EVELYN V. KEYES, Justice.
In this property tax valuation case, appellant, Bullseye PS III LP ("Bullseye"), challenges the trial court's grant of a plea to the jurisdiction in favor of the Harris County Appraisal District ("HCAD") on Bullseye's claim that HCAD excessively and unequally appraised its property.
We affirm the trial court's judgment dismissing this case for lack of subject matter jurisdiction.
Bullseye owns a 1.36 acre tract of property located in Harris County, Texas, and it maintains a storage unit facility on that property. For the 2008 tax year, HCAD initially appraised the property as having a market value of $6,283,781. Bullseye filed a protest of the initial valuation with the Harris County Appraisal Review Board ("the Board") and appointed O'Connor & Associates, a tax consulting firm, as its agent for the administrative protest process.
A three-member panel of the Board held a hearing on Bullseye's protest. At the hearing, Darren Blakemore, an O'Connor employee, represented Bullseye, and Mike Garcia appeared as the representative for HCAD. Before the hearing began, Blakemore completed a "Hearing Affidavit." stating that his opinion for the value of the property was $6,283,781—the same amount at which HCAD had initially appraised the property. On the same form,
After the hearing, the Board mailed Bullseye an order determining protest, confirming the final 2008 appraised value at $6,283,781. The order included the following notice:
Within forty-five days after receiving the order, Bullseye brought a suit for judicial review of the Board's decision in the district court, contending that HCAD and the Board had excessively and unequally appraised the property. HCAD filed a plea to the jurisdiction arguing that, because Bullseye's agent and HCAD's representative had reached an agreement regarding the value of the property at the hearing, this agreement rendered the valuation amount final and precluded Bullseye's suit for judicial review under Tax Code section 1.111(e). HCAD contended that, although Tax Code section 41.45(c) provides that the chief appraiser is to appear at each protest hearing before the Board, the chief appraiser may delegate this authority to appraisal district employees pursuant to Tax Code section 6.05(c). Because HCAD's representative and Bullseye's agent agreed that the property should be valued at $6,283,781, and this
In response, Bullseye contended that HCAD did not meet the requirements for establishing an agreement pursuant to section 1.111(e) because that section requires an agreement between the property owner or the owner's agent and the chief appraiser, and an agreement between the owner's agent and a representative of the appraisal district does not suffice. Because HCAD only presented evidence of an agreement between the owner's agent and the appraisal district, which is distinct from the chief appraiser, Bullseye argued that the trial court should deny HCAD's plea to the jurisdiction. In its response, Bullseye also moved for a continuance, alleging that HCAD's discovery responses were "contradictory and indicated that until recently [HCAD's] position was that no agreement existed." Bullseye requested a continuance to conduct discovery on "[HCAD's] contradictory position regarding the purported agreement" with Bullseye's agent. Bullseye also requested a rehearing of its motion to compel depositions of HCAD employees "[i]n light of the contradictory discovery responses and [HCAD's] position that the court lacks jurisdiction based upon an assertion of factual circumstances."
The trial court granted HCAD's plea to the jurisdiction and dismissed Bullseye's claim. This appeal followed.
We review a trial court's ruling on a plea to the jurisdiction de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex.2004). We construe the pleadings liberally in favor of the plaintiff while considering the pleader's intent. See id. A trial court decides a plea to the jurisdiction by reviewing the pleadings and any evidence relevant to the jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). If the jurisdictional defect cannot be cured by amending the pleadings, the trial court may grant a meritorious plea to the jurisdiction without allowing the plaintiff an opportunity to amend. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). When reviewing a plea to the jurisdiction, we cannot examine the merits of the case. See Houston Indep. Sch. Dist. v. 1615 Corp., 217 S.W.3d 631, 635 (Tex. App.-Houston [14th Dist.] 2006, pet. denied).
In its first issue, Bullseye contends that the trial court erred in granting HCAD's plea to the jurisdiction because (1) for an agreement to preclude a suit for judicial review under Tax Code section 1.111(e), the agreement must be made between the property owner's agent and the chief appraiser, not merely a representative of the appraisal district; (2) Bullseye has an "absolute right" seek judicial review of the Board's order; (3) applying section 1.111(e) under these factual circumstances violates Bullseye's due process rights; and (4) a disputed factual issue exists regarding whether Bullseye's agent made a valuation agreement with the chief appraiser.
