        c




                                              The Attorney        General of Texas

    JIM MATTOX
                                                           November 9, 1983
    Attorney General



    Supreme      Court Bullding             Honorable Tom Uher                     Opinion NO.JM-87
    P. 0. Box 12546                         Chairman
    Austin,    TX. 76711. 2546              Committee on Regions, Compacts and     Re:    Whether constitutional
    5121475-2501
    Telex    9101674-1367
                                               Districts                           and statutory tax exemptions,
    Telecopier     5121475-0266             Texas House of Representatives         specifically section 23.42 of
                                            Austin, Texas   78769                  the Tax Code and article VIII,
                                                                                   sections l-d, l-d-l, 19, and
    714 Jackson,    Suite 700
                                                                                   19a of the Texas Constitution,
    Dallas.   TX. 75202.4506
    2141742-6944
                                                                                   pertain to fish and other
                                                                                   forms of aquatic life

    4624 Alberta       Ave., Suite    160   Dear Representative Uher:
    El Paso. TX.       79905.2793
    9151533.3464
                                                 You ask whether constitutional and statutory ad valorem tax
                                            exemptions and special valuation provisions, specifically section
p    001 Texas.    Suite 700                23.42 of the Tax Code and article VIII, sections l-d, l-d-l, 19, and
    do”slo”.    TX. 77002-3111              19a of the Texas Constitution, pertain to fish and other forms of
    7131223.5686                            aquatic life. We conclude that they do.

    606 Broadway,        Suite 312
                                                 Section 23.42(d)(l) of the Tax Code sets forth the following
    Lubbock.     TX.    79401.3479          definition of “agriculture” for purposes of calculating the value of
    6061747-5236                            real property used for “agricultural purposes” under special valuation
                                            statutes:
    4309 N. Tenth, Suite B
    McAllen.     TX. 76501-1685
                                                      ‘Agriculture’ means the use of land to produce
    512,682.4547                                      plant or animal products, including fish or
                                                      poultry products, under natural conditions but
                                                      does not include the processing of plant or animal
    200 Main Plaza. Suite 400
                                                      products after harvesting or the production of
    San Antonio.  TX. 76205.2797
    5121225~4191
                                                      timber or forest products. (Emphasis added).

                                            Before addressing the scope of the statutory definition, we must first
    An Equal       OpportunityI             determine whether the definition of “agricultural use” set forth in
    Affirmative      Action     Employer    section 23.42, by its inclusion of “fish . . . products,” expands the
                                            definition of “agriculture” or “agricultural use” contained in the
                                            aforementioned Texas constitutional provisions. If it does, it is
                                            unconstitutional and void. See City of Amarillo V. Amarillo Lodge No.
                                            731, A.F. & A.M., 488 S.W.2d 69 (Tex. 1972); Leander Independent
                                            School District v. Cedar Park Water Supply Corporation, 479 S.W.2d 908
                                            (Tex. 1972); Dickison v. Woodmen of the World Life Insurance Society,
P
                                            280 S.W.2d 315 (Tex. Civ. App. - San Antonio 1955, writ ref’d). We
                                            conclude that section 23.42, with its inclusion of “fish . . .
                                            products” in its definition of “agriculture,” is constitutional.



                                                                        p. 366
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Ronorable Tom Uher - Page 2   (JM-87)




     Article VIII, section l-d of the Texas Constitution requires that
l~and qualifying for the agricultural use designation shall be
appraised for ad valorem tax purposes, not at market value, but on the
basis of those factors relative to agricultural use. Subsection (a)
provides that

          'lalgricultural use'    means   the   raising of
          livestock or growing of crops, fruit, flowers, and
          other products of      the soil under natural
          conditions as a business venture for profit, which
          business is the primary occupation and source of
          income of the owner. (Emphasis added).

Article VIII, section l-d-l(a) of the Texas Constitution permits the
legislature by general law to provide for ad valorem taxation of land
"devoted to farm or ranch purposes." We note, of course, that
"agricultural use" under article VIII, section l-d of the Texas
Constitution extends special valuation benefits only to those products
grown under "natural conditions." No such ljmitation restricts the
scope of article VIII, section l-d-l. Article VIII, section 19
exempts from taxation "farm products, livestock, and poultry in the
hands of the producer." Finally article VIII, section 19a exempts
from taxation "implements of husbandry that are used in the production
of farm or ranch products."

     Words in a constitution will be considered to have been used in
their natural sense, Markowsky v. Newman, 136 S.W.2d 808, 813 (Tex.
1940). and ordinary signification, Ferguson v. Wilcox, 28 S.W.2d 526,
530 (Tex. 1930), unless the context indicates the contrary. Sugg v.
Smith, 205 S.W. 363, 373 (Tex. Civ. App. - Austin 1918, writ ref'd).
Language used in constitutional provisions must be presumed to have
been carefully selected, and the words used are to be understood as
people generally understand them. Leander Independent School District
v. Cedar Park Water Supply Corporation, supra at 912; Cramer v.
Sheppard, 167 S.W.2d 147, 152 (Tex. 1942). Words and phrases such as
"agricultural," "livestock," "products of the soil," "farm or ranch
purposes," and "farm or ranch products" do not ordinarily signify or
include the production of fish or other forms of aquatic life.
However, "agriculture" has been defined as

         [t]he art or science of cultivatine. the eround.
                                                    I     _




         including harvestins of crons and rearine and
         management of live stock; husbandry; farming,
                                                     - in a
         broader sense, the science snd act of the
         production of plants and animals useful to man.
         (Emphasis added).

