# THE ATTORNEY GENERAL OF TEXAS

**JOHN IA.**  **aILL Arrs-.**  **~EXAR** 787ll *-- 0s August 16, 1973

The Honorable Robert S. Calvert Comptroller ofPublic Accounts State Finance Building Austin, Texas

Dear Mr. Calvert: Opinion No. H- 88 Re: Exemptions from taxation

ofproperty owned by certain disabled veterans and their surviving spouses and children, and others InNovember, Section 2ofArticle 8of the Constitution of Texas was amended by adding Subsection (b)as follows: ;‘The Legislature may, by general law, exempt property owned by a disabled veteran or by the surviving spouse and surviving minor children of a disabled veteran. A disabled veteran is a veteran of the armed services ofthe United States who is classified as disabled by the Veterans’ Administration or by a successor to that agency; or ~themilitary service in ,whichhe served. A veterah who is ceitified as having a disability of less than 10percent is not entitled to an exemption. A veteran having a disability rating of not less than 10percent nor more than 30 percent may be granted an exemption from taxation for property valued at upto $1, 500. A veteran having a disability rating of more than 30 percents but not more than 50 percent may be,granted’an‘exemp$ipn.fFom tax?ation. for property&oed kktip-io’$2, OOQ. A vetkramhavirig a disdbilit$ rating of maze, than 50 percent. but’notmore th&x 70 p&icentmay be:granted.,+n exemption from taxation for-propert? vaiied titup’& $2, 500. A veteran who has a disability Sating >ofmore than 70percent, or a,veter&‘Sh6 has a di?$biii$y rating of noteless than 10 percent-and’had d?%ainedthe age of 65, or a disabled veteran whose &‘s;ibili’%y consists ofthe loss ‘or loss of use of-one or more limbs, total blindness in one or both eyes, or paraplegia, may be granted an exemption from

p. 400The Honorable Robert S. Calvert, page 2 (H-88)

taxation for property valued at upto $3,000. The spouse and children ofany member ofthe United States Armed Forces who loses his life while on active duty will be granted an exemption from tax-

- ation for property valued at upto $2,500. A deceased disabled veteran’s surviving spouse and children w be granted an exemption which inthe aggregate is equal to the exemption to which the decedent was entitled’at the time he di’ed. ” (emphasis added) Pursuant to the authorization contained in this Amendment, the Legislature enacted House Bill 80 “relating to exemption from taxation of property owned by disabled veterans and surviving spouses and children of deceased veterans. ” Section 13ofHouse Bill 80 states that its purpsse “is to provide for exemptions under the authority ofArticle VU? 52(b) ofthe Texas Constitution. ” The constitutional language creates two separate categories of tax relief beneficiaries and treats them diffe&ntly: (1)those in the severely disabled veteran class (or their surviving wives and children) & be accorded certain exemptions from tax liability for their property; and (2) the survivors (wife and children) of on-,duty military personnel who die twill be granted “an exemption from taxation for property valued at upto $2,500. ” You have submitted four specific questions to us concerning the effect of House Bill 80. However, it is appropriate that we first determine whether any part of the constitutional provision is self-executing, and examine the constitutionality of the Act. IfArticle 8 62(b) ofthe Constitution is-in ‘nopart self-executing and if House Bill 80 is unconstitutional, then answers to your questions would no longer be needed. Generally, a constitutional provision may be said to be self-executing if it supplies a sufficient rule by means ofwhich the right given may be enjoyed and protected or the duty imposed map be enforced; and it is not selfexecuting when it merely indicates principles, ._~ without layi,ng down rules by which these principles may be given ‘+e force of

## ii+. Mitchell County v. City National Bank, 43 S.W. 880, 883 (Tex. 1898); City of Corpus Christi v. City of Pleasanton, ,276 S.W. 2d 798 (Tex. 1955).

