Odyssey 2020 Academy, Inc. v. Galveston Central Appraisal District

IN THE SUPREME COURT OF TEXAS
══════════
No. 19-0962
══════════

ODYSSEY 2020 ACADEMY, INC., PETITIONER,

V.

GALVESTON CENTRAL APPRAISAL DISTRICT, RESPONDENT

══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
══════════════════════════════════════════

JUSTICE GUZMAN, joined by CHIEF JUSTICE HECHT and JUSTICE HUDDLE, dissenting.

The Texas Constitution mandates that “[t]axation shall be equal and uniform” 1 but

expressly provides that property “shall be exempt . . . from taxation” when “devoted exclusively

to the use and benefit of the public”. 2 At issue here is the availability of an ad valorem tax

exemption for real property leased and used by a charter school as a public-school campus. Like

traditional public schools, government-funded charter schools are public entities that provide a

cost-free public education. And, as all agree, the charter school’s campus is used exclusively for

1
TEX. CONST. art. VIII, § 1(a).
2
See id. art. XI, § 9.
public purposes. 3 The Court nonetheless holds that no tax exemption is available to Odyssey 2020

Academy, Inc. because the charter school pays ad valorem property taxes under the terms of a

lease rather than as the property’s owner. 4 Public ownership, the Court holds, is a necessary

predicate to tax exemption under Article XI, section 9 of the Texas Constitution (Article 11). 5 I

respectfully dissent because Article 11’s text does not support the Court’s conclusion.

Article 11 does indeed provide a tax exemption for publicly owned property, but it also

exempts property that a governmental entity does not own but nevertheless “devote[s] exclusively

to the use and benefit of the public”. 6 Such is the case here. Article 11 thus exempts the

charter-school campus from ad valorem taxation.

I. Constitutional Tax Exemption

Article 11 is a “self-operative” tax exemption that applies to municipalities and arms of

state government “serv[ing] a public purpose” and “absolutely exempts from taxation” covered

property. 7 The Court has previously explained that the “automatic” exemption in Article 11

prevents “an idle expenditure of public funds” that would result if government were made to

3
See id.
4
In many leases, property-tax liability is passed through to the lessee indirectly, but Odyssey’s lease makes
the charter school directly responsible for paying the tax bill.
5
Ante at 14.
6
TEX. CONST. art. XI, § 9. Throughout this opinion, punctuation not found in Article 11 is placed outside
the quote marks for clarity.
7
Lower Colo. River Auth. v. Chem. Bank & Tr. Co., 190 S.W.2d 48, 50 (Tex. 1945); A. & M. Consol. Indep.
Sch. Dist. v. City of Bryan, 184 S.W.2d 914, 915 (Tex. 1945).

2
“engage in the senseless process of taxing itself, the net result of which would be [only] to take its

own money out of one pocket for the purpose of putting it into another.” 8

The constitutional exemption in Article 11 encompasses charter schools like Odyssey

because “open-enrollment charter schools act as an arm of the State Government.” 9 The Court

does not contend otherwise. 10 Where we part company is with respect to the nature of the property

the Constitution exempts from taxation. Our disagreement centers on the proper grammatical

construction of Article 11.

In relevant part, Article 11 provides:

The property of counties, cities and towns, owned and held only for public
purposes, such as public buildings and the sites therefor, fire engines and the
furniture thereof, and all property used, or intended for extinguishing fires, public
grounds and all other property devoted exclusively to the use and benefit of the
public shall be exempt . . . from taxation . . . . 11

The Court construes Article 11 as exempting only the property of public entities “owned and held

only for public purposes”. 12 In the Court’s view, the provision’s remaining text, introduced by the

phrase “such as”, merely supplies a non-exclusive list of property that may be “owned” by public

entities “and held only for public purposes”. 13 While facially reasonable, the Court’s construction

is inconsistent with the provision’s grammatical structure, renders constitutional language

superfluous, and fails to give effect to the precise language the people adopted.

