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Title 1. Property Tax Code
Subtitle F. Remedies

Chapter 42. Judicial Review

Subchapter B. Review by District Court

Sec. 42.21. Petition for Review.
Sec. 42.221. Consolidated Appeals for Multicounty Property.
Sec. 42.22. Venue.
Sec. 42.225. Property Owner's Right to Appeal Through Binding Arbitration.
Sec. 42.23. Scope of Review.
Sec. 42.24. Action by Court.
Sec. 42.25. Remedy for Excessive Appraisal.
Sec. 42.26. Remedy for Unequal Appraisal.
Sec. 42.27. Repealed.
Sec. 42.28. Appeal of District Court Judgment.
Sec. 42.29. Attorney's Fees.

[Sections 42.30 to 42.40 reserved for expansion]

Sec. 42.21. Petition for Review.

(a) A party who appeals as provided by this chapter must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered from which an appeal may be had. Failure to timely file a petition bars any appeal under this chapter.

(b) A petition for review brought under Section 42.02 must be brought against the owner of the property involved in the appeal. A petition for review brought under Section 42.031 must be brought against the appraisal district and against the owner of the property involved in the appeal. A petition for review brought under Subdivision (2) or (3) of Section 42.01 or under Section 42.03 must be brought against the comptroller. Any other petition for review under this chapter must be brought against the appraisal district. A petition for review is not required to be brought against the appraisal review board, but may be brought against the appraisal review board in addition to any other required party, if appropriate.

(c) If an appeal under this chapter is pending when the appraisal review board issues an order in a subsequent year under a protest by the same property owner and that protest relates to the same property that is involved in the pending appeal, the property owner may appeal the subsequent appraisal review board order by amending the original petition for the pending appeal to include the grounds for appealing the subsequent order. The amended petition must be filed with the court in the period provided by Subsection (a) for filing a petition for review of the subsequent order. A property owner may appeal the subsequent appraisal review board order under this subsection or may appeal the order independently of the pending appeal as otherwise provided by this section, but may not do both. A property owner may change the election of remedies provided by this subsection at any time before the end of the period provided by Subsection (a) for filing a petition for review.

(d) An appraisal district is served by service on the chief appraiser at any time or by service on any other officer or employee of the appraisal district present at the appraisal office at a time when the appraisal office is open for business with the public. An appraisal review board is served by service on the chairman of the appraisal review board. Citation of a party is issued and served in the manner provided by law for civil suits generally.

(e) A petition that is timely filed under Subsection (a) or amended under Subsection (c) may be subsequently amended to:

(1) correct or change the name of the party; or

(2) not later than the 120th day before the date of trial, identify or describe the property originally involved in the appeal.

Amended by 1983 Tex. Laws, p. 5341, ch. 981, Sec. 1; amended by 1985 Tex. Laws, p. 5444, ch. 760, Sec. 1; amended by 1989 Tex. Laws, p. 3604, ch. 796, Sec. 44; amended by 1991 Tex. Laws (2nd C.S.), p. 38, ch. 6, Sec. 54; amended by 1999 Tex. Laws, p. 3985, ch. 1113, Sec. 1.

Cross References:

Appeal by property owner, see Sec. 42.01.
Appeal by chief appraiser, see Sec. 42.02.
Appeal by county, see Sec. 42.03.
Appeal by taxing unit, see Sec. 42.031.

Notes:

HB 841, 75th Tex. Leg, 1997, amended Section 42.01 to remove the appeal of a transportation business intangible value (repealed in 1993) and to renumber the section. Effective January 1, 1998, Section 42.01 does not contain a subsection (3) referred to in Section 42.21(b).

Taxing units' claims in bankruptcy are based on a property's total value at the time of bankruptcy, not the property's net value after any existing liens against the property. In Re: Milit, Inc., 231 B.R. 604 (W.D. Tex. 1999).

The appraisal district is not a necessary party in bankruptcy court. Protests filed against an appraisal district are a procedural requirement that is not binding on federal court. A written settlement agreement between an appraisal district and taxpayer bars subsequent challenges in bankruptcy court, but failure to appear before the review board hearing does not bar challenge in bankruptcy court. In Re: Blue Cactus Post, L.C., 229 B.R. 379 (N.D. Tex. 1999).

