IN THE
TENTH COURT OF APPEALS
No. 10-08-00416-CV
McLENNAN COUNTY APPRAISAL DISTRICT,
Appellant
v.
AMERICAN HOUSING FOUNDATION,
WACO PARKSIDE VILLAGE, LTD. AND
WACO ROBINSON GARDEN, LTD.,
Appellees
From the 19th District Court
McLennan County, Texas
Trial Court No. 2005-2197-1
OPINION
American Housing Foundation, Waco Parkside Village, Ltd. and Waco Robinson
Garden, Ltd. sought judicial review in district court of the McLennan County Appraisal
District’s denial of their applications for exemptions from ad valorem taxes for two
apartment complexes used to provide low-income and moderate-income housing.
Following a bench trial, the trial court ruled that the entities were entitled to the
exemptions. MCAD asserts in its sole issue that they do not qualify for tax-exempt
status because Waco Parkside Village, Ltd. and Waco Robinson Garden, Ltd. are limited
partnerships that are “99.98% or more owned by purely for-profit entities for purely
profit motives.” We will affirm.
Factual and Procedural History
The parties stipulated to most of the relevant facts. American Housing
Foundation (AHF) is a community housing development organization and a section
501(c)(3) non-profit entity. The apartment complexes at issue are the Parkside Village
Apartments and the Robinson Garden Apartments. Waco Parkside Village, Ltd.
(Parkside Village) is the record titleholder of the Parkside Village Apartments. Waco
Robinson Garden, Ltd. (Robinson Garden) is the record titleholder of the Robinson
Garden Apartments. AHF Parkside Village, L.L.C. is the sole general partner of
Parkside Village and is a wholly owned subsidiary of AHF. AHF Robinson Garden,
Inc. is the managing general partner of Robinson Garden and is a wholly owned
subsidiary of AHF. AHF is the administrative general partner of Robinson Garden.
Both apartment complexes provide low-income and moderate-income housing.
The limited partners for Parkside Village and Robinson Garden provided the equity
investment for these properties. The limited partners received federal tax credits and
depreciation because of their investment.
Appellees’ first amended petition sought judgment for an ad valorem tax
exemption for the properties for 2004, 2005 and 2006 under section 11.1825 of the Tax
Code. See TEX. TAX. CODE ANN. § 11.1825 (Vernon 2008). MCAD’s second amended
answer and counterclaim for declaratory judgment generally denied the allegations,
McLennan County Appraisal Dist. v. Am. Hous. Found. Page 2
specifically denied that Appellees had exhausted their administrative remedies for the
2004 tax year, and counterclaimed for a declaration that section 11.1825 was
unconstitutional as applied. The trial court rendered judgment for Appellees, finding
that the properties qualified for the exemption in 2005 and 2006.
Applicable Law
Article VIII, section 2 of the Texas Constitution permits the legislature to exempt
certain properties from taxation. The constitutional exemption here concerns
“buildings used exclusively and owned by … institutions engaged primarily in public
charitable functions.” TEX. CONST. art. VIII, § 2(a). Section 11.18 of the Tax Code
specifically defines the provision of “housing for low-income and moderate-income
families” as a charitable function. TEX. TAX. CODE ANN. § 11.18(d)(18) (Vernon Supp.
2010).
Section 11.1825 of the Tax Code provides an exemption from ad valorem taxation
to an organization that owns property used to provide low-income housing. See id. §
11.1825. To qualify for this exemption, an organization ordinarily must have, for at
least the three preceding years, (a) been a section 501(c)(3) entity; (b) “met the
requirements of a charitable organization provided by Sections 11.18(e) and (f);” and (c)
had as one of its purposes providing low-income housing.” Id. § 11.1825(b). A limited
partnership that does not meet these requirements may nevertheless qualify for the
exemption if a qualifying charitable organization owns 100 percent of the general-
partner interest in the limited partnership. Id. § 11.1825(c). Section 11.1825 provides
other requirements that are not in dispute.
McLennan County Appraisal Dist. v. Am. Hous. Found. Page 3
Standard of Review
Statutory tax exemptions are disfavored and strictly construed. N. Alamo Water
Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991); Harris
County Appraisal Dist. v. Primrose Houston 7 Hous., L.P., 238 S.W.3d 782, 786 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied). An organization claiming an exemption bears the
“burden of proof of clearly showing that the organization falls within the statutory
exemption.” N. Alamo Water Supply, 804 S.W.2d at 899; accord Primrose Houston 7, 238
S.W.3d at 786.
“Before an organization can be considered for qualification for tax exempt status
under . . . the Texas Tax Code, that organization must first meet the applicable
constitutional requirements which entitle those organizations to seek the exemption.”
N. Alamo Water Supply, 804 S.W.2d at 899; accord Primrose Houston 7, 238 S.W.3d at 785
n.9.
MCAD asserts in its sole issue that Appellees are not entitled to the exemptions
because they do not meet the constitutional requirement1 that a qualifying organization
must be “engaged primarily in public charitable functions.” TEX. CONST. art. VIII, § 2(a).
MCAD asserts that they do not satisfy this standard because: (1) “99.98% or more [of the
ownership interests in Parkside Village and Robinson Garden are] owned by purely for-
profit entities for purely profit motives, and [these for-profit entities] operate[ ] the
property in question for the profit ends of those owners”; and (2) even though the
1
The parties stipulated that AHF, Parkside Village, and Robinson Garden met the statutory requirements
of section 11.1825, but the written stipulation also stated that MCAD disputed whether the provision of
low-income housing by these entities was the “primary purpose” of these entities or their “primary
purpose” for owning the properties.
McLennan County Appraisal Dist. v. Am. Hous. Found. Page 4
apartments are being leased to low-income families, “they are being so utilized for the
profit of the investors, not out of any charitable motives of the owners.”
MCAD refers to cases construing the former version of article VIII, section 2(a),
which required organizations seeking an exemption to be “institutions of purely public
charity.” TEX. CONST. art. VIII, § 2 (amended 1999). The Supreme Court first established
the test for determining whether an organization was a “purely public charity” in City of
Houston v. Scottish Rite Benevolence Ass’n, 111 Tex. 191, 230 S.W. 978 (1921).
[A]n institution was one of “purely public charity” where: First, it made
no gain or profit; second, it accomplished ends wholly benevolent; and,
third, it benefited persons, indefinite in numbers and in personalities, by
preventing them, through absolute gratuity, from becoming burdens to
society and to the state.
Id. at 981 (quoted by N. Alamo Water Supply, 804 S.W.2d at 897).
“The word ‘purely’ was meant ‘to describe the quality of the charity, rather than
the means by which it is administered, that it should be wholly altruistic in the end to
be attained, and that no private or selfish interest should be fostered under the guise of
charity.’” Id. (quoting Widows’ & Orphans’ Home of Odd Fellows of Ky. v. Commonwealth,
126 Ky. 386, 103 S.W. 354, 358 (1907)); accord N. Alamo Water Supply, 804 S.W.2d at 897.
However, the word “purely” no longer appears in the constitutional definition of
qualifying institutions. See TEX. CONST. art. VIII, § 2. Thus, the issue is whether the
owner of the property is “engaged primarily in public charitable functions.” Id.
(emphasis added).
The parties stipulated that the titleholders of the properties at issue, Parkside
Village and Robinson Garden, “each engage in the rental of low-income or moderate-
McLennan County Appraisal Dist. v. Am. Hous. Found. Page 5
income housing and related activities.” The trial court made a similar finding of fact,
namely, that these entities “engage exclusively in the rental of low-income or moderate-
income housing and related activities.” (emphasis added). The trial court similarly
found that Parkside Village and Robinson Garden “own these two properties for the
purpose of renting to low-income or moderate-income persons or families.”
Based on these and other findings, the trial court made the following conclusion
of law:
2. The general partners of both Waco Parkside Village, Ltd. and Waco
Robinson Garden, Ltd., which are 100% controlled by AHF, operate,
manage and control the properties exclusively. In order to determine
whether the property is being used primarily to provide housing to low to
moderate-income families, the Court focuses its analysis on how the
property is actually used, not the financial interest of the limited partner.
Accordingly, the fact that Waco Parkside Village, Ltd. and Waco Robinson
Garden, Ltd. are financed by non-charitable entity investments in low-
income housing tax credits does not render § 11.1825 unconstitutional in
this case.
We agree with the trial court’s analysis.
Under the constitution, the question is whether Parkside Village and Robinson
Garden are “engaged primarily in public charitable functions.” See TEX. CONST. art.
VIII, § 2. The trial court found that they are engaged exclusively in the charitable
function of providing low-income or moderate-income housing. MCAD does not
challenge this finding.
The fact that other persons or entities with a profit motive have invested
resources in these entities is irrelevant. These limited partners have no control over the
operation of the limited partnerships. They are no different than a person or entity that
McLennan County Appraisal Dist. v. Am. Hous. Found. Page 6
makes a donation to a charitable organization. In this situation, the donor may hope for
favorable publicity and likely expects to receive a tax deduction for the charitable
contribution, but the donor usually has no legal authority to direct the operation of the
charitable organization.2
The limited partnerships that own the properties at issue are engaged exclusively
in the provision of low-income or moderate-income housing. MCAD does not dispute
that this is a public charitable function. Article VIII, section 2 requires only that such
institutions be primarily engaged in a public charitable function to qualify for an
exemption from ad valorem taxes. MCAD also does not dispute that the organizational
structure of the entities in question satisfies the requirements of section 11.1825.
Because these entities established that they meet the constitutional and statutory
requirements for the tax exemptions they seek, the trial court properly rendered
judgment in their favor. MCAD’s sole issue is overruled.
Having overruled MCAD’s sole issue, we affirm the judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 9, 2011
[CV06]
2
An exception to this general rule would be an unincorporated association of which the donor was a
member. See Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169-70 (Tex. 1992).
McLennan County Appraisal Dist. v. Am. Hous. Found. Page 7
McLennan County Appraisal District v. American Housing Foundation, Waco Parkside Village, LTD. and Waco Robinson Garden, LTD.
Combined Opinion