Reversed and Rendered and Opinion filed June 12, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00064-CV

            ASHLAND INC. D/B/A VALVOLINE CO., Appellant

                                       V.

           HARRIS COUNTY APPRAISAL DISTRICT, Appellee

                   On Appeal from the 133rd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-08661

                                OPINION
      In this case, we are asked to determine whether Ashland Inc.’s motor oil,
grease, and gear oil are entitled to the ad valorem tax exemption available under
the Texas Constitution and Texas Tax Code section 11.251 for freeport goods.
Ashland contends the trial court erred in granting summary judgment in favor of
the Harris County Appraisal District (HCAD) and against Ashland on Ashland’s
claim that these products are not petroleum products ineligible for the freeport
exemption because they do not fall within the Tax Code’s definition of “petroleum
products” as the “immediate derivatives of the refining of oil or natural gas.” For
the reasons explained below, we reverse and render in favor of Ashland.

                    FACTUAL AND PROCEDURAL BACKGROUND

      The freeport exemption allows certain goods and products designated as
“freeport goods” to be moved through Texas without incurring any property tax,
but it does not extend to “oil, natural gas, and other petroleum products.” See Tex.
Const. art. VIII, § 1-j(a); Tex. Tax Code § 11.251. In turn, the Tax Code defines
“petroleum products” to mean “liquid and gaseous materials that are the immediate
derivatives of the refining of oil or natural gas.” See Tex. Tax Code § 11.251(j).
For purposes of administering and operating appraisal districts, the state
comptroller has provided a list of twenty-one products it considers to be the
“immediate derivatives of the refining of oil or natural gas” as that term is used in
Tax Code section 11.251. See 34 Tex. Admin. Code § 9.4201. Relevant here, the
list includes “lubricants,” but does not specifically identify motor oil, grease, or
gear oil. See id. § 9.4201(11).

      Ashland owns a facility in Harris County where it manufactures or acquires
and temporarily stores automotive and industrial products for export to customers
around the world under the Valvoline brand. Between 2009 and 2011, Ashland
filed applications with HCAD for the freeport exemption on its motor oil, grease,
and gear oil. HCAD approved Ashland’s 2009 application for the freeport
exemption on these products, but denied Ashland’s 2010 and 2011 applications.
Ashland protested the denials to HCAD’s appraisal review board. HCAD’s
appraisal review board also denied the exemptions, and Ashland appealed the
decision to the district court for de novo review. Ashland approximates it would
have saved about $250,000 had the freeport exemptions been granted.

      In the district court, the parties filed cross-motions for summary judgment
                                         2
on the issue of whether Ashland’s motor oil, grease, and gear oil are eligible for the
freeport exemption. Ashland argued that its products are not the “immediate
derivatives of the refining of oil or natural gas,” but instead are products made
from base oil and other chemicals which undergo complex and specific
manufacturing processes in special facilities that are not refineries. HCAD argued
that it is undisputed that base oil is a lubricant, and because motor oil is merely
base oil mixed with performance additives, it is likewise a lubricant and is
therefore specifically excluded from eligibility for the freeport exemption.1 Each
party objected to the other’s summary-judgment evidence, but the trial court
overruled all objections.

       In a final judgment signed on October 22, 2012, the district court granted
HCAD’s motion for summary judgment and denied Ashland’s motion for
summary judgment, ruling that Ashland’s motor oil, grease, and gear oil were not
entitled to a freeport exemption in the years 2010 and 2011. Ashland’s motion for
new trial and motion to modify the judgment were overruled by operation of law,
and Ashland timely appealed.

                                    ISSUES AND ANALYSIS

       In two issues, Ashland contends the trial court erred by granting HCAD’s
cross-motion for summary judgment and denying Ashland’s motion for summary
judgment on its claim that it is entitled to a freeport exemption for motor oil,
grease, and gear oil because these products are not the “immediate derivatives of
the refining of oil or natural gas.” Ashland also asserts that the trial court should
have sustained Ashland’s objections to two affidavits supporting HCAD’s


       1
         We note that both on appeal and at trial, both the parties and the trial court referred to
the three products at issue, bulk and packaged motor oil, gear oil, and grease, collectively as
“motor oil.”

                                                3
summary-judgment motion. By way of cross-issue, HCAD argues that the trial
court should not have considered Ashland’s expert’s opinion concerning the
meaning of “immediate derivatives” because it is unreliable and conclusory.

I.    Standards of Review

      We review the district court’s summary judgment de novo. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A traditional motion
for summary judgment is properly granted if the evidence shows that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfurt Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all
evidence favorable to the nonmovant and indulge every reasonable inference in the
nonmovant’s favor. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997).

      When, as in this case, both parties move for summary judgment, and the
district court grants one motion and denies the other, we consider all of the
summary-judgment evidence produced and determine all questions presented.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). If we
conclude that the district court erred, we render the judgment the district court
should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872 (Tex. 2000).

      Interpretations of constitutional and statutory provisions are matters of law
we review de novo. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d
838, 842 (Tex. 2009). In construing the Texas Constitution, as in construing
statutes, we rely heavily on the literal text and must give effect to the intent of the
makers and adopters of the provision in question. Id.; Doody v. Ameriquest
Mortgage Co., 49 S.W.3d 342, 344 (Tex. 2001). If a statute is worded clearly, we
                                          4
must honor its plain language, unless that interpretation would lead to absurd
results. Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 629 (Tex. 2013);
City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008).

II.   Summary of the Parties’ Arguments on the Meaning of “Immediate
      Derivatives of the Refining of Oil or Natural Gas”
      Ashland acknowledges that the Texas Constitution does not extend the
freeport exemption to petroleum products, but emphasizes that the Tax Code limits
the term “petroleum products” to those that are the “immediate derivatives of the
refining of oil or natural gas.” Ashland acknowledges that base oil is a lubricant
produced during the refining process that is, consequently, an immediate derivative
of the refining of oil or natural gas that is ineligible for the freeport exemption. But
Ashland submits that, unlike base oil, its products are not immediate derivatives
because they are produced after the refining process is complete, in a different
facility, using base oil and other ingredients that are subjected to separate
manufacturing processes. Ashland also argues that HCAD sought to controvert the
supporting testimony of Ashland’s expert, a chemical engineer, with affidavits of
HCAD’s own employees, who are unqualified to opine on Ashland’s products, and
that the trial court erred when it overruled Ashland’s objections to HCAD’s
evidence.

      HCAD responds that motor oil is merely base oil blended with performance
additives in a process that is not substantially different from the refining process
and therefore is also a lubricant that is an immediate derivative of the refining of
oil. According to HCAD, the mere fact that the additives are blended with base oil
at a different time or different location than a facility called a refinery does not
change the analysis. Further, HCAD contends, the opinion offered by Ashland’s
expert is not supported by the actual facts of this case, and her affidavit is


                                           5
inconsistent and contradictory. HCAD asserts that the affidavits of its employees
are admissible because HCAD acts through its employees to carry out its legal duty
to appraise property and administer tax exemptions; accordingly, the trial court
properly denied Ashland’s objections to them.

      A.     The parties’ supporting evidence concerning the meaning of
             “immediate derivatives of the refining of oil or natural gas.”
             1.    Ashland’s summary-judgment evidence.

      In support of its summary-judgment motion and in response to HCAD’s
cross-motion for summary judgment, Ashland presented the affidavits of Dr.
Frances Lockwood, Ashland’s senior vice-president of research and development
and a chemical engineer, and Glenn Franck, Ashland’s tax specialist. Franck’s
affidavit is primarily directed to the history of Ashland’s applications for the
freeport exemption for its products, the amount of taxes in dispute, and the
authentication of Ashland’s supporting documentation. HCAD does not challenge
the admissibility of Franck’s affidavit. Therefore, for purposes of the specific issue
presented, we primarily focus on Dr. Lockwood’s affidavit.

      Dr. Lockwood’s qualifications include a Ph.D. from Penn State University
and a license as a Professional Chemical Engineer in Kentucky. In her affidavit,
Dr. Lockwood opined that in the petroleum industry, and from a chemical
engineering standpoint, the term “immediate derivatives of the refining of oil or
natural gas” has a “specific and clear meaning.” According to Dr. Lockwood,
refining is “the process of purification of a substance or a form, in this case oil or
natural gas,” and immediate derivatives are “the immediate product of a next
preceding object or composition, that is[,] the immediate products of the refining
of oil or natural gas.” Dr. Lockwood further opined that “motor oil, grease, and
gear oil are not immediate derivatives of the refining of oil because they require

                                          6
further manufacturing processes beyond refining, including the inclusion of
chemicals and other additives, to produce a finished product.” Instead, according to
Dr. Lockwood, these products are considered “secondary derivatives” of the
refining of oil, much like other products made from petroleum that require further
manufacturing, such as paints, tires, inks, and resins.

