Affirmed and Opinion filed March 19, =
2009.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00990-CV
____________
AMERICAN=20
HOUSING FOUNDATION AND BRANDYWOOD HOUSING, =
LTD., =
Appellants
V.
HARRIS=20
COUNTY APPRAISAL DISTRICT, =
Appellee
On Appeal from the =
190th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2003-69254A
O P I N I=20
O N
A Texas=20
limited partnership that holds title to an apartment complex and =
the=20
non-profit corporation that owns the general partner of the =
limited=20
partnership appeal the trial court=3Ds summary=20
judgment rejecting their claims that the complex is entitled to =
property=20
tax exemptions under section 11.182 of the Texas Tax Code. =
These=20
entities assert on appeal that subsection (e) of that section =
applies to=20
housing projects constructed before December 31, 2001, and that =
this=20
section extends tax-exempt status to property that would not be =
exempt=20
under subsection (b) of that section. Concluding that these=20
arguments lack merit, we affirm the trial court=3Ds=20
judgment.
=
; =
=20
I. Factual and =
Procedural=20
Background
This case involves =
the issue of=20
whether the purported owners of the Brandywood Apartments =
(hereinafter=20
AApartments@) are entitled to an =
exemption=20
from property taxes under section=20
11.182 of the Texas Tax Code=20
during tax years 2002 and 2003. The apartment complex is a=20
low-and-moderate-income housing project in Harris County, =
Texas. The=20
following facts relevant to the exemptions for these two tax years =
are=20
undisputed. The Apartments were constructed before December =
31,=20
2001. Appellant American Housing Foundation (hereinafter=20
AAmerican@) was a=20
Texas non-profit corporation and a Community Housing Development=20
Organization (ACHDO@). =20
American was the sole shareholder of Brandywood Apartments, Inc., =
a Texas=20
corporation (ABrandywood@). =20
Brandywood owned 1% of and was sole general partner of Brandywood =
Housing,=20
Ltd., a Texas limited partnership (hereinafter AHousing@). =20
Housing was the holder of title to the property on which the =
Apartments=20
are located. An unrelated entity was the limited partner in =
Housing=20
and owner of a 99% interest in Housing.
As to tax=20
years 2002 and 2003, Brandywood and Housing (hereinafter =
collectively=20
AClaimants@) sought=20
an exemption from property tax for the Apartments under section=20
11.182. =20
Appellee Harris=20
County Appraisal District (hereinafter the =
ADistrict@) denied =
Claimants=3D requests for =
exemption. =20
Claimants protested this determination before the appropriate =
appraisal=20
review board, which also denied the requests for exemption. =20
Claimants then sought review in the district court below and also =
sought=20
declarations under the Uniform Declaratory Judgments Act. =
See=20
Tex. Civ. Prac. & =
Rem. Code=20
'=20
37.001, et=20
seq. (Vernon 2008).
In its motion for =
summary=20
judgment, the District asserted that summary judgment should be =
granted=20
because:
(1) =
Under=20
subsection (b), to be entitled to an exemption, the organization =
that owns=20
the property must be a CHDO. However, Housing, the titleholder to =
the=20
property in question, is not a CHDO, and, though American is a =
CHDO, it=20
owns only a 1% interest in Housing.
(2) =
Claimants=20
assert that, even though they are not entitled to an exemption =
under=20
subsection (b), they are entitled to an exemption under subsection =
(e). However, subsection (e) applies only to housing =
projects built=20
after December 31, 2001, and the Apartments were built before =
December 31,=20
2001.
The Claimants filed a =
motion=20
for summary judgment asserting that subsection (e) applies to =
housing=20
projects constructed both before and after December 31, 2001, and =
that=20
section 11.182(e) extends the scope of the exemption available =
under=20
section 11.182 so as to allow Claimants to obtain the exemption =
because=20
the CHDO owns 100% of Brandywood (the general partner of the =
titleholder)=20
and because American satisfies the applicable requirements of =
section=20
11.182. The trial court denied Claimants=3D motion and granted =
the=20
District=3Ds motion. The =
Claimants=20
appeal the trial court=3Ds final summary=20
judgment.
