Scott Ralph Wheelock AKA Scott Wheelock v. Kerr County, Headwaters Groudwater Conservation District, Kerr County Emergency Services District 2, Kerr County Lateral Roads, Upper Guadalupe River Authority, Harper Independent School District ( 2023 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00349-CV
Scott Ralph WHEELOCK aka Scott Wheelock,
Appellant
v.
KERR COUNTY, Headwaters Groundwater Conservation District, Kerr County Emergency
Services District #2, Kerr County Lateral Roads, Upper Guadalupe River Authority, Harper
Independent School District,
Appellees
From the County Court at Law, Kerr County, Texas
Trial Court No. 21317A
Honorable Rex Emerson, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: February 22, 2023
AFFIRMED; MOTION TO SHOW AUTHORITY DENIED
Appellant Scott Ralph Wheelock challenges a delinquent property tax judgment in favor
of appellees Kerr County, Headwaters Groundwater Conservation District, Kerr County
Emergency Services District #2, Kerr County Lateral Roads, Upper Guadalupe River Authority
(collectively, the Kerr County taxing entities), and Harper Independent School District. We affirm
the trial court’s judgment and deny Wheelock’s December 28, 2022 motion to show authority.
04-22-00349-CV
BACKGROUND
In 1992, Wheelock purchased a ten-acre tract of land in Kerr County from the Veterans
Land Board of the State of Texas. Wheelock asserts that he lived on the property and paid property
taxes on the ten-acre tract and a manufactured home located on the tract until 2010, when he
became disabled and began receiving Social Security disability payments.
On May 26, 2021, the Kerr County taxing entities filed an original petition in the 216th
Judicial District Court of Kerr County against Wheelock and the VLB, alleging that delinquent ad
valorem taxes, penalties, and interest were owed on the ten-acre tract for tax years 2011–2020 and
on the manufactured home for tax years 2015–2020. Wheelock, who is now incarcerated, was
served with the Kerr County taxing entities’ petition on July 1, 2021.
On June 24, 2021, Harper ISD filed a petition in intervention. Like the Kerr County taxing
entities, Harper ISD alleged that Wheelock and/or the VLB owed delinquent taxes, penalties, and
interest on the ten-acre tract and manufactured home. While the record does not indicate when
Wheelock was served with Harper ISD’s petition in intervention, Wheelock filed several pro se
motions and letters responding to the claims of both the Kerr County taxing entities and Harper
ISD.
On April 4, 2022, the VLB filed a plea to the jurisdiction arguing that it was immune from
suit. Both the Kerr County taxing entities and Harper ISD filed motions to voluntarily dismiss their
claims against the VLB, and on April 13, 2021, the trial court signed interlocutory orders granting
the motions to dismiss. The lawsuit proceeded against Wheelock alone, and trial was set for May
24, 2022. Wheelock filed a written acknowledgment that he received notice of the trial date, and
he notified the trial court that he “may not be present” due to his incarceration.
-2-
04-22-00349-CV
On May 24, 2022, the trial court held a bench trial in this case. The Kerr County taxing
entities and Harper ISD presented certified account statements showing the delinquent taxes,
penalties, and interest attributable to the ten-acre tract and manufactured home, and the trial court
admitted those records into evidence. The records also showed the most recent assessed values for
both properties and indicated that no exemptions had been applied to either property. Wheelock,
who did not appear at the trial either personally or through counsel, did not present any evidence.
At the conclusion of the trial, the court signed a judgment in favor of the Kerr County
taxing entities and Harper ISD that was consistent with the account statements admitted into
evidence. The judgment decreed that Wheelock owed a total of $25,900.06 in “delinquent taxes,
penalties, interest, and costs allowed by law”; found that the manufactured home had a market
value of $13,139 and the ten-acre tract had a market value of $125,652; placed a tax lien on the
manufactured home and the ten-acre tract; and ordered the property sold to satisfy the lien.
Wheelock filed a motion for new trial, which was overruled by operation of law. He then timely
filed this appeal.
ANALYSIS
Because Wheelock is acting pro se on appeal, we liberally construe his brief. See, e.g.,
Smith v. DC Civil Constr., 521 S.W.3d 75, 76 (Tex. App.—San Antonio 2017, no pet.) (per
curiam). Nevertheless, we hold pro se litigants “to the same standards as licensed attorneys and
require them to comply with the applicable rules of procedure.” Dunlap v. Trois, No. 04-19-00488-
CV, 2020 WL 7633952, at *2 (Tex. App.—San Antonio Dec. 23, 2020, no pet.) (mem. op.). We
construe Wheelock’s brief as raising five challenges to the trial court’s judgment: (1) the trial court
lacked subject matter jurisdiction over this dispute; (2) the taxes, penalties, and interest listed in
the judgment are erroneous; (3) the judgment is void due to the trial court’s interlocutory dismissal
-3-
04-22-00349-CV
of the VLB; (4) the trial court judge who signed the judgment should have recused himself; and
(5) the Kerr County taxing entities’ attorneys failed to respond to Wheelock’s motion to show
authority.