       Dr. Lockwood explained that the process of refining oil and natural gas
begins with the distillation or fractionation of crude oils into separate hydrocarbon
groups, and that various refining processes are used to yield the products identified
in the comptroller’s list of twenty-one immediate derivatives. Dr. Lockwood
opined that, with some exceptions, the comptroller’s list presents the products in
descending order according to carbon chain and boiling point. She also attached
exhibits to support her testimony, including a flow chart illustrating the refining
process and the resulting product flows.

      Concerning the inclusion of “lubricants” in the comptroller’s list, Dr.
Lockwood testified that base oil is an immediate derivative of the refining of oil
and so is the type of lubricant referred to by the state comptroller. Dr. Lockwood
acknowledged that Ashland’s motor oil, grease, and gear oil are made with base
oil, as well as a number of other products and chemicals, but stated that these
chemicals and products are combined with base oil through manufacturing
processes separate from oil refining. Dr. Lockwood also testified that base oil is
not suitable for use in combustion engines, because it lacks the required oxidative
stability and antiwear and antifriction properties that motor oil contains. Further,
she opined, finished motor oil, grease, and gear oil cannot be separated into their
component parts merely by reheating them.

      Dr. Lockwood further testified that motor oil, grease, and gear oil do not
appear on the comptroller’s list and are not produced through the refining process

                                           7
at a refinery. Additionally, Dr. Lockwood stated that Ashland is not a refiner of oil
or natural gas, and Ashland’s Texas manufacturing and packaging facility is not a
refinery. Dr. Lockwood testified that Ashland’s gear oil goes through a
manufacturing process very similar to that of its motor oil. Dr. Lockwood also
explained that, although Ashland does not manufacture the grease it sells, grease is
manufactured after the refining process and Ashland may work with a
manufacturer to design a special grease. Further, she stated that Ashland purchases
grease as a finished and prepackaged product from third-party grease suppliers.
Thus, Dr. Lockwood opined that Ashland’s motor oil, grease, and gear oil are
“secondary derivatives” of the refining of oil, not immediate derivatives.

             2.    HCAD’s summary-judgment evidence.

      In support of HCAD’s cross-motion for summary judgment and response to
Ashland’s motion for summary judgment, HCAD presented affidavits of Grady
Graham, a review appraiser for HCAD and Harvey Chevalier, an appraiser and
civil engineer in HCAD’s business and industrial property division.

      Chevalier is a state registered professional appraiser and civil engineer who
has worked in HCAD’s Business and Industrial Property Division for sixteen
years. He is not a chemical engineer. In his affidavit, Chevalier stated that HCAD
initially denied Ashland’s application for the freeport exemption on his
recommendation. Chevalier also stated that he had reviewed the litigation file,
including Dr. Lockwood’s and Franck’s affidavits, and he disagreed with Dr.
Lockwood’s conclusion that mixing and blending base oil with additives qualifies
its motor oil for exemption. Chevalier opined that “[m]ixtures, like finished motor
oil, are not chemically combined. HCAD does not grant the freeport exemption
either on lubricant mixtures or blended motor gasoline containing additives.”
Chevalier also noted that if Dr. Lockwood’s conclusion were correct, then “a wide

                                         8
range of petroleum products which are refined, blended, and mixed would, for the
first time, also qualify for the exemption” and “HCAD does not approve freeport
exemptions for blended or mixed products including fuels and lubricants owned by
other companies.”

       Graham, who has been employed by HCAD in various positions since 1985,
is the HCAD employee primarily responsible for overseeing the litigation. Graham
is a State Registered Professional Appraiser, and has been employed as both a
review appraiser and the manager of the review appraisal section of HCAD.
Graham testified that he reviewed Dr. Lockwood’s affidavit, as well as information
and publications from Valvoline and other companies in the petroleum industry,
and determined that motor oil was included as a lubricant on the comptroller’s list
and therefore cannot be exempt from taxation. Graham opined that “[m]ixing or
blending additives with base oil is common to other products on the Comptroller’s
list . . . including aircraft and motor fuels which also contain additives – and are
not themselves eligible for exemption.” Further, Graham opined, “[R]efineries can
produce both unfinished (with few or no additives) and finished lubricants (with
performance-enhancing additives), such as motor oil. Lubricants can also be
produced in separate facilities.” Graham also testified that HCAD maintained a
consistent position, denying freeport exemptions for all items listed by the
comptroller as an immediate derivative, whether owned by Ashland or other
companies like Shell Oil Company, Exxon Mobil, Chevron, Phillips, or other
entities.

       Attached in support of Graham’s affidavit were copies of the applicable
constitutional, statutory, and administrative code provisions and three publicly
available webpages reflecting (1) an article discussing Shell’s fuels and the process
of making them, (2) a brief summary of ExxonMobil’s refining and downstream

                                         9
operations, and (3) an article titled, “The Evolution of Base Oil Technology
Industry Focus.” Graham later supplemented his affidavit to include additional
industry webpages, and in a second supplemental affidavit, Graham sought to
authenticate the web pages included in his earlier affidavits.

      B.     The parties’ objections to each other’s summary-judgment
             evidence and the trial court’s rulings.
      In the trial court, both parties raised objections to each other’s summary-
judgment evidence, but the trial court overruled all of the objections. On appeal,
Ashland complains that the trial court erred when it overruled Ashland’s objections
to HCAD’s evidence. We review the trial court’s evidentiary rulings for an abuse
of discretion. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). A
trial court abuses its discretion when it acts without regard to any guiding
principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). A
ruling that admits or excludes evidence will not result in reversible error unless the
excluded evidence is determinative of the case. Tex. Dep’t of Transp. v. Able, 35
S.W.3d 608, 617 (Tex. 2000); see Tex. R. App. P. 44.1(a)(1).

             1.    Ashland’s objections to HCAD’s evidence.
      Ashland argues that the trial court abused its discretion by denying its
objections to the affidavits of Graham and Chevalier. Ashland objected to these
affidavits on the grounds that neither Graham nor Chevalier were qualified by
education, training, or experience to testify about the process of refining oil, and
that their proffered opinions lacked a factual foundation. Ashland also complains
that Graham’s statement that “immediate derivatives” are those “including, but not
limited to” the twenty-one items on the comptroller’s list, when the list itself
contains no such broad language, should have been excluded as an opinion on a
pure question of law. Finally, Ashland complains that the various web pages on

                                          10
which Graham relied as support for his opinions “have little to do with the facts of
this case” and that such articles “certainly cannot be used to construe Texas law.”

       HCAD responds that it has a legal duty to appraise property and administer
tax exemptions and, as a political subdivision, it must act through its employees.
Graham and Chevalier are the HCAD employees assigned to evaluate and
determine HCAD’s position on the exemption Ashland seeks, and Ashland has not
challenged their qualifications to perform this function. Thus, HCAD argues, the
testimony of Graham and Chevalier is admissible. In response to Ashland’s
complaint that Graham mischaracterizes the comptroller’s list as nonexclusive,
HCAD argues that Graham’s opinion is admissible as a mixed question of law and
fact because his opinion applied the comptroller’s definition to the question
whether motor oil was an immediate derivative of the refining of oil or natural gas
ineligible for the freeport exemption.

       HCAD also argues that Ashland offers no legal basis for its sole objection
to the exhibits attached to Graham’s affidavit and does not identify any particular
statements in the exhibits it contends are objectionable.2 HCAD similarly argues
that Ashland points to no specific statements or opinions by Chevalier it contends
are without a factual foundation, and Ashland fails to present any analysis,
argument, or authority to support its single-sentence assertion that Chevalier’s
opinions lacked a factual foundation. Thus, HCAD asserts, Ashland has failed to
preserve this complaint for appeal and has inadequately briefed this issue.

       We conclude that it is unnecessary to decide whether Ashland preserved
error or the trial court abused its discretion in denying Ashland’s objections to the


       2
          HCAD notes that below, Ashland additionally objected to the exhibits to Graham’s
affidavit as unauthenticated, unverified, lacking a foundation, and consisting of unverifiable
hearsay, but Ashland does not pursue those objections on appeal.

                                             11
affidavits and attached exhibits of Graham and Chevalier. As discussed more fully
below, the complained-of affidavits and exhibits do not alter the outcome of our
analysis. To the extent the experts offer legal conclusions, however, their opinions
are of no import because the issue is one of statutory construction for the courts,
not the experts. See Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747
(Tex. 2012); see also Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56,
95 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“It is not the role of the expert
witness to define the particular legal principles applicable to a case; that is the role
of the trial court.”).

              2.     HCAD’s objections to Ashland’s evidence and Ashland’s
                     response.
       In the trial court, HCAD objected to several of Dr. Lockwood’s opinions as
legal conclusions. On appeal, however, HCAD does not directly challenge the trial
court’s denial of its objections; instead, HCAD asserts that it was not required to
object below because Dr. Lockwood’s opinion is conclusory and unreliable on the
face of the record and therefore is no evidence.

       Specifically, HCAD asserts that Dr. Lockwood supports her opinion that
motor oil is not an immediate derivative of the refining of oil or natural gas in part
based on her assertion that the comptroller’s list of immediate derivatives are in the
same order and contain the same products as an exhibit attached to her affidavit, an
opinion which HCAD contends is demonstrably incorrect. HCAD also complains
that Dr. Lockwood’s opinion is based in part on the fact that base oil is subjected to
additional “complex manufacturing processes,” but asserts that her descriptions of
refining and of the purportedly complex manufacturing process do not differ in any
significant way.

       Ashland responds that HCAD has waived its complaint that Dr. Lockwood’s

                                          12
affidavit is unreliable and conclusory, because HCAD fails to challenge another
affidavit of Dr. Lockwood which HCAD presented in support of its own motion
for summary judgment, and HCAD does not challenge Franck’s affidavit.
According to Ashland, these unchallenged affidavits reiterate the undisputed facts
that form the basis of Dr. Lockwood’s expert opinion; specifically, Ashland
imports raw materials into its manufacturing facility, which is not a refinery, and
then produces new products for expert via trade secret and patented technology. To
the extent that HCAD complains that Dr. Lockwood’s testimony and supporting
charts do not match the comptroller’s list, Ashland notes that Dr. Lockwood
conceded they did not match, and argues that this discrepancy fails to render her
testimony unreliable or conclusory.

       As explained below, we conclude that it is unnecessary to consider Dr.
Lockwood’s proffered technical definition and therefore we need not determine
whether that portion of her opinion is unreliable and conclusory. We further
conclude that Dr. Lockwood’s descriptions of the differences between the refining
of base oils and the post-refining manufacturing processes used to create Ashland’s
products are not conclusory or unreliable. Thus, we overrule HCAD’s cross-issue.

III.   Analysis

       This appeal involves a narrow issue of statutory construction: whether
Ashland’s products are entitled to an ad valorem property tax exemption because
they are not “the immediate derivatives of the refining of oil or natural gas.” See
Tex. Tax. Code § 11.251(j). Although the parties dispute the meaning of the
statutory language, neither contends the statute is ambiguous. When a statute’s
words are unambiguous and yield but one interpretation, the judge’s inquiry is at
an end, and we give such statutes their plain meaning without resort to rules of
construction or extrinsic aids. Combs v. Roark Amusement & Vending, L.P., 422

                                        13
S.W.3d 632, 635 (Tex. 2013).

      A.       The meaning of “immediate derivatives of the refining of oil or
               natural gas”
      Although the parties appear to agree that “derivative” means a substance or
product made from another substance or product, they argue different
interpretations of the word “immediate.” Ashland points to dictionary definitions
of “immediate” as “direct” and “acting or being without the intervention of another
object, cause, or agency.” See MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 620
(11th ed. 2005). Similarly, “immediate” has been defined as “[o]ccurring without
delay; instant,” “[n]ot separated by other persons or things,” or “[h]aving a direct
impact; without an intervening agency.” Sweed v. State, 351 S.W.3d 63, 69 (Tex.
Crim. App. 2011) (quoting BLACK’S LAW DICTIONARY (7th ed. 1999)).

      Ashland argues that motor oil, grease, and gear oil are not “immediate
derivatives” of the refining of oil or natural gas, even if they are lubricants,
because they are manufactured from many raw ingredients, after the refining
process is complete, in a facility separate from a refinery. Ashland also argues that,
in a technical context, chemical engineers in the petroleum field distinguish
products according to when, where, and how they are manufactured. In connection
with this argument, Ashland points to Dr. Lockwood’s opinion that Ashland’s
products are secondary derivatives of the refining process, not immediate
derivatives.

      HCAD argues that “immediate” as used in the phrase “immediate derivative
of the refining of oil” does not incorporate concepts of time or location of the
refining process, but instead reflects a “cause-and-effect or a chain-of-events
meaning.” See BLACK’S LAW DICTIONARY (9th ed. 2009) (“immediate” definition
3, “Having a direct impact, without an intervening agency”). In HCAD’s view,

                                         14
because the refining process of converting hydrocarbons into base oils is
“strikingly similar” to the blending of additives with base oil into the motor oil
mixture, the manufacturing process of making motor oil is not an intervening cause
or agency, but a continuation of the refining process yielding lubricants. In other
words, HCAD maintains that motor oil “is never not base oil.” HCAD also argues
that Dr. Lockwood’s proffered technical meaning of the subject phrase is based on
inconsistencies and contradictions in her affidavit and demonstrates that there is no
“specific and clear meaning” of the phrase.

