accepted 04-16-00572-cv fourth court of appeals …cause no. 04-16-00572-cv . in the court of...

Cause No. 04-16-00572-CV

IN THE COURT OF APPEALS,

FOURTH JUDICAL DISTRICT OF TEXAS, SAN ANTONIO, TEXAS

_________________________________________________

RONALD F. AVERY,

Appellant,

v.

GUADALUPE APPRAISAL DISTRICT,

Appellee.

_________________________________________________

Appealed from the 2nd 25th Judicial District Court of Guadalupe County, Texas

Trial Court Cause No. 15-2442-CV

The Honorable William C. “Bud” Kirkendall, Presiding

BRIEF OF APPELLEE

Christopher S. Jackson

Texas Bar No. 00796816

PERDUE, BRANDON, FIELDER,

COLLINS & MOTT, L.L.P

3301 Northland Dr., Suite 505

Austin, TX 78731

Telephone: 512.302.0190

Facsimile: 512.323.6963

Email: [email protected]

COUNSEL FOR APPELLEE,

GUADALUPE APPRAISAL DISTRICT

ORAL ARGUMENT CONDITIONALLY REQUESTED

ACCEPTED04-16-00572-CV

FOURTH COURT OF APPEALSSAN ANTONIO, TEXAS1/12/2017 12:43:28 PM

KEITH HOTTLECLERK

i

IDENTITY OF PARTIES & COUNSEL

Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A),

the Appellee, Guadalupe Appraisal District, adopts the identities of parties and

counsel as listed by the Appellant, Ronald F. Avery, and adds the following:

Guadalupe Appraisal

District

Defendant / Appellee



PERDUE, BRANDON FIELDER, COLLINS &

MOTT L.L.P.

3301 Northland Dr., Suite 505

Austin, TX 78731

Telephone: 512.302.0190

Facsimile: 512.323.6963


Trial and Appellate Counsel for

Guadalupe Appraisal District

ii

TABLE OF CONTENTS

Identity of Parties, Counsel & Trial Court............................................................. i

Table of Contents .................................................................................................... ii

Index of Authorities ................................................................................................ vi

Statement of the Case ........................................................................................... xiv

Statement Regarding Oral Argument ................................................................ xvi

Party and Record References ........................................................................... xvii

Issue Presented ................................................................................................... xviii

I. Introduction ..................................................................................................... 1

II. Statement of Facts ........................................................................................... 2

III. Standard of Review & Burden of Proof ....................................................... 5

A. Lack of Jurisdiction............................................................................5

B. Summary Judgment…………………………………………...........6

1. Traditional Motion for Summary Judgment……………….6

2. No-Evidence Motion for Summary Judgment……………...7

IV. Summary of the Argument ........................................................................... 9

V. Argument & Authorities ............................................................................... 9

iii

A. The trial court correctly dismissed a portion of Mr.

Avery’s suit for lack of jurisdiction because he did not

timely file suit within 60 days after receiving the Board’s

Final Orders on three issues he protested…………….9

B. The trial court correctly granted summary judgment to the

District because the ad valorem system in Texas is

constitutional and Mr. Avery’s properties were subject to

property taxation by the taxing units in Guadalupe County

for the 2015 tax year. ……………………………………….15

1. Mr. Avery’s arguments that there is no lawful source

of authority for Texas taxing units to impose an ad

valorem tax are wrong. The Texas Constitution and

Tax Code provide valid authority making real and

tangible personal private property in this State

subject to ad valorem taxation……………………....15

2. Guadalupe County, Seguin Independent School

District, and Lateral Roads all had the authority to

levy an ad valorem tax on Mr. Avery’s property for

the 2015 tax year. ……………………………….……21

3. On January 1, 2015, the subject properties in this case

were owned by Mr. Avery, had situs in the relevant

taxing units, and were not otherwise exempt.

Therefore, the trial court correctly granted summary

judgment in the District’s favor…………..……..…..22

4. Mr. Avery bore the burden of proof and did not bring

sufficient evidence on that he was exempt from

taxation. …………………………………………..…..25

VI. Conclusion & Prayer ....................................................................... 26

iv

Certificate of Compliance ..................................................................................... 29

Certificate of Service .............................................................................................. 30

v

Appendix ............................................................................................................ TAB

Tex. Tax Code Ann. § 42.21(a)

(West, Westlaw through 2015 Reg. Sess.) ....................................................... TAB A

Tex. Const. art. VII, § 3(e) ............................................................................... TAB B

Tex. Const. art VIII, § 1(b) .............................................................................. TAB C

Tex. Const. art. VIII, § 1–a .............................................................................. TAB D

Tex. Const. art. VIII, § 1–e .............................................................................. TAB E

Tex. Const. art. VIII § 9 ................................................................................... TAB F

Tex. Const. art. VIII § 11 ................................................................................. TAB G

vi

INDEX OF AUTHORITIES

TEXAS CONSTITUTION

Tex. Const. art. VII, § 3(e) ....................................................................................... 21

Tex. Const. art VIII, § 1(b) ...................................................................................... 17

Tex. Const. art. VIII, § 1–a ................................................................3, 14, 16, 21, 26

Tex. Const. art. VIII, § 1–e ................................................................3, 14, 16, 19, 26

Tex. Const. art. VIII § 9 ........................................................................................... 21

Tex. Const. art. VIII § 9(c) ...................................................................................... 21

Tex. Const. art. VIII § 9(e) ...................................................................................... 21

Tex. Const. art. VIII § 11 ......................................................................................... 18

TEXAS STATUTES

Tex. Educ. Code Ann. § 11.152

(West, Westlaw through 2015 Reg. Sess.) ............................................................... 21

Tex. Tax Code Ann. § 1.04(12)


Tex. Tax Code Ann. § 11.01


Tex. Tax Code Ann. § 21.01


vii








(West, Westlaw through 2015 Reg. Sess.) ................................ 11, 12, 13, 14, 15, 26

TEXAS RULES & REGULATIONS

Tex. R. Civ. P. 166a(c) .............................................................................................. 7

Tex. R. Civ. P. 166a(i) ............................................................................................... 7

U.S. SUPREME COURT CASES

Compania General de Tabacos v. Collector,

275 U.S. 87 (1927) ................................................................................................... 16

TEXAS SUPREME COURT CASES

Appraisal Review Bd. v. Int’l Church of Foursquare Gospel,

719 S.W.2d 160 (Tex. 1986) .............................................................................. 10, 12

Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547 (Tex. 2000) .................................................................................... 5, 6

viii

Bybee v. Fireman’s Fund Ins. Co.,

331 S.W.2d 910 (Tex. 1960) ...................................................................................... 6

Cameron Appraisal Dist. v. Rourk,

194 S.W.3d 501 (Tex. 2006) .................................................................................... 10

Carr v. Brasher,

776 S.W.2d 567 (Tex. 1989) ...................................................................................... 8

Carrollton–Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch.

Dist., 826 S.W.2d 489 (Tex. 1992) .......................................................................... 20

City of Beaumont v. Fertitta,

415 S.W.2d 902 (Tex. 1967) .................................................................................... 17

Cramer v. Sheppard,

167 S.W.2d 147 (Tex. 1942) .................................................................................... 17

Dallas Cty. v. Dallas Nat'l Bank,

179 S.W.2d 288 (Tex. 1944) .................................................................................... 19

Edgewood Indep. Sch. Dist. v. Kirby,

777 S.W.2d 391 (Tex. 1989) .................................................................................... 17

Enron Corp. v. Spring Indep. Sch. Dist.,

922 S.W.2d 931 (Tex. 1996) .................................................................................... 19

Forbes Inc. v. Granada Biosciences, Inc.,

124 S.W.3d 167 (Tex. 2003) ...................................................................................... 8

Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist.,

826 S.W.2d 124 (Tex. 1992) .................................................................................... 10

Great S. Life Ins. Co. v. City of Austin,

243 S.W. 778, 780 (Tex. 1922) ................................................................................ 19

ix

In re Nestle USA, Inc.,

387 S.W.3d 610 (Tex. 2012) .................................................................................... 19

Long Distance Intern., Inc. v. Telefonos de Mexico, S.A. de C.V.,

49 S.W.3d 347 (Tex. 2001) ........................................................................................ 7

Matagorda Cty. Appraisal Dist. v. Coastal Liquids Partners, L.P.,

165 S.W.3d 329 (Tex. 2005) .................................................................................... 10

Morath v. Tex. Taxpayer & Student Fairness Coal.,

490 S.W.3d 826 (Tex. 2016) .................................................................................... 20

N. Alamo Water Supply Corp. v. Willacy Cty. Appraisal Dist.,

804 S.W.2d 894 (Tex. 1991) .................................................................................... 25

Nixon v. Mr. Prop. Mgmt. Co.,

690 S.W.2d 546 (Tex. 1985) ...................................................................................... 7

Rhone–Poulenc, Inc. v. Steel,

997 S.W.2d 217 (Tex. 1999) ...................................................................................... 7

State v. Whittenburg,

265 S.W.2d 569 (Tex. 1954) .................................................................................... 19

State Farm Fire & Cas. Co. v. S.S.,

858 S.W.2d 374 (Tex. 1993) ...................................................................................... 8

Tex. Ass’n of Bus. v. Air Control Bd.,

852 S.W.2d 440 (Tex. 1993) ...................................................................................... 6

Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217 (Tex. 2004) ...................................................................................... 6

