                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-11-00421-CV

              TEXAS STUDENT HOUSING AUTHORITY, APPELLANT

                                            V.

 BRAZOS COUNTY APPRAISAL DISTRICT AND APPRAISAL REVIEW BOARD FOR
           BRAZOS COUNTY APPRAISAL DISTRICT, APPELLEE

                          On Appeal from the 272nd District Court
                                   Brazos County, Texas
         Trial Court No. 06-002328-CV-272, Honorable Travis B. Bryan III, Presiding



                                      June 27, 2013

                                       OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.



      Texas Student Housing Authority (TSHA) appeals the trial court’s judgment in

favor of Brazos Central Appraisal District (BCAD) (formerly known as Brazos County

Appraisal District) and its Appraisal Review Board in which the trial court denied TSHA

tax exempt status on certain real and business personal property for the years 2005

through 2008. On appeal, TSHA contends the trial court erred by concluding that it was
not entitled to tax exemptions under any of the several asserted tax exemptions it

claimed. We will affirm in part and reverse and render in part.


                             Factual and Procedural History


The Dispute Leading up to This Appeal


      After enjoying exemption from ad valorem taxes for the years 2002 through 2004,

TSHA was denied tax exempt status beginning in the year 2005 through the year 2008.

TSHA unsuccessfully protested the denials, maintaining that it was entitled to exemption

from ad valorem taxes by way of the Texas Education Code. See TEX. EDUC. CODE

ANN. § 53.46 (West 2012). Initially, the parties disagreed over the valuation of the

property as well, though that disagreement seems to have been resolved, leaving only

the issue of the application of a tax exemption to the TSHA property.   The simplicity of

that statement, however, belies the maze of factual and legal issues involved in the

interpretation and application of various tax exemptions as they may or may not apply to

the TSHA property.


About TSHA


      TSHA is a higher education facility authority created in 1995 by the Town of

Westlake, Texas, and is duly organized and existing under the Texas Higher Education

Authority Act.   See TEX. EDUC. CODE ANN. §§ 53.02(3), 53.11 (West 2012); see

generally id. §§ 53.01–53.49 (West 2012). TSHA holds title to the property at issue,

The Cambridge at College Station, which is a residential facility in College Station,

Brazos County, Texas.      The Cambridge consists of approximately 196 ―dorm-like‖



                                            2
rooms, a cafeteria, a swimming pool, and related amenities on approximately eight

acres near the campuses of Texas A & M University (TAMU) and Blinn College.


Creation and Mission of Texas A & M University1


      The Legislature created the TAMU System and provided that the government of

the TAMU System would be vested in a nine-member board of regents which would

have a number of specific duties but would be charged generally with the following duty:


      The board shall make bylaws, rules, and regulations it deems necessary
      and proper for the government of the university system and its institutions,
      agencies, and services. The board shall regulate the course of study and
      prescribe the course of discipline necessary to enforce the faithful
      discharge of the duties of the officers, faculty, and students.

Id. § 85.21(a) (West 2002); see also id. § 85.11 (West 2002). The Texas Education

Code designates TAMU as an institution of higher education located in the city of

College Station and places it under the ―the management and control of the board of

directors of The Texas A & M University System.‖ Id. § 86.02 (West 2002). The code

then outlines TAMU’s general mission as follows:


      The leading object of the university shall be, without excluding other
      scientific and classical studies, and including military tactics, to teach such
      branches of learning as are related to agriculture and the mechanical arts,
      in such manner as the legislature may prescribe, in order to promote the
      liberal and practical education of the industrial classes in the several
      pursuits and professions in life.

Id. § 86.03 (West 2002).




      1
        Because none of the identified programs or events at issue involve Blinn
College, we concentrate our analysis on TAMU and note only that Blinn College’s
mission as a public junior college is outlined in the Texas Education Code. See id. §
130.0011 (West 2002).

                                            3
      In addition to outlining TAMU’s general mission statement, the Texas Education

Code also provides a number of other educational programs with which TAMU is

charged:


      The board shall provide for a special summer school of at least two
      months each year for the training of special students who shall be
      admitted without an entrance examination, and may make provisions for
      the summer school, purchase the necessary equipment, and generally do
      and perform all acts necessary to establish and maintain the summer
      school.

Id. § 86.14 (West 2002).      Additionally, ―[t]he board shall require the teaching of

elementary agriculture for teachers in the summer sessions.‖ Id. § 86.15 (West 2002).

Further, TAMU is charged with the following educational duty:


      The Texas A & M University System shall conduct and maintain a
      firemen’s training school through the Texas Engineering Extension
      Service as a unit of the university system in the manner deemed
      expedient and advisable by the system’s board of regents. The Texas
      Engineering Extension Service shall serve as the recognized statewide
      fire and rescue training agency liaison to the National Fire Academy. In
      their capacity as the National Fire Academy liaison, the extension service
      shall distribute National Fire Academy student manuals on request to
      associations, fire departments, state agencies, and institutions of higher
      education which meet National Fire Academy qualifications.

Id. § 86.16(a) (West 2002).


      The Texas Education Code also designates a number of ―agencies and services‖

of the TAMU System: (1) the Texas Forest Service, (2) the Texas Agricultural

Experiment Station, (3) the Texas Agricultural Extension Service, (4) the Texas

Engineering Experiment Station, (5) the Texas Engineering Extension Service, and (6)

other agencies and services that may be established by law or by action of the board of

directors. See id. § 88.001 (West 2002). Within the Texas AgriLife Extension Service



                                           4
(TAES) (formerly known as Texas Cooperative Extension) operates the Texas 4-H and

Youth Development program.2


Summer Programs at TAMU


      The parties stipulated to the majority of the underlying facts.     Indeed, they

seemed to agree as to many of the details surrounding the summer programs at issue.


      Summer 2005


      The 4-H Roundup


      In the summer of 2005, TSHA provided housing to participants attending the 4-H

Roundup.    This event is organized and administered by the Texas 4-H and Youth

Development Program service of TAES, an entity which, again, is categorized as one of

the ―agencies and services‖ of the TAMU System. See id. §§ 88.001(3), 88.821. 4-H

Roundup attendees were district qualifiers who ranged in age from fifteen to nineteen

years of age. At the Roundup, attendees competed in various educational challenges

and attended various educational workshops. Scholarships were also awarded at the

Roundup. All Roundup events were held on the TAMU campus. TAES was required to

go through the application and approval process with TAMU’s Office of Student Affairs,




      2
        ―Agricultural Extension‖ and ―Agrilife Extension‖ seem to be used
interchangeably. See id. §§ 88.001(3), 88.821 (West Supp. 2012). According to the
Texas A & M AgriLife Extension website, the mission of Texas 4-H is as follows:
―Prepare youth to meet the challenges of childhood, adolescence and adulthood,
through a coordinated, long-term, progressive series of educational experiences that
enhance life skills and develop social, emotional, physical and cognitive competencies.‖
See Tex. A & M AgriLife Extension, Learn about 4-H, TEXAS 4-H AND YOUTH
DEVELOPMENT, http://texas4-h.tamu.edu/learn (last visited June 7, 2013).