8
Chem. Bank, 190 S.W.2d at 51.
9
See El Paso Educ. Initiative, Inc. v. Amex Props., LLC, 602 S.W.3d 521, 529 (Tex. 2020).
10
The parties also do not dispute that Odyssey is a public entity.
11
TEX. CONST. art. XI, § 9.
12
Ante at 17.
13
Id.; TEX. CONST. art. XI, § 9.

3
 When applying the Texas Constitution, “we construe its words as generally understood”

and “rely heavily on the plain language of [its] literal text.” 14 If possible, we do not treat any of

the Constitution’s language as surplusage, and we “avoid constructions that would render any

constitutional provision meaningless or nugatory.” 15 Applying these standards, Article 11 is more

aptly construed as exempting from taxation three separate categories of property. That is,

1. “The property of counties, cities and towns, owned and held only for public purposes,
such as
[i] public buildings and the sites therefor,
[ii] fire engines and the furniture thereof, and
[iii] all property used, or intended for extinguishing fires,
. . . shall be exempt . . . from taxation”;

2. “[P]ublic grounds . . . shall be exempt . . . from taxation”;

3. “[A]nd all other property devoted exclusively to the use and benefit of the public shall
be exempt . . . from taxation”. 16

Giving full effect to its syntactic structure, Article 11 exempts property that is either owned by

public entities exclusively for public purposes or used by public entities exclusively for public

purposes.

The Court is correct that Article 11 provides an exemption for publicly owned property

used only for public purposes. The Court is also correct that Article 11 supplies a non-exclusive

list of property that would qualify for that public-ownership exemption. 17 But the Court is wrong

14
Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000).
15
Id.
16
TEX. CONST. art. XI, § 9 (emphases added).
17
The Court has previously rejected the argument that Article 11’s “all other property” language invokes the
doctrine of ejusdem generis to limit the exemption to the kind of property listed. Lower Colo. River Auth. v. Chem.
Bank & Tr. Co., 190 S.W.2d 48, 51 (Tex. 1945). Rather, we held this language enlarged the exemption and was
consistent with the economic reality that a narrowed construction under the ejusdem generis doctrine would, “in its

4
about where the exemplar list ends. Rather than concluding with “all other property devoted

exclusively to the [public’s] use and benefit”, as the Court holds, the list of examples initiated by

the “such as” phrase grammatically ends with “and all property used, or intended for extinguishing

fires”. Syntactically, that phrase closes the “such as” list both by virtue of the “and” that precedes

it and by the parenthetical comma that follows it. 18 The list’s terminal point is further confirmed

by the absence of a parenthetical comma after “all other property devoted exclusively to the use

and benefit of the public”, which would be necessary if the “such as” clause were inclusive of that

language, as the Court contends. 19 The first phrase, and first exemption, in Article 11 applies to

publicly owned property, as the Court says, but it is not the only exemption the provision

establishes. 20

strict sense,” “mean that government in Texas could engage in the senseless process of taxing itself” contrary to
Article 11’s purpose. Id. To the extent the Court suggests that our rejection of the ejusdem generis doctrine supports
its narrow construction of Article 11 as being limited only to publicly owned property, see ante at 17-18, that argument
goes beyond Chemical Bank’s analysis of the issue.
18
See TEX. CONST. art. XI, § 9.
19
See id.
20
The Court mistakenly relies on the series-qualifier canon in asserting that “property . . . owned and held
for public purposes” is an adjectival clause modifying all three categories of property exemptions. Ante at 17 n.12.
The series-qualifier canon provides that “[w]hen there is a straight-forward, parallel construction that involves all
nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW 147 (2012). First, as explained above and infra, Article 11 does not
involve a “straight-forward parallel construction.” Second, the central interpretive dispute is what text constitutes “the
entire series.” As I read Article 11, there are three categories of exemptions that are each the subject of the “shall be
exempt” verb phrase and one of those subjects—the first exemption—includes a series that is introduced by the “such
as” phrase and ends before “public grounds,” which is the provision’s second subject and second exemption. The
Court contends that Article 11 contains only one subject that modifies the “shall be exempt” verb phrase with a series
that includes two categories of examples (1) improved property and chattels and (2) “public grounds and all other
property”. The series-qualifier canon does not answer the interpretative question as to what text comprises the series.
Rather, in relying on that canon, the Court merely assumes the validity of its argument that Article 11’s “such as”
clause includes all three categories of property that follow it. As demonstrated above, that is not a grammatically
accurate reading of the text because the “such as” clause is closed by a parenthetical comma preceding the “public
grounds” exemption.

