Paul Johnson v. Bastrop Central Appraisal District

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00354-CV NO. 03-23-00404-CV

Paul Johnson, Appellant

v.

Bastrop Central Appraisal District, Appellee

FROM THE 21ST DISTRICT COURT OF BASTROP COUNTY NO. 2333-21, THE HONORABLE CARSON TALMADGE CAMPBELL, JUDGE PRESIDING

MEMORANDUM OPINION

In these two appeals, Paul Johnson challenges the trial court’s orders (1) declaring

him a vexatious litigant and requiring him to furnish security to maintain this lawsuit against

the Bastrop County Appraisal District (BCAD) and (2) dismissing his lawsuit for his failure to

furnish security. See Tex. Civ. Prac. & Rem. Code §§ 11.101 (“Prefiling Order; Contempt”),

.056 (“Dismissal for Failure to Furnish Security”). We consolidate the appeals for review in this

opinion. We reverse the trial court’s orders and remand for further proceedings.

BACKGROUND

For years, Johnson has “been embroiled in a property tax dispute with [BCAD],”

having filed “at least 17 BCAD-related lawsuits and appeals during the last seven years,” without

success. See Johnson v. Tepper, No. 07-23-00146-CV, 2023 WL 5020301, at *1 (Tex. App.—

Amarillo Aug. 7, 2023, pet. denied) (mem. op.). Two days before he was declared a vexatious litigant by the 21st District Court of Bastrop County in a prior suit he filed against someone

who testified at a BCAD hearing, Johnson filed this lawsuit in the same district court appealing

BCAD’s final determination that his three tracts of property do not qualify for open-space

appraisal for tax year 2022.1 See Tex. Tax Code §§ 41.41 (specifying actions of appraisal

district’s appraisal review board that property owner is entitled to protest), 42.01 (providing

property owner right to appeal order of appraisal review board); see also id. § 23.25 (defining

“[q]ualified open-space land”).

BCAD filed a general denial and shortly thereafter a Motion for Order Re-

Determining Plaintiff a Vexatious Litigant and Requesting Security. See Tex. Civ. Prac. & Rem.

Code § 11.051 (providing for defendant’s right to move for such order); see also id. §§ 11.101(a)

(permitting court on its own motion or that of any party to enter order prohibiting person from

filing, pro se, “a new litigation in a court to which the order applies” without permission of local

administrative judge if court finds person is vexatious litigant), .101(e) (providing that prefiling

order entered under Subsection (a) by district court applies to each court in state). BCAD’s

filing of its motion stayed the litigation until either (1) the tenth day after the motion was

denied or (2) BCAD received written notice that security was posted, if the motion was granted.

See id. § 11.052(a).

While the litigation was stayed, Johnson filed a motion under the Texas Citizens

Participation Act (TCPA), see id. § 27.003, seeking to dismiss BCAD’s vexatious-litigant

motion. After an evidentiary hearing, in a May 17, 2023 order the trial court granted BCAD’s

motion and determined that Johnson is a vexatious litigant. The order required Johnson to

1 This prior vexatious-litigant determination was affirmed on appeal. See Johnson v. Tepper, No. 07-23-00146-CV, 2023 WL 5020301, at *1 (Tex. App.—Amarillo Aug. 7, 2023, pet. denied) (mem. op.).

2 furnish cash or a surety bond of $38,000 within thirty days of the order or else his case would be

dismissed and specified that the litigation’s stay would continue until Johnson complied with the

order or the case was dismissed. While the case remained stayed, Johnson filed a plea to the

jurisdiction, seeking to dismiss his own lawsuit. In his plea, Johnson alleged that BCAD’s final

order was “void” and that, therefore, the trial court had no jurisdiction over his lawsuit for

judicial review of that order. After Johnson failed to timely furnish security, the trial court

dismissed his case.

