Opinion

Opinion issued August 29, 2014

In The

Court of Appeals

For The

First District of Texas

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NO. 01-13-00181-CV

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HOPE OBIKA WAOBIKEZE D/B/A HOPE’S FASHION AND BEAUTY

SUPPLY, Appellant

V.

FORT BEND COUNTY, STAFFORD MUNICIPAL SCHOOL DISTRICT,

FORT BEND COUNTY GENERAL FUND, HOUSTON COMMUNITY

COLLEGE SYSTEM, FORT BEND COUNTY DRAINAGE DISTRICT,

AND FORT BEND COUNTY WATER CONTROL IMPROVEMENT

DISTRICT #02, Appellees

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Case No. 11-DCV-195333

MEMORANDUM OPINION

In this ad valorem tax case, appellant, Hope Obika Waobikeze d/b/a Hope’s

Fashion and Beauty Supply, challenges the trial court’s judgment that she owes

delinquent taxes to the appellee taxing units 1 for the tax years 2005–2007. In three

issues, appellant argues that (1) appellees violated her due process rights by failing

to provide her with notice of their intention to conduct an evaluation of her

business or an opportunity to provide appellees with an accurate inventory list; (2)

appellees grossly overvalued appellant’s business and thus overestimated the taxes

owed; and (3) the trial court erred in finding her liable for the taxes assessed and

granting judgment in favor of appellees. We affirm.

Background

On December 28, 2011, appellees filed suit against appellant to collect

delinquent ad valorem taxes on her personal property, inventory, furniture,

fixtures, and equipment located at 12240 Murphy Road in Stafford, Texas, for tax

years 2005–2007. Appellant filed her answer on January 23, 2012.

On February 12, 2013, a bench trial was held at which appellees introduced

a certified copy of the delinquent tax statement issued by the Fort Bend County

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The taxing units are Fort Bend County, Stafford Municipal School District, Fort

Bend County General Fund, Houston Community College System, Fort Bend

County Drainage District, and Fort Bend County Water Control Improvement

District #02. The Fort Bend County Tax Assessor/Collector collects taxes for the

taxing units in this case.

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Tax Assessor/Collector’s Office for appellant’s property. 2 On February 13, 2013,

the trial court entered judgment in favor of appellees, adjudged appellant’s

property value at $132,000, and found that appellant owed $9,864.64 in delinquent

taxes and accrued penalties for tax years 2005–2007. Appellant timely filed this

appeal.

Discussion

In her first issue, appellant contends that appellees violated her due process

rights by failing to provide her with notice of their intention to conduct an

evaluation of her business or an opportunity to provide appellees with an accurate

inventory list. In her second issue, she argues that appellees grossly overvalued

her business and thus overestimated the taxes she owed. In her third issue,

appellant asserts that the trial court erred in finding her liable for the taxes assessed

and granting judgment in favor of appellees. Because appellant’s issues are

interrelated, we address them together.

A. Applicable Law

Section 25.19 of the Tax Code states that an appraisal review board must

give notice to a property owner of the appraised value of his land. TEX. TAX CODE

ANN. § 25.19 (West 2008). Under section 41.41(a)(1), “[a] property owner is

entitled to protest before the appraisal review board the . . . determination of the

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The court reporter has informed this Court in writing that no reporter’s record was

made in this case.

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appraised value of the owner’s property . . . .” Id. § 41.41(a)(1) (West 2008). To

do so, the property owner must timely file a written protest with the appraisal

review board within the applicable statute of limitations. See id. 41.44(a) (West

Supp. 2014). In addition, section 41.411(a) provides that a property owner is also

entitled to protest “the failure of the chief appraiser or the appraisal review board

to provide or deliver any notice to which the property owner is entitled.” Id. §

41.411(a) (West Supp. 2014). If a property owner is dissatisfied with a review

board’s determination of his protest, section 42.01 provides that the property owner

is entitled to seek judicial review of the review board’s order. See id. §

42.01(a)(1)(A) (West Supp. 2014). Administrative decisions are final if not

appealed to the district court within 60 days. Id. § 42.21(a) (West Supp. 2014).

The Texas Supreme Court has held that “a taxpayer’s failure to pursue an

appraisal review board proceeding deprives the courts of jurisdiction to decide

most matters relating to ad valorem taxes.” Cameron Appraisal Dist. v. Rourk, 194

S.W.3d 501, 502 (Tex. 2006) (citations omitted). “The administrative procedures

are ‘exclusive’ and most defenses are barred if not raised therein.” Id. (citing TEX.

TAX CODE ANN. § 42.09 (West 2008)). In particular, section 42.09(a) of the Tax

Code states that “[e]xcept 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, and a property owner may not raise any of those grounds . . . in

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defense to a suit to enforce collection of delinquent taxes . . . .” TEX. TAX CODE

ANN. § 42.09(a)(1) (West 2008).

B. Analysis

Appellant contends that appellees failed to give her notice of their intention

to conduct an evaluation of her property or an opportunity to provide them with an

accurate inventory list. She argues that, in failing to do so, appellees did not

provide her with a meaningful opportunity to dispute appellees’ action, and thus

deprived her of due process. Appellees assert that appellant was not deprived of

due process in this matter.

The notice provisions, the method to contest valuations and taxes, and the

procedures for judicial review contained in the Property Tax Code afford complete

due process protection to a property owner. First Nat’l Bank of Bellaire v.

Huffman Indep. Sch. Dist., 770 S.W.2d 571, 572 (Tex. App.—Houston [14th Dist.]

1989, writ denied). The Tax Code provides taxpayers with administrative

procedures specifically created to allow them to protest defective notice and

improper actions by the taxing units. See TEX. TAX CODE ANN. §§ 41.41(a),

41.411(a). 3 In particular, the purpose of section 41.411 is to determine whether a

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Section 41.411 of the Tax Code provides taxpayers with the due process

protections that had been lacking under the previous statutory scheme. See MAG-

T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 631 (Tex. App.—Austin

2005, pet. denied). Before the enactment of section 41.411, the property tax

scheme did not provide taxpayers with adequate remedies at law to cure defective

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property owner failed to receive notice of a tax assessment, thereby depriving it of

the right to be heard at the administrative level. See Denton Cent. Appraisal Dist.

v. CIT Leasing Corp., 115 S.W.3d 261, 266 (Tex. App.—Fort Worth 2003, pet.

denied); Harris Cnty. Appraisal Review Bd. v. Gen. Elec. Corp., 819 S.W.2d 915,

919 (Tex. App.—Houston [14th Dist.] 1991, writ denied).

There is no evidence in the record before us that appellant protested

appellees’ alleged failure to provide her with notice of her property valuation at the

administrative level, nor does appellant make this argument. Because statutory

procedures satisfy due process requirements, a taxpayer who does not avail herself

of the procedures is precluded from collaterally attacking property tax assessments.

See Hood v. Hays Cnty., 836 S.W.2d 327, 329 (Tex. App.—Austin 1992, no writ);

Herndon Marine Prods., Inc. v. San Patricio Cnty. Appraisal Dist., 695 S.W.2d 29,

35 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.). As appellant did not avail

herself of the statutory administrative remedies available, she has not shown that

she was deprived of due process. 4

notice. Id. at 630. Thus, courts developed equitable remedies in order to provide

taxpayers with due process protections. Id. at 630–31.

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In support of her position that the taxing units failed to provide her with proper

notice of the valuation of her property, appellant also argues that “appellees[s] sent

[their] notice to Hope’s Fashion and Beauty Supply at its 12240 Murphy Road[,]

Stafford, Texas address despite the fact that it knew or should have known that the

store had been closed down.” Appellant cites no authority for her argument that a

taxing entity is charged with the duty of determining whether a business still

exists, nor are we aware of any. Further, as the owner of the business, appellant

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Appellant also contends that the taxing units grossly overvalued her business

and, thus, overestimated the taxes she owed. Specifically, she contends that her

business was erroneously valued at $132,000 when it was only worth $10,000,

resulting in an overestimation of the delinquent taxes. Appellees argue that

appellant is barred from raising the issue of valuation as a defense in this suit to

collect delinquent taxes.

Under section 41.41, “[a] property owner is entitled to protest before the

appraisal review board the . . . determination of the appraised value of the owner’s

property . . . .” TEX. TAX CODE ANN. § 41.41(a)(1). The administrative procedures

prescribed in the Tax Code to adjudicate an appraisal value protest are exclusive

and a property owner may not raise such a protest as a defense to a suit to enforce

collection of delinquent taxes. See id. § 42.09(a)(1). Thus, failure to exhaust the

exclusive administrative remedies precludes judicial review of the appraisal and

also deprives the property owner of the right to raise such protest as a defense

had the obligation to render the property according to statute. See TEX. TAX CODE

ANN. § 22.01(a) (West Supp. 2014) (“[a] person shall render for taxation all

tangible personal property used for the production of income that the person owns

or that the person manages and controls as a fiduciary on January 1.”). Appellant

cannot defend her failure to pay statutorily mandated ad valorem taxes on the

ground that the taxing entities should have known the business was closed. See

Dan’s Big & Tall Shop, Inc. v. Cnty. of Dallas, 160 S.W.3d 307, 311 (Tex. App.—

Dallas 2005, pet. denied) (concluding that to extent notice delivered to appellant’s

business address was inexact, fault belonged to appellant, not to appraisal district).

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against a suit to enforce collection of delinquent taxes. See Nevada Gold & Silver,

Inc. v. Andrews Indep. Sch. Dist., 225 S.W.3d 68, 76 (Tex. App.—El Paso 2005,

no pet.); CIT Leasing Corp., 115 S.W.3d at 264; First Bank of Deer Park v. Harris

Cnty., 804 S.W.2d 588, 592 (Tex. App.—Houston [1st Dist.] 1991, no writ); see

also Tex. Educ. Agency v. Cypress–Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90

(Tex. 1992) (noting party must exhaust administrative remedies before seeking

judicial review of agency action). Here, appellant could have protested the

determination of the appraised value of her property but there is no evidence in the

record that she did so. Having failed to exhaust the exclusive administrative

remedies, appellant is precluded from raising the issue of overvaluation of her

property as a defense in this suit.

Appellant also asserts that the trial court erred in finding that she owed

$9,864.64 in delinquent taxes and accrued penalties and granting judgment in favor

of appellees. Appellees, however, argue that because they established their prima

facie case as to every material fact necessary to establish their cause of action and

appellant failed to rebut their evidence, the trial court properly entered judgment in

their favor.

Section 33.41 of the Tax Code authorizes a taxing unit, “[a]t any time after

its tax on property becomes delinquent,” to file suit to enforce the taxpayer’s

personal liability for the tax. Id. § 33.41(a) (West 2008). In this suit, the taxing

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unit must “join other taxing units that have claims for delinquent taxes against all

or part of the same property.” Id. § 33.44(a) (West 2008). Section 33.47(a)

provides:

In a suit to collect a delinquent tax, the taxing unit’s current tax roll

and delinquent tax roll or certified copies of the entries showing the

property and the amount of the tax and penalties imposed and interest

accrued constitute prima facie evidence that each person charged with

a duty relating to the imposition of the tax has complied with all

requirements of law and that the amount of tax alleged to be

delinquent against the property and the amount of penalties and

interest due on that tax as listed are the correct amounts.

Id. § 33.47(a) (West 2008).

Once a taxing authority in a delinquency suit introduces the tax records

described in section 33.47(a) into evidence, it establishes a prima facie case “as to

every material fact necessary to establish its cause of action.” City of Bellaire v.

Sewell, 426 S.W.3d 116, 120 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Nat’l

Med. Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 906 (Tex.

App.—Dallas 2004, no pet.). Once a taxing unit establishes a prima facie case, a

rebuttable presumption arises that the taxing entity has taken all actions necessary

to obtain legal authority to levy the tax, including proper delivery of all required

tax notices. See Aldine Indep. Sch. Dist. v. Ogg, 122 S.W.3d 257, 264 (Tex.

App.—Houston [1st Dist.] 2003, no pet.) Thus, after the taxing authority makes its

prima facie case by introducing the required records, the burden of proof then

shifts to the taxpayer to show, by introducing competent evidence, that she has

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paid the full amount of taxes, penalties, and interest or that there is some other

defense that applies to her case. City of Bellaire, 426 S.W.3d at 120.

Here, appellees complied with section 33.47(a) by introducing into evidence

a certified copy of the tax statement for appellant’s property for tax years 2005-

2007, showing the delinquent tax, penalties, and interest owing for the property.

The taxing units thus established a prima facie case as to every material fact

necessary to establish their cause of action. See id. The burden then shifted to

appellant to introduce competent evidence showing that she has paid the full

amount of taxes, penalties, and interest or that there is some other defense that

applies to her case. See id.

At the hearing, appellant introduced a detailed sales report for merchandise

sold in 2006, a beauty supply inventory list as of June 30, 2006, and a copy of a

self-service storage rental agreement dated June 1, 2007. Aside from arguing that

her property was overvalued—which, as noted above, is not a proper defense in a

suit to recover delinquent taxes—there is no evidence that appellant asserted any

other defenses. Appellant responds by arguing that even if appellees established

their prima facie case, she should be given an opportunity to rebut the presumption.

Appellant’s argument is without merit. Contrary to her assertion, appellant had an

opportunity to present defensive evidence at the hearing to rebut the presumption

that the taxing units had taken all actions necessary to obtain legal authority to levy

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the tax, including proper delivery of all required tax notices. The record before us

is devoid of any evidence that she did so.

Where, as here, no findings of fact or conclusions of law were requested, the

trial court’s judgment implies all necessary findings of fact to support it. Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). We conclude that

the trial court did not err in finding that appellant owed delinquent taxes for the tax

years 2005–2007, and that it properly granted judgment in favor of appellees. We

overrule appellant’s issues one through three.

Conclusion

We affirm the trial court’s judgment.

Jim Sharp

Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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