      Undefined terms in a statute are typically given their ordinary meaning.
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). When
an undefined term has multiple common meanings, the definition most consistent
with the context of the statute’s scheme applies. State v. $1,760.00 in U.S.
Currency, 406 S.W.3d 177, 180–81 (Tex. 2013). Thus, the phrase “immediate
derivatives” must be read in light of the statute and its constitutional basis. See
Tex. Gov’t Code § 311.011(a) (directing that words and phrases be read “in
context”). Here, “immediate derivatives” modifies “of the refining of oil or natural
gas,” to refer to those products that result from the refining of crude oil or natural
gas. Tex. Tax Code § 11.251(j). Further, the phrase “immediate derivatives of the
refining of oil or natural gas” is intended to explain the Constitution’s reference to
“oil, natural gas, and other petroleum products.” Tex. Const. art. VIII, § 1-j(a).

      We conclude that, based on the common, ordinary definition of “immediate
derivatives” and the contextual use of those words, the Tax Code necessarily
means substances or products derived directly from the refining of oil or natural
gas, not new or different products manufactured from immediate derivatives after
the completion of the refining process. Although we agree to some extent with
both parties that “immediate derivatives” implies there is no “intervening object,

                                          15
cause, or agency,” we disagree with HCAD’s assertion that the word “immediate”
in the context of the Tax Code necessarily excludes consideration of time, location,
or the degree of separation from the refining process.

      Such considerations are all relevant, particularly given the historical purpose
of the freeport exemption, which is to promote economic development by
exempting from taxation products assembled, stored, manufactured, processed, or
fabricated in this state for distribution outside the state. See Tex. Const. art. VIII,
§ 1-j(a). For this reason, we need not consider Dr. Lockwood’s proffered technical
meaning or whether, as HCAD asserts, it is conclusory and unreliable. See Traxler,
376 S.W3d at 747 (“Regardless of the expert testimony, the issue before us is one
of statutory construction for the courts.”). And in any event, HCAD acknowledges
that Dr. Lockwood’s proffered technical definition of “immediate derivatives of
the refining of oil or natural gas” as “the immediate products of the refining of oil
or natural gas” does not differ in any meaningful manner from the common,
ordinary meaning of the words.

      B.     Ashland conclusively demonstrates that its products are entitled
             to the freeport exemption.
      Having determined the meaning of the statutory language, we turn to the
parties’ evidence in support of their respective provisions to determine whether, on
this record, either party conclusively established that Ashland’s motor oil, grease,
and gear oil are—or are not—new or different products manufactured from
immediate derivatives of oil or natural gas refining after the completion of the
refining process.

      Ashland distinguishes its motor oil, grease, and gear oil from base oil by
arguing that, unlike base oil, its products are manufactured after oil is refined, in
separate facilities, by combining a variety of ingredients with base oil and

                                          16
subjecting the mixture to additional manufacturing processes. As discussed above,
Ashland points to Dr. Lockwood’s affidavit to support its assertion. Dr. Lockwood
testifies, and it is undisputed, that Ashland is not a refiner of oil or natural gas, and
Ashland’s Texas manufacturing and packaging facility is not a refinery. Ashland
acquires raw materials from third-party suppliers, including refineries, located in
the United States and abroad. The raw materials are converted by manufacturing,
processing, or a combination thereof into “new and useful products” under the
Valvoline brand name.

      Dr. Lockwood further testified that motor oil, grease, and gear oil do not
appear on the comptroller’s list and are not produced through the refining process
at a refinery. According to Dr. Lockwood, Ashland’s motor oil is combined with
various products and chemicals, including base oil, through “specific and
complex” manufacturing processes separate from oil refining before being
packaged for sale to customers. Dr. Lockwood stated that Ashland’s gear oil goes
through a “very similar manufacturing process” to that of motor oil. For these
reasons, Dr. Lockwood opined, Ashland’s motor oil and gear oil are not immediate
derivatives of oil refining any more than products like WD-40, paints, or personal
care products also made with base oil could be considered immediate derivatives.
Dr. Lockwood also stated that grease, which Ashland does not manufacture but
purchases as a finished and prepackaged from third-party suppliers for distribution,
also is not an immediate derivative because it is manufactured for specific uses and
conditions after the refining process. Thus, Dr. Lockwood opined that Ashland’s
motor oil, grease, and gear oil are not immediate derivatives of the refining of oil.

