Honorable Joe Resweber

CountyAttorney Harris County Courthouse Houston, Texas 77002 Opinion No.

## M-307
Re: Whether a certainproperty owned by a Diocese of the Roman Catholic Church, and also containinga chapel, is Dear Mr. Resweber: exempt from ad valorem taxation.

In your request for an opinion,you stated your question as follows:

"Is theproperty described as Lot 12, Broadacres,Houston, Harris County, Texas, which is owned by theGalveston-Houston Diocese of theRoman Catholic Church and used as the residence of theBishop, exempt from State and County ad valoram taxation?”
You stated that all of the lots in Broadacres Subdivision are restricted to a residential use on1 to an instrument recorded in Volume 

## 526, page 

## 48

is' according of the Deed Records of Harris County, Texas; and that the use of any property in the subdivisionas a church would violate Paragraph 1 of the restrictions contained in said instrument, providing thatany house built on any lot in the subdivision "shall be used for residencepurposes only." You also point out that thisDiocese owns two additional properties in Harris County, one being the Chancery Building, and the other being the residence of Bishop W. J. Nold; and that the Chancery Building was granted an exemption from taxation by Opinion of theAttorney General No. M-21; and that the residence of Bfshop W. J. Nold has for some time been carried on the tax rolls as exemptproperty.

-,1491-Hon. Joe Resweber, page 2 (M-307)

You furthermoremake reference to the affidavit of the very Rev. Msgr, James J, Madden, which indicated that the improvements located on theproperty in question consist of 'a house which includesa semi-public chapel"which is being used "as the BFshop's residence,and the Chapel for worship services."

We agree that the constitutionaland statutoryprovisionsapplicable are as stated in your memorandum brief, from which we quote as follows:

"Article

## 8,Section'1 of the Texas Constitutionprovides in part that 'all -w in this State, whether owned by na ura persons or corporations, other thanmunicipal, shall be taxed in proportion to its value,which=lTe ascertained as may be provided by law.' "This section of the Constitution is qualified by Section 2 ofArticle 

## 8 of the Texas Constitutionwhich provides in part that t
. . . the legislaturemay, by general law's, exempt from

place for the ministry of such church or relfgio$s society, and which yield ..~ s no revenue whatever to such church or religious society;provided that, such exemption shall not extend tomore property than is reasonablynecessary for a dwellingplace and in no event more than one acre of land;

. '*,,-I "The enabling statute, enacted by the Texas Legislature and codified as Article 7150, V.T.CSS,, provides in part the following: rrsThe foXLowingproperty shall be exempt from taxation, to-wit: '10 Schools and Churches. -- Public school houses and

ttached to such buildinasnecescaky for theproper occupancy, use and enJo;ment of the same, and which yields no revenuewhatever to ~-P492-.

Hon. Joe Resweber, page 

## 3 (M- 

## 307)

such church or religious society provided that such exemption as to thedwellingplace for the ministers shall not extend tomore property than is reasonablynecessary for a dwelling place and in no event more than one acre of land.I “Article 7150b, V.T.C.S., provides the following: “‘There is hereby exempted from taxation any property owned exclusivelyand in fee by a church,for the exclusive use as a dwelling place for the ministry of such church and which property yields no revenuewhatever to such church; provid- “i$t~;~F~EZ& exemption shall not extend tomore

I6 reasonablynecessary for a dwelld in no event more than one acre of land; an prov ded further, that the fact that the. ministry uses a portion of the dwelling as their study, library or office shall not prevent the property from being consideredas being used exclusivelyas a dwelling placeI For purposes of thisAct,,“church” includes a strictly religious society;and the “ministry of such church” means thosepersons whose principal occupation Is that of serving in the clergy,ministry, priesthood or presbytery of an organized church or religion,whether they are assigned ,toa local church parish, synagogue, cathedral or temple or to’some larger unit of the church organizationand whether they perform administrative functions or not.” (Our’ emphasis supplied throughout.) Under these constitutionaland statutoryprovisions,, the property in question would be exempt from ad valorem taxes if used ,exclusively as an actual place of religiousworship. Likewise, if used exclusively as a dwelling for the,ministry it would be exempt, unless the Diocese already had a different and separateparcel-1 estate exempted as a dwelling for the ministry. It is our understanding that thisDiocese already claims and has been afforded anexemption on another property as a dwelling for itsministry. SeeAttorney General’ Opinion No, M-21 

## (1967). The Diocese as a,church is entitled to only one exemption for parsonage purposes, Houston v, South Park Baptist Church of Houston, 393 S.W.2d 