Taxpayer could not have property values changed in bankruptcy court when the taxpayer had reached agreements on the values with the appraisal district. In Re: Crest-Mex. Corp., 223 B.R. 681 (S.D. Tex. 1998).

The jurisdictional requirements for appeal of an appraisal review board determination requires that both the appraisal district and the appraisal review board, and not just the review board, must be timely made defendants in the suit within the prescribed time period, or the taxpayer's right to obtain judicial review was forever barred. Appraisal Review Board v. International Church of the Foursquare Gospel, 719 S.W.2d 160 (Tex. 1986).

Taxpayer failed to apply for an open-space land designation upon a request by the chief appraiser and protested under Section 25.25 as a clerical error concerning the date of conveyance of property. The appraisal review board held for the appraisal district. The order determining protest was not delivered to the taxpayer for more than four months due to an address change. The trial court held that the property qualified for an open-space land designation without the need for re-application. The Court upheld the ruling. Because administrative remedies were exhausted and the taxpayer filed suit within 45 days of receiving the order, the Court held that it had jurisdiction to decide the controlling issue in the case. Cooke County Tax Appraisal District v. Teel, No. 2-03-115-CV (Tex. App.-Fort Worth, 2003, no pet. h.).

The taxpayer failed to exhaust its administrative remedies by not raising the issue of an application filing extension before the review board and evidence was not presented to establish entitlement to relief under Section 11.439 (now Section 11.4391) because no date of appraisal roll approval was offered. As a result, the Court did not address the retroactive application of the law. The application filed after the April 30 deadline in effect in 1999 barred the granting of the freeport exemption for that year. The taxpayer failed to file timely a freeport exemption application and did not request a filing extension for good cause as required in 1999. At trial, the taxpayer claimed that the appraisal district failed to treat the transmittal letter with the application as a request for extension. The taxpayer further contended that the amendment to the application requirements by Section 11.439 (effective in 2000 and renumbered in 2003 to Section 11.4391), permitting acceptance of late applications if filed before approval of appraisal records by the appraisal review board, should apply. Quorum International v. Tarrant Appraisal District, 114 S.W.3d 568 (Tex. App.-Fort Worth 2003, pet. denied).

The taxpayer must follow statutory procedures for allocation of value to apply. The owner waived constitutional entitlement to interstate allocation by failing to protest before the appraisal review board. The aircraft was located in the district on January 1 of each year in question, and the taxpayer did not challenge the description of the property on the appraisal rolls. The aircraft value therefore could not be allocated for prior years. A & S Air Service, Inc. v. Denton Central Appraisal District, 99 S.W.3d 340 (Tex. App.-Ft. Worth 2003, no pet.).

Sanctions against a taxing unit are inappropriate because the taxpayer may not raise excessive appraisal or nonownership in district court without first exhausting the administrative remedies in the Tax Code. Taxpayer did not protest the property's appraisal or ownership to the appraisal review board, and thus could not raise those issues in a delinquent tax lawsuit. Aldine Independent School District v. Baty, 999 S.W.2d 113 (Tex. App. -- Houston [14th District] 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 notice of the appraisal review board determination was insufficient to comply with statutory requirements of delivery of notice because the notice (1) identified the property only by docket number, not by legal description or a taxpayer account number, and (2) the parent corporation and not the property subsidiary corporate owner was listed. State law treats subsidiary corporations and parent corporations as separate entities and entitles each to notice sufficient to meet the minimum requirements of the Tax Code and due process. It did not matter that the taxpayer's agent was present at the hearing when the review board made its decision. Receiving the notice, not attending the hearing, triggers the 45-day period for the taxpayer to file in district court. Valero South Texas Processing Co. v. Starr County Appraisal District, 954 S.W.2d 863 (Tex. App. -- San Antonio 1997).

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).

Court had no jurisdiction to hear case of taxpayer who filed petition 135 days after receiving the appraisal review board order. Hurst v. Guadalupe County Appraisal District, 752 S.W.2d 231 (Tex. App.-San Antonio 1988, no writ).

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).

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).

Taxpayer protesting an appraisal review board determination was barred from judicial review for failure to file notice within 45 days from receipt of the review board's determination, the "final order" required by Section 41.47 of the Tax Code. Flores v. Fort Bend Central Appraisal District, 720 S.W.2d 243 (Tex. App.-Houston 1986, no writ).

