Hon. Stewart W. Hellm4,n Opinion No. V-I&B 1 Grimm41 District Attorpex Tar rant County Re: Ad v,aIerem t4xetion QImilkFort Worth, Texas tary housin t unite to be constructed an maint4ined on Carswell Air Force Ha&by Dear sir: private enterprise.

In your Ietter of Jutr 24, 1951, you requested t&e opine ion of thie ofGee as to State an& ID& 4tl valorem tax,ation of4 military housiq project **to**be co~#kWr~!*sclon Carswell Air Foraa Base in accordance with the proviaYons of the Mititar, Mousing E Act. P.L. 211, 81at C,ong. 1949, 63 Stat, 4%30, 12U.S.’

. %17,48. You later sent USa photostatic copy of the proposed lea@ to be executed by the Government and th,b lessee of the project.

The kase pro@tles &tat the ,@orarmnt will &s+&isthe described laad for ?S yeara to ,th.sIe%&#r,tab,e ltaed for erecting, : Inaitiainlng aad operating tke hou*~%q+,,4qiect. Lessee is 4oprf theeCovcrnment hn annual rc@txl of $1

### ii0.00. 

### PraMsion io m&e for obtaining mor.tgsge insursdcn Qr&r Title VIf? OX Me Natimaal Moustng Act. The leasee is r,@quired to leas,e all UW OSthe housi,ngprajcct to,such military a,ad c.iv$Wibm ~rsontiel of @he&my, blavy, Marina Corps or Air 

### FWcra $tnEludi Co~ctsment pontractore’ sm,ployeee) assigned to &@ Uitthe m%itaxg &@+MG&M$Q OFtn nf the axea ahere the inetallation 4, kabteal aa ~8 deei#W~eb ##ybhe Commanding Officer. In the eve:nt the Commanding OfGicec &ils to design&e such personnel &bin a steted periad. and rtpr~rother stated conditi,arre, the Lessee map lease b&c unit6 to pbrW?U #%w than said mili%ry or civilian personnel. Detailed px*iaio*s clb*Qr laaaing 4Sreements made by the lessee.

The eighth covenant **and** condition of $he &se cbntra(;t raad6, 10part, 4s fbllows:

“8. That the Lessee *hall pay to the pro&r au? thority, when and as the same become due ond payable, all taxes, assessments, and similar charges whitb, at any time during the term of this Lease, may be taxed, assessed or imposed upon the Goverpment~or upon the Lessee with respect to or upon the leased property. In the event aqy taxes, a.ssessmeat,s o,i:similar qbarggs are impsed with the consent of~tbcCongress of the.

i

I -. . .

;c,,

eon. St&art W. Hellman, Page 2 (V-1251)

United States ‘upon the property owned by the Gov.ernment and included in this Lease (as ‘opposed to the leasehold interest of the Lessee therein), this Lease shall be renegotiated so as to accomplish,an equit&k reduction in the rental provided above, which shall,%& be greater than the difference between the ,amoi&-& such taxes, assessments or similar charges 

### ,awLBb amount of any taxes, assessments or similar ch@ 8 *R\ich were imposed upon such Les,k%e With TW@%W Y, to his lease-hold interest in the leased property @f&p to the granting of such consent by the Congress,@ ,$#$ ,United States; c”

At the expi,ration of,the lease all fmprovemp?t~ v&a uw w ,@emise$ and at1 i,temg required to be tW+&f$a @ WV lqa$,ee are to remain on the less,ed premises and be tla;elorti@:N# ofthe.Government without compensation.

,;X&b. Stewart W. Hellman, Page 9 (V-1251)

of the leasehold interest woiaid be subject to tax. Art. 7173, V.CZ.S.;~ Daugherty v. Thomp,son, 71 

### Te%. 192, 9S.W. .99 (18:&J); 1 72 T 97 12SW 176 (1888). Article 524&, V.C g’funda%ntal kk df iaw that lande and improvematis &8rmm belonging to the United States are exempt from taxation; but it also expressly provides as ,fpllows:

v

. .‘,any portion of said lands and improvements whkh is used and occupied by any person, firm, association of person* or corporation in its private capacity, or which is being used or occupied in the conduct of any private business or enterprise, &all be subject TVtaxstion by this State and its mlitical subdiv.isio~s.” The eighth covenant of the lease, previously quoted, recognicds the possibility that 10~81 taxes might ac~crue ot~thb I&IBee’6 interest in military housing projects. **We** are of the opinfoD tht in the absence of a eesoion ofjurisdictia by the State such taco would be **vaIi#T** inposed,, 91 Am. Fur. 28.0, Taxation, 0218.

We will next conrrider the effect of a ceeaisn of “aclae$w, jurisdiction” on the t-ability 

### ofthe teaeehold intered. &tic ctc $a47 read~s as follows:

“Whenever the Unit~e4Stafes shall acquke &ny lands under IMartitle, +t shall desire ,tes-&e cot%- 6tituMaaal juris&M4M war such lands icllr any purpoes authoriied herein, it shall be law&L for the Goveruor,

, in the name and la behalf of the State, to cede to the

United States ex,cluaiva jurisdktion over atrg land8 EO acquired, when application may be made to him fan)t&at purpose, which application ohnlt be in w,rktizkgand accompanied **with** th%pxbger evidence of subbr,acquisition, duly authenticated 

### aad recorded, cont#&&g or haviw aanexe,d thereto, anaccurbte description by metes and bounds of the lahds sought to be ceded, Mosuch cesslon shall ever be made except upon,tbe express CM&-

“Property held ondef a lease for a term 4 khr~e years o,r more, ot brld uader a contract for the parchase thereof, belonging to this State, or that is exempt by law from taxation in the hands of the owner thereof, shall be considered for all the p,urposes of taxation, as the property gf the gartaon sp hol&eg the 