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II. Issues=20
Presented
The Claimants assert =
the=20
following appellate issues:
(1) =
Whether=20
section 11.182 allows limited partnerships to claim a property tax =
exemption under the specific requirements of subsection =
(e).
(2) =
Whether=20
subsection (e) applies to properties constructed both before and =
after=20
December 31, 2001.
(3) =20
Whether the trial court erred in failing to grant the=20
Claimants=3D motion for summary=20
judgment.
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III. Standard of=20
Review
In a=20
traditional motion for summary judgment, if the =
movant=3Ds motion and =
summary-judgment=20
evidence facially establish its right to judgment as a matter of =
law, the=20
burden shifts to the nonmovant to raise a genuine, material fact =
issue=20
sufficient to defeat summary judgment. M.D. Anderson =
Hosp. &=20
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. =
2000). =
In our de=20
novo review of a trial court=3Ds summary=20
judgment, we consider all the evidence in the light most favorable =
to the=20
nonmovant, crediting evidence favorable to the nonmovant if =
reasonable=20
jurors could, and disregarding contrary evidence unless reasonable =
jurors=20
could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d =
572, 582=20
(Tex. 2006). The evidence raises a genuine issue of fact if=20
reasonable and fair-minded jurors could differ in their =
conclusions in=20
light of all of the summary-judgment evidence. Goodyear =
Tire=20
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).=20
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IV. Relevant Statute
In pertinent part, =
section=20
11.182 provides as follows:
(a) In this section:
. . .
(2) ACommunity housing development=20
organization@ has the meaning assigned by 42 U.S.C. =
Section=20
12704.
(b) An organization is entitled =
to an=20
exemption from taxation of improved or unimproved real property =
it owns=20
if the organization:
(1) is organized as a community housing=20
development organization;
(2) meets the requirements of a =
charitable=20
organization provided by Sections 11.18(e) and (f);
(3) owns the property for the =
purpose of=20
building or repairing housing on the property to sell without =
profit to a=20
low‑income or moderate‑income individual or family =
satisfying the=20
organization's eligibility requirements or to rent without profit =
to such=20
an individual or family; =20
=
and =20
(4) engages exclusively in the building, =
repair,=20
and sale or rental of housing as described by Subdivision (3) and =
related=20
activities.
(c) Property owned by the organization =
may not be=20
exempted under Subsection (b) after the third anniversary of the =
date the=20
organization acquires the property unless the organization is =
offering to=20
rent or is renting the property without profit to a =
low‑income or=20
moderate‑income individual or family satisfying the =
organization's=20
eligibility requirements.
(d) A multifamily rental property =
consisting of 36=20
or more dwelling units owned by the organization that is exempted =
under=20
Subsection (b) may not be exempted in a subsequent tax year unless =
in the=20
preceding tax year the organization spent, for eligible persons in =
the=20
county in which the property is located, an amount equal to at =
least 40=20
percent of the total amount of taxes that would have been imposed =
on the=20
property in that year without the exemption on social, =
educational, or=20
economic development services, capital improvement projects, or =
rent=20
reduction. This subsection does not apply to property =
acquired by=20
the organization using tax‑exempt bond financing after =
January 1, 1997,=20
and before December 31, 2001.
(e) In addition to meeting the =
applicable=20
requirements of Subsections (b) and (c), to receive an =
exemption=20
under Subsection (b) for improved real property that =
includes a=20
housing project constructed after December 31, 2001, and =
financed=20
with qualified 501(c)(3) bonds issued under Section 145 of the =
Internal=20
Revenue Code of 1986, tax‑exempt private activity bonds =
subject to volume=20
cap, or low‑income housing tax credits, the organization =
must:
(1) control 100 percent of the =
interest in=20
the general partner if the project is owned by a limited=20
partnership;
(2) comply with all rules of and laws =
administered=20
by the Texas Department of Housing and Community Affairs =
applicable to=20
community housing development organizations; and
(3) submit annually to the Texas =
Department of=20
Housing and Community Affairs and to the governing body of each =
taxing=20
unit for which the project receives an exemption for the housing =
project=20
evidence demonstrating that the organization spent an amount equal =
to at=20
least 90 percent of the project=3Ds cash flow in the preceding fiscal year =
as=20
determined by the audit required by Subsection (g), for eligible =
persons=20
in the county in which the property is located, on social, =
educational, or=20
economic development services, capital improvement projects, or =
rent=20
reduction.