Where taxpayer protesting appraisal of its real property timely filed a suit for judicial review, but only the appraisal district was timely included as defendant, the taxpayer's right to obtain judicial review was forever barred because both the appraisal district and the appraisal review board must be timely made defendants in the suit within the prescribed time period. Moreover, these requirements are jurisdictional, thus the district court cannot acquire jurisdiction of a petition for review unless and until the appraisal district and the appraisal review board are both made defendants in the suit before the 45-day time limit expires. Poly-America, Inc. v. Dallas County Appraisal District, 704 S.W.2d 936 (Tex. App.-Waco 1986). Contra, Morris County Appraisal District v. Nail, 708 S.W.2d 473 (Tex. App.-Texarkana 1986, writ ref'd n.r.e.). (Failure of the property owner to file appeal within 45-day period must be affirmatively plead by the appraisal district as defense to suit).

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).

Sec. 42.22. Venue.

(a) Except as provided by Subsections (b) and (c), and by Section 21.221, venue is in the county in which the appraisal review board that issued the order appealed is located, except as provided by Section 42.221.

(b) Venue of an action brought under Section 42.01(1) is in the county in which the property is located or in the county in which the appraisal review board that issued the order is located.

(c) Venue is in Travis County if the order appealed was issued by the comptroller.

Amended by 1981 Tex. Laws (1st C.S.), p. 174, ch. 13, Sec. 151; amended by 1991 Tex. Laws (2nd C.S.), p. 39, ch. 6, Sec. 55; amended by 1993 Tex. Laws, p. 4449, ch. 1033, Sec. 1 and p. 2467, ch. 667, Sec. 1.

Cross References:

Orders issued by comptroller and appraisal review board, see Sec. 42.01.
Issuance of appraisal review board order, see Secs. 41.47(d) & 41.07(d).
Determination of protests by comptroller, see Sec. 24.35.
Consolidated appeals, see Sec. 42.221.

Sec. 42.221. Consolidated Appeals for Multicounty Property.

(a) The owner of property of a telecommunications provider, as defined by Section 51.002, Utilities Code, or the owner of property regulated by the Railroad Commission of Texas, the federal Surface Transportation Board, or the Federal Energy Regulatory Commission that runs through or operates in more than one county and is appraised by more than one appraisal district may appeal an order of an appraisal review board relating to the property running through or operating in more than one county to the district court of any county in which a portion of the property is located or operated if the order relating to that portion of the property is appealed.

(b) A petition for review of each appraisal review board order under this section must be filed with the court as provided by Section 42.21. The fee for filing each additional petition for review under this section after the first petition for review relating to the same property is filed for a tax year is $5.

(c) If only one appeal by the owner of property subject to this section is pending before the court in an appeal from the decision of an appraisal review board of a district other than the appraisal district for that county, any party to the suit may, not earlier than the 30th day before and not later than the 10th day before the date set for the hearing, make a motion to transfer the suit to a district court of the county in which the appraisal review board from which the appeal is taken is located. In the absence of a showing that further appeals under this section will be filed, the court shall transfer the suit.

(d) When the owner files the first petition for review under this section for a tax year, the owner shall include with the petition a list of each appraisal district in which the property is appraised for taxation in that tax year.

(e) The court shall consolidate all the appeals for a tax year relating to a single property subject to this section for which a petition for review is filed with the court and may consolidate other appeals relating to other property subject to this section of the same owner if the property is located in one or more of the counties on the list required by Subsection (d). Except as provided by this subsection, on the motion of the owner of a property subject to this section the court shall grant a continuance to provide the owner with an opportunity to include in the proceeding appeals of appraisal review board orders from additional appraisal districts. The court may not grant a continuance to include an appeal of an appraisal review board order that relates to a property subject to this section in that tax year after the time for filing a petition for review of that order has expired.

(f) This section does not affect the property owner's right to file a petition for review of an individual appraisal district's order relating to a property subject to this section in the district court in the county in which the appraisal review board is located.

(g) On a joint motion or the separate motions of at least 60 percent of the appraisal districts that are defendants in a consolidated suit filed before the 45th day after the date on which the property owner's petitions for review of the appraisal review board orders relating to a property subject to this section for that tax year must be filed, the court shall transfer the suit to a district court of the county named in the motion or motions if that county is one in which one of the appraisal review boards from which an appeal was taken is located.

Added by 1993 Tex. Laws, p. 2467, ch. 667, Sec. 2 and by ch. 1033, Sec. 2; amended by HB 1082, 78th Tex. Leg, 2003, effective September 1, 2003.

Cross References:

Orders issued by comptroller or appraisal review board, see Sec. 42.01.
Issuance of appraisal review board order, see Secs. 41.07(d) & 41.47(d).

Notes:

HB 1082, 78th Tex. Leg, 2003, applies only to review of a property appraisal initiated by the filing of a notice of protest with an appraisal review board on or after September 1, 2003.

Sec. 42.225. Property Owner's Right to Appeal through
Binding Arbitration.

(a) On motion by a property owner who appeals an appraisal review board order under this chapter, the court shall submit the appeal to nonbinding arbitration. The court shall order the nonbinding arbitration to be conducted in accordance with Chapter 154, Civil Practice and Remedies Code. If the appeal proceeds to trial following an arbitration award or finding under this subsection, either party may introduce the award or finding into evidence. In addition, the court shall award the property owner reasonable attorney fees if the trial was not requested by the property owner and the determination of the appeal results in an appraised value for the owner's property that is equal to or less than the appraised value under the arbitration award or finding. However, the amount of the award of attorney fees under this subsection is subject to the same limitation as those provided by Section 42.29.

(b) On motion of the property owner, the court shall order the parties to an appeal of an appraisal review board order under this chapter to submit to binding arbitration if the appraisal district joins in the motion or consents to the arbitration. A binding arbitration award under this subsection is binding and enforceable in the same manner as a contract obligation.

(c) The court shall appoint an impartial third party to conduct an arbitration under this section. The impartial third party is appointed by the court and serves as provided by Subchapter C, Chapter 154, Civil Practice and Remedies Code.

(d) Each party or counsel for the party may present the position of the party before the impartial third party, who must render a specific arbitration award.

(e) Prior to submission of a case to arbitration the court shall determine matters related to jurisdiction, venue, and interpretation of the law.

(f) Except as provided in this section, an arbitration award may include any remedy or relief that a court could order under this chapter.

Added by 1991 Tex. Laws, p. 1576, ch. 412, Sec. 1; amended by 1993 Tex. Laws, p. 4444, ch. 1031, Sec. 9.

Notes:

SB 783, 72nd Leg., 1991, applies to an appeal under chapter 42, Tax Code, without regard to whether appeal was filed before August 26, 1991, the bill's effective date.

This statute that allows a taxpayer to unilaterally compel binding arbitration in a property value appeal is unconstitutional. This statute violates the open court doctrine of the Texas Constitution because the arbitrator's findings were adopted by the district court and this action resulted in legal proceedings which were conducted in secret. The appraisal district has standing to challenge the constitutionally of any state law. Hays County Appraisal District v. Mayo Kirby Springs, Inc., 903 S.W.2d 394 (Tex. App.-Austin 1995).

Sec. 42.23. Scope of Review.

(a) Review is by trial de novo. The district court shall try all issues of fact and law raised by the pleadings in the manner applicable to civil suits generally.

(b) The court may not admit in evidence the fact of prior action by the appraisal review board or comptroller, except to the extent necessary to establish its jurisdiction.

(c) Any party is entitled to trial by jury on demand.

Amended by 1981 Tex. Laws (1st C.S.), p. 174, ch. 13, Sec. 152; amended by 1991 Tex. Laws (2nd C.S.), p. 39, ch. 6, Sec. 56.

Notes:

An appraisal review board failed to give a taxpayer notice of a value increase resulting from a taxing unit challenge. Proper notice of an increased appraised value is a jurisdictional requirement that may be considered for the first time on appeal. The value increase was set aside due to the failure of notice to the taxpayer. However, the taxpayer's assertion that it should have been notified of the taxing unit challenge hearing was rejected. Lamar County Appraisal District v. Campbell Soup Co., 93 S.W.3d 642 (Tex. App.-Texarkana 2002, no pet.).

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).

