
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-93-00588-CV





Williamson County Appraisal District, Appellant


v.


Nootsie, Ltd. and State of Texas, Appellees





FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 90-320-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING






	Williamson County Appraisal District (the "District") appeals from an adverse
judgment rendered in a suit brought by Nootsie, Ltd. for judicial review of an order issued by the
District appraisal review board.  See Tex. Tax Code Ann. §§ 42.21-.42 (West 1992 & Supp.
1995) (the "Code").  We will reverse the trial-court judgment and render judgment as indicated
below.


THE CONTROVERSY

	Nootsie applied to the appraisal review board to have Nootsie's land in Williamson
County classified as "qualified open-space land" under the provisions of section 23.51(1) of the
Code.  See Code §§ 23.51(1), .54.  For ad valorem tax purposes, land classified as "qualified
open-space land" is appraised not at its market value but according to an income-capitalization
method, provided the result does not exceed market value.  Code § 23.52.  The board rejected
Nootsie's application, believing section 23.51(1) of the Code is unconstitutional to the extent it
purports to include in the definition of "qualified open-space land" any "land that is used
principally as an ecological laboratory by a public or private college or university."  It is
undisputed that Nootsie's land is used precisely for that purpose and is therefore entitled to the
classification of "qualified open-space land" unless section 23.51(1) is unconstitutional to the
extent the District claims.
	Nootsie sued the District for review of the board's rejection order.  The District
counterclaimed for a declaratory judgment that section 23.51(1) is unconstitutional on the ground
and to the extent claimed.  After proper service of notice, the attorney general of Texas intervened
and defended the constitutionality of section 23.51(1).  Upon stipulated facts, the trial court
adjudged the statute not unconstitutional, directed the District to grant Nootsie's application, and
awarded ancillary relief.  The District appealed to this Court.


DISCUSSION AND HOLDINGS

I.

	Article VIII of the Texas Constitution sets forth in sections one and two the norm
or standard for State taxation.  Section one requires that "[t]axation shall be equal and uniform";
section two directs that all real property "shall be taxed in proportion to its value."  See Tex.
Const. art. VIII, §§ 1, 2.  Taxation of real property is equal and uniform when it is based solely
on the market value of the property involved.  Lively v. Missouri, K. & T. Ry. Co., 120 S.W.
852, 856 (Tex. 1909).  Believing the market-value norm worked unfairly in the case of
"agricultural property," the legislature in 1978 proposed "a constitutional amendment relating to
ad valorem taxation of agricultural property."  Act of Aug. 8, 1978, Tex. H.J. Res. 1, § 1, 65th
Leg., 2d C.S., 1978 Tex. Gen. Laws 54 (the "resolution") (emphasis added).  The proposed
amendment would add to Article VIII of the Constitution a section 1-d-1, providing as follows:


(a)	To promote the preservation of open-space land, the legislature shall provide
by general law for taxation of open-space land devoted to farm or ranch
purposes on the basis of its productive capacity and may provide by general
law for taxation of open-space land devoted to timber production on the basis
of its productive capacity.  The legislature by general law may provide
eligibility limitations under this section . . . .

(b)	If a property owner qualifies his land for designation for agricultural use under
section 1-d of this article, the land is subject to the provisions of section 1-d
for the year in which the designation is effective and is not subject to a law
enacted under this section 1-d-1 in that year.


Id. § 2 (emphasis added).  (The existing section 1-d of Article VIII, referred to in paragraph (b)
of the proposed amendment, defined "[a]gricultural use" and provided for the taxing of such land
"on the consideration of only those factors relative to such agricultural use.").  Section 9 of the
resolution directed that the proposed amendment "be printed to provide for voting for or against
the proposition:  `The constitutional amendment providing for tax relief for . . . agricultural
land.'" Id. § 9 (emphasis added).  The people adopted the proposed amendment in an election held
November 7, 1978.  There can be no doubt that they believed the scope of the amendment was
limited to the two classes of land named in the amendment, agricultural land and timber land.
	Pursuant to the 1978 amendment, the legislature enacted Subchapter D of the Code,
being sections 23.51-.57.  To secure the taxation of "qualified open-space land" on the basis of
its productive capacity, section 23.52(a) of the Code provides that the appraised value of such land
shall be determined "using accepted income capitalization methods applied to average net to land,"
but the appraised value resulting from that method "may not exceed the market value as
determined by other appraisal methods."  Code § 23.52(a).
	To define the land eligible for the new appraisal method, the legislature provided
as follows in section 23.51(1) of the Code:


(1)	"Qualified open-space land" means land that is currently devoted principally
to agricultural use to the degree of intensity generally accepted in the area and
that has been devoted principally to agricultural use or to production of timber
or forest products for five of the preceding seven years or land that is used
principally as an ecological laboratory by a public or private college or
university.


