Todd C. Brennan and Valerie S. Smith, Frank Gallison and Nanette Gallison, Rebecca Hanley, Gordon Hiebert and Kimberly Hiebert, William Hood and Leonila Hood, Layne Kasper and Jessica Kasper, James Kitchen and Martha Kitchen v. City of Willow Park, Texas, Parker County Appraisal District, Parker County Appraisal Review Board, City of Aledo, Texas, and Larry Hammonds in His Official Capacity as Parker County Tax Assessor/Collector

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00147-CV
CITY OF ALEDO APPELLANT
V.
TODD C. BRENNAN AND VALERIE APPELLEES
S. SMITH, FRANK GALLISON AND
NANETTE GALLISON, REBECCA
HANLEY, GORDON HIEBERT AND
KIMBERLY HIEBERT, WILLIAM
HOOD AND LEONILA HOOD,
LAYNE KASPER AND JESSICA
KASPER, JAMES KITCHEN AND
MARTHA KITCHEN, SHAUN
KRETZSCHMAR AND NATALIE
KRETZSCHMAR, SCOTT
MITCHELL AND LESLIE
MITCHELL, EVAN PETERSON AND
GAYLE PETERSON, BRIAN
STAGNER AND AMY STAGNER,
STEVEN TOMHAVE AND JETTY
TOMHAVE, AND ROBERT WOOD
AND MARY FRANCES WOOD
----------
AND
NO. 02-14-00153-CV
TODD C. BRENNAN AND VALERIE APPELLANTS
S. SMITH, FRANK GALLISON AND
NANETTE GALLISON, REBECCA
HANLEY, GORDON HIEBERT AND
KIMBERLY HIEBERT, WILLIAM
HOOD AND LEONILA HOOD,
LAYNE KASPER AND JESSICA
KASPER, JAMES KITCHEN AND
MARTHA KITCHEN, SHAUN
KRETZSCHMAR AND NATALIE
KRETZSCHMAR, SCOTT
MITCHELL AND LESLIE
MITCHELL, EVAN PETERSON AND
GAYLE PETERSON, BRIAN
STAGNER AND AMY STAGNER,
STEVEN TOMHAVE AND JETTY
TOMHAVE, AND ROBERT WOOD
AND MARY FRANCES WOOD
V.
CITY OF WILLOW PARK, TEXAS, APPELLEES
PARKER COUNTY APPRAISAL
DISTRICT, PARKER COUNTY
APPRAISAL REVIEW BOARD, CITY
OF ALEDO, TEXAS, AND LARRY
HAMMONDS IN HIS OFFICIAL
CAPACITY AS PARKER COUNTY
TAX ASSESSOR/COLLECTOR
----------
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV10-0429
----------
2
MEMORANDUM OPINION1
----------
These consolidated accelerated appeals involve assessed back property
taxes for the tax years 2003 through 2007 for properties in the City of Aledo,
Texas, and the City of Willow Park, Texas (collectively, the Cities). Through an
agreed interlocutory appeal, the City of Aledo challenges the trial court’s order
denying its motion for summary judgment. See Act of May 27, 2005, 79th Leg.,
R.S., ch. 1051, § 1, 2005 Tex. Gen. Laws 3512, 3513 (former Tex. Civ. Prac. &
Rem. Code Ann. § 51.014(d)).2 The Taxpayers3 bring an interlocutory appeal
from the trial court’s order denying their motion to certify a class action under
Texas Rule of Civil Procedure 42. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(3) (West Supp. 2015). We affirm the trial court’s orders.
1
See Tex. R. App. P. 47.4.
2
This former version of section 51.014(d) was repealed in 2011 as to suits
filed on or after September 1, 2011. See Act of May 25, 2011, 82nd Leg., R.S.
ch. 203, § 6.01, 2011 Tex. Gen. Laws 758, 761. The original petition in the
underlying case was filed on March 18, 2010. Rule of appellate procedure 28.2,
which governs agreed interlocutory appeals in civil cases, applies to this case.
See Tex. R. App. P. 28.3 cmt. (“Rule 28.2 applies only to appeals in cases that
were filed in the trial court before September 1, 2011.”).
3
The term “Taxpayers” as used herein refers to the following parties named
in this suit: Todd C. Brennan and Valerie S. Smith, Frank Gallison and Nanette
Gallison, Rebecca Hanley, Gordon Hiebert and Kimberly Hiebert, William Hood
and Leonila Hood, Layne Kasper and Jessica Kasper, James Kitchen and
Martha Kitchen, Shaun Kretzschmar and Natalie Kretzschmar, Scott Mitchell and
Leslie Mitchell, Evan Peterson and Gayle Peterson, Brian Stagner and Amy
Stagner, Steven Tomhave and Jetty Tomhave, and Robert Wood and Mary
Frances Wood.
3
I. Background
The Taxpayers own real property located within the territorial boundaries of
either the City of Aledo or the City of Willow Park, both of which are in Parker
County, Texas. Larry Hammonds is the chief appraiser for the Parker County
Appraisal District. See Tex. Tax Code Ann. § 6.05 (West 2015). The Cities
contracted with the Parker County Appraisal District to serve as their tax
collector. See id. § 6.24(a) (West 2015). As a result, Hammonds also serves as
the Cities’ tax collector. See Brennan v. City of Willow Park, 376 S.W.3d 910,
915 n.2 (Tex. App.—Fort Worth 2012, pet. denied) (op. on reh’g).
For each tax year, the chief appraiser prepares an appraisal roll listing
each property taxable in the appraisal district and then a separate appraisal roll
for each taxing entity for which he appraises the property. See Tex. Tax Code
Ann. §§ 25.01, 26.01 (West 2015). For the relevant tax years of 2003 through
2007, the Taxpayers received tax bills from the Parker County Appraisal District
for all taxing entities in Parker County except the Cities. In 2008, Hammonds
realized that the tax bills for the years 2003 through 2007 that had been sent by
the Parker County Appraisal District to the Taxpayers and paid by the Taxpayers
had erroneously omitted city taxes. On October 3, 2008, Hammonds sent the
Taxpayers a “Notice of Omitted Property Determination.” The notice provided in
pertinent part as follows:
This Notice is provided pursuant to the requirements of Texas Tax
Code Sec. 25.21, which requires the chief appraiser, if he discovers
that real property was omitted from an appraisal roll in any one of the
4
five preceding years, to add the appraised value of the omitted
property to the appraisal records as of January 1 of each year that it
was omitted. Please be advised that the City of Aledo [or the City of
Willow Park] has informed me that the property described above was
located within its jurisdiction but was not included on its appraisal roll
for the tax years described on the attached tax statement.
Therefore, the property value must be supplemented to the City’s
appraisal roll and City of Aledo [or City of Willow Park] taxes
collected for each year that it was omitted.