A property tax lawsuit filed in the name of a related, but erroneously designated, taxpayer does not grant jurisdiction to the court to hear a tax protest even if the party who filed the case is claiming to be a "de facto" agent for the original taxpayer. This alleged agent must comply with reasonable fiduciary responsibilities to prove its status as an agent. Evidence of past tax assessments could be considered by the jury if the contested appraisal showed a large increase in value and the past assessments had been established based on an agreement between the property owner and the CAD. Gregg County Appraisal District v. Laidlaw Waste Systems, Inc., 907 S.W.2d 12 (Tex. App.-Tyler 1995, writ denied).

Taxpayer was not bound by its rendition value and was free to offer evidence below those values in the trial de novo in the district court. Moreover, these statutory proceedings and remedies are mandatory and exclusive. Hunt County Tax Appraisal District v. Rubbermaid Inc., 719 S.W.2d 215 (Tex. App.-Dallas 1986, writ ref'd n.r.e.).

Sec. 42.24. Action by Court.

In determining an appeal, the district court may:

(1) fix the appraised value of property in accordance with the requirements of law if the appraised value is at issue;

(2) enter the orders necessary to ensure equal treatment under the law for the appealing property owner if inequality in the appraisal of his property is at issue; or

(3) enter other orders necessary to preserve rights protected by and impose duties required by the law.

Cross References:

Appraised values required by law, see Sec. 23.01.

Notes:

There is no enforceable contract if an appellant did not unconditionally accept the original proposal of the tax district to settle a lawsuit, and the tax district rejected the counter-offer of appellant. Antonini v. Harris County Appraisal District, 999 S.W.2d 608 (Tex. App. - Houston [14th District] 1999).

Sec. 42.25. Remedy for Excessive Appraisal.

If the court determines that the appraised value of property according to the appraisal roll exceeds the appraised value required by law, the property owner is entitled to a reduction of the appraised value on the appraisal roll to the appraised value determined by the court.

Cross References:

Appraised value required by law, see Sec. 23.01.
Appraisal roll, see Secs. 25.24 & 26.01.
Taxpayer who prevails may receive award of attorney's fees, see Sec. 42.29.

Sec. 42.26. Remedy for Unequal Appraisal.

(a) The district court shall grant relief on the ground that a property is appraised unequally if:

(1) the appraisal ratio of the property exceeds by at least 10 percent the median level of appraisal of a reasonable and representative sample of other properties in the appraisal district;

(2) the appraisal ratio of the property exceeds by at least 10 percent 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 appeal; or

(3) the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted.

(b) If a property owner is entitled to relief under Subsection (a)(1), the court shall order the property's appraised value changed to the value as calculated on the basis of the median level of appraisal according to Subsection (a)(1). If a property owner is entitled to relief under Subsection (a)(2), the court shall order the property's appraised value changed to the value calculated on the basis of the median level of appraisal according to Subsection (a)(2). If a property owner is entitled to relief under Subsection (a)(3), the court shall order the property's appraised value changed to the value calculated on the basis of the median appraised value according to Subsection (a)(3). If a property owner is entitled to relief under more than one subdivision of Subsection (a), the court shall order the property's appraised value changed to the value that results in the lowest appraised value. The court shall determine each applicable median level of appraisal or median appraised value according to law, and is not required to adopt the median level of appraisal or median appraised value proposed by a party to the appeal. The court may not limit or deny relief to the property owner entitled to relief under a subdivision of Subsection (a) because the appraised value determined according to another subdivision of Subsection (a) results in a higher appraised value.

(c) For purposes of establishing the median level of appraisal under Subsection (a)(1), the median level of appraisal in the appraisal district as determined by the comptroller under Section 5.10 is admissible as evidence of the median level of appraisal of a reasonable and representative sample of properties in the appraisal district for the year of the comptroller's determination, subject to the Texas Rules of Evidence and the Texas Rules of Civil Procedure.

(d) For purposes of this section, the value of the property subject to the suit and the value of a comparable property or sample property that is used for comparison must be the market value determined by the appraisal district when the property is a residence homestead subject to the limitation on appraised value imposed by Section 23.23.