Johnson filed notices of appeal regarding each of the trial court’s orders, after

which this Court rendered an order staying the appeal until Johnson obtained permission

from the local administrative judge to file the appeals, since earlier he had been declared a

vexatious litigant. See id. §§ 11.102, .103; see Johnson, 2023 WL 5020301, at *1. Johnson

submitted an order for signature to the local administrative judge, who signed the order and

granted him permission to file these appeals. After this Court received the signed order, it

reinstated the appeals.

DISCUSSION

Vexatious-litigant finding

As relevant here, Chapter 11 of the Texas Civil Practice and Remedies Code

authorizes a trial court to find that a pro se plaintiff is a vexatious litigant upon proof of two

elements: (1) no reasonable probability the plaintiff will prevail in the present litigation and

(2) “the plaintiff, in the seven-year period immediately preceding the date the defendant

makes the motion under Section 11.051, has commenced, prosecuted, or maintained at least five

litigations as a pro se litigant other than in a small claims court that have been finally determined

3 adversely to the plaintiff[.]” Tex. Civ. Prac. & Rem. Code § 11.054(1)(A). An appellate court

reviews for abuse of discretion a trial court’s determination that a plaintiff is a vexatious litigant.

Leonard v. Abbott, 171 S.W.3d 451, 459 (Tex. App.—Austin 2005, pet. denied).

Among seven other issues he raises in Cause Number 03-23-00354-CV, Johnson

in his third and fourth issues challenges whether BCAD produced evidence sufficient to establish

both elements of the vexatious-litigant statute. See Tex. Civ. Prac. & Rem. Code § 11.054(1)(A).

BCAD bore the burden of proving that Johnson had no reasonable probability of prevailing

on the merits of his lawsuit, see Retzlaf v. GoAmerica Comm’ns Corp., 356 S.W.3d 689, 703

(Tex. App.—El Paso 2011, no pet.), and because we conclude that BCAD produced insufficient

evidence to meet this burden, we sustain Johnson’s fourth issue in Cause Number 03-23-00354-

CV, as explained below, and thus need not reach his remaining issues in that appeal. See Tex.

R. App. P. 47.1, 47.4.

In determining whether no reasonable probability exists that the plaintiff will

prevail in the subject lawsuit, we may consider exhibits and testimony or decide the issue based

on the plaintiff’s pleadings. Serafine v. Crump, 665 S.W.3d 93, 107–08 (Tex. App.—Austin

2023, pet. filed). In his live petition, Johnson alleges that he applied for open-space appraisal for

the “agricultural use of beekeeping” for tax year 2022 and that his application “contained all the

necessary requirements that qualified 20 acres of [his total] 20.87 acres” for the appraisal but that

BCAD’s Appraisal Review Board (ARB) improperly determined that the acreage did not qualify.

See Tex. Tax Code §§ 42.01(a)(1) (authorizing property owner to appeal order of appraisal

review board), .21 (outlining procedures for judicial review of order), .23 (providing that judicial

review is by trial de novo).

4 To qualify for an open-space appraisal for tax year 2022, Johnson must prove two

elements: (1) that the land is “currently devoted principally to agricultural use to the degree of

intensity generally accepted in the area” (the intensity-of-use requirement) and (2) that the land

“has been devoted principally to agricultural use . . . for five of the preceding seven years” (the

historical-use requirement). See id. § 23.51(1). “Agricultural use” includes “raising or keeping

livestock.” See id. § 23.51(2). BCAD challenged only the second element (the historical-use

requirement) in its motion to redetermine Johnson a vexatious litigant when asserting that there

is no reasonable probability that Johnson will prevail in this lawsuit seeking review of its

determination that his acreage did not qualify.

In Johnson’s application for open-space appraisal for tax year 2022, he explained

that he met this historical-use requirement because he had principally used the property for at

least five of the previous seven years for the “agricultural use of keeping horses.” He attached to

his application two separate, non-binding arbitrator’s decisions from earlier disputes with BCAD

containing fact findings that Johnson’s principal use of the property for tax years 2015, 2016,

2017, and 2018 was agricultural (by Johnson’s keeping and grazing of horses). Johnson also

attached to his application photos of horses on the property in 2020 and testimony from prior

lawsuits that he contended proved the same principal agricultural use of keeping and grazing

horses for tax years 2019 and 2021.

In its motion to redetermine Johnson a vexatious litigant, BCAD argued that

Johnson had no reasonable probability of prevailing in his lawsuit because (1) the jury in a 2019

trial determined that Johnson’s land did not qualify for the open-space appraisal for tax year

2019 and (2) testimony at that trial “was that the use of the property was the same for at least the

seven years prior to 2019,” precluding Johnson from establishing the historical-use requirement

5 for tax year 2022. The trial court conducted a hearing on BCAD’s motion and admitted evidence

offered by BCAD and Johnson. Johnson’s admitted evidence included a copy of his open-space

appraisal application for tax year 2022, described above. BCAD’s admitted evidence on the

historical-use issue comprised (1) a portion of Johnson’s testimony from the 2019 trial in which

he testified about his ranch’s 2019 Facebook postings, (2) copies of those Facebook postings,

(3) photos of people riding horses on Johnson’s ranch and playing polocrosse, and (4) a copy of

the 2019 judgment reciting that the jury answered negatively the question, “Do you find from a

preponderance of the evidence that [Johnson’s] property is entitled to be appraised as qualified

open-space land for tax year 2019?” Besides this judgment reflecting the broad-form question

posed to the jury, BCAD did not seek to admit as evidence the 2019 jury charge containing

definitions of relevant terms, such as “agricultural use” or “livestock.”

In Johnson’s 2019 trial testimony admitted by the trial court in this proceeding,

Johnson confirmed that a Facebook post stated, “We have been feeding our horses

predominantly on fodder, sprouted barley seeds, since 2011.”2 Johnson confirmed in that

testimony that photos admitted at the trial depicted people playing or practicing polocrosse on his

ranch. Other photographs depicted people training horses to play polocrosse, and his ranch’s

Facebook page, in the “about” tab, explained, “We raise and train horses for polocrosse.” The

ranch’s Facebook page contained references to the ranch and its owners’ (Johnson and his wife)

“raising and training horses for polocrosse.” Further postings on the ranch’s Facebook page

referenced Johnson’s recent acquisition of new horses that he planned to “start/train for

polocrosse” and sell.

2 In questioning Johnson at the 2019 trial, BCAD’s attorney appears to have sought to establish that Johnson’s feeding his horses predominately on fodder precluded him from claiming the qualifying agricultural use of grazing horses on the land.

6 The entirety of BCAD’s argument below about whether Johnson has no

reasonable probability of success in this lawsuit, as expressed in its motion, reads:

Plaintiff’s lawsuit seeks to obtain open-space appraisal on his property due to its purported agricultural use. In order to receive open-space appraisal on the basis of agricultural use the property must have been principally devoted to agricultural use for five of the preceding seven years. Tex. Tax Code § 23.51(1). A jury trial was held in this Court on cause number 1498-21, Paul Johnson v. Bastrop Central Appraisal District. The jury found that the subject property was not entitled to be appraised as qualified open-space land for tax year 2019.

Testimony at the trial was that the use of the property was the same for at least the seven years prior to 2019. Accordingly, there is no reasonable probability that Plaintiff will be able to establish the historical agricultural use necessary to qualify for open-space appraisal in tax year 2022.

At the hearing on its motion, BCAD argued that it was admitting portions of the 2019 trial

testimony, the Facebook posts, and photos of people playing polocrosse on the subject property

“going back many years” to demonstrate that the principal use of Johnson’s property, from 2011

to 2019, has been to train horses for polocrosse, which is not an agricultural use but a

“recreational use.”3 Therefore, BCAD concluded, it was impossible for Johnson to meet the

historical-use requirement because at least some of the five years preceding tax year 2022 on

which he would need to rely would fall within that 2011–2019 span.

However, BCAD did not cite below, and has not cited in its briefing with this

Court, any authority supporting its assertion that keeping, raising, and training horses for

polocrosse or sale or feeding them on fodder is not an “agricultural use” of land on which the

horses are kept. Furthermore, based on the evidence relied on by BCAD below, we cannot

conclusively determine on this record that the cited uses of Johnson’s land constituted his

3 BCAD appears to have made the same “recreational use” versus “agricultural use” argument at the 2019 trial, representing in its brief that its Chief Appraiser and Deputy Chief Appraiser had testified thusly at the trial. Such testimony is not in the appellate record.

7 principal use for five of the previous seven years. Also, although BCAD relies heavily on the

jury’s 2019 finding that Johnson was not entitled to the open-space appraisal for tax year 2019,

we cannot glean from the record whether that finding was based on Johnson’s failure to prove

the historical-use requirement, the intensity-of-use requirement, or both. While BCAD may

ultimately prevail in the de novo trial of the issue, we cannot say—based on the evidence relied

upon by BCAD and the arguments it has raised—that BCAD met its burden to demonstrate that

Johnson’s lawsuit has no reasonable probability of success.

Accordingly, we conclude that the trial court abused its discretion in finding

that Johnson has no reasonable probability of prevailing in his lawsuit and in declaring him a

vexatious litigant. We reverse the trial court’s orders (1) declaring Johnson a vexatious litigant

and requiring him to post security to maintain this suit and (2) dismissing Johnson’s lawsuit for

failure to furnish security. See Walp v.Williams, 330 S.W.3d 404, 408 (Tex. App.—Fort Worth

2010, no pet.) (reversing vexatious-litigant order and subsequent dismissal order for plaintiff’s

failure to furnish security because order requiring posting of security was based on erroneous

vexatious-litigant finding).

Whether the trial court had jurisdiction over Johnson’s suit

In Cause Number 03-23-00404-CV, Johnson first contends that the trial court

lacked jurisdiction over his own lawsuit and accordingly erred in denying his plea to the

jurisdiction. We initially note that the trial court did not rule on Johnson’s plea to the

jurisdiction, as the plea was filed while the case was stayed. See In re University of Tex. MD

Anderson Cancer Ctr., No. 01-19-00202-CV, 2019 WL 3418568, at *3 (Tex. App.—Houston

[1st Dist.] July 30, 2019, no pet.) (mem. op.) (recognizing general rule that pleadings and

8 motions filed during pendency of stay are ineffective while stay is in effect). Upon the court’s

dismissal of the case for Johnson’s failure to furnish security, the plea to the jurisdiction was—

as the trial court stated on the record at the dismissal hearing—moot. Thus, no ruling by the

trial court on Johnson’s plea to the jurisdiction is before us to review on appeal. Cf. Tex. R. App.

P. 33.1(a).

However, we may nonetheless address his contention that the trial court lacked

subject-matter jurisdiction over his suit because issues of subject-matter jurisdiction may be raised

for the first time on appeal. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,

445 (Tex. 1993). As best we can understand Johnson’s argument, he appears to have filed his

lawsuit to preserve his right to judicial review in the event that the trial court rejected his

contention that BCAD’s order was void. But he contends that BCAD’s order was not truly

“final” because his requests for binding arbitration were still pending when the order was issued.

In any event, review of Johnson’s jurisdictional argument requires a brief summary of the

available remedies that property owners may invoke to challenge the actions of appraisal

districts.

A property owner must first bring his complaint against an appraisal district to

its ARB by way of a protest or a motion. See Tex. Tax Code §§ 25.25, 41.41. If the appraisal

district and the property owner cannot resolve the protest or motion by agreement, the ARB is

required to schedule a hearing at which the property owner is entitled to offer evidence or

argument. See id. §§ 41.445, 41.45. At the conclusion of the hearing, the ARB is required to

determine the protest and make its decision by written order. Id. § 41.47(a). In counties like

Bastrop, with a population of less than four million, the final order must be issued and delivered

9 to the property owner no later than the thirtieth day after the date the hearing on the protest is

concluded. Id. § 41.47(d), (f).

Once a property owner receives notice of the ARB’s order, the property owner

can appeal the substance of that decision in the following ways: by filing an appeal in district

court, id. § 42.01; by appealing certain orders to an arbitrator, id. § 41A.01; or by appealing

certain other orders to the State Office of Administrative Hearings, see Tex. Gov’t Code

§§ 2003.901–.914. To challenge the procedures used by the ARB in determining their protest,

property owners may request limited binding arbitration. See Tex. Tax Code § 41A.015. This

avenue applies only to certain procedural complaints and may not be used to consider the

substance of a decision. See id.

The protest hearing that Johnson appeals in his original petition was held on

December 1, 2022. In addition to this lawsuit, Johnson filed two requests for limited binding

arbitration under Section 41A.015 challenging that December 1, 2022 hearing. While those

requests for limited binding arbitration were pending, BCAD’s ARB issued its final order and,

under Johnson’s reasoning, that order was accordingly void because his protest was not “ripe”

while the arbitration requests were pending. In other words, Johnson contends that the trial court

had no jurisdiction over his suit because BCAD’s “final order” was not, in fact, final since his

request for arbitration with respect to the ARB’s decision was still pending, precluding BCAD

from rendering a final order. Thus, he argues, his case before BCAD was not ripe for a final

decision, the final order was void, and the trial court should have dismissed his suit without

prejudice to allow his arbitration requests to conclude.

The statutory scheme requires the ARB to issue its written order and deliver it to

the property owner within thirty days after the date the protest hearing is concluded. See Tex.

10 Tax Code § 41.47(d), (f). The statute makes no exception for ARBs to delay issuing their orders

because a request for limited binding arbitration is pending or arbitration is ongoing. Cf. id.

Rather, if the arbitrator determines that the ARB or chief appraiser failed to comply with a

procedural requirement as alleged in the request for limited binding arbitration, the ARB shall

“rescind the order and hold a new hearing on the protest that complies with the procedural

requirement.” Id. § 41A.015(j)(2)(B). If an ARB’s order issued while a limited binding

arbitration was pending was void, no need to rescind the purportedly void order would exist, and

Section 41A.015(j)(2)(B) would serve no meaningful purpose. Instead, the ARB is required to

timely issue the order and only if the limited binding arbitration is successful will the order be

rescinded and a new hearing held.4 See id. §§ 41A.015(j)(2)(B), 41.47(d), (f). Accordingly,

Johnson’s argument that BCAD’s order was void so as to deprive the trial court of jurisdiction to

review that order is without merit. We overrule Johnson’s first issue in Cause Number 03-23-

00404-CV.

Johnson’s second and third issues pertain to the TCPA motion that he filed while

the case was stayed. He complains that the trial court erred in failing to grant his TCPA motion

and in failing to make findings of fact related to the motion. However, the trial court did not

rule on the motion, instead dismissing the lawsuit for Johnson’s failure to furnish security. We

therefore need not address Johnson’s second and third issues because no ruling on the TCPA

motion is before this Court to review. Cf. Tex. R. App. P. 33.1(a).

4 The record establishes that neither of Johnson’s requests for limited binding arbitration was successful.

11 CONCLUSION

Having sustained Johnson’s fourth issue in Cause Number 03-23-00354-CV and

overruled his jurisdictional challenge in Cause Number 03-23-00404-CV, we reverse the trial

court’s orders (1) declaring him a vexatious litigant and requiring him to furnish security and

(2) dismissing his lawsuit for failure to furnish security, and we remand these causes for

further proceedings.

__________________________________________ Thomas J. Baker, Justice

Before Justices Baker, Triana, and Smith

Reversed and Remanded

Filed: June 21, 2024