Who can collect rollback taxes on farmland that changed use, after the law moved that job to the appraisal district?

Plain-English summary

In Texas, farmland gets a tax break: it is appraised on its agricultural value rather than its market value. The trade-off is the "rollback" tax. When the owner stops using the land as farmland, the county claws back the difference for several past years, with interest. Fort Bend County had been pursuing a rollback against one landowner, and the county attorney asked the Attorney General who had the authority to collect it after a 1989 change in the law.

That 1989 amendment to Tax Code section 23.55(e) did two things. It moved the job of deciding that a change of use had happened, and of notifying the landowner, away from the elected tax assessor-collector and over to the chief appraiser of the appraisal district. And it reset the clock on when the rollback taxes come due. The county's problem was a timing one: the rollback had been calculated back in 1984, but the taxes were still unpaid when the new law took effect on September 1, 1989.

The Attorney General worked it out through a rule about how statutory changes apply to events already in motion. The 1989 amendment had no savings clause of its own, so the general savings rule in the Code Construction Act filled the gap. Under that rule, a new statute does not wipe out a liability that has already accrued or a collection proceeding already started. The practical line the opinion drew: if the assessor-collector had actually delivered a statement for the additional taxes and interest to the landowner before September 1, 1989, the old version of the law still governed and she could collect. If she had not delivered that statement in time, the new law controlled, and from then on only the chief appraiser could make the change-of-use determination, even for a change that happened before 1989.

The opinion stopped short of saying whether Fort Bend County had crossed that line. The county described a rollback calculation mailed in 1984 and an acknowledgment by the landowner's representative in 1989. Whether those facts amounted to delivering the required statement under the old statute was a question of fact, and the Attorney General does not resolve fact disputes in an opinion. On that final point, the AG declined to give a definitive answer.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Tax Code section 23.55 and the Code Construction Act have been amended since 1993, so confirm current law before relying on any rule, deadline, or interest figure described here.

Background and statutory framework

Subchapter D of chapter 23 of the Tax Code governs the appraisal of agricultural land. Section 23.55 sets the rollback ("additional tax") procedures that apply when the use of such land changes. Under subsection (a), the additional tax equals the difference between the taxes actually imposed under agricultural appraisal for each of the five years preceding the change and the taxes that would have applied at market value, plus interest at seven percent. Subsection (b) attaches a tax lien on the change-of-use date in favor of all taxing units; subsection (c) bars double imposition for a year already taxed; subsection (d) prorates the tax when only part of a parcel changes use.

Subsection (e), the provision at issue, was amended by Acts 1989, 71st Leg., ch. 796, § 20, with a September 1, 1989 effective date (§ 49(a)). Before the amendment (Acts 1981, 67th Leg., 1st C.S., ch. 13, § 71), the tax assessor was to prepare and deliver a statement for the additional taxes and interest after the change of use occurred, and the taxes became delinquent if unpaid before February 1 of the year after the change. The amendment moved the change-of-use determination and owner-notice function to the chief appraiser, and tied delinquency to the next February 1 falling at least 20 days after the bill is delivered.

Because the amendment carried no savings clause (Acts 1989, 71st Leg., ch. 796, § 49), the opinion turned to the Code Construction Act's general savings provision, Government Code section 311.031, applicable to the Tax Code through Tax Code section 1.03. Section 311.031(a)(1) and (4) preserve prior actions, accrued liabilities, and pending proceedings or remedies, which may be continued or enforced as if the statute had not been amended.

Citations

• Tax Code § 23.55, including subsections (a)-(e) (rollback taxes on change of use of agricultural land)
• Tax Code § 1.03 (Code Construction Act applies to Tax Code construction)
• Government Code § 311.031, § 311.031(a)(1), (a)(4) (general savings rule; prior actions, accrued liabilities, and pending proceedings preserved)
• Acts 1989, 71st Leg., ch. 796, §§ 20, 49 (the 1989 amendment to subsection (e); no savings clause)
• Acts 1981, 67th Leg., 1st C.S., ch. 13, § 71 (pre-amendment version of subsection (e))
• Spindletop Oil and Gas Co. v. Parker County, 738 S.W.2d 715, 720 (Tex. App.-Fort Worth 1987, writ denied)
• Attorney General Opinion JM-495 (1986) (AG opinions do not resolve fact questions)

Common questions

Who decides that farmland has changed use, triggering rollback taxes?
Since the 1989 amendment to Tax Code section 23.55(e), the chief appraiser of the appraisal district makes that determination and notifies the owner. Before the amendment, the county tax assessor-collector handled it.

Could the assessor-collector still collect on a change of use from before the amendment?
Only under a specific condition. The opinion concluded she retained authority under the old version of subsection (e) only if she had delivered a statement for the additional taxes and interest to the landowner before September 1, 1989. If she had not, the new version applied and only the chief appraiser could make the change-of-use determination.

Why did the old law still matter after the amendment took effect?
Because the 1989 amendment had no savings clause, the Code Construction Act's general savings rule (Government Code section 311.031) applied. Under it, a statutory amendment does not erase a liability already accrued or a proceeding already started, which may be continued as if the law had not changed.

Did the opinion say Fort Bend County could collect the taxes?
No. Whether the 1984 rollback calculation mailed to the landowner and the representative's alleged 1989 acknowledgment satisfied the pre-amendment statute were fact questions, and the Attorney General does not resolve fact disputes in an opinion. The AG declined to give a definitive answer on that point.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0220
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0220.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

April 27, 1993

Honorable Ben W. Childers
Fort Bend County Attorney
309 South Fourth St., Suite 621
Richmond, Texas 77469

Opinion No. DM-220

Re: Whether the Fort Bend County Tax Assessor/Collector may collect additional taxes for change of use of agricultural land in light of the 1989 amendment to section 23.55(e) of the Tax Code (RQ-325)

Dear Mr. Childers:

You have requested an opinion regarding the authority of the Fort Bend County Tax Assessor/Collector (the "tax assessor/collector") to collect certain additional taxes in light of a 1989 amendment to section 23.55(e) of the Tax Code.

Subchapter D of chapter 23 of the Tax Code pertains to the appraisal of agricultural land. Section 23.55 of the Tax Code sets forth the tax adjustment procedures that apply in the event of a change of use of agricultural land. The pertinent provisions of section 23.55 are as follows:

(a) If the use of land that has been appraised as provided by this subchapter changes, an additional tax is imposed on the land equal to the difference between the taxes imposed on the land for each of the five years preceding the year in which the change of use occurs that the land was appraised as provided by this subchapter and the tax that would have been imposed had the land been taxed on the basis of market value in each of those years, plus interest at an annual rate of seven percent calculated from the dates on which the differences would have become due.

(b) A tax lien attaches to the land on the date the change of use occurs to secure payment of the additional tax and interest imposed by this section and any penalties incurred. The lien exists in favor of all taxing units for which the additional tax is imposed.

(c) The additional tax imposed by this section does not apply to a year for which the tax has already been imposed.

(d) If the change of use applies to only part of a parcel that has been appraised as provided by this subchapter, the additional tax applies only to that part of the parcel and equals the difference between the taxes imposed on that part of the parcel and the taxes that would have been imposed had that part been taxed on the basis of market value.

(e) A determination that a change in use of the land has occurred is made by the chief appraiser. The chief appraiser shall deliver a notice of the determination to the owner of the land as soon as possible after making the determination and shall include in the notice an explanation of the owner's right to protest the determination. If the owner does not file a timely protest or if the final determination of the protest is that the additional taxes are due, the assessor for each taxing unit shall prepare and deliver a bill for the additional taxes plus interest as soon as practicable. The taxes and interest are due and become delinquent and incur penalties and interest as provided by law for ad valorem taxes imposed by the taxing unit if not paid before the next February 1 that is at least 20 days after the date the bill is delivered to the owner of the land.

Subsection (e) of section 23.55 was amended in 1989. See Acts 1989, 71st Leg., ch. 796, § 20, at 3598. The amendment had an effective date of September 1, 1989. See id. § 49(a).

Prior to that date, subsection (e) provided as follows:

The assessor shall prepare and deliver a statement for the additional taxes plus interest as soon as practicable after the change of use occurs. The taxes and interest are due and become delinquent and incur penalties and interest as provided by law for ad valorem taxes imposed by the taxing unit if not paid before February 1 of the year after the year in which the change of use occurs.

See Acts 1981, 67th Leg., 1st C.S., ch. 13, § 71, at 145. The amendment to subsection (e) not only shifted the authority to determine that a change of use of land has occurred from the tax assessor/collector to the chief appraiser, but also changed the date on which the additional taxes are due and become delinquent and incur penalties and interest from "February 1 of the year after the year in which the change of use occurs" to "the next February 1 that is at least 20 days after the date the bill is delivered." Compare Acts 1981, 67th Leg., 1st C.S., ch. 13, § 71 with Acts 1989, 71st Leg., ch. 796, § 20.

