DAN MORALES

All-ortNEY CENERAL 

### QBffice of toe Rlttornep @enerat &t&e of ;PCexa$ November 17,1997
The Honorable Michael P. Fleming Harris County Attorney 1001 Preston, Suite 634 Houston, Texas 77002-1891 Opinion No. DM-456 Re: Whether a county may amend a tax abatement agreement entered into pursuant to Tax Code chapter 3 12by deleting land from an existing reinvestment zone and related questions (RQ-938)
Dear Mr. Fleming: You ask about the authority of a county to amend a tax abatement agreement entered into by the county pursuant to Tax Code chapter 312. First, you ask whether a county is authorized to amend a tax abatement agreement by deleting land from au existing reinvestment zone. You also ask whether property within a county reinvestment zone must be contiguous and whether a county may designate only aportion of a building, such as a floor, as a reinvestment zone. Fiiy, you ask about the criteria for tax abatement agreements. We conclude that a county is not authorized to amend a tax abatement agreement by deleting land from an existing reinvestment zone. We also con&de that a county reinvestment zone must be contiguous and may not consist of only a portion of a building. Lastly, we conclude that the legislature intended to leave the substance of criteria for tax abatement agreements to the discretion of each county commissioners court, subject to very general constraints and certain specific limitations imposed by chapter 312. In 1981, the voters rat&d article VIII, section l-g of the Texas Constitution, subsection (a) of which permits the legislature to enact general law authorizing cities and other taxing tits “to grant exemptions or other relief tiom ad valorem taxes on property located in a reinvestment zone for the purpose of encouraging development or redevelopment and improvement of the property.” The legislatnm. enacted the Property Redevelopment and Tax Abatement Act, now codified as Tax Code chapter 312, in anticipation of this constitutional amendment. Subchapter C of chapter 3 12authorizes a commissioners court of a county to enter into a tax abatement agreement with the owner of taxable real property located in a reinvestment zone only if the county commissioners court has designated the reinvestment zone according to certain statutory procedures. See Tax Code 5 312.402(a). In order to be eligible to designate a reinvestment zone, a county must first establish guidelines and criteria governing tax abatement agreements. See id. § 312.401(a); see also id. 5 312.002(a); A commissioners court may not designate an area as a reinvestment zone until it has held a public hearing on the designation and finds that the designation “would contribute to the retention or expansion of primary employment or would attract major investment in the zone that would be a benefit to the property to be included in the zone and wouldThe Honorable Michael P. Fleming - Page 2 (~~-456)

contribute to the economic development of the county.” Id. 9 312.401(b).’ The designation of a reinvestment zone expires after five years and may be renewed “for periods not to exceed five years.” Id. $312.401(c). The expiration of the designation of a reinvestment zone does not atfect existing tax abatement agreements. Id. A reinvestment zone designated under Government Code chapter 2303, the Texas Enterprise Zone Act, constitutes a reinvestment zone for purposes of subchapter C, and a county is not required to adhere to the subchapter C statutory procedures in order to enter into tax abatement agreements with property owners within the zone. Id. $3 12.4011. Once a county has designated a reinvestment zone, the commissioners court of the county is authorized to execute tax abatement agreements with owners of taxable real property within the zone. Id. $9 312.401, .402(a). The execution, duration and other terms of a county tax abatement agreement are governed by sections 312.204,312.205, and 312.211, which govern municipal tax abatement agreements. Id. Similarly, a county tax abatement agreement “may be modified or temrinated in the same manner and subject to the same limitations as provided by [slection 312.208,” id. § 312.402(e), the provision goveming the modification and termination of municipal tax abatement agreements. A wunty tax abatement agreement may not exceed a period of ton years, id. 9 312.204(a), and may not be modified to extend beyond that ten-year period, id. 8 312.208(a). Again, the expiration of the designation ofthe reinvestment zone does not affect existing agreements within the zone. Id. $ 3 12.401(c). Yourbrief suggests that a reinvestment zone and a tax abatement agreement are legally one and the same. Based on our analysis of the statutory provisions discussed above, we view the relationship between a reinvestment zone and a tax abatement agreement differently. Although property subject to a tax abatement agreement may be coextensive with a reinvestment zone: a tax abatement agreement and a reinvestment zone are legally distinct. Designation of a reinvestment zone is aprerequisite to wmmissioners court authority to.enter into a tax abatement agreement A reinvestment zone is established by commissioners court order after the court has held public hearings and made the requisite findings. In addition, a reinvestment zone may (but need not)’ enwmpass holdings of many property owners and may be subject to more than one tax abatement agmement’ Furthermore, areinvestment zone’s designation expires five years after the date of the

‘Section312.401 authorizesthecommissionen courtof acounty to designate as a “‘reinwstmentzone ao area ofthecounty

thatdoes not include areainthetaxing jurisdiction

of amunicipality.”

Tax Code 5 312.401(a). %e LetterOpiion No. 89-31 (1989) @rqaty of single owner may qualifyas reinvestment zone under statdmy predecessorto Tax code ch. 312).

The languageio section312.401(c) providingthat“[t]heeqdration oftbe desigoation [ofareinvesment 

### mnej does not affect existing agreements,”and section 312.204(b), which requiresagreements made with the.owners of prop&y in a reinvesimmt mm. to contain certainidentical terms,demonstratesthatthe legislature envisioned thata landwitbinareinvestnat zone couldbe owned by more. tb.ao one pmpaty owner andcould be sobjeot to multiple tax abatementagreemeots.
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designation and may be renewed for periods not to exceed five years.5 A tax abatement agreement, on the other hand, is a w&actual agreement negotiated between the county and a specific property
owner. A tax abatement agreement governs the taxation of specific property within a zone. A commissioners court is not required to hold hearings or make t%ulings regarding a tax abatement agreement. Finally, a tsx abatement agreement, which may not exceed a ten-year period, has a different life span than a reinvestment zone.6 With this overview of a county’s authority to enter into a chapter 312 tax abatement agreement and the relatior&ip between a reinvestment zone and atax abatement agreement, we turn to your specific questions. Fit, you ask if a county is %uthorized to amend a tax abatement agreement by deleting land from an existing reinvestment zone.” For the following reasons, we conclude that a wunty is not authorized to do so. First, we find no authority for a county to modify a reinvestment zone. A county has only those powers conferred by the Texas Constitution and statutes, either expressly or by necessary implication.’ Subchapter C w&ins no provision expressly authorizing a county to modify a reinvestment zone once the zone has been designated and we do not believe such authority can be implied. The authority to modify a reinvestment zone is not neoessary to the implementation of subchapter C. Furthermore, the Tax Increment Financing Act, which was also enacted by the legislature in 1981 in anticipation of article VIII, section l-g of the Texas Constitution, w&ins a provision expressly authorizing a city to reduce or enlarge tbe boundaries of an existing reinvestment zone. See Tax Code 5 311.007; see also id. $ 311.017 (providing for early termination of reinvestment zone), In addition, the Texas Enterprise Zone Act, a similar economic-development statute now codified in chapter 2303 of the Government Code, permits a governing body that nominated an enterprise zone to amend the boundary of the enterprise zone. See Gov’t Code 5 2303.110. We believe that ifthe legislature had intended to authorize a wmmissioners court to modify a Proper@ Redevelopment and Tax Abatement Act reinvestment zone it would have expressly provided such authority. Second, Tax Code section 312.208, which governs a wunty’s authority to modify a tax abatement agreement, does not authorize modification of an agreement by changing the reinvestment zone in which the taxable real pmperty is located. We do not believe such authority can be implied. While section 312.208 does provide that a tax abatement agreement may be modified to include

“provisions that wuld have been included in the original agreement or to delete provisions that were

%Y. Code 5 312.401(c).
%ee id. 85 312.204(a) (tax abatementnot to exceed IO-yearpexiod), .208(a) (effect of modification of tax abatement agreement may not extend agreement beyond IO-yearperiod); see oh id. 5 312.401(c) (expiration of reinvestment zone designation does not affectexisting tax abatementagreements).

‘Tex. Chst. art.V, 5 18; Canales v. Laughlin, 214 S.W.Zd451,453 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084,1085 (Tex. 1941); I’hwi.rCo~rryv.Ghnga, 753 S.W.2d716,72O(Tex.App.-Austin 1988, writdenied).