Chapter 41 of the Tax Code provides that property owners are entitled to protest the determination of the appraised value of the property and the unequal appraisal of the property before the county's appraisal review board. TEX. TAX CODE ANN. § 41.41(a)(1)-(2) (Vernon 2008); Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 75 (Tex. App.-El Paso 2005, no pet.). If the property owner meets certain procedural requirements,
Generally, property owners have a statutory right to file a suit for judicial review of an appraisal review board's order determining the property owner's protest. TEX. TAX CODE ANN. § 42.01(a)(1)(A) (Vernon 2008) ("A property owner is entitled to appeal an order of the appraisal review board determining a protest by the property owner. . . ."). Tax Code section 1.111(e), however, provides that:
Id. § 1.111(e)(1) (Vernon Supp. 2010). Section 1.111(e) agreements are "final and not subject to protest by the property owner or subject to a property owner's statutory suit for judicial review under chapter 42." MHCB (USA) Leasing & Fin. Corp. v. Galveston Cent. Appraisal Dist., 249 S.W.3d 68, 84 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). These agreements are final even without approval or adoption by the appraisal review board. Id. at 83; see also TEX. TAX CODE ANN. § 41.01(b) (Vernon 2008) ("The [appraisal review] board may not review or reject an agreement between a property owner or the owner's agent and the chief appraiser under section 1.111(e)."); Sondock v. Harris Cnty. Appraisal Dist., 231 S.W.3d 65, 69 (Tex.App.-Houston [14th Dist.] 2007, no pet.) ("Because the agreement related to [a matter in which a protest had been filed but not determined by the Board], at the moment it was reached, it became final.").
The Tax Code does not specifically define "agreement," and thus we apply the ordinary meaning of the term. TEX. GOV'T CODE ANN. § 312.002(a) (Vernon 2005); Sondock, 231 S.W.3d at 69. In Sondock, the Fourteenth Court of Appeals defined "agreement" as "the act of agreeing; harmony of opinion; accord." Sondock, 231 S.W.3d at 69. The court held that section 1.111(e) does not require the parties to act on the agreement or announce the agreement to the court. Id. Because the parties expressed the same approximate value for the property at the hearing, this "meeting of the minds" qualified as an agreement under section 1.111(e). Id. This Court agrees. See Hartman v. Harris Cnty. Appraisal Dist., 251 S.W.3d 595, 600 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) ("When the Hartmans' agent and
Both this Court and the Fourteenth Court of Appeals have recently addressed whether an agreement between the property owner's agent and a representative of the appraisal district constitutes an agreement with the chief appraiser that qualifies as a section 1.111(e) agreement. See Kelly v. Harris Cnty. Appraisal Dist., No. 01-09-00996-CV, 2011 WL 497032 (Tex.App.-Houston [1st Dist.] Feb. 10, 2011, no pet. h.) (mem. op.); Crescent Oaks LP v. Harris Cnty. Appraisal Dist., No. 14-10-00199-CV, 2011 WL 166932 (Tex.App.-Houston [14th Dist.] Jan. 13, 2011, no pet.) (mem. op.) (per curiam); KM TS Spring Cypress L.L.C. v. Harris Cnty. Appraisal Dist., No. 14-09-00978-CV, 2010 WL 3921126 (Tex.App.-Houston [14th Dist.] Oct. 7, 2010, pet. denied) (mem. op.) (per curiam). In Kelly, we noted that although Tax Code section 41.45(c) directs that the chief appraiser "shall appear at each protest hearing before the appraisal review board to represent the appraisal office," section 6.05(e) provides that "[t]he chief appraiser may delegate authority to his employees." Kelly, 2011 WL 497032, at *4; Tex. Tax Code Ann. §§ 41.45(c) (Vernon Supp. 2010), 6.05(e) (Vernon 2008); see also Crescent Oaks, 2011 WL 166932, at *2 ("The chief appraiser is not prohibited from delegating his authority to reach an agreement with a property owner."). We also observed that, given the size of Harris County and the number of valuation protests, "it is not uncommon for an HCAD representative to appear at protest hearings on behalf of the chief appraiser." Kelly, 2011 WL 497032, at *4 (citing Sondock, 231 S.W.3d at 69; Loposer v. Harris Cnty. Appraisal Dist., No. 14-07-00956-CV, 2009 WL 2146151, at *1 (Tex.App.-Houston [14th Dist.] July 21, 2009, no pet.) (mem. op.); Prince v. Harris Cnty. Appraisal Dist., No. 14-07-00919-CV, 2009 WL 20975, at *1 (Tex.App.-Houston [14th Dist.] Jan. 6, 2009, no pet.) (mem. op.); and Mann v. Harris Cnty. Appraisal Dist., No. 01-07-00436-CV, 2008 WL 1747807, at *1 (Tex.App.-Houston [1st Dist.] Apr. 17, 2008, no pet.) (mem. op.)).
