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Title 1. Property Tax Code
Subtitle F. Remedies

Chapter 42. Judicial Review
Subchapter A. In General

Sec. 42.01. Right of Appeal by Property Owner.
Sec. 42.015. Appeal by Person Leasing Property.
Sec. 42.02. Right of Appeal by Chief Appraiser.
Sec. 42.03. Right of Appeal by County.
Sec. 42.031. Right of Appeal by Taxing Unit.
Sec. 42.04. Intervention by State or Political Subdivision Owning Property Subject to
  Taxable Leasehold.

Sec. 42.05. Comptroller as Party.
Sec. 42.06. Notice of Appeal.
Sec. 42.07. Costs of Appeal.
Sec. 42.08. Forfeiture of Remedy for Nonpayment of Taxes.
Sec. 42.09. Remedies Exclusive.

[Sections 42.10 to 42.20 reserved for expansion]

Sec. 42.01. Right of Appeal by Property Owner.

A property owner is entitled to appeal:

(1) an order of the appraisal review board determining:

(A) a protest by the property owner as provided by Subchapter C of Chapter 41; or

(B) a determination of an appraisal review board on a motion filed under Section 25.25; or

(2) an order of the comptroller issued as provided by Subchapter B, Chapter 24, apportioning among the counties the appraised value of railroad rolling stock owned by the property owner.

Amended by 1981 Tex. Laws (1st C.S.), p. 174, ch. 13, Sec. 148; amended by 1991 Tex. Laws (2nd C.S.), p. 37, ch. 6, Sec. 53; amended by 1997 Tex. Laws, p. 3916, ch. 1039, Sec. 41.

Cross References:

Property owner's right of protest, see Secs. 41.41 & 41.411.
Person acquiring property after January 1, see Sec. 41.412.
Appraisals of transportation business intangible property, see Sec. 24.01.
Apportionment railroad rolling stock, see Sec. 24.37.
Supplemental appraisal records, see Sec. 25.23.
Payment of taxes pending appeal, see Sec. 42.08.
Exclusivity of remedies, see Sec. 42.09.
Venue dependent on action appealed, see Sec. 42.22.

Notes:

The Tax Injunction Act bars injunctive or declaratory relief for state tax matters in federal court unless the state fails to have a speedy and efficient remedy for a taxpayer's claim. Texas courts have such a remedy, and taxpayers could not seek injunctive remedy for taxes assessed on their homesteads for improperly granted exemptions to previous owners of the homes. Hamilton v. Dallas Central Appraisal District, No. 3:98-CV-2553-L (N. D. Tex. 1999).

Taxpayer sued in state court arguing federal law "civil rights" violations relating to tax assessments. The Oklahoma State Court refused any relief under the Federal Civil Rights Act because adequate rights to contest the tax assessment existed under state law. Those legal rights had to be exercised by the taxpayer. National Private Truck Council, Inc. v. Oklahoma Tax Commission, 115 U.S. 2351, 132 L. Ed 2d 509 (1995).

Coastal was required to register as a foreign limited partnership to appeal appraisal of salt dome storage caverns. Had it at the time of registration paid both the registration fee and the statutorily-mandated additional fees for the years it had transacted business in Texas before registering, then Coastal would have been properly registered and able to maintain the appeals. Coastal Liquids Transportation v. Harris County Appraisal District, 46 S.W.3d 880 (Tex. 2001).

After the appraisal district and review board moved for summary judgment, two owners amended their pleadings to include a third owner to whom the property had been transferred. The challenged judgment did not dispose of the claims and, therefore, was inerlocutory. No statute authorized an appeal from an interlocutory order, so the appellate court did not have jurisdiction over the appeal. Braeswood Harbor Partners v. Harris County Appraisal District and the Appraisal Review Board of Harris County, 69 S.W.3d 251 (Tex. App. - Houston [1st Dist.] 2002, no pet.).

Tourneau Houston, Inc. (a wholly owned subsidiary of Tourneau, Inc.) had no standing to appeal because it was not the owner, was never designated in writing to be the owner's agent, and no such designation was ever filed with the appraisal district. Tourneau Houston, Inc. v. Harris County Appraisal District, 24 S.W.3d 907 (Tex. App. - Houston [1st Dist.] 2000, no pet.).

While suit was pending on the company's personal property valuation, the company filed bankruptcy under Chapter 11, Bankruptcy Code. The trial court did not violate the automatic stay provision under Bankruptcy Code when it dismissed the suit for want of prosecution. Montgomery Ward & Co., Inc. v. Denton County Appraisal District and Denton County Appraisal Review Board, 13 S.W.3d 828 (Tex. App. - Fort Worth [2nd Dist.] 2000, pet. denied).

To determine an unequal appraisal protest in favor of the property owner provided by Tax Code Section 41.43, the appraisal review board's appraised value should be used since that is the only appraised value in existence when a protest is brought before district court. No conflict exists with Section 42.23 because the appraised value is simply the most current one on the tax rolls and admitted into evidence whether or not it was revised by the appraisal review board. Harris County Appraisal District and Harris County Appraisal Review Board v. Michael Duncan, 944 S.W.2d 706 (Tex. App.-Houston [14th District] 1997, writ denied).

For the purposes of chapters of 41 and 42, "property owner" includes the owner of property on January 1 of the year for which taxes are imposed. Thus, HUD, which owned property on January 1, but sold it in August of the same year, was a property owner, and had the right to appeal the ARB decision to district court. HUD v. Nueces County Appraisal Dist., 875 S.W.2d 377 (Tex. App.-Corpus Christi 1994, no writ history).

A property owner who did not protest situs to the ARB, but who did appeal to the district court's tax master, has not exhausted his administrative remedies and is not entitled to a trial de novo in district court. Sierra Stage Coaches, Inc. v. La Porte Independent School District, 832 S.W.2d 191 (Tex. App.-Houston [14th Dist.] 1992, no writ).

Taxpayer whose property is being taxed in two counties must exhaust his administrative and legal remedies in each county. Due process rights are not violated by the fact that there is no single forum in which situs issues may be resolved. Taxpayer does not waive constitutional issues where he first exhausts administrative remedies. General Electric Credit Corp. v. Midland Central Appraisal District, 808 S.W.2d 169 (Tex. App.-El Paso 1991).

Taxing unit may not bring suit to collect delinquent taxes while a Chapter 42 action concerning the property is pending. Valero Transmission Company v. San Marcos Independent School District, 770 S.W.2d 648 (Tex. App.-Austin 1989, writ denied).

Where taxpayer was dissatisfied with his property appraisal his exclusive remedies under the Property Tax Code are that of administrative and judicial review within available grounds of protest. When a taxpayer's protest to tax has been determined by the review board, he may then file suit for judicial review of the board's decision, but the board's decision is not a prerequisite to a suit by a taxing unit for delinquent taxes. Valero Transmission Company v. Hays Consolidated Independent School District, 704 S.W.2d 857 (Tex. App.-Austin 1985, writ ref'd n.r.e.).

"Property owner" referred to in Section 42.01 is read and construed according to common usage. "Property owner" is defined as one owning property with a legal or rightful title thereto; a lessee rents property from another. The lease agreement in this case clearly indicates the appellant is a lessee, not a property owner, and has no right of appeal under Section 42.01. Bennett-Barnes Investments Company v. Brown County Appraisal District, 696 S.W.2d 208 (Tex. App.-Eastland 1985, writ ref'd n.r.e.).

Sec. 42.015. Appeal by Person Leasing Property.

(a) A person leasing property who is contractually obligated to reimburse the property owner for taxes imposed on the property is entitled to appeal an order of the appraisal review board determining a protest brought by the person under Section 41.413.

(b) A person appealing an order of the appraisal review board under this section is considered the owner of the property for purposes of the appeal. The chief appraiser shall deliver a copy of any notice relating to the appeal to the owner of the property and to the person bringing the appeal.

Added by 1995 Tex. Laws, p. 3379, ch. 581, Sec. 2.

Cross References:

Protest by person leasing property, see Sec. 41.413.
Protest determination, see Sec. 41.47.
Protest right, see Sec. 41.41.

Sec. 42.02. Right of Appeal by Chief Appraiser.

On written approval of the board of directors of the appraisal district, the chief appraiser is entitled to appeal an order of the appraisal review board determining:

(1) a taxpayer protest as provided by Subchapter C, Chapter 41; or

(2) a taxpayer's motion to change the appraisal roll filed under Section 25.25.

Amended by HB 490, 77th Tex. Leg., 2001, eff. September 1, 2001.

Cross References:

Right of taxpayer protest, see Secs. 41.41 & 41.411.
Notice of intent to appeal, see Sec. 42.06(c).
Filing petition for review, see Sec. 42.21.

Sec. 42.03. Right of Appeal by County.

A county may appeal the order of the comptroller issued as provided by Subchapter B, Chapter 24 of this code apportioning among the counties the appraised value of railroad rolling stock.

Amended by 1991 Tex. Laws (2nd C.S.), p. 38, ch. 6, Sec. 53.

Cross References:

Intrastate apportionment, see Sec. 24.37.
Apportioned value certified, see Sec. 24.38.
Notice of intent to appeal, see Sec. 42.06.
Filing petition for review, see Sec. 42.21.

Sec. 42.031. Right of Appeal by Taxing Unit.

(a) A taxing unit is entitled to appeal an order of the appraisal review board determining a challenge by the taxing unit.

(b) A taxing unit may not intervene in or in any other manner be made a party, whether as defendant or otherwise, to an appeal of an order of the appraisal review board determining a taxpayer protest under Subchapter C, Chapter 41, if the appeal was brought by the property owner.

Added by 1981 Tex. Laws (1st C.S.), p. 174, ch. 13, Sec. 149; amended by 1989 Tex. Laws, p. 3603, ch. 796, Sec. 41; amended by 1999 Tex. Laws, p. 5111, ch. 1481, Sec. 34.

Cross References:

Challenges by taxing unit before appraisal review board, see Sec. 41.03.
Challenge determined by appraisal review board, see Sec. 41.07.
Notice of intent to appeal, see Sec. 42.06.
Filing petition for review, see Sec. 42.21.

Sec. 42.04. Intervention by State or Political Subdivision Owning Property Subject to Taxable Leasehold.

If the challenge or protest relates to a taxable leasehold or other possessory interest in real property that is owned by this state or a political subdivision of this state, the attorney general or a representative of the state agency that owns the real property, if the real property is owned by this state, or a person designated by the political subdivision that owns the real property, as applicable, may intervene in an appeal of an order of an appraisal review board determining a challenge by a taxing unit or a taxpayer protest.

Added by 1999 Tex. Laws, p. 2751, ch. 416, Sec. 5.

Cross References:

Challenges by taxing unit before appraisal review board, see Sec. 41.03.
Challenge determined by appraisal review board, see Sec. 41.07.
Notice of intent to appeal, see Sec. 42.06.
Filing petition for review, see Sec. 42.21.
Protest by person leasing property, see Sec. 41.413.
Protest determination, see Sec. 41.47.
Protest right, see Sec. 41.41.

Sec. 42.05. Comptroller as Party.

The comptroller is an opposing party in an appeal by:

(1) a property owner of an order of the comptroller determining a protest of the appraisal, interstate allocation, or intrastate apportionment of transportation business intangibles; or

(2) a county or a property owner of an order of the comptroller apportioning among the counties the appraised value of railroad rolling stock.

Added by 1991 Tex. Laws (2nd C.S.), p. 38, ch. 6, Sec. 53.

Cross References:

Appraisal by comptroller, see Sec. 24.01.
Protest of appraisals, see Sec. 24.37.

Sec. 42.06. Notice of Appeal.

(a) To exercise the party's right to appeal an order of an appraisal review board, a party other than a property owner must file written notice of appeal within 15 days after the date the party receives the notice required by Section 41.47 or, in the case of a taxing unit, by Section 41.07 that the order appealed has been issued. To exercise the right to appeal an order of the comptroller, a party other than a property owner must file written notice of appeal within 15 days after the date the party receives the comptroller's order. A property owner is not required to file a notice of appeal under this section.

(b) A party required to file a notice of appeal under this section other than a chief appraiser who appeals an order of an appraisal review board shall file the notice with the chief appraiser of the appraisal district for which the appraisal review board is established. A chief appraiser who appeals an order of an appraisal review board shall file the notice with the appraisal review board. A party who appeals an order of the comptroller shall file the notice with the comptroller.

(c) If the chief appraiser, a taxing unit, or a county appeals, the chief appraiser, if the appeal is of an order of the appraisal review board, or the comptroller, if the appeal is of an order of the comptroller, shall deliver a copy of the notice to the property owner whose property is involved in the appeal within 10 days after the date the notice is filed.

(d) On the filing of a notice of appeal, the chief appraiser shall indicate where appropriate those entries on the appraisal records that are subject to the appeal.

Amended by 1981 Tex. Laws (1st C.S.), p. 174, ch. 13, Sec. 150; amended by 1987 Tex. Laws, ch. 898, Sec. 1; amended by 1989 Tex. Laws, p. 3603, ch. 796, Sec. 42; amended by 1991 Tex. Laws (2nd C.S.), p. 38, ch. 6, Sec. 53; amended by 1997 Tex. Laws, p. 3916, ch. 1039, Sec. 41.

Cross References:

Timeliness of action by mail, see Sec. 1.08.
Appraisal review board must deliver notice determining a taxing unit challenge, see Sec. 41.07(d).
Appraisal review board must deliver notice determining taxpayer's protest, see Sec. 41.47(d).
Appraisal review board record requirement, see Rule Sec. 9.803.
Appeal by chief appraiser, see Sec. 42.02.
Appeal by county, see Sec. 42.03.
Appeal by taxing unit, see Sec. 42.031.

Notes:

The 45-day limitation period for appeal of an appraisal review board decision only begins to run when proper notice is delivered to the appropriate party. Section 1.07(b) requires the tax official or agency to address the notice to the property owner, the person designated under Section 1.111(f) to receive the notice for the property owner (if that section applies) or, if appropriate, the property owner's agent at his address according to the most recent record in the possession of the official or agency. If a property owner files a written request for notices to be sent to a particular address, the official or agency shall send the notice to the address stated in the request. The erroneous delivery of a notice and order does not serve to trigger the 45-day period for appeal. A specific statutory scheme sets forth the manner in which property tax representatives may be designated and the effect that designation has on a taxing authority's obligation to deliver notice. The Texas Administrative Code provides that when an agent is an employee of a subsidiary of the owner, the owner is not required to provide documents supporting that agent's authority. The agent designation form itself states only that the person naming a tax agent should attach documentation - a suggestion that is not mandatory. Harris County Appraisal District and Harris County Appraisal Review Board v. Drever Partners, Inc., 938 S.W.2d 196 (Tex. App.-Houston [14th District] 1997).

Taxpayer appealed appraisal review board order. Notice of appeal was filed with the appraisal district within the deadline to file notice of protest. The appraisal district and appraisal review board shared staff and files, and the notice found its way to the appraisal review board within the required time period. Court found this actual notice met the requirements of Sec. 42.06. Harris County Appraisal District v. Texas National Bank of Baytown, 775 W.W. 2d 66 (Tex. App.-Houston [1st Dist.] 1989, no writ). (Note: Statute was amended in 1989 to require that notice of appeal be filed with the chief appraiser.)

Organization did not satisfy the jurisdictional requirements of the Tax Code when it filed the written notice of intent to appeal within the 15-day period with the appraisal district and not with the appraisal review board. In filing for judicial review within the 45-day period, the property owner must name and serve both groups. Program Centers of Grace Union Presbytery, Inc. v. Earle, 726 S.W.2d 628 (Tex. App.-Fort Worth 1987, no writ).

