Reagan National Advertising of Austin, Inc. D/B/A Reagan National Advertising v. City of Austin, Texas And Marc A. Ott, Being Sued in His Official Capacity , 2016 Tex. App. LEXIS 6297 ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00370-CV
Reagan National Advertising of Austin, Inc. d/b/a Reagan National Advertising, Appellant
v.
City of Austin, Texas; and Marc A. Ott, being sued in his Official Capacity, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-12-001211, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
OPINION
Reagan National Advertising of Austin, Inc. d/b/a Reagan National Advertising
(Reagan) sued the City of Austin and city manager Marc A. Ott, in his official capacity (collectively,
the City), alleging that the City’s “billboard registration fee” amounts to an unconstitutional
occupation tax against Reagan. The trial court signed a final judgment ordering that Reagan take
nothing on its claims. In four issues on appeal, Reagan contends that none of its claims were
time-barred and that the trial court erred in determining that the assessment against Reagan was a
proper regulatory fee. Because we conclude that a prior federal-court ruling precluded relitigation
of whether the assessment was a regulatory fee or a tax and that none of Reagan’s claims are
time-barred, we will reverse the trial court’s judgment and render judgment in Reagan’s favor in part
and remand for the consideration of attorney’s fees.
BACKGROUND1
Reagan owns and operates billboards in the Austin area. The City regulates these
billboards and requires them to be registered. Before amending its regulations in 2008–2009, the
City assessed a “billboard registration fee” of $220 per billboard every two years (an effective rate
of $110 per year). After the amendments, the City collected an assessment of $200 per billboard per
year, although the City could not point to anything it had done by way of a study, budget, or survey
to determine the costs associated with the City’s registration program.
In 2009, Robert Rowan, a City employee, analyzed the $200 billboard assessment.
In an email sent to his superiors in November 2009, Rowan concluded that an assessment of $140
would be “a more reasonable fee” and would “close the gap between the revenue and expenditures
of running this program.” Daniel Cardenas, another City employee, later conducted a study concluding
that $242 per year was the proper assessment. After communicating with his superior, Cardenas
raised his estimate to $352 per year. In 2012, the City lowered the assessment to $190 per year.
Reagan, under protest, paid the $200 billboard assessment each year from 2009 to
2012 and the $190 assessment each year for 2013 and 2014. In April 2010, Reagan sued the City
in federal district court, Judge Lee Yeakel presiding, challenging the constitutionality of the billboard
assessment. After Reagan filed suit, the City retained a consulting firm to conduct a study of the
billboard assessment. This firm concluded that “the cost of service for administering the billboard
registration fee is $190.” Meanwhile, Reagan retained its own consultant, who determined that the
assessment should be about $43 per year.
1
Unless otherwise noted, all facts recited herein are undisputed.
2
On November 30, 2011, following a bench trial, Judge Yeakel issued a final
judgment dismissing Reagan’s suit without prejudice for lack of jurisdiction. In his findings of fact
and conclusions of law, Judge Yeakel concluded that the City’s billboard assessment is a “tax” for
purposes of the Tax Injunction Act (TIA) and, therefore, the court lacked subject-matter jurisdiction
over Reagan’s suit. Under the TIA, federal courts lack subject-matter jurisdiction to “enjoin, suspend
or restrain the assessment, levy or collection of any tax under State law where a plain, speedy
and efficient remedy may be had in the courts of such State.” See 28 U.S.C. § 1341; Washington
v. Linebarger, Goggan, Blair, Pena & Sampson, LLP, 338 F.3d 442, 444 (5th Cir. 2003). On
December 29, 2011, the City filed a motion for new trial, which Judge Yeakel denied by an order
signed on February 6, 2012.
On April 25, 2012, Reagan filed this suit in the Travis County district court (the
trial court). At the ensuing bench trial, Reagan argued that Judge Yeakel’s determination that the
billboard assessment is a tax was “res judicata” and barred relitigation of whether the assessment is
a tax or a regulatory fee. Reagan further argued that, because the assessment is a tax, and because
the State of Texas does not levy a tax on the outdoor advertising business, the City’s billboard
assessment violates the Texas Constitution by levying a tax that exceeds one half of the tax levied
by the State on the same business. See Tex. Const. art. VIII, § 1(f) (“The occupation tax levied by
any county, city or town for any year on persons or corporations pursuing any profession or business,
shall not exceed one half of the tax levied by the State for the same period on such profession or
business.”). Reagan sought a declaration under the Uniform Declaratory Judgments Act that the
billboard assessment is an unconstitutional tax, damages under 42 U.S.C. § 1983 consisting of “the
3
portion of the fees paid under duress that are unconstitutionally excessive,” and attorney’s fees.2
The City responded that Judge Yeakel’s ruling that the assessment is a tax for purposes of the TIA
does not control the question of whether the assessment is a tax under the Texas Constitution and
that it is not a tax because it is reasonably related to the cost of billboard regulation. The City also
argued that any claims Reagan might have arising from the assessments it paid in 2009 and 2010
were barred by the statute of limitations.
