_ .,. 

.- . . 

The Attorney General of Texas 

February 25. 1982 

MARK WHITE 

Attorney General 

Suprem Cowl Building 

P. 0. Box 12546 

Austin. TX. ?6711- 2546 

5124475-2501 

Tddl 910m74.1367 

Tel*COpier 5121475a66 

1607 Main SC.. Suite 1400 

Dallas. TX. 752Q1.4709 

214l742.6944 

4624 AIbmS Ave.. SUlh 160 

El Paso. TX. 799052793 

SlyuJ-3464 

12M Dallas Ave.. suite 202 

Houslon. TX. 770024966 

713/65M)8w 

606 Broadway. Suile 312 

cubbocc. TX. 794014479 

-747.5236 

4309 N. Tenth. Suite S 

McAllen. TX. 76501-1665 

512m624547 

200 MaIn Plaza. sure 400 

San Anlonio. TX. 76205.2797 

5w225-4191 

Honorable John F. Perry Opinion No. MI+451 

Hopkins County Attorney 

Courthouse Re: Section 11.161, Property 

Sulphur Springs, Texas 75482 Tax Code 

Dear Mr. Perry: 

In 1981. the legislature amended the Property Tax Code by adding 

section 11.161, which provides that “[a111 individual is entitled to an 

exemption from taxation of implements of farming or ranching that he 

owns and uaes in the production of farm or ranch products.” Acts 

1981, 67th Leg., 1st C.S., ch. 13. section 32. at 127. YOU ask a 

series of twelve questions, which fall into three principal 

categories, concerning what items are entitled to exemption, vho is 

eligible to receive the exemption, and what limftations apply to the 

granting of it. We limit our discussion to the specific questions of 

statutory construction that you raise. 

Section 11.161 was adopted pursuant to authority granted by 

article VIII, section 1 of the Texas Constitution, which provides, in 

pertinent part: “[T]he Legislature by general lav may exempt all or 

part of the personal property homestead of a family or single adult, 

‘personal property homestead’ meaning that personal property exempt by 

law from forced sale for debt, from ad valorem taxation.” (Emphasis 

added). Article XVI, section 49 of the Texas Constitution authorizes 

the legislature, by general law , to protect from forced sale a portion 

of the personal property of heaas of families and of unmarried adults. 

male and female. Article 3836. V.T.C.S.. specifies the property which 

the legislature has determined is exempt from forced sale: 

(a) Personal property (not to exceed an 

.aggregate fair market value of $15.000 for each 

single, adult person. not a. constituent of a 

family, or $30,000 for a family) is exempt from 

attachment, execution and every type of seizure 

for the satisfaction of liabilities. except for 

encumbrances properly fixed thereon, If included 

among the following: 

D. 1555 
Honorable John F. Perry - Page 2 (kw-451) 

(2) all of the following which are 

reasonably necessary for the family or single, 

adult person, not a constituent of a family: 

implements of farming or ranching.... 

Your first six questions are concerned with what items of 

personal property are entitled to exemption, and are as follows: 

1. Should the tens implements be construed 

so as to include’any and all types of equlpnt or 

machinery that could be used in an agricultural 

environment? 

2. Would a dairy operation be entitled to an 

exemption from taxation for all types of equipment 

and machinery used in such operation, including, 

but not limited to. milking, storage, feed and 

sanitation equipment? 

3. Would vehicles utilized in agricultural 

products, such as trucks and trailers. be included 

in this exemption? 

4. Would equipment used to obtain water from 

wells or for i.rrigation be exempt? 

5. Would permanent structures such as silos 

or feed bins and tanks utilized for the prc-rluction 

of forage and feed for livestock and poultry and 

used exclusively by the producer to feed his ovn 

stock be exsmpt? 

6. Could other structures such ss barns or 

sheds used for storage of forage and feed be 

considered implements? 

