Vitol, Inc. v. Harris County Appraisal District , 529 S.W.3d 159 ( 2017 )

Affirmed and Opinion filed August 3, 2017.
In the
Fourteenth Court of Appeals
NO. 14-16-00584-CV
VITOL, INC., Appellant
V.
HARRIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2015-44729
OPINION
Appellant Vitol, Inc., provided information about its business property for tax
year 2014 to appellee Harris County Appraisal District (“HCAD”). Vitol also
submitted to HCAD a form requesting an Interstate or Foreign Commerce (“IFC”)
tax exemption. Vitol received a 2014 Notice of Appraised Value for Property Tax
Purposes (“2014 Notice”) that did not contain any IFC exemption. Vitol did not file
a written or online protest with the Appraisal Review Board (“ARB”) by the deadline
stated in the 2014 Notice. Vitol engaged in discussions about its exemption request
with HCAD. Months later, Vitol filed a written protest with the ARB, alleging that
HCAD failed to provide proper notice of the denial of the IFC exemption and that
HCAD improperly denied the exemption.
After the ARB denied Vitol’s protest, Vitol appealed to the trial court. HCAD
filed a plea to the jurisdiction based on Vitol’s failure to timely protest and exhaust
its administrative remedies. The trial court denied Vitol’s motion for continuance
of the hearing on the plea. After the hearing, the trial court granted HCAD’s plea
and dismissed Vitol’s claims for lack of jurisdiction. Vitol appeals the trial court’s
denial of Vitol’s motion for continuance and the trial court’s granting of HCAD’s
plea to the jurisdiction. We affirm.
I. BACKGROUND
Vitol owns and operates a petro-chemical storage facility, often referred to as
a tank farm, in Harris County, Texas, subject to ad valorem property taxes. On April
15, 2014, Vitol submitted a confidential rendition to HCAD regarding Vitol’s
gasoline products stored in certain tank numbers with a property address of 906
Clinton Drive, “INV @ KINDER MORGAN GALENA PARK.” Vitol reported that
the original cost of these products was $15,224,054.
Vitol claimed that its gasoline products were pre-committed to be shipped out
of state as of the September 1, 2013, appraisal date for tax year 2014. On April 15,
2014, Vitol submitted to HCAD a form 11.12(IC) report of goods in interstate or
foreign commerce as of September 1, 2013. Form 11.12(IC) states that the property
owner’s “response will help [HCAD] determine if such inventories are qualified for
exemption under Texas Tax Code Sec. 11.12.”1 The tank numbers and barrel
1
See Tex. Tax Code Ann. § 11.12 (West 2015) (“Property exempt from ad valorem
taxation by federal law is exempt from taxation.”).
2
amounts provided on the form are identical to those on Vitol’s rendition. The
location is “Kinder Morgan Galena Park, TX.” Other details Vitol provided include:
the reason for the inventory’s presence in Texas, whether it was in possession of a
carrier, the name of the carrier, the inventory’s final destination, the date it left
Texas, and the percentage committed to the carrier.
On June 20, 2014, HCAD mailed the 2014 Notice to Vitol. The 2014 Notice
described the property as “Tank Farms (Products Inside Tanks) INV AT KM
LIQUIDS TERMINAL LP” with a property location of 906 Clinton Drive in Galena
Park, Texas. The appraised value of the property was $15,224,054. The 2014 Notice
listed the estimated amount of taxes to be paid using last year’s specified rates for
each of seven taxing jurisdictions, which totaled approximately $355,600. The 2014
Notice also contained a column labeled “Exemptions Granted,” which listed a “0”
for each of seven taxing jurisdictions. One of the exemption codes available to be
granted was “IFC Interstate or Foreign Commerce.”
The 2014 Notice stated: “Your protest deadline is July 21, 2014. If you
wish to protest the value or other issues you must do so online or in writing on or
before this date.” The 2014 Notice stated that it included a protest form and
information on how to prepare and present a protest. The 2014 Notice provided the
HCAD website link to file a protest online. The 2014 Notice stated: “Hearings for
the 2014 tax year will begin May 12, 2014, at 13013 Northwest Fwy.” The 2014
Notice also stated:
 This account lists the value of your business personal property .
...
 If you choose to protest and have access to the Internet, we
encourage you to file your protest on line at www.hcad.org/ifile.
The process is quick and you will receive a receipt via email.
3
 You should also check the list of exemptions shown on the
front. If you applied for and have been granted a disabled
veterans exemption, freeport exemption, or tax abatement,
the specific code for the exemption should appear in the
appropriate columns. If they do not, contact us immediately.
If you have not applied for exemptions and you qualify,
contact our office for an exemption application.
 The filing deadline for your protest appears on the front of this
notice. If your value is wrong, we encourage you to file your
protest as soon as possible.
 In the event a protest or correction is filed on this account, we
intend to use as part of our evidence any and all information
included in this notice.
 We encourage you to call our office if you have concerns or come
by for an individual meeting with an appraiser.
After receiving the 2014 Notice, Tony Oliver, Vitol’s Assistant Secretary,
exchanged emails with two HCAD representatives, Paul Wright and Hartley
Chevalier, regarding Vitol’s IFC exemption request. Oliver provided certain
requested information about Vitol’s inventory. In the meantime, the tax roll was
certified, including Vitol’s account. In an email dated September 29, 2014,
Chevalier stated that HCAD had denied Vitol’s requested IFC exemption. Oliver
then requested a formal denial, and Wright responded:
Your account was notice [sic] on 6-20-2014 without a Freeport or IFC
exemption. As stated on your notice “Your protest deadline is July
21, 2014. If you wish to protest the value or other issues you must do
so online or in writing on or before this Date”. You notify [sic] Mr.
Chevalier of an IFC exemption you are requesting; however, it is still
your responsibility to file a timely protest on the IFC exemption if not
granted prior to your protest deadline. Therefore your notice is your
formal denial of the IFC exemption and you can use this email as a
notification of the denial of your IFC exemption . . . .