                                           5
and TAES made arrangements with and paid fees to TAMU for the use of campus

facilities.


        Joint Admission Medical Program (JAMP)


        Also beginning in the summer of 2005, TSHA provided housing for those

individuals attending JAMP. JAMP was created by the state legislature to achieve the

following objectives:


        The Joint Admission Medical Program is a program administered by the
        Joint Admission Medical Program Council to:
        (1) provide services to support and encourage highly qualified,
        economically disadvantaged students pursuing a medical education;
        (2) award undergraduate and graduate scholarships and summer stipends
        to those students; and
        (3) guarantee the admission of those students to at least one participating
        medical school, subject to the conditions under Section 51.827 and under
        other provisions of this subchapter.
Id. § 51.822 (West 2012). Medical schools participating in JAMP include the University

of Texas Health Science Center at Houston, the University of Texas Southwestern

Medical Center at Dallas, the University of Texas Health Science Center at San

Antonio, the University of Texas Medical Branch at Galveston, the medical school at

Texas Tech University Health Sciences Center at Lubbock, Texas Tech University

Health Sciences Center at El Paso, Baylor College of Medicine, the college of

osteopathic medicine at the University of North Texas Health Science Center at Fort

Worth, and Texas A & M University System Health Science Center.                See id. §

51.821(4)(A)–(I) (West 2012).




                                             6
      JAMP participants are students of an institution of higher learning who have

completed at least twenty-seven credit hours as college freshmen. The participants

attend a six-week program at TAMU which includes course studies and rotations with

doctors who practice in various fields of medicine. Participants must apply to and be

accepted into the program. JAMP participants have library and parking privileges at

TAMU in addition to their courses of study. TAMU contacted TSHA and requested

TSHA’s bid for housing and board for JAMP participants. TSHA submitted a winning

bid, and TAMU issued a purchase order. TSHA submitted invoices to and was paid by

TAMU.


      Summer 2006


      Summer Athletic Camps


      Beginning in 2006, TSHA provided housing for participants in TAMU’s tennis,

volleyball, and swim camps in addition to continuing to provide housing for the 4-H

Roundup and JAMP.3 TAMU officials solicited bids from TSHA for housing the athletic

camp attendees. As with JAMP, TSHA sent invoices to TAMU directly, and TAMU paid

those invoices.    The parties stipulated that the TSHA property was used solely to

provide housing and board to the faculty and students who were attending the TAMU

summer athletics camps. Each of the TAMU summer athletics camps was conducted

directly by TAMU’s Athletic Department.


      Hockey Ministries International Hockey Camp




      3
          In 2008, TSHA also provided housing for attendees of TAMU’s golf camp.

                                           7
       Also beginning in the summer of 2006, TSHA began housing attendees of a

hockey camp organized by Hockey Ministries International (HMI), a Christian charity

registered in Canada and the United States. The parties’ stipulated facts provide that,

in coordination with the TAMU ice hockey teams, HMI conducted one-week camps

during the summers of 2006–2008 for the purpose of instructing children on hockey

skills. The parties also stipulated that, at TAMU, ice hockey is a club sport. The men’s

team competes in the West Region of the American Hockey Association Division II; the

TAMU Women’s Hockey Club is ―a recognized organization‖ at TAMU.


       Team members from the men’s and women’s team serve as counselors at the

HMI hockey camp, and at least one of the TAMU hockey coaches participates in the

hockey camp each year. TSHA property was used solely to provide housing to the

counselors and participants who participated in the annual event. The instructional

activities of HMI’s hockey camp took place at the Arctic Wolf Ice Center, a privately

owned facility.   The parties stipulated that, ―[a]lthough the HMI hockey camp is

sponsored by TAMU’s Recreational Sports Department and the TAMU Men’s Hockey

and Women’s Hockey Clubs, TSHA directly invoices HMI and HMI pays TSHA for the

housing provided to the hockey camp participants.‖ The record reveals an open letter

from TAMU’s Recreational Sports Department confirming its sponsorship of the HMI

hockey camp in 2006: ―I would like to confirm that the Texas A & M Ice Hockey Team

will proudly sponsor the Hockey Ministries International hockey camp held the summer

of 2006 at the Arctic Wolf Ice Center.‖


       In stipulated testimony, Doug Halcomb, an HMI officer who is personally involved

in the hockey camp in College Station, explained that ―The Cambridge provides quality,

                                           8
safe, and secure housing for the participants in hockey camp. Use of the Cambridge for

the hockey camp benefits TAMU, its students, faculty, and members, because it

favorably promotes TAMU, and its enrollment at TAMU.‖ Halcomb went on to explain

that ―HMI does not profit from the hockey camp, or the use of the Cambridge. The

expense to conduct the camp exceed[s] the revenues received by HMI, and HMI relies

on donations to cover the shortfall.‖


       Summer 2007


       TSHA continued to provide housing and board for participants in JAMP, TAMU’s

summer athletics camps, and HMI hockey camp. Apparently, TSHA no longer provided

housing for the 4-H Roundup.


       Summer 2008


       UCA Cheer Camp


       In summer 2008, TSHA again provided housing for JAMP participants and

attendees of both TAMU’s summer athletics camps and HMI’s Hockey Camp.

Additionally, it provided housing for UCA Cheer Camp in June and August 2008. UCA

is an assumed name of Varsity Spirit Corporation, a Tennessee for-profit corporation.

UCA provides training for college and high school cheerleaders through summer camps

and clinics held on college campuses.         The parties stipulated that the TAMU’s

Recreational Sports Department sponsored the UCA summer camps at TAMU. UCA

was required to register and receive approval through TAMU. TAMU did approve the

event. Nonetheless, TSHA billed UCA directly, and UCA paid the invoice from TSHA.



                                          9
       In stipulations regarding testimony, Paula Opal, who works in TAMU’s

Recreational Sports Department and is responsible for budgeting and coordinating

certain camps, including UCA Cheer Camp, would have testified that TAMU’s

Recreational Sports Department receives revenues and generates a profit from its

association with UCA Cheer Camp. Opal explained that housing the participants at The

Cambridge increases the number of participants, which generates more profits for

TAMU which, then, permits the Recreational Sports Department to offer more activities

and better facilities to TAMU’s students, faculty, and staff. Additionally, the parties

stipulated, Opal would have testified that UCA Cheer Camp furthers TAMU’s

educational purposes.


Trial Testimony


       The sole witness to testify at the trial to the bench was Peter Ehrenberg, TSHA’s

Executive Director. He testified at the trial that demand for housing and board at The

Cambridge is naturally lower in the summer. He testified that only approximately ten

percent of The Cambridge’s rooms were occupied by ―regular students that would go to

Texas A & M University or Blinn College.‖ Ehrenberg explained how the summer use of

The Cambridge benefits the university, its faculty, staff, and students:


       I think that there’re a number of ways that it does that. Obviously, one of
       the ways is that The Cambridge is able to provide housing for the summer
       school students that attend both A & M and Blinn, and I think that gives
       some revenue to the university which they may not otherwise be able to
       get. As I understand it, the majority of the dorms at A & M are closed
       during the summer. And so we do have the ability to be able to do that.