Neither article XVI, section 49 of the Texas Constitution nor 

article 3836, V.T.C.S.. define what constitutes an “implement of 

farming or ranching.” The predecessor to article 3836, V.T.C.S., 

now-repealed article 3832. V.T.C.S.. employed the phrase “implements 

of husbandry.” “Husbandry” is ordinarily applied t: mstters involving 

agriculture. Stuart v. State, 563 S.W.Zd 398, 399 (Ark. 1978). 

“Husbandry” has been defined to be “the business of s farmer. 

comprehending agriculture or tillage of the grczzd. the raising. 

managing, and fattening of cattle and other ?znestic animals, the 

msnagement of the dairy and whatever the land ; reduces ,‘I and is 

equivalent to agriculture in its general sense. Itions v..Lovell. 7 

Heisk. 510, 516 (Term. 1872). See also State ex rel. Boynton v. Wheat 

Fanning Company. 22 P..2d 1093 (Kan. 1933). Therefore. an item which 
~..- 

., . 

Honorable John F. Perry - Page 3 (MW-451) 

was an “implement of husbandry” under article 3832 would now be an 

implement of farming or ranching under article 3836. 

III construing article 3832, courts declared that determination as 

to what constitutes an implement of husbandry is a question of fact to 

be resolved on a case-by-case basis. Henry V. McLean. 1 White 6 w. 

609 (Tex. Ct. App. 1881). Courts focused on the use to which an item 

is put, Hickman V. Hickman, 234 S.W.Zd 410 (Tex. 1950). declaring 

“implements of husbandry” to include “all implements used by the 

farmer in conducting his farming operations, not only those that he 

might use directly, but those used by his tenants and employees.” 

Smith v. McBryde. 173 S.W. 234, 235 (Tex. Civ. App. - San Antonio 

1915, no writ). In construing article 6675a-1, V.T.C.S., .which 

governs vehicle registration and provides an exemption from 

registration for “implements of husbandry,” this office declared that 

the test wss one of primary design and primary use or purpose: “It IS 

fundamental then, that whether a vehicle IS an ‘implement of 

husbandry’ must be determined by the primary design and primary use or 

purpose to which the vehicle is put and turns on the ‘facts of any 

particular case. “’ Attorney General Opinions U-1254 (1972) 

(four-wheel riding lawn mower not an “implement of husbandry” within 

article 6675a-1, V.T.C.S;~. because not used primarily for agricultural 

purposes), citing Allred w. J.C. Engelman. Inc., 61 S.W.2d 75 (Tex. 

1933) (water truck designed for aole purpose of carrying water for 

irrigation and gasoline carrier truck designed and used for sole 

purpose of providing gasoline to tractors in orchards and fields were 

“implements of husbandry” within article 6675a-I. V.T.C.S.); M-1288 

(1972) (piece of equipment designed and used primarily for applicaton 

of fertilizer and herbicides an “implement of husbandry” within 

article 66758-1, V.T.C.S.). In Reaves V. State, 50 S.W.2d 286, 287 

(Tex. Grim. App. 1931). the Texas Court of Criminal Appeals construed 

the phrase in the context of article 827(a). section 3(a). V.T.C.S.. 

which exempted from length limitations placed upon motor vehicles 

implements of husbandry temporarily propelled or moved upon the public 

highways. The court stated that “[aIn implement of husbandry is 

something necessary to the carrying on of the business of farming, 

etc., without which the work cannot be done.” 

Employing such tests, courts variously held that planting 

machines. Smith V. McBryde. supra, cultivators, plows. stalk cutters. 

riding planters. Seiler v. Buckholdt, 293 S.W. 210 (Tex. Civ. App. - 

San Antonio 1927. no writ). tractors, Wollner V. Darnell. .94 S.W.2d 

1225 (Tex. Civ. App. - Amarillo 1936, no writ), combines, beehives, 

and trailer chassis, Hickman v. Hickman. 220 S.W.Zd 565 (Tex. Civ. 