Property owner admitted the receipt of both notice of issuance of order of the appraisal review board determination and a copy of the order signed by current appraisal review board chairman. Sending the notice of appeal to former chairman of review board was insufficient to perfect appeal for judicial review. R. J. Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App.-Beaumont 1987, no writ).

If an employee of the property owner, but not the appointed fiduciary, receives the appraisal review board order and signs for the receipt of the notice as the property owner's agent, the notice is presumed delivered. Personal, in-hand delivery to the appointed fiduciary is not necessary. Property owner must file written notice of appeal within 15 days of receiving notice. Copy of order determining protest met requirements sufficiently for sending order and notice of issuance of order, and two documents were not required to be sent. MCI Telecommunications Corp. v. Tarrant Appraisal District, 723 S.W.2d 350 (Tex. App.-Fort Worth 1987, no writ).

Taxpayers who failed to comply with the Tax Code provisions for protesting property valuation were preempted from a right to judicial review because of the exclusiveness of the remedies provided by the Tax Code. Adams v. Kendall County Appraisal District, 724 S.W.2d 871 (Tex. App.-San Antonio 1986, no writ).

A taxpayer's notice of intent to file an appeal is proper if the chief appraiser forwards the notice of appeal to the review board during the 15-day filing period; although the taxpayer's appeal was accomplished through an indirect means, it met the legislative intent of notice to the review board. Texas Conference Association of Seventh-Day Adventists v. Central Appraisal Review Board of Johnson County, 719 S.W.2d 255 (Tex. App.-Waco 1986, writ ref'd n.r.e.).

Taxpayer was barred from judicial review of appraisal review board determination for failure in filing the required written notice of appeal within the 15-day period with the review board. Towne Square Associates v. Angelina County Appraisal District, 709 S.W.2d 776 (Tex. App.-Beaumont 1986, no writ).

The requirement that a property owner deliver notice of his intent to appeal the decision of an appraisal review board to district court is jurisdictional. Where the property owner delivered a notice to the appraisal district, but not the appraisal review board, the district court acquires no jurisdiction to hear the appeal. Corchine Partnership v. Dallas County Appraisal District, 695 S.W.2d 734 (Tex. App.-Dallas 1985, writ ref'd n.r.e.).

Taxpayers were not required to comply with Sec. 42.06(a) because the tax assessors had not complied with Sec. 41.47 notice requirements, specifically, issuance of a written order, and delivery of notice of issuance and a copy of the order to the property owner and chief appraiser. Taxpayers' failure to timely file notice of appeal under Sec. 42.06 under the circumstances did not deprive the court of jurisdiction to hear the appeal. Section 42.09 does preclude appellants from challenging the review board's determination by any procedure other than the one prescribed by the code, ch. 42. Herndon Marine Products, Inc. v. San Patricio County Appraisal Review Board, 695 S.W.2d 29 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.).

Sections 42.06, 42.09, and 42.21 are presumed constitutional, and appellant was bound by them. Sections 42.01-42.29, which govern administrative and judicial review of assessments made by taxing authorities, supersede common law principles whereby equitable relief could be obtained in a lawsuit. The appellant's contention in this case was not considered an attack on the constitutionality of code provisions because the appellant had affirmatively availed himself of the administrative review proceedings to challenge the assessment. Texas Architectural Aggregate, Inc. v. Adams, 690 S.W.2d 640 (Tex. App.-Austin 1985, no writ).

A taxing unit must strictly adhere to the requirement of filing a written notice of appeal within 15 days after the date of receipt of the notice of the appraisal review board's determination. Thorndale Independent School District v. Rockdale Independent School District, 681 S.W.2d 225 (Tex. App.-Austin 1984, writ ref'd n.r.e.).

Sec. 42.07. Costs of Appeal.

The reviewing court in its discretion may charge all or part of the costs of an appeal taken as provided by this chapter against any of the parties.

Notes:

A taxpayer cannot be reimbursed for an appraisal paid for by the taxpayer as "costs" of suit under this section. Estepp v. Miller, 731 S.W.2d 677 (Tex. App.-Austin 1987, writ ref'd n.r.e.).

Sec. 42.08. Forfeiture of Remedy for Nonpayment of Taxes.

(a) The pendency of an appeal as provided by this chapter does not affect the delinquency date for the taxes on the property subject to the appeal. However, that delinquency date applies only to the amount of taxes required to be paid under Subsection (b). If the property owner complies with Subsection (b), the delinquency date for any additional amount of taxes due on the property is determined by Section 42.42 (c), and that additional amount is not delinquent before that date.

(b) Except as provided in Subsection (d), a property owner who appeals as provided by this chapter must pay taxes on the property subject to the appeal in the amount required by this subsection before the delinquency date or the property owner forfeits the right to proceed to a final determination of the appeal. The amount of taxes the property owner must pay on the property before the delinquency date to comply with this subsection is the lesser of:

(1) the amount of taxes due on the portion of the taxable value of the property that is not in dispute; or

(2) the amount of taxes due on the property under the order from which the appeal is taken.