In Kelly, the Board held a protest hearing, an HCAD representative appeared at the hearing on the chief appraiser's behalf, Kelly did not object to the chief appraiser's failure to appear, and Kelly's agent reached an agreement at the hearing with the HCAD representative regarding the value of the property. Kelly, 2011 WL 497032, at *4. We held that, notwithstanding the chief appraiser's failure to appear, because the chief appraiser could delegate his authority to appear at hearings the agreement reached between Kelly's agent and HCAD's representative was final, and Kelly could not seek judicial review of the Board's subsequent order confirming the
This case is factually analogous to Kelly, Crescent Oaks, and Spring Cypress. The Board held a protest hearing, at which Bullseye's agent and an HCAD representative appeared. At the beginning of the hearing, HCAD's representative swore that he was present to represent HCAD and that the testimony he would present to the Board was true and correct. The chief appraiser did not appear, but Bullseye made no objection on this basis. During the hearing, Bullseye's agent and HCAD's representative offered identical opinions regarding the value of the property—which was the same amount as HCAD's initial valuation—and a Board member noted the agreement on the record. Neither representative offered any further testimony regarding the value of the property, and a Board member stated that the parties had agreed on the noticed value and that $6,283,781 would be the final value for the 2008 tax year. The Board then issued an order confirming this amount as the final value. Under section 1.111(e) of the Tax Code, this agreement was final and non-appealable. See TEX. TAX CODE ANN. § 1.111(e); id. § 41.01(b); MHCB, 249 S.W.3d at 83-84. Nevertheless, Bullseye sought judicial review in the district court.
The parties agree, as they must, that the chief appraiser may delegate to appraisal district employees his authority to attend a protest hearing and present evidence and a valuation opinion to the Board.
Bullseye also contends, in its first issue, that it had an "absolute right to appeal" the Board's order determining the protest pursuant to Tax Code sections 42.01 and 42.21. See TEX. TAX CODE ANN. §§ 42.01(a) (Vernon 2008), 42.21(a) (Vernon Supp. 2010). This is an incorrect statement of the law. As we noted in MHCB, "appraisal agreements between property owners and chief appraisers are final and cannot be reviewed or rejected by appraisal review boards." MHCB, 249 S.W.3d at 83; see also Sondock, 231 S.W.3d at 69 (noting that Legislature amended section 1.111(e) and deleted requirement that Board approve of agreement before it becomes final). Because the Board cannot review a section 1.111(e) agreement, "it necessarily cannot render an order resolving a protest based on a review of that agreement." MHCB, 249 S.W.3d at 83 (citing TEX. TAX CODE ANN. § 41.01(b)). Thus, because the Board cannot render an order resolving the protest after the parties reach a valuation agreement, "the property owner cannot file a suit for judicial review under Tax Code Chapter 42 . . . of matters relating to an appraisal agreement." Id. (citing BPAC Tex., LP v. Harris Cnty. Appraisal Dist., No. 01-03-01238-CV, 2004 WL 2422033, at *3 (Tex.App.-Houston [1st Dist.] Oct. 28, 2004, no pet.) (mem. op.)). At the moment the parties reach an agreement, the agreement becomes final and any subsequent valuation determinations by the appraisal review board are irrelevant. MHCB, 249 S.W.3d at 88; Sondock, 231 S.W.3d at 69.
At the time that Bullseye's agent and HCAD's representative agreed at the hearing on the value of the property, the Board had not yet determined Bullseye's protest. See TEX. TAX CODE ANN. § 1.111(e) (stating agreement is final if it relates to matter on which protest has been filed but not yet determined by review board). Because the agreement became final at the time the agent and the representative stated the same value for the property, "the subsequent approval and order by the [B]oard was irrelevant," and Bullseye did not have a Board order of which it could seek judicial review in the district court. See Kelly, 2011 WL 497032, at *4; see also Mann, 2008 WL 1747807, at *6 ("[W]e conclude that the protest was not `determined by the Board,' even though, after the parties reached an agreement, the Board entered an `Order Determining Protest' that set the appraised value at the amount agreed to by the parties.").
Bullseye also contends that precluding its suit for judicial review in the district court violates its due process rights. This Court and the Fourteenth Court have repeatedly addressed this assertion and found due process satisfied under these circumstances.
