Honorable Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Opinion No. M-307 

Re: Whether a certain property 

owned by a Diocese of the 

Roman Catholic Church, and 

also containing a chapel, is 

Dear Mr. Resweber: exempt from ad valorem taxation. 

In your request for an opinion, you stated your 

question as follows: 

"Is the property described as Lot 12, 

Broadacres, Houston, Harris County, Texas, 

which is owned by the Galveston-Houston 

Diocese of the Roman Catholic Church and 

used as the residence of the Bishop, 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 subdivision as a church would violate 

Paragraph 1 of the restrictions contained in said instrument, 

providing that any house built on any lot in the subdivision 

"shall be used for residence purposes only." 

You also point out that this Diocese 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 the Attorney General No. M-21; and 

that the residence of Bfshop W. J. Nold has for some time been 

carried on the tax rolls as exempt property. 

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

You furthermore make reference to the affidavit of 

the very Rev. Msgr, James J, Madden, which indicated that 

the improvements located on the property in question consist 

of 'a house which includes a semi-public chapel" which is 

being used "as the BFshop's residence, and the Chapel for 

worship services." 

We agree that the constitutional and statutory provisions applicable are as stated in your memorandum brief, 

from which we quote as follows: 

"Article 8, Section'1 of the Texas Constitution provides in part that 'all 

in this State, whether owned by -w na ura persons 

or corporations, other than municipal, 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 of Article 8 of the Texas 

Constitution which provides in part that t . . . 

the legislature may, 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 to more property 

than is reasonably necessary for a dwelling place 

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 foXLowing property shall be exempt from 

taxation, to-wit: 

'10 Schools and Churches. -- Public school 

houses and 

ttached to such buildinas necescaky for the proper occupancy, use and enJo;ment of 

the same, and which yields no revenue whatever to 

~-P492- 
. 

Hon. Joe Resweber, page 3 (M- 307) 

such church or religious society provided 

that such exemption as to the dwelling place 

for the ministers shall not extend to more 

property than is reasonably necessary 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 exclusively and in fee by a 

church,for the exclusive use as a dwelling place 

for the ministry of such church and which property 

yields no revenue whatever to such church; provid- 

“i$t~;~F~EZ& 

exemption shall not extend to more 

I 6 reasonably necessary 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 

considered as being used exclusively as a dwelling 

place I For purposes of this Act,, “church” includes 

a strictly religious society; and the “ministry of 

such church” means those persons whose principal occupation Is that of serving in the clergy, ministry, 

priesthood or presbytery of an organized church or 

religion, whether they are assigned ,to a local church 

parish, synagogue, cathedral or temple or to’ some 

larger unit of the church organization and whether 

they perform administrative functions or not.” (Our’ 

emphasis supplied throughout. ) 

Under these constitutional and statutory provisions,, 

the property in question would be exempt from ad valorem taxes 

if used ,exclusively as an actual place of religious worship. 

Likewise, if used exclusively as a dwelling for the,ministry 

it would be exempt, unless the Diocese already had a different 

and separate parcel-1 estate exempted as a dwelling for 

the minis try. It is our understanding that this Diocese already claims and has been afforded anexemption on another 

property as a dwelling for its ministry. See Attorney 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 possibilities hereinafter 

detailed on grounds that it is a parsonage, the Diocese would 

- 1493 - 
Hon. Joe Resweber, page 4 (M-307) 

necessarily lose its present exemption on the other parcel of real estate. 

Under the “actual place of religious worship” provisions, property may attain exempt status even though it 

is also incidentally used as a dwelling place for the ministry s By the same token, under the “dwelling for ministry” 

provisions, property may attain exempt status even though it 

isalso incidentally used as a place of worship. Attorney 

Generals’ Opinions Nos, O-4909 (1943) and M-21 (1967). 

However, the primary or dominant use of the house 

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 44 9, Taxation, 

Sect 232; 84 c:J.s.‘583, Taxation, Sk. 288d: ‘It is settled 

in Texas that the incidental use of property can neither defeat nor determine its status for tax exemption purposes. 

Hilltop Village, Incorporated v. Kerrville Independent School 

District, 426 SaW.2d 943 (Tex,Sup.Ct. 1966) s It must b 

exempt because of,one exemption provision 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 these principles to the matter at hand, it 

is the opinion of this office that: 

(1) If the dominant or primary use of the house 

is a dwelling for the ministry, with its use 

as a place of worship being merely incidental, 

then it is exempt under the “dwelling, for ministry” provisions, provided that the Diocese has 

no other property which is accorded an exemption 

under such provisions, 

(2) If the dominant or primary purpose of the house 

is an actual place of relfgfoue worship, with 

the resfdence of the Bfshop being a mere incidental use, then it is exempt under the “actual 

place of religious worship” provisions. 

(3) The question of dominant or primary use under 

circumstances such as are here presented is ones 

of fact; and such questions of fact cannot be :: 

resolved fn an opinfon by the Attorney 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 covenant which restricts the use 

of this property for residential purposes, we can envision 

that such covenant might well complicate and make extremely 

difficult any attempt to prove that the dominant use of the 

property is other than residential. Such restrictive covenants 

are enforceable against 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), 13 A,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.purposas must be determined by the rules 

above announced, not by the mere 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 taxing authority 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 the Roman Catholic 

Church used as the.residence of the Bishop 

and also containing a chapel may be exempt 

from ad valorem taxes in accordance with the 

primary or dominant use of the property. An 

incidental or subservient use will neither 

determine nor defeat any exemption which is 

available because of primary usage. A Diocese 

which claims its limit of one tax exemption on 

a separate property used as's dwelling place for 

its ministr,y is not entitled to claim exemption 

onsuch ground as to another property, and as 

to such other property exemption may 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 

the property for tax exemption purposes. 

Whether a particular use is primary or incidental is a question of fact which may not be 

resolved by the Attorney 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 Legal Aesfstant 

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.