In its final judgment signed on March 31, 2015, the trial court ordered that Reagan
take nothing on its claims. The court also issued findings of fact and conclusions of law, in which
it found that “[t]he activities performed for the billboard registration program are related to the
program” and that “[t]he fee is based on the City’s costs for actual activities performed.” The trial
court also concluded that “Judge Yeakel’s ruling based on the [TIA] is not res judicata as to this
suit,” that “[t]here is a reasonable relationship between the amount of the fee and the City’s costs,”
that “[t]he primary purpose of the fee, in light of the ordinance that authorizes the fee as a whole, is
for regulation,” and that “[t]he City’s fee is reasonable and constitutional.” Finally, the court concluded
that “Reagan’s claims for fees paid in August of 2009 and March of 2010 are time-barred.” This
appeal followed.
2
Although Reagan’s live pleading advanced other theories and causes of action, on appeal
Reagan argues only that the billboard assessment violates article VIII, section 1(f).
4
DISCUSSION
Statute of Limitations
In its third issue on appeal,3 Reagan contends that the trial court erred in concluding
that claims arising from the assessments it paid in 2009 and 2010 are time-barred.
Reagan’s claims are governed by a two-year statute of limitations. See Tex. Civ.
Prac. & Rem. Code § 16.003(a); Lowenberg v. City of Dall., 168 S.W.3d 800, 801 (Tex. 2005)
(per curiam). Because Reagan paid its assessments for 2009 and 2010 in March 2010 or before
and filed this suit in April 2012, more than two years later, its claims for these years are barred
unless the statute of limitations was tolled. Reagan argues that a savings clause tolled the statute of
limitations because Reagan filed its federal action within the limitations period and then filed this
suit in state court within 60 days from the time the federal court’s judgment dismissing Reagan’s
claims for lack of jurisdiction became final. Reagan relies on the tolling provision set forth in
section 16.064 of the Texas Civil Practice and Remedies Code, which states the following:
The period between the date of filing an action in a trial court and the date of a
second filing of the same action in a different court suspends the running of the
applicable statute of limitations for the period if: (1) because of lack of jurisdiction
in the trial court where the action was first filed, the action is dismissed or the
judgment is set aside or annulled in a direct proceeding; and (2) not later than the
60th day after the date the dismissal or other disposition becomes final, the action is
commenced in a court of proper jurisdiction.
Tex. Civ. Prac. & Rem. Code § 16.064(a).
3
We address Reagan’s limitations argument first given its threshold nature.
5
In response, the City points out that the federal court signed its judgment dismissing
Reagan’s claims on November 30, 2011, and Reagan filed this suit on April 25, 2012, more than
60 days later. The City argues that because Reagan did not file this suit within 60 days after the
federal court signed its judgment, section 16.064 does not toll the statute of limitations and Reagan’s
claims are untimely. Whether section 16.064 tolled the statute of limitations is a question of law we
review de novo. See Brown v. Fullenweider, 135 S.W.3d 340, 342 (Tex. App.—Texarkana 2004,
pet. denied); see also First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008) (“The
construction of a statute is a question of law we review de novo.”).
Section 16.064’s first requirement is met because the court in which Reagan
originally filed this action dismissed the case for lack of jurisdiction. See Tex. Civ. Prac. & Rem.
Code § 16.064(a)(1). Therefore, we must determine whether Reagan filed its state-court action
within 60 days of the date when the federal court’s judgment “bec[ame] final.” See id. § 16.064(a)(2).
As the Texas Supreme Court has recognized, whether a judgment is considered “final” depends on
the context. See Long v. Castle Tex. Prod. Ltd. P’ship, 426 S.W.3d 73, 78 (Tex. 2014) (“We assess
a judgment’s finality differently, depending upon the context.”); Street v. Honorable Second Court
of Appeals, 756 S.W.2d 299, 301 (Tex. 1988) (“[T]he term ‘final,’ as applied to judgments, has more
than one meaning.”). We are not aware of any precedent from the Texas Supreme Court or from this
Court deciding when a federal district court’s judgment becomes final for purposes of section 16.064
when, as here, neither party appeals the judgment. See Vale v. Ryan, 809 S.W.2d 324, 327 (Tex.