Subject Matter Jurisdiction
Wheelock’s primary argument is that the trial court lacked subject matter jurisdiction over
this dispute. “Subject matter jurisdiction concerns the kinds of controversies a court has the
authority to resolve as determined by the constitution, jurisdictional statutes, and the pleadings.”
Taylor v. Speck, 308 S.W.3d 81, 84 (Tex. App.—San Antonio 2010, no pet.). We review a
challenge to the trial court’s subject matter jurisdiction de novo. See, e.g., In re A.R.G., 645 S.W.3d
789, 794 (Tex. App.—San Antonio 2022, no pet.).
Wheelock argues the Kerr County taxing entities and Harper ISD collect taxes in two
separate counties—Kerr County and Gillespie County—and, as a result, their claims against him
needed to be resolved in the county seat of each respective county. As support, Wheelock relies
on article V, section 7 of the Texas Constitution, which provides, “A District Court shall conduct
its proceedings at the county seat of the county in which the case is pending, except as otherwise
provided by law.” TEX. CONST. art. V, § 7(d).
This constitutional provision does not present a jurisdictional impediment to the trial
court’s authority to resolve this dispute. Texas district courts have jurisdiction over “all actions,
proceedings, and remedies, except in cases where” jurisdiction is conferred on another tribunal by
constitution or statute. TEX. CONST. art. V, § 8; see also TEX. GOV’T CODE ANN. § 24.007; Subaru
of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). The Texas Tax Code
provides that a suit to collect delinquent property taxes or to foreclose on a lien securing payment
of such taxes “must be in a court of competent jurisdiction for the county in which the tax was
-4-
04-22-00349-CV
imposed.” TEX. TAX CODE ANN. § 33.41. Texas courts have interpreted this provision as requiring
a suit for delinquent property tax to be brought in the county where the real estate is located. See
Larkins-Ruby v. Austin County, No. 01-21-00496-CV, 2022 WL 17981564, at *2 (Tex. App.—
Houston [1st Dist.] Dec. 29, 2022, no pet. h.); Est. of Crawford v. Town of Flower Mound, 933
S.W.2d 727, 730 (Tex. App.—Fort Worth 1996, writ denied); see also Herring v. Welborn, 27
S.W.3d 132, 139 (Tex. App.—San Antonio 2000, pet. denied) (noting the Crawford court’s
holding on this point).
Here, it is undisputed that the property at issue is located in Kerr County. This case was
filed and resolved in the 216th Judicial District Court of Kerr County, and there is no evidence the
proceedings were conducted anywhere other than the county seat of Kerr County. The trial court
therefore had subject matter jurisdiction over both the Kerr County taxing entities’ and Harper
ISD’s claims against Wheelock. See TEX. CONST. art. V, §§ 7, 8; TEX. TAX CODE § 33.41; Larkins-
Ruby, 2022 WL 17981564, at *2. We overrule Wheelock’s jurisdictional challenge.
Amount of Delinquent Taxes, Penalties, and Interest
Wheelock next appears to contend that the amount of delinquent taxes, penalties, and
interest listed in the judgment is erroneous. We construe this as a challenge to the legal and factual
sufficiency of the evidence supporting the judgment. See Smith, 521 S.W.3d at 76. When an
appellant challenges the legal sufficiency of the evidence supporting a finding on which he did not
bear the evidentiary burden, he must show that no evidence supports the finding. See In re
Marriage of Thrash, 605 S.W.3d 224, 230 (Tex. App.—San Antonio 2020, pet. denied). To prevail
on a factual sufficiency challenge, the appellant must establish that the challenged finding is so
against the great weight and preponderance of the evidence that the finding is clearly wrong and
unjust. Abrams v. Salinas, 467 S.W.3d 606, 614 (Tex. App.—San Antonio 2015, no pet.).
-5-
04-22-00349-CV
Section 33.47 of the Texas Tax Code provides:
In a suit to collect a delinquent tax, the taxing unit’s current tax roll and delinquent
tax roll or certified copies of the entries showing the property and the amount of
the tax and penalties imposed and interest accrued constitute prima facie evidence
that each person charged with a duty relating to the imposition of the tax has
complied with all requirements of law and that the amount of tax alleged to be
delinquent against the property and the amount of penalties and interest due on that
tax as listed are the correct amounts.
