590S.W.2d215(Tex. Civ. App. -Waco l97G writ).
But, wedo not believe the district will be necessariIy entitled to reimbursement from the state under article 20.81(a)ofthe Education Code. That provision waspassed to comply with a constitutional dictate found inarticle VIII,section l-b, s§ion (CA It makes payable to a school district the “amount of taxable value actually lost” by applications of the, statute implementing article VIII, section l-b of the constitution, but to receive the payment, a school district is statutorily required to apply for it on or before a legislatively established cutoff date, November Ist of the tax year. Educ. Code S20.84. Although estoppel is not ordinarily available as adefense agahwt claims of a political subdivision of the state, we think the rationale ofthe G *T and Moore
cases previously discussed might be applied to estop the school district tom clas the reimbursement where its own delav made reimbursement not administratively feasible SeeCity ofHutchins v.Prasifka, 450S.W.2d829(Tex. 1970).

- SUMMARY

A legislatively designated cutoff date for homestead exemption claims under article VIII, section l-b ‘ofthe Texas Constitution will not alone operate to deprive a taxpayer of an exemption, but the taxpayer may become estopped to claim the exemption if his &lay makes its recognition administratively impracticable.

MARK WHITE Attorney General ofTexas

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JOHN W.FAINTER, JR. First Assistant Attorney General

RICHARD E.GRAYIII Executive Assistant Attorney General Prepared byBruce Youngblood Assistant Attorney General

APPROVED: OPINION COMMPITEE

Susan Garrison, Actiw Chairman Jon Bible Myra McDaniel Bruce Youngblood

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