APP. - Eastland). aff’d. 234 S.W.2d 410 (Tex. 1950), were “implements 

of husbandry.” On the other hand, courts also held that a pickup 

truck used,~primarily for purposes of trensporcation was not exempt as 

an “Implement of husbandry,” although. under the statute then In 

effect, It was exempt as a “carriage.” Hickman V. Hickman. supra. 
. . 

We construe your first question to consist of two related 

questions: Whether sole or complete ownership of property upon which 

a claimant seeks exempt status is required, and whether a claimant 

must possess al.1 of the property necessary to the pursuit of the 

agricultural business in order to qualify. We conclude that sole or 

complete ownership of the implements of husbandry is unnecessary. 

Article 3836(b) and (c). V.T.C.S.. both refer to “. ..property 

described in [s]ubsection (a) of this article [which lists the kinds 

of property exempt from forced sale], or any interest therein.” 

(Emphasis added). We believe that the legislature clearly intended 

honorable John F. Perry - Page 4 (MW-451) 

Courts also held that a mill and gin, Cullers v. James, 1 S.W. 314 

(Tex. 1886). and a windmill and three gates, all unused and unerected. 

Hickman V. Hickman, s\rpra. were not exempt; such items would be exempt 

only if they were attached as fixtures to realty which occupied the 

status oft a homestead. 

From the cases, we can abstract two propositions. First, that 

which is intended to be attached to realty, such as a windmill, a 

gate, a mill, or a gin, is not an “implement.” Courts would probably 

hold, for example, that structures such as barns. sheds, silos, and 

tanks are not implements under this statute. However, tools and 

machines such as combines, tractors, and milling machines would 

probably fall within the statute. Second, the determination as to 

which implements are “implements of husbandry” is a fact question to 

be determined on a case-by-case basis by employing a test of primary 

design and primaryr’use. We are not empowered to make determinations 

of fact; hence, we must decline to answer your questions concerning 

specific items of property. 

Your next four questions center on who is eligible to receive the 

exemption. Section 11.161, Property Tax Code, employs the term 

“individual,” while article XVI, section 49 of the Texas Constitution 

uses the phrase I’... all heads of families, and ,also of unmarried 

adults, male and female.” Article 3836. V.T.C.S., makes eligible 

(1 

. ..each single, adult person, not a constituent of a family, or... a 

family.” Clearly the class of persons embraced by section 11.161, 

Property Tax Code, could not be greater than the class embraced by 

article XVI, section 49 of the Texas Constitution and article 3836, 

V.T.C.S. We must therefore turn to these provisions to determine just 

who may qualify under section 11.161. 

first question under this topic is: 

Would the term individual as used in the [code 

provision] be limited or defined to include only 

persons in the agricultural business that have 

sole or complete ownership of all the property 

necessary for pursuit of said business? 
Honorable John F. Perry - Page 5 (MW-451) 

that any recognizable legal interest would be sufficient to impress 

upon personal property the character of a personal’property homestead. 

We further conclude that the legislature did oot intend that a 

claimant must possess all of the implements of husbandry necessary for 

the pursuit of an agricultural business before he may qualify any 

implements. See, e.g., Wollner v. Darnell. suprs (where teoant farmer 

who had rental contract upon 320 acres of land and possessed only one 

tractor and no horses, court held that, since claimant was unable to 

farm without the tractor, that tractor was exempt as an implement of 

husbandry). 

We note again that the determination of whether any item of 

personal property is an “implement of husbandry,, is a question of fact 

and that the term includes “all implements used by the farmer In 

conducting his farming operations, not only those that he might use 

directly, but those used by his tenants and employees.,, Smith v. 