Amended by 1981 Tex. Laws (1st C.S.), p. 174, ch. 13, Sec. 153; amended by 1983 Tex. Laws, p. 4924, ch. 877, Sec. 3; amended by 1985 Tex. Laws, p. 6149, ch. 823, Sec. 3; amended by 1989 Tex. Laws, p. 3605, ch. 796, Sec. 45; amended by 1991 Tex. Laws, p. 2910, ch. 843, Sec. 12; amended by 1997 Tex. Laws, p. 3917, ch. 1039, Sec. 42; amended by HB 1082, 78th Tex. Leg., 2003, effective September 1, 2003.

Cross References:

Median level of appraisal defined, see Sec. 1.12.
Taxpayer who prevails may receive award of attorney's fees, see Sec. 42.29.
Protest of inequality of appraisal, see Secs. 41.41(2) & 41.43.

Note:

The trial court has the authority to exclude expert witness testimony based on a lack of reliability in foundational data and the selection of comparable properties. While the witness may have followed the appraisal methodology prescribed by statute to indicate unequal appraisal or lack of uniformity, the trial court did not abuse its discretion by excluding the expert testimony on a different basis. Weingarten Realty Advisors v. Harris County Appraisal District, 93 S.W.3d 280 (Tex. App.-Houston [14th Dist] 2002, no pet.).

Tax Code Section 42.26(d) dispensed with the prior requirement in Section 42.26(a) that a property owner seeking tax relief had to obtain an independent property appraisal. Section 42.26(d) required only a comparison of the appraised value of the property at issue with comparable properties appropriately adjusted. As a remedial statute intended to facilitate tax remedies for property owners, it required a liberal construction, rather than one that would defeat its purpose. Evidence showed the proposed appraised value exceeded the median appraised value for similar properties, and such a comparison was all that was required by Section 42.26(d), without proof of the market value of the comparable properties. Harris County Appraisal District v. United Investors Realty Trust, 47 S.W.3d 648 (Tex. App. - Houston [14th Dist.] 2001).

In the claim of unequal appraisal, the owner's agent applied no statistical formula in his calculation of the appropriate number of sample population size for the median level appraisal determination as required by the Tax Code. Evidence was sufficient to support the tax appraiser's assessment of the strip shopping center. Sagemont Plaza Shopping v. Harris County Appraisal District, 30 S.W.3d 425 (Tex. App. - Corpus Christi 2000, petition denied).

While a party's failure to plead and prove injury will generally prevent the party from prevailing on its claim, such failure does not deprive the trial court of jurisdiction over the case. A property owner that does not object to the reliability of evidence based on the method of valuation created an insurmountable barrier to the owner's recovery. Reliance Insurance Company v. Denton Central Appraisal District, 999 S.W.2d 626 (Tex. App. -- Fort Worth [2nd District] 1999).

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).

Sec. 42.27. Repealed in 1983.

Sec. 42.28. Appeal of District Court Judgment.

A party may appeal the final judgment of the district court as provided by law for appeal of civil suits generally, except that an appeal bond is not required of the chief appraiser, the county, the comptroller, or the commissioners court.

Amended by 1991 Tex. Laws, p. 39, ch. 6, Sec. 57.

Notes:

The appraisal district and the appraisal review board are exempt from filing an appeal bond in the appeal of a district court decision; the county's exemption also applies to the appraisal district as a governmental agent for the county for appraising property and to the review board that performs a governmental function as the district's equalization board. Dallas CAD v. Institute for Aerobics Research, Inc., 751 S.W.2d 860 (Tex. 1988).

A nursing home met the constitutional and statutory charitable exemption requirements by providing medical care without regard to ability to pay even though substantially more patients paid than those who did not. Because it restricted its assets to charitable functions and offered services to persons who would otherwise become burdens of the state, it qualified regardless of the religious motivations of its operators or its effect on a limited group. Texas Rule of Appellate Procedure 84 providing penalty for frivolous appeals does apply to a government agency. Dallas County Appraisal District v. the Leaves, Inc., 742 S.W.2d 426 (Tex. App.-Dallas 1988, writ denied).

Section 42.28 states that in appealing a district court's final judgment an appeal bond is not required of a chief appraiser, county, State Property Tax Board, or commissioners court. That provision is not applicable to a suit by a school district or other taxing unit to collect delinquent taxes. Section 42.28 applies only to those appeals from appraisal review board determinations as provided in ch. 42. Arnold v. Crockett Independent School District, 688 S.W.2d 884 (Tex. App.-Tyler 1985, no writ).