Tex.=20
Tax Code Ann. =
' =
11.182=20
(Vernon 2008) (emphasis added).
The=20
principal issues in this appeal turn on the interpretation of this =
statute. We review the trial court=3Ds=20
interpretation of applicable statutes de novo. See =
Johnson v.=20
City of Fort Worth, 774 S.W.2d 653, 655B56 (Tex.=20
1989). In construing a statute, our objective is to =
determine and=20
give effect to the legislature=3Ds=20
intent. See Nat=3Dl Liab.=20
& Fire Ins. Co. v. Allen, 15=20
S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain =
that=20
intent from the language the legislature used in the statute and =
not look=20
to extraneous matters for an intent the statute does not =
state. =20
Id. If the meaning of the statutory language is =
unambiguous,=20
we adopt the interpretation supported by the plain meaning of the=20
provision=3Ds=20
words. St. Luke=3Ds=20
Episcopal Hosp. v. Agbor, 952=20
S.W.2d 503, 505 (Tex. 1997). We must not engage in forced or =
strained construction; instead, we must yield to the plain sense =
of the=20
words the legislature chose. See id. =
Legislative intent=20
is gleaned from the statute as a whole, and statutes are =
interpreted to=20
give effect to every part of the whole. State ex rel. =
State=20
Dep=3Dt of=20
Highways & Public Transp. v. Gonzalez, 82=20
S.W.3d 322, 327 (Tex. 2002).
Exemptions=20
from taxation are not favored by the law and will not be favorably =
construed. North Alamo Water Supply Corp. v. Willacy =
County=20
Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991). =
Statutory=20
exemptions from taxation are subject to strict construction =
because they=20
undermine equality and uniformity by placing a greater burden on =
some=20
taxpaying businesses and individuals rather than placing the =
burden on all=20
taxpayers equally. Id. Accordingly, the burden =
of proof=20
of clearly showing that the organization falls within the =
statutory=20
exception is on the claimant seeking the exemption. =20
Id.
=
; =
&=
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V. Analysis
A. =20
Does subsection (e) expand the category of properties that are =
entitled to=20
exemption under subsection (b)?
In their=20
first issue, Claimants assert that subsection (e) modifies =
subsection (b)=20
to expand the availability of exemptions to properties owned by =
certain=20
limited partnerships that previously had been ineligible for the =
exemption=20
under subsection (b). Under their first issue, Claimants =
argue the=20
following points:
! =20
To be entitled to an exemption under subsection (b), the =
organization that=20
owns the property, among other things, must be a CHDO.
! =20
Housing, the holder of =
title to the=20
property on which the Apartments are located, is a Texas =
limited=20
partnership.
! =20
As a matter of law, Texas limited partnerships can never be CHDOs; =
therefore, Housing is not a CHDO.
! =20
Because Housing is not a CHDO, the Claimants cannot be entitled to =
an=20
exemption under subsection (b), absent an equitable title argument =
which=20
Claimants state Ais not directly at =
issue in=20
this appeal.@
! =20
By adding subsection (e), effective January 1, 2002, the Texas =
Legislature=20
expanded the exemption available under subsection (b) and made it=20
available to a new group of ownersCowners who are =
limited=20
partnerships (and thus do not satisfy the requirements of =
subsection (b))=20
but whose respective general partners are 100% owned by =20
organizations that satisfy the requirements of subsections =
(b),(c), and=20
(e).
! =20
The phrase Aapplicable =
requirements of=20
Subsections (b) and (c),@ as used in =
subsection (e)=20
means that, an owner who is a limited partnership is required to =
satisfy=20
only the requirements of subsections (b) and (c) that a limited=20
partnership is capable of satisfying. If this construction =
is not=20
adopted, then subsection (e) is rendered meaningless, because =
subsection=20
(e) contemplates that an exemption may be obtained when the =
property is=20
owned by a limited partnership.