McBryde. supra, at 235. Since someone not engaged in farming or 

ranching may not avail himself of the statute, Tucker v. Napier, 1 

White h W. 365 (Tex. Ct. App. 1878); Attorney General Opinion U-1254 

(1972). a determination must first be made as to whether a claimant is 

ectually engaged in farming or ranching. If he is, then any items of 

personal property whose “primary design and primary use or purpose” 

are .as an implement for farming or ranching for purposes of article 

3836. V.T.C.S.. and. concomitantly, section 11.161, Property Tax Code, 

would qualify. 

Your second question under this topic is: 

Would an individual or singular person who has 

incorporated be entitled to an exemption? 

We conclude that a corporation, regardless of the type, Is not 

entitled to an exemption. While the term “Individual” in section 

11.161 of the Property Tax Code is not expressly limited to “natural 

persons ,” the reach of article XVI. section 49 of the Texas 

Constitution and article 3836, V.T.C.S.. clearly is. Exemptions from 

forced sale were unknown to the common law and are purely statutory 

creations. Pickens v. Pickens, 83 S.W.2d 951 (Tex. 1935). Under the 

common law. a debtor was deprived of all of his property and then, 

frequently, imprisoned. Smith v. McBryde, supra. The purpose of 

exemption laws is to afford protection to a person in the pursuit of a 

lawful occupation and to assure to the family of the debtor the 

shelter of a home, the means of securing a livelihood. and the 

earnings of the head of the household. Rodgers v. Ferguson, 32 Tex. 

533 (1870). Exemption lavs were passed not merely for the purpose of 

protecting the poor from creditors who would deprive the debtor and 

his family of their means of subsistence, but also to protect persons 

in the pursuit of legitimate occupations in order that they not become 

charges on the public. Gaddy v. First National Bank, 283 S.W. 277. 
Eonorable John F. Perry - Page 6 (MI-451 1 

280 (Tex. Civ. App. - Beaumont 1923. no writ). Even a cursory reading 

of article XVI, section 49 of the Texas Constitution, article 3836, 

V.T.C.S., and the cases decided thereunder, make it clear that the 

exemption reaches only natural persons. 

Your third question under this topic is: 

Would a partnership of any nature, including a 

family partnership, be excluded from the benefits 

of this exemption? 

We conclude that partnerships, regardless of the type, are not 

entitled to claim this exemption. With the adoption of the Uniform 

Partnership Act, article 6132b. V.T.C.S.. the Texas Legislature 

adopted the so-called “entity” theory. as opposed to the “aggregate” 

theory of partnerships. In other words. for most purposes, a 

partnership is an entity legally distinct from Its partners, rather 

than the assresate of its Partners acting as individuals pursuant to a 

contract. --Se; V.T.C.S. -art. 6132b. -91. Comment; see . generally 

Bromberg, TheProposed Texas Uniform Partnershi-, 14 Southwestern 

Law Journal 437 (1960); Bromberg. Texas Uniform Partnership Act -- The 

Enacted Version, 15 Southwestern Law Journal 386 (1961). Thus the 

creditors of an individual partner cannot seize partnership property, 

nor can a partner claim a homestead or exemption from forced sale in 

partnership property against partnership creditors. V.T.C.S.. art. 

6132b, section 25(2)(c). See Kelley v. Shields, 448 S.W.2d 135 (Tex. 

Civ. App. - San Antonio-69. writ ref’d n.r.e.) (under Uniform 

Partnership Act. widow not allowed to claim as exempt property tools 

of trade of a partnership of which her late husband had ~been a 

partner). Therefore, no partnership is entitled to claim an exemption 

under section 11.161 for “implements of husbandry.” 

Your fourth and final question under this topic is: 

Would an Individual who is a citizen of a foreign 

country be eligible for the exemption? 

Citizens of a foreign country are clearly liable for ad valorem 

taxation on real and personal property which has acquired taxable 

status in a taxing jurisdiction In Texas. The question is whether a 

citizen of a foreign country is also entitled to an exemption under 

section 11.161. We conclude that he is so entitled. The Texss 

Supreme Court has declared that aliens are entitled to the benefit of 

state exemption laws, Cobbs v. Coleman, 14 Tex. 594 (1855). as are 

nonresidents. Hell v. Indian Live-Stock Company, 11 S.W. 344 (Tex. 