Sec. 42.29. Attorney's Fees.

(a) A property owner who prevails in an appeal to the court under Section 42.25 or 42.26 may be awarded reasonable attorney's fees. The amount of the award may not exceed the greater of:

(1) $15,000; or

(2) 20 percent of the total amount by which the property owner's tax liability is reduced as a result of the appeal.

(b) Notwithstanding Subsection (a), the amount of an award of attorney's fees may not exceed the lesser of:

(1) $100,000; or

(2) the total amount by which the property owner's tax liability is reduced as a result of the appeal.

Added by 1983 Tex. Laws, p. 5033, ch. 905, Sec. 1; amended by 1991 Tex. Laws, p. 2893, ch. 836, Sec. 4.1; amended by 1997 Tex. Laws, p. 1070, ch. 203, Sec. 2.

Cross References:

Taxpayers prevailing in cases of excessive and unequal appraisals, see Secs. 42.25 & 42.26.

Notes:

SB 772, 72nd Leg., 1991, applies only to an appeal for which a lawsuit was filed under Section 42.21, Tax Code, on or after the bill's effective date of September 1, 1991.

Since taxpayers must exhaust their administrative remedies in their property valuation protests under the Tax Code in each year before they are allowed to pursue court remedies, each appeal to the court represents a separate action. Therefore, Sec. 42.29 authorizes award of attorney's fees for each tax year at issue in a multi-year property tax case. Atascosa County Appraisal District v. Tymrak, 858 S.W.2d 335 (Tex. 1993).

A district court may order attorney's fees for each appeal of an ARB's final order included in one district court appeal. A court may award attorney's fees although an appeal was settled and did not go on to a trial. Granting attorney's fees against an appraisal district where there is no proof that the district acted in bad faith is not against public policy. Atascosa County Appraisal District v. Tymrak, 815 S.W.2d 364 (Tex. App.-San Antonio 1991), aff'd 858 S.W.2d 335 (Tex. 1993).

A taxpayer who successfully appeals the denial of 1-d-1 agricultural appraisal is not entitled to an award of attorney's fees. A suit protesting the determination that a property does not qualify for an exemption or special appraisal is not a protest of excessive appraisal or of unequal appraisal. Dallas CAD v. Seven Investment Company and Dallas CAD v. Las Colinas Corporation, 835 S. W. 2d 75 (Tex. 1992)

The sale of dome storage caverns are not subject to an appraisal separate from the surface land. Underground salt dome storage caverns do not constitute an estate or interest in land subject to taxation. Further, the caverns were not improvements subject to separate appraisal and taxation. The separate appraisal of mineral estates does not extend to other sub-surface properties. Despite the fact that these properties were adjudged not to be taxable, the Court held that because the trial court determined the taxpayer did not prevail, the issue of attorney's fees was not subject to appellate review. Coastal Liquids Partners, L.P. v. Matagorda County Appraisal District, 118 S.W.3d 464 (Tex. App.-Corpus Christi 2003, pet. filed).

The appraisal district did not establish that Tax Code Section 21.05 was exempting property in violation of the null-and-void clause. The statute establishes a method of valuation rather than an exemption from taxation. Tex-Air's equal protection challenge to Section 42.29 was rejected. Tex-Air Helicopters, Inc. v. Galveston County Appraisal Review Board and Galveston Central Appraisal District, No. 14-00-00869-CV (Tex. App. - Houston [14th Dist.] 2002).

Taxpayers need not raise all appraisal arguments to be used at trial in a protest before the appraisal review board. It is sufficient for jurisdictional purposes if values are alleged to be excessive. The plain language of the law concerning appraisal methodology for oil and gas property applied. Nothing in the jury instruction on fair market value of oil and gas property concerning exclusion of intangible personal property commented on the weight of the evidence and therefore the instruction was proper. Awards of attorney fees are mandatory under the law to the prevailing party. Zapata County Appraisal District v. Coastal Oil & Gas Corp., 90 S.W.3d 847 (Tex. App.-San Antonio 2002, pet. denied).