Ehrenberg also described how, without supplementing the summer occupancy at The

Cambridge with summer program attendees in the manner TSHA had been doing, it


                                            10
would be nearly impossible to keep The Cambridge open during the summer months.

This closing would mean laying off approximately fifty people and displacing the

traditional university students who did choose to stay at The Cambridge during the

summer while attending regular summer school at either TAMU or Blinn College.


The Underlying Proceedings and the Trial Court’s Judgment


      TSHA sought judicial review of BCAD’s denials of TSHA’s exempt status for the

years 2005 through 2008. In its petition, it re-urged its entitlement to the tax exemption

provided in the Texas Education Code. See TEX. EDUC. CODE ANN. § 53.46. It also

contended that it is entitled to a tax exemption based on the Texas Constitution and

provisions of the Texas Tax Code. See TEX. CONST. art. XI, § 9; TEX. TAX CODE ANN. §

11.11(a), (e) (West Supp. 2012).


      The trial court found that, during the years 2005 through 2008, although The

Cambridge’s primary use was housing and boarding students of an institution of higher

learning, The Cambridge also housed and boarded ―persons who were not students,

faculty or staff members of an institution of higher learning.‖ The trial court went on to

conclude that, because the TSHA property was ―not used exclusively for housing or

boarding, or housing and boarding students, faculty or staff of an institution of higher

learning,‖ that TSHA was not entitled to a tax exemption under section 53.46 of the

Texas Education Code.


      TSHA objected to the proposed findings of fact and conclusions of law not only

as to the conclusion that it was not entitled to an exemption under section 53.46 of the

Texas Education Code, but also as to the trial court’s failure to analyze the exemptions


                                           11
TSHA claimed under the Texas Constitution and the Texas Tax Code. TSHA also

requested amended and additional findings of fact and conclusions of law in which it

similarly contended as follows:


      The foregoing conclusion of law [that TSHA is not entitled to an exemption
      under the Texas Education Code’s section 53.46] is not supported by the
      evidence admitted at trial and is contrary to the law. Specifically, the law
      establishes that TSHA is exempt from taxation pursuant to Art. X[I], § 9 of
      the Texas Constitution and Section 11.11 of the Tax Code, as well as
      Chapter 53 of the Education Code.
      Accordingly, conclusion of law number 1 should be amended, or additional
      conclusions of law be entered, to reflect that TSHA sought tax exemption
      under all of the foregoing laws and why the provision of the Texas
      Constitution and Tax Code were not applied by the Court.

                                  Standards of Review


      Findings of fact in a case tried to the bench have the same force and dignity as a

jury’s verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794

(Tex. 1991); In re Marriage of Bivins, 393 S.W.3d 893, 899 (Tex.App.—Waco 2012, pet.

denied).   We, therefore, evaluate the sufficiency of the evidence to support those

findings by the same standards for evaluating the legal and factual sufficiency of the

evidence to support a jury verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994); Harris Cnty. Appraisal Dist. v. Se. Tex. Hous. Fin. Corp., 991 S.W.2d 18, 20

(Tex.App.—Amarillo 1998, no pet.).     Under the legal sufficiency standard, we must

credit evidence that supports the judgment if a reasonable fact-finder could, and we

must disregard contrary evidence unless a reasonable fact-finder could not. See City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).        Unless there is no favorable

evidence to support the challenged finding or the contrary evidence renders supporting

evidence incompetent or conclusively establishes the opposite of the finding, we must


                                          12
affirm. See id. at 810–11. In reviewing the factual sufficiency of the evidence, we

consider all the evidence and will set aside the finding only if the evidence supporting

the finding is so weak or so against the overwhelming weight of the evidence that the

finding is clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001) (per curiam).


       A trial court’s conclusions of law are always reviewable. Westech Eng’g, Inc. v.

Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.—Austin 1992, no writ).

Conclusions of law may not be challenged for factual insufficiency, but the trial court’s

conclusions drawn from the facts may be reviewed to determine their correctness.

Harris Cnty. Appraisal Dist., 991 S.W.2d at 22. Because a trial court has no discretion

in determining what the law is or applying the law to the facts, we review a trial court’s

conclusions of law de novo. See Okorafor v. Uncle Sam & Assocs., 295 S.W.3d 27, 38

(Tex.App.—Houston [1st Dist.] 2009, pet. denied). Conclusions of law ―will be upheld

on appeal if the judgment can be sustained on any legal theory supported by the

evidence‖ and, unless erroneous as a matter of law, will not be reversed. Westech

Eng’g, Inc., 835 S.W.2d at 196. In conducting a de novo review, we may reexamine

legal conclusions drawn from specific findings of fact contained in the record. See id. at

196 n.1. We exercise our own judgment on each issue and afford no deference to the

original tribunal’s decision. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999).


                                 Rules of Construction


      All real property in the State of Texas is taxable unless it is exempt as required or

permitted by the Texas Constitution. See TEX. CONST. art. VIII, § 1(b). ―To promote



                                           13
uniformity and equality in taxation, we construe tax exemptions—and provisions

tantamount to tax exemptions—strictly against the taxpayer and in favor of the taxing

authority.‖ Gables Realty L.P. v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 872

(Tex.App.—Austin 2002, pet. denied) (quoting Tex. Utils. Elec. Co. v. Sharp, 962

S.W.2d 723, 726 (Tex.App.—Austin 1998, pet. denied)); see Hilltop Village, Inc. v.

Kerrville Indep. Sch. Dist., 426 S.W.2d 943, 948 (Tex. 1968). That is, when an entity

claims a tax exemption, we employ a presumption favoring the taxing entity rather than

the taxpayer. See Tracfone Wireless, Inc. v. Comm’n on State Emergency Commc’ns,

56 Tex. Sup. Ct. J. 458, 2013 Tex. LEXIS 269, at *25–26 (Apr. 5, 2013). Clearly,

―exemptions from taxation are not favored by the law.‖ See N. Alamo Water Supply

Corp. v. Willacy Cnty. Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991). Indeed, the

Texas Supreme Court has reiterated the reasoning behind the disfavor with which

courts treat tax exemptions and the rules of construction resulting from this disfavor and

by which we must analyze tax exemptions:


      Statutory exemptions from taxation are subject to strict construction since
      they are the antithesis of equality and uniformity and because they place a
      greater burden on other taxpaying businesses and individuals. An
      exemption cannot be raised by implication, but must affirmatively appear,
      and all doubts are resolved in favor of taxing authority and against the
      claimant. Simply stated, the burden of proof is on the claimant to clearly
      show that it comes within the statutory exemption.

AHF Arbors at Huntsville I, LLC v. Walker Cnty. Appraisal Dist., 55 Tex. Sup. Ct. J. 835,

2012 Tex. LEXIS 465, at *18 n.30 (June 8, 2012) (quoting Bullock v. Nat’l Bancshares

Corp., 584 S.W.2d 268, 271–72 (Tex. 1979)).




