Falls County Appraisal District, Allen McKinley and Andrew J. Hahn v. Wally R. and Voncyle Rusty Burns

IN THE
TENTH COURT OF APPEALS
No. 10-21-00119-CV
FALLS COUNTY APPRAISAL DISTRICT,
ALLEN MCKINLEY, AND ANDREW J. HAHN,
Appellants
v.
WALLY R. AND VONCYLE RUSTY BURNS,
Appellees
From the 82nd District Court
Falls County, Texas
Trial Court No. CV40782
MEMORANDUM OPINION
The Falls County Appraisal District (FCAD), Allen McKinley, and Andrew J. Hahn
bring this interlocutory appeal challenging the trial court’s denial of their third amended
motion for summary judgment. We will affirm in part and reverse in part.
Factual and Procedural Background
Wally and Voncyle Burns (the Burnses) sued FCAD, McKinley (the former chief
appraiser), and Hahn (the current chief appraiser), alleging in relevant part as follows in
their live petition:
IV.
BACKGROUND FACTS
....
8. [The Burnses] understand the pressure faced by appraisal
districts all over Texas to increase property assessed values, and property
owners throughout the state have been feeling the effects of that pressure
for several years. However, neither the chief appraiser nor appraisal
district has been authorized by law, rule or written guidance of the
Comptroller of Public Accounts to simply “make up” assessments which
impose arbitrary burdens on property owners – specifically rural
homestead owners – in order to increase assessed values on property within
the appraisal district.
9. In late summer of 2019, [the Burnses] discovered that the
Chief Appraiser at the time (Allen McKinley) and [FCAD] had, for the first
time, identified an alleged “improvement” on [the Burnses’] rural
homestead, described it as “HS UTILITIES”, and assigned a predetermined
flat value of an additional $6,000.00 to manipulate the overall assessed
value on [the Burnses’] property. A true and correct copy of the property
appraisal information published by Defendant is attached hereto as Exhibit
“A”.
10. On September 16, 2019, [the Burnses] sent a letter to the Falls
County Appraisal Board, attention to Larry Boone (the chairman at the
time), with a copy to the Chief Appraiser (Allen McKinley) concerning this
unusual assessment. A true and correct copy of that letter is attached hereto
as Exhibit “B”. That letter attempted to summarize the events and positions
that had been articulated at the August 22, 2019, Board Meeting at which
the FCAD Board Chairman stated the position of [FCAD]. He asserted that
the $6,000.00 property improvement assessment for rural homesteads was
Falls Cnty. Appraisal Dist. v. Burns Page 2
because utilities provided “added value” to rural homestead property. As
reflected in [the Burnses’] letter of September 16, 2019, however:
(a) Rural and incorporated homesites obtain their utilities from
water mains and electrical transmission lines provided in the
utility easement adjacent to the property. Property owners
are responsible for making arrangement for connection to the
utilities. Rural property does not gain “added value” over
and above incorporated property when connecting to
utilities.
(b) The difference between rural and incorporated areas is the
supplier. The water utility in rural areas is supplied by a
Water Supply Corporation (“WSC”) while the water utility in
the incorporated areas is supplied by city utilities. The
development and maintenance of a water utility is provided
through water rates in both cases. There is no “added value”
to either property classification. Because of population
density, water usage rates for WSC customers is [sic] typically
double that of customers in incorporated areas. Marlin is the
one exception due to the ongoing water infrastructure crises,
resulting in higher water fees.
(c) When listing a rural property, realtors must disclose to
prospective buyers if a homesite is dependent on the use of a
septic system because the property becomes less desirable
due to the recurring maintenance cost and not “added value”
to the property.
(d) The “Homestead Utilities” property improvement
assessment imposed on [the Burnses’] rural homestead is
arbitrary and is not being applied equally to all properties in
Falls County.
In summary, there is no “added value” to rural homesites for having
utilities over homesites in incorporated areas. The added improvement of
Homestead Utilities for rural homesteads is an unlawful arbitrary
assessment not based on evidence as required by the guidelines of the Texas
Property Tax Code.
