Untitled Texas Attorney General Opinion ( 1975 )

,
T
OF TEXAS
AUSTIN. T``XAS 78711
Honorable Joe Resweber Opinion No. H- 570
Harris County Attorney
Harris County Courthouse Re: Tax status of real property
Houston, Texas 77002 subject to condemnation where,
after condemnor takes possession,
taking is reversed as arbitrary.
Dear Mr. Resweber:
You have requested our opinion regarding the interim tax status of
condemned property as to which, after the condemnor has taken possession,
the taking is declared invalid.
Article 7151, V. T. C. S., provides, in pertinent part:
. . . any. . . body politic having the power of condem-
nation shall take over the possession of property
under authority of any law authorizing it to condemn
said property, or under an option to buy said property
from the owner, or under an agreement b,y th,e owner
to sell said property, or shall comply with the laws
relating to condemnation to such an extent as to entitle
it to the possession of said property, or to constitute
a taking thereof from the owner or person in whose
name title rests, then such condemni.ng authority shall
be considered the owner of said property for the purposes
of all taxation from the date of taking possession thereof,
or from the date of its complying with the condemnation laws
to the extent that it is entitled to possession of said property,
or from the date it has complied with the condemnation laws
to the extent that there has been a taking of said property
from the owner, whichever occurs first.
In the present Instance, the Cit,y of Houston condemned a tract of land
and took possession thereof on March 19, 1969, after~ depositing the amount of
the Commissioners’ award into the registry of the County Court, pursuant to
article 3268, V. T. C. S. On trial of the matter, a jury found that the taking, was
p. 2552
The Honorable Joe Resweber - Pag e 2 (H-570)
arbitrary and capricious, and the original owner was restored to possession
in February, 1974. See City of Houston v. Hamons, 496 S. W. 2d 662 (Tex.
Civ. App. -- Houston73, writ ref’d ‘n. r. e. ). Presently at issue is the
tax status of the property during the period d its possession by the City of
Houston.
Should it be determined that the individual retained ownership of the
property for tax purposes duxing, this interim period, he would be liable for
all taxes accruing therein, for any other result would have the effect of
granting tax-exempt status to otherwise non-exempt private property., In
order to qualify for the “public property” exemption of article 11, section 9
of the Texas Constitution,
[ i]t iii essentidl.:. . that the’.property be us.ed 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 owner-
ship, and the Texas courts have never held to the
contrary. We accordingly now hold that the clause in
question authorizes the Legislature to exempt only
nubliclv owned property used for public purposes.
Leander Independent Sdhool District v. Cedar Park
Water Supply Corp., 479 S. W. 2d 908 (Tex. Sup.
1972~).
The proviso of article 7151 is framed in the disjunctive: the con-
demning authority ~must either “take over the possession of property under
authority of any law authorizing it to’condemn said property. . . or.. .
comply with the laws rel~ating to condemnation. . . ” (Emphasis ;i-aaed).
Although the taking in this case was subsequently reversed because the
City failed to comply with. the laws relating to condemnation, the City
nevertheless originally took possession of the land “under authority of”
article 3260, which specifically permits possession pending litigation.
Furthermore, the City did !‘comply with the laws relating to condemnation”
to the degree that it was able to secure posse~ss,ion during the interim period.
We are therefore of the opinion t&hat the City of Houston complied with the
proviso of article 7151 to the extent that, between~March 19, 1969, +-id that
date in February 1974, on which the individual ,resumed possession, the City
must be “considered the owner of said property for purposes of all taxation. ”
We believe that such ownership for tax purposes sufficiently complies
with the standard promulgated in Leander, supra, which restricts tax-exempt
status to “publicly owned property used form purposes. ‘I During the
interim period, the former owner derived no more benefit from, and held no
.
p. 2553
,
,
The Honorable Joe Resweber ‘- Page 3 (H-570)
more legal right to t:he property th,an he would have enjoyed had the jury
subsequentl,y val.idated the condemnation. Accordingl.y, we hold that, during
this period, the t:ax status of t.he rea,it:y In question was that of tax-exempt,
city owned propert:y.
SUMMARY
-=
Where a grvernmental unit L&es possession of real
property pursuant: to t:he con,demnation laws, and the
taking ,is subsequeni:Ey reversed, t:he tax status of the
real,ty during the interim period is t,hat of tax,-exempt
property owned ‘by the condemning governmental unit.
Very truly yours,
Attmrney General of Texas
APPROVED:
_-
C. ROBERT HEATH, C-mm
Opi,nion Commit:t.ee
po 2554