Bexar County Appraisal Review Bd. v. First Baptist Church

• Decision Date: 20 January 1993
• Docket Number: No. 04-89-00543-CV,04-89-00543-CV
• Citation: 846 S.W.2d 554
• Parties: BEXAR COUNTY APPRAISAL REVIEW BOARD, et al., Appellants, v. FIRST BAPTIST CHURCH, et al., Appellees.
• Court: Texas Court of Appeals

Page 554

846 S.W.2d 554

BEXAR COUNTY APPRAISAL REVIEW BOARD, et al., Appellants, v. FIRST BAPTIST CHURCH, et al., Appellees.

No. 04-89-00543-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 20, 1993.

Rehearing Denied Jan. 20, 1993.

Dennis K. Drake, Alvaro Briseno, II, Law Offices of Dennis K. Drake, San Antonio, for appellants.

Robert John Myers, Hickey & Myers, San Antonio, William W. Kilgarlin, Popp & Ikard, Austin, for appellees.

Before REEVES, C.J., and BUTTS and PEEPLES, JJ.

ON APPELLANTS' MOTION FOR REHEARING

PEEPLES, Justice.

The motion for rehearing is overruled. Our previous opinion is withdrawn and replaced by the following.

Earlier in this property tax exemption case, we held that the evidence was legally insufficient to support the jury's finding that a church parking lot was used primarily for religious purposes. Bexar County Appraisal Review Bd. v. First Baptist Church, 800 S.W.2d 892 (Tex.App.--San Antonio 1990). The supreme court disagreed with that ruling and returned the cause to us for consideration of points of error that we did not reach. First Baptist Church v. Bexar County Appraisal Review Bd., 833 S.W.2d 108 (Tex.1992).

Appellants Bexar County Appraisal Review Board and the Bexar Appraisal District (collectively referred to as the district) appeal from a judgment based on a jury finding that two parking lots owned by the First Baptist Church of San Antonio and leased to the Valero Realty Company are exempt from property taxes for 1984-1986. The judgment ordered that the value of the property on the appraisal roll be reduced to zero, and decreed that the property is exempt from taxation for the three years. The judgment also awarded the church attorney's fees. Additional facts may be found in the two reported opinions.

The district complains that: (1) the judgment exempting the property from taxation is unconstitutional, (2) the award of attorney's fees was unauthorized, and (3) the court made certain erroneous rulings during trial. ¹ In one cross-point, the church and Valero seek damages on the ground that the district's claim of unconstitutionality is frivolous and was made for purposes of delay. The district also contends that the evidence is factually insufficient, but the supreme court held the evidence legally sufficient, and in view of its construction of the exemption statute, we hold that the evidence is factually sufficient as well.

I.

We consider first the district's contention that the exemption violates the Texas Constitution, which mandates a tax exemption for "actual places of religious worship" and states that "all laws exempting property from taxation other than the property mentioned in this Section shall be null and void." TEX. CONST. art. VIII, § 2. The district argues that the parking lot at issue in this case is not an actual place of religious worship, and that to exempt it from property taxation goes beyond article eight, § 2 and is void.

The exemption for a church parking lot leased to a private corporation certainly does not appear to fall within a common-sense reading of the constitution's language, "actual places of worship." But the supreme court has twice stated that "a parking lot may qualify as a place of religious worship." First Baptist Church v. Bexar County Appraisal Review Bd., 833 S.W.2d at 110; City of Austin v. University Christian Church, 768 S.W.2d 718, 719-20 (Tex.1988). In University Christian Church, the court said, "For purposes of the tax exemption, a place of religious worship includes not only the sanctuary, but also those grounds and structures surrounding the sanctuary which are necessary for the use and enjoyment of the church." Id. at 719. At bottom, the district asks us to adopt the argument made by the dissent in University Christian Church. Though the majority in University Christian Church did not specifically address the constitutional argument, it clearly did not accept it. The supreme court has held that a parking lot may constitute a place of worship under the statute, and the jury has found that it does in this case. In the face of the supreme court's considered statements, quoted above, we cannot fairly hold that a parking lot is not an actual place of worship under the constitution. ² We hold that the exemption before us does not violate article eight, § 2.

We next consider the district's argument that the tax exemption violates the First Amendment to the United States Constitution. Generally a statute violates the establishment clause only if (1) it is motivated wholly by an impermissible purpose; (2) its primary effect is to advance religion; or (3) it excessively entangles church and state. See Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 2570, 101 L.Ed.2d 520 (1988); Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). The United States Supreme Court used a slightly different analysis in upholding a similar property tax exemption in Walz v. Tax Commission, 397 U.S. 664 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). The statute before us satisfies each standard.

The Court in Walz stressed that the religion clauses mean that such exemptions must be neutral in purpose and effect:

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.

Each value judgment under the Religion Clauses must therefore turn on whether particular acts in question are intended to establish or interfere with religious beliefs and practices or have the effect of doing so.

Id. at 669, 90 S.Ct. at 1411-12, 25 L.Ed.2d at 701-702 (emphasis added). The Court then reasoned that the exemption did not have an improper purpose or an entangling effect, and that it was consistent with the uninterrupted historical practice of benevolent state and congressional neutrality toward religion in this country.

The purpose of the tax exemption, said the Court in Walz, "is neither advancement nor the inhibition of religion; it is neither sponsorship nor hostility.... [The state] has not singled out one particular church or religious group or even churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups." Id. at 672-73, 90 S.Ct. at 1413, 25 L.Ed.2d at 703-704. That is, the exemption for church property was part of a general tax exemption for a broad variety of nonprofit, charitable activities. The statute did not attempt to establish religion; it simply "spar[ed] the exercise of religion from the burden of property taxation levied on private profit institutions." Id. at 673, 90 S.Ct. at 1414, 25 L.Ed.2d at 704.

Nor did the statute have the effect of excessive governmental entanglement with religion. Both taxation and exemption would require some involvement with religion. "The hazards of churches supporting government are hardly less in their potential than the hazards of government supporting churches." Id. at 675, 90 S.Ct. at 1414, 25 L.Ed.2d at 705. "The exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches." Id. at 676, 90 S.Ct. at 1415, 25 L.Ed.2d at 705.

Finally, the Court reasoned that constitutional interpretation should not stray too far from its historical moorings. Cardozo had warned about the "tendency of a principle to expand itself to the limit of its logic." ³ The Court replied that history sets limits on the step-by-step expansion of legal rules; "such expansion must always be contained by the historical frame of reference of the principle's purpose." Id. at 679, 90 S.Ct. at 1416, 25 L.Ed.2d at 707. The Court noted that in an 1886 case it had "accepted without discussion the proposition that federal or state grants of tax exemption to churches were not a violation of the Religion Clauses of the First Amendment." Id. at 680, 90 S.Ct. at 1417, 25 L.Ed.2d at 708, citing Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427, 29 L.Ed. 680 (1886).

Like the New York statute at issue in Walz, the statute before us does not differentiate among religions, and it extends the exemption to various nonsectarian groups, such as charities, schools, and veterans' organizations. See TEX.PROP.TAX CODE § 11.11 et seq. (Vernon 1992). Thus the statute bears no resemblance to the sales tax exemption condemned in Texas Monthly Inc. v. Bullock, 489 U.S. 1, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989), which singled out religious publications for a tax exemption. The statute's purpose is to avoid taxation on charitable organizations, including religious organizations. There is nothing improper about that legislative purpose. Nor does the statute advance religion or produce excessive governmental entanglement--administrative or otherwise--with religion. And the exemption has history on its side, having been part of the Texas Constitution since 1876. See TEX. CONST. art. 8, § 2 (Vernon 1955, historical note).

The district points out that the tax exemption upheld in Walz required that the religious use be exclusive, while the Texas statute requires only that the religious use be primary. Here, of course, the district seeks to tax only the church property that is used for commercial purposes, not the property used...