Robert Leftwich v. City of Harlingen, Texas and Mayor Chris Boswell, in His Official Capacity ( 2021 )

NUMBER 13-20-00110-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERT LEFTWICH, Appellant,
v.
CITY OF HARLINGEN, TEXAS
AND MAYOR CHRIS BOSWELL,
IN HIS OFFICIAL CAPACITY, Appellees.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
Appellant Robert Leftwich appeals the trial court’s dismissal of his lawsuit against
appellees City of Harlingen, Texas (City) and Mayor Chris Boswell, in his Official
Capacity. By three issues, appellant contends the trial court erred by granting appellees’
plea to the jurisdiction on the basis of governmental immunity because (1) several
statutes waive immunity in the present suit; (2) the City’s motion to enact a tax ordinance
was not in compliance with the applicable statutes; and (3) the City’s alleged Texas Open
Meetings Act (TOMA) violations constituted a violation of appellant’s First Amendment
right to free speech. We affirm.
I. BACKGROUND
This case stems from the City adopting two ordinances raising property taxes on
September 17, 2019. According to appellant’s fourth amended petition, appellees
committed several missteps in adopting the tax ordinances. Specifically, appellant alleges
the following violations: (1) the published notice failed to conform to the “date, time[,] and
location” requirements of Texas Local Government Code § 140.010(c), (e), see TEX.
LOCAL GOV’T CODE ANN. § 140.010(c), (e); (2) appellees failed to meet the deadline to
adopt the tax rate prescribed by Texas Tax Code § 26.06(e), see TEX. TAX CODE ANN.
§ 26.06(e) (requiring vote on proposed tax rate “not be earlier than the third day or later
than the [fourteenth] day after the date of the second public hearing”); (3) appellees
violated TOMA by not allowing public comment “before or during” the consideration of the
of the tax ordinances agenda items at the September 4 hearing, see TEX. GOV’T CODE
ANN. § 551.007(b); (4) appellees’ failed to provide notice of the date, time, and place that
2
the City would vote on the ordinances at either the August 7 or August 21 hearings
pursuant to Texas Tax Code § 26.06, see TEX. TAX CODE ANN. § 26.06(d); (5) appellees
failed to post the required notices on the City’s website pursuant to Texas Tax Code
§§ 26.05(a), (c), (d), 26.06(c), see TEX. TAX CODE ANN. §§ 26.05(a), (c), (d), 26.06(c); and
(6) appellees failed to comply with the form requirements of Texas Tax Code § 26.05(b)
when it adopted the tax ordinances, see TEX. TAX CODE ANN. § 26.05(b) (providing that
“[a] motion to adopt an ordinance, resolution, or order setting a tax rate that exceeds the
effective tax rate must be made in” a particular form).
Appellant’s prayer for relief requested: (1) a temporary injunction prohibiting the
enforcement of the tax ordinances and future TOMA and tax code violations; (2) a
declaratory judgment that appellees violated TOMA and Texas Local Government Code
§ 140.010; (3) a declaratory judgment “declaring that the [o]rdinances are invalid and void
ab initio”; (4) “[a] permanent injunction: (a) preventing [appellees] from effectuating,
enforcing, or taking any action in furtherance of the [o]rdinances; and (b) requiring
defendants to comply with [TOMA] and the Texas Tax Code”; and (5) attorney’s fees and
court costs incurred in connection with the suit.
Appellees filed a plea to the jurisdiction, challenging the jurisdictional facts upon
which appellant’s suit is predicated. Appellees argued that appellant’s factual allegations
were not supported by the evidence and challenged each alleged violation therein.
Appellees’ plea included multiple exhibits, including: (1) July 11th and 19th city
commission budget workshop agendas; (2) agenda, minutes, and audio for the July 24th
commission meeting; (3) notices published in a newspaper on July 23rd, 26th, and 30th,
3
containing information about the public meetings; (4) agenda, minutes, citizen sign-up
sheet, and video of the August 7th commission meeting; (5) agenda, minutes, citizen
sign-up sheet, and video of the August 21st commission meeting; (6) agenda, citizen
sign-up sheet, and video of the September 4th commission meeting; (7) agenda, citizen
sign-up sheet, and audio of the September 17th commission meeting; 1 (8) City of
Harlingen Charter; (9) City of Harlingen Rules–Resolution 99R-4; and (10) authenticating
affidavits of Amanda Elizondo, Elvia Trevino, and Sergio Mujica. Appellees also
requested the trial court “take judicial notice of the official content [of the City’s website],
especially given that it would be too voluminous to submit as an attached exhibit.” Mujica’s
affidavit included sworn statements authenticating portions of the City’s website, with five
URL links to notices posted by the City. 2
The jurisdictional record shows that on July 30, 2019, the City published a notice
in a local paper regarding the proposed tax rate increase, notifying the public of the
proposal and two upcoming hearings scheduled on August 7th and August 21st to discuss
the tax rate. The entire notice appeared as follows:
1 Appellees noted that the minutes for the September 4 and 17 meetings had not been approved
at the time appellees filed their plea but the “[m]inutes [would] be supplemented when approved.” The
minutes were supplemented along with the transcription from the September 17 meeting prior to the hearing
on the City’s plea to the jurisdiction.
2 At the time of this opinion, the links to the notices yielded a “page not found” error; the notices
were not independently included in the record. See TEX. R. APP. P. 34.1.
4
The August 7th and August 21st hearings proceeded as scheduled. At the
meetings, the City permitted public comment, during which time appellant and other
interested persons provided comments in opposition to the City’s proposed tax increase.
On September 4th, the City performed the first reading of the proposed ordinance for ad
5
valorem tax rates for maintenance and operation without public comment prior to the
agenda item. However, after a commissioner moved to adopt the ordinance, Boswell
asked, “Is there any discussion?” and received no response. Immediately after, the City
performed the first reading of the proposed ordinance for the ad valorem tax rates for the
interest and sinking fund. Boswell similarly asked, “Is there any discussion?” to which no
person responded. Both readings passed. At the end of the meeting, the City opened the
floor to public comment, calling on those who had signed the “citizen communication sign-
up sheet” for the September 4 hearing. The sheet stated “[t]his is a sign[-]up sheet for any
item that IS NOT ON THE AGENDA for action.” Appellant had signed his name on the
sign-up sheet but left the meeting prior to the citizen comment portion of the meeting.
The City’s charter requires the commission to perform two readings of any
proposed ordinance before it can adopt the ordinance. Accordingly, the City did not adopt
the ordinances on September 4. The City held a specially-called meeting on September
17 and the sole agenda item was the proposed tax increases. After public comment, a
city commissioner, later identified as Commissioner Michael Mezmar, can be heard
calling for a record vote. The motion passed unanimously.
Following a hearing on appellees’ plea to the jurisdiction, the trial court granted the
plea and dismissed appellant’s suit in its entirety. Appellant filed a request for findings of
fact and conclusions of law. The trial court issued twenty-three findings of fact and sixty-
six conclusions of law. Among the findings of fact is a finding that the City posted a notice
on the homepage of its website containing a statutorily-required notice, following the
adoption of the new tax ordinances.
6
Appellant filed a request for additional and amended findings of fact, specifically
challenging the trial court’s findings that the City complied with the notice requirements of
Texas Local Government Code § 140.010(b), (e), and (f)(1). See TEX. LOCAL GOV’T CODE
ANN. § 140.010(b), (e), (f)(1). Appellant further requested conclusions “35-47 . . . be
struck based on the above facts” and asserted “48-60 are obviated as a matter of law” by
Texas Tax Code § 26.06(e). See TEX. TAX CODE ANN. § 26.06(e). Appellant filed an
additional motion for leave to attach other findings on the request for additional and
amended findings and conclusions. In his motion for leave, appellant requested the trial
court to amend additional findings of fact by deleting them from the trial court’s findings.
