IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00149-CV

 

American Housing Foundation

and College Station Texas

Southgate Village, LTD.,

Appellants

v.

 

Brazos County Appraisal District,

Appellee

 

 

 

From the 85th District Court

Brazos County, Texas

Trial Court # 02-002469-CV-85

 

 

Appellants, American Housing Foundation (AHF) and College Station Texas Southgate Village, Ltd. (Southgate Village, Ltd.) appeal from the trial courts summary judgment in favor of Appellee, the Brazos County Appraisal District (Appraisal District). AHF and Southgate Village, Ltd. appeal in two issues:

(1)              Whether Texas Tax Code section 11.182(e) allows an entity that is not the record owner of the property in question to claim the tax exemption created by that statute

 

 

(2)              Whether Texas Tax Code section 11.182(e)s use of the term including excludes structures built prior to December 31, 2001.

 

We will affirm the summary judgment.

BACKGROUND

AHF is a non-profit Texas corporation and a Community Housing Development Organization (CHDO) that provides acceptable housing to low and moderate income individuals. Southgate Village Apartments are low to very-low income housing apartments in Brazos County. Southgate Village, Ltd., a Texas limited partnership and for-profit organization, owns the apartments. AHF Southgate Village, Inc. (AHF Southgate), a Texas corporation, is the sole general partner of Southgate Village, Ltd. AHF Southgate is a wholly-owned subsidiary of AHF.

AHF applied for a year 2002 property tax exemption for the apartments under Texas Tax Code section 11.182. Tex. Tax. Code Ann. 11.182 (Vernon Supp. 2004-05). The Brazos County Chief Appraiser determined that (1) AHF was not the legal owner of the property as required by section 11.182(b) because deeded ownership appeared to be vested in Southgate Village, Ltd.; (2) Section 11.182(e) applied only to property constructed after December 31, 2001; and (3) AHF allegedly failed to supply the appropriate audit to the Appraisal District. AHF protested the denial of the tax exemption, and the Appraisal Review Board denied AHFs appeal. In 2003, AHF applied for a year 2003 property tax exemption. The Appraiser determined that (1) AHF was not the legal owner of the property as required by section 11.182(b) because deeded ownership appeared to be vested in Southgate Village, Ltd.; and (2) Section 11.182(e) applied only to property constructed after December 31, 2001. AHF protested the denial of the tax exemption, and the Appraisal Review Board denied AHFs appeal.

In 2002, AHF and Southgate Village, Ltd. sued the Appraisal District seeking review of the 2002 tax exemption denial. The petition was later amended to include the denial of the 2003 tax exemption. The Appraisal District filed a motion for summary judgment, and AHF and Southgate Village, Ltd. filed a competing motion for summary judgment. The trial court granted the Appraisal Districts motion and denied AHFs and Southgate Village, Ltd.s motion.

SUMMARY JUDGMENT

Standard of Review

We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.Waco 2001, pet. denied).

When competing motions for summary judgment are filed and one is granted and one denied, the appellate court should determine all questions presented and should render the judgment the trial court should have rendered. FM Properties Operating v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). But this is so only if, as here, both parties' motions sought final judgment, i.e., relief on all issues. Montgomery v. Blue Cross & Blue Shield, 923 S.W.2d 147, 152 (Tex. App.Austin 1996, writ denied); Runyan v. Mullins, 864 S.W.2d 785, 790 (Tex. App.Fort Worth 1993, writ denied).

Rules of Statutory Construction

The propriety of this summary judgment turns on the construction of section 11.182 of the Tax Code. Tex. Tax Code Ann. 11.182. Statutory construction issues are legal questions reviewed de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In construing a statute, the reviewing court should determine and give effect to the Legislature's intent. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). The court must first look at the statutes plain and common meaning. Allen, 15 S.W.3d at 527; Fitzgerald v. Advanced Spine Fixation, 996 S.W.2d 864, 865 (Tex. 1999). The court presumes that the Legislature intended the plain meaning of the words it used. Allen, 15 S.W.3d at 527. And words, unless used as a term of art or connected with a particular trade or subject matter, are given their ordinary meaning. In re BACALA, 982 S.W.2d 371, 380 (Tex. 1998); Tex. Gov't Code Ann. 311.011 (Vernon 2005). If the statute is unambiguous, the reviewing court typically adopts the interpretation supported by the plain meaning of the statute's words; rules of construction and extrinsic aids should not be applied, nor extraneous matters inquired into. Allen, 15 S.W.3d at 527 (extraneous matters); Fitzgerald, 996 S.W.2d at 865-66 (rules of construction and extrinsic aids).

 

Section 11.182

The statute at issue is section 11.182, subsections (b) and (e):

(b) An organization is entitled to an exemption from taxation of improved or unimproved real property it owns if the organization:

(1) is organized as a community housing development organization;

(2) meets the requirements of a charitable organization provided by Sections 11.18(e) and (f);

(3) owns the property for the purpose of building or repairing housing on the property to sell without profit to a low-income or moderate-income individual or family satisfying the organizations eligibility requirements or to rent without profit to such an individual or family; and

(4) engages exclusively in the building, repair, and sale or rental of housing as described by Subdivision (3) and related activities.

. . .

 

(e) In addition to meeting the applicable requirements of Subsections (b) and (c), to receive an exemption under Subsection (b) for improved real property that includes a housing project constructed after December 31, 2001, and financed with qualified 501(c)(3) bonds issued under Section 145 of the Internal Revenue Code of 1986, tax-exempt private activity bonds subject to volume cap, or low-income housing tax credits, the organization must:

(1) control 100 percent of the interest in the general partner if the project is owned by a limited partnership;

(2) . . .

(3) . . .

 

Tex. Tax Code Ann. 11.182 (b), (e) (emphasis added).

 

Analysis

AHF and Southgate Village, Ltd. argue that because AHF controls 100 percent of the general partner of the limited partnership that owns the apartments, as allowed by subsection (e), it is entitled to the tax exemption. The Appraisal District argues that AHF is not entitled to the exemption because it does not own the apartments under subsection (b)(3).

We give the words in addition to their plain meaning of combined or associated with or besides. See Allen, 15 S.W.3d at 527; Merriam Websters Collegiate Dictionary 13 (10th ed. 1993). We find subsection (e) does not apply unless all four requirements of subsection (b) are met. Thus, to be entitled to a tax exemption for the apartments, AHF would first have to (1) be organized as a CHDO, and (2) own the property for the purpose of building or repairing housing to sell without profit to low-income or moderate-income individuals or families.[1] Id. 11.182(b)(1), (b)(3). Even though AHF is a CHDO, AHF does not own the apartments and is not entitled to a tax exemption for the apartments. Southgate Village, Ltd. is not entitled to the exemption because it is not a CHDO. We overrule issue one.

CONCLUSION

Having overruled issue one, we need not address issue two. We affirm the summary judgment.

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 13, 2005

[CV06]