dissenting.
The issue presented by this case is whether an Appraisal Review Board may reappraise property to include a value for improvements that were omitted when the land was originally appraised and taxes paid on the basis of the original appraisal and assessment. Prior to the adoption of Title I of the Tax Code, the answer was clearly that there could be no supplemental appraisal to include the omitted improvements in the absence of fraud. The majority finds the Tax Code has changed the law to now allow the “back appraisal” of those omitted improvements. Because I do not find the Tax Code changed the prior law in this regard, I respectfully dissent.
Citing as authority Yamini v. Gentle, 488 S.W.2d 839 (Tex.Civ.App.—Dallas 1972, writ ref’d n.r.e.) and State v. Chicago, Rock Island & Gulf Ry. Co., 263 S.W. 249 (Tex.1924), appellees argue that the Appraisal District, after entering its original 1984 appraisal of $175,980.00, then unlawfully “reappraised” or “back-appraised” the disputed property by adding the value of the real property improvements.
In Chicago, Rock Island, the Supreme Court held that once a tax assessment has been made and the assessed taxes paid on real property for a given tax year, no reassessment can be made of the property for the same tax year, even though the original assessment was for substantially less than the proper value. Chicago, Rock Island, 263 S.W. at 253. The Court, however, acknowledged the distinction between omitted property and reappraised property:
The case under consideration was pleaded and tried on the basis that all the property of the railway company, within the improvement district, was included in both the original and new assessments, and in such case the railway company could not be forced to pay additional taxes under the new assessment; but if, in the method used by the commissioners’ court in arriving at the value of the railway company’s property, some of the property of the company was not originally assessed and proper suit should be brought seeking an assessment of, or to collect taxes on, that property, then an entirely different question would be presented, and one we are not here required to determine.
Id. (emphasis mine).
In Yamini, a reassessment of real property was attempted when the taxing authorities discovered partially completed improvements on land that had been previously assessed and for which taxes had been timely paid. The court, citing State v. Whittenburg, 265 S.W.2d 569, 572-73 (Tex.1954), disallowed the reassessment because the plaintiff failed to prove fraud or other illegality which would have rendered the previous assessment void. Yamini, 488 S.W.2d at 842.
Before reaching its holding, however, the court addressed the issue of the applicability of Tex.Rev.Civ.Stat.Ann. art. 7207 (the predecessor the the current “omitted property” statute, Tex.Tax Code Ann. § 25.21). The court acknowledged that articles 7207, 7299, 7338, and 7846 gave the tax assessor the authority to render assessment of real property which “has not been assessed or rendered for taxation for prior years.” Yamini, 488 S.W.2d at 841. Yet it concluded:
Under the stipulation of the parties made in this case it is evident that none of these statutes is applicable for the simple reason that the real property in question had been assessed in due form on the 1968 tax rolls.
Id. In so concluding, the court implies that for purposes of determining the applicability of the “omitted property” statute, land and improvements must be treated as a single unit such that, if the unit is assessed a value, the taxing authority may not later *582reassess the improvements separately.1
As in Yamini, the parties in the instant case stipulated that the disputed property was duly appraised and that the appraised value was placed on the 1984 appraisal roll. Hence, the Yamini decision would suggest that Section 25.21 is inapplicable here.
Nevertheless, the majority holds that this Court should not apply the Yamini rule because it has been modified by the adoption of the Tax Code. Two provisions of the Tax Code are relied upon to support this conclusion: section 25.02(a) prescribing the form and content of appraisal records and section 1.04 defining real property as land, an improvement or other interests.
The predecessor of section 25.02, Tex. Rev.Stat.Stat.Ann. art. 7204, did not require an itemization of the value of improvements apart from the land by the assessor. The majority holds that, since “land” and “improvements” are now treated separately for purposes of recording, they should also be treated separately (and no longer as a single unit) for purposes of applying Section 25.21. I disagree.
Although Section 25.02 requires the appraiser to state a distinct and separate value for the land and the improvements, these amounts constitute two elements in determining the value of the property. The section deals with the form and content of the records to be maintained by the appraisal district, and the section is so entitled in its heading. I construe section 25.-02 to define and describe clerical duties to be performed by the appraisal district, and not to change the substantive law as expressed by Yamini, to the effect that both land and improvements are but two components of one taxable property, so that the omission of improvements from the appraisal and assessment does not constitute an “omission” of property from the rolls. Had the legislature intended by enacting section 25.02 that land and improvements be assessed and taxed separately and thus sever the improvements from the land upon which they are built, it would have spoken explicitly.
Similarly, I do not find that defining improvements to be realty effectuates a departure from the traditional definition that improvements are part of the land to which they are attached as stated in former article 7146, quoted in the majority opinion.
I fail to see how the enacting of section 25.02 in any way changes the rule set forth in Yamini. Hence, I conclude that the Appraisal District’s supplemental assessment was invalid and that the trial court correctly overturned the order issued by appellee.2
By allowing the separate taxation of the land and the improvements attached thereto, a number of problems may be foreseen. As such separate taxation is now allowed, will a lien for taxes attach to the improvements apart from the land, so that the taxing entity may foreclose the lien on one although taxes on the other have been fully and timely paid? To do so would result in a seizure or damaging of property for which no taxes are owing.
In the present case, there is no argument that the legislature lacked authority to provide for taxation of improvements apart from realty. Therefore, we assume that the authority exists and address the issue whether the Legislature effected such a change by the adoption of those two seemingly innocuous sections of the Code. I am not persuaded the Code may be so read.
As I would have held the trial court was correct in not allowing the taxing authority to tax improvements as a supplement to the already appraised and taxed land, I would affirm.
. See also Op.Tex.Att'y Gen. No. C-781 (1966).
. I recognize that my conclusion conflicts with the El Paso Court of Appeals’ decision in El Paso Central Appraisal District v. Montrose Partners, 754 S.W.2d 797 (Tex.App.—El Paso 1988, no writ). I do not find that case to be controlling.