DAN MORALES

ATTORNEY GENERA,. 

### QBffice of the flttocnep .&ate of lltexae February 28, 1997 

### &neral

The Honorable Warren Chisum Chair, Environmental Committee Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910

Dear Representative Chisum: Opinion No. DM-432
Re: Whether Tax Code section 11.23(c), which provides a tax exemption for the tangible property of the Nature Conservancy of Texas, Inc., is constitutional (RQ-829)

Tax Code section 11.23(c) provides a tax exemption for the Nature Conservancy of Texas, Inc. (the “‘Nature Conservancy”) in the following terms: “The Nature Conservancy of Texas, Incorporated, is entitled to an exemption from taxation of the tangible property it owns if the property is not held for gain, as long as the organization is a nonprofit corporation as defined by the Texas Non-Profit Corporation Act.” You ask whether there is any constitutional basis for this exemption and whether this exemption may be claimed or granted ifit has no constitutional basis.
Au real and tangible personal property in Texas is taxable unless exempt by statute as required or permitted by the Texas Constitution. Tex. Const. art. VIII, 5 l(b); Tax Code $ 11.01. Article VIII, section 2(a) of the Texas Constitution provides that the legislature “may, by general laws, exempt from taxation [property owned by]

. institutions of purely public charity.” A brief submitted on behalf of the Nature Conservancy contends that section 11.23(c) is authorized by article VIII, section 2(a). We do not reach the Nature Conservancy’ s assertion that it qualifies as an institution of purely public charity and that its tax exemption is therefore authorized by article VIII, 2(a) because, for the reasons explained below, we believe that section 11.23(c) of the Tax Code is not a “general law” authorized by article VIII, section 2(a) and that the statute runs afoul of another constitutional provision - article III, section 56, which prohibits the legislature from enacting local or special laws.
We believe a court would conclude that section 11.23(c) of the Tax Code is a
“special law.” The definition of the term “special law” and the distinction between a
“special law” and a “local law” are important to our analysis. The Texas Supreme Court recently defined these terms and explained the difference between them in a case involving a law applicable to a particular municipal utility diict:

While the terms “local law” and “special law” have at times been used interchangeably, a local law is one limited to a specific geographic region of the State, while a special law is limited to aThe Honorable Warren Cbisum - Page 2 (DM-432)

particular class of persons by some characteristic other than geography. See 1 GEORGE D. BRADEN,‘THECONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE

ANALYSIS 273-277 (1977). MclpI Run at Austin Mm. Util. Dist. v. Monaghan, 93 1 S.W.2d 941, 945 (Tex. 1996) (Y4aple Run”); see also Clark v. Finley, 54 SW. 343, 345-46 (Tex. 1899) (local law is one the operation of which is con&d to tixed part of territory of state); Vincenr v. Srare ex rel. g@&rrzf, 235 S.W. 1084, 1086 (Tex. Comm’n App. 1921, judgm’t adopted) (“A local act is an act applicable only to a particular part of the legislative jurisdiction. A special or private act is a statute operating only on particular persons or private concerns.“).
Section 11.23(c) provides a tax exemption for the tangible property of the Nature Conservancy alone; it does not describe a generic class that would include the property of the Nature Conservancy and any other organization like it. Section 11.23(c) is a special law in the classic, most obvious sense.t We are not aware of any case law suggesting that article VIII, section 2(a) (or any other constitutional provision) authorixes this tax exemption by special law. In sum, we believe it very likely that a court would conclude that because section 11.23(c) of the Tax Code names a specitic, private entity, the “Nature Consetvancy of Texas, Ineorporated,“s it is a special law and not a “general law” authorized by article VIII, section 2(a) of the Texas Constitution. Furthermore, we believe section 11.23(c) of the Tax Code runs afoul of article III, section 56 of the Texas Constitution, which spe&cally prohibits the legislature, “except as otherwise provided in this Constitution,” t?om enacting a local or special law authorizing the exemption of property from taxation.