Falls Cnty. Appraisal Dist. v. Burns Page 3
11. Under Section 23.23 of the Texas Property Tax Code, there is
a limitation on appraised value of a residence homestead. When appraising
a residence homestead, the Chief Appraiser shall appraise the property at
its market value. According to Section 23.23(e), a “new improvement”
means an improvement to a residence homestead made after the most
recent appraisal of the property that increases the market value of the
property and the value of which is not included in the appraised value of
the property for the preceding tax year.
12. Here, Allen McKinley, the Chief Appraiser at the time, acting
outside his legal authority, assigned a new improvement, “HS UTILITIES”
with a flat value of $6,000.00 to [the Burnses’] real property – which
obviously is not a “new” improvement.[1] When pressed on the issue, no
person at [FCAD], including the former and current Chief Appraiser, has
been able to identify a statutory, regulatory or factual basis for arbitrarily
assigning a $6,000.00 assessment to rural homestead owners only.
Common sense compels the conclusion that “utilities” at a rural homestead
are not an “improvement” subject to additional tax assessment over and
above the structures served by those utilities.
13. The current Chief Appraiser, Andrew Hahn, and [FCAD]
have continued to unlawfully impose/assign the “HS UTILITIES”
assessment to [the Burnses’] property in 2020, despite having been given
the opportunity to correct the unlawful assessment.
14. Then, by Order Determining Protest dated August 4, 2020
(copy attached as Exhibit “C”), less than 60 days prior to the filing of this
Third Amended Petition, [FCAD] denied [the Burnses’] protest concerning
the 2020 appraisal on the same property, where they specifically challenged
to continued imposition of assessment for “HS UTILITIES”. This action is
an appeal of that assessment under Tex. Tax Code § 42.21.
1 A footnote in the petition here states:
Based on information obtained by way of an Open Records Request, [the Burnses] have
learned that this arbitrary $6,000.00 “HS Utilities” flat assessment has been added to nearly
2800 rural property owners in Falls County – the effect of which has been an increase in
each property owner’s tax bill in excess of $100.00 for 2019. This “hidden tax” is
unauthorized, unlawful, and unacceptable.
Falls Cnty. Appraisal Dist. v. Burns Page 4
V.
REQUEST FOR DECLARATORY RELIEF AND RELIEF UNDER THE
TEXAS TAX CODE
15. [The Burnses] request that the Court declare that the
designated “Improvement” contained on [the Burnses’] Falls County
property for “HS UTILITIES” for the flat value of “$6,000.00” beginning in
2019 (and now continuing into 2020), is unauthorized, arbitrary and/or
unlawful and excessive, and cannot form the basis for an added assessment
on [the Burnses’] (or any other rural homestead owners) property. The
Chief Appraisers acted beyond the scope of their authority and [FCAD] has
failed, despite requests, to reverse the unlawful action taken by its Chief
Appraisers.
FCAD, McKinley, and Hahn (collectively, Appellants) subsequently moved for
traditional summary judgment. In their third amended motion for summary judgment,
Appellants contended predominantly that the Burnses’ suit should be dismissed, or,
alternatively, that the Burnses should take nothing by their suit, because Appellants are
protected by some form of immunity. The trial court denied Appellants’ third amended
motion for summary judgment. This appeal ensued.
Issues
In four issues, Appellants challenge the trial court’s denial of their third amended
motion for summary judgment on the grounds that
(1) FCAD has “governmental immunity for discretionary acts taken in
fulfilling its legislative mandate that it appraise property at market value,”
(2) Chief Appraisers McKinley and Hahn “have official immunity for
discretionary acts taken in the scope of their employment in appraising
property in their district,”
Falls Cnty. Appraisal Dist. v. Burns Page 5
(3) “the chief appraisers’ assessment of an improvement for utilities [is]
authorized by [Tax Code section] 23.01,” and
(4) the Burnses’ “claims under the Property Tax Code for tax years 2019 and
2020 [are] barred.”
