                             QBffice of the flttocnep   &neral
                                       .&ate of lltexae
DAN MORALES
 ATTORNEY
       GENERA,.                             February 28, 1997

      The Honorable Warren Chisum                   Opinion No. DM-432
      Chair, Environmental Committee
      Texas House of Representatives                Re: Whether Tax Code section 11.23(c),
      P.O. Box 2910                                 which provides a tax exemption for the
      Austin, Texas 78768-2910                      tangible property of the Nature Conservancy
                                                    of Texas, Inc., is constitutional (RQ-829)

      Dear Representative Chisum:

              Tax Code section 11.23(c) provides a tax exemption for the Nature Conservancy
      of Texas, Inc. (the “‘Nature Conservancy”) in the following terms: “The Nature
      Conservancy of Texas, Incorporated, is entitled to an exemption from taxation of the
      tangible property it owns if the property is not held for gain, as long as the organization is
      a nonprofit corporation as defined by the Texas Non-Profit Corporation Act.” You ask
      whether there is any constitutional basis for this exemption and whether this exemption
      may be claimed or granted ifit has no constitutional basis.

                Au real and tangible personal property in Texas is taxable unless exempt by statute
      as required or permitted by the Texas Constitution. Tex. Const. art. VIII, 5 l(b); Tax
      Code $ 11.01. Article VIII, section 2(a) of the Texas Constitution provides that the
      legislature “may, by general laws, exempt from taxation [property owned by] .
      institutions of purely public charity.” A brief submitted on behalf of the Nature
      Conservancy contends that section 11.23(c) is authorized by article VIII, section 2(a). We
      do not reach the Nature Conservancy’s assertion that it qualifies as an institution of purely
      public charity and that its tax exemption is therefore authorized by article VIII, 2(a)
      because, for the reasons explained below, we believe that section 11.23(c) of the Tax
      Code is not a “general law” authorized by article VIII, section 2(a) and that the statute
      runs afoul of another constitutional provision - article III, section 56, which prohibits the
      legislature from enacting local or special laws.

              We believe a court would conclude that section 11.23(c) of the Tax Code is a
      “special law.” The definition of the term “special law” and the distinction between a
      “special law” and a “local law” are important to our analysis. The Texas Supreme Court
      recently defined these terms and explained the difference between them in a case involving
      a law applicable to a particular municipal utility diict:

                While the terms “local law” and “special law” have at times been
                used interchangeably, a local law is one limited to a specific
                geographic region of the State, while a special law is limited to a
The Honorable Warren Cbisum - Page 2             (DM-432)




           particular class of persons by some characteristic other than geo-
           graphy. See 1 GEORGED. BRADEN,‘THECONSTITUTION              OF THE
           STATEOF TEXAS: AN ANNOTATED         AND COMPARATIVE      ANALYSIS
           273-277 (1977).

MclpI Run at Austin Mm. Util. Dist. v. Monaghan, 93 1 S.W.2d 941, 945 (Tex. 1996)
(Y4aple Run”); see also Clark v. Finley, 54 SW. 343, 345-46 (Tex. 1899) (local law is
one the operation of which is con&d to tixed part of territory of state); Vincenr v. Srare
ex rel. g@&rrzf, 235 S.W. 1084, 1086 (Tex. Comm’n App. 1921, judgm’t adopted) (“A
local act is an act applicable only to a particular part of the legislative jurisdiction. A
special or private act is a statute operating only on particular persons or private
concerns.“).

        Section 11.23(c) provides a tax exemption for the tangible property of the Nature
Conservancy alone; it does not describe a generic class that would include the property of
the Nature Conservancy and any other organization like it. Section 11.23(c) is a special
law in the classic, most obvious sense.t We are not aware of any case law suggesting that
article VIII, section 2(a) (or any other constitutional provision) authorixes this tax
exemption by special law. In sum, we believe it very likely that a court would conclude
that because section 11.23(c) of the Tax Code names a specitic, private entity, the “Nature
Consetvancy of Texas, Ineorporated,“s it is a special law and not a “general law”
authorized by article VIII, section 2(a) of the Texas Constitution.

        Furthermore, we believe section 11.23(c) of the Tax Code runs afoul of article III,
section 56 of the Texas Constitution, which spe&cally prohibits the legislature, “except
as otherwise provided in this Constitution,” t?om enacting a local or special law
authorizing the exemption of property from taxation.

                The purpose of Section 56 is to “prevent the granting of special
           privileges and to secure uniformity of law throughout the State as far
           as possible.” [Miller v. El Paso Cotmry, 150 S.W.2d 1000, 1001
           (Tex. 1941).] In particular, it prevents lawmakers from engaging in
           the “reprehensible” practice of trading votes for the advancement of
           personal rather than public interests. Id.




        ‘As Braden states, “The term ‘special law’shouldbe.used only for a law that applies to a
segmentof the state--its people,its insthtions, its economy-in somesenseotherthangeographical.An
obviousexampleis a law grantingJohnDoe a divorce. . . or a lawgrantinga corporatecharterto Tom,
Dick,andHanyto operatean employment        service.” 1 GEORGE D. BRALEN, THECoNSlTNllON OF THE
STATE OFTEXAS: AN ANNOTA~D m        COMPARA~     ANALYSIS277 (1977).

        zTax Code 5 11.23(c),




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The Honorable Warren Chisum - Page 3           (DM-432)




Mcqole Run, 931 S.W.2d at 945. We have been able to locate very few cases addressing
statutes singling out a particular, named private person or entity for a special benefit or
special treatment. The cases we have found, however, conclude that such statutes are
unconstitutional. See, e.g., Sfate Highway Dep’f v. Go&am, 162 S.W.2d 934, 937 (Tex.
 1942) (holding that statute waiving immunity to suit to benefit particular, named individual
violated equal protection guarantee, Tex. Const. art. I, 5 3, and was special law in
violation of art. III, $56); City of &anAntonio v. YoungMen’s Chrisfim Ass’n, 285 S.W.
844 (Tex. Civ. App.--San Antonio 1926, writ refd) (striking down special tax exemption
for particular named groups on basis that exemption was not permitted by Tex. Const. art.
VIII, $2, and that violated art. III, $56). Lie the statutory tax exemption for the Young
Men’s Christian Association and the Young Women’s Christian Association3 that the
court struck down in Young Men’s Christian Association, section 11.23(c) violates the
prohibition in article III, section 56 because it “applies to an individual of a class and not
to all of a class,” 285 S.W. at 846. For this reason, we believe it is quite likely that a
court would conclude that section 11.23(c) is a special law in violation of article III,
section 56. Cf: id. at 847.*

        The Nature Conservancy contends that section 11.23(c) of the Tax Code is not a
local or special law because it has statewide effect relating to matters of general interest,
relying upon Lower Colorado River Authority v. McGraw, 83 S.W.Zd 629 (Tex. 1935).
In that case, the Texas Supreme Court concluded that a provision exempting bonds of the
Lower Colorado River Authority (“LCRA”) from taxation was not a local or special law
because although the legislation applied to a specific geographic area, the legislation
operated upon a subject in which the state at large was interested.             The Nature
Conservancy also relies upon Stephensen v. Wood, 34 S.W.2d 246 (Tex. 1931), a case
involving a challenge to fishing restrictions in certain coastal waters, for the proposition
that natural resource preservation has statewide significance.

       In our opinion, Lower Colorado River Authority is inapposite because the court
analyzed the tax exemption as a local rather than a special law:

          mt is settled that a statute is not local or special, within the meaning
          of this constitutional provision, even though its enforcement is
          confined to a restricted area, if persons or things throughout the state
          are at&ted thereby, or if it operates upon a subject that the people at
          large are interested in. [Stephensen v. Wbod, 34 S.W.2d 246 (Tex.
          1931).] An examination of this act convinces us that it operates
          upon a subject that the state at large is interested in. In tict, the


       3Hereinafter
                 cokctivelyreferred
                                  to as the “YMCA”

       *BecaoseWCbelievethatTax code section 11.23(c)violatesarticleIII, section56, we do not
considerwhetherit violatesslateor federalconstitutionequal protectionguarantees.



                                          p. 2411
The Honorable Warren Chisum - Page 4                 (DM-432)




            business and operation of this district is not restricted to a particular
            area.

