# The Attorney General ofTexas

November 19, 1981 MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12548 Austin. TX. 78711 512/475-2501 Telex 9101874-1367 Telecopier 512/4754266

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An Equal Opportunityl Affirmative Action Employer HonorableRoy Blake, Chairman Senate Committeeon Administration StateCapitol Building,G-27-J Austin, Texas 78711 OpinionNo. Mu-391
Re: Whether residencesowned by the Texas Department of Corrections and used by its employeesare taxable
Dear Senator Blake:
You have inquired about the tax status of certain property held by the Texas Department of Corrections. You state that thedepartment owns a number of housing facilities which are serving as private residencesof the department'semployees. You askwhether suchuse is a "private use- such that this property is taxable under the Texas Constitutionand the PropertyTax Code. Article VIII, section Z(a) of the Texas Constitution provides that "the legislature may, by general laws, exempt from taxation public property used for public purposes." Article XI, section 9 of the constitutionprovides that "all other propertydevoted exclusively to the'use and benefit of the public shall be exempt... from taxation." Section 11.11(a) of the Property Tax'Code, effective on January 1, 1980, provides that "property owned by this state or a political subdivision of this state is exempt from taxation if the property is used for public purposes." Section 11.11(d) of the PropertyTax Code, also effectiveJanuary 1, 1982,provides in part:

(d) Property owned by the state that is not used for public purposes is taxable. Property ownedby a state agency or institutionis not used for public purposes if the property is... used to provide private residential housing for compensation to members of the public other than students and employees of the state agency or institution owning the p P ro ert .... (Emphasis added).
Acts 1981, 67th Leg., 1st C.S., ch. 13, 130, at 127. Section 11.11(d) of the Property Tax Code does not expressly make the housing facilities taxable. It in fact suggests,although it does not state. that use of housing by state employees constitutes a public purpose.

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In order to answeryour question,we must determinewhether the use of residences by employees of the department constitutes a public or private purpose within the meaninn of the constitution. See David Graham Hill-Foundation v. -- Highland-Park Independent School District, 371 S.W.2d 762 (Tex.Civ.App. - Dallas 1963,writ ref'd n.r.e.). Briefs submitted to this office raise the questionof whether the employee's use of state-owned housing primarily benefits the prison system or the employee as a private individual. In our opinion, the relevant legislationdefines the provision of housing to an employee as compensation or an emolument. Article 616629, V.T.C.S., provides that certain prison employees shall receive lodging in addition to their salaries. The General AppropriationsAct gives certain prison employees an entitlement to emoluments, which include "housing belonging to the Department of Corrections." Acts 1981. 67th Leg., ch. 875, at 3309. The Board of Corrections may also authorize emoluments to other employees. Id. The housingused by Departmentof Corrections employees has thus been characterizedby the legislature as an emolument. "Emolument" is the urofit arisine from office or



# _zemployment and it is more comprehensive than salary. Thomas v. Abernathy County Line IndependentSchool-~District, 278 S.W. 312 (Te Civ. App. - Amarillo 1925),r* Comm'nApp. 1927);Taxpayers7 P.Zd 897 (Wyo. 1936);At !v'don other grounds, 290 S.W. 152 (Tex. League of Carbon Countyv. McPherson, 54 torney General Opinion WW-719 (1959). Thus. we believe the legislature intended the use of housing ‘tobe part of the employee'scompensation.
In our opinion, the department'suse of housing to compensateits employees constitutes a public use. State funds appropriated to compensate public employees are not taxable to the state merely because.they will eventually be spent by the employees for private purposes. Nor, in our opinion, is the housing in question taxable. See generallyCity of Shermanv. Williams, 19 S.W. 606 (Tex. 1892).
SUMMARY The use of residentialproperty owned by the Department of Corrections to provide housing as compensationto its employees constitutesa public use of the property. The property is not subject to advalorem taxation.

MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorney General

p. 1331HonorableRoy Blake - Page 3 (Mw-391)

RICHARD E. GRAY III ExecutiveAssistantAttorney General Preparedby SusanL. Garrison AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Susan L. Garrison,Chairman Jon Bible Rick Gilpin W. Reed Lockhoof Jim Moellinger

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