Eonorable Stan Schlueter                         Opinion No.    JM-667
Chail-lUin
Ways and Means c0Dmlitte.e                       Re: Assessment of additional    tax
Texas House of Representatives                   under     section   23.55   of  the
P. 0. Box 2910                                   Property    Tax Code, relating    to
Austin, Texas   78769                            valuation    of land used for agri-
                                                 cultural 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, &.                 live-
stock 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


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            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:                  __.___ ____ =___ ----     _, this chapter.      all taxable
property    is appraised at its market v    falue    as of January 1.”       (Emphasis
added. )    See also Tex. Const. art. VIII. S1.             Sections   23.51   through
23.57 of the Tax Code govern the appraisal              methods  and  procedures    for
the spec ial valuation     of “open-space”      land.    .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 agri-
            cultural     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     appur-
            tenances 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 addi-
            tional    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.




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                (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.




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                (I)  The use of laud does not change for pur-
            poses 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               fnter-
pretatiou     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 consis-
tently 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.




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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 horti-
            culture;      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.




                                                        J
                                                          Very truly    yours,



                                                          JIM        MATTOX
                                                          Attorney    General of Texas

JACK RIGETOWER
First Assistant Attorney              General

MARYXELLER
Executive Assistant              Attorney   General



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JUDGEZOLLIE STEAIUEP
Special Assistant Attorney    General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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