Christina Prince v. Texas Department of Family and Protective Services ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00202-CV
Bobby Blu Greene, Appellant
v.
The State of Texas; The City of Dallas, Texas;
The Transit Authority of Dallas, Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GV-06-000183, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
OPINION
Bobby Blu Greene appeals from the trial court’s final judgment finding him
personally liable for past due sales tax, penalties, and interest owed by Greene’s Gold and Diamonds,
Inc. (“Greene’s Gold”), based on past forfeitures of Greene’s Gold’s corporate privileges. See Tex.
Tax Code Ann. § 171.255 (West 2008). On appeal, Greene argues that he cannot be held personally
liable for sales tax as an officer and director of Green’s Gold because there was insufficient evidence
that the Texas Comptroller of Public Accounts (“the Comptroller”) followed the statutory
requirements for providing notice of the forfeiture of corporate privileges. Greene also challenges
the authority of the trial judge to sign the final judgment in this case after the expiration of her term
of office. We affirm the trial court’s judgment.
BACKGROUND
In September 1998, the Comptroller randomly selected Greene’s Gold, a Dallas-area
wholesale and retail jewelry business, for a sales tax audit. This audit originally encompassed the
periods of February 1, 1995 through October 31, 1998, but was later extended to cover the periods
of July 1, 1992 through July 31, 1999. Upon completing the audit, the Comptroller notified Greene’s
Gold that its audit results indicated a total sales tax liability of $1,121,471.81. Greene’s Gold then
requested a redetermination of its tax liability. The Comptroller granted this request and, as a result
of the redetermination proceeding, amended Greene’s Gold’s audit results to delete one of the two
fraud penalties that had been assessed, remove two audit periods from the assessment, and reduce
the amount of unreported gross sales. In September 2005, the Comptroller notified Greene’s Gold
that its redetermination was complete and that its amended tax liability totaled $1,479,837.29.1
In December 2005, Greene’s Gold entered federal bankruptcy proceedings, thus
precluding the relevant taxing authorities from suing Greene’s Gold directly to recover the tax
amounts due. As a result, in February 2006, the State of Texas, the City of Dallas, and the Transit
Authority of Dallas (collectively, “the State”), filed suit against Greene and Legacy Exquisite
Jewelers, Inc. (“Legacy”) in an attempt to collect the amount of Greene’s Gold’s sales tax liability.
The State sued Greene individually as an officer and director of Greene’s Gold under tax code
section 171.255, which provides that officers and directors may be held personally liable for debts
1
Despite the downward adjustments made by the Comptroller after its redetermination of
the audit results, the accumulation of interest caused Greene’s Gold’s amended tax liability to exceed
the original liability amount.
2
incurred by a corporation during a period in which corporate privileges have been forfeited.2 See id.
The State sought to impose tax liability against Legacy, a jewelry business owned by Greene’s
mother and incorporated in 2004, as a successor to Greene’s Gold’s tax liability and as a fraudulent
transferee, under the theory that Greene’s Gold had sold its assets to Legacy in a sham transaction
for the purpose of avoiding tax liability. See id. § 111.020 (West 2008) (purchaser of business may
be held liable for seller’s tax liability in absence of certain precautionary measures), § 111.024
(West 2008) (person acquiring business through fraudulent transfer or sham transaction is liable for
taxes owed by seller).
A bench trial was held in October 2008, during which the State presented evidence
that Greene’s Gold’s corporate privileges were forfeited on four separate occasions during the audit
period and that during these periods of forfeiture, the total amount of tax, interest, and penalties
assessed against Greene’s Gold totaled $1,095,842.95. The State also presented evidence related to
its theories of successor liability in connection with Legacy. After hearing the evidence, the trial
court rendered judgment against Legacy for Greene’s Gold’s full tax liability, an amount of
$1,736,470.13. The court also found Greene jointly and severally liable for the portion of that
amount that was incurred during periods of forfeiture, $1,095,842.95.3 The trial court found Legacy
and Greene jointly and severally liable for $56,000 in attorneys’ fees, plus conditional appellate
2
Greene was the sole officer and director of Greene’s Gold.
3
The judgment also assessed prejudgment interest against Legacy at $181.34 per day after
October 13, 2008, the date through which liability was calculated for purposes of the Comptroller’s
trial certificate. See Tex. Tax Code Ann. § 111.013 (West 2008) (providing that in tax collection
suit, “a certificate of the comptroller that shows a delinquency is prima facie evidence” of stated
amount of tax, penalties, and interest). Greene was found jointly and severally liable for
prejudgment interest in the amount of $116.05 per day.
3
attorneys’ fees. The trial court made findings of fact and conclusions of law to support its judgment,
and this appeal followed.4
In his first two issues on appeal, Greene argues that the trial court erred in imposing
officer and director liability against him under section 171.255 because the State failed to establish
that the Comptroller had fully complied with the notice requirements of section 171.256. See id.
§ 171.256 (West 2008) (requiring Comptroller to notify corporation at least 45 days before forfeiture
of corporate privileges). In his third issue on appeal, Greene contends that the trial judge who
presided over the bench trial in this case did not have authority to sign the final judgment
because she retired from office on December 31, 2008, but did not sign the final judgment until
January 7, 2009.
STANDARD OF REVIEW
Greene’s arguments regarding the notice requirement of tax code section 171.256
turn on a question of statutory construction, which we review de novo. See City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).
The qualification of a retired judge to preside over a case is a jurisdictional issue that
cannot be waived and may be raised at any time. See Houston Gen. Ins. Co. v. Ater, 843 S.W.2d
225, 227 (Tex. App.—El Paso 1992, no writ). The issue of whether a judge had authority to act is
a question of law subject to de novo review. See id.
4
Legacy did not appeal the trial court’s judgment.
4
DISCUSSION
Authority of District Judge to Sign Final Judgment
Because Greene’s argument that the district judge lacked authority to sign the final
judgment implicates the trial court’s jurisdiction, we will resolve this issue before turning to
Greene’s arguments under the tax code. Judge Cooper, the district judge who presided over
the bench trial in this case in October 2008, retired at the end of her term of office on
December 31, 2008. At the close of evidence on October 15, 2008, Judge Cooper requested
additional briefing from the parties on certain issues, stating, “[T]hen I’ll issue a letter ruling and
request that one of you prepare an order and circulate it pursuant to our local rules for approval as
to form.” The parties submitted additional briefing as requested, and on December 2, 2008,
Judge Cooper issued a letter to the parties stating that “judgment is rendered for the plaintiffs on all
claims and plaintiffs are awarded their attorneys’ fees. [Counsel for the State] is requested to prepare
a form of judgment, circulate to all counsel for approval as to form, and submit to the court for
signature.” This letter was filed with the district clerk, and was noted on the court’s docket sheet as,
“Letter from Margaret Cooper.” Judge Cooper signed the final judgment on January 7, 2009, and
issued findings of fact and conclusions of law on March 13, 2009. While Judge Cooper made an
election under section 75.001 of the government code to sit by assignment after her retirement, it is
undisputed that she was not sitting by assignment at the time she signed either the final judgment or
the findings of fact and conclusions of law. See Tex. Gov’t Code Ann. § 75.001 (West 2005)
(providing that judicial retiree may elect to be designated senior judge and to continue to serve as
judicial officer); § 75.002 (West 2005) (providing that retired district judge may sit by assignment
by presiding judge of administrative judicial region).
5
Greene contends that because Judge Cooper was retired and was not sitting by
assignment at the time the final judgment was signed, she lacked authority to sign the judgment and
the judgment is therefore void as a matter of law. See Ex parte Eastland, 811 S.W.2d 571, 572
(Tex. 1991) (per curiam) (holding that trial court’s order was void because visiting judge exceeded
temporal scope of his assignment); Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)
(per curiam) (“A judgment is void . . . when it is apparent that the court rendering the judgment
had . . . no capacity to act as a court.”). However, “the powers of a District Judge do not cease in
their entirety upon h[er] resignation or the expiration of h[er] term of office. A judge whose term
of office has ceased may perform clerical duties such as the making of Findings for the purpose of
perfecting an appeal.” Crawford v. Crawford, 315 S.W.2d 190, 192 (Tex. Civ. App.—Waco 1958,
no writ) (holding that where judge rendered judgment and noted it on docket sheet during term of
office, but signed written judgment after vacating office, his “judicial function continued and
survived after he vacated the office of District Judge, as necessary to lend efficacy, validity and
legality to the act of signing the judgment”). Thus, if Judge Cooper rendered judgment prior to the
expiration of her term of office on December 31, 2008, she retained judicial authority after her
retirement to sign the form of the judgment and the findings of fact and conclusions of law. See id.
The State takes the position that Judge Cooper’s letter to the parties, written and filed
with the clerk during her term of office, represented the rendition of final judgment and therefore
preserved her authority to later sign the form of the final judgment and the findings of fact and
conclusions of law. Greene argues in response that a letter to the parties cannot represent the
rendition of judgment, citing to cases in which Texas courts have held that a letter to the parties does
not represent a final, appealable order. See Goff v. Tuchscherer, 627 S.W.2d 397, 398-99
6
(Tex. 1982) (stating that appellate deadlines must run from day judge signs judgment, decision, or
order, and that letters to counsel are “not the kind of documents” from which appeal may be taken);
see also Perdue v. Patten Corp., 142 S.W.3d 596, 603 (Tex. App.—Austin 2004, no pet.) (holding
that letter to counsel did not “constitute the formal, signed order” contemplated by rule of civil
procedure 329b(c) for determination of motion for new trial). However, the issue of whether the
form of judgment is final for purposes of starting the timetable for appellate deadlines is distinct
from the question of whether judgment has actually been rendered. See Texas Life Ins. Co. v. Texas
Bldg. Co., 307 S.W.2d 149, 154 (Tex. Civ. App.—Fort Worth 1957, no writ) (“[F]rom the
standpoint of ‘timetables’ for appeal, judgments have a peculiar character. As to such, it is in general
the ‘record’ of the judgment which controls rather than the judgment itself.”). For example, while
judgment may be rendered orally, a written and signed order recording the judgment is necessary
for purposes of “measuring time for appellate steps and for determining a motion for new trial during
the period of the court’s plenary jurisdiction.” Perdue, 142 S.W.3d at 602.
In short, the rendition of judgment and the signing of a written judgment are not
synonymous. Burns v. Bishop, 48 S.W.3d 459, 465 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
(citing Tex. R. Civ. P. 306a(1)). Judgment is rendered when the trial judge declares her decision of
law upon the matters at issue, either in open court or by memorandum filed with the clerk. See S&A
Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). Once judgment has been rendered,
subsequent acts of drafting and signing a written form of judgment are merely “preparatory,
administrative acts that would authenticate the record of the court’s rendition.” Burns, 48 S.W.3d
at 466 (emphasis omitted). Thus, if a judge renders judgment during her term of office, that judge
7
may then perform “the ministerial act of signing the instrument of judgment,” even after her term
of office has expired. See Texas Life Ins. Co., 307 S.W.2d at 154 (“In so far as the signing of the
form of judgment on January 25, 1957, was concerned, Judge Fulgham’s judicial function (existent
on and before December 31, 1956) survived and continued as necessary to lend efficacy to the act.”).
A letter to the parties that describes the court’s findings and asks the parties to prepare
a judgment, while insufficient to serve as an appealable order, can serve as the rendition of judgment
if it is filed with the clerk. See Abarca v. Roadstar Corp. of Am., 647 S.W.2d 327, 327-28
(Tex. App.—Corpus Christi 1982, no writ). In Abarca, the court held that a letter to the parties,
setting forth the trial court’s decision and requesting that a judgment be prepared, “was the rendering
of the judgment in this case.” Id. at 328. Because the judge who wrote the letter died before signing
the prepared judgment, his successor in office signed it instead. Id. The court of appeals determined
that the new trial judge could properly sign the judgment based on the findings expressed in his
predecessor’s letter, as the letter was the actual rendition of judgment and the successor’s “act in
signing the formal document called the judgment merely recorded this rendition.” Id. In reaching
this conclusion, the court emphasized the fact that the letter to the parties “certainly qualifies as a
memorandum, and it was filed with the clerk.” Id. (citing Comet Aluminum Co. v. Dibrell,
450 S.W.2d 56, 58 (Tex. 1970) (observing rule that judgment is rendered when officially announced,
either orally in open court or by memorandum filed with clerk)).
The question, then, is whether Judge Cooper’s December 2 letter to the parties
represented the rendition of judgment in this case, so that her subsequent act of signing the judgment
was a ministerial act that “merely recorded this rendition.” Id. If so, she retained judicial capacity
8
to sign the judgment and findings of fact, even after the expiration of her term of office. See Texas
Life Ins. Co., 307 S.W.2d at 154; Crawford, 315 S.W.2d at 192. First, we note that like the letter
in Abarca, Judge Cooper’s letter qualifies as a memorandum and was filed with the clerk. The body
of the letter, in its entirety, is as follows:
The above-captioned matter came on for trial on the merits on October 13 - 15, 2008.