Tex. Natural Res. Conservation Comm’n v. White,

46 S.W.3d 864 (Tex. 2001) ........................................................................................ 6

x

Timpte Indus., Inc. v. Gish,

286 S.W.3d 306 (Tex. 2009) ...................................................................................... 7

Valence Operating Co. v. Dorsett,

164 S.W.3d 656 (Tex. 2005) .................................................................................. 6, 8

Vinson v. Burgess,

773 S.W.2d 263 (Tex. 1989) .................................................................................... 19

Webb Cty. Appraisal Dist. v. New Laredo Hotel,

792 S.W.2d 952 (Tex. 1990) .................................................................................... 10

4TH DISTRICT COURT OF APPEAL CASES

Avery v. Murphy,

No. 04-07-00244-CV, 2007 WL 2479822

(Tex. App.—San Antonio Sept. 5, 2007, pet. denied) (mem. op.) ............................ 1

Hurst v. Guadalupe Cty. Appraisal Dist.,

752 S.W.2d 231 (Tex. App.—San Antonio 1988, no writ) .................................... 12

Seguin v. Bexar Appraisal Dist.,

373 S.W.3d 699 (Tex. App.—San Antonio 2012, pet. denied) ............................... 25

OTHER TEXAS COURTS OF APPEAL CASES

A.B.T. Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist.,

137 S.W.3d 146 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ........................... 10

Brooks v. Bachus,

661 S.W. 2d 288 (Tex. App.—Eastland 1983, writ ref’d n.r.e.) ............................. 12

xi

City of San Angelo v. Smith,

69 S.W.3d 303 (Tex. App.—Austin 2002, pet. denied) ............................................ 6

City of Wichita Falls v. Cooper,

170 S.W.2d 777 (Tex. App.—Fort Worth 1943, writ ref'd) .................................... 17

Dallas Cty. Appraisal Dist. v. Lal,

701 S.W.2d 44 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) .................................... 10

Dolenz v. Dallas Cent. Appraisal Dist.,

259 S.W.3d 331 (Tex. App.—Dallas, 2008, pet. denied) ........................................ 12

El Paso Cent. Appraisal Dist. v. Evangelical Lutheran Good Samaritan

Soc’y, Inc., 762 S.W.2d 207 (Tex. App.—El Paso 1988, no writ) .......................... 12

First Bank of Deer Park v. Harris Cty.,

804 S.W.2d 588 (Tex. App.—Houston [1st Dist.] 1991, no writ) .......................... 13

Fisher v. Cty. of Williamson,

No. 03-05-00584-CV, 2006 WL 1649262

(Tex. App.—Austin June 15, 2006, no pet.) (mem. op.) ......................................... 24

Flores v. Fort Bend Cent. Appraisal Dist.,

720 S.W.2d 243 (Tex. App.—Houston [14th Dist.] 1986, no writ) ........................ 12

Fountain Parkway, Ltd. v. Tarrant Appraisal Dist.,

920 S.W.2d 799 (Tex. App.—Fort Worth 1996, writ denied)................................. 12

Gregg Cty. Appraisal Dist. v. Laidlaw Waste Sys., Inc.,

907 S.W.2d 12 (Tex. App.—Tyler 1995, writ denied) ...................................... 10, 12

Haley v. Harris Cty.,

No. 14–11–01051–CV, 2012 WL4955257

(Tex. App.—Houston [14th Dist.] Oct. 18, 2012, no pet.) (mem. op) .................... 24

Harris Cty. Appraisal Dist. v. Tex. Nat'l Bank of Baytown,

775 S.W.2d 66 (Tex. App.—Houston [1st Dist.] 1989, no writ) .................. 9, 10, 11

xii

Hood v. Hays Cty.,

836 S.W.2d 327 (Tex. App.—Austin 1992, no writ) .............................................. 10

Mendoza v. Fiesta Mart, Inc.,

276 S.W.3d 653 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................... 8

Midland Cent. Appraisal Dist. v. Plains Mktg.,

202 S.W.2d 469 (Tex. App.—Eastland 2006, pet. denied) ..................................... 11

Poly-America, Inc. v. Dallas Cty. Appraisal Dist.,

704 S.W.2d 936 (Tex. App.—Waco 1986, no writ) ................................................ 12

Pub., Inc. v. Cty. of Galveston,

264 S.W.3d 338 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ......................... 17

Quorum Int’l v. Tarrant Appraisal Dist.,

114 S.W.3d 568 (Tex. App.—Fort Worth 2003, pet. denied) ................................. 13

Scott v. Harris Methodist HEB,

871 S.W.2d 548 (Tex. App.—Fort Worth 1994, no writ) ....................................... 10

Sierra Stage Coaches, Inc. v. La Porte Indep. Sch. Dist.,

832 S.W.2d 191 (Tex. App.—Houston [14th Dist.] 1992, no writ) ........................ 10

Tex. Architectural Aggregates, Inc. v. Adams,

690 S.W.2d 640 (Tex. App.—Austin 1985, no writ) .............................................. 12

Townsend v. Montgomery Cent. Appraisal Dist.,

No. 14–14–00103–CV, 2015 WL 971313

(Tex. App.—Houston [14th Dist.] Mar. 3, 2015, no pet.) ....................................... 24

Travis Central Appraisal District v. Marshall Ford Marina, Inc.,

No. 03–05–00784–CV, 2009 WL 2900743

(Tex. App.—Austin Sept. 9, 2009, no pet.) (mem. op.) .......................................... 13

Watson v. Robertson Cty. Appraisal Review Bd.,

795 S.W.2d 307 (Tex. App.—Waco 1990, no writ) ................................................ 10

xiii

SECONDARY SOURCES

Biennial Property Tax Report - Tax Years 2014 and 2015,

https://www.comptroller.texas.gov/taxes/property-tax/docs/96-1728.pdf. ............. 16

Richard T. Ely, Taxation in American States and Cities 109-111 (1888),

https://www.questia.com/read/85780469/taxation-in-american-states-and-

cities ......................................................................................................................... 15

Glen W. Fisher, History of Property Taxes in the United States,

https://eh.net/encyclopedia/history-of-property-taxes-in-the-united-states/............ 15

Jerome H. Hellerstein and Walter Hellerstein, State and Local Taxation,

Cases and Materials, 97 (8th ed. 2001) .................................................................... 16

https://www.comptroller.texas.gov/taxes/property-tax/docs/96-1728.pdf

https://www.questia.com/read/85780469/taxation-in-american-states-and-cities


https://eh.net/encyclopedia/history-of-property-taxes-in-the-united-states/

xiv

STATEMENT OF THE CASE

Pursuant to Texas Rules of Appellate Procedure 38.1(d) and

38.2(a)(1)(B), the District states as follows:

Nature of

The Case:

This is an ad valorem tax case regarding the 2015 tax

year. Mr. Avery filed suit against the District on six

grounds, regarding his three properties, on December 14,

2015. C.R. 3-48. The District answered. C.R. 49-52.

Mr. Avery received final orders from the Guadalupe

appraisal Review Board on July 24, 2015 on three issues

on his three properties. C.R. 337-340, 342-345, 347-350,

352, 356, 360. Pursuant to the Tax Code, he had sixty

days from the date he received the final orders to file suit

on those three issues or judicial review would be barred.

Did the trial court correctly conclude it lacked

jurisdiction of those three issues for Mr. Avery’s three

properties?

Mr. Avery received final orders from the Guadalupe

appraisal Review Board on October 22, 2015 on three

other issues centering on the unconstitutionality or

applicability of ad valorem taxation on his properties.

C.R. 384-390. Did the trial court correctly conclude that

ad valorem taxation is constitutional and applicable to

Mr. Avery’s property, based on the District’s evidence,

in granting summary judgment in the District’s favor?

Trial Court:

Cause No. 15-2442-CV

2nd 25th Judicial District, Guadalupe County, Texas

The Honorable, William C. “Bud” Kirkendall, Presiding

xv

Course of

Proceedings:

On December 14, 2015, Mr. Avery filed his Original

Petition for Review. C.R. 3-48. The District answered.

C.R. 49-52. On January 8, 2016, Mr. Avery filed his

First Amended Original Petition for Review. C.R. 53-98.

The Parties conducted discovery. C.R. 99-131. On June

9, 2016, the District filed its First Amended Original

Answer, Plea to the Jurisdiction, and Specific Denial of

Condition Precedent. C.R. 132-137. On June 9, 2016, the

District filed its Traditional and No Evidence Motions

for Summary Judgment and Exhibits. C.R. 138-285. On

June 9, 2016, the District also filed a Motion to Partially

Dismiss for Lack of Jurisdiction and Exhibits. C.R. 286-

399. Mr. Avery filed Responses. C.R. 400-469. On July

14, 2016, the Court held hearings on the District’s

Motions. C.R. 479-480; R.R. 1-18. The Court took the

District’s Motions under advisement. C.R. 2; R.R. 10:25-

11:2, 15:20-24.

Trial

Court’s

Disposition:

On July 29, 2016, the Court sent the Parties notice via

letter that it granted the District’s Motion to Dismiss for

Lack of Jurisdiction and granted the District’s Motions

for Traditional and No Evidence Summary Judgment.

C.R. 470. On August 10, 2016, the Court signed and had

filed an Order Granting the Defendant’s Motion to

Partially Dismiss for Lack of Jurisdiction. C.R. 471-472.

On the same date, the Court signed and had filed a final

Judgment grating the District’s Motions for Traditional

and No Evidence Summary Judgment. C.R. 473-474. On

September 7, 2016, Mr. Avery timely filed his Notice of

Appeal. C.R. 475-476.

xvi

STATEMENT REGARDING ORAL ARGUMENT

This case presents important questions and would extend the jurisprudence

on: 1) the exhaustion of administrative remedies on singular issues determined by

appraisal review boards and the deadline to timely file suit to contest them; 2) the

constitutionality, validity, and applicability of ad valorem taxation; and 3) the

proof necessary for appraisal districts and taxing units to prove taxability within

the jurisdiction of the Fourth Court of Appeals and provide assistance on such

issues throughout Texas.

The District contends that this case is limited to pure questions of law. The

issues presented require review of the Texas Constitution, relatively simple

statutes, and cases from the Texas Supreme Court, this Honorable Court, and its

sister courts of appeal. Thus, Tex. R. App. P. 39.1(b), (c), or (d) may be applicable

to this case.

Mr. Avery has requested oral argument. The District conditionally requests

oral argument. It believes that its briefing and Mr. Avery’s should be sufficient for

the Court to address this case on submission. The District, however, will gladly

participate in oral argument if the Court would find it helpful.

xvii

PARTY & RECORD REFERENCES

In this brief, the Appellant, Ronald F. Avery, will be referred to as “Appellant” or

“Mr. Avery.”

The Appellee, Guadalupe Appraisal District, will be referred to as “Appellee” or

“the District.”

The Guadalupe Appraisal Review Board, whose actions are important regarding

this matter, will be referred to as “the Board.”

In this brief, the following record citation forms will be used:

Clerk’s Record will be cited as “C.R. [page].”

Reporter’s Record will be cited as R.R. [page : line]

xviii

ISSUE PRESENTED

Pursuant to Tex. R. App. P. 38.2(a)(1)(B), the Appellee is dissatisfied with

the issue(s) presented by the Appellant.

The issues for this Court to resolve are:

1. When a party fails to file suit in district court within sixty days after

receiving notice of an appraisal review board’s final orders on specific protested

issues, does the Court lack jurisdiction to hear and determine those particular

matters?

2. Contrary to Mr. Avery’s positions, the Texas Constitution and Tax

Code provide ample and valid authority for ad valorem taxation of his real

property. Did the trial court correctly grant a traditional and a no-evidence

summary judgment in the District’s favor when it cited to and provided this

authority, proved Mr. Avery owned the subject properties on January 1, 2015,

proved the locations of the properties on that date, and proved that they were not

otherwise exempt?

Appellee’s Brief Page 1

I. INTRODUCTION

Mr. Avery contends that Texas citizens are not subject to ad valorem taxation

on their property. See Appellant’s Brief at pg. 3. He also argues that political

subdivisions in Texas lack authority from any source to impose such taxation on

Texas property owners. See Appellant’s Brief at pg. 5. In short, he believes this tax

to be unconstitutional—a point he has unsuccessfully made to this Court, in some

variation, before. See Avery v. Murphy, No. 04-07-00244-CV, 2007 WL 2479822

(Tex. App.—San Antonio Sept. 5, 2007, pet. denied) (mem. op.).

This case involves the 2015 tax year. Mr. Avery brought several iterations of

his contentions above, in addition to protests that the values the Guadalupe Appraisal

District (hereinafter “District”) placed on his three properties were over market value

and unequally appraised, before the Guadalupe Appraisal Review Board (hereinafter

“Board”). His suit presents two questions.

The first question involves jurisdiction. When a party fails to file suit in

district court within sixty days after receiving notice of an appraisal review board’s

final orders of specific protested issues, does the Court lack jurisdiction to hear and

determine those particular matters?

The second question involves taxability. Contrary to Mr. Avery’s positions,

the Texas Constitution and Tax Code provide ample and valid authority for ad


valorem taxation of his real property. Did the trial court correctly grant a traditional

and no-evidence summary judgment in the District’s favor when it cited to and

provided this authority, proved Mr. Avery owned the subject properties on January

1, 2015, proved the locations of the properties on that date, and proved that they

were not otherwise exempt?

II. STATEMENT OF FACTS

On January 1, 2015, Mr. Avery owned three properties. The first two tracts

total “5.34 acres of land more or less” in the “Moses Baker Survey, Abstract #4,

Guadalupe County, Texas.” C.R. 228-234. These two tracts individually are

approximately 3.74 acres and 1.6 acres, and are known to the District as accounts

50610 and 50612. C.R. 161, 164, 170-172, 175-177, 189, 196, 273 RFAR 3 – 275

RFAR 13. Account 50610 also has an improvement known as “the Silver Eagle

Taphouse.” C.R. 274 RFAR 5.

Additionally, Ronald F. Avery and Cynthia G. Avery, as Trustees for the

Ronald F. Avery and Cynthia G. Avery Revocable Living Trust owned a tract that

is approximately “2.658 acres of land out of the John Sowell Survey, Guadalupe

County, Texas.” C.R. 236-238. This tract is known to the District as account 59576.

C.R. 167, 180-182, 203, 275 RFAR 14 – 276 RFAR 20.


On May 22, 2015, Mr. Avery, for himself and as a trustee on one property,

filed protests with the Board on accounts 59576, 50612, and 50610, for the 2015 tax

year. C.R. 304-320, 276 RFAR 21 - 277 RFAR 23.

Mr. Avery’s protest for each property stated five reasons or issues. Those

were: 1) his property was over market value (excessively appraised); 2) his property

was unequal compared to other properties (unequal appraisal); 3) his property should

not be taxed in the jurisdiction of Texas; 4) his property should not be taxed in the

Guadalupe Appraisal District or in one or more taxing units; and 5) the property

should not be taxed based on the Texas Constitution, including Article VIII, §§ 1(a),

1-e, and other laws. C.R. 305-306, 309-311, 314-316, 276 RFAR 21 - 277 RFAR

23.

Mr. Avery also listed nine points in another section on his protest forms,

entitled: “Step 4: Give Facts That May Help Resolve Your Case.” C.R. 306, 311,

316. Mr. Avery later categorized this as a sixth issue of protest: 6) principles of

unlawfulness of ad valorem property taxes in America according to the Founders

(the feudal system). C.R. 305-306, 309-311, 314-316, 360, 4.

On July 21, 2015, the Board heard Mr. Avery’s protests. C.R. 322, 327, 332,

277 RFAR 24-26, 278 RFAR 30-31. On July 22, 2015, the Board issued Final Orders

on his three properties. C.R. 337-350. These Final Orders addressed: 1) value is over


market value; 2) value is unequal compared with other properties; and 3) “reject[ing]

the appeal to the Texas Constitution as a viable cause for appeal of appraised value.”

C.R. 337-340, 342-345, 347-350, 360. Mr. Avery received the Board’s Final Orders

on those issues on July 24, 2015. C.R. 337-340, 342-345, 347-350, 352, 356, 360.

On August 13, 2015, Mr. Avery wrote to the District’s Chief Appraiser. C.R.

360. He asserted that he made six separate claims and produced evidence on these

at his July 21st hearing. He stated that he had received Orders on: 1) value is over

market value; 2) value is unequal compared with other properties; and 3) other – Art.

VIII, §§ 1(a), 1-e, and other laws. Although the Orders can be read that they do

address all issues, Mr. Avery claimed that the Board’s Final Orders did not address

three of his other issues: 4) the property should not be taxed in Texas; 5) the Property

should not be taxed in the Guadalupe Appraisal District or taxing units; and 6) the

unlawfulness of the ad valorem property tax in America according to the Founders.

C.R. 360, 281, RFAR 39. Mr. Avery’s letter requested a ruling so he could timely

appeal all issues to district court. C.R. 360.

On August 26, 2015, the Board instead sent Mr. Avery notice that it had set

another hearing. C.R. 89. On October 14, 2015, the Board held its hearing on Mr.

Avery’s remaining issues on his three properties, presumably to clarify its Orders

and fully provide him with due process. C.R. 366, 370, 375, 380, 280 RFAR 39.


After hearing from Mr. Avery, the Board voted: 1) the land was located in

Guadalupe County; 2) the taxing entities reflected on the record are correct; and 3)

the Texas Constitution and Texas Tax Code allow the Guadalupe Appraisal District

to appraise the property and the taxing entities are entitled to tax the property. C.R.

366. On October 16, 2015, the Board issued Final Orders to Mr. Avery on his three

properties on these three issues in accordance with its vote. C.R. 370-382. Mr. Avery

received the Board’s Final Orders on the remaining three issues, for his three

properties, on October 22, 2015. C.R. 384-390

Sixty days after July 24, 2015 is September 22, 2015. C.R. 392. Sixty days

after October 22, 2015 is December 21, 2015. C.R. 396. On December 14, 2015 Mr.

Avery filed his “Plaintiff’s Original Petition for Review” appealing all the Board’s

Final Orders. C.R. 3-48.1

III. STANDARD OF REVIEW & BURDEN OF PROOF

A. Lack of Jurisdiction.

A plea to the jurisdiction challenges the Court’s authority to determine a cause

of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To

1 Mr. Avery’s Original Petition and First Amended Petition are not clear if he is pursuing

excessive appraisal and unequal appraisal. C.R. 3-48, 53-98. Mr. Avery has noted he is not

appealing the issues of excessive appraisal and unequal appraisal. C.R. 284, RFAR 58; C.R. 403-

404, ¶ 2.8.2. Also, Mr. Avery sold two of his properties in the Moses Baker Survey in June 2016

and has stated he “no longer has any interest in them and unsuits any claims regarding them.” C.R.

400, ¶ 1. However, he has never formally non-suited these from his case.


invoke a Court’s authority, a plaintiff must allege facts that affirmatively

demonstrate that the Court has jurisdiction to hear the cause. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Ass’n of Bus. v. Air

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). To prevail on a plea to the

jurisdiction, a defendant must show an incurable jurisdictional defect apparent from

the face of the pleadings, making it impossible for a plaintiff’s petition to confer

jurisdiction on the Court. Bybee v. Fireman’s Fund Ins. Co., 331 S.W.2d 910, 914

(Tex. 1960); City of San Angelo v. Smith, 69 S.W.3d 303, 305 (Tex. App.—Austin

2002, pet. denied). Courts must consider evidence when necessary to decide

jurisdictional issues. Miranda, 133 S.W.3d at 221; Tex. Natural Res. Conservation

Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Blue, 34 S.W.3d at 554-55. If

the relevant evidence is undisputed or fails to raise a fact question on the

jurisdictional issue, a Court is to rule on the jurisdictional issue as a matter of law.

Miranda, 133 S.W.3d at 228.

B. Summary Judgment.

1. Traditional Motion for Summary Judgment.

Courts of appeal review a trial court’s summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional

summary judgment case, the issue on appeal is whether the movant met the summary


judgment burden by establishing that no genuine issue of material fact exists and

that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). A plaintiff

moving for summary judgment on its claim must conclusively prove all the elements

of its cause of action as a matter of law. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d

217, 223 (Tex. 1999). A defendant that moves for a traditional summary judgment

must conclusively negate at least one essential element of each of the plaintiff’s

causes of action, or must conclusively establish each element of an affirmative

defense. Long Distance Intern., Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d

347, 350–51 (Tex. 2001).

2. No-Evidence Motion for Summary Judgment.

A no-evidence motion for summary judgment is basically a motion for pretrial

directed verdict and is governed by the standards of Texas Rule of Civil Procedure

166a(i). Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Under Rule

166a(i), after an adequate time for discovery, the party without the burden of proof

can move for summary judgment on the ground that the respondent has presented no

evidence supporting one or more element essential to the respondent's claim or

defense. Tex. R. Civ. P. 166a(i). The respondent must then present more than a

scintilla of probative evidence that raises a genuine issue of material fact supporting


each element contested in the motion. Forbes Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists when

reasonable and fair-minded individuals could differ in their conclusions. Mendoza

v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2008,

pet. denied). Less than a scintilla of evidence exists if the evidence creates no more

than a mere surmise or suspicion of a fact regarding a challenged element. Id.

In determining whether a material fact issue exists which precludes summary

judgment, the reviewing court takes as true all evidence favorable to the non-movant,

indulging every reasonable inference and resolving any doubts in the non-movant’s

favor. Valence Operating, 164 S.W.3d at 661.

When a trial court’s order granting summary judgment does not specify the

grounds upon which it was granted, a reviewing court will affirm the judgment if

any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569

(Tex. 1989). When there are multiple grounds for summary judgment and the order

does not specify the ground on which the summary judgment was granted, an

appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S., 858

S.W.2d 374, 381 (Tex. 1993).


IV. SUMMARY OF ARGUMENT

Mr. Avery failed to timely appeal three issues, on his three properties, within

60-days of receipt of the Board’s Final Orders addressing those specific matters.

Thus, judicial review of those issues was barred. The trial court correctly determined

it lacked jurisdiction to hear and determine those matters and therefore correctly

granted the District’s partial motion to dismiss.

Mr. Avery is incorrect that ad valorem taxation is unconstitutional or that

political subdivisions lack authority to impose such taxation. The Texas Constitution

and Tax Code provide ample and valid authority for such taxation. Because the

District cited to and provided this authority, proved Mr. Avery owned the three

subject properties on January 1, 2015, proved the locations of the properties on that

date, and proved that they were not otherwise exempt, the trial court correctly

granted traditional and no-evidence summary judgment in the District’s favor.

V. ARGUMENT & AUTHORITIES

A. The trial court correctly dismissed a portion of Mr. Avery’s suit for lack

of jurisdiction because he did not timely file suit within 60 days after

receiving the Board’s Final Orders on three issues he protested.

To contest the determinations of an appraisal review board, a party must

follow the procedures outlined by the Tax Code. Harris Cty. Appraisal Dist. v. Tex.

Nat'l Bank of Baytown, 775 S.W.2d 66, 69 (Tex. App.—Houston [1st Dist.] 1989,


no writ). These administrative remedies are exclusive and jurisdictional. Tex. Tax

Code Ann. § 42.09(a) (West, Westlaw through 2015 Reg. Sess.); Cameron Appraisal

Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006); Tex. Nat'l Bank of Baytown, 775

S.W.2d at 69; Gregg Cty. Appraisal Dist. v. Laidlaw Waste Sys., Inc., 907 S.W.2d

12, 16 (Tex. App.—Tyler 1995, writ denied); Scott v. Harris Methodist HEB, 871

S.W.2d 548, 550 (Tex. App.—Fort Worth 1994, no writ); Hood v. Hays Cty., 836

S.W.2d 327, 329 (Tex. App.—Austin 1992, no writ); Watson v. Robertson Cty.

Appraisal Review Bd., 795 S.W.2d 307, 310 (Tex. App.—Waco 1990, no writ).

If a party fails to exhaust its administrative remedies, judicial review of its

claims is barred. Rourk, 194 S.W.3d at 502; Matagorda Cty. Appraisal Dist. v.

Coastal Liquids Partners, L.P., 165 S.W.3d 329, 331 (Tex. 2005); Gen. Elec. Credit

Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1992); Webb

Cty. Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex. 1990);

Appraisal Review Bd. v. Int’l Church of Foursquare Gospel, 719 S.W.2d 160, 160

(Tex. 1986); A.B.T. Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137

S.W.3d 146, 152 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Dallas Cty.

Appraisal Dist. v. Lal, 701 S.W.2d 44, 46 (Tex. App.—Dallas 1985, writ ref’d

n.r.e.); Sierra Stage Coaches, Inc. v. La Porte Indep. Sch. Dist., 832 S.W.2d 191,

193 (Tex. App.—Houston [14th Dist.] 1992, no writ); Tex. Nat’l Bank of Baytown,


775 S.W.2d at 69; Midland Cent. Appraisal Dist. v. Plains Mktg., 202 S.W.2d 469,

474- 475 (Tex. App.—Eastland 2006, pet. denied).

Beating the clock, by timely appealing the Board’s Final Order determining a

protested issue, is one of the most important exhaustion requirements. Tax Code

Section 42.21(a) is clear that the clock to file suit on an issue starts ticking when the

party “receives notice that a final order has been entered from which an appeal may

be had….” Tex. Tax Code Ann. § 42.21(a) (West, Westlaw through 2015 Reg.

Sess.)(emphasis added). Mr. Avery received, what are clearly marked as, Final

Orders, on three issues, for his three properties, that an appeal could be had. C.R.

337-340, 342-345, 347-350. He admitted his receipt of these final orders on these

three issues. C.R. 360. Therefore, Mr. Avery’s clock started ticking on July 24, 2015

for those three issues.

The clock stops ticking at 60 days to timely file a petition appealing each issue

that is finally determined by Board order. Tex. Tax Code Ann. § 42.21(a) (West,

Westlaw through 2015 Reg. Sess.)(emphasis added). 2

2 The Texas Legislature amended Tax Code Section 42.21(a), effective June 19, 2009, to

extend the time to file a petition for review from 45 days to 60 days after the party receives notice

that a final order has been entered from which an appeal may be had, or at any time after the

hearing, but before the 60-day deadline. See Act of May 29, 2009, 81st Leg., R.S., ch. 905, §§ 1,

5, 2009 Tex. Gen. Laws 2435, 2435-36 (current version at Tex. Tax Code Ann. § 42.21(a) (West,

Westlaw through 2015 Reg. Sess.)).


When the clock stops ticking, the appeal is barred and the Court is deprived

of jurisdiction on those issues. Tex. Tax Code Ann. § 42.21(a) (West, Westlaw

through 2015 Reg. Sess.); Int'l Church of the Foursquare Gospel, 719 S.W.2d at

160-161; Hurst v. Guadalupe Cty. Appraisal Dist., 752 S.W.2d 231, 233 (Tex.

App.—San Antonio 1988, no writ); Dolenz v. Dallas Cent. Appraisal Dist., 259

S.W.3d 331, 334 (Tex. App.—Dallas, 2008, pet. denied); Flores v. Fort Bend Cent.

Appraisal Dist., 720 S.W.2d 243, 244 (Tex. App.—Houston [14th Dist.] 1986, no

writ); Poly-America, Inc. v. Dallas Cty. Appraisal Dist., 704 S.W.2d 936, 937 (Tex.

App.—Waco 1986, no writ); El Paso Cent. Appraisal Dist. v. Evangelical Lutheran

Good Samaritan Soc’y, Inc., 762 S.W.2d 207, 209 (Tex. App.—El Paso 1988, no

writ); Fountain Parkway, Ltd. v. Tarrant Appraisal Dist., 920 S.W.2d 799, 801-802

(Tex. App.—Fort Worth 1996, writ denied); Laidlaw Waste Sys., Inc., 907 S.W.2d

at 16.

Even though this may seem harsh, Texas Courts have held that Tax Code

Sections 42.21 and 42.09 are constitutional and meet due process requirements. Tex.

Architectural Aggregates, Inc. v. Adams, 690 S.W.2d 640, 643 (Tex. App.—Austin

1985, no writ); Brooks v. Bachus, 661 S.W. 2d 288, 290 (Tex. App.—Eastland 1983,

writ ref’d n.r.e.).


To call “time-out,” and keep the clock from ticking, Mr. Avery argues that the

Board’s July 2015 orders were not final orders, but instead were partial orders. See

Appellant’s Brief at pgs. 13-14. He cites Travis Central Appraisal District v.

Marshall Ford Marina, Inc., No. 03–05–00784–CV, 2009 WL 2900743 (Tex.

App.—Austin Sept. 9, 2009, no pet.) (mem. op.) as support. This case, however,

supports the District’s position. In Marshall Ford, several protests and issues were

determined by the Travis County Appraisal Review Board. Two rounds of Final

Orders were issued, much like in this case. The Third Court determined that because

the Legislature provided an exclusive remedy, the Travis County Appraisal District,

as the Plaintiff, could not simply ignore the First ARB Orders and was required by

the Tax Code to timely appeal the issues in the first orders to district court to contest

them. Because the Travis County Appraisal District did not do so, it waived its

remedy to attack those orders. Id. at *5. Other caselaw is clear that to preserve a

specific issue for review in the district court, the same issue must be raised at, and

determined by, the appraisal review board. Quorum Int’l v. Tarrant Appraisal Dist.,

114 S.W.3d 568, 572, 573 (Tex. App.—Fort Worth 2003, pet. denied); First Bank

of Deer Park v. Harris Cty., 804 S.W.2d 588, 592 (Tex. App.—Houston [1st Dist.]

1991, no writ). Tax Code Section 42.21(a) is equally clear that the clock to file suit

on an issue starts ticking when the property owner “receives notice that a final order


has been entered from which an appeal may be had….” Tex. Tax Code Ann. §

42.21(a) (West, Westlaw through 2015 Reg. Sess.)(emphasis added). Mr. Avery

received final, not partial, orders on three issues, for his three properties, that an

appeal could be had. C.R. 337-340, 342-345, 347-350. Mr. Avery’s clock started

ticking on July 24, 2015 for those three issues and did not “time-out.”

Mr. Avery was required to file his petition appealing the Board’s Final Orders

on his protested issues of: 1) excessive appraisal; 2) unequal appraisal; and 3) the

property should not be taxed based on the Texas Constitution, including Article VIII,

§§ 1(a), 1-e and other provisions of it, and other laws.3 C.R. 338, 343, 348. C.R. 360.

He had 60 days to do so after he received notice of the Board’s Final Orders on July

24, 2015. C.R. 337-358. The 60-day deadline was September 22, 2015. C.R. 392.

Mr. Avery could have timely filed his suit on his three issues for his three properties

that were final before September 22, 2015, and then timely amended in the three

issues that were finally determined later by the Board in October. He could also have

filed a second, separate, suit on those issues finally decided later by the Board in

October. Instead, Mr. Avery chose to wait. He filed his Original Petition for Review,

containing all six issues, for his three properties, on December 14, 2015. C.R. 3-48.

3 “reject[ing] the appeal to the Texas Constitution as a viable cause for appeal of

appraised value.” C.R. 338, 343, 348. C.R. 360.


He ran out of time on the three issues, for three of his properties, determined by the

Board in July 2015. Pursuant to Tax Code § 42.21(a) review is barred. Thus, the trial

court correctly dismissed three of Mr. Avery’s issues above, on his three properties,

from this lawsuit for want of subject matter jurisdiction.

B. The trial court correctly granted summary judgment to the District

because the ad valorem system in Texas is constitutional and Mr. Avery’s

properties were subject to property taxation by the taxing units in

Guadalupe County for the 2015 tax year.

1. Mr. Avery’s arguments that there is no lawful source of authority

for Texas taxing units to impose an ad valorem tax are wrong. The

Texas Constitution and Tax Code provide valid authority making

real and tangible personal private property in this State subject to

ad valorem taxation.

Always disliked, but always present, property taxation can be dated to at least

6,000 B.C. https://bftaxhelp.wordpress.com/about-property-taxes/history-of-

property-taxes/ancient-mesopotamia/ (last visited Dec. 29, 2016). Property taxation

also existed in America during colonial times. Richard T. Ely, Taxation in American

States and Cities 109-111 (1888),

https://www.questia.com/read/85780469/taxation-in-american-states-and-cities;

Glen W. Fisher, History of Property Taxes in the United States,

https://eh.net/encyclopedia/history-of-property-taxes-in-the-united-states/. Even the

Founders, such as George Washington and John Adams, cited by Mr. Avery as

opponents of such a system, forcefully put down Shays’s and Fries’s Rebellions,

https://bftaxhelp.wordpress.com/about-property-taxes/history-of-property-taxes/ancient-mesopotamia/

https://bftaxhelp.wordpress.com/about-property-taxes/history-of-property-taxes/ancient-mesopotamia/


https://eh.net/encyclopedia/history-of-property-taxes-in-the-united-states/


which were property tax revolts, in our nation’s infancy. See Appellant’s Brief at

pgs. 36-38.

Today, most local governments in the United States impose a property tax as

a principal source of revenue. Jerome H. Hellerstein and Walter Hellerstein, State

and Local Taxation, Cases and Materials, 97 (8th ed. 2001). Texas cities, counties,

school districts, and other taxing units are no exception. They too rely on property

taxes to fund their operations. Local property tax is the largest tax assessed in Texas.

Property taxes levied by taxing units statewide in Texas exceeded $49 billion in 2014

and $52 billion in 2015. Biennial Property Tax Report - Tax Years 2014 and 2015,

1, https://www.comptroller.texas.gov/taxes/property-tax/docs/96-1728.pdf. As said

best by Oliver Wendell Holmes, former Justice of the United States Supreme Court,

“Taxes are what we pay for a civilized society….” Compania General de Tabacos

v. Collector, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).

Mr. Avery contends his three properties cannot be taxed under the Texas

Constitution, including Articles VIII, §§ 1(a), 1-e, and other laws. He also makes

several other contentions regarding the alleged unlawfulness of ad valorem property

taxes in America. Respectfully, he is wrong. Since Texas became a state in 1845,

every one of its Constitutions has contained a provision where the People and their

elected representatives adopted property taxation. See Tex. Const. of 1861, art. VII,

https://www.comptroller.texas.gov/taxes/property-tax/docs/96-1728.pdf


§ 27 (“All property in this State shall be taxed in proportion to its value, to be

ascertained as directed by law.); Tex. Const. of 1866, art. VII, § 27 (same); Tex.

Const. of 1869, art XII, § 19 (same); Tex. Const. art VIII, § 1(b) (All real property

and tangible personal property in this State … shall be taxes in proportion to its

value, which shall be ascertained as may be provided by law). “The Texas

Constitution derives its force from the people of Texas. This is the fundamental law

under which the people of this state have consented to be governed.” 4 Edgewood

Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex. 1989). As aptly noted by the

trial court, “the train [has] kind of left the station on the legality of the ad valorem

tax.” R.R. 12:10-13.

Under the Texas Constitution all real and tangible personal private property

in this State is subject to ad valorem taxation unless it is barred under federal law or

comes under an exemption authorized in the Texas Constitution. Tex. Const. art

VIII, § 1(b); City of Wichita Falls v. Cooper, 170 S.W.2d 777, 780 (Tex. App.—

Fort Worth 1943, writ ref'd); see City of Beaumont v. Fertitta, 415 S.W.2d 902, 909–

12 (Tex. 1967); see e.g., Pub., Inc. v. Cty. of Galveston, 264 S.W.3d 338, 345-346

(Tex. App.—Houston [14th Dist.] 2008, no pet.).

4 The people have the sole power to change or modify the plain language of the constitution.

Cramer v. Sheppard, 167 S.W.2d 147, 154 (Tex. 1942). Until the people change it, the constitution

itself remains the supreme law of the land. Id.


The Texas Constitution also states:

All property, whether owned by persons or corporations shall be

assessed for taxation, and the taxes paid in the county where situated….

And all lands and other property not rendered for taxation by the owner

thereof shall be assessed at its fair value by the proper officer.

Tex. Const. art. VIII § 11 (emphasis added).

Tax Code § 11.01, in part, adds:

§ 11.01. Real and Tangible Personal Property

(a) All real and tangible personal property that this state has jurisdiction to

tax is taxable unless exempt by law.

(b) This state has jurisdiction to tax real property if located in this state.

(c) This state has jurisdiction to tax tangible personal property if the

property is:

(1) located in this state for longer than a temporary period;

(2) temporarily located outside this state and the owner resides in

this state; or

(3) used continually, whether regularly or irregularly, in this state.

Tex. Tax Code Ann. § 11.01 (West, Westlaw through 2015 Reg. Sess.)(emphasis

added).

Since jurisdiction to tax means the legitimate power to tax, Tax Code § 11.01,

which defines the state’s taxing jurisdiction over real and tangible personal property,


also defines the limits of the legitimate power of political subdivisions to tax such

property. 5 See Great S. Life Ins. Co. v. City of Austin, 243 S.W. 778, 780, 782 (Tex.

1922).

Mr. Avery also complains it is impossible to achieve exact uniformity and

equality. See Appellant’s Brief at pg. 22. The Texas Supreme Court has recognized

that impossibility. State v. Whittenburg, 265 S.W.2d 569, 572 (Tex. 1954). But, the

Court has also noted that “[a] reasonable discrepancy between the actual value of

the property and the value at which it is assessed for taxes is permissible to allow for

differences in judgment.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931,

935 (Tex. 1996)(citing Dallas Cty. v. Dallas Nat'l Bank, 179 S.W.2d 288, 289 (Tex.

1944)).

Mr. Avery also argues that Article VIII, § 1–e of the Texas Constitution bars

ad valorem taxation in Texas entirely. See Appellant’s Brief at pgs. 23-28. He notes

with emphasis that this section states: “No State ad valorem taxes shall be levied

upon any property within this State.” Tex. Const. art. VIII, § 1–e (emphasis added).

The Texas Supreme Court would disagree with Mr. Avery’s point and

emphasis. It has held that “[a]n ad valorem tax is a state tax when it is imposed

5 “There is always a presumption of constitutional validity with regard to legislation and it

is especially strong in respect to statutes relating to taxation.” In re Nestle USA, Inc., 387 S.W.3d

610, 623 (Tex. 2012)(quoting Vinson v. Burgess, 773 S.W.2d 263, 266 (Tex. 1989)).


directly by the State or when the State so completely controls the levy, assessment

and disbursement of revenue, either directly or indirectly, that the [taxing] authority

employed is without meaningful discretion.” Carrollton–Farmers Branch Indep.

Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489, 502 (Tex. 1992)

[Edgewood III]; Morath v. Tex. Taxpayer & Student Fairness Coal., 490 S.W.3d

826, 881 (Tex. 2016)(emphasis added). That is not the case here. See also id. at 885.

Guadalupe County, Seguin Independent School District, and Lateral Roads are

political subdivisions. They are not the State and can therefore constitutionally levy

ad valorem taxes on Mr. Avery’s property.

Mr. Avery further contends the District did not show lawful authority, from a

lawful source, for the taxing units to impose an ad valorem tax. See Appellant’s Brief

at pg. 17. The District showed the trial court, and again here, that the Texas

Constitution and Tax Code are valid and clearly subject Mr. Avery’s real property

to ad valorem taxation. Therefore, all the District was further required to show was

the taxing units’ authority to assess, and the location and status of the subject

properties on January 1, 2015.


2. Guadalupe County, Seguin Independent School District, and

Lateral Roads all had the authority to levy an ad valorem tax on

Mr. Avery’s property for the 2015 tax year.

The Tax Code states that real property is taxable by a taxing unit if the real

property is located within the boundaries of the taxing unit on the first day of January

of the tax year. Tex. Tax Code Ann. § 21.01 (West, Westlaw through 2015 Reg.

Sess.). A taxing unit is defined as “a county, city, town, school district, a special

district or authority (including a junior college district, hospital district, district

created pursuant to the Water Code, a mosquito control district, fire prevention

district, noxious weed control district), or any other political unit of this state,

whether created by or pursuant to the constitution or a local, special, or general law,

that is authorized to impose and is imposing ad valorem taxes on property….” Tex.

Tax Code Ann. § 1.04(12) (West, Westlaw through 2015 Reg. Sess.).

The Texas Constitution allows counties to levy property taxes. Tex. Const.

art. VIII, §§ 1-a, 9. It also empowers the Legislature to enact laws for the assessment

and collection of property taxes by school districts. Tex. Const. art. VII, § 3(e); see

also Tex. Educ. Code Ann. § 11.152 (West, Westlaw through 2015 Reg. Sess.). The

Texas Constitution also allows the Legislature to authorize ad valorem taxes for the

maintenance of public roads. Tex. Const. art. VIII, § 9(c), (e). Therefore, Guadalupe

County, Seguin Independent School District, and Lateral Roads all have


constitutional authority to levy and collect ad valorem taxes on the real property

owned by Mr. Avery within their jurisdiction.

3. On January 1, 2015, the subject properties in this case were owned

by Mr. Avery, had situs in the relevant taxing units, and were not

otherwise exempt. Therefore, the trial court correctly granted

summary judgment in the District’s favor.

On January 1 of each year a tax lien attaches to property to secure payment of

all ad valorem taxes, penalties, and interest ultimately imposed for the year on that

property. Tex. Tax Code Ann. § 32.01(a) (West, Westlaw through 2015 Reg. Sess.).

A person is obligated to pay ad valorem taxes levied on property only if they own it

on January 1 of the tax year at issue. Tex. Tax Code Ann. § 32.07(a) (West, Westlaw

through 2015 Reg. Sess.).

Mr. Avery “admits there are no material fact issues related to the location of

his property.” See Appellant’s Brief at pg. 18; see also C.R. 408, ¶ 3.9.

The District also established in its summary judgment evidence that:

● the subject property consisted of real property that was physically

located at: 9301 FM 725, McQueeney, Guadalupe County, Texas, 78123 and at 2681

Tiemann Rd., Seguin, Guadalupe County, Texas, 78155 on January 1, 2015. C.R.

158, ¶¶ 28-31, 161, 164, 167.

● certified records and photographs show the subject property is real

property located in Guadalupe County, Texas. C.R. 161-226.


● Mr. Avery’s property was not exempt from taxation and within the

boundaries and taxing jurisdiction of Guadalupe County, Seguin ISD, and Lateral

Roads on January 1, 2015. C.R. 158, ¶¶ 32-36.

● certified copies from the Guadalupe County Clerk of deeds shows that

Mr. Ronald F. Avery is the owner of two tracts that are “5.34 acres of land more or

less” in the “Moses Baker Survey, Abstract #4, Guadalupe County, Texas.” C.R.

228-234. These two tracts are 3.74 acres and 1.6 acres, are known to the District as

accounts 50610 and 50612. C.R. 161, 164, 170-172, 175-177, 189, 196, 273 RFAR

3 – 275 RFAR 13.

● certified copies from the Guadalupe County Clerk of deeds show that

Ronald F. Avery and Cynthia G. Avery, as Trustees for the Ronald F. Avery and

Cynthia G. Avery Revocable Living Trust is the owner of a tract that is “2.658 acres

of land out of the John Sowell Survey, Guadalupe County, Texas.” C.R. 236-238.

This tract is known to the District as account 59576. C.R. 167, 180-182, 203.

● certified copies of account summaries for account numbers 50610,

50612, and 59576, from the Guadalupe Tax-Assessor-Collector for the 2015 tax

year. These list Mr. Avery as the owner of the subject property, the location of the

subject property in Guadalupe County, the legal description of the property, the

taxing units and their tax levy going back several years. C.R. 240-242, 244-246, 248-


250. They also establish that these properties are not exempt from taxation, and are

within the boundaries and taxing jurisdiction of Guadalupe County, Seguin ISD, and

Lateral Roads. C.R. 240-242, 244-246, 248-250.

● copies of deeds for the subject property that Mr. Avery produced in

discovery. C.R. 256-270. These also establish that the subject property is in the

Moses Baker Survey, Abstract #4, Guadalupe County, Texas and in the John Sowell

Survey, Guadalupe County, Texas. C.R. 256-270.

Based on the District’s summary judgment evidence, the subject property

meets the essential requirements of situs in the taxing units of Guadalupe County,

Seguin Independent School District, and Lateral Roads on January 1, 2015.

Mr. Avery’s arguments are not unique. Over the years, other property owners

have made similar claims regarding the unconstitutionality of their ad valorem taxes,

and took these matters to Court during some phase of the assessment or collections

process. See Townsend v. Montgomery Cent. Appraisal Dist., No. 14–14–00103–

CV, 2015 WL 971313, at *7, *8 (Tex. App.—Houston [14th Dist.] Mar. 3, 2015, no

pet.); Haley v. Harris Cty., No. 14–11–01051–CV, 2012 WL4955257, at *3 (Tex.

App.—Houston [14th Dist.] Oct. 18, 2012, no pet.) (mem. op); Fisher v. Cty. of

Williamson, No. 03-05-00584-CV, 2006 WL 1649262, at *2, *3 (Tex. App.—

Austin June 15, 2006, no pet.) (mem. op.). These cases all cite to authority the


District has presented that ad valorem taxation is constitutional and address the proof

required of taxing units to assess that tax, which the District here has more than done.

The District refers the Court to, and relies upon, these cases to the extent they are

relevant and instructive in resolving this matter.

Considering the law and evidence before it, the trial court correctly granted

the District’s traditional motion for summary judgment making Mr. Avery’s

property subject to ad valorem taxation in Guadalupe County by the relevant taxing

units for the 2015 tax year as a matter of law.

4. Mr. Avery bore the burden of proof and did not bring sufficient

evidence on that he was exempt from taxation.

Although it had evidence in its traditional motion for summary judgment, that

Mr. Avery’s property was not exempt, the District, as a belt-and-suspender

approach, additionally sought a no-evidence summary judgment on the question of

whether the real property was exempt from taxation.

The person claiming an exemption bears the burden of proof. Seguin v. Bexar

Appraisal Dist., 373 S.W.3d 699, 705 (Tex. App.—San Antonio 2012, pet.

denied)(citing N. Alamo Water Supply Corp. v. Willacy Cty. Appraisal Dist., 804

S.W.2d 894, 899 (Tex. 1991)). It is an appropriate question to resolve through a no-

evidence motion for summary judgment.


Mr. Avery did provide evidence from his Board hearing, but he did not

provide more than a mere scintilla of evidence to the trial court that his property was

entitled to, or that he was wrongfully denied, an exemption for the 2015 tax year.

Therefore, the trial court also properly granted a no-evidence summary judgment to

the District on this issue, even though it was not ultimately necessary to finally

resolve this case.

VI. CONCLUSION & PRAYER

Mr. Avery filed his original petition on December 14, 2015. This was well

after the 60-day deadline to do so after he received notice of the Board’s Final Orders

on three issues he complains of. Pursuant to Tax Code § 42.21(a), the pleadings, and

evidence submitted, the trial court correctly determined it lacked jurisdiction to hear

those three issues of: 1) excessive appraisal; 2) unequal appraisal; and 3) the property

should not be taxed based on the Texas Constitution, including Article VIII, §§ 1(a),

1-e, and other laws in granting the District’s Partial Motion to Dismiss.

Further, Mr. Avery’s claims that there is no authority making his three

properties subject to ad valorem taxation. The District has shown that pursuant to

the Texas Constitution and the Texas Tax Code, all real property located in this state

is subject to appraisal and ad valorem taxation, unless it is otherwise exempt by law.

Guadalupe County, Seguin Independent School District, and Lateral Roads all have


the constitutional authority to levy and collect ad valorem taxes on property located

in their jurisdiction. The District presented ample proof and authority establishing

that Mr. Avery owned the three properties at issue, they were located in Guadalupe

County, Texas, had situs in the taxing units at issue, and that they were not exempt

from taxation on January 1, 2015. Thus, the trial court correctly granted the summary

judgment in the District’s favor.

Alternatively Mr. Avery did not present sufficient evidence to support his

claims that his property was entitled to or wrongfully denied and exemption, making

it totally exempt. Accordingly, the trial court also correctly granted the District’s no-

evidence summary judgment motions.

The trial court’s decisions should be affirmed.


Respectfully submitted,

/s/ Christopher S. Jackson



[email protected]

PERDUE, BRANDON, FIELDER,

COLLINS & MOTT, L.L.P.

3301 Northland Dr., Ste. 505

Austin, Texas 78731

Telephone: (512) 302-0190

Facsimile: (512) 323-6963

ATTORNEY FOR APPELLEE,

GUADALUPE APPRAISAL

DISTRICT

mailto:[email protected]


CERTIFICATE OF COMPLIANCE

1. As required by Texas Rule of Appellate Procedure 9.4(i)(3), this document

complies with the 15,000-word type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i)(2)(B) because it contains 6,320 words total,

excluding the parts of the document exempted by Texas Rules of Appellate

Procedure 9.4(i)(1).

2. This document also complies with the type-face requirements of Texas Rule

of Appellate Procedure 9.4(e) because it has been prepared in a proportionally

spaced type-face using Microsoft Word 2016 in fourteen (14) point “Times

New Roman” style font and twelve (12) point “Times New Roman” style font

for footnotes.




CERTIFICATE OF SERVICE

This is to certify that pursuant to Tex. R. App. P. 6.3, 9.5, Tex. R. Civ. P. 21

and 21a, on the 12th day of January 2017, a true and correct copy of the foregoing

Appellee’s Brief, was served upon Appellant pro se, via e-service and via e-mail on

the same date.

Mr. Ronald F. Avery

1933 Montclair Drive

Seguin, Texas 78155




Attorney for Appellee,

Guadalupe Appraisal District

mailto:[email protected]

§ 42.21. Petition for Review, TX TAX § 42.21

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon’s Texas Statutes and Codes Annotated

Tax Code (Refs & Annos)

Title 1. Property Tax Code

Subtitle F. Remedies

Chapter 42. Judicial Review (Refs & Annos)

Subchapter B. Review by District Court

V.T.C.A., Tax Code § 42.21

§ 42.21. Petition for Review

Effective: September 1, 2013

Currentness

(a) A party who appeals as provided by this chapter must file a petition for review with

the district court within 60 days after the party received notice that a final order has been

entered from which an appeal may be had or at any time after the hearing but before the

60-day deadline. Failure to timely file a petition bars any appeal under this chapter.

(b) A petition for review brought under Section 42.02 must be brought against the owner

of the property involved in the appeal. A petition for review brought under Section

42.031 must be brought against the appraisal district and against the owner of the

property involved in the appeal. A petition for review brought under Section 42.01(a)(2)

or 42.03 must be brought against the comptroller. Any other petition for review under this

chapter must be brought against the appraisal district. A petition for review may not be

brought against the appraisal review board. An appraisal district may hire an attorney that

represents the district to represent the appraisal review board established for the district to

file an answer and obtain a dismissal of a suit filed against the appraisal review board in

violation of this subsection.

TAB A

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(c) If an appeal under this chapter is pending when the appraisal review board issues an

order in a subsequent year under a protest by the same property owner and that protest

relates to the same property that is involved in the pending appeal, the property owner

may appeal the subsequent appraisal review board order by amending the original

petition for the pending appeal to include the grounds for appealing the subsequent order.

The amended petition must be filed with the court in the period provided by Subsection

(a) for filing a petition for review of the subsequent order. A property owner may appeal

the subsequent appraisal review board order under this subsection or may appeal the

order independently of the pending appeal as otherwise provided by this section, but may

not do both. A property owner may change the election of remedies provided by this

subsection at any time before the end of the period provided by Subsection (a) for filing a

petition for review.

(d) An appraisal district is served by service on the chief appraiser at any time or by

service on any other officer or employee of the appraisal district present at the appraisal

office at a time when the appraisal office is open for business with the public. An

appraisal review board is served by service on the chairman of the appraisal review

board. Citation of a party is issued and served in the manner provided by law for civil

suits generally.

(e) A petition that is timely filed under Subsection (a) or amended under Subsection (c)

may be subsequently amended to:

(1) correct or change the name of a party; or

(2) not later than the 120th day before the date of trial, identify or describe the property

originally involved in the appeal.

(f) A petition filed by an owner or lessee of property may include multiple properties that

are owned or leased by the same person and are of a similar type or are part of the same



economic unit and would typically sell as a single property. If a petition is filed by

multiple plaintiffs or includes multiple properties that are not of a similar type, are not

part of the same economic unit, or are part of the same economic unit but would not

typically sell as a single property, the court may on motion and a showing of good cause

sever the plaintiffs or the properties.

(g) A petition filed by an owner or lessee of property may be amended to include

additional properties in the same county that are owned or leased by the same person, are

of a similar type as the property originally involved in the appeal or are part of the same

economic unit as the property originally involved in the appeal and would typically sell

as a single property, and are the subject of an appraisal review board order issued in the

same year as the order that is the subject of the original appeal. The amendment must be

filed within the period during which a petition for review of the appraisal review board

order pertaining to the additional properties would be required to be filed under

Subsection (a).

(h) The court has jurisdiction over an appeal under this chapter brought on behalf of a

property owner or lessee and the owner or lessee is considered to have exhausted the

owner’s or lessee’s administrative remedies regardless of whether the petition correctly

identifies the plaintiff as the owner or lessee of the property or correctly describes the

property so long as the property was the subject of an appraisal review board order, the

petition was filed within the period required by Subsection (a), and the petition provides

sufficient information to identify the property that is the subject of the petition. Whether

the plaintiff is the proper party to bring the petition or whether the property needs to be

further identified or described must be addressed by means of a special exception and

correction of the petition by amendment as authorized by Subsection (e) and may not be

the subject of a plea to the jurisdiction or a claim that the plaintiff has failed to exhaust

the plaintiff’s administrative remedies. If the petition is amended to add a plaintiff, the

court on motion shall enter a docket control order to provide proper deadlines in response

to the addition of the plaintiff.



Credits

Acts 1979, 66th Leg., p. 2311, ch. 841, § 1, eff. Jan. 1, 1982. Amended by Acts 1983,

68th Leg., p. 5344, ch. 981, § 1, eff. Aug. 29, 1983; Acts 1985, 69th Leg., ch. 760, § 1,

eff. Aug. 26, 1985; Acts 1989, 71st Leg., ch. 796, § 44, eff. June 15, 1989; Acts 1991,

72nd Leg., 2nd C.S., ch. 6, § 54, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 1113, § 1,

eff. June 18, 1999; Acts 2009, 81st Leg., ch. 905, § 1, eff. June 19, 2009; Acts 2011,

82nd Leg., ch. 771 (H.B. 1887), § 15, eff. Sept. 1, 2011; Acts 2013, 83rd Leg., ch. 161

(S.B. 1093), § 19.006, eff. Sept. 1, 2013; Acts 2013, 83rd Leg., ch. 1259 (H.B. 585), §

25, eff. June 14, 2013.

Notes of Decisions (83)

V. T. C. A., Tax Code § 42.21, TX TAX § 42.21

Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document

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§ 3. Taxes for benefit of schools; school districts, TX CONST Art. 7, § 3



Constitution of the State of Texas 1876 (Refs & Annos)

Article VII. Education

the Public Free Schools

Vernon’s Ann.Texas Const. Art. 7, § 3

§ 3. Taxes for benefit of schools; school districts

Currentness

Sec. 3. (a) One-fourth of the revenue derived from the State occupation taxes shall be set

apart annually for the benefit of the public free schools.

(b) It shall be the duty of the State Board of Education to set aside a sufficient amount of

available funds to provide free text books for the use of children attending the public free

schools of this State.

(c) Should the taxation herein named be insufficient the deficit may be met by

appropriation from the general funds of the State.

(d) The Legislature may provide for the formation of school districts by general laws, and

all such school districts may embrace parts of two or more counties.

TAB B

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§ 3. Taxes for benefit of schools; school districts, TX CONST Art. 7, § 3


(e) The Legislature shall be authorized to pass laws for the assessment and collection of

taxes in all school districts and for the management and control of the public school or

schools of such districts, whether such districts are composed of territory wholly within a

county or in parts of two or more counties, and the Legislature may authorize an

additional ad valorem tax to be levied and collected within all school districts for the

further maintenance of public free schools, and for the erection and equipment of school

buildings therein; provided that a majority of the qualified voters of the district voting at

an election to be held for that purpose, shall approve the tax.

Credits

Amended Aug. 14, 1883, proclamation Sept. 25, 1883; Nov. 3, 1908, proclamation Feb.

2, 1909; Aug. 3, 1909, proclamation Sept. 24, 1909; Nov. 5, 1918; Nov. 2, 1920; Nov. 2,

1926, proclamation Jan. 20, 1927; Nov. 2, 1999.

Vernon’s Ann. Texas Const. Art. 7, § 3, TX CONST Art. 7, § 3


End of Document

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

§ 1. Equality and uniformity; tax in proportion to value;..., TX CONST Art. 8, § 1


KeyCite Yellow Flag - Negative Treatment

Proposed Legislation



Article VIII. Taxation and Revenue


§ 1. Equality and uniformity; tax in proportion to value; income tax; exemption of certain tangible personal property from ad valorem taxation

Effective: December 1, 2009

Currentness

Sec. 1. (a) Taxation shall be equal and uniform.

(b) All real property and tangible personal property in this State, unless exempt as required

or permitted by this Constitution, whether owned by natural persons or corporations, other

than municipal, shall be taxed in proportion to its value, which shall be ascertained as may

be provided by law.

TAB C


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Vernon’s Ann.Texas Const. Art. 8, § 1-a

§ 1-a. No State ad valorem tax levy; county levy for roads and flood control; tax donations

Effective: November 26, 2001

Currentness

Sec. 1-a. The several counties of the State are authorized to levy ad valorem taxes upon all

property within their respective boundaries for county purposes, except the first Three

Thousand Dollars ($3,000) value of residential homesteads of married or unmarried adults,

including those living alone, not to exceed thirty cents (30¢) on each One Hundred Dollars

($100) valuation, in addition to all other ad valorem taxes authorized by the Constitution

of this State, provided the revenue derived therefrom shall be used for construction and

maintenance of Farm to Market Roads or for Flood Control, except as herein otherwise

provided.

Credits

Adopted Nov. 8, 1932. Amended Aug. 26, 1933; Nov. 2, 1948; Nov. 6, 1973; Nov. 2, 1999;

Nov. 6, 2001, eff. Nov. 26, 2001.

Vernon’s Ann. Texas Const. Art. 8, § 1-a, TX CONST Art. 8, § 1-a


End of Document

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U.S. Government Works.

TAB D





§ 11. Place of assessment; value of property not rendered..., TX CONST Art. 8, § 11






Vernon’s Ann.Texas Const. Art. 8, § 1-e

§ 1-e. Abolition of ad valorem property taxes

Effective: November 26, 2001

Currentness

Sec. 1-e. No State ad valorem taxes shall be levied upon any property within this State.

Credits

Adopted Nov. 5, 1968. Amended Nov. 2, 1982; Nov. 6, 2001, eff. Nov. 26, 2001.

Vernon’s Ann. Texas Const. Art. 8, § 1-e, TX CONST Art. 8, § 1-e


End of Document



TAB E










§ 9. Maximum State tax; county, city and town levies; county funds; local road laws

Currentness

Sec. 9. (a) No county, city or town shall levy a tax rate in excess of Eighty Cents (80¢) on

the One Hundred Dollars ($100) valuation in any one (1) year for general fund, permanent

improvement fund, road and bridge fund and jury fund purposes.

(b) At the time the Commissioners Court meets to levy the annual tax rate for each county

it shall levy whatever tax rate may be needed for the four (4) constitutional purposes;

namely, general fund, permanent improvement fund, road and bridge fund and jury fund

so long as the Court does not impair any outstanding bonds or other obligations and so long

as the total of the foregoing tax levies does not exceed Eighty Cents (80¢) on the One

Hundred Dollars ($100) valuation in any one (1) year. Once the Court has levied the annual

tax rate, the same shall remain in force and effect during that taxable year.

(c) The Legislature may authorize an additional annual ad valorem tax to be levied and

collected for the further maintenance of the public roads; provided, that a majority of the

qualified voters of the county voting at an election to be held for that purpose shall approve

the tax, not to exceed Fifteen Cents (15¢) on the One Hundred Dollars ($100) valuation of

the property subject to taxation in such county.

TAB F






(d) Any county may put all tax money collected by the county into one general fund,

without regard to the purpose or source of each tax.

(e) The Legislature may pass local laws for the maintenance of the public roads and

highways, without the local notice required for special or local laws.

(f) This Section shall not be construed as a limitation of powers delegated to counties, cities

or towns by any other Section or Sections of this Constitution.

Credits

Amended Aug. 14, 1883, proclamation Sept. 25, 1883; Nov. 4, 1890, proclamation Dec.

19, 1890; Nov. 6, 1906, proclamation Jan. 7, 1907; Nov. 7, 1944; Nov. 6, 1956; Nov. 11,

1967; Nov. 2, 1999.



End of Document



§ 11. Place of assessment; value of property not rendered..., TX CONST Art. 8, § 11






§ 11. Place of assessment; value of property not rendered by owner

Currentness

Sec. 11. All property, whether owned by persons or corporations shall be assessed for

taxation, and the taxes paid in the county where situated, but the Legislature may, by a two-

thirds vote, authorize the payment of taxes of non-residents of counties to be made at the

office of the Comptroller of Public Accounts. And all lands and other property not rendered

for taxation by the owner thereof shall be assessed at its fair value by the proper officer.

Editors’ Notes



End of Document



TAB G





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