Eonorable Stan 

Chail-lUin 

Ways and Means 

Texas House of 

P. 0. Box 2910 

Austin, Texas 

Schlueter 

c0Dmlitte.e 

Representatives 

78769 

Opinion No. JM-667 

Re: Assessment of additional tax 

under section 23.55 of the 

Property Tax Code, relating to 

valuation of land used for agricultural 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 of article VIII, section 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 to agricultural use "to the degree of 

intensity generally accepted in the area." As a result, the appraisal 

district denied the taxpayer's application for "open-space" land 

valuation for 1983. The use to which the land was put, &. livestock 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 in furtherance of the 

taxation policy of this section. 

(b) If a property bwner qualifies his land for 

designation for agricultural use under Section l-d 

of this article, the land is subject to the 

p..3053 
Eonorable Stan Schlueter - Page 2 (JM-667) 

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 

year. (Emphasis added). 

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 

states: 

property 

added. ) 

23.57 of 

the spec 

is appraised at its market v 

See also Tex. Const. art. VIII. S 

the Tax Code govern the appraisal 

ial valuation of “open-space” land. 

__.___ ____ =___ ---- _, this chapter. all taxable 

falue as of January 1.” (Emphasis 

1. Sections 23.51 through 

methods and procedures for 

.Section 23.51 of the Tax 

Code provides the following in pertinent part: 

In this subchapter: 

(1) ‘Qualified open-space land’ means land 

that is currently devoted principally to agricultural use to the degree of intensity generally 

accepted in the area and that has been devoted 

principally to agricultural use for five of the 

preceding seven years or laud that is used 

principally as an ecological laboratory by 

a public -or private college or university. 

Qualified open-space laud includes all appurtenances to the land. For the purposes of this 

subdivision, appurtenances to the land means 

private roads, dams, reservoirs, water wells, 

canals, ditches, terraces, and other reshaping8 of 

the -soil, fences, and riparian water rights. 

(Emphasis added). 

And finally, section 23.55 of the Tax Code provides that a tax 

“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 additional tax is imposed on the laud equal to the 

difference between the taxes imposed on the land 

for each of the five years preceding the year in 

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. 

p. 3054 
Honorable Stan Schlueter - Page 3 (34-667) 

(b) A tax lien attaches to the land on the 

date the change of use occurs to secure payment of 

the additional tax and interest imposed by this 

section 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. 

(d) If the change of use applies to only part 

of a parcel that has been appraised as provided by 

this subchapter, the additional tax applies only 

to that part of the parcel and equals the 

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 the 

appraisal of timber land], the sanctions provided 

by Subsection (a) of this section do not apply. 

(h) Additional taxes, if any, for a year in 

which land was designated for agricultural use as 

provided by Subchapter C of this chapter [section 

23.41 of the Tax Code] (or Article VIII, Section 

l-d, of the constitution) are determined as 

provided by that subchapter, and the additional 

taxes imposed by this section do not apply for 

that year. 

P. 3055 
Honorable Stan Schlueter - Page 4 (J'M-667) 

(I) The use of laud does not change for purposes of Subsection (a) of this section solely 

because the owoer of the laud claims it as part of 

his residence homestead for purposes of Section 

11.13 of this code. (Emphasis added). 

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 

the following two reasons, our answer is "no." 

Courts generally will confer great weight to an agency's fnterpretatiou of a statute, unless it is obviously contrary to the 

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 consistently 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 the 

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 is 

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 the law in 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 as 

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. 

p. 3056 
Eouorable Stan Schlueter - Page 5 (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 the following 

in pertinent part: 

In this subchapter: 

. . . . 

(2) 'Agricultural use' includes but is not 

limited to the following activities: cultivating 

the soil, producing crops for human food, animal 

feed,. or planting seed or for the production of 

fibers; floriculture, viticulture, and horticulture; 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. (Emphasis added). 

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 land 

that has previously qualified for "open-space" 

laud specfal valuation pursuant to article VIII, 

section l-d-l. of 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 to agricultural use to the degree of 

intensity generally accepted in 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 

p. 3057 
Honorable Stan Schlueter - Page 6 UM-667) 

JUDGE ZOLLIE STEAIUEP 

Special Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Jim Moellinger 

Assistant Attorney General 

p. 3058