(c) A property owner that pays an amount of taxes greater than that required by Subsection (b) does not forfeit the property owner's right to a final determination of the appeal by making the payment. If the property owner files a timely appeal under this chapter, taxes paid on the property are considered paid under protest, even if paid before the appeal is filed.

(d) After filing an oath of inability to pay the taxes at issue, a party may be excused from the requirement of prepayment of tax as a prerequisite to appeal if the court, after notice and hearing, finds that such prepayment would constitute an unreasonable restraint on the party's right of access to the courts. On the motion of the party, the court shall hold a hearing to review and determine compliance with this section, and the reviewing court may set such terms and conditions on any grant of relief as may be reasonably required by the circumstances. If the court determines that the property owner has not substantially complied with this section, the court shall dismiss the pending action. If the court determines that the property owner has substantially but not fully complied with this section, the court shall dismiss the pending action unless the property owner fully complies with the court's determination within 30 days of the determination.

Amended by 1983 Tex. Laws, p. 5049, ch. 910, Sec. 1; amended by 1985 Tex. Laws, p. 1050, ch. 195, Sec. 1; amended by 1989 Tex. Laws, p. 3604, ch. 796, Sec. 43; amended by 1995 Tex. Laws, p. 3377, ch. 579, Sec. 12; amended by 1997 Tex. Laws, p. 1070, ch. 203, Sec. 1.

Cross References:

Property owner's right to appeal, see Sec. 42.01.
Delinquency date for taxes, see Secs. 31.02 & 31.04.
Payment under this section pending protest on failure on notice, see Sec. 41.411.
Payment under this section pending motion to correct substantial error, see Sec. 25.25(d).
Supplemental tax bill, see Sec. 42.42(c).
Temporary tax receipt, see Rule Sec. 9.3043.

Notes:

While Section 42.08 is constitutional, a portion of the section is unconstitutional. Section 42.08(b)(1) requirement to pay last year's taxes violates the open courts provision of the Texas Constitution. The forfeiture provision is as an unreasonable financial barrier to court access. Central Appraisal District of Rockwall County v. Len Lall and Annette Lall, consolidated with Dallas Central Appraisal District v. W. V. Grant Evangelistic Association, Inc., 924 S.W.2d 686 (Tex. 1996).

A Section 42.08 payment created an unreasonable barrier to access to the courts. Section 42.08 (as written in 1995) is in violation of the open court provision of the Texas Constitution. Harris County Appraisal District v. Herrin, 924 S.W.2d 154 (Tex. 1996).

Partial tender of assessed taxes prior to the delinquency date was sufficient to preclude imposing penalty and interest on the unpaid balance and to avoid any effort to collect the balance due pending the resolution of the property valuation suit. House Bill 2201 (1997) deleted the unconstitutional portion of Section 42.08(b) and amended Section 42.42 for the due date of a post-appeal supplemental tax bill and the penalty and interest on such bill. By changing the delinquency date for pending valuation cases not yet reduced to judgment, the Legislature did no more than remit a penalty, not release an indebtedness or liability owed to a political subdivision of the State. HB 2201 is not an unconstitutional release of an indebtedness under Article III, Section 55, Texas Constitution. Jefferson County, et. al v. Clark Refining & Marketing, Inc., 7 S.W.3d 324 (Tex. App. - Beaumont 1999, no pet.).

The substantial compliance language applies to subsections (b), (d), or a combination of both in Section 42.08. An installment agreement discussed by the collector and taxpayer on the due date and signed within two weeks of the due date was the type of conduct intended to be addressed by the substantial compliance provision. The taxpayer made no attempt to avoid paying taxes, and no evidence was presented that the delay would be a detriment to the taxing units. By accepting the taxpayer's representation of inability to pay and by entering the installment agreement, it was unnecessary for the taxpayer to file an oath of inability to pay under Section 42.08(d). J.C. Evans Construction Co., Inc., v. Travis Central Appraisal District, 4 S.W.3d 447 (Tex. App. - Austin 1999).

A motion requesting a ruling on substantial compliance under Section 42.08 was not required to be filed before the delinquency date for payment of the taxes. Jackson Hotel Corporation v. Wichita County Appraisal District, 980 S.W.2d 879 (Tex. App.- Fort Worth [2nd District] 1998).

The deadline to pay taxes as required by Section 42.08 is before February 1 and this deadline is not subject to the concept of substantial compliance. Unless the delinquency deadline is postponed by another section of the Tax Code, a property owner must comply with Section 42.08 by paying the tax due before February 1 or forfeit the right to judicial review. Pratt & Whitney Canada, Inc. v. McLennan Appraisal District, 927 S.W.2d 641 (Tex. App.-Waco 1996, writ denied).

Paying taxing units after the delinquency date does not meet the administrative procedures of Property Tax Code Section 42.08 and the taxpayer forfeits the right to proceed to a final determination of the appeal. General Motors Acceptance Corporation v. Harris County Municipal Utility District #130, 899, S.W.2d 821 (Tex. App.-Houston [14th District] 1995, no writ).

Because the taxpayer failed to comply with Sec. 42.08 that a taxpayer had to pay taxes owed in the manner prescribed, or give up the right to proceed with the final determination of the appeal, the trial court was forced under Sec. 42.08 to dismiss the action because it found that the property owner had not substantially complied with the section. Sec. 42.08 does not violate Art. 1, Sec. 13, Tex. Const. Lawler v. Tarrant Appraisal District, 855 S.W.2d 269 (Tex. App.-Fort Worth 1993, no writ).

