Untitled Texas Attorney General Opinion ( 1987 )

Eonorable Stan Schlueter Opinion No. JM-667
Chail-lUin
Ways and Means c0Dmlitte.e Re: Assessment of additional tax
Texas House of Representatives under section 23.55 of the
P. 0. Box 2910 Property Tax Code, relating to
Austin, Texas 78769 valuation of land used for agri-
cultural purposes
Dear Representative Schlueter:
You inform us that, between 1980 and 1983, a taxpayer's real
property was qualified and appraised as "open-space" land pursuant to
the provisions of article VIII, section l-d-l, of the Texas
Coaititution and subchapter D of chapter 23 of the Tax Code. In 1983,
the appraisal district adopted a different standard regarding the
number of acres that must be devoted to agricultural use in order that
qualifying land be devoted to agricultural use "to the degree of
intensity generally accepted in the area." As a result, the appraisal
district denied the taxpayer's application for "open-space" land
valuation for 1983. The use to which the land was put, &. live-
stock production, has reqmined the same. You ask whether a rollback
tax may be imposed under section 23.55 of the Tax Code In an instance
in which the land fails to qualify for special valuation but is still
in agricultural use. Our answer Is "no . W
Article VIII, section l-d-l, of the Texas Constitution sets forth
the following:
Sec. l-d-l. (a) To urcmote the oreservatlon
of open-space land; the legislature shall provide
by general law for taxation of open-space land
devoted to farm or ranch purposes on the basis of
its productive capacity and may provide by general
law for taxation of open-space land devoted to
timber production on the basis Of its uroductive
capacity. The legislature by general law may
provide eligibility limitations under this section
and may impose sanctions in furtherance of the
taxation policy of this section.
(b) If a property bwner qualifies his land for
designation for agricultural use under Section l-d
of this article, the land is subject to the
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Eonorable Stan Schlueter - Page 2 (JM-667)
provisions of Section l-d for the year in which
the designation Is effective and is not subject to
a law enacted under this Section l-d-l in that
year. (Emphasis added).
The legislature has made provision for taxation of open-space
laud in chapter 23 of the Tax Code. Section 23.01(a) of the Tax Code
states: __.___ ____ =___ ---- _, this chapter. all taxable
property is appraised at its market v falue as of January 1.” (Emphasis
added. ) See also Tex. Const. art. VIII. S1. Sections 23.51 through
23.57 of the Tax Code govern the appraisal methods and procedures for
the spec ial valuation of “open-space” land. .Section 23.51 of the Tax
Code provides the following in pertinent part:
In this subchapter:
(1) ‘Qualified open-space land’ means land
that is currently devoted principally to agri-
cultural use to the degree of intensity generally
accepted in the area and that has been devoted
principally to agricultural use for five of the
preceding seven years or laud that is used
principally as an ecological laboratory by
a public -or private college or university.
Qualified open-space laud includes all appur-
tenances to the land. For the purposes of this
subdivision, appurtenances to the land means
private roads, dams, reservoirs, water wells,
canals, ditches, terraces, and other reshaping8 of
the -soil, fences, and riparian water rights.
(Emphasis added).
And finally, section 23.55 of the Tax Code provides that a tax
“rollback” be imposed in the event that there be a change of use in
the land that had previously received the special valuation:
123.55. Change of Use of Land
(a) If the use of land that has been appraised
as provided by this subchapter changes, an addi-
tional tax is imposed on the laud equal to the
difference between the taxes imposed on the land
for each of the five years preceding the year in
which the change of use occurs that the land was
appraised as provided by this subchapter and the
tax that would have been imposed had the laud been
taxed on the basis of market value in each of
those years, plus interest at an annual rate of
seveu percent calculated from the dates on which
the differences would have become due.
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Honorable Stan Schlueter - Page 3 (34-667)
(b) A tax lien attaches to the land on the
date the change of use occurs to secure payment of
the additional tax and interest imposed by this
section and any penalties incurred. The lien
exists in favor of all taxing units for which the
additional tax Is imposed.
(c) The additional tax imposed by this section
dqes not apply to a year for which the tax has
already been imposed.
(d) If the change of use applies to only part
of a parcel that has been appraised as provided by
this subchapter, the additional tax applies only
to that part of the parcel and equals the
difference between the taxes imposed ou that part
of the parcel and the taxes that would have been
imposed had that part been taxed on the basis of
market value.
(e) The assessor shall prepare and deliver a
statement for the additional taxes plus interest
as soon as practicable after the change of use
occurs. The taxes and interest are due and become
delinquent and incur penalties and interest as
provided by law for ad valorem taxes imposed by
the taxing unit if not paid before February 1 of
the year after the year In which the change of use
occurs.
(f) The sanctions provided by Subsection (a)
of this section do not apply if the change of use
occurs as a result of a sale for right-of-way or a
condemnation.
(g) If the use of the land changes to a use
that qualifies under Subchapter E of this chapter
Isection 23.71 of the Tax Code governing the
appraisal of timber land], the sanctions provided
by Subsection (a) of this section do not apply.
(h) Additional taxes, if any, for a year in
which land was designated for agricultural use as
provided by Subchapter C of this chapter [section
23.41 of the Tax Code] (or Article VIII, Section
l-d, of the constitution) are determined as
provided by that subchapter, and the additional
taxes imposed by this section do not apply for
that year.
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Honorable Stan Schlueter - Page 4 (J'M-667)
(I) The use of laud does not change for pur-
poses of Subsection (a) of this section solely
because the owoer of the laud claims it as part of
his residence homestead for purposes of Section
11.13 of this code. (Emphasis added).
You wish to know whether the section 23.55 rollback tax is imposed in
an instance in which there has been no change in use of the land, but
the land fails to qualify under section 23.51 of the Tax Code. For
the following two reasons, our answer is "no."
Courts generally will confer great weight to an agency's fnter-
pretatiou of a statute, unless it is obviously contrary to the
statute's clear and unambiguous meaning. Teacher Retirement System v.
Duckworth, 260 S.W.Zd 632 (Tex. Civ. App. - Fort Worth 1953), aff'd.
264 S.W.Zd 98 (Tex. 1954); Pacific Employers Itisurance Co. v. Brz,
242 S.W.Zd 185 (Tex. 1951); Dallas Title and Guaranty Co. v. Board of
Insurance Commissioners, 224 S.W.2d 332 (Tex. Civ. App. - Austin 1949,
writ ref'd). With the attachments that you have submitted with your
request, you inform us that the State Property Tax Board has consis-
tently interpreted section 23.55 of the Tax Code to require an active
change in use - "some affirmative act by the landowner that takes the
land away from its agricultural use" -- in order to trigger the
Imposition of the rollback tax. Under the board's construction, no
section 23.55 rollback tax is imposed In the situation you describe.
The board's construction of section 23.55 of the Tex Code is entitled
to respect. But there is an even more compelling reason for our
answer.
The clear terms of section 23.55 provide that a rollback is
triggered only if there Is a "change of use"; the section does not
impose any rollback tax If land merely fails to qualify but is still
in "agricultural use." We are required to interpret section 23.55 of
the Tax Code in a way.which
expresses only the will of the makers of the law,
not forced nor strained, but simply such as the
words of the law in their plain sense fairly
sanction and vi11 clearly sustain.
Railroad Commission of Texas v. Miller, 434 S.W.Zd 670, 672 (Tex.
1968).
The language [of the statute] appears to us to be
plain and unambiguous and its meaning clear and
obvious. We can only enforce the statute as
written and have no right to create or to find an
ambiguity where none exists in order to call into
play generally recognized rules which are used as
aids to the construction of ambiguous statutes.
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Eouorable Stan Schlueter - Page 5 (JM-667)
Col-Tex Refining Co. v. Railroad Commission of Texas, 240 S.W.2d 747,
750 (Tex. 1951). Section 23.51 of the Tax Code provides the following
in pertinent part:
In this subchapter:
. . . .
(2) 'Agricultural use' includes but is not
limited to the following activities: cultivating
the soil, producing crops for human food, animal
feed,. or planting seed or for the production of
fibers; floriculture, viticulture, and horti-
culture; raising or keeping livestock; and
planting cover crops or leaving land idle for the
&pose- of participating in- any governmental
program or normal crop or livestock rotation
procedure. (Emphasis added).
You inform us that the laud in question is still in "agricultural
use,” specifically livestock production; accordingly, we conclude that
the rollback tax may not be imposed.
SUMMARY
In an instance in which a taxpayer's land
that has previously qualified for "open-space"
laud specfal valuation pursuant to article VIII,
section l-d-l. of the Texas Constitution and
subchapter D of chapter 23 of the Tax Code, and
that is still in agricultural use but no longer
qualifies for special valuation because it is not
devoted to agricultural use to the degree of
intensity generally accepted in the area, no
rollback tax may be imposed under section 23.55 of
the Tax Code. The section 23.55 rollback tax is
imposed only when there has been a change in use
of the land.
J
Very truly yours,
JIM MATTOX
Attorney General of Texas
JACK RIGETOWER
First Assistant Attorney General
MARYXELLER
Executive Assistant Attorney General
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Honorable Stan Schlueter - Page 6 UM-667)
JUDGEZOLLIE STEAIUEP
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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