You have a right to appeal this determination to the Parker County
Appraisal Review Board (ARB). To appeal, you must file a
WRITTEN protest with the ARB before November 3, 2008.
Enclosed is a protest form to send the appraisal district. . . .
The total tax shown is due upon receipt and will be delinquent if not
paid before February 1, 2010.
Hammonds attached to each “Notice of Omitted Property Determination” a
supplemental tax bill indicating what the owner’s taxes for the years 2003
through 2007 were based on the supplemental assessment.
Some of the Taxpayers—the Hieberts and the Kretzschmars—filed
protests.4 The Parker County ARB entered orders on the protests on December
16, 2008. Each of the orders stated that based on the evidence, the Parker
County ARB determined that “[t]he subject property was omitted from the city’s
appraisal roll and meets the requirements of Section 25.21 for back assessment.”
4
Even though the Hieberts and the Kretzchmars were the only parties to
this suit to file protests, several other affected property owners not parties to this
suit filed protests. In each of these protests, the Parker County ARB entered
orders identical to those entered in the Hieberts’ and the Kretzchmars’ protests.
5
On December 9, 2008, the Parker County ARB approved the supplemental
appraisal records for the 2008 tax year. The order approving the supplemental
appraisal records provided,
ORDER APPROVING SUPPLEMENTAL
APPRAISAL RECORDS FOR 2008
On December 9, 2008, the Appraisal Review Board of Parker
County, Texas, met to approve supplemental appraisal records for
tax year 2008.
The board finds that the supplemental records, as corrected
by the chief appraiser according to the orders of the board, should
be approved and added to the appraisal roll for the district.
The board therefore APPROVES the supplemental records as
corrected.
The chairman of the Parker County ARB signed the order.
With the exception of Brennan and Smith, all of the Taxpayers paid the
taxes before March 2010. In March 2010, the City of Willow Park brought suit
against Brennan and Smith to collect taxes for the years 2003 through 2007.
Brennan and Smith counterclaimed, the rest of the Taxpayers intervened, and
the Taxpayers joined as third parties the City of Aledo, the Parker County
Appraisal District, the Parker County ARB, Hammonds in his official capacity as
Parker County Tax Assessor/Collector, and the members of the Parker County
ARB in their official capacities.5 The Taxpayers asserted counterclaims and
third-party claims for declaratory judgment, injunctive relief, and mandamus relief
against the City of Willow Park, the City of Aledo, the Parker County Appraisal
5
The members of the Parker County ARB are not parties to this appeal.
6
District, the Parker County ARB (collectively, the Government Entities),
Hammonds, and the members of the Parker County ARB (collectively, the
Government Officials). The Taxpayers sought declaratory relief as to the
impropriety of the Government Entities’ and Government Officials’ actions, as
well as a refund of the taxes they paid to the Cities for the tax years 2003–2007.
The Taxpayers also filed a motion to certify a class action of “no less than 250”
property owners in the Cities who, in 2008, were assessed city property taxes on
their properties for the tax years 2003 through 2007.
The Government Entities and Hammonds filed pleas to the jurisdiction,
alleging that that the Taxpayers had failed to exhaust their administrative
remedies, and that, in any event, the Government Entities and Hammonds were
entitled to governmental immunity. Brennan, 376 S.W.3d at 915. The trial court
granted the pleas to the jurisdiction and dismissed with prejudice the Taxpayers’
counterclaims and third-party claims. Id. The Taxpayers appealed. Id. This
court determined that the trial court erred in granting the pleas to the jurisdiction
on both grounds, reversed the trial court’s judgment, and remanded the
Taxpayers’ claims to the trial court. Id. at 928.
After remand, the City of Aledo filed a motion for summary judgment
alleging that the assessed back taxes were not invalid or void on several
grounds. The trial court heard the City of Aledo’s motion and the Taxpayers’
motion to certify a class action on the same day. The City of Willow Park
7
nonsuited its collection suit because by then all of its taxes had been paid.6 The
trial court rendered orders denying the City of Aledo’s motion for summary
judgment and the Taxpayers’ motion to certify a class action. Both the
Taxpayers and the City of Aledo appeal the denial of their respective motions.
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3); Tex. R. App. P. 28.2.
II. This Court’s Prior Opinion
The Taxpayers argue in the context of their class certification appeal that
the facts pled to defeat the Government Entities and Hammonds’s jurisdictional
arguments in the prior appeal support “an eventual outcome” in their favor.
Accordingly, we will summarize the arguments and holding of our prior opinion as
they inform our analysis of this appeal.
Pertinent to this appeal is our resolution of the Government Entities and
Hammonds’s contention in the prior appeal that tax code section 42.09,7 entitled
“Remedies Exclusive,” barred the Taxpayers’ claims because they failed to
exhaust their administrative remedies as set forth in chapter 41 of the tax code
concerning either the October 28, 2008 determination of omitted property, the
enclosed supplemental tax bills, or the December 9, 2008 Parker County ARB
order. See Brennan, 376 S.W.3d at 917 (citing Tex. Tax Code Ann. §§ 41.01–
6
Brennan and Smith paid the assessed back taxes, plus penalties and
interest, in September 2012.
7
Section 42.09 provides, in part, that “procedures prescribed by this title for
adjudication of the grounds of protest authorized by this title are exclusive.” Tex.
Tax Code Ann. § 42.09(a) (West 2015).
8
.71,8 42.09 (West 2015 & Supp. 2015) (outlining the administrative protest
procedure available to a property owner to challenge valuation of his property by
an appraisal district); Webb Cty. Appraisal Dist. v. New Laredo Hotel, 792
S.W.2d 952, 954 (Tex. 1990) (discussing protest procedure)). In response, the
Taxpayers argued (1) that exhaustion of administrative remedies—that is,
utilization of the protest procedure set forth in chapter 41—was not required
based on the exceptions to the exhaustion-of-administrative-remedies doctrine
and (2) that the doctrine did not apply because the Government Entities and
Hammonds acted outside their statutory powers. Id.
In resolving the issue, we pointed out that the notices sent to the
Taxpayers in October 2008 stated that they were sent pursuant to section 25.21,
which addresses the situation in which property has been omitted from the
appraisal district’s appraisal records. Id. at 918. Section 25.21 provides as
follows:
(a) If the chief appraiser discovers that real property was
omitted from an appraisal roll in any one of the five preceding years
or that personal property was omitted from an appraisal roll in one of
the two preceding years, he shall appraise the property as of
January 1 of each year that it was omitted and enter the property
and its appraised value in the appraisal records.
8
Some of the sections of chapter 41 of the tax code cited in our prior
opinion have been amended since the opinion was issued. Because these
amendments do not impact the issues raised in our prior opinion or in these
consolidated appeals, we cite to the current version of the statute.