On November 5, 2014, Vitol filed two written property tax notices of protest.
4
One claimed that the chief appraiser did not provide required notice of the denial of
Vitol’s IFC exemption request under section 11.45 of the Tax Code. The other one
claimed that if Wright’s email constituted an actual denial of the IFC exemption
under section 11.45, then the denial was improper. The ARB concluded that HCAD
provided Vitol with sufficient notice on June 20, 2014, and denied Vitol’s protest.
Vitol appealed the ARB’s protest order to the trial court.
HCAD filed a plea to the jurisdiction based on Vitol’s not exhausting its
administrative remedies as required by chapter 41 of the Tax Code.2 According to
HCAD, Vitol was entitled to protest denial of the IFC exemption and all issues
related to the 2014 Notice but Vitol did not timely protest. Vitol moved to continue
the hearing on HCAD’s plea, seeking “fuller” responses to requests for discovery
and depositions of certain HCAD’s representatives. The trial court denied Vitol’s
motion. Vitol filed a response to HCAD’s plea, arguing that HCAD failed to deliver
notice of its disallowance of the IFC exemption and that Vitol timely protested
HCAD’s failure under section 41.411 of the Tax Code.3 The trial court granted the
plea to the jurisdiction, dismissing all of Vitol’s claims against HCAD. Vitol timely
appealed.4
2
To its plea, HCAD attached: Vitol’s rendition regarding its “biodiesel-unrecoverable
inventory” with a market value of $0, electronically submitted to HCAD on April 9, 2014; Vitol’s
rendition regarding its gasoline products; Vitol’s form 11.12(IC) report of goods; and the 2014
Notice.
3
To its response, Vitol attached: Oliver’s affidavit; Vitol’s form 11.12(IC); the 2014 Notice
with handwritten notations; emails between HCAD and Vitol dated from June 30 to September 30,
2014; a printed-out HCAD detail sheet for Vitol’s inventory for tax year 2015; Vitol’s property
tax notices of protest dated November 5, 2014; the ARB order denying Vitol’s protest dated June
22, 2015; HCAD’s notice of appraised value for Vitol’s inventory for tax year 2015; and Vitol’s
original petition.
4
In its petition, in addition to claims based on chapter 11 and due process, Vitol alleged
that the appraised value of its property for tax year 2014 exceeded market value. In its plea, HCAD
argued that Vitol never protested and failed to exhaust excessive valuation at the administrative
level. The trial court dismissed all of Vitol’s claims against HCAD. On appeal, Vitol does not
5
II. ANALYSIS
Vitol brings two issues. First, Vitol contends the trial court erred by granting
HCAD’s plea to the jurisdiction because Vitol raised a fact issue that it exhausted its
administrative remedies. Second, Vitol contends the trial court abused its discretion
by denying Vitol’s motion to continue the hearing on the plea so that Vitol could
discover additional jurisdictional facts.
A. Plea to the jurisdiction
The existence of subject-matter jurisdiction is a question of law that can be
challenged by a plea to the jurisdiction. Klumb v. Houston Mun. Emps. Pension Sys.,
458 S.W.3d 1, 8 (Tex. 2015); Tex. Dep’t of Parks and Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). We review a trial court’s ruling on a plea de novo. See
Miranda, 133 S.W.3d at 226, 228; Woodway Drive LLC v. Harris Cty. Appraisal
Dist., 311 S.W.3d 649, 651 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
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. See Miranda, 133 S.W.3d at 227. The
movant must meet the summary-judgment standard of proof by conclusively
demonstrating that the trial court lacks subject-matter jurisdiction. See id. at 227–
28. We credit as true all evidence favoring the nonmovant and draw all reasonable
inferences and resolve any doubts in the nonmovant’s favor. Id. at 228. If the
evidence creates a fact question regarding the jurisdictional issue, then the trial court
may not grant the plea, and the fact issue will be resolved at trial by the factfinder.
Id. at 227–28. If relevant evidence is undisputed or fails to raise a fact question on
challenge dismissal of its excessive-valuation claim. See Duerr v. Brown, 262 S.W.3d 63, 69 (Tex.
App.—Houston [14th Dist.] 2008, no pet.).
6
the jurisdictional issue, then the trial court rules on the plea as a matter of law. Id.
at 228.
B. Protest and exhaustion of administrative remedies under the Tax Code
The chief appraiser prepares a record of all taxable property in the district and
states the appraised value for each. Tex. Tax Code Ann. § 25.01(a) (West 2015).
The ARB examines the appraisal district’s appraisal records to determine whether
appraisals are substantially uniform, exemptions are properly granted, and the
appraisal records conform to their legal requirements. See id. §§ 6.01 (West 2015),
41.01(a) (West 2015). The appraisal records with amounts of tax entered as
approved by the ARB become the appraisal roll. See id. § 25.24 (West 2015). “The
legislature’s intent, as may be determined from the overall tax appraisal protest
scheme, is that the appraisal rolls become fixed after property owners have been
given adequate time to file their protests.” Anderton v. Rockwall Cent. Appraisal
Dist., 26 S.W.3d 539, 543 (Tex. App.—Dallas 2000, pet. denied).
“The Texas Tax Code provides detailed administrative procedures for those
who would contest their property taxes.” Cameron Appraisal Dist. v. Rourk, 194
S.W.3d 501, 502 (Tex. 2006); see generally Tex. Tax Code Ann. chs. 41–42 (West
2015). The Tax Code presents a pervasive regulatory scheme intended to vest ARBs
with exclusive jurisdiction. Appraisal Review Bd. of Harris Cty. Appraisal Dist. v.
O’Connor & Assocs., 267 S.W.3d 413, 416–17 (Tex. App.—Houston [14th Dist.]
2008, no pet.). Property owners generally must exhaust their administrative
remedies before seeking judicial review. Harris Cty. Appraisal Dist. v. ETC Mktg.,
Ltd., 399 S.W.3d 364, 367 (Tex. App.—Houston [14th Dist.] 2013, pet. denied);
O’Connor & Assocs., 267 S.W.3d at 417. This is because “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
7
(internal quotation marks omitted).