18891. See also Carroll v. First State Bank of Den&on. 148 S.W. 818 

(Tex. Clv. App. - Dallas 1912. no writ). We conclude that, since 

article XVI, section 49 and article 3836, V.T.C.S.. reach the property 

of aliens and nonresidents, section 11.161 does as well. 

p. 1560 
Honorable John F. Perry - Page ? (nW-451) 

Your final topic is concerned with what limitations apply to the 

granting of the exemption. Your first question under this topic is: 

Do the limits [set forth] in [article 3836, 

V.T.C.S.,] apply to [section 11.161. Property Tax 

Code] ? 

Article’ 3836 places 8 limitation of “$15,000 for each single, 

adult person, not a constituent of a family. or $30,000 for a family” 

on the amount of personal property exempt from forced sale. It has 

been suggested that these limitations somehow do not apply to the 

personal property exemption set forth in section 11.161. It has been 

suggested that section 11,161 exempts from ad valorem taxation, not 

the specific items which may be exempt from forced sale by operation 

of article 3836, but Instead the clsss of items upon which article 

3836 can operate. In other words, section 11.161 is thought to exempt 

simply the class of ‘properties reached by the phrase in article 3836 

“implements of, farming or ranching.” without regard to any dollar 

limitation. In support of this interpretation, it is suggested that 

this view reflects the latent of the legislature when the section was 

passed, that, by use of the term “exempt” in both article VIII, 

section 1 of the Texas Constitution and section 11.161 of the Property 

Tax Code, the legislature chose to provide a total, as opposed to a 

partial. exemption. We disagree. 

It is clearly the rule that, when a law is attacked as being 

unconstitutional, there is a presumption that the law Is valid and 

doubts as to its constitutionsllty should be resolved in favor of its 

constitutionality. Smith v. Davis, 426 S.W.Zd 827 (Tex. 1968). If an 

act admits of two constructions, it must not be interpreted in a way 

which will render it unconstitutional and void. State v. Shoppers 

World, Inc., 380 S.W.2d 107 (Tex. 1964). Section 11.161 of the 

Property Tax Code does not on its face contain the dollar limitations 

contained in article 3836, V.T.C.S. If we were to interpret section 

11.161 as not including the limitations. we would be constrained to 

declare the section unconstitutional. We therefore interpret it to 

include by implication the limitations set forth In article 3836. 

V.T.C.S., and hold It constitutional. 

Article VIII, section 1 of the’ Texas Constitution provides in 

pertinent part: “[T]he Legislature by general law may exempt all or 

part of the personal property homestead ot a family or single adult, 

‘personal property homestead’ meaning that personal property exempt by 

law from forced sale for debt, from ad valorem taxation.” (Emphasis 

added). In other words. the legislature may exempt from ad valorem 

taxation all or part (i.e.. grant either a “partial” or a “total” 

exemption) of the personal property exempt by law from forced sale for 

debt. On the other hand, it clearly cannot enlarge the class of 

properties which it is empowered to exempt as set forth in article 

____ 
‘_‘, 

Honorable John F. Perry - Page 8 (MW-451) 

VIII. section 1. Dickison v. Woodmen of the World Life Insurance 

Society. 280 S.W.2d 315 (Tex. Civ. App. - San Antonio 1955. writ 

ref ‘d). hv attemot to do so is void. Tex. Const. art. VIII. section 

2(a). Se&;ion 111161 of the Property Tax Code does not purport to 

expand the class of properties presently exempt from forced sale under 

article 3836. 

