Eldridge Moak, Administrator of the Estate of Walter Earl Bailey v. County of Cherokee

• Court: Court of Appeals of Texas
• Decided: May 21, 2003
• Docket: 12-01-00322-CV
• Status: Published

Opinion

NO. 12-01-00322-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ELDRIDGE MOAK, ADMINISTRATOR

§ APPEAL FROM THE SECOND

of the ESTATE of WALTER E. BAILEY and

as CO-ADMINISTRATOR of the ESTATE of

ALIBE CARTER BAILEY, in rem only,

WILLIAM E. BAILEY, individually and as

CO-ADMINISTRATOR of the ESTATE of

ALIBE CARTER BAILEY, in rem only, and

ROBERT E. BAILEY, individually and as

ALIBE CARTER BAILEY, in rem only,

§ JUDICIAL DISTRICT COURT OF

APPELLANTS

V.

COUNTY OF CHEROKEE, CITY OF

JACKSONVILLE, and CHEROKEE

COUNTY APPRAISAL DISTRICT,

APPELLEES

§ CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

This is a suit for the collection of delinquent ad valorem taxes and for foreclosure of tax liens on real property owned by the estate of Walter E. Bailey, deceased. Appellants are Eldridge Moak, administrator of that estate and co-administrator of the estate of Alibe Carter Bailey, and the heirs, William E. Bailey and Robert E. Bailey, both individually and as co-administrators of the estate of Alibe Carter Bailey. The trial court granted a motion for summary judgment in favor of Appellees, Cherokee County, the City of Jacksonville, and the Cherokee County Appraisal District, awarding those taxing authorities a total of $512,806.87. The court also ordered foreclosure of the liens on twenty-five of the twenty-eight tracts of land involved. Appellants assert four issues. We affirm the trial court's judgment.

Background

In 1973, Walter E. Bailey died intestate in Cherokee County. His widow, Alibe Carter Bailey, began probate proceedings in the probate court in Cherokee County and was named as administratrix of the estate. At the time of his death, Walter E. Bailey owned real property in several counties including Cherokee County. The estate has not paid all ad valorem taxes assessed during the pendency of the estate. Alibe Carter Bailey died in 1992. Eventually, Eldridge Moak was named administrator of the Walter E. Bailey estate and co-administrator of the estate of Alibe Carter Bailey.

In 1987, the taxing authorities, Appellees in the case presently before us, filed suit against Alibe Carter Bailey, William E. Bailey, and Robert E. Bailey in the Cherokee County District Court. In 1993, that case was heard by the Texas Supreme Court and reported as Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581 (Tex. 1993) (op. on reh'g). That court held that the taxing authorities' suit should have been filed in the probate court in which the administration was pending, the Cherokee County Court at Law. Id. at 585. Thereafter, the taxing authorities filed their suit in the Cherokee County Court at Law. On August 13, 1997, the probate court entered an "Order Establishing Procedures for Escrow of Taxes Involving Sales of Real Estate" in the probate proceeding. The order was agreed upon by the taxing authorities and the administrator of the estate. Pursuant to the order, the taxing authorities agreed to relinquish liens on the property in favor of substituted liens on the sales proceeds of any sale of estate-owned real property that might be sold by order of the probate court.

In 1999, the taxing authorities moved to abate their suit in probate court to pursue it in district court. Thereafter, on November 15, 1999, pursuant to Texas Tax Code Section 33.41, Cherokee County filed this suit in a Cherokee County district court. It later amended its pleadings, naming as defendants Eldridge Moak, administrator of the estate of Walter E. Bailey and co-administrator of the estate of Alibe Carter Bailey, in rem only, William E. Bailey, individually and as co-administrator of the estate of Alibe Carter Bailey, in rem only, and Robert E. Bailey, individually and as co-administrator of the estate of Alibe Carter Bailey, in rem only, to recover delinquent taxes and accrued penalties and interest on twenty-six tracts of land. The City of Jacksonville and the Cherokee County Appraisal District intervened in the suit, seeking to recover delinquent taxes owed by the Walter E. Bailey estate.

Appellants filed a special appearance, plea in abatement, and motion for sanctions against Appellees. All were denied by the trial court. Appellees filed a motion for summary judgment accompanied by forty-four exhibits asserting entitlement to summary judgment as a matter of law. Appellants filed a response, supported by numerous documents, asserting the trial court lacked jurisdiction, Appellees' claims were barred by limitations, and that five affidavits relied upon by Appellees should be stricken. Appellees filed objections to portions of Appellants' summary judgment evidence, most of which were sustained by the trial court. The trial court granted the taxing authorities' motion for summary judgment, awarding them a total of over $500,000 and ordering foreclosure of the liens on the property.

Jurisdiction

In their first issue, Appellants contend the trial court lacked jurisdiction over this suit because the claims for delinquent ad valorem taxes were claims against the estate of Walter E. Bailey over which the Cherokee County Court at Law sitting in probate had exclusive jurisdiction. They would have us apply certain provisions of the Probate Code and the supreme court's holding in Bailey v. Cherokee County Appraisal District to reach this conclusion. They further argue that Appellants are estopped from asserting that the probate court does not have jurisdiction because they agreed to be bound by that court's August 13, 1997 "Order Establishing Procedures for Escrow of Taxes Involving Sales of Real Estate."

In 1999, the legislature added Section 5C to the Probate Code. It specifically applies to a decedent's estate that is being administered in a pending probate proceeding, claims an interest in property against which a taxing unit has imposed ad valorem taxes that are delinquent, and is not being administered as an independent administration. Tex. Prob. Code Ann. § 5C (Vernon 2003). The Walter E. Bailey estate meets those requirements and therefore Section 5C applies. That section provides that if the probate proceedings have been pending for four years or less, the taxing unit may present a claim for the delinquent taxes in the probate proceedings. Id. at § 5C(c). In that situation, the taxing unit must present its claim as required by Parts 4 and 5 of Chapter VIII of the Probate Code. Id. at § 5C(d).

On the other hand, if the probate proceeding has been pending for more than four years in the county in which the taxes were imposed, and the taxing unit did not present a claim under Section 5C(c), the taxing unit must bring suit under Section 33.41 of the Tax Code. Id. at § 5C(e). Section 33.41 provides that suit must be brought in a court of competent jurisdiction for the county in which the tax was imposed. Tex. Tax Code Ann. § 33.41 (Vernon 2001). The Texas Constitution provides that, unless exclusive, appellate, or original jurisdiction is conferred on another court, the district court has jurisdiction. Tex. Const. art. V, § 8. Accordingly, delinquent tax suits are ordinarily to be brought in district courts. Tex. Tax Code Ann. § 33.41; Shenandoah v. Jimmy Swaggart Evangelistic Ass'n, 785 S.W.2d 899, 904 (Tex. App.-Beaumont 1990, writ denied). Therefore, although Section 5A of the Probate Code includes enforcement of liens on land among those enumerated matters to be heard in statutory county courts at law when incident to an estate, new Section 5C(e) provides an exception to that general rule. Tex. Prob. Code Ann. § 5C(e).

We acknowledge that the supreme court in Bailey v. Cherokee County Appraisal District held that a suit to collect ad valorem taxes accruing on estate property should be filed in the probate court in which the administration is pending. Bailey, 862 S.W.2d at 585. However, the law regarding jurisdiction set out in that 1993 case has been superseded by the Probate Code's new Section 5C. That section became effective September 1, 1999 and applies to all cases pending on that date or brought after that date. Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 52, 1999 Tex. Gen. Laws 5097, 5115; Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 167 (Tex. App.-Tyler 2000, pet. denied) (op. on reh'g).

Finally, we do not agree that, because Appellees agreed to be bound by the probate court's escrow order, they are estopped from asserting that the Cherokee County Court at Law does not presently have jurisdiction. Even assuming the probate court had jurisdiction over these taxing authorities at the time the order was entered, as we have explained above, the 1999 amendments to the Probate Code divested the probate court of jurisdiction. See Tex. Prob. Code Ann. § 5C. Accordingly, we overrule Appellants' first issue.

Personal Liability

In their second issue, William E. Bailey and Robert E. Bailey assert they were never proper parties to this lawsuit in their individual capacities and cannot be personally liable for any of Appellees' claims. They further assert that suit against them and Eldridge Moak in their capacity as co-executors of the estate of Alibe C. Bailey is objectionable because all of the claims against Mrs. Bailey's estate are in reality claims against the estate of Walter E. Bailey. They contend the trial court should have granted their motion for sanctions which was filed pursuant to Rule 13 of the Texas Rules of Civil Procedure and based on these arguments.

We note the record does not include an order ruling on Appellants' motion for sanctions. Therefore, that issue has not been preserved for review. See Tex. R. App. P. 33.1. Further, the Appellees' petitions assert claims against Appellants "in rem only" and do not seek to hold any of the Appellants personally liable. Tax liens attach upon the land rather than upon the person, and a foreclosure suit is a proceeding "in rem" rather than "in personam." Phifer, 45 S.W.2d at 168. Moreover, the trial court's judgment specifically allows recovery from Eldridge Moak, in his capacity as administrator of the estate of Walter E. Bailey. The judgment further states that Appellees are to recover "judgment for all costs of suit and sale now or hereafter incurred, provided, however, that no personal money judgment for any amount is granted against any Defendant named herein other than the estate of Walter E. Bailey." Accordingly, we overrule Appellants' second issue as moot.

Summary Judgment

In their third issue, Appellants assert the trial court erred in granting Appellees' motion for summary judgment because they failed to show entitlement to judgment as a matter of law. Appellants argue that Appellees' assertion of claims for delinquent taxes in the earlier district court case constituted presentment of claims against the estate as contemplated by the Probate Code. Therefore, Appellees, who Appellants contend were required to comply with Probate Code Section 313, failed to comply, thereby triggering the limitations bar. Appellants further argue that Appellees' failure to bring suit within sixty days of the supreme court's October 27, 1993 mandate resulted in a limitations bar pursuant to Texas Civil Practice and Remedies Code Section 16.064(a). Appellants also assert that Appellees' claims for tax years 1975 to 1978 are barred by the twenty-year statute of limitations under Property Tax Code Section 33.05. Therefore, the argument continues, the judgment erroneously awards Appellees a total of $4,723.22 for taxes assessed in those years. Appellants also contend the trial court erred in not striking the affidavits of J. L. Flowers, Linda Beard, Linda Pittillo, and Sid Danner. Finally, Appellants argue that the trial court erred in striking portions of their summary judgment evidence.

Applicable Law

To obtain a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. at 549.

A plaintiff, as movant, must conclusively prove all essential elements of his claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam). Once a movant has established the right to a summary judgment on the issues presented, the non-movant has the burden of introducing evidence that raises issues of fact. Mott v. Montgomery County, 882 S.W.2d 635, 640 (Tex. App.- Beaumont 1994, writ denied). A party who opposes a motion for summary judgment on the basis of an affirmative defense must raise a fact issue on that defense. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974) (op. on reh'g). The non-movant's evidence must be of probative force. Mott, 882 S.W.2d at 640.

Section 33.47 of the Tax Code provides that the delinquent tax roll constitutes prima facie evidence that all requirements of law relating to the imposition of the tax have been complied with. See Tex. Tax Code Ann. § 33.47(a) (Vernon 2001). With that evidence, and in the absence of any summary judgment proof to the contrary, the taxing authorities will have discharged their burden of establishing as a matter of law that there was no genuine issue of fact upon any essential element of their causes of action for the taxes due. Beets v. Malakoff Indep. Sch. Dist., 589 S.W.2d 188, 189 (Tex. Civ. App.-Tyler 1979, writ ref'd n.r.e.).

Appellees' Motion and Supporting Evidence

On March 1, 2001, the taxing authorities filed their motion for summary judgment asserting entitlement to judgment as a matter of law on their claims for delinquent taxes. Their motion, which was accompanied by forty-four exhibits, also thoroughly addressed each of the affirmative defenses raised by Appellants in their special appearance and plea in abatement. In support of their claims for delinquent taxes Appellees presented three affidavits with attachments showing the taxes owed. J. L. Flowers, Chief Appraiser of Cherokee County and Tax Assessor-Collector for Jacksonville Independent School District and Cherokee County Education District, certified to the accuracy of the attached copies of entries of delinquent tax records showing taxes imposed on estate property by the school district and education district, together with penalties and interest, for the years 1981 to 2001. The total due to the Appraisal District as of March 2001 was $308,950.22.

Linda Beard, Tax Assessor-Collector for Cherokee County, certified that attached documents were accurate copies of entries from the delinquent tax records showing taxes imposed on estate property by the county, together with penalties and interest, for the years 1975 to 1999. The total due to Cherokee County as of March 2001 was $110,813.50.

The tax collector for the city of Jacksonville, Linda Pittillo, certified that attached documents were correct reproductions of the entries on the city's delinquent tax rolls showing taxes, penalties and interest due on estate property for the years 1985 to 2000. The total due to the city of Jacksonville as of March 2001 was $94,668.41.

The Affidavits

Appellants contend that the trial court erred in not striking affidavits relied upon by Appellees in support of their motion for summary judgment. They complain that J. L. Flowers, chief appraiser for Cherokee County, incorrectly stated that his office had no record of an authenticated claim against the estate of Walter E. Bailey dated earlier than July 14, 1994. They complain that Linda Beard, tax-assessor-collector for Cherokee County, incorrectly stated that her office had no record of any authenticated claim against the estate dated earlier than August 18, 1994. They also assert that she failed to identify several claims made against the estate prior to that date. Appellants make the same argument with regard to the affidavit of Linda Pittillo, tax collector-assessor for the City of Jacksonville. Appellants further claim that the affidavit of Sid Danner, former chief appraiser of Cherokee County and tax collector for the Jacksonville Independent School District, should be stricken because of alleged discrepancies between his affidavit and his testimony at an April 4, 2002

hearing regarding dates of claim presentment and because it allegedly incorrectly identifies the first claim he presented to the estate. Finally, Appellants assert that these affidavits create conflicting statements regarding dates claims were presented, thereby creating a fact issue precluding summary judgment.

No trial court ruling on Appellants' objections to the affidavits appears in the record. In the absence of a trial court ruling holding the affidavits inadmissible, we may properly consider them. See Sem v. State, 821 S.W.2d 411, 414 (Tex. App.-Fort Worth 1991, no writ). Further, this complaint is immaterial because the Probate Code's presentment requirements do not apply here. Effective September 1, 1999, provisions of the Probate Code relative to the presentment of claims do not apply to a claim for delinquent ad valorem taxes against a decedent's estate that is being administered in probate in the same county in which the taxes were imposed, if the probate proceedings have been pending for more than four years. Tex. Prob. Code Ann. § 317(c)(3)(B) (Vernon 2003). Amended Section 317(c)(3) is specifically made applicable to the estates of all decedents regardless of the date of death and to all causes of action pending on September 1, 1999, or brought after that date. Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 52, 1999 Tex. Gen. Laws 5097, 5115. Accordingly, Appellants' argument that Appellees' summary judgment evidence failed to show compliance with the Probate Code's presentment requirements and thereby dooming their case to a limitations bar simply misses the mark. Appellants have not attacked the veracity of the pertinent portions of the affidavits or the attached delinquent tax rolls or raised any relevant objections. Therefore, we consider the evidence presented by the taxing authorities.

Matter of Law

Through their summary judgment proof, the taxing authorities have met their burden to show that the taxes were properly imposed, due, and owing. See Tex. Tax Code Ann. § 33.47; Beets, 589 S.W.2d at 189. Accordingly, they proved all essential elements of their claim, showing there is no issue of material fact and that they are entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The burden then shifted to Appellants to present summary judgment evidence raising an issue of fact. Mott, 882 S.W.2d at 640.

Appellants' Response

Appellants filed a response asserting that five affidavits should be stricken, the trial court lacks jurisdiction, Appellees are estopped from asserting their claims in the district court, Appellees' claims are barred by limitations pursuant to the Probate Code, and, generally, there are issues of fact precluding summary judgment. The response was accompanied by sixteen exhibits including the affidavit and deposition testimony of William E. Bailey and copies of several documents that had been filed in the probate court proceeding.

Appellants' Summary Judgment Evidence

The taxing authorities filed objections to portions of Appellants' summary judgment evidence. The trial court sustained most of the objections. Appellants now complain that this was error. The sustained objections covered fifteen paragraphs in William E. Bailey's March 23, 2001 affidavit, three lines in his July 15, 1997 deposition, and one document that had been filed in the probate court on December 28, 1993. The topics of these items fall into three categories: whether the taxing authorities claims are barred by limitations under the Probate Code, whether Alibe C. Bailey received tax bills or notices of delinquent taxes, and whether Alibe C. Bailey had a chance to file protests on valuations of the property at issue.

As we explained above, the provisions of the Probate Code that address limitations are not applicable to this case. Therefore, the trial court did not err in striking those immaterial portions of Appellants' summary judgment evidence. Tex. R. Civ. P. 166a(c). As to the other two categories, we find no argument in the body of the response discussing the effect, impact, or importance of the statements made about those topics. We do not consider on appeal grounds not raised in the trial court in opposition to a summary judgment motion. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex. 1979). By written answer or response to the motion, the nonmovant must fairly apprise the movant and the trial court of the issues the nonmovant contends should defeat the motion for summary judgment. Id. at 678. As these grounds were not urged in the trial court, the trial court did not err in striking portions of Appellants' evidence addressing these grounds.

Twenty-Year Limitation Period

Finally, Appellants assert under their third issue that the taxing authorities' claims for taxes for years prior to 1978 are barred by the Tax Code's twenty-year limitation period. See Tex. Tax Code Ann. § 33.05(a)(2) (Vernon 2001). While we are unable to locate in the record any indication this issue was brought to the trial court's attention, we shall address it.

The County presented evidence of unpaid taxes beginning in 1975 and the Appraisal District presented evidence of unpaid taxes beginning in 1976. The parties agree the delinquency date for one year's taxes was February 1 of the following year. Therefore, applying the twenty-year limitations period, the County had until February 1, 1996 to bring suit for the unpaid 1975 taxes and the Appraisal District had until February 1, 1997 to bring suit for the unpaid 1976 taxes. The County filed its suit on rejected claims in the probate court on November 17, 1994. The Appraisal District filed its suit on rejected claims in the probate court on February 6, 1995. Those suits, which were brought within the twenty-year period, were abated by order dated November 10, 1999. The probate court abated the suits so the question of jurisdiction could be resolved. The County filed this suit in the district court on November 15, 1999 and the Appraisal District intervened on December 15, 1999.

As explained above, the probate court was divested of jurisdiction over this case by new Section 5C of the Probate Code. See Tex. Prob. Code Ann.§ 5C(e). Pursuant to that amendment, the district court had jurisdiction over the taxing authorities' claims against the estate. The savings provision of Texas Civil Practice and Remedies Code Section 16.064 is applicable here. That section provides that the period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the statute of limitations for the period if the first court dismisses the action for want of jurisdiction and the action is commenced in the court of proper jurisdiction within sixty days after that dismissal. Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (Vernon 1997). These tolling provisions are remedial in nature and are to be liberally construed. Vale v. Ryan, 809 S.W.2d 324, 326 (Tex. App.-Austin 1991, no writ). Although the probate court apparently had jurisdiction at the time the taxing authorities filed suit there, its jurisdiction terminated after the 1999 amendment became effective. See Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 574 (Tex. App.-Texarkana 1997, no writ) (Savings provision applied where plaintiff amended pleadings to seek damages beyond jurisdiction of first court.). The effect of the probate court's order of abatement is the same as a dismissal for want of jurisdiction. The Section 16.064 savings provision applies here, where the taxing authorities had complied with the law but, while their suit was pending, were at the mercy of the legislature's changes. Accordingly, none of Appellees' claims are barred by the twenty-year statute of limitations. We overrule Appellants' third issue.

Constitutionality of Amendment

In their fourth issue, Appellants contend that the amendment to Section 317(c) of the Probate Code is an ex post facto law in violation of the Texas Constitution. That amendment eliminated the requirement that the taxing authorities present their claims to the estate's representative and then file suit within ninety days of rejection of the claims. Appellants argue that Appellees' act of filing suit in Bailey v. Cherokee County Appraisal District was tantamount to presentment of their claims. Therefore, because Bailey was dismissed on jurisdictional grounds, the savings provision of Section 16.064 of the Texas Civil Practice and Remedies Code applied, and Appellants were required to file suit in the probate court within sixty days after the supreme court's mandate issued in Bailey. Further, because Appellees did not do so within sixty days, they did not timely file suit after rejection of their claims. Therefore, Appellants assert, they had a valid defense to Appellees' lawsuit, the affirmative defense of limitations. Further, the argument continues, the amendment eliminated that defense, upon which they had a right to rely, and the amendment is therefore unconstitutional.

The Probate Code sets out the required procedures for requesting payment of a claim against an estate. See generally Tex. Prob. Code Ann., ch. 8, pt. 4 (Vernon 2003). Section 317(c), effective September 1, 1999, changed the law as it applied to Appellees. That section provides:

The foregoing provisions relative to the presentment of claims shall not be so construed as to apply to a claim. . . . for delinquent ad valorem taxes against a decedent's estate that is being administered in probate in. . . . the same county in which the taxes were imposed, if the probate proceedings have been pending for more than four years.

Tex. Prob. Code Ann. § 317(c).

Article I, Section 16 of the Texas Constitution provides: "No bill of attainder, ex post facto law, or any law impairing the obligation of contracts, shall be made." Tex. Const. art. I, § 16. A procedural statute cannot be given application to a suit pending at the time it becomes effective if to do so would destroy or impair rights which had become vested before the new statute became effective. Wilson v. Work, 122 Tex. 545, 547, 62 S.W.2d 490, 490 (1933) (orig. proceeding). After a cause has become barred by the statute of limitations, the defendant has a vested right to rely on such statute as a defense and the right to assert that defense cannot be taken away by legislative enactment. Id. On the other hand, no litigant has a vested right in a statute or rule which affects a remedy or is procedural in nature and which affects no vested substantive right. Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981) (orig. proceeding). Changes in such statutes are considered remedial in nature and have been held not to violate the provisions of Article I, Section 16 of the constitution. Id.

When construing statutory provisions, we are required to attempt to determine the intent of the legislature. Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994); City of El Paso v. El Paso Cmty. Coll. Dist., 729 S.W.2d 296, 298 (Tex. 1986). We may consider, among other matters, the object sought to be obtained, the circumstances under which the statute was enacted, the legislative history, and the former statutory provisions. Tex. Gov. Code Ann. § 311.023 (Vernon 1998). Statutes are given a construction consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with the constitution. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990) (orig. proceeding) (op. on reh'g). According to an analysis of the bill containing the proposed amendment to Section 317(c), the purpose of the amendment, in pertinent part, was to clarify directive actions in the administration of property taxes and codify current practice in case law into statutory law. Ways & Means Comm., Bill Analysis, Tex. H.B. 3549, 76th Leg., R.S. (1999). The Legislative Budget Board explained in its fiscal note that the amendments would "allow taxing units and their agents to collect current and delinquent property taxes more effectively and expediently." Fiscal Note, Tex. H.B. 3549, 76th Leg., R.S. (1999). It further stated that "[t]he provisions in the bill concerning tax bills and ad valorem tax collections would provide administrative cost benefits to local governments and their collecting agents." Id. Therefore, to interpret the application of Section 317(c) in a manner that deprived the taxing authorities of the opportunity to collect delinquent taxes would be inconsistent with the legislature's intent.

Appellants rely on the supreme court's opinion in Bailey to argue that they have lost their affirmative defense of limitations. Appellants have misconstrued that opinion. There, the supreme court held that "the present suit constitutes a claim against the estate which should have been filed in the probate court." Bailey, 862 S.W.2d at 582. That court did not hold that the suit was a "presentment" of claims against the estate as contemplated by the Probate Code. The supreme court simply identified, or categorized, the type of suit brought by the taxing authorities as involving issues falling into the definition of "matters incident to the estate." By doing so, the court determined a jurisdictional question only. The court held that the suit constitutes a claim against the estate for purposes of determining which court had jurisdiction. Id. at 585. The court also held that the Bailey heirs could not be held personally liable. Id. at 586.

The supreme court dismissed the taxing authorities' claims, thereby placing the parties in the same position they were in before the lawsuit was filed. See Peoples v. Scott, 189 S.W.2d 522, 523 (Tex. App.-San Antonio 1945, no writ). The supreme court specifically held that its disposition was without prejudice to any right of the taxing authorities to present claims incident to the estate in the probate court. Bailey, 862 S.W.2d at 586. Pursuant to Section 298 of the Probate Code, a claim may be presented to the personal representative at any time before the estate is closed if suit on the claim has not been barred by the general statute of limitations. Tex. Prob. Code Ann. § 298 (Vernon 2003). A twenty-year limitations period applies to the collection of delinquent taxes. Tex. Tax Code Ann. §33.05(a)(2). As explained above, the earliest limitations would run on any of the taxing authorities' claims was February 1, 1996. Therefore, Appellees' 1994 and 1995 suits were timely as to all claims asserted and Appellants have no vested limitations defense. It follows that application of Section 317(c) to this cause did not unconstitutionally deprive Appellants of said defense. See Ex parte Abell, 613 S.W.2d at 260. We overrule Appellants' fourth issue.

Conclusion

Jurisdiction over this suit lies with the district court. William E. Bailey and Robert E. Bailey were not impermissibly held personally liable. The trial court did not err in ruling as it did on the parties' objections to summary judgment evidence or in granting Appellees' motion for summary judgment. No part of Appellees' claims are barred by limitations. The 1999 amendments to the Probate Code are not unconstitutional as applied to this suit.

Accordingly, we affirm the trial court's judgment.

SAM GRIFFITH

Justice

Opinion delivered May 21, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

(PUBLISH)