9
(b) The entry shall show that the appraisal is for property that
was omitted from an appraisal roll in a prior year and shall indicate
the year and the appraised value for each year.
Tex. Tax Code Ann. § 25.21 (West 2015) (emphasis added). The remedy
provided by section 25.21 is the entry of “the property and its appraised value in
the appraisal records.” Brennan, 376 S.W.3d at 918 (quoting Tex. Tax Code
Ann. § 25.21). But in this case, the Taxpayers’ properties were already properly
appraised and entered in the Parker County appraisal records for the years 2003
through 2007, and they paid all property taxes assessed against their properties
for the years 2003 through 2007. Id. at 919. But the taxing units—the Cities—
were not listed in the Parker County appraisal records from 2003 through 2007
as taxing units in which the Taxpayers’ properties were taxable. Id. Thus, the
taxes assessed against the Taxpayers’ properties and paid by them for the years
2003 through 2007 did not include city taxes. Id. Section 25.21 does not provide
a remedy for omitted taxing units. Id. Thus, we held that in the absence of any
other statutory authorization the Government Entities and Hammonds acted
outside their statutory authority by utilizing section 25.21 to add the Cities as
taxing units to the 2003 through 2007 appraisal records. Id.
The Government Entities and Hammonds also contended in the prior
appeal that section 25.23(a)(1), entitled “Supplemental Appraisal Records,”
authorized them to utilize section 25.21 to include the Cities as taxing units in the
supplemental 2008 appraisal records and that the Parker County ARB’s
December 9, 2008 order approved those supplemental appraisal records. Id.;
10
see Tex. Tax Code Ann. § 25.23(a)(1) (West Supp. 2015).9 The Government
Entities and Hammonds further asserted that the Taxpayers should have
protested the December 9, 2008 ARB order. Brennan, 376 S.W.3d at 919. We
held that the Government Entities and Hammonds’s argument failed for two
reasons. See id. at 919–20. First, section 25.23(a)(1), like section 25.21,
authorizes supplemental appraisal records that add omitted “property,” not
omitted “taxing unit[s,]” and the two statutorily defined terms are not
interchangeable. Id. (citing Tex. Tax Code Ann. §§ 1.04(1), (12), 25.23(a)(1)
(West 2015)). Second, to the extent that section 25.23 could be construed to
authorize the chief appraiser to prepare supplemental appraisal records including
property that was omitted from an appraisal roll in a prior tax year (like the
Government Entities and Hammonds contended the Taxpayers’ properties were
omitted from the Cities’ appraisal rolls in this case), section 25.23 dictates the
substantive and procedural mechanisms required to generate supplemental
appraisal records, which were not followed in this case. Id. at 920; see Tex. Tax
Code Ann. § 25.23.
Accordingly, we held that the Taxpayers’ failure to exhaust administrative
remedies concerning the October 2008 section 25.21 notice and enclosed tax
9
In 2015, section 25.23 was amended to add subsection (a–1), which only
applies to appraisal records for the 2015 tax year and expires December 31,
2016. See Act of May 29, 2015, 84th Leg., R.S., ch. 465, § 3, sec. 25.23, 2013
Session Law Serv. 1778, 1779 (West) (codified at Tex. Tax Code § 25.23(a–1)).
Because this amendment does not impact the issues raised in our prior opinion
or in these consolidated appeals, we cite to the current version of the statute.
11
bills or concerning the December 9, 2008 Parker County ARB order approving
the supplemental appraisal records for 2008 fell within one of the exhaustion-of-
administrative-remedies doctrine’s exceptions—that the Parker County Appraisal
District and the Parker County ARB acted outside their statutorily authorized
power by utilizing section 25.21 or section 25.23(a)(1) to assess back city taxes
against the Taxpayers based on the omission of taxing units from the Parker
County Appraisal District’s appraisal records. Brennan, 376 S.W.3d at 921–22.
And to the extent that section 25.23 did authorize the supplementation of the
Cities’ appraisal rolls with the Taxpayers’ property, the Government Entities and
Hammonds failed to comply with the statutory requisites to do so. Id. at 923.
Because we determined that the Taxpayers’ failure to pursue any type of protest
procedure fell within the acting-outside-statutory-powers exception to the
exhaustion-of-administrative-remedies doctrine, we held that the trial court erred
by granting the Government Entities and Hammonds’s plea to the jurisdiction on
the ground that the Taxpayers failed to exhaust their administrative remedies
under the tax code. See id. at 922, 928.
III. Denial of Class Action Certification
In their sole issue in this appeal, the Taxpayers contend that the trial court
erred by denying their motion for class action certification.
A. Standard of Review
We review a class certification order for an abuse of discretion. Sw. Ref.
Co. v. Bernal, 22 S.W.3d 425, 439 (Tex. 2000). A trial court abuses its discretion
12
if it acts without reference to any guiding rules or principles, that is, if the act is
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire
v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial court also abuses its
discretion by ruling without supporting evidence. Ford Motor Co. v. Garcia, 363
S.W.3d 573, 578 (Tex. 2012).
In determining whether the trial court abused its discretion in denying class
certification, we do not view the evidence in a light most favorable to the trial
court’s decision nor do we entertain every presumption in favor of the trial court’s
decision. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690–91 (Tex. 2002).
We determine whether the trial court, before ruling on a class certification,
performed a “rigorous analysis” of whether all prerequisites to certification have
been met. Bernal, 22 S.W.3d at 435. Compliance with class action requirements
“must be demonstrated; it cannot merely be presumed.” Henry Schein, 102
S.W.3d at 691 (citing Bernal, 22 S.W.3d at 435). Further, “there is no right to
litigate a claim as a class action. Rather, Rule 42 provides only that the court
may certify a class action if the plaintiff satisfies the requirements of the rule.”
Bernal, 22 S.W.3d at 439 (quoting Sun Coast Res., Inc. v. Cooper, 967 S.W.2d
525, 529 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d w.o.j.) (op on reh’g));
see Tex. R. Civ. P. 42(a)–(b); Ridgeway v. Burlington N. Santa Fe Corp., 205
S.W.3d 577, 581 (Tex. App.—Fort Worth 2006, pet. denied) (holding appellant
seeking to reverse order denying class certification “faces a formidable task” and
must demonstrate that rule 42 requirements were satisfied and that the “trial
13
court’s refusal to certify the class was legally unreasonable under the facts and
circumstances of the case”). Not only must the Taxpayers demonstrate that they
satisfied all of the rule 42 requirements for certification, but they must also show
that the trial court’s refusal to certify the class was legally unreasonable under
the facts and circumstances of the case. See Doran v. ClubCorp USA, Inc., 174
S.W.3d 883, 888 (Tex. App.—Dallas 2005, no pet.); Fuller v. State Farm Cty.