Pursuant to chapter 41, property owners are entitled to administratively protest
certain actions to the ARB. See Tex. Tax Code Ann. § 41.41(a).5 Section 41.41
outlines eight actions that may be protested by a property owner to the ARB,
including “denial to the property owner in whole or in part of a partial exemption.”
Id. § 41.41(a)(4). In addition, subsection (a)(9) authorizes a general protest of “any
other action of the chief appraiser [or] appraisal district . . . that applies to and
adversely affects the property owner.” Id. § 41.41(a)(9). “[T]o take advantage of
this option, generally, a property owner must file a written notice of protest within
thirty days after the owner receives a notice of the appraised value of the property.”
Bauer-Pileco, Inc. v. Harris Cty. Appraisal Dist., 443 S.W.3d 304, 310 (Tex. App.—
5
Section 41.41 of the Tax Code, 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 or, in the
case of land appraised as provided by Subchapter C, D, E, or H, Chapter
23,[] determination of its appraised or market value;
(2) unequal appraisal of the owner’s property;
(3) inclusion of the owner’s property on the appraisal records;
(4) denial to the property owner in whole or in part of a partial exemption;
(5) determination that the owner’s land does not qualify for appraisal as
provided by Subchapter C, D, E, or H, Chapter 23;
(6) identification of the taxing units in which the owner’s property is taxable
in the case of the appraisal district’s appraisal roll;
(7) determination that the property owner is the owner of property;
(8) a determination that a change in use of land appraised under Subchapter
C, D, E, or H, Chapter 23, has occurred; 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).
8
Houston [1st Dist.] 2014, pet. denied); see Anderton, 26 S.W.3d at 543 (“For
substantive challenges to property appraisals, the legislature has determined that
thirty days after receiving a notice of appraised value is normally sufficient time
within which to file a protest.”); see Tex. Tax Code Ann. § 41.44(a). The ARB must
schedule and hold a hearing on the property owner’s protest. Tex. Tax Code Ann.
§ 41.45; see id. §§ 41.66–.67.
In addition, “[a] property owner is entitled to protest before the appraisal
review board the failure of the chief appraiser or the appraisal review board to
provide or deliver any notice to which the property owner is entitled.” Id.
§ 41.411(a). If the property owner has complied with filing and payment
requirements, then the ARB determines at a hearing whether the property owner was
provided the required notice and, if not, determines the property owner’s protest on
its merits. See id. §§ 41.411(b)–(c), 41.44(c). “The sole purpose of 41.411 is to
determine whether a property owner failed to receive notice thereby depriving him
or her of the right to be heard at the administrative level.” Harris Cty. Appraisal
Review Bd. v. Gen. Elec. Corp., 819 S.W.2d 915, 919 (Tex. App.—Houston [14th
Dist.] 1991, writ denied); see Denton Cent. Appraisal Dist. v. CIT Leasing Corp.,
115 S.W.3d 261, 266 (Tex. App.—Fort Worth 2003, pet. denied).
A protest on the ground that property qualifies for exemption from taxation
under section 11.12 is properly raised through chapter-41 proceedings before the
ARB. See ETC Mktg., 399 S.W.3d at 366–67 (interstate-commerce exemption)
(citing Tex. Tax Code §§ 11.12, 41.41(a)(3), (9)); Harris Cty. Appraisal Dist. v.
Shell Oil Co., No. 14-07-00106-CV, 2008 WL 2130441, at *2–3 (Tex. App.—
Houston [14th Dist.] May 22, 2008, no pet.) (mem. op.) (foreign-trade zone
exemption) (citing Tex. Tax Code §§ 11.12, 41.41). “[T]he failure to file a timely
protest for an exemption based on interstate commerce is not a procedural error but
9
is a jurisdictional one because it implicates exhaustion of remedies.” ETC Mktg.,
399 S.W.3d at 369, 371 (property owner failed to exhaust exemption issue where
not included as ground in chapter-41 protest).
“This administrative review process is intended to ‘resolve the majority of tax
protests at this level, thereby relieving the burden on the court system.’” Id. at
367 (citing Webb Cty. Appraisal Dist. v. New Laredo Hotel, Inc., 792 S.W.2d 952,
954 (Tex. 1990)). “The administrative procedures are ‘exclusive’ and most defenses
are barred if not raised therein.” Rourk, 194 S.W.3d at 502 (citing Tex. Tax Code
§ 42.09(a)). A property owner may file a petition for review in district court against
the appraisal district to appeal an order by the ARB determining the owner’s protest.
Tex. Tax Code Ann. §§ 42.01, 42.21. Review in the district court is by trial de novo.
Id. § 42.23(a).
C. The 2014 Notice
In its plea to the jurisdiction, HCAD argued that Vitol failed to exhaust its
administrative remedies under chapter 41 regarding Vitol’s section-11.12 IFC
exemption. HCAD argued that it sent Vitol the 2014 Notice in accordance with
section 25.19, which “demonstrated that no IFC Exemption had been granted for
2014.” According to HCAD, because Vitol did not protest the 2014 Notice by July
21, 2014, Vitol failed to exhaust its administrative remedies and could not raise a
late challenge to any issue raised by the 2014 Notice, including the IFC exemption.
Vitol responded that it properly exhausted its administrative remedies by
timely filing a section-41.411 protest regarding the failure of notice under chapter
11. Vitol contends it was not required to protest the 2014 Notice because that
10
document did not provide adequate notice of the denial of Vitol’s IFC exemption
request as required under sections 11.43 and 11.45.6
1. Statutory review
The parties’ arguments demonstrate a seeming conflict among provisions of
the Tax Code concerning notice—specifically, section 25.19 and sections 11.43 and
11.45. When the issue presented requires a review of the trial court’s interpretation
and application of the Texas Tax Code, we evaluate the provisions at issue de novo
to determine their meaning as a question of law. See Nipper-Bertram Trust v. Aldine
Indep. Sch. Dist., 76 S.W.3d 788, 791 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) (citing Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.
1997)).
“When construing a statute, our primary objective is to ascertain and give
effect to the Legislature’s intent.” TGS-NOPEC Geophysical Co. v. Combs, 340
S.W.3d 432, 439 (Tex. 2011) (citing Tex. Gov’t Code § 312.005). We discern that
intent by considering the statute’s words. Id. (citing Tex. Gov’t Code § 312.003).
If a statute is unambiguous, then we adopt the interpretation supported by its plain
language unless such an interpretation would lead to absurd results. Id. We consider
statutes as a whole rather than their isolated provisions. Id. We presume that the
Legislature chooses a statute’s language carefully, including each word chosen and
omitting words purposefully. Id. We also presume that the Legislature intends an
entire statute, as well as “an entire act within which the single statute appears,” to be
effective. See Tex. Gov’t Code Ann. § 311.021(2) (West 2013); Harris Cty.
6
Vitol’s section 41.411-protest provided the reason: “Failure to send required notice
UNDER 11.45.”
11
Appraisal Dist. v. Dincans, 882 S.W.2d 75, 77 (Tex. App.—Houston [14th Dist.]
1994, writ denied).
2. Section 25.19
Section 25.19 of the Tax Code, entitled “Notice of Appraised Value,” sets out
the statutory requirements for appraisal districts to provide written notice of
appraised value to property owners. See Tex. Tax Code Ann. § 25.19 (West 2015
& Supp. 2016); Harris Cty. Appraisal Dist. v. Blue Flash Express, L.L.C., No. 01-
06-00783-CV, 2007 WL 1412651, at *5 n.11 (Tex. App.—Houston [1st Dist.] May
10, 2007, pet. denied) (mem. op.). The version of section 25.19 applicable to tax
year 2014 required written notice of appraised value “if: (1) the appraised value of
the property is greater than it was in the preceding year; (2) the appraised value of
the property is greater than the value rendered by the property owner; or (3) the
property was not on the appraisal roll in the preceding year.” Act of May 25, 2007,
80th Leg., R.S., ch. 1106, § 1, 2007 Tex. Gen. Laws 3738, 3738 (amended 2015)
(current version at Tex. Tax Code § 25.19(a)). The applicable version of section
25.19 further provided:
The chief appraiser shall separate real from personal property and
include in the notice for each: . . . the appraised value of the property for
the current year and the kind and amount of each partial exemption, if
any, approved for the current year . . . .
Act of May 27, 2005, 79th Leg., R.S., ch. 412, § 11, 2005 Tex. Gen. Laws 1103,
1106 (amended 2015) (current version at Tex. Tax Code § 25.19(b)(4)). Notice also
should include: a list of the taxing units in which the property is taxable, the
appraised value of the property in the preceding year, the taxable value of the
property in the preceding year for each taxing unit, a detailed explanation of the time
and procedure for protesting the value, and the date and place the ARB will begin
hearing protests. Tex. Tax Code Ann. § 25.19(b). Such requisite notice is to be
12
provided “by May 1 or as soon as practicable.” Id. § 25.19(a).
Under the plain language of section 25.19, where the appraisal district
provides written notice with regard to personal property, such notice must include
the appraised value of the property and any approved partial exemption for the
current tax year. See Act of May 27, 2005, 79th Leg., R.S., ch. 412, § 11, 2005 Tex.
Gen. Laws 1103, 1106. In other words, if the notice does not list a kind of exemption
and states that the amount of exemption applied to the appraised value is “0,” then
no exemption of any type has been approved for the current tax year.
3. Sections 11.43 and 11.45
Section 11.43 of the Tax Code, entitled “Application for Exemption,”
provides: “To receive an exemption, a person claiming the exemption, other than an
exemption authorized by Section 11.11, 11.12, 11.14, 11.145, 11.146, 11.15, 11.16,
11.161, or 11.25 of this code, must apply for the exemption. To apply for an
exemption, a person must file an exemption application form with the chief appraiser
for each appraisal district in which the property subject to the claimed exemption
has situs.” Tex. Tax Code Ann. § 11.43(a) (West 2015 & Supp. 2016). With regard
to notice, the version of section 11.43 applicable to tax year 2014 provides:
If the chief appraiser learns of any reason indicating that an exemption
previously allowed should be canceled, he shall investigate. If he
determines that the property should not be exempt, he shall cancel the
exemption and deliver written notice of the cancellation within five
days after the date he makes the cancellation.
Act of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 13, § 41, 1981 Tex. Gen. Laws 117,
132 (amended 2015) (current version at Tex. Tax Code § 11.43(h)).
Under the plain language of section 11.43, property owners who wish to claim
certain exemptions—excepting section-11.12 and other exemptions—must submit
13
an application. See Tex. Tax Code Ann. § 11.43(a). If the chief appraiser decides
to cancel an exemption that had been previously allowed, then he must send written
notice within five days. See Act of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 13, § 41,
1981 Tex. Gen. Laws 117, 132.
Section 11.45, entitled “Action on Exemption Applications,” provides:
(a) The chief appraiser shall determine separately each applicant’s right
to an exemption. After considering the application and all relevant
information, the chief appraiser shall, as the law and facts warrant:
(1) approve the application and allow the exemption;
(2) modify the exemption applied for and allow the exemption as
modified;
(3) disapprove the application and request additional information
from the applicant in support of the claim; or
(4) deny the application.
(b) If the chief appraiser requests additional information from an
applicant, the applicant must furnish it within 30 days after the date of
the request or the application is denied. However, for good cause
shown the chief appraiser may extend the deadline for furnishing the
information by written order for a single period not to exceed 15 days.
(c) The chief appraiser shall determine the validity of each application
for exemption filed with him before he submits the appraisal records
for review and determination of protests as provided by Chapter 41 of
this code.