When the appraisal district failed to send notices of appraised value to a taxpayer for a number of years after the recording of deeds on purchased property, that failure of notice constituted a denial of due process, thus making the assessment of penalties and interest void. The fact that the taxpayer later paid the void taxes did not cause them to be unrecoverable. The voluntary payment rule cannot be applied to taxes imposed without due process. The award of attorney fees to the taxpayer was upheld as within the guidelines concerning declaratory judgments and was supported by evidence. Appraisal Review Board of the El Paso Central Appraisal District v. Fisher, 88 S.W.3d 807 (Tex. App.-El Paso 2002, pet. denied).

Property owner filed protests for two tax years and then entered into a written settlement agreement with the appraisal district, therefore it could not qualify for a change of value under Section 25.25(d), Allocation of value cannot properly be corrected using Section 25.25(c) and the grant of attorney fees is not required for an issue of allocation of value. Aramco Associated Company v. Harris County Appraisal District and Harris County Appraisal Review Board, 33 S.W.3d 361 (Tex. App. - Texarkana 2000).

When the issue is allocation of value, and not excessive appraisal, attorney fees may not be granted to the prevailing property owner. Tex-Air Helicopters v. Harris County Appraisal District, 15 S.W.3d 173 (Tex. App. - Texarkana 2000, petition denied).

A church, in a suit with an appraisal district and appraisal review board over the grant of a religious exemption, could not recover attorney's fees simply by characterizing the eventual grant of the exemption as the challenge to an excessive appraisal because of a decrease of the appraisal from two million dollars to zero. Attorney's fees are not warranted where the issue is to establish an exemption and not to rectify an unequal or excessive appraisal. Bexar County Appraisal Review Board v. First Baptist Church, 846 S.W.2d 554 (Tex. App.-San Antonio 1993, writ denied).

There was no duty on the part of the attorney for taxpayers to disclose in response to an interrogatory, the subject matter to which he, as an expert witness, would testify at trial. Therefore, the trial court erred in refusing to allow him to testify regarding attorney's fees. Yarborough v. Tarrant Appraisal District, 846 S.W.2d 552 (Tex. App.-Fort Worth 1993, no writ).

When taxpayer pays in full prior to trial all taxes, penalties and interest owed to the appellees, as a matter of law taxing units were not entitled to recover any attorney's fees from the taxpayer. Gano v. City of Houston, 834 S. W. 2d 585 (Tex. App.-Houston [14th Dist.] 1992, writ denied).

Taxpayer may recover attorney's fees in suit challenging denial of l-d-l agricultural appraisal. Dallas CAD v. Seven Investment Company and Dallas CAD v. Las Colinas Corporation, 813 S.W.2d 197 (Tex. App.-Dallas 1991), rev'd 835 S. W. 2d 75 (Tex. 1992).

Taxpayer may recover attorney's fees in case challenging denial l-d-l agricultural appraisal. Dallas CAD v. Seven Investment Company and Dallas CAD v. Las Colinas Corporation, 813 S.W.2d 197 (Tex. App.-Dallas 1991), rev'd 835 S. W. 2d 75 (Tex. 1992)

Attorneys' fees are recoverable in cases involving a taxpayer's qualification for l-d-l agricultural appraisal. May v. Appraisal Review Board of Tarrant Appraisal District, 794 S.W.2d 906 (Tex. App.-Ft. Worth 1990, writ denied).

Attorney's fees are not recoverable in a suit challenging denial of agricultural appraisal. Denial of agricultural appraisal is neither excessive appraisal or unequal appraisal as required by the statute. Kerr Central Appraisal District v. Stacy, 775 S.W.2d 739 (Tex. App.-San Antonio 1989, writ denied).

Trial court may not grant unlimited attorney's fees in a declaratory judgment action concerning a Tax Code provision. Section 42.29 limitations cannot be circumvented by bringing an action for declaratory judgment. City of Laredo v. South Texas National Bank, et al., 775 S.W.2d 729 (Tex. App.-San Antonio 1989, writ denied).

Oil pipeline companies are subject to taxes on intangible value of oil pipeline operations, but not on oil product or liquefied petroleum gas operations; statute permits award of reasonable attorney fees where taxpayer successfully claims excessive or unequal appraisal, but not where taxpayer claims property is not taxable. Coastal States Crude Gathering Company v. State Property Tax Board, 747 S.W.2d 61 (Tex. App.-Austin 1988, no writ).

[Sections 42.30 to 42.40 reserved for expansion]