Can I keep my Texas homestead exemption if I move into a senior or care facility?

Plain-English summary

The Brazos County Attorney asked how to read a phrase in the property tax homestead exemption. Under section 11.13 of the Tax Code, a home keeps its status as a residence homestead even when the owner temporarily stops living in it, but only in certain situations. One of those, subsection 11.13(l)(2)(B), preserves the exemption when the owner's absence is caused by "residency in a facility that provides services related to health, infirmity, or aging," as long as the owner does not set up a different principal residence. The county attorney noted there is no statutory definition or appellate ruling on what that phrase covers, and asked what factors decide whether a given place qualifies.

The practical worry was the rise of "independent living" facilities. The county attorney was comfortable that assisted-living and skilled-care facilities fit, because people move there when their safety and welfare require it. But newer independent-living facilities vary widely: many residents move in for convenience, are fully able to live on their own, and the facility offers a safe, maintenance-free place to live with amenities like cafeterias, housekeeping, and transportation, without direct health care or medication. Continuing-care facilities blur the line further by combining independent living, assisted living, and skilled care.

The AG answered by reading the words the Legislature chose. A "facility" is an establishment set up to provide a particular service. A "service" is an act of assistance, a term broad enough to cover a wide array of activities. Importantly, the statute does not require that the owner actually receive the listed services; it asks only whether the owner resides in the type of establishment that makes those services available. Reading "health," "infirmity," and "aging" by their ordinary meanings, the AG concluded a court would likely construe subsection 11.13(l)(2)(B) to mean a temporary residence in an establishment set up to assist people with overcoming illness or injury, or with needs related to physical or mental weakness or growing old, through a wide range of activities, whether or not the owner uses those services. The AG added that the new kinds of facilities might be a reason for the Legislature to revisit the framework, but that is not a reason for a court to rewrite the statute.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion did not give a checklist of factors but a construction of the phrase: subsection 11.13(l)(2)(B) refers to an owner's temporary residence in an establishment set up to make available services for illness or injury or for needs related to physical or mental weakness or growing old, regardless of whether the owner actually receives those services.

Appraisal districts applying the exemption (as the opinion described them): The opinion explained that the test looks at the type of establishment and the services it makes available, not at whether the particular owner used them, so the focus is on what the facility is set up to provide.

Homeowners who have moved to a care or senior facility (as the opinion described them): The opinion explained that the exemption can survive a temporary absence into a qualifying facility even if the owner does not personally receive its health, infirmity, or aging services, provided the owner has not established a different principal residence; it did not decide which specific independent-living or continuing-care facilities qualify.

Common questions

Do I have to actually use the facility's health services to keep the exemption?
No, under this opinion. The AG read the statute to ask only whether the owner resides in the type of establishment that makes those services available, not whether the owner receives them.

Does an independent-living facility count?
The opinion did not give a yes-or-no for independent-living facilities. It set the standard (an establishment set up to make available services related to health, infirmity, or aging) and left the application to the facts of each facility.

What is the deadline or other requirement to keep the exemption during an absence?
The opinion addressed only the "facility" phrase. It expressly did not opine on the other requirements in subsection 11.13(l)(2)(B), such as not establishing a different principal residence, so those still have to be met separately.

Why didn't the AG just say which facilities qualify?
The AG explained that a court determines legislative intent from the words enacted, and that the recent rise of new facility types might be a reason for the Legislature to revisit the law, but not a reason for a court (or the AG) to rewrite it.

Background and statutory framework

Section 11.13 of the Tax Code implements the constitutional residence-homestead exemption from ad valorem property taxes (Tex. Tax Code § 11.13; Tex. Const. art. VIII, § 1-b). It defines a "residence homestead" as a structure owned by one or more individuals, designed or adapted for human residence, used as a residence, and occupied as the owner's principal residence (Tex. Tax Code § 11.13(j)(1)). A structure can keep that status when the owner temporarily stops occupying it, but only in defined circumstances (Tex. Tax Code § 11.13(l)). Subsection 11.13(l)(2)(B) preserves the character of the homestead when the owner temporarily stops occupying it, does not establish a different principal residence, and the absence is caused by residency in a facility that provides services related to health, infirmity, or aging (Tex. Tax Code § 11.13(l)(2)(B)).

