Honorable Geo. B. Sheppard 

Comptroller of Public Accounts 

Austin, Texas 

Dear Sir: Opinion NO. 0-1638~ 

Re: Designationof property owned and 

hela under conditions set forth 

as homestead. 

We acknowledge receipt of your letter of October 26, 

1939, in which you request the opinion of this department on 

the question of whether or not real estate held 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%ed by Section 1 (a)~, Article VIII, 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 employed by the State: The 

employment requires the person to live in the City of 

Austin and the property was 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. 

"About two years ago the property was 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,act that the employment requties the 

taxpayer to reside Inthe CIt,y of 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, supplementing YOUI' 

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

"Complying with your request, you are advised that 

,the State employee referred to in our letter of Oct. 

27th, has informed us that it. Is her purpose to use 

the property In Waxahachie, Texas, as her residence 

homestead, when she quits working for the State or at 

such time the employment might permit her to reside 

in that city." 

In rendering an 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 

Constitution and 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 fall within the function of a jury. See 

22 Tex. Jurls. on Homesteads, 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.of the numerous decisions In Texas"relatlve to".the'establlshment of the homestead reveals that while 

Intention alone Is Insufficient to confer the'homestead right, 

at the same time all other elements combined cannot confer It 

unless the Intention to establish a'home Is present. See 22 

Tex. Jurls. on Homesteads , paragraph 32. This Intention to 

appropriate the property and to dedicate It as a homestead must 

be evidenced by unmistakable acts disclosing the Intention to 

carry out such design, ora reason must be given sufficient to 

disclose why the,intentlon was 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 ,authorItles therein, 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~dispensed with 

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 - is but 

the corroborating witness to the declaration of lntention, .the safeguard against fraud, and an assurance of 

the bona fldes' of the declared *Intention of the party: 

If a homestead cannot be acquired until it Is occupied, 

then no one can acquire a homestead exempted from forced 

sale unless he buys an Improved place; 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 announced by the Supreme Court of 

Texas has been unlformly.followed b 

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: 

"It has been held since the earliest decisions In 

this State that 'intention In good faith to occupy Is 

the prime factor' in Impressing property with the homestead character. (Citing Cameron 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, coupled with acts of preparation 

looking to its actual occupancy, is sufficient to lmpress the property with the homestead character." 

In the case of Wade v. First National Bank of QuInlan, 

263 3. W. 654, the court made the following statement: 

"The written 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 Impeached because 

of some evasion of the law protecting the homestead, It 

becomes conclusive of that fact.“ 

Because it presents a fact Issue which 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 still present, 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 exemption under the circumstances set 

forth In your letter. 
Hon. Geo. H. Sheppard, page 4 d-1638 

Yours very truly 

ATTOR~GIWtALOFTRXAS 

By s,( Ross Carltori 

Ross Carlfon 

Assistant 

RC:N:wc 

APPR OVED NOV ii, Ii39 : 

s/v. P. more. 

FIRST ASSISTANT 

ATTORNEY WNERAL 

Approved Oplnlon Commlt~~ee By i$BWB ~iqiiruian