p. 401The Honorable Robert S. Calvert, page 3 (H-88) Obviously, Article 8 62(b) ofthe Constitution is not self-executing with regard to exemptions for disabled veterans and their surviving spouses and surviving children. The Legislature has been given discretion where exemptions in their favor are concerned. The Constitution does not command that any relief be given such persons. We think it within the authority of the Legislature to attach reasonable limitations and conditions to the enjoyment of such relief as it gives, if any, and that no exemption for such persons can exist unless the Legislature has created it by valid statute. After careful study we have also concluded that the constitutional provision concerning exemptions for survivors of those “on-duty” military personnel who die is not self-executing in the “immediately operative” sense [Compare Strang v. Pray, 35 S.W. 1054 (Tex. 1896)], but rather contemplates and requires legislation on the subject. It speaks prospectively inthat context (“will be granted
. . .‘I) (I’
. . . any member
. . . who loses his life while on active duty.
. . .“) and, in our opinion, is mandatory but not self-executing. The provision does more than simply state a principle, but it obviously looks to the intervention ofanother authority. It does not indicate when the right to an exemption will accrue. It shapes, but does not e~,the exemption; it specifies that the exemption “will be given”
. We believe the passage places a mandatory duty upon the Legislature to enact a law specifying the effective date of the exemption for survivors of on-duty military personnel, but the exemption cannot be given effect until the Legislature acts. Duncan v. Gabler, 215S.W. 2d 155 (Tex. 1948). See 16C.J.S. Constitutional Law $48, at p. 142; 16Am. Jur. 2d, Constitutional Law 094, at p. 280. We are led to the foregoing conclusion by the manner in which the provisionis integrated with the remainder ofthe section clearly contemplating prerequisite legislative action; by the absence of words of present execution used in other sections, e.g., “shall be exempt” (Art. 8 551, l-b; Art. 11s9); by the absence ofany language indicating self-execution such as. “This amendment is self-operative” (Article 1, 53a); “This amendment shall become effective upon its adoption” (Article 3 §65);and by the fact that,the title of House Joint Resolution No. 35, Acts 1971, 62nd Legislature, R. S., pi 4136, proposing the amendment anticipates that the Legislature ,will be instrumental in providing all the contemplated exempti’ons, including those to be enjoyed by such survivors. Consequently, we are ofthe ,opinion that the effective date for any Article 8 5,2(b) exemption applicable to survivors of on-duty military personnel is dependent upon valid legislation on the subject.

p. 402The Honorable Robert S. Calvert, page 4 (H-88)

Is H. B. 80 valid legislation? The Legislature has specifically provided that the provisions of the Act are non-severable and that the invalidity of any one ofits provisions will render the whole Act void. Section 14ofH. B. 80 reads:

“Sec. 14. The provisions of this Act are declared to be non-severable, and’if any provision of this **Act** is declared invalid by afinal judgment of a **court** ofcompetent jurisdiction as to any person, the Act is void. ” In our judgment the Courts will, if presented the question, declare some of its provisions invalid and the statute (because ofits non-severable clause) :who Ily void. The Constitution says, in part: 11

. . . The **spouse** and children ofany member of the.United States Armed Forces who loses his life while on active duty will be granted an exemption from taxation for property valued at upto $2, 500. ” Section 5ofHouse Bill 80, purportedly implementing this portion of Art.. 8, s2(b), provides:

“Sec. 5. The surviving spouse ofa person who dies while on active duty in the armed services of the United States hisentitled to an exemption ofthe first $2,500 of the assessed value ofthe spouse’s property during the period that the surviting **spouse** remains unmarried. ” Putting aside other questions about the statutory language, it is clear that-the Legislature is without power to place limitations upon an unlimited exemption commanded by the Constitution, in the absence of constitutional authority to do so. Strang v. Pray, 35 S.W. 1054 (Tex. 1896). The Constitution grants no such legislative discretion with regard to the ,exemptions that must be allowed survivors of on-duty military personnel. ‘~The Constip. 403The Honorable Robert S. Calvert, page 5 (H-88)