According to your query, in 1984 the tax assessor/collector calculated additional taxes for change of use of land for a particular landowner for several past tax years. On September 1, 1989, the amendment to subsection (e) went into effect, transferring the authority to determine that a change of use of land has occurred from the tax assessor/collector to the chief appraiser of the Fort Bend Central Appraisal District. As of that date, the additional taxes calculated by the tax assessor/collector had not been paid. You state that thereafter "[t]he Fort Bend Central Appraisal District used August 8, 1990 for the date of the use change allowing the tax office to only collect rollback taxes for 1984." You ask whether the tax assessor/collector has the authority to collect the additional taxes for the past tax years prior to 1984.

The amendment to subsection (e) was not enacted with a savings clause. See Acts 1989, 71st Leg., ch. 796, § 49, at 3606. Therefore, its construction should be guided by the general savings provision set forth in section 311.031 of the Code Construction Act. See Gov't Code § 311.031; Tax Code § 1.03 (Code Construction Act applies to the construction of Tax Code except as otherwise expressly provided). Section 311.031 provides that an amendment to a statute does not affect any prior action taken under the statute or any liability previously accrued under it. Id. § 311.031(a)(1), (4). Therefore, the amendment to subsection (e) would not invalidate any prior action taken by the tax assessor/collector under that provision or extinguish an existing liability for additional taxes owed as a result of a change of use of land.

In addition, section 311.031(a)(4) provides that the amendment of a statute does not affect "any investigation, proceeding, or remedy concerning any privilege, obligation, liability, penalty, forfeiture, or punishment." The investigation, proceeding, or remedy may be "instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been . . . amended." Gov't Code § 311.031(a)(4); see also Spindletop Oil and Gas Co. v. Parker County, 738 S.W.2d 715, 720 (Tex. App.-Fort Worth 1987, writ denied). Therefore, the provisions of the pre-amendment version of subsection (e) will continue to apply to any proceeding to collect additional taxes instituted prior to the effective date of the amendment. Under the pre-amendment version of subsection (e), a proceeding to collect additional taxes would have been instituted by delivering "a statement for the additional taxes plus interest" to the landowner. If the tax assessor/collector did not deliver "a statement for the additional taxes plus interest" prior to the effective date of the amendment, however, the new provisions will apply, even though the change of use occurred prior to the effective date.

On the basis of the foregoing principles, we conclude that the tax assessor/collector has the authority to collect the additional taxes under the pre-amendment version of subsection (e) if prior to the effective date of the amendment, i.e., before September 1, 1989, she sent the landowner a statement for additional taxes and interest in accordance with that provision. As of the effective date of the amendment, the authority to determine that a change of use of land has occurred and to notify the landowner of the determination shifted to the chief appraiser. In addition, the date on which the additional taxes are due and become delinquent and incur penalties changed. If the tax assessor/collector did not send the landowner a statement for additional taxes and interest in accordance with the pre-amendment version of subsection (e) prior to September 1, 1989, then the current version of that provision governs. Only the chief appraiser would be authorized to determine that a change of use of land has occurred and the taxes would be due on the next February 1 that is at least 20 days after the date the bill is delivered. Moreover, in that case, the tax assessor/collector would not be authorized to collect any additional taxes based on a change of use of land absent the chief appraiser's determination, even if the change of use of land occurred prior to September 1, 1989.

There appears to be some question here whether the tax assessor/collector actually sent the landowner a statement for additional taxes and interest in accordance with the pre-amendment version of subsection (e) prior to September 1, 1989. You state that "[i]n February of 1984, rollback taxes were calculated for [the landowner] and mailed by a Fort Bend County Tax Research Clerk. During that time period rollback taxes were calculated at the request of the [landowner]." You also state that in 1989 a representative of the landowner "acknowledged receiving the rollback taxes calculated by the tax office in 1984." Apparently, "[t]he [tax assessor/collector] believes that because [the landowner] was given notice of the change in land use and acknowledged same prior to the 1989 amendment, she has the authority to collect the rollback taxes." The determination whether the communication sent to the landowner in 1984 and the landowner's alleged acknowledgement of that communication in 1989 satisfy the pre-amendment version of subsection (e) would require the resolution of fact questions. We cannot resolve fact questions in an attorney general opinion, Attorney General Opinion JM-495 (1986), and are therefore unable to provide a definitive response to your query.

SUMMARY

The 1989 amendment of section 23.55(e) of the Tax Code shifted the authority to determine that a change of use of agricultural land has occurred and to notify the landowner of the determination from the Fort Bend County tax assessor/collector to the chief appraiser of the Fort Bend Central Appraisal District. The tax assessor/collector has the authority to collect the additional taxes at issue pursuant to the pre-amendment version of section 23.55(e) only if the tax assessor/collector sent the landowner a statement for additional taxes and interest prior to September 1, 1989, the effective date of the amendment.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee