Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
March 18,2005
The Honorable Jeff Wentworth Opinion No. GA-03 11
Chair, Senate Jurisprudence Committee
Texas State Senate Re: Whether an appraisal review board may
Post Office Box 12068 schedule a hearing on a property tax protest and
Austin, Texas 7871 l-2068 notify the property owner of the hearing time
before the property owner has filed a written
notice of protest (RQ-0274-GA)
Dear Senator Wentworth:
You ask whether an appraisal review board may schedule a hearing on a property tax protest
and notify the property owner ofthe hearing time before the property owner has filed a written notice
of protest.’
I. Legal Backeround
Subchapter C of chapter 41 of the Tax Code establishes procedures for property owners to
protest certain actions relating to property appraisals before the appraisal review board. See TEX.
TAXCODEANN. $5 41.41-.47 (Vernon 2001 & Supp. 2004-05); see also 5 41,41(a)(1)-(9) (Vernon
2001) (listing appraisal district and appraisal review board actions that may be protested, including
the determination of the property’s appraised value). The deadline for filing a written notice to
protest an action depends upon the action involved. For example, section 25.19 of the Tax Code
requires a chief appraiser to deliver written notice to a property owner of the appraised value of the
property owner’s property “[b]y May 15 or as soon thereafter as practicable.” Id. 5 25.19(a) (Vernon
Supp. 2004-05). Under section 41.44 ofthe Tax Code, “to be entitled to ahearing and determination
of a protest” regarding an appraisal, “the property owner initiating the protest must file a written
notice of the protest with the appraisal review board before June 1 or not later than the 30th day
after the date that notice was delivered to the property owner as provided by Section 25.19,
whichever is later.” Id. 9 41,44(a)(l) (Vernon 2001)?
‘Letter from Honorable Jeff Wentwortb,Chair, Senate Jurisprudence Committee, to Honorable Greg Abbott,
Texas Attorney General (Sept. 16,2004) (on file with Opinion Committee, also avnihble at http://www.oag.state.tx.us)
[hereinafter Request Letter].
‘Section 4 1.44 also provides dates for filing a notice of protest regarding other appraisal district actions. See
TEX.TAXCODEANN.$41.44(a)(Z)(Vernon 2001) (“in the case of a protest of a change in the appraisalrecords ordered
as provided by Subchapter A of this chapter or by Chapter 25, not later than the 30th day after the date notice of the
change is delivered to the pmperty owner”),(3) (“in the case of a determinationthat a change in the use of land appraised
(continued...)
The Honorable Jeff Wentworth - Page 2 (GA-03 11)
Other provisions in subchapter C govern the appraisal review board’s duties with respect to
holding protest hearings. Section 41.45 provides:
On the filing of a notice os required by Section 41.44, the
appraisal review board shall schedule a hearing on the protest. If
more than one protest is filed relating to the same property, the
appraisal review board shall schedule a single hearing on all timely
filed protests relating to the property. A hearing for a property that is
owned in undivided or fractional interests, including separate interests
in a mineral in place, shall be scheduled to provide for participation
by all owners who have timely filed a protest.
Id. § 41.45(a) (emphasis added). Section 41.46(a) requires the appraisal review board to “deliver
written notice to the property owner initiating a protest of the date, time, and place fixed for the
hearing on the protest unless the property owner waives in writing notice of the hearing.” Id. §
41.46(a). The appraisal review board “shall deliver the notice not later than the 15th day before the
date of the hearing.” Id. An appraisal review board “shall postpone the hearing to a later date if the
property owner or the owner’s agent shows good cause for the postponement or ifthe chief appraiser
consents to the postponement.” Id. 5 41.45(e). In addition, an appraisal review board may be
required to postpone a hearing if the property owner or the owner’s agent is scheduled to appear at
a hearing on a protest before another appraisal review board on the same date. See id. 8 41.45(g).
An appraisal review board must hear and determine all or substantially all timely filed protests by
July20. See id. 5 41.12.
An appraisal review board is authorized to adopt rules governing its meetings and hearings.
See id. $5 6.42(b) (“The board may meet at any time at the call of the chairman or as provided by
rule ofthe board.“), 41.66(a) (“The appraisal review board shall establish by rule the procedures for
hearings it conducts as provided by Subchapters A and C of this chapter.“), 41.71 (“An appraisal
review board by rule shall provide for hearings on protests in the evening or on a Saturday or
Sunday.“). However, an appraisal review board rule “may not impose additional burdens,
conditions, or restrictions in excess of or inconsistent with the statutory provisions.” Burnet County
Appraisal Dist. v. J&f. Huber Corp., 808 S.W.2d 613,615 (Tex. App.-Austin 1991, writ denied)
(concluding that an appraisal review board’s refusal to recognize a letter as a notice of protest
imposed additional burdens and exceeded the board’s authority under Tax Code section 41.44(d)).
‘(...continued)
under Subchapter C, D, E, or H, Chapter 23, has occurred, not later than the 30th day after the date the notice of the
determination is delivered to the property owner”), (c) (“A property owner who tiles notice of a protest authorizedby
Section 41.4 11 [for failure to provide any required notice] is entitled to a hearing and determination of the protest if he
files the notice prior to the date the taxes on the property to which the notice applies become delinquent. An owner of
land who files a notice ofprotest under Subsection(a)(3) is entitled to a hearing and determination of the protest without
regard to whether the appraisal records are approved.“).
The Honorable Jeff Wentworth - Page 3 (GA-031 1)
II. Analvsis
You state that certain appraisal review boards “have adopted the practice of setting protest
hearings sua sponte for several pieces ofproperty, sometimes prior to June 1, notifying the property
owners of the date, time and location of the hearing should they protest, and then holding a hearing
at the specified date only if the respective owner tiles a timely protest.” Request Letter, supra note
1, at l-2. You specifically ask “whether filing a property appraisal protest pursuant to Texas Tax
Code section 41.44 is a condition precedent to an appraisal review board’s setting a hearing on the
protest.” Id. at 2.
Section 41.45(a) provides that, “[o]n the filing of a notice as required by Section 41.44, the
appraisal review board shall schedule a hearing on the protest.” TEX. TAX CODE iiNN. 5 41.45(a)
(Vernon 2001). The Code Construction Act provides that the term “shall” generally “imposes a
duty.” TEX. GOV’T CODE ANN. 5 3 11.016(2) (Vernon 2005).’ According to its plain terms, section
41.45(a), in using the term “shall,“imposes a duty on an appraisal review board. And, taken together
with the first clause of section 41.45(a), it is plain that this duty to schedule a hearing arises only
“[o]n the filing of a notice” of protest, See TEX. TAX CODE ANN. 5 41.45(a) (Vernon 2001).
Furthermore, we believe that subchapter C, viewed as a whole, does not authorize an
appraisal review board before it receives a protest notice to schedule a hearing on an anticipated
protest and to notify the property owner about the hearing time. Subchapter C establishes a detailed
timeline for taxpayer protest events. For example, a property owner who wishes to protest an
appraisal determination must file4 a written notice ofprotest before June 1 or “not later than the 30th
day after the date that notice [of appraised value]” was delivered’ to the property owner, “whichever
is later.” See id. 5 41.44(a)(l). Section 41,45(a) requires an appraisal review board to schedule a
hearing upon receiving a notice of protest, and section 41.46(a) requires an appraisal review board
to deliver6 notice of a scheduled hearing not later than the 15th day before the date of the hearing.
‘By contrast, the term “must” “creates or recognizes a condition precedent.” TEX. GOV’T CODE ANN. $i
311.016(3) (Vemon2005).
‘When a property owner is required by title 1 of the Tax Code “to make a payment or to file or deliver a report,
application, statement, or other document or paper before a specified date,” the action is timely if: “(1) it is sent by
regular first-classmail, properly addressed with postage prepaid; and (2) it bears a post office cancellationmark of a date
earlier than the specified date and within the specified period or the property owner furnishes satisfactoryproof that it
was deposited in the mail before the specified date and within the specitied period.” TEX.TAXCODE ANN. 5 1.08
(Vernon 2001); see also id. 5 1.06 (“If the last day for the performance of an act is a Saturday, Sunday, or legal state or
national holiday, the act is timely if performed on the next regular business day.“).
‘An official or agency required by title 1 of the Tax Code “to deliver a notice to a property owner may deliver
the notice by regular first-classmail, with postage prepaid, unless this section or another provision of this title requires
a different method of delivery or the parties agree that the notice must be delivered as provided by Section 1.085.” Id.
5 1.07(a); see also id. 5 1.07(c) (“A notice permitted to be delivered by first-class mail by this section is presumed
delivered when it is deposited in the mail. This presumption is rebuttable when evidence of failure to receive notice is
provided.“).
‘See id. $ 1.07(a).
The Honorable Jeff Wentworth - Page 4 (GA-031 1)
See id. $5 41.45(a), .46(a). Together, these provisions contemplate that a property owner will have,
at a minimum, a period of approximately 30 days after receiving notice of the property’s appraised
value to decide whether to file a notice ofprotest, followed by a period of approximately tifteen days
to prepare for the protest hearing. See id.; see also supra notes 4-5 (noting that delivery or filing may
be accomplished by regular first-class mail). In establishing this detailed timeline, the legislature
has not authorized an appraisal review board to schedule a hearing on a protest before receiving the
property owner’s notice of protest or to notify a property owner of a prescheduled hearing, and, in
light of the detailed nature of the procedures the legislature has prescribed, we do not believe this
authority may be implied.
Finally, an appraisal review board rule may not impose on a property owner additional
burdens, conditions, or restrictions in excess ofor inconsistent with statutory provisions. See Burnet
County Appraisal Dist., 808 S.W.2d at 615. No provision in subchapter C authorizes an appraisal
review board to schedule a hearing on a protest before receiving the property owner’s notice of
protest or to inform a property owner who has not filed a protest notice that a hearing has been
scheduled. Moreover, an appraisal review board that notifies a property owner of a hearing date
before the property owner has filed a notice of protest may shorten the property owner’s statutorily
allotted time to decide to file the protest or to prepare for the protest hearing, imposing conditions
on the property owner that are inconsistent with subchapter C. Thus, we conclude that an appraisal
review board lacks authority by rule to establish a procedure to preschedule hearings and to notify
property owners about such prescheduled hearings.
The Honorable Jeff Wentworth - Page 5 (GA-031 1)
SUMMARY
An appraisal review board lacks authority before a property
owner has filed a written notice of protest to schedule a hearing on a
property tax appraisal protest and to notify the property owner about
the hearing time.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee