Untitled Texas Attorney General Opinion
GA-1045
| Tex. Att'y Gen. | Jul 2, 2014Background
- Attorney General evaluates HB 500 (the Texas Historical Commission credit) implementation for certified historic structures.
- HB 500 creates a new subchapter S tax credit, effective Jan. 1, 2015, with earlier placement-in-service dates for eligibility.
- Subchapter S requires a certificate of eligibility from the Commission, then airway to the Comptroller for credit claims.
- HB 500 generally becomes effective Jan. 1, 2014, but subchapter S is operative only Jan. 1, 2015.
- Whether the Commission can act before Jan. 1, 2015 is limited by the statute and related precedents; certificates cannot be issued before 2015.
- Credits, including eligible costs, may relate to structures placed in service on/after Sept. 1, 2013, but credits themselves cannot be applied before 2015.]
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre‑2015 authority to review applications | Wolfe contends Commission may review applications pre‑2015 | Abbott/Attorney General says 2001.006 allows limited pre‑effectivity actions | Commission may review applications pre‑2015 if not implementing rules |
| Pre‑2015 issuance of certificates of eligibility | N/A | Issuance would implement/enforce statute early | Not permitted before Jan. 1, 2015 |
| Appeal of denial of certificate | No direct appellate remedy under subchapter S | Administrative procedures provide limited relief | No statutory appeal; mandamus/ultra vires possible in appropriate case |
| Eligibility of structures placed in service between Sept. 1, 2013 and Jan. 1, 2015 | Eligible for credit if placed in service in that window | Credit not operative until 2015; placement date determines eligibility | Eligible for credit, but credit not operative until 2015 |
| Tax year and eligibility of costs incurred prior to 2015 | Costs may qualify for credit | Credit only in 2015 tax year; pre‑2015 costs eligible if otherwise | Costs eligible but only for 2015 tax year; credit not available prior to 2015 |
Key Cases Cited
- Norton v. Kleberg Cnty., 231 S.W.2d 716 (Tex. 1950) (law inactive until effective date; implementation delayed by effective date)
- Calvert v. Gen. Asphalt Co., 409 S.W.2d 935 (Tex. Civ. App.-Austin 1966) (act performs no function until its effective date)
- Bacon v. Tex. Historical Comm'n, 411 S.W.3d 161 (Tex. App. Austin 2013) (no judicial review of denial via APA; right of review limited)
- In re Smith, 333 S.W.3d 582 (Tex. 2011) (mandamus relief when statutory duty not performed)
- City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (ultra vires declaratory relief may be available)