TEX. TAX CODE ANN. § 33.47(a). “Once a taxing authority in a delinquency suit introduces the tax
records described in section 33.47(a) into evidence, it establishes a prima facie case as to every
material fact necessary to establish its cause of action.” City of Bellaire v. Sewell, 426 S.W.3d 116,
120 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (internal quotation marks omitted). If the
taxing authority establishes its prima facie case, the burden shifts to the property owner to present
competent evidence “that he has paid the full amount of taxes, penalties, and interest” or that he
has an affirmative defense to the taxing authority’s claims. See id.Here, the Kerr County taxing entities and Harper ISD introduced “the tax records described
in section 33.47(a) into evidence” at trial, thus shifting the burden to Wheelock to rebut the
delinquent taxes, penalties, and interest shown in those records. See id. Wheelock did not present
any evidence below showing he had paid the taxes in question, and he did not present evidence of
any affirmative defenses to the claims against him. He therefore did not meet his burden to rebut
the prima facie evidence presented by the Kerr County taxing entities and Harper ISD. See id.Wheelock also suggests the judgment overvalues the property. But under the Texas Tax
Code, “[t]he appraised value of the property according to the most recent appraisal roll approved
by the appraisal review board is presumed to be its market value on the date of trial, and the person
being sued has the burden of establishing that the market value of the property differs from that
appraised value.” TEX. TAX CODE ANN. § 33.50(a). The evidence presented at trial included “the
-6-
04-22-00349-CV
most recent appraisal roll approved by the appraisal review board” for both the ten-acre tract and
the manufactured home. Id. In his pre-trial filings below, Wheelock asserted that the manufactured
home was “older” and “in rough shape” and that the taxes on the ten-acre tract exceeded what he
had paid for the land, but he did not present any evidence of what he believed to be the properties’
market value. Accordingly, he did not meet his burden to rebut the evidence presented on that
issue. See id.
Finally, Wheelock argues that he is disabled and a veteran and the property was his
homestead. This appears to be a contention that the amount of the trial court’s judgment is
erroneous because Wheelock was entitled to certain exemptions on his property taxes. “[T]he
burden of proof of clearly showing that an exemption applies is on the taxpayer, with all doubts
resolved against the taxpayer.” Aviall Servs., Inc. v. Tarrant Appraisal Dist., 300 S.W.3d 441, 447
(Tex. App.—Fort Worth 2009, no pet.) (internal quotation marks omitted); see also Harris Cnty.
Appraisal Dist. v. Wilkinson, 317 S.W.3d 763, 766–67 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) (noting, in dispute over whether taxpayer was entitled to homestead exemption, “that
exemptions from taxation are not favored by the law and will not be favorably construed”) (internal
quotation marks omitted). “[A]n exemption cannot be raised by implication but must affirmatively
appear, and all doubts are resolved in favor of the taxing authority and against the taxpayer.” Aviall,
300 S.W.3d at 447. Here, the uncontroverted tax records presented at trial show no disability,
veteran, homestead, or other exemptions applied to either the ten-acre tract or the manufactured
home. Moreover, while the record contains multiple pre-trial filings by Wheelock that arguably
allege he was entitled to certain exemptions, it does not contain any evidence showing he had been
granted any exemptions. Accordingly, the record does not support a conclusion that the trial court
-7-
04-22-00349-CV
erred by failing to apply any exemptions to the amounts the Kerr County taxing entities and Harper
ISD claimed Wheelock owed. See id.For these reasons, the evidence is legally and factually sufficient to support the trial court’s
conclusion that Kerr County taxing entities and Harper ISD were entitled to a judgment for taxes,
penalties, and interest in the amounts they sought. See TEX. TAX CODE §§ 33.47(a), 33.50(a);
Larkins-Ruby v. Sealy Indep. Sch. Dist., No. 01-18-00746-CV, 2020 WL 717548, at *3 (Tex.
App.—Houston [1st Dist.] Feb. 13, 2020, pet. denied) (mem. op.). We therefore overrule
Wheelock’s argument to the contrary. 1
Dismissal of the VLB
Next, Wheelock argues the trial court’s interlocutory dismissal of the VLB constitutes a
“change[] from the original petition” that renders the judgment void. Wheelock cites no authority
holding that the dismissal of a plaintiff’s claims against one defendant renders the eventual
judgment against the remaining defendant void. See TEX. R. APP. P. 38.1(i). Nor does he present
any argument or authority showing that the dismissal of the VLB probably caused the rendition of
an improper judgment or prevented Wheelock from properly presenting his case to this court. See
TEX. R. APP. P. 44.1. We therefore overrule this issue. See Dunlap, 2020 WL 7633952, at *2.
Recusal
Wheelock also contends the trial court judge who signed the judgment should have recused
himself from this case because he also presided over Wheelock’s criminal trial. A motion seeking
to recuse or disqualify a trial court judge “must be verified.” TEX. R. CIV. P. 18a(a)(1). The record
1
Wheelock also complains that the judgment allows Kerr County to keep the excess proceeds, if any, from the sale of
his former property. This is not correct. The judgment orders that any excess proceeds from the sale of Wheelock’s
former property shall be paid to and retained by the clerk of the court “in accordance with Section 34.03 of the Texas
[] Tax Code.” Section 34.03 requires the clerk of the court to notify “the former owner of the property” of the existence
of any “excess proceeds [of] more than $25” and his right to claim those funds. TEX. TAX CODE ANN. § 34.03(a)(1);
see also TEX. TAX CODE ANN. § 34.04 (establishing process for claiming excess proceeds).
-8-
04-22-00349-CV
does not contain a verified motion to recuse. “When a party fails to comply with the requirements
of Rule 18a(a), [he] waives [his] right to complain of a judge’s failure to recuse himself.” In re
Guardianship of Jordan, 348 S.W.3d 401, 415 (Tex. App.—Beaumont 2011, no pet.). We
therefore overrule this issue.
Motion to Show Authority
Finally, Wheelock argues we should reverse the trial court’s judgment because the Kerr
County taxing entities’ attorneys did not respond to his challenge to their authority to represent
their clients. Texas Rule of Civil Procedure 12 provides that a party “may, by sworn written motion
stating that he believes the suit or proceeding is being prosecuted or defended without authority,
cause the attorney to be cited to appear before the court and show his authority to act.” TEX. R.
CIV. P. 12. If the attorney does not show he has authority to act, “the court shall refuse to permit
the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to
prosecute or defend appears.” Id.For most of the proceedings below, the Kerr County taxing entities were represented by
attorneys whose authority Wheelock did not challenge in the trial court. But on June 30, 2022—
after the trial court had already signed its final judgment in this case—the Kerr County taxing
entities filed a motion to substitute new counsel in place of the attorneys who previously
represented them. The trial court granted that motion on July 6, 2022, and the Kerr County taxing
entities’ new attorneys subsequently filed a response to Wheelock’s motion for new trial.
Wheelock did not file a standalone motion to show authority in the trial court. However, in
his reply in support of his motion for new trial, he argued:
Defendant [Wheelock] went ahead and responded to [the Kerr County taxing
entities’ response to Wheelock’s motion for new trial], but the persons who signed
it, there has been no “show of authority” Rule 12, Texas Rules of Civil Procedure
“Attorney to Show Authority,” so it is un-official.
-9-
04-22-00349-CV
Even if we construe this statement as a motion to show authority, it “is not sworn and is not directed
at the authority of the attorney who represented” the Kerr County taxing entities when they filed
their petition, presented evidence at trial in support of that petition, and obtained a judgment in
their favor. See DuVall v. Evetts, No. 04-09-00309-CV, 2000 WL 340755, at *3 (Tex. App.—San
Antonio Mar. 31, 2000, no pet.) (mem. op.). Accordingly, even if we assume the trial court should
have disregarded the post-judgment response filed by the new attorneys, “we find no reversible
error” in the judgment. Id.On December 28, 2022, Wheelock filed a motion to show authority in this court. Like the
motion he filed in the trial court, Wheelock’s motion in this court explicitly relies on Rule 12.
Assuming, without deciding, that Rule 12 applies to motions filed in appellate courts, Wheelock’s
motion is not sworn and therefore does not comply with Rule 12’s plain requirements. TEX. R.
CIV. P. 12; DuVall, 2000 WL 340755, at *3. Additionally, even if we disregard the only substantive
document the Kerr County taxing entities’ attorneys filed in this appeal—their appellees’ brief—
neither Wheelock’s own brief nor our review of the record reveals any reversible error in the
judgment. TEX. R. APP. P. 44.1; see also Hamilton Metals, Inc. v. Global Metal Servs., Ltd., 597
S.W.3d 870, 878 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“If under the applicable
law and the appellate record, an appellant has not shown that the trial court erred, we may not
reverse the trial court’s ruling, even if the appellee filed no brief or filed a brief that does not
present a proper basis for affirming the trial court’s ruling.”); Liles v. Contreras, 547 S.W.3d 280,
296 (Tex. App.—San Antonio 2018, pet. denied) (noting appellant bears burden of establishing
reversible error). For these reasons, we overrule Wheelock’s final issue and deny his motion to
show authority.
- 10 -
04-22-00349-CV
CONCLUSION
Having overruled each of Wheelock’s issues on appeal, we affirm the trial court’s
judgment. We deny Wheelock’s December 28, 2022 motion to show authority.
Beth Watkins, Justice
- 11 -