Mut. Ins. Co., 156 S.W.3d 658, 660 (Tex. App.—Fort Worth 2005, no pet.). So
long as the trial court acted rationally in the exercise of its discretion, we will
uphold its ruling denying certification. Vinson v. Tex. Commerce Bank–Houston
Nat’l Ass’n, 880 S.W.2d 820, 824–25 (Tex. App.—Dallas 1994, no writ) (“[E]ven if
certification would have been proper [under rule 42], a denial may still not be an
abuse of discretion.”).
B. Class Action Certification
Texas Rule of Civil Procedure 42 governs class action certification.10 See
Tex. R. Civ. P. 42. A class action may be maintained only if it satisfies the four
requirements of rule 42(a): (1) numerosity (“the class is so numerous that joinder
of all members is impracticable”); (2) commonality (“there are questions of law, or
fact common to the class”); (3) typicality (“the claims or defenses of the
representative parties are typical of the claims or defenses of the class”); and (4)
10
Rule 42 is patterned after Federal Rule of Civil Procedure 23;
consequently, federal decisions and authorities interpreting current federal class
action requirements are persuasive authority. Bernal, 22 S.W.3d at 433.
14
adequacy of representation (“the representative parties will fairly and adequately
protect the interests of the class”). Tex. R. Civ. P. 42(a); Bernal, 22 S.W.3d at
433. In addition to the subsection (a) prerequisites, a class action must meet one
of the three requirements under rule 42(b). Tex. R. Civ. P. 42(a)–(b); Bernal, 22
S.W.3d at 433.
The Taxpayers sought certification under both rule 42(b)(2) and (b)(3).
Subsection (b)(2) provides that an action may be maintained as a class action
when “the party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final injunctive relief
or corresponding declaratory relief with respect to the class as a whole.” Tex. R.
Civ. P. 42(b)(2). Subsection (b)(3) provides that an action may also be
maintained as a class action when “the questions of law or fact common to the
members of the class predominate over any questions affecting only individual
members, and a class action is superior to other available methods for the fair
and efficient adjudication of the controversy.” Tex. R. Civ. P. 42(b)(3). The
nonexhaustive factors the trial court should consider in this determination are (A)
the interest of members of the class in individually controlling the prosecution or
defense of separate actions, (B) the extent and nature of any litigation
concerning the controversy already commenced by or against members of the
class, (C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum, and (D) the difficulties likely to be encountered in
the management of a class action. Tex. R. Civ. P. 42(b)(3)(A)–(D).
15
C. The Taxpayers’ Claims
The Taxpayers pled claims for declaratory, injunctive, and mandamus
relief. Specifically, they sought declarations that the relevant statutes (1) do not
permit the Parker County ARB to allow automatic assessment of property taxes
owed for previous years without the taxing units’ first exhausting administrative
remedies, (2) do not allow the sending of tax bills before the tax rolls are
approved, (3) do not allow the assessment of property for previous years when
the approved rolls do not specify the tax years being modified, (4) make the
2003–2007 assessment void ab initio, making any payments involuntary and
entitling the Taxpayers to a refund, (5) do not allow the supplementation of
“omitted property” to tax rolls where that property previously appeared in the
appraisal records for all years in question and those appraisal records containing
such property were approved and subsequently assessed, (6) define explicitly
and require the separate listing of “property,” “appraised value,” all “taxing units,”
and all “tax years” in which a property is taxable in the appraisal records, the
appraisal roll, and the tax roll, and (7) as applied by the Government Entities and
Government Officials in this case, violate the due process and equal protection
clauses of the Texas Constitution.
In support of their claim for injunctive relief, the Taxpayers pled in part that
61. The Cities and Larry Hammonds are seeking to collect
assessments from Counter–Plaintiffs and the class members for
prior years, which assessments this lawsuit seeks to have declared
void.
16
62. The Government Officials have committed various acts that are
ultra vires of the scope of their authority under the Tax Code and
that violate the due process and equal protection clauses of the
Texas Constitution.
63. Specifically, the Tax Code limits the method and process by
which the Government Entities and Government Officials may
assess and collect taxes—that method and process constitutes due
process for the taxpayers. By failing to operate within that method
and process, the Government Entities and Government Officials
have violated due process.
64. Additionally, the attempted collection of assessments from any
Counter–Plaintiffs and class members who obtained their properties
in the midst of the 2003–2007 period and the refusal to collect the
taxes from the prior owners constitutes an equal protection violation.
65. Counter–Plaintiffs and the class members will suffer immediate
and irreparable injury, loss, or damage if the collection of the
assessments described above is not permanently enjoined because
Counter–Plaintiffs could suffer the loss or diminution of their property
via tax liens and significant penalties and interest through the
imposition and collection of the assessments on their respective
properties. Additionally, the loss of constitutional protection is
irreparable harm.
66. Counter–Plaintiffs do not have an adequate remedy at law
because money alone will not compensate for the imposition of
illegal assessments on Counter–Plaintiffs’ properties or the failure of
the Government Entities and Government Officials to comply with
the law and the Texas Constitution.
Based on these allegations, the Taxpayers sought an injunction restraining the
Government Officials from exceeding the scope of their authority, restraining the
Cities and Hammonds from collection of “invalid assessments,” and restraining
17
the Government Entities from allowing the Cities to avoid exhausting their
administrative remedies via a challenge petition.11
Lastly, the Taxpayers sought a writ of mandamus compelling the
Government Officials to void the assessments on the Taxpayers’ properties by
the Cities for the tax years 2003–2007 and to refund all ad valorem taxes paid to
the Cities on the Taxpayers’ properties for the tax years 2003–2007.
D. Analysis
All of the Taxpayers and all of the prospective class members have paid
the assessed back property taxes for the tax years 2003 through 2007. The
Taxpayers’ ultimate objective is a refund of the taxes paid, and they state that
their claim for “damages” is wholly dependent upon their claims for declaratory
and injunctive relief.
When the claim is primarily one for monetary relief, notice and an
opportunity to opt out of the class normally would be required in a (b)(2) class as
they would be in a (b)(3) class. Doran, 174 S.W.3d at 887 (citing Compaq
Computer Corp. v. Lapray, 135 S.W.3d 657, 668–69 (Tex. 2004)). The
Taxpayers concede that “regardless of the subsection used, notice and opt-out
provisions should be granted to the putative class.” “Although (b)(2) does not
11
See Tex. Tax Code Ann. § 41.03(a)(5) (stating that a taxing unit is
entitled to challenge before the appraisal review board the failure to identify the
taxing unit as one in which a particular property is taxable). See generally
Atascosa Cty. v. Atascosa Cty. Appraisal Dist., 990 S.W.2d 255, 259 (Tex. 1999)
(discussing challenges by taxing units to appraisal district decisions under
chapters 41 and 42 of the tax code).
