December 9, 1988 

Honorable Lloyd Criss 

Chairman 

Committee on Labor and 

Employment Relations 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative CriSS: 

Opinion No. JM-991 

Re: Taxation of a homestead occupied by a surviving spouse (RQ-1416) 

You ask whether an .amendment to article VIII, section 

l-b, of the Texas Constitution is applicable only to homesteads occupied by surviving spouses whose husbands or wives 

died after the amendment took effect. The amendment limits 

the taxation of certain homesteads for school purposes. 

Article VIII, section l-b, is one of several constitutional provisions concerning homesteads. Article XVI, section 51, defines a homestead for purposes of exemption from 

forced sale, and section 50 of that article provides that 

t.he sale of a homestead cannot be forced except to satisfy 

purchase-money liens, improvement liens, or tax liens. 

Section 52 of article XVI specifies that upon the death of a 

spouse, the homestead property is not to be distributed 

among the heirs of the deceased so long as it is used as a 

homestead by the surviving spouse or, as permitted under 

court order, is used and occupied by the deceased's minor 

children. 

Article VIII of the Texas Constitution deals with 

taxation and revenue. As amended in 1978, section 1 thereof 

requires that taxation be equal and uniform, and that all 

real property and tangible personal property in the state be 

taxed, except that it requires the exemption of certain 

household furnishings and permits the exemption of "personal 

property homestead." 

Until 1932, the homestead was not excepted from the 

"equal and uniform I1 taxation requirement. Jufkin v. Citv of 

Galveston, 58 Tex. 545 (1883). Section l-a was added to 

article VIII in that year and amended in 1933. As amended, 

the section provided that $3,000 of the assessed taxable 

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Honorable Lloyd Criss - Page 2 (JM-991) 

value of residential homesteads should be exempt from all 

taxation "for state purposes." The amendment did not 

authorize an exemption from local taxes. Citv of Wichita 

Falls v. Coower, 170 S.W.2d 777 (Tex. Civ. App. - Fort Worth 

1943, writ ref'd). 

Fifteen years later, in 1948, section l-a was amended 

to abolish the levy of state ad valorem taxes for general 

revenue purposes and to permit counties to levy ad valorem 

taxes on property for county purposes "except the first 

Three Thousand Dollars ($3,000) value of residential homesteads." Section l-b was added to article VIII at the same 

time to exempt $3,000 of the assessed taxable value of all 

residence homesteads llfrom all taxation for all State 

purposes" (not merely for general revenue purposes). 

Section l-a of article VIII has been amended only one 

.other time. In 1973 it was amended to apply to "residential 

homesteads of married or unmarried adults, male or female, 

including those living alone.1' Section l-b, on the other 

hand, has been amended five times since 1948. YOU inquire 

only about the most recent amendment, but an appreciation of 

those that preceded it is useful to its understanding. 

In 1972, section l-b was divided into subsections, and 

for the first time it was provided, in subsection (b), that 

the governing body of any political subdivision could exempt 

bv its own action "not less than" $3,000 of the assessed 

value of residence homesteads of persons 65 years of age or 

older from all ad valorem taxes "thereafter levied by the 

political subdivision." See S.J.R. No. 7, 62d Leg., 4126 

(1972): Attorney General Opinion H-9 (1973). A year later, 

section l-b(b) was made applicable to residence homesteads 

"of married or unmarried persons sixty-five (65) years of 

age or older, including those living alone.1' See S.J.R. 

No. 13, 63d Leg., 2469, at 2470 (1973). 

An amendment adopted in 1978 changed section l-b(b) to 

include the homesteads of certain disabled persons and to 

base the amount of an exemption upon market value rather 

than assessed value. It also added subsections (c) and Cd) 

to the section. See H.J.R. No. 1, 65th Leg., 2d C.S., 54 

(1978). Subsection (c) generally exempted $5,000 of the 

market value of residence homesteads "for general elementary 

and secondary school purposes" and authorized the legislature to exempt up to $10,000 of a homestead's market value 

for disabled persons and persons aged 65 or older. Subsection (d) read: 

P. 5067 
Honorable Lloyd Criss - Page 3 (JM-991) 

(d) Except as otherwise provided by this 

subsection, if a person receives the residence homestead exemption prescribed by Subsection (c) of this section for homesteads of 

persons sixty-five (65) years of age or 

older, the total amount of ad valorem taxes 

Jmwosed on that homestead for aeneral elementar-v and secondarv wublic school wurnoses may 

not be increased while ,it remains the residence homestead of that werson or that 

person's swouse who receives the exemwtion. 

However, those taxes may be increased to the 

extent the value of the homestead is increased by improvements other than repairs or 

improvements made to comply with governmental 

requirements. (Emphasis added.) 

Another amendment adding subsection (e) to section l-b 

was adopted in 1981. It required any general homestead 

exemption granted by a political subdivision to be in the 

amount of at least $5,000. See H.J.R. No. 81, 67th Leg., 

4222 (1981). 

