Bullock v. Texas Monthly, Inc.

160 showing

defendant’s burden judgment to make a of the trial court is af- prejudice. Arizona, 414 U.S. Moore . firmed. (1973); 94 S.Ct. 183 38 L.Ed.2d State, (Tex.Crim. v. 530

Smith S.W.2d 827

App.1975); State, Archie 511 942 v. S.W.2d

(Tex.Crim.App.1974). passage of A mere prejudicial

time is not and will not result speedy

a denial of trial. See United States Marion,

v. 404 30 (1971); Grayless also v. see BULLOCK, Comptroller Bob of Public State, (Tex.Crim.App.1978) 567 S.W.2d 216 Texas, Accounts of State of Jim (two months); years and Easley nine v. Mattox, Attorney General of the State State, (Tex.Crim.App.1978) 564 S.W.2d 742 Richards, Ann of Texas and Treasurer (five State, years); 544 Swisher v. S.W.2d Texas, Appellants, of the State of (three (Tex.Crim.App.1976) years and months); State, eight Smith v. S.W.2d (Tex.Crim.App.1975) (two years MONTHLY, INC., Appellee. TEXAS months); State, four Harris v. S.W.2d No. 14692. (fifteen months). (Tex.Crim.App.1973) There are three interests to considered Appeals Texas, Court of determining prejudice when to the defend Austin. (1) prevention oppres ant. These are: May 1987. incarceration; (2) minimizing pretrial sive accused; (3) anxiety and concern of the Rehearing Denied 1987. June limiting possibility delay will

impair ability of the accused to defend 946; Phipps,

himself. See 630 S.W.2d at

Green, 742; Harris, S.W.2d at at 308.

S.W.2d lengthy pretrial

Oliver in suffered

carceration, noted, previously as we have anxiety go with

with and concern which

that, especially charged with when one

capital showing murder. There is no prejudice caused actual to his defense delay.

by the

Considering factors dis all of the above, we there was no

cussed find that right

violation of Oliver’s sixth amendment speedy trial.

to a heavily

Oliver relies the case of Hull on State, (Tex.Crim.App. S.W.2d

1985). note case Hull We

actively sought get his persistently noted, did

case tried. As we Oliver have actively get his persistently ask years Instead before

case tried. he waited

seeking for lack dismissal of the indictment speedy point trial.

of a We overrule

error number six.