tution does not limit such an exemption to surviving spouses of such personnel only so long as they do not remarry, and in our opinion any attempted **statutory** limitation to that effect would be held inoperative. What is more, 58(b) of H.B. 80 purports to grant an exemption to the estate ofa deceased veteran. We find no constitutional authority for such a provision. The exemptions permitted by the Constitution are, we think, personal to the natural individuals designated and there is no provision in Article 8 62(b) ofthe Constitution authorizing an exemption for an artificial person. Subsection 8(b) ofH. B. 80 is therefore invalid, in our opinion. See Deason v. Orange- County Water Control and.Imp. Dist. No. 1, 244 S.W. 2d 981 (Tex. 1952); City ofAmarillo v. Amarillo Lodge No. 731, A.F. &A.M., 488 S.W. 2d 69 (Tex. 1973). The Constitution does not specify the kind ofproperty owned by disabled veterans or their survivors for which no taxes need,be Raid, **nor** which taxes they may escape. It only indicates~ the value of property for which tax liability might be abrogated by legislative action. ,Notwithstanding **an** ambiguity caused by the first sentence ofArticle 8 §2(b); (‘I
. . .may. . . exempt property . . .‘I). we think it contemplates a personal status ,entitling one to be exempt from paying taxes for property valued below a certain figure. This is made clear by the language used to ~establish ~exemption maximums for veterans with variously classified disabilities, (,I’Y
. .. an exemption from taxation for property valued at **up to** 
**. .**  **. ..** **‘ I),**  **-** The constitutional amendment here ,was submitted to the people in the form of a “for or against” proposition reading: “The constitutional amendment allowing certain tax exemptions to disabled veterans, their surviving spouses and surviving minor children, and the surviving spouse and.s‘urvi,ting minor children of members of the,armed forces who lose their life while on active duty. ” Acts 1971, 62nd Legislature, Regular Session, p. 4136. (emphasis added)

p. 404The Honorable Robert S. Calvert, page 6 (H-88)

Itdid not mention the exemption ofproperty; it specified the people to whom tax advantages were to-be allowed. Ifthere is any ambiguity in the constitutional provision itself, it must be presumed that the ballot title fairly represented totie people the character and purpose ofthe proposed change. See R.R. Comm. v. Sterling Gil &Refining Co. 218S.W. 2d 415 (Tex. 1949); g. Evans, 414 S.W. 2d 684 (Tex. Civ.App., Austin,l967.,writ. ref. ,n. r: e.); Whiteside v. Brown, 214S.W. 2d 844 (Tex. Civ.App.,Austin,l948,writd.ism, W.o.j.); 16Am. Jur. 2d, Constitutional Law, 536, at p. 208; 16C.J.S., Constitutional Law, §9(3), at p. 56. The purpose ofthe constitutional provision, we think, is similar to the purpose ofthe “over 65 homestead exemption” also added in 1972 (Article 8, $1-b(b) ; see Att&ney General Opinion H-9 (1973)], i. e., to allow the benefited class to acquire and hold property of a limited value ~wlthoutassuming a tax burden therefor. We think the provision is intended to afford relief to those severely disabled veterans and to those surviving spouses and child~ren (of deceased disabled veterans or of deceased persons on active military duty) in less fortunate circumstances who might bbsent such relief) become public charges.

‘
.Itis our conclusion, then,that none ofthe exemptions contemplated byArticle 8s 2(b) ofthe Texas Constitution can become effective until there is further legislation on the subject, and that no purpose would be served by detailing the intended operation ofH. B. 80. We will therefore defer your specific questions. Moreover, because we feel the invalidity of $8(b) of H.B. 80will **cause** the entire Act to fall, we need not discuss other aspects of the statute which might also cause it to be unconstitutional. SUMMARY 1. The constitutional exemption commanded by Article 8 $2(b) of the Texas Constitution for survivors of military ~personnel who die while on active duty is mandatory but not self-executing and its effective date depends on legislation. Exemptions ,for disabled veterans and their survivors are dependent upon legislative discretion.

p. 405The Honorable Robert S. Calvert, page 7 (H-88)

2. The exemptions from tax liability accorded or authorized byArticle 8, 52(b) ofthe Constitution are personal to the natural beneficiaries named and may not be accorded artificial persons as H. B. 80, 63rd Leg., R.S., attempts to do. 3. The Legislature is not empowered to attach conditions to the enjoyment of the constitutionally shaped exemption for surviving spouses ofon-duty military personnel:

4. The “non-severable” clause contained in H.B. 80 will cause the statute enacted to be declared void in its entirety. 5. None of the exemptions contemplated byArticle 8 §2(b) ofthe Constitution will become effective until there is further legislation onthe subject. Very ~trulyyours,

Attorney General of Texas ROVED: nn


# E&-?x

DAVID M. KENDALL, Chairman Opinion Committee

p. 406