The Burnses’ Claims Against FCAD
In their first issue, Appellants assert that FCAD has “governmental immunity for
discretionary acts taken in fulfilling its legislative mandate that it appraise property at
market value,” and in their fourth issue, Appellants assert that the Burnses’ “claims under
the Property Tax Code for tax years 2019 and 2020 [are] barred.” As will be explained
below, Appellants’ overall contention in these issues is that the trial court erred in
denying their motion for summary judgment as to the Burnses’ claims against FCAD
because the trial court lacks jurisdiction over those claims. 2 Whether a court has subject
matter jurisdiction is a question of law that we review de novo. City of Dallas v. Carbajal,
324 S.W.3d 537, 538 (Tex. 2010) (per curiam).
A. Authority
Title 1 of the Tax Code contains the Property Tax Code. TEX. TAX CODE ANN. §
1.01; see generally id. §§ 1.01–43.04. In the Property Tax Code, the Legislature “provides
2See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (allowing appeal from interlocutory order that “grants
or denies a plea to the jurisdiction by a governmental unit”). The Texas Supreme Court interprets “plea to
the jurisdiction” in Civil Practice and Remedies Code subsection 51.014(a)(8) not to refer to a “particular
procedural vehicle,” but rather to the substance of the issue raised. City of Magnolia 4A Econ. Dev. Corp. v.
Smedley, 533 S.W.3d 297, 299 (Tex. 2017) (per curiam). Therefore, if the trial court denies a governmental
entity’s claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for
summary judgment, or otherwise, an interlocutory appeal may be brought under subsection 51.014(a)(8).
Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).
Falls Cnty. Appraisal Dist. v. Burns Page 6
detailed administrative procedures for those who would contest their property taxes.”
Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006) (per curiam); see generally
TEX. TAX CODE ANN. §§ 41.01–.71. In pertinent part, Tax Code section 41.41, entitled
“Right of Protest,” provides:
(a) A property owner is entitled to protest before the appraisal review board
the following actions:
(1) determination of the appraised value of the owner’s property . . . ;
(2) unequal appraisal of the owner’s property; [or]
....
(9) any other action of the chief appraiser, appraisal district, or appraisal
review board that applies to and adversely affects the property owner.
TEX. TAX CODE ANN. § 41.41(a). The appraisal review board must “determine the protest
and make its decision by written order.” Id. § 41.47(a).
Under Tax Code section 42.01(a)(1)(A), a property owner is entitled to appeal the
order of the appraisal review board determining the protest by the property owner. Id. §
42.01(a)(1)(A). To appeal, the property owner “must file a petition for review with the
district court within 60 days after the [property owner] received notice that a final order
has been entered from which an appeal may be had or at any time after the hearing [on
the protest] but before the 60-day deadline.” Id. § 42.21(a). Failure to timely file a petition
for review bars any appeal of the order of the appraisal review board to the district court.
Id.
Falls Cnty. Appraisal Dist. v. Burns Page 7
Furthermore, “a taxpayer’s failure to pursue an appraisal review board
proceeding deprives the courts of jurisdiction to decide most matters relating to ad
valorem taxes.” Rourk, 194 S.W.3d at 502 (quoting Matagorda Cnty. Appraisal Dist. v.
Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex. 2005)). “The Texas Constitution
expressly allows the Legislature to bestow exclusive original jurisdiction on
administrative bodies.” Id.; see TEX. CONST. art. V, § 8. There is no question that in the
Tax Code, the Legislature intended to bestow exclusive original jurisdiction on appraisal
review boards. See TEX. TAX CODE ANN. § 42.09; Rourk, 194 S.W.3d 502. Tax Code section
42.09, entitled “Remedies Exclusive,” provides in pertinent part:
(a) Except as provided by Subsection (b) of this section, procedures
prescribed by this title for adjudication of the grounds of protest authorized
by this title are exclusive, and a property owner may not raise any of those
grounds:
(1) in defense to a suit to enforce collection of delinquent taxes; or
(2) as a basis of a claim for relief in a suit by the property owner to arrest
or prevent the tax collection process or to obtain a refund of taxes paid.
TEX. TAX CODE ANN. § 42.09(a) (emphasis added). 3
B. UDJA Claims
Appellants first argue in their first issue that FCAD is immune from the Burnses’
UDJA claims because the “Texas Property Tax Code is a pervasive regulatory scheme
3Subsection (b) provides that those who do not file administrative protests may still assert that (1) they did
not own the property, or (2) the property was outside the boundaries of the taxing unit. Id. § 42.09(b).
Neither exception applies here.
Falls Cnty. Appraisal Dist. v. Burns Page 8
vesting appraisal review boards with exclusive jurisdiction over property tax disputes.”
Appellants claim, in other words, that although the Burnses have sought declaratory
relief against FCAD, the Burnses are really attempting to reduce the appraised value of
their property, which is a remedy that was required to be pursued through the
administrative procedures of the Property Tax Code, not under the UDJA. Appellants
also argue in their first issue that governmental immunity bars the Burnses’ UDJA claims
against FCAD because the Legislature has not waived governmental immunity with
respect to those claims.
The Burnses do not directly dispute Appellants’ arguments in their appellees’
brief. Instead, the Burnses assert that they have invoked the UDJA to challenge the ultra
vires actions of McKinley and Hahn, and the Burnses imply that they have not alleged
UDJA claims against FCAD. But even if we conclude that the Burnses have alleged UDJA
claims against FCAD, governmental immunity bars the claims.
Unless the Legislature expressly waives it, sovereign immunity generally deprives
a trial court of jurisdiction over a lawsuit in which a party has sued the state or a state
agency. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).
Governmental immunity provides similar protection to the political subdivisions of the
state. Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011). Tax
appraisal districts, like FCAD, are political subdivisions of the state, TEX. TAX CODE ANN.
Falls Cnty. Appraisal Dist. v. Burns Page 9
§ 6.01(c), and are therefore protected by governmental immunity. See Norman, 342 S.W.3d
at 57–58.
The Legislature has not waived governmental immunity when a plaintiff seeks a
declaration under the UDJA of his or her rights under a statute or other law. See Tex.
Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam). The state or its
subdivisions may be a proper party to a declaratory judgment action that challenges the
validity of a statute. Id. at 622. But the Burnses are not challenging the validity of a
statute; instead, they are challenging FCAD’s actions under it. Moreover, a suit seeking
declaratory relief for an ultra vires action must be brought against the government actors
in their official capacity, not against the governmental entity, which retains immunity.
See id. at 621.
Accordingly, to the extent that the Burnses have alleged UDJA claims against
FCAD, FCAD is protected from those claims by governmental immunity, and the trial
court therefore lacks jurisdiction over those claims. See Sawyer Trust, 354 S.W.3d at 388.
Appellants’ first issue is sustained.
C. Tax Code Appeal 4
Appellants first argue in their fourth issue that any appeal by the Burnses under
the Property Tax Code for tax year 2019 is barred because the Burnses did not appeal the
4The Burnses’ appeal from any appraisal review board’s order must have been brought against only the
appraisal district. See TEX. TAX CODE ANN. § 42.21(b).
Falls Cnty. Appraisal Dist. v. Burns Page 10
order from the appraisal review board regarding tax year 2019 within sixty days after the
Burnses received notice that the order had been entered. 5
Again, the Burnses do not dispute Appellants’ argument in their appellees’ brief.
Instead, the Burnses indicate that they appealed to the district court only the appraisal
review board’s order for the 2020 tax year.
In this instance, the Burnses’ live petition is clear that the Burnses appealed to the
district court the appraisal review board’s order for only tax year 2020. Accordingly, the
trial court did not err in denying Appellants’ motion for summary judgment regarding
an appeal by the Burnses under the Property Tax Code for tax year 2019.
Appellants next argue in their fourth issue that even though the Burnses appealed
the appraisal review board’s order for tax year 2020 within sixty days after receiving
notice that the order had been entered, the Burnses still failed to invoke the district court’s
jurisdiction. Relying on Covert v. Williamson Central Appraisal District, 241 S.W.3d 655(Tex. App.—Austin 2007, pet. denied), Appellants contend: “To the extent the [Burnses]
seek to challenge only the $6,000 ‘HS UTILITIES ASSESSMENT,’ a taxpayer cannot
appeal the valuation of only a component part of his property as the [Burnses] sought to
do here.” Covert, however, is distinguishable from this case.
5 The Legislature has mandated that all statutory prerequisites to suit are jurisdictional in suits against a
governmental entity. TEX. GOV’T CODE ANN. § 311.034. Where a party suing the government fails to comply
with a mandatory statutory prerequisite to suit, the courts are jurisdictionally barred from hearing the
claim. See Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex. 2012).
Falls Cnty. Appraisal Dist. v. Burns Page 11
In Covert, the owners of three properties improved with car dealerships, each of
which was appraised in a tax account that valued the land as well as the improvements,
attempted to appeal the valuation of the “land portion only” of each property. Id. at 656–
57. The appraisal district filed a special exception, contending that the owners failed to
state a cause of action because the Tax Code provides no remedy for a taxpayer who
claims unequal appraisal of only a portion of an appraised property. Id. at 657. The trial
court granted the appraisal district’s special exception and ordered the owners to replead.
Id. When the owners refused to replead, the trial court dismissed the case, and the Austin
Court of Appeals affirmed. Id. at 656–57. The court of appeals held that “a taxpayer
challenging the equal and uniform assessment of an improved property under [Tax
Code] section 42.26 must allege that the overall appraised value of the property is
unequal.” Id. at 661 (emphasis added). The court explained that an owner may allege
and introduce evidence that only certain parts of its property were valued unequally, but
it cannot prevail in its challenge unless it can show that the value of the entire appraised
property is not equal or uniform as a result. Id. at 659 & n.6.
But the appraisal district in Covert filed a special exception; it did not challenge the
trial court’s jurisdiction, which is the issue in the present case. See id. at 657.
In 2013, the Legislature added subsection (h) to Tax Code section 42.21, which
states:
The [district] court has jurisdiction over an appeal . . . so long as the
property was the subject of an appraisal review board order, the petition
Falls Cnty. Appraisal Dist. v. Burns Page 12
was filed within [60 days after the party received notice of the order], and
the petition provides sufficient information to identify the property that is
the subject of the petition. Whether the plaintiff is the proper party to bring
the petition or whether the property needs to be further identified or
described must be addressed by means of a special exception and correction
of the petition by amendment as authorized by Subsection (e) and may not
be the subject of a plea to the jurisdiction or a claim that the plaintiff has
failed to exhaust the plaintiff’s administrative remedies.
TEX. TAX CODE ANN. § 42.21(h). The Burnses have met all the jurisdictional requirements.
The trial court therefore has jurisdiction over the Burnses’ appeal of the order from the
appraisal review board regarding tax year 2020 and did not err in denying Appellants’
motion for summary judgment regarding the appeal by the Burnses under the Property
Tax Code for tax year 2020. Appellants’ fourth issue is overruled.
The Burnses’ Claims Against McKinley and Hahn
In their second issue, Appellants assert that McKinley and Hahn “have official
immunity for discretionary acts taken in the scope of their employment in appraising
property in their district,” and in their third issue, Appellants assert that “the chief
appraisers’ assessment of an improvement for utilities [is] authorized by [Tax Code
section] 23.01.”
In these issues, Appellants conflate derivative governmental immunity and official
immunity, but they are separate matters. A suit against a government employee in his
official capacity is a suit against his government employer; thus, a government employee
sued in his official capacity has the same governmental immunity, derivatively, as his
government employer. Franka v. Velasquez, 332 S.W.3d 367, 382–83 (Tex. 2011).
Falls Cnty. Appraisal Dist. v. Burns Page 13
Government employees sued in their individual capacity, however, may not rely on the
defense of governmental immunity. See Tex. A & M Univ. v. Starks, 500 S.W.3d 560, 576
(Tex. App.—Waco 2016, no pet.); Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—
Austin 2007, no pet.). Nevertheless, they may move for summary judgment and establish
their entitlement to judgment as a matter of law by conclusively negating an essential
element of the plaintiff’s case or conclusively establishing all the necessary elements of
an affirmative defense, including official immunity. Starks, 500 S.W.3d at 576; see Cathey
v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Cloud, 228 S.W.3d at 333–34.