18
explicitly require predominance and superiority as (b)(3) does, (b)(2) does require
a rigorous analysis of ‘cohesiveness.’” Lapray, 135 S.W.3d at 670. If notice and
opt-out rights are provided to a (b)(2) class, the class cohesion analysis often
“will be identical to the ‘predominance and superiority’ directive undertaken by
the trial courts certifying (b)(3) classes.” Id. at 671. Because the trial court
refused to certify a class under both (b)(2) and (b)(3) and the Taxpayers concede
that notice and op-out provisions should be granted to the putative class, the
(b)(2) cohesiveness and (b)(3) predominance and superiority analyses are
identical in this case. See id.; see also Doran, 174 S.W.3d at 887–88.
“[P]redominance is ‘one of the most stringent prerequisites to class
certification.’” Lapray, 135 S.W.3d at 663 (quoting Bernal, 22 S.W.3d at 433).
“The predominance requirement prevents class certification when complex and
diverse individual issues would overwhelm or confuse a jury or severely
compromise a party’s ability to present otherwise viable claims or defenses.”
Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201, 205 (Tex. 2007) (citing Henry
Schein, 102 S.W.3d at 690; Bernal, 22 S.W.3d at 434). “Certification is not
appropriate unless it is determinable from the outset that the individual issues
can be considered in a manageable, time-efficient and fair manner.” Id. (citing
Henry Schein, 102 S.W.3d at 688). The test for determining whether common
issues predominate is not whether the common issues outnumber individual
issues but whether the common or individual issues will be the object of most of
the litigants’ efforts. Bernal, 22 S.W.3d at 434. “If, after common issues are
19
resolved, presenting and resolving individual issues is likely to be an
overwhelming or unmanageable task for a single jury, then common issues do
not predominate.” Id. “[A] judgment in favor of the class should settle the entire
controversy and all that should remain is for the other class members to file their
proof of claim.” Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 554 (Tex. App.—
Houston [14th Dist.] 2002, no pet.).
In its order denying the Taxpayers’ motion to certify, the trial court
identified the following issues of fact and law common to the proposed class
members:
 How was the omission of the properties from the Cities’ tax rolls and
the failure to bill or collect the disputed taxes discovered?
 What specific actions were taken by Hammonds to correct the
omission, send notices and tax bills for the back taxes, and obtain approval
of the Parker County ARB for a supplemental tax roll?
 Did the omission of the class members’ properties from the Cities’
tax rolls from 2003 to 2007 cause the assessment and taxes for each of
those years to be illegal or void?
 Was there statutory or other authority for the actions taken by
Hammonds to back-assess taxes, send notices and tax bills, and
supplement the 2008 tax roll?
 Was Hammonds acting within his discretion as chief appraiser or the
Cities’ tax assessor-collector when he took these actions?
 Was there a rational basis to waive taxes for property owners
who sold their property during the 2003 to 2007 period?
The Taxpayers argue that once these common issues are decided, the only
individual issues left for the trial court to decide are (1) which city the class
20
member paid his or her taxes to and (2) how much the class member paid in
taxes. And, as they point out, evidence of both is already in the record.12
The Government Entities and Hammonds raised the voluntary payment
rule as a defense to the Taxpayers’ claims and argue that the rule bars class
certification in this case because it causes individual issues to predominate over
the issues common to the putative class. The trial court found that “the issues
concerning the application of the voluntary payment rule to each class member
will be the object of most of the efforts of the litigants and this [c]ourt” and that
“the issues common to members of the class do not predominate over individual
issues because litigation [over] the application of the voluntary payment rule as to
each individual class member predominate over the issues common to the
class.” The trial court also found that “the proposed class lacks sufficient
cohesiveness to warrant a class certification under rule 42(b)(2) even if notice
and opt-out were provided.”
The voluntary payment rule provides that “[a] person who pays a tax
voluntarily and without duress does not have a valid claim for its repayment even
if the tax is later held to be unlawful.” Dallas Cty. Cmty. Coll. Dist. v. Bolton, 185
S.W.3d 868, 876 (Tex. 2005). This rule “secures taxing authorities in the orderly
conduct of their financial affairs,” protects governmental entities from “threats
12
A list of all of the affected property owners was admitted into evidence at
the class-certification hearing. The list set forth each property owner’s name;
how much in taxes, principal, and interest for the tax years 2003 through 2007
each property owner paid; and the date the payment was made.
21
to . . . financial security that can arise from unpredictable revenue shortfalls,” and
“supports the age-old policies of discouraging litigation with the government.” Id.
at 876–77.
To avoid application of the rule, a payor must show some type of duress.
Id. at 877–78. There is “no exact rule as to what constitutes sufficient duress or
compulsion to make the payment of an illegal tax an involuntary payment[;] the
question is one to be determined from the particular circumstances under which
the payments are made.” Crow v. City of Corpus Christi, 209 S.W.2d 922, 924
(Tex. 1948). But “in all its forms (whether called duress, implied duress,
business compulsion, economic duress or duress of property),” a claim of duress
requires a showing of “improper or unlawful conduct or threat of improper or
unlawful conduct that is intended to and does interfere with another person’s
exercise of free will and judgment.” Bolton, 185 S.W.3d at 878–79.
The application of the voluntary payment rule can cause individual issues
to predominate and therefore preclude class certification. See Salvaggio v.
Houston ISD, 709 S.W.2d 306, 308 (Tex. App.—Houston [14th Dist.] 1986, writ
dism’d) (holding trial court did not abuse its discretion in refusing to certify a class
based on voluntary payment rule’s application where taxpayers were seeking
recovery of attorney-fee charges paid in connection with penalty and interest
charges for delinquent taxes). Here, the trial court recognized in its order
denying class certification that the claims of each class member would require
22
individual factual and legal inquiries as to the voluntary nature of the payment of
the assessed back taxes such as,
 Did the class member pay the taxes voluntarily?
 Did the class member comply with the tax code procedures
that would have allowed him to assert his right to refunds?
 Did the class member pay the taxes under duress or
coercion?
 What was the class member’s state of mind when payment
was made and what was the motive for his payment?
 When was the payment made in relation to the taxes
becoming delinquent and incurring penalties and interest?
 Did the class member protest the taxes before the appraisal
review board, and if so, what grounds were asserted?
 Did the class member file suit to challenge the assessment
and pay the tax prior to the delinquency date pending the resolution
of the suit?
 Did the class member indicate that payment was made under
protest?
 Did the class member express a willingness to pay the tax?
 Did the class member receive any favorable federal income
tax treatment from payment of the assessed back taxes?
 Did the class member receive adequate notice concerning the
disputed taxes?
 Was the class member denied procedural due process?
 If the facts concerning a particular class member are
undisputed, whether the payment was voluntary or involuntary is a
question of law.
