Petition for Writ of Certiorari — Deer Park Independent School District v. Harris County Appraisal District

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Text

\ Supreme Court, U.S.

i| ED

U) FIL

'97 1730 APR 221998

In The

Supreme Court of the United States

e

October Term, 1997

DEER PARK INDEPENDENT SCHOOL DISTRICT,

GALENA PARK INDEPENDENT SCHOOL DISTRICT and

SHELDON INDEPENDENT SCHOOL DISTRICT,

Petitioners,

VS.

HARRIS COUNTY APPRAISAL DISTRICT, et ail.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

RUSSELL R. GRAHAM

CALAME LINEBARGER

GRAHAM & PENA, L.L.P.

Attorneys for Petitioners

P.O. Box 17428

Austin, Texas 78760

(512) 447-6675

(800) 274-3321 + (800) 359-6859 WA ppellate

A DIVISION OF COUNSEL PRESS Services, Inc.

i

QUESTION PRESENTED

Whether Congress, in exercising its power under the

Commerce Clause, may prohibit a State and/or its political

subdivisions from levying a non-discriminatory tax on persons

or property located within its jurisdiction when that tax violates

neither the prohibitions of the Import/Export clause nor the

dormant protections of the Commerce Clause of the United

States Constitution.

li

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, Shell

Chemical Corporation, Shell Oil Company, Marubeni Tubulars

Incorporated, Mitsui Tubular Products Incorporated, Lyondell-

Citgo Refining Company Limited, Crown Central Petroleum

Corporation, Vinson Supply Company and Siderca Corporation

were parties before the Court of Appeals and Respondents

herein.

li

TABLE OF CONTENTS

Page

BR eae ae ee pee i

Per PU POGUE ss cdo ce dccecccnccc. ii

I eo ili

eS ey es. iv

RAPS egy cg a ele aay ee aren I

I I I i ia oe ce cece |

Constitutional and Statutory Provisions Involved .. 2

tReet aa cee 3

A. Nomenclature, Record References and Emphasis

RE es Pe a ee 3

a EN a ese 4

os memos OF Dhig Case ..............-... 6

Reasons for Granting the Writ .................... 9

I. The Petition Should Be Granted Because The

Opinion Below Conflicts With This Court’s Prior

Rulings On The Essential And Indispensable

Powers Of Taxation Reserved To The States By

The Tenth Amendment To The United States

IS oe ot: 9

iv

Contents

Page

I]. The Petition Should Be Granted Because The

Opinion Below Effectively Renders The Tenth

Amendment To The United States Constitution

WOU ec hier h dno shea chee ees 18

CRUCTRPOE Ne seek cia es ae hee aes ees 29

TABLE OF CITATIONS

Cases Cited:

American Trucking Ass'n v. Scheiner, 483 U.S. 266

FOOUETD kak sc kwcig nw os he ok ad Lika eae dieies 21

Aransas County Appraisal Review Bd. v. Texas Gulf

Shrimp Co., 707 S.W. 2d 186 (Tex. App. — Corpus

ae, UR, ge ES A ee Oat 7

Brown v. Maryland, 12 Wheat. 419 (1827) ......... 15

Colonial Pipeline Co. v. Traigle, 421 U.S. 100 (1974)

POM EEE PEE PEL OEE TE CL NE See 13

Complete Auto Transit v. Brady, 430 U.S. 274 (1977)

cea Paes KES ee ted ke a OD has 10, 13, 21

Deer Park Ind. Sch. Dist. v. Harris County Appraisal

ist. (32 F356 TGS (Ce. I998) oe ksccndens l

Deer Park Ind. Sch. Dist. v. Harris County Appraisal

Dist., 963 F. Supp. 605 (S.D. Tex. 1997) ........ l

sisal

Contents

Page

Department of Revenue of Washington v. Association of

Washington Stevedoring Companies, 435 U.S. 734

CHOU bo Maka a1 8 os hue ee eR ee 21

Diamond Shamrock Ref. and Mktg. v. Nueces County

Appraisal Dist., 876 S.W. 2d 298 (Tex. 1994), cert.

denied, 130 L. Ed. 2d 409, 115 S. Ct. 500 (1994) . 8

Garcia v. San Antonio Metro, 469 U.S. 528 (1985)

ieee wwe Hae ENDER EY OAS DA ed LEDER ue a2, 23, 24

Gibbons v. Ogden, 9 Wheat. 1 (1824).............. 14, 15

Goldberg v. Sweet, 488 U.S. 252 (1989) ........... 21

Greyhound Lines, Inc. v. Board of Equalization of Fort

Worth, 419 S.W. 2d 345 (Tex. 1967) ............ 7

Lane Co. v. Oregon, 74 U.S. 101 (1869) ........... 16, 17

Maryland v. Louisiana, 451 U.S. 724 (1981) ....... 21

McCulloch v. Maryland, 4 Wheat. 316 be is) aoe 10, 11, 14

Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976)

ERT ER TOR ER PE ee EPO PR 10, 13, 21

National League of Cities v. Usery, 426 U.S. 833

CEPT SOK Nice ba dhe ON eke RE ee 22

vi

Contents

Page

Prinz, Sheriff/Coroner, Ravalli County, Mont. v. United

States, _. U.S. __, 117 S. Ct. 2365 (1997) . 17, 26, 27, 28

Trinova Corp. v. Michigan Dep't of Treasury, 498 U.S.

Sa TASES 6 cnbeaddn en veccntasneauleseteete 21, 22

Tyler Pipe Indus., Inc. v. Washington State Dep't of

prunes. GES UA Bee CAP OtE Wika ce heoes beh ens 21

United States v. Lopez, 514 U.S. 549 (1995) ...... 23, 24, 25

Western Live Stock v. Bureau of Revenue, 303 U.S. 250

PEE ahd ks beebnbed40hee Serkan hers See 13

Statutes Cited:

re UA 8 UES CRG. IFFT OE BO bie siwcices 6

USA. 8 Shae) Cape: SFP E isc ce Siwcedeeeuds

Cr ey R eee CT Te rr Pere +S BiH Oe IA eS

BO Uhre O RAOTE) CEE cercveccen eee seeewiaees l

Re as BRE LEED. Fic ee eee ed wids Roe wen 4

Be bed, O ASE EDGE. wa do edn doaennsceeven tos 4

Be UKs EDOM CESPED obs Keb eRe ee des weg ese l

Contents

Page

United States Constitution Cited:

SP NN MEM id eee eee a me 2,9

cess Rac I I 5 ee 2, 9, 10, 18

RR A a ER. SRR es eg gees ee 2,9

Rule Cited:

Supreme Court Rule 29, Section 4(b) .............. I

Other Authorities Cited:

Legislative History for P.L. 98-573, U.S. Trade and Tariff

Act of 1984 — 1984 U.S.C.C.A.N. 4910, 4945-4946

Geis be aoe Rie Ald Aiba Mick Ae RAG Ok a ak ee Bl hab ae 8

THE FEDERALIST No. 32 (Alexander Hamilton) ....... 20

ee es ea Raa oo Rin 7

Ts A PO Be i a 7

De Ss ks WE EE. ch ove dbesek besa bal ns 7

vill

Contents

Page

APPENDIX

Appendix A — Opinion Of The United States Court Of

Appeals For The Fifth Circuit Dated January 22,

SPE bivn SueeuRnda neni chaeva sede snea ernest la

Appendix B — Opinion Of The United States District

Court For The Southern District Of Texas Entered May

Sg SOT.” hak CakSe bed UME Shee RRR peeves 10a

Appendix C — Stipulation Of Facts Dated January 17,

bf ee Er erry Pe ae bree Seer 22a

nw ew

Petitioners, the Deer Park, Galena Park and Sheldon

Independent School Districts (the “School Districts”)

respectfully request that a writ of certiorari be issued to review

the judgment of the United States Court of Appeals for the

Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fifth Circuit is reported at Deer Park Ind. Sch. Dist. v. Harris

County Appraisal Dist., 132 F.3d 1095 (Sth Cir. 1998).

(Appendix A). The opinion of the District Court in Deer Park

Ind. Sch. Dist. v. Harris County Appraisal Dist., is reported at

963 F. Supp. 605 (S.D. Tex. 1997). (Appendix B).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered on January 22, 1998.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1) (1988).

28 U.S.C. § 2403(a) (1990) may apply to this case and

Petitioners find no indication in the record that the courts below

certified to the Attorney General of the United States that the

constitutionality of an Act of Congress has been drawn into

question.

In accordance with Rule 29, Section 4(b), Rules of the

Supreme Court and 28 U.S.C. § 2403(a) (1990) thi. “etition

for a Writ of Certiorari is being served on the Solicitor General

of the United States, Room 5614, Department of Justice, 950

Pennsylvania Avenue, N.W., Washington, D.C. 20530.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, § 8 reads in relevant part as follows:

The Congress shall have the power . . . To regulate

Commerce with foreign nations, and among the

several states, and with the Indian tribes...

U.S. Const. art. I, § 8.

Article I, § 10, Clause 2 reads as follows:

No state shall without the consent of the Congress,

lay any imposts or duties on imports or exports,

except what may be absolutely necessary for

executing its inspection laws: and the net produce

of all duties and imposts laid by any State on imports

or exports, shall be for the use of the treasury of the

United States: and all such laws shall be subject to

revision and control of the Congress.

U.S. Const. art. I, § 10, cl. 2.

Amendment X reads as follows:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the

people.

U.S. Const. amend. X.

3

Section 81lo(e) reads as follows:

(e) Tangible personal property imported from

outside the United States and held in a zone for

the purpose of storage, sale, exhibition,

repackaging, assembly, distribution, sorting,

grading, cleaning, mixing, display,

manufacturing, or processing, and tangible

personal property produced in the United States

and held in a zone for exportation, either in its

original form or as altered by any of the above

processes, shall be exempt from State and local

ad valorem taxation.

19 U.S.C. § 8lo(e) (Supp. 1997).

STATEMENT OF THE CASE

The fundamental question in this case is whether the

indispensable and essential power of a State to levy non-

discriminatory taxes on persons and property within its

jurisdiction may be abrogated by Congress under the guise of

regulating commerce. While the tax in question in this instance

is an ad valorem (property) tax, Petitioners can see no distinction

in principle which would prevent Congress from prohibiting a

state from levying any type of tax if the statute being challenged

here is a valid exercise of Congressional authority. Indeed, if

Congress may prohibit a State or its political subdivisions from

levying a tax merely because it has some impact on commerce

it is impossible to envision any source of revenue which is secure

to the States and beyond the reach of Congress.

A. Nomenclature, Record References and Emphasis Added

Throughout this Petition the Petitioners, Deer Park

Independent School District, Galena Park Independent School

4

District, and Sheldon Independent School District, will be

referred to collectively as “the School Districts”. The

Respondents which have a financial interest in the outcome of

this case are eight corporations which will be referred to as the

“Industries”. The remaining Respondent is the Harris County

Appraisal District, which does not have a financial interest in

this case but which is a necessary party. It will be referred to

infrequently as “HCAD”.

References to the record shall be through the document

number appearing on the district court docket sheet, followed

by the internal page number in the document where the specific

text being referenced appears, such as “Doc. 9, p. 6”.

All emphasis added herein is ours unless otherwise

indicated.

B. Statement of Facts

The School Districts filed suit in the court below on

September 30, 1996, seeking a declaratory judgment that 19

U.S.C. § 8lo(e) is unconstitutional. The United States District

Court for the Southern District of Texas had jurisdiction under

28 U.S.C. § 1331 (1986). The United States Court of Appeals

for the Fifth Circuit had jurisdiction under 28 U.S.C. § 1291

(1986). For purposes of ad valorem taxation for 1995 and 1996,

HCAD had granted an exemption from taxation for certain

tangible personal property owned by the Industries which was

located within the taxing jurisdictions of the School Districts

on January 1, of 1995 and 1996. The exemption was granted

due to the provisions of § 8lo(e).

Specifically, Deer Park 1.S.D. alleged that the exemption

granted to the general industrial property belonging to Shell

Chemical Corporation was depriving it of tax revenues of

ac ire

5

$3,483,420.16. (Doc. 1, pp. 4-5). Galena Park I.S.D. alleged

that the exemptions granted to the pipe inventory of Marubeni

Tubulars, Inc. and of Mitsui Tubular Products, Inc., and to the

inventory and g.weral industrial property belonging to Shell

Oil Company, to Lyondell-Citgo Refining Co., Ltd., and to

Crown Central Petroleum Corporation were depriving it of tax

revenues estimated at $557,254.50. (Doc. 1, pp. 5-7). Sheldon

1.S.D. made similar allegations about its loss of tax revenue

from the pipestock inventories of Marubeni Tubulars, Inc.,

Vinson Supply Company and Siderca Corporation, estimated

to total $82,415.61. (Doc. 1, pp. 7-9).

At the direction of the District Court, each party except

HCAD filed a brief Data Sheet. Those of the Industries contain

short descriptions of their business activities within each Foreign

Trade Zone in which the School Districts seek to tax property.

(Docs. 34, 35, 36, 37, 38, 40, 42, 44). For example, Shell

Chemical Corporation processes, manufactures and stores

various chemical products (Doc. 34), while Shell Oil Company

processes, manufactures and stores products such as gasoline,

jet fuel and heating oil. (Doc. 35). Neither of those parties

indicated the locations of the customers for their products. Crown

Central Petroleum Corporation produces gasoline, jet fuel and

heating oil, and identified its market for its refined products as

being local. (Doc. 36). Lyondell-Citgo Refining Company, Ltd.

does no refining in a Foreign Trade Zone. Rather it stores

imported crude oil in the zone before moving it to its refinery,

which is outside the zone. The location of its market was not

stated. (Doc. 38). The remaining Industries all brought pipestock

or other tubular goods into the Foreign Trade Zones and did

no significant processing of alterations on the pipe while in the

zone. (Docs. 37, 40, 42 and 44). Siderca Corporation and

Vinson Supply Company specifically stated that the pipe which

they import into the zones was eventually to be exported to

foreign destinations.

6

In the data sheets filed by the School Districts they stated

their size, student populations, campuses, values of taxable

property after exemptions listed by categories, tax rates, tax

levies, and top 10 taxpayers and their taxable values. All of the

Data Sheets were incorporated by reference into ten stipulations

of facts. (Doc.45). The School Districts believe that the

following stipulations are most critical to this case:

9. All or a significant portion of the property

involved in this dispute would be taxable by the

[School Districts] were it not for the exemption

created by the provisions of 19 U.S.C. §8lo(e).

10. The property involved in this dispute is

exempt from taxation by the [School Districts] unless

the provisions of 19 U.S.C. §8lo(e) are

unconstitutional.

(See Appendix C, p. 24a).

C. Background of This Case

The basic issue in this case arises from a 1984 amendment

to the Foreign Trade Zones Act of 1934, 19 U.S.C. § 81a (Supp.

1997), et seq. The School Districts think it is uncontested that

the original purpose of the Act when it became law was to

encourage economic growth through increased manufacturing

and employment. That goal was accomplished by allowing

imported goods into this country and delaying the payment of

any tariffs or customs duties until those goods left the “Foreign

Trade Zone” and eliminating such tariffs or duties on imports

that were re-exported from such zones. For fifty years the

purposes for creating such zones were served by the Federal

Government foregoing its own sources of revenue. In 1984,

however, the Act was amended by the addition of § 8lo(e)

which is set forth above.

7

With respect to the law of Texas, it is clear that under both

the Constitution and the statutes all property situated in this

State on the assessment date is to be taxed, unless an exemption

is authorized by the Texas Constitution or is imposed by some

overriding protection or prohibition in the United States

Constitution. Tex. Const. art. VIII, §§ 1, 2 and 11; Greyhound

Lines, Inc. v. Board of Equalization of Fort Worth, 419 S.W.

2d 345 (Tex. 1967); Aransas County Appraisal Review Bad. v.

Texas Gulf Shrimp Co., 707 S.W. 2d 186 (Tex. App. — Corpus

Christi, 1986, writ ref’d n.re.). Article VIII, § 1 of the Texas

Constitution for example, reads in part as follows:

Article VIII, Sec. 1. Equality and Uniformity; Tax

in Proportion to Value; Occupation Taxes;

Income Tax; Exemption of Certain Tangible

Personal Property from Ad Valorem Taxation.

(a) Taxation shall be equal and uniform.

(b) All real property and tangible personal

property in this State unless exempt as required or

permitted by this Constitution, whether owned by

natural persons or corporations, other than municipal,

shall be taxed in proportion to its value, which shall

be ascertained as may be provided by law.

Tex. Const. art. VIII, § 1.

The legislative history of § 8lo(e) leaves no doubt that it

was aimed specifically at overriding this and other provisions

of the Texas Constitution that all property be taxed equally.

Reason for provision — Local taxing

jurisdictions in Texas may seek to declare

exemptions for property taxes on some tangible

8

personal property stored in foreign trade zones,

but are precluded from doing so by the Texas

Constitution. The local foreign trade zones thus are

disadvantaged in promoting the benefits of zones in

their localities. The committee is unaware of any

states or localities outside the State of Texas that

seek to impose property taxes on tangible personal

property located in foreign trade zones for bona fide

customs reasons, or have a bar similar to that in Texas

that would preclude localities from declaring an

exemption to such a tax.

Legislative History for P.L. 98-573, U.S. Trade and Tariff Act

of 1984 — 1984 U.S.C.C.A.N. 4910, 4945-4946.

Perhaps most illustrative of the invasive effect of 19 U.S.C.

§ Slo(e) appears from a consideration of the fact that a

substantial portion of the property involved in this case is crude

oil destined to be refined in Texas and the products resulting

from the refining process. This property is indistinguishable in

any way, other than its location in a Foreign Trade Zone, from

the crude oil which the Texas Supreme Court found to be

taxable in Diamond Shamrock Ref. and Mktg. v. Nueces County

Appraisal Dist., 876 S.W. 2d 298 (Tex. 1994), cert. denied,

130 L. Ed. 2d 409, 115 S. Ct. 500 (1994).

Instead of bearing their fair share of the tax burden imposed

to educate the children residing in the School Districts, the

Industries enjoyed an exemption from taxation on millions of

dollars worth of property, and, presumably, were able to benefit

from a cost advantage not enjoyed by their competitors whose

property was located outside of a Foreign Trade Zone.

Since the passage of § 81o(e) the School Districts and other

political subdivisions in Texas have found themselves precluded

eee eee

9

from taxing property such as that owned by the Industries

involved in this case simply because the property was located

in a “Foreign Trade Zone”, while at the same time levying taxes

on property indistinguishable in nature from that owned by the

Industries but located outside of such zones.

REASONS FOR GRANTING THE WRIT

I.

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW CONFLICTS WITH THIS

COURT’S PRIOR RULINGS ON THE ESSENTIAL AND

INDISPENSABLE POWERS OF TAXATION RESERVED

TO THE STATES BY THE TENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

The tax exemption authorized by § 81o(e) is an exemption

from a non-discriminatory property tax. That tax is a primary

source of revenue for cities, counties, school districts and many

other types of political subdivisions in Texas. If there is any

constitutional basis for the exemption authorized by § 8lo(e) it

must arise from the provisions of the Commerce Clause of the

U.S. Constitution (U.S. Const. art. I, § 8) or from the express

prohibitions found in the Import-Export Clause (U.S. Const.

art. I, § 10, cl. 2) which are set forth above.

The stipulations entered by the parties to this cause make it

clear that with respect to most, if not all, of the property

exempted in this cause, neither the protections from taxation

afforded to commerce by the Commerce Clause nor the express

prohibitions found in the Import-Export Clause are violated by

the tax in question here. (See Appendix C, p. 24a, no. 9) By

agreeing that most if not all of the property would be taxable

but for the existence of § 8lo(e), the Industries have waived

10

any argument that the tax in question is in the nature of a duty

or impost (Michelin) or that it does not meet the test set forth in

Complete Auto, that it (1) is applied to an activity with a

substantial nexus with the taxing state; (2) is fairly apportioned;

(3) does not discriminate against interstate commerce; and (4)

is fairly related to services provided by the state. Michelin Tire

Corp. v. Wages, 423 U.S. 276 (1976); Complete Auto Transit

v. Brady, 430 U.S. 274 (1977).

That the power to levy a non-discriminatory tax was

reserved to the states by the Tenth Amendment is so clearly in

the affirmative as to be indisputable. The foundation upon which

almost all jurisprudence dealing with the powers of the national

government versus the state governments is built is McCulloch

v. Maryland, 4 Wheat. 316 (1819).

In that case Chief Justice Marshall and this Court went to

great lengths to define the balance between the powers which

the adoption of the United States Constitution had ceded to the

national government and those which had been reserved to the

States. In this respect Marshall wrote as follows:

That the power of taxation is one of vital

importance; that it is retained by the states; that it is

not abridged by the grant of a similar power to the

government of the Union; that it is to be concurrently

exercised by the two governments: are truths which

have never been denied...

Id. at 425.

... It is admitted that the power of taxing the

people and their property is essential to the very

existence of government, and may be legitimately

exercised on the objects to which it is applicable, to

1]

the utmost extent to which the government may

choose to carry it. The only security against the

abuse of this power is found in the structure of the

government itself. In imposing a tax the legislature

acts upon its constituents. This is in general a

sufficient security against erroneous and oppressive

taxation.

The people of a state, therefore, give to their

government a right of taxing themselves and their

property, and as the exigencies of government

cannot be limited, they prescribe no limits to the

exercise of this right, resting confidently on the

interest of the legislator, and on the influence of the

constituents over their representative to guard them

against its abuse...

Id. at 428.

This opinion does not deprive the states of

any resources which they originally possessed. It

does not extend to a tax paid by the real property

of the bank, in common with the other real

property within the state, nor to a tax imposed

on the interest which the citizens of Maryland

may hold in this institution, in common with

other property of the same description

throughout the state. But this is a tax on the

operations of the bank, and is, consequently, a tax

on the operation of an instrument employed by the

; government of the Union to carry its powers into

execution. Such a tax must be unconstitutional.

Id. at 436-437.

12

In the last paragraph above, this Court went out of its way

to make it clear that non-discriminatory state taxes against

property or people within the State were not the evil being

addressed in the case and that those forms of taxation were

available to the states before the adoption of the United States

Constitution and retained by them after its adoption.

What Chief Justice Marshall and this Court found

objectionable was the levying of a tax by Maryland on the

operation of the Bank of the United States. After determining

that Congress had the power to incorporate a national bank this

Court found that such a tax was repugnant to that power. This

Court repeatedly stated that the power to tax was the power to

destroy, but in almost the same breath reflected that the power

to tax was essential to the states. It is clear that what this Court

condemned was a tax focused on an essential institution of the

Federal Government and not on taxes which were general and

non-discriminatory in nature and levied on people or property

within the State. In the latter instance the self interest of state

legislatures and their constituents would serve to prevent such

taxes from being instruments of destruction.

What Chief Justice Marshall and this Court really sought

to condemn was a tax which was “repugnant” to the proper

exercise of Federal functions authorized by the United States

Constitution. In the instant cause the question is whether the

tax in question is in fact repugnant to the purposes of the

Commerce Clause or the Import-Export clause of the

Constitution. The School Districts urge that this Court has made

it clear that the tax in question is not repugnant to those

provisions.

It is a truism that the mere act of carrying on

business in interstate commerce does not exempt a

corporation from state taxation. “It was not the

———

- er ea

13

purpose of the commerce clause to relieve those

engaged in interstate commerce from their just

share of state tax burden even though it increases

the cost of doing business.”

Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254

(1938). Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 108

(1974). Complete Auto Transit, 430 U.S. at 288.

To be sure, allowance of nondiscriminatory ad

valorem property taxation may increase the cost of

goods purchased by “inland” consumers. But as

already noted, such taxation is the quid pro quo

for benefits actually conferred by the taxing State.

There is no reason why local taxpayers should

subsidize the services used by the importer;

ultimate consumers should pay for such services

as police and fire protection accorded the goods

just as much as they should pay transportation

costs associated with those goods. An evil to be

prevented by the Import-Export Clause was the

levying of taxes which could only be imposed

because of the peculiar geographical situation of

certain States that enabled them to single out

goods destined for other States. In effect, the

Clause was fashioned to prevent the imposition

of exactions which were no more than transit fees

on the privilege of moving through a State. A

nondiscriminatory ad valorem property tax

obviously stands on a different footing, .

ET et SP eee er

Michelin Tire Corp., 423 U.S. at 289-290.

If, as indicated above, neither the Commerce Clause nor

the Import-Export clause were intended to prevent those

14

engaged in commerce from paying their way, how can a tax

which extracts that payment be repugnant to either? One might

urge that McCulloch was just the first significant step made by

this Court in defining what powers had been granted the Federal

Government by the Constitution and that subsequent opinions

served to expand Federal authority at the expense of the states.

Indeed, in the significant Commerce Clause case, Gibbons v.

Ogden, 9 Wheat. 1 (1824), one finds the often cited language

which reads as follows:

It is the power to regulate; that is, to prescribe

the rule by which commerce is to be governed. This

power, like all others vested in Congress, is complete

in itself, may be exercised to its utmost extent, and

acknowledges no limitations, other than are

prescribed in the constitution.

Id. at 196-197.

This language has been the cornerstone of literally

thousands of actions both legislative and judicial which have

served to expand federal powers under the Commerce Clause

to almost limitless bounds. In Gibbons v. Ogden this Court,

however, acknowledged the existence of limits in almost the

next breath with the following:

The power of taxation is indispensable to their

existence, and is a power which, in its own nature,

is capable of residing in, and being exercised by,

different authorities at the same time . . . Congress

is authorized to lay and collect taxes, etc., to pay the

debts, and provide for the common defense and

general welfare of the United States. This does not

interfere with the power of the states to tax for the

support of their own governments; nor is the exercise

of that power by the states an exercise of any portion

15

of the power that is granted to the United States. In

imposing taxes for state purposes, they are not doing

what Congress is empowered to do. Congress is not

empowered to tax for those purposes which are

within the exclusive province of the states. When,

then, each government exercises the power of

taxation, neither is exercising the power of the other.

Id. at 199.

At least within the sphere of states taxing their people and

property, this Court found no conflict between this retained

power and the authority granted to Congress under the

Commerce Clause. In Brown v. Maryland, 12 Wheat. 419

(1827) this court similarly found no conflict between such state

taxation and the Import-Export Clause, at least as to properties

which had become part of the general mass of property in the

state (as has all or most of the property involved in this cause).

The constitutional prohibition on the states to

lay a duty on imports — a prohibition which a vast

majority of them must feel an interest in preserving

— may certainly come in conflict with their

acknowledged power to tax persons and property

within their territory . . . It is sufficient for the present

to say, generally, that when the importer has so acted

upon the thing imported that it has become

incorporated and mixed up with the mass of property

in the country, it has, perhaps, lost its distinctive

character as an import, and has become subject to

the taxing power of the state; but while remaining

the property of the importer, in his warehouse, in

the original form or package in which it was

imported, a tax upon it is too plainly a duty on

imports to escape the prohibition in the constitution.

Id. at 441-442.

16

It is hard to imagine a broader list of actions which a

property owner might take to mix up his property with the

“mass of property in the country” than the laundry list included

in § 8lo(e). The property in question is not simply passing

through Texas but rather has come to rest in Texas for the

business purposes of the Industries, including manufacturing,

refining, processing, and storage. It is impossible to distinguish

the property owned by the Industries from any other

manufacturer’s inventory of raw materials or finished goods

located anywhere else in Texas.

This Court’s opinion in Lane Co. v. Oregon, 74 U.S. 101

(1869) directly addresses the issue in this case. In that case, this

Court held as follows:

Now, to the existence of the States, themselves,

necessary to the existence of the United States,

the power of taxation is indispensable. It is an

essential function of government. It was exercised

by the Colonies; and when the Colonies became

States, both before and after the formation of

the Confederation, it was exercised by the new

governments. . . The Constitution, it is true, greatly

changed this condition of things. It gave the power

to tax, both directly and indirectly, to the National

Government, and subject to the one prohibition of

any tax upon exports and to the conditions of

uniformity in respect to indirect, and of proportion

in respect to direct taxes, the power was given

without any express reservation. On the other hand,

no power to tax exports or imports, except for a

single purpose and to an insignificant extent or to

lay any duty on tonnage, was permitted to the States.

In respect, however, to property, business and

persons, within their respective limits, their power

17

of taxation remained and remains entire. It is,

indeed, a concurrent power, and in the case of a tax

on the same subject by both governments, the claim

of the United States, as the supreme authority, must

be preferred; but with this qualification it is absolute.

The extent to which it shall be exercised, the subjects

upon which it shall be exercised, and the mode in

which it shall be exercised, are all equally within

the discretion of the Legislatures to which the States

commit the exercise of the power. That discretion is

restrained only by the will of the people expressed

in the state constitutions or through elections, and

by the condition that is must not be so used as to

burden or embarrass the operations of the National

Government. There is nothing in the Constitution

which contemplates or authorizes any direct

abridgement of this power by national legislation.

To the extent just indicated it is as complete in the

States as the like power, within the limits of the

Constitution, is complete in Congress.

Id. at 104-105.

Since Lane Co. has been cited favorably by several recent

opinions of this Court one would expect its holding to have

been binding on the Court below. See New York v. United States,

505 U.S. 144 (1992), and Prinz, Sheriff/Coroner, Ravalli

County, Mont. v. United States, __ U.S. __, 117 S. Ct. 2365,

2376 (1997). If it is correct that “There is nothing in the

Constitution which contemplates or authorizes any direct

abridgment of this power by national legislation” then § 81o(e)

is unconstitutional. It is inconceivable that a more direct

abridgement of the power of a state and/or its political

subdivisions to tax property within their jurisdiction could exist

than a statute such as § 81lo(e).

18

Il.

THE PETITION SHOULD BE GRANTED BECAUSE

THE OPINION BELOW EFFECTIVELY RENDERS THE

TENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION MEANINGLESS.

If, as this Court has repeatedly held, the power of the States

to tax persons or property within their boundaries is essential

and indispensable to their sovereignty, then a conflicting power

in the Federal Government to prohibit such taxation means that

State sovereignty exists only at the pleasure of the Federal

Government. Such sovereignty is an illusion.

The court below based its opinion on its conclusion that

when Congress is exercising its authority under the Commerce

Clause the only test that must be met is

1) whether a rational basis exists for finding that the

regulated activity affects interstate commerce, and

2) whether the means chosen by Congress were

reasonably adapted to the end permitted by the

Constitution.

(See Appendix A, page 5.) If general non-discriminatory state

taxation is an activity that is subject to regulation by Congress

then it would have to be conceded that any state tax (income,

sales, property, etc.) would meet the first part of that two-pronged

test. The more significant question is whether protection of

commerce from a general non-discriminatory state tax is an end

“permitted by the Constitution”. If it is, then all state taxes are

subject to Congressional control because they all “affect

interstate commerce”. The “affect” of the tax in question here is

no different on property outside a Foreign Trade Zone than

inside. Can Congress therefore designate the entire State of Texas

hes itis total

Tne 7) eae Tie one! ae ae ae

72)

ea ee ee ee

19

as a Foreign Trade Zone and prohibit taxation on all

manufacturing inventories?

The very existence of § 8lo(e) (to say nothing of the

stipulation between the parties that most if not all of the

exempted property would be taxable but for that section) proves

that its purpose is to prohibit Texas and/or its politica!

subdivisions from doing what they previously had the right to

do, namely, taxing the subject property. The School Districts

would urge that the tax in dispute here has no impact on

commerce different from any tax levied by any State or local

government. Does a property tax levied in Texas on property

located in a “Foreign Trade Zone” have any different impact on

commerce than an income tax levied in New York on companies

that own property in a “Foreign Trade Zone”? Any tax, by

definition, is an imposition on the taxed party.

It is inconceivable that the framers of the United States

Constitution intended that Congress would have the power to

pick and choose which taxes the States might levy on persons

and property within their jurisdiction. In the Federalist Papers

Alexander Hamilton wrote at length (papers 30 through 36) to

justify the provisions in the Constitution giving the power of

direct taxation to the Federal Government and to ameliorate the

fear that the sovereign powers of the States to tax would be

destroyed by that government. Hamilton’s justification of the

power of the Federal Government to levy a direct tax was

eloquent and forceful. It is doubtful, however, that it would

have turned the tide toward ratification if he had not been just

as eloquent and forceful in defending the co-equal and sovereign

rights of the States to impose taxes.

In the latter regard Hamilton in Paper 32 wrote as follows:

Although I am of opinion that there would be

no real danger of the consequences which seem to

20

be apprehended to the State governments from a

power in the Union to control them in the levies of

money, because I am persuaded that the sense of the

people, the extreme hazard of provoking the

resentments of the State governments, and a

conviction of the utility and necessity of local

administrations for local purposes, would be a

complete barrier against the oppressive use of such

a power; yet I am willing here to allow, in its full

extent, the justness of the reasoning which

requires that the individual States should possess

an independent and uncontrollable authority to

raise their own revenues for the supply of their

own wants. And making this concession, I affirm

that (with the sole exception of duties on imports

and exports) they would, under the plan of the

convention, retain that authority in the most

absolute and unqualified sense; and that an

attempt on the part of the national government

to abridge them in the exercise of it would be a

violent assumption of power, unwarranted by any

article or clause of its Constitution.

THE FEDERALIST No. 32 (Alexander Hamilton).

Had it been contemplated by the Framers of the Constitution

that Congress could prohibit a general state tax on the people

or property within the state merely because the tax might have

some impact on commerce, it is hard to conceive of the

justification that Hamilton, Madison or Jay could have set forth

in the Federalist Papers which would have overcome the

objections of the opponents to ratification. All taxes have an

impact on commerce in one way or another and, therefore, the

power to preclude state taxation under the guise of regulating

commerce would be all-encompassing. The States would have

been left as mere shells with no real sovereignty.

aici noni acce eae msc an alan ce reer ae maes

2]

Ratification was a close thing. If the Framers had in fact

intended that the Federal Government have such power over

the States it probably would not have occurred.

This Court has repeatedly said that the Commerce and

Import-Export Clauses were not designed to protect interstate

or international commerce from paying its way. See Michelin

Tire Corp., 423 U.S. 276 (1976); Department of Revenue of

Washington v. Association of Washington Stevedoring

Companies, 435 U.S. 734 (1978); Complete Auto Transit, 430

U.S. 274 (1977); and Goldberg v. Sweet, 488 U.S. 252 (1989).

If the tax singles out interstate or international commerce it

will be struck down. See American Trucking Ass'n v. Scheiner,

483 U.S. 266 (1987); Maryland v. Louisiana, 451 U.S. 724

(1981); and Tyler Pipe Indus., Inc. v. Washington State Dep't

of Revenue, 483 U.S. 231 (1987). But if the tax is fairly related

to the commerce or property being taxed it will be upheld.

Complete Auto Transit, 430 U.S. 274 (1977): Michelin Tire

Corp., 423 U.S. 276 (1976); Washington Stevedoring, 435 U.S.

734 (1978); and Trinova Corp. v. Michigan Dep’t of Treasury,

498 U.S. 358 (1991).

The Trinova decision contains perhaps the most concise

statement of the role this Court has set for itself in these cases.

There this Court held as follows:

In reviewing State taxation schemes under the

Commerce Clause, we attempt “to ensure that each

State taxes only its fair share of an interstate

transaction.” (cite omitted) We act as a defense against

State taxes which, whether by design or inadvertence,

either give rise to serious concerns of double taxation,

or attempt to capture tax revenues that, under the

theory of the tax belong of right to other

jurisdictions. We have always “declined to undertake

22

the essentially legislative task of establishing a single

constitutionally mandated method of taxation.”

Trinova Corp., 498 U.S. at 386.

Since the tax in question in this case violates none of the

restrictions on State taxation imposed either by the United States

Constitution or this Court’s opinions in the cases cited above,

the provisions of §81o(e) can be constitutional only if Congress’

plenary power under the Commerce Clause is limitless. The

School Districts acknowledge that in Garcia v. San Antonio

Metro, 469 U.S. 528 (1985) this Court overruled National

League of Cities v. Usery, 426 U.S. 833 (1976), and moved

from “a rule of state immunity from federal regulation that turns

on a judicial appraisal of whether a particular governmental

function is integral or traditional” to a somewhat ill-defined

protection afforded to whatever remains of State sovereignty

by “the built-in restraints that our system provides through state

participation in federal governmental action.” Jd. at 556.

It is unclear to the School Districts how the people of Texas

and their Constitution are to be protected by the “system” when,

as evidenced by the legislative history quoted above, the statute

in question in this case was aimed specifically at Texas and

only at Texas. It is clear that prior to the enactment of §81lo(e)

Texas was doing what it had the right to do — taxing property

such as that involved in the current dispute. Does the fact that

Texas was the only state obligated by its Constitution to levy

such taxes mean that it should be deprived of such a basic right

by a Congress comprised in large part of representatives from

49 other states with nothing at stake?

Even in Garcia this Court held “If there are to be limits on

the Federal Government’s power to interfere with state functions

— as undoubtedly there are... .” Garcia, 469 U.S. at 547.

That court also held as follows:

iia

23

The States unquestionably do “retain a significant

measure of sovereign authority.” EEOC v. Wyoming,

460 US, at 269, 75 L.Ed. 2d 18, 103 S.Ct. 1054

(Powell, J., dissenting). They do so, however, only

to the extent that the Constitution has not divested

them of their original powers and transferred those

powers to the Federal Government.”

Id. at 549.

Since it is indisputable that the power of the States to levy

general taxes on their people and property was an original power

of the States, one must look to the extent that the Constitution

has “transferred those powers to the Federal Government.”

Garcia, 469 U.S. at 549.

In United States v. Lopez, 514 U.S. 549, 558 (1995), this |

Court once again reviewed the powers transferred to Congress |

with respect to the regulation of commerce. In that case the

Court held that there were “three broad categories of activity

that Congress may regulate under its commerce power.”

... First, Congress may regulate the use of the

channels of interstate commerce . . . Second,

Congress is empowered to regulate and protect

the instrumentalities of interstate commerce or

persons or things in interstate commerce, even

though the threat may come only from intrastate

activities ... Finally, Congress’ commerce

i authority includes the power to regulate those

activities having a substantial relation to

interst>’. commerce, Jones & Laughlin Steel, 301

U.S., at 37, 57 S.Ct., at 624, ie., those activities

that substantially affect interstate commerce.

Id. at 558-59.

24

In Lopez the Federal Government, in attempting to defend

the statute involved, argued that (like the taxes involved here)

the costs of violent crime are substantial and that they have an

impact on the national economy and that it was therefore within

Congress’ authority under the Commerce Clause to regulate

the possession of firearms within a certain distance of public

schools. In response this Court held as follows:

We pause to consider the implications of the

Government’s arguments. The Government

admits, under its “costs of crime” reasoning, that

Congress could regulate not only all violent crime,

but all activities that might lead to violent crime,

regardless of how tenuously they relate to

interstate commerce. See Tr. of Oral Arg. 8-9.

Similarly, under the Government’s “national

productivity” reasoning, Congress could regulate

any activity that it found was related to the economic

productivity of individual citizens: family law

(including marriage, divorce, and child custody), for

example. Under the theories that the Government

presents in support of §922(q), it is difficult to

perceive any limitation on federal power, even in

areas such as criminal law enforcement or education

where States historically have been sovereign. Thus,

if we were to accept the Government’s arguments,

we are hard-pressed to posit any activity by any

individual that Congress is without power to

regulate. ...

Id. at 564.

In striking down that statute in Lopez this Court was

obviously retreating from reliance upon the purely structural

protections offered by this Court in Garcia in determining how

ee

25

far Congressional authority under the Commerce Clause

extended. Instead of a test that basically held that Congress

could do whatever it was big enough to do, this Court

recognized that there must be limits.

To uphold the Government’s contentions here,

we would have to pile inference upon inference in a

manner that would bid fair to convert congressional

| authority under the Commerce Clause to a general

police power of the sort retained by the States.

Admittedly, some of our prior cases have taken long

steps down that road, giving great deference to

congressional action. See supra, at 1629. The broad

language in these opinions has suggested the

possibility of additional expansion, but we decline

here to proceed any further. To do so would require

us to conclude that the Constitution’s

enumeration of powers does not presuppose

something not enumerated, cf. Gibbons v. Ogden,

supra, at 195, and that there never will be a

distinction between what is truly national and

what is truly local, cf. Jones & Laughlin Steel,

supra, at 30, 57 S.Ct., at 621. This we are

unwilling to do.

Id. at 567-68.

Another recent opinion, New York v. United States, 505

U.S. 144 (1992), serves to define the limits of congressional

power under the Commerce Clause.

As an initial matter, Congress may not simply

“commandee[r] the legislative processes of the States

by directly compelling them to enact and enforce a

federal regulatory program.” Hodel v. Virginia

ica

26

Surface Mining & Reclamation Assn., Inc., 452 U.S.

264, 288, 69 L.Ed.2d 1, 101 S.Ct. 2352 (1981)...

Id. at 161.

. .. While Congress has substantial powers to govern

the Nation directly, including in areas of intimate

concern to the States, the Constitution has never been

understood to confer upon Congress the ability to

require the States to govern according to Congress’

instructions ... The Constitution, in all its provisions,

looks to an indestructible Union, composed of

indestructible States...

Id. at 162.

In providing for a stronger central

government, therefore, the Framers explicitly

chose a Constitution that confers upon Congress

the power to regulate individuals, not States...

The allocation of power contained in the

Commerce Clause, for example, authorizes

Congress to regulate interstate commerce directly;

it does not authorize Congress to regulate state

governments’ regulation of interstate commerce.

Id. at 166.

In the most recent case addressing the issue of State

sovereignty this Court has once again made it clear that there

are limits beyond which the Federal Government may not go,

Printz, Sheriff/Coroner, Ravalli County, Mont. v. United States,

_ U.S. _, 117 S. Ct. 2365 (1997). In that case the court

struck down portions of the “Brady Act” which required local

law enforcement officials to perform background checks on

handgun purchasers. In doing so the Court held as follows:

27

It is incontestible that the Constitution

established a system of “dual sovereignty.” (Cites

omitted) Although the States surrendered many of

their powers to the new Federal Government, they

retained “a residuary and inviolable sovereignty,”

The Federalist No. 39, at 245 (J. Madison).

Residual state sovereignty was also implicit, of

course, in the Constitution’s conferral upon Congress

of not all governmental powers, but only discrete,

enumerated ones, Art. I, Section(s) 8, which

implication was rendered express by the Tenth

Amendment’s assertion that “[t]he powers not

delegated to the United States by the Constitution,

nor prohibited by it to the States, are reserved to the

States respectively, or to the people.”

The Framers’ experience under the Articles of

Confederation had persuaded them that using the

States as the instruments of federal governance was

both ineffectual and provocative of federal-state

conflict . . . (Cites omitted)

Id, at 2376-77.

i i

Preservation of the States as independent and

autonomous political entities is arguably less

undermined by requiring them to make policy in

; certain fields than (as Judge Sneed aptly described

: it over two decades ago) by “reduc[ing] [them] to

puppets of a ventriloquist Congress,” Brown v. EPA,

521 F.2d, at 839. It is an essential attribute of the

States’ retained sovereignty that they remain

independent and autonomous within their proper

sphere of authority. See Texas v. White, 7 Wall, at

28

725. It is no more compatible with this independence

and autonomy that their officers be “dragooned” (as

Judge Fernandez put it in his dissent below, 66 F.3d,

at 1035) into administering federal law, than it would

be compatible with the independence and autonomy

of the United States that its officers be impressed

into service for the execution of state laws.

Id. at 2381.

Isn’t Texas in fact being “dragooned” by the act challenged

in this cause? It is obligated to provide governmental services

to the Industries but prohibited from recovering compensation

for those services from those Industries. This requirement clearly

commandeers the State and local governments into the active

but uncompensated support of the federal regulatory scheme

incorporated into the “Foreign Trade Zone Act.” This certainly

appears to be the exact sort of regulation of the States rather

than of individuals that the New York opinion condemned.

Furthermore, depriving a State of the revenues it is entitled to

as part of the federal regulatory scheme is just as damaging to

the State, if not more so, than commandeering its revenues and

resources to further that scheme. This is exa sy the type of

action so recently condemned in Printz by this Court.

ne i co Tea ase chal ana ET ld SOT Sg

29

CONCLUSION

This case presents a question of exceptional importance —

whether Congress has the power, regardless of how limited its

current application may be, to place restrictions on State taxation

by statute which are not imposed on State taxation by the words

of the United States Constitution itself. If the authority of

Congress under the Commerce Clause is so broad as to allow it

to dictate to the states the method and mode of taxation they

may or may not employ, then the system of dual sovereignty

envisioned by the Framers of the Constitution exists only at the

pleasure of Congress.

Accordingly, the School Districts respectfully request that

their Petition for Writ of Certiorari be granted.

Respectfully submitted,

RUSSELL R. GRAHAM

CALAME LINEBARGER

GRAHAM & PENA, L.L.P.

Attorneys for Petitioners

P.O. Box 17428

Austin, Texas 78760

(512) 447-6675

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DATED JANUARY 22, 1998

DEER PARK INDEPENDENT SCHOOL DISTRICT;

Galena Park Independent School District; Sheldon

Independent School District, Plaintiffs-A ppellants,

Vv.

HARRIS COUNTY APPRAISAL DISTRICT; et =

Defendants,

Harris County Appraisal District; Shell Chemical

Corporation; Shell Oil Company; Marubeni Tubulars

Incorporated; Mitsui Tubular Products Incorporated;

Lyondell-Citgo Refining Company Limited; Crown Central

Petroleum Corporation; Vinson Supply Company; Siderca

Corporation, Defendants-Appellees.

GALENA PARK INDEPENDENT SCHOOL DISTRICT,

Plaintiff-Appellant,

v.

Harris County Appraisal District; et al., Defendants,

HARRIS COUNTY APPRAISAL DISTRICT; Marubeni

Tubulars Incorporated; Mitsui Tubular Products

Incorporated; Lyondell-Citgo Refining Company Limited;

Crown Central Petroleum, Defendants-Appellees.

SHELDON INDEPENDENT SCHOOL DISTRICT,

Plaintiff-Appellant,

v.

2a

Appendix A

HARRIS COUNTY APPRAISAL DISTRICT (Central); et al.,

Defendants,

Harris County Appraisal District (Central); Vinson Supply

Company; Siderca Corporation, Defendants-Appellees.

No. 97-20508

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Jan. 22, 1998.

* * *

Appeal from the United States District Court for the

Southern District of Texas.

Before REYNALDO G. GARZA, SMITH and

BENAVIDES, Circuit Judges.

PER CURIAM:

This case comes from a final summary declaratory judgment

of the United States District Court for the Southern District of

Texas, Judge Lynn Hughes, presiding. This case was decided

on cross-motions for summary judgment. The district court

granted summary judgment in favor of the Defendants-

Appellees, the Harris County Appraisal District, et al. (the

“Companies”). The Plaintiffs-Appellants, the Deer Park

Independent School District, et al. (the “School Districts”) timely

appealed, and the matter now lies before this panel.

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3a

Appendix A

Background

The School Districts’ filed suit in the district court on

September 30, 1996, seeking a declaratory judgment stating

that 19 U.S.C. § 8lo(e) is unconstitutional. This statute grants

exemptions from state and local ad valorem taxes on property

to businesses located inside of Foreign Trade Zones (“FTZs”).

Specifically, the School Districts alleged that these exemptions

unconstitutionally deprived them of tax revenue.

The Companies’ are various corporations with operations

in the FTZs. Both sides have stipulated that the property

involved in this dispute is either (i) tangible personal property

imported from outside the United States and held in an activated

FTZ for the purpose of storage, sale, exhibition, repackaging,

assembly, distribution, sorting, grading, cleaning, mixing,

display, manufacturing, or processing, or (ii) tangible personal

property produced in the United States and held in an activated

FTZ for exportation, either in the above form or as altered by

the above processes. But for the operation of § 810(e), all or a

significant part of the property would be taxable by the School

Districts.

1. The School Districts are: The Deer Park Independent School

District, the Galena Park Independent School District, and the

Sheldon Independent School District. The Companies asked that the

appeal of the Sheldon Independent Schoo! District be dismissed for

want of jurisdiction. We do not pass on that point at this time, because

it is Moot, given the outcome of this case.

2. The Companies are: the Lyondell-Citgo Refining Company,

Ltd., the Crown Central Petroleum Corporation, the Shell Oil

Company, the Shell Chemical Corporation, the Siderca Corporation,

the Vinson Supply Company, Mitsui Tubular Products, Inc., and

Marubeni Tubulars, Inc. The Harris County Appraisal District was

included as a defendant in this suit because of its role as tax assessor.

4a

Appendix A

Several related cases were consolidated into this one, and

the parties stipulated to the relevant facts. Both sides submitted

motions for summary judgment, and on May 16, 1997, the

district court made its ruling. The district court granted summary

judgment in favor of the Companies, and denied the School

Districts’ motion for summary judgment.

The School Districts timely appealed, claiming that the

district court erred in granting summary judgment in favor of

the Companies. They argue that § 81lo(e) is an unconstitutional

exercise of Congress’ power under the Commerce Clause, and

violates the Tenth Amendment and the Guarantee Clause of the

Constitution. Upon review of the pleadings, briefs, and record

on file, we find no reversible error and affirm the decision of

the district court.

Standard of Review

Summary judgment is appropriate if the record discloses

that “there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

Fed.R.Civ.Proc. 56(c); Sims v. Monumental General Ins. Co.,

960 F.2d 478, 479 (Sth Cir.1992). The pleadings, depositions,

admissions, and answers to interrogatories, together with

affidavits, must demonstrate that no genuine issue of material

fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). We review the facts drawing all

inferences in favor of the party opposing the motion. Reid v.

State Farm Mutual Auio. Ins. Co., 784 F.2d 577, 578 (5th

Cir. 1986).

In addition to the aforementioned general procedural

matters, we review challenges to the validity of a Congressional

Sa

Appendix A

exercise of power under the Commerce Clause using the

following standards. The burden for the challenger in cases such

as this is high. This Court must determine only (1) whether a

rational basis exists for finding that the regulated activity affects

interstate commerce, and (2) whether the means chosen by

Congress were “reasonably adapted to the end permitted by the

Constitution.” Hodel v. Virginia Surface Mining & Reclamation

Ass'n, 452 U.S. 264, 276, 101 S.Ct. 2352, 2360, 69 L.Ed.2d

1 (1981). The Commerce Clause power is complete in itself

and is only limited by those limits prescribed in the Constitution.

Id.

Congress’ regulatory power under the Commerce Clause

may be used to regulate the use of the channels of interstate

commerce, Congress may protect and regulate the

instrumentalities of interstate commerce (including people or

things in interstate commerce), and Congress may regulate those

activities having a substantial relation to interstate commerce.

U.S. v. Lopez, 514 U.S. 549, 556, 115 S.Ct. 1624, 1629, 131

L.Ed.2d 626 (1995). While the states do retain broad powers

under the Constitution, they “only do so to the extent that the

Constitution has not divested them of their original powers and

transferred these powers to the Federal Government.” Garcia v.

San Antonio Metropolitan Transit Authority, 469 U.S. 528,

549-550, 105 S.Ct. 1005, 1016-17, 83 L.Ed.2d 1016 (1985).

The right to regulate foreign and interstate commerce is one of

powers expressly granted to the federal government by Art. I,

§ 8, cl. 3 of the Constitution.

Analysis

While all the claims are related, the primary contention of

the School Districts is that Congress did not have power under

6a

Appendix A

the Commerce Clause to enact and enforce § 8lo(e), and as a

result, the statute should be declared unconstitutional. We have

already stated the broad extent of Congress’ powers under the

Commerce Clause, as well as the fact that the standard of review

is whether there was a rational basis for Congress’ actions and

whether the means chosen were reasonably adapted to the ends.

Hodell 452 U.S. at 276, 101 S.Ct. at 2360.

Congress’ actions in this case were rational and pass muster.

First of all, there can be no doubt that the activities in the FTZs

constitute foreign, and by extension, interstate commerce, so

they are within the purview of the Congress. Next, it is

completely rational to believe that the imposition of ad valorem

taxes on the property in the FTZs would affect interstate and

foreign commerce, and that forbidding such taxes would provide

uniform treatment of FTZs throughout the country. Such

uniformity in foreign commerce is a well-recognized federal

interest. Japan Line, Ld.. v. County of Los Angeles, 441 U.S.

434, 448-449, 99 S.Ct. 1813, 1821-1822, 60 L.Ed.2d 336

(1979). Further, in enacting § 8lo(e), Congress explicitly found

that the aims of the original act of Congress which created FTZs

were being frustrated by non-uniform local and state ad valorem

taxes. Congress believed, rationally, that this negatively affected

interstate and foreign commerce, and fashioned a reasonable

response.

Also this law is of importance to Texas because the Texas

Constitution specifically lists the permissible exemptions from

ad valorem taxation, and property within FTZs is not on the

list. For this reason, Texas Senators Lloyd Bentsen and John

Tower, in conjunction with Texas Congressmen Jim Wright and

Jack Brooks, sponsored this law. This law was passed to help

Texas, by encouraging industry, and is not a type of oppression

or “dragooning” of the state, as the School Districts contend.

eT ee

WAS Sinha Mallee «hats ie ITH ea

Ta

Appendix A

Further, the plenary power granted to Congress under the

Commerce Clause includes the power to protect interstate and

foreign commerce from taxation. State Bd. of Insurance v. Todd

Shipyards Corp., 370 U.S. 451, 456, 82 S.Ct. 1380, 1383,

8 L.Ed.2d 620 (1962). This power to grant or withhold

protection from regulation or taxation “is so complete that its

ideas of policy should prevail.” Jd. Congress’ actions were well

within its power under the Commerce Clause, and pass muster

under the standards listed.

The School Districts also claim that § 81o(e) violates the

Tenth Amendment. As stated previously, the Tenth Amendment's

reservation to the states of power not conferred on the federal

government in no way inhibits the activities of the federal

government in situations in which a power has been so

conferred. See Garcia, 469 U.S. at 549-550, 105 S.Ct. at

1016-1017. The explicit granting of power to the Congress, in

regard to its right to regulate foreign and interstate commerce,

in conjunction with the Supremacy Clause, clearly gives

Congress power over this situation. See e.g., Seniors Civil

Liberties Ass'n, v. Kemp, 965 F.2d 1030, 1034 (11th Cir.1992).

Further, historically, Congressional prohibitions on state

taxation have been upheld over Tenth Amendment challenges.

For example, even when National League of Cities v. Usery,

426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) was the

lead Supreme Court case on these matters,’ the Supreme Court

upheld a federal law which preempted a state tax that

discriminated against the sale of electricity outside the state.

Arizona Public Service Co. v. Snead 441 U.S. 141, 99 S.Ct.

1629, 60 L.Ed.2d 106 (1979). The Supreme Court rejected the

3. National League of Cities was overruled by Garcia, 469 U.S.

at 557, 105 S.Ct. at 1020.

8a

Appendix A

argument that Congress lacked authority under the Commerce

Clause to regulate state taxation, stating that Congress had broad

power in this sphere, had a rational basis for finding that the

tax interfered with interstate commerce, and the means selected

were reasonable to achieve Congress’ ends. /d. at 150, 99 S.Ct.

at 1634. More recent cases have given support to this

proposition as well. For example, in New Jersey v. Consolidated

Railroad Corp., 690 F.Supp. 1061 (Reg’! Rail Reorg.Ct. 1988),

the court held that Congress could exempt Conrail (a privately

owned railroad) from taxation, rejecting the state’s Tenth

Amendment claim.

Congress acted well within its powers under the Commerce

Clause in this case, its belief that this affected interstate commerce

was rational, and the means it used to achieve its goals were

reasonable and appropriate. Therefore, the School Districts’

Tenth Amendment claims fail.

As a final argument on this point, the School Districts claim

that cases such as New York v. United States, 505 U.S. 144,

112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) and Printz, et al v.

United States, — U.S. —, 117 S.Ct. 2365, 138 L.Ed.2d 914

(1997), somehow support their Tenth Amendment claim. This

assertion is incorrect. Those cases involve an act of Congress

which essentially hijacked the administrative apparatus of state

and local government to help achieve Congress’ ends. This case

is not an example of such a Congressional overreach, so this

argument fails as well.

The School Districts also claim that § 8lo(e) violates the

Guarantee Clause of the Constitution in that it deprives the states

of a republican form of government. This claim is not only

incorrect, it is absurd. First of all, the Supreme Court has held

9a

Appendix A

that challenges to Congressional action under the Guarantee

Clause are not justiciable. See Baker v. Cars, 369 U.S. 186,

224, 82 S.Ct. 691, 713, 7 L.Ed.2d 663 (1962); O’Hair v. White,

675 F.2d 680, 684 n. 5 (Sth Cir. 1982). Also, the School Districts

do not explain the merits of their claim, silence which warrants

rejection. Further, at least as of today, Texas is governed by a

freely elected legislature and executive, not a monarchy, military

dictatorship, or any other type of government which would

offend the Guarantee Clause of the Constitution. Unless and

until that fact changes, this claim is an absolute dead letter.

Conclusion

Based on the foregoing, we find no reversible error in the

decision of the district court, which granted summary judgment

in favor of the Defendants-Appellees, and held that § 81o(e) is

constitutional. Therefore, we AFFIRM the decision of the district

court.

AFFIRMED.

10a

APPENDIX B — OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS ENTERED MAY 16, 1997

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

CIVIL ACTION H-96-3256

DEER PARK, GALENA PARK and SHELDON

INDEPENDENT SCHOOL DISTRICTS,

Plaintiffs,

versus

HARRIS COUNTY APPRAISAL DISTRICT, SHELL

CHEMICAL CORPORATION, SHELL OIL COMPANY,

MARUBENI TUBULARS, INC., MITSUI TUBULAR

PRODUCTS, INC., LYONDELL-CITGO REFINING CO.,

LTD., CROWN CENTRAL PETROLEUM CORP., VINSON

SUPPLY CO., SIDERCA CORPORATION, and MARUBENI

AMERICA CORPORATION,

Defendants.

Opinion on Judgment

1. Introduction

Three school districts located near the port of Houston sued

companies in foreign trade zones for property taxes. A federal

statute allows companies in the zones an exemption from state

and local ad valorem taxes on personal property. The school

districts claim that the law unconstitutionally intrudes on their

Pear be ARE EG oa SPD %

lla

Appendix B

authority as components of the federal system of divided power

and unconstitutionally extends the national authority over

foreign trade.

The school districts cannot collect taxes from these

companies because the exemption statute’s purpose and effect

is directly and substantially related to an express power that the

Constitution confides to the national government. A

constitutional statute supersedes contrary provisions of the Texas

Constitution and laws.

2. Foreign Trade Zone.

A foreign trade zone is an area that is physically within the

United States, but it is treated as if it were outside of the United

States territory for import duty purposes. Since 1934, federal

law has permitted importation of goods into zones without

payment of customs duties until they are transferred from the

zone into the general domestic economy. If the products are

shipped to another country, then no American duty is charged.

See The Foreign Trade Zones Act of 1934, 19 U.S.C. §§ 81a-

81u (1996). The goods — usually raw materials or parts — can

then be assembled, stored, and processed by the company in

the zone. The purpose of a zone is the economic benefit to the

domestic economy of American companies’ using local workers,

supplies, and other resources more frequently than would have

been the case if the companies had to pay United States duties

before working with the goods. A company that buys equipment

to process these tax-exempt goods will owe the school district

taxes on the machines. See A.T. Cross Co. v. Sunil Trading

Corp., 467 F. Supp. 47, 50 (S.D.N.Y. 1979).

12a

Appendix B

3. The 1983 Expansion.

Ironically, the principal congressional sponsors of an

expansion of the law in 1983 were Texas Senators John Tower

and Lloyd Bentsen and Texas Congressmen Jim Wright and

Jack Brooks. Their bill extended the exemption from customs

duties to include an exemption from state and local ad valorem

taxes. The statutory exemption says:

Tangible personal property imported from outside

the United States and held in a zone for the purpose

of storage, ... assembly, ... or processing, and

tangible personal property produced in the United

States and held in a zone for exportation ... shall

be exempt from State and local ad valorem taxation.

19 U.S.C. § 8lo(e).

The bill was introduced to cure a “unique problem in the

State of Texas in which the local taxing jurisdiction does not

have the authority to exempt tangible personal property in a

[foreign trading zone] from taxation due to the State

constitution.” H.R. Rep. No. 267, 96th Cong., Ist Sess 35-36

(1983). Texas’s constitution specifies articles that are exempt

from tax, and no other exemptions may be allowed by local

governments. The legislators “expected that Federal law would

preempt State law in this case.” Jd.

4. Texas & Property Taxes -

The Texas Constitution requires that all property be taxed

unless the property has been allowed an exemption in the

constitution itself. TEX CONST. art. VII, §§ 1, 2, and 3. Until

Poe AEE RTM ee ee TR ay

13a

Appendix B

recently (in historical terms) Texas was dependent on ad valorem

taxation of property. These taxes were administered through

independently elected county officers who appraised the

property, assessed the taxes, and collected the taxes for the

county and state. The state had no separate appraising or

collecting officers. Under these circumstances Texas needed to

keep locals from allowing exemptions that would have the effect

of shifting part of that county’s state tax burden to other counties.

Texas stopped using ad valorem taxes for direct state

revenue in 1968, leaving that source to local governments. This

shift was possible because in 1961 the state had adopted a state-

wide sales tax, among other taxes. See TEX CONST. art. VIII,

§ 1-e(1) (abolition of ad valorem taxes); see generally Mark G.

Yudof, The Property Tax in Texas Under State and Federal

Law, 51 Tex. L. Rev. 885 (1973).

The administrative cost and abuses of each city and school

district having its own appraisal process in addition to the

county's system led the state to compel all taxing authorities

within a county to use a single appraisal authority. The Harris

County Appraisal District serves as the sole source of property

valuations for tax purposes. Because it did not list a taxable

value for these companies’ stocks of goods, the school districts

sued to compel it to appraise the property held by these

companies so that they may assess taxes based on that value.

The appraisal district has admitted that it will obey the law and

that it has no direct interest in the outcome of the case, with the

companies being the real parties in interest.

5. Commerce Clause, Zones & the Constitution.

The districts say that the exemption of goods present within

the district — even if they are exempt from federal taxes — are

14a

Appendix B

indistinguishable from other goods in the districts. The districts’

position is that: The use of the commerce power to reach into a

unit of local government to exempt particular goods based on

their past or future locations (a) extends the authority of the

government beyond the constitutional purpose of the commerce

clause and (b) impedes the constitutional function of regional

and local governments as a counter force to the national

government.

A government act does not violate the constitution, if:

¢ By its terms or impact, the act has an objective that relates

rationally to a governmental power entrusted to that

government;

* The act employs a permissible means;

¢ The actual accomplishment of the objective and

significance of the objective justify the nature and extent

of the resulting inhibition of a component of liberty;

¢ The act has been adopted and applied with procedural

regularity; and

¢ The act distinguishes between affected and non-affected

persons defensibly because the criterion between them

is logically connected to the objective.

As Chief Justice John Marshall said, “Let the end be

legitimate, [then] all means that are appropriate . . . to that end,

which are not prohibited [by] the letter and spirit of the

Constitution, are constitutional.” McCulloch v. Maryland, 4

Wheat. 316, 421 (1819).

15a

Appendix B

A. Entrustment.

The Constitution confides the subject of foreign

commerce to the national government. Congress is allocated

authority over commerce “among nations” and a monopoly

on import duties. U.S. CONST. art. I, § 8. Further, “No

state shall, without the Consent of Congress, lay any

Imposts or Duties on Imports or Exports . . .” U.S. CONST.

art. I, § 10. Further, “The Congress shall have the Power

. .. To regulate Commerce with foreign Nations, and among

the several States .. “” U.S. CONST. art. 1, § 8. This power

is “complete in itself, may be exercised to its utmost extent,

and acknowledges no limitations, other than are prescribed

in the constitution.” Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1. 196 (1824).

B. Permissible Means.

The Constitution restricts congress’s power over taxes

several ways, like tax bills must originate in the house and

import duties must be uniform nationally, but no provision

expressly — comparable, say, to the ban on “takings” —

disallows the technique of tax exemption from the tools

congress may use to effect its policy decisions.

C. Rational Relation.

To comply with its obligations under the Constitution,

the national government must select a means that is

plausibly related to the end that the Constitution has said it

may address. It is not obliged to select a means that is the

best available, single-purposed, or proven. Even the search

for a plausible relation is not an evaluation among the levels

l6a

Appendix B

of effectiveness; it is, rather, the search for a violation of

constitutional limits on the scope of the national government

by use of a power for non-national purposes. Irrationality

suggests deceit, not insanity.

The actual economic effects locally or nationally are

probably unknowable. Deer Park loses the revenue from

the zone property, but it gets increased revenue from rise

in demand for houses and other business properties, if it

works. See generally Robert G. Lynch, Do State & Local

Tax Incentives Work?, ECON. POL’T. INSTITUTE (1996);

Joseph P. Phillips & Ernest P. Gross, The Effect of State

and Local Taxes on Economic Development: A Meta-

Analysis, 62 SOUTH. ECON. J. 320 (1995). Although the

goods are tax exempt, the new equipment a company

acquires to process the goods is added to Deer Park’s source

of revenues. At least the national government defers or

forgoes its taxes along with depriving the districts; this

uniformity suggests an absence of malice. “Foreign trade

zones are valued because they actually promote domestic

industry and create jobs . . . [T]axation of goods in foreign

trade zones could arguably harm domestic industry .. .”

R. J. Reynolds Tobacco Co. v. Durham County, 479 U.S.

130, 153 n.22 (1986).

D. Taxes.

Whatever the particular merit of the plan as economic

stimulation, exemption from local tax has long been a tool

of building a national economy. The Constitution itself

bans local tax barriers to interstate and foreign trade in the

form of customs duties. See U.S. CONST. art. I, § 10.

17a

Appendix B

In the absence of a statute, goods in foreign commerce

although present in the territory of the United States are

free of local taxes. See Xerox Corp. v. County of Harris,

Texas 459 U.S. 145 (1982); Hooven & Allison Co. v. Evatt,

324 U.S. 652, 679 (1945).

E. Liberty Component: Federalism.

This federal statute could adversely affect individual

liberty through its shifting the constitutional balance of

power between the aggregate state and local governments

and the national government. In American political

discourse, the arrangement of governmental power among

different levels and regions is called federalism. A significant

shift in the relation between the levels could disrupt the

constitutional machinery, violating the implicit principle

of balance through federalism.

Excluding sources of revenue could be done so that

the local sub-unit of the state was impotent. With it. local

administrative units crippled, the state could be eviscerated.

While this is true and may occasionally seem likely, this

particular statute will not cause the collapse, so it is

hypothetical. Excluding the property immunized by the

foreign trade zones, Deer Park had a valuation of $541

million of inventories alone in 1996, generating almost $8

million of tax revenue; Galena Park had a valuation of

inventories of $555 million in 1996, generating even more

tax revenue. See Taking Stock of Inventory Taxes, FISCAL

NOTES (Texas Comptroller of Public Accounts), March

1997, at 6.

18a

Appendix B

F. Liberty Component: Republican Guaranty.

The school districts have urged that the national

government has breached its duty to the state through the

districts because the Constitution says the “United States

shall guarantee to every State in this Union a Republican

Form of Government ...” U.S. CONST. art. IV, § 4.

Ordinarily, a guaranty would be protection from the acts

of some third-party and not from the guarantor itself. The

text could be understood to mean that the national

government guarantees that it will not destroy the states’

republican governments by its own excesses, but the

constitutional role of the states is balance through federalism,

which does not require republican states. A monarchical

Nebraska could counter national power.

If a state’s government did not observe the limits on

its power that republicanism requires, its imposition on its

people would require a response by the national government.

The constitutional guaranty says that the national

government will assist the people of a state in maintaining

their right to a state administration whose power is derived

“from the consent of the governed.” Rather than a people

petitioning Washington to restore the state’s republican

institutions, we have a state-created government objecting

to a reduction of taxes on its people.

The companies argue, with much legal “authority” on

their side, that the guaranty required by the Constitution of

the United States for the benefit of the people of the states

cannot be enforced in court. The occasion to decide whether

to enforce the Constitution’s limits on the character of state

governments does not now arise, but an unenforceable limit

19a

Appendix B

is no limit, and the text of the Constitution is mostly keel

and little sail.

The school districts seek shelter from the national

omnipresence in the reservation of the power to the states

and people that the people did not actually allocate to the

national government in the Constitution. See U.S.CONST.

amend. X. Even if the reservation in the Tenth Amendment

restates the implication of the restricted grants that precede

it, our experience has shown that the categories of grant

have become infinitely expandable; the founders denied a

possible inference that there was a quantum of power

floating free for acquisition by the national government.

Since this statute fits squarely within one of the express

grants of power, the reservation’s express vesting of residual

authority in the people is not implicated.

The form of government may seem like a lawyer’s

hyper-technicality, but our Constitution restricts power by

allocating it to specific parts of the apparatus and by sheer

prohibitions. Other than the implicit policy of preserving

individual liberty through limited government, the

Constitution is about methods and process rather than

policies and ends. The structure of the machinery is the

constitution; what it constitutes is a structure. It constitutes

no policy about postal deficits or tax level. The preservation

of the states as a counter-weight to the national government

is essential to preserving the Constitution.

G. Affected Persons.

The districts say that they are adversely affected

because they are forced to forgo revenue to support national

20a

Appendix B

goals that other districts collect. They say that there is no

defensible way to distinguish between school districts hurt

by this act and those that are not.

The distinction among districts is rationally purposeful

because the act exempts a particular class of goods defined

by geographical areas that are not school-district specific.

Some of a district’s area may be in a zone, some may not,

all may be, or all may not; the area is chosen for its likelihood

of having the ability to attract foreign trade. If a foreign

trade zone were created in a school district that had no

foreign commerce, then none of the goods present at tax

time would qualify for the exemption.

The relation between the zone and district is

adventitious, but the relation between the zone and foreign

trade is direct.

6. Texas Tax Code.

Indeed, the right of Congress to preempt state taxation,

whether under the Commerce Clause or under another

constitutional grant of authority, is recognized by the Texas

Tax Code itself. The code confirms that “[p]roperty exempt

from ad valorem taxation by federal law is exempt from

taxation,” recognizing the federal government’s power to create

exemptions. TEX. TAX CODE ANN. § 11.12 (1992). The Texas

legislature itself recognized Texas’s public interest in

encouraging uniform application of law, as well as foreign and

other trade with Texas citizens, by expressly acknowledging to

federal statutory exemptions from local ad valorem taxation.

Texas adopted a statute allowing local districts at their

option to exempt goods being processed for export. This statute

2la

Appendix B

may be broader than the current federal exemption, but whether

it is wholly moot or still useful is irrelevant to the dominance

of the federal policy. See TEX. TAX COD ANN. § 11.251

(1992) (the option for local taxing jurisdictions exempts goods

warehoused in Texas for less than 175 days that then leave the

state).

7. Conclusion.

Under its authority over international commerce, the

national government created foreign trade zones for goods to

be exempt from local ad valorem taxes while processed in the

United States; that exercise of constitutional authority complied

with the limits of that power itself and the limit on its intrusion

on state governments’ partial autonomy. When the national

government constitutionally exercises its authority, the national

policy supersedes state and local rules that conflict. See U.S.

CONST. art. VI, § 2 (Supremacy Clause). In the context of

state taxation, “the power of congress to grant protection to

interstate commerce against state regulation or taxation is so

complete that its ideas of policy should prevail.” State Board of

Insurance v. Todd Shipyards Corp., 370 U.S. 451, 456 (1962)

(citations omitted).

The Harris County Appraisal District has constitutionally

applied the federal exemption to the Deer Park, Galena Park,

and Sheldon Independent School Districts. The companies do

not owe ad valorem taxes on their unimported goods.

Singed May 15, 1997, at Houston, Texas.

s/ Lynn N. Hughes

Lynn N. Hughes

United States District Judge

22a

APPENDIX C — STIPULATION OF FACTS

DATED JANUARY 17, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

C.A. NO. H-96-3256

(CONSOLIDATED WITH

H-96-2786 AND

WITH H-96-2959)

DEER PARK INDEPENDENT SCHOOL DISTRICT,

GALENA PARK INDEPENDENT SCHOOL DISTRICT and

SHELDON INDEPENDENT SCHOOL DISTRICT,

Plaintiffs

VS.

HARRIS COUNTY APPRAISAL DISTRICT, SHELL

CHEMICAL CORP., SHELL OIL CO., MARUBENI

TUBULARS, INC., MITSUI TUBULAR PRODUCTS, INC.,

LYONDELL-CITGO REFINING CO., LTD., CROWN

CENTRAL PETROLEUM CORP., VINSON SUPPLY CO.,

and SIDERCA CORP.

Defendants

STIPULATION OF FACTS

All counsel have consulted and consented in the matter

and present the following stipulation of facts as to which the

parties agree there are no genuine issues to be tried:

ee

23a

Appendix C

1. Property taxes levied by school districts on property

located within their respective boundaries comprise a significant

portion of the total expenditure on public education in Texas.

2. The Plaintiffs are independent school districts existing

by virtue of TEX. CONST., art. 7 § 1 and TEX. ED. CODE.

ANN., Title 2 and are political subdivisions of the State of

Texas.

3. The information contained in the “Data Sheets” prepared

at the Court’s direction by both Plaintiffs and Defendants is

incorporated into this Stipulation of Facts.

4. The facts set forth in paragraphs 19-21, 24-33 and 37-42

of Plaintiffs’ First Amended Complaint for Declaratory

Judgment with respect to the identification and valuation of the

properties exempted are correct. The applicable tax rates for the

relevant tax years and taxing jurisdictions are as follows:

The tax rates per $100.00 of value for Deer Park

Independent School District for 1995 and 1996 are $1.53 and

$1.53 respectively. The tax rates per $100.00 of value for Galena

Park Independent School District for 1994, 1995 and 1996 are

$1.5868, $1.5868 and $1.6168, respectively. The tax rate per

$100.00 of value for Sheldon Independent School District for

1996 is $1.52.

5. All of the property involved in this dispute was located

in an activated foreign trade zone on January | of each year

involved in this dispute, and all such property was either

(i) tangible personal property imported from outside the United

States and held in a zone for the purpose of storage, sale,

exhibition, repackaging, assembly, distribution, sorting, grading,

24a

Appendix C

cleaning, mixing, display, manufacturing, or processing, or (ii)

tangible personal property produced in the United States and

held in a zone for exportation, either in its original form or as

altered by any of the above processes.

6. Deer Park Independent School District filed a timely

challenge petition as required by Section 41.04, Texas Tax Code,

timely filed a notice of appeal as required by Section 42.06,

Texas Tax Code and timely filed suit with respect to the property

referenced in paragraphs 19-21 of Plaintiffs’ First Amended

Complaint for Declaratory Judgment.

7. Galena Park Independent School District filed a timely

challenge petition as required by Section 41.04, Texas Tax Code,

timely filed a notice of appeal as required by Section 42.06,

Texas Tax Code and timely filed suit with respect to the property

referenced in paragraphs 24-33 of Plaintiffs’ First Amended

Complaint for Declaratory Judgment.

8. Sheldon Independent School District did not file a timely

challenge petition as required by Section 41.04, Texas Tax Code

and did not timely file a notice of appeal as required by Section

42.06, Texas Tax Code, with respect to the property referenced

in paragraphs 37-42 of Plaintiffs’ First Amended Complaint

for Declaratory Judgment.

9. All or a significant portion of the property involved in

this dispute would be taxable by the Plaintiffs were it not for

the exemption created by the provisions of 19 U.S.C. §81lo(e).

10. The property involved in this dispute is exempt from

taxation by the Plaintiffs unless the provisions of 19 U.S.C.

§8lo(e) are unconstitutional.

Se ee ee

25a

Appendix C

Dated: January 17, 1997.

Respectfully submitted,

STRASBURGER & PRICE, L.L.P.

P.O. Box 50100

Da'las, Texas 75250

Telephone: (214) 651-4300

Facsimile: (214) 651-4330

By: s/ Andrew G. Halpern/JBC

Andrew G. Halpern

State Bar No. 08805100

ATTORNEY FOR DEFENDANTS

Crown Central Petroleum Corporation

Lyondell-Citgo Refining Company, Ltd.

and Siderca Corporation

CALAME LINEBARGER GRAHAM &

PENA, L.L.P.

P.O. Box 17428

Austin, Texas 78760

Telephone: (512) 447-6675

Facsimile: (512) 443-3494

By: s/ R.R. Graham/JBC

Russell R. Graham

State Bar No. 08274500

ATTORNEY FOR PLAINTIFFS

26a

Appendix C

OLSON & OLSON

34385 Three Allen Center

333 Clay Street

Houston, Texas 77002

Telephone: (713) 759-0696

Facsimile: (713) 759-0342

By: s/ K.E. Wall/JBC

Kenneth E. Wall

State Bar No. 20759000

ATTORNEY FOR HARRIS COUNTY

APPRAISAL DISTRICT

JULIAN C. GREEN

Attorney at Law

Willowbrook Place II

17359 State Highway 249, Suite 110

Houston, Texas 77064

Telephone: (713) 469-9645

Facsimile: (713) 894-6442

By: s/ J.C. Green/JBC

Julian C. Green

. State Bar No. 08382500

ATTORNEY FOR MARUBENI

TUBULARS, INC.

MORRIS & CAMPBELL, P.C.

600 Jefferson, Suite 1617

Houston, Texas 77002

Telephone: (713) 659-8697

Facsimile: (713) 659-3020

By: s/ J.S. Brannon/JBC

John S. Brannon

State Bar No. 02895500

ATTORNEY FOR

MITSUI TUBULAR PRODUCTS, INC.

27a

Appendix C

FULBRIGHT & JAWORSKI L.L-P.

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

Telephone: (713) 651-5151

Facsimile: (713) 651-5246

By: s/ J.G. Taylor/JBC

J.G. Taylor Il

State Bar No. 19733500

ATTORNEY FOR SHELL CHEMICAL

CORP. AND SHELL OIL CO.

HUGHES & LUCE, L.L.P.

1717 Main Street, Suite 2800

Dallas, Texas 75201

Telephone: (214) 939-5500

Facsimile: (214) 939-6100

By: s/ C.M. Ohlenforst/JBC

Cynthia M. Ohlenforst

State Bar No. 15236600

ATTORNEY FOR VINSON SUPPLY

COMPANY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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