In Appellants’ second and third issues, we are therefore actually presented with
two distinct questions: (1) whether the trial court lacks jurisdiction over the Burnses’
claims against McKinley and Hahn because McKinley and Hahn, having been sued in
their official capacity, are protected by governmental immunity, 6 and (2) whether
McKinley and Hahn were entitled to summary judgment because they, having been sued
in their individual capacity, are protected by official immunity. 7
The first step in resolving these questions is to determine whether the Burnses
sued McKinley and Hahn in their official capacity, individual capacity, or both.
6See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (allowing appeal from interlocutory order that “grants
or denies a plea to the jurisdiction by a governmental unit”); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
835, 840–46 (Tex. 2007) (holding that section 51.014(a)(8) vests appellate courts with jurisdiction to consider
interlocutory appeals of jurisdictional pleas brought both by governmental entities and by employees of
such governmental entities who have been sued in their official capacities).
7 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5) (allowing appeal from interlocutory order that
“denies a motion for summary judgment that is based on an assertion of immunity by an individual who
is an officer or employee of the state or a political subdivision of the state”).
Falls Cnty. Appraisal Dist. v. Burns Page 14
The United States Supreme Court has observed that, “[i]n many cases, the
complaint will not clearly specify whether officials are sued personally, in
their official capacity, or both.” Kentucky v. Graham, 473 U.S. 159, 167 n.14,
105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also United States ex rel. Adrian v.
Regents of Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004). In these cases,
“’[t]he course of proceedings’ in such cases typically will indicate the nature
of the liability sought to be imposed.” Graham, 473 U.S. at 167 n.14, 105 S.Ct.
3099 (citations omitted).
City of El Paso v. Heinrich, 284 S.W.3d 366, 377 (Tex. 2009).
Here, the Burnses’ live petition identifies the parties as follows:
3. [The Burnses] are individuals residing and owning property
in Falls County, Texas.
4. Defendant [FCAD] has appeared and answered.
5. Allen McKinley (former Chief Appraiser) has appeared and
answered.
6. Andrew J. Hahn (current Chief Appraiser) has appeared and
answered.
The Burnses then alleged in their live petition the following claims against McKinley and
Hahn: (1) the chief appraiser did not have authority to “make up” an assessment, (2) the
chief appraiser assigned a predetermined flat value to an assessment, (3) the assessment
is arbitrary and is not being applied equally, (4) the assessment is unlawful, is arbitrary,
and is not based upon evidence as required by the Tax Code, (5) the chief appraiser shall
appraise property at market value, and (6) the “HS UTILITIES” was an improper new
improvement. The relief requested by the Burnses is then that the trial court declare that
Falls Cnty. Appraisal Dist. v. Burns Page 15
the “HS UTILITIES” flat value assessment for 2019 and 2020 is unauthorized, arbitrary,
and/or unlawful and excessive and that it cannot form the basis for an added assessment.
All the Burnses’ allegations relate to acts that McKinley and Hahn could only take
in their capacity as chief appraisers. The relief requested also seeks to undo McKinley’s
and Hahn’s acts in their capacity as chief appraisers. We therefore conclude that the
Burnses have sued McKinley and Hahn in only their official capacity. McKinley and
Hahn were thus not entitled to summary judgment based on being protected by official
immunity. See Starks, 500 S.W.3d at 576; Cloud, 228 S.W.3d at 333.
The question remains, however, as to whether McKinley and Hahn, having been
sued in their official capacity, are protected by governmental immunity.
The Burnses argue that McKinley and Hahn are not protected by governmental
immunity because the Burnses have sought relief under the UDJA against McKinley and
Hahn for their ultra vires actions. Appellants argue, however, as they also did regarding
the Burnses’ UDJA claims against FCAD, that although the Burnses have sought
declaratory relief against McKinley and Hahn, the Burnses are really attempting to
reduce the appraised value of their property, which is a remedy that was required to be
pursued through the administrative procedures of the Property Tax Code, not under the
UDJA.