A taxpayer may not protest her property valuation simply because she did not own the property at the time of assessment. Since the Tax Code provides for exclusive remedies for protest, the taxpayer may not later seek to present evidence of property value in 1987 and 1988 when the owner of the property at the time did not choose to protest property valuation. Thus, the district court was correct in excluding evidence of property valuation in 1987 and 1988. Hood v. Hays County, 836 S.W.2d 327 (Tex. App.-Austin 1992, no writ).

Where a taxpayer made no tax payments before the delinquency date, even though it ultimately paid the taxes, substantial compliance could not be found under Sec. 42.08 to allow the taxpayer to take advantage of the appeal process. Therefore, the taxpayer's appeal should have been dismissed by the trial court. However, had the taxpayer made all tax payments except one, then the issue of substantial compliance would be relevant to be considered on a case-by-case basis. Factors for examination by the court include size of the timely-paid amount, the size of the amount left unpaid by the delinquency date and the promptness of the late payment. Harris County Appraisal District v. Dipaola Realty Associates, 841 S.W.2d 487 (Tex. App.-Houston [1st Dist.] 1992, writ denied).

Full payment of taxes made before 1989 amendment does not deprive taxpayer of right to proceed to final determination of his appeal. Section 42.08 changes were retroactive. Dallas CAD v. Seven Investment Company and Dallas CAD v. Las Colinas Corporation, 813 S.W.2d 197 (Tex. App.-Dallas 1991), rev'd on other grounds 835 S.W.2d 75 (Tex. 1992).

Statutory changes to Sec. 42.08 made in 1989 were retroactive and apply regardless when the payment was made. Full payment of taxes after a partial payment is not a voluntary payment. Resolution Trust Corp. v. Williamson County Appraisal District, 816 S.W.2d 452 (Tex. App.-Texarkana 1991, writ denied).

Taxpayer is required to tender payment complying with Sec. 42.08 before the delinquency date or he forfeits his right to proceed to a final determination. Filmstrips and Slides, Inc. v. Dallas Central Appraisal District, 806 S.W.2d 289 (Tex. App.-Dallas 1991, no writ).

A late tender of taxes never constitutes substantial compliance with Sec. 42.08. Ferguson v. Chillicothe Independent School District, 798 S.W.2d 395 (Tex. App.-Amarillo 1990, writ denied).

Payment of tax after delinquency date never constitutes substantial compliance with tax tender requirements. The court specifically rejects the reasoning and conclusion reached in Harris CAD v. Krupp. Harris County Appraisal District v. Consolidated Capital Properties IV, 795 S.W.2d 39 (Tex. App.-Amarillo 1990, no writ).

Tax tenders made six weeks late do not constitute substantial compliance where taxpayer testified it had not intended to pay at all. Claims of improper denial of exemption may not be raised as a defense to a delinquent tax suit. City of Shenandoah v. Jimmy Swaggart Evangelistic Association, 785 S.W.2d 899 (Tex. App.-Beaumont 1990, writ denied).

Substantial compliance resulted when taxpayer paid two of three taxing units. A late payment is substantial compliance under Sec. 42.08 if it can be shown that the taxpayer is not using its suit to avoid payment and that the suit is not unduly impeding the taxing unit's activities. Harris County Appraisal District v. Krupp Realty Limited Partnership, 787 S.W.2d 513 (Tex. App.-Houston [1st Dist.] 1990, writ denied).

The unit valuation approach is constitutional. Payment of taxes under stipulation does not constitute voluntary payment. Houston Lighting & Power Co. v. Dickinson Independent School District, 794 S.W.2d 402 (Tex. App.-Texarkana 1990, writ denied).

Taxpayer does not lose his right to a final determination of his appeal by making a full payment of taxes owed. Harston v. Kendall County Appraisal District, 773 S.W.2d 815 (Tex. App.-San Antonio 1989, no writ).

Taxpayer substantially complied with Sec. 42.08 by paying the amount of the preceding year's taxes and an additional amount into the court's registry. A property owner has 30 days from the date of the order determining substantial compliance to fully comply with Sec. 42.08 by making the payment to the tax collector. Wildwood Development v. Gregg County Appraisal District, 780 S.W.2d 434 (Tex. App.- Texarkana 1989, writ denied).

Section 42.08 is procedural rather than substantive. Where 1985 amendment to Sec. 42.08 (allowing a property owner 30 days after hearing to cure incorrect payment of taxes under protest) took effect during the pendency of a suit, it was error for the trial court to dismiss the suit under the terms of the law in effect before the amendment. Missouri Pacific Railroad Company v. Dallas County Appraisal District, 732 S.W.2d 717 (Tex. App.-Dallas 1987, no writ).

By paying full amount of taxes due, taxpayer did not comply with the statutory payment requirement for avoiding forfeiture of right to appeal. Hunt County Tax Appraisal District v. Rubbermaid Inc., 719 S.W.2d 215 (Tex. App.-Dallas 1986, writ ref'd n.r.e.).

Property owner's tender of taxes into registry of court rather than to tax collector constituted substantial compliance with statute allowing appeal of property appraisal where petition for review was on file. Morris County Tax Appraisal District v. Nail, 708 S.W.2d 473 (Tex. App.-Texarkana 1986, writ ref'd n.r.e.).