App.—Austin 1991, no writ) (“We do not address the question of when a disposition becomes final
6
for purposes of section 16.064 where, for example, a district-court dismissal for lack of jurisdiction
is later affirmed on appeal.”) (italics removed).4
The statute’s use of “becomes final” suggests that a judgment is not always final
for purposes of the savings clause the instant the judgment is signed or rendered. Otherwise, the
legislature would have specifically provided that the tolling period begins on the day the first court
signs the judgment. The legislature knows how to use the signing and rendition of a judgment as
statutory reference points,5 but did not choose to do so here.
4
The City relies heavily on Ruiz v. Austin Independent School District, No. 03-02-00798-CV,
2004 WL 1171666 (Tex. App.—Austin May 27, 2004, no pet.) (mem. op.). In Ruiz, this Court
explained that the plaintiffs’ claims were time-barred unless a tolling provision applied. Id. at *4.
The Court then discussed section 16.064 and concluded, “Even with the benefit of this tolling statute,
however, the Ruizes failed to satisfy the statute of limitations, for their second lawsuit was not filed
until seventy-nine days after the federal court dismissed the first lawsuit.” Id. While the Court
arguably treated section 16.064’s 60-day period as beginning when the federal court signed its
judgment dismissing the first suit, nothing in the opinion indicates that the litigants contested the
date of the judgment’s finality. Moreover, there is no indication of whether either party filed any
post-judgment motions in the federal court, and there is no explanation of why the judgment became
final less than 79 days after being signed.
5
See Tex. Elec. Code § 232.014(b) (“To be timely, an appellant’s bond, affidavit, or cash
deposit for costs of appeal must be made not later than the fifth day after the date the district court’s
judgment in the contest is signed.”) (emphasis added); Tex. Fam. Code § 201.111(a) (providing that
referring court shall take action “[n]ot later than the 10th day after the date an associate judge’s
proposed order or judgment recommending a finding of contempt is signed”) (emphasis added); id.
§ 201.318(b) (“the date an order or judgment by the referring court is signed is the controlling date
for the purposes of appeal to or request for other relief from a court of appeals or the supreme court”)
(emphasis added); Tex. Fin. Code § 304.005(a) (“postjudgment interest on a money judgment of a
court in this state accrues during the period beginning on the date the judgment is rendered and
ending on the date the judgment is satisfied”) (emphasis added); Tex. Prop. Code § 24.0052(a) (“the
tenant may appeal the judgment of the justice court by filing with the justice court, not later than the
fifth day after the date the judgment is signed, a pauper’s affidavit”) (emphasis added); Tex. Tax
Code § 43.04 (“If the court finds that the chief appraiser or appraisal review board failed to comply
without good cause, the court shall enter an order requiring the chief appraiser or appraisal review
board to comply with the deadline not later than the 10th day after the date the judgment is signed.”)
(emphasis added); id. § 111.010(d) (“The state is entitled to interest at the rate of 10 percent a year
7
We need not decide in this case precisely when a federal district court’s judgment
becomes final for purposes of section 16.064, because here Reagan unquestionably refiled in state
court within the statutory timeframe. The federal court denied the City’s motion for new trial on
February 6, 2012. See Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed
no later than 28 days after the entry of the judgment.”). Reagan then had 30 days in which it could
have filed a notice of appeal. See Fed. R. App. P. 4(a)(1)(A) (“In a civil case . . . the notice of
appeal . . . must be filed with the district clerk within 30 days after entry of the judgment or order
appealed from.”); id. R. 4(a)(4)(A)(v) (providing that if party timely files motion for new trial under
Rule 59, “the time to file an appeal runs for all parties from the entry of the order disposing of the
last such remaining motion”). In addition, Reagan still could have filed an additional motion for
relief from the federal court’s judgment under Rule 60(b). See Fed. R. Civ. P. 60(b), (c). We
conclude that, for the purposes of section 16.064, the federal court’s judgment dismissing Reagan’s
claims did not become final until at least 30 days from its February 6th order denying the City’s
motion for new trial.6 See Oscar Renda Contracting, Inc. v. H & S Supply Co., 195 S.W.3d 772, 776
(Tex. App.—Waco 2006, pet. denied) (“A judgment of dismissal becomes final for purposes of
on the amount of a judgment for the state beginning on the day the judgment is signed and ending
on the day the judgment is satisfied.”) (emphasis added).
6
We note that, in its letter opinion, the trial court announced that the City’s affirmative
defense of limitations was without merit. The court opined that, “when dismissal by one court
begins the running of a deadline to file suit in another court, it only makes sense to begin the
deadline when the first court has lost plenary power. Otherwise, a litigant would be required to file
suit in the second court while continuing to argue in the first court, perhaps successfully, that the
action should remain there.” Nevertheless, in its findings of fact and conclusions of law, the trial
court concluded, without explanation, that “Reagan’s claims for fees paid in August of 2009 and
March of 2010 are time-barred.”
8
section 16.064 when it disposes of all issues and parties in the case and the court’s power to alter
the judgment has ended.”) (emphasis added); Vale, 809 S.W.2d at 326 (“These tolling provisions
are remedial in nature and are to be liberally construed.”). Therefore, because Reagan filed its
state-court suit on April 25, less than 60 days from the time when the federal court’s judgment
became final, section 16.064 tolled the statute of limitations, and Reagan’s claims are not
time-barred.
Accordingly, we sustain Reagan’s third issue.
Issue Preclusion
In its first two issues, Reagan contends that the trial court erred in deciding that the
federal court’s conclusion that the billboard assessment is a tax did not preclude relitigation of the
issue and in holding that the assessment is a constitutional regulatory fee.
Federal law governs the preclusive effect of the federal court’s judgment in Reagan’s
subsequent state-court action. See Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985) (“Even
though the original lawsuit involved both federal and state-related claims, the fact that it took place
in federal court requires us to follow the federal law of res judicata.”); Hayes v. Pin Oak Petroleum,
Inc., 798 S.W.2d 668, 671 (Tex. App.—Austin 1990, writ denied) (per curiam) (“Our analysis of this
cause is governed by federal substantive law. Where the earlier judgment was rendered in federal
court, we must follow the substantive federal law concerning res judicata and collateral estoppel.”).
Although the parties use the term “res judicata,” (i.e., claim preclusion), the substance of their
contentions more precisely concerns a question of issue preclusion—whether the federal court’s
decision that the billboard assessment constitutes a tax has preclusive effect in state court. The
9
doctrine of issue preclusion “precludes relitigation of only those issues actually litigated in the
original action, whether or not the second suit is based on the same cause of action.” Houston Prof’l
Towing Ass’n v. City of Hous., 812 F.3d 443, 447 (5th Cir. 2016) (internal quotation marks omitted);
see B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1302 (2015) (“This Court has long
recognized that the determination of a question directly involved in one action is conclusive as to
that question in a second suit.”) (internal quotation marks omitted); Restatement (Second) of
Judgments § 27 (1982) (“When an issue of fact or law is actually litigated and determined by a valid
and final judgment, and the determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on the same or a different claim.”).
Issue preclusion applies only if four conditions are met:
First, the issue under consideration in a subsequent action must be identical to
the issue litigated in a prior action. Second, the issue must have been fully and
vigorously litigated in the prior action. Third, the issue must have been necessary to
support the judgment in the prior case. Fourth, there must be no special circumstance
that would render preclusion inappropriate or unfair.
State Farm Mut. Auto. Ins. Co. v. LogistiCare Sols., LLC, 751 F.3d 684, 689 (5th Cir. 2014) (quoting
United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994)). Whether issue preclusion applies
is a question of law we review de novo. See Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050
(9th Cir. 2008); Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 368–69 (2d Cir. 1997).
We must begin, then, by deciding whether the federal court’s determination that the
billboard assessment is a tax under the TIA involved an issue of fact or law that is identical to the
question of whether the assessment is a tax under article VIII, section 1(f) of the Texas Constitution.