The purpose of Section 56 is to “prevent the granting of special privileges and to secure uniformity of law throughout the State as far as possible.” [Miller v. El Paso Cotmry, 150 S.W.2d 1000, 1001 (Tex. 1941).] In particular, it prevents lawmakers from engaging in the “reprehensible” practice of trading votes for the advancement of personal rather than public interests. Id.

‘As Braden states,“The term ‘speciallaw’ should be.used only for a law that applies to a segment ofthe state--its people,

itsinsthtions,itseconomy-insome sense other than geographical.

An obvious example is a lawgranting

John Doea divorce.. . ora lawgranting a corporate

charter to Tom, Dick,and Hanytooperate

anemployment

service.” 1 GEORGE D. BRALEN, THE Co NSlTNllON OF THE STATE OFTEXAS: AN ANNOTA~D m COMPARA~ ANALYSIS 277 (1977).
zTax Code 5 11.23(c),

p. 2410The Honorable Warren Chisum - Page 3 (DM-432)

McqoleRun, 931 S.W.2d at 945. We have been able to locate very few cases addressing statutes singling out a particular, named private person or entity for a special benefit or special treatment. The cases we have found, however, conclude that such statutes are unconstitutional. See, e.g., Sfate Highway Dep ’ f v. Go&am, 162 S.W.2d 934, 937 (Tex. 1942) (holding that statute waiving immunity to suit to benefit particular, named individual violated equal protection guarantee, Tex. Const. art. I, 5 3, and was special law in violation of art. III, $56); City of &an Antonio v. YoungMen ’s Chrisfim Ass ’n, 285 S.W. 844 (Tex. Civ. App.--San Antonio 1926, writ refd) (striking down special tax exemption for particular named groups on basis that exemption was not permitted by Tex. Const. art. VIII, $2, and that violated art. III, $56). Lie the statutory tax exemption for the Young Men’ s Christian Association and the Young Women’ s Christian Association3 that the court struck down in Young Men ’s Christian Association, section 11.23(c) violates the prohibition in article III, section 56 because it “applies to an individual of a class and not to all of a class,” 285 S.W. at 846. For this reason, we believe it is quite likely that a court would conclude that section 11.23(c) is a special law in violation of article III, section 56. Cf: id. at 847.*
The Nature Conservancy contends that section 11.23(c) of the Tax Code is not a local or special law because it has statewide effect relating to matters of general interest, relying upon Lower Colorado River Authority v. McGraw, 83 S.W.Zd 629 (Tex. 1935). In that case, the Texas Supreme Court concluded that a provision exempting bonds of the Lower Colorado River Authority (“LCRA”) from taxation was not a local or special law because although the legislation applied to a specific geographic area, the legislation operated upon a subject in which the state at large was interested. The Nature Conservancy also relies upon Stephensen v. Wood, 34 S.W.2d 246 (Tex. 1931), a case involving a challenge to fishing restrictions in certain coastal waters, for the proposition that natural resource preservation has statewide significance.
In our opinion, Lower Colorado River Authority is inapposite because the court analyzed the tax exemption as a local rather than a special law:

mt is settled that a statute is not local or special, within the meaning of this constitutional provision, even though its enforcement is confined to a restricted area, if persons or things throughout the state are at&ted thereby, or if it operates upon a subject that the people at large are interested in. [Stephensen v. Wbod, 34 S.W.2d 246 (Tex. 1931).] An examination of this act convinces us that it operates upon a subject that the state at large is interested in. In tict, the

3Hereinafter

cokctivelyreferred

toasthe“YMCA” *Becaose WC believe thatTaxcode section11.23(c) violates article III,section

56, we do not consider whether itviolates slateor federal

constitution

equalprotection

guarantees.

p. 2411The Honorable Warren Chisum - Page 4 (DM-432)

business and operation of this district is not restricted to a particular area. Lower Colorado River Auth., 83 S.W.2d at 636.J Furthermore, in Maple Run, 931 S.W.2d 941, the supreme court cast doubt on the legal test employed in Lower Colorado River Auihori& Stephensen v. Wood and related local law cases: “[O]ur later cases have clarified that the ultimate question under Article III, Section 56 is whether there is a reasonable basis for the Legislature’ s classification.

