Untitled Texas Attorney General Opinion ( 1951 )

Hon. Stewart W. Hellm4,n Opinion No. V-I&B 1
Grimm41 District Attorpex
Tar rant County Re: Ad v,aIerem t4xetion QI milk-
Fort Worth, Texas tary housin unite to be con-
structed an t maint4ined on
Carswell Air Force Ha&by
Dear sir: private enterprise.
In your Ietter of Jutr 24, 1951, you requested t&e opine
ion of thie ofGee as to State an& ID& 4tl valorem tax,ation of 4
military housiq project to be co~#kWr~!*scl on Carswell Air Foraa
Base in accordance with the proviaYons of the Mititar, Mousing
Act. P.L. 211, 81at C,ong. 1949, 63 Stat, 4%30, 12 U.S.’E . % 17,48.
You later sent US a photostatic copy of the proposed lea@ to be
executed by the Government and th,b lessee of the project.
The kase pro@tles &tat the ,@orarmnt will &s+&is the
described laad for ?S yeara to ,th.s Ie%&#r ,ta b,e ltaed for erecting,
: Inaitiainlng aad operating tke hou*~%q+ ,,4qiect. Lessee is 4o prf
thee Covcrnment hn annual rc@txl of $1 ii 0.00. PraMsion io m&e
for obtaining mor.tgsge insursdcn Qr&r Title VIf? OX Me Natimaal
Moustng Act. The leasee is r,@quired to leas,e all UW OS the hous-
i,ng prajcct to, such military a,ad c.iv$Wibm~rsontiel of @he &my,
blavy, Marina Corps or Air FWcra $tnEludi nf Co~ctsment pontrac-
tore’ sm,ployeee) assigned to &@ Uit the m% itaxg &@+MG&M$QOF tn
the axea ahere the inetallation 4, kabteal aa ~8 deei#W~eb ##ybhe
Commanding Officer. In the eve:nt the Commanding OfGicec &ils
to design&e such personnel &bin a steted periad. and rtpr~r other
stated conditi,arre, the Lessee map lease b&c unit6 to pbrW?U #%w
than said mili%ry or civilian personnel. Detailed px*iaio*s clb*Qr
laaaing 4Sreements made by the lessee.
The eighth covenant and condition of $he &se cbntra(;t
raad6, 10 part, 4s fbllows:
“8. That the Lessee *hall pay to the pro&r au?
thority, when and as the same become due ond payable,
all taxes, assessments, and similar charges whitb, at
any time during the term of this Lease, may be taxed,
assessed or imposed upon the Goverpment~or upon the
Lessee with respect to or upon the leased property. In
the event aqy taxes, a.ssessmeat,s o,i: similar qbarggs
are impsed with the consent of ~tbc Congress of the
. .
-.
;c,,
.
eon. St&art W. Hellman, Page 2 (V-1251)
United States ‘upon the property owned by the Gov.ern-
ment and included in this Lease (as ‘opposed to the
leasehold interest of the Lessee therein), this Lease
shall be renegotiated so as to accomplish,an equit&k
reduction in the rental provided above, which shall,%&
be greater than the difference between the ,amoi&-&
such taxes, assessments or similar charges ,awLBb
amount of any taxes, assessments or similar ch@ 8
*R\ich were imposed upon such Les,k%e With TW@%W Y,
to his lease-hold interest in the leased property @f&p
to the granting of such consent by the Congress,@ ,$#$
,United States; c”
At the expi,ration of ,the lease all fmprovemp?t~ v&a
i uw w ,@emise$ and at1 i,temg required to be tW+&f$a @ WV
lqa$,ee are to remain on the less,ed premises and be tla;e lorti@:N#
of the.Government without compensation.
