Houston Independent School District v. Old Farms Owners Association, Inc.

Opinion issued July 26, 2007  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-04-00538-CV

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HOUSTON INDEPENDENT SCHOOL DISTRICT, CITY OF HOUSTON, HARRIS COUNTY, HARRIS COUNTY EDUCATION DEPARTMENT, PORT OF HOUSTON AUTHORITY OF HARRIS COUNTY, HARRIS COUNTY FLOOD CONTROL DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT, AND HOUSTON COMMUNITY COLLEGE SYSTEM, Appellants

V.

OLD FARMS OWNERS ASSOCIATION, INC., WESTHEIMER OLD FARMS I, LTD., SUSAN C. LEE, TRUSTEE OF THE TRUST CREATED UNDER ARTICLE IV OF THE WILL OF KATHERINE P. BARNHART, DECEASED, AND DAVID NGUYEN INDIVIDUALLY AND D/B/A DAVID NGUYEN CONSTRUCTION, Appellees

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On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2002-15418

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DISSENTING OPINION

I respectfully dissent because I believe the majority's opinion erroneously undoes the savings clause in amended section 33.04 of the Tax Code and invites tax collection suits for old delinquent taxes that are uncollectible under the savings clause.

As the majority states, in this ad valorem tax case, the appellant taxing authorities, which include Harris County and other taxing units, ⁽¹⁾ challenged the trial court's decision that the taxing units are not entitled to penalties and interest for delinquent taxes owed for tax year 1997 on real property. It is undisputed that the taxing units had in their files the correct address of the taxpayer, Ronald E. Lee, the trustee of appellee, the Trust Created under Article IV of the Will of Katherine P. Barnhart ("the Trust"), which owned approximately 4.3 acres of property in Houston. It is also undisputed, that from 1993 until 1996, Lee received tax statements for the property at that address and that the Article IV Trust paid the taxes on the property for those years. Nevertheless, when a portion of the land was sold in 1997, HCAD--not appellees--listed Lee's address, incorrectly, as 4550 Post Oak Place, Suite 123 in Houston--an address that was out-of-date by 11 years. This was a unilateral mistake by HCAD; neither the Trust nor Lee sent a change of address form to the taxing units or otherwise requested a change in their mailing of record.

HCAD then provided the incorrect address to the Harris County tax collector's office for use in mailing out tax notices on the property for the taxing units, which had previously been taxing the property at the correct address. As a result, the 1997 tax bill for the property was mailed by the Harris County tax collector to Lee at the incorrect 4550 Post Oak Place address. Lee did not receive the 1997 tax bill, and it was returned to the Harris County tax office as "undeliverable." The Trust did not pay the 1997 taxes on the property. In 1999, the taxing units corrected their records to reflect the Trust's correct address, but there is no evidence that any of the delinquent tax statements were ever mailed to the Trust.

Following trial, the tax master found that the trustee did not receive tax statements in 1997, 1998, 1999, 2000, and 2001 and that the Trust never received the five-year section 33.04(b) notice for the 1997 delinquent taxes in 2000. These findings and the 1985 version of section 33.04 of the Tax Code were the basis for the tax master's recommendation that judgment be entered that the taxing units had waived penalties and interest for the 1997 delinquent tax year. The tax master based that recommendation on this Court's holding in Aldine Independent School District v. Ogg, 122 S.W.3d 257, 268 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (holding that "[w]hen a fiduciary is appointed by a tax-payer under section 1.11 [of the Tax Code], ⁽²⁾ the taxing unit must deliver all notices and tax bills to the fiduciary"). The judgment entered by the trial court in accordance with the tax master's recommendation is the subject of this appeal.  

The 1985 version of section 33.04 of the Tax Code, in effect in 1997 and still in effect on December 30, 1999, when the taxing units sued the Trust for taxes, penalties, and interest, provided in relevant part:

Notice of Delinquency. (a) At least once each year the collector for a taxing unit shall deliver a notice of delinquency to each person whose name appears on the current delinquent tax roll. However, the notice need not be delivered if:

(1) a bill for the tax was not mailed pursuant to the authorization provided by Section 31.01(f) of this code; or

(2) the collector does not know and by exercising reasonable diligence cannot determine the delinquent taxpayer's name and address.

(b) In addition to the notice required by Subsection (a) of this section, the tax collector for each taxing unit in each year divisible by five shall deliver by mail a written notice of delinquency to each person who owes a tax that has been delinquent more than one year and whose name and mailing address are known to the collector or can be determined by the exercise of reasonable diligence. . . .