Having heard the evidence and considered the arguments of counsel, as well as the
post-trial briefing, judgment is rendered for the plaintiffs on all claims and plaintiffs
are awarded their attorneys’ fees. [Counsel for the State] is requested to prepare a
form of judgment, circulate to all counsel for approval as to form, and submit to the
court for signature.
(Emphasis added.) The present-tense language of Judge Cooper’s letter, stating that “judgment is
rendered,” indicates her intent to render judgment at that time, rather than at some point in the future
once the form of judgment had been prepared. We “give deference to the trial court’s factual
determination regarding whether it previously rendered judgment.” In re Dickerson, 259 S.W.3d
299, 301 (Tex. App.—Beaumont 2008, pet. denied). Judge Cooper’s letter also references the
preparation of “a form of judgment,” reinforcing the distinction between the act of rendition and the
ministerial act of recording the previously rendered judgment.
Greene argues that Judge Cooper’s letter cannot represent the rendition of judgment
because it does not specifically state the monetary amounts awarded. While the terms of a final
judgment must be certain and definite, the “total amount of money need not be stated in dollars and
cents if the correct amount can be ascertained by the pleadings.” Jones v. Liberty Mut. Ins. Co.,
733 SW.2d 240, 242 (Tex. App.—El Paso 1987, no writ); see also Hill v. Lyles, 81 S.W. 559, 559
(Tex. Civ. App.—Austin 1904, no writ) (“We understand the rule to be that, if the amount of the
9
judgment can be made certain by reference to the pleadings, it is sufficient.”). Further, when the
judgment “makes the figure which the clerk is to place in the writ of execution determinable by
ministerial act, the judgment cannot be said to lack definiteness.” International Sec. Life Ins. Co.
v. Spray, 468 S.W.2d 347, 350 (Tex. 1971).
Because of the unique nature of a sales tax collection proceeding, the specific amount
of the judgment could easily be ascertained by reference to the pleadings. Section 111.013 of the
tax code provides that in a suit involving the establishment or collection of certain taxes, including
sales tax, a delinquency certificate from the Comptroller is prima facie evidence of:
(1) the stated tax or amount of the tax, after all just and lawful offsets, payments, and
credits have been allowed;
(2) the stated amount of penalties and interest;
(3) the delinquency of the amounts; and
(4) the compliance of the comptroller with the applicable provisions of this code in
computing and determining the amount due.
Tex. Tax Code Ann. § 111.013(a) (West 2008). The record in this case contains two relevant
delinquency certificates from the Comptroller—one setting forth the sales tax liability of Legacy as
a transferee of Greene’s Gold and one setting forth Greene’s individual liability under
section 151.255. The form of judgment ultimately signed by Judge Cooper incorporates the
amounts listed on these delinquency certificates, stating that the amounts awarded “reflect the state,
city, and transit authority sales tax, penalties, and interest shown on the Trial Certificate calculated
through October 13, 2008.” The prejudgment interest listed on the form of judgment is also
10
consistent with the delinquency certificates, which provide that after October 13, 2008, additional
interest will accrue at $181.34 per day for Legacy and $116.05 per day for Greene. In rendering
judgment in favor of the State on all claims, Judge Cooper’s letter necessarily awarded the amounts
of taxes, penalties, and interest stated on the Comptroller’s delinquency certificates.
In addition to the delinquent tax amounts, Judge Cooper’s letter also awards the State
its attorneys’ fees. While the appropriate attorneys’ fee award is not ascertainable from the
Comptroller’s delinquency certificate, at the time the letter was written, there remained no question
of fact for the trial court to resolve other than the discretionary matter of whether to award fees at
all. The parties stipulated at trial to the amount of attorneys’ fees incurred by the State, the
appropriate amount of conditional appellate fees, and the reasonableness and necessity of such fees.5
Greene declined to stipulate to his liability for fees, given his position that he was not subject to
director and officer liability, but he agreed that in the event fees were awarded, the amount sought
by the State—$56,000 for trial and a total of $5,000 for appeals to this Court and the supreme
court—was reasonable and necessary. Accordingly, the only unsettled matter left before the trial
court was whether to award the stipulated fees to the State. By awarding the State its attorneys’ fees,
Judge Cooper’s letter necessarily awarded the amounts stipulated to by the parties. These amounts
were ultimately reflected in the form of judgment.
