EA~~ORNEY GENEMAL OF TEXAS

I)ear Sir: OpinionNo. O-4931 Re: Whether man living in one county may claim his ranch in another county az his homestead.
Your request for an opinion on the above question reads as follows:

"Aman is employed and maintains a residence in '4'county. He owns no real estate in 'A'county. He owns a ranch in 'B'county. Although he has never maintained his principal residence on the ranch, he and hiswife, on various occasionshave spent several days and nights on the 'B'county property.
!'I shall thank you to advise me whethwor not, in your opinion, this msn Is entitled to a homestead exemption from State taxes on the 'B'county real estate." The situationpresented in your letter is not such that itmay be said az a matter of law that the ranch either is or is not this man's homestead. Whether or not certain property constitutes the homestead of a family is largely determined by the intentionof the hesd of the family, together with the particular circumstanceswhich may tend to establish or discredit such intention. For this reason we cannot give a categoricalanswer to your question.

The essential elements of a homestead and the rules applicable thereto are set out in our opinionsNumbers o-1638 and o-4164, copies ofwhich are attached hereto. By way of supplementingthese opinion3we shalldiscuss a few~additional authoritieswhich we believe to be peculiarlyapplicable to your question.

(ct. In Taylor Feed Pen Company v. Taylor National Bank, of Civ. Appeals, 1915) 181 3.W. 534, (Judgmentand modified on othergrounds by the Commission ofAppeals, 215 S. W. 850)Honorable Tom A. Craven,page 2 O-4931

the court announced the followingrule at page 540:

"Whileactual residence is not necessary under all circumstancesto fix the homestead characterupon land, a mere intentionto occupy land some time in the future as a homestead,unaccompaniedby any act clearly evidencing such intention, is not sufficient to attach to such land the homestead character.' (Authoritiescited)
In Parker v. Cook, (Court of CivilAppeals, 1909) 122 S.W. 419, the factswere quite similar to those presented in your question. Mr. Cook owned a 61. acre farm inRed River County,which was adequately equipped to serve as a home for himself and family,which he designated as his homestead. He and his family never actually occupied this property but insteadhe moved to Fort Worth, where he followed his trade as a carpenter. ,Itappearing that Mr. Cookwas unable to make a living at his trade of carpenterwhile living on the Red River County farm, the Court held that such farm could not conztitute his homestead,being unfit a,zto him to meet the requirements of a home. Said the court:

II

. . .The tract of landwas a farm; but Cook was a carpenter,not a farmer. He Intendedto occupy the farmwhenever conditions changed so that he could go there and make a living for his family and money to pay his debts. Such a time might never come. There was no evidence to show that therewas any good reason for expecting it in the near future. To sustain the homestead claim in this cazewould be carrging the effect of intentionalone beyond the limits fixed by any adjudicated casewe have examined.

. ."
In First ColemanNational Bank of Coleman v. Childz, Eastland Court of CivilAppeals, 1938) 113 S. W. writ refused) the court declared: (2d) 602,

"Underthe circumstances of this case, the mortgagor, or Child3 and his wife are estopped to assert the homestead claim to the 200 acres in question, regardless of the fact that the husband, after moving from the farm to the city property, made certain uses of the farm for raising stock and agricultural products,both of which were consumed in the maintenance of his familywhile residing in the city property. In other words, the use of rural land by a city or.townresident does not in itself supporthomestead claims therein. Alexander v. Wilson, zupra;Roberts v. Cawthorn, 26 Tex. Civ.App. 477, 63 S. W. 332."Eonorable Tom A. Craven, Page 3 0-4931

In Nunn'z textbook on "TexasHomestead" at page 95, the following prerequisites for the acquisition of a homestead are laid down:

"There is no constitutional or statutoryprovision directing the manner by which the homestead character is impressedupon lands other than the ztipulatier,:'provided,that the zame shallbe used for the purposes of a home, or as a place to exercise the calling or business of the head of the family.' In the judicial interpretationand application of this provision it has becomewell settled that the homestead character is impressedupon property: (a)by the actual use and occupancy of the property as a homestead; (b) or by a present intent to so use and occupy the same, coupledwith acts of preparation,demonstrating such intent. "Intent, in itself,will not impress the homestead characterupon property, but such intentmust be accompaniedwith a preparation,demonstrating such intent;and the said acts of preparationmust be prosecutedwith reasonable diligence to the extent that, within a reasonable time, they will result in the actual use and occupancy, or else it will be deemed that the intent to zo use and occupy has been abandoned. Ultimate, actual use and occupancy of the prs;:ertg

as a homestead is contemplated in all cazes. If the intentbe abandoned before the occup5jncybegins,, no homesteadrights are acquired.

. . While the facts submitted in your letter are inadequate to permit us to answer your question as a mattter of law,we believe the foregoing authorities support the following conclusionswhich may guide you in the determination of the question: 1. If the man has never actually maintained his principal residence at the ranch in "B" county so as to impress it with the character of a homestead, occasionalvisits of several days are ineffectualto accomplish such a purpose.

2. If the man hss no immediate intention of terminati~g his employment in "A"county, and if the ranch in "B"county isnot suitably located as a residencewhile engaged in such emPloymen~tin 'A"county, then the ranch cannot constitute his :homestead.Honorable Tom A. Craven,page 4 0-4931

Yours very truly
ATTORNEY GENERAL OF TEXAS

By s/WalterR. Koch Walter R. Koch Assistant
WRK:AMM:wc ENCLOSURES

APPROVED NOV 13, 1942 s/Gerald C. Mafin ATTORNEY GENERAL OF TEXAS Approved Opinion CommitteeBy s/BWB Chairman