Appellant also requested specific language be amended for other facts and for the trial
court to strike various conclusions of law. Appellant did not challenge a finding that the
City posted the notice regarding the adopted tax increase on the homepage of its website.
Finally, appellant filed a motion for new trial. The trial court denied appellant’s
motion for new trial and failed to rule on his requests for additional or amended findings
of fact and conclusions of law. This appeal followed.
II. STANDARD OF REVIEW
“Local governmental entities ‘enjoy governmental immunity from suit, unless
immunity is expressly waived.’” Lubbock Cnty. Water Control & Imp. Dist. v. Church &
Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014) (quoting Kirby Lake Dev., Ltd. v. Clear
Lake City Water Auth., 320 S.W.3d 829, 836 (Tex. 2010)). “Governmental immunity
includes both immunity from liability, ‘which bars enforcement of a judgment against a
governmental entity, and immunity from suit, which bars suit against the entity
7
altogether.’” Id. The City is a local governmental entity. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(3)(B); City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994).
Immunity is not waived absent “clear and unambiguous language” waiving immunity. TEX.
GOV’T CODE ANN.§ 311.034; Tex. Nat. Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849,
854–55 (Tex. 2002). If a political subdivision of the State enjoys governmental immunity
from the plaintiff’s claims, the trial court does not have subject matter jurisdiction to
entertain the suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26
(Tex. 2004). Whether a court has subject matter jurisdiction is a question of law, which
we review de novo. Id. at 226.
A plea to the jurisdiction is a procedural tool used to challenge a court’s authority
to determine the subject matter of the cause of action. Tarrant Cnty. Coll. Dist. v. Sims,
621 S.W.3d 323, 327 (Tex. App.—Dallas 2021, no pet.). “When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has alleged facts that affirmatively
demonstrate the court’s jurisdiction to hear the cause.” Miranda, 133 S.W.3d at 226. We
will liberally construe the pleadings and look to the pleader’s intent. Id. “However, if a plea
to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant
evidence submitted by the parties when necessary to resolve the jurisdictional issues
raised, as the trial court is required to do.” Id. at 227.
If the evidence creates a fact question, the plea to the jurisdiction should not be
granted, and the fact issue should be resolved by the trier of fact. Id. at 228. If, on the
other hand, the relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court should rule on the plea to the jurisdiction as a matter of
8
law. Id. This standard generally mirrors that of summary judgment. Id.; see generally TEX.
R. CIV. P. 166a(c). Accordingly, the governmental unit carries the initial burden. Miranda,
133 S.W.3d at 228. “[A]fter the [governmental unit] asserts and supports with evidence
that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when
the facts underlying the merits and subject matter jurisdiction are intertwined, to show that
there is a disputed material fact regarding the jurisdictional issue.” Id. “When reviewing a
plea to the jurisdiction in which the pleading requirement has been met and evidence has
been submitted to support the plea that implicates the merits of the case, we take as true
all evidence favorable to the nonmovant.” Id. “We indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.” Id.
However, “suits to require state officials to comply with statutory or constitutional
provisions are not prohibited by sovereign immunity . . . .” City of El Paso v. Heinrich, 284
S.W.3d 366, 372 (Tex. 2009). “To fall within this ultra vires exception, a suit must not
complain of a government officer’s exercise of discretion, but rather must allege, and
ultimately prove, that the officer acted without legal authority or failed to perform a purely
ministerial act.” Id.III. APPLICABLE LAW
The pertinent facts giving rise to this suit occurred between July 30, 2019, and
September 17, 2019. Accordingly, to the extent any laws have been amended, we refer
to and apply the laws applicable on those dates.
A. Uniform Declaratory Judgment Act
The Uniform Declaratory Judgment Act (UDJA) “does not contain a general waiver
9
of sovereign immunity.” Town of Shady Shores v. Swanson, 590 S.W.3d 544, 552 (Tex.
2019). However, under the UDJA,
A person interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal relations are
affected by a statute, municipal ordinance, contract, or franchise may have
determined any question of construction or validity arising under the
instrument, statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder.
TEX. CIV. PRAC. & REM. CODE ANN.§ 37.004(a). Further, “[f]or claims challenging the
validity of ordinances or statutes . . . the [UDJA] requires that the relevant governmental
entities be made parties, and thereby waives immunity.” Heinrich, 284 S.W.3d at 373,
n.6 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b)).
B. Texas Open Meetings Act
TOMA states that “[e]very regular, special, or called meeting of a governmental
body shall be open to the public.”3 TEX. GOV’T CODE ANN. § 551.002. A “governmental
body” includes “a municipal governing body in the state.” Id. § 551.001(3)(C). Effective
September 1, 2019, “[a] governmental body shall allow each member of the public who
desires to address the body regarding an item on an agenda for an open meeting of the
body to address the body regarding the item at the meeting before or during the body's
consideration of the item.” Id. § 551.007(b). “An action taken by a governmental body in
violation of [TOMA] is voidable.” Id. § 551.141. “An interested person . . . may bring an
action by mandamus or injunction to stop, prevent, or reverse a violation or threatened
violation of this chapter by members of a governmental body.” Id. § 551.142(a).
3Certain exceptions, not applicable to the present case, do not require open meetings. See TEX.
GOV’T CODE ANN. §§ 551.071–.090.
10
However, TOMA’s waiver of sovereign immunity only extends to mandamus or
injunctive relief for actual or threatened violations of TOMA, not to suits for declaratory
relief. Swanson, 590 S.W.3d at 554. For portions of the notice provisions of TOMA, the
Supreme Court of Texas has held that substantial compliance with the act is sufficient so
long as the notice “would alert a reader to the fact that some action would be considered”
for the particular agenda item. Cox Enters., Inc. v. Bd. of Trs. of Austin Indep. Sch. Dist.,
706 S.W.2d 956, 958 (Tex. 1986) (quoting Lower Colorado River Auth. v. City of San
Marcos, 523 S.W.2d 641, 646 (Tex. 1975)). Additionally, the location of a meeting may
be sufficient without including the full street address, name of the city, or meeting room,
so long as the notice sufficiently apprises the plaintiffs of the location. Terrell v. Pampa
Indep. Sch. Dist., 572 S.W.3d 294, 299–300 (Tex. App.—Amarillo 2019, pet. denied)
(holding “Pampa High School” was sufficient to designate the meeting location where
there was no evidence that the lack of specificity prevented any persons from attending
the meeting). However, other provisions of the notice requirements, such as date, time,
accessibility, and location of the notice, require strict compliance. Smith County v.
Thornton, 726 S.W.2d 2, 3 (Tex. 1986) (requiring strict compliance that notice be “readily
accessible to the general public for at least 72 hours preceding” the meeting in question).
C. Municipal Tax Provisions
Former Texas Local Government Code § 140.010(c) states that a municipality that
provides notice under § 140.010(c) “is exempt from the notice and publication
requirements of Sections 26.04(e), 26.052, and 26.06, Tax Code, as applicable, and is
not subject to an injunction for failure to comply with those requirements.” Acts 2015, 84th
11
Leg., ch. 546 (H.B. 1953), § 1, eff. Jan. 1, 2016 (repealed 2020)4. Section 140.010(e)
contains the requirements for publication notice for proposed tax rates that exceed the
lower of the effective tax rate or the rollback tax rate, which the instant proposal did. TEX.
LOCAL GOV’T CODE ANN. § 140.010(e). Relevant to the dispute, § 140.010(e) required the
notice to contain the date, time, and location of two meetings at which the proposed tax
increase will be discussed. Id.
Former § 26.04(e) of the Texas Tax Code required a designated officer or
employee to submit the tax rates to the governing body and mail to each property owner,
or publish in a newspaper, necessary information related to the tax increase and
accompanying budget. Acts 2015, 84th Leg., ch. 465 (S.B. 1), § 4, eff. June 15, 2015
(amended by Acts 2019, 86th Leg., ch. 944 (S.B. 2), §§ 35, 36) (current version at TEX.
TAX CODE ANN. § 26.04(e)).
A person who owns taxable property is entitled to an injunction prohibiting
the taxing unit in which the property is taxable from adopting a tax rate if the
assessor or designated officer or employee of the unit, as applicable, has
not complied with the computation or publication requirements of this section
and the failure to comply was not in good faith.
Id. § 26.04(g).
Former § 26.05(b)(2) of the Texas Tax Code required the taxing unit to include a
notice on the homepage of the unit’s webpage that contains:
(A) the following statement: “(Insert name of unit) ADOPTED A TAX RATE
THAT WILL RAISE MORE TAXES FOR MAINTENANCE AND
OPERATIONS THAN LAST YEAR'S TAX RATE”; and
(B) if the tax rate exceeds the effective maintenance and operations rate,
the following statement: “THE TAX RATE WILL EFFECTIVELY BE
4 Due to numerous repealed or amended acts contained within this opinion, after the initial citation
we will refer to each statute by the code and section number rather than legislative act for clarity.
12
RAISED BY (INSERT PERCENTAGE BY WHICH THE TAX RATE
EXCEEDS THE EFFECTIVE MAINTENANCE AND OPERATIONS
RATE) PERCENT AND WILL RAISE TAXES FOR MAINTENANCE
AND OPERATIONS ON A $100,000 HOME BY APPROXIMATELY
$(Insert amount).”
Acts 2015, 84th Leg., ch. 481 (S.B. 1760), § 5, eff. Jan. 1, 2016 (amended by Acts 2019,
86th Leg., ch. 944 (S.B. 2), § 46) (current version at TEX. TAX CODE ANN. § 26.05(b)(2)).
Further, when moving to adopt the ordinance, the following form is required: “I move that
the property tax be increased by the adoption of a tax rate of (specify tax rate), which is
effectively a (insert percentage by which the proposed tax rate exceeds the effective tax
rate) percent increase in the tax rate.” Id. § 26.05(b). Further, the taxing unit must hold
two public hearings on the proposed tax rate and “otherwise compl[y] with Section 26.06
. . . .” Id. § 26.05(d). “A person who owns taxable property is entitled to an injunction
restraining the collection of taxes by a taxing unit in which the property is taxable if the
taxing unit has not complied with the requirements of this section and the failure to comply
was not in good faith.” Id. § 26.05(e).
Former § 26.06(e) of the Texas Tax Code required:
The meeting to vote on the tax increase may not be earlier than the third
day or later than the 14th day after the date of the second public hearing.
The meeting must be held inside the boundaries of the taxing unit in a
publicly owned building or, if a suitable publicly owned building is not
available, in a suitable building to which the public normally has access. If
the governing body does not adopt a tax rate that exceeds the lower of the
rollback tax rate or the effective tax rate by the 14th day, it must give a new
notice under Subsection (d) before it may adopt a rate that exceeds the
lower of the rollback tax rate or the effective tax rate.
Acts 2015, 84th Leg., ch. 481 (S.B. 1760), § 6, eff. Jan. 1, 2016 (amended by Acts 2019,
86th Leg., ch. 944 (S.B. 2), § 48, eff. Jan. 1, 2020) (current version available at TEX. TAX
13
CODE ANN. § 26.06(e)).
IV. ANALYSIS
By his first issue, appellant asserts various waivers of immunity for the City. Those
assertions include inapplicable waivers under Texas Civil Practice and Remedies Code
§§ 101.0215(26) and 101.025(a). See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 101.0215(26), 101.025(a). Specifically, appellant cites to Chapter 101 of the Texas
Civil Practice and Remedies Code, the Texas Tort Claims Act (TTCA), which only waives
immunity for torts arising for “property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of an employee acting within
his scope of employment . . . .” Id. § 101.021. Because appellant has not asserted such
claims, waivers of immunity under the TTCA are inapplicable. See id.
Appellant further asserts that injunctive relief pursuant to Texas Civil Practice and
Remedies Code § 65.011 constitutes a waiver of immunity. See TEX. CIV. PRAC. & REM.
CODE § 65.011. However, a waiver of immunity is not found within Chapter 65. See TEX.
GOV’T CODE ANN. § 311.034; It-Davy, 74 S.W.3d at 854–55. Accordingly, our analysis will
focus on the waivers contained in TOMA, UDJA, the municipal tax provisions, and the
jurisdictional facts challenged by appellees therein. See TEX. GOV’T CODE ANN.
§ 551.142(a); TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a); TEX. TAX CODE ANN.
§§ 26.04(g), 26.05(e).
A. Uniform Declaratory Judgment Act
The UDJA waives immunity to permit an interested person to challenge the validity
of an ordinance. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a); Heinrich, 284
14
S.W.3d at 372. In the present suit, appellant sought a judgment “declaring that the
[o]rdinances are invalid and void ab initio” due to appellees’ alleged TOMA and tax code
violations. Appellees, in response, filed a plea to the jurisdiction asserting the jurisdictional
facts do not support appellant’s claims and attached evidence they claim support their
position. As such, we review the jurisdictional facts as they relate to appellees’ alleged
violations of TOMA and the relevant tax provisions to determine whether appellant is
entitled to the declaratory relief for which he seeks. Cf. Miranda, 133 S.W.3d at 227. As
discussed infra, we conclude that the jurisdictional record does not establish a violation
of TOMA or the tax code.
B. TOMA
The sole alleged TOMA violation occurred on September 4 during the City’s
consideration of the two ad valorem tax ordinances when the City voted to approve the
first reading. However, Boswell is clearly heard on camera, prior to the final vote on the
first reading of each ordinance, asking for discussion. Assuming, arguendo, that Boswell’s
call for discussion was not clearly directed to the public, appellant would remain
unsuccessful. The ordinances were not adopted until September 17. Only an action taken
in violation of TOMA is voidable. TEX. GOV’T CODE ANN. § 551.141; Foreman v. Whitty,
392 S.W.3d 265, 277 (Tex. App.—San Antonio 2012, no pet.); see Tex. State Bd. of Pub.
Acct. v. Bass, 366 S.W.3d 751, 761 (Tex. App.—Austin 2012, no pet.) (“[P]roving that a
meeting violated the Act does not necessarily render voidable all related subsequent
actions by a governmental body[.]”); Hill v. Palestine Indep. Sch. Dist., 113 S.W.3d 14, 17
(Tex. App.—Tyler 2000, pet denied) (holding a deliberation that violated TOMA did not
15
render voidable a subsequent vote held in compliance with TOMA). Because the vote to
adopt the ordinances did not occur until September 17, a meeting not alleged to have
violated TOMA, appellant is not entitled to the relief he seeks—an injunction against the
collection of taxes pursuant to the ordinances adopted on September 17. See TEX. GOV’T
CODE ANN. § 551.141; Foreman, 392 S.W.3d at 277. Accordingly, the jurisdictional facts
do not support a waiver of immunity under TOMA. Miranda, 133 S.W.3d at 228. Further,
appellees maintain immunity against appellant’s request for a declaratory judgment under
TOMA. Swanson, 590 S.W.3d at 554. Appellant’s first issue as to TOMA violations is
overruled.