Based on the unique facts of this case, in which the amount of tax liability was clearly
delineated by the Comptroller’s delinquency certificate and the appropriate amount of an attorneys’
5
The State was entitled to recover attorneys’ fees under government code section 2107.006,
which provides that “the attorney general may recover reasonable attorney fees” in any proceeding
in which the State seeks to collect or recover a delinquent obligation. Tex. Gov’t Code Ann.
§ 2107.006 (West 2008).
11
fee award had been resolved by stipulation of the parties, we conclude that Judge Cooper’s letter,
stating that “judgment is rendered” for the State on all claims, was sufficiently definite to constitute
the rendition of judgment. See Jones, 733 S.W.2d at 242; Hill, 81 S.W. at 559.
Greene also argues that Judge Cooper’s failure to enter judgment on the court’s
docket sheet prior to the expiration of her term is dispositive as to her capacity to sign the final
judgment, citing Martinez v. Martinez, 759 S.W.2d 522 (Tex. App.—San Antonio 1988, no writ).
In Martinez, the court stated that “a district judge who has been properly replaced by a successor has
the authority to sign a written judgment after he has been replaced, provided he heard the cause and
entered his judgment in the docket sheet of the cause before the expiration of his term.” Id. at 523.
The court went on to hold that because the judge in question had not entered his judgment in the
docket sheet before the expiration of his term, he had no authority to sign the judgment after his
retirement. Id. The court did not hold, however, that entry of judgment on the docket sheet is the
sole means by which a retired judge may retain the authority to sign a previously rendered judgment.
The judge in Martinez failed to render judgment during his term of office, by letter to the parties or
otherwise, but simply took the matter under advisement at the close of trial and then, over a year
after leaving office, signed a final judgment. Id. Thus, the judge lacked capacity to sign the final
judgment, not because he failed to enter his judgment on the docket sheet, but because he failed to
render judgment in any manner during his term of office. See id. (citing Texas Life Ins. Co.,
307 S.W.2d at 154 (holding that docket entry, while generally insufficient to constitute judgment
itself, can be evidence that judgment has been rendered)). As previously discussed, Judge Cooper,
unlike the judge in Martinez, did render judgment by letter to the parties during her term of office.
12
Furthermore, Judge Cooper’s act of rendering judgment was entered into the court’s docket sheet,
with the notation, “Letter from Margaret Cooper.” Accordingly, we are not persuaded by Greene’s
argument that Martinez is controlling on the issue of whether Judge Cooper retained judicial
authority to sign the final judgment.
As the Texas Supreme Court held in Storrie v. Shaw, “We fail to see any sound
objection to the conclusion that upon the retirement of a judge the judicial function survives and
continues so far as necessary for him to complete that which reflects the operations of his own mind
or relates to his own conduct in the particular case.” 75 S.W. 20, 22 (Tex. 1903). Because the
“judicial function survives” in a retired judge for the purpose of actions necessary to carry out a
judgment rendered during her term of office, see id., and because Judge Cooper’s December 2 letter
to the parties represents the rendition of judgment in this case, we hold that Judge Cooper retained
the authority to sign the judgment and findings of fact and conclusions of law after expiration of her
term of office. Greene’s third issue on appeal is overruled.
Officer & Director Liability under the Tax Code
In his remaining issues on appeal, Greene argues that the trial court erred in imposing
officer and director liability against him under section 171.255 of the tax code. Specifically, Greene
argues in his first issue that the notice provision in section 171.256 of the tax code creates a statutory
prerequisite to the forfeiture of corporate privileges and that because the State failed to prove the
Comptroller’s compliance with section 171.256, it cannot seek to impose officer and director liability
against him under section 171.255. In his second issue, Greene argues that the trial court erred in
13
relying on a “presumption of regularity” to determine that the Comptroller did in fact satisfy the
notice requirements of section 171.256.
Section 171.251 of the tax code authorizes the Comptroller to forfeit the corporate
privileges of a corporation that fails to file its franchise tax report or pay its franchise taxes. Tex.
Tax Code Ann. § 171.251 (West 2008). Section 171.256 describes the procedure for providing
notice of an impending forfeiture:
(a) If the comptroller proposes to forfeit the corporate privileges of a corporation, the
comptroller shall notify the corporation that the forfeiture will occur without a
judicial proceeding unless the corporation:
(1) files [its franchise tax report within 45 days]; or
(2) pays [its delinquent franchise tax and any penalties within 45 days].
(b) The notice shall be written or printed and shall be verified by the seal of the
comptroller’s office.
(c) The comptroller shall mail the notice to the corporation at least 45 days before the
forfeiture of corporate privileges. The notice shall be addressed to the corporation
and mailed to the address named in the corporation’s charter as its principal place of
business or to another known place of business of the corporation.
(d) The comptroller shall keep at the comptroller’s office a record of the date on
which the notice is mailed. For the purposes of this chapter, the notice and the record
of the mailing date constitute legal and sufficient notice of the forfeiture.
Id. § 171.256. Greene takes the position that the State failed to demonstrate the Comptroller’s
compliance with section 171.256 because it did not present sufficient evidence that a notice of
forfeiture was mailed to Greene’s Gold at its principal place of business. Accordingly, Greene
14
argues, the State cannot hold him individually liable under section 171.255. Section 171.255
provides, in relevant part:
If the corporate privileges of a corporation are forfeited for the failure to file a report
or pay a tax or penalty, each director or officer of the corporation is liable for each
debt on which the report, tax, or penalty is due and before the corporate privileges are
revived. The liability includes liability for any tax or penalty imposed by this chapter
on the corporation that becomes due and payable after the date of the forfeiture.
Id. § 171.255(a).
At trial, the State introduced Comptroller records showing that Greene’s Gold’s
corporate privileges were forfeited for failure to satisfy franchise tax requirements on four separate
occasions during the audit period. Greene does not dispute that Greene’s Gold qualified for
forfeiture under section 171.251 for each of the four time periods in question, but argues that because
the State failed to prove the Comptroller’s compliance with the notice requirements of section
171.256, it failed to prove that forfeiture properly occurred. Because Greene’s arguments are based
on the premise that the notice requirements of section 171.256 are conditions precedent to the
imposition of officer and director liability under section 171.255, we will first address this issue
before considering whether such compliance was established at trial.
I. Conditions Precedent to Officer and Director Liability
There is no indication in the plain language of sections 171.255 or 171.256 that
officer and director liability is contingent upon pre-forfeiture notice to the corporation. This Court
recently addressed a similar issue in State v. Montano, holding that while the Texas Ethics
Commission is statutorily required to provide notice of late-filed financial disclosure and campaign
15
finance reports, notice is not a prerequisite for the imposition of penalties for late-filed reports.
313 S.W.3d 854, 857-58 (Tex. App.—Austin 2010, no pet.). In reaching this conclusion, this
Court stated:
The statute is the notice of both the requirement and the deadline. Missing the
statutory deadline implicates a statutory penalty. The fact that the TEC is required
to send notice of a determination that a penalty will be imposed does not affect the
fact that filers are statutorily on notice of the requirement to file, the deadline for
filing, and the penalties for late filing.
Id. at 857. Similarly, officers and directors are statutorily on notice that a corporation’s failure to
fulfill franchise tax requirements will result in the forfeiture of corporate privileges, which in turn
will subject them to personal liability for debts incurred during the time of forfeiture. See Tex. Tax
Code Ann. §§ 171.251, .255. The connection between the notice requirement of section 171.256 and
the personal liability imposed under section 171.255 is in fact weaker than the connection between
the provisions at issue in Montano, as the election code at least requires that notice be given to the
same party against whom penalties would be assessed. In contrast, the tax code contains no
requirement that the Comptroller notify the officers and directors themselves of the impending
forfeiture of corporate privileges, requiring only that notice be mailed to the corporation. See id.
§ 171.256.6
6
Officers and directors may avoid liability for debts of the corporation incurred over their
objection or without their knowledge. See Tex. Tax Code Ann. § 171.255 (West 2008). The trial
court determined that Greene did not qualify for this exception to personal liability, and Greene does
not argue otherwise on appeal.
16
In support of his argument that the notice requirement is a condition precedent to
officer and director liability, Greene cites Virtual Healthcare Services, Ltd. v. Laborde, 193 S.W.3d
636 (Tex. App.—Eastland 2006, no pet.). The court in Laborde held that a corporation’s officer and
director, a Louisiana resident, was not subject to personal jurisdiction for purposes of personal
liability under section 171.255 because the Comptroller had improperly mailed the forfeiture notice
under section 171.256 to an address that did not qualify as the “principal place of business” or
“another known place of business of the corporation.” Id. at 645 (citing Tex. Tax Code Ann.
