                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00188-CV


JACK COUNTY APPRAISAL                                                  APPELLANT
DISTRICT

                                         V.

JACK COUNTY HOSPITAL                                                       APPELLEE
DISTRICT


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           FROM THE 271ST DISTRICT COURT OF JACK COUNTY
                     TRIAL COURT NO. 13-07-097

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                            DISSENTING OPINION

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      I must dissent from the majority’s careful and thorough opinion. Based on

the plain language of the contract between Provident Leasing and appellee Jack

County Hospital District, they did not enter into a lease-purchase agreement,

which vitiates the Hospital District’s entitlement to the tax exemption.
      The majority correctly recognizes that the Hospital District bore the burden

of proof to show it was entitled to the tax exemption provided in tax code section

11.11(a) and that we must strictly construe the exemption in favor of appellant

Jack County Appraisal District. See Tex. Tax Code Ann. § 11.11(a) (West 2015).

Similarly, it appears that the majority implicitly concludes section 11.11(a) is

unambiguous, and I agree.      I further agree that we are to presume that the

entirety of section 11.11 is intended to be effective when read as a whole. But

because section 11.11(a) is unambiguous, we may not refer to “extrinsic aides

such as legislative history” in interpreting it. City of Round Rock v. Rodriguez,

399 S.W.3d 130, 137 (Tex. 2013); see Combs v. Roark Amusement & Vending,

L.P., 422 S.W.3d 632, 635 (Tex. 2013); see also Ron Beal, The Art of Statutory

Construction: Texas Style, 64 Baylor L. Rev. 339, 364 & n.157 (2012) (citing

cases and stating “[i]f the disputed statute is clear and unambiguous, extrinsic

aids and canons of construction are inappropriate, and the statute should be

given its common, everyday meaning”). Therefore, we are to look to the plain

language of the statute in divining the legislature’s intent, which is our primary

objective in statutory interpretation.   See TGS-NOPEC Geophysical Co. v.

Combs, 340 S.W.3d 432, 439 (Tex. 2011); Fresh Coat, Inc. v. K-2, Inc., 318

S.W.3d 893, 901 (Tex. 2010).        This plain-language approach does allow,

however, reference to the common, ordinary meaning of any undefined, statutory

term. See TGS-NOPEC, 340 S.W.3d at 439; Beal, supra, at 366. To the extent

the majority relies on legislative history or other extratextual aids to interpret

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section 11.11(a) as it applies to the Hospital District’s claims, I disagree. See

generally Adele Hedges & Garrett Gibson, “Taking the Legislature at its Word”:

The Role of Legislative History in Statutory Construction in Texas, 71 The Advoc.

(Tex.) 13, 14–16 (discussing plain-language rule of statutory construction and

noting “[t]he Texas Supreme Court has clearly adopted, at least in concept, the

preeminence of the plain[-]language rule whenever possible”).

      As the majority recites, the tax exemption applies only if the Hospital

District and Provident Leasing’s contract regarding the CT scanner was “a lease-

purchase agreement providing that [the Hospital District] is entitled to compel

delivery of the legal title to the property to [the Hospital District] at the end of the

lease term.” Tex. Tax Code Ann. § 11.11(h). The contract clearly states that it is

a finance lease as defined by California law, not a lease-purchase agreement.1

California, like Texas, has adopted the Uniform Commercial Code (the UCC),

which defines a finance lease, as relevant here, as one in which (1) the lessor

does not select, manufacture, or supply the goods; (2) the lessor acquires the

goods or the right to possession and use of the goods in connection with the

lease; and (3) the lessor tells the lessee before the lease is signed the identity of

the supplier, the lessee’s rights under the lessor’s contract with the supplier, and


      1
        The contract states it is “a ‘Finance Lease’ as defined in, and for the
purposes only of Division 10 of the California Commercial Code and not
necessarily for any accounting purpose or otherwise.” Division 10 is entitled
“Personal Property Leases” and applies “to any transaction, regardless of form,
that creates a lease.” Cal. Com. Code § 10102.

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the lessee’s right to contact the supplier for a description of any such rights. See

Cal. Com. Code § 10103(a)(7); see also Arriaga v. CitiCapital Commercial Corp.,

85 Cal. Rptr. 3d 143, 150–51 (Cal. Ct. App. 2008) (recognizing California

adopted the UCC and discussing definition of finance lease in section 10103);

accord Tex. Bus. & Com. Code Ann. § 2A.103(a)(7) (West 2009) (defining

finance lease as in the UCC). See generally Lease, Black’s Law Dictionary (10th

ed. 2014) (defining finance lease by reference to the UCC definition and noting

such leases “strongly resemble security agreements”). The contract between

Provident Leasing and the Hospital District not only states it is a finance lease

but also clearly falls within the statutory definition of a finance lease by its terms.

      In contrast, a lease-purchase agreement is commonly defined as “[a] rent-

to-own purchase plan under which the buyer takes possession of the goods with

the first payment and takes ownership with the final payment.” Lease-Purchase

Agreement, Black’s Law Dictionary. This common and ordinary definition of a

lease-purchase agreement informs the meaning of the statutory tax exemption as

applied to the Hospital District. In a true lease-purchase agreement, the lease

payments are applied to the purchase price; therefore, the lessee would have the

absolute right to compel transfer of title at the end of the lease term. Here,

nothing in the contract allows any lease payments made by the Hospital District

to be credited toward any possible, future purchase of the CT scanner.

