      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-15-00724-CV



                         Lower Colorado River Authority, Appellant

                                               v.

                         Burnet Central Appraisal District, Appellee


    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
           NO. 43,313, HONORABLE EVAN C. STUBBS, JUDGE PRESIDING



                                         OPINION


              The Lower Colorado River Authority (LCRA) sought review in the trial court of a

final order of the Burnet Central Appraisal District (BCAD) determining that LCRA’s Sunset Point

RV Park (the Park) was not exempt from ad valorem taxes. The trial court granted BCAD’s motion

for summary judgment, and LCRA filed this appeal. Because we conclude that the park is owned

and held only for public purposes and is therefore tax exempt, we will reverse the trial court’s

summary judgment.


                                       BACKGROUND

              The relevant facts are undisputed. LCRA is a governmental entity whose purposes

include, among others, “the control, storing, preservation, and distribution of the waters of the

Colorado River” and “the development of parks on lands owned or acquired by the authority.”

See Tex. Spec. Dist. Code § 8503.001; id. § 8503.004(s) (“The authority may develop and manage
parks, recreational facilities, and natural science laboratories and may promote the preservation of

fish and wildlife within the boundaries of the authority.”). The Park, which consists of approximately

63 acres on Lake LBJ, is owned by LCRA and leased to a private for-profit limited partnership (the

Lessee). Under the terms of the lease, the Park is “to be used for the development and operation

of a public commercial recreation facility and public park.” The Park includes such amenities as

RV connections, a public boat ramp, a swimming area, picnic areas, and a park store. The Lessee

manages the Park and collects entrance and use fees. In addition, part of the Park is taken up by

the structures of LCRA’s Wirtz Dam, and part of the Park is submerged most of the time.

               Throughout the Park’s history, LCRA has not paid property taxes on the Park,

claiming that the Park is exempt from taxation because LCRA is a governmental entity and the

Park is used for public purposes. See Tex. Const. art. XI, § 9 (“The property of counties, cities and

towns, owned and held only for public purposes . . . shall be exempt from forced sale and from

taxation . . . .”); Lower Colo. River Auth. v. Chem. Bank & Trust Co., 190 S.W.2d 48, 50 (Tex. 1945)

(holding that LCRA’s property devoted exclusively to public use is exempt from taxation under

article XI, section 9). However, in 2014, BCAD determined for the first time that the entire Park was

subject to taxation. LCRA filed a protest, and the BCAD review board issued a final order denying

the protest. LCRA challenged this order in the trial court, and the court granted summary judgment

in BCAD’s favor. This appeal followed.1




       1
            We review a trial court’s ruling on a motion for summary judgment de novo. Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). Traditional summary judgment is
proper only if the movant establishes that there is no genuine issue as to any material fact and that
it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

                                                  2
                                           DISCUSSION

                In its first appellate issue, LCRA contends that the trial court erred by granting

summary judgment in BCAD’s favor because the Park is exempt from taxation under article XI,

section 9 of the Texas Constitution and section 11.11(a) of the Texas Tax Code. See Tex. Const.

art. XI, § 9; Tex. Tax Code § 11.11(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.”). BCAD responds that the Park is not tax exempt

because it is not being used exclusively for public purposes. According to BCAD, the fact that a

private, for-profit partnership leases and manages the Park demonstrates that the Park is used at

least in part for private purposes.2

                The parties do not dispute the amenities that the Park offers, which are consistent

with LCRA’s statutory mandate and serve the public purpose of providing recreational opportunities

to visitors. See Tex. Spec. Dist. Code § 8503.004(s) (authorizing LCRA to “develop and manage

parks, recreational facilities, and natural science laboratories”); id. § 8503.023(a) (providing

that, with certain exceptions, “[LCRA] may not prevent the public use of its lands for recreational

purposes and fishing”). Moreover, at oral argument, BCAD conceded that if LCRA were to operate


        2
          The parties dispute whether the Park must be used exclusively for public purposes to be tax
exempt. Compare Tex. Const. art. XI, § 9 (exempting from taxation public property “owned and
held only for public purposes” and “devoted exclusively to the use and benefit of the public”)
(emphasis added), with id. art. VIII, § 2(a) (“the legislature may, by general laws, exempt from
taxation public property used for public purposes”) (emphasis added), and Tex. Tax Code § 11.11(a)
(“[P]roperty owned by this state or a political subdivision of this state is exempt from taxation if
the property is used for public purposes.”) (emphasis added). However, we need not resolve this
question because, for the reasons given below, we conclude that the Park is used exclusively for
public purposes.