(d) If the chief appraiser modifies or denies an exemption, he shall
deliver a written notice of the modification or denial to the applicant
within five days after the date he makes the determination. He shall
include with the notice a brief explanation of the procedures for
protesting his action.
Tex. Tax Code § 11.45 (West 2015).
Under the plain language of section 11.45, the chief appraiser must either
approve, modify, disapprove and request additional supporting information, or deny
14
an exemption application. See id. § 11.45(a). The chief appraiser must determine
the validity of each exemption application before submitting the appraisal records
for review and determination of protests. See id. § 11.45(c). If the chief appraiser
modifies or denies an exemption, then he must send written notice within five days.
See id. § 11.45(d); see also Tex. Tax Code Ann. § 1.07(d) (West 2015) (section-
11.45(d) notice must be sent by certified mail).
D. Vitol failed to timely protest and did not exhaust its administrative remedies.
Vitol based its written protest to the ARB on the alleged failure of notice under
section 11.45 without mentioning section 11.43.7 However, even assuming that
Vitol sufficiently raised a lack of notice under both sections, we conclude that Vitol’s
failure to timely pursue and exhaust the administrative remedies available to it under
the Tax Code to protest the 2014 Notice is not excused by any alleged failure by
HCAD to provide or timely deliver any requisite notice under chapter 11.
Although not mentioned by either party, our court has considered similar
circumstances involving the interaction of notice under section 25.19 and notice
under chapter 23. In Harris County Appraisal District v. Dincans, the property at
issue previously had been granted an “agricultural use” exemption, which allows
property to be appraised at a lower rate of valuation. 889 S.W.2d at 76–77 (citing
Tex. Tax Code § 23.01 et seq.). Section 23.54, entitled “Application,” prescribes
the manner in which an application for an open-space exemption for qualified
agricultural land may be made. Id. at 77 (citing Tex. Tax Code § 23.54). Once land
7
See supra n.6. In any event, the evidence on the plea does not reveal that an IFC
exemption was applied to Vitol’s inventory for tax year 2013. Vitol cites solely to the HCAD
detail sheet for tax year 2015, which provides no information about tax year 2013. The 2014
Notice states that last year’s value (after exemptions) was $28,000,000, but even construed in the
light most favorable to Vitol, this is not evidence that Vitol received an IFC exemption for tax year
2013.
15
is eligible for the exemption, the land is eligible for lower appraisal in subsequent
tax years without refiling an application. Id. The applicable version of section 23.54
provided:
[T]he chief appraiser if he has good cause to believe the land’s
eligibility under this subchapter has ended, may require a person
allowed appraisal under this subchapter in a prior year to file a new
application to confirm that the land is currently eligible under this
subchapter by delivering a written notice that a new application is
required, accompanied by the application form, to the person who filed
the application that was previously allowed.
See Act of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 13, § 69, 1981 Tex. Gen. Laws
117, 144 (amended 2015) (current version at Tex. Tax Code § 23.54(e)).
The property owner Dincans did not receive written notice of the need to
reapply for his open-space exemption and application form under section 23.54.
Dincans, 882 S.W.2d at 77. Dincans did not file a chapter-41 protest of his notice
of appraisal (he alleged that he never received one). Nevertheless, he argued that
section 23.54(e) provided “a requirement for notice to the taxpayer exclusive of the
notice provision in section 25.19, such that even if Dincans did receive a notice of
appraisal reflecting no agricultural use exemption, that HCAD’s failure to give the
notice in section 23.54 . . . would absolve him of his failure to protest.” Id. HCAD
contended, however, that because Dincans received a section-25.19 notice of the
property’s appraised value and did not timely protest under chapter 41, he failed to
exhaust his administrative remedies. Id. at 76. We agreed with HCAD, rejecting
Dincans’s argument that he was not required to protest proper notice of appraised
value.
First, we noted the applicable presumption when interpreting a statute: that
the Legislature intended the entire statute to be effective. Id. at 77 (citing Tex. Gov’t
Code § 311.021(2)). “[I]t follows that an entire act within which the single statute
16
appears was intended to be effective as well.” Id. (citing Allegheny Mut. Cas. v.
State, 710 S.W.2d 139, 141 (Tex. App.—Houston [14th Dist.] 1986, no pet.)). In
other words, our interpretation had to give effect to both sections 23.54 and 25.19.
Id.
We then considered the general principles that a party must exhaust its
administrative remedies as to its property taxes before being entitled to judicial
review, and that a trial court cannot gain jurisdiction over a cause where the party
fails to comply with the administrative statutory scheme. Id. (citations omitted). We
noted the language of section 41.41 regarding a property owner’s right to protest and
noted that the statute specifically sets out a property owner’s right to protest a
determination that an owner’s land does not qualify for appraisal under subchapter
C of chapter 23, the provision concerning the agricultural-use exemption. Id. at 77–
78; see Tex. Tax Code Ann. § 41.41(a)(1), (5). We also noted how section 41.41
“includes a general right of protest for any action ‘that applies to and adversely
affects the property owner.’” Dincans, 882 S.W.2d at 78; see Tex. Tax Code Ann.
§ 41.41(a)(9).
Therefore, we concluded:
[T]he remedy for the alleged erroneous appraisal of Dincans’s two
tracts of land at their full market value was to lodge a protest pursuant
to the procedures outlined in section 41. Failure to receive the notice
and application under section 23.54(e) can be addressed in a protest
before the appraisal board. We find no conflict between the notice
provision in 23.54 and that of 25.19 because of the primary significance
of section 25.19 in being the first notice to a taxpayer that for whatever
reason an agricultural use exemption had not been allowed. In view of
the plethora of cases placing the burden on the property owner to pursue
his administrative remedy in a timely manner, we cannot accept
[Dincans’s] argument that would permit a property owner to do nothing
when confronted with an obviously erroneous tax bill. To interpret
sections 23.54 and 25.19 in such a manner would defeat the entire
17
scheme the tax code sets out for protesting and appealing actions of the
appraisal board.
Dincans, 882 S.W.2d at 78. In other words, once (if) Dincans received his notice of
appraised value that did not allow for the open-space exemption, he was required to
timely lodge a protest under chapter 41.8 See id.
Vitol asserts it was not required to file a protest with the ARB within 30 days
of receiving its section-25.19 notice because the notice did not expressly state that
the chief appraiser was cancelling or denying the IFC exemption pursuant to either
section 11.43(h) or 11.45(d). This position, however, is irreconcilable with Dincans.
Like the version applicable in this case, section 25.19 as applicable in Dincans
provided that in a notice of appraised value the chief appraiser must include “the
appraised value of the property for the current year and the kind and amount of each
partial exemption, if any, approved for the current year.” Compare Act of Aug. 10,
1981, 67th Leg., 1st C.S., ch. 13, § 107, 1981 Tex. Gen. Laws 117, 160 (reenacted
2005 and amended 2015) (current version at Tex. Tax Code § 25.19(b)(4)), with Act
of May 27, 2005, 79th Leg., R.S., ch. 412, § 11, 2005 Tex. Gen. Laws 1103, 1106.
Comparing the respective “cancellation” notice provisions in chapters 11 and 23,
section 11.43(h) substantively tracks much of the language of section 23.54(e)—
similarly requiring the chief appraiser to investigate if a previously-allowed
exemption should remain in place and, if not, requiring written notice. Compare Act
8
Ultimately, where HCAD’s stipulation as to Dincans’s section-25.19 notice of appraised
value for tax year 1984 did not track the language of section 1.07 and HCAD did not otherwise
prove delivery of the notice, we found that Dincans was not bound by the general rule regarding
exhaustion of administrative remedies. Dincans, 882 S.W.2d at 78–79 (affirming trial court’s
judgment to reinstate agricultural-use exemption for certain tax years). Section 41.411 was not at
issue in Dincans—the Legislature did not add section 41.411 to allow for protest of lack of notice
until 1985. Act of May 21, 1985, 69th Leg., R.S., ch. 504, § 1, 1985 Tex. Gen. Laws 2089, 2089
(amended 2007, 2011) (current version at Tex. Tax Code § 41.411). Here, Vitol does not dispute
that it timely received the 2014 Notice.
18
of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 13, § 41, 1981 Tex. Gen. Laws 117, 132,
with Act of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 13, § 69, 1981 Tex. Gen. Laws
117, 144. In addition, section 23.57, entitled “Action on Applications,”9 closely
tracks section 11.45 and contains a similar “denial” notice provision. Compare Tex.
Tax Code Ann. § 11.45, with id. § 23.57 (West 2015).10 We conclude that to
interpret sections 11.43, 11.45, and 25.19 in the manner advanced by Vitol would
permit Vitol to escape its burden to timely pursue its administrative remedies under
chapter 41 and defeat the scheme for protesting and appealing set out in the Tax
Code. See Dincans, 882 S.W.2d at 78.
Vitol provides no persuasive authority to sustain its contention that sections
9
We note that Dincans did not protest lack of notice under section 23.57.
10
Section 23.57 provides:
(a) The chief appraiser shall determine separately each applicant’s right to have his
land appraised under this subchapter. After considering the application and all
relevant information, the chief appraiser shall, as the law and facts warrant:
(1) approve the application and allow appraisal under this subchapter;
(2) disapprove the application and request additional information from the
applicant in support of the claim; or
(3) deny the application.
(b) If the chief appraiser requests additional information from an applicant, the
applicant must furnish it within 30 days after the date of the request or the
application is denied. However, for good cause shown the chief appraiser may
extend the deadline for furnishing the information by written order for a single
period not to exceed 15 days.
(c) The chief appraiser shall determine the validity of each application for appraisal
under this subchapter filed with him before he submits the appraisal records for
review and determination of protests as provided by Chapter 41 of this code.
(d) If the chief appraiser denies an application, he shall deliver a written notice of
the denial to the applicant within five days after the date he makes the
determination. He shall include with the notice a brief explanation of the
procedures for protesting his action and a full explanation of the reasons for denial
of the application.
Tex. Tax Code Ann. § 23.57.
19
11.43 and 11.45 prevail over the notice provision in section 25.19. Vitol’s cited
cases are distinguishable; they involved circumstances where property owners filed
a timely chapter-41 protest. See Valero S. Tex. Processing Co. v. Starr Cty.
Appraisal Dist., 954 S.W.2d 863, 866 (Tex. App.—San Antonio 1997, pet. denied)
(after property owner’s timely section-41.41 tax protest was heard, trial court had
jurisdiction where owner filed section-41.411 protest based on deficient written
notice of ARB order determining protest under section 41.47); Gen. Elec., 819
S.W.2d at 919–20 (where property owner timely filed section-41.41 protest and
ARB failed to schedule and notice hearing, there was no additional exhaustion
requirement to protest under section 41.411). Vitol also relies on Fina Oil &
Chemical Co. v. Port Neches I.S.D., 861 S.W.2d 3, 7 (Tex. App.—Beaumont 1993,
writ denied), where the appeals court concluded that jurisdiction existed despite the
lack of timely protest by the property owner. Fina Oil, however, involved the
particular circumstances of cancellation of a “negotiated abatement” contract with
the taxing unit. See id. at 6–7. The two other courts to consider Fina Oil declined
to follow it. See Harris Cty. Appraisal Dist. v. Pasadena Prop., LP, 197 S.W.3d
402, 406–07 (Tex. App.—Eastland 2006, pet. denied) (citing MAG-T, L.P. v. Travis
Cent. Appraisal Dist., 161 S.W.3d 617, 632 (Tex. App.—Austin 2005, pet. denied),
and ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146,
156 (Tex. App.—Houston [1st Dist.] 2004, no pet.)); ABT Galveston, 137 S.W.3d at
156 & n.23.
Moreover, two of our sister courts have applied our observations in Dincans.
See MAG-T, 161 S.W.3d at 631–32 (in circumstances where property owners did not
protest allegedly defective notice of amended appraisal, rejecting argument “that
would permit a property owner to do nothing when confronted with an obviously
erroneous tax bill” in upholding trial court’s grant of plea to jurisdiction); ABT
20
Galveston, 137 S.W.3d at 152–53, 157–58 (in context of late-filed protest based in
part on failure to provide proper notice under sections 11.43(h) and 25.19, holding
that property owners’ “failure to pursue and to exhaust the administrative remedies
available to them under the Code to protest the taxing authorities’ assessment and
collection of the 1996 property taxes on the facility was not excused by any alleged
failure of the taxing authorities to provide or timely deliver the notices of which
[property owners] complain” and affirming trial court’s grant of summary judgment
based on lack of subject-matter jurisdiction).
Vitol’s other arguments that the 2014 Notice failed to trigger Vitol’s protest
deadline also lack merit. Vitol argues that it would be “nonsensical” to require a
protest within 30 days of the 2014 Notice because it only reflected “inaction” by the
chief appraiser as opposed to a final determination. While the 2014 Notice did not
contain the term “deny,” “cancel,” or “modify,” it expressly stated that “0”
exemptions had been “granted” for Vitol’s inventory and that the estimated taxes for
tax year 2014 for the property were over $355,000. Setting an appraised value, not
granting any requested exemptions, and estimating taxes based on that appraised
value does not constitute “inaction.” Nor does chapter 41 indicate that a property
owner must wait for a “final” action before protesting. In addition to allowing for
protests from denials of exemptions, section 41.41 expressly entitles a protest from
“any” adverse action by the chief appraiser. See Tex. Tax Code Ann. § 41.41(a)(4),
(9). That Vitol’s requested IFC exemption had not been granted or allowed to reduce
Vitol’s appraised value for the tax year falls within section 41.41(a)(9). See Dincans,
882 S.W.2d at 78; see also Pasadena Prop., 197 S.W.3d at 404 (property owner
timely filed protest based on lack of pollution-control exemption in tax bill under
section 41.41(a)(9)).
We also do not agree with Vitol that a section-25.19 notice merely provides
21
“limited information.” Proper section-25.19 notice provides information not only
about the property’s appraised value, but also about the kind and amount of partial
exemptions approved for the property. See Act of May 27, 2005, 79th Leg., R.S.,
ch. 412, § 11, 2005 Tex. Gen. Laws 1103, 1106. Under the Tax Code, a property’s
“taxable value” is determined using a property’s “assessed value,” which is
determined using the property’s “appraised value,” and subtracting “any applicable
partial exemption.” See Tex. Tax Code Ann. §§ 1.04(8)–(11) (West 2015) (defining
“appraised value,” “assessed value,” “taxable value,” and “partial exemption”).
Therefore, section-25.19 notice provides information directly bearing on the
assessment of property taxes. See Thames Shipyard & Repair Co. v. Galveston Cent.
Appraisal Dist., No. 14-10-01142-CV, 2011 WL 5042836, at *3 (Tex. App.—
Houston [14th Dist.] Oct. 25, 2011, no pet.) (mem. op.) (property owner has actual
notice of tax assessment against it where it receives notice of appraisal and must
exhaust administrative remedies).
Vitol contends that it only sought a “full exemption like the IFC exemption,”
and notice under section 25.19 instead provides information about “partial
exemptions.” See Act of May 27, 2005, 79th Leg., R.S., ch. 412, § 11, 2005 Tex.
Gen. Laws 1103, 1106. However, the Tax Code does not define “full exemption.”
And the definition of “partial exemption” does not preclude a situation where the
“part” of the value of the taxable property covered by the “partial exemption”
happens to include all of it. See Tex. Tax Code Ann. § 1.04(11) (“‘Partial
exemption’ means an exemption of part of the value of taxable property.”); see also
id. § 1.04(10) (“taxable value” determined by deducting any “partial exemption”).
In addition, Vitol attempts to excuse its lack of timely protest and failure to
exhaust its administrative remedies by placing blame on HCAD representatives who
allegedly orchestrated a “gotcha” scenario and “induced Vitol to not file a formal
22
protest.” However, “[a] party cannot by his own conduct confer jurisdiction on a
court when none exists otherwise.” Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan,
51 S.W.3d 293, 294–95 (Tex. 2001) (per curiam). Texas courts have refused to
excuse failures by property owners to timely protest and exhaust administrative
remedies under similar circumstances involving allegedly misleading behavior. See
id. (“Even if the District misled Sullivan as she claims, her failure to exhaust her
administrative remedies is fatal to her action.”); Horton v. Tex. Dep’t of Family &
Protective Servs., No. 13-16-00377-CV, 2017 WL 2180685, at *5 (Tex. App.—
Corpus Christi May 18, 2017, no pet. h.) (mem. op.) (“[E]ven if the Department
affirmatively misled Horton, as he claims, by giving him improper instructions and
‘luring’ him into a ‘trap,’ the Department could not have, by its own conduct,
conferred jurisdiction on the trial court by either estoppel or waiver of immunity
because no jurisdiction existed otherwise.” (citing Sullivan, 51 S.W.3d at 294–95));
Interstate Apartment Enters., L.C. v. Wichita Appraisal Dist., 164 S.W.3d 448, 452–
53 (Tex. App.—Fort Worth 2005, no pet.) (“[E]ven if [appraisal district] misled
appellant by providing inaccurate or incomplete information regarding which
administrative remedy appellant should pursue, such conduct did not confer
jurisdiction on the trial court.” (citing Sullivan, 51 S.W.3d at 294)).
