Opinion issued on December 28, 2023.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00306-CV ——————————— MANSION PARTNERS, LTD., Appellant V. HARRIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2020-28005
MEMORANDUM OPINION
This appeal stems from a property-tax dispute between Mansion Partners, Ltd.
and the Harris County Appraisal District (“HCAD”). Mansion Partners protested
HCAD’s appraised value for its property for tax year 2019. The Harris County
Appraisal Review Board (“ARB”) denied Mansion Partners’ protest in August 2019. Over three months later, Mansion Partners filed a second “notice of protest” asking
the ARB to reissue its August 2019 order to restart the clock and permit Mansion
Partners to file a timely petition for judicial review challenging the appraised value
of its property for tax year 2019. The ARB dismissed Mansion Partners’ second
“notice of protest” for lack of jurisdiction.
In May 2020, Mansion Partners filed suit against HCAD and ARB
challenging (1) the ARB’s failure to reissue its August 2019 order and (2) the
appraised value of its property for tax year 2019 as unequal and excessive. HCAD
filed a plea to the jurisdiction arguing the district court lacked jurisdiction over
Mansion Partners’ suit because the petition was untimely. The district court granted
the plea and dismissed Mansion Partners’ claims against HCAD without prejudice.
On appeal, Mansion Partners argues the district court erred by granting
HCAD’s plea to the jurisdiction because contrary to HCAD’s argument, Mansion
Partners did not judicially admit its petition was untimely, and even if its petition
was untimely, the trial court still abused its discretion by dismissing Mansion
Partners’ claims, rather than remanding the matter to “HCAD and/or the ARB” to
allow the ARB to exercise its implied power to reissue its orders determining protest
to cure any jurisdictional defects.
We affirm the trial court’s judgment granting HCAD’s plea to the jurisdiction
and dismissing Mansion Partners’ claims for lack of jurisdiction.
2 Background
Mansion Partners has two separate lawsuits pending against HCAD
concerning the appraised value of its property, the Deer Park Gardens Apartments,
for tax year 2019. This appeal concerns the second filed suit.
A. The First Lawsuit
Mansion Partners filed an administrative protest with the ARB challenging
HCAD’s appraised value of its apartment complex for tax year 2018 (the “First
Lawsuit”). Mansion Partners, Ltd. v. Harris Cnty. Appraisal Dist., No. 01-20-
00565-CV, 2022 WL 175357, at *1 (Tex. App.—Houston [1st Dist.] Jan. 20, 2022,
no pet.) (mem. op.) (Mansion Partners I). Unsatisfied with the ARB’s determination
of its protest, Mansion Partners filed a timely petition for judicial review in the
district court challenging the 2018 appraised value.
While its petition for judicial review was pending, Mansion Partners protested
HCAD’s appraised value of its apartment complex for tax year 2019. Id. at *1. The
ARB denied Mansion Partners’ 2019 tax protest and sent notice of its order
determining protest via email to Mansion Partners’ tax agent, O’Connor &
Associates. Id. Although the ARB order was dated “8/12/2019,” it was signed by
the chairman of the ARB, beneath the words: “Signed on this 2nd day of August,
2019.” Id.
3 Three months later, on November 26, 2019, Mansion Partners filed a second
“notice of protest” with the ARB. In its notice, Mansion Partners stated: “We did
not receive the County conf. letter from the tax agent. The agent informed us of the
letter date in a Sept. 3[, 2019] email but did not send the County letter as in years
past (until today). Can you please reissue the County confirmation letter to the
owner.”
1. Amended Petition and Plea to the Jurisdiction in District Court
On January 3, 2020, five months after the ARB denied Mansion Partners’
2019 protest and while Mansion Partners’ second “notice of protest” remained
pending, Mansion Partners filed an amended petition for review in the First Lawsuit
adding allegations that HCAD’s 2019 appraisal of its property was excessive and
unequal. Id. at *1, 3; see TEX. TAX CODE § 42.21(c) (stating if petition for review
“is pending when the appraisal review board issues an order in a subsequent year
under a protest by the same property owner” relating to “the same property that is
involved in the pending appeal,” property owner may file appeal by amending
original petition for review to include grounds for appeal of subsequent order).
