The Attorney General of Texas 

October 29, 1980 

< WHITE 

wy General 

Honorable Ben 2. Grant, Chairman 

Judiciary Committee 

House of Representatives 

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. Box 753 

Bastrop, Texas 78602 

Gentlemen: 

Each of you has questioned the effect of a taxpayer’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 of the Texas Constitution. He asks 

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. He asks 

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 of taxes labors under the burden of 

showing clearly that he comes within the terms of the constitutional 

provision he invokes. See Smithy v. Pa ett 596 S.W. 2d 530 (Tex. Civ. 

4~. -Beaumont 1979, 1 writ ,Mnd rs where the framers of a 

constitutional provision regarding a tax 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, 539 S.W. 2d 861 (Tex.), appeal dism3 

429 U.S. 973 (19762 

p. 821 
Honorable Ben Z. Grant - Page Two (Mv- 259) 

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 in December of a tax year was untimely, 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 “[hl e 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.” 539 S.W. 

2d at 870. It would thus appear that taxpayers can estop themselves by tardiness 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 VIII of 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 of property 

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., 190 S.W.. 2d 48 (Tex. 1945X the 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 a particular kind of property but merely 

permits its exemption without prescription, the legislature may ordinarily limit the 

exemption as it pleases. Did&on v. Woodmen of the World Life Ins. Sot., 280 S.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, 28 S.W. 2d 526, 532 (Tex. 1930):’ In 

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p. 822 
Honorable Ben 2. Grant - Page Three (MM-259) 

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 a homestead 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. A person 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 22 Tex. Jur. 2d Estoppel 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 of time. 

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& 590 S.W. 2d 215 (Tex. Civ. App. - Waco l97G writ). 

But, we do not believe the district will be necessariIy entitled to reimbursement 

from the state under article 20.81(a) of the Education Code. That provision was passed 

to comply with a constitutional dictate found in article 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 a defense agahwt claims 

of a political subdivision of the state, we think the rationale of the 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 See City of Hutchins v. Prasifka, 450 S.W. 2d 829 (Tex. 1970). 

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SUMMARY 

A legislatively designated cutoff date for homestead 

exemption claims under article VIII, section l-b ‘of the 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 of Texas 

p. 823 
Honorable Ben Z. Grant - Page Four (Mv- 259) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

APPROVED: 

OPINION COMMPITEE 

Susan Garrison, Actiw Chairman 

Jon Bible 

Myra McDaniel 

Bruce Youngblood 

D. 824