23
The Taxpayers assert that no individualized inquiry is necessary for the
reason that the voluntary payment rule does not apply in this case as the class
members were under implied economic duress as a matter of law because of the
threats of penalties, interest, and tax liens, the actual imposition of penalties and
interest against some of the property owners in this case, and the Cities’ ability to
file suits to collect unpaid taxes and to foreclose on the tax liens. See Bolton,
185 S.W.3d at 877 (“We have referred to business compulsion and economic
duress as ‘implied duress,’ because the pressure to pay these government
exactions is indirect and flows from statutes or ordinances.”). They argue that
because these “coercive elements” are objectively present, an examination of the
subjective minds of the class members is not necessary.
Courts have held on specific facts that a payment of an illegal tax or fee
was made under duress so as to defeat a claim of voluntary payment. See, e.g.,
Lowenberg v. City of Dallas, 261 S.W.3d 54, 59 (Tex. 2008) (holding that
payment of city fee implemented through city ordinance and assessed against
commercial buildings to generate funds for fire protection services was not
voluntary when nonpayment of the fee constituted a Class C misdemeanor);
Miga v. Jensen, 96 S.W.3d 207, 211, 224–25 (Tex. 2002) (concluding that
compulsion “implied by the threat of statutory penalties and accruing interest”
constituted economic duress); Highland Church of Christ v. Powell, 640 S.W.2d
235, 237 (Tex. 1982) (holding duress could be implied from a statute which
imposed a penalty for failure to pay a tax); State v. Akin Prods. Co., 286 S.W.2d
24
110, 111–12 (Tex. 1956) (holding that if a reasonably prudent man finds that in
order to preserve his property or protect his business interest it is necessary to
make a payment of money which he does not owe, the taxes are paid under
duress); Crow, 209 S.W.2d at 925 (holding city ordinance requiring payment of
illegal cab operator’s license fee under threat of forfeiting the right to do business
constituted payment under duress or business compulsion as a matter of law).
But, despite these specific holdings, as the supreme court has noted, the
voluntary payment rule has been rendered largely unavailable in Texas due to
specific provisions of the tax code. See Bolton, 185 S.W.3d at 879–80; BMG
Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 769–71 (Tex. 2005). As pointed out
in Bolton, 185 S.W.3d at 879, tax code section 31.115 provides a mechanism
through which property taxes can be paid under protest:
Payment of an ad valorem tax is involuntary if the taxpayer indicates
that the tax is paid under protest:
(1) on the instrument by which the tax is paid; or
(2) in a document accompanying the payment.
Tex. Tax Code Ann. § 31.115 (West 2015).
Because section 31.115 provides a mechanism through which a taxpayer
may pay a tax under protest, we cannot agree with the Taxpayers that all of the
prospective class members were under implied economic duress as a matter of
law. See id.; cf. Bolton, 185 S.W.3d at 881 (“In light of the choices the students
retained and their right to request a waiver of the fees or otherwise protest the
25
imposition of the fee, any coercion that existed was not actual and imminent and
did not constitute duress as a matter of law.”). Accordingly, we cannot conclude
that trial court abused its discretion by finding that the voluntary payment rule
might apply to some members of the prospective class but not to others.
A list of the omitted properties admitted into evidence at the class-
certification hearing showed that all of the affected taxpayers had paid the back
property taxes for the tax years 2003 through 2007.13 Discovery excerpts also
admitted into evidence indicate that some of the Taxpayers—Brennan and Smith
and the Kaspers—noted on their tax payments that they were being paid under
protest. Thus, assuming that common issues in this case could be decided in
favor of the proposed class, it would be necessary to determine, on an individual
basis, the issues identified by the trial court in its order denying the Taxpayers’
motion to certify the class, particularly whether the voluntary payment rule
applies to each particular property owner. The trial court could have reasonably
concluded that after resolving the common issues, “presenting and resolving
individual issues [was] likely to be an overwhelming or unmanageable task for a
single jury.” Bernal, 22 S.W.3d at 434; see also Vinson, 880 S.W.2d at 825
(“Nevertheless, in this case, if appellants prevail as to any one of the common
issues of law, the members of the class must do more than prove the amount of
13
Some of the property owners presented tax certificates showing they had
purchased their property during or after the 2003 through 2007 timeframe and
were not required to pay taxes for the years prior to their ownership.
26
their individual claims.”). Thus, we conclude the trial court did not abuse its
discretion in denying the Taxpayers’ motion for class certification. Because we
have determined that the Taxpayers have failed to demonstrate that they
satisfied rule 42(b)(2) or 42(b)(3), which is dispositive of this issue, we need not
address their arguments regarding rule 42(a). See Tex. R. App. P. 47.1.
Accordingly, we overrule the Taxpayers’ sole issue.
IV. Denial of the City of Aledo’s Motion for Summary Judgment
In four issues, the City of Aledo complains in its appeal that the trial court
erred by denying its motion for summary judgment on the Taxpayers’ claims.
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P.
166a(b), (c).
27
B. Did Hammonds correctly follow tax code section 25.21?
In its fourth issue, the City of Aledo asserts that Hammonds correctly
followed tax code section 25.21 in assessing the back taxes. The City of Aledo
raised this issue in its motion for summary judgment “in the event this case is
appealed beyond the court of appeals” and carries it forward on appeal “merely
to preserve the issue.” Because this issue, as well as portions of the City of
Aledo’s first and third issues, have been decided previously by this court, our first
opinion in this case constitutes “law of the case” and will determine our resolution
of this issue, as well as portions of the City of Aledo’s first and third issues.
Under the “law of the case” doctrine, a decision rendered in a former
appeal of a case is generally binding in a later appeal of the same case. In re
Assurances Generales Banque Nationale, 334 S.W.3d 323, 325 (Tex. App.—
Dallas 2010, orig. proceeding); see In re Henry, 388 S.W.3d 719, 727 (Tex.
App.—Houston [1st Dist.] 2012, orig. proceeding [mand. denied]); Truck Ins.
Exch. v. Robertson, 89 S.W.3d 261, 264 (Tex. App.—Fort Worth 2002, no pet.).
Having decided an issue previously, a court of appeals is not obligated to
reconsider the matter in subsequent appeals. Paradigm Oil, Inc. v. Retamco
Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012); see also In re Henry, 388
S.W.3d at 727; In re Assurances Generales Banque Nationale, 334 S.W.3d at
325; Woods v. VanDevender, 296 S.W.3d 275, 279 (Tex. App.—Beaumont 2009,
pet. denied) (all citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.
2003)). It may do so in its own discretion, however, and there is not an absolute
28
bar to reconsideration if subsequent hearings, briefing, or pleadings have
modified the facts or relief sought. See Briscoe, 102 S.W.3d at 716–17. When,
however, the issue is really one of law, our discretion to revisit the issue will be
used sparingly, if at all. See, e.g., In re Henry, 388 S.W.3d at 728; City of Dallas
v. Jones, 331 S.W.3d 781, 784–85 (Tex. App.—Dallas 2010, pet. dism’d).