Finally, in 1987, subsection (d) of section l-b (set 

out above) was amended by inserting a sentence reading: 

If a person sixty-five (65) years of age or 

older dies in a year in which the person 

received the exemption, the total amount of 

ad valorem taxes imposed on the homestead for 

general. elementary and secondary public 

school purposes may not be increased while it 

remains the residence homestead of that 

person's surviving spouse if the spouse is 

fifty-five (55) years of age or older at the 

time of the person's death, subject to any 

exceptions provided by general law. 

See H.J.R. No. 48, 70th Leg., 4124 (1987). You have asked 

us to construe this 1987 amendment. 

Amendments are made pursuant to article XVII, section 

1, of the Texas Constitution. In declaring the objective 

and meaning of amendments, courts should give the words 

their natural, obvious, .and ordinary meaning as understood 

by the citizenry. Amendments should be construed with 

reference to all other provisions of the constitution and -- 

with a view to giving every provision effect -- they should 

be construed in a way that will carry out the broad general 

p. 5068 
Honorable Lloyd Criss - Page 4 (JM-991) 

principles of government. State v. Clements 319 S.W.2d 450 

(Tex. Civ. App. - Texarkana 1958, writ ref'di. 

In arriving at the intent of the electorate and of the 

drafters, the primary focus must be upon the language used. 

See Booth v. Striwwleman, 61 Tex. 378 (1884) (rules for constitutional construction analogous to rules for statutory 

construction); Duval Corooration v. Sadler, 407 S.W.2d 493 

(Tex. 1966) (intent ascertained from language used and its 

legal context): 12 Tex. Jur.3d, Constitutional Law §§ 13-15. 

It is presumed that the words used were carefully selected. 

Leander Indewendent School District v. Cedar Park Water 

Suwwlv Corworation, 479 S.W.Zd 908 (Tex. 1972). 

The initial portion of the 1987 amendment reads: 

If a person sixty-five 

_ older dies . . . 

(65) years of age or 

This language connotes a future event, as does the entire 

constitutional passage. The final words of the provision 

decisively indicate that only deaths in the future are to 

trigger benefits that accrue 

if the spouse &. fifty-five (55) years of age 

or older gt the time of the werson's death 

subject to any exceptions provided by genera; 

law. (Emphasis added.) 

Tex. Const. art. XVII, 5 l-b. 

If the provision had been intended to embrace past events, 

the underscored word 'Iis" would have been written l'wast' . 

The use of the verb ais,n together with the prepositional 

phrase "at the time of the person's death," imparts clearly 

a natural, obvious, and ordinary meaning that looks to 

future events. 

Very great difficulties would accompany a different 

interpretation. If the word I1is.@' in the foregoing sentence 

fragment were read 'lwas,@l the amendment might mean that a 

widow who was fifty-five at the time her husband died in 

1975 would receive the benefit of a freeze, but a widow, now 

sixty-three,. who was only fifty years old when her husband 

died in the same year, would not. The latter widow was not 

"fifty-five (55) years of age or older bt the time of h 

person's death". If the advantage of a l@freeze" wZrZ 

available to either of them, would the taxes be "frozen" at 

p. 5069 
Honorable Lloyd Criss - Page 5 (JM-991) 

their level when the husband died in 1975? Would the excess 

taxes collected in the interim have to be returned? 

There are no appellate cases construing the constitutionally mandated lNfreeze,** and only one attorney general 

opinion has dealt with it. Attorney General Opinion MW-265 

(1980) equated the effect of a section l-b(b) tax freeze 

with a tax exemption but differentiated the two. The opinion suggested that, absent constitutional authorization, 

both the freeze and the exemption would be violative of the 

"equal and uniform@* command of article VIII, section 1, of 

the Texas Constitution. 

Those who argue for an "expansive" interpretation of 

the freeze language (to cover deaths occurring before the 

constitutional amendment took effect) urge that the expansive construction should be chosen because it "is most fair 

to the greatest number of people." However, that test leads 

to an opposite result. Taxes are fairer for the most people 

when there are no tax exemptions at all. Expanding exemptions does not expand fairness. As we noted in Attorney 

General Opinion JM-612 (1986): 

The law does not favor tax exemptions, 

since they are the antithesis of equality and 

uniformity. Hilltow Villaae. Inc. v. Kerrville Indewendent School District, 426 S.W.Zd 

943 (Tex. 1968). Constitutional and statutory provisions creating them are to be 

construed narrowly with all doubts resolved 

against granting the exemption. Citv of 

Lonoview v. Markham-McRee Municiwal Hoswital, 

152 S.W.Zd 1112 (Tex. 1941). 

A residence may be liberally classified as the homestead of both spouses for other constitutional purposes, but 

the "over 65 exemption" has not been read broadly. One 

spouse cannot claim the tax exemption if the constitution 

gives it only to the other spouse. Riwlev v. Stewhens, 686 

S.W.2d 757 (Tex. App. - Austin 1985, writ ref'd n.r.e.). 

In Riwlev v. Stewhens, suwra, a couple claimed a 

section l-b homestead exemption. The wife was over the age 

of 65 but the residence was owned as separate property by 

the husband (who was not yet 65). Because the constitution 

authorized the legislature to define "residence homestead" 

for purposes of the section -- and it had done so by defining a residence.homestead as property occupied "by an owner 

who qualifies for the exemption" -- the court said the 

p. 5070 
Honorable Lloyd Criss - Page 6 (JM-991) 

couple could not claim the exemption from taxes. The wife 

was not the owner of the property and the husband was not 

yet eligible for the exemption. 

Shortly after the "over 65 homestead exemption" was 

added to the constitution, this office found it necessary to 

read into the constitutional language the same kind of 

Riwlev v. Stewhens restrictions later included by the 

legislature in its "residence homestead" definition. The 

interpretation was thought necessary in order to save the 

exemption from invalidity under the Equal Protection Clause 

of the Fourteenth Amendment to the Constitution of the United States. See Attorney General Opinion H-9 (1973). That 

restrictive interpretation was thought necessary because, 

without it, the constitutional language would have been too 

broad. 

In the case of the 1987 amendment, broadening the 

"freeze" provision to include past deaths would not make it 

less vulnerable to Equal Protection attacks. It would make 

entirely selective (and arbitrarily retroactive in its 

operation) the limitation that the surviving spouse must 

have been 55 Years or more at the time of the death to enjoy 

the benefit.l1. There are parallels between the "65 or older" 

homestead exemption of article VIII, section l-b, and the 

@'disabled veterans" homestead exemption allowed by section 

2(b) of that article. In 1976, this office concluded in 

Attorney General Opinion H-894 that, as implemented by the 

legislature, constitutional permission to grant a veteran's 

surviving spouse and children an exemption equal to the 

exemption "to which the decedent was entitled at the tine he 

-I died I1 Tex. Const. art. VIII, § 2(b) (emphasis added), was 

not limited to the families of those who died after the tG!ffective date of the statutory implementation, even though no 

veteran could have been "entitled" to an exemption before 

that time. Attorney General Opinion H-894 (1976); see Attorney General Opinion H-88 (1973). 

In our opinion, Attorney General Opinion H-894 was 

wrongly decided. The only justification for the opinion's 

conclusion was: 

To restrict the statutory exemption . . . only to 

(Footnote Continued) 

p. 5071 
Honorable Lloyd Criss - Page 7 (JM-991) 

Attorney General Opinion H-9 said: 

The Fourteenth Amendment does not prohibit 

or prevent classification, provided classification is reasonable for the purpose of the 

legislation: is based on proper and justifiable distinctions, considering the purpose of 

the law; is not clearly arbitrary; and is not 

a subterfuge to shield one class and unduly 

burden another or to oppress unlawfully in 

its administration. 

Attorney General Opinion H-9 (1973), at 4. 

This continues to be the law. gee Western 8 Southern Life 

Insurance Co. v. State Board of Eaualization, 451 U.S. 648 

(1981); Carrinaton v. Rash, 380 U.S. 89 (1965); 16A Am. 

Jur.2d Constitutional Law 5 746. We are of the opinion that 

the 1987 constitutional amendment speaks prospectively and 

that its limitation of taxation. on exempted homesteads 

during the occupancy of surviving spouses is applicable only 

if the non-surviving spouse died after the amendment took 

effect. 

(Footnote Continued) 

survivors of those disabled veterans who have died 

since January 1, 1976, would give [it] negligible 

immediate effect. . . . 

Attorney General Opinion H-894 (1976), at 2. 

No appellate court has directly considered the H-894 conclusion, but five years later in State v. American Leaion Post 

No. 58, the court said: 

[Elxemptions granted by [statute] must be read in the 

light of Article VIII, 'sec. 2, of the Constitution 

since the Constitution expressly makes null and void 

all exemptions attempted thereunder by the legislature 

not authorized by the Constitution. If the property 

comes within a statutory exemption, it can be exempt 

only because it is clearly embraced within the constitutional authorization. 

611 S.W.2d 720, 723 (Tex. Civ. App. - El Paso 1981, no 

writ). 

P. 5072 
Honorable Lloyd Criss - Page 8 (JM-991) 

SUMMARY 

The 1987 amendment to article VIII, section l-b(d), of the Texas Constitution, that 

limits, for school purposes, the taxation of 

homesteads occupied by surviving spouses of 

persons entitled to "sixty-five years of age 

or older" exemptions applies only to spouses 

who survive persons dying after the constitutional amendment took effect. 

;fZh 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First pssistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAELEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Bruce Youngblood 

Assistant Attorney General 

-. 

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P. 5073