                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                   May 27, 2011



The Honorable Jeff Wentworth                               Opinion No. GA-0861
Chair, Select Committee on
   Open Government                                         Re: Requirements for real property to qualify as
Texas State Senate                                         an "ecological laboratory" under section 23.51,
Post Office Box 12068                                      Tax Code (RQ-0934-GA)
Austin, Texas 78711-2068

Dear Senator Wentworth:

        You ask whether land qualifies as "an ecological laboratory, as this term is used in ... Tax
Code Section 23.51, if a university outlines and implements an ecological laboratory research plan
for the property and produces a related annual report[.],,1

        While most Texas real property is taxed based on market value, the Texas Constitution
allows for open-space land devoted to farm, ranch, or wildlife management purposes to be taxed
based on its "productive capacity." TEx. CONST. art. vrn, § I-d-l(a); Nootsie, Ltd. v. Williamson
Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). The Legislature has defined "qualified
open-space land" to include, among other things, "land that is used principally as an ecological
laboratory by a public or private college or university." TEx. TAX CODE ANN. § 23.51(1) (West
Supp. 2010). You explain that appraisal districts have historically designated land as an ecological
laboratory "based on a property-specific ecolab performance report or letter from a university," but
that some appraisal districts "no longer maintain this practice." Request Letter at 1. You therefore
ask what the requirements are for land "to be certified as exempt under the ecolab designation." [d.

       The Legislature has not provided a definition for the term ecological laboratory . However,
in upholding the constitutionality of Tax Code subsection 23.51(1) against a facial challenge, the
Texas Supreme Court suggested that an ecological laboratory must be "devoted to the furtherance
of farming and ranching purposes" in order for an ecological laboratory designation to comply with
Texas Constitution article vrn, section I-d-l. Nootsie, 925 S.W.2d at 663 (suggesting that studies
concerning the preservation and enhancement of native grasses for grazing purposes would promote



        'Letter from Honorable Jeff Wentworth, Chair, Select Committee on Open Government, Texas Senate, to
Honorable Greg Abbott, Attorney General of Texas at2 (Nov. 23, 2010), https:llwww.oag.state.tx.lls/opiniindex_rq.shtml
("Request Letter").
The Honorable Jeff Wentworth - Page 2            (GA-0861)




ranching and therefore qualify). The statute requires that to obtain an ecological laboratory
designation, the land must be used "principally" for that purpose "by a public or private college or
university." TEX. TAX CODE ANN. § 23.51(1) (West Supp. 2010).

        To have land appraised as an ecological laboratory, the owner of the land "must file a valid
application with the chief appraiser," using a form "adopted by the Comptroller of Public Accounts."
 Id. § 23.54(a) (West 2008) ("Application"); 34 TEX. ADMIN. CODE § 9.402 (2011). "The chief
appraiser shall determine separately each applicant's right to have his land appraised" as an
ecological laboratory. TEX. TAX CODE ANN. § 23.57(a) (West 2008) ("Action on Applications").
We find nothing in the Tax Code to suggest that the research plans and annual reports to which you
refer must be used by an appraiser to certify such a designation. However, nothing in the Tax Code
prevents a chief appraiser from using those documents to grant an ecological laboratory exemption.

        A university ecological laboratory research plan and related annual report could support an
ecological laboratory designation if they prove that the land is used as constitutionally and statutorily
required. The Legislature has instructed chief appraisers to consider "the application and all relevant
information" before determining whether land qualifies for the exemption. Id. § 23.57(a). Thus, the
chief appraiser must evaluate the claimant's application and any additional relevant information to
determine whether the designation will apply in a specific instance.
The Honorable Jeff Wentworth - Page 3         (GA-0861)




                                      SUMMARY

                      Nothing in the Tax Code suggests that a chief appraiser is
              required to rely upon a university ecological laboratory research plan
              and related annual report to qualify land as an ecological laboratory
              under Tax Code section 23.51. However, nothing in the Tax Code
              prohibits the chief appraiser from relying on these materials to make
              his determination. The chief appraiser must evaluate the claimant's
              application and any additional relevant infonnation to determine
              whether the designation will apply in a specific instance.




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for, Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