In construing the phrase, the AG applied standard rules: courts seek legislative intent from the words enacted (BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 8 (Tex. 2016); Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137, 141 (Tex. 2015)); they give an undefined term its ordinary meaning unless context shows a more precise one (R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 568 (Tex. 2016), quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)); and they read the statute as a whole (Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468, 484 (Tex. 2016)). Using ordinary meanings, the AG treated "facility" as an establishment set up to provide a service, "service" as an act of assistance that is broad in scope (Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010)), and emphasized that the statute speaks of residency in such an establishment, not of receiving the services, taking the statute as written (Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 584 (Tex. 2015)). The opinion noted that subsection 11.13(l) was amended in 2003 (Act of May 28, 2003, 78th Leg., R.S., ch. 240, § 1, 2003 Tex. Gen. Laws 1100).

Citations

Statutes:

• Tex. Tax Code §§ 11.13, 11.13(j)(1), 11.13(l), 11.13(l)(2)(B)
• Tex. Const. art. VIII, § 1-b

Cases:

• BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1 (Tex. 2016)
• Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137 (Tex. 2015)
• R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559 (Tex. 2016)
• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011)
• Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468 (Tex. 2016)
• Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829 (Tex. 2010)
• Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578 (Tex. 2015)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0147
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0147.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 11, 2017

The Honorable Rodney W. Anderson Opinion No. KP-0147
Brazos County Attorney
300 East 26th Street, Suite 1300 Re: Scope of residence homestead tax
Bryan, Texas 77803 exemption in Tax Code subsection 11.13(l)(2)(B)
(RQ-0140-KP)

Dear Mr. Anderson:

   You ask for guidance on the proper construction of Tax Code subsection 11.13(l)(2)(B). [1] Section 11.13 generally implements the Texas constitutional provision that grants taxpayers residence homestead exemptions from ad valorem property taxes. TEX. TAX CODE § 11.13; see also TEX. CONST. art. VIII, § 1-b (providing for residential homestead exemptions). Subsection 11.13(j)(1) defines a "residence homestead" as

            a structure (including a mobile home) or separately secured and occupied portion of a structure ... that:

                 (A) is owned by one or more individuals, either directly or through a beneficial interest in a qualifying trust;

                 (B) is designed or adapted for human residence;

                 (C) is used as a residence; and

                 (D) is occupied as the individual's principal residence by an owner, by an owner's surviving spouse who has a life estate in the property, or ... by a trustor or beneficiary of the trust who qualifies for the exemption.

TEX. TAX CODE § 11.13(j)(1). A structure can retain its status as a residence homestead when the owner "temporarily stops occupying it as a principal residence," but only under certain circumstances. Id. § 11.13(l). Relevant to your question, subsection 11.13(l)(2)(B) provides:

            A qualified structure does not lose its character as a residence homestead when the owner who qualifies for the exemption temporarily stops occupying it as a principal residence if that owner does not establish a different principal residence and the absence is ... caused by the owner's ... residency in a facility that provides services related to health, infirmity, or aging.

Id. § 11.13(l)(2)(B) (emphasis added). [2] You note the absence of any statutory definition or appellate court interpretation of the phrase "facility that provides services related to health, infirmity, or aging." Request Letter at 2. You suggest that it would be reasonable to assume that assisted living and skilled care facilities would fall within the scope of subsection 11.13(l)(2)(B), noting that such facilities would "provide services related to health, infirmity, or aging" to residents who move there because their "safety and welfare require" it. Id. at 3. However, you tell us that

            there are new types of "independent living" facilities which vary greatly in services and amenities. Many people move to these types of facilities primarily because of convenience. [They] are still fully capable of living in their own homes, but do not require assistance with activities of daily living, such as feeding, dressing, moving, bathing, or other personal needs or maintenance. These independent living facilities do not usually provide any of those types of services, and do not provide direct health care or administration of medication. Instead, they generally offer a safe and maintenance-free place to live, and in many cases provide exercise rooms and services, cafeterias, housekeeping services, and transportation to shopping areas, physician's offices, etc.