## 354{Tex.Civ. App, 1965, error ref.). Therefore, if an exemption is afforded to the property in question undes the possibilitieshereinafter detailed on grounds that it is a parsonage, the Diocese would

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necessarily lose itspresent exemption on the other parcel of real estate. Under the “actualplace of religiousworship” provisions,property may attain exempt status even though it is also incidentallyused as a dwellingplace for theministrys By the same token,under the “dwelling for ministry” provisions,property may attain exempt status even though it isalso incidentallyused as a place of worship. Attorney Generals’ Opinions Nos, O-4909 (1943)and M-21 (1967). However, the primary or dominantuse of thehouse determines the particular exemption that is applicable. Syracuse Center of Jehovah’s Witnesses v.’Syracuse, 163 Misc. 33 297 N.Y,S 5tSf lb6 A L.R, 1237* 84C J S 449, Taxation, Sect 232; 84 c:J.s.‘583, Taxation, Sk. 288d: ‘It is settled in Texas that the incidentaluse of property can neither defeat nor determine its status for tax exemptionpurposes. Hilltop Village, Incorporatedv. Kerrville Independent School District, 426 SaW.2d 943 (Tex,Sup.Ct. 1966)s It must b exempt because of,one exemptionprovision or the other,,enot a combination of them. Trinity Methodist Episcopal Church v. City of San Antonio, 201 S.W. bbg (Tex.Civ.App,lglo,error ref.) Applying theseprinciples to thematter at hand, it is the opinion of this office that:

(1) If the dominant or primary use of the house is a dwelling for theministry,with its use as a place of worship beingmerely incidental, then it is exempt under the “dwelling, for ministry”provisions,provided that the Diocese has no otherproperty which is accorded an exemption under such provisions, (2) If the dominant or primary purpose of thehouse is an actual place of relfgfoueworship, with the resfdence of the Bfshop being a mere incidental use, then it is exempt under the “actual place of religiousworship” provisions. (3) The question of dominant or primary use under circumstances such asarehere presented is ones of fact; and such questions of fact cannot be :: resolved fn an opinfon by theAttorney General’s

-1494 -. .

Hon. Joe Resweber, page 5 (M-307)



### , Office. Attorney General 0 inlon Nos. 

### c-697 (1966)and M-187 (1961). With regard to the covenantwhich restricts the use of thisproperty for residentialpurposes, we can envision that such covenant might well complicateand make extremely difficult any attempt toprove that the dominant use of the property is other than residential. Such restrictive covenants are enforceableagainst the church and its properties,yet the trier of facts may find an abandonment of the restrictions. See Cannon v. Ferguson, 190 S.W,2d 831, 834 (Tex.Civ.App.

### 1945,no writ), 

### 13A,L.R.2d 1239; Chandler v. Darwin, 281 S.W.2d 363, 367 (Tex.&v.App. 1955, no writ); Terre11 Hills Baptist Church v. Pawel, 286 S.W.2d 204, 209 (Tex.Civ.App. 1956 Thornton v. Wings of Faith Tabernacle, Inc., 69~"Sw~.2d'5$ it) d 5'74 T i 1956 &.if$i $2'446 f



### (sip%i?l~Sj: n.r.e. ; 7 Cowling v. Co&an, 312 However, the status of the property for tax.purposasmust be determined by the rules above announced, not by themere existence alone of the covenant made between private parties,

Circumstances involving the tax exempt *tatus of the property inquired about present a fact ouestion as to dominant or incidental use, a question which the taxingauthority must initially determine and which the trier of fact6 in a court of law must ultimately determine in the event of litigation. I

Property of a Diocese of theRoman Catholic Church used as the.residenceof the Bishop and also containinga chapel may be exempt from ad valorem taxes in accordance with the primary or dominant use of the property. An incidental or subservientuse will neither determine nor defeat any exemptionwhich is available because of primary usage. A Diocese which claims its limit of one tax exemption on a separateproperty used as's dwelling place for its ministr,y isnot entitled to claim exemption onsuch ground as to another property, and as to such other property exemptionmay only be claimed if the primary or dominant use is established as an actual place of religious worship. The existence of a covenant between

-1495-Hon. Joe Resweber, page 6 (M-307)

private parties restricting -. 1
. _ _ the use of real

. escace can not, alone, aetermlne tne status of theproperty for tax exemptionpurposes. Whether a particular use is primary or incidental is a question of fact which may not be resolved by theAttorney General’s Office.’

D C, MARTIN

Prepared by Alfred Walker and Fisher Tyler Assistant Attorneys General
APPROVED: OPINION COMMITTEE Kerns B. Taylor, Chairman Jack Goodman Mark White Pat Cain Bob Flowers Hawthorne Phillips Staff LegalAesfstant

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