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not necessary to the original agreement,” subchapter C does not specify the boundaries of the reinvestment zone as a term of a tax abatement agreement. See Tax Code @ 312.204(a) (setting forth limitations on tsx abatements), .205(a) (setting forth terms that must be included in tax abatement agreement). Moreover, for the reasons discussed above, we do not believe that the boundaries of a reinvestment zone may be included as a wntractual term between the wunty and the property owner. Again commissioners court authority to designate an economic development zone is unilateral and contingent only on the court’s adherence to statutory requirements. Id. 4 312.401(a), (b). Commissioners court authority to enter into a tax abatement agreement presupposes that the taxable property at issue is located in a previously designated reinvestment zone. Id. 6 312402(a). We do not believe that a commissioners court order enacted after a public hearing and the making of certain findings can be modified by agreement between the county and a private party. To summarize, chapter 312, subchapter C does not authorize a county to modify a reinvestment zone after it has been designated. The authority to modify a tax abatement agreement does not include the authority to modify the reinvestment zone in which the property subject to the agreement is located. Because we conclude that a wunty is not authorized to amend atax abatement agreement by deleting land from an existing reinvestment zone, we do not address your related questions.* Next you pose two questions about the physical chsracteristics of areinvestment zone. You ask !irst whether property within awunty reinvestment zone must be wntiguous and second whether a county is authorized to designate a portion of a building, such .asa floor, as a reinvestment zone. Because these questions are related, we address them together. While subchapter C does not establish any express requirements for the physical characteristics of arehrveatment zone, the language ofthe subchapter provides guidsnce. We believe that the legislature’s use of the term “zone” in chapter 312 is significant. In addition, we note that the legislature in subchapter C has specifically referred to a reinvestment zone as “an area.‘* The Code Construction Act provides that “[w]ords and phrases shall be read in context and wnstrued according to the rules of grammar and common usage.” Gov’t Code 5 311.01 l(a). The wmmon definition of the term “zone” in the context of municipal regulation is a region or territory created for aparticular purpose.rOSimilsrly, other statutes employ the term “zone” to describe some portion

‘You askhow a taxahatemeotagmment amendmentdeletingpropertyfmn aninveslmmt zone would affect the five-yearperiodsforreinvestment mes setforthio section 312.401. You also askwhether a commissione.rscourt most hold Bhearingpriorto changing the houndaries of a reiovestment zone. Tax Code 5 312.401(a), (h). %x OXFORD

ENGLISHDICTIONARY 818 (2d cd. 1989); WEBSTER’S NINTH NEWC~LLEGUTE

DICTIONARY 1372 (1990).

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of the earth’s surthce” The term “ka” is also wmmonly understood to refer to a single parcel of land.‘* With these definitions in mind, we turn to your questions. First, we conclude that the term
“zone” itself and the use of the phrase %I area” to describe a reinvestment zone indicate that the legislature intended a reinvestment zone to embrace a single, wntignous whole and that it did not intend a reinvestment zone to include nonwntiguous territory. The requirement that a reinvestment zone be wntiguous is wnsistent with other economic-development statutes, which expressly provide that analogous zones must be wntiguous. I3With respect to your second question, because the terms
“‘zone”and “srea” refer to territory, a parcel of land, or a portion of the earth’s surface, we conclude that no part of a building may be included in a reinvestment zone unless the zone includes the land on which the building is located. A reinvestment zone may not consist of only a floor of a multistory building. The conclusion that a reinvestment zone must consist of a portion of land is also consistent with the express provisions in other economic-development statutes.14 The foregoing wnstruction of chapter 312 should not lit the authority of a county to designate reinvestment zones and enter into tax abatement agreements. Nothing in chapter 312 precludes the county from designating a wntiguons reinvestment zone and then entering into tax abatement agreements with owners of taxable real property affecting only some property within the zone, such as noncontiguous property owned by a single taxpayer or a floor of a multi-story

“See, eg., Agric.Code $5 74.002 (defining “peatmanagementzone” as ‘geographical mne”), .102 (desmiii an %radieation zone” as “googmphic area”);Oov’t Code.5 2303.101(a) (enterprise zone must “have a continuous boot&y” andbe “atleastone squaremile butnot largerthanthegreaterof. .“);Health & Safety Code $361.003(l) (deiining “appamnt

m&age zone” as ‘rcchargcmm de&mtcd on maps’); L.ocd Ciov’tCode $23 1.052 (authorizing ummdseicmm court to establish “militaryzone,‘*which “may not extend more than one mile fromthe boundary line of the military establishm.%t”); Nat. Res. Code 8 33.004 (defining “coastal zone” as “the portion of the coastal area located within [certain]bowlaries”); Tax Code Q311.003(a) (providing for designation of “contiguous geographic ana” as reinves~t zone); V.T.C.S. art 54211&g6.01(l) (defining “bofferzone” as “stripof land”).