The collection of taxes constitutes deprivation of property, and, therefore, a taxing authority must afford a property owner due process of law. McKesson Corp. v. Div. of Alcoholic Beverages
Here, Bullseye protested the initial appraised value of its property and received an opportunity to present its opinion regarding the value to the Board. At the hearing, both Bullseye's agent and HCAD's representative opined that the value of the property was $6,283,781—the same amount as the initial appraised value. After the HCAD representative stated his belief regarding value and after a Board member noted that the parties appeared to agree on value, Bullseye's agent did not object or make any further comments. The Board later issued an order confirming the 2008 value at $6,283,781, in accordance with the parties' agreement. We therefore conclude that because Bullseye had an opportunity to protest the initial value to the Board and it reached an agreement with HCAD during the hearing, Bullseye's due process rights were not violated. See Kelly, 2011 WL 497032, at *5; see also Sondock, 231 S.W.3d at 70 ("We cannot imagine how the Sondocks were deprived of due process when they were given the opportunity to present their arguments to a legal panel and they reached an agreement fully satisfying their stated contentions.").
Finally, Bullseye contends in its first issue that the trial court incorrectly granted HCAD's plea to the jurisdiction because a disputed factual issue existed regarding whether Bullseye's agent and the chief appraiser agreed on the value of the property.
The record is clear that, at the protest hearing, Bullseye's agent and HCAD's representative both stated that they believed that the property should be valued at $6,283,781. As we have held, this is considered an agreement under section 1.111(e). See Hartman, 251 S.W.3d at 600; see also Sondock, 231 S.W.3d at 69. It is undisputed that the chief appraiser did not appear at the protest hearing but that an appraisal district representative appeared and expressed the same valuation opinion as Bullseye's agent. The question before us on appeal is whether an agreement between an owner's agent and an appraisal district representative—as opposed to the chief appraiser—qualifies as a section 1.111(e) agreement that precludes a suit for judicial review. As the Fourteenth Court of Appeals has held, this is a question of law that is proper for a plea to the jurisdiction. See Crescent Oaks, 2011 WL 166932, at *2; Spring Cypress, 2010 WL 3921126, at *2. We conclude that this issue may permissibly be determined via a plea to the jurisdiction.
We overrule Bullseye's first issue.
Because this issue is dispositive of this appeal, we do not reach Bullseye's second issue, arguing that the trial court, in granting HCAD's plea to the jurisdiction, erred in implicitly denying its motion for continuance, or its third issue, arguing that, in granting the plea to the jurisdiction, the trial court erroneously denied a rehearing of Bullseye's motion to compel the depositions of appraisal district employees.
We affirm the judgment of the trial court dismissing this case for lack of subject matter jurisdiction. All pending motions are dismissed as moot.
Justice MASSENGALE, concurring.
MICHAEL MASSENGALE, Justice, concurring.
Because the result in this appeal is controlled by the prior memorandum opinion of this court in Kelly v. Harris County Appraisal District, No. 01-09-00996-CV, 2011 WL 497032 (Tex.App.-Houston [1st Dist.] Feb. 10, 2011, no pet. h.), I concur in the judgment. I write separately to explain my disagreement with the holdings in Kelly and the sole relevant authority it relied upon, KM TS Spring Cypress L.L.C. v. Harris County Appraisal District, No. 14-09-00978-CV, 2010 WL 3921126 (Tex. App.-Houston [14th Dist.] Oct. 7, 2010, pet. denied) (per curiam mem. op.).
This is an appeal from the trial court's ruling sustaining the appraisal district's plea to the jurisdiction. The basis for the jurisdictional challenge is the purported existence of an agreement between the property owner's agent and the chief appraiser. If such an agreement exists, it is final as to any matter on which a protest has been filed but not determined by the board. See TEX. TAX CODE ANN. § 1.111(e)(1) (West Supp. 2010).
In this case, as in Kelly and KM TS Spring Cypress,
The chief appraiser's delegation of authority to his employees to represent the appraisal district at a protest hearing could, but need not necessarily, include a delegation of authority to enter into a final and binding agreement as to appraised value. The factual basis for the appraisal district's claim of delegation was challenged by the property owner in the trial court, and if it is in fact the case that such authority had been delegated, then it would be plain that section 1.111(e) operates to foreclose further litigation as to appraised value. But the appraisal district produced no evidence to support its claim that the relevant authority had been delegated by the chief appraiser, and the property owner sought discovery to confirm whether there is a factual basis for the appraisal district's claim. There is no statutory basis for denying discovery into that matter. The statute specifically identifies the chief appraiser as the person empowered to enter into a final agreement for purposes of section 1.111(e). In a large county such as Harris County, a chief appraiser is effectively required to delegate to employees the authority to appear at protest hearings, simply because there are too many hearings for the chief appraiser
When a plea to the jurisdiction turns on disputed jurisdictional facts, the trial court is required to resolve the jurisdictional issues by considering relevant evidence submitted by the parties. See Texas Dep't. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). That fundamental concept is violated by the rule of Kelly and KM TS Spring Cypress, which short-circuits the inquiry and improperly assumes jurisdictional facts in favor of the defendant appraisal district.
