,
                           T
                                               OF      TEXAS

                                          AUSTIN.      T~~XAS         78711




    Honorable   Joe Resweber                                          Opinion   No.   H-      570
    Harris   County Attorney
    Harris   County Courthouse                                        Re:   Tax status of real property
    Houston,   Texas    77002                                         subject to condemnation    where,
                                                                      after condemnor    takes possession,
                                                                      taking is reversed   as arbitrary.

    Dear   Mr.     Resweber:

              You have requested      our opinion regarding  the interim  tax status of
    condemned    property  as to which,    after the condemnor   has taken possession,
    the taking is declared   invalid.

                 Article       7151, V. T. C. S.,     provides,       in pertinent    part:

                               . . . any. . . body politic    having the power of condem-
                               nation shall take over the possession            of property
                               under authority       of any law authorizing       it to condemn
                               said property,       or under an option to buy said property
                               from the owner,         or under an agreement         b,y th,e owner
                               to sell said property,         or shall comply with the laws
                               relating    to condemnation        to such an extent as to entitle
                               it to the possession        of said property,     or to constitute
                               a taking thereof      from the owner or person in whose
                               name title rests,        then such condemni.ng authority           shall
                               be considered       the owner of said property         for the purposes
                               of all taxation from the date of taking possession                thereof,
                               or from the date of its complying            with the condemnation          laws
                               to the extent that it is entitled to possession             of said property,
                               or from the date it has complied            with the condemnation          laws
                               to the extent that there has been a taking of said property
                               from the owner,         whichever     occurs first.

             In the present   Instance,  the Cit,y of Houston condemned      a tract of land
    and took possession   thereof   on March 19, 1969, after~ depositing    the amount of
    the Commissioners’     award into the registry    of the County Court,    pursuant to
    article 3268, V. T. C. S. On trial of the matter,      a jury found that the taking, was




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The Honorable      Joe Resweber       - Pag e 2      (H-570)



arbitrary   and capricious, and the original   owner was restored      to possession
in February,    1974. See City of Houston v. Hamons,       496 S. W. 2d 662 (Tex.
Civ. App. -- Houston73,       writ ref’d ‘n. r. e. ). Presently   at issue is the
tax status of the property  during the period d its possession      by the City of
Houston.

         Should it be determined    that the individual    retained    ownership    of the
property   for tax purposes   duxing, this interim   period,    he would be liable for
all taxes accruing   therein,  for any other result would have the effect of
granting tax-exempt     status to otherwise     non-exempt     private   property.,    In
order to qualify for the “public property”       exemption    of article   11, section 9
of the Texas Constitution,

                  [ i]t iii essentidl.:.   . that the’.property    be us.ed for
                  public purposes        but that in itself is not enough.      The
                  property     must;’ wholly apart from its use, be ‘public
                  property.    ’ In our opinion this means public owner-
                  ship, and the Texas courts have never held to the
                  contrary.      We accordingly        now hold that the clause in
                  question authorizes         the Legislature     to exempt only
                  nubliclv    owned property       used for public purposes.
                  Leander     Independent       Sdhool District    v. Cedar Park
                  Water Supply Corp.,           479 S. W.     2d 908 (Tex.   Sup.
                  1972~).

          The proviso      of article  7151 is framed     in the disjunctive:        the con-
demning authority ~must either “take over the possession                  of property       under
authority    of any law authorizing      it to’condemn      said property.     . . or.. .
comply with the laws rel~ating to condemnation.              . . ” (Emphasis       ;i-aaed).
Although the taking in this case was subsequently                reversed    because the
City failed to comply with. the laws relating           to condemnation,        the City
nevertheless      originally    took possession    of the land “under authority           of”
article   3260, which specifically       permits    possession      pending litigation.
Furthermore,        the City did !‘comply with the laws relating            to condemnation”
to the degree that it was able to secure posse~ss,ion during the interim                     period.
We are therefore        of the opinion t&hat the City of Houston complied              with the
proviso    of article    7151 to the extent that, between~March           19, 1969, +-id that
date in February        1974, on which the individual ,resumed possession,                 the City
must be “considered          the owner of said property        for purposes     of all taxation. ”

        We believe     that such ownership   for tax purposes   sufficiently    complies
with the standard promulgated      in Leander,    supra, which restricts      tax-exempt
status to “publicly    owned property   used form        purposes.    ‘I During the
interim  period,    the former  owner derived    no more benefit from,       and held no
              .




                                          p. 2553
    ,

,


        The Honorable    Joe Resweber         ‘- Page   3   (H-570)




        more legal right to t:he property    th,an he would have enjoyed had the jury
        subsequentl,y val.idated the condemnation.        Accordingl.y, we hold that, during
        this period,  the t:ax status of t.he rea,it:y In question was that of tax-exempt,
        city owned propert:y.

                                        SUMMARY
                                        -=

                          Where a grvernmental       unit L&es possession     of real
                          property   pursuant: to t:he con,demnation    laws,  and the
                          taking ,is subsequeni:Ey reversed,    t:he tax status of the
                          real,ty during the interim    period is t,hat of tax,-exempt
                          property   owned ‘by the condemning      governmental    unit.


                                                               Very   truly     yours,




                                                               Attmrney       General    of Texas

        APPROVED:




                                         _-
        C.   ROBERT    HEATH,     C-mm
               Opi,nion Commit:t.ee




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