      HCAD challenges Dr. Lockwood’s statements on several grounds. First,
HCAD culls statements from Dr. Lockwood’s affidavit explaining the process of
refining base oil and compares them to her description of the additional

                                           17
manufacturing processes used to produce motor oil to argue that “[t]he refining
process of converting hydrocarbons into base oils is strikingly similar to the
blending of additives with base oil into the motor oil mixture.” HCAD also asserts
that Ashland has offered no evidence to establish that the two processes differ in
any significant way. To further support its position, HCAD points to a page from a
Valvoline publication attached to one of Graham’s affidavits explaining that after
motor oil has been used in vehicles, it can be recycled or “re-refined” to yield base
oil. Therefore, HCAD argues, the manufacturing process of making motor oil is
not an intervening cause or agency, but merely a continuation of the refining
process yielding lubricants subject to taxation.

      We disagree that Ashland’s evidence reflects no significant distinction
between refining base oil and manufacturing motor oil as HCAD suggests. First,
Dr. Lockwood included numerous details in her affidavit of the separate
manufacturing process used to make motor oil. Dr. Lockwood stated that a variety
of chemicals purchased from third-party suppliers are used to manufacture motor
oil, including detergents and dispersants, buffers such as calcium, magnesium or
sodium detergents, polymeric additives, antiwear lubricants, antioxidant chemicals,
corrosion inhibitors, and materials to condition seals and reduce foaming.
Throughout the manufacturing process, the motor oil is tested to ensure that it
meets company and industry specifications before it is ultimately produced,
packaged, and sold. Dr. Lockwood explained that Ashland holds trade secrets and
patents for much of its technology related to the manufacture of motor oil and gear
oil, and information related to specific manufacturing processes is considered
confidential and proprietary. Dr. Lockwood also testified that base oil is not




                                          18
suitable for use in combustion engines, because it lacks the required oxidative
stability and antiwear and antifriction properties.3

       Dr. Lockwood acknowledged that some of the base oil used by Ashland is
derived from a process using recycled lubricants, and other base oils are purely
synthetic chemicals. Nevertheless, as explained in her affidavit, a significant
number of chemicals and other products must be added to the base oil, which must
then be subjected to specific manufacturing processes, to create the finished
products. Moreover, Dr. Lockwood testified that finished motor oil cannot easily
be separated into its component parts merely by reheating. She noted that in her
prior work she directed an analytical team that developed multiple procedures to
deconstruct motor oil, and “[i]t was quite difficult to separate out the polymers and
the additives from the finished motor oil.”

       Although HCAD suggests that motor oil essentially remains base oil unless
the manufacturing process results in a new compound that cannot be recycled or
“re-refined” into its component parts, HCAD cites no evidence or authority to
support this conclusion. Further, the statutory language of the Tax Code focuses
only on whether the product is an “immediate” result of refining. To accept
HCAD’s argument would read the word “immediate” out of existence by
concluding that all lubricants derived from oil are immediate derivatives of the
refining of oil or natural gas, no matter when, where, or how they are
manufactured.




       3
          Relying on a publication titled, “The Evolution of Base Oil Technology Industry
Focus,” attached to Graham’s affidavit, HCAD suggests that Dr. Lockwood’s statement is
incorrect because base oil was used as motor oil for many years, until it was discovered that
additives enhanced their performance. Nothing in the article, however, suggests that today’s
motor oil and base oil are interchangeable.

                                             19
      HCAD also seeks to discredit Dr. Lockwood’s assertion that motor oil,
grease, and gear oil are not the immediate products of the refining of oil because
they are not produced through the refining process at a refinery. HCAD points to
Graham’s affidavit, in which he states that “[R]efineries can produce both
unfinished (with few or no additives) and finished lubricants (with performance-
enhancing additives), such as motor oil.” Graham’s only support for this statement,
however, is a reference to a webpage from Shell generally describing the
manufacture of Shell’s fuels and lubricants, as well as a news release concerning
an agreement between Shell and Hyundai to extend their global lubricants
agreement to 2015. Although the exhibit reflects that Shell companies manufacture
and blend products for motoring and other purposes, and its products include motor
oils, nothing in the exhibit supports Graham’s specific statement.