If the legislature had wished to exempt implements bf farming and 

ranching without regard to dollar limitations, it could have proposed 

appropriate language for inclusion in article VIII, section 1. For 

example. it could have proposed language exempting all or part of the 

class of properties upon which the personal property homestead 

provisions operate. Or, in the alternative, the legislature could 

have amended article 3836. V.T.C.S., by removing the dollar amount 

limitations. Compare now-repealed article 3832, V.T.C.S. (the 

predecessor to article 3836. which placed no dollar amount limitations 

on the personal property homestead exempt from forced sale). But the 

legislature did not do either. 

The law does not favor tax exemntions. since they are the 

antithesis of equality and uniformity.- Hilltop Village; Inc. v. 

Kerrville Independent School District, 426 S.W.2d 943 (Tex. 1968). 

Constitutional and statutory provisions creating them are to be 

construed narrowly with all doubts resolved against granting the 

exemption. City of Longvisw v. Marl&am - McRee Memorial Hospital, 152 

S.W.Zd 1112 (Tex. 1941). Therefore, we Interpret the statute in the 

more restrictive way and conclude that the dollar amount limitations 

set forth in article 3836, V.T.C.S.. also apply to section 11.161 of 

the Property Tax Code. 

Your last question under this last topic is: 

Would an individual holding equipment and 

machinery in an ~agricultural area in which he is 

“OK currently engaged, evan though he still 

pursues nnother type of agricultural useage. be 

entitled to an exemption? 

We undrrstnnd you to ask whether an individual is entitled to an 

exemption on implements of husbandry that he owns even though he is 

not then actually using such Implements in farming or ranching. We 

turn again to the cases decided under article 3836 and its 

predecessor, now-repealed article 3832. It is clear that a claimant 

for exemption may be engaged in other work besides farming or 

ranching. Seller v. Buckholdt. ~upr3; Smith v. Hcgryde. supra. With 

respect to the exemption for tools of the trade, apparatus, and books, 

it was held that there is no requirement that the claimant be engaged 

in the particular trade or profession at the time of the levy; it was 

sufficient that the claimant belonged to the trade or profession and 
Honorable John P. Perry - Page 9 (klw-451) 

intended to use the nrticles therein. HcBrayer v. Cravens, Dargan and 

Roberts, 265 S.W. 694 (Tex. 1924). By analogy ue conclude that a 

claimant who is not engaged In farming or ranching for a temporary 

period, but retains the requisite intent, haa not abandoned hia 

personal property homestead and may claim an exemption under section 

11.161. See Seiler v. Buckholdt. suprcl; Attoway v. Still, 2 Poaey 697 

(Tex. Comm’n App. 1879). 

SUMMARY 

1. The phrase “implements of farming or 

ranching” under section 11.161 of the Property Tax 

Code Includes those items of equipment or 

machinery whose primary design and primary use or 

purpose is that of an implement used by a farmer 

or rancher in conducting his farming or ranching 

operations; such a determination turns on the 

facts of any particular case. “Implements of 

husbandry” cannot as a matter of law include 

improvement to real property or fixtures; hence, 

barns, silos and sheds would not qualify. Items 

which are neither fixtures nor improvements to 

real property, such as tractors, cultivators. and 

trailers, could qualify, depending upon the fact 

situation in each case. 

2. Section 11.161 of the Property Tax Code 

reaches; vith the term “individual,” the same 

persons reached by the exemption from forced sale 

provisions, article XVI, section 49 of the Texas 

Constitution and article 3836, V.T.C.S. Neither 

partnerships nor corporations can qualify; a 

claimant must be a natural person. 

3. The dollar limitation restricting the 

amount of personal property subject to the 

exemption provisions as set forth in article 3836, 

V.T.C.S.. apply also to section 11.161 of the 

Property Tax Code. 

- MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 
Honorable John F. Perry - Page 10 (nw-451) 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jim Hoeflinger 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpln 

Patricia Hinojosa 

Robert Lattimore 

Jim Moellinger 

Bruce Youngblood