5
 The next phrase in Article 11 provides a separate exemption for “public grounds” 21—that

is, publicly owned real property as compared to publicly owned chattels and improved property

exempted by the first phrase. The word “public” means “of or relating to a government” 22 and,

like the first exemption, makes this exemption applicable only to grounds owned by public entities.

In interpreting another constitutional provision, we said just that, observing that public ownership

is required to make something “public property.” 23 Article 11’s context further constrains the

“public grounds” exemption to those properties held only for a public purpose. The requirement

that tax-exempt grounds be “public” immediately follows the first exemption’s application to

property “owned and held only for public purposes”, which is then described as referring to “public

buildings and the sites therefor”. 24 In this manner, Article 11 defines what constitutes “public”

property for purposes of the automatic exemption. 25

In contrast, the last exemption applies to “all other property devoted exclusively to the use

and benefit of the public”. 26 Notably, this phrase is not textually limited to “public” property, nor

does it refer to public ownership like the preceding two phrases. Rather, it applies to “other

property” and focuses on the property’s “exclusive[]” “use” by and for the “public”. 27 In this way,

the context makes clear that “other” means “different” and “not the same” as the preceding two

21
See TEX. CONST. art. XI, § 9.
22
Public, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1993).
23
Leander Indep. Sch. Dist. v. Cedar Park Water Supply Corp., 479 S.W.2d 908, 912 (Tex. 1972)
(interpreting “public property” in Article VIII, section 2 to require “public ownership”).
24
TEX. CONST. art. XI, § 9.
25
See id.
26
Id.
27
Id.

6
exemption categories. 28 The difference relates to the public-ownership requirement. The third

category is a clear textual shift from public property to “other property” used for public purposes. 29

We have recognized that, under the Constitution, “public use” and “public property” are

separate concepts. 30 Ownership is required to make something “public property.” 31 “Public use”

is not equivalent phrasing and mere “use for public purposes” is not sufficient to make something

