c 

JIM MATTOX 

Attorney General 

Supreme Court Bullding 

P. 0. Box 12546 

Austin, TX. 76711. 2546 

5121475-2501 

Telex 9101674-1367 

Telecopier 5121475-0266 

714 Jackson, Suite 700 

Dallas. TX. 75202.4506 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

9151533.3464 

p 001 Texas. Suite 700 

do”slo”. TX. 77002-3111 

7131223.5686 

606 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

6061747-5236 

4309 N. Tenth, Suite B 

McAllen. TX. 76501-1685 

512,682.4547 

200 Main Plaza. Suite 400 

San Antonio. TX. 76205.2797 

5121225~4191 

An Equal OpportunityI 

Affirmative Action Employer 

P 

The Attorney General of Texas 

November 9, 1983 

Honorable Tom Uher 

Chairman 

Opinion NO.JM-87 

Committee on Regions, Compacts and 

Districts 

Texas House of Representatives 

Austin, Texas 78769 

Re: Whether constitutional 

and statutory tax exemptions, 

specifically section 23.42 of 

the Tax Code and article VIII, 

sections l-d, l-d-l, 19, and 

19a of the Texas Constitution, 

pertain to fish and other 

forms of aquatic life 

Dear Representative Uher: 

You ask whether constitutional and statutory ad valorem tax 

exemptions and special valuation provisions, specifically section 

23.42 of the Tax Code and article VIII, sections l-d, l-d-l, 19, and 

19a of the Texas Constitution, pertain to fish and other forms of 

aquatic life. We conclude that they do. 

Section 23.42(d)(l) of the Tax Code sets forth the following 

definition of “agriculture” for purposes of calculating the value of 

real property used for “agricultural purposes” under special 

statutes: 

‘Agriculture’ means the use of land to produce 

plant or animal products, including fish or 

poultry products, under natural conditions but 

does not include the processing of plant or animal 

products after harvesting or the production of 

timber or forest products. (Emphasis added). 

valuation 

Before addressing the scope of the statutory definition, we must first 

determine whether the definition of “agricultural use” set forth in 

section 23.42, by its inclusion of “fish . . . products,” expands the 

definition of “agriculture” or “agricultural use” contained in the 

aforementioned Texas constitutional provisions. If it does, it is 

unconstitutional and void. See City of Amarillo V. Amarillo Lodge No. 

731, A.F. & A.M., 488 S.W.2d 69 (Tex. 1972); Leander Independent 

School District v. Cedar Park Water Supply Corporation, 479 S.W.2d 908 

(Tex. 1972); Dickison v. Woodmen of the World Life Insurance Society, 

280 S.W.2d 315 (Tex. Civ. App. - San Antonio 1955, writ ref’d). We 

conclude that section 23.42, with its inclusion of “fish . . . 

products” in its definition of “agriculture,” is constitutional. 

p. 366 
3 

Ronorable Tom Uher - Page 2 (JM-87) 

Article VIII, section l-d of the Texas Constitution requires that 

l~and qualifying for the agricultural use designation shall be 

appraised for ad valorem tax purposes, not at market value, but on the 

basis of those factors relative to agricultural use. Subsection (a) 

provides that 

'lalgricultural use' means the raising of 

livestock or growing of crops, fruit, flowers, and 

other products of the soil under natural 

conditions as a business venture for profit, which 

business is the primary occupation and source of 

income of the owner. (Emphasis added). 

Article VIII, section l-d-l(a) of the Texas Constitution permits the 

legislature by general law to provide for ad valorem taxation of land 

"devoted to farm or ranch purposes." We note, of course, that 

"agricultural use" under article VIII, section l-d of the Texas 

Constitution extends special valuation benefits only to those products 

grown under "natural conditions." No such ljmitation restricts the 

scope of article VIII, section l-d-l. Article VIII, section 19 

exempts from taxation "farm products, livestock, and poultry in the 

hands of the producer." Finally article VIII, section 19a exempts 

from taxation "implements of husbandry that are used in the production 

of farm or ranch products." 

Words in a constitution will be considered to have been used in 

their natural sense, Markowsky v. Newman, 136 S.W.2d 808, 813 (Tex. 

1940). and ordinary signification, Ferguson v. Wilcox, 28 S.W.2d 526, 

530 (Tex. 1930), unless the context indicates the contrary. Sugg v. 

Smith, 205 S.W. 363, 373 (Tex. Civ. App. - Austin 1918, writ ref'd). 

Language used in constitutional provisions must be presumed to have 

been carefully selected, and the words used are to be understood as 

people generally understand them. Leander Independent School District 

v. Cedar Park Water Supply Corporation, 

Sheppard, 167 S.W.2d 147, 152 (Tex. 1942). 

supra at 912; Cramer v. 

Words and phrases such as 

"agricultural," "livestock," "products of the soil," "farm or ranch 

purposes," and "farm or ranch products" do not ordinarily signify or 

include the production of fish or other forms of aquatic life. 

However, "agriculture" has been defined as 

[t]he art or science of cultivatine. the I eround. _ 

including harvestins of crons and rearine and 

management of live stock; husbandry; farming, -in a 

broader sense, the science snd act of the 

production of plants and animals useful to man. 

(Emphasis added). 

Cordon v. Buster, 257 S.W. 220, 221 (Tex. 1923). 

No Texas case has directly addressed this specific issue. 

However, this office has construed "agriculture" to include 

p. 367 
. 

Honorab1.e Tom Uher - Page 3 (JM-87) 

“mariculture.” In Attorney General Opinion H-272 (1974). this office 

concluded that a statute authorizing demonstrations in “agriculture 

and home economics” was sufficiently broad to include demonstrations 

on marlculture and fisheries. The opinion not.ed that “mariculture” 

may be defined as “the cultivation of marine organisms by exploiting 

their natural environment .‘I The opinion declared that 

‘agriculture’ was intended to mean, in addition to 

the cultivati~on and harvesting of crops (its 

narrow definition), the SCilZ”W and art of 

production of plants and animals useful to 

man . . . including . . . mariculture. 

Attorney General Opinjon H-272 (1974). 

Clearlv our resuonsibilitv. like that of the courts. is to 

determine iegislativd intent >hd give effect to it. Knight V. 

International Harvester Credit Corp., 627 S.W.Zd 382 (Tex. 1982); 

Minton V. Frank, 545 S.W.Zd 442 (Tex. 1976). In this instance, 

however, our examination of the legislative history . pertaining . to the 

recent property tax enactments does not reveal legislative intent as 

to this issue. Nevertheless, we conclude that a better reading of the 

applicable constitutional provisions would include “mariculture” or, 

more properly, “fish . . . products” within the ambit of “agriculture” 

or “livestock.” 

We now must turn to an examfnation of sectjon 23.42(d)(l) of the 

Tax Code to determine the scope of the phrase “fish . . . products.” 

You specifically wish to know whether “shrimping, fishing, the 

harvesting of the sea, and the raising of acquatic plant and animal 

life in man-made and natural environments” falls within the ambit of 

section 23.42, Without attempting to enumerate an exhaustive list of 

products and activities which fall within section 23.42, we conclude 

that each of the above activities could fall within the denotation of 

“mariculture” and, therefore, of “agriculture” in its broad sense if 

such activity includes cultivation or production. To the extent that 

“mariculture” consists of cultivation or production, we believe that 

it is included within the meaning of “agriculture” for purposes of 

section 23.42. To the extent that “harvesting” consists of the mere 

capture of animal life. we believe it is not within the meaning of 

“agriculture.” For example, a person who engages in the licensed 

practice of fish farming pursuant to chapter 48, a person who engages 

in I.!.censed shellfish culture pursuant to chapter 51, or a person 

planting or cultivating crustaceans or mollusks pursuant to chapters 

76-78 of the Parks and Wildlife Code could receive the beneficial ad 

valorem tax treatment afforded by section 23.42 of the Tax Code. 

A more difficult issue concerns the application of these benefits 

to activities on the seas and the personal property, such as netting 

and boats, used in such activities. In Attorney General Opinion 

NW-451 (1982), this office discussed the scope of section 11.161 of 

p. 368 
Honorable Tom Uher - Page 4 (JM-67) 

. 

the Tax Code which permits an individual to exempt from ad valorem 

taxation "implements of farming or ranching that he owns and uses in 

the production of farm or ranch products." Therein, this office 

declared that courts focus on the use to which an item is put, Hickman 

V. Hickman, 234 S.W.Zd 410 (Tex. 1950), declaring "implements of 

[farming and ranching]" to include "all implements used by the farmer 

in conducting his farming operations, not only those that he might "se 

directly, but those used by his tenants and employees." Smith v. 

McBryde, 173 S.W. 234, 235 (Tex. Civ. App. - San Antonio 1915, no 

writ). (Emphasis added). See also Wollner v. Darnell, 94 S.W.Zd 1225 

(Tex. Civ. App. - Amarillo 1936, no writ) (tenant farmer with rental 

contract upon 320 acres of land and who possessed only one tractor and 

no horses; court held that, since claimant was unable to farm without 

the tractor, tractor was exempt as an implement of husbandry); 

Driscoll Foundation v. Nueces County, 445 S.W.Zd 1 (Tex. Civ. App. - 

Beaumont 1969), writ ref'd n.r.e. per curiam, 450 S.W.Zd 320 (Tex. 

1970) (land entitled to special valuation even though land was 

cultivated by tenant, rather than by trustees or employees). 

Analogously, we conclude that personal property used in 

mariculture activities is exempt under article VIII, section 19a of 

the Texas Constitution even in an instance in which the claimant does 

not own the bed under the waters Ian which such activities take place 

or in an instance Jon which the claimant undertakes such activities in 

waters at the sufferance of the state if and only if such activity 

irvolves production or cultivation. Mere fishing or harvesting 

consisting of the capture of animal life will not qualify. See, e.g., 

Attorney General Opinion H-1090 (1977). 

Accordingly, we conclude that section 23.42 of the Tax Code and 

article VIII, sections l-d, l-d-l, 19 and 19a of the Texas 

Constitution, pertain to fish and other forms of aquatic life. 

SUMMARY 

Section 23.42 of the Tax Code and article VIII, 

sections l-d, l-d-l, 19 and 19a of the Texas 

Constitution, pertain to fish and other forms of 

aquatic life. 

Very truly your J L-N k 

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

p. 369 
Honorable Tom Uher - Page 5 (JM-87) 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Jim Moellinger 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Jon Bible 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 370