While a legislative waiver of governmental immunity is usually required for suit
against a governmental entity, an action alleging that a government employee acted ultra
Falls Cnty. Appraisal Dist. v. Burns Page 16
vires is not a suit against the governmental entity that governmental immunity bars. See
Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015); Franka, 332 S.W.3d at 382–83.
An ultra vires action is one in which the plaintiff seeks relief against a government
employee in his official capacity who allegedly has violated statutory or constitutional
provisions by acting without legal authority or by failing to perform a purely ministerial
act. See Heinrich, 284 S.W.3d at 368.
Ultra vires suits are subject to certain qualifications. See [id.] at 373. .
. . [R]etrospective monetary claims are generally barred. [Id.] at 374
(holding that because an ultra vires claim is against the State, “its remedies
must be limited”). Thus, ultra vires claimants are only entitled to
prospective relief. Id. at 374–77. . . . If the injury has already occurred and
the only plausible remedy is monetary damages, an ultra vires claim will not
lie. Id. at 374 (quoting City of Houston v. Williams, 216 S.W.3d 827, 828 (Tex.
2007)).
City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018).
Furthermore, “a litigant’s request for declaratory relief does not alter a suit’s
underlying nature. It is well settled that ‘private parties cannot circumvent the State’s
sovereign immunity from suit by characterizing a suit for money damages . . . as a
declaratory-judgment claim.’” Heinrich, 284 S.W.3d at 370–71 (footnote & citations
omitted) (quoting Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 856 (Tex.
2002)).
Here, the Burnses’ live petition states that they are seeking declaratory relief
against McKinley and Hahn for their ultra vires actions. But the Burnses’ live petition
identifies McKinley as the former chief appraiser and complains only of McKinley’s
Falls Cnty. Appraisal Dist. v. Burns Page 17
actions in 2019. Any injury to the Burnses by McKinley has therefore already occurred,
and the only plausible remedy that the Burnses may obtain from McKinley is monetary
damages. McKinley thus remains protected by governmental immunity, see id. at 374–
77, and the trial court therefore lacks jurisdiction over the Burnses’ claims against him,
see Sawyer Trust, 354 S.W.3d at 388.
Hahn, on the other hand, is identified as the current chief appraiser. Moreover, in
reviewing a jurisdictional challenge to a plaintiff’s pleadings, we construe the pleadings
liberally in favor of the plaintiff and look to the plaintiff’s intent. See Tex. Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). Having construed the Burnses’
live petition liberally, we conclude that the declaratory relief that the Burnses seek against
Hahn would not affect them only retrospectively. Accordingly, we conclude that the
Burnses are not attempting to simply recharacterize a suit for money damages against
Hahn as a declaratory judgment claim against Hahn.
Appellants next argue that the legislative grant of authority relevant to this case is
broad enough to bar the Burnses’ alleged ultra vires claims. Appellants point out that
complaints that a governmental actor merely “got it wrong” while acting within their
authority remain shielded by governmental immunity. See City of Austin v. Util. Assocs.,
Inc., 517 S.W.3d 300, 310 (Tex. App.—Austin 2017, pet. denied). Appellants further argue
that whether Hahn acted within his statutory authority is a legal question for which
summary judgment is appropriate.
Falls Cnty. Appraisal Dist. v. Burns Page 18
Construing the Burnses’ live petition liberally, we conclude that the basis of the
Burnses’ claim is that Hahn is acting without legal authority in determining the market
value of their property because the Burnses’ petition alleges that Hahn has essentially
“made up” the assessment of “HS UTILITIES” in the predetermined flat value amount of
$6,000.00 and has arbitrarily assigned it to their property.
An ultra vires claim based on actions taken “without legal authority” has two
fundamental components: (1) authority giving the government employee some (but not
absolute) discretion to act and (2) conduct outside of that authority. Hall v. McRaven, 508
S.W.3d 232, 239 (Tex. 2017).
Tax Code section 6.01 provides that “[a]n appraisal district is established in each
county” and that “[t]he district is responsible for appraising property in the district for
ad valorem tax purposes of each taxing unit that imposes ad valorem taxes on property
in the district.” TEX. TAX CODE ANN. § 6.01(a), (b). Tax Code section 23.01(a) further
provides: “Except as otherwise provided by this chapter, all taxable property is
appraised at its market value as of January 1.” Id. § 23.01(a).
