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Chapter 1
Legal Issues

This chapter addresses various provisions of law relating to ARBs. The intent of this chapter is to provide ARB members with information regarding statutory provisions governing taxpayer protests, with particular focus on specific statutory provisions.

I. Introduction to ARB Responsibilities

An ARB fulfills a vital and integral function in the property tax system. The U.S. Constitution provides that no person's property may be harmed or affected by governmental action unless due process is provided to the person affected by the action. In the context of taxation, Texas courts have held that due process affords taxpayers a right to be heard before final assessment.^[2] In the context of property tax, ARBs provide taxpayers that right.^[3]

A. Statutory Duties

The Property Tax Code ("Tax Code") sets forth the duties of the ARB. These duties consist of both procedural and substantive responsibilities. The substantive duties are outlined in Tax Code Section 41.01 and include the following:

• determining protests initiated by property owners;
• determining challenges initiated by taxing units;
• correcting clerical errors in the appraisal records and the appraisal rolls;
• acting on motions to correct appraisal rolls;
• determining whether an exemption or a partial exemption is improperly granted and whether land is improperly granted appraisal for agricultural and timber land; and
• taking any other action or making any other determination specifically authorized or required by the Tax Code.

B. Independence of the ARB

When it enacted the Tax Code, the Texas Legislature created appraisal districts and ARBs as separate entities.^[4] Texas courts have recognized this legislative separation–directly acknowledging that the appraisal district and the ARB are "separate and distinct bodies."^[5] Although most ARB members are appointed by appraisal district boards of directors and an ARB may use the staff of the appraisal office for clerical assistance, the ARB maintains an independence from the appraisal district's board of directors and appraisal district staff, including the chief appraiser.^[6]

Provisions enacted by the Legislature to ensure an ARB's independence include the following:

• An individual is ineligible to serve on an ARB if the individual is a member of the appraisal district's board of directors, an officer or employee of the appraisal district, an employee of the Comptroller, or a member of the governing body, officer, or employee of a taxing unit.^[7]
• An individual is ineligible to serve on an ARB if the individual is related within the second degree of consanguinity or affinity to an individual who is engaged in the business of appraising property for compensation for use in proceedings under the Tax Code or of representing property owners for compensation in proceedings under the Tax Code in the appraisal district for which the ARB is established.^[8]
• An individual is not eligible to be appointed or to serve on an ARB if the individual or a business entity in which the individual has a substantial interest is a party to a contract with the appraisal district or with a taxing unit that participates in the appraisal district.^[9]
• An appraisal district may not enter into a contract with a member of the ARB established for the appraisal district or with a business entity in which a member of the ARB has a substantial interest.^[10]
• A taxing unit may not enter into a contract with a member of the ARB established for an appraisal district in which the taxing unit participates or with a business entity in which a member of the ARB has a substantial interest.^[11]

ARBs are appointed to act independently of the appraisal district and to make fair and impartial determinations.

C. Ex Parte Communications

Pursuant to Section 41.66(f) of the Tax Code, an ARB member may not communicate with another person concerning the following:

This prohibition, as stated, includes communications with "another person."^[13] Thus, the prohibition includes, but is not limited to, communications with the property owner, the owner's agent, members of the appraisal district's board of directors, the chief appraiser, members of the appraisal district staff, and even communications with the ARB member's family. The attorney general has issued an opinion interpreting Section 41.66(f) to include communications with appraisal district's in-house attorneys that also serve as counsel to the ARB. Op. Tex. Att'y Gen. No. GA-0556 (2007)("Legal communications relating to tax protest matters between a tax appraisal district's in-house counsel, who also serves as counsel to the tax appraisal review board for that district, and the review board outside a public hearing would violate Tax Code section 41.66(f), which generally prohibits a review board's ex parte communications relating to property tax protest matters.") A communication could be an in-person conversation, a telephone call, an e-mail, a letter, or any other medium used for conveying information.

An ARB member commits a Class A misdemeanor if the member communicates with the chief appraiser or another employee of the appraisal district for which the appraisal review board is established in violation of Section 41.66(f).^[14] Under Section 12.21 of the Texas Penal Code, a Class A misdemeanor may be punished by a fine of up to $4,000, confinement in jail for up to one year, or both. Section 6.411 of the Tax Code, classifying violations of Section 41.66(f) as Class A misdemeanors, does not apply in two circumstances: (1) Section 6.411 does not apply to communications between the board and its legal counsel; and (2) Section 6.411 does not apply to communications involving the chief appraiser or another employee of an appraisal district and a member of the ARB that are specifically limited to and involve administrative, clerical, or logistical matters related to the scheduling and operation of hearings, the processing of documents, the issuance of orders, notices, and subpoenas, and the operation of the ARB.

At the beginning of a hearing on a protest, each member of the ARB hearing the protest must sign an affidavit stating that he or she has not communicated with another person in violation of Section 41.66(f).^[15]

II. Taxpayer Protests

Under Chapter 41 of the Tax Code, property owners have the right to protest before the ARB the following actions:

• determination of the appraised value of the owner's property or, in the case of land appraised as agricultural or timber land, determination of its appraised or market value;
• unequal appraisal of the owner's property;
• inclusion of the owner's property on the appraisal records;
• denial to the property owner in whole or in part of a partial exemption;
• determination that the owner's land does not qualify for agricultural or timber land appraisal;
• identification of the taxing units in which the owner's property is taxable in the case of the appraisal district's appraisal roll;
• determination that the property owner is the owner of property;
• a determination that a change in use of land appraised as agricultural or timber land has occurred; or
• any other action of the chief appraiser, appraisal district, or ARB that applies to and adversely affects the property owner.^[16]

Tax Code Section 25.25 provides property owners with additional rights to correct the appraisal roll.^[17] Protests brought pursuant to Chapter 41 and motions filed pursuant to Section 25.25 are determined by the ARB.

A. Explanation of Selected Statutes

1. Right of Protest (41.41(a))

As outlined above, Tax Code Section 41.41(a) sets forth nine grounds for protest. A property owner's protest might be based on one of the grounds provided, or it might be based on multiple grounds.

Determination of the Appraised or Market Value

Article VIII, Section 1 of the Texas Constitution provides that all real and tangible personal property in Texas, unless exempt or permitted by the Constitution, shall be taxed in proportion to its value as ascertained by law. The Tax Code provides that, except as otherwise provided in Chapter 23 of the Code, all taxable property is appraised at its market value as of Jan. 1.^[18] Chapter 23 of the Tax Code addresses "Appraisal Methods and Procedures," including special appraisal for agricultural and timber land.

The Tax Code defines market value as the price at which a property would transfer for cash or its equivalent under prevailing market conditions if exposed for sale in the open market with a reasonable time for the seller to find a purchaser; both the seller and the purchaser know of all the uses and purposes to which the property is adapted and for which it is capable of being used and of the enforceable restrictions on its use; and both the seller and purchaser seek to maximize their gains and neither is in a position to take advantage of the exigencies of the other.^[19]

Pursuant to Tax Code Section 41.41(a)(1), a property owner may protest a determination of the appraised value of the owner's property or, in the case of land appraised as provided by Subchapter C, D, E, or H of Chapter 23 of the Code, determination of its appraised or market value.^[20] Subchapters C, D, E, and H of Chapter 23 of the Code pertain to land designated for agricultural use, appraisal of agricultural land, appraisal of timber land, and appraisal of restricted-use timber land, respectively.

Section 41.41(a)(1) protests are discussed at greater length in the section entitled Protest of Determination of Value or Inequality of Appraisal.

Unequal Appraisal

Article VIII, Section 1 of the Texas Constitution provides that taxation shall be equal and uniform. Pursuant to 41.41(a)(2) of the Tax Code, a property owner may protest the unequal appraisal of the owner's property.^[21] The property owner may have a right to have his value changed even if his property is appraised at its market value.

Section 41.41(a)(2) protests are discussed at greater length in the sections entitled Protest of Determination of Value or Inequality of Appraisal and Requirements Regarding the Equal and Uniform Appraisal of Property.

Inclusion of the Owner's Property on the Appraisal Records

Pursuant to Section 41.41(a)(3) of the Tax Code, a property owner may protest inclusion of the owner's property on the appraisal records. Thus, if property is included in the appraisal records that a property owner asserts should not be included, the property owner is entitled to protest. For example, a property owner might protest inclusion on the appraisal records of an improvement to real property and assert that the listed improvement does not exist. Section 41.41(a)(3), however, does not delineate specific types of protest; thus, the factual bases of protests brought under 41.41(a)(3) may vary substantially.^[22]

Denial to Property Owner In Whole or In Part of a Partial Exemption

Section 41.41(a)(4) of the Tax Code provides a property owner the right to protest denial to the property owner in whole or in part of a partial exemption. Common partial exemptions include those permitted for residence homesteads, individuals with disabilities, and individuals who are 65 years of age or older.^[23] Chapter 11 of the Tax Code includes provisions relating to numerous exemptions permitted by law and provisions relating to administration of exemptions. As stated in Section 11.01(a) of the Tax Code, all real and tangible personal property that the State of Texas has jurisdiction to tax is taxable unless exempt by law.

Exemptions are strictly construed, as stated by the Texas Supreme Court:

[E]xemptions from taxation are not favored by the law and will not be favorably construed. Statutory exemptions from taxation are subject to strict construction because they undermine equality and uniformity by placing a greater burden on some taxpaying businesses and individuals rather than placing the burden on all taxpayers equally. Accordingly, the burden of proof of clearly showing that the [claimant] falls within the statutory exemption is on the claimant.^[24]

Determination that Owner's Land Does Not Qualify for Agricultural or Timber Land Appraisal

Section 41.41(a)(5) of the Tax Code provides a property owner the right to protest a determination that the owner's land does not qualify for appraisal as provided by Subchapter C, D, E, or H of Chapter 23 of the Code. As noted above, Subchapters C, D, E, and H of Chapter 23 of the Code pertain to land designated for agricultural use, appraisal of agricultural land, appraisal of timber land, and appraisal of restricted-use timber land, respectively.

Identification of Taxing Units in Which Owner's Property is Taxable

Pursuant to Section 41.41(a)(6) of the Tax Code, a property owner may protest identification of the taxing units in which the owner's property is taxable in the case of the appraisal district's appraisal roll. One example of a protest that might be pursued under this provision would be a property owner's protest alleging that the property at issue is in a different school district than that reflected on the appraisal district's roll.

Determination that Property Owner is the Owner of Property

Section 41.41(a)(7) of the Tax Code provides a property owner the right to protest a determination that the property owner is the owner of property. A property owner, thus, might bring a protest under 41.41(a)(7) to assert non-ownership of any property the appraisal district has listed as being owned by the property owner.

Determination that Change in Use of Land Appraised as Agricultural or Timber Land has Occurred

Pursuant to Section 41.41(a)(8) of the Tax Code, a property owner may protest a determination that a change of use of land appraised under subchapter C, D, E, or H of chapter 23 of the Code has occurred. Again, Subchapters C, D, E, and H of chapter 23 of the Code pertain to land designated for agricultural use, appraisal of agricultural land, appraisal of timber land, and appraisal of restricted-use timber land, respectively.

If there is a change of use of property appraised pursuant to subchapters C, D, E, or H of chapter 23 of the Code, additional taxes may be imposed.^[25] The appraisal district must notify a property owner of a determination that a change of use has occurred.^[26] A property owner must protest the determination not later than the 30th day after the date the notice of the determination is delivered to the property owner.^[27]

Any Other Action

Section 41.41(a)(9) of the Tax Code provides a property owner the right to protest "any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner." By its terms, this provision is not limited. Therefore, an ARB might be presented with any number of specific grounds of protest under 41.41(a)(9).

2. Protest for Failure to Give Notice (41.411)

Section 41.411 of the Tax Code provides that a property owner is entitled to protest before the ARB the failure of the chief appraiser or the ARB to provide or deliver any notice to which the property owner is entitled.^[28] If failure to provide or deliver the notice is established, the ARB must determine a protest made by the property owner on any other grounds of protest authorized by the Tax Code relating to the property to which the notice applies.^[29] However, a property owner who protests under Section 41.411 must comply with the tax payment requirements of Section 42.08 of the Tax Code or the property owner forfeits the property owner's right to a final determination of the protest.^[30]

3. Person Acquiring Property After Jan. 1 (41.412)

Typically, either the person who owned the property Jan. 1 or that person's agent files a protest. However, a taxpayer who acquires property between Jan. 1 and the protest deadline may file a protest in the same manner as the Jan. 1 owner.^[31] A new owner who acquires the property while a protest regarding the property is pending may, on application to the ARB, proceed with the protest in the same manner as the prior owner who initiated the protest.^[32]

4. Protest by Person Leasing Property (41.413)

Certain lessees are also entitled to protest. A person leasing tangible personal property or real property who is contractually obligated to reimburse the property owner for taxes imposed on the property is entitled to protest before the ARB a determination of the appraised value of the property if the property owner does not file a protest on the property.^[33] The property owner is required to send to the lessee a copy of any notice of reappraisal of the property received by the property owner.^[34] Failure to do so, however, does not affect the protest deadline for the property in question.^[35] The ARB is required to deliver a copy of any notice relating to the protest and the order determining protest to the owner of the property and the person bringing the protest.^[36]

5. Protest of Situs (41.42)

Section 41.42 of the Tax Code pertains to protests of situs. Chapter 21 of the Tax Code, entitled "Taxable Situs," addresses situs with regard to real property, tangible personal property generally, vessels and other watercraft, railroad rolling stock, commercial aircraft, business aircraft, and certain intangible property. Pursuant to Section 41.42 of the Tax Code, the ARB must rule in favor of the protesting party filing a protest against the inclusion of property on the appraisal records for an appraisal district on the ground that the property does not have taxable situs in that appraisal district if the owner establishes that the property is subject to appraisal by another appraisal district or that the property is not taxable in Texas.^[37] The chief appraiser of the appraisal district in which the property owner prevails in a protest of situs must notify the appraisal office of the district in which the property owner has established situs.^[38]

6. Protest of Determination of Value or Inequality of Appraisal (41.43)

As previously discussed, property owners are entitled to protest determinations of value and unequal appraisal. Pursuant to Section 41.41(a)(1) of the Tax Code, a property owner may protest a determination of the appraised value of the owner's property or, in the case of land appraised as agricultural or timber land, determination of its appraised or market value.^[39] Pursuant to 41.41(a)(2) of the Tax Code, a property owner may protest the unequal appraisal of the owner's property.^[40]

In most 41.41(a)(1) and 41.41(a)(2) protests, the appraisal district has the burden of proof by a preponderance of the evidence.^[41] One exception, one in which the appraisal district has a higher standard of proof, involves certain protests relating to property valued at $1 million or less.^[42] In a protest relating to a property with a market or appraised value of $1 million or less as determined by the appraisal district, the property owner may file with the ARB an appraisal of the property performed by a certified appraiser that supports the appraised or market value of the property asserted by the property owner.^[43] If the following requirements have been met, the appraisal district has the burden of establishing the value of the property by clear and convincing evidence presented at the ARB hearing:

• the appraisal must have been performed by an appraiser certified under Chapter 1103 of the Texas Occupations Code;
• the appraisal must have been performed not later than the 180th day before the date of the first day of the hearing;
• the property owner must have delivered a copy of the appraisal to the chief appraiser not later than the 14th day before the date of the first day of the hearing;
• the property owner must have filed a copy of the appraisal with the ARB;
• the appraisal must support the appraised or market value of the property asserted by the property owner; and
• the appraisal must be legally valid.^[44]

Pursuant to the Tax Code, to be valid, the appraisal filed by the owner must be attested to before an officer authorized to administer oaths and must include the following:

• the name and business address of the certified appraiser;
• a description of the property that was the subject of the appraisal;
• a statement that the appraised or market value of the property: (1) was, as applicable, the appraised or market value of the property as of Jan. 1 of the current tax year, and (2) was determined using a method of appraisal authorized or required by Chapter 23 of the Tax Code; and
• a statement that the appraisal was performed in accordance with the Uniform Standards of Professional Appraisal Practice (USPAP).^[45]

If the requirements have been met and the appraisal district has the burden of establishing the value of the property by clear and convincing evidence, the protest must be determined in favor of the property owner if the appraisal district fails to meet that standard.^[46]

Another exception to the general rule that the appraisal district has the burden of proof by a preponderance of the evidence in 41.41(a)(1) and 41.41(a)(2) protests involves protests relating to property subject to rendition or reporting requirements under Chapter 22 of the Tax Code.^[47] Under this exception, set forth in Section 41.43(d) of the Tax Code, the burden of proof actually shifts to the property owner.^[48] If a protesting property owner fails to deliver, before the date of the hearing, a rendition statement or property report required by Chapter 22 of the Tax Code or a response to the chief appraiser's request for information under Section 22.07(c) of the Tax Code, the property owner–rather than the appraisal district–has the burden of establishing the value of the property by a preponderance of the evidence presented at the hearing.^[49] If the property owner fails to meet that standard, the protest must be determined in favor of the appraisal district.^[50]

In addition to the standards outlined above, the Tax Code provides express direction to appraisal districts involved in unequal appraisal protests and to ARBs hearing such protests.^[51] Pursuant to Section 41.43(b) of the Tax Code, a protest on the ground of unequal appraisal of property must be determined in favor of the protesting party unless the appraisal district establishes one of the following situations:

• the appraisal ratio of the property is equal to or less than the median level of appraisal of a reasonable and representative sample of other properties in the appraisal district;
• the appraisal ratio of the property is equal to or less than the median level of appraisal of a sample of properties in the appraisal district consisting of a reasonable number of other properties similarly situated to, or of the same general kind or character as, the property subject to the protest; or
• the appraised value of the property is equal to or less than the median appraised value of a reasonable number of comparable properties appropriately adjusted.^[52]

ARBs must also consider the issue of substantial evidence when a protest is brought concerning certain value increases.^[53] The chief appraiser is prohibited from increasing the appraised value of property in the year following a final determination of value resulting from a protest before the ARB, a lawsuit, or binding arbitration, unless the increase is reasonably supported by substantial evidence.^[54] The substantial evidence must be based on all of the reliable and probative evidence in the record considered as a whole.^[55] If an ARB or a court makes a determination of value based on unequal appraisal claims, this substantial evidence requirement may be met by presenting evidence showing that the inequality has been corrected with regard to the properties that were considered to be comparable in determining the value of the subject property.^[56] The burden of proof is on the chief appraiser to support an increase in the appraised value of property under these circumstances.^[57]

In each of the contexts discussed in this section, evidence includes the data, schedules, formulas, or other information used to establish the matter at issue.^[58]

7. Correction of Appraisal Roll (25.25)

The Tax Code states that the appraisal roll may not be changed except as provided by Chapter 41 of the Code (protests, challenges, ARB corrections of clerical errors, and corrections on recommendation of the chief appraiser), Chapter 42 of the Code (judicial review), and Section 25.25 of the Code (correction of appraisal roll).^[59]

Section 25.25 provides rights and requirements for motions to correct the appraisal roll.^[60] Under Section 25.25 of the Tax Code, a person who acquires property after Jan. 1 of the tax year at issue is entitled to file any motion that Section 25.25 authorizes the person who owned the property on Jan. 1 of that year to file, if the deadline for filing the motion has not passed.^[61] If during the pendency of a Section 25.25 motion the ownership of property subject to the motion changes, the new owner of the property is entitled to proceed with the motion in the same manner as the property owner who filed the motion.^[62]

Pursuant to Section 25.25(b) of the Tax Code, chief appraisers may change the appraisal roll at any time to correct the following:

• a name or address;
• a determination of ownership;
• a description of property;
• multiple appraisals of a property; or
• a clerical error* or other inaccuracy as prescribed by board rule that does not increase the amount of tax liability.

Before the 10th day after the end of each calendar quarter, the chief appraiser must submit to the ARB and to the appraisal district's board of directors a written report of each change made under Section 25.25(b) that decreases the tax liability of the owner of the property.^[63] The report must include a description of each property and the name of the owner of that property.^[64] The failure or refusal of a chief appraiser to change an appraisal roll under Section 25.25(b) is not an action that the ARB is authorized to determine under Section 25.25; that may be the subject of a suit to compel filed under Section 25.25(g); that a property owner is entitled to protest under Section 41.41 of the Tax Code; or that may be appealed under Chapter 42 of the Tax Code.^[65]

Pursuant to Section 25.25(c) of the Tax Code, the ARB, on motion of the chief appraiser or of a property owner, may direct by written order changes in the appraisal roll for any of the five preceding years to correct the following:

• clerical errors that affect a property owner's liability for a tax imposed in that tax year;
• multiple appraisals of a property in that tax year; or
• the inclusion of property that does not exist in the form or at the location described in the appraisal roll.

A motion may be filed pursuant to Section 25.25(c) regardless of whether, for a tax year to which the motion relates, the owner of the property protested under Chapter 41 of the Tax Code an action relating to the value of the property that is the subject of the motion.^[66]

Pursuant to Section 25.25(d) of the Tax Code, at any time prior to the date the taxes become delinquent, a property owner or the chief appraiser may file a motion with the ARB to change the appraisal roll to correct an error that resulted in an incorrect appraised value for the owner's property. However, the error may not be corrected unless it resulted in an appraised value that exceeds by more than one-third the correct appraised value.^[67] If the appraisal roll is changed under Section 25.25(d), the property owner must pay to each affected taxing unit a late-correction penalty equal to 10 percent of the amount of taxes as calculated on the basis of the corrected appraised value.^[68] Payment of the late-correction penalty is secured by a lien that attaches to the property and is subject to enforced collection.^[69] The roll may not be changed under 25.25(d) under these conditions:

A property owner who files a motion under 25.25(c) or 25.25(d) must comply with the tax payment requirements of Tax Code Section 42.08 or forfeit the right to a final determination of the motion.^[71]

On the joint motion of the property owner and the chief appraiser filed at any time prior to the date the taxes become delinquent, the ARB must by written order correct an error that resulted in an incorrect appraised value for the owner's property.^[72]

B. Requirements Regarding the Equal and Uniform Appraisal of Property

Remedies for unequal appraisal permit values to be reduced even if the market values determined by the local appraisal districts are correct. If an appraisal district cannot establish that the appraised value of the subject property is equal to or less than the median appraised value of a reasonable number of comparable properties appropriately adjusted, then the appraisal district is required to reduce the value of the property to the median value. Identifying comparable properties, selecting a reasonable number of such properties and adjusting the values appropriately have become areas of intense debate between property owners and appraisal districts.

In 2001, the 14th Court of Appeals in Houston held that "if a conflict exists between taxation at market value and equal and uniform taxation, equal and uniform taxation must prevail." Harris County Appraisal District v. United Investors, 47 S.W.3d 648 (Tex. App. – Houston [14th Dist.] 2001, no writ). Since that time, the subject of how to determine "the median appraised value of a reasonable number of comparable properties appropriately adjusted" as permitted by Tax Code Section 42.26(a)(3) has been a highly litigated issue.

In United Investors, the witness whose testimony was accepted by the Court made adjustments to values on the appraisal roll "downward and upward based on location, closeness to traffic volume, age, depreciation from cost schedules, and access to the shopping center." The selection of the comparable properties was "based on characteristics which would tend to most influence value, like location, age, and physical characteristics."^[73] These adjustments have been used by appraisal districts and property owners in litigation regarding unequal appraisal since that time.

In 2002, the 14th Court of Appeals considered another Harris County Appraisal District case. In Weingarten Realty Investors v. Harris County Appraisal District, 93 S.W.3d 280 (Tex. App. – Houston [14th Dist.] 2002, no writ), the trial court permitted the testimony of the owner's sole expert, David Dominy, at the bench trial, but then issued an order excluding his testimony and ordering a take-nothing judgment against Weingarten. The Court of Appeals upheld the trial court's discretion in excluding the evidence. Its analysis of Dominy's testimony and cross-examination is instructive. The Court held that the appraisal district was able to demonstrate the expert's unreliability through its cross-examination on several matters:

• The "comparable properties" were significantly smaller retail centers.
• Nine of the 10 "comparable properties" had per-square-foot appraised values significantly lower than the subject property.
• Only 10 comparables were used even though there were 191 retail centers in the northwest quadrant of Harris County where the subject was located.
• Portions of the retail centers were used in the analysis.
• Only physical characteristics of condition, age, size, and location were used in adjusting the comparables.
• The percentage adjustment for each characteristic of the comparables was too subjective.

Because of this cross-examination, the Court of Appeals held that the trial court had a sufficient basis to reject the expert's testimony as unreliable. The Court stated the methodology necessary to perform the calculation required by Section 42.26. An appraisal expert must select a reasonable number of comparable properties and then take the appraised value from the public record and appropriately adjust them to the subject property. After the adjustments, "the appropriately adjusted comparable properties are arrayed and a median is determined."^[74] This test is a restatement of the one articulated in United Investors.

Four years later, the 1st Court of Appeals in Houston considered the methodology for making adjustments in considering the reliability of the owner's witness. In Harris County Appraisal District v. Kempwood Plaza, 186 S.W.3d 155 (Tex. App. – Houston [1st Dist.] 2006, no writ), the Court permitted testimony from the owner's expert concerning adjustments in an equal and uniform report concerning the value of a shopping center. The Court held that it is not error for an appraiser to use his or her personal experience and expertise to make certain determinations. Further, the fact that the owner's appraiser limited the representative sample to a single land use code and a single building class took into account a number of adjustments that would have been made if the sample were larger. The appraiser made adjustments based on location, age, and size, which the Court held were reliable. The appraiser testified, and the Court upheld, that his use of a single building class took into account "individual wear and tear, maintenance, updating, and remodeling over the years",^[75] so that "effective age" adjustments were not required. The implication is that "effective age" adjustments would be appropriate in certain cases, depending on the property sample selected and the characteristics of the property.

Adjustments for economic factors were recognized in the United Investors case and more recently in a memorandum opinion from the 1st Court of Appeals in Houston. In re MHCB (USA) Leasing & Finance Corp. and Valero Refining–Texas, L.P., 2006 Tex. App. LEXIS 3515 (Tex. App. – Houston [1st Dist.] 2006, no pet.)(unpublished), concerned the equal and uniform appraisal of a coker plant in Galveston County. The Court observed that Tax Code Section 42.26(a)(3) does not delineate what specific considerations are relevant for adjustments. It concluded that information regarding both the appraised and the market value of comparable properties, "insofar as this information shows the need for the 'adjustments' contemplated by the statute, including quality, size, age and depreciation, could be potentially relevant to a determination of whether an appraisal district has appraised properties unequally." The Court upheld adjustments concerning characteristics that result in differences in appraised and market value as reflected by a price placed on various kinds of "adjustments." As a result, the Court permitted pre-trial discovery regarding issues related to market value (including a recent sale) so that the appraisal district could determine what adjustments to appraised value would be appropriate.

In another memorandum opinion, the 1st Court of Appeals in Houston allowed the income approach to value to be considered in developing adjustments in equal and uniform appraisal analyses. In Hartman REIT Operating Partnership v. Waller County Appraisal District, 2006 Tex. App. LEXIS 5646 (Tex. App. – Houston [1st Dist.] 2006, no pet.)(unpublished), the Court permitted rental income to be considered in valuing an office building. The appraisal district's expert testified that the income approach to value took all of the appropriate adjustment factors into consideration. The expert's analysis included the year built, the building class, total appraised value per square foot, the net operating income per square foot, and capitalization rate for each comparable property. An income adjustment was applied to reflect the differences between the comparable properties and the subject regarding their conditions, ages, sizes, and quality of construction. The Court held that this analysis was appropriate and concluded that the law "did not foreclose, as a matter of law, WCAD from considering the information used by its chief appraiser, Chris Barzilla, in determining that the appraised value of Corporate Park West did not exceed the median appraised value of a reasonable number of comparable properties appropriately adjusted."

The 14th Court of Appeals recently addressed the issue of what is permitted in discovery regarding unequal appraisal litigation. In re: Galveston Central Appraisal District, 252 S.W.3d 904 (Tex. App. – Houston [14th Dist.] 2008, no pet.). In this litigation involving a Valero refinery, the appraisal district requested information concerning all sales of refineries within the United States over a four-year period. The trial court limited the request to sales in Galveston County for the applicable tax years (there were no such sales). Valero requested in its discovery income and expense documents that had been provided to the appraisal district by other oil and gas companies under confidentiality agreements. The trial court denied Valero's request for this information, and both parties sought mandamus relief from the court of appeals.

The 14th Court rejected both parties' requests for relief. It found that the appraisal district's request for all refinery sales in the United States for the prior four years was overly broad and that there was no showing that the sales were similar (and could lead to the discovery of admissible evidence). The Court also held that the appraisal district did not prove that its experts could not competently and adequately appraise the property without the requested data. Discovery cannot be used "simply to explore" and must be reasonably tailored to include only matters relevant to the case. The Court rejected Valero's request for income and expense documents from other companies. It considered Tax Code Sections 22.27 and 25.195 together to determine that confidential information could not be released to commercial property owners, as a matter of law. Only owners (or agents) of vacant land or residential property may inspect material or information obtained under Section 22.27 from other owners of similar property used to appraise the subject property.

This case is important because it establishes two important rules: (1) appraisal district experts must be able to prove that they cannot prepare their unequal appraisal reports without certain information (such as closing statements or other sales documents, and income and expense statements/reports) requested in discovery; and (2) confidential information as defined by Section 22.27 may not be provided to commercial property owners in litigation, even under the exception provisions of subsection (b); the trial court must consider requests for such confidential information in discovery and issue orders dealing with such disclosure. The Court also held the following:

Assuming that first Tax Code provision [Section 22.27], stating that information submitted to an appraisal office by a property owner for valuation of the owner's property for real estate taxation purposes which would otherwise be confidential may be disclosed in a judicial or administrative proceeding pursuant to a lawful subpoena, conflicted with the second Tax Code provision [Section 25.195] stating that owner of property other than vacant land or real property used for residential purposes may not inspect any material or information obtained by appraisal office under first Property Tax Code provision, second provision, as later-enacted statute, would prevail.^[76]

Another case is instructive concerning what property may be the subject of an unequal appraisal challenge. The Austin Court of Appeals upheld the trial court's dismissal of a case challenging the equality of appraisal of land only concerning property owned by a car dealership in Covert v. Williamson County Appraisal District, 241 S.W.3d 655 (Tex. App. – Austin 2007, pet. denied). Covert claimed that only the land appraisal was unequal. The appraisal district contended that the entire value of the account (land and improvements) must be the subject of an equity lawsuit. The Court of Appeals upheld the dismissal stating that the language of Section 42.26 indicates that the entire value of a property must be analyzed, not just an allocated portion. It held that "so long as that valuation is an equal and uniform assessment, we cannot support overturning it because the land component is valued too high or the improvement component too low." It held that the clear language of Section 42.26 referring to "a property" means the appraisal in its entirety. The Court stated that because the statute refers to "appraised value" of the subject property as the basis of comparison and appraised value means "market value" as a matter of law, "we do not agree with the Coverts that the Legislature intended to allow taxpayers to challenge the component values of their property in isolation from a consideration of the total assessed value of the property."

These cases reflect the range of issues that courts have addressed concerning equality and uniformity of appraisal of business or commercial property. Certain methodologies have been upheld to calculate appraisal equality and uniformity. Effective age adjustments may be made, or not made, depending on the underlying data and appraisal methodology used. Discovery parameters have been established, and the fact that an entire property value must be the subject (rather than component parts) is now the law.

C. Duty of the Appraisal District to Substantiate Its Determination of Value

Explanations, descriptions, and definitions of "preponderance of the evidence" and "clear and convincing evidence" vary. In civil jury trials in Texas, a case is submitted to the jury by written definitions, instructions, and questions–collectively referred to as a jury charge. The State Bar of Texas publishes pattern jury charges prepared by committees of judges and attorneys. Trial courts routinely rely on the pattern jury charges and the Texas Supreme Court rarely disapproves of them.^[77] The following are definitions and instructions included in the Texas pattern jury charges:

As discussed above, except in certain circumstances, in a protest brought pursuant to Section 41.41(a)(1) of the Tax Code, relating to determination of value, or Section 41.41(a)(2) of the Tax Code, relating to unequal appraisal, the appraisal district has the burden of proof at the ARB hearing.^[78] The appraisal district has the duty to substantiate the district's determination of the value of the property. In most of these protests, the appraisal district has the burden of establishing the value of the property by a preponderance of the evidence presented at the ARB hearing.^[79] However, in some cases, the appraisal district has a higher burden of proof–the burden of establishing the value of the property by clear and convincing evidence presented at the ARB hearing.^[80] The appraisal district must also have substantial evidence to support an increase in value in cases in which the value was determined in a preceding year by the ARB, an arbitrator, or the court.^[81] If the appraisal district fails to meet the applicable standard, the ARB must rule in favor of the property owner.^[82]

D. Conduct of Hearings

1. Hearing Procedures

Each ARB must establish procedures for hearings.^[83] Upon request, which may be included in the owner's notice of protest or made by a separate writing delivered to the ARB on or before the date of filing of the notice of protest, a protesting property owner is entitled to a copy of the hearing procedures.^[84] The copy of the hearing procedures must be delivered to the property owner not later than the 10th day before the date the hearing on the protest begins.^[85] Additionally, the ARB must post a copy of the hearing procedures in a prominent place in the room in which the hearing is held.^[86] To the greatest extent practicable, hearing procedures must be informal.^[87] Each party to a hearing is entitled to offer evidence, examine or cross-examine witnesses or other parties, and present argument on the matters subject to the hearing.^[88] The hearings are open to the public.^[89]

Notice of Hearing

The ARB before which a protest hearing is scheduled must deliver written notice to the property owner initiating a protest of the date, time, and place fixed for the hearing not later than the 15th day before the date of the hearing.^[90] The board must also give the chief appraiser advance notice of each protest hearing that includes not only the date, time, and place, but the subject matter as well.^[91]

Notice must also be delivered not later than 15 days before the date of a hearing regarding a motion brought pursuant to 25.25(c) or 25.25(d).^[92] For such hearings, the ARB must deliver written notice of the date, time, and place of the hearing to the chief appraiser, the property owner, and the presiding officer of the governing body of each taxing unit in which the property is located.^[93]

Exchange of Information

After the chief appraiser has submitted the appraisal records to the ARB pursuant to Section 25.22(a) of the Tax Code, a property owner or the owner's designated agent is entitled to inspect and copy the appraisal records relating to the owner's property, together with supporting data and schedules.^[94] Additionally, a property owner or the agent of a property owner whose property has been appraised by a private appraisal firm under contract with an appraisal district has the right to inspect and copy, at the appraisal firm's office, appraisal firm information used or considered in appraising the owner's property.^[95] This includes information showing each method of appraisal used to determine the value of the property and all calculations, personal notes, correspondence, and working papers used in appraising the property.^[96] The appraisal firm must make the information available for inspection and copying not later than the 15th day after delivery of a written request to inspect the information, unless a different date is agreed upon.^[97] This right does not include information made confidential under Section 22.27 of the Tax Code, except that the property owner or agent is entitled to inspect and copy any information relating to the owner's property, including otherwise confidential information.^[98] This right is restricted by Section 25.195 of the Tax Code to owners of residential property or vacant land.^[99]

If an owner or agent states under oath in a document filed with an ARB in connection with a proceeding initiated under the protest provisions or the correction of appraisal roll provisions of the Tax Code that the appraisal firm has not complied with a request for inspection or copying related to the property that is the subject of the proceeding, the ARB may not conduct a hearing on the merits of any claim relating to the property and may not approve the appraisal records relating to that property until the ARB determines in a hearing that the appraisal firm has made the information available for inspection and copying or the owner or agent has withdrawn the motion or protest that initiated the proceeding.^[100]

At least 14 days before a hearing on a protest, the chief appraiser must:

• deliver a copy of the pamphlet Property Taxpayer Remedies prepared by the Comptroller's office to the property owner initiating the protest if the owner is representing himself or to an agent representing the owner if requested by the agent;
• inform the property owner that the owner or the owner's agent may inspect and may obtain a copy of the data, schedules, formulas, and all other information the chief appraiser plans to introduce at the hearing to establish any matter at issue; and
• deliver a copy of the ARB hearing procedures to the property owner.^[101]

Tax Code Section 41.461 expressly provides that the chief appraiser shall, at least 14 days before a protest hearing, inform the property owner that he or his agent "may inspect and may obtain a copy of the data, schedules, formulas, and all other information the chief appraiser plans to introduce at the hearing to establish any matter at issue."^[102] Interpretation of this provision has been the subject of controversy among and between property owners and appraisal districts.

By way of example, in some circumstances, appraisal districts have made available to property owners more information than the appraisal districts later actually introduced at the hearing. In other circumstances, appraisal districts have made available to property owners information that the property owners claim was not in a form they could easily analyze or understand, leading to claims by property owners that they could not adequately prepare for their hearings. In yet other circumstances, appraisal districts, only considering the information they had already "planned" to introduce at the time the request for information was made, have made available to property owners less information than that which they later introduced at the hearing. The range of relief requested by property owners when they feel the appraisal districts have not complied with these provisions may be broad. The Tax Code provides ARBs with at least some guidance regarding possible relief.

The Tax Code provides that "[i]nformation that was previously requested...by the protesting party that was not made available to the protesting party at least 14 days before the scheduled or postponed hearing may not be used as evidence in the hearing."^[103] The Tax Code also provides that "the appraisal review board shall postpone a hearing on a protest if the property owner requests additional time to prepare for the hearing and establishes to the board that the chief appraiser failed to comply" with Section 41.461.^[104] Thus, some property owners may urge exclusion of evidence; some may request hearing postponements. These provisions, however, only provide an ARB with guidance as to what types of relief may be granted; they do not provide ARBs with guidance as to how to determine when an appraisal district has complied with the requirement that information be generally available or alternatively provided on request.

ARBs will likely continue to confront disputes on this issue. Each ARB should discuss the issue as a preliminary matter and consider how such disputes will be addressed. Legal counsel should be consulted.

In any case, without regard to whether any pre-hearing request has been made, before the hearing on a protest or immediately after the hearing begins, the chief appraiser and the property owner or the owner's agent must provide the other with a copy of any written material that the person intends to offer or submit to the ARB at the hearing. ^[105]

Hearings

When a property owner files a notice of protest, the ARB must schedule a hearing on the protest.^[106] Hearings on 25.25(c) and 25.25(d) motions are conducted in the same manner as hearings on taxpayer protests.^[107] The ARB must provide for hearings on protests in the evening or on a Saturday or Sunday.^[108] An ARB decides if a protest was timely filed and whether the protest had the necessary information to constitute a protest. An ARB must make these determinations carefully; otherwise, it may find itself defending a lawsuit to compel the hearing if it denies a hearing to which a property owner was entitled under the law. If the property owner is awarded the hearing by a district court, the district court must order the hearing be held and may award court costs and reasonable attorney fees to the property owner.^[109]

As suggested in the discussion of protest rights, a discussion that represents some, but certainly not all, of the protest rights provided by law, an ARB may encounter a variety of protest circumstances–including the filing of multiple protests regarding the same property. If more than one protest is filed relating to the same property, the ARB must schedule a single hearing on all timely filed protests relating to the property.^[110] Additionally, a hearing for a property that is owned in undivided or fractional interests, including separate interests in a mineral in place, must be scheduled to provide for participation by all owners who have timely filed a protest.^[111]

If an ARB has more than three members, it may sit in panels of not fewer than three members to conduct protest hearings.^[112] However, the determination of a protest heard by a panel must be made by the entire ("full") ARB.^[113] If the recommendation of a panel is not accepted by the full ARB, the ARB may refer the matter for rehearing to a panel composed of members who did not hear the original hearing or, if there are not at least three members who did not hear the original protest, the full ARB may determine the protest.^[114] Before determining a protest or conducting a rehearing before a new panel or the full ARB, the ARB must deliver the required notice of the hearing or meeting.^[115]

On request made to the ARB before the date of a hearing, a property owner that has not designated an agent under Section 1.111 of the Tax Code to represent the owner at the hearing is entitled to one postponement of the hearing to a later date without showing cause. In addition, and without limitation as to the number of postponements, the ARB must postpone the hearing to a later date if, at any time, the property owner or the owner's agent shows good cause for a postponement or the chief appraiser consents to the postponement.^[116] The ARB cannot postpone the hearing to a date less than five or more than 30 days after the date scheduled for the hearing when the postponement is sought, unless the date and time of the hearing as postponed are agreed to by the chairman of the ARB or the chairman's representative, the property owner, and the chief appraiser.^[117] A request by a property owner for a postponement may be made in writing, including by fax or email, by telephone, or in person, to the ARB, a panel of the ARB, or the ARB chairman.^[118] If a hearing for which postponement is requested is scheduled to occur before the next regular meeting of the ARB, the chairman or the chairman's representative may take action on a postponement without the necessity of action by the full ARB.^[119] The granting of a postponement as discussed here does not require delivery of additional written notice to the property owner.^[120]

In addition to the grounds for a postponement already mentioned, the ARB must postpone the hearing to a later date under the following circumstances:

• the owner of the property or the owner's agent is scheduled to appear at a hearing on a protest filed with the ARB of another appraisal district;
• the hearing before the other ARB is scheduled to occur on the same date as the hearing set by the ARB from which the postponement is sought;
• the notice of hearing delivered to the property owner or the owner's agent by the other ARB bears an earlier postmark than the notice of hearing delivered by the board from which the postponement is sought or, if the date of the postmark is identical, the property owner or agent has not requested a postponement of the other hearing; and
• the property owner or the owner's agent includes with the request for a postponement a copy of the notice of hearing delivered to the property owner or the owner's agent by the other ARB.^[121]

As previously discussed, at the beginning of a hearing on a protest, each member of the ARB hearing the protest must sign an affidavit stating that he or she has not communicated with another person in violation of Section 41.66(f).^[122] If an ARB member has communicated with another person in violation of Section 41.66(f), the member must be recused from the proceeding and may not hear, deliberate on, or vote on the determination of the protest. The board of directors of the appraisal district must adopt and implement a policy concerning the temporary replacement of an ARB member who has communicated with another person in violation of the Section 41.66(f).^[123]

Pursuant to Section 41.61 of the Tax Code, if reasonably necessary in the course of a protest, the ARB, on its own motion or at the written request of a party to the protest, may subpoena witnesses or books, records, or other documents of the property owner or appraisal district that relate to the protest.^[124] On the written request of a party to a protest, the ARB must issue a subpoena if the requesting party shows good cause for issuing the subpoena and deposits with the ARB a sum the ARB determines is reasonably sufficient to insure payment of the costs estimated to accrue for issuance and service of the subpoena and for compensation of the individual to whom it is directed.^[125] The ARB cannot issue a subpoena under Section 41.61 unless it holds a hearing at which the ARB determines that good cause exists for the issuance of the subpoena.^[126] The ARB conducting a good cause hearing must deliver to the party being subpoenaed and parties to the protest written notice of the date, time, and place of the hearing. The ARB must deliver the notice not later than the 5th day before the date of the good cause hearing.^[127] The party being subpoenaed must have an opportunity to be heard at the good cause hearing.^[128]

A sheriff or constable must serve a subpoena issued pursuant to Section 41.61.^[129] If the person to whom a subpoena is directed fails to comply, the ARB that issued the subpoena or the party requesting the subpoena may bring suit in the district court to enforce the subpoena.^[130] If the district court determines that good cause exists for issuance of the subpoena, the court, pursuant to the Tax Code, shall order compliance.^[131] The district court may modify the requirements of a subpoena that the court determines are unreasonable.^[132] Failure to obey the order of the district court is punishable as contempt.^[133] The county attorney or, if there is no county attorney, the district attorney must represent the ARB in a suit to enforce a subpoena.^[134]

An individual who is not a party to the proceeding and who complies with a subpoena issued by an ARB under Section 41.62 is entitled to the reasonable costs of producing the documents, mileage of 15 cents a mile for going to and returning from the place of the proceeding, and a fee of $10 a day for each whole or partial day that the individual is necessarily present at the proceedings.^[135] The ARB may, by rule, prescribe greater mileage or a larger fee, but an increase is not effective unless uniformly applicable to all individuals who are entitled to mileage or fee as provided under Section 41.63.^[136] Under Section 41.63, compensation is paid by the appraisal office if the subpoena is issued on the motion of the ARB or by the party requesting the subpoena; however, compensation is not payable unless the amount claimed is approved by the ARB.^[137]

The property owner initiating the protest is entitled to appear before the ARB and offer evidence or argument.^[138] However, the property owner need not appear in person; the owner may offer evidence or argument by affidavit.^[139] To offer evidence or argument by affidavit without personally appearing, the property owner must attest to the affidavit before an officer authorized to administer oaths and submit the affidavit to the ARB before it begins the hearing on the protest.^[140] On receipt of an affidavit, the ARB must notify the chief appraiser, who may inspect the affidavit and, on request, is entitled to a copy.^[141] To be valid, the affidavit must be attested to before an officer authorized to administer oaths and include the name of the property owner initiating the protest, a description of the property that is the subject of the protest, and evidence or argument.^[142] For purposes of the requirement to include evidence or argument, a statement from the property owner that specifies the determination or other action relating to the subject property from which the property owner seeks relief constitutes sufficient argument.^[143] The Comptroller's office has created a standard form for an affidavit that appraisal districts must make available to property owners without charge.^[144] However, a property owner is not required to use the Comptroller's form.^[145]

A member of the ARB may swear witnesses who testify.^[146] All testimony must be given under oath.^[147]

Documentary evidence may be admitted in the form of a copy if the ARB determines that the original document is not readily available.^[148] A party is entitled to an opportunity to compare a copy with the original document on request.^[149] Official notice may be taken of any fact judicially cognizable; however, a party is entitled to an opportunity to contest facts officially noticed.^[150]

As discussed earlier, information that was previously requested by the protesting party under Section 41.461 of the Tax Code that was not made available to the protesting party at least 14 days before the scheduled or postponed hearing may not be used as evidence in the hearing.^[151]

2. Determination of Protests

An ARB may not review or reject agreements between an owner or agent and the appraisal district under Section 1.111(e) of the Tax Code.^[152] Pursuant to Section 1.111(e), an agreement between a property owner or the owner's agent and the chief appraiser is final if the agreement relates to a matter that (1) may be protested to the ARB or on which a protest has been filed but not determined by the ARB or (2) which may be corrected under Section 25.25 of the Tax Code or on which a motion for correction under that Section has been filed but not determined by the ARB.^[153] These agreements may be reached between the parties before a hearing, or may even be reached during a hearing. The court of appeals in Sondock v. Harris County Appraisal District, 231 S.W.3d 65, 68-69 (Tex. App. – Houston [14th Dist.] 2007, no pet.), reviewed a case in which, during the course of testimony in a protest hearing before the ARB, the agent for the property owner presented a value and the appraisal district's representative concurred. The court held that the agreement had become final at the moment the district's representative concurred and that any subsequent determinations by the ARB regarding value, including the order it entered, were irrelevant. Several appellate court decisions have addressed the same issue and ruled in accordance with the Sondock court.^[154] As stated by one court, "because an appraisal review board cannot review a section–1.111(e) agreement, it necessarily cannot render an order resolving a protest based on a review of that agreement."^[155]

If there is no agreement pursuant to 1.111(e), the ARB hearing a protest must determine the protest and make its decision by written order.^[156]

If on determining a protest, the ARB finds that the appraisal records are incorrect in some respect raised by the protest, the ARB by its order must correct the appraisal records by changing the appraised value placed on the protesting property owner's property or by making the other changes in the appraisal records that are necessary to conform the records to the requirements of law.^[157] If the appraised value of a taxable property interest, other than an interest owned by a public utility or by a cooperative corporation organized to provide utility service, is changed as the result of a protest or challenge, the ARB must change the appraised value of all other interests, other than an interest owned by a public utility or by a cooperative corporation organized to provide utility service, in the same property, including a mineral in place, in proportion to the ownership interests.^[158]

The ARB must deliver, by certified mail, a notice of issuance of the order and a copy of the order to the property owner and the chief appraiser.^[159]

The notice of the issuance of the order must contain a prominently printed statement in upper-case, bold lettering informing the property owner in clear and concise language of his or her right to appeal the ARB's decision to district court, describing the deadline prescribed by Section 42.06(a) of the Tax Code for filing written notice of appeal, and describing the deadline prescribed by Section 42.21(a) of the Tax Code for filing a petition for review with the district court.^[160] An ARB must include with the notice of issuance of an order and the copy of the order a notice of the property owner's rights under Chapter 41A of the Tax Code, relating to appeal through binding arbitration, and a copy of the Comptroller's prescribed form for request for binding arbitration.^[161] An ARB must also include with the notice of issuance of an order and the copy of the order a notice of the property owner's rights under Subchapter Z of the Texas Government Code, relating to appeal to the State Office of Administrative Hearings (SOAH), and a copy of SOAH's prescribed form for notice of appeal under Subchapter Z.^[162]

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* Section 1.04(18) of the Tax Code defines “clerical error” as “an error: (A) that is or results from a mistake or failure in writing, copying, transcribing, entering or retrieving computer data, computing, or calculating; or (B) that prevents an appraisal roll or a tax roll from accurately reflecting a finding or determination made by the chief appraiser, the appraisal review board, or the assessor; however ‘clerical error’ does not include an error that is or results from a mistake in judgment or reasoning in the making of the finding or determination.”

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