Aldine Independent School District v. Connie Ogg and Jack C. Ogg

Opinion issued August 21, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-00-01412-CV

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ALDINE INDEPENDENT SCHOOL DISTRICT, HARRIS COUNTY,

HARRIS COUNTY EDUCATION DEPARTMENT, PORT OF HOUSTON

OF HARRIS COUNTY, HARRIS COUNTY FLOOD CONTROL

DISTRICT, HARRIS COUNTY HOSPITAL DISTRICT, NORTH HARRIS

MONTGOMERY COMMUNITY COLLEGE DISTRICT, AND THE CITY

OF HOUSTON, Appellants

V.

CONNIE OGG AND JACK C. OGG, Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 1998-49492

O P I N I O N

In this ad valorem tax case, the trial court entered judgment against appellees,

Jack C. Ogg, in personam , and against Connie Ogg, in rem , in favor of the appellant

taxing authorities, Aldine Independent School District (AISD), Harris County, and

other taxing units (1) (collectively "the County") for delinquent ad valorem taxes owed

on a piece of real property. The portion of the judgment awarding base taxes to

appellants is not challenged here. Rather, AISD and the County challenge the legal

and factual sufficiency of the evidence supporting that portion of the judgment

denying them penalties, interest, costs, and attorney's fees associated with collection

of the ad valorem taxes.

We affirm in part and reverse and remand in part.

Factual and Procedural Background

In 1962, Jack Ogg acquired 1.5 acres of unimproved real property ("the

property") in Harris County. In 1987, the City of Houston filed suit against Jack Ogg

for delinquent taxes on the property, along with penalties and interest, for tax years

1982 through 1986. Jack Ogg made an appearance in the case, but the suit was

eventually dismissed without prejudice. Jack Ogg owned the property until October

1990, at which time he conveyed it to his wife, Connie Ogg.

In 1998, AISD filed suit against Connie and Jack Ogg seeking delinquent taxes

on the property for tax years 1977 through 1987, and 1995 through 1997. AISD later

stipulated that its claim for the 1977 taxes was barred by the statute of limitations.

The County intervened in the suit, seeking recovery of delinquent taxes for tax years

1984 through 1987 and 1995 through 1998. AISD and the County also sought

penalties, interest, costs, and attorney's fees. Before trial, the Oggs paid the taxes,

interest, penalties, and attorney's fees owed to AISD and the County for tax years

1995 through 1999, and those years are not at issue on appeal. (2) The relevant tax years

at issue in this appeal are 1978 through 1987 for AISD and 1984 through 1987 for the

County.

The Oggs have never claimed that they paid the taxes for the years in question.

Rather, the dispute involves whether the taxing units delivered tax bills and

delinquency notices to the Oggs, namely Jack Ogg, as required by law during the

years in question.

The case was initially tried before a tax master, who issued a report stating his

findings and recommendations. With regard to the tax years at issue in this appeal,

the tax master recommended that judgment be entered against Jack Ogg, in personam ,

and Connie Ogg, in rem , in favor of AISD for base taxes for 1978 through 1987 and

in favor of the County for 1984 through 1987. The tax master also recommended that

the taxing units be awarded penalties, interest, and collection costs for years 1985,

1986, and 1987. AISD, the County, and the Oggs appealed the tax master's decision

to the district court, which reviewed the tax master's decision in a trial de novo. It

is the decision of the district court that is the subject of this appeal.

Following the trial de novo, the trial court entered judgment awarding AISD

base taxes for 1978 through 1987, and the County base taxes for 1984 through 1987.

However, the trial court specified that none of the taxing units were entitled to

interest, penalties, attorney's fees, or costs. In support of the judgment, the trial court

filed 84 findings of fact and 42 conclusions of law. In sum, the trial court found and

concluded that AISD and the County failed to "deliver" tax bills, delinquent tax

statements, and delinquent tax notices as required by law. Specifically, the trial court

found that neither AISD nor the County had delivered the five-year delinquent tax

notices as required by Tax Code section 33.04(b), and that the taxing units had not

delivered the required tax bills or statements for the individual years in

question--1978 through 1987 for AISD and 1984 through 1987 for the County.

The trial court also found that, over the years, the taxing units had failed to

send the required notices and bills to Ogg's correct addresses. The trial court found

the evidence showed that AISD and the County had either no address or incorrect

addresses for the Oggs during the years in question. The trial court ultimately

concluded that, because AISD and the County had not delivered the required notices,

the taxes at issue were not "delinquent" and, as a result, AISD and the County were

not entitled to penalties, interest, attorney's fees, or costs for the tax years at issue.

Issues Presented

In two multi-pronged issues, AISD contends that (1) the evidence was legally,

or alternatively, factually insufficient for the trial court to find that AISD did not

"deliver" tax bills, delinquent tax statements, and notices of delinquency, and (2) no

legal authority or factual basis existed for the trial court to deny AISD's recovery of

penalties, interest, court costs, and attorney's fees for the delinquent tax years, as well

as post-judgment interest.

In seven issues, the County contends that (1) the evidence was legally, or

alternatively, factually insufficient to support the trial court's findings that the County

failed to deliver the required delinquency notices pursuant to Tax Code section

33.04(b); (2) the trial court erred in failing to award attorney's fees, costs, and post-judgment interest; and (3) to that the extent the trial court's judgment extinguishes

interest that has accrued since August 26, 1991, it violates Article III, § 55 of the

Texas Constitution.

Discussion

A. Legal and Factual Sufficiency

We first discuss the appellants' contentions that the evidence was legally and

factually insufficient to support the trial court's findings of fact that AISD and the

County failed to deliver delinquency notices and tax bills to the Oggs, as required by

the Tax Code.

1. Penalties and Interest

Only two provisions of the Tax Code provide for cancellation or waiver of

penalties and interest on delinquent taxes--section 33.011, which is not applicable

to this case, (3) and section 33.04.

a. Section 33.04

In 1979, the legislature passed Senate Bill number 621, which enacted the

applicable provisions of the Tax Code. (4) One of these provisions of the newly-enacted

Tax Code was section 33.04, entitled "Notice of Delinquency," which became

effective January 1, 1982. (5) Since its enactment, this section of the code (6) was

amended in 1981, 1985, 1999, and 2001. (7) Following the 1985 amendments, section

33.04 read as follows:

(a) At least once each year the collector for a taxing unit shall deliver

a notice of delinquency to each person whose name appears on

the current delinquent tax roll. However, the notice need not be

delivered if:

(1) a bill for the tax was not mailed pursuant

to the authorization provided by Subsection

(f) of Section 31.01(f) of this code; or

(2) the collector does not know and by

reasonable diligence cannot determine the

delinquent taxpayer's name and address.

(b) In addition to the notice required by Subsection (a) of this section,

the tax collector for each taxing unit in each year divisible by five

shall deliver by mail a written notice of delinquency to each

person who owes a tax that has been delinquent more than one

year and whose name and mailing address are known to the

collector or can be determined by the exercise of reasonable

diligence. He shall state in the notice the amount of the

delinquent tax, penalties, and interest due, the description of the

property on which the tax was imposed, and the year for which

the tax is delinquent. If the person owes delinquent taxes for

more than one year or on more than one property, the collector

may include all delinquent taxes the person owes in a single

notice.

(c) Penalties and interest on a tax delinquent more than five years or

a multiple of five years are cancelled and may not be collected if

the collector has not delivered the notice required by Subsection

(b) of this section in each year that is divisible by five following

the date on which the tax first became delinquent for one year. (8)

The 1985 amendments became effective August 26, 1985, and applied to

notices required by subsections (a) and (b) to be given in 1985. (9) Section 33.04 was

not amended again until 1999. (10) The 1999 amendment became effective January 1,

2000 (11) and applied only to 33.04(b) notices given in and after 2000. (12) Thus, the 33.04

notices required to be given by AISD and the County in 1985, 1990, and 1995 were

governed by the 1985 version of section 33.04. (13)

To reiterate, AISD claimed delinquent taxes, penalties, and interest were owed

on the property for tax years 1978 through 1987; the County's claim covered tax

years 1984 through 1987. Pursuant to section 33.04(b), AISD was required to deliver

delinquency notices to Jack Ogg in 1985, 1990, and 1995. (14) The County was required

to give 33.04(b) notices in 1990 and 1995. As stated by subsection 33.04(c), failure

by AISD or the County to give the required 33.04(b) notices mandated cancellation

of penalties and interest on the taxes owed. (15)

b. Presumptions and Burden of Proof

Tax Code subsection 33.47(a) addresses evidentiary concerns in delinquent tax

cases and provides as follows:

(a) 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.

Tex. Tax Code Ann. § 33.47 (a) (Vernon 2001). Once the taxing unit introduces

these records, it establishes a prima facie case as to every material fact necessary to

establish its cause of action. Davis v. City of Austin , 632 S.W.2d 331, 333 (Tex.

1982); see also Phifer v. Nacogdoches County Cent. Appraisal Dist ., 45 S.W.3d 159,

174 (Tex. App.--Tyler 2000, pet. denied); Escamilla v. City of Laredo , 9 S.W.3d 416,

421 (Tex. App.--San Antonio 1999, pet. denied). When the taxing unit establishes

a prima facie case in a tax delinquency suit, 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 Flowers v. Lavaca County

Appraisal Dist. , 766 S.W.2d 825, 828 (Tex. App.--Corpus Christi 1989, writ denied)

(stating taxing unit's establishment of prima facia case creates presumption that

taxing entity has taken all actions necessary to obtain legal authority to levy tax); D

& M Vacuum Serv., Inc. v. Zavala County Appraisal Dist. , 812 S.W.2d 435, 437-38

(Tex. App.--San Antonio 1991, no writ) (discussing presumption of regularity

created by section 33.47); see also Phifer , 45 S.W.3d at 174 (determining that when

appraisal district introduced certified copies of delinquent tax record, it established

its prima facie case as to every material fact necessary to establish its cause of action,

including that taxpayer received proper delinquent tax notices).

Here, AISD introduced certified copies of their tax rolls; the County introduced

certified copies of its tax statements showing the delinquent taxes, penalties, and

interest owing for the property. After AISD and the County made their prima facie

case by introducing the official tax records, the burden then shifted to the Oggs to

show, by introducing competent evidence, that the taxing units had not delivered the

required tax notices. (16) See Escamilla , 9 S.W.3d at 421 ; D & M Vacuum Serv ., 812

S.W.2d at 438 . The presumption created by section 33.47 disappears if and when the

taxpayer meets its burden of producing competent evidence to justify a finding

against the presumed fact. (17) D & M Vacuum Serv ., 812 S.W.2d at 437 ; see also

Kirkconnell & Cooper, Inc . v. Point Isabel Indep. Sch. Dist. , 608 S.W.2d 743, 744

(Tex. Civ. App.--Corpus Christi 1980, no writ) (interpreting predecessor statute to

section 33.47). In other words, once the 33.47 presumption is established, the Oggs

had the burden "to go forward with [their] defensive evidence" related to the issue of

non-delivery. Escamilla , 9 S.W.3d at 421 (quoting David Graham Hall Found. v.

Highland Park Indep. Sch. Dist ., 371 S.W.2d 762, 764 (Tex. Civ. App.--Dallas 1963,

writ ref'd n.r.e.)).

2. Standard of Review

In an appeal from a bench trial, findings of fact have the same weight as a

jury's verdict. Amador v. Berrospe , 961 S.W.2d 205, 207 (Tex. App.--Houston [1st

Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as

in the present case, there is a complete reporter's record. Id . When there is a

reporter's record, the trial court's findings of fact are binding only if supported by the

evidence. Id. If the findings are challenged, the court of appeals will review the

sufficiency of the evidence supporting the findings. See State Bar of Tex. v. Roberts,

723 S.W.2d 233, 235 (Tex. App.--Houston [1st Dist.] 1986, no writ). We review the

legal and factual sufficiency of the evidence supporting a trial court's findings of fact

by the same standards that we apply to reviewing the legal or factual sufficiency of

the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297

(Tex. 1994).

When the appellant challenges the legal sufficiency of the evidence to support

a finding on which it did not have the burden of proof at trial, the appellant must

demonstrate on appeal that no evidence exists to support the adverse finding. (18)

Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983); II Deerfield Ltd. P'ship v.

Henry Bldg., Inc ., 41 S.W.3d 259, 264 (Tex. App.--San Antonio 2001, pet. denied);

Casino Magic Corp. v. King , 43 S.W.3d 14, 19 (Tex. App.--Dallas 2001, pet.

denied). In conducting a no-evidence review, an appellate court must "view the

evidence in a light that tends to support the finding of the disputed fact and disregard

all evidence and inferences to the contrary." Bradford v. Vento , 48 S.W.3d 749, 754

(Tex. 2001) (citing Weirich v. Weirich , 833 S.W.2d 942, 945 (Tex. 1990)). A

no-evidence point may be sustained only when the record discloses one of the

following: (1) there is a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital

fact. Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998).

If there is more than a scintilla of evidence to support the finding, the claim is

sufficient as a matter of law. Browning-Ferris, Inc. v. Reyna , 865 S.W.2d 925, 928

(Tex. 1993). But, if the evidence offered to prove a vital fact is so weak that it does

nothing more than create a mere surmise or suspicion of its existence, the evidence

is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem,

Inc. , 650 S.W.2d 61, 63 (Tex. 1983); Seideneck v. Cal Bayreuther Assocs. , 451

S.W.2d 752, 755 (Tex. 1970). "More than a scintilla of evidence exists where the

evidence supporting the finding, as a whole, 'rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.'" Burroughs

Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transp. Ins. Co.

v. Moriel , 879 S.W.2d 10, 25 (Tex. 1994)).

In reviewing a factual-sufficiency point, we consider all the evidence

supporting and contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp. , 772

S.W.2d 442, 445 (Tex. 1989). We set aside the verdict only if the finding is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex.1986). In a bench trial, the trial

court, as factfinder, is the sole judge of the credibility of the witnesses. Southwestern

Bell Media, Inc. v. Lyles , 825 S.W.2d 488, 493 (Tex. App.--Houston [1st Dist.] 1992,

writ denied).

With these legal principles in mind, we first determine whether the evidence

was legally and factually sufficient to support the trial court's findings that AISD and

the County failed to deliver the five-year delinquency notices required by subsection

33.04(b).

c. 33.04(b) Notices

i. 1985 Notice

As stated above, subsection 33.04(b) required AISD to deliver a five-year

delinquency notice to Jack Ogg in 1985. (19) The 1985 delinquency notice should have

notified Ogg that he owed delinquent taxes, penalties, and interest for tax years

1977 (20) through 1983. The trial court found that AISD failed to deliver the notice.

Jack Ogg testified that he never received any notices of delinquency from

AISD and had no knowledge of the delinquent taxes until suit was filed by AISD. In

addition to the testimony of non-receipt, the Oggs also presented evidence suggesting

that AISD had an incorrect mailing address for Ogg in 1985. Subsection 1.07(b)

requires a taxing authority to address the tax notice to the property owner, or his

agent, at the address according to the most recent record in the possession of the

property taxing authority. Tex. Tax Code Ann. § 1.07 (b) (Vernon 2001) . Ogg

testified that his business address in 1985 was 1300 Post Oak Boulevard, Suite 1750.

Michelle Rice, AISD's current tax assessor-collector, testified that, in 1985, AISD

used the taxpayer addresses provided by the Harris County Appraisal District for

purposes of mailing notices. Through Rice, AISD introduced a copy of the 1985 tax

roll which stated Jack Ogg's address as follows: "Ogg Jack C, Alied [sic] Bank

Tower, 1300 Post OakBlvd [sic] Ste 1750, Houston, Tx. 77056." As such, this was

the address according to the most recent record in AISD's possession and was the

address to which AISD should have mailed the 33.04(b) notice in 1985. See id .

Both AISD and Ogg introduced a "consolidated tax statement" printed from

AISD's computer system in July 1999, which listed Ogg's suite number as 175 rather

than 1750. This address differed from the address supplied to AISD by the Harris

County Appraisal District. The Oggs argue this discrepancy showed that AISD had

an incorrect address in its records to which AISD may have sent the required tax

notice. The evidence further showed that AISD did not keep copies of the actual

notices sent to the taxpayer.

AISD correctly points out that it introduced evidence showing that, in 1985,

regarding its general practices, (1) AISD mailed the delinquent tax notices by first-class mail, postage prepaid; (2) AISD sent notices in 1985 to the name and address

provided by the Harris County Appraisal District on the tax roll; and (3) AISD's staff

delivered the notices to the post office. However, on cross-examination, Ogg elicited

the testimony of Brian Mackenzie, who worked at AISD as a residential appraiser

from 1983 to 1985. Mackenzie testified that, in 1984 and 1985, delinquency notices

were mailed by "bulk mail" rather than first-class mail.

Because it introduced certified copies of its tax rolls into evidence, AISD was

entitled to the section 33.47 presumption that it delivered the 33.04(b) delinquency

notice in 1985. However, Ogg's testimony of non-receipt, combined with the copy

of the consolidated tax statement showing an incorrect address, was sufficient to rebut

the section 33.47 presumption that the 33.04(b) delinquency notice was delivered in

1985. See Inwood Dad's Club v. Aldine Indep. School Dist ., 882 S.W.2d 532, 540-41

(Tex. App.--Houston [1st Dist.] 1994, no writ); Uvalde County Appraisal Dist. v.

Parker , 733 S.W.2d 609, 611 (Tex. App.--San Antonio 1987, writ ref'd n.r.e.).

Once the Oggs rebutted the section 33.47 presumption that AISD delivered the

delinquency notice in 1985, the evidence remained to be weighed by the trial court,

as trier of fact, to "resolve matters of weight and credibility among the competing

items of evidence." D & M Vacuum Serv. , 812 S.W.2d at 438 ; accord Duval County

Ranch Co. v. State, 587 S.W.2d 436, 442 (Tex. App.--San Antonio 1979, writ ref'd

n.r.e.). Given the power of the trial court as factfinder to believe or disbelieve the

evidence and to resolve questions of credibility, we hold that the evidence--the

Oggs' testimony of non-receipt coupled with the discrepancy in AISD's records

relating to Jack Ogg's address, and Mackenzie's testimony that the notices were not

mailed first-class--was both legally and factually sufficient to support the trial

court's finding of fact that AISD did not "deliver" the 33.04(b) notice to Jack Ogg in

1985. Accordingly, pursuant to section 33.04(c), AISD was not entitled to penalties

or interest for tax years 1978 through 1983, which should have been included in the

33.04(b) notice required to be sent in 1985. (21)

ii. 1990 and 1995 Notices

AISD and the County were required to deliver 33.04(b) notices in 1990 and

1995 to Jack Ogg, as the "person who owes a tax." (22) The 33.04(b) notices should

have notified Ogg that delinquent taxes, penalties, and interest were owed on the

property for tax years 1984 through 1987.

Tax Code subsection 1.07(b) provides, in relevant part, as follows:

(b) The official or agency shall address the notice to the property

owner, the person designated under Section 1.111(f) to receive

the notice for the property owner, if that section applies, or, if

appropriate, the property owner's agent at his address according

to the most recent record in the possession of the official or

agency. However, if a property owner files a written request that

notices be sent to a particular address, the official or agency shall

send the notice to the address stated in the request. (23)

Tex. Tax Code Ann. § 1.07 (b).

In 1988, Jack Ogg filed a form with the Harris County Appraisal District,

designating Harding & Carbone, a property tax consulting firm, as his fiduciary. The

form specifically stated as follows:

I hereby appoint the above specified as my fiduciary under Sec. 1.11,

Tax Code, and request that such fiduciary be sent all notices, tax bills,

and other communications relating to the property or the taxes thereon.

I understand that this appointment will remain in effect until revoked by

the owner in writing.

Although it is unclear from the record whether Ogg revoked the appointment

in writing, Brian Mackenzie, (24) who had been employed by Harding and Carbone for

15 years at the time of trial, testified that Ogg was a client of the firm until 1997. It

appears undisputed that the appointment was revoked no later than 1998.

Tax Code section 1.11 provides as follows: (25)

(a) On the written request of a property owner, an appraisal office or

an assessor or collector shall deliver all notices, tax bills, and

other communications relating to the owner's property or taxes to

the owner's fiduciary.

(b) A request pursuant to this section remains in effect until revoked

by the owner.

Tex. Tax Code Ann. § 1.11 (Vernon 2001). When a fiduciary is appointed by a

taxpayer under section 1.11, the taxing unit must deliver all notices and tax bills to

the fiduciary. Id. ; MCI Telecom. Corp. v. Tarrant County Appraisal Dist. , 723

S.W.2d 350, 352 (Tex. App.-- Fort Worth 1987, no writ). Accordingly, in 1990 and

1995, AISD and the County were required to deliver the 33.04(b) notices to Harding

and Carbone, designated fiduciary of Jack Ogg.

The trial court made findings of fact that AISD and the County failed to deliver

the 33.04(b) notices in 1990 and 1995. (26) As previously stated, AISD and the County

each proved its prima facie case as to every material fact necessary to establish its

cause of action when it introduced its certified tax records showing the delinquent

taxes owed, interest, and penalties. See Tex. Tax Code Ann. § 33.47 . This included

a presumption that the 33.04(b) notices were properly delivered to Harding &

Carbone in 1990 and 1995. The burden then shifted to the Oggs to offer competent

evidence to rebut the presumption of delivery.

Jack Ogg denied receiving delinquency notices from either AISD or the County

in 1990 or 1995. Mackenzie testified, with regard to forwarding delinquency notices

to its clients, that it was Harding and Carbone's policy the entire 15 years he had

worked for the firm, to have the firm's receptionist forward delinquency notices to

the client when the notices were received. Mackenzie stated that he was not aware

of any instances in which delinquency notices were not forwarded. According to

Mackenzie, if Harding and Carbone had failed to forward delinquency notices, then

it could be sued. Mackenzie opined that, if a client of Harding and Carbone did not

receive a notice, then he believed that Harding and Carbone also had not received the

notice. However, Mackenzie failed to state that he had personal knowledge that

Harding and Carbone did not receive Jack Ogg's 33.04(b) delinquency notices in

1990 and 1995. With regard to this time frame, the Oggs also offered no evidence

that the taxing units had an improper address for Harding and Carbone, or that the

taxing units had failed to follow the mailing requirements of code section 1.07 in

delivering the 1990 and 1995 notices.

Under section 33.47 and the case law interpreting it, the Oggs had the burden

to produce "competent evidence" to rebut the presumption that the taxing units

delivered the 33.04(b) notices in 1990 and 1995 to Harding and Carbone. The Oggs

failed to offer evidence sufficient to overcome that presumption; rather, the evidence

offered only suggested that the Oggs did not receive notices for those years. The

evidence offered by the Oggs raised only suspicion and conjecture that Harding and

Carbone may not have received the notices in 1990 and 1995. Suspicion and

conjecture are not evidence. See Browning-Ferris , 865 S.W.2d at 928 ; Kindred , 650

S.W.2d at 63 . Because the Oggs failed to overcome the presumption afforded AISD

and the County that the taxing units had delivered the 33.04(b) notices to Harding and

Carbone, we hold that the evidence was legally insufficient to support the trial court's

findings of fact that the taxing units failed to deliver the 33.04(b) notices in 1990 and

1995. Accordingly, section 33.04(c) did not mandate cancellation of the penalties

and interest for the tax years covered by those notices, i.e., 1984, 1985, 1986, and

1987.

d. Annual Delinquency Notices and Tax Bills

The trial court also made findings of fact that AISD and the County failed to

deliver annual delinquent tax statements for the tax years in question. Subsection

33.04(a) required AISD and the County to send delinquent tax notices annually to

"each person whose name appears on the current delinquent tax roll" relating to the

property. (27) Tex. Tax Code Ann. § 33.04 (a) (Vernon 2001). Under this provision,

AISD and the County were each required to send a delinquent tax statement to Jack

Ogg regarding the property. (28) However, the Tax Code has never required cancellation

of penalties or interest for failure to deliver an annual delinquent tax statement. Thus,

any failure by either AISD or the County to send annual delinquent tax statements in

this case is not determinative of whether they are entitled to receive penalties and

interest.

The trial court also made findings of fact that AISD and the County failed to

deliver tax bills as required by law for the tax years in question. As stated above, we

have determined that AISD is not entitled to penalties and interest for tax years 1978

through 1983 because the evidence was legally and factually sufficient to show that

AISD failed to deliver 33.04(b) notice in 1985. Thus, we focus on tax years 1984

through 1987 for both AISD and the County to determine whether annual tax bills

were delivered to Jack Ogg for those years.

Tax bills must be mailed by October 1 of the year for which taxes are assessed,

or as soon thereafter as practicable. (29) Tex. Tax Code Ann. § 31.01 (a) (Vernon

2001). Taxes are due on receipt of the tax bill and are delinquent if not paid by

February 1 of the year following the year imposed. Tex. Tax Code Ann. § 31.02 (a)

(Vernon 2001).

Code section 31.04 specifically provides that the date taxes become delinquent

is postponed until the first day of the next month after a tax bill is mailed, this

provides a period of at least 21 days after the date of mailing for payment of taxes.

Tex. Tax Code Ann. § 31.04(a) (Vernon 2001). Section 31.04 also provides that,

in the event the delinquency date is postponed, the date on which interest and

penalties are due is also postponed to that date. Id. § 31.04(e). From reading these

provisions, it logically follows that, if no tax bill is ever mailed to the taxpayer, then

the taxes never become delinquent, and, thus, penalties and interest never accrue.

However, Tax Code subsection 31.01(g) provides that the "[f]ailure to send or receive

the tax bill required by this section does not affect the validity of the tax, penalty, or

interest, the due date, the existence of a tax lien, or any procedure instituted to collect

a tax." Tex. Tax Code Ann. § 31.01(g). (30) Thus, at first glance, subsection 31.01(g)

appears to conflict with subsection 31.04(e).

In reconciling this apparent conflict, the rules of statutory construction instruct

us that statutes bearing on the same subject matter should be construed together, and

both given effect, if possible. Font v. Carr , 867 S.W.2d 873, 881 (Tex.

App.--Houston [1st Dist.] 1993, writ dism'd w.o.j.). We believe that these

provisions can both be given effect by construing section 31.04 to apply in situations

in which the taxing unit has the name and mailing address for the taxpayer, but either

neglects to mail the tax bill or mails it late; however, section 31.04 will not apply in

instances in which the taxing unit cannot send the tax bill because it does not have

the taxpayer's name or address. See Op. Tex. Att'y. Gen No. JM-1192 (1990) ("We

construe section 31.04 to govern only in instances in which a tax bill can be sent, but

is mailed late; it has no application in an instance in which no tax bill can be sent

because the name or address of the delinquent taxpayer is unknown. Our construction

of section 31.04 harmonizes any apparent conflict with other statutory provisions

[including subsection 31.01(g)] and renders any further reliance on abstruse

principles of statutory construction otiose."). Thus, in instances in which the

taxpayer's name or address is unknown, the "[f]ailure to send or receive the tax bill

required by [section 31.01] does not affect the validity of the tax, penalty, or interest,

the due date, the existence of a tax lien, or any procedure instituted to collect a tax."

Tex. Tax Code Ann. § 31.01(g).

Here, because it is undisputed that AISD and the County had Ogg's mailing

address for tax years 1984 through 1987, the provisions of section 31.04 applied.

Therefore, we must determine whether tax bills were delivered for these years. If they

were not delivered, then the taxes were not delinquent, and interest and penalties did

not begin to accrue for tax years 1984 through 1987.

As previously discussed, because AISD and the County were entitled to the

presumption of delivery under section 33.47 for all years involved, the Oggs were

required to offer competent evidence to rebut this presumption. In this regard, Jack

Ogg testified that he did not receive tax bills for any of the years in question from

either AISD or the County. In addition to Ogg's testimony of non-receipt, the Oggs

introduced evidence, through the testimony of Brian Mackenzie, that AISD had failed

to mail notices for 1984 and 1985 by first-class mail; rather, Mackenzie testified that

notices for those years were mailed by "bulk-mail." And, as discussed above, the

Oggs also offered evidence that, in 1985, AISD may not have sent notices to the most

recent address in its records because, in other AISD internal records, a variation for

that address is shown, which is incorrect. The incorrect address was also used by

AISD in 1986 and 1987. Thus, a question arises whether AISD sent the tax bills for

tax years 1985, 1986, and 1987 to the correct address as found in its most recent tax

records at that time, or to the incorrect address as reflected in other internal records.

We conclude that such evidence, coupled with Oggs's testimony of non-receipt, was sufficient to overcome any presumption of delivery with regard to

AISD's tax bills for tax years 1984, 1985, and 1986. Once the Oggs overcame the

presumption, it was left to the trial court, as the trier of fact, to weigh the evidence.

Viewing the evidence as we must, we conclude that legally and factually sufficient

evidence exists in the record to support the trial court's findings of fact that AISD

failed to deliver the required tax bills in 1984, 1985, 1986, and 1987. Accordingly,

the taxes never became "delinquent." Because the taxes for tax years 1984 through

1987 were not delinquent, AISD was not entitled to penalties and interest for those

years.

Having concluded that legally and factually sufficient evidence exists in the

record to support the trial court's findings of fact that AISD failed to deliver the

required tax bills in 1984, 1985, 1986, and 1987, we next turn to whether the

evidence was legally and factually sufficient to support the trial court's finding that

the County failed to deliver tax bills for tax years 1984 through 1987.

While Ogg testified that he did not receive tax bills during the period of 1984

through 1987, he offered no evidence that the County failed to address the tax bills

to the address found in its most recent records, as required by the Tax Code. See Tex.

Tax Code Ann. § 1.07(b). Ogg did, however, testify that his address had changed

during the years in question. Although this may suggest that the County did not mail

the tax bills to Ogg's most current address, such evidence does not show that the

County did not mail the tax bills to the most recent address for Ogg that the County

had listed in its records. See id. Other than his own testimony of non-receipt, Ogg

offered no probative evidence to support his defensive theory that the County failed

to deliver the tax bills for those years. We conclude the evidence was legally

insufficient to support the trial court's findings of fact that the County failed to

deliver tax bills in 1984, 1985, 1986, and 1987.

Moreover, we note that the County presented evidence that the tax bills for the

years at issue were mailed by first-class mail to the taxpayer at the most recent

address in possession of the Harris County tax office. Thus, even assuming that

Ogg's testimony of non-receipt alone was legally sufficient to support the trial court's

finding of non-delivery, we conclude that such evidence was not factually sufficient

to support the finding when weighed against the evidence introduced by the County

on this point.

e. Summary of Holdings Relating to Penalties and Interest

In conclusion, we hold that AISD is not entitled to penalties and interest for tax

years 1978 through 1983 because the evidence was sufficient to support the trial

court's finding that AISD failed to deliver a 33.04(b) notice in 1985. Thus, all

penalties and interest for tax years 1978 through 1983 were properly canceled

pursuant to section 33.04(c). We further hold that penalties and interest never began

to accrue on taxes owed to AISD for years 1984 through 1987 because the evidence

presented by the Oggs was sufficient to show that AISD had not delivered tax bills

for those years.

With regard to the County, we hold that (1) the evidence was legally

insufficient to support the trial court's findings that the County failed to deliver the

required 33.04(b) delinquency notices to Harding and Carbone in 1990 and 1995 and

(2) the evidence was legally and factually insufficient to support the trial court's

findings that the County failed to deliver tax bills in 1984 through 1987. Thus, the

County is entitled to penalties and interest for tax years 1984 through 1987.

We overrule AISD's first issue to the extent that we hold that the evidence was

legally and factually sufficient to support the trial court's findings of fact that the

33.04(b) notices of delinquency were not delivered in 1985, and that AISD failed to

deliver tax bills from 1984 through 1987. We sustain AISD's first issue and the

County's first, second, third, and fourth issues, to the extent that the evidence was

legally insufficient to support the trial court's findings of fact that (1) 33.04(b)

delinquency notices were not delivered in 1990 and 1995 and (2) the County failed

to deliver tax bills in 1984 through 1987.

B. Jurisdiction to Collect Penalties and Interest

In the trial and on appeal, the Oggs complain that AISD and the County were

without "taxing jurisdiction" to levy penalties and interest associated with the taxes

owing on the property. (31) Specifically, the Oggs complain that "taxing jurisdiction"

did not attach because AISD and the County failed to send a notice of appraised value

as required by Tax Code section 25.19. See Tex. Tax Code Ann. § 25.19 (Vernon

2001). This is essentially a due process argument.

Tax Code subsection 31.01(c) requires that tax bills include the appraised value

of the property. Tex. Tax Code Ann. § 31.01 (c). Thus, for the years that we have

determined the evidence supports that the tax bills were "delivered" under the

presumption afforded the taxing units, we conclude that the Oggs received notice of

the appraised value of the property.

Because we have already concluded that the evidence is sufficient to support

the trial court's findings that AISD failed to deliver (1) tax bills in 1984 through

1987, and (2) the 33.04(b) delinquency notice in 1985, we have held that AISD is not

entitled to penalties and interest for any of the tax years at issue. Accordingly, the

disposition of AISD's and the County's issues discussed above renders the Oggs'

argument regarding lack of taxing jurisdiction moot.

C. Attorney's Fees and Costs

In its issue two, AISD contends that no legal authority or factual basis existed

for the trial court to deny its recovery of attorney's fees, court costs, and title research

fees. In addition, AISD contends that the tax master should have been awarded a fee

to be included as a cost of suit. In its issue five, the County argues that the trial court

erred in denying its recovery of attorney's fees and court costs.

Both AISD and the County argue that it is not within the trial court's discretion

to deny the award of attorney's fees and costs under the Tax Code; rather, they

contend code section 33.48 mandates such an award. Tax Code section 33.48

provides, in part, as follows:

(a) In addition to other costs authorized by law, a taxing unit is

entitled to recover the following costs and expenses in a suit to

collect a delinquent tax:

(1) all usual court costs, including the cost of serving

process;

(2) costs of filing for record a notice of lis pendens against

property;

(3) expenses of foreclosure sale;

(4) reasonable expenses that are incurred by the taxing unit

in determining the name, identity, and location of

necessary parties and in procuring necessary legal

descriptions of the property on which a delinquent tax is

due;

(5) attorney's fees in the amount of 15 percent of the total

amount of taxes, penalties, and interest due the unit . . . .

Tex. Tax Code Ann. § 33.48 (a) (Vernon 2001).

The taxing units point out that the Texas Supreme Court has stated, "[s]tatutes

providing that a party 'may recover,' 'shall be awarded,' or ' is entitled to ' attorney

fees are not discretionary." Bocquet v. Herring , 972 S.W.2d 19, 20 (Tex. 1998)

(emphasis added). Here, section 33.48 clearly contains the "entitled to" language

making an award of attorney's fees and the other enumerated costs and fees

mandatory in a suit to collect a delinquent tax. Tex. Tax Code Ann. § 33.48 (a). The

Oggs contend that an award of attorney's fees and costs under section 33.48 is not

appropriate because this was not a suit for "delinquent" taxes. We agree that, by its

express language, section 33.48 applies to "a suit to collect a delinquent tax." Id.

(emphasis added). Under the statute's plain language, it follows that if a tax is not

delinquent, then section 33.48 does not apply. Thus, whether the Oggs owed the

County and AISD attorney's fees was dependent on whether any of the taxes owed

to AISD and the County for tax years 1978 through 1987 were "delinquent."

We have already determined that, because the evidence is insufficient to show

that the County failed to deliver tax bills in 1984 through 1987, the taxes owed to the

County for those tax years were delinquent. Accordingly, the trial court erred in

failing to award attorney's fees and court costs as requested by the County under the

mandatory provisions of section 33.48. We hold that the County is entitled to

attorney's fees and costs of court.

As discussed above, under code section 31.04 a tax is not "delinquent" if the

taxing unit has not delivered a tax bill when it has a known address. See Tex. Tax

Code Ann. §§ 31.02 , 31.04(a), (e). Here, we have concluded that because the

evidence was sufficient to show that AISD failed to deliver the required tax bills, the

taxes owed to AISD were not delinquent for years 1984 through 1987. However,

because it was unnecessary to the disposition of the preceding points, we have not yet

determined whether any of the taxes owed to AISD for tax years 1978 through 1983

were "delinquent."

1. 1982 and 1983

We begin by determining whether the taxes for tax years 1982 and 1983 were

"delinquent."

Because it did not have Ogg's mailing address, AISD did not deliver tax bills

to Ogg for tax years 1982 and 1983. For those years, the evidence showed that

AISD's tax rolls listed the property under the name "Ogg Jack C" with an address of

"ZZZ." Under such circumstances, the relevant inquiry becomes as follows: If a

taxing unit cannot mail a tax bill because it does not have an address for the taxpayer,

are the taxes ever considered delinquent? As cited above, the attorney general has

answered this question in the affirmative. See Op. Tex. Att'y. Gen. No. JM-1192

(1990).

In JM-1192, the attorney general concluded as follows:

[S]ection 31.04 of the Tax Code does not govern in instances in which

no tax bill can be sent because the name or address of the taxpayer is

unknown; it governs only in situations in which a tax bill can be mailed

but is mailed late. In an instance in which no bill can be mailed because

the address of the taxpayer is unknown, section 31.02 of the code, which

provides that the delinquency date is February 1 of the year after the

taxes are imposed, controls the establishment of a deliquency [sic] date.

Id .

The attorney general provided two reasons for this conclusion. First, statutes

must be construed in pari materia in such a way as to harmonize any conflicts, if such

a construction is possible. Id . Construing section 31.04 to govern in instances in

which the tax bill is mailed late, but not in instances in which the tax bill cannot be

sent because the name or address of the delinquent taxpayer is unknown, harmonizes

section 31.04 with other conflicting provisions of the Tax Code. Id.

Second, statutory provisions must be construed in such a way that will not lead

to absurd or ridiculous consequences. Id. The attorney general noted that Tax Code

section 33.41 permits a taxing unit, at any time after a tax on property becomes

delinquent, to file suit to foreclose a tax lien. Id. The attorney general stated, "[I]f

section 31.04 of the code were construed to reach situations in which no tax bill was

sent because the address of the delinquent taxpayer was unknown, then the section

would effectively prohibit the establishment of a delinquency date and no taxes could

ever be collected on such property." Id. The attorney general concluded that nothing

in the Tax Code indicated that the legislature intended such a result. Id.

Although attorney general's opinions are not controlling on the courts, they are

persuasive. Comm'rs Court of Titus County v. Agan , 940 S.W.2d 77, 82 (Tex. 1997).

We find the reasoning and conclusion of attorney general opinion JM-1192 to be

persuasive. Because AISD did not have Ogg's mailing address for tax years 1982 and

1983, we conclude, pursuant to Tax Code section 31.02, that the taxes for those years

became "delinquent" on February 1 of the year after the taxes were imposed. See

Tex. Tax Code Ann. § 31.02 (a).

2. 1978 through 1981

We next determine whether the taxes owed to AISD for tax years 1978 through

1981 were "delinquent." Like tax years 1982 and 1983, the record reflects that AISD

had no mailing address for Ogg for tax years 1978 through 1981. During this period,

AISD's tax records listed the property in the name of "Ogg Jack C" and listed an

address of either "Houston, Tx" or "ZZZ."

Except for limited provisions not relevant to this issue, the Tax Code became

effective on January 1, 1982. (32) Before that time, the laws governing ad valorem

taxation by school districts were found in the civil statutes and the Education Code.

During tax years 1978 through 1981, now-repealed subarticle 7336(b) provided that

ad valorem taxes "shall become delinquent if not paid prior to February first of the

year next succeeding the year" for which they are to be paid. (33) During the same

period, now-repealed Education Code subsection 20.03(f) required that the assessor

for each school district prepare and mail a tax bill to each person in whose name the

property was listed on the tax roll. (34) However, unlike the current Tax Code, no

statute provided for the delinquency date to be postponed until a tax bill had been

mailed. See Tex. Tax Code Ann. § 31.04(a). Rather, under the governing statutory

provisions, the taxes owed by Ogg to AISD for tax years 1978 through 1981 became

"delinquent" when they were not paid by February 1 of the year succeeding the year

for which they were owed, regardless of whether AISD had mailed a tax bill to the

correct address.

We hold that, because AISD's suit was to collect delinquent taxes for tax years

1978 through 1983, AISD was entitled to attorney's fees, court costs, and title search

fees associated with the collection of delinquent taxes for those years. See Tex. Tax

Code Ann. § 31.48 .

With regard to the tax master's fee, subsection 33.73(b) of the Tax Code states,

"The Court shall award reasonable compensation to the master to be taxed as costs

of suit." Tex. Tax Code Ann. § 33.73 (b) (Vernon 2001) (emphasis added). Thus,

under the mandatory language of that subsection, we hold that the trial was required

to award the tax master "reasonable compensation" to be determined as costs of suit.

Insofar as the taxes owed to AISD for tax years 1978 through 1981 were

delinquent, we sustain the portion of AISD's issue two relating to the award of

attorney's fees , court costs, including the award of a tax master's fee, and title search

fees. We sustain the County's issue five.

D. Post-Judgment Interest

AISD also complains in its issue two that the trial court erred in failing to

award post-judgment interest. In the County's issue six, it also challenges the trial

court's failure to award post-judgment interest.

Tax Code section 33.01(c) provides that a "delinquent tax continues to accrue

interest under this subsection as long as the tax remains unpaid, regardless of whether

a judgment for the delinquent tax has been rendered." Tex. Tax Code Ann. §

33.01(c) (Vernon 2001). In addition, section 33.55 provides that a "judgment for

delinquent taxes does not affect the accrual after the date of the judgment of penalties

and interest under this chapter on the taxes included in the judgment." Tex. Tax

Code Ann. § 33.55 (Vernon 2001). Therefore, to the extent that we have held that

the County is entitled to interest on the unpaid taxes, we hold that, under sections

33.01(c) and 33.55, the County was also entitled to post-judgment interest.

Conversely, because AISD was not entitled to interest on the unpaid taxes as

discussed above, it is not entitled to post-judgment interest under subsection 33.01(c)

and section 33.55.

We overrule AISD's issue two as it relates to post-judgment interest; we

sustain the County's issue six. (35)

Conclusion

We affirm the portion of the trial court's judgment that denies AISD penalties

and interest. We reverse the portions of the trial court's judgment that denies the

County penalties, interest, attorney's fees, and court costs, and the portion that denies

AISD attorney's fees and court costs and title search fees. In accordance with this

opinion, we remand the cause to the trial court (1) for determination of (a) the amount

of interest and penalties to be awarded the County; (b) the amount of attorney's fees

and court costs to be awarded the County; (c) a reasonable tax master's fee to be

included as a cost of suit; and (d) the amount of attorney's fees, court costs, and title

research fees, to be awarded AISD; and (2) for entry of judgment, which awards the

County post-judgment interest.

Lee Duggan, Jr. (36)

Justice

Panel consists of Justices Hedges, Keyes, and Duggan.

1.

The other taxing units included with Harris County when we refer to "the

County" are Harris County Education Department, Port of Houston of Harris

County, Harris County Flood Control District, Harris County Hospital District,

and the North Harris Montgomery Community College District. The Harris

County Tax Assessor/Collector collects taxes for the City of Houston. For

simplicity, we also include the City of Houston when we reference "the

County."

2.

Following payment of the taxes, interest, penalties, and attorney's fees for tax

years 1995 through 1999, the parties stipulated that judgment was sought

against Connie Ogg in rem only .

3.

Although it has been amended several times since its enactment in 1985,

section 33.011 has always provided a process for a taxpayer to request a waiver

of penalties and interest if the act or omission of an officer, employee, or agent

of the appraisal district or taxing unit caused or resulted in the taxpayer's

failure to pay the tax before delinquency. See Tex. Tax Code Ann. § 33.011

(Vernon 2001). Here, the trial court stated in a finding of fact that the Oggs

did not request a waiver of penalties or interest pursuant to section 33.011.

The parties do not challenge that particular finding of fact. See McGalliard v.

Kuhlmann , 722 S.W.2d 694, 696 (Tex. 1986) (holding unchallenged findings

of fact are binding unless contrary is established as matter of law or there is no

evidence to support finding).

4.

Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 1, 1979 Tex. Gen. Laws 2217 .