,;
I
X&b. Stewart W. Hellman, Page 9 (V-1251)
of the leasehold interest woiaid be subject to tax. Art. 7173, V.CZ.S.;~
Daugherty v. Thomp,son, 71 Te%. 192, 9 S.W. .99 (18:&J);
1 72 T 97 12 S.W. 176 (1888). Article 524&, V.C
g’funda%ntal kk df iaw that lande and improvematis &8rmm
belonging to the United States are exempt from taxation; but it al-
so expressly provides as ,fpllows:
v
. . ‘, any portion of said lands and improvements whkh
is used and occupied by any person, firm, association
of person* or corporation in its private capacity, or
which is being used or occupied in the conduct of any
private business or enterprise, &all be subject TV taxs-
tion by this State and its mlitical subdiv.isio~s.”
The eighth covenant of the lease, previously quoted,
recognicds the possibility that 10~81 taxes might ac~crue ot~ thb I&I-
Bee’6 interest in military housing projects. We are of the opinfoD
tht in the absence of a eesoion of jurisdictia by the State such
taco would be vaIi#T inposed,, 91 Am. Fur. 28.0, Taxation, 0 218.
We will next conrrider the effect of a ceeaisn of “acla-
e$w, jurisdiction” on the t-ability of the teaeehold intered. &tic
ctc $a47 read~s as follows:
“Whenever the Unit~e4 Stafes shall acquke &ny
lands under IMar title, +t shall desire ,te s-&e cot%-
6tituMaaal juris&M4M war such lands icllr any purpoes
authoriied herein, it shall be law&L for the Goveruor,
, in the name and la behalf of the State, to cede to the
United States ex,cluaiva jurisdktion over atrg land8 EO
acquired, when application may be made to him fan) t&at
purpose, which application ohnlt be in w,rktizkg and ac-
companied with th% pxbger evidence of subbr, acquisition,
duly authenticated aad recorded, cont#&&g or haviw
aanexe,d thereto, anaccurbte description by metes and
bounds of the lahds sought to be ceded, Mo such ces-
slon shall ever be made except upon,tbe express CM&-
“Property held ondef a lease for a term 4 khr~e
years o,r more, ot brld uader a contract for the par-
chase thereof, belonging to this State, or that is exempt
by law from taxation in the hands of the owner thereof,
shall be considered for all the p,urposes of taxation, as
the property gf the gartaon sp hol&eg the same, exacgrt
es, otherwise special& prw$&d by law. . j *”
Han. 84swart W. NeUman, Page 4 (V-$251)
Ha that this Stat% shall retain concurrentr jurtadict6Qn
witlr the United States OY~P every portion of the lan&
so ceded, 80 far, that all proceea, Civil or criminal
i%ruiap under the authority of this State or any elf &e
aamts or judicial officer% thereof, may be exQcut%$
by the proper officers of the State, upon any @e,ra,#$)
amenable to the same within the limits of the tan& Ld
ucdad, in like manner and like effect as if no %ucb ce%-
rion had taken place; and au& eon&ion %&ad kg In*
%erted in such instrument of cession.”
This Article constitutes the only method of tran%f$r-
‘;;q,gg”7i,‘6” cj;;r;3$t&on* Cyryy v. S,mte, 111 Tex. Grim. 264,
Asruming that the Uov.ernor cedes “exctuoive jctp:ip,&%-
tioa” m the United States over the lands upon which the hou%inS
pa!@@& will be cortstructed and that such cession is accepted, we
U~O & the cplnion that the ceslrion would have the effect of exempt-
ing from State and local taxation all private property rights a@
i~ere~ 011 or within the bounds of ths area over wh$ch juri%die-
t&on is cad&d. This result would necessarily flow f,rom a grant of
e~elusive jurisdiction over land, since the State would,then lack
bhe rrquisite jurisdiction necessary to the imposition o’f any tt&~.
No ca%e% have cow&rued the phra,%ge “canstitut&na\ juri%&t&M”
a& “axclusive jurisdiction,” as ugrd in Article 5247, f@& the #us*
p@ae. of a%e%%ttair&ng their effect on the State’s jurltdiction to ta#f
pr:ivately owne,d property on or witbin the ,confines of: the t&i %+
eaded. The language used in these phrases is .ptsin, unam~Q@ui:
and all-ombrae~9 and would %eem to deprive the State of all ju,ri#-
Bi’ctioa withjn the ceded area except that which Article 5&41-kKpr#&S*
If”,perides shell be retained. Furthermore, the inelusion OS t&e
gxuv$s~o in this Ar,ticle is further indication that the only type of
ju;s&&$&ian 40 be retained by th% State of Texqa is a Poacuhrwnt
E Artid f,, @action 8, Clause pv,, of the Feuefal’ Ce##tu’tl$P3.,)ru*
vkfes that CQqr@ss fhall have the power 36 exercllee ez&+&wt
legislation . . . over all places purchaeed by the consent of the te *
i%lature of the state in which the s,ame shalt be, for the erection of
.-4%, magc%i,ne%, arserrals, dock-yards, and other needful buiiM-
&a&r. !’ Article 5242, V,C.S., (lives express leg>%lativa con%%DEto
,&I r~+p&iitiea of lands by the Government for the purpaser %;tatStti
i,n the prot’l@%m of the Federal Consti6catton just qui&ed ar wet1 a.%
for other putpo%e%; but the Cpurt in the case held that &ere
wa% ,+I@cesmion of juri%ds,ction by imp& tbie ta~uaqa of
&;kle S&t, R.S. of t895 &a~w aubetiatiaUjr~amb~ied ir Atticte
,
I
1,~ U. $. P. Ibis, 5 Mason, 346, fe was
held t&at b kervat%on in a o,esa,ioia 6f ‘aoncurrelat
jurisdictton’ to serve state pr,out~as, ciYi1 add srim*
inal, in the faded plsca, &es ,4x& t%a,Tgb3 t!ke
legisle,tion @r e8ctua&e juris:dii$fitisn of th$, ,V
over the cede8 place. It -1, oper’ated’as a condl-
Con of the grant. ‘ j L”
A,n examination of the statutes of other states \Nhk!li
have been interpreted as placing further qualifications upon cessiahs
of jurisdiction t.hau does our ~ststute,, as we interpret it, su6tains
our conclusian. The West virginfa statute conPide.redin Tame
g---j=
Draw Contracting.Go., 302 U.S. 134 (%93Jf’j, ceded to tie rute
~s’cbncurprnt jun?sdiction over lanky acquired by the Utited
States with’ the consent of the State. The Court held that the pro-
Vision=5 to co%eugrent jurisdiction qualified the provfsian giving
consent and that by v,irtue of this reservation the State retained
jurisdiction to t&x over lands purchased or condemned by the &Jai&#
States for navigation improvements. A Kansas gtatute ceded to the,
United States “exc’lusive jurisdiction” over tke ,land wi,thin the lim-
its of Fort Leavenworth but euprssslv resar,ved the right to sesv~e
civil and criminal process and “the right to tax railroad, bridge,
and other corpOraEons, their fr.an&ise~s end property, on said
./
Hun, Stewvt W. Hellman, Page 4 ,(V-12~51)
.
Reservation.” La-6 af Kansas, 1875, p. 95. The Court in Fort
Leavanwo,rth Ry. V. Lowe, 114 U.S. 525 (1’885), upheld the FmOf
me State to subject the railroad propekty to taxation. In each of
thesecases the State had retained the taxing power in cession6
&ff&knt fr,om those contemplated by the Texas- .etatut@.
S,UMMARY
The leaf,ehold interest in a military housing
project to be constructed, mai-tained, and operated
by private enterprise 0~ Carswell Air Force Base
will be subject to State and locals taxation unless ths
State of Texas cedes exclusive jurisdiction over the
lands on which the h,ouses will be built to the United’
States.
Yours very tsuly,
PRJCE DANIEL
Attorney General