(c) Penalties and interest on a tax delinquent more than five years or a multiple of five years are cancelled and may not be collected if the collector has not delivered the notice required by Subsection (b) of this section in each year that is divisible by five following the date on which the tax became delinquent for one year.

Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.40, 1985 Tex. Gen. Laws 2600, 2601 (quoted at Ogg, 122 S.W.3d at 262-63) (emphasis added). The 1985 version of the statute became effective August 26, 1985. See Ogg, 122 S.W.3d at 263.

Section 33.04 was amended in 1999, effective January 1, 2000. ⁽³⁾ See Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 16, sec. 33.04, 1999 Tex. Gen. Laws 5097, 5101, 5114; Ogg, 122 S.W.3d at 263. However, because the taxing units sued the Trust for delinquent taxes on December 30, 1999, the 1985 version of section 33.04, and not the 1999 version, applied to the taxing units' 1999 collection suit against the Trust. Moreover, the 1985 version would still have applied had the taxing units sued the trust two days later, i.e., on or after January 1, 2000, under the savings clause in the 1999 Act. See Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 45, 1999 Tex. Gen. Laws 5097, 5114; see also Ogg, 122 S.W.3d at 263.

The taxing authorities dismissed the collection suit they had filed against the Trust in 1999 for delinquent 1997 taxes. Then, in 2002, after the effective September 1, 2002 date of the current version of section 34.001, the taxing authorities refiled their suit. Applying the 1985 Act, the tax master found that the taxing units were not entitled to collect penalties and interest on the Trust's 1997 delinquent taxes, and the trial court affirmed that finding.

I agree with the tax master and the trial court that penalties and interest are not collectable on the Trust's 1997 taxes under the plain language of the 1985 version of section 33.04 because there is no evidence in the record that either notice of the 1997 taxes or the five-year notice of delinquency of those taxes deliverable in 2000 was ever delivered to the Trust, the taxpayer, even though the taxing units had the correct address for the trustee, Lee, in their files and because the failure to send the required notices to the trustee's correct address was entirely due to the taxing units' own unilateral mistakes. Because the taxing units did not deliver the notice required by subsection (b) of the 1985 version of section 33.04 to the trustee, whose name and correct address were known to the taxing units, penalties and interest on the Trust's 1997 taxes were cancelled pursuant to section (c) of the 1985 version of section 33.04 and could not be collected. ⁽⁴⁾ See Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.40, 1985 Tex. Gen. Laws 2600, 2601; Ogg, 122 S.W.3d at 268 (citing section 1.11 of the Tax Code and holding that taxing unit must deliver all notices and tax bills to fiduciary appointed by taxpayer upon request by taxpayer and that request for delivery to fiduciary remains in effect until revoked by taxpayer).

The majority, however, does not apply the 1985 version of section 33.04 that governed the December 30, 1999 collection suit against the Trust. Nor does it apply the 1999 version of section 33.04 as it existed in 2001, immediately prior to the effective date of the 2001 amendments. Rather, relying upon excerpts from the amendatory language to the 2001 Act, the majority accepts the taxing units' argument that the current version of section 33.04 governs this suit--which was refiled in 2002, after the September 1, 2002 effective date of the current version of section 33.04--and that the current statute permits them to collect penalties and interest on the Trust's 1997 taxes because, under the current statute, penalties and interest on delinquent taxes are not excused by a taxing unit's failure to send a five-year delinquency notice. ⁽⁵⁾ See Tex. Tax Code Ann. § 33.04 (Vernon 2001). The majority holds, therefore, that the taxing units may collect penalties and interest on the Trust's 1997 delinquent taxes.

In deciding that the 2001 version of section 33.04 governs, the majority relies on its construction of the 2001 Act amending section 33.04, which states, in section 40, "Section 33.04, Tax Code, as amended by this Act, does not apply to taxes subject to a delinquent tax suit pending before the effective date of this Act." Act of May 17, 2001, 77th Leg., R.S., ch. 1430, § 40, 2001 Tex. Gen. Laws 5109, 5122 (emphasis added). That sentence is followed immediately by the statement, "Section 33.04, Tax Code, as amended by this Act, applies to all other taxes that became delinquent before the effective date of this Act or that become delinquent on or after that date." Id.