! =20
American owns 100% of Housing=3Ds sole=20
general partner. American satisfies all Aapplicable=20
requirements@ =
of=20
subsections (b), (c), and (e). Therefore, Claimants are =
entitled to=20
an exemption under subsection (e).
The Texas=20
Legislature added subsection (e) effective January 1, 2002.=20
See Act of May 25, 2001, 77th Leg., R.S., ch. 1191,=20
' =
1, 2001=20
Tex. Gen. Laws 2694, 2695B96. =20
In making this addition to the statute, the Texas Legislature, in=20
pertinent part, stated that A[i]n=20
addition to meeting the applicable requirements of Subsections (b) =
and=20
(c), to receive an exemption under Subsection (b) . . . the =
organization=20
must . . . control 100 percent of the interest in the general =
partner if=20
the project is owned by a limited partnership.@ =20
Under its unambiguous language, subsection (e) imposed additional=20
requirements beyond the applicable requirements of subsections (b) =
and=20
(c). In subsection (e), the Texas Legislature did not create =
a new=20
exemption or expand the exemption that already existed under =
subsection=20
(b). Instead, to the extent that subsection (e) applies, it =
adds new=20
requirements that must be satisfied to obtain the exemption =
provided under=20
subsection (b). See Tex. Tax Code Ann. =
' =
11.182;=20
Jim Wells County Appraisal Dist. v. Cameron Village, Ltd., =
238=20
S.W.3d 769, 773B75 (Tex.=20
App.CSan=20
Antonio 2007, pet. filed); TRQ Captain=3Ds Landing=20
L.P. v. GCAD, 212=20
S.W.3d 726, 735 (Tex. App.CHouston=20
[1st. Dist.] 2006, pet. granted). To adopt =
Claimants=3D =
construction would render meaningless the words Ain=20
addition to@ =
and=20
Ato receive=20
an exemption under Subsection (b).@ =20
If the=20
property in question has been owned by the same organization for =
more than=20
three years, then, under subsection (c), the property may not be =
exempted=20
under subsection (b), unless the organization is =
offering to=20
rent or is renting the property without profit to a =
low‑income or=20
moderate‑income individual or family satisfying the=20
organization=3Ds eligibility=20
requirements. =20
See Tex. Tax Code =
Ann. ' =
11.182(c). This requirement applies to organizations that =
have owned=20
the property for more than three years but not to organizations =
that have=20
owned the property for less than three years. See =
id. =20
The unambiguous meaning of Aapplicable=20
requirements of Subsections (b) and (c)@ =
is the=20
requirements of subsections (b) and (c) that apply to the =
organization in=20
question. See id. ' =
11.182;=20
Cameron Village, Ltd., 238 S.W.3d 769, 775B76. =20
However, under subsection (b), the Texas Legislature required all =
owners=20
to be CHDOs to be eligible for an exemption under subsection (b),=20
and therefore, the requirement that the organization that =
owns the=20
property be a CHDO is applicable to all organizations. =
See=20
Cameron Village, Ltd., 238 S.W.3d 769, 775B76. =20
The Claimants=3D =
proffered=20
construction of the phrase Aapplicable=20
requirements of Subsections (b) and (c)@ =
is=20
contrary to that phrase=3Ds plain=20
meaning. See id.
As=20
Claimants point out, the language of subsection (e) indicates that =
property may be exempted under subsection (b), even though the =
titleholder=20
to the property is a limited partnership, which would not be a =
CHDO or a=20
charitable organization. Nonetheless, this language is not =
rendered=20
meaningless by this court=3Ds failure=20
to adopt Claimants=3D =
proffered=20
construction. This language has meaning if, as the First =
Court of=20
Appeals has held, a charitable organization that is a CHDO, that =
satisfies=20
the applicable requirements of subsection (b) and (c), and that is =
the=20
equitable owner of the property can be considered to Aown@ =
the=20
property within the meaning of subsection (b). See =
Tex. Tax Code Ann. =
' =
11.182(b); Harris County Appraisal District v. Primrose Houston =
7=20
Housing, L.P., 238 S.W.3d 782, 786B88 =20
(Tex. App.CHouston=20
[1st. Dist.] 2007, pet. filed); TRQ Captain=3Ds Landing=20
L.P., 212=20
S.W.3d at 732B36. =20
Claimants did not assert in the trial court that American is the =
equitable=20
owner of the Apartments. Though they did make this assertion =
in=20
their reply brief on appeal, they did not make this argument in =
their=20
opening appellate brief. Therefore, Claimants have waived =
the=20
contention that they qualify for the exemptions because American =
is the=20
equitable owner. =20
For the reasons stated above,=20
Claimants=3D =
arguments=20
under their first issue are contrary to the unambiguous language =
of=20
section 11.182 and lack merit. Accordingly, we overrule the =
first=20
issue.
