c
The Attorney General of Texas
JIM MATTOX
November 9, 1983
Attorney General
Supreme Court Bullding Honorable Tom Uher Opinion NO.JM-87
P. 0. Box 12546 Chairman
Austin, TX. 76711. 2546 Committee on Regions, Compacts and Re: Whether constitutional
5121475-2501
Telex 9101674-1367
Districts and statutory tax exemptions,
Telecopier 5121475-0266 Texas House of Representatives specifically section 23.42 of
Austin, Texas 78769 the Tax Code and article VIII,
sections l-d, l-d-l, 19, and
714 Jackson, Suite 700
19a of the Texas Constitution,
Dallas. TX. 75202.4506
2141742-6944
pertain to fish and other
forms of aquatic life
4624 Alberta Ave., Suite 160 Dear Representative Uher:
El Paso. TX. 79905.2793
9151533.3464
You ask whether constitutional and statutory ad valorem tax
exemptions and special valuation provisions, specifically section
p 001 Texas. Suite 700 23.42 of the Tax Code and article VIII, sections l-d, l-d-l, 19, and
do”slo”. TX. 77002-3111 19a of the Texas Constitution, pertain to fish and other forms of
7131223.5686 aquatic life. We conclude that they do.
606 Broadway, Suite 312
Section 23.42(d)(l) of the Tax Code sets forth the following
Lubbock. TX. 79401.3479 definition of “agriculture” for purposes of calculating the value of
6061747-5236 real property used for “agricultural purposes” under special valuation
statutes:
4309 N. Tenth, Suite B
McAllen. TX. 76501-1685
‘Agriculture’ means the use of land to produce
512,682.4547 plant or animal products, including fish or
poultry products, under natural conditions but
does not include the processing of plant or animal
200 Main Plaza. Suite 400
products after harvesting or the production of
San Antonio. TX. 76205.2797
5121225~4191
timber or forest products. (Emphasis added).
Before addressing the scope of the statutory definition, we must first
An Equal OpportunityI determine whether the definition of “agricultural use” set forth in
Affirmative Action Employer section 23.42, by its inclusion of “fish . . . products,” expands the
definition of “agriculture” or “agricultural use” contained in the
aforementioned Texas constitutional provisions. If it does, it is
unconstitutional and void. See City of Amarillo V. Amarillo Lodge No.
731, A.F. & A.M., 488 S.W.2d 69 (Tex. 1972); Leander Independent
School District v. Cedar Park Water Supply Corporation, 479 S.W.2d 908
(Tex. 1972); Dickison v. Woodmen of the World Life Insurance Society,
P
280 S.W.2d 315 (Tex. Civ. App. - San Antonio 1955, writ ref’d). We
conclude that section 23.42, with its inclusion of “fish . . .
products” in its definition of “agriculture,” is constitutional.
p. 366
3
Ronorable Tom Uher - Page 2 (JM-87)
Article VIII, section l-d of the Texas Constitution requires that
l~and qualifying for the agricultural use designation shall be
appraised for ad valorem tax purposes, not at market value, but on the
basis of those factors relative to agricultural use. Subsection (a)
provides that
'lalgricultural use' means the raising of
livestock or growing of crops, fruit, flowers, and
other products of the soil under natural
conditions as a business venture for profit, which
business is the primary occupation and source of
income of the owner. (Emphasis added).
Article VIII, section l-d-l(a) of the Texas Constitution permits the
legislature by general law to provide for ad valorem taxation of land
"devoted to farm or ranch purposes." We note, of course, that
"agricultural use" under article VIII, section l-d of the Texas
Constitution extends special valuation benefits only to those products
grown under "natural conditions." No such ljmitation restricts the
scope of article VIII, section l-d-l. Article VIII, section 19
exempts from taxation "farm products, livestock, and poultry in the
hands of the producer." Finally article VIII, section 19a exempts
from taxation "implements of husbandry that are used in the production
of farm or ranch products."
Words in a constitution will be considered to have been used in
their natural sense, Markowsky v. Newman, 136 S.W.2d 808, 813 (Tex.
1940). and ordinary signification, Ferguson v. Wilcox, 28 S.W.2d 526,
530 (Tex. 1930), unless the context indicates the contrary. Sugg v.
Smith, 205 S.W. 363, 373 (Tex. Civ. App. - Austin 1918, writ ref'd).
Language used in constitutional provisions must be presumed to have
been carefully selected, and the words used are to be understood as
people generally understand them. Leander Independent School District
v. Cedar Park Water Supply Corporation, supra at 912; Cramer v.
Sheppard, 167 S.W.2d 147, 152 (Tex. 1942). Words and phrases such as
"agricultural," "livestock," "products of the soil," "farm or ranch
purposes," and "farm or ranch products" do not ordinarily signify or
include the production of fish or other forms of aquatic life.
However, "agriculture" has been defined as
[t]he art or science of cultivatine. the eround.
I _
including harvestins of crons and rearine and
management of live stock; husbandry; farming,
- in a
broader sense, the science snd act of the
production of plants and animals useful to man.
(Emphasis added).
