State v. Forty-Two(42) Gambling Devices, and Thirty-Seven Thousand Eighty-One Dollars and Eighty-Nine Cents ($37,081.89) in United States Currency ( 2010 )

NO. 07-09-0383-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 9, 2010

__________________________

THE STATE OF TEXAS, APPELLANT

V.

FORTY-TWO (42) GAMBLING DEVICES, AND THIRTY-SEVEN THOUSAND

EIGHTY-ONE DOLLARS AND EIGHTY-NINE CENTS ($37,081.99) IN

UNITED STATES CURRENCY, APPELLEE

__________________________

FROM THE 181^ST DISTRICT COURT OF POTTER COUNTY;

NO. 89-859-B; HONORABLE BRYAN POFF, JR., JUDGE

____________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER

Appellee Merri Lewis as executor of the estate of Mike Lewis filed a motion entitled “T.R.A.P. Rule 24 Motion to Unsuspend Enforcement of Trial Court Order.”  According to a certificate of conference attached to the motion, the State opposed the requested relief.  We held the motion for ten days but the State filed no response.  See Tex. R. App. 10.3(a) & 10.1(b).

            This appeal is brought by the State.  The record on the State’s appeal has not been filed so we look to Lewis’s motion and attached exhibits for the factual background surrounding the motion. In the trial court, the State sought forfeiture of seized personal property and money under Article 18.18 of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 18.18 (Vernon Supp. 2009).  In one document, the trial court dismissed the State’s case for want of prosecution and ordered delivery of the seized property to Lewis.  The State gave written notification to the sheriff that release of the property would be premature because of its appeal of the order. The State subsequently filed a motion to reconsider and notice of appeal.

            By the motion, Lewis asks us to “determine that the Trial Court Order was never effectively suspended and order it complied with, or, alternatively, order that the Trial Court order be unsuspended so that it can be enforced to place the parties in this appeal in the posture that equity dictates.”

            By her motion Lewis attempts to invoke Rule of Appellate Procedure 24. Rule 24.4 permits a party to the appeal to seek review of a trial court’s ruling on supersedeas issues. Tex. R. App. P. 24.4(a).[1] But the limited record Lewis presents does not include a trial court order concerning supersedeas of the judgment, or otherwise demonstrate the trial court has taken any action subject to our review under Rule 24.  Rather, the record shows the trial court ordered delivery to Lewis of property the State seized.[2]  Issues of the effect of the State’s appeal of the trial court’s order on possession of the seized items have not been presented to the trial court. 

Accordingly, we dismiss Lewis’s motion.

It is so ordered.

Per Curiam

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[1] Rule 24.4 lists the following as trial court rulings subject to review:  (1) the sufficiency or excessiveness of the amount of security; (2) the sureties on a bond; (3) the type of security; (4) the determination whether to permit suspension of enforcement; and (5) the trial court’s exercise of discretion concerning the amount and type of security, the sufficiency of sureties, and modification of security if circumstances change.  Tex. R. App. P. 24.4(a).

[2] Lewis also cites Rule 24.2(5) as a basis for our authority.  But this rule concerns suspension of enforcement of a judgment in favor of a governmental entity in its governmental capacity.  Tex. R. App. P. 24.2(5). Here, the State appeals dismissal of its case for want of prosecution.

ation, clearly create the type of regulatory scheme discussed in Entergy and Subaru.

The comprehensive nature of the Tax Code is consistent with the object it serves. As we have noted, through its enactment the Legislature carried out specific constitutional mandates. See, e.g., Tex. Const. art. VIII, § 18(b) (requiring provision by general law of a single appraisal in each county); Id., § 18(d) (requiring the Legislature to prescribe by general law "methods, timing and administrative process" to implement section's requirements). The Tax Code does not reflect merely a legislative decision to regulate otherwise private business activity; it constitutes the exercise of the public function of taxation. See Atascosa County, 990 S.W.2d at 257, Wilson; 713 S.W.2d at 100; Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 948 (Tex. 1940) (power to tax belongs to sovereignty; can only be exercised by subordinate corporate body when so delegated by constitution or legislature).