Code § 23.51(1) (emphasis added).  The effect of the statutory definition is to specify three
different uses of land that may qualify as "open-space land" entitled to the new appraisal method
described in section 23.52(a).  They are:  (1) land devoted principally to agricultural use to the
degree of intensity indicated; (2) land devoted principally to the production of timber or forest
products; and (3) "land that is used principally as an ecological laboratory by a public or private
college or university."  Id.  The new appraisal method for all three is, of course, in derogation
of the constitutional norm or standard that real property shall be taxed according to its market
value.  The 1978 amendment authorized the derogation expressly as to land devoted to an
agricultural use and to timber production.  The issue before us is whether the 1978 amendment
also authorized, by implication, the new appraisal method for "land that is used principally as an
ecological laboratory by a public or private college or university."  We believe the 1978
amendment did not have that effect, as asserted by the District in its first point of error.
	Nootsie does not contend its property comes within the definition of section
23.51(1) because the property is devoted to agricultural use or to the production of timber or
forest products, the two uses authorized expressly in the 1978 amendment. (1)  Nootsie contends
rather that the legislature was authorized by the 1978 amendment to include a third class of
land--land used as an "ecological laboratory"--because such use of open-space land is also within
the objective of that amendment, as expressed in its introductory clause:  "To promote the
preservation of open-space land."  We reject this theory.
	"The Legislature may not authorize that which the Constitution prohibits."  Maher
v. Lasater, 354 S.W.2d 923, 925 (Tex. 1962).  Article VIII, sections 1 and 2 of the constitution
prohibit the appraisal of land, for ad valorem tax purposes, on any basis except market value. 
The effect of the 1978 amendment was to remove the prohibition as to two specific classes of
"open-space lands," that "devoted to farm or ranch purposes" and that "devoted to timber
production."  No branch of government is entitled to question the wisdom of the people in thus
limiting the removal of the prohibition to these two classes of land; their limitation may not be
enlarged or restricted further.  See Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943) (when
constitutional provision authorizes recovery of exemplary damages for wilful act, omission, or
gross neglect, recovery of exemplary damages for violation of statute may not be authorized);
Cramer v. Sheppard, 167 S.W.2d 147, 154 (Tex. 1943) (when constitution authorizes state office
holders to hold concurrently reserve-officer commissions in military and naval forces, they do not
vacate their state office on being ordered to active duty, absent any constitutional provision so
directing).
 Maher is also illustrative.  Article I, section 17 of the Constitution, prohibiting the
taking of property for public use without adequate compensation paid in advance, also prohibits
the public taking of property for private use.  Tex. Const. art. I, § 17.  The legislature enacted
a statute authorizing the public taking of private property for private use if applicants wished it
to be done and had no access to their property.  The court held the statute unconstitutional as
being repugnant to the constitutional prohibition against taking property for a private use.  Maher,
354 S.W.2d at 924-25.
	We believe, therefore, that the introductory clause of the 1978 amendment--"[t]o
promote the preservation of open-space land"--did not constitute an implied invitation to the
legislature to enlarge the two classes of land to any greater number because the additional classes
would also further the objective of promoting the preservation of open land, and thereby escape
the general constitutional prohibition against appraising land on a basis other than market value. 
It is beyond dispute that the power to amend the constitution resides exclusively in the body of
the people as an organized body politic; they have ultimate sovereignty and are the source of all
State authority, provided they act within the Constitution of the United States.  See Storrie v.
Cortes, 38 S.W. 154, 159 (Tex. 1896).  To permit the additional class of open-space land--land
devoted to use as an "ecological laboratory"--would be tantamount to holding that the legislature
itself may amend the constitution by adding such other classes of land as that body believes wise
and necessary to accomplish the constitutional objective of promoting the preservation of open-space land.  This turns the constitution on its head.  See Tex. Const. art. I, § 2.  We hold section
23.51(1) of the Code unconstitutional to the extent it purports to remove from market-value
appraisal open-space "land that is used principally as an ecological laboratory by a public or
private college or university."


II.

