Case Information
*1 Schlueter Opinion No. JM-667 Eonorable Stan 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 78769 Austin, Texas 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 article VIII, 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 use "to the degree of generally accepted in the area." As a result, the appraisal district denied the taxpayer's application "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 furtherance taxation policy of this section.
(b) If a property bwner qualifies his land for designation for agricultural use under Section l-d this article, subject
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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 (Emphasis added). year.
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 __.___ ____ =___ ---- _, this chapter. all taxable states: falue as of January 1.” (Emphasis is appraised at its market v property 1. Sections 23.51 through added. ) See also Tex. Const. art. VIII. S methods and procedures 23.57 the Tax Code govern the appraisal ial valuation of “open-space” land. .Section 23.51 of the Tax the spec Code provides in pertinent part:
In this subchapter:
(1) ‘Qualified open-space land’ means that is currently devoted principally to agri- cultural use to the degree of generally accepted in the area and that has been devoted principally use for five of the laud that is used preceding seven years or by an laboratory principally ecological college or university. a public -or private Qualified open-space laud includes all appur- tenances to the land. For the purposes of this land means subdivision, appurtenances to private roads, dams, reservoirs, water wells, canals, ditches, terraces, and other reshaping8 of and riparian water rights. -soil, fences, 23.55 of the Tax Code provides that a tax And finally, “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 imposed on the laud equal difference between the taxes imposed on the land for each of the five years preceding the year 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. *3 (34-667)
(b) A tax lien attaches to the land on the date the change of use occurs to secure payment the additional tax and interest imposed by this 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. If the change of use applies
(d) to only part of a parcel that has been appraised as provided by this subchapter, the additional tax applies only that part the parcel and equals 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 appraisal of timber land], the sanctions provided by Subsection (a) of this section do not apply.
(h) Additional taxes, if any, for a year which land was designated for agricultural use as provided by Subchapter C of this chapter [section of the Tax Code] (or Article VIII, Section 23.41 l-d, are determined constitution) provided by that subchapter, and the additional taxes imposed by this section do not apply that year.
P. 3055 *4 (J'M-667) (I) The use of laud does not change for pur- poses of Subsection (a) of this solely because the owoer of the laud claims it as part of his residence homestead for purposes of Section 11.13 of this code.
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 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 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 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 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 law 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 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.
Eouorable Stan Schlueter (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 in pertinent part:
In this subchapter:
. . . . 'Agricultural use' includes but is not (2) limited to the following activities: cultivating the soil, producing crops for human food, animal feed,. or planting seed or for the production 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.
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 that has previously qualified "open-space" laud specfal valuation pursuant to article VIII, l-d-l. 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 use the degree generally accepted 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.
Very truly yours, J JIM MATTOX Attorney General of Texas JACK RIGETOWER
First Assistant Attorney General
MARYXELLER
Executive Assistant Attorney General *6 - Page 6 UM-667)
JUDGE ZOLLIE STEAIUEP
Special Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
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