The chief appraiser of the appraisal district is responsible for determining the
market value of the property. See id. §§ 23.01–.9808. Tax Code section 1.04(7) defines
“market value” as:
[T]he price at which a property would transfer for cash or its equivalent
under prevailing market conditions if:
Falls Cnty. Appraisal Dist. v. Burns Page 19
(A) exposed for sale in the open market with a reasonable time for the
seller to find a purchaser;
(B) both the seller and the purchaser know of all the uses and purposes
to which the property is adapted and for which it is capable of
being used and of the enforceable restrictions on its use; and
(C) both the seller and purchaser seek to maximize their gains and
neither is in a position to take advantage of the exigencies of the
other.
Id. § 1.04(7). The chief appraiser therefore has discretion in determining the market value
of the property, but the discretion is not absolute. Tax Code section 23.01(b) provides:
The market value of property shall be determined by the application of
generally accepted appraisal methods and techniques. If the appraisal
district determines the appraised value of a property using mass appraisal
standards, the mass appraisal standards must comply with the Uniform
Standards of Professional Appraisal Practice. The same or similar appraisal
methods and techniques shall be used in appraising the same or similar
kinds of property. However, each property shall be appraised based upon
the individual characteristics that affect the property’s market value, and
all available evidence that is specific to the value of the property shall be
taken into account in determining the property’s market value.
Id. § 23.01(b).
Furthermore, the Burnses have not simply alleged that Hahn got the market value
of their property wrong; rather, the Burnses have alleged that Hahn is acting outside of
his statutory authority. Although the Burnses do not explicitly allege in their live petition
that Hahn has violated Tax Code section 23.01(b), the allegation can be reasonably
inferred from the Burnses’ allegations that Hahn is acting without legal authority in
determining the market value of their property because the Burnses’ petition alleges that
Falls Cnty. Appraisal Dist. v. Burns Page 20
Hahn has essentially “made up” the assessment of “HS UTILITIES” in the predetermined
flat value amount of $6,000.00 and has arbitrarily assigned it to their property.
Finally, as stated above, Appellants argue that whether Hahn acted within his
statutory authority is a legal question for which summary judgment is appropriate.
Citing Bosque Disposal Systems, LLC v. Parker County Appraisal District, 555 S.W.3d 92 (Tex.
2018), Appellants assert that appraisal districts are free to separately assign and assess
components of real property.
But such conclusion does not resolve all the issues in this case. For instance, the
conclusion does not resolve whether Hahn applied “generally accepted appraisal
methods and techniques” in determining the market value of the Burnses’ property. See
TEX. TAX CODE ANN. § 23.01(b). Likewise, the conclusion does not resolve whether Hahn
took into account “all available evidence that is specific to the value of the property” in
determining the market value of the Burnses’ property. See id. And these issues involve
fact questions that go to the merits of the Burnses’ claims.
We conclude that the Burnses have therefore pleaded a viable ultra vires claim
against Hahn. Accordingly, Hahn is not protected by governmental immunity. See Sw.
Bell Tel., L.P., 459 S.W.3d at 587; Franka, 332 S.W.3d at 382–83. Appellants’ second and
third issues are sustained in part and overruled in part.
Falls Cnty. Appraisal Dist. v. Burns Page 21
Conclusion
We reverse the trial court’s order denying Appellants’ third amended motion for
summary judgment to the extent that it denies summary judgment on the Burnses’ UDJA
claims against FCAD. We render judgment that the Burnses’ UDJA claims against FCAD
are dismissed with prejudice.
We further reverse the trial court’s order denying Appellants’ third amended
motion for summary judgment to the extent that it denies summary judgment on the
Burnses’ claims against McKinley. We render judgment that the Burnses’ claims against
McKinley are dismissed with prejudice.
We otherwise affirm the trial court’s order denying Appellants’ third amended
motion for summary judgment.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed in part and reversed in part
Opinion delivered and filed March 23, 2022
[CV06]
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