	At oral argument, we questioned whether the District possessed authority to
challenge the constitutionality of section 23.51(1) of the Code, an integral part of the statutory
scheme entrusted by the legislature to the District's administration.  See Aransas County Appraisal
Review Bd. v. Texas Gulf Shrimp Co., 707 S.W.2d 186, 196 (Tex. App.--Corpus Christi 1986,
writ ref'd n.r.e.) (tax assessors are proper parties to challenge constitutionality of tax-code
provisions); Colony Mun. Util. Dist. No. 1 v. Appraisal Dist., 626 S.W.2d 930, 932 (Tex.
App.--Dallas 1982, writ ref'd n.r.e.) (because rights of equal protection and due process of law
are vested only in persons, not political subdivisions, appraisal district may not challenge
constitutionality of tax-code provisions).  We are grateful to counsel for their resulting post-submission briefs on the question.
	We believe the District may challenge the constitutionality of section 23.51(1) of
the Code.  It is true as a general rule that government subdivisions and municipalities are not
"citizens" or "persons" who may sue to invalidate statutes on the basis of constitutional provisions
found within the bill of rights constituting Article I of the Texas Constitution.  Tex. Const. art.
I, §§ 1-29; see McGregor v. Clawson, 506 S.W.2d 922, 929 (Tex. Civ. App.--Waco 1974, no
writ); Harris County v. Dowlearn, 489 S.W.2d 140, 145 (Tex. Civ. App.--Houston [14th Dist.]
1973, writ ref'd n.r.e.).  Government subdivisions and municipalities may, however, assert the
unconstitutionality of a statute they believe violates a constitutional norm or principle existing
outside the bill of rights of Article I.  Durish v. Texas State Bd. of Ins., 817 S.W.2d 764, 767
(Tex. App.--Texarkana 1991, no writ); see, e.g., Love v. City of Dallas, 40 S.W.2d 20, 27 (Tex.
1931) (because Article VII, section 3 of the Constitution authorizes school taxes for educating
students residing within a school district, legislature may not impose upon the district an
obligation to educate non-resident students).  Article VIII of the Constitution, dealing with
taxation and revenue, is just such a norm or principle in our view.  In addition to the Code
provision, District officers are required by their duties to administer any applicable provisions of
the state and federal constitutions, including the mandate of Article VIII, sections 1 and 2 that real
property shall be taxed according to its market value as well as section 1-d-1 designating two
classes of property that are exceptions to that general rule.  These constitutional provisions are
limitations upon the power of the legislature to control its creatures--the appraisal districts--and its
supremacy over them.  When the officers of such districts believe the statutory directions of the
legislature conflict with the norms and principles of the Constitution, they "are entitled to have
their legal duties determined by declaratory judgment for only in this manner may well
intentioned, but unlawful, acts be avoided with certainty."  Industrial Accident Bd. v. Texas
Workmen's Compensation Assigned Risk Pool, 490 S.W.2d 956, 958 (Tex. Civ. App.--Austin
1973, no writ).  We hold accordingly and sustain the District's points of error.
	We therefore reverse the trial-court judgment and render judgment that section
23.51(1) of the Code is unconstitutional to the extent indicated above.  We order that Nootsie take
nothing by its claim against the District and affirm the order of the appraisal review board.

 
    					John Powers, Justice
Before Justices Powers, Jones and B. A. Smith
Reversed and Rendered
Filed:   June 7, 1995
Publish
1.        Cf. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820 (Tex. 1993); Hays County Appraisal
Dist. v. Robinson, 809 S.W.2d 328 (Tex. App.--Austin 1991, no writ); Riess v. Appraisal Dist.,
735 S.W.2d 633 (Tex. App.--Austin 1987, writ denied).


nd that is used principally as an ecological laboratory by a public or
private college or university."


II.

	At oral argument, we questioned whether the District possessed authority to
challenge the constitutionality of section 23.51(1) of the Code, an integral part of the statutory
scheme entrusted by the legislature to the District's administration.  See Aransas County Appraisal
Review Bd. v. Texas Gulf Shrimp Co., 707 S.W.2d 186, 196 (Tex. App.--Corpus Christi 1986,
writ ref'd n.r.e.) (tax assessors are proper parties to challenge constitutionality of tax-code
provisions); Colony Mun. Util. Dist. No. 1 v. Appraisal Dist., 626 S.W.2d 930, 932 (Tex.
App.--Dallas 1982, writ ref'd n.r.e.) (because rights of equal protection and due process of law
are vested only in persons, not political subdivisions, appraisal district may not challenge
constitutionality of tax-code provisions).  We are grat