C. Municipal Tax Codes
Appellant next argues appellees failed to comply with Texas Local Government
Code § 140.010 because the notice simply stated the meetings would be held at “Town
Hall” rather than including “an address in the city where the public would congregate.”
See TEX. GOV’T CODE ANN. § 140.010(e) (requiring notice of “location of meeting”).
However, it is important to note that appellant does not allege that the notice
caused him to miss either of the meetings, and it is undisputed that appellant made it to
each meeting. Cf. Terrell, 572 S.W.3d at 299–300 (holding notice of meeting at “Pampa
High School” was sufficient for TOMA’s location requirements). We conclude that the
notice sufficiently apprised appellant of the meeting location and met the requirement to
state the “location of meeting” in the publication. See TEX. LOCAL GOV’T CODE ANN
§ 140.010(e).
Appellant also asserts the notice was not compliant because “[appellees] didn’t
16
place it twice as they should have for [two] separate hearings.” However, a requirement
that the notice be published twice does not exist within § 140.010. See id. § 140.010.
Because we have concluded that appellees’ notice complied with § 140.010(e), appellees
are “exempt from the notice and publication requirements of Sections 26.04(e), 26.052,
and 26.06, [of the Texas] Tax Code” and “[are] not subject to an injunction for failure to
comply with those requirements.” See TEX. LOCAL GOV’T CODE ANN. § 140.010(c).
Nevertheless, appellant asserts that the timing requirements of § 26.06(e) are not
“notice and publication requirements” as contemplated and thus appellees were still
required to comply. Accordingly, we must determine whether § 140.010(c) exempted
appellees from compliance with the timing requirements of Texas Tax Code § 26.06(e).
See TEX. TAX CODE ANN. § 26.06(e). Under § 26.06(e) of the Texas Tax Code, the City
was required to hold a meeting to vote on the tax ordinances not “earlier than the third
day or later than the [fourteenth] day after the date of the second public hearing.” See id.
The second meeting was held on August 21. As such, the earliest the City could have
held the meeting to vote on the ordinance was August 24 while the latest was September
4. See id. However, any failure to do so only requires the City to post additional notice
under § 26.06(d). See id. Because the City was already exempt from the notice
requirements of § 26.06(d), any failure to vote within the prescribed time frame is
harmless. See TEX. LOCAL GOV’T CODE ANN. § 140.010(c). Further, § 26.06(e) provides
no authority for a court to enjoin the collection of taxes for failure to comply with
§ 26.06(e). Compare TEX. TAX CODE ANN. § 26.06 with id. § 26.04(g) (providing for
injunctive relief for failure to comply with the provisions of §26.04). Accordingly, appellant
17
is not entitled to the relief for which he seeks under this alleged violation of the Texas Tax
Code. As such, immunity has not been waived.
Appellant also alleges that appellees failed to follow the specific language
requirement when it moved to adopt the tax ordinances. See TEX. TAX CODE ANN.
§ 26.05(b). Section 26.05(b) mandates:
A motion to adopt an ordinance, resolution, or order setting a tax rate that
exceeds the effective tax rate must be made in the following form: “I move
that the property tax rate be increased by the adoption of a tax rate of
(specify tax rate), which is effectively a (insert percentage by which the
proposed tax rate exceeds the effective tax rate) percent increase in the tax
rate.”
Id. According to appellant, the movant for the vote should have stated “I move that the
property tax rate be increased by the adoption of a tax rate of .630000, which is effectively
a 9.81 percent increase in the tax rate.” However, “.630000” alone is not a tax rate. A tax
rate should either be expressed as a percentage or as one amount calculated per another
amount (example $0.630000 per $100). See, e.g., TAX RATE, Black’s Law Dictionary (11th
ed. 2019). Further, our review of the record reveals that Commissioner Mezmar stated, “I
move that the property tax rate be increased by the adoption of a tax rate of 0.63000 per
$100 assessed, which is effectively a 9.81 percent increase in the tax rate.”
Commissioner Mezmar’s recitation of the motion matches verbatim the statutory
requirement. See TEX. TAX CODE ANN. § 26.05(b). We conclude that the jurisdictional
record does not establish a violation of the tax code.
In his fourth amended petition appellant asserted that appellees failed to comply
with the website notice requirements of Texas Tax Code §§ 26.05(a), (c), (d), 26.06(c).
However, Texas Tax Code § 26.05(a), (c) and (d) do not contain requirements to post
18
any notices on the City’s webpage. As discussed supra, appellees were exempt from the
notice and publication requirements of § 26.06(c). See TEX. LOCAL GOV’T CODE ANN.
§ 140.010(c). On appeal, appellant broadly asserts that the information published on the
City’s website “should have been on the website home page, by September 5, 2019,
when they should have concluded the tax rate adoption.” Although it is unclear what
statute would require such posting, we note that the record establishes that the City
posted the following notice to its homepage:
2019 Tax Ordinance Announcement
THE CITY OF HARLINGEN ADOPTED A TAX RATE THAT WILL RAISE
MORE TAXES FOR MAINTENANCE AND OPERATIONS THAN LAST
YEAR’S TAX RATE.
THE TAX RATE WILL EFFECTIVELY BE RAISED BY 12.19 PERCENT
AND WILL RAISE TAXES FOR MAINTENANCE AND OPERATIONS ON
A $100,000 HOME BY APPROXIMATELY $56.30.
As appellant notes, “[n]o longer is the information posted on the homepage.” However,
appellant failed to present evidence that would raise a fact issue as to whether the City
previously posted the notice to the website. We conclude this language meets the
requirements of Texas Tax Code § 26.05(b)(2), which requires the notice be published
after the ordinance is adopted. See TEX. TAX CODE ANN. § 26.05(b)(2). As such, we find
no support for appellant’s assertion that the announcement “should have been on the
website homepage by September 5, 2019 . . . .” Accordingly, appellant’s first issue as it
relates to the municipal tax provisions is overruled.
We conclude that the jurisdictional record establishes no statutory violation that
would support a waiver of the City’s immunity. See Miranda, 133 S.W.3d at 228.
19
Appellant’s first and second issues are overruled. Because we conclude immunity was
not waived, we decline appellees’ invitation to determine that appellant lacked standing
as it is not necessary to the resolution of the appeal.
V. FIRST AMENDMENT VIOLATION
By his third issue, appellant broadly asserts “[First] Amendment free speech rights
have TOMA backing since September 1, 2019 . . . .” An appellant’s argument “must
contain a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record.” TEX. R. APP. P. 38.1(i). “However, briefs must also ‘be
liberally, but reasonably, construed so that the right to appeal is not lost by waiver.’” Lion
Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732 (Tex. 2020) (per
curiam) (quoting Horton v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019) (per curiam)). When
determining whether a matter has been adequately briefed, we are instructed “to look not
simply at the wording of parties’ issues, but also the arguments, evidence, and citations
relied on . . . .” Id. at 733 Failure to adequately brief an issue may result in waiver of the
complaint. RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 126 (Tex. 2018); see also
H&H Sand & Gravel, Inc. v. Suntide Sandpit, Inc., No. 13-17-00510-CV, 2019 WL
2293585, *7 (Tex. App.—Corpus Christi–Edinburg May 30, 2019, pet. denied) (mem. op.).
Here, appellant merely recites various historical facts and concludes “[p]roperty
taxes are vital” and “so is free speech.” Appellant provides no authority in support of his
claim, nor “a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” See TEX. R. APP. P. 38.1(i); RSL Funding, 569
S.W.3d at 126. Appellant’s third issue is overruled as waived.
20
VI. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Delivered and filed on the
9th day of September, 2021.
21