In determining whether an assessment is a tax under the TIA, federal courts consider whether the
10
assessment is imposed: (1) by an agency or by the legislature, (2) upon those it regulates or upon the
community as a whole, and (3) for the purpose of defraying regulatory costs or for general
revenue-raising purposes. See Neinast v. Texas, 217 F.3d 275, 278 (5th Cir. 2000) (citing Home
Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1011 (5th Cir. 1998)); San
Juan Cellular Tel. Co. v. Public Serv. Comm’n of P.R., 967 F.2d 683, 685 (1st Cir. 1992). However,
federal courts have noted that the third factor, the purpose and use of the assessment, is the “critical
factor,” especially when the first two factors do not point toward the same conclusion. See Neinast,
217 F.3d at 278 (“The third factor, the ultimate use of the funds, thus becomes our critical
question.”); Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1311 (10th Cir. 1999) (“[T]he
critical inquiry focuses on the purpose of the assessment and the ultimate use of the funds.”). As the
Fourth Circuit has explained:
It is useful to begin with a look at who imposes, administers, and collects the
assessment. An assessment imposed directly by a legislature is more likely to be a
tax than one imposed by an administrative agency. If responsibility for administering
and collecting the assessment lies with the general tax assessor, it is more likely to
be a tax; if this responsibility lies with a regulatory agency, it is more likely to be a
fee. But the heart of the inquiry centers on function, requiring an analysis of the
purpose and ultimate use of the assessment. If the revenue is paid into the state’s (or
county’s) general fund and provides a general benefit to the public, it sounds like a
tax. If, on the other hand, the assessment covers only a narrow class of persons and
is paid into a special fund to benefit regulated entities or defray the cost of regulation,
it sounds like a fee.
Collins Holding Corp. v. Jasper Cty., S.C., 123 F.3d 797, 800 (4th Cir. 1997) (citations omitted).
Here, in his findings of fact and conclusions of law, Judge Yeakel concluded that
the first factor suggested that the billboard assessment is a tax because it was imposed by the
City’s legislative body and that the second factor suggested that the assessment is a regulatory fee
11
because it was imposed only on billboard owners rather than on the public at large. Turning to the
third factor, Judge Yeakel noted that the billboard assessments are deposited into the City’s
general-revenue fund and that the City has no separate billboard-regulatory fund. He also noted that
the parties had presented conflicting evidence at trial concerning whether the assessment was
revenue-neutral. Judge Yeakel then made the following findings:
In reviewing the evidence presented, the Court finds that the record lacks any
indication of the City Council’s purpose for increasing the [billboard assessment] or
the circumstances surrounding the City Council’s 2008 passage of the increased
amount of the [assessment]. The Court finds that the annual per billboard [assessment]
of $200 was set by the City Council, is deposited into the City’s general-revenue
fund, and is assessed against a narrow class of individuals, billboard owners. Further,
given the conflicting evidence presented about the reasonable cost of
registering billboards, the Court finds that the City’s [billboard assessment] benefits
the entire community rather than only defraying the City’s reasonable cost of
registering billboards.
(footnote omitted) (emphasis added). Finally, in a footnote, Judge Yeakel made the following
statement:
Although placing all [billboard-assessment] collections in the City’s general-revenue
fund does not, standing alone, compel the result that the [assessment] is a tax, it does
hamper the City’s ability to present persuasive evidence that the [assessment] is not
a tax. Placing the collections in the general-revenue fund creates the impression that
the collections are available to fund all City programs, gives cause to question the
City’s after-the-fact calculations of the cost of billboard regulation, and blurs
the issue of whether the charge is used for the regulation and benefit of the
billboard owners.
Judge Yeakel went on to conclude that the billboard assessment is a tax under the TIA and therefore
the court lacked subject-matter jurisdiction over Reagan’s suit.
12
We conclude that Judge Yeakel’s determination under the third TIA factor that
the billboard assessment benefits the entire community rather than only defraying the cost of the
City’s billboard regulation is identical, for the purposes of issue preclusion, to the question of
whether the assessment is a tax under article VIII, section 1(f) of the Texas Constitution. To determine
whether an assessment is a tax under article VIII, section 1(f), courts consider whether the primary
purpose of the assessment is for regulation or for raising revenue. See Texas Boll Weevil Eradication
Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 (Tex. 1997) (“‘The principle of distinction generally
recognized is that when, from a consideration of the statute as a whole, the primary purpose of
the fees provided therein is the raising of revenue, then such fees are in fact occupation taxes, and
this regardless of the name by which they are designated.’”) (quoting H. Rouw Co. v. Texas Citrus
Comm’n, 247 S.W.2d 231, 234 (Tex. 1952)); City of Hous. v. Harris Cty. Outdoor Advert. Ass’n,
879 S.W.2d 322, 326 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (“To determine whether
an exaction authorized by statute or ordinance constitutes an occupation tax or a license fee, the
test is whether the primary purpose of the exaction, when the statute or ordinance is considered
as a whole, is for regulation or for raising revenue.”). In determining the primary purpose of the
assessment, “[t]he critical issue is whether the assessment is intended to raise revenue in excess of
that reasonably needed for regulation.” Lewellen, 952 S.W.2d at 461. “To be reasonable, a license
fee cannot be excessive nor more than reasonably necessary to cover the cost of granting the license
and of exercising proper police regulation, or it must bear some reasonable relationship to the
legitimate object of the licensing ordinance.” City of Houston, 879 S.W.2d at 326–27 (emphasis
removed). Therefore, Judge Yeakel’s decision that the billboard assessment raised revenue in excess
of the reasonable cost of registering billboards and benefitted the entire community is identical to
13
a determination that the assessment is a tax under article VIII, section 1(f). Thus, the first condition
of issue preclusion is met here.