28
Other, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1993). The Court argues that “other”
means “a further . . . thing of the type already mentioned” because it is preceded by “and” as opposed to “or.” Ante
at 17. But adopting such an interpretation would constitute an application of the ejusdem generis doctrine, which the
Court has explicitly rejected as being inconsonant with Article 11. See Lower Colo. River Auth. v. Chem. Bank & Tr.
Co., 190 S.W.2d 48, 51 (Tex. 1945). It is therefore immaterial what coordinating conjunction is used in this
exemption.
29
The Court argues that the absence of an Oxford comma separating “public grounds” and the third
exemption for “all other property devoted exclusively to the use and benefit of the public” indicates that these property
categories are merely components of a single exemption. Ante at 21 & 21-22 n.19. I disagree. First, Article 11 does
not consistently use Oxford commas, so the absence of such a comma after “public grounds” says little. See TEX.
CONST. art. XI, § 9 (“The property of counties, cities and towns . . . shall be exempt . . . .”). Second, Oxford commas,
which are also known as “serial” or “series” commas, are a style preference that was not widely in use until decades
after Article 11 was enacted and even today remains a topic of debate. See PETER SUTCLIFFE, THE OXFORD
UNIVERSITY PRESS: AN INFORMAL HISTORY 113-14 (1978) (crediting F. Howard Collins with “inventing” the Oxford
comma in Authors’ & Printers’ Dictionary, which was published in 1912); NEW HART’S RULES: THE OXFORD STYLE
GUIDE 77 (2nd ed., Oxford University Press 2014) (“The presence or lack of a comma before and or or in a list of
three or more items is the subject of much debate. Such a comma is known as a serial comma. For a century it has
been part of Oxford University Press style to retain or impose this last comma consistently . . . .”); see also BRYAN A.
GARNER, A DICTIONARY OF MODERN AMERICAN USAGE 537 (1998) (noting that of the two styles of comma usage—
open and close—the open style, which “results in fairly light uses of commas” was heavily favored in the 19th and
20th centuries and observing that “[w]hether to include the serial comma has sparked many arguments”). Finally,
separation of ideas can be effectuated or communicated other than by using commas, and in Article 11, this separation
is accomplished by the phrase “all other property”.
What is more notable than the absence of a comma after “public grounds” is the absence of a conjunction
before “public grounds”, which would be necessary to tether that language to the “all other property” language, as the
Court does. Also notable is the absence of a parenthetical comma where it would have to be if the Court’s construction
were correct. The Court’s interpretation and schematic articulation of Article 11 as creating only a single exemption
ignores these critical textual omissions. See ante at 17 n.13 & 21-22 n.19.
30
Leander Indep. Sch. Dist. v. Cedar Park Water Supply Corp., 479 S.W.2d 908, 912 (Tex. 1972)
(interpreting the permissive tax exemption in Article VIII, section 2, applicable to “public property used for public
purposes”).
31
Id. (“In this instance the Legislature is authorized to exempt ‘public property used for public purposes.’ It
is essential then that the property be used 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 ownership[.]” (emphasis added)).

7
“public property.” In this respect, Article 11’s inclusion of a public ownership requirement for the

first two exemptions as compared to the third exemption’s omission of the word “public” as a

property descriptor and simultaneous inclusion of “public” as a use descriptor precludes an

interpretation that requires the property to be publicly owned. In effect, Article 11 deems property

used by a public entity exclusively for the public’s benefit to be public property for purposes of

taxation.

The Court contends that Article 11 cannot be construed as containing three exemptions

without adding language limiting its application to governmental use, which it says would be

necessary to avoid the exemption’s application to private entities covered by certain permissive

exemptions in Article VIII, section 2 of the Constitution (Article 8). 32 But words do not have to

be added to effectuate that limitation because Article 11’s own text and placement within the

Constitution clarifies that only governmental entities are eligible for Article 11’s exemptions.

First, Article 11 is in a portion of the Constitution that pertains only to governmental entities. By

title, that portion of the Constitution is applicable to “Municipal Corporations” and every section

that falls within that article is applicable only to counties, cities, towns, and other municipal

corporations. 33 The specific section at issue here—Article 11, section 9—likewise pertains only

to counties, cities, and towns, which we have construed as applying to all governmental entities. 34

The Court’s fear that a three-exemption construction of Article 11 could be applied absent

32
Ante at 20.
33
TEX. CONST. art. XI, §§ 1-5, 7-9, 11-13.
34
Lower Colo. River Auth. v. Chem. Bank & Tr. Co., 190 S.W.2d 50, 52 (Tex. 1945).

8
governmental use is unfounded, and the Court’s contention that words would have to be added to

Article 11 to effectuate that limitation is incorrect.