teaching of the faith and books that con- wholly writings sist to a reli- sacred gion exempted faith are imposed Chapter. the taxes petition, Monthly plead- its trial ed that: exempts Section 151.312 from the sales religious periodicals. tax an ex- Such emption constitutes an unlawful discrimi- publica- nation based on of a the content rights and thus violates Plaintiff’s by guaranteed the First and Fourteenth Mattox, Gen., Mendez, Atty. David Jim Amendments to of the the Constitution Gen., Austin, Atty. appellants. Asst. 1, and 8 of the United States Article § Jr., Behrens, George, R. James Eric G. Constitution Texas. Graves, Dougherty, Moody, Hearon & Aus- judgment The district court’s declared tin, appellee. “because it con- 151.312 unconstitutional § an unlawful stitutes discrimination based C.J., SHANNON, Before and publi- Monthly’s] on the content of [Texas CARROLL, BRADY JJ. rights in violation of the cation its under of the First and Fourteenth Amendments MOTION REHEARING ON FOR and Article VIII U.S. Constitution § SHANNON, Chief Justice. the Texas Constitution....” opinion The handed down this Court Although judg- petition the trial and the 1987, 18, on March is withdrawn and entirely clear, Comptroller the ment are opinion place. is filed Monthly Texas and oral their briefs position argument took the that the district Inc., Appellee, Texas sued the Monthly, the judgment grounded upon was court’s others Comptroller of Public Accounts and exemption that the vio- premise 151.312 § County in the district court Travis seek- protection speech equal the and free lated pro- ing recovery paid of sales taxes under Fourteenth clauses of First court, After trial to the district test. to the Amendments Constitution judgment court rendered that Texas equal and the and uniform United States $149,107.74. This Monthly recover Court of Article 8 1 of the Constitution clause judgment. reverse the will brief, Monthly dis- In its Texas of Texas. Monthly publishes general inter- Texas a clause of the the establishment cusses Effec- magazine monthly on a est basis. part a of its Amendment but First maga- of its tive October the sales protection analysis. equal Tex. subject zine to the sales tax. became one, Comptroller point of error Under (Supp.1987). Ann. Tax Code 151.051 court erred first asserts district $149,- Monthly paid, protest, Texas under concluding that violated 151.312 the tax on represented 107.74 which sum equal protection the United clause of January magazine the sale of its between and uni- equal States Constitution and 21, 18, 1985. December We form clause of Texas Constitution. Monthly’s was for refund suit agree. publi- upon the certain predicated fact that exempted payment from cations are exercise It is in the inherent Ann. 151.312. sales tax. Tex. Tax Code free to a state be power provides: grant That section and to subjects of taxation select the not im Equal protection does exemptions. distrib- published that are or Periodicals taxa any rigid equality pose consist on a state by religious a faith and that uted sin- which result from Inequalities writings promulgating tion. wholly of judgment gling particular out one class for taxation “Each value under the infringe particu- clauses ... turn on exemption no constitutional must whether question lar are acts intended to estab- limitation. Carmichael v. Southern Coal Co., lish with or interfere beliefs and & Coke practices doing or have the effect of gov so.” Like considerations L.Ed. Commission, Walz v. Tax exemptions operation of a tax ern L.Ed.2d class. The imposed on members of a criteria, Applying this this Court every mem legislature is not bound to tax 151.312 concludes that does not violate legisla of a class or none ber at all. Furthermore, the establishment clause. may make of de ture rational distinctions we view that are of the the classification having gree a rational basis. Carmichael this tax Co., established has supra; Coal & Coke Southern and, accordingly, rational basis does not Cooper, Hurt 130 Tex. S.W.2d equal protection deny appellee of the law. (1937); Storage American & Transfer (Tex.Civ. Bullock, v. Co. S.W.2d 918 purpose by The secular served a tax ref’d). exemptions, writ App.1975, religious exemption organizations was subjected judicial scrutiny, when to must Walz, supra. described in In the Walz presumed to rest on a rational basis if Supreme Court reasoned that such a tax support state of facts would such ba exemption relationship the “restricts fiscal sis. Carmichael v. & Coke Southern Coal state, to between church and tends Co., Indeed, supra. it that “the is said complement sepa and reinforce the desired presumption constitutionality can be insulating each ration the other.” from only by explicit overcome the most demon (emphasis sup S.Ct. at 1415 Id. at that a hostile and stration classification is a plied). oppressive against persons discrimination Furthermore, opinion the in Walz classes. The the one burden is on that at exemption demonstrates the tax attacking legislative arrangement the to primary issue does have the effect not every negate might conceivable basis which inhibiting religion. advancing or To the it.” support Kentucky, Madden religious exemp contrary, effect of tax the U.S. 84 L.Ed. 590 permit 151.312 is reli tions such as to burden, its effort In to meet this gious independent of organizations to be Monthly suggests that 151.312 ex- support Although government or sanction. emption “respecting constitutes a law an recognized “[gjranting that ex Walz tax religion,” establishment violation necessarily operates emptions to churches Constitution,1 the United States and there- to afford an indirect economic bene [them] unsupported by fore is any legitimate ba- fit,” concluded that the Court sis. grant exemption of a tax is not [ t]he government The United sponsorship States Court has since the does three-part part a to created test to in determin- not of its revenue aid transfer simply de ing churches abstains from whether statute violates estab- but support manding that church lishment clause: suggested one has state. No ever that First, the statute a secular must have libraries, has exemption tax converted purpose; second, principal legislative hospitals or galleries, art into arms primary effect that nei- must be one the state.... religion, advances nor ... ther inhibits finally, the statute must foster “an at Id. 674-75. entanglement religion.”