It is undisputed that Vitol received a notice of appraised value for its inventory
for tax year 2014 on June 20, 2014. The language of the 2014 Notice communicated
that the appraised value of the property for tax year 2014 was $15,224,054. The
2014 Notice plainly indicated that “0” exemptions had been granted on the property
and that “this year’s value after exemptions” was $15,224,054. The 2014 Notice
constituted notice to Vitol as a taxpayer that for whatever reason the IFC exemption
had not been allowed on its property. See Dincans, 882 S.W.2d at 78. Once Vitol
received this notice, Vitol was entitled to lodge a chapter-41 protest with the ARB
23
based on the IFC exemption and had until July 21, 2014, to do so. See Tex. Tax
Code Ann. §§ 41.41(a)(9), 41.44(a)(2) (“[T]o be entitled to a hearing and
determination of a protest, the property owner initiating the protest must file a
written notice of the protest with the appraisal review board having authority to hear
the matter protested . . . 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 in
connection with any other property, whichever is later”). Despite timely receipt of
the 2014 Notice, it is undisputed that Vitol did not file any written protest with the
ARB until November 5, 2014.11
Under these circumstances, even based on the record as viewed in the light
most favorable to Vitol, we conclude as a matter of law that Vitol did not file a timely
protest under chapter 41 and failed to exhaust its administrative remedies. Because
the trial court did not err in granting HCAD’s plea to the jurisdiction, we overrule
Vitol’s first issue.12
E. Motion for continuance
“Because the trial court has firsthand knowledge of the development of a
case, reviewing courts apply an abuse-of-discretion standard of review to a trial
11
Vitol “does not argue that its emails with [HCAD] serve as an informal protest.”
12
We likewise reject Vitol’s due-process arguments. In tax cases, due process is satisfied
if the taxpayer is given an opportunity to be heard before an assessment board at some stage of the
proceedings. See Tex. Tax Code Ann. §§ 41.41, 41.44, 41.411; ABT Galveston, 137 S.W.3d at
155 (noting that due process affords only right to be heard before final assessment and does not
detail mechanism of review); CIT Leasing, 115 S.W.3d at 266 (“The addition of section 41.411,
however, provided the due process protections absent under prior statutory procedure.”). A
taxpayer such as Vitol who chooses not to take advantage of available opportunities cannot
demonstrate a due-process violation. See Waobikeze v. Fort Bend Cty., No. 01-13-00181-CV,
2014 WL 4345085, at *2 (Tex. App.—Houston [1st Dist.] Aug. 29, 2014, no pet.) (mem. op.); City
of San Antonio ex rel. City Pub. Serv. Bd. v. Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 925
(Tex. App.—Austin 2009, pet. dism’d); Blue Flash Express, 2007 WL 1412651, at *8; MAG-T,
161 S.W.3d at 631–32.
24
court’s decision on whether to grant a continuance of a plea-to-the-jurisdiction
hearing to allow additional discovery.” Quested v. City of Houston, 440 S.W.3d
275, 280 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Patten v. Johnson,
429 S.W.3d 767, 776 (Tex. App.—Dallas 2014, pet. denied)); see also Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (same in summary-
judgment context). We may reverse only if the trial court’s decision was so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law. Quested, 440
S.W.3d at 280 (citing Joe, 145 S.W.3d at 161, and Klumb v. Houston Municipal
Emps. Pension Sys., 405 S.W.3d 204, 227 (Tex. App.—Houston [1st Dist.] 2013),
aff’d, 458 S.W.3d 1 (Tex. 2015)).
Where the parties do not dispute the essential facts presented on the
jurisdictional issue but instead simply dispute the legal significance of that evidence,
we review the jurisdictional issue as a matter of law. See Univ. of Tex. Health Sci.
Ctr. at Houston v. McQueen, 431 S.W.3d 750, 756–57 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). For this reason, a trial courts acts within its discretion in
denying a continuance of a hearing on a plea to the jurisdiction based on a request
for more discovery where the requested discovery does not have any legal impact on
the jurisdictional analysis in the case. See, e.g., Joe, 145 S.W.3d at 161–62 (trial
court did not abuse its discretion in denying motion for continuance for jurisdictional
discovery where discovery sought was not material to issue of official immunity);
Quested, 440 S.W.3d at 282–83 (same where no showing that jurisdictional
discovery sought was material to assessment of plea); Klumb, 405 S.W.3d at 227–
28 (same where “[n]one of the discovery mentioned by Plaintiffs could have raised
a fact issue material to the determination of the jurisdictional plea”).
Here, the legal issue for jurisdictional purposes is whether Vitol was required
to timely protest the 2014 Notice based on the proper interpretation of the Tax Code.
25
See Klumb, 405 S.W.3d at 227 (determination of jurisdictional issue was based on
“the statutory language, the allegations in Plaintiffs’ pleadings, and basic
documents”). We already have concluded that Vitol was required to do so, and the
undisputed evidence demonstrated that Vitol did not. Additional discovery into the
allegedly “gotcha” behavior of HCAD could not confer jurisdiction that did not
otherwise exist. See Sullivan, 51 S.W.3d at 294–95; Horton, 2017 WL 2180685, at
*4–5; Interstate Apartment Enters., 164 S.W.3d at 452–53.
Therefore, we conclude the trial court properly could have determined that
Vitol’s requested additional discovery was not material or necessary in determining
HCAD’s plea to the jurisdiction. See Joe, 145 S.W.3d at 162; Quested, 440 S.W.3d
at 283; Klumb, 405 S.W.3d at 227–28; see also In re Torres, No. 13-17-00172-CV,
2017 WL 2665986, at *5 n.9 (Tex. App.—Corpus Christi June 21, 2017, no pet. h.)
(mem. op.) (“[T]rial courts act within their discretion in denying continuances of
hearings on pleas to the jurisdiction based on a request for more discovery where the
requested discovery does not impact the jurisdictional analysis in the case.”).
Because the trial court did not abuse its discretion in denying Vitol’s motion
to continue the hearing on HCAD’s plea, we overrule Vitol’s second issue.
III. CONCLUSION
Having overruled both of Vitol’s issues, we affirm the trial court’s judgment
dismissing Vitol’s claims against HCAD for lack of subject-matter jurisdiction.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Jamison, and Brown.
26