Moreover, the Court’s alternative construction of Article 11 as containing only a single

exemption fails because it reads out the exclusive-use phrase and creates surplusage. Under the

Court’s reading, the phrase “property . . . owned and held only for public purposes” has an identical

meaning to the subsequent phrase “property devoted exclusively to the use and benefit of the

public”. 35 “Exclusively” in the exclusive-use provision and “only” in the public-ownership

provision both mean “sole”. 36 To hold property solely for public purposes means that it can only

be used for public purposes. Under the Court’s interpretation, the exclusive-use phrase is therefore

redundant of the public-ownership phrase because “only for public purposes” already encompasses

“exclusive[] to the use and benefit of the public”. 37 The only way to give effect to all of

Article 11’s language is to recognize that property exclusively “use[d]” by the public for the

“benefit of the public” is exempt from taxation even if not “owned” by the public. 38 Odyssey’s

leased property is used exclusively for public-education purposes and is therefore exempt under

Article 11’s plain language.

In arguing that Article 11 requires public ownership, the Court points to our opinion in

Lower Colorado River Authority v. Chemical Bank & Trust Co., in which we stated “the legislature

35
See TEX. CONST. art. XI, § 9.
36
Exclusive and Only, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1993). “[O]nly” also
means “exclusively.” Id.
37
See TEX. CONST. art. XI, § 9.
38
Id.; see Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (noting that we construe the
constitution so as to give effect to all of its words and “avoid constructions that would render any constitutional
provision meaningless”).

9
is without power to tax any property publicly owned and held only for public purposes and devoted

exclusively to the use and benefit of the public.” 39 Focusing on the opinion’s single-sentence

formulation and multiple uses of the conjunction “and,” the Court argues that Chemical Bank

effectively declared Article 11 as being composed of a single tax exemption that, in all

circumstances, requires the government’s legal or equitable ownership of property that would

otherwise be subject to taxation.

However, nothing about this formulation—read either in isolation or in the opinion’s

broader context—indicates that Chemical Bank was articulating Article 11 as a single exemption.

More plausibly, the Court was acknowledging that Article 11 provides multiple grounds for

exemption. The first “and” links the two requirements establishing exemption based on public

ownership while the second “and” introduces the exclusive-use exemption. If the Court were

setting out a single exemption, the proper grammatical choice would be to use a comma instead of

the first “and.” Replacing the first “and” with a comma would have clarified that it was listing

three requirements for a single exemption. As it did not, a more reasonable interpretation of

Chemical Bank is recognition that Article 11 is not composed of only a single exemption.

Chemical Bank also cannot be construed as supporting the Court’s holding today because

none of the parties in that case raised exclusive use as an independent basis for exemption, and the

Court did not address it. Indeed, the facts in Chemical Bank did not warrant such an analysis, as

the governmental entity in that case owned and controlled the property at issue. 40 The case before

39
190 S.W.2d at 52 (emphases added); see ante at 18.
40
Chem. Bank, 190 S.W.2d at 50.

10
us today provides a previously unaddressed factual scenario involving a public entity leasing

private property and devoting it exclusively to public use. This set of facts triggers the

exclusive-use exemption in a way that our past cases have not, and unlike the precedent the Court

relies on, applicability of that exemption has been expressly raised in this case.

The other cases the Court points to in support of its single-exemption construction of

Article 11 are not on point for similar reasons: the Court did not address the exclusive-use ground

for exemption in any of those cases, and none of those cases involved a public entity using property

it possessed, but did not own, only for public purposes. 41 Our precedent correctly states the

standard for the public-ownership exemptions but is silent as to the exclusive-use exemption. The

Court mistakes this silence as affirmation of its non-existence. But in reality, there is no conflict

between my construction of Article 11 and the outcomes reflected in our precedent.