§ 171.256(c)). Citing this failure to comply with the notice requirements, as well as the evidence
that the officer had no actual notice of the forfeiture, the court held that an exercise of jurisdiction
over the officer would not comport with traditional notions of fair play and justice. Id. Laborde is
distinguishable from the present case in two significant ways. First, the holding in Laborde did not
turn on the statutory language of the tax code, but on the principle that the exercise of personal
jurisdiction over a nonresident defendant must “comport with traditional notions of fair play and
substantial justice” in order to satisfy due process. Id. at 644; see also International Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945). Second, the Laborde holding was based in part on the
evidence that the officer never received actual notice of the forfeiture. See 193 S.W.3d. at 645
(determining that exercise of personal jurisdiction would be unjust because “Laborde did not have
knowledge of the forfeiture when [the corporation] incurred the debt—either by proper statutory
notice from the comptroller to [the corporation] or other notice”) (emphases added). In the present
case, we are not confronted with the constitutional safeguards related to the exercise of personal
jurisdiction over nonresident defendants, nor is there any question that Greene received actual notice
17
of the forfeitures of Greene’s Gold’s corporate privileges, given that the necessary steps were taken
to revive privileges after each forfeiture and that Greene was the sole officer and director of the
corporation. Accordingly, we are not persuaded that Laborde compels any particular disposition of
the questions presented by the instant case.
We may not judicially amend a statute to add new requirements. See Lee v. City of
Houston, 807 S.W.2d 290, 295 (Tex. 1991). Had the legislature intended to make officer and
director liability under section 171.255 contingent on compliance with the notice requirements of
section 171.256, it could have done so. Otherwise, we are constrained to the plain language of the
statute, which provides only that officers and directors are liable for debts of the corporation incurred
during periods of forfeiture, subject to certain exceptions not applicable to the present case. See Tex.
Tax Code Ann. § 171.255. As a result, we hold that the notice requirements of section 171.256 are
not conditions precedent to officer and director liability under section 171.255.
Greene also argues that because sections 171.255 and 171.256 contain no provision
for notice to the officers and directors themselves before personal tax liability attaches, they violate
due process and are facially unconstitutional. He further contends that these statutory provisions are
unconstitutional as applied to him in this case because the trial court did not require the State to
prove that notice had been sent to the address required by section 171.256, and by extension, to
Greene personally.7
7
This argument appears to be based on the notion that notice mailed to the corporation’s
principal place of business as required by section 171.256 could also be considered notice to the
corporation’s officers and directors. Specifically, Greene argues, “Unless Sections 171.255 and
171.256(c) are construed in a manner to provide notice to both the corporation at the address stated
in the statute and to its officers and directors at that same address, both Sections 171.255 and
171.256 are unconstitutional as applied by the trial court in this case.”
18
The imposition of tax liability without prior notice and a hearing does not represent
an unconstitutional deprivation of due process when the tax code allows for a de novo review of the
party’s tax liability in state court. See Texas Alcoholic Beverage Comm’n v. Macha, 780 S.W.2d
939, 942 (Tex. App.—Amarillo 1989, writ denied). A trial de novo affords “an adequate legal
remedy to the taxpayer wishing to challenge the amount of assessment, the validity of the tax, or the
authority of the official enforcing it.” Id. at 944 (citing Cobb v. Harrington, 190 S.W.2d 709, 713
(Tex. 1945)). “Judicial review by trial de novo is clearly adequate to assure against the risk of
mistaken deprivation.” Id.; see also Big D Bamboo, Inc. v. State, 567 S.W.2d 915 (Tex.
App.—Beaumont 1978, no writ) (holding that lack of hearing prior to filing of tax suit did not
deprive appellants of any constitutional rights because “[a]ppellants were entitled to a full and
complete hearing on their tax liability in the district court”). Officers and directors are entitled to
a full and complete hearing on their tax liability in district court. See Tex. Tax Code Ann. § 111.010
(West 2008) (authorizing attorney general to file suit to recover taxes); § 112.052 (West 2008)
(governing taxpayer suits after payment of taxes under protest); § 112.151 (West 2008) (governing
taxpayer refund suits); see also Herrera v. State, No. 03-01-00101-CV, 2002 Tex. App. LEXIS 951,
at *5 n.4 (Tex. App.—Austin Feb. 7, 2002, no pet.) (not designated for publication) (identifying suit
under section 111.010 as “de novo action by the State to collect delinquent tax”). During these
hearings, officers and directors may seek to avoid personal liability by showing that the debt was
incurred over their objection or without their knowledge. See Tex. Tax Code Ann. § 171.255(c).
Officers and directors are also statutorily on notice that the corporation’s failure to fulfill franchise
tax obligations may result in personal liability under section 171.255. See Montano, 313 S.W.3d at
19
857 (“The statute is the notice of both the requirement and the deadline.”); see also Tex. Tax Code
Ann. §§ 171.151-.214 (West 2008) (describing franchise tax filing and record-keeping obligations
and deadlines). In light of the statutory notice and the opportunity for a de novo review in district
court, we hold that tax code sections 171.255 and 171.256 do not violate due process.
II. Compliance with Section 171.256
Even if we did consider compliance with section 171.256 to be a prerequisite for
officer and director liability under 171.255, the State sufficiently established that the Comptroller
fulfilled the statutory requirements in this case. At trial, the State presented the Comptroller’s record
of Greene’s Gold’s franchise tax history, which contained four separate, dated entries marked,
“DELINQUENT NOTICE.” Each notice entry was followed by an entry marked, “FORFEIT CORP
PRIV,” each of which was dated at least 45 days after the notice entry, consistent with the
requirement that notices be mailed at least 45 days prior to forfeiture. See Tex. Tax Code Ann.
§ 171.256(c). These records are sufficient to fulfill the statutory requirement that the Comptroller
maintain a record of the date on which a pre-forfeiture notice is mailed. See id. § 171.256(d).
While Greene contends that the State was also obligated to produce copies of each
notice of impending forfeiture or records indicating the contents of each notice and the address to
which it was sent, there is no basis in the plain language of section 171.256 for such an obligation.
The only record-keeping requirement imposed on the Comptroller is to maintain “a record of the date
on which the notice is mailed.” Id. § 171.256(d). Greene points to the second sentence of subsection
(d), which provides that “the notice and the record of the mailing date constitute legal and sufficient
notice of the forfeiture,” in support of his argument that the Comptroller must maintain a copy of the
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written notice itself in addition to a record of the mailing date. Id. However, words and phrases in
a statute must be read in context. See Tex. Gov’t Code Ann. § 311.011(a) (West 2005).
Section 171.256(d), in its entirety, states, “The comptroller shall keep at the comptroller’s office a
record of the date on which the notice is mailed. For the purposes of this chapter, the notice and the
record of the mailing date constitute legal and sufficient notice of the forfeiture.” Tex. Tax Code
Ann. § 171.256(d). Under the plain language of the statute, the only record required to be kept “at
the comptroller’s office” is the record of the mailing date. Id. To require the Comptroller to
maintain both a record of the mailing date and a copy of the notice itself would require us to read
extra words into the statute, which we cannot do. See Lee, 807 S.W.2d at 295 (explaining that courts
may not judicially amend statutes by adding words). Furthermore, a reading of the statute that
requires the Comptroller to keep a copy of the notice, which presumably would be dated, would
render the language requiring a record of the mailing date superfluous. See Columbia Med. Ctr.
v. Hogue, 271 S.W.3d 238, 257 (Tex. 2008) (“The Court must not interpret the statute in a manner
that renders any part of the statute meaningless or superfluous.”). We interpret the language stating
that “the notice and the record of the mailing date constitute legal and sufficient notice of the
forfeiture,” to indicate that by mailing the notice and maintaining a record of the date it was mailed,
the Comptroller has fulfilled its obligation to provide notice.
In light of the foregoing, we hold that the State established the Comptroller’s
compliance with tax code section 171.256 by producing records of the mailing date of a pre-
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forfeiture notice for each of the four periods of forfeiture for which it sought to hold Greene
personally liable.8
We overrule Greene’s first and second issues on appeal.
CONCLUSION
We affirm the trial court’s judgment.
__________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Puryear and Henson
Affirmed
Filed: August 26, 2010
8
Given our determination that the State conclusively established compliance with the notice
requirement under section 171.256, we need not address the question of whether the State had the
burden of proving such compliance or whether, as the State contends, Greene bore the burden of
proving lack of notice as an affirmative defense. Similarly, because section 171.256 contains no
requirement that the Comptroller maintain a record of the address to which the notice was sent, we
need not reach Greene’s argument that the trial court improperly relied on a common-law rule
presuming the regularity of official acts in determining that the notice was mailed to the address
listed by Greene’s Gold on all documents filed with the Comptroller.
22