     OFFICE OF THE ATTORNE”   GENERAL.   STATE OF TEXilS

     JOHN CORNYN




                                                  October 24,200O



The Honorable Robert June11                                Opinion No. JC-0299
Chair, Committee on Appropriations
Texas House of Representatives                             Re: Whether the qualification and granting of a
P.O. Box 2910                                              youth-development-association-use    tax exemption
Austin, Texas 78768-2910                                   under section 11.19 of the Tax Code constitute a
                                                           “change of use” for purposes of section 23.55 of
                                                           the Tax Code such that the agricultural “rollback”
                                                           tax is triggered (RQ-0245-JC)


Dear Representative     Junell:

         This request relates to a particular youth development association’s land that qualifies and
is appraised as open-space land used for agricultural purposes pursuant to article VIII, section l-d-l
ofthe Texas Constitution and subchapter D ofchapter 23 ofthe Tax Code; and, therefore, it is taxed
on its productive capacity rather than its market value. Under section 23.55 of the Tax Code,
agricultural open-space land is subject to an additional or “rollback” tax when its use is changed.
You ask whether qualification of the association’s open-space land for a youth-development-
association-use tax exemption under section 11.19 of the Tax Code by itself constitutes a change of
use for the purposes of the section 23.55 rollback tax when the land continues to be used for
agricultural purposes. Because a change ofuse triggering the rollback tax under section 23.55 occurs
only when the land is no longer used for agricultural purposes, we conclude in the negative.

         We understand the facts giving rise to your request to be as follows: The Conch0 Valley
Council, Inc. (“Council”), Boy Scouts of America, is a youth development association under section
 11.19(d) of the Tax Code. The Council owns an 8,059-acre tract devised to it “to provide a
permanent camp and income for [the Council] and such income will be used for the improvement,
maintenance and operation of [a separate 300.acre tract on which the Council’s permanent camp
ground is located].“’ The Council leases the surface of the 8,059-acre tract to area ranchers for
livestock grazing and hunting purposes. Until 1998, theMemud County Appraisal District appraised
the tract as open-space land based on its principal use for farm and ranch purposes. In 1998, the
Council unsuccessfully sought a complete exemption from taxation of the tract under section 11.19
of the Tax Code, believing that the surface lease for agricultural purposes was incidental to the



        ‘Letterfrom Honorable Robert Junell, Chair, Committee on Appropriations,Texas House of Representatives,
to Honorable John Comyn, Texas Attorney General at 2 (June 8,200O)(on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable     Robert June11 - Page 2                   (X-0299)




tract’s use for youth development purposes. In 1999, the Council tiled applications for both open-
space land appraisal-based       on principal use of the land for agricultural purposes-and          tax
exemption under section 11.19-based       on principal use ofthe land for youth development purposes.
The appraisal district denied the section 11.19 exemption, but granted the open-space land valuation
appraisal application. On appeal, however, the Menard County Appraisal Review Board granted the
section 11.19 tax exemption. Because the land qualified for the section 11.19 tax exemption, the
appraisal district determined that a change in use of the land had occurred triggering the rollback tax.
The Council appealed the rollback tax determination to the appraisal review board, but ultimately
settled its dispute with the appraisal district: the Council withdrew its claim for a section 11.19 tax
exemption; the appraisal district agreed to again appraise the land as open-space land; and the
appraisal district rescinded the rollback tax. The Council, however, may seek the section 11.19 tax
exemption again in the future. See Request Letter, supra note 1, at l-3; Appraisal District Brief, note
2, at l-2.* You specifically ask:

                 Would the eligibility of the ranch for exemption from taxation under
                 Section 11.19, Property Tax Code, and the granting of such
                 exemption by the Menard County Appraisal District, in and of itself,
                 constitute a change of use under Section 23.55, Property Tax Code,
                 such that the “rollback” tax is triggered, even though the ranch
                 continues to be used for farm and ranch purposes?

Request Letter, supra note 1, at 1 (italics in original).