B. =20
Does section 11.182(e) apply even though the Apartments were =
constructed=20
before December 31, 2001?
In their=20
second issue, Claimants assert that subsection (e) applies to =
housing=20
projects constructed both before and after December 31, =
2001. Under=20
their second issue, Claimants argue as follows:
! =20
Under the Code Construction Act and common law, unless the statute =
or=20
context in which Aincludes@ is used require =
otherwise,=20
Aincludes@ is a term of =
enlargement and=20
not of limitation or exclusive enumeration, and its use does not =
create a=20
presumption that components not expressed are excluded. =
See=20
Tex. =
Gov=3Dt=20
Code Ann. '=20
311.005(13) (Vernon 2005). =
! =20
The Texas Legislature intended subsection (e) to apply to =
exemptions for=20
the 2002 tax year as to housing projects that were under =
construction on=20
January 1, 2002, but not completed on that date. Therefore, the =
Texas=20
Legislature stated that subsection (e) applies to Aimproved real property that includes a =
housing=20
project constructed after December 31, 2001.@
! =20
To give effect to the meaning of Aincludes@ under the Code =
Construction=20
Act and common law, courts should construe subsection (e) to apply =
to=20
housing projects constructed both before and after December 31,=20
2001.
! =20
The significance that the Texas Legislature attributed to capital=20
improvements under subsection (e)(3) indicates that the Texas =
Legislature=20
intended subsection (e) to apply to housing projects constructed =
before=20
January 1, 2002. The fact that subsection (e)(3) allows 90% =
of the=20
project=3Ds cash flow in the =
previous=20
fiscal year to be spent on capital improvement projects strongly =
indicates=20
that the Texas Legislature intended subsection (e) to apply to =
projects=20
completed before January 1, 2002.
! =20
It would be arbitrary to construe subsection (e) to apply only to =
projects=20
constructed after December 31, 2001 and not to projects =
constructed before=20
December 31, 2001 and repaired after that date. =20
As=20
discussed above, the Texas Legislature enacted subsection (e) to =
be=20
effective January 1, 2002 and to impose additional requirements =
that must=20
be satisfied to obtain an exemption under subsection (b), beyond =
the=20
applicable requirements of subsections (b) and (c). In =
subsection=20
(e), the Texas Legislature did not create a new exemption or =
expand the=20
exemption that already existed under subsection (b). In =
addressing=20
the second issue, we must decide whether subsection (e) applies to =
housing=20
projects, such as the Apartments, that were constructed before =
December=20
31, 2002. In the pertinent part of subsection (e), the Texas =
Legislature stated that A[i]n=20
addition to meeting the applicable requirements of Subsections (b) =
and=20
(c), to receive an exemption under Subsection (b) for improved =
real=20
property that includes a housing project constructed after =
December 31,=20
2001 . . . the organization must . . . .@ =20
Under its unambiguous language, subsection (e) sets forth =
additional=20
requirements for parties seeking an exemption under subsection (b) =
for=20
improved real property that has upon it a housing project =
constructed=20
after December 31, 2001; if the real property includes a housing =
project=20
constructed before December 31, 2001, then subsection (e) does not =
apply. See Tex. =
Tax Code=20
Ann. ' =
11.182(e); Cameron Village, Ltd., 238 S.W.3d at 774; TRQ =
Captain=3Ds Landing=20
L.P., 212=20
S.W.3d at 735B36; Am.=20
Housing Foundation v. Calhoun County Appraisal Dist., 198 =
S.W.3d 816,=20
818B19 (Tex. =
App.CCorpus Christi 2006, =
pet.=20
denied); Am. Housing Foundation v. Brazos County =
Appraisal=20
Dist., 166 S.W.3d 885, 888B89 (Tex.=20
App.CWaco 2005,=20
pet. denied). Contrary to Claimants=3D =
arguments, the intent expressed in the unambiguous language =
selected by=20
the Texas Legislature was not to have subsection (e) apply =
regardless of=20
when the housing project was constructed and to simply clarify =
that=20
subsection (e) applies to housing projects in which construction =
began=20
before January 1, 2002 and was completed after that date. =
Adopting=20
Claimants=3D =
proffered=20
construction would render meaningless the words Aconstructed=20
after December 31, 2001.@ =20
See =
Am. Housing=20
Foundation,=20
198 S.W.3d at 819.
The Code=20
Construction Act and common law upon which Claimants rely state =
the rule=20
that Aincludes@ =
and=20
Aincluding,@ =
unless=20
the context shows otherwise, do not indicate a limitation or =
exclusive=20
enumeration. For example, the phrase, Amotions,=20
including motions for summary judgment,@ =
does not=20
limit the motions in question to only motions for summary =
judgment. =20
Claimants=3D =
argument=20
proceeds as if, in subsection (e), the Texas Legislature had used =
the=20
words Ato receive=20
an exemption under Subsection (b) for real property, including =
improved=20
real property upon which a housing project was constructed after =
December=20
31, 2001.@ =20
However, the Texas Legislature did not choose this language. =
Instead, in subsection (e), the clause Athat=20
includes a housing project constructed after December 31, =
2001@ =
modifies=20
Aimproved=20
real property.@ The=20
word Aincludes@ =
is not=20
used in an exclusive sense; the improved real property can include =
elements other than a housing project constructed after December =
31,=20
2001. See=20
Am. Housing Foundation, 198 S.W.3d at =
818B19. =20
Nonetheless, the Texas Legislature chose to make the additional=20
requirements of subsection (e) applicable prospectively and only =
to=20
organizations seeking an exemption under subsection (b) for =
improved real=20
property that includes a housing project constructed after =
December 31,=20
2001. Construing subsection (e) in this manner accords with =
the Code=20
Construction Act and common law. See Tex. Gov=3Dt=20
Code Ann. '=20
311.005(13); =
Am. =
Housing=20
Foundation,=20
198 S.W.3d at 818B19. =20
Claimants=20
assert that the requirement contained in subsection (e)(3) shows =
that the=20
Texas Legislature intended subsection (e) to apply to housing =
projects=20
completed before January 1, 2002. Under subsection (e)(3), the=20
organization must Asubmit annually . . . =
evidence=20
demonstrating that the organization spent an amount equal to at =
least 90=20
percent of the project=3Ds cash flow in the =
preceding=20
fiscal year . . . for eligible persons in the county in which the =
property=20
is located, on social, educational, or economic development =
services,=20
capital improvement projects, or rent reduction.@=20
Tex. Tax Code Ann. =
' =
11.182(e)(3). This language does not indicate that =
subsection (e)=20
applies to housing projects completed before January 1, =
2002. This=20
part of the statute requires the organization to show that 90% of =
the=20
project=3Ds cash flow in the =
preceding=20
fiscal year was used for one of five=20
different items, only one of which is capital improvement =
projects. =20
See id. An organization could comply with this =
requirement=20
without using any of the housing project=3Ds cash=20
flow in the preceding fiscal year =
for=20
capital improvement projects. See id. The fact =
that an=20
organization could satisfy this requirement by using 90% of its =
housing=20
project=3Ds cash=20
flow in the preceding fiscal year =
for=20
capital improvement projects does not show that the Texas =
Legislature=20
intended subsection (e) to apply to housing projects completed =
before=20
January 1, 2002.
