Texas Attorney General Opinion: JC-372 Page: 2 of 8
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Mr. Robert J. Huston - Page 2
(b) This section applies to real and personal property used as
a facility, device, or method for the control of air, water, or land
pollution that would otherwise be taxable for the first time on or after
January 1, 1994.
(c) This section does not authorize the exemption from ad
valorem taxation of real or personal property that was subject to a tax
abatement agreement executed before January 1, 1994.
Tex. Const. art. VIII, 1-I (emphasis added). This constitutional provision uses the word "may"
with respect to the legislature's authority to adopt a statute, rather than "shall" or "must." Thus, it
permits but does not require the legislature to provide a tax exemption for pollution-control property.
See Rooms With A View, Inc. v. Private Nat '1 Mortgage Ass'n Inc., 7 S.W.3d 840, 844 (Tex.
App.-Austin 1999, pet. denied) ("We use the same guidelines in interpreting constitutional
provisions as we do interpreting statutes."); TEX. GOV'T CODE ANN. 311.016(1) (Vernon 1998)
(unless context requires a different construction the word "'[m]ay' creates discretionary authority
or grants permission or a power").
At the same time the legislature proposed this constitutional amendment, it also enacted
section 11.31 of the Tax Code as implementing legislation, which became effective on
January 1, 1994.3 Section 11.31 defines the property eligible for the tax exemption, see TEX. TAX
CODE ANN. 11.31 (a), (b), (g) (Vernon Supp. 2001), and establishes a procedure whereby taxpayers
seeking the exemption submit information to your agency, the TNRCC, for a determination as to
whether the property at issue is a pollution-control facility, device, or method, see id. 11.31 (c)-(f).
With respect to defining property eligible for the tax exemption, section 11.31 provides in
(a) A person is entitled to an exemption from taxation of all
or part of real and personal property that the person owns and that is
used wholly or partly as a facility, device, or method for the control
of air, water, or land pollution. A person is not entitled to an
exemption from taxation under this section solely on the basis that the
person manufactures or produces a product or provides a service that
prevents, monitors, controls, or reduces air, water, or land pollution.
Property used for residential purposes, or for recreational, park, or
scenic uses as defined by Section 23.81, is ineligible for an exemption
under this section.
3See Act of May 10, 1993, 73d Leg., R.S., ch. 285, 5, 1993 Tex. Gen. Laws 1322, 1324 (act to take effect
only upon voters' approval of constitutional amendment proposed by House Joint Resolution 86).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-372, text, 2001; (https://texashistory.unt.edu/ark:/67531/metapth274681/m1/2/: accessed April 24, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.