Sec. 42.09. Remedies Exclusive.

(a) Except as provided by Subsection (b) of this section, procedures prescribed by this title for adjudication of the grounds of protest authorized by this title are exclusive, and a property owner may not raise any of those grounds:

(1) in defense to a suit to enforce collection of delinquent taxes; or

(2) as a basis of a claim for relief in a suit by the property owner to arrest or prevent the tax collection process or to obtain a refund of taxes paid.

(b) A person against whom a suit to collect a delinquent property tax is filed may plead as an affirmative defense:

(1) if the suit is to enforce personal liability for the tax, that the defendant did not own the property on which the tax was imposed on January 1 of the year for which the tax was imposed; or

(2) if the suit is to foreclose a lien securing the payment of a tax on real property, that the property was not located within the boundaries of the taxing unit seeking to foreclose the lien on January 1 of the year for which the tax was imposed.

(c) For purposes of this section, "suit" includes a counterclaim, cross-claim, or other claim filed in the course of a lawsuit.

Amended by 1987 Tex. Laws, ch. 53, Sec. 1.

Cross References:

Suit to collect delinquent taxes, see Sec. 33.41.
Property owner's right to protest and appeal, see Sec. 42.01.

Notes:

SB 266, 70th Leg., 1987, applies only to delinquent tax lawsuits filed on or after May 6, 1987.

Coastal was required to register as a foreign limited partnership to appeal appraisal of salt dome storage caverns. Had it at the time of registration paid both the registration fee and the statutorily-mandated additional fees for the years it had transacted business in Texas before registering, then Coastal would have been properly registered and able to maintain the appeals. Coastal Liquids Transportation v. Harris County Appraisal District, 46 S.W.3d 880 (Tex. 2001).

Where taxpayer claimed not to be the owner of property upon which delinquent taxes were due and he had not presented this fact before the appraisal review board, he has waived non-ownership as a defense to a delinquent tax suit. A taxpayer must protest the non-ownership issue before the appraisal review board. Anderson v. Robstown Independent School District, 706 S.W.2d 952 (Tex. 1986). (Note: 1987 amendment adds Sec. 42.09(b) that provides defenses to delinquent tax lawsuit where property owner did not own personal property on January 1 or where real property was outside taxing unit's boundaries on January 1.)

A leasehold's valuation was not the annual contract rental price on each leased lot, but instead had to be based on the leasehold's current market value which might be higher than the contract price given the demand for leasehold estates. All comparables of fee-simple interests should be eliminated from data used in establishing the fair market value of leaseholds, but the appraisals should not be limited to the amount of annual rent being paid on the leaseholds. Panola County Fresh Water Supply District Number One v. Panola County Appraisal District and Panola County Appraisal Review Board, 69 S.W.3d 278 (Tex. App. - Texarkana 2002, no pet.).

The public property used for public purpose exemption is not lost when a county does not participate in the appraisal proceedings. Three counties did not lose their tax exemption when the counties did not challenge the property tax appraisal of a juvenile detention facility. While Tax Code Section 42.09 is the exclusive procedure for appealing a property tax appraisal, it does not bar the exemption granted political subdivisions by Article XI, Section 9, Texas Constitution. Sweetwater ISD v. ReCor, Inc., 955 S.W.2d 703 (Tex. App. -- Eastland 1997).

When a chief appraiser fails to notify a taxpayer of cancellation of an exemption as required by Sec. 11.43(h), the taxpayer may sue the taxing entity that contracted for the exemption (a tax abatement agreement, in this case). The taxpayer need not resort to the exclusive administrative procedures provided under Sec. 42.09. Fina Oil and Chemical Co. v. Port Neches I.S.D., 861 S.W.2d 3 (Tex. App.-Beaumont 1993, writ denied).

In a case where the taxpayer's accounts contained a single, grand total assessment on multiple units, the taxpayer was not required to prove that it did not own each and every unit in the account in order to show it was not responsible for the tax assessed on that account, citing the Legislature's amendment of Sec. 42.09 by the addition of subsection (b) in 1987 in response to the Texas Supreme Court decision in Robstown Indep. School Dist. v. Anderson. In Robstown, the court said that a taxpayer's plea of non-ownership in a delinquency suit was waived because the issue had not been protested before the appraisal review board. The court in the present case noted that the Legislature clearly desired that the taxpayer was always to have available the defense of non-ownership of the property in question. Thus, the taxing authorities' reading of the statute clearly frustrated the intention of Sec. 42.09(b). General Electric Capital Corp. v. City of Corpus Christi, 850 S.W.2d 596 (Tex. App.-Corpus Christi 1993, writ denied).

Section 42.09 provides that the remedies provides in the Code for protest are exclusive; thus, failure to exhaust those remedies results in loss of the right to raise a defense against a collection suit. Failure of the taxpayer to protest the inclusion of its property on the appraisal rolls deprived the trial court of jurisdiction to consider the taxpayer's defense. Northwest Texas Conference of the United Methodist Church v. Happy Independent School District, 839 S.W.2d 140 (Tex. App. -Amarillo 1992, no writ).