Cordon v. Buster, 257 S.W. 220, 221 (Tex. 1923).

     No Texas case has directly addressed this specific issue.
However, this office has construed "agriculture" to include



                                p. 367
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    Honorab1.eTom Uher - Page 3   (JM-87)




    “mariculture.” In Attorney General Opinion H-272 (1974). this office
    concluded that a statute authorizing demonstrations in “agriculture
    and home economics” was sufficiently broad to include demonstrations
    on marlculture and fisheries. The opinion not.ed that “mariculture”
    may be defined as “the cultivation of marine organisms by exploiting
    their natural environment.‘I The opinion declared that

             ‘agriculture’ was intended to mean, in addition to
             the cultivati~on and harvesting of crops (its
             narrow definition), the SCilZ”W      and art of
             production of plants and animals useful to
             man . . . including . . . mariculture.

    Attorney General Opinjon H-272 (1974).

         Clearlv our resuonsibilitv. like that of the courts. is to
    determine iegislativd intent >hd give effect to it. Knight V.
    International Harvester Credit Corp., 627 S.W.Zd 382 (Tex. 1982);
    Minton V. Frank, 545 S.W.Zd 442 (Tex. 1976). In this instance,
    however, our examination of the legislative history. pertaining
                                                         .          to the
    recent property tax enactments does not reveal legislative intent as
    to this issue. Nevertheless, we conclude that a better reading of the
    applicable constitutional provisions would include “mariculture” or,
    more properly, “fish . . . products” within the ambit of “agriculture”
    or “livestock.”

         We now must turn to an examfnation of sectjon 23.42(d)(l) of the
    Tax Code to determine the scope of the phrase “fish . . . products.”
    You specifically wish to know whether “shrimping, fishing, the
    harvesting of the sea, and the raising of acquatic plant and animal
    life in man-made and natural environments” falls within the ambit of
    section 23.42, Without attempting to enumerate an exhaustive list of
    products and activities which fall within section 23.42, we conclude
    that each of the above activities could fall within the denotation of
    “mariculture” and, therefore, of “agriculture” in its broad sense if
    such activity includes cultivation or production. To the extent that
    “mariculture” consists of cultivation or production, we believe that
    it is included within the meaning of “agriculture” for purposes of
    section 23.42. To the extent that “harvesting” consists of the mere
    capture of animal life. we believe it is not within the meaning of
    “agriculture.” For example, a person who engages in the licensed
    practice of fish farming pursuant to chapter 48, a person who engages
    in I.!.censedshellfish culture pursuant to chapter 51, or a person
    planting or cultivating crustaceans or mollusks pursuant to chapters
    76-78 of the Parks and Wildlife Code could receive the beneficial ad
    valorem tax treatment afforded by section 23.42 of the Tax Code.

         A more difficult issue concerns the application of these benefits
    to activities on the seas and the personal property, such as netting
    and boats, used in such activities. In Attorney General Opinion
    NW-451 (1982), this office discussed the scope of section 11.161 of



                                  p. 368
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Honorable Tom Uher - Page 4   (JM-67)




the Tax Code which permits an individual to exempt from ad valorem
taxation "implements of farming or ranching that he owns and uses in
the production of farm or ranch products." Therein, this office
declared that courts focus on the use to which an item is put, Hickman
V. Hickman, 234 S.W.Zd 410 (Tex. 1950), declaring "implements of
[farming and ranching]" to include "all implements used by the farmer
in conducting his farming operations, not only those that he might "se
directly, but those used by his tenants and employees." Smith v.
McBryde, 173 S.W. 234, 235 (Tex. Civ. App. - San Antonio 1915, no
writ). (Emphasis added). See also Wollner v. Darnell, 94 S.W.Zd 1225
(Tex. Civ. App. - Amarillo 1936, no writ) (tenant farmer with rental
contract upon 320 acres of land and who possessed only one tractor and
no horses; court held that, since claimant was unable to farm without
the tractor, tractor was exempt as an implement of husbandry);
Driscoll Foundation v. Nueces County, 445 S.W.Zd 1 (Tex. Civ. App. -
Beaumont 1969), writ ref'd n.r.e. per curiam, 450 S.W.Zd 320 (Tex.
1970) (land entitled to special valuation even though land was
cultivated by tenant, rather than by trustees or employees).

     Analogously, we conclude that personal property used in
mariculture activities is exempt under article   VIII, section 19a of
the Texas Constitution even in an instance in which the claimant does
not own the bed under the waters Ianwhich such activities take place
or in an instance Jonwhich the claimant undertakes such activities in
waters at the sufferance of the state if and only if such activity
irvolves production or cultivation. Mere fishing or harvesting
consisting of the capture of animal life will not qualify. See, e.g.,
Attorney General Opinion H-1090 (1977).

     Accordingly, we conclude that section 23.42 of the Tax Code and
article VIII, sections l-d, l-d-l, 19 and 19a of the Texas
Constitution, pertain to fish and other forms of aquatic life.

                              SUMMARY

             Section 23.42 of the Tax Code and article VIII,
          sections l-d, l-d-l, 19 and 19a of the Texas
          Constitution, pertain to fish and other forms of




                                         J k
          aquatic life.

                                         Very truly your


                                               L-N
                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney General


                              p.   369
Honorable Tom Uher - Page 5   (JM-87)




DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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