Regardless, our review of the record leads us to decline the invitation to revisit
the City of Aledo’s fourth issue and, as explained below, portions of its first and
third issues since they relate to questions of law.
Based upon our prior holding, we conclude that the City of Aledo failed to
prove as a matter of law that Hammonds correctly followed section 25.21 in
assessing the back taxes in this case. See Brennan, 376 S.W.3d at 918–22.
Accordingly, we overrule the City of Aledo’s fourth issue.
C. Are the taxes invalid or void?
In its first issue, the City of Aledo argues that the trial court erred by
denying its motion for summary judgment because the lack of specific statutory
authority for the assessment of back taxes in this case did not render the
assessment and resulting taxes void. In its motion and on appeal, the City of
Aledo relies on McPhail v. Tax Collector of Van Zandt County, 280 S.W. 260
(Tex. Civ. App.—Dallas 1925, writ ref’d), to support this contention.
In McPhail, the Van Zandt County school trustees, acting pursuant to new
legislation, formed the Colfax high school district by consolidating the Colfax and
Clowers districts and appointed seven trustees for the district. Id. at 262. The
29
new trustees organized the board and levied a tax on the property in the new
district at the same rate that had been levied by the trustees in the respective
school districts. Id. The tax rolls for the new district were delivered to the county
tax collector, but because of an omission by the tax assessor, the property of two
landowners was omitted from the tax rolls. Id.
Other property owners in the newly formed district brought suit to enjoin
the collection of the taxes. Id. at 261–62. They argued that the assessment was
illegal and void because not all property located within the district was included
on the assessor’s tax rolls. Id. at 265. In addressing this argument, the court
stated,
The failure of the assessor to assess the property of the two
taxpayers was just such an omission as frequently occurs in the
practical administration of tax laws. If such an oversight as this had
the effect of nullifying an entire assessment, interminable confusion
would prevail in regard to the collection of taxes; but such is not the
case. The taxpayer’s obligation is not thereby discharged, nor does
his property escape taxation. The law anticipated that such
mistakes would occur, and made provision for same. The general
procedure is that, where property for any reason has escaped
assessment for any year, it is the duty of the owner to render the
same and pay the tax; but, if he should fail to discharge this legal
duty, it becomes the duty of the assessor to assess the property for
the omitted year at the same rate under which it should have been
assessed, and attach the assessment as a supplement to the
regular rolls for the current year. While there is no definite provision
to this effect in the statute under consideration, yet it is the rule
applied in analogous situations, and is applicable here.
It is the duty of the tax assessor, under the statute in question,
to make a complete legal assessment of all property in the district
and this duty would not be discharged where an omission of this
nature takes place, unless the property is assessed in a
supplemental assessment as indicated above, or is brought forward
30
on an unrendered roll, which procedure the assessor is also
authorized to pursue.
Id. (emphasis added) (citations omitted).
In its summary-judgment motion, the City of Aledo argued that based on
the holding in McPhail—when no statute specifically applies, the assessor is still
under a duty to back-assess taxes and the taxpayer is still under a duty to pay
them—the back assessment made without statutory authority in this case did not
render the assessment or the taxes void. However, as pointed out by the
Taxpayers, section 41.03(a)(5) of the tax code allows a taxing unit to challenge
the failure to identify the taxing unit as one in which a particular property is
taxable by filing a challenge petition with the appraisal review board. See Tex.
Tax Code Ann. §§ 41.03(a)(5), .04. The appraisal review board is required to
hear a challenge only if the taxing unit files a petition with the board before June
1 or within fifteen days after the date that the appraisal records are submitted to
the board, whichever is later. Id. § 41.04. After notice and hearing, the board is
required to make a determination on the challenge, enter an appropriate written
order, and send notice of the determination to the taxing unit. Id. §§ 41.05–.07.
If “the board finds that the appraisal records are incorrect in some aspect raised
by the challenge,” it “shall refer the matter to the appraisal office and by its order
shall direct the chief appraiser to make . . . corrections in the records that are
necessary to conform the records to the requirements of law.” Id. § 41.07(b).
31
The Texas Constitution creates the obligation to appraise and assess
property for purposes of taxation and provides that all property must be equally
and uniformly taxed. See Tex. Const. art. VIII, § 1(a) (“Taxation shall be equal
and uniform.”), art. VIII, § 11 (“[A]ll lands and other property not rendered for
taxation by the owner thereof shall be assessed at its fair value by the proper
officer.”). The tax code creates a system for property tax administration, defines
taxable property, establishes exemptions, sets out procedures for appraisal, tax
assessment, and tax collection, and provides review and challenge procedures.
See Tex. Tax Code Ann. §§ 1.01–43.04 (West 2015 & Supp. 2015). It also
provides a mechanism through which the City of Aledo could have challenged its
omission from the 2003 through 2007 Parker County appraisal records. See id.
§§ 41.03(a)(5), .04. The City of Aledo does not explain why its failure to follow
the procedure set forth in the tax code does not render the assessment of the
taxes in this case void or invalid. And we do not believe the court’s holding in
McPhail, which predates the enactment of the current version of the tax code,
excuses the City of Aledo’s failure to follow this procedure.
The City of Aledo also argues on appeal that “under Texas law there was
no need for the back-assessment in this case because there were already valid
taxes and assessments of the subject properties for each tax year between 2003
and 2007.” In support of this contention, the City of Aledo cites George v. Dean,
which held that the two essential elements for a valid tax are a “legal levy by [a]
competent legislative authority” and “a valid assessment of the property upon
32
which such tax is levied by the officer or tribunal to whom this duty is committed
by law.” 47 Tex. 73, 84 (1877). The City of Aledo, however, did not raise this
argument in its motion for summary judgment. Thus, we do not address it. See
Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by
written motion, answer or other response shall not be considered on appeal as
grounds for reversal.”); see also Tex. R. App. P. 33.1(a)(1) (stating that as
prerequisite for presenting complaint for appellate review, record must show
complaint was made to trial court by timely request, objection, or motion).