The taxing units contend the Legislature's 2003 addition of section 22.29 to the Tax Code supports their position that the Code is not a "pervasive regulatory scheme" providing administrative remedies that are exclusive with respect to taxing units. See Cash America Int'l, Inc. v. Bennett, 35 S.W.3d 12, 17 (Tex. 2000) (recent amendment to statute suggested administrative jurisdiction not intended to be exclusive). Effective January 1, 2004, section 22.29 authorizes the chief appraiser to impose a tax penalty of fifty percent on a taxpayer who commits certain actions, including the filing of a false rendition statement with the intent to commit fraud or evade tax. The taxing units point out that determination of a taxpayer's liability under section 22.29(c) is made by a court, not by the appraisal review board. We do not agree that the addition of section 22.29 supports the taxing units' argument. As relators point out, the specific provision in that section for court determination of liability would be unnecessary if the taxing units were correct that the Tax Code does not preclude common law actions for taxpayer fraud outside the Code procedures.

The Tax Code does not contain language like that in the former Motor Vehicle Commission Code ⁽²⁶⁾ discussed in Subaru, 84 S.W.3d at 219, or that in the former Public Utility Regulatory Act ⁽²⁷⁾ discussed in Entergy, 47 Tex. Sup. Ct. J. at 732, by which the administrative bodies there involved expressly were given "exclusive original jurisdiction" over matters arising under those statutes. The taxing units point out that the only reference in the Tax Code to the exclusiveness of remedies appears in section 42.09, which declares the prescribed procedures for adjudication of grounds of protest by property owners authorized by the statute to be exclusive and, with two exceptions, prohibits a property owner from raising those grounds in defense to a suit for collection of delinquent taxes or as a basis of a claim for relief in a suit by the property owner. The taxing units note that the section by its wording is applicable only to taxpayer protests and the Code contains no comparable provision expressly providing that taxing units are limited to the remedies provided by the Code.

Other courts have examined the legislative intention behind section 42.09. See Watson v. Robertson County Appraisal Review Board, 795 S.W.2d 307, 310 (Tex.App.-Waco 1990, no writ); Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., 704 S.W.2d 857, 859 n.1, 861-62 (Tex.App.-Austin 1985, writ ref'd n.r.e.). Those opinions describe the efforts of taxpayers under prior law to interpose common law claims and remedies in ad valorem tax cases. See Watson, 795 S.W.2d at 310; Valero Transmission, 704 S.W.2d at 859 n.1, 861-62. See generally Yudof, The Property Tax in Texas Under State and Federal Law, 51 Tex. L. Rev., 885, 896 et seq. (1973). Given that history, it is not surprising the Legislature would specify that the Code remedies and procedures for taxpayers were being made exclusive. By contrast, there is no history under pre-Code law of local taxing bodies appraising property and assessing taxes through common law causes of action. The absence of a Code provision applicable to taxing units comparable to section 42.09 is not evidence of legislative intent to exempt the claims the taxing units assert in the underlying suit from adjudication through Code procedures.

Our review of the entire Tax Code leads us to conclude it is no less comprehensive with respect to the rights and duties of taxing units than those of property owners, at least with respect to the claims the taxing units assert in the underlying suit. Significantly, for example, the Tax Code contains several provisions indicating the legislative intent that a taxing unit's direct involvement with the appraisal process is limited. Taxing units are expressly prohibited by section 1.15 from directly employing appraisers for the purpose of appraising property for taxation. Section 25.20, though, requires chief appraisers to give a taxing unit's assessor access to appraisal records. While a taxing unit may challenge, under section 41.03(a), the level of appraisals of a category of property, it may not challenge the appraised value of a single taxpayer's property. A 1989 amendment to section 42.031 provides that a taxing unit may not intervene in or otherwise be made a party to an appeal of an order of an appraisal review board determining a taxpayer protest if the appeal is brought by the property owner.

As the supreme court stated in Entergy, specific legislative expressions of intent may make a court's exclusive jurisdiction inquiry uncomplicated. 47 Tex. Sup. Ct. J. at 732. Despite the absence from the Tax Code of specific language so providing, the nature of the governmental function exercised through the Tax Code, the constitutional mandates it implements, its comprehensive and detailed provisions concerning appraisal of property, and its provision of remedies combine to require the conclusion that the Legislature intended the Code procedures to be the exclusive means through which the taxing units may seek a remedy for the injuries caused them by the tortious conduct alleged here.