                                           14
                                        Analysis


Exemption under the Texas Education Code


      Again, TSHA asserted that it is entitled to an exemption from ad valorem taxation

based on the following exemption:


      Because the property owned by authority will be held for educational
      purposes only and will be devoted exclusively to the use and benefit of the
      students, faculty, and staff members of an accredited institution of higher
      education, it is exempt from taxation of every character.

TEX. EDUC. CODE ANN. § 53.46.


      In our review of the provisions relevant to TAMU’s educational mission, its

legislative directives, and its legislatively designated agencies and services, the term

―student‖ in this factual context is broader than the definition proposed or envisioned by

BCAD. That is, the term ―student‖ would encompass more than the traditional, full-time

student enrolled in regular classes offered by the university. Chapter 53 of the Texas

Education Code does not define ―student.‖4 In the absence of statutory definition, we


      4
           TSHA points out in its brief that the Texas Education Code does define
―student‖ elsewhere as a person who ―is registered or in attendance at an educational
institution.‖ See id. § 37.151(4)(A) (West 2012) (relating to public school safety and
discipline, specifically hazing). We add that ―student‖ is also defined elsewhere as ―any
prospective, current, or former student of: (A) a career school or college; or (B) any
other school, educational institution, or business entity from which the commission
receives, or regarding which the commission reviews, information through its
administration or enforcement of this chapter.‖ See id. § 132.024(a)(1) (West Supp.
2012) (defining ―student‖ in relation to junior colleges and career schools and colleges,
still within Title 3 of the Texas Education Code covering higher education). ―[W]hen
construing a statutory word or phrase, we may consider the meaning assigned to the
term elsewhere in the act or in another act of similar nature.‖ Robertson v. Odom, 296
S.W.3d 151, 157 (Tex.App.—Houston [14th Dist.] 2009, no pet.) (citing Guthery v.

                                           15
use the term in its ordinary and common usage.          See TEX. GOV’T CODE ANN. §

311.011(a) (West 2013). In its ordinary and common usage, a ―student‖ is ―one who

attends a school‖ or ―one who studies,‖ ―an attentive and systematic observer.‖

MERRIAM-W EBSTER’S COLLEGIATE DICTIONARY 1239 (11th ed. 2003).


      Here, in fulfilling its legislatively mandated general educational objective and in

consideration of the breadth of the classes and programs the legislature had directed

TAMU to offer in addition to its regular curriculum, TAMU is fairly characterized as a

multi-faceted institution of higher education.   It naturally follows from its broad and

varied educational directives that TAMU has a wide variety of ―students‖ in the ordinary

and common sense of the word.


4-H Roundup and JAMP


      There are distinctions to be made here among the various programs for which

TSHA provided housing and board. With the 4-H Roundup and JAMP programs, TAMU

has definite and intimate relationships, ones which are forged or supported by

legislative mandate. See TEX. EDUC. CODE ANN. §§ 51.821(4)(I), 88.001(3). Based on

these close relationships, TAMU’s considerable involvement, and the absence of other,

non-university related entities, program or camp participants in these events are



Taylor, 112 S.W.3d 715, 721 (Tex.App.—Houston [14th Dist.] 2003, no pet.)). To the
extent that sections 37.151 and 132.024 are similar in nature to Chapter 53, we
consider the definitions of ―student‖ advanced in those sections. See Robertson, 296
S.W.3d at 157; Guthery, 112 S.W.3d at 721. However, recognizing that the provisions
defining ―student‖ are aimed at rather diverse goals, we note that the common and
ordinary usage of the term ―student‖ as advanced in the common dictionary is, at a
minimum, not ―out of harmony or inconsistent with‖ the definitions of ―student‖ used in
other parts of the Texas Education Code. See Tex. Dep’t of Transp. v. Needham, 82
S.W.3d 314, 318 (Tex. 2002).

                                           16
―students‖ of TAMU. The breadth of TAMU’s educational mission and objectives as

evidenced by the wide variety of programs with which it is charged, and TAMU’s

involvement with and connection to the 4-H Roundup and JAMP events lead us to

conclude that participants in those events are ―students‖ of TAMU.


      We do remain mindful that we are to strictly construe exemptions and that they

are not favored in the law. See AHF Arbors, 2012 Tex. App. LEXIS 465, at *18 n.30; N.

Alamo Water Supply, 804 S.W.2d at 899. However, our conclusion does not run afoul

of such directive; when an individual attends an event or program with which the state

legislature has specifically charged a university, that individual is fairly considered a

―student‖ of that university such that provision of housing and board to that person

would not run afoul of the exclusivity element of section 53.46’s tax exemption.


      With respect to the 4-H Roundup and the JAMP program, we conclude that such

programs fall within the ambit of section 53.46 when we consider the nature of the

programs, the legislatively mandated relationships between TAMU and the 4-H and

JAMP programs, and TAMU’s involved role in requisitioning and paying for the housing

and board provided by TSHA. See TEX. EDUC. CODE ANN. §§ 51.821(4)(I), 88.001(3).

So, not having provided housing and board in such a way as to step outside the scope

of section 53.46, The Cambridge should have continued to enjoy the previously granted

exemption from ad valorem taxes for the year 2005, when the programs for which it

provided housing and board included only 4-H and JAMP.


      Beginning in 2006, TSHA began to house participants in TAMU’s officially

sanctioned, department-conducted athletics camps. Ultimately, the provision of housing



                                           17
for the TAMU athletics camps will not be dispositive to the viability of the exemption for

the years 2006 through 2008 because additional concerns with regard to TSHA’s

exemption surface when it began to provide housing for HMI Hockey Camp in 2006 and

UCA Cheer Camp beginning in 2008. We, therefore, need not pass on the impact, if

any, the provision of housing for these athletics camps would have on TSHA’s eligibility

for a section 53.46 tax exemption beginning in the year 2006. TEX. R. APP. P. 47.1.


HMI Hockey and UCA Cheer Camps


       The relationships between TAMU and the hockey and cheerleading camps are

distinguishable from those it maintains with the 4-H and JAMP events. The principle or

primary organizers of the hockey and cheerleading camps are wholly separate from the

university: HMI is a charitable organization entirely unrelated to TAMU, and UCA is an

out-of-state for-profit corporation. These entities paid TSHA directly for the housing

TSHA provided to camp participants. TAMU is involved to some degree by acting as

host and/or sponsor of these events and, at least with respect to UCA Cheer Camp, the

record shows that TAMU’s Recreational Sports Department receives revenues and

makes a profit from its involvement with the camp, funds which the department puts

back into the services and facilities which serve the university’s staff and student body.


       Nonetheless, it was not TAMU which solely, perhaps not even primarily,

sponsored, was involved in, or benefitted from TSHA’s provision of housing and board

for hockey and cheerleading camp participants. The fact that non-university entities

organized, developed, and even profited in some sense from the programs serves to

underscore that TAMU and those particular programs—that is, HMI Hockey Camp and



                                            18
UCA Cheer Camp—do not share relationships of any legislative origin such that the

participants in those programs could be fairly considered ―students‖ of TAMU. With

that, we cannot conclude with any amount of confidence that, during the years 2006

through 2008, The Cambridge was ―devoted exclusively to the use and benefit of the

students, faculty, and staff members of an accredited institution of higher education.‖

See TEX. EDUC. CODE ANN. § 53.46. For the years 2006 through 2008, we resolve the

doubt arising from the involvement of non-university entities against TSHA, against

exemption, and in favor of BCAD. See AHF Arbors, 2012 Tex. App. LEXIS 465, at *18

n.30.


The Relationship between Tax Code Exemptions and Section 53.46


        In the myriad of contentions and alternative contentions, the issue has been

raised that the effect of certain provisions in the Texas Tax Code is to effectively repeal

section 53.46 of the Texas Education Code. This issue is one we need not resolve at

this point in time. Even if the proper interpretation of section 11.11 of the Texas Tax

Code and its impact as to section 53.46 of the Texas Education Code were to lead to

the conclusion that section 53.46 had been effectively repealed and is no longer of

force, we could nonetheless conclude that TSHA was entitled to a tax exemption under

Article XI, section 9, but, again, only with respect to the housing and boarding of

―students‖ attending the 4-H Roundup and JAMP.5



        5
         In arriving at this conclusion, we necessarily reject BCAD’s contention that
TSHA failed to preserve for our review issues relating to alternative exemptions; indeed,
the various exemptions were discussed at length in the trial to the bench and were
specifically raised in both TSHA’s objections to the proposed findings of fact and
conclusions of law and its request for additional or amended findings of fact and

                                            19
Exemption under the Texas Constitution


       In pertinent part, the Texas Constitution provides as follows:


       The property of counties, cities and towns, owned and held only for public
       purposes, such as public buildings and the sites therefor, fire engines and
       the furniture thereof, and all property used, or intended for extinguishing
       fires, public grounds and all other property devoted exclusively to the use
       and benefit of the public shall be exempt from forced sale and from
       taxation, provided, nothing herein shall prevent the enforcement of the
       vendors lien, the mechanics or builders lien, or other liens now existing.

TEX. CONST. art. XI, § 9. Courts have traditionally treated Article XI, section 9, as self-

operative.   See Leander Indep. Sch. Dist. v. Cedar Park Water Supply Corp., 479

S.W.2d 908, 912 (Tex. 1972); see also A & M Consol. Indep. Sch. Dist. v. City of Bryan,

143 Tex. 348, 184 S.W.2d 914, 915 (1945) (distinguishing the effect—not necessarily

the subject matter of—Article XI, section 9, which operates to exempt certain property

from taxation, from Article VIII, section 2, which authorizes the legislature to pass laws

that exempt certain property meeting the standard outlined in that article).




conclusions of law. See TEX. R. CIV. P. 298. TSHA’s proposed findings and
conclusions represent more than a ―bare request‖ for additional or amended findings
and conclusions. See Alvarez v. Espinoza, 844 S.W.2d 238, 241–42 (Tex.App.—San
Antonio 1992, writ dism’d w.o.j.) (en banc) (op. on reh’g) (per curiam). We conclude
that all the exemptions raised below are properly before this Court for our consideration.
        That said, we do not rest our decision primarily and solely on the basis of Article
XI, section 9, because we should first decide the issue on a nonconstitutional basis if
possible. See VanDevender v. Woods, 222 S.W.3d 430, 432 (Tex. 2007) (noting that
courts should rest decisions on nonconstitutional grounds, if available, and not ―wade
into ancillary constitutional questions‖); In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003)
(―As a rule, we only decide constitutional questions when we cannot resolve issues on
nonconstitutional grounds.‖). In an attempt to maintain judicial restraint in the face of
the complex issues raised on appeal, we address the constitutional matter only insofar
as doing so is necessary to address the issues raised (1) whether provisions of the
Texas Tax Code effectively repealed section 53.46 of the Texas Education Code and
(2) whether any other of the provisions cited by TSHA operate to exempt the property in
light of TSHA’s provision of housing for these programs.

                                            20
      Traditionally, courts have analyzed matters relating to Article XI, section 9, in two

distinct phases: (1) public ownership issues and (2) exclusive public purpose issues.

See Leander Indep. Sch. Dist., 479 S.W.2d at 912 (observing that both public

ownership and public purpose elements must be satisfied); Tex. Tpk. Co. v. Dallas

Cnty., 153 Tex. 474, 271 S.W.2d 400, 401 (1954) (after concluding that disputed

property was not publicly owned, declining further analysis into ―nature of its use‖); A &

M Consol. Indep. Sch. Dist., 184 S.W.2d at 915 (addressing the applicability of Article

XI, section 9, by examining ownership and purpose issues in turn); see also Hays Cnty.

Appraisal Dist. v. Sw. Tex. State Univ., 973 S.W.2d 419, 422–23 (Tex.App.—Austin

1998, no pet.) (addressing separately the issues of public ownership and public

purpose); Cent. Appraisal Dist. of Erath Cnty. v. Pecan Valley Facilities, Inc., 704

S.W.2d 86, 89–90 (Tex.App.—Eastland 1985, writ ref’d n.r.e.) (same). To the extent

possible in light of binding Texas Supreme Court precedent interpreting ―counties, cities

and towns,‖ we adhere to the following general rule when examining a constitutional

provision: ―The language of the Constitution must be presumed to have been carefully

selected, and the words used are to be interpreted as the people generally understood

them.‖ Leander Indep. Sch. Dist., 479 S.W.2d at 912.


      Public Ownership Element of Article XI, section 9


      Though at first glance Article XI, section 9, would appear rather limited, we note

that the Texas Supreme Court provided an enduring, broad interpretation of Article XI,

section 9, equating its ―counties, cities or towns‖ to ―a governmental agency.‖       See

Lower Colo. River Auth. v. Chem. Bank & Trust Co., 144 Tex. 326, 190 S.W.2d 48, 50

(1945). This broad interpretation included the Lower Colorado River Authority (LCRA),

                                           21
a creature of legislation which deemed it ―a governmental agency and body politic and

corporate.‖ See id. Although subsequent Texas Supreme Court cases have expressed

a reluctance or hesitance regarding the breadth of LCRA’s interpretation of ―counties,

cities and towns,‖ none has directly overruled or otherwise restricted it. See Satterlee v.

Gulf Coast Waste Disposal Auth., 576 S.W.2d 773, 779 (Tex. 1978) (op. on reh’g)

(noting the breadth of LCRA’s interpretation, declining to reconsider the holding, also

declining to apply that interpretation, and, instead, deciding the issue presented on

rehearing in terms of ―public purpose‖); Leander Indep. Sch. Dist., 479 S.W.2d at 911,

913 (in deciding issues concerning a different but related constitutional provision,

outlining LCRA’s interpretation and observing that what it characterizes as ―an

erroneous interpretation‖ is now ―firmly embedded in our jurisprudence‖).


