March 6, 1975 

The Honorable M. L. Brockette 

Commissioner of Education 

Texas Education Agency 

201 East 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 upon a claim of the 

exemption by a certain date. 

Dear Commissioner Brockette: 

You have requested our opinion regarding the constructton of 

certain aspects of article 8, I ection l-b of the Texas Constitution, which 

permits school districts and other political subdivisions to exempt not 

less than $3000.00 of the assessed value of residence homesteads of 

persons 65 years of age or older, Specifically, you ask: 

1. Whether a resolution requiring that an applicant for the homestead exemption apply for and 

claim the exemption by April 30 of each year is 

valid. 

2. Whether a person claiming the exemption 

must be at least 65 years of age on or before 

January ! of the year in which he claims the 

exemption. 

3. Whether, if the first question is answered 

in the negative, the school district must refund 

tax overpayments to persons who failed to apply 

for and claim the exemption on or before April 

30. . 

p. 2461 
The 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 

of the year following the year 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 of the State may exempt 

by its own action not less than Three Thousand 

Dollars ($3,000) of the assessed value of residence 

homesteads of married or unmarried persons sixtyfive (65j years of age 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 a homestead exemption for persons 65 years of age or older, at 

least $3,000 of the assessed value of the subject property is exempt. In 

Attorney General Opinion H-309 (1974) we held that a person does not 1-e 

this exemption by failure to claim it prior to the statutory rendition date. 

See also, Attorney General Opinion O-6842 (1945). 

We interpret these opinions to mean that once the homestead exemption has been granted, any subsequent action which operates to deprive a 

taxpayer of the benefits of the 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., 190 S. W. 2d 

48 (Tex. Sup. 1945)) and in our opinion all political subdivisions are similarly 

ree tricted. An application of the foregoing analysis to the instant situation 

is decisive of the question raised. Were a political. subdivision to penalize 

a taxpayer by depriving him of the benefits of his exemption for failure to 

claim it by a specified date, the result, would necessarily be taxation of 

exempt property. It is therefore our opinion that while a political subdivision may enact a cutoff date for administrative purposes, this date may 

not operate to nullify the benefits of the homeetead 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 65 years of age on or before January 1 of 

the year for which he claims the exemption. As we held in H-9 (1973), 

a person must have reached 65 years of age on or before January 1 of the 

tax year to qualify for the exemption, and we therefore answer your 

second question in the affirmative. 

Your third question concerns whether refunds must be paid to 

eligible per sons who paid their taxes without claiming the exemption 

within the specified time. There are no statutory provisions governing 

refunds of ad valorem taxes paid but not owed. 

The rules applicable in cases where taxes have been exacted and 

collected in violation of constitutional provisions, and where 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 who voluntarily pays an illegal tax has 

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 an illegal tax may be 

either express or implied, and a legal duty to 

refund exists in both cases: 

(4) a taxpayer need not take the risk of incurring 

the threatened penalties or punishments while the 

invalidity of the 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 that the.mere threat of becoming 

delinquent on an 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. 2463 
The Honorable M. L. Brockette page 4 (H-548) 

the tax demanded would risk delinquency penalties on both the valid and 

invalid portions of the assessment, [City of San Antonio v. Grayburg Oil Go., 

259 S. W. 985 (Tex. Civ. App. --San Antonio 1924, no writ)], 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 of the parties at the time the money was 

paid. ” Galveston City Company v. City of Galveston, 56 Tex. 486,492 

(1882). If at that time there was a noncoerced willingness to pay on the part 

of the taxpayer, with full knowledge of the facts, then the payment cannot 

be said to have been involuntarily made, or made under compulsion, legal 

or moral. 

Such inquiries involve disputed questions of fact which we are not 

equipped to resolve. But we note that coercions of an 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 that the concept of duress has 

expanded considerably since the time of its recognition as a .common law 

doctrine. 21 Tex. 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 on delinquent taxes, assuming the 

tender is made after January 31st of the year following the year in which 

taxes were due. 

If property is exempt, it is not subject to tax. The attempted exaction or collection of an unconstitutional tax is illegal. National Biscuit 

Company v. State, supra. It follows that a demand for ad valorem taxes 

on exempt property by a school district with no right to exact them can be 

resjsted at any time on grounds of illegality. Attorney General Opinion 

H-309 (1974). a 

SUMMARY 

While a political rubdivision may choose a 

date for administrative purposes by which 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 of age on or before 

January 1 of the ‘tax year in order to qualify for 

the exemption. 

Whether a school district must refund tax overpayments depends on the facts of each case. 

An article 8, section l-b exemption remains valid 

at the time of payment of taxee. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

lg 

p. 2465