Additionally, the Hospital District had no right to compel transfer of the CT

scanner’s title at the end of the lease period as required for the exemption. The

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Hospital District could merely enter into negotiations for a purchase price if it

determined at its discretion that it wanted to purchase the CT scanner at the end

of the lease term:    “Lessee may purchase, or renew this Lease for [the CT

scanner], provided Lessee is not in default and upon proper written notification to

Lessor, as of the expiration of the Term . . . . [T]he purchase price shall be the

‘Fair Market Value’ of the Equipment.” [Emphasis added.] The Hospital District

also had the options to extend the lease term or to allow the lease to end and

return the CT scanner to Provident Leasing at the end of the lease term. The

Hospital District’s contractual options to enter into purchase negotiations to pay

the agreed fair market value for the CT scanner, to renew the lease, or to

terminate the lease and return the CT scanner to Provident Leasing do not

equate to a right to compel transfer of title from Provident Leasing at the end of

the lease term.      Therefore, the contract between the Hospital District and

Provident Leasing was a finance lease, not a lease-purchase agreement, and the

Hospital District could not claim a tax exemption under section 11.11(a) because

its contract did not confer upon it the requisite ownership interest in the CT

scanner.

      Further, a lease-purchase agreement requiring no additional payment, or

only a nominal payment, at the end of the lease term in order for ownership to

transfer to the lessee grants the lessee an ownership interest or equity in the

equipment; thus, it creates a security interest. Cal. Com. Code § 1203; accord

Tex. Bus. & Com. Code Ann. § 1.203 (West 2009). By using the term “lease-

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purchase agreement” and mandating that the political subdivision must have the

right to compel transfer of title at the end of the lease term, the legislature clearly

showed that it was referring to a lease-purchase agreement creating a security

interest, which is identified by the lessee’s option to buy the equipment at the end

of the lease term “for no additional consideration or for nominal additional

consideration.” Tex. Bus. & Com. Code Ann. § 1.203(b)(4); see also id. § 9.103

(West 2011) (defining “purchase-money security interest”). Fair market value of

the equipment at the time of the option is not nominal consideration.            Id. §

1.203(d)(2).    Therefore, the tax exemption applies if the lease-purchase

agreement created a security interest, which the lease between the Hospital

District and Provident Leasing did not. Indeed, the terms of the finance lease

between the Hospital District and Provident Leasing had all the hallmarks of a

finance lease and did not create a security interest, which falls outside of the

terms of the tax exemption as stated by the legislature. See id. § 1.203.

      I further disagree with the majority’s conclusion that this interpretation of

the right to compel title would render the remainder of the tax-exemption statute

meaningless. The final sentence of section 11.11(h) states that the property

ceases to qualify for tax-exempt status as property owned by the political

subdivision under a lease-purchase agreement if the political subdivision does

not “exercise its right to acquire legal title to the property.” Tex. Tax Code Ann. §

11.11(h). The majority states that if title must pass automatically at the end of

the lease term to qualify as a lease-purchase agreement, there would be no right

                                          6
for the Hospital District to exercise to acquire legal title to the CT scanner: “If title

passed automatically, there would be no right to exercise by the thirtieth day after

the termination of the lease.” Even if the right of ownership, or equitable title,

automatically passes to a lessee at the end of a lease term, the lessee would be

required to request, or compel, the delivery of legal title under the terms of its

lease-purchase agreement with the lessor. See Neeley v. Intercity Mgmt. Corp.,

623 S.W.2d 942, 950–51 (Tex. App.—Houston [1st Dist.] 1981, no writ) (defining

“equitable title” as an enforceable right to have legal title transferred to holder of

equity).   Indeed, in that instance, the lessee in a lease-purchase agreement

would have the right to compel delivery of legal title as contemplated by section

11.11(h) because the lessee gained equitable title at the end of the lease term by

virtue of its compliance with the terms of the lease-purchase agreement. If the

lessee does not do so for whatever reason, the property’s tax-exempt status

would end thirty days after the expiration of the lease term. Thus, these two

sentences of section 11.11(h) may be read together without rendering one

meaningless. I respectfully believe that the majority’s construction of the finance

lease between the Hospital District and Provident Leasing as conferring on the

Hospital District the right to compel delivery of title at the end of the lease term

under section 11.11(h) changes the common meaning of the term “compel” and

would have the effect of equating the right to compel to the Hospital District’s

exercise of its contractual option to attempt to negotiate a fair-market-value

purchase price. Compare Compel, Black’s Law Dictionary (defining compel as

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“[t]o cause or bring about by force, . . . or overwhelming pressure” or “to

convince . . . that there is only one possible resolution”), with Negotiate, Black’s

Law Dictionary (defining negotiate as “[t]o communicate with another party for the

purpose of reaching an understanding”).

      Strictly construing the tax exemption in light of the contract between

Provident Leasing and the Hospital District, I conclude that the Hospital District

failed to carry its burden to show it was entitled to the exemption because its

contract with Provident Leasing by its terms was not a lease-purchase

agreement as contemplated by section 11.11(h). Thus, I would hold that the trial

court’s summary judgment on that basis was improper and would address

whether the Hospital District’s remaining grounds for summary judgment

provided a legal basis upon which to uphold the trial court’s summary-judgment

order and, if not, whether the Appraisal District established its right to summary

judgment. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253

S.W.3d 184, 192 (Tex. 2008); Comm’rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77,

81 (Tex. 1997). Because the majority does not, I respectfully dissent.



                                                   /s/ Lee Gabriel
                                                   LEE GABRIEL
                                                   JUSTICE

DELIVERED: January 14, 2016




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