### same, exacgrt es, otherwise special& prw$&d by 

### law.

. j *”Han. 84swart W. NeUman, Page 4 (V-$251)

Ha that this Stat% shall retain concurrentr jurtadict6Qn witlr the United States OY~Pevery portion ofthe lan& so ceded, 80 far, that all proceea, Civil or **criminal** i%ruiap under the authority of this State or any elf&e aamts orjudicial officer% thereof, may be exQcut%$ by the proper officers of the State, upon any @e,ra,#$) amenable to the same within the limits of the tan& Ld ucdad, in like manner and like effect as if no %ucb ce%- rion had taken place; 

### and au& eon&ion %&ad

### kg In* %erted in such instrument of cession.” This Article constitutes the only method of tran%f$r-

‘;;q,gg”7i,‘6” cj;;r;3$t&on* Cyryy v. S,mte, 111 Tex. Grim. 264,

Asruming that the Uov.ernor cedes “exctuoive jctp:ip,&%- tioa” m the United States over the lands uponwhich the hou%inS pa!@@& will be cortstructed and that such cession is accepted, we U~O& the cplnion that the ceslrion would have the effect of exempting **from** State and local taxation all private property 

### rights a@ i~ere~ 011or within the bounds of ths area **over** wh$chjuri%diet&onis cad&d. This result would necessarily flow f,rom a grant of e~elusive jurisdiction over land, since the State would,then lack **bhe**rrquisite jurisdiction necessary to the imposition o’fany tt&~. No ca%e%have cow&rued the phra,%ge “canstitut&na\ juri%&t&M” a& “axclusive jurisdiction,” as ugrd in Article 5247, f@&the #us* p@ae.of a%e%%ttair&ngtheir effect on the State’s jurltdiction to ta#f pr:ivately owne,d property on or witbin the ,confines of:the t&i %+ eaded. The 

### language used in these phrases is .ptsin, unam~Q@ui: and all-ombrae~9 and would %eem to deprive the State of all ju,ri#- Bi’ctioa withjn the ceded area except that which Article 5&41-kKpr#&S* If ”,perides shell be retained. Furthermore, the inelusion OSt&e gxuv$s~oin this Ar,ticle is further indication that the only type of 

### ju;s&&$&ian 40be retained by th%State ofTexqa is a

### Poacuhrwnt

EArtid f,, @action 8, Clause pv,,of the Feuefal’ Ce##tu’tl$P3.,)ru* vkfes that CQqr@ss fhall have the power 36 exercllee ez&+&wt legislation

. . . over all places purchaeed by the consent ofthe te f* i%lature ofthe state in which the s,ame shalt be, for the erection o .-4%, magc%i,ne%, arserrals, dock-yards, and other needful buiiM- &a&r.!’ Article 5242, V,C.S., (lives express leg>%lativa con%%DEto ,&I r~+p&iitiea of lands by the Government for the 

### purpaser %;tatStti i,n**the** prot

’l@%m of the Federal Consti6catton just qui&ed ar wet1 a.% for other putpo%e%; but the Cpurt in the case held that &ere wa%,+I@

cesmion ofjuri%ds,ction by imp& tbieta~uaqa of &;kle S&t, R.S. of t895 &a~waubetiatiaUjr~amb~ied ir Atticte

,I

1,~U. $. P. Ibis, 5Mason, 346, fe was held t&at bkervat%on in ao,esa,ioia 

### 6f ‘aoncurrelat jurisdictton’ to serve state pr,out~as, ciYi1 add srim* inal, in the faded plsca, &es ,4x&t%a,Tgb3t!ke legisle,tion @r e8ctua&e juris:dii$fitisn of th$,,V over the cede8 

### place. It -1, oper’ated’as a condlCon ofthe grant. ‘j L” A,nexamination of the statutes of other states \Nhk!li have been interpreted as placing further qualifications upon cessiahs ofjurisdiction t.haudoes our ~ststute,, as weinterpret it, su6tains our conclusian. The West virginfa statute conPide.redin Tame 

### Draw Contracting.Go., 302 U.S. 134 (%93Jf ’ j, ceded to tie g---j=

rute ~s’cbncurprnt jun?sdiction over lankyacquired by the Utited States with’ the consent of the State. The Court held that the proVision=5 to co%eugrent jurisdiction qualified the provfsian giving consent and that by v,irtue of this reservation the State retained jurisdiction to t&x over lands purchased or condemned by the &Jai&# States for navigation improvements. **A** Kansas gtatute ceded to the, United States “exc ’lusive jurisdiction” over tke ,land wi,thin the limits of Fort Leavenworth but euprssslv resar,ved the right to sesv~e civil and criminal process and “the right to tax railroad, bridge, and other corpOraEons, their fr.an&ise~s end property, on said ./Hun, Stewvt W. Hellman, Page 4,(V-12~51)

. Reservation.” La-6 af Kansas, 1875, p. 95. The Court in Fort Leavanwo,rth Ry. **V.** Lowe, 114 U.S. 525 (1’885), upheld the FmOf me State to subject the railroad propekty to taxation. In each of thesecases the State had retained the taxing power in cession6 &ff&knt fr,om those contemplated by the Texas- .etatut@.

S,UMMARY The leaf,ehold interest in a military housing project tobe constructed, mai-tained, and operated by private enterprise 0~ Carswell Air Force Base will be subject to State and locals taxation unless ths State of Texas cedes exclusive jurisdiction over the lands onwhich the h,ouses will be built to the United’ States. Yours very tsuly, PRJCE DANIEL Attorney General