Eonorable Stan Chail-lUin WaysandMeans Texas Houseof P. 0. Box2910 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 DearRepresentative Schlueter:
You inform us that, between 1980 and 1983, a taxpayer's real property wasqualified andappraised as "open-space" land pursuant to the provisions of article VIII, section l-d-l, of the Texas Coaititution andsubchapter Dof chapter 23of theTaxCode. In 1983, the appraisal district adopted a different standard regarding the numberof acres that mustbedevoted to agricultural use in order that qualifying land be devoted to agricultural use "to the degree of intensity generally accepted in the area." Asaresult, the appraisal district denied the taxpayer's application for "open-space" land valuation for 1983. Theuse to which the land was put, &. livestock production, has reqmined the same. Youask whether a rollback tax maybe imposed under section23.55 of the TaxCodeIn aninstance in which the land fails to qualify for special valuation but is still in agricultural use. OuranswerIs "noW

. Article VIII, section l-d-l, of theTexas 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 farmor ranch purposes onthe basis of its productive capacity andmayprovide bygeneral law for taxation of open-space land devoted to timber production on the basis Ofits 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 aproperty bwnerqualifies his land for designation for agricultural use under Section l-d of this article, the land is subject to the

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provisions of Section l-d for the year in which the designation Is effective andis 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 23of the TaxCode. Section23.01(a) of the TaxCode states: property added.) 23.57of the spec is appraised at its marketv

See also Tex. Const. art. VIII. S the TaxCodegovern the appraisal ial valuation of “open-space” land.

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

falue as of January 1.” (Emphasis

1. Sections 23.51 through methods andprocedures for .Section 23.51 of the Tax Codeprovides 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
apublic -or private college or university. Qualified open-space laud includes all appurtenancesto the land. For the purposes of this subdivision, appurtenances to the land means private roads, dams, reservoirs, water wells, canals, ditches, terraces, andother 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 achange of use in the land that hadpreviously received the special valuation:

123.55. Changeof Useof Land (a) If the use of land that hasbeen 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 havebeen imposed hadthe 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 onwhich the differences wouldhavebecome due.

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(b) A tax lien attaches to the land on the date the change of use occurs to secure paymentof 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) Theadditional tax imposed bythis section dqes not apply to a year for which the tax has already been imposed. (d) If the change ofuse applies to only part of aparcel that hasbeen appraised asprovided 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 andthe taxes that would have been imposed had that part been taxed on the basis of marketvalue. (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. Thetaxes andinterest are dueandbecome delinquent and incur penalties and interest as provided by law for advalorem taxes imposed by the taxing unit if not paid before February 1of theyear after theyear Inwhich the change of use occurs.
(f) The sanctions provided by Subsection (a) of this section donot apply if the change of use occurs as aresult of asale for right-of-way ora condemnation. (g) If the use of the land changes to a use that qualifies under Subchapter Eof this chapter Isection 23.71 of the Tax Code governing the appraisal of timber land], the sanctions provided bySubsection (a) of this section donot apply. (h) Additional taxes, if any, for a year in which land wasdesignated for agricultural use as provided by Subchapter Cof 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.

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(I) Theuse 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).
Youwish to knowwhether the section 23.55 rollback tax is imposed in aninstance in which there has been nochange in use of the land, but the land fails to qualify under section 23.51 of the Tax Code. For the following tworeasons, our answer is "no."
Courts generally will confer great weight to anagency's fnterpretatiou of a statute, unless it is obviously contrary to the statute's clear andunambiguousmeaning. Teacher Retirement Systemv. Duckworth, 260S.W.Zd 632 (Tex. Civ. App. - Fort Worth 1953), aff'd. 264S.W.Zd98 (Tex. 1954); Pacific Employers Itisurance Co. v. Brz, 242S.W.Zd 185 (Tex. 1951); Dallas Title andGuaranty Co. v. Board of Insurance Commissioners, 224S.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 TaxBoard has consistently interpreted section 23.55 of the TaxCodeto require anactive change in use - "some affirmative act bythe 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. Theboard's construction of section 23.55 of the TexCode 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 anyrollback tax If land merely fails to qualify but is still in "agricultural use." Weare required to interpret section 23.55 of the TaxCodein away.which

expresses only thewill 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 andvi11 clearly sustain.
Railroad Commission of Texas v. Miller, 434 S.W.Zd 670, 672 (Tex. 1968).
Thelanguage [ofthe statute] appears to us tobe

plain and unambiguous and itsmeaning clear and obvious. We can only enforce the statute as written andhave noright to create or to find an ambiguity wherenone exists in order to call into play generally recognized rules which are used as aids to the construction of ambiguous statutes.

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Col-Tex Refining Co. v. Railroad Commission of Texas, 240S.W.2d 747, 750 (Tex. 1951). Section 23.51 of theTaxCodeprovides 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 humanfood, 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, weconclude that the rollback tax maynot 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 Dof 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** maybe imposed **under** section 23.55 of the Tax Code. Thesection 23.55 rollback tax is imposed only whenthere has been a change in use of the land. Very truly yours, 

# J

JIM MATTOX Attorney General of Texas
JACKRIGETOWER First Assistant Attorney General
MARYXELLER Executive Assistant Attorney General

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JUDGE ZOLLIESTEAIUEP Special Assistant Attorney General

RICKGILPIN Chairman. Opinion Committee Prepared byJimMoellinger Assistant Attorney General

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