Betty Andrews Rogers, Et Vir v. State

Rogers v. State

IN THE

TENTH COURT OF APPEALS

No. 10-96-048-CV

     BETTY ANDREWS ROGERS,

     ET VIR, ET AL.,

                                                                                              Appellants

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the County Court at Law

Ellis County, Texas

Trial Court # C-2606

MEMORANDUM OPINION

      On December 2, 1996, the parties filed an agreed motion to dismiss the appeal. In relevant portion, Rule 59(a) of the Texas Rules of Appellate Procedure provides:

(1) The appellate court may finally dispose of an appeal or writ of error as follows:

(A) In accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(B) On motion of appellant to dismiss the appeal or affirm the judgment appealed from, with notice to all other parties; provided, that no other party shall be prevented from seeking any appellate relief it would otherwise be entitled to.

Tex. R. App. P. 59(a).

      The parties state that they have settled their controversy. The agreement is signed by attorneys for both the appellants and the appellee.

      Pursuant to this agreement, the cause is dismissed with each party to bear its own costs.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed

Opinion delivered and filed December 4, 1996

Do not publish

improper party and then subsequently amend his petition after the 45 day deadline to confer jurisdiction on the district court. Section 42.21 of the Texas Tax Code provides in part:

(a) A party who appeals as provided by this chapter must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered from which an appeal may be had. Failure to timely file a petition bars any appeal under this chapter.

(b)...Any other petition for review under this chapter must be brought against the appraisal district. A petition for review is not required to be brought against the appraisal review board, but may be brought against the appraisal review board in addition to any other required party, if appropriate.

Tex. Tax. Code Ann. § 42.21(a) & (b) (Vernon 2001).

      Before June of 1999, there was no question that this case would be reversed because courts have held that compliance with section 42.21 is jurisdictional, and the district court does not acquire jurisdiction of the petition for review unless the proper party is sued before the 45 day limit expires. Appraisal Review Board And the Taylor County Appraisal District v. International Church of the Foursquare Gospel, 719 S.W.2d 160 (Tex. 1986); Poly-America, Inc. v. Dallas County Appraisal Dist., 704 S.W.2d 936, 937 (Tex. App.—Waco 1986, no writ).

      But effective June 18, 1999, the legislature amended section 42.21 to add subsection (e) which provides:

(e) A petition that is timely filed under Subsection (a) or amended under Subsection (c) may be subsequently amended to:

            (1) correct or change the name of a party....

Tex. Tax. Code Ann. § 42.21 (e) (Vernon 2001).  

      The District argues that any amendment adding a proper party can only be accomplished during the 45 day limit expressed in (a). But that interpretation is contrary to the express language of the statute. Our task in interpreting statutes is to carry out the legislature’s intent. Calvert v. Texas Pipe Line Co., 517 S.W.2d 777, 780 (Tex. 1974); Lamar County Appraisal Dist. v. Campbell Soup Co., 93 S.W.3d 642, 648 (Tex. App.—Austin 2002, no pet.). In doing so, we examine the entire statute, not its isolated parts. Calvert, 517 S.W.2d at 781. And as a general rule, ambiguities in tax laws are strictly construed against the taxing authority and in favor of the taxpayer. Sharp v. Park ‘N Fly of Tex., Inc., 969 S.W.2d 572, 574 (Tex. App.—Austin 1998, pet. denied).

      Subsection (e) allows a petition timely filed under (a), the 45 day limit, to be amended to change or correct the name of a party. In this case, there was no question that the Stuards were appealing the appraisal district review board’s decision of their protest. According to statute, the District is served by service of citation on the chief appraiser. Tex. Tax Code Ann. § 42.21(d) (Vernon 2001). The Stuards mistakenly filed suit, as well, against the chief appraiser. Under the plain language of the statute, the Stuards, because they filed their petition within the 45 day limit, were permitted to change or correct the name of the party being sued from the chief appraiser to the District.

      The result under Poly-America and its progeny is harsh. Clearly, the legislature enacted (e) to dispense with that harsh result. And it has achieved its purpose. For almost six years, that is, until now, there have been no appellate reviews of a trial court’s decision to dismiss for want of jurisdiction a petition for review that was filed after the effective date of subsection (e) and subsequently amended to change the name of the party to be sued after the 45 day limit had expired.

      We hold that subsection (e) allows the type of amendment made by the Stuards. Thus, the trial court did not err in denying the District’s motion to dismiss.

      The trial court’s order is affirmed.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed July 7, 2004

[CV06]