With respect to Article 11’s text, the Court contends that reading exclusive use as being an

independent ground for exemption would make the public-ownership exemptions surplusage. 42

Viewing exclusive-use as an independent exemption would, the Court says, reduce the controlling

41
The Leander and Texas Turnpike cases involved property solely owned and possessed by private entities.
See Leander Indep. Sch. Dist. v. Cedar Park Water Supply Corp., 479 S.W.2d 908, 909-10, 912 (Tex. 1972)
(concerning whether a private company using its property for public purposes makes the property eligible for
exemption under Article VIII, section 2 of the Texas Constitution); Tex. Tpk. Co. v. Dallas County, 271 S.W.2d 400,
402 (Tex. 1954) (noting that private-entity petitioners had title to and “are, and will be, in possession and control of
the property” in assessing whether a public entity owned the property at issue). The City of San Antonio, A. & M.,
and Galveston Wharf cases involved property owned by the government. See State v. City of San Antonio, 209 S.W.2d
756, 757-58 (Tex. 1948) (addressing whether property owned by public entities was being used for public purposes
and therefore exempt from forced sale); A. & M. Consol. Indep. Sch. Dist. v. City of Bryan, 184 S.W.2d 914, 915-16
(Tex. 1945) (concerning whether property owned by a public entity was being used for public purposes and therefore
tax exempt); Galveston Wharf Co. v. City of Galveston, 63 Tex. 14, 23 (1884) (holding that a wharf partially owned
by the city was used only for public purposes because of the wharf’s role in state commerce and the public’s right to
use the wharf). None of these cases address the circumstances present here, where the government possesses but does
not own the property at issue.
42
Ante at 20-21.

11
inquiry to whether the property is being exclusively used for public purposes, owned or not,

because the public-ownership exemptions have their own exclusive-use component. 43 For that

reason, the Court asserts that construing Article 11 as having an independent exclusive-use

exemption would render the public-ownership exemptions meaningless. 44

It is true that exclusive use is a component of both the public-ownership and exclusive-use

exemptions, so in some cases the inquiries will overlap. But these exemptions address different

situations and are not identical. That is, the public-ownership exemptions apply to scenarios where

property is publicly owned but exclusively used by private persons for public purposes. This

scenario is exemplified by Galveston Wharf Co. v. City of Galveston, where the Court held that a

wharf partially owned by the City of Galveston, but not operated by the City, was nonetheless

entitled to a partial tax exemption because it was used for public purposes. 45

But because the public-ownership exemptions do not apply absent such ownership, they

do not encompass the obverse scenario: property privately owned but used by public entities

exclusively for public purposes. That is the situation presented in this case. Under my view of

Article 11, the public-ownership exemptions are not surplusage because they apply to scenarios

that are not covered by the exclusive-use exemption. Stated differently, Article 11 recognizes that

property used exclusively for the public may be owned but not possessed by a public entity and,

conversely, that such property may be possessed but not so owned.

43
Id.
44
Id.
45
63 Tex. at 23.

12
 The public-ownership exemptions cover the most obvious circumstances in which property

would be devoted “exclusively” to public purposes while the exclusive-use exemption functions

as a “catch all” that encompasses less common circumstances in which privately owned property

is nonetheless being used by the government exclusively for the public. Article 11’s specification

of exemptions for (1) property owned and held by the government only for public purposes, such

as improved property and chattels, and for (2) public grounds highlights those circumstances in

particular without negating an exemption for (3) “all other property” that is “devoted exclusively

to the use and benefit of the public”. 46 Rather, through this contrast, Article 11 emphasizes that

the phrase “all other property” means exactly what it says.

Additionally, the public-ownership language is not meaningless because the word “only”

further clarifies that, when public ownership is involved, the property must also be exclusively

used for public purposes. 47 “Only” dispels the notion that a different standard applies when public

ownership is involved than when it is not. Repetition of the exclusive-use requirement through

“only” and “all other property devoted exclusively to the use and benefit of the public” in

Article 11 clarifies that, regardless of ownership status, exclusive use by and for the public is

necessary for an Article 11 exemption. 48 Under the Court’s single-exemption construction, this

repetition serves no purpose.

Ultimately, the three-exemption construction of Article 11 is more reasonable than the

Court’s single-exemption construction. Interpreting Article 11 as providing three separate

46
See TEX. CONST. art. XI, § 9.
47
“[O]nly” means “exclusively.” Only, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1993).
48
See TEX. CONST. art. XI, § 9.