            It is also not uncommon for a person to move into a 'continuing care' facility, which ... offers three different living options -- (1) independent living, (2) assisted living, and (3) skilled care.

Id. You ask this office to opine on "the proper factors that should be used to determine whether any type of residence is a 'facility that provides services related to health, infirmity, or aging'" as that phrase is used in subsection 11.13(l)(2)(B). [3] Id. at 4.

   When construing a statute, a court's primary objective is to determine and give effect to the Legislature's intent. BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 8 (Tex. 2016). Courts discern that intent from the words of the statute. Tex. Student Hous. Auth. v. Brazos Cty. Appraisal Dist., 460 S.W.3d 137, 141 (Tex. 2015) ("[W]hen construing any statute, including tax exemptions, the truest manifestation of what lawmakers intended is what they enacted."). Courts give an undefined statutory term its "ordinary meaning unless 'a different or more precise definition is apparent from the term's use in the context of the statute.'" R.R. Comm'n of Tex. v. Gulf Energy Expl. Corp., 482 S.W.3d 559, 568 (Tex. 2016) (quoting TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)). Courts also determine "legislative intent from the statute as a whole, not from isolated portions." Philadelphia Indem. Ins. Co. v. White, 490 S.W.3d 468, 484 (Tex. 2016).

    With these principles in mind, we turn to the phrase in subsection 11.13(l)(2)(B) you ask about, which provides that a temporary absence must be "caused by the owner's ... residency in a facility that provides services related to health, infirmity, or aging." TEX. TAX CODE § 11.13(l)(2)(B). Because the Legislature did not define the word "facility" for purposes of this provision, we look to its common meaning. A "facility" is an "establishment set up to fulfill a particular function or provide a particular service, typically an industrial or medical one." NEW OXFORD AMERICAN DICTIONARY 619 (3d. ed. 2010). Similarly, the Legislature did not define "services" for purposes of subsection 11.13(l)(2)(B). A "service" is "an act of assistance." Id. at 1596; see also Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 839 (Tex. 2010) (noting that the term "services" is "broad enough to encompass a wide array of activities"). The statute does not require that an owner living in such a facility must receive the specified services, referring only to an owner's temporary "residency" in the type of establishment that makes the specified services available. See Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 584 (Tex. 2015) (statutory construction obliges courts to "take statutes as [they] find them, understanding that the Legislature purposefully selected the words chosen"). In addition, although the Legislature specified that the services must relate to health, infirmity, or aging, it did not define these terms for purposes of subsection 11.13(l)(2)(B). TEX. TAX CODE § 11.13(l)(2)(B). Again, we look to the common meaning of these terms. "Health" is "the state of being free from illness or injury; a person's mental or physical condition." NEW OXFORD AMERICAN DICTIONARY 801 (3d. ed. 2010). "Infirmity" is "physical or mental weakness." Id. at 890. "Aging" is "the process of growing old." Id. at 31. Thus a court would likely construe subsection 11.13(l)(2)(B) to refer to an owner's temporary residence in an establishment set up to assist persons with overcoming illness or injury, or with needs related to physical or mental weakness or growing old, through a wide range of activities, regardless of whether the owner receives such services. The relatively recent advent of the facilities you describe may well be grounds for the Legislature to revisit the framework it created. However, it does not warrant a court rewriting the words the Legislature has chosen.

                                SUMMARY

                  A court would likely construe subsection 11.13(l)(2)(B) of the Tax Code to refer to an owner's temporary residence in an establishment set up to assist persons with overcoming illness or injury, or with needs related to physical or mental weakness or growing old, through a wide range of activities, regardless of whether the owner receives such services.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Rodney W. Anderson, Brazos Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 3, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Section 11.13(l) was amended in 2003. See Act of May 28, 2003, 78th Leg., R.S., ch. 240, § 1, 2003 Tex. Gen. Laws 1100, 1100.

[3] You do not ask about, and we do not opine on, any of the other requirements in subsection 11.13(l)(2)(B) that must be fulfilled in order for a person's home to maintain its character as a residence homestead under that subsection.