Honorable Geo. B. Sheppard

Comptrollerof Public Accounts Austin, Texas

Dear Sir: Opinion NO. 0-1638~ Re: Designationof property owned and hela under conditions set forth
as homestead.

We acknowledgereceipt of your letter of October 26, 1939, inwhich you request the opinion of this department on the question ofwhether or not real estateheld under the conditions therein set forth can be claimed as a residence homestead for the purpose of exempting lt from the payment of state taxes, as authorl%edby Section 1 (a)~, ArticleVIII, of the Constitution of Texas. We quote from.your letter the fact situation therein set out:

"A state employee, at one time owned property In Collln County that had been used as a home, prior to the time the person was employedby the State: The employmentrequires the person to live in the City of Austin and the propertywas designated for a number of years, as a residence homestead and the exemption
was allowed by the Tax Assessor-CoLLector, of Collln county. This person, during the years In question, voted In Collln County; as authorlsed by Article 2958, Revised Civil Statutes.
"Abouttwo years ago the propertywas sold and the money received from the sale,was used to purchase a home In the city of Waxahachie, Ellis County, Texas. Since the purchase of the property at Waxahachle, the person has been,paylng a~poll tax in Ellis County.

'Due to the f,actthat the employmentrequties the taxpayer toreside Inthe CIt,yof Au&In, she has not lived on the Waxahachie property. Under the clrcumstances, could the Waxaha.chie'property,be claimed as a resld~ence

homestead, In order to receive the benefit of the homestead amendment?"

Your letter.

of October 30, 1939, supplementingYOUI' letter of October 26th, contains the following statement:Hon. Geo. H. Sheppard,page 2 o-1638

"Complyingwith your request, you are advised that ,theState employeereferred to in our letter of Oct. 27th, has informedus that it. Is her purpose to use the property InWaxahachie, Texas, as her residence homestead,when she quits working for the State or at such time the employmentmight permit her to reside in that city."

In renderingan opinion on this subject, it is necessary for us to assume that the state employee to whom you refer In your letter Is a person entitled to claim, under the Constitutionand statutes of the State of Texas, the homestead exemption,ana further that such person is acting In good faith. The determination of the Issues of existence of Intention-to claim, and the actual existence of a homestead,are fact questions and ordinarily fallwithin the function of a jury. See 22 Tex. Jurls. onHomesteads, para raph 32; Steves v. Smith, 107 S. W. 141; Fole' v. Holtkamp, i? 6 3. W. 891;Whit.ham & Co. vs. Kemp, 66 3. W. 92d,462.

InvestIgatIon.ofthe numerous decisions In Texas"relatlve to".the'establlshment of the homesteadreveals thatwhile Intentionalone Is Insufficientto confer the'homesteadright, at the same time all other elements combined cannot confer It unless the Intentionto establish a'home Is present. See 22 Tex. Jurls. onHomesteads, paragraph 32. This Intentionto appropriate the property and to dedicate It as a homesteadmust be evidencedby unmistakableacts disclosing the Intention to carry out such design, ora reasonmust be given sufficientto disclosewhy the,intentlonwas not or could not be demonstrated by such acts,. See 22 Tex. Juris. on Homesteads, paragraph 35; Foleg'v. Holtkamp, 66 S. W. 891. Proof of actual occupancy is not always essential. See 22 Tex. Jurls. on Homesteads,paragraph 36, and ,authorItlestherein, clted~.

In the case of Cameron v. Gebhard, 85 Tex. 61.0,22 S.W. 1033, the Supreme Court of Texas made the following statement:

"From these decisions It Is apparent that Intention Is almost the only thing that may not be~dispensedwith In some state of case, and it fo>lows that this intention In good faith to occupy Is the prime factor In securing the benefits of the exemption. Preparation - that Is, such acts as manifest this Intention - isbut the corroboratingwitness to the declaration of lntention, .thesafeguardagainst fraud, and an assurance of the bona fldes'

of the declared*Intentionof the party: If a homestead cannotbe acquired until it Is occupied, then no one can acquire a homestead exempted from forced sale unless he buys an Improvedplace; and then he must.~~

:.ti~:~ Geo. Ii.Sheppard, page 3 O-1638

h;~vf P race with the sheriff for possession."
This general rule as announcedby the Supreme Court of Texas has been unlformly.followedb Sae Xlkerson v. Jones, 40 3. W. 10&i~%&~"~"F%~~~ '$?' 3. W. 626; Whitham & Co. v. Kemp, 66 3. W. (2d) 462; At&son
v. Jackson Eros., 259 3. W. ?80: 22 Texi Juris. on Fomeatsads, paragraphs 31-36, inclusive.

The following quotation Is taken from the case of Brown v. Logan, 7 3. W. (2d) 189:

"Ithas been held since the earliestdecisions In this State that 'intentionIn good faith to occupy Is the prime factor' in Impressingpropertywith the homestead character. (CitingCameron v. Gebhard, supra) It Is also well settled that actual occupancy of property is not essential,but that present Intention to occupy In the future, coupledwith acts of preparation looking to its actual occupancy, is sufficient to lmpress the propertywith the homestead character."

In the case of Wade v. First National Bank of QuInlan, 263 3. W. 654, the court made the following statement:

"Thewritten designation of the homestead,when filed and recorded as required by the statute,becomes at least prima facie evidence of what constitutes the family homestead;and, unless this is Impeachedbecause of some evasion of the law protecting the homestead, It becomes conclusive of that fact.“

Because it presents a fact Issuewhich we cannot undertake to pass upon, It is impossible to give a complete answer to your question. If the person to whom you refer had at the time of purchase a bona fide Intention to occupy the premises
as a homestead and this Intention is stillpresent, if she occupies or claims no other property as homestead,and if she is
a person entitled to claim a homestead, she Is entitled to and
can claim the homestead exemptionunder the circumstances set forth In your letter.

### Hon.Geo.H. Sheppard,page 4 d-1638

Yoursverytruly

ATTOR~GIWtALOFTRXAS

By s,( Ross Carltori RossCarlfon Assistant

RC:N:wc

APPR OVEDNOVii,

Ii39 : s/v.P. more. FIRSTASSISTANT ATTORNEYWNERAL ApprovedOplnlonCommlt~~ee By i$BWB~iqiiruian