                                                  3
the Park itself instead of leasing the property to a private entity, the Park would be used exclusively

for public purposes and therefore would be tax exempt. Therefore, the question before us is a narrow

one: Does the fact that LCRA leases the Park to a private for-profit entity to be operated as a public

facility and park cause LCRA to forfeit the Park’s tax exemption? We conclude that it does not.

               The legislature has explicitly authorized LCRA to negotiate contracts with any firm

or corporation “for the operation and maintenance” of its parks and recreational facilities. See id.

§ 8503.004(s). Here, the mechanism chosen by LCRA for operating the Park was a lease to a

private limited partnership. This lease does not grant the Lessee the ability to use the Park however

it chooses—instead, the lease limits the use of the property to “the development and operation of a

public commercial recreation facility and public park.” In other words, the lease specifically limits

the Park’s use to the public purposes authorized by statute. Therefore, even if the Lessee makes a

profit from managing the Park, the use to which the property is being put remains the same—serving

the public by offering recreational opportunities.

               In arguing that the Park is not tax exempt, BCAD relies heavily on a statement by this

Court that “Texas courts have consistently held that when public property is leased to a private party

for private commercial purposes, such property is not ‘used for a public purpose,’ and therefore, is

not entitled to a tax exemption.” City of San Antonio ex rel. City Pub. Servs. Bd. of San Antonio v.

Bastrop Cent. Appraisal Dist., No. 03-06-00081-CV, 2006 WL 2986248, at *3 (Tex. App.—Austin

Oct. 19, 2006, pet. denied) (mem. op.). In City of San Antonio, a municipally owned utility

company leased land containing lignite reserves to a private corporation. Id. at *1. The lease entitled

the private corporation to mine the lignite “for the exclusive use and benefit of [the corporation].”



                                                  4
Id. When the appraisal district revoked the public-property exemption for the leased land, the

utility company sued. Id. This Court affirmed the district court’s summary judgment in favor of the

appraisal district because the utility company “has leased the lands in question to [the corporation]

for private commercial purposes and is no longer using the lands in question for a public purpose.”

Id. at *4.

               We conclude that there is no conflict between our holding in City of San Antonio and

our decision today. In City of San Antonio, unlike in this case, the lease changed the fundamental

purpose to which the land was being put. That is, the lease allowed the corporation to mine the

lignite solely for its own private, commercial purposes, not for the use of the utility company.

Therefore, the land no longer necessarily served the public purpose of providing lignite to generate

energy for the utility company’s customers. See id. (explaining that utility company “ceased using

the land in question for any public purpose”). Here, LCRA’s lease did not change the purpose of

the Park—to provide recreational opportunities to visitors. Contrary to BCAD’s arguments, the

Park was not “leased to a private party for private commercial purposes,” see id., it was leased to a

private party for public purposes. Because the purpose of the Park remained the same regardless

of the entity managing the property, LCRA did not forfeit its tax exemption.

               BCAD also relies on two cases in which our sister courts held that a medical office

building owned by the Grand Prairie Hospital Authority was not entitled to a tax exemption because

the authority leased part of the building to private physicians for their own commercial use. See

Grand Prairie Hosp. Auth. v. Dallas Cty. Appraisal Dist., 730 S.W.2d 849 (Tex. App.—Dallas

1987, writ ref’d n.r.e.); Grand Prairie Hosp. Auth. v. Tarrant Appraisal Dist., 707 S.W.2d 281 (Tex.

App.—Fort Worth 1986, writ ref’d n.r.e.). However, nothing in these opinions indicates that

                                                 5
the private physicians were using the leased property for the same public purposes served by the

hospital authority. Instead, these opinions indicate that the lessees were using the property for their

own private commercial activities and not for any public purposes. See Dallas Cty. Appraisal Dist.,

730 S.W.2d at 851; Tarrant Appraisal Dist., 707 S.W.2d at 284.3 In contrast, the Lessee in this case

is undisputedly operating the Park for the same underlying purposes as LCRA would if LCRA were

operating the Park itself.

               Because we determine that the Park is being used exclusively for public purposes, we

conclude that the trial court erred by granting summary judgment in favor of BCAD. Accordingly,

we sustain LCRA’s first appellate issue.4


                                          CONCLUSION

               We reverse the trial court’s summary judgment and remand this case to the trial court

for further proceedings consistent with this opinion.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Justices Puryear, Goodwin, and Field

Reversed and Remanded

Filed: June 7, 2016

       3
          We leave for another day whether we agree with the construction and interpretation of the
constitutional provisions outlined in these opinions. See note 2, supra.
       4
         Because we may reverse the trial court’s summary judgment on the basis of LCRA’s first
issue, we need not address its remaining two issues.

                                                  6