The Taxpayers alleged that Hammonds had a duty to refrain from sending
the tax bills until the tax rolls were approved and sought a declaration that the tax
code did not permit Hammonds to send a tax bill before the tax roll was approved
and did not allow the assessment of property in previous years where the
approved rolls do not specify the tax years being modified. In its summary-
judgment motion, the City of Aledo argued that the tax code does not require that
the supplemental appraisal records be approved before the assessor mails a tax
bill to a property owner and that the “2008 tax year” language in the ARB order
included the supplement to the appraisal records made for the property that was
omitted from the City of Aledo’s appraisal rolls from 2003 through 2007. But as
we held in our previous opinion,
no supplemental appraisal records exist for the years 2003–2007 [in
the form required by tax code sections 25.23(b) and 25.02(a)(10)],
and thus supplemental appraisal records for the years 2003–2007
could not have been included within the supplemental appraisal
records approved by Parker County ARB in its December 9, 2008
33
order approving supplemental appraisal records for 2008. Because
section 25.23(a)(1) does not authorize the inclusion of the Cities as
taxing units in supplemental appraisal records and because the
statutory requisites for inclusion of [the Taxpayers’] properties on the
Cities’ appraisal rolls for the tax years 2003–2007 via supplemental
appraisal records were not met, Parker County ARB acted outside
its statutory authority by purporting to approve the inclusion of the
Cities as taxing units of [the Taxpayers’] properties for the years
2003–2007 via the December 9, 2008 order approving supplemental
appraisal records for 2008.
Brennan, 376 S.W.3d at 920–21 (footnote omitted).
Thus, the City of Aledo has failed to establish as a matter of law that the
assessed back taxes were not invalid or void. Accordingly, we overrule its first
issue.
D. Did the City of Aledo violate the Taxpayers’ equal protection rights?
The Taxpayers alleged that the City of Aledo violated their right to equal
protection by not attempting to collect taxes from former property owners who
owed taxes for the 2003 through 2007 period.14 In its second issue, the City of
Aledo asserts that the trial court erred by denying its motion for summary
judgment because the Taxpayers’ equal protection allegations are insufficient as
a matter of law as the City of Aledo had a rational basis for not pursuing
collection actions against former property owners. See Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998) (“An as-applied equal protection
14
The record shows that the property owners who presented tax
certificates showing that they purchased the property during or after the 2003–
2007 period were not required to pay assessed back property taxes for the years
they did not own the property. See Tex. Tax Code Ann. § 31.08.
34
claim requires that the government treat the claimant different from other
similarly-situated landowners without any reasonable basis.”), cert. denied, 526
U.S. 1144 (1999).
In its motion for summary judgment, the City of Aledo argued that
it is conceivable that tax collection is not being pursued against
former owners because, although those persons are still personally
liable for those taxes, there might not still be a lien on the subject
property securing payment of those taxes if a tax certificate was
erroneously issued showing no taxes owing. Tex. Tax Code
§§ 31.08(c), 32.01(a), 32.07(a). The additional costs associated with
pursuing collection suits against these former owners when their
location may or may not be known also provide a rational basis to
treat them differently.
The City of Aledo, however, provided no summary-judgment evidence to
establish this basis for not pursuing collection actions against former property
owners. See Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh’g) (explaining that
“neither the motion for summary judgment, nor the response, even if sworn, is
ever proper summary judgment proof”); Cuellar v. City of San Antonio, 821
S.W.2d 250, 252 (Tex. App.—San Antonio 1991, writ denied) (stating that
“motion for summary judgment is a pleading and may not be considered as
summary judgment evidence” (citing Kendall v. Whataburger, Inc., 759 S.W.2d
751, 754 (Tex. App.—Houston [1st Dist.] 1988, no writ))); see also Tex. R. Civ. P.
166a(c) (“No oral testimony shall be received at the [summary-judgment]
hearing.”). Because the City of Aledo failed to produce any summary-judgment
evidence establishing its right to summary judgment on the Taxpayers’ equal
35
protection claim, the trial court did not err in denying its motion for summary
judgment on this ground. Accordingly, we overrule the City of Aledo’s second
issue.
E. Did the City of Aledo violate the Taxpayers’ due process rights?
The Taxpayers alleged that the City of Aledo violated their due process
rights by failing to utilize the proper procedure under the tax code to assess and
collect the back taxes. They argue on appeal that the due process violation
occurred when the taxes were assessed without notice and a hearing, which left
the Taxpayers with no statutory opportunity to protest or contest Hammonds’s
actions as tax assessor/collector. The City of Aledo argues in its third issue—as
it did in its motion for summary judgment—that the Taxpayers’ due process
allegations fail as a matter of law because there was no lack of notice.
The collection of a tax constitutes a deprivation of property, and thus, a
taxing unit must afford a property owner due process of law. Appraisal Review
Bd. of El Paso Cty. Cent. Appraisal Dist. v. Fisher, 88 S.W.3d 807, 813 (Tex.
App.—El Paso 2002, pet. denied) (citing McKesson Corp. v. Div. of Alcoholic
Beverages & Tobacco, Dept. of Bus. Regulation of Fl., 496 U.S. 18, 36–37, 110
S. Ct. 2238, 2250–51 (1990)). “Due process, at a minimum, requires notice and
a fair opportunity to be heard prior to a deprivation of a protected property
interest.” Id.
The City of Aledo alleged in its motion for summary judgment that it did not
violate the Taxpayers due process rights because (1) the Taxpayers were
36
provided notice of a procedure to follow to challenge the supplemental appraisal
records, (2) there was no allegation that this notice was inadequate, and (3) if the
notice were inadequate, the Taxpayers had the right to challenge the sufficiency
of the notice before the Parker County ARB. See Tex. Tax Code Ann. § 41.411
(“A property owner is entitled to protest before the appraisal review board the
failure of the chief appraiser or the appraisal review board to provide or deliver
any notice to which the property owner is entitled.”).
The notices sent to the Taxpayers along with the tax bill informed them
that they had a right to appeal to the Parker County ARB Hammonds’s decision
as the chief appraiser to add the omitted taxing units to the appraisal rolls. The
Taxpayers complain this notice is insufficient because the Parker County ARB
does not have jurisdiction to review Hammonds’s actions as the Parker County
tax assessor/collector. We agree. As we pointed out in our prior opinion,
no protest procedures exist to contest an already-issued, statutorily
unauthorized tax bill received from the tax assessor collector on
already-appraised property. See Tex. Tax Code Ann. § 41.41(a)(9)
(authorizing protest of actions of chief appraiser, appraisal district, or
appraisal review board but not actions of tax assessor/collector);
Dallas Cent. Appraisal Dist. v. 1420 Viceroy Ltd. P’ship, 180 S.W.3d
267, 269–70 (Tex. App.—Dallas 2005, no pet.) (explaining that tax
code did not authorize protest of action of taxing unit).
Brennan, 376 S.W.3d at 917 n.6.
Accordingly, we conclude that the City of Aledo failed to establish its right
to judgment as a matter of law on the Taxpayers’ due process claims.
Accordingly, we overrule the City of Aledo’s third issue.
37
V. Conclusion
Having overruled the Taxpayers’ sole issue, we affirm the trial court’s order
denying their motion to certify a class action. Having overruled each of the City
of Aledo’s issues, we affirm the trial court’s order denying the City of Aledo’s
motion for summary judgment. We remand this case to the trial court for further
proceedings in accordance with this opinion.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: June 2, 2016
38