                                  @ffice of ttp 5Zlttornep@eneral
                                                  &tate      of ‘Qexa93
DAN MORALES
 ATTORNEI’
      OENERAL                                      November      12, 1998



   The Honorable John Mann                                  Opinion No. DM-490
   District Attorney
   31st & 223rd Judicial Districts of Texas                 Re:    Whether a school district is entitled to assess
   P.O. Box 24                                              ad valorem taxes against royalty interests in a pooled
   Shamrock, Texas 79079-0024                               gas unit based upon the location of the well or based
                                                            upon the location of the real property to which the
                                                            royalty interests appertain   (RQ- 1140)


   Dear Mr. Mann:

            The former Wheeler County Attorney’ submitted an opinion request to this office asking
   about the distribution of ad valorem taxes on royalty interests in gas between two school districts
   when the well is located in school district A but the royalty interests sharing royalty income from
   the well appertain to land located in both school districts A and B. He described the following
   situation:   A 640 acre tract of land in Wheeler County is the subject of a pooling agreement
   “whereby all royalty owners in the       tract receive royalty income from” the one producing gas well
   on the tract. Half of the tract is located in school district A and the other half is located in school
   district B. The tract’s one producing gas well is located in school district A. Although the royalty
   owners of the half of the tract located in school district B receive royalties, school district A
   “is receiving all ad valorem taxes assessed against the royalty estates in the entire 640 acre tract since
   the      well bore is within this school district.”

           Wheeler County asks, in essence, whether a school district is entitldd to assess ad valorem
   taxes against royalty interests based upon the location of the well or based upon the location ofreal
   property to which the royalty interests appertain. We conclude that a school district is entitled to
   assess ad valorem taxes against a royalty interest based upon the location of the real property to
   which the royalty interest appertains. We have not been able to locate any court decision or attorney




             ‘We have received a letter from your office stating that the “District Attorney’s Office for the 3 1st and 223rd
   Judicial Districts of Texas is now acting in the capacity of County Attorney for Wheeler County” and that the “office
   of the Wheeler County Attorney continues to be interested in obtaining the opinion previously requested in reference
   to Request #995.” We assume you intend to refer to RQ-I 140 rather than RQ-995, as the latter request is no longer
   pending in this office. We received an opinion request, which we assigned RQ-995, from the former Wheeler
   County Attorney in July 1997, and soon thereafter asked him to brief the legal questions presented in the request. We
   kept RQ-995 open awaiting a legal brief until this winter when we closed it by a letter dated February 17, 1998.
   We received a letter brief from the former Wheeler County Attorney in May 1998, which we treated as a new request,
   RQ-1140.
The Honorable        John Mann - Page 2                      (DM-490)




general opinion addressing the particular situation at issue. Case law and statutes, however, provide
the basis for our conclusion.

         It is well established in this state that a royalty interest in oil, gas or other minerals is taxable
as real property.’ The Tax Code governs the taxable situs ofreal property as follows: “Real property
is taxable by a taxing unit if located in the unit on January 1.“3 Courts have held that because a
royalty interest is taxable as an interest in land, it is taxable as real estate in the county where the
land to which it appertains is located, rather than in the county where the owner of the interest
resides.4 In other words, the taxable situs of a royalty interest is the location of the real property to
which the royalty interest appertains. We believe it follows from these principles that a school
district may tax royalty interests that appertain to real property located in the school district and may
not tax royalty interests that pertain to real property located outside the school district.

         Based upon the foregoing, we believe that in the situation presented both school districts are
entitled to tax the royalty income generated by the well located in school district A. School district
A may tax the royalty income on royalty interests that appertain to real property located in school
district A, and school district B may tax the royalty income on royalty interests that appertain to real
property located in school district B. As we explain below, however, the terms of the pooling
agreement will determine whether the school districts send tax bills to all or only some ofthe royalty
interest owners.5

         In the absence of a stipulation to the contrary,           “the legal effect of pooling       is to constitute
all of the participants joint owners orjoint tenants of            all royalty interests in the pooled       block, the
ownership being in the proportion that the acreage                 in each tract bears to the total acreage in the
block.“6 Under the terms of the pooling agreement,                 the royalty interests in the 640 acre tract may



            2See Sh@ld     v. Hogg, 77 S.W.2d 1021, 1030 (Tex. 1934); Tax Code 3 1.04(2) (defming              the term “real
property”    to include “an estate or interest”in land or a mineral in place).

