March 6, 1975

The Honorable M. L. Brockette Commissioner of Education Texas Education Agency 201East Eleventh Street Austin, Texae 78701 Opinion No. H- 548 Re: Whether a school district may condition eligibility for a homestead exemption for persons 65 and over upona claim ofthe exemption by a certain date. Dear Commissioner Brockette:

You have requested our opinion regarding the constructton of certain aspects ofarticle 8, Iection l-b ofthe Texas Constitution, which permits school districts and other political subdivisions to exempt not less than $3000.00 ofthe assessed value of residence homesteads of persons 65 years ofage or older, Specifically, you ask: 1. Whether a resolution requiring thatan applicant for the homestead exemption apply for and claim the exemption byApril 30 of each year is valid. 2. Whether a person claiming the exemption must be at least 65years ofage on or before January ! oftheyear inwhich he claims the exemption. 3. Whether, if the first question is answered in the negative, the school district must refund tax overpayments to persons whofailed to apply for and claim the exemption on or before April 30. .

p. 2461The Honorable M. L. Brockette page 2 (H-548)

4. Whether, if the first question is answered in the negative, a person may claim the exemption at the time taxes are paid, i. e., after Januqry 31 oftheyear following theyear such taxes became due. Article 8, section l-b provides in part:

From and after January 1, 1973, the governing body of **any** county, city, town, school district or other political subdivision ofthe State may exempt by its ownaction not less than Three Thousand Dollars ($3,000) of the assessed value of residence homesteads of married or unmarried persons sixtyfive (65j years ofage pr older; including those living alone, from all ad’valorem taxes thereafter levied by the political subdivision.

. . . This provision is absolute in terms. Once a political subdivision elects to grant ahomestead exemption for persons 65 years ofage or older, at least $3,000 ofthe assessed value ofthe subject property is exempt. In Attorney General Opinion H-309 (1974) we held thata person does not 1-e this exemption by failure to claim it prior tothe statutory rendition date. See also, Attorney General Opinion O-6842 (1945).

We interpret these opinions to mean that once thehomestead exemption has been granted, any subsequent action which operates to deprive a taxpayer ofthe benefits ofthe exemption results, essentially, in the taxation of exempt property. The Legislature has no such power, Lower Colorado River Authority v. Chemical Bank and T.rust Co., 190S.W. 2d 48 (Tex. Sup. 1945)) and in our opinion all political subdivisions are similarly reetricted. An application ofthe foregoing analysis to the instant situation is decisive ofthe question raised. Were a political. subdivision topenalize a taxpayer by depriving him ofthe benefits ofhis exemption for failure to claim it bya specified date, the result, would necessarily be taxation of exempt property. Itis therefore our opinion thatwhile a political subdivision may enact a cutoff date for administrative purposes, this date may not operate tonullify the benefits ofthehomeetead exemption.

p. 2462.The Honorable M. L. Brockette page 3 (H-548)

Your second question concerns whether a person claiming the exemption must be at least 65years ofage on or before January 1of theyear for which he claims the exemption. As we held in H-9 (1973), a person must have reached 65 years ofage on or before January 1ofthe tax year toqualify for the exemption, andwe therefore answer your second question in theaffirmative.

Your third question concerns whether refunds must be paid to eligible persons who paid their taxes without claiming the exemption within the specified time. There are no statutory provisions governing refunds ofadvalorem taxes paid butnot owed.

The rules applicable in cases where taxes have been exacted and collected in violation of constitutional provisions, andwhere no statutes determine the matter of refunds, were laid down by the Texas Supreme C+rt in National Biscuit Co. v. State, 135 S.W. 2d 687 (Tex. 1940).

. They are: (1)a person whovoluntarily pays anillegal taxhas

no claim for repayment: (2) a person paying an illegal tax under duress has a valid claim for repayment: (3) duresa in the payment of anillegal tax may be either express or implied, and a legal dutyto refund exists in both cases: (4) a taxpayer need nottake the risk of incurring the threatened penalties or punishments while the invalidity ofthe tax is being litigated in order to claim duress; and (5) in the absence of a statute to the contrary, it is immaterial to the taxpayer’s right of repayment whether or not the tax wa;s.@aid’under protest. ‘

. Although it has been concluded thatthe.mere threat of becoming delinquent onan illegal ad valorem tax is ineufficient to constitute duress entitling a taxpayer to a refund, [Attorney General Opinion O-6282(1945)], a different ,reeult haa been reached where refusal to pay the illegal part of

p. 2463The Honorable M. L. Brockette page 4 (H-548)

the tax demanded would risk delinquency penalties onboth thevalid and invalid portions of the assessment, [City ofSanAntonio v. Grayburg Oil Go., 259 S.W. 985 (Tex. Civ. App. --San Antonio 1924, nowrit)], or where imminent foreclosure is feared, [Galveston County v. Galveston Gas Company, 54 Tex. 287 (1881)].

“In determining whether taxes have been voluntarily paid, inquiry must be made into the intention ofthe parties at the time the money was paid. ” Galveston City Company v. City of Galveston, 56 Tex. 486,492 (1882). Ifat that time there was a noncoerced willingness to pay onthe part ofthe taxpayer, with full knowledge ofthe facts, then the payment cannot be said tohave been involuntarily made, or made under compulsion, legal or moral.

Suchinquiries involve disputed questions of fact which we are not equipped to resolve. Butwe note that coercions ofan implied nature have been held sufficient to warrant refunds, State v. Connecticut General Life Insurance Co. , 382 S.W. 2d 745 (Tex. 1964); Crow v. City of Corpus Christi, 209 S.W. 2d 922 (Tex. 1948), and thatthe concept ofduress has expanded considerably since the time ofits recognition as a .common law doctrine. 21Tex. Jur. 2d, Duress and Coercion, $2. See also Attorney General Opinion WW-736 (1959).

Your fourth question concern6 whether an exemption may be claimed at the time the taxpayer tenders payment ondelinquent taxes, assuming the tender is made after January 31st oftheyear following theyear inwhich taxes were due.

Ifproperty is exempt, it is not subject to tax. The attempted exaction or collection ofan unconstitutional tax is illegal. National Biscuit Company v. State, supra. Itfollows thata demand for ad valorem taxes on exempt property bya school district with no right to exact them can be resjsted at any time ongrounds of illegality. Attorney General Opinion H-309 (1974). a SUMMARY While a political rubdivision may choose a date for administrative purposes bywhich a person
pa 2464. ë.l_

The Honorable M. L. Brockette page 5 (H-548)

is to claim a homestead exemption under article 8, section l-b of the Texas Constitution, failure to claim the exemption prior to such a date does not nullify the exemption. Persons must be 65 years ofage on or before January 1of the ‘tax year in order toqualify for the exemption. Whether a school district must refund tax overpayments depends onthe facts of each case. An article 8, section l-b exemption remains valid at the time of payment oftaxee. Very truly yours,

Attorney General of Texas APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee 

### lg

p. 2465