Lower Colorado River Auth., 83 S.W.2d at 636. J Furthermore, in Maple Run, 931
 S.W.2d 941, the supreme court cast doubt on the legal test employed in Lower Colorado
River Auihori& Stephensen v. Wood and related local law cases: “[O]ur later cases have
clarified that the ultimate question under Article III, Section 56 is whether there is a
reasonable basis for the Legislature’s classification. .       The significance of the subject
matter and the number of persons aEected by the legislation are mere factors, albeit
important ones, in determining reasonableness.” Id. at 947 (citations omitted). It may be
the case that this reasonableness test is also the proper test for determining whether a
statute describing a class according to non-geographic criteria is a special law in violation
of article III, section 56. Here, where the legislature has named the Nature Conservancy
specifically and has failed even to attempt to describe the Nature Conservancy as a
member of a class, there is no classification to consider. Were a court to determine that it
is appropriate to apply this reasonableness test to a class that by its terms is forever limited
to one, however, we believe it would be compelled to conclude that it is unreasonable as a
matter of law to accord a tax exemption to a specific, private entity by name and not to
extend the tax exemption to other entities that share the same characteristics.

          The Nature Consetvancy contends that Young Men’s Christian Association is
distinguishable because the YMCA (i) did not qualii for a tax exemption as a religious
institution or public charity and (ii) did not conserve natural resources or perform a
purpose of statewide significance, and (iii) because that case preceded the Texas Supreme
Court’s decision in Lower Colorado River Aufhortty. The first argument suggests that a
special-law tax exemption is permissible if the entity at issue otherwise qualiies for a tax
exemption under article VIII, section 2(a). In fact, that is the premise of the Nature
Conservancy’s initial “public charity” argument. This is a novel proposition, and one for
which the Nature Conservancy provides no authority. Article VIII, section 2(a) is not
self-executing. Furthermore, it provides for the enactment of general-law tax exemptions,
not tax exemptions naming specific entities.

        The assertion that the Nature Conservancy, unlike the YMCA, performs a purpose
of statewide significance, natural resources conservation, is an argument one would make


        sInterestingly,
                     afteraddreskg articleIII,section56, the courtgoeson to suggestthatevenif the
taxexemptionwerea speciallawunderarticleIII,section56, the legislaturewouldstill be authorizedto
providesuchan exemptionforbondsof a stateagencyor politicalsubdivision,implyingthatarticleIII,
section56 was ultimatelyirrelevaatto the tax exemptionat issue: ‘[Nlohvitlstanding a amtihltional
prohibition
          againstexemptingall property horntaxation,exceptsuchas is namedin the Constitution.  still
the LegisIatumcan exemptfrom taxationatatebonds and bonds of state agencies issued in their
govemmentaI  capacities,becausesuchbondsareinstrumentalities of government,   andnotpropertywithin
the meaningof theabove-mentionedwa&ntioasI prehibition.” Lower Colorado River Aufh., 83 S.W.2ti
at 636.



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The Honorable WarrenChisum - Page 5               (DM-432)




to defend a local law. Again section 11.23(c) of the Tax Code is a special law and,
furthermore, the approach taken in Lower Colorado River Authority, Stephensen v. Wood
and other older local law cases has been called into question by Muple Run. Moreover,
this argument fails to address the primary defect of section 11.23(c) of the Tax Code -- the
fact that it singles out a private entity by name for special treatment. Finally, we disagree
that Lower Colorado River Authority overrules or undermines Young Men’s Christian
Association. It certainly does not do so expressly, nor, in our view, does it do so
implicitly. The cases address different issues; the former case analyzes the LCRA tax
exemption as a local law, whereas the latter case analyzes the YMCA tax exemption,
which singled out two specific, private entities by name for special treatment, as a special
law.

         In addition to prohibiting local or special laws exempting property t?om taxation,
article III, section 56 also provides that “nothing herein contained shall be construed to
prohibit the Legislature from passing special laws for the preservation of the game and fish
of this State in certain localities.” The Nature Conservancy suggests that section 11.23(c)
is a permissible local or special law because it supports the preservation of game and fish.
The game and fish language in article III, section 56 appears to contemplate game and fish
laws geared to a specific geographic area. See, e.g., Stephensen v. Wd, 34 S.W. 246.
Section 11.23(c) of the Tax Code is a tax exemption, not a game and fish law, and is not
limited to a certain geographic area.6 The Nature Consorvancy has not provided any
authority to support the contention that the game and fish language in article III, section
56 authorizes legislation granting a private conservation entity a property tax exemption
on a statewide basis.