“See, e.g., Ahvood v. Humble Oil & Refining Co., 338 F.2d 502,506 (5th Cir. 1964). cert. denied, 381 U.S. 926 (1965) (““Ihe word area means a swface, a territory, Bregion. ‘“) (citingFleming v. Farmers F’eonut Co., 128 F.2d 404 (5th Cir. 1942));Mai.wnv.Mutzy, 233 S.W.Zd309,3 12 (Tex. Civ. App.--Amarillo 1950, writref d ox.=.) (“The word ‘BTC~’

usually meansmu%,

space,region, orabroadpartof lmd.“); BLACK’S LAW DICTIONARY

97 (5th cd. 1979) (d&kg areaas “[a]so&cc, a territory,a region. . . A particularextent of space OIsurfaceOT one serving Bspecial purpose.“). “See TaxCode 5311.003(a)(providingfordesigoatioo of“contiguousgeographicarca” as reinveslmentzone% Gov’t Cede 0 2303.101(a)(l) (enterprisezone must “have a continuous boundary”), (2) (enterprisezone most be “at leastone square.

mile butnot largerthan the greaterof. .“). “see id.

p. 2553The Honorable Michael P. Fleming - Page 6 (DM-456)

building. Is We also note that chapter 312 does not limit a wunty to designating only one reinvestment zone in the county. Finally, you ask, ‘What criteria should be used when considering the granting of a tax abatement in a reinvestment zone.” Subchapter C requires the goveming body of the county, the wmmissionets court, to establish “guidelines and criteria governing tax abatement agreements” prior to designating areinvestment zone. Tax Code $5 312.002(a), .401(a). ‘The guidelines must provide for the availability of tax abatement for both new facilities and structures and for the expansion or modernization of existing facilities and structures.” Id. 9 3 12.002(a). Subchapter C is otherwise silent regarding the critena governing tax abatement agreements. Given this silence and the fact the legislature has expressly directed commissioners courts to establish guidelines and criteria goveming tax abatement agreements, it appears that the legislature intended to leave the substance of such criteria to the discretion of each commissioners court. We believe subchapter C imposes only two very general limitations on this discretion; first, we believe that the wunty is authorized to enter into a tax abatement agreement with an owner of taxable real property only if the property owner agrees to make improvements to the p’~perty’~ and, second, we believe that improvements that form the basis of a tax abatement agreement must be Consistent with the purpose of the reinvestment zone designation.” In addition, the criteria must comport with the few express limitations and requirements for a tax abatement agreement set forth by subchapter Cl8

“See LetterOpiion No. 89-31 (1989) (“Itis clear thatthe [statutorypredecessoI to chapter3121does not requireall similarly situatedpropertiesto cnjoy tax-abatementbenefits available to contiguous property.“).

‘%eeTax Code g 312.204(a) (authority to enter into tax abatementagreementpredicated on condition that propertyowner “makespecific improvement or repairsto theproperty”).

“See id. g 312.401(b) (county reinvestmentulne designation must “conhibute to the retention or expansion ofprimay employmentor. . &act majorinvestmentin thezone thatwould be abenefit to thepropertyto be included in tbezone andwould contributeto the economic developmentof the county”); see also Tex. Coast. art.VIII, 5 I-g(a) (authorizing tax relief “for the purpose of encoomging development or redevelopment and improvement of the property”). %ee, e.g., id. $8 312.204(a) (settingfoxtblhitati~m onlaxabatements),

(b) (limitationsapplicablewhen there arctax abatementagreementswith more tfianone propertyowner in reinvestmentzone), .205(a) (setting forth terms thatmustbe includedin taxabatrmentagreement),.402(d) (propertyowned orleasedby commissioners coort member may not be subjectto tax abatementagreement).

p. 2554The Honorable Michael P. Fleming - Page 7 @M-456)

SUMMARY A wunty is not authorized to amend a Tax Code chapter 312 tsx abatement agreement by deleting land &om an existing reinvestment zone. A wunty reinvestment zone under cha@er 3 12must be contiguous and may not consist of only a Portion of a building. The legislature intended to leave the substance of criteria for tax abatement agreements to the discretion of each county wnnnissioners court, subject to very general constraints and certain specific limitations imposed by chapter 3 12.

DAN MORALES Attorney General of Texas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY chair, opiion committee Prepared by Mary R. Grouter Assistant Attorney General

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