. The significance of the subject matter and the number of persons aEected by the legislation are mere factors, albeit important ones, in determining reasonableness.” Id. at 947 (citations omitted). It may be the case that this reasonableness test is also the proper test for determining whether a statute describing a class according to non-geographic criteria is a special law in violation of article III, section 56. Here, where the legislature has named the Nature Conservancy specifically and has failed even to attempt to describe the Nature Conservancy as a member of a class, there is no classification to consider. Were a court to determine that it is appropriate to apply this reasonableness test to a class that by its terms is forever limited to one, however, we believe it would be compelled to conclude that it is unreasonable as a matter of law to accord a tax exemption to a specific, private entity by name and not to extend the tax exemption to other entities that share the same characteristics.
The Nature Consetvancy contends that Young Men ’s Christian Association is distinguishable because the YMCA (i) did not qualii for a tax exemption as a religious institution or public charity and (ii) did not conserve natural resources or perform a purpose of statewide significance, and (iii) because that case preceded the Texas Supreme Court’ s decision in Lower Colorado River Aufhortty. The first argument suggests that a special-law tax exemption is permissible if the entity at issue otherwise qualiies for a tax exemption under article VIII, section 2(a). In fact, that is the premise of the Nature Conservancy’ s initial “public charity” argument. This is a novel proposition, and one for which the Nature Conservancy provides no authority. Article VIII, section 2(a) is not self-executing. Furthermore, it provides for the enactment of general-law tax exemptions, not tax exemptions naming specific entities.
The assertion that the Nature Conservancy, unlike the YMCA, performs a purpose of statewide significance, natural resources conservation, is an argument one would make sInterestingly,

after addreskgarticle

III, section 56,thecourt

goesonto suggest

hat even if the taxexemption

were a special lawunder article III, section 56,thelegislature

would stillbe authorized

to provide suchan exemption

forbonds ofa state agency orpolitical

subdivision,

implying thatarticle

III, section 56 wasultimately

irrelevaat o thetaxexemption at issue: ‘[Nlohvitlstanding a amtihltional prohibition

against exempting allproperty

horn taxation, except such asis named

intheConstitution.

still the LegisIatum

can exempt

fromtaxation

atate bondsand bondsof stateagenciesissuedin their govemmentaI

capacities, because such bonds areinstrumentalities

ofgovernment,

and not property within the meaning

oftheabove-mentioned

wa&ntioasI prehibition.” Lower Colorado River Aufh., 83 S.W.2ti at636.

p. 2412The Honorable WarrenChisum - Page 5 (DM-432)

to defend a local law. Again section 11.23(c) of the Tax Code is a special law and, furthermore, the approach taken in Lower Colorado River Authority, Stephensen v. Wood and other older local law cases has been called into question by Muple Run. Moreover, this argument fails to address the primary defect of section 11.23(c) of the Tax Code -- the fact that it singles out a private entity by name for special treatment. Finally, we disagree that Lower Colorado River Authority overrules or undermines Young Men ’s Christian Association. It certainly does not do so expressly, nor, in our view, does it do so implicitly. The cases address different issues; the former case analyzes the LCRA tax exemption as a local law, whereas the latter case analyzes the YMCA tax exemption, which singled out two specific, private entities by name for special treatment, as a special law.
In addition to prohibiting local or special laws exempting property t?om taxation, article III, section 56 also provides that “nothing herein contained shall be construed to prohibit the Legislature from passing special laws for the preservation of the game and fish of this State in certain localities.” The Nature Conservancy suggests that section 11.23(c) is a permissible local or special law because it supports the preservation of game and fish. The game and fish language in article III, section 56 appears to contemplate game and fish laws geared to a specific geographic area. See, e.g., Stephensen v. Wd, 34 S.W. 246. Section 11.23(c) of the Tax Code is a tax exemption, not a game and fish law, and is not limited to a certain geographic area.6 The Nature Consorvan cy has not provided any authority to support the contention that the game and fish language in article III, section 56 authorizes legislation granting a private conservation entity a property tax exemption on a statewide basis.
In sum, we conclude that section 11.23(c) of the Tax Code is not authorized by article VIII, section 2, or any other constitutional provision,’ and that it runs afoul of
6Again, Tax Code,

section11.23(c)

provides as follows:

“TheNatnre

Co nservaney of Texas, Jncorporated,

is entitled toanexemption

from taxation ofthetangible

property it ownsif thepropetly

is notheld forgain, aslong astheorganization

is anonprofit

corporation

asdeftted bytheTexas

Non-Profit Corporation

Act.” Althongh

theactivities

oftheNature

Conservancy

may preserve gamesndfkhsndit may holdtheexempt

property for thispotpose,

thetaxexemption

itself does notreqtdre

that theexempt property hensed topreserve

game and fish.

‘TheNature

Conservancy

does notargue that TaxCode,

suction 11.23(c) is authorized

hyarticle VlIl,section

l-f oftheTexas

Constitntion.

Became thisprovision

does notanthorize

across-the-board

tax exemptions

and, mormvor, does notappear toanthotize

thelegislatme

togrant taxexemptions

byspecial law,we donotconsider

it. SeeTex.Const.

art. WI, p l-f C[t]he1egisJatnre may bylawprovide

forthe presetvation

ofcnhmal,

historical, ornatmal history resonrcos by . granting

exemptions

orother relief from state ad valorem

taxes on approptiate

property”;

authorizing

politicalsnhdivision5

to grant exemptions

or otherreliefon appropriate property). We also note that Tax Code,section 11.23(c) wss aacted in 1%9, see Actof May 29, 1%9,61stLeg.,ch. 652, 5 1, 1%9Tex. Gen.Laws1950, 1950, whereas article VlfJ,section

l-f wasproposed

andadopted

in 1977,see S.J.R.

5, Actof May

20, 1977, 65th Leg.,1977

Tex.Gen. Laws 3354.3354.

p. 2413The Honorable Warren Chisum - Page 6 (DM-432)

article III, section 56. Given this answer we turn to your final question: “If the chief appraiser who had been granting the exemption determined there was no constitutional basis for the same, would he have grounds to cancel the exemption and request payment of all back taxes?” We decline to address this question for two reasons. First, tax exemptions are granted on an appraisal district to appraisal district basis, and the facts of the tax status of the Nature Conservancy’ s property may vary from district to district.* Furthermore, even if the facts in each appraisal district were uniform and undisputed, we doubt the utility of this office addressing this question because it appears to raise complicated legal issues of first impression that can only be definitively resolved by the judiciary.

8We note, forexample,

that se&on 11.18

oftheTaxCode

provides fora taxexemption

for“the buildings andtangible

personal property” owned bya charitable

organization.

TaxCode $11.18(a). To be eligiile fortheexemption, the entity must be organized

exclusively

to perform

religious, charitable, scientific, literary, or educational

purposes andmustengage

exclusively

in performing

one or more

of certainsptdicd functions, which include“presetig or conserving wildlife.” Id. 8 11.18(d)(10). Subsection

(j) of section 11.18provides as follows: “exemption

of an orgrmization

preserving

or consming wildliieis limited to landandimprovements and maynot exceed 1,000acresin any one county.” Suh8ection

(i) appear8

to provide

thatorganizations

preserving

or coaserving

wildlife, unliie other charitable organizations

listed in section 11.18, areeligible

fortaxexemptions

forland. Itmay

be thecase. that theNature

Conservancy

qualifies as a charitable

organization

under &on 11.18andhas applied forand received taxexemptions

onthis basis.

p. 2414The Honorable Warren Chisum - Page 7 (DM-432)

SUMMARY Section 11.23(c) of the Tax Code, which provides for a tax exemption for the tangible property of a specific, private entity by name, is not a general law authorized by article VIII, section 2 of the Texas Constitution and is a special law in violation of article III, section 56.

DAN MORALES Attorney General of Texas
JORGE VEGA First Assistant Attorney General
SARAH J. SHIRLEY Chair, Opinion Committee Prepared by Mary R. Grouter Assistant Attorney General

p. 2415