The majority overlooks, however, the rest of the paragraph in which the foregoing language is found, which states: "A delinquent tax that is the subject of a collection suit filed before the effective date of this Act is governed by Section 33.04, Tax Code, as that section existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose." Act of May 17, 2001, 77th Leg., R.S., ch. 1430, § 40, 2001 Tex. Gen. Laws 5109, 5122 (emphasis added). This sentence--which contains no qualifier that the collection suit still be pending as of the effective date of the 2001 amendments--follows the language relied on by the majority as grounds for applying the 2001 version of section 33.04 and is clearly not intended to be superfluous. Rather, it is a savings clause, and it can only be reasonably interpreted as exempting from collection penalties and interest on delinquent taxes that became due before September 1, 2001 that were the subject of any collection suit filed before September 1, 2001, regardless of whether that suit was prosecuted to completion, dismissed, or pending on September 1, 2001. The savings clause expressly states that the previous law is continued in effect for that purpose--not just to exempt from collection delinquent taxes that were the subject of a suit pending on September 1, 2001.

The reason for the broad language in the savings clause in the 2001 Act that amended section 34.001 is clear: the clause was intended to prevent taxing authorities from fashioning an end-run around the preclusions to collection in the prior law by non-suiting suits it had filed prior to the September 1, 2001 effective date of the amendments and then (as here) resurrecting those suits under the new law and collecting the previously non-collectable interest and penalties. The savings clause cannot be reasonably read to bar the prosecution only of suits taxing authorities had prosecuted to completion under prior law because these suits were already barred by the law of res judicata. Indeed, to interpret the savings clause as having any purpose other than to prevent suits, like the present one, that resurrect claims to penalties and interest not collectable under prior law renders the savings clause null.

The rules of statutory construction provided by the Texas Legislature for the guidance of courts require that every statement in the application clause of a statute be given effect and that the result be just and reasonable. See Tex. Gov't Code Ann. § 311.021(2), (3) (Vernon 2005) (stating that "the entire statute is intended to be effective"; "a just and reasonable result is intended"). Moreover, just as it is presumed that an entire statute is intended to be effective, so it should be presumed that an entire legislative act is intended to be effective. HCAD v. Dincans, 882 S.W.2d 75, 77 (Tex. App.--Houston [14th Dist.] 1994, no writ); Allegheny Mut. Cas. v. State, 710 S.W.2d 139, 141 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd) (same). In construing a statute, whether it is considered ambiguous or not, the court may consider among other matters the "consequences of a particular construction." Tex. Gov't Code Ann. § 311.023(5); H & C Commc'ns v. Reed's Food Int'l, Inc., 887 S.W.2d 475, 477 (Tex. App.--San Antonio 1994, no writ).

Amendments to the same statute enacted at the same session of the legislature must also be harmonized, if possible, so that effect may be given to each, and the provisions in a statute must be harmonized such that if a general provision appears to conflict with a special provision, "the provisions shall be construed, if possible, so that effect is given to both." Tex. Gov't Code Ann. §§ 311.025(b), 311.026. In this regard, the Texas Supreme Court has repeatedly held that "we 'give effect to all the words of a statute and [do] not treat any statutory language as surplusage[,] if possible.'" Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (quoting Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987)). The court should not construe statutory language "in a way that renders it idle or inoperative"; it cannot presume that the legislature intended "a blatant redundancy." Spradlin, 34 S.W.3d at 580; Hanson v. Jordan, 145 Tex. 320, 198 S.W. 262, 263 (1946)). Statutory provisions must be irreconcilable before one will take precedence over the other. H & C Commc'ns, 887 S.W.2d at 478. Nor may a court insert additional words into a statutory provision unless it is necessary to give effect to clear legislative intent. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981); H & C Commc'ns, 887 S.W.2d at 478. Finally, "[a] statute is presumed to be prospective in its operation unless expressly made retrospective." Tex. Gov't Code Ann. § 311.022 (Vernon 2005).

Here, section 33.04 as amended--effective September 1, 2001--is expressly made retrospective only for collection suits for penalties and interest that were not the subject of collection suits filed before September 1, 2001; penalties and interest sought in suits filed under the old law are expressly saved from collection by the savings clause to the 2001 Act.

By reading into the savings clause of the 2001 amending Act the requirement that a suit be pending as of September 1, 2001 in order for the savings clause to apply, the majority reads restrictive language into the clause that is not there and that makes the actual savings clause redundant, in violation of the rules of statutory construction, which require that every statement in a statute--and, by extension, every statement in the application clause of a statute--be given effect, that none be added unless absolutely necessary, and that the provisions in a statute be harmonized.

Even more critically, the majority fails to take into account the consequences of its construction of the savings clause to the 2001 amendments. Specifically, its construction of the 2001 amending Act as saving from prosecution only those collection suits that were pending on September 1, 2001 eviscerates the savings clause by effectively inviting the taxing units to refile--or to continue the prosecution of--all the collection suits for taxes and penalties it dismissed prior to September 1, 2001 because they were uncollectible under the prior law. In other words, the opinion invites the end-run around the prohibitions against suits for the collection of penalties and interests on delinquent taxes uncollectible under prior law that the savings clause to the current version of section 34.001 is designed to preclude.

Because the taxing units filed suit in 1999 against the Trust to collect penalties and interest on the Trust's delinquent 1997 taxes, I would hold that their 2002 suit for penalties and interest on the same 1997 taxes is barred by the plain language of the savings clause to the 2001 amendments to section 33.04 of the Tax Code. I would further hold that the tax master correctly construed and applied the law set out in prior section 33.04 of the Tax Code and the savings clause in the 2001 Act, which amended section 33.04, and that the trial court correctly entered judgment on the tax master's recommendation that appellants are not entitled to collect penalties and interest on appellees' 1997 taxes.

Conclusion

I would affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Justice Keyes, dissenting.

1. The other taxing units are Houston Independent School District, the City of Houston, Harris County Education Department, Port of Houston Authority of Harris County, Harris County Flood Control District, Harris County Hospital District, and Houston Community College System. It appears that the Harris County Tax Collector-Assessor collects taxes for the taxing units in this case.

2. Section 1.11, in effect since 1981, provides:

(a) On the written request of a property owner, an appraisal office or an assessor or collector shall deliver all notices, tax bills, and other communications relating to the owner's property or taxes to the owner's fiduciary.

(b) A request pursuant to this section remains in effect until revoked by the owner.

Tex. Tax Code Ann. § 1.11 (Vernon 2001); see also Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 268 (Tex. App.--Houston [1st Dist.] 2003, no pet.).

3. The amended version applied only to section 33.04(b) notices given in and after 2000, so that notices required to be given under the section in 1997 were governed by the 1985 version of section 33.04. See Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 45, 1999 Tex. Gen. Laws 5097, 5114; Ogg, 122 S.W.3d at 263. As amended effective January 1, 2000, section 33.04 provided:

NOTICE OF DELINQUENCY. (a) At least once each year the collector for a taxing unit shall deliver a notice of delinquency to each person whose name appears on the current delinquent tax roll. . . .

(b) In addition to the notice required by Subsection (a), the collector for each taxing unit in each year divisible by five shall deliver by mail a written notice of delinquency to:

(1) each person whose name and mailing address are listed on the most recent certified appraisal roll, if the taxes on the property of that person are shown on the collector's records as having been delinquent more than one year; . . .

. . . .

(d) In a suit brought against a person entitled to receive notice under Subsection (b) for the collection of penalties and interest on a tax delinquent more than five years or a multiple of five years, it is an affirmative defense available to the person that the collector did not deliver the notice required by Subsection (b).

. . . .

(f) A notice under this section is presumed to be delivered when it is deposited in regular first-class mail, postage prepaid, and addressed to the appropriate person under Subsection (b). Notwithstanding Section 1.07, the presumption of delivery under this section may not be rebutted with evidence of failure to receive the notice.

Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 16, sec. 33.04, 1999 Tex. Gen. Laws 5097, 5101. This version of section 33.04 remained in effect until the effective date of the 2001 amending Act, September 1, 2001.

4.

Likewise, had the tax master applied the 1999 version of section 33.04 to this case, the taxing units would still be unable to collect penalties and interest on the trust's 1997 taxes because the Trust proved up the affirmative defense of non-delivery of the five-year notice provided by subsection (d) of the 1999 version of section 33.04. Specifically, no evidence shows that either notice of the Trust's 1997 taxes or the five-year notice of delinquency of those taxes deliverable in 2000 was ever "deposited in regular first-class mail, postage prepaid, and addressed to the appropriate person under Subsection (b)," namely, the trustee.

5.

The 2001 amending Act eliminated subsections (b) through (f) of section 33.04, stating in section 40 that "[p]enalties and interest on a delinquent tax are not cancelled under Section 33.04, Tax Code, for failure to deliver any notice under that section as it existed immediately before the effective date of this Act." Act of May 17, 2001, 77th Leg., R.S., ch. 1430, § 40, 2001 Tex. Gen. Laws 5109, 5122.