      In a further attempt to controvert Ashland’s contention that its products are
not made in a refinery, HCAD seizes on Ashland’s argument that another exhibit
attached to Graham’s affidavit stands for the proposition that lubricants are
manufactured “downstream” from the refining of crude oil. HCAD argues that the
exhibit, a single webpage generally advertising ExxonMobil’s downstream
operations, actually supports HCAD’s position: “Our downstream operations refine
and distribute products derived from crude oil and other feedstocks” (emphasis
HCAD’s). Thus, HCAD argues, the use of “refine” by a major petrochemical
company in the context of downstream operations contradicts Dr. Lockwood’s
statement. However, this ExxonMobil publication, much like the Shell publication
just discussed, offers general information on its own products for purposes of
public consumption which are of little, if any, relevance to this case. Neither
ExxonMobil nor Shell are parties to this case, and neither publication in any way



                                         20
addresses whether their lubricants are eligible for the freeport exemption under
Texas law.

      HCAD also argues that any product mixed or blended with additives must be
“immediate derivatives” of the refining of oil because some of the products on the
comptroller’s list, such as motor and aviation gasoline, also are mixed and blended
with additives before being sold to consumers. In his affidavit, Graham avers that
motor gasoline, aviation gasoline, and lubricants may be mixed with additives
either at the refinery or after, but before they are sold and used for their intended
purposes. But adding a substance to various grades of gasoline or lubricants to
enhance those products is distinguishable from the process of mixing base oil with
raw ingredients in specialized manufacturing processes after the refining process is
complete to create new and different products. Moreover, Graham’s supporting
evidence does not state that motor oil is manufactured during the refining process.

      Finally, HCAD argues that, because motor oil “is never not base oil,”
adopting Ashland’s position would lead to absurd results, allowing a petrochemical
company to manufacture a freeport exemption where the legislature did not intend
one. Repeating its argument that the manufacturing process Dr. Lockwood
describes is similar to the treating and blending of the refining process, HCAD
argues that petrochemical companies will next argue that “base oils” are exempt,
because they are also treated and blended during the refining process and yield
various grades of base oils with different properties. HCAD also posits that
recognizing temporal and locational distinctions would allow refiners to delay
certain steps or conduct them at separate locations not directly adjacent to the
refineries and then argue that all but the products of the very first step of refining
are exempt from taxation.



                                         21
      But HCAD offers no evidence or authority to suggest that refiners will claim
that the products of refining are anything other than refining products. Further, the
undisputed evidence shows that the freeport exemption would save Ashland, a
leading manufacturer, a relatively small sum on its total tax bill—about
$250,000—and HCAD offers no evidence that granting the exemption would
seriously harm or erode the fiscal health of local government as it claims.
Enforcing the statute as written is also consistent with its purpose of promoting
economic development. See Tex. Const. art. VIII, § 1-j(a).

      In summary, the freeport exemption does not apply to petroleum products
that are immediate derivatives of the refining of oil or natural gas. It is undisputed
that base oil, which is produced through the refining process at a refinery, is an
immediate derivative of the refining process. Ashland’s evidence supporting its
summary-judgment motion demonstrates that once base oil is combined with
numerous raw materials in a manufacturing process using trade secrets and
patented technologies that are confidential and proprietary, in separate facilities
that are not refineries, a new product is created that is no longer an immediate
derivative of the refining of oil or natural gas.

      On this record, Ashland has conclusively demonstrated that its motor oil,
grease, and gear oil are entitled to the freeport exemption. Conversely, HCAD has
not conclusively demonstrated that Ashland’s products are ineligible for the
freeport exemption on the basis that the process used to make them is merely a
continuation of the refining process yielding lubricants.

      Therefore, based on the summary-judgment record in this case, the trial
court erred in granting HCAD’s cross-motion for summary judgment and denying
Ashland’s motion for summary judgment. We further overrule Ashland’s challenge



                                           22
to the trial court’s evidentiary rulings, and we conclude that HCAD’s challenges to
portions of Dr. Lockwood’s opinions are either irrelevant or incorrect.

                                   CONCLUSION

      We sustain Ashland’s first and second issues with the exception of its
challenge to the trial court’s orders denying its objections to HCAD’s summary-
judgment evidence, we overrule HCAD’s cross-issue, and we reverse and render
judgment in favor of Ashland.



                                              _____________________________
                                              Ken Wise
                                              Justice



Panel consists of Justices McCally, Busby, and Wise.




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