When the Legislature has given exclusive jurisdiction to an administrative body, a litigant's failure to exhaust all administrative remedies before seeking judicial review of the administrative body's action deprives the court of subject matter jurisdiction over claims within the body's exclusive jurisdiction, and the court must dismiss such claims without prejudice. Subaru, 84 S.W.3d at 221; Cash America, 35 S.W.3d at 15. At the hearing on relators' pleas to the jurisdiction, the Yoakum County Appraisal District chief appraiser testified she had held that position since its creation, and the taxing units had never submitted a challenge to the appraisal roll or filed a suit against the appraisal district. The taxing units have thus failed to exhaust remedies the Legislature has made exclusive under the Tax Code, depriving the trial court of jurisdiction. The trial court's conclusion to the contrary and its denial of relators' pleas to its jurisdiction were a clear error of law and failure to apply the law correctly, thus an abuse of its discretion. See Walker, 827 S.W.2d at 840.

Adequacy of Remedy by Appeal Denial of a plea to the jurisdiction traditionally has been treated as an incidental trial court ruling, not reviewable by petition for writ of mandamus when there is an adequate remedy by appeal. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990); Abor v. Black, 695 S.W.2d 564, 566-67 (Tex. 1985); see Canadian Helicopters, 876 S.W.2d at 306. The mere cost to the parties and delay involved in pursuing an appeal do not render an appellate remedy inadequate. Entergy, 47 Tex. Sup. Ct. J. at 731; Canadian Helicopters, 876 S.W.2d at 306. Our supreme court has issued mandamus, though, when the exercise of jurisdiction by a trial court in the face of exclusive jurisdiction held by an administrative body would work "a clear disruption of the orderly processes of government." Entergy, 47 Tex. Sup. Ct. J. at 731, citing State v. Sewell, 487 S.W.2d 716, 719 (Tex. 1972). In Entergy, electric utility ratepayers brought suit alleging that, by entering into an inconsistent later agreement, the utility had breached an agreement that called for a rate proceeding providing certain rate savings to be filed with the Public Utility Commission. Both the agreement the ratepayers sought to enforce and the later agreement had been approved by the PUC and implemented through PUC orders. Before determining that the Public Utility Regulatory Act gave the PUC exclusive jurisdiction over the dispute between the utility and its ratepayers, the court discussed the issue of the appropriateness of mandamus relief, noting that if the PUC's jurisdiction was exclusive, "permitting a trial to go forward would interfere with the important legislatively mandated function and purpose of the PUC." 47 Tex. Sup. Ct. J. at 731. In short, the court said, if the PUC had exclusive jurisdiction in the dispute, "the judicial appropriation of state agency authority would be a clear disruption of the 'orderly processes of government.'" Id. The court concluded that disruption, coupled with the hardship to the defendant of postponing appellate review of the jurisdictional issue, warranted mandamus relief. We conclude that permitting trial to go forward of a case brought by taxing units, the end of which involves the judicial re-appraisal of mineral properties for ad valorem tax purposes, ⁽²⁸⁾ would constitute no less of an interference with the function and purpose of the appraisal district and appraisal review board.

There is present here another factor that argues in favor of mandamus relief. The record reflects that there are 36 similar cases pending in other district courts of our state, all brought by taxing units and many involving common defendants. Finding that the cases involve common material questions of fact and law, the presiding judges of the administrative judicial regions involved have assigned them to two pretrial judges pursuant to Rule 11 of the Rules of Judicial Administration. Early appellate resolution of the exclusive jurisdiction issue in this case may aid in the adjudication of those cases and thus help minimize the disruption of processes of government.

Taken together, the burden of expense and delay that would result from trial and appeal of the case, the interference with appraisal district and appraisal review board functions and the presence of a number of other cases involving common questions justify the conclusion that appeal is not an adequate remedy for the trial court's error of failing to grant relators' pleas to the jurisdiction.

Conclusion

We conditionally grant the petition for writ of mandamus, directing the trial court to vacate its order of May 3, 2004, and to dismiss the underlying suit. Confident the trial court will comply with this opinion, only in the event the trial court does not do so will we direct this court's Clerk to issue the writ.  

James T. Campbell

Justice

Reavis, J., Concurring

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 26, 2004

______________________________

NO. 07-04-0285-CV

IN RE EXXONMOBIL CORPORATION, ET AL., RELATORS

________________________________

NO. 07-04-0286-CV

IN RE CHEVRONTEXACO CORPORATION, ET AL., RELATORS

__________________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.  

CONCURRING OPINION

The taxing units allege that the defendant companies engaged in a conspiracy and fraud to fix posted prices for oil. However, because they did not seek relief under sections 15.05(c) and (h) and 15.21 of the Texas Business and Commerce Code Annotated, and without expressing any opinion whether these provisions may provide them a remedy, I concur in the decision of the majority opinion.

Don H. Reavis

Justice

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