      Though no clear test has emerged to determine whether an entity falls within the

scope of LCRA’s interpretation of Article XI, section 9, the Texas Supreme Court has

found that the term ―counties, cities and towns‖ includes the following entities: (1) the

LCRA, created by statute as ―a governmental agency and body politic and corporate,

with the powers of government‖ and the creation of which was ―determined to be

essential to the accomplishment of the purposes of Section 59 of Article 16 of the

Constitution of the State of Texas,‖ and (2) the City of Bryan, Texas, a municipal

corporation.   See LCRA, 190 S.W.2d at 50; A & M Consol. Indep. Sch. Dist., 184

S.W.2d at 915. We see that, though broad, LCRA’s interpretation does have outer

boundaries, however:


      [T]he undisputed facts reveal that Pecan Valley is a nonprofit corporation
      created by private individuals. Pecan Valley is not connected, in any way,
      with a county, city, town, state, or any other political subdivision or

                                            22
       sovereignty. Pecan Valley’s only connection with a governmental agency
       is its leasing arrangements with the Region. Such leasing arrangements
       do not make Pecan Valley a governmental entity or agency. The evidence
       conclusively establishes that Pecan Valley is a private, non-profit, Texas
       corporation. It is, therefore, not entitled to an exemption under Article XI,
       Section 9.
Pecan Valley Facilities, 704 S.W.2d at 89.


       The Texas Education Code designates a higher education facility authority

created under its provisions as ―a body politic and corporate having the power of

perpetual succession.‖ TEX. EDUC. CODE ANN. § 53.13 (West 2012). ―It shall have a

seal; it may sue and be sued; and it may make, amend, and repeal its bylaws.‖ Id. A

―body politic‖ is defined as ―[a] group of people regarded in a political (rather than

private) sense and organized under a common governmental authority.‖ BLACK’S LAW

DICTIONARY 198 (9th ed. 2009); see Tex. Att’y Gen. Op. No. MW-177 (1980)

(characterizing a higher education authority created pursuant to Chapter 53 of the

Texas Education Code in terms of various statutory provisions). A higher education

facility authority ―has no power to tax‖ and ―does not have the power of eminent

domain,‖ however. See TEX. EDUC. CODE ANN. §§ 53.31, 53.32 (West 2012).


       In light of the breadth of LCRA’s interpretation and application of Article XI,

section 9, TSHA, as a legislatively created body politic and corporate and an

instrumentality of a municipality, is an entity which would fall within LCRA’s broad

interpretation of ―counties, cities or towns‖ such that the public ownership prong of

Article XI, section 9, would be satisfied. Cf. LCRA, 190 S.W.2d at 50 (concluding that

the LCRA, ―a governmental agency and body politic and corporate,‖ falls within Article

XI, section 9’s ―counties, cities and towns‖).



                                             23
       Public Purpose Element of Article XI, section 9


       What use constitutes exclusive public purpose within Article XI, section 9, has

long been a question Texas courts have considered. In fact, the very question we

address in the instant case was addressed in similar fashion by the Texas Supreme

Court in 1884 when, while considering the character of the use of Galveston Wharf in

terms of Article XI, section 9, it observed the following:


       It is property held only for purposes essentially public, and may be said to
       be devoted exclusively to the use and benefit of the public; indeed, it
       would be hard to imagine a use more essentially public than is that of a
       wharf which extends along the front of a city, and upon which is received a
       large part of the articles which go to make up the inward and outward
       commerce of the state. It is a property which all persons and vessels
       have the right to use, under proper regulations, and without the use of
       which the business of the city could not be conducted. That compensation
       is received for its use does not withdraw from it its public character.

Galveston Wharf Co. v. City of Galveston, 63 Tex. 14, 23 (1884).


       Over the years that would follow Galveston Wharf Company, we see certain rules

develop to aid in the determination of whether a property is ―devoted exclusively to the

use and benefit of the public.‖ For instance, generally speaking, property serves a

public purpose when ―it is used primarily for the health, comfort, and welfare of the

public,‖ and ―all the public has the right to use it under reasonable and uniform

regulations.‖ See A & M Consol. Indep. Sch. Dist., 184 S.W.2d at 915, 916.


       Further, it is not essential that the property at issue be used for ―governmental

purposes.‖ See id. at 915 (citing Corp. of San Felipe de Austin v. State, 111 Tex. 108,

229 S.W. 845 (1921)). In San Felipe de Austin, a case with a factual background rich in

early Texas history, the Texas Supreme Court concluded that the land in question did


                                              24
serve a public purpose when the municipality’s residents publicly used the land for

grazing purposes and as a source of firewood in accordance with the terms of the

original Mexican grant.6 San Felipe de Austin, 229 S.W. at 846. The Texas Supreme

Court recognized the LCRA as an entity ―essential to the accomplishment‖ of

constitutionally mandated purposes relating to the control, storage, and preservation of

the waters of the Colorado River. See LCRA, 190 S.W.2d at 50 (citing TEX. CONST. art.

XVI, § 59(a)).


       ―It appears that the use to which the property itself is put is of primary

importance‖ in determining whether the exclusive public purpose element of Article XI,

section 9, has been satisfied, regardless of any subsequent or indirect benefit such use

may inure to the public in the way of reinvested funds. See City of Beaumont v. Fertitta,

415 S.W.2d 902, 908 (Tex. 1967) (op. on reh’g). So, ―[g]overnmental receipt and use of

proceeds arising from commercial usage of the property does not, under article XI,

section 9, qualify the use of the property itself as public.‖ Hays Cnty. Appraisal Dist.,

973 S.W.2d at 423.




       6
        The Texas Supreme Court explained the historical origins of the public use of
the land in the very unique fact situation presented in San Felipe de Austin:

       Following the independence of Texas, the town of San Felipe de Austin
       was incorporated by a special act of the Congress of the Republic, in
       1837. This act confirmed to the municipality title to all the public property
       in it. This act was amended by one approved January 20, 1841, which
       also confirmed to the citizens of the municipality all the powers and
       property originally granted by the Mexican Government, and providing that
       the powers and jurisdiction of the town should extend over the whole
       territory belonging to it.

San Felipe de Austin, 229 S.W at 846.

                                            25
4-H Roundup and JAMP Events


       We refer to our previous discussion of the legislature’s directives aimed at

TAMU. TAMU is directed to hold certain educational courses and is specifically and

legislatively connected to the 4-H and JAMP programs. Indeed, the record suggests

that TAMU sponsored both of these events and specifically requested bids from The

Cambridge on housing for students attending these programs. Providing housing and

transportation for young people attending those programs which the legislature has

deemed in furtherance of the TAMU educational mission is a public purpose within the

purview of Article XI, section 9. Cf. LCRA, 190 S.W.2d at 50 (observing that entity at

issue aids in achieving goals established by Texas Constitution). Certainly, serving the

university’s activities in furtherance of its legislatively determined educational mission

and in its execution of the duly enacted laws of the State of Texas serves a public

purpose. Cf. id.


HMI Hockey and UCA Cheer Camps


       The involvement of HMI and UCA beginning in 2006 and 2008, respectively,

raises doubts as to whether the housing of those participants serves an exclusive public

purpose as required by Article XI, section 9. That TAMU does receive some benefit

from its association with the programs is simply insufficient. Cf. City of Beaumont, 415

S.W.2d at 908 (observing that the fact that funds generated from private, commercial

use of property and received by a governmental entity may ultimately serve a public

purpose is inadequate to fulfill exclusive public purpose element of Article XI, section 9).

So, for reasons not dissimilar to our discussion of whether participants in the HMI



                                            26
Hockey Camp and UCA Cheer Camp are ―students‖ of TAMU, we must resolve the

doubts concerning the exclusive public use aspect of TSHA’s provision of housing and

board to participants in the hockey and cheerleading camps against TSHA, against

exemption of its property from ad valorem taxation, and in favor of BCAD. See AHF

Arbors, 2012 Tex. App. LEXIS 465, at *18 n.30.


De minimus exception


      TSHA cites this Court to one of its own opinions for the proposition that a de

minimus rule applies to ad valorem tax exemption given certain circumstances. See

Lamb Cnty. Appraisal Dist. v. S. Plains Hosp.-Clinic, Inc., 688 S.W.2d 896, 905

(Tex.App.—Amarillo 1985, writ ref’d n.r.e.). Lamb County Appraisal District, however, is

distinguishable from the instant case for a number of reasons, not the least of which is

that the Texas Tax Code provision at issue in that case expressly permitted a certain

degree of ―incidental‖ use. See id. at 901 (quoting TEX. TAX CODE ANN. § 11.18(b) (West

Supp. 2012)).   None of the exemptions urged in the case at bar have comparable

language which could be read to permit incidental or de minimus use of the facilities in

such a way that would disqualify the property for tax exempt status. Further, Lamb

County Appraisal District becomes less persuasive in our current context in that the

language TSHA cites regarding the recognition of a de minimus rule is presented in the

context of the Court’s assumption for argument’s sake that the conduct at issue did fall

outside the scope of the exemption at issue.       See id. at 904–05.    Lamb County

Appraisal District does not establish a generally applicable de minimus rule that would

apply to the tax exemption context with which this Court is now confronted. Indeed,

application of such a rule would be inconsistent, if not antithetical, to the well- and

                                          27
clearly-established rule of strict construction and the disfavor with which we are to treat

tax exemptions. See AHF Arbors, 2012 Tex. App. LEXIS 465, at *18 n.30.


Exemption under the Texas Tax Code


       As we noted previously, the Texas Constitution encompasses two different

approaches regarding exemption of public property from taxation. First, in Article XI,

section 9, it is self-operative; the property falling within its ambit is exempt from taxation

pursuant to the constitutional provision itself.    ―What the Constitution exempts from

taxation the Legislature has no power to require to be taxed.‖ Daugherty v. Thompson,

71 Tex. 192, 9 S.W. 99, 102 (1888).            Secondly, by Article VIII, section 2, the

Constitution grants the legislature the authority to exempt public property, providing in

pertinent part that ―the legislature may, by general laws, exempt from taxation public

property used for public purposes.‖ TEX. CONST. art. VIII, § 2(a).


       Section 11.11(a) of the Texas Tax Code


       As authorized by Article VIII, section 2, the legislature enacted section 11.11 of

the Texas Tax Code , which provides, in pertinent part, the following:


       (a) Except as provided by Subsections (b) and (c) of this section, property
       owned by this state or a political subdivision of this state is exempt from
       taxation if the property is used for public purposes.

TEX. TAX CODE ANN. § 11.11(a). TSHA contends that it is entitled to an exemption under

subsection (a) of section 11.11. Assuming arguendo that TSHA qualifies as ―a political




                                             28
subdivision of the State,‖ TSHA must still bear the burden of clearly showing that its

property satisfies the public purpose element of section 11.11(a).7


       Two cases from sister courts have directly addressed the issue whether section

11.11(a) requires exclusive public use. See Dallas Cnty. Appraisal Dist., 730 S.W.2d at

851; Grand Prairie Hosp. Auth. v. Tarrant Appraisal Dist., 707 S.W.2d 281, 284

(Tex.App.—Fort Worth 1986, writ ref’d n.r.e.). The Grand Prairie Hospital Authority

cases dealt with the same factual scenario: a hospital authority leased part of a medical

office building, which adjoined the hospital, to doctors who maintained their private

practices there. Dallas Cnty. Appraisal Dist., 730 S.W.2d 850; Tarrant Appraisal Dist.,

707 S.W.2d at 282. Both courts were asked to determine whether the fact that a portion

of the property was leased for private, commercial purposes destroyed the property’s

previously enjoyed tax-exempt status; both courts concluded that it did. See Dallas

Cnty. Appraisal Dist., 730 S.W.2d 851 (citing Satterlee, 576 S.W.2d at 779, for exclusive

public use and benefit standard); Tarrant Appraisal Dist., 707 S.W.2d at 284 (also


       7
         We do not specifically pass on the application of section 11.11(a) to a higher
education facility authority such as TSHA, again created as ―a body politic‖ and treated
in some respects as an instrumentality of the city of Westlake. Satterlee would arguably
support the position that it does. See Satterlee, 576 S.W.2d at 774–75 (treating waste
disposal authority created by legislation as a political subdivision of the State); see also
Grand Prairie Hosp. Auth. v. Dallas Cnty. Appraisal Dist., 730 S.W.2d 849, 850
(Tex.App.—Dallas 1987, writ ref’d n.r.e.) (concluding that hospital authority, an entity
organized under relevant statutory provisions, fell within section 11.11(a)’s scope and
observing that it was ―undisputed that the property is publicly owned since it is held by
the [authority]‖). Further, unlike LCRA in the Article XI, section 9 context, no case
advances an arguably broad interpretation of the entities to which section 11.11(a)
would apply. Cf. LCRA, 190 S.W.2d at 50.
       It is on this basis that BCAD maintains section 11.11(a) is not applicable to
TSHA. It is also the distinction among the entities identified that BCAD maintains that
there is no conflict between section 53.46 of the Texas Education Code and section
11.11 of the Texas Tax Code. Because, as we will discuss, the property at issue does
not serve a public purpose, we need not decide this particular issue.

                                            29
relying on Satterlee); accord Tex. Att’y Gen. Op. No. JC-0311 (2000); Tex. Att’y Gen.

Op. No. JC-0571 (2002). Indeed, both cases rely on Satterlee, which does apply an

exclusive public use standard—albeit in an Article XI, section 9 context. See Satterlee,

576 S.W.2d at 779. The effect of the Grand Prairie Hospital Authority cases’ adoption

of the Satterlee standard is to imprint upon section 11.11(a) an exclusivity element. The

Texas Supreme Court refused two opportunities to correct this imprint, had it

determined that such was unsound. As it stands, however, the Grand Prairie Hospital

Authority holdings have remained undisturbed since 1986 and 1987, respectively.


      Here, TSHA’s provision of housing to HMI hockey and UCA cheerleading camps

is not, for the reasons we have discussed in relation to Article XI, section 9, a public

purpose. That being so, provision of housing and board for those events—albeit for a

rather short period of time—means that The Cambridge was not ―devoted exclusively to

the use and benefit of the public.‖ See Dallas Cnty. Appraisal Dist., 730 S.W.2d at 851;

Tarrant Appraisal Dist., 707 S.W.2d at 284; see also Satterlee, 576 S.W.2d at 779. We

conclude that, to the extent section 11.11(a) of the Texas Tax Code would apply in this

situation and would apply to TSHA, TSHA has failed to carry its burden of clearly

showing that it comes within the statutory exemption.      See AHF Arbors, 2012 Tex.

LEXIS 465, at *18 n.30.


      Section 11.11(e) of the Texas Tax Code


      TSHA also contends that it is entitled to an exemption under subsection (e) of

section 11.11, which provides the following:


      (e) Property that is held or dedicated for the support, maintenance, or
      benefit of an institution of higher education as defined by Section 61.003,

                                           30
      Education Code, but is not rented or leased for compensation to a private
      business enterprise to be used by it for a purpose not related to the
      performance of the duties and functions of the state or institution or is not
      rented or leased to provide private residential housing to members of the
      public other than students and employees of the state or institution is not
      taxable. If a portion of property of an institution of higher education is
      used for public purposes and a portion is not used for those purposes, the
      portion of the property used for public purposes is exempt under this
      subsection. All oil, gas, and other mineral interests owned by an
      institution of higher education are exempt from all ad valorem taxes.
      Property bequeathed to an institution is exempt from the assessment of ad
      valorem taxes from the date of the decedent’s death, unless:
             (1) the property is leased for compensation to a private business
             enterprise as provided in this subsection; or
             (2) the transfer of the property to an institution is contested in a
             probate court, in which case ad valorem taxes shall be assessed to
             the estate of the decedent until the final determination of the
             disposition of the property is made. The property is exempt from
             the assessment of ad valorem taxes upon vesting of the property in
             the institution.

TEX. TAX CODE ANN. § 11.11(e).


      A plain reading of subsection (e) of section 11.11 yields the conclusion that it

contemplates application to property owned by an institution of higher learning. We add

that public ownership is determined by examining the facts surrounding the property,

and, here, there is no evidence—indeed, no contention—that The Cambridge is owned

by an institution of higher learning. See Tex. Tpk. Co., 271 S.W.2d at 402. From

subsection (e)’s plain language, it was not intended to apply to property owned by a

higher education facility authority; we are not at liberty to construe subsection (e)

otherwise. See AHF Arbors, 2012 Tex. LEXIS 465, at *18 n.30; Gables Realty, 81

S.W.3d at 872.




                                           31
Pro Rata Exemption


       TSHA invites this Court to remand this cause to the trial court with instructions to

determine the portion of the property that is used for public purposes and entitled to an

exemption under section 11.11(e) of the Texas Tax Code. 8            As is pertinent to this

invitation, subsection (e) provides the following: ―If a portion of property of an institution

of higher education is used for public purposes and a portion is not used for those

purposes, the portion of the property used for public purposes is exempt under this

subsection.‖   TEX. TAX CODE ANN. § 11.11(e).          Again, having concluded that The

Cambridge does not qualify as ―property of an institution of higher education,‖ we

decline the invitation to remand for calculation of a pro rata tax exemption under Section

11.11(e).


Summary


       With respect to the summer 2005 housing and boarding of students who

attended the 4-H Roundup and JAMP events, TSHA should have continued to enjoy the

previously granted tax exemption applied to The Cambridge; those participants are fairly

considered students of TAMU in light of the programs’ closely connected and

legislatively created relationships to TAMU. With that, the provision of housing and

board to those participants would not undermine section 53.46’s requirement that the

       8
         Parenthetically, the notion of a pro rata approach to exemption pursuant to
Article XI, section 9, has been rejected outright: ―We . . . reject the procedure of
subdividing property to determine whether part of the property’s use is exclusive for the
purposes of article XI, section 9 of the Texas Constitution.‖ Hays Cnty. App. Dist., 973
S.W.2d at 423. We see no authority which would support such an approach. In fact,
such a practice would also appear to contradict the exclusivity required by Article XI,
section 9. See id.


                                             32
property be ―devoted exclusively to the use and benefit of the students, faculty, and staff

members of an accredited institution.‖ See TEX. EDUC. CODE ANN. § 53.46.


       Beginning in the summer of 2006, when TSHA began to provide housing to HMI

hockey camp attendees, such use of The Cambridge fell outside section 53.46’s

exclusivity requirement. That is, the direct and substantial involvement of and benefit to

a non-university entity means that the property was no longer ―devoted exclusively to

the use and benefit of the students, faculty, and staff members of an accredited

institution.‖ See id. Adhering to the strict construction disfavoring exemptions from

taxation, we resolve the doubts raised by the facts of this case against TSHA and in

favor of BCAD with respect to the tax year 2006. The same resolution applies to the tax

year 2007 when TSHA again provided housing and board to HMI Hockey Camp

attendees. Beginning in the summer of 2008 and in addition to providing housing for

hockey camp, TSHA began to provide housing for participants in UCA Cheer Camp, an

event organized and developed by a for-profit corporation. Although there is evidence

that TAMU did benefit financially from its involvement with the cheerleading camp, the

record suggests that it was not only TAMU who benefitted from the housing and board

TSHA provided to the camp attendees. The record establishes that TSHA dealt directly

with UCA in terms of arranging for payment for the housing provided to those

participants. We resolve the doubts associated with the facts surrounding UCA Cheer

Camp against TSHA and in favor of BCAD for the tax year 2008.


       Likewise, none of the other cited exemptions would operate on these facts to

exempt TSHA’s property from ad valorem taxation during the tax years 2006 through

2008. Assuming that TSHA is an entity to which Article XI, section 9, would apply, the

                                            33
use of The Cambridge during these years does not meet the exclusive public purpose

test. See TEX. CONST. art. XI, § 9. Similarly, such use failed to meet the exclusive

public use requirements of section 11.11 of the Texas Tax Code. See TEX. TAX CODE

ANN. § 11.11(a). Further, the property at issue is not ―property owned by an institution

of higher education‖ as contemplated by subsection (e). See id. § 11.11(e).


                                       Conclusion


       As to the tax year 2005, we sustain TSHA’s point of error with respect to the trial

court’s conclusion that it was not entitled to the tax exemption provided by section 53.46

of the Texas Education Code. Accordingly, we reverse in part the trial court’s judgment,

render judgment that TSHA’s property is exempt from ad valorem taxation for the year

2005, and order that BCAD remove TSHA’s property from its tax roll for the year of

2005. As to the tax years 2006 through 2008, we overrule TSHA’s points of error and,

accordingly, affirm the trial court’s judgment that the TSHA property is not exempt from

ad valorem taxation for those years. BCAD’s tax rolls for those years will so reflect.




                                                 Mackey K. Hancock
                                                     Justice




                                            34
