Untitled Texas Attorney General Opinion
KP-0081
| Tex. Att'y Gen. | Jul 2, 2016Background
- Bastrop County asked whether Tax Code § 33.06 authorizes ad valorem tax deferral for property used partly as a residence homestead and partly for nonresidential (e.g., commercial or agricultural) purposes.
- The appraisal district typically appraises by parcel and sometimes cannot determine which portion is residential without a new survey.
- § 33.06(a) entitles individuals (65+ or disabled) to defer tax collection if they own and occupy the taxed property as a residence homestead; entitlement is claimed by affidavit under § 33.06(b).
- Section 11.13 defines "residence homestead" (structure or separately secured/occupied portion plus up to 20 acres) and ties exemption eligibility to actual use and occupancy.
- The opinion analyzes whether a chief appraiser may evaluate affidavits, grant deferral for mixed-use parcels, disallow deferral for nonresidential portions, and require an owner-funded survey to segregate uses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 33.06 authorizes deferral for mixed-use property | Requestor: § 33.06 allows deferral where owner occupies property as homestead even if other uses exist on the parcel | Appraisal Dist.: Mixed uses may defeat homestead occupancy for deferral | Held: § 33.06 implicitly permits investigation; deferral may be granted for mixed-use only if nonresidential uses are compatible with homestead occupancy (fact-dependent) |
| Whether deferral must apply to entire parcel when parcel has mixed uses | Requestor: Deferral should apply to parcel-level accounts where owner claims homestead occupancy | Appraisal Dist.: May deny deferral as to whole parcel if portions are not used as homestead | Held: Whether entire parcel is homestead is a question of fact; chief appraiser may disallow deferral when nonresidential uses render whole-parcel homestead status inappropriate |
| Whether chief appraiser may investigate affidavit or require additional info | Requestor: Chief appraiser should accept affidavit and grant deferral | Appraisal Dist.: Needs authority to verify and request information | Held: § 33.06 implies authority for the chief appraiser to investigate and request additional information to determine entitlement |
| Whether appraisal district can require owner-funded survey to segregate uses | Requestor: District should be able to require survey to determine uses | Appraisal Dist.: Needs surveys to allocate homestead vs nonresidential portions | Held: § 33.06 does not authorize imposition of extra statutory conditions; district may not require owner to obtain and pay for a survey as a prerequisite to claiming deferral |
Key Cases Cited
- Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000) (statutory construction focuses on legislative intent and plain meaning)
- In re Office of the Attorney General of Texas, 456 S.W.3d 153 (Tex. 2015) (statutory language construed in context)
- Parker County Appraisal Dist. v. Francis, 436 S.W.3d 845 (Tex. App.-Fort Worth 2014) (chief appraiser may not refuse homestead status for contiguous parcel <20 acres when owner resides there)
- Kubovy v. Cypress-Fairbanks Indep. Sch. Dist., 972 S.W.2d 130 (Tex. App.-Houston [14th Dist.] 1998) (abating collection when taxpayer filed § 33.06 affidavit)
- Zorrilla v. Aypco, Constr. II, LLC, 469 S.W.3d 143 (Tex. 2015) (homestead status is a question of fact)
- Riess v. Appraisal Dist. of Williamson County, 735 S.W.2d 633 (Tex. App.-Austin 1987) (appraisal district may not impose conditions inconsistent with statute)