excessive with an fact that involved Nor does the Walz 602, 612-13, Kurtzman, “nonprofit, exemption granted to other Lemon corporations,” quasi-public as well as 29 L.Ed.2d Const, religion_” part: 1. United States amend. I tablishment of states "Congress respecting shall make no an es- law religious groups, distinguish religious publishers that results it this State and appeal. Although the broader ex- from the aid. based emption in provided a clearer case of Walz is, course, issue the indirect The aid at non-sponsorship present, than is here subsidy provided by exemption to the tax religion by neutrality toward effected religious periodicals. No affirmative ac- religious grant exemption periodi- of an government necessary state just cals is as evident. To discover an passive this benefit. Due to its bestow statutory in this advancement nature, exemption the tax does not create to turn the and effect of scheme is intent ongoing partnership appearance of an 151.312 on its head. religion presented between the State and important, exemp- by direct aid. More Finally, this Court concludes that that tion is administered such a manner excessively entangle the 151.312does not continuing surveillance” “official and, religious according state in activities government is avoided. prong ly, the meets the third statute Hutcheson, supervisor for sales Wanda again, test. Once we Lemon v. Kurtzman Office, in the testi- policy authority refer to for our view. Walz qualify religious publishers may fied that, generally, noted the Court Walz exemption by making a one-time for an religious orga grant of an showing they are a bona fide by the nizations leads to lesser involvement organization Tex. Tax Code Ann. under Nevertheless, than does taxation. State testified 151.310. Hutcheson further § ques analyzing alternative the either “[i]n organization] it to that “we leave to [the are the involvement is exces tions whether publication or not it’s ... a decide whether sive, continuing one and whether it is a that teaches their faith.” calling continuing surveil for official and degree of leading impermissible lance to an application 151.- The of § entanglement.” analysis Id. at 675. This “compre- in no manner resembles the of “the character and involves examination hensive, continuing discriminating, and purposes of the institutions that are bene- confronted the state surveillance” which fitted, nature of the aid that the State the in at Supreme Court Lemon. Id. resulting relationship provides, the be Lemon, In the State had S.Ct. at 2114. religious government and the tween the nonpublic aid to conditioned its direct Lemon, supra at 91 S.Ct. authority.” and a “pervasive” restrictions schools with at 2112. continuing right inspect and audit school to contrast, our record demon- records. entangle- creates To the extent 151.312 § exemption is administered that the strates ment, entanglement creates between it entangle- church-state with a minimum of purely government and institutions with goal the of eye and with an toward ment faced, are not religious purposes. We 151.312 and neutrality codified state § therefore, presented difficulties with the elaborated Walz. attempts its government to limit when the of a the secular endeavors intrusion to appeal in this reveals Because the record organization example, where is likelihood” that 151.312 “no realistic —for provide aid for the government attempts way imper- in such a as to allow enforced sectarian corn non-religious entanglement, curriculum this Court missible entangle- the yet Comptroller creates excessive has met schools and eludes oversight measures intended test. See Hunt prong ment third of the Lemon 734, 747-48, McNair, to reli- 93 S.Ct. insure that the aid is not directed v. (1973) (stat- Lemon, 2868, 2876-77, Meek 37 L.Ed.2d 923 gious purposes. supra; where administra- 95 S.Ct. was constitutional Pittenger, 421 U.S. ute negated possibility Accord- scheme 44 L.Ed.2d 417 tive statute would lead to excessive breadth of focus is on the nature ingly, our entanglement). relationship between State’s aid and the policy The of neutrality -, toward reli (1987) 95 L.Ed.2d 209 gion provides embodied 151.312 a ra dispositive is of its claim that 151.312 exemption tional basis for the and defeats right violates speech. of free any claim that the exemption violates the Monthly’s position predicated on a misin- establishment clause. Accordingly, we terpretation Ragland. conclude that 151.312 does deny ap- In Ragland, Supreme Court identi- pellee equal protection laws, nor impermissible fied two types of discrimina- does it equal violate the and uniform clause against press: of the Texas Constitution. (1) press a tax which treats the different- point Also under error, its first ly from other enterprises; Comptroller asserts that the district (2) targets a tax which group small court in concluding erred 151.- press within the as a whole. 312 exemption violated speech the free Supreme The Court determined that clause of the First agree. Amendment. We in Ragland was so broad This issue is controlled holding that it had singling the effect of very out a Supreme the United States in Regan Court group magazines small for taxation. Representation Taxation with Wash- appeal, This contrary, presents to the ington, opposite great situation. The pub mass of Regan involved the subject lishers remain the sales tax. validity of Internal Revenue provi- Code Legislature rationally has determined sions which allowed contributions to tax to exempt religious periodicals as a means exempt organizations to be tax deductible furthering separation of church and organization if the engage did not state. Neither of the situations deemed lobbying. Representation Taxation With objectionable by Supreme Rag- Court in claimed the denial of this tax benefit was presented appeal. land is in this As stated an “unconstitutional condition” on its exer- original opinion, in the appeal falls cise of speech free through lobbying. The within the holding Court’s in Re Supreme claim, rejected Court stating this gan v. Representation Taxation With of “[tjhis that Court has never held that Con- Washington, supra. gress grant must such as [Taxa- benefit Representation] With claims here to a Monthly points out further Texas person who wishes to exercise a constitu- that this original opinion Court failed right.”