         We begin by briefly reviewing the open-space land tax statutory scheme. Generally, all
taxable property is appraised at its market value. See TEX. CONST. art. VIII, 5 1; TEX. TAX CODE
ANN. § 23.01 (Vernon Supp. 2000). Article VIII, section l-d-l of the Texas Constitution and
subchapter D of chapter 23 of the Tax Code allow for appraisal of qualifying agricultural land for
property tax purposes on the basis of its productive capacity rather than its market value. See TEX.
CONST. art. VIII, 5 l-d-l (Vernon 1992 & Supp. 2000); TEX. TAXCODEANN. $5 23.51- .57 (Vernon
Supp. 2000). The special valuation reduces the property taxes on qualifying land.’ To constitute
“qualified open-space land,” the land must be “currently devoted principally to agricultural use“ to



        2Brieffrom Roy L. Armstrong, McCreary, Veselka, Bragg & Allen, P.C., to Honorable John Comyn, Texas
Attorney General (July 20,200O) (on file with Opinion Committee) [hereinafterAppraisal District Brief].

     ‘See State Property Tax Board, Manual for the Appraisal of Agricultural Land at 1 (1990) [hereinafter
MANUAL].

        4Agricu1tora1
                    use includes, but is not limited to, the following activities:

                 cultivating the soil, producing crops for human food, animal feed, OIplanting seed
                 or for the production of fibers; floriculture, viticulture, and horticulture; raising or
                 keeping livestock; raising or keeping exotic animals for the production of human
                                                                                                            (continued...)
The Honorable   Robert June11 - Page 3                 (X-0299)




the degree of intensity generally accepted in the area and that has been devoted principally to
agricultural use     for five of the preceding seven years    .” TEX. TAX CODE ANN. 5 23.51(a)
(Vernon Supp. 2000) (footnote added). Ifthe land is used for several purposes, the primary or most
important use must be agricultural. Id.; Tarrant Appraisal D&t. v. Moore, 845 S.W.2d 820, 823
(Tex. 1993); MANUAL,Supra note 3, at 8.

         When the use of qualified open-space land is changed, section 23.55 of the Tax Code
imposes an additional tax in an amount equal to the difference between the taxes paid during the past
five years and the taxes that would have been due during that period had the land been appraised at
its market value. See TEX. TAX CODE ANN. § 23.55(a) (Vernon Supp. 2000). The additional tax is
a penalty for taking the land out of agricultural production and is referred to as a “rollback tax”
because it recaptures the taxes the owner would have paid had the property been taxed at its market
value. Resolution Trust Corp. v. Tarrant County Appraisal Dist., 926 S.W.2d 797, 804-05 (Tex.
App.-Fort Worth 1996, no writ); MANUAL, supra note 3, at 31. Change of use triggering the
rollback tax occurs when the use of the land changes from an agricultural use to a nonagricultural
use; cessation of agricultural use, thus, constitutes change of use for rollback tax purposes.
Resolution Trust Corp., 926 S.W.2d at 800. No change ofuse occurs ifthe land continues to be used
for agricultural purposes even though the land may no longer qualify for open-space land appraisal.
See Tex. Att’y Gen. Op. No. JM-667 (1987) (concluding that no rollback tax may be imposed when
land fails to qualify for special valuation but is still in agricultural use).

         This interpretation of change of use in section 23.55(a) comports with its administrative
construction.   See Tarrant Appraisal Dist., 845 S.W.2d at 823 (stating that construction of statute
by administrative agency charged with its enforcement is entitled to serious consideration if it is
reasonable and does not contradict plain language). Pursuant to the authority granted in section
23.52(d) of the Tax Code, the Texas Comptroller of Public Accounts has promulgated rules
regarding appraisal of open-space land that are contained in its MANUAL. The rules provide that “[a]
change of use is a physical change. The owner must stop using the land for agricultural purposes.”
MANUAL, supra note 3, at 3 1. The rules further provide that if the land continues to be used for
agricultural purposes, it is not subject to the rollback tax:

                        If the owner continues to use the land for agriculture but does
                not maintain the degree of intensity typical for the area, the land may
                lose its eligibility for l-d-l appraisal without suffering a rollback.
                Reduced intensity that results from the owner’s free choice will cause
                a loss of agricultural appraisal. [ 1. If the land remains in agricultural




                food or of fiber, leather, pelts, or other tangible products having a commercial
                value; and planting cover crops or leaving land idle for the purpose ofpalticipating
                in any governmental program OInormal crop or livestock rotation procedure.

TEX.TAXCODEANN.5 23.51(Z)(Vernon Supp. 2000)
The Honorable Robert June11 - Page 4               (X-0299)




                use, however, neither kind of reduction [by choice or necessity] will
                trigger a rollback.

Id. at 31-32.