Under the second issue-preclusion condition, we must determine whether the
issue of the assessment’s status was fully and vigorously litigated in the federal-court action. We
conclude that it was. There is no dispute that Judge Yeakel conducted a bench trial, which included
the presentation of expert testimony concerning the cost of the billboard registration program.
Accordingly, we proceed to the third issue-preclusion condition: whether the issue was necessary
to support the judgment in the prior case. Here, Judge Yeakel determined that the first two TIA
factors cut in different directions. The third factor was therefore dispositive and, indeed, it is the
“critical factor” in a TIA analysis. See Neinast, 217 F.3d at 278; Marcus, 170 F.3d at 1311. We
therefore conclude that Judge Yeakel’s determination that the billboard assessment raised revenue
in excess of the reasonable cost of registering billboards was necessary to support his judgment that
the assessment was a tax and that the court lacked subject-matter jurisdiction over Reagan’s suit.
Finally, under the fourth issue-preclusion condition, we determine that there were no special
circumstance that would render preclusion inappropriate or unfair in this instance. Nothing in the
record before us indicates that the City was treated unfairly in the federal-court litigation or that it
was anything other than a full and active litigant.
Having determined that each of the four issue-preclusion conditions has been
satisfied, we conclude that issue preclusion applies and that the federal court’s determinations
should have precluded relitigation in the trial court of whether the billboard assessment is a tax under
article VIII, section 1(f) of the Texas Constitution. We therefore sustain Reagan’s first two issues.
14
Because the City’s billboard assessment constitutes a tax on the outdoor advertising
business under article VIII, section 1(f), the Texas Constitution provides that it may not exceed
half of the tax levied by the State on outdoor advertising. It is undisputed that the State levies no
tax on billboards; therefore, the City’s billboard assessment violates the Texas Constitution. An
unconstitutional tax is void from its inception, so Reagan would ordinarily be entitled to a refund of
the entire amount it paid—an amount to which the parties stipulated. See Wichita Cty. v. Robinson,
276 S.W.2d 509, 515 (Tex. 1954) (op. on reh’g) (noting “as a general rule a law held unconstitutional
is void from the beginning and was never valid and enforceable at any time”); Colden v. Alexander,
171 S.W.2d 328, 335 (Tex. 1943) (noting that statute held to be unconstitutional “is absolutely and
utterly void in its entirety” and “can have no effect to accomplish anything”). However, Reagan
has specifically prayed for a refund of only $198,450.00, which is less than the full amount of the
assessment, and we will therefore render judgment in Reagan’s favor for that amount.7 See State
v. Brown, 262 S.W.3d 365, 370 (Tex. 2008) (“A party generally is not entitled to relief it does not
seek.”) (citing Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000)).
7
$198,450.00 is the largest refund Reagan has prayed for. We express no opinion on what
amount would have been a reasonable and constitutional billboard assessment.
15
CONCLUSION
Having sustained Reagan’s first, second, and third issues,8 we reverse the trial court’s
judgment and render judgment that the billboard assessment violates the Texas Constitution and that
Reagan recover $198,450.00 from the City. We also remand the cause to the trial court to determine
the amount of attorney’s fees, if any, to which Reagan is entitled.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Pemberton and Field
Reversed and Rendered in Part, Reversed and Remanded in Part
Filed: June 15, 2016
8
In its fourth issue, Reagan contends that the trial court erred in failing to award Reagan the
difference between $190 per sign and the amounts Reagan actually paid in 2009–2012. Because we
sustain Reagan’s other issues, we need not address this contention. Reagan’s fourth issue also contends
that the trial court erred in failing to award Reagan attorney’s fees. We will remand this cause to the
trial court for further consideration of whether Reagan is entitled to attorney’s fees under the Uniform
Declaratory Judgments Act in light of our opinion. See Tex. Civ. Prac. & Rem. Code § 37.009.
16