13
exemptions not only comports with and gives effect to the Constitution’s plain language and

grammatical structure, but also avoids taxing governmental entities that are using property

exclusively to benefit the public. Whether a lessee is charged directly with paying the tax bill, as

in this case, or whether tax costs are passed on indirectly through the cost of leasing, the economic

reality of the Court’s construction would result in “an idle expenditure of public funds” with the

government “engag[ing] in the senseless process of taxing itself.” 49

II. Preservation

The Court and the parties dispute whether Odyssey properly preserved its claim to an

automatic exemption under Article 11. The Court and the Galveston Central Appraisal District

argue that Odyssey failed to preserve the constitutional claim by raising it for the first time in its

briefing to this Court. Odyssey concedes Article 11 was first briefed here, but it contends the

argument is properly before the Court because Odyssey’s statutory- and constitutional-exemption

arguments under section 11.11 of the Tax Code and Article 8 of the Constitution rest on the same

premise: that the charter-school campus is tax exempt because it is used exclusively for public

purposes. I agree with Odyssey.

To preserve a complaint for appellate review, “a party must present to the trial court a

timely request, motion, or objection, state the specific grounds therefor, and obtain a ruling.” 50

The stated grounds for the ruling must be made “with sufficient specificity to make the trial court

49
See Lower Colo. River Auth. v. Chem. Bank & Tr. Co., 190 S.W.2d 48, 51 (Tex. 1945).
50
In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (citing TEX. R. APP. P. 33.1); see TEX. R. CIV. P. 166a(c)
(“Issues not expressly presented to the trial court by written [summary-judgment] motion, answer or other response
shall not be considered on appeal as grounds for reversal.”).

14
aware of the complaint.” 51 The rationale behind the preservation rules is that “[p]reservation of

error reflects important prudential considerations recognizing that the judicial process benefits

greatly when trial courts have the opportunity to first consider and rule on error.” 52 In essence,

“the trial court should have the chance to rule on issues that become the subject of the appeal.” 53

Even so, rules of error preservation “should not be applied so strictly as to unduly restrain appellate

courts from reaching the merits of a case.” 54 More to the point, a party is always “free to construct

new arguments in support of issues properly before the Court.” 55

Section 11.11(a) of the Tax Code provides a tax exemption for property “owned by this

state” and “used for public purposes.” 56 Article 8 of the Constitution authorizes the Legislature to

pass laws “exempt[ing] from taxation public property used for public purposes”. 57 In the trial

court, Odyssey raised claims under section 11.11 and Article 8 but not Article 11. Nevertheless, I

conclude Odyssey’s Article 11 argument is fairly subsumed in these preserved claims because all

three have “public purpose” as an essential element. Because those issues were preserved in the

courts below, Odyssey’s argument under Article 11 is essentially a new argument in support of

issues properly before the Court, not a new issue that was not preserved. 58

51
TEX. R. APP. P. 33.1(a)(1)(A).
52
Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex. 2014).
53
ETC Mktg., Ltd. v. Harris Cnty. Appraisal Dist., 528 S.W.3d 70, 74 (Tex. 2017).
54
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018).
55
Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014).
56
TEX. TAX CODE § 11.11(a).
57
TEX. CONST. art. VIII, § 2(a).
58
See Greene, 446 S.W.3d at 764 n.4.

15
 Accordingly, I would hold that Odyssey’s Article 11 exemption claim was preserved.

Addressing that claim, I cannot agree with the Court that Article 11 provides a tax exemption only

for property owned by a public entity. As I read the Constitution, Odyssey qualifies for exemption

under Article 11 because it exclusively uses its leased property to benefit the public. Because the

Court holds otherwise, I respectfully dissent.

______________________________
Justice Eva M. Guzman

OPINION DELIVERED: June 11, 2021

16