         Based on the foregoing judicial and administrative construction of section 23.55(a), unless
the Council’s land is no longer used for agricultural purposes, i.e., taken out of agricultural
production, there is no change of use triggering the rollback tax. You advise us that the Council’s
land continues to be used for farm and ranch purposes. Request Letter, supra note 1, at 1, 3.

        We consider whether qualifying for a youth-development-association-use       tax exemption
under section 11.19 of the Tax Code, nonetheless, entails a change of use of the land as a matter of
law. While land qualifying for open-space appraisal and the section 11.19 tax exemption is
conceptually problematic, we conclude that the section 11.19 tax exemption qualification does not
effect a section 23.55 change of use.

         Under section 11.19(a) ofthe Tax Code, an association that qualities as a youth development
association is entitled to exemption from taxation of:

                (1) the tangible property that:

                    (A)   is owned by the association;

                    (B) except as permitted by Subsection (b), is used exclusively
                by qualified youth development associations; and

                    (C)   is reasonably necessary for the operation of the association.

TEX. TAX CODE ANN. 5 11.19(a)(l) (Vernon Supp. 2000). Subsection (b) provides that “[ulse of
exempt tangible property by persons who are not youth development associations            does not result
in the loss of an exemption      if the use is incidental to use by qualified associations and benefits
the individuals the associations serve.” Id. 5 11.19(b).

         To qualify for a section 11.19 tax exemption, the land must be used exclusively by the
Council and must be reasonably necessary for its youth development operation.                See Texas
Conference Ass’n of Seventh-Day Adventists v. Leander Indep. Sch. Dist., 669 S.W.2d 353 (Tex.
App.-Austin      1984), aJj”‘din part, rev’d in part on other grounds, 679 S.W.2d 487 (Tex. 1984)
(noting that statute necessarily implies that there must be a nexus between use of property and
activity that qualities institution for exemption).    Incidental use by others, i.e., the area-rancher
lessees, that benefits the boy scouts served by the Council is permitted. You ask us to assume “that
(i) the lessee[s’] use of the Boy Scout Ranch is for farm and ranch purposes[,] and (ii) the lessee[s’]
use is incidental to BSA’s use of the Boy Scout Ranch such that the Boy Scout Ranch qualifies for
exemption under §[] 11.19, Property Tax Code[.]” Request Letter, supra note 1, at 4. Neither of
The Honorable Robert June11 - Page 5                (X-0299)




these assumptions is necessary to the legal question you pose: whether qualification of the
association’s open-space land for a youth-development-association-use  tax exemption under section
 11.19 of the Tax Code by itself constitutes a change of use for the purposes of the section 23.55
rollback tax when the land continues to be used for agricultural purposes. In order to answer this
question, we need not and do not decide whether the land qualifies for open-space land appraisal
under chapter 23 of the Tax Code or complete tax exemption under section 11.19 of the Tax Code.

        It is difficult to conceptually reconcile that land used principally for the lessees’ agricultural
purposes-meaning          other uses are incidental--can      simultaneously be exclusively used by the
Council-meaning         the lessees’ agricultural use is incidental-for   youth development purposes. Cf:
Tarrant AppraisaZDist., 845 S.W.2d at 823 (stating that land used forrecreational purposes may still
receive open-space designation so long as land is principally used for farm or ranch purposes);
MANUAL, supra note 3, at 8 (if land is used for more than one purpose, most important or primary
use must be agricultural); see also Appraisal District Brief, supra note 2, at 2 (“It is logically
impossible for land to be used principally for a lessee’s agricultural operations and, at the same time,
to be used exclusively by [a] youth-development         association[] for [its] youth development activities
with agriculture use being merely incidental,           .“). However, this conceptual difficulty does not
change or negate the fact that when the land continues to be used for agricultural purposes, it has not
been taken out of agricultural production. Qualification of land under section 11.19 does not effect,
as a matter of law, a change in agricultural use when in fact there is no such change. Accordingly,
the section 11.19 tax exemption does not as a matter of law constitute a change of use for the
purposes of the section 23.55 rollback tax.
The Honorable   Robert June11 - Page 6          (JC-0299)




                                       SUMMARY

                        Qualification of agricultural open-space land for a youth-
                development-association-use    tax exemption under section 11.19 of
                the Tax Code does not itself constitute a change of use for purposes
                of the rollback tax under section 22.53 of the Tax Code, when the
                land continues to be used for agricultural purposes.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
