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 12 by 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 a portion 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 12 authorizes 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 would 
The 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 3 12.208,” 

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 of the 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 a prerequisite 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, a reinvestment zone’s designation expires five years after the date of the 

‘Section 3 12.401 authorizes the commissionen court of a county to designate as a “‘reinwstment zone ao area 

of the county that does not include area in the taxing jurisdiction of a municipality.” Tax Code 5 312.401(a). 

%e Letter Opiion No. 89-31 (1989) @rqaty of single owner may qualify as reinvestment zone under 

statdmy predecessor to Tax code ch. 3 12). 

The language io section 312.401(c) providing that “[t]he eqdration oftbe desigoation [of a reinvesment mnej 

does not affect existing agreements,” and section 3 12.204(b), which requires agreements made with the. owners of 

prop&y in a reinvesimmt mm. to contain certain identical terms, demonstrates that the legislature envisioned that a 

land witbin a reinvestnat zone could be owned by more. tb.ao one pmpaty owner and could be sobjeot to multiple tax 

abatement agreemeots. 

p. 2550 
The Honorable Michael P. Pleming - Page 3 (~~-456) 

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 a tax 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 abatement not to exceed IO-year pexiod), .208(a) (effect of modification of tax 

abatement agreement may not extend agreement beyond IO-year period); see oh id. 5 312.401(c) (expiration of 

reinvestment zone designation does not affect existing tax abatement agreements). 

‘Tex. Chst. art. V, 5 18; Canales v. Laughlin, 214 S.W.Zd 451,453 (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). 

p. 2551 
The Honorable Michael P. Fleming - Page 4 (DM-456) 

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 a tax 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 a reinvestment zone. You 

ask !irst whether property within a wunty reinvestment zone must be wntiguous and second whether 

a county is authorized to designate a portion of a building, such .as a 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 a rehrveatment zone, the language of the 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 a particular purpose.rO Similsrly, other statutes employ the term “zone” to describe some portion 

‘You ask how a tax ahatemeot agmment amendment deleting property fmn a ninveslmmt zone would affect 

the five-year periods for reinvestment mes set forth io section 3 12.401. You also ask whether a commissione.rs court 

most hold B hearing prior to changing the houndaries of a reiovestment zone. 

Tax Code 5 312.401(a), (h). 

%x OXFORD ENGLISH DICTIONARY 818 (2d cd. 1989); WEBSTER’NINTH S NEW C~LLEGUTE DICTIONARY 

1372 (1990). 

p. 2552 
The Honorable Michael P. Fleming - Page 5 (DM-456) 

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. I3 With 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 “peat management zone” 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” and be “at leastone square mile but not larger than the greater of. .“); Health & Safety Code $361.003(l) 

(deiining “appamnt m&age zone” as ‘rcchargc mm de&mtcd on maps’); L.ocd Ciov’t Code $23 1.052 (authorizing 

ummdseicmm court to establish “military zone,‘* which “may not extend more than one mile from the 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 Q 311.003(a) (providing for designation of “contiguous geographic 

ana” as reinves~t zone); V.T.C.S. art 54211&g 6.01(l) (defining “boffer zone” as “strip of 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, B region.‘“) (citing Fleming v. Farmers F’eonut Co., 128 F.2d 

404 (5th Cir. 1942)); Mai.wn v. Mutzy, 233 S.W.Zd 309,3 12 (Tex. Civ. App.--Amarillo 1950, writ ref d ox.=.) (“The 

word ‘BTC~usually ’ means mu%, space, region, or a broad part of lmd.“); BLACK’S LAW DICTIONARY 97 (5th cd. 1979) 

(d&kg area as “[a] so&cc, a territory, a region. . . A particular extent of space OI surface OT one serving B special 

purpose.“). 

“See Tax Code 5 3 11.003(a) (providing for desigoatioo of “contiguous geographic arca” as reinveslment zone% 

Gov’t Cede 0 2303.101(a)(l) (enterprise zone must “have a continuous boundary”), (2) (enterprise zone most be “at 

least one square. mile but not larger than the greater of. .“). 

“see id. 

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The 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 a reinvestment 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 Letter Opiion No. 89-31 (1989) (“It is clear that the [statutory predecesso I to chapter 3 121 does not 

require all similarly situated properties to cnjoy tax-abatement benefits available to contiguous property.“). 

‘%ee Tax Code g 3 12.204(a) (authority to enter into tax abatement agreement predicated on condition that 

property owner “make specific improvement or repairs to the property”). 

“See id. g 312.401(b) (county reinvestment ulne designation must “conhibute to the retention or expansion 

of primay employment or. . &act major investment in the zone that would be a benefit to the property to be included 

in tbe zone and would contribute to the economic development of 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) (setting foxtb lhitati~m on lax abatements), (b) (limitations applicable when there 

arc tax abatement agreements with more tfian one property owner in reinvestment zone), .205(a) (setting forth terms 

that must be included in tax abatrment agreement), .402(d) (property owned or leased by commissioners coort member 

may not be subject to tax abatement agreement). 

p. 2554 
The 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 12 must 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 

p. 2555