Untitled Texas Attorney General Opinion ( 1994 )

@ffice of the !ZfttornepQheral
&ate of PCexas
DAN MORALES August 141994
ATTORNEY
GENERAL
Honorable Carl A. Parker OpinionNo. DM-301
Chair
Committee on Economic Development Re: Whether Tax Code feotion 11.29, which
Texas State Senate authorizes a tax exemption fbr land dedicated
P.O. Box 12068 byeasunwtasadisposalsitefblmat~
Au&Texas 78711 dredged 6om the Oulf Intrwxd Waterway
byorunderthedirectionofthestateorfederal
governma& violates Texas Constitution atticle
VIU,sectionsland2 (RQ-510)
Deal senator Parker:
You ask us to consider whether section 11.29 of the Tax Code violates Texas
Constitution article VIII, sections 1 and 2. Tax Code section 11.29 provides as follows:
(a) A person is entitled to an exemption from taxation of land
that the person owns and that has been dedicated by recorded
donated easement dedicating said land as a disposal site for
depos&ingand discharging materials dredged 6om the main channel
0ftheGulf~~Wat~eybyorunderthe~onofthe
state or federal government.
(b) An exemption granted under this section termktes when
the land ceases to be used as an active dredge material disposal site
descrii by Subsection (a) of this section and is no longer dedicated
for that purpose.
Section 1 of article VIII of the constitution provides, in pert, as follows:
Sec. 1. (a) Taxation shall be equal and uniform.
(b) AUreal property end tangible personal property in this State,
unless exempt es required or permitted by this Consthution, whether
owned by natural persons or corporations, other than municipal, shall
he taxed in proportion to its value, which shall be ascuGxd as may
be provided by law.
Section 2 permits the legislature to enact general laws exempkg various kinds of property
from ad valorem taxation end provides fiather that “ell laws exempting property from
taxation other than tbe property mentioned in this Section shall be null and void.” Tex.
p. 1607
Honorable Carl A Parker - Page 2 (DM-301)
Const. art. VIII, 5 2(a). Disposal sites for materisl dredged from the Gulf Intracoastal
Waterway are not induded within the petmimiile statutory exemptions provided in
section 2.
Sections 1 and 2 of article VIU require the taxation of private property held by
natural persons or private corporations, Cr@ of Beaumont v. Fertifta, 415 S.W.2d 902.
909 (Tu. 1967). subject to exemptions permitted by section 2 and acmally enacted by the
legislatule, id. at 910, or est&&ed in other provision& either se4f-exeaning or
.
1egisMvely implemented of the constittmon, see Sure v. American Le@ortPart No. 58.
611 S.W.2d 720, 723 (Tex. Cii. App.-El Paso 1981. no writ). In other words, ptivate
propatyhsldbynatursl~~orpriMtecarporationsthatcomeswithinadaMorycd
whem tax exemption can be exempt only ifthere is clear constitutional authority for the
exemption. Id
You cite no constitutionsl authority, nor are we aware of any, for the tax
exemption contained in section 11.29 of the Tax Code, as it would apply to land held by
natural persons or private cotporations. See 21 JAY D. HOWELL,PROPgRTYTAXES
8 238 (Texas Practice 1988) (constitution does not authorize exemption of disposal sites
gem taxation, and section 11.29 “is null and void”). We therefore conclude that section
11.29 is void insofar as it woufd apply to property required to be taxed by section l(b) of
article VIII of the Texas Constitution.
SUMMARY
Section 11.29 of the Tax Code is void insofar as it would apply
to property required to be taxed by section l(b) of atticle VRI of the
T- Constitution.
g:tiy*mcr
DAN MORALES
Attorney General of Texas
p. 1608
Honorable Carl A Parker - Page 3 (DM-301)
JORGE VEGA
Pii Assistant Attorney General
DREW T. DURHAM
Deputy Attorney General for CriminalJustice
JAVIER AGUILAR
Special Afishmt Attorney General
RENEAHlcK!s
State Solicitor
SARAH J. SHIRLEY
Chair, opinion Committee
Prepared by JamesB. Pinson
Assistant Attorney General
p. 1609