On June 29, 2020, HCAD filed a plea to the jurisdiction arguing the district
court lacked jurisdiction over Mansion Partners’ amendment because the
amendment was filed more than 60 days after Mansion Partners received the order
4 from the ARB determining its 2019 protest.1 Id. at *2. HCAD attached to its plea
(1) Mansion Partners’ amended petition; (2) a certified copy of the ARB’s August
2, 2019 Order; and (3) the August 2, 2019 electronic service receipt showing the
ARB notified Mansion Partners’ tax agent of its August 2019 Order. Id.
Mansion Partners responded, arguing HCAD had not established Mansion
Partners’ amended petition was filed more than 60 days after receiving notice of the
ARB’s August 2019 Order. Id. Thus, Mansion Partners argued, HCAD failed to
meet its burden to establish the amended petition for review was untimely. See id.
at *3. Mansion Partners did not dispute HCAD’s assertion that its January 2020
amended petition was untimely. Rather, Mansion Partners’ posture was to insist that
HCAD, as the party moving for dismissal, meet its burden to prove the amended
petition was untimely. Id.
The trial court granted the plea to the jurisdiction and dismissed Mansion
Partners’ amended claims against HCAD for tax year 2019. Mansion Partners
appealed.
1 A taxpayer must file a petition for judicial review within 60 days after receiving notice that a final order has been entered. TEX. TAX CODE § 42.21(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.”).
5 2. Appeal from Trial Court: Mansion Partners I
On appeal, Mansion Partners argued HCAD had not carried its burden to
establish its amended petition was filed more than 60 days after Mansion Partners
received notice of the ARB’s August 2019 order because HCAD had not provided
evidence of “an agreement for E-Service between HCAD and Mansion Partners’
administrative tax agent.”2 Id. at *2–3. This Court agreed, stating:
HCAD’s evidence of delivery was its electronic service receipt showing that it electronically sent a notice regarding the 2019 appraisal review board order to an O’Connor & Associates email address. But it did not provide evidence that Mansion Partners or its agent had an agreement regarding electronic communication as required by section 1.085. . . . Absent such an agreement, HCAD was required to send the notice by mail. See TEX. TAX CODE § 1.07(a). Under the Property Tax Code, a notice sent by first-class mail is “presumed delivered when it is deposited in the mail.” Id. § 1.07(c). HCAD did not provide any evidence that the notice required by section 42.21 was deposited in the mail. See id.; Fort Bend Cent. Appraisal Dist., 2021 WL 2231245 at *4–8 (addressing evidence needed to raise presumption of delivery such as proof of sufficient postage, type of mail service used, how notice placed in the mail, current address used, and notice not returned). Because HCAD did not produce evidence that Mansion Partners or its agent agreed to electronic communication or evidence raising a presumption of delivery by mail, we conclude that HCAD did not prove when notice of the ARB order was received by Mansion Partners. We therefore conclude that HCAD did not prove that the amended petition was not timely filed. Accordingly, we hold that the trial court erred by granting the plea to the jurisdiction.
2 In the present appeal, HCAD does not argue it proved Mansion Partners failed to file its petition for review within the 60-day deadline based on evidence the ARB electronically sent a notice of its August 2019 Order to Mansion Partners’ tax agent. Rather, HCAD argues that in the present case, Mansion Partners judicially admitted that its petition for review was untimely, thus excusing HCAD from producing evidence of that fact. 6 Id. at *4. We reversed the trial court’s order granting HCAD’s plea to the
jurisdiction and dismissing Mansion Partners’ claims challenging HCAD’s 2019
appraised value for its property. We remanded to the trial court for further
proceedings. Id.
B. The Second Lawsuit
In March 2020, the ARB dismissed Mansion Partners’ second “notice of
protest.” The ARB issued an “Order of Dismissal,” stating it had no “jurisdiction to
consider or grant the relief requested” by Mansion Partners in its November 26, 2019
protest and it ordered that Mansion Partners’ “motion and/or protest be dismissed
without hearing or determination for lack of jurisdiction.” Although the ARB order
was dated “3/16/2020,” it was signed by the chairman of the ARB, beneath the
words: “Signed on this 6th day of March, 2020.”
On May 6, 2020, Mansion Partners filed a petition for judicial review against
HCAD and the ARB challenging “HCAD’s or the ARB’s failure to re-issue its order
determining Mansion Partners’ administrative tax protest [for tax year 2019], so that
Mansion Partners could file a new tax appeal” and complaining of HCAD’s
valuation of its apartment complex for tax year 2019 as excessive and unequal (the
“Second Lawsuit”).
HCAD filed a plea to the jurisdiction arguing the district court lacked
jurisdiction over Mansion Partners’ petition because Mansion Partners’ petition for
7 judicial review was untimely.3 HCAD argued that Mansion Partners had judicially
admitted in its own petition for judicial review that its petition had not been filed
within the required statutory time frame. HCAD attached to its plea a copy of the
ARB’s August 2019 order determining protest and a certified copy of Mansion
Partners’ May 6, 2020 petition filed in the Second Lawsuit.
Mansion Partners responded to HCAD’s plea to the jurisdiction, but it
provided no evidence. Mansion Partners argued the ARB had abused its discretion
by dismissing Mansion Partners’ November 26, 2019 protest for lack of jurisdiction
because the ARB “enjoys the reasonably necessary, implied (though not inherent)
power to re-issue an Order Determining Protest.” According to Mansion Partners,
the ARB’s “implicit authority to re-issue an Order Determining Protest follows from
its general power to adjudicate property tax cases and mirrors or is somewhat akin
to its authority to entertain a late-filed notice of protest.” Mansion Partners argued
that “although it is acknowledged that Tax Code procedures for adjudicating protests
are exclusive, TEX. TAX CODE 42.09(a), the Appraisal Review Boards of Texas
3 HCAD’s plea to the jurisdiction does not address Mansion Partners’ challenge to the ARB’s March 2020 order dismissing its November 2019 reissuance request. On appeal, however, HCAD argues the trial court lacks jurisdiction over Mansion Partners’ challenge to the ARB’s failure to reissue its August 2019 order because Mansion Partners did not identify a valid waiver of immunity against HCAD. HCAD may raise this jurisdictional ground for the first time on appeal. Waco Indep. School Dist. v. Gibson, 22 S.W.3d 849, 850–51 (Tex. 2000) (holding that jurisdictional grounds not raised in plea to jurisdiction can be raised for first time on appeal).
8 nevertheless retain the rights to issue and to re-issue their Orders, as they see fit and
as the equities require.”4
Mansion Partners denied it had judicially admitted that its petition for review
was untimely. It argued HCAD had not shown that it had “properly notified
[Mansion Partners] about the issuance of the Order Determining Protest,” an issue
Mansion Partners acknowledged was “at least impliedly decided in a fashion
adverse” to Mansion Partners by the trial court in the First Lawsuit. Mansion
Partners argued the trial court either “should remand this matter to the [ARB] for
further proceedings or adjudicate the substance of [Mansion Partners’] request [for
re-issuance of the August 2019 order] in accordance with the trial de novo schema of
the Texas Tax Code.” During the non-evidentiary hearing on HCAD’s plea to the
jurisdiction, Mansion Partners acknowledged it had not filed its petition for review
challenging the 2019 tax appraisal “within 60 days of the date on the order
determining protest which was issued August 12, 2019 . . . no one disputes that.”
4 Tax Code Section 42.09(a) states: “Except as provided by Subsection (b) of this section, procedures prescribed by this title for adjudication of the grounds of protest authorized by this title are exclusive. . .” TEX. TAX CODE § 42.09(a); see id. § 42.09(b) (allowing “person against whom a suit to collect a delinquent property tax is filed” to plead specific affirmative defenses).
9 On June 9, 2021, the trial court granted HCAD’s plea to the jurisdiction and
dismissed Mansion Partners’ claims against HCAD without prejudice. This appeal
followed.
Property Appraisals under the Texas Property Tax Code
The Texas Property Tax Code establishes an appraisal district for each county.
TEX. TAX CODE § 6.01(a). County appraisal districts annually appraise each
property within their boundaries and send notice of the appraised value to the
property’s owner. See id. § 23.01. If a property owner disagrees with the appraised
value of its property, the property owner may file an administrative protest before
the county’s appraisal review board under Chapter 41 of the Tax Code. See id.
§ 41.41(a); see also Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd.,
555 S.W.3d 29, 40 (Tex. 2018) (“Chapter 41 gives property owners the right to
protest a number of actions before the ARB, including the appraised value of their
property, a determination of ownership, or ‘any other action of the chief appraiser,
appraisal district, or appraisal review board that applies to and adversely affects the
property owner.’” (quoting TEX. TAX CODE § 41.41(a)). Once the ARB reviews the
protest, it sends notice of the issuance of its order determining the protest as well as
a copy of the order to the property owner or its agent. See Mansion Partners I, 2022
WL 175357 at *3; see also TEX. TAX CODE § 41.47(a) (stating board must
“determine the protest and make its decision by written order”); id. § 41.47(d)(1)
10 (requiring notice of order and order to be delivered by certified mail to property
owner); id. § 1.085(a) (stating “notice . . . that is required or permitted by this title
to be delivered between a chief appraiser, an appraisal district, an appraisal review
board, or any combination of those persons and a property owner or [agent of a
property owner] may be delivered in an electronic format if the chief appraiser and
the property owner [or agent] agree under this section”).
The property owner may appeal the ARB’s final order by filing a petition for
review in the district court within 60 days of receiving notice of the final order. TEX.
TAX CODE § 42.21(a). Because filing of a timely petition for review in the district
court is jurisdictional, an untimely petition deprives the district court of jurisdiction
to hear a property owner’s appeal. See Fort Bend Cent. Appraisal Dist. v. Am.
Furniture Warehouse Co., 630 S.W.3d 530, 536 (Tex. App.—Houston [1st Dist.]
2021, no pet.); see also Appraisal Review Bd. v. Int’l Church of Foursquare Gospel,
719 S.W.2d 160, 160 (Tex. 1986); see TEX. TAX CODE § 42.21(a) (“Failure to timely
file a petition bars any appeal under this chapter.”).
The property owner must exhaust its administrative remedies before filing its
petition for judicial review. See Willacy Cnty. Appraisal Dist. v. Sebastian Cotton
& Grain, Ltd., 555 S.W.3d 29, 50 (Tex. 2018) (stating property owner is required to
exhaust administrative remedies before filing petition). A property owner’s failure
to exhaust its administrative remedies before filing a petition for judicial review
11 “deprives the courts of jurisdiction to decide most matters relating to ad valorem
taxes.” Vitol v. Harris Cnty. Appraisal Dist., 529 S.W.3d 159, 166 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (quoting Cameron Appraisal Dist. v. Rourk, 194
S.W.3d 501, 502 (Tex. 2006)).
Plea to the Jurisdiction
The existence of subject matter jurisdiction is a question of law that can be
challenged by a plea to the jurisdiction. Klumb v. Hous. Mun. Emps. Pension Sys.,
458 S.W.3d 1, 8 (Tex. 2015). We review a court’s ruling on a plea to the jurisdiction
de novo. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506,
512 (Tex. 2019). When reviewing a trial court’s ruling on a challenge to its
jurisdiction, we consider the plaintiff’s pleadings and factual assertions, as well as
any evidence relevant to the jurisdictional issue. See City of Elsa v. Gonzalez, 325
S.W.3d 622, 625–26 (Tex. 2010). We construe pleadings liberally in favor of the
plaintiff, look to the pleader’s intent, and determine if the pleader has alleged facts
affirmatively demonstrating the court’s jurisdiction. Id. at 625. “If the evidence
creates a fact question regarding the jurisdictional issue, then the trial court cannot
grant the plea to the jurisdiction, and the fact issue will be resolved by the fact
finder.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex.
2004). Conversely, “if the relevant evidence is undisputed or fails to raise a fact
12 question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction
as a matter of law.” Id. at 228; Fort Bend Cent. Appraisal Dist., 630 S.W.3d at 535.
Governmental Immunity
Governmental immunity protects political subdivisions of the state, including
appraisal districts, from lawsuits and liability for monetary damages unless the
political subdivision’s immunity is waived by the Legislature. See Dohlen v. City of
San Antonio, 643 S.W.3d 387, 392 (Tex. 2022) (stating political subdivision
“retain[s] immunity unless the Legislature clearly and unambiguously waives it);
TEX. TAX CODE § 6.01(c) (“An appraisal district is a political subdivision of the
state.”). Because immunity from suit implicates a court’s subject matter jurisdiction,
a governmental entity may raise a governmental immunity claim in a plea to the
jurisdiction. Univ. of Tex. M.D. Anderson Cancer Ctr., 578 S.W.3d at 512.
Discussion
In its plea to the jurisdiction, HCAD argued the district court lacked
jurisdiction over Mansion Partners’ petition for review because Mansion Partners’
petition was not filed timely. In support of its plea, HCAD relied on Mansion
Partners’ statement in its petition for review, which stated Mansion Partners “desired
to file this appeal within the span of time which is permitted by the Texas Tax Code
but did not do so.” HCAD argued the statement was a judicial admission of the fact
13 the petition was not filed “within the span of time which is permitted by the Texas
Tax Code.”
On appeal, Mansion Partners argues the trial court erred by granting HCAD’s
plea to the jurisdiction because contrary to HCAD’s argument, it did not judicially
admit that its petition was untimely. And even if its petition was untimely, the
district court erred by dismissing Mansion Partners’ appeal for lack of jurisdiction
rather than remanding the matter “to HCAD and/or the ARB” pursuant to Tax Code
Section 42.231 to allow Mansion Partners to cure any jurisdictional defects.5
According to Mansion Partners, it is entitled to have the matter remanded to HCAD
or the ARB to allow Mansion Partners to file a timely petition for review, thereby
curing any alleged jurisdictional issues, because HCAD effectively moved to
dismiss its petition based on Mansion Partners’ alleged failure to exhaust its
administrative remedies.
1. Mansion Partners’ Judicial Admission
Mansion Partners argues that contrary to HCAD’s argument, Mansion
Partners did not judicially admit “any fact undermining its right to maintain this
lawsuit or appeal.” Mansion Partners argues that the “statement in its petition, that
5 Mansion Partners further argues that this Court should remand this matter to “HCAD or the ARB for further administrative proceedings,” or, alternatively, “remand this matter to the trial court with instructions to remand to HCAD or the ARB” to allow it to cure any jurisdictional issues.
14 it desired to file its petition within the span permitted by the Texas Tax Code but did
not do so, is not clearly and unequivocally an admission” of Mansion Partners’
“inability to seek judicial relief, or (without limitation) a waiver of the right to insist
that [HCAD and the ARB] prove proper noticing of the Orders Determining
Protest.” Mansion Partners states that its statements in the petition “should be
construed merely to assert what already is beyond cavil, that [Mansion Partners] did
not file a tax year 2019 petition for review within sixty days of August 12, 2019.”
A judicial admission is a clear, deliberate, and unequivocal assertion of fact
which conclusively disproves a right of recovery or a defense and makes the
introduction of other evidence on an issue unnecessary. In re Estate of Guerrero,
465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see also
Holy Cross Church of God v Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (stating “judicial
admission that is clear and unequivocal has conclusive effect and bars the admitting
party from later disputing the admitted fact”). This rule is based on the public policy
that it would be unjust to permit a party to recover after he has sworn himself out of
court by a clear, unequivocal statement. Guerrero, 465 S.W.3d at 705. To constitute
a judicial admission, the statement must be (1) made in the course of a judicial
proceeding; (2) contrary to a fact essential for the party’s recovery or defense;
(3) deliberate, clear, and unequivocal; (4) in accordance with public policy if given
15 conclusive effect; and (5) consistent with the opposing party’s theory of recovery.
Id. at 705–06.
In its petition for judicial review, Mansion Partners stated that it “desired to
file this appeal within the span of time which is permitted by the Texas Tax Code
but did not do so.” (emphasis added). Mansion Partners’ failure to file its petition
for review “within the span of time which is permitted by the Texas Tax Code” is
contrary to a fact essential for Mansion Partners’ recovery and consistent with
HCAD’s argument that the district court lacked subject matter jurisdiction over
Mansion Partners’ petition because an untimely petition deprives a district court of
jurisdiction. Guerrero, 465 S.W.3d at 705–06 (stating requirements for judicial
admission). Mansion Partners’ statement was a clear, unequivocal, and deliberate
statement made in a judicial proceeding.
The application of the judicial admission doctrine in this case is also consistent
with the public policy of the Tax Code, which aims to balance property owners’
rights to contest tax appraisals with the need to achieve finality in appraisal rolls.
See id. at 705 (stating judicial admission doctrine based on “public policy that it
would be unjust to permit a party to recover after he has sworn himself out of court
by a clear, unequivocal statement”). Cf. Anderton v. Rockwall Cent. Appraisal Dist.,
26 S.W.3d 539, 543 (Tex. App.—Dallas 2000, pet. denied) (“The legislature’s
intent, as may be determined from the overall tax appraisal protest scheme, is that
16 the appraisal rolls become fixed after property owners have been given adequate
time to file their protests.”); Valero Transmission Co. v. Hays Consol. Indep. Sch.
Dist., 704 S.W.2d 857, 859 n.1 (Tex. App.—Austin 1985, writ ref’d n.r.e.) (stating
purpose of Property Tax Code is “the orderly collection of revenue so that the
functions of government should not be dependent upon the outcome of a multitude
of lawsuits”).
We thus hold Mansion Partners judicially admitted that its petition for review
was not filed “within the span of time which is permitted by the Texas Tax Code,”
and that HCAD was entitled to rely on the judicial admission in meeting its burden
to establish that Mansion Partners’ petition was untimely.6 See Philips v. McNease,
467 S.W.3d 688, 697 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding
6 Although we reach a different disposition than in Mansion Partners I, the opinions, which are based on different facts, are not inconsistent. In Mansion Partners I, we held HCAD failed to prove Mansion Partners’ amended petition filed in the First Lawsuit was not timely because “HCAD did not produce evidence that Mansion Partners or its agent agreed to electronic communication or evidence raising a presumption of delivery by mail” and thus failed to prove Mansion Partners received notice of the ARB’s order. We did not consider whether Mansion Partners had judicially admitted the untimeliness of its petition in the First Lawsuit because that issue was not advanced by HCAD nor considered by the trial court. See Mansion Partners I, 2022 WL 175357, at *4. Unlike in Mansion Partners I, in this case, HCAD relied on Mansion Partners’ judicial admission that its petition for review in the Second Lawsuit was untimely and HCAD was thus relieved of its obligation to produce evidence to establish Mansion Partners’ petition for review was untimely. See In re Estate of Guerrero, 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (stating judicial admission is formal waiver of proof that dispenses with production of evidence on issue and bars admitting party from disputing issue).
17 defendant moving for summary judgment was entitled to rely on plaintiff’s judicial
admission in petition regarding existence of document).
2. Tax Code Section 42.231
Mansion Partners argues that even if it judicially admitted that its petition for
review was untimely, the trial court should have remanded the matter to the ARB
pursuant to Tax Code Section 42.231 to allow Mansion Partners an opportunity to
cure any jurisdictional defects.7 According to Mansion Partners, on remand the ARB
could reissue its August 2019 Order with a new date, allowing Mansion Partners to
file a timely petition for review, thereby curing any jurisdictional defect. Mansion
Partners argues it is entitled to have the matter remanded to the ARB pursuant to
Section 42.231 because the filing of a timely petition for review is an administrative
remedy, and thus HCAD effectively moved to dismiss Mansion Partners’ petition
for review for lack of jurisdiction based on Mansion Partners’ alleged failure to
exhaust its administrative remedies.
HCAD argues Section 42.231 is inapplicable because it did not move to
dismiss Mansion Partners’ petition for review based on Mansion Partners’ failure to
exhaust its administrative remedies. Rather, HCAD sought dismissal of Mansion
7 Mansion Partners also argues that this Court should remand this matter to “HCAD or the ARB for further administrative proceedings,” or, alternatively, “remand this matter to the trial court with instructions to remand to HCAD or the ARB” to allow it to cure any jurisdictional issues.
18 Partners’ petition for failure to file a timely petition for review, a jurisdictional defect
that deprives the trial court of jurisdiction. According to HCAD, the filing of a
timely petition for review is a judicial remedy, not an administrative remedy, and
Mansion Partners exhausted its administrative remedies before filing its petition for
review because (1) Mansion Partners filed a protest with the ARB for tax year 2019,
(2) Mansion Partners attended the ARB’s hearing on the protest, and (3) the ARB
determined Mansion Partners’ protest by a written order. We agree with HCAD.
“The Texas Tax Code provides detailed administrative procedures for those
who would contest their property taxes.” Vitol, 529 S.W.3d at 166 (quoting Rourk,
194 S.W.3d at 502). After a property owner receives notice of the appraised value
of its property for a given tax year, the property owner may protest the appraisal
value before the ARB. The procedures for protesting before the ARB are set forth
in Chapter 41 of the Tax Code, which is entitled “Local Review.” Once the ARB
determines the protest pursuant to Chapter 41, a property owner is entitled to seek
judicial relief by filing a petition for judicial review in the district court challenging
the appraised value of the property. TEX. TAX CODE § 42.21. Tax Code Section
42.21, which authorizes property owners to file a petition for review, is included in
Subchapter B of Chapter 42 of the Tax Code, which is entitled “Judicial Review.”
Generally, property owners must exhaust their administrative remedies before
seeking judicial review pursuant to Section 42.21. Willacy Cnty. Appraisal Dist.,
19 555 S.W.3d at 50; see also Harris Cnty. Appraisal Dist. v. ETC Mktg., Ltd., 399
S.W.3d 364, 367 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (same); Vitol,
529 S.W.3d at 166 (same). A property owner’s failure to exhaust its administrative
remedies before filing a petition for review “deprives the courts of jurisdiction to
decide most matters relating to ad valorem taxes.” Vitol, 529 S.W.3d at 168 (quoting
Rourk, 194 S.W.3d at 502). Tax Code Section 42.231(b), which allows the district
court to remand a matter to the ARB to allow a property owner to exhaust its
administrative remedies, states:
Subject to the provisions of this section and notwithstanding any other law, if a plea to the jurisdiction is filed in the appeal on the basis that the property owner failed to exhaust the property owner’s administrative remedies, the court may, in lieu of dismissing the appeal for lack of jurisdiction, remand the action to the appraisal review board with instructions to allow the property owner an opportunity to cure the property owner’s failure to exhaust administrative remedies.
TEX. TAX CODE § 42.231(b).
Mansion Partners’ appellate argument conflates two separate jurisdictional
requirements: (1) the exhaustion of administrative remedies before filing a petition
for review, with (2) the timely filing of that petition for review.8 “Exhaustion of
remedies requires a party in an administrative proceeding to await that proceeding’s
8 Although Mansion Partners asked the trial court to remand the matter to the ARB to allow it to cure any jurisdictional defects, it did not do so based on Tax Code Section 42.231(b), nor did Mansion Partners argue that HCAD was effectively moving to dismiss its petition based on the exhaustion-of-administrative-remedies doctrine. 20 completion, thereby securing all available administrative relief before seeking
judicial review of the agency’s action.” Cash Am. Intern. Inc. v. Bennett, 35 S.W.3d
12, 15 (Tex. 2000). The administrative proceeding before the ARB is complete
when the board determines the protest by written order. See SPX Corp. v. Altinger,
614 S.W.3d 362, 374 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (holding
property owner exhausted its administrative remedies when owner protested
appraisal review board’s property appraisal, appeared in person at hearings,
submitted argument and evidence, and appraisal review board determined protest
because “no further relief was available to SPX at the administrative level”);
Midland Cent. Appraisal Dist. v. Plains Mktg., L.P., 202 S.W.3d 469, 475 (Tex.
App.—Eastland 2006, pet. denied) (stating plaintiff “exhausted its administrative
remedies” when plaintiff’s claim “was presented to, debated before, and denied by”
county appraisal review board).
The record reflects Mansion Partners filed a protest before the ARB for tax
year 2019, attended the ARB’s hearing on its protest, and the ARB determined
Mansion Partners’ protest by a written order. At that point, Mansion Partners, which
had “secur[ed] all available administrative relief” from the ARB, exhausted its
administrative remedies and was entitled to file a petition in the district court for
judicial review of its property’s 2019 appraised value. TEX. TAX CODE § 42.01(a).
But Mansion Partners was required to file its petition for judicial review within 60
21 days of receiving notice of the ARB’s order. Id. Mansion Partners did not do so. As
it judicially admitted, its petition was untimely, thus depriving the court of
jurisdiction. HCAD’s plea was based on the untimeliness of Mansion Partners’
petition, not the exhaustion-of-administrative-remedies doctrine. We thus hold
Section 42.231(b) is inapplicable, and Mansion Partners was not entitled to have the
matter remanded to the ARB based on this statute.
We overrule Mansion Partners’ challenge to the trial court’s decision to
dismiss Mansion Partners’ claims against HCAD, rather than remanding the matter
to the ARB.
3. Dismissal of Mansion Partners’ November 2019 Protest
The ARB’s March 6, 2020 order dismissing Mansion Partners’ second “notice
of protest” states the ARB has no “jurisdiction to consider or grant the relief
requested” by Mansion Partners in its November 26, 2019 protest. The ARB ordered
that Mansion Partners’ “motion and/or protest be dismissed without hearing or
determination for lack of jurisdiction.” To the extent Mansion Partners argues that
the district court erred by granting HCAD’s plea to the jurisdiction because the ARB
has the implied power to reissue its August 2019 Order, Mansion Partners does not
prevail on this point.
The ARB is an administrative agency. See Clint Indep. Sch. Dist. v. Marquez,
487 S.W.3d 538, 544 (Tex. 2016) (referring to county appraisal review board as type
22 of administrative agency); Beltran Gutierrez v. City of Laredo, No. 04-17-00838-
CV, 2019 WL 691443, at *2 (Tex. App.—San Antonio Feb. 20, 2019, pet. denied)
(mem. op.) (same); see also Rourk, 194 S.W.3d at 502 (stating in suit involving
county appraisal district: “The Texas Constitution expressly allows the Legislature
to bestow exclusive original jurisdiction on administrative bodies. There is no
question the Legislature intended to do so here.” (internal citation omitted)). As an
administrative agency, the ARB possesses only those powers expressly provided to
it by statute or necessarily implied to carry out the express powers the Legislature
has given it. See Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315
(Tex. 2001); Public Util. Comm’n v. GTE-Sw., Inc., 901 S.W.2d 401, 407 (Tex.
1995).
Regardless of whether the ARB has a general implied power to reissue its
orders as Mansion Partners argues, an issue we do not decide, it is readily apparent
that the reissuance of an order determining a protest three months after the original
order was issued for the sole purpose of extending or restarting the 60 deadline to
file a petition for review to allow a taxpayer to make what is essentially an out-of-
time appeal is not a power “necessarily implied in order to carry out” the ARB’s
power under the Tax Code to determine appraisal value protests. The ARB’s
administrative function was satisfied when it issued its initial order in August 2019
denying Mansion Partners’ protest.
23 Because the ARB does not have the power to grant Mansion Partners the only
relief it requested in its November 2019 protest, and thus lacks jurisdiction over
Mansion Partners’ protest, the district court did not err by granting HCAD’s plea to
the jurisdiction. Thus, to the extent Mansion Partners challenges the district court’s
granting of the plea to the jurisdiction on this basis, we overrule the issue. 9
Conclusion
We affirm the trial court’s judgment granting HCAD’s plea to the jurisdiction
and dismissing Mansion Partners’ petition for judicial review for lack of jurisdiction.
Veronica Rivas-Molloy Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Guerra. Goodman, J., concurring.
9 HCAD argues the trial court does not have jurisdiction over Mansion Partners’ challenge to the ARB’s failure to reissue its order of dismissal because Mansion Partners did not identify a valid waiver of immunity against HCAD with respect to this issue. In light of our holding that the ARB does not have the power to grant Mansion Partners the relief it seeks, we need not address this argument.