        In sum, we conclude that section 11.23(c) of the Tax Code is not authorized by
article VIII, section 2, or any other constitutional provision,’ and that it runs afoul of


       6Again,Tax Code,section11.23(c)providesas follows:“TheNatnreConservaneyof Texas,
Jncorporated,
            is entitledto an exemptionfromtaxationof the tangiblepropertyit ownsif the propetlyis
notheldforgain,as longas the organization is a nonprofitcorporation
                                                                  as defttedby theTexasNon-Profit
CorporationAct.” Althonghthe activitiesof theNatureConservancy    maypreservegamesndfkhsndit
mayholdtheexemptproperty     forthis potpose,the tax exemptionitselfdoesnot reqtdrethatthe exempt
property
       he nsedto preservegameandfish.

         ‘TheNatureConservancy   doesnotarguethatTax Code,suction11.23(c)is authorized    hy article
VlIl, sectionl-f of theTexasConstitntion.Becamethisprovisiondoesnotanthorizeacross-the-board    tax
exemptionsand,mormvor,    doesnotappearto anthotizethe legislatmeto granttax exemptionsby special
law,we do notconsiderit. See Tex. Const.art.WI, p l-f C[t]he1egisJatnre  mayby law provideforthe
presetvation of cnhmal,historical,or natmalhistoryresonrcosby . grantingexemptionsor otherrelief
from state ad valoremtaxes on approptiateproperty”;authorizingpolitical snhdivision5to grant
exemptionsor other relief on appropriateproperty). We also note that Tax Code, section 11.23(c)wss
aacted in 1%9, see Act of May29, 1%9,61st Leg., ch. 652, 5 1, 1%9Tex. Gen. Laws 1950, 1950,
whereasarticleVlfJ,sectionl-f was proposedand adoptedin 1977,see S.J.R.5, Act of May20, 1977,
65thLeg., 1977Tex. Gen.Laws3354.3354.




                                             p. 2413
 The Honorable Warren Chisum - Page 6             (DM-432)




 article III, section 56. Given this answer we turn to your final question: “If the chief
 appraiser who had been granting the exemption determined there was no constitutional
 basis for the same, would he have grounds to cancel the exemption and request payment
 of all back taxes?” We decline to address this question for two reasons. First, tax
 exemptions are granted on an appraisal district to appraisal district basis, and the facts of
the tax status of the Nature Conservancy’s property may vary from district to district.*
Furthermore, even if the facts in each appraisal district were uniform and undisputed, we
doubt the utility of this office addressing this question because it appears to raise
complicated legal issues of first impression that can only be definitively resolved by the
judiciary.




         8Wenote,forexample,that se&on 11.18of the Tax Codeprovidesfora tax exemptionfor“the
buildingsandtangiblepersonalproperty”     ownedby a charitableorganization.Tax Code$11.18(a). To
be eligiile for the exemption,the entitymustbe organizedexclusivelyto performreligious,charitable,
scientific,literary,or educationalpurposesand mustengageexclusivelyin performingone or moreof
certainsptdicd functions,which include“presetig or conservingwildlife.” Id. 8 11.18(d)(10).
Subsection(j) of section 11.18 providesas follows: “exemptionof an orgrmization        preservingor
consming wildliieis limitedto land and improvements       and may not exceed 1,000 acresin any one
county.” Suh8ection   (i) appear8to providethatorganizations  preservingor coaservingwildlife,unliie
othercharitableorganizations  listedin section11.18,areeligiblefor tax exemptionsfor land. It maybe
the case.thatthe NatureConservancy    qualifiesas a charitableorganizationunder&on 11.18and has
appliedforandreceivedtaxexemptions      on thisbasis.



                                            p. 2414
The Honorable Warren Chisum - Page 7          (DM-432)




                                   SUMMARY

               Section 11.23(c) of the Tax Code, which provides for a tax
          exemption for the tangible property of a specific, private entity by
          name, is not a general law authorized by article VIII, section 2 of the
          Texas Constitution and is a special law in violation of article III,
          section 56.




                                                    DAN     MORALES
                                                    Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General




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