Holcim (US) Inc. and Holcim Texas Limited Partnership v. Ellis County Appraisal District ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00096-CV
HOLCIM (US) INC. AND HOLCIM TEXAS LIMITED PARTNERSHIP, Appellants
V.
ELLIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 40th District Court
Ellis County, Texas
Trial Court No. 104026
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
Holcim (US) Inc. and Holcim Texas Limited Partnership (collectively Holcim) appeal the
trial court’s order granting a plea to the jurisdiction filed by the Ellis County Appraisal District
(District). In a single issue, Holcim argues that the trial court erred by granting the plea to the
jurisdiction and dismissing its lawsuit, which sought to challenge the District’s valuation of
Holcim’s property for tax purposes. We affirm the trial court’s order of dismissal for want of
jurisdiction.1
I. Standard of Review
Whether a court has subject-matter jurisdiction is a question of law that is properly
asserted by a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 224 (Tex. 2004). We review the trial court’s ruling on a plea to the jurisdiction de novo.
Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). This case
also presents questions of statutory construction, which we also review de novo. Id.A plea to the jurisdiction can challenge either the pleadings or the existence of
jurisdictional facts. See Miranda, 133 S.W.3d at 226–27. Where, as here, ‘“a plea to the
jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised,’ even where
those facts may implicate the merits of the cause of action.” City of Waco v. Kirwan, 298
S.W.3d 618, 622 (Tex. 2009) (quoting Miranda, 133 S.W.3d at 227).
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any
conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R.
APP. P. 41.3.
2
Parties may submit evidence supporting or opposing the plea, which we review under the
same standard applicable to a traditional motion for summary judgment. Chambers-Liberty Ctys.
Navigation Dist., 575 S.W.3d at 345 (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380,
384 (Tex. 2016)). “[W]e take as true all evidence favorable to the plaintiff, indulging every
reasonable inference and resolving any doubts in the plaintiff’s favor.” Sampson v. Univ. of Tex.
at Austin, 500 S.W.3d 380, 384 (Tex. 2016). “[I]f the relevant evidence . . . fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter
of law.” Miranda, 133 S.W.3d at 228. But if the evidence creates a fact question regarding the
jurisdictional issue, then the trial court must deny the plea to the jurisdiction and allow the fact-
finder to resolve the issue. Id. at 227–28.
II. Administrative Procedures Under the Texas Tax Code and Relevant Caselaw
An understanding of the parties’ arguments in this case requires an upfront examination
of the Texas Tax Code, which “provides detailed administrative procedures for those who would
contest their property taxes.” Bundren v. Collin Cent. Appraisal Dist., No. 05-18-01048-CV,
2019 WL 6649053, at *2 (Tex. App.—Dallas Dec. 6, 2019, no pet.) (mem. op.) (citing Cameron
Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006) (per curiam) (citing TEX. TAX CODE
ANN. §§ 41.01–.71)). “The administrative procedures are ‘exclusive’ and most defenses are
barred if not raised therein.” Id. (quoting Rourk, 194 S.W.3d at 502 (citing TEX. TAX CODE ANN.
§ 42.09)).
“A property owner is entitled to protest before the appraisal review board the . . .
determination of the appraised value of the owner’s property or, in the case of land appraised
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. . . [a] determination of its appraised or market value.” TEX. TAX CODE ANN. § 41.41(a)(1)
(Supp.). On the filing of a protest, the appraisal review board must schedule a hearing. TEX.
TAX CODE ANN. § 41.45(a) (Supp.). “A taxpayer may ‘appear’ before the [Appraisal Board] in
person, through a representative, or by means of an affidavit.” Webb Cty. Appraisal Dist. v. New
Laredo Hotel, Inc., 792 S.W.2d 952, 953 (Tex. 1990). Section 41.45(b) of the Texas Tax Code
reads:
A property owner initiating a protest is entitled to appear to offer evidence or
argument. A property owner may offer evidence or argument by affidavit without
personally appearing and may appear by telephone conference call or
videoconference to offer argument. A property owner who appears by telephone
conference call or videoconference must offer any evidence by affidavit. A
property owner must submit an affidavit described by this subsection to the board
hearing the protest before the board begins the hearing on the protest.
TEX. TAX CODE ANN. § 41.45(b). Also, “[a] property owner who is entitled as provided by this
chapter to appear at a hearing may appear by himself or by his agent.” TEX. TAX CODE ANN.
§ 41.66(c) (Supp.). After a hearing, “[t]he appraisal review board hearing a protest shall
determine the protest and make its decision by written order.” TEX. TAX CODE ANN. § 41.47(a)
(Supp.). “A property owner is entitled to appeal . . . an order of the appraisal review board
determining . . . a protest by the property owner as provided by Subchapter C of Chapter 41.”
TEX. TAX CODE ANN. § 42.01(a)(1)(A) (Supp.).
Despite the language stating that a property owner “may” appear or is “entitled” to
appear, the Texas Supreme Court has determined that “Chapter 41 of the Texas Tax Code
assumes appearance.” Webb Cty. Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952,
953 (Tex. 1990) (quoting TEX. TAX CODE ANN. §§ 41.45, 41.66(c)). “Put simply, it is not a
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question of whether the taxpayer must appear, but rather how the taxpayer will make its
appearance.” Id. This is because an appraisal board “must have evidence before it from which it
can determine if the property was overvalued.” Id. at 953–54. As a result, the Texas Supreme
Court has held that “taxpayers contesting property valuation must appear, either personally, by
representative, or by affidavit, at the protest hearing as a prerequisite to an appeal to district
court.” Id. at 955. In so holding, it explained that a ruling otherwise
would be the emasculation of the administrative hearing process. Filing a protest
would become merely one more hoop to jump through before appealing to district
court. It would not be inconceivable for a taxpayer to file a protest with the
appraisal review board and simultaneously file a petition in district court based on
the alleged overevaluation. By requesting a trial date after the review board’s
hearing, the taxpayer could merely amend his petition to reflect the board’s
decision if the protest was denied, or dismiss the suit if the protest was granted.
The intent of the administrative review process is to resolve the majority of tax
protests at this level, thereby relieving the burden on the court system. The
corollary to this rule is that judicial review of administrative orders is not
available unless all administrative remedies have been pursued to the fullest
extent.
. . . . [I]f the taxpayer is not required to appear at the protest hearing in order to
appeal to district court, the administrative hearing process would become useless.
Id. at 954 (citations omitted). As a result, “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; Bundren, 2019 WL 6649053, at *2; see Atascosa Cty.
Appraisal Dist. v. Tymrak, 858 S.W.2d 335, 336 (Tex. 1993); Aramco Associated Co. v. Harris
Cty. Appraisal Dist., 33 S.W.3d 361, 364 (Tex. App.—Texarkana 2000, pet. denied) (“As a
prerequisite to appeal to the district court, a taxpayer contesting property evaluation is required
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to appear at the protest hearing either personally, by representative, or by affidavit.”) (citing New
Laredo Hotel, 792 S.W.2d at 954–55).
Even so, the Texas Tax Code provides relief in certain circumstances when there is a
failure to appear. Section 41.45(e-1) states,
A property owner or a person designated by the property owner as the owner’s
agent to represent the owner at the hearing who fails to appear at the hearing is
entitled to a new hearing if the property owner or the owner’s agent files, not later
than the fourth day after the date the hearing occurred, a written statement with
the appraisal review board showing good cause for the failure to appear and
requesting a new hearing.
TEX. TAX CODE ANN. § 41.45(e-1) (Supp.) (emphasis added).2 Also, amendments made by the
Texas Legislature in 2019 to the Texas Tax Code provide additional relief. Section 42.01, which
states:
(a) A property owner is entitled to appeal:
....
(E) that the appraisal review board lacks jurisdiction to finally
determine a protest by the property owner under Subchapter C, Chapter
41, . . . because the property owner failed to comply with a requirement of
Subchapter C, Chapter 41 . . . .
....
2
“[G]ood cause . . . means a reason that includes an error or mistake that: (1) was not intentional or the result of
conscious indifference, and (2) will not cause undue delay or other injury to the person authorized to extend the
deadline or grant a rescheduling.” TEX. TAX CODE ANN. § 41.45 (e-2) (Supp.).
6
(c) A property owner who establishes that the appraisal review board
had jurisdiction to issue a final determination of the protest by the property owner
under Subchapter C, Chapter 41, . . . in an appeal under Subsection (a)(1)(E) of
this section is entitled to a final determination by the court of the protest under
Subchapter C, Chapter 41.
TEX. TAX CODE ANN. § 42.01(a)(E), (c) (Supp.). Section 42.231 provides,
(a) This section applies only to an appeal by a property owner of an
order of the appraisal review board determining:
(1) a protest by the property owner as provided by Subchapter C,
Chapter 41; or
(2) a motion filed by the property owner under Section 25.25.
(b) Subject to the provisions of this section and notwithstanding any
other law, if a plea to the jurisdiction is filed in the appeal on the basis that the
property owner failed to exhaust the property owner’s administrative remedies,
the court may, in lieu of dismissing the appeal for lack of jurisdiction, remand the
action to the appraisal review board with instructions to allow the property owner
an opportunity to cure the property owner’s failure to exhaust administrative
remedies.
TEX. TAX CODE ANN. § 42.231(a)–(b) (Supp.).
III. Factual Background
Holcim filed a protest challenging the District’s valuation of its property and hired
counsel to represent it in front of the Ellis Appraisal Review Board (ARB). On June 8, 2020,
Amber Brackens, a District employee, sent notices of a June 23 ARB hearing date by regular
mail and email to Holcim’s counsel. It is undisputed that counsel received the hearing notices.
The hearing notices explained that evidence was required at the hearing and warned, “[Y]our
protest may be dismissed if you fail to appear,” and “Failure to appear at your hearing either in
person, by sending a sworn affidavit containing evidence to support your protest, or by an
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authorized agent may jeopardize your right to appeal the appraisal review board’s decision to
district court.” The hearing notice also stated,
ALL EVIDENCE YOU WOULD LIKE THE ARB TO CONSIDER MUST BE
SUBMITTED PRIOR TO YOUR HEARING and if you are offering
TESTIMONY, please also send the enclosed AFFIDAVIT of SWORN
TESTIMONY as well. This will be reviewed by the ARB at the beginning of the
hearing.
....
If you decide to submit an affidavit or declaration, please make sure it identifies
you as the property owner and your address . . . and that i[t] shows the date and
time of the hearing. For an affidavit to be considered, WE MUST RECEIVE IT
AT THE HEARING LOCATION SHOWN ABOVE PRIOR TO YOUR
HEARING.
It is undisputed that no one appeared on Holcim’s behalf at the hearing. On the day of
the hearing, Brackens contacted Holcim’s counsel’s office and asked whether they had submitted
an affidavit. In response, “[a] representative” from counsel’s firm “indicated the affidavit was
mailed certified.” Because no evidence was received at the hearing and there was no request to
postpone the hearing, the ARB issued a notice of dismissal of Holcim’s protest on June 29. The
dismissal notice stated, “The property owner failed to appear either in person, by authorized
agent, by affidavit, or by telephone” at the hearing. As a result, the notice stated that the protest
was forfeited by the failure to appear and was dismissed. It is undisputed that no written request
showing good cause for failing to appear was made within four days after the hearing as required
by Section 41.45 to obtain a new hearing. See TEX. TAX CODE ANN. § 41.45(e-1).
On July 9, Jana Fletcher, an employee of Holcim’s counsel’s firm, emailed Brackens to
ask whether the hearings had been rescheduled because the ARB had received the affidavits after
8
the hearing. In response, Brackens wrote, “ARB and Chief Appraiser has requested a good cause
letter.” On July 10, 2020, a letter from Holcim’s counsel stated that the firm had mailed by
certified mail affidavits to be considered at the hearing on June 18, 2020, but the postal service
had failed to “log the mail package into their system . . . until June 20” or timely deliver them.
Holcim’s counsel said he first became aware of this issue on the day of the hearing when
Brackens called the firm. Fletcher swore that she had mailed the hearing affidavits by certified
mail on June 18 and gave the tracking numbers to Brackens when she called on the date of the
hearing.
On August 20, 2020, Holcim appealed to the 40th Judicial District Court of Ellis County
and argued that the properties’ appraised value exceeded the market value. Holcim’s petition
requested that the protest be remanded to the ARB pursuant to Section 42.231 of the Texas Tax
Code. Even so, Holcim’s prayer requested that the trial court order an appraisal and “fix and
determine the Property’s appraised value to be no more than its market value.”
The District filed a plea to the jurisdiction arguing that the trial court lacked jurisdiction
because Holcim failed to exhaust administrative remedies and never requested a new hearing
under Section 41.45(e-1).3 The District attached the affidavit of Kathy Rodrigue, its chief
appraiser, stating that Brackens reviewed her emails and other records before the hearing to
make sure that no affidavit in support of the protest had been received. Rodrigue said she never
instructed Brackens to contact anyone to inquire about affidavits related to Holcim’s accounts
and that she was not authorized to extend any deadlines under the Texas Tax Code. Rodrigue
3
The District also raised the issue of governmental immunity.
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also said Brackens did not inform her of the July 9 email and that she was not directed or
authorized to respond to Fletcher’s email.
In its response to the plea to the jurisdiction, Holcim argued that the ARB knew on the
day of the hearing that Holcim had timely mailed the affidavits, that Holcim wanted to pursue its
protest and that there was good cause to reschedule the hearing.4 Holcim also argued that
Section 42.231 allowed the trial court to remand the protest. At trial, Holcim represented that
“[t]he language of [S]ection 42.231 is permissive because if it were mandatory, Plaintiffs or any
other property owner could conceivably do absolutely nothing and attempt to bypass the
administrative level and go directly to the district court.”
The trial court granted the District’s plea to the jurisdiction after finding that (1) the ARB
did not receive the hearing affidavits before the hearing, (2) Holcim was notified that the ARB
had not received the affidavits before the protest hearing but did not request a postponement of
the hearing, (3) the ARB dismissed Holcim’s protest due to failure to appear, (4) Holcim was
entitled to a new hearing if requested not later than the 4th day after June 23 but did not timely
request a hearing or timely submit a letter showing good cause, (5) Holcim did not avail itself of
the administrative remedies outlined in Section 41.45(e-1), and (6) exhaustion of administrative
remedies was a prerequisite to appeal. As a result, the trial court dismissed Holcim’s petition for
want of jurisdiction.
4
The hearing affidavits, which are not included in our appellate record, were required to meet the standards set forth
by Section 41.45(i). See TEX. TAX CODE ANN. § 41.45(i) (Supp.).
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IV. Analysis
It is undisputed that Holcim received timely notice of the hearing but failed to appear in
person, by affidavit, or by any other method. As a result, the ARB had no evidence to consider
at the hearing and dismissed Holcim’s protest. Holcim argues that the postal service’s failure to
deliver timely mailed documents constituted good cause for a new hearing, but it is also
undisputed that Holcim failed to request, within four days of the hearing, a new hearing based on
good cause and that no determination on the issue of good cause was made by the ARB.
“Property owners may not pursue judicial relief regarding a tax protest until they have
exhausted administrative remedies.” Fort Bend Cent. Appraisal Dist. v. McGee Chapel Baptist
Church, 611 S.W.3d 443, 448 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Holcim’s
petition requested an appeal on the merits of his property tax protest, but the ARB never decided
the merits, which was a prerequisite to obtaining the relief requested by Holcim’s prayer. See
New Laredo Hotel, 792 S.W.2d at 955; Fort Bend Cent. Appraisal Dist. v. McGee Chapel
Baptist Church, 611 S.W.3d 443, 451 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Aramco
Associated Co., 33 S.W.3d at 364. We find that Holcim’s failure to follow the procedures of
Chapter 41 deprived the trial court of jurisdiction. See Rourk, 194 S.W.3d at 502; New Laredo
Hotel, 792 S.W.2d at 954–55; Bundren, 2019 WL 6649053, at *3 (“By failing to appear at the
hearing or otherwise present evidence to the ARB, appellants failed to exhaust their
administrative remedies and the trial court lacked jurisdiction to consider their complaints related
to ad valorem taxes.”).
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Even so, Holcim argues that the provisions of Sections 42.01 and 42.231 apply and
confer jurisdiction on the trial court. We disagree.
Section 42.01 allows an appeal from a lack of jurisdiction determination. See TEX. TAX
CODE ANN. § 42.01(a)(1)(E) (Supp.). Holcim’s petition sought “a judicial determination of the
appropriate tax treatment of its property for the tax year.” Holcim requested that the trial court,
among other things, “fix and determine the Property’s appraised value to be no more than its
market value,” “order the Property’s appraised value according to the appraisal roll reduced to no
more than the appraised value determined by the Court,” “order the Property appraised equally
and uniformly in accordance with the law,” and “remove or reduce to the lawful amount any tax
liens upon the Property in favor of the taxing units.” Essentially, the petition sought a trial de
novo of the valuation of the property even though the ARB did not make a final determination on
the protest. The petition did not mention Section 42.01 and did not appeal any lack of
jurisdiction determination to the trial court. The District points out that it did not dismiss the
protest for lack of jurisdiction, but because it determined that Holcim forfeited the protest by
failing to appear. Because Holcim did not appeal a lack of jurisdiction determination, Section
42.01 did not serve to confer jurisdiction over the claims asserted or the relief requested by
Holcim.
Holcim also requested a remand for a new hearing under Section 42.231, but that section
only applies when an appraisal review board has entered an order determining the protest. See
TEX. TAX CODE ANN. § 42.231(a). Because Holcim’s protest was dismissed, rather than
determined, Section 42.231 does not apply.
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We find that the trial court properly granted the District’s plea to the jurisdiction. As a
result, we overrule Holcim’s sole point of error.
V. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: June 1, 2021
Date Decided: November 18, 2021
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