Texas Attorney General Opinion: JC-372 Page: 3 of 8
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Mr. Robert J. Huston - Page 3
(b) In this section, "facility, device, or method for the control
of air, water, or land pollution" means land that is acquired after
January 1, 1994, or any structure, building, installation, excavation,
machinery, equipment, or device, and any attachment or addition to
or reconstruction, replacement, or improvement of that property, that
is used, constructed, acquired, or installed wholly or partly to meet or
exceed rules or regulations adopted by any environmental protection
agency of the United States, this state, or a political subdivision of
this state for the prevention, monitoring, control, or reduction of air,
water, or land pollution. This section does not apply to a motor
Id. 11.31(a), (b). Consistent with the constitutional provision, the statute provides that the tax
exemption may not apply to a facility, device, or method for the control of air, water, or land
pollution that was subject to a tax abatement agreement executed before January 1, 1994. See id.
11.31(g). In addition, the legislation enacting section 11.31 provided that this tax exemption
applies only to pollution control property that is constructed, acquired, or installed after
January 1, 1994. See Act of May 10, 1993, 73d Leg., R.S., ch. 285, 5(b), 1993 Tex. Gen. Laws
The TNRCC is charged with administering the statute by determining whether property
qualifies for the pollution-control tax exemption. Specifically, the TNRCC is charged with
determining "if the facility, device, or method is used wholly or partly as a facility, device, or
method for the control of air, water, or land pollution." TEX. TAX CODE ANN. 11.31(d) (Vernon
Supp. 2001). In addition to determining whether the property controls pollution, the TNRCC must
also determine the proportion of the property devoted to that purpose. The statute provides that "[i]f
the installation includes property that is not used wholly for the control of air, water, or land
pollution, the person seeking the exemption shall also present such financial or other data as the
executive director requires by rule for the determination of the proportion of the installation that is
pollution control property." Id. 11.31(c). In the event a facility, device, or method is used only
partly to control pollution, the TNRCC must provide a letter stating what portion of the property is
a facility, device, or method for the control ofpollution. See id. 11.31(d) ("If the executive director
determines that the facility, device, or method is used wholly or partly to control pollution, the
director shall issue a letter to the person stating that determination and the proportion of the
installation that is pollution control property.").
You ask whether certain types of property at new facilities qualify for a tax exemption as
pollution-control property under section 11.31 of the Tax Code. Your question is limited to
equipment new to a location: "equipment for a process or product that has never been produced at
that location; that is, a new facility." Request Letter, supra note 1, at 2. You ask about two types
of equipment. You are concerned about that equipment that is added on to production equipment
to control pollution, which you refer to as "add-on control equipment." See Request Letter, supra
note 1, at 2. You are also concerned about equipment used to make a product that limits pollution
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-372, text, 2001; (https://texashistory.unt.edu/ark:/67531/metapth274681/m1/3/: accessed April 25, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.