tional Id. at 103 S.Ct. at 2001 to address the issue of whether the tax (emphasis supplied). short, Supreme exemption at issue speech violates the free Court held that the failure of the State to provisions Constitution, of the Texas Tex. speech subsidize does not in- significantly Const.Ann. art. This Court § terfere with rights. First Amendment has discovered no Texas authority address ing this Monthly’s issue. Texas motion for logic The same applies to of § .151.312 rehearing entirely analysis relies almost on the Tax legislature Code. The has chosen of opinions support position federal its grant a tax religious publica benefit to that Article 8 has been violated. § However, tions. Monthly Texas has not Moreover, respects Article itas limi § legislature’s shown that failure to government’s right tations on the to re grant this types publica benefit to other of speech, strict practically is stated terms tions has “coerced” restricting them into speech identical to the free clause of the right their speech. of free Speiser v. Cf. First Amendment. Randall, point The first of circumstances, Under these this Court error is sustained. rely guidance, will on federal law for On rehearing, motion for Monthly Hospital System, Texas Jones v. Memorial opinion writ). contends that the (Tex.App.1984, S.W.2d 221 no We Court of the United analysis States Arkansas conclude that the set forth in Re - Project, Writers’ Ragland, Inc. v. gan Representation, v. Taxation With su- Transportation pra, applies equal with force to Texas Luna v. Southern Pacific Co., (Tex.1987). 724 S.W.2d 383 challenge Monthly’s under Article 8.§ Accordingly, we sustain argument Contrary appellee’s one, point error as it relates to number rehearing, the fact that motion the district court’s conclusion that 151.- post- to file a granted appellee Court leave the Texas 312 violates Article 8 of supply does not somehow submission brief predicate for missing trial court Constitution. cross-points in this Court nor assertion relief, Texas prayer In its appellee’s complain failure to does it cure course, cross-points in of the trial Monthly, by that this Court this Court asked failure to rule on its additional If, court’s judgment. affirm the district court’s grounds recovery. however, dis this Court concluded that the 151.312, respecting erred Tex trict court Accordingly, Monthly any Texas waived Monthly requested then that we remand require the district right may it have had to the cause to district court for its considera pass on court to consider and its other Texas, recovery. not there deter Bar of grounds tion of issues raised but State Appellate in Texas 15.16 at Procedure mined. 1979). (2nd ed. submission, inquired of At oral the Court court judgment of the district Monthly pre- had counsel whether Texas judgment is here rendered reversed concerning the issues complaint served its nothing. Monthly take By by the district court. not determined requested, ob- way answer counsel CARROLL, Justice, dissenting. tained, post-submission brief. leave to file a particularly I respectfully I dissent. am Monthly pleaded It is true that Texas impermissible intrusion of troubled taxes recovery it entitled to that was mandated into affairs the State grounds. It is upon based one of several 151.312. Before express terms of § predi- true the district court likewise 151.312,the allowing an under § such judgment upon cated its one only determine Comptroller must not unconstitutionality of ground claimed —the “religious faith” is a bona fide whether however, Monthly, did 151.312. Texas must also distributing periodical, he the court’s complain in court of district publication consists whether assess on its other pass to consider and failure writings promulgating the “wholly” of recovery, nor did it grounds asserted “religious teachings of the faith.” by cross-points complaints such assert the United The First Amendment of in this Court. provides: States Constitution court, course, respecting Congress should be af shall make no law of The trial prohib- or religion, an establishment any errors opportunity an to correct forded of thereof ... iting the free exercise judgment. in the might have made that it judgment Accordingly, complain to of the contemplate that language does not This bring required is to appeal, appellee pass on an laws may nonetheless government religion in court’s attention of so respecting errors to the trial an establishment those fairly admin- filing exceptions government officials by long as some manner whether the con- important is for the law. It appeal, of motion ister judgment, notice to the people worship as ability of all to tinued trial, Texas Utili for or other. West new be al- no state official they choose that 5, Irvin, 336 S.W.2d 161 Tex. ties Co. v. is not is and what lowed to determine what Auto (1960); Big H. 609 Motors v. Saenz religion. a (Tex.App.1983), 521, Auction, Inc., 653 S.W.2d (Tex.1984); under I find 151.312 unconstitutional S.W.2d aff 'd the First in clause of Texas, Procedure establishment Appellate of State Bar First, 1979). for two basic reasons.1 (2nd Amendment See 15.16 at 351 ed. Texas provisions Texas constitutional review are the Although preserved for our mentioned or 1. foremost, and exemption engenders Furthermore, im- given the state aid is tax permissible entanglement favoritism, state with reli- which has been described as a gion. Second, written, Regan 151.312 has v. Taxation subsidy. a With constitutionally prohibited primary Representation, 540, 544, effect advancing religion. of (1983). 76 L.Ed.2d 129 resulting The relationship no means

ENTANGLEMENT passive requires since the statute The majority correctly Comptroller continually to indicates that in examine reli- determining entanglement gious periodicals “religious whether the en- and the faiths” gendered by legislation state promulgating is constitu- them to determine whether tionally impermissible, i.e., continuing they meet statutory prerequisites of excessive, one must look at consisting the character “wholly” teachings of the of the purpose institutions, of the benefited requiring “religious By faith.” Comp- aid, the nature of the resulting and the inquire dogma troller to into the and belief relationship between the faith, state and the reli- religious of a 151.312 in results gious Here, entity. the benefited institu- impermissible extensive state involve- only religious tions are organizations. religion. ment with support Monthly’s position. which would important differs it is to reevaluate the issue "to pertinent provisions would give be: plain ascertain and effect to the intent and I, language people Article of the framers Worship § 6 Freedom of and of the who adopted Gregg Cayuga right Independent All men have a natural it.” and indefeasible District, worship Almighty (Tex.), according to School God 539 S.W.2d to the 865-66 dismissed, appeal dictates of their own consciences. No man attend, compelled shall support be to erect or any place worship of any presumption language or to maintain min- There is a that the used istry against selected, carefully his consent. No express human authori- was made to the will whatever, ty ought, any in people, case adopting to control or of the and that in it the draft- rights interfere with the give every conscience in mat- ers intended to effect to one of its religion, preference ters of Houston, and no provisions. Mellinger shall City ever 68 Tex. given by any religious be society (1887). Therefore, law to or 3 S.W. structur- al, worship. historical, mode of duty But comparative it shall be the analyses are all Legislature pass may important. Harrington, such laws as The Texas Bill of necessary protect Liberties, equally every religious Rights and Civil 18 Tex.Tech.L.Rev. peaceable enjoyment denomination in the public worship. its mode of provisions concerning The Texas constitutional I, Appropriations Article Purposes religion, although' part declaratory Sectarian America, experiences earlier also reflect an money appropriated, No shall be experience religious or drawn immediate intolerance sect, Treasury from the any for the benefit of indepen- suffered Texas settlers before their religious society, or theological or separa- dence from Mexico. At the time of the tion, seminary; property belonging nor shall to the the laws of Mexico made Catholicism the appropriated state be purposes. religion. such established The Catholic church was sections, combined, These preclude supported by governmental when therefore taxation establishing religion, aiding state from citizenry from a as a whole. The Texas Declara- particular religion, aiding religions, Independence charged from all tion of preferring Republic one over another. A of Mexico had denied the colonists the separation right definite wall worship according between church and to the dictates of addition, comparison state is through required support created. their consciences of a religion. with the First Amendment of the United States national The basic tenet of freedom Constitution, I, expansive religion, among prompted Article 6 is more which others the Tex- guaranteeing terms protection equally of independence, of all as colonists to declare their was religions, right worship I, as well language as the to or not carried forward in the of the first worship, to and Republic Article 7 contains a more Constitution of the and later con- state specific prohibition guard against any on establishment. stitutions in order to future Bullock, A basic difference surrounds the Texas Constitu- encroachments. See Church v. 104 1, 115, (1908). tion in contrast to the Federal Constitution Tex. 109 S.W. which favors background future reliance on the former. The rich Texas historical conse- Rights The Texas Bill quently suggests specific protec- is written as an affirm- constitutional grant protections, ative whereas the federal tions not afforded the United States Constitu- language negatively language constitutional early experience is drafted as tion. The a powers government. restriction on clearly stronger separation denote a belief in the language Where the of the Texas Constitution of church and state. given It is employee (1973). irrelevant what a long of 948 So as a law avoids “classi- Office testifies to how an fications” couched in religion, terms of ei- exemption will be administered. Over the ther to confer a benefit impose or to a many course of time such individuals will burden, legislation will in conformity be interpret exemption. administer and religion with both I regard clauses. Walz We cannot under the First Amendment al- Commission, 664, v. Tax 397 U.S. 90 S.Ct. shadowy government low officials to deter- 1409, (1970) 25 L.Ed.2d 697 standing for religious mine what is a faith and what proposition that in order to fulfill the writings are true to the faith’s doctrine. avoiding inhibiting intention of the free ex- Presbyterian Church, Church Hull religion by exempting religious ercise of 601, 89 S.Ct. U.S. L.Ed.2d 658 organizations taxes, the statute must (1969). Hence, McNair, unlike Hunt v. broadly enough drafted so as not to 413 U.S. 93 S.Ct. 37 L.Ed.2d 923 prohibition against offend the establishing (1973), regulated the institutions here are religion. a just permeated more than awith substan- Walz, Supreme In upheld Court religious tial they religious are character — granting property exemptions to organizations. part general churches as exception aof language Rights The in the Bill of was variety nonprofit a wide institu- assumption govern not drafted on the that challenged tions. The New York statute power ment properly, will exercise but exempted religious organiza- all against possible reality power tions, hospitals, libraries, play- but also may to rule The be abused. First Amend scientific, historical, grounds, professional, simply prohibit ment does not the establish patriotic groups. The breadth of the religion, ment of a state church or a state exemption pur- indicated it had a secular instead it commands that there should be pose provided only “incidental” aid to respecting “no law an establishment of religion. Commission, supra Walz v. Tax religion.” given might A law not establish at consequence, S.Ct. at 1413. As a religion may a state it but nevertheless be approve granting exemp- does not Walz “respecting” one that end in the sense of property tions for church where no similar being step that could lead to such estab exemptions exists for other social services lishment and hence offend the First nonprofit preferential activities. Such a Kurtzman, Amendment. Lemon v. certainly would almost consti- 602, 612, 2105, 2111, U.S. 91 S.Ct. prohibited tute a aid to certain “perception” L.Ed.2d 745 entities. government aiding religion enough is Subsequent deci- Court violating strike a law as the establishment support this sions view. Gillette v. Rapids clause. Grand School Dist. v. Cf. States, 437, 454, United 91 S.Ct. Ball, 3216, 3226, (1971), 28 L.Ed.2d 168 the court ongoing partner No citing indicated while that “under the Walz ship needs to be shown. religion establishment clause PRIMARY EFFECT Amendment, government ‘neutrality’ First religion in matters of is not inconsistent Inherent in the First Amendment is an by way exemptions with ‘benevolence’ antagonism command not between the duties, long exemp- from onerous so anas religion establish a the command not broadly it enough tion is tailored practice. inhibit Either clause purposes.” (empha- valid secular expanded logical if to its extreme would reflects added). Likewise, in sis Committee tend to clash with the other. As a result of supra at tension, NyQuist, Public Education v. state actions must maintain an at the court recalled that “neutrality,” advancing attitude of neither exemption challenged in was not religion. nor the Walz inhibiting See Committee for exclusively composed restricted to a class NyQuist, Public Education v. 413 U.S. 756, 2973, 788, 2955, predominately religious institu- 93 37 L.Ed.2d or even S.Ct. Hence, “the equal protection tions. narrowness of the bene- need to resort to the important Consequently, having fited class would be an factor” clause. found no any challenges statutory provi- in compelling underpinning future reasons 151.- § 312, provision sions under the established clause. I conclude is unconstitu- Center, Early Learning resorting equal protec- also Forest Hills tional to an without Lukhard, 230, (4th analysis. Inc. v. F.2d tion Cir.1984); Nowak, Young, Rotunda & Con- REMEDY Law, 19,

stitutional ch. II at 1033 n. 14 § (2nd 1983). ed. posi- Office takes the tion that should 151.312 be declared un- § By interpreting approving only asWalz constitutional, appropriate remedy is to property exemptions church tax incidental taxing pro- sever 151.312 from the main § exception, may a broader tax Walz consequences visions. The proposed of this thereby reconciled be with other establish impose action would be tax on all instance, ment clause cases. For in Board religious periodicals. Allen, Education v. of S.Ct. (1968) 20 L.Ed.2d and Ev Support Comptroller’s argument for the Education, erson v. Board can in be found Tex. Tax Code Ann. (1947) 67 S.Ct. 91 L.Ed. 711 the class (1982 Supp.1986) 101.002 & incor- which § of beneficiaries included all school chil porates by reference the Code Construction dren, public those as well as those in 311.032(c) Act. Section of the Code Con- private Richardson, schools. In Tilton v. provides: struction Act L.Ed.2d provi- In a statute that does contain a (1971), federal aid was made available to severability nonseverability, sion for or if higher learning. all institutions of To provision any appli- of the statute or its requisite achieve the neutrality required to any person cation to or circumstance is “advancing” “inhibiting” avoid neither nor invalid, invalidity held does not affect religion, Court has in each of provisions applications other or examples upheld above classifications given statute that can be without effect not couched in terms of religion. provision application, the invalid provisions to this end the of the statute The bottom line is exemp- severable, added). (emphasis are narrowly which is drafted in terms of narrow than York the New 311.032(c) (1985). Tex.Gov.'t Code Ann. —more § exemption upheld in the es- Walz—offends Hence, 311.032(c), upon based this Court Special tablishment clause. tax benefits only could sever 151.312 violat- without given religions squared cannot be ing separation powers by the doctrine of principle with the of neutrality, and such imposing a tax. purpose laws have the inevitable effect Despite feasibility the technical aiding advancing only those benefit- Comptroller’s argument, I find that the re- ed institutions. See Committee maining taxing scheme absent 151.312 NyQuist, supra Public Education v. given cannot be effect consistent with at at 2975. religion clauses of the First Amendment. summary, equal suggested by I find that 151.312 is an The taxation treatment infringement Comptroller apply- unconstitutional the estab- creates a dilemma Kurtzman, ing supra, lishment clause of the First Amendment of three- Lemon v. Constitution, prong Although religious periodicals applicable United States test. to the States under the Amend- on other Fourteenth would be taxed the same basis as exemp- protections periodicals, ment. Since the under the es- the elimination of the reasoning tablishment clause held have been to be tion would under the Walz fundamental, entanglement greater see Everson v. Ed- result in in church Board of ucation, Hence, supra, classify purpose primary laws which con- affairs. protections legislation travention of those must meet effect of the absent 151.312 secular, entanglement constitutionality strict tests of would but the without proper- created the evaluation of church foreclosures,

ty, tax and those confronta- taxing process

tions which follow the principles

would contravene Walz.

Had 151.312 been drafted more broad- different;

ly, my might decision how-

ever, to be consistent with and the Walz

antagonism religion clauses, inherent taxing provision

I find the must be struck applied periodicals. all I would there- points brought

fore overrule both of error Comptroller and affirm the district judgment.

court’s

FOREST COVE PROPERTY OWNERS

ASSOCIATION, INC., Appellant, Lyle

Dee LIGHTBODY and Arlene Lightbody, Appellees.

Laverne

No. 01-86-0734-CV. Texas, Appeals

Court of Dist.). (1st

Houston

May 1987. Schimmel, & Associ-

Bruce Ian Schimmel ates, P.C., Houston, appellant. Bradshaw-Hull, Humble, appel- Lynn lees. EVANS, C.J., and SAM

Before LEVY, JJ. BASS and Opinion BASS, Justice. SAM Property appellant, Forest Cove Association, Inc., appeals Owners de- take-nothing summary judgment law, plain- termined, as a matter of for en- its action tiff could not maintain covering deed restrictions forcement Estates, section Country Club Forest Cove County. 4 in Harris

Case Details

Case Name: Bullock v. Texas Monthly, Inc.

Court Name: Court of Appeals of Texas

Date Published: May 27, 1987

Citation: 731 S.W.2d 160

Docket Number: 14692

Court Abbreviation: Tex. App.