          ‘Tax Code 5 21.01; see also id. 5 25.17 (“If real property is located partially outside and partially inside a
taxing unit’s boundaries, the portion inside the unit’s boundaries shall be listed separately from the remaining portion.“).

          “Jeff Y. Kahn, 273 S.W.2d 43 1,433 (Tex. Civ. App.--Beaumont           1954, wit ref d n.r.e.) (“royalties ax ‘rights
and privileges belonging 01.       appertaining’ to the land leased.      and are therefore assessable as real property by the
defendant county and school district.         .“); Wilcox Y. Hull-Daisefta lndep. Sch. Disf., 95 S.W.2d 490, 493 (Tex. Civ.
App..-Beaumont      1936, writ ref d) (concluding that “said 3 per cent royalty OI interest is an interest in the 300 acres of
land and so taxable as real estate in the county where the land is located” and rejecting argument that royalty interest
payable only in money was interest in personal property taxable only in interest owner’s county of residence).

            5We assume for purposes   of this opinion   that the royalty interest owners have not tiled a request for joint
taxation.    See Tax Code $25.12.

          ‘56 TEX. RJR.3D Oil and Gas 4 496 at 283 (1987). See Brown v. Smith, 174 S.W.Zd 43.46 (Tex. 1943) (“An
oil and gas lease jointly executed by the owne.rs of hvo or more tracts of land owned in sever&y, with provision for
pooling OI sharing, on the basis of acreage, the royalties from oil or gas produced anywhere on the leased land, has the
effect of vesting all of the lessors, at least during the life of the lease, ‘with joint ownership of the royalty earned from
                                                                                                                 (continued...)


                                                             p.   2785
The Honorable      John Mann - Page 3                      (DM-490)




be jointly owned by all of the royalty interest owners. In that case, the two school districts would
each tax half of the income on all the royalty interests, and each school district would send a tax bill
to each royalty interest owner. If, however, the royalty interest owners are not joint tenants, then
each school district would tax all of the income on only those royalty interests located in the school
district and would send a tax bill only to those royalty interest owners. Because the determination
whether the royalty interest owners’ interests are jointly owned depends upon the terms of the
pooling agreement,7 its resolution is beyond the scope of an attorney general opinion.8

        In sum, a school district is entitled to assess ad valorem taxes against royalty interests in a
pooled gas unit based upon the location of the real property to which the royalty interests appertain
as opposed to the location of the well. Whether the school districts in the situation you present will
send tax bills to all or some of the royalty interest owners will depend upon the terms of the pooling
agreement.9




all fhe land in such block.’ The lease so executed is a conveyance by each lessor to each of the other lessors of an
undivided interest in the royalties. The joint ownership of the royalty interest in all of the land included in such lease
is created by the action of the several land owners in joining in the execution of the lease.“); see also Montgomery v.
Rittersbacher,  424 S.W.2d 210, 213 (Tex. 1968); Veal Y. Thomson,          159 S.W.2d 412, 476 (Tex. 1942); Kelln Y.
Brow&e, 517 S.W.2d 568, 571 (Tex. Civ. App.--Amarillo         1974, wit refd n.r.e.).

         ‘We have no information about the pooled gas unit at issue. The allocation of interests in the production of
some pooled units is governed by statllte and may be modified by the Texas Railroad Commission. See, e.g., Nat. Res.
Code 5 102.051, In other cases, the allocation of interests in the production of a pooled unit is controlled by contract.
Here, the owners of mineral interests in the 640 acre tract may have entered into a private pooling agreement.

          This office camot make findings of fact and does not construe contracts. See Attorney General Opinions
DM-383 (1996) at 2 (interpretation       of contract not appropriate function for opinion process), DM-192 (1992) at 10
(“This offlice, in the exercise of its authority to issue legal opinions, does not construe contracts.“), JM-697 (1987) at
6 (“review of contracts is not an appropriate function for the opinion process”).

          the first opinion request, RQ-995, asked whether school district B is entitled to recover from school dishict
A any improperly collected taxes. In his May 1998 letter, however, the former Wheeler County Attorney neither raised
nor briefed this issue and we do not address it here. See note 1 supra.



                                                          p.   2786
The Honorable   John Mann - Page 4              (DM-490)




                                       SUMMARY

                A school district is entitled to assess ad valorem taxes against royalty
           interests in a pooled gas unit based upon the location of the real property to
           which the royalty interests appertain as opposed to the location of the well.




                                              DAN     MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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