Claimants=20
also point out that subsection (b)(3) includes organizations that=20
Aown[] the=20
property for the purpose of . . . repairing housing on the =
property=20
to sell without profit to a low‑income or =
moderate‑income individual or=20
family satisfying the organization=3Ds=20
eligibility requirements or to rent without profit to such an =
individual=20
or family.@ =20
Id. ' =
11.182(b)(3) (emphasis added). Claimants assert that it =
would be=20
arbitrary and unreasonable to construe subsection (b) as applying =
only to=20
repairs to housing constructed after January 1, 2002, because this =
construction would eliminate the subsection (b) exemption for =
housing=20
projects involving repairs unless the project had been constructed =
after=20
January 1, 2002. This argument lacks merit. If =
subsection (e)=20
applies, then the organization must satisfy additional =
requirements. =20
If subsection (e) does not apply, no exemption under subsection =
(b) is=20
thereby eliminated. It is neither arbitrary nor unreasonable =
for the=20
Texas Legislature to have chosen to apply the additional =
restrictions in=20
subsection (e) only to housing projects completed after December =
31, 2001,=20
which would include both projects constructed after this date and =
repairs=20
to projects constructed after this date. Because the =
Apartments are=20
not a housing project in this category, subsection (e) does not =
apply to=20
the Apartments or to Claimants=3D =
attempts=20
to obtain an exemption for the real property on which the =
Apartments were=20
constructed.
For the=20
reasons stated above, Claimants=3D =
arguments=20
under their second issue are contrary to the unambiguous language =
of=20
section 11.182 and lack merit. Accordingly, we overrule the =
second=20
issue.
C. =20
Did the trial court err in denying Claimants=3D =
motion=20
for summary judgment?
In their=20
third issue, Claimants assert the trial court erred in denying =
their=20
motion for summary judgment for all the same reasons given by =
Claimants as=20
to why the trial court purportedly erred in granting the=20
District=3Ds motion=20
for summary judgment. As discussed above, we have concluded =
that=20
these reasons lack merit. Accordingly, we overrule=20
Claimants=3D =
third=20
issue.
=
; =
&=
nbsp; &n=
bsp;=20
VI.=20
Conclusion
Under its=20
unambiguous language, subsection (e) imposes additional =
requirements that=20
must be satisfied beyond the applicable requirements of =
subsections (b)=20
and (c). In subsection (e), the Texas Legislature did not =
create a=20
new exemption or expand the exemption that already existed under=20
subsection (b). Under the unambiguous language selected by =
the Texas=20
Legislature, subsection (e) applies only to improved real property =
upon=20
which a housing project was constructed after December 31, =
2001. =20
Because the trial court did not err in granting the =
District=3Ds motion=20
for summary judgment and denying Claimants=3D =
motion,=20
we affirm the trial court=3Ds=20
judgment.
/s/ =20
Kem Thompson Frost
Justice
Panel=20
consists of Justices Anderson, Frost, and Hudson. =20
Unless otherwise stated, all =
statutory=20
references in this opinion are to the Texas Tax Code, and all =
references=20
to subsections are references to subsections of section 11.182 of =
the=20
Texas Tax Code.
See Tex. R. App. P. 38.3; =
Zamarron=20
v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.CHouston [14th Dist.] 2003, pet. =
denied). In=20
any event, even if Claimants had not waived this issue, the =
undisputed=20
evidence shows that (1) American owns Brandywood; (2) Brandywood =
owns only=20
1% of Housing; and (3) an entity unrelated to American owns a 99% =
interest=20
in Housing. Under the undisputed facts, American would not =
qualify=20
as the equitable owner of the Apartments. See =
Primrose=20
Houston 7 Housing, L.P., 238 S.W.3d at 786B88 (holding that the CHDO was not =
equitable=20
owner under subsection (b) because it did not have the present =
right to=20
compel legal title given that, though it owned 100% of the general =
partnership in the limited partnership that held title, the CHDO =
owned=20
only a .01% interest in the limited partnership); TRQ=20
Captain=3Ds Landing L.P., 212 S.W.3d at 732B36 (holding that American Housing =
Foundation could=20
be considered the equitable owner of the property under subsection =
(b)=20
because it had the present right to compel legal title given that, =
through=20
its wholly-owned subsidiary, American owned 100% of the limited=20
partnership that held title to the land).
Senior Justice Harvey Hudson =
sitting by=20
=
assignment. |