Cordon v. Buster, 257 S.W. 220, 221 (Tex. 1923).
No Texas case has directly addressed this specific issue.
However, this office has construed "agriculture" to include
p. 367
.
Honorab1.eTom Uher - Page 3 (JM-87)
“mariculture.” In Attorney General Opinion H-272 (1974). this office
concluded that a statute authorizing demonstrations in “agriculture
and home economics” was sufficiently broad to include demonstrations
on marlculture and fisheries. The opinion not.ed that “mariculture”
may be defined as “the cultivation of marine organisms by exploiting
their natural environment.‘I The opinion declared that
‘agriculture’ was intended to mean, in addition to
the cultivati~on and harvesting of crops (its
narrow definition), the SCilZ”W and art of
production of plants and animals useful to
man . . . including . . . mariculture.
Attorney General Opinjon H-272 (1974).
Clearlv our resuonsibilitv. like that of the courts. is to
determine iegislativd intent >hd give effect to it. Knight V.
International Harvester Credit Corp., 627 S.W.Zd 382 (Tex. 1982);
Minton V. Frank, 545 S.W.Zd 442 (Tex. 1976). In this instance,
however, our examination of the legislative history. pertaining
. to the
recent property tax enactments does not reveal legislative intent as
to this issue. Nevertheless, we conclude that a better reading of the
applicable constitutional provisions would include “mariculture” or,
more properly, “fish . . . products” within the ambit of “agriculture”
or “livestock.”
We now must turn to an examfnation of sectjon 23.42(d)(l) of the
Tax Code to determine the scope of the phrase “fish . . . products.”
You specifically wish to know whether “shrimping, fishing, the
harvesting of the sea, and the raising of acquatic plant and animal
life in man-made and natural environments” falls within the ambit of
section 23.42, Without attempting to enumerate an exhaustive list of
products and activities which fall within section 23.42, we conclude
that each of the above activities could fall within the denotation of
“mariculture” and, therefore, of “agriculture” in its broad sense if
such activity includes cultivation or production. To the extent that
“mariculture” consists of cultivation or production, we believe that
it is included within the meaning of “agriculture” for purposes of
section 23.42. To the extent that “harvesting” consists of the mere
capture of animal life. we believe it is not within the meaning of
“agriculture.” For example, a person who engages in the licensed
practice of fish farming pursuant to chapter 48, a person who engages
in I.!.censedshellfish culture pursuant to chapter 51, or a person
planting or cultivating crustaceans or mollusks pursuant to chapters
76-78 of the Parks and Wildlife Code could receive the beneficial ad
valorem tax treatment afforded by section 23.42 of the Tax Code.
A more difficult issue concerns the application of these benefits
to activities on the seas and the personal property, such as netting
and boats, used in such activities. In Attorney General Opinion
NW-451 (1982), this office discussed the scope of section 11.161 of
p. 368
.
Honorable Tom Uher - Page 4 (JM-67)
the Tax Code which permits an individual to exempt from ad valorem
taxation "implements of farming or ranching that he owns and uses in
the production of farm or ranch products." Therein, this office
declared that courts focus on the use to which an item is put, Hickman
V. Hickman, 234 S.W.Zd 410 (Tex. 1950), declaring "implements of
[farming and ranching]" to include "all implements used by the farmer
in conducting his farming operations, not only those that he might "se
directly, but those used by his tenants and employees." Smith v.
McBryde, 173 S.W. 234, 235 (Tex. Civ. App. - San Antonio 1915, no
writ). (Emphasis added). See also Wollner v. Darnell, 94 S.W.Zd 1225
(Tex. Civ. App. - Amarillo 1936, no writ) (tenant farmer with rental
contract upon 320 acres of land and who possessed only one tractor and
no horses; court held that, since claimant was unable to farm without
the tractor, tractor was exempt as an implement of husbandry);
Driscoll Foundation v. Nueces County, 445 S.W.Zd 1 (Tex. Civ. App. -
Beaumont 1969), writ ref'd n.r.e. per curiam, 450 S.W.Zd 320 (Tex.
1970) (land entitled to special valuation even though land was
cultivated by tenant, rather than by trustees or employees).
Analogously, we conclude that personal property used in
mariculture activities is exempt under article VIII, section 19a of
the Texas Constitution even in an instance in which the claimant does
not own the bed under the waters Ianwhich such activities take place
or in an instance Jonwhich the claimant undertakes such activities in
waters at the sufferance of the state if and only if such activity
irvolves production or cultivation. Mere fishing or harvesting
consisting of the capture of animal life will not qualify. See, e.g.,
Attorney General Opinion H-1090 (1977).
Accordingly, we conclude that section 23.42 of the Tax Code and
article VIII, sections l-d, l-d-l, 19 and 19a of the Texas
Constitution, pertain to fish and other forms of aquatic life.
SUMMARY
Section 23.42 of the Tax Code and article VIII,
sections l-d, l-d-l, 19 and 19a of the Texas
Constitution, pertain to fish and other forms of
J k
aquatic life.
Very truly your
L-N
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 369
Honorable Tom Uher - Page 5 (JM-87)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 370