A property owner who did not protest situs to the ARB, but who did appeal to the district court's tax master, has not exhausted his administrative remedies and is not entitled to a trial de novo in district court. Sierra Stage Coaches, Inc. v. La Porte Independent School District, 832 S.W.2d 191 (Tex. App.-Houston [14th Dist.] 1992, no writ).

A taxpayer may not protest her property valuation simply because she did not own the property at the time of assessment. Since the Property Tax Code provides for exclusive remedies for protest, the taxpayer may not later seek to present evidence of property value in 1987 and 1988 when the owner of the property at the time did not choose to protest property valuation. Thus, the district court was correct in excluding evidence of property valuation in 1987 and 1988. Hood v. Hays County, 836 S.W.2d 327 (Tex. App.-Austin 1992).

Taxpayer whose property is being taxed in two counties must exhaust his administrative and legal remedies in each county. Due process rights are not violated by the fact that there is no single forum in which situs issues may be resolved. Taxpayer does not waive constitutional issues where he first exhausts administrative remedies. General Electric Credit Corp. v. Midland Central Appraisal District, 808 S.W.2d 169 (Tex. App.-El Paso 1991).

A taxpayer who fails to exhaust his statutory remedies is not entitled to mandamus relief. Watson v. Robertson County Appraisal Review Board, 795 S.W.2d 307 (Tex. App.-Waco 1990, no writ).

A taxpayer may raise constitutional issues in court without exhausting its administrative remedies since an appraisal review board has no power to determine the constitutionality of a statute. However, a constitutional issue is waived when a taxpayer partially complies with the statute under attack. Birdville Independent School District v. First Baptist Church, 788 S.W.2d 26 (Tex. App.-Ft. Worth 1990, writ denied).

Taxpayer could not raise lack of personal property situs as a defense to delinquent tax suit. Flowers v. Lavaca County, 766 S.W.2d 825 (Tex. App.-Corpus Christi 1989, writ denied).

School owners must comply with code administrative provisions for appealing the denial of the school exemption to district court. Keggereis v. Dallas Central Appraisal District, 749 S.W.2d 516 (Tex. App.-Dallas 1988, no writ).

Even where appraisal review board declined to hear taxpayers' protest, taxpayers who failed to comply with Chapter 41 and 42 procedures for appealing the protest to district court did not preserve their right to appeal. Keggereis v. Dallas CAD, 749 S.W.2d 516 (Tex. App.-Dallas 1988, no writ).

Taxpayers who failed to comply with the Tax Code provisions for protesting property valuation were preempted from a right to judicial review because of the exclusiveness of the remedies provided by the Tax Code. Adams v. Kendall County Appraisal District, 724 S.W.2d 871 (Tex. App.-San Antonio 1986, no writ).

Injunctive relief by a taxpayer for protesting valuation of his property is no longer permissible; the legislature has provided a comprehensive plan for appeal of taxing authorities' decisions in the Tax Code and has required property owners to follow that plan. Brazoria County Appraisal District v. Notlef, Inc., 721 S.W.2d 391 (Tex. App.-Corpus Christi 1986, writ ref'd n.r.e.).

Taxpayer failed to exhaust administrative remedies by failing to comply with the Property Tax Code's administrative review process, and was precluded from asserting a common law cause of action for grossly excessive valuation because the code's procedures are the only means by which to challenge the property's valuation by an appraisal district. Dallas County Appraisal District v. Lal, 701 S.W.2d 44 (Tex. App.-Dallas 1985, writ ref'd n.r.e.).

The failure of the appraisal district to deliver a notice of appraised value denied due process to the taxpayer and deprived the appraisal review board of jurisdiction to consider any increase in taxpayer's valuation above the amount rendered. Because the board did not acquire jurisdiction over the valuation, the taxpayer was not confined to remedies under the Property Tax Code and could challenge the assessments through a collateral attack. Garza v. Block Distributing Co., 696 S.W.2d 259 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.).

Sections 42.06, 42.09, and 42.21 are presumed constitutional, and appellant was bound by them. Sections 42.01-42.29 which govern administrative and judicial review of assessments made by taxing authorities supersede common law principles whereby equitable relief was obtainable in a lawsuit. The appellant's contention in this case was not considered an attack on the constitutionality of code provisions because the appellant had affirmatively availed himself of the administrative review proceedings to challenge the assessment. Texas Architectural Aggregate, Inc. v. Adams, 690 S.W.2d 640 (Tex. App.-Austin 1985, no writ).

Failure of appraisal district to act on a taxpayer's application for an exemption as a charitable organization was not a denial of the request. The application was merely held in abeyance pending the outcome of other proceedings. The chief appraiser could have determined the taxpayer's status, but did not; therefore, there was no requirement the taxpayer pursue administrative remedies before raising the defense of a tax exemption for that year. Moody House, Inc. v. Galveston County, 687 S.W.2d 433 (Tex. App.-Houston 1985, writ ref'd n.r.e.).

The provisions in Secs. 41.41-41.47, 42.06, 42.21, and 42.25 meet due process requirements; therefore, the provision for exclusive remedies does not deprive the taxpayer of a right to show as a defense that assessed taxes were not equal and uniform, that the value of property was not ascertained as provided in law, and that the assessed value exceeded real value. Brooks v. Bachus, 661 S.W.2d 288 (Tex. App.-Eastland 1983, writ ref'd n.r.e.).

[Section 42.10 to 42.20 reserved for expansion]