, 

T 

OF TEXAS 

AUSTIN. T~~XAS 78711 

Honorable Joe Resweber 

Harris County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Opinion No. H- 570 

Re: Tax status of real property 

subject to condemnation where, 

after condemnor takes possession, 

taking is reversed as arbitrary. 

Dear Mr. Resweber: 

You have requested our opinion regarding the interim tax status of 

condemned property as to which, after the condemnor has taken possession, 

the taking is declared invalid. 

Article 7151, V. T. C. S., provides, in pertinent part: 

. . . any. . . body politic having the power of condemnation shall take over the possession of property 

under authority of any law authorizing it to condemn 

said property, or under an option to buy said property 

from the owner, or under an agreement b,y th,e owner 

to sell said property, or shall comply with the laws 

relating to condemnation to such an extent as to entitle 

it to the possession of said property, or to constitute 

a taking thereof from the owner or person in whose 

name title rests, then such condemni.ng authority shall 

be considered the owner of said property for the purposes 

of all taxation from the date of taking possession thereof, 

or from the date of its complying with the condemnation laws 

to the extent that it is entitled to possession of said property, 

or from the date it has complied with the condemnation laws 

to the extent that there has been a taking of said property 

from the owner, whichever occurs first. 

In the present Instance, the Cit,y of Houston condemned a tract of land 

and took possession thereof on March 19, 1969, after~ depositing the amount of 

the Commissioners’ award into the registry of the County Court, pursuant to 

article 3268, V. T. C. S. On trial of the matter, a jury found that the taking, was 

p. 2552 
The Honorable Joe Resweber - Pag e 2 (H-570) 

arbitrary and capricious, and the original owner was restored to possession 

in February, 1974. See City of Houston v. Hamons, 496 S. W. 2d 662 (Tex. 

Civ. App. -- Houston73, writ ref’d ‘n. r. e. ). Presently at issue is the 

tax status of the property during the period d its possession by the City of 

Houston. 

Should it be determined that the individual retained ownership of the 

property for tax purposes duxing, this interim period, he would be liable for 

all taxes accruing therein, for any other result would have the effect of 

granting tax-exempt status to otherwise non-exempt private property., In 

order to qualify for the “public property” exemption of article 11, section 9 

of the Texas Constitution, 

[ i]t iii essentidl.:. . that the’.property be us.ed for 

public purposes but that in itself is not enough. The 

property must;’ wholly apart from its use, be ‘public 

property. ’ In our opinion this means public ownership, and the Texas courts have never held to the 

contrary. We accordingly now hold that the clause in 

question authorizes the Legislature to exempt only 

nubliclv owned property used for public purposes. 

Leander Independent Sdhool District v. Cedar Park 

Water Supply Corp., 479 S. W. 2d 908 (Tex. Sup. 

1972~). 

The proviso of article 7151 is framed in the disjunctive: the condemning authority ~must either “take over the possession of property under 

authority of any law authorizing it to’condemn said property. . . or.. . 

comply with the laws rel~ating to condemnation. . . ” (Emphasis ;i-aaed). 

Although the taking in this case was subsequently reversed because the 

City failed to comply with. the laws relating to condemnation, the City 

nevertheless originally took possession of the land “under authority of” 

article 3260, which specifically permits possession pending litigation. 

Furthermore, the City did !‘comply with the laws relating to condemnation” 

to the degree that it was able to secure posse~ss,ion during the interim period. 

We are therefore of the opinion t&hat the City of Houston complied with the 

proviso of article 7151 to the extent that, between~March 19, 1969, +-id that 

date in February 1974, on which the individual ,resumed possession, the City 

must be “considered the owner of said property for purposes of all taxation. ” 

We believe that such ownership for tax purposes sufficiently complies 

with the standard promulgated in Leander, supra, which restricts tax-exempt 

status to “publicly owned property used form purposes. ‘I During the 

interim period, the former owner derived no more benefit from, and held no 

. 

p. 2553 
, 

, 

The Honorable Joe Resweber ‘- Page 3 (H-570) 

more legal right to t:he property th,an he would have enjoyed had the jury 

subsequentl,y val.idated the condemnation. Accordingl.y, we hold that, during 

this period, the t:ax status of t.he rea,it:y In question was that of tax-exempt, 

city owned propert:y. 

SUMMARY 

-= 

Where a grvernmental unit L&es possession of real 

property pursuant: to t:he con,demnation laws, and the 

taking ,is subsequeni:Ey reversed, t:he tax status of the 

real,ty during the interim period is t,hat of tax,-exempt 

property owned ‘by the condemning governmental unit. 

Very truly yours, 

APPROVED: 

_- 

C. ROBERT HEATH, C-mm 

Attmrney General of Texas 

Opi,nion Commit:t.ee 

po 2554