Case Information
*1 The Attorney General of Texas November 19, 1981
MARK WHITE
Attorney General Honorable Roy Blake, Chairman Opinion No. Mu-391
Supreme Court Building Senate Committee on Administration P. 0. Box 12548 State Capitol Building, G-27-J Re: Whether residences owned Austin. TX. 78711 by the Texas Department of Austin, Texas 78711 512/475-2501 Telex 9101874-1367 Corrections and used by its Telecopier 512/4754266 employees are taxable Dallas. TX. 75201 1807 Main St.. Suite 1400 [21417428944] Senator Blake: Dear
You have inquired about the tax status of certain property held
by the Texas Department of Corrections. You state that the department 4924 Alberta Ave.. Suite 160 El Paso, TX. 7QQu5 [9156933494] owns a number of housing facilities which are serving as private residences of the department's employees. You ask whether such use is a "private use- such that this property is taxable under the Texas Constitution and the Property Tax Code. 1220 Dallas Ave.. Suite 202 Article VIII, section Z(a) of the Texas Constitution provides Houston. TX. 77002 that "the legislature may, by general laws, exempt from taxation 713165oo666 public property used for public purposes." Article XI, section 9 of
the constitution provides that "all other property devoted exclusively 808 Broadway, Suite 312 [90617476239] Lubbock. TX. 79401 to the' use and benefit of the public shall be exempt... from January 1, 1980, provides that "property owned by this state or a taxation." Section 11.11(a) of the Property Tax' Code, effective on
political subdivision of this state is exempt from taxation if the 4309 N. Tenth. Suite 8 property is used for public purposes." Section 11.11(d) of the McAllen. TX. 79501 Property Tax Code, also effective January 1, 1982, provides in part: 512t952-4547
(d) Property owned by the state that is not used for public purposes is taxable. Property 200 MaIn Plea. suite 400 San Antonio, TX. 79205 owned by a state agency or institution is not used 512a25-4191 for public purposes if the property is... used to
provide private residential housing for compensation to members of the public other than An Equal Opportunityl students and employees of the state agency or Affirmative Action Employer 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.
Honorable Roy Blake - Page 2 (MN-391)
In order to answer your question , we must determine whether 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 question of 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 legislation defines 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 Appropriations Act 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 housing used by Department of Corrections employees has thus been characterized by the legislature as an emolument. "Emolument" is the urofit arisine from office or _ employment and it is more comprehensive than salary. Thomas v. z- Abernathy County Line Independent School-~District, 278 S.W. 312 (Te Civ. App. - Amarillo 1925), r* !v'd on other grounds, 290 S.W. 152 (Tex. Comm'n App. 1927); Taxpayers7 League of Carbon County v. McPherson, 54 P.Zd 897 (Wyo. 1936); At torney General Opinion WW-719 (1959). Thus. we believe the legislature intended the use of housing ‘to be part of the employee's compensation.
In our opinion, the department's use of housing to compensate its 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 generally City of Sherman v. Williams, 19 S.W. 606 (Tex. 1892).
SUMMARY The use of residential property owned by the Department of Corrections to provide housing as compensation to its employees constitutes a public use of the property. The property is not subject to ad valorem taxation. WHITE
MARK Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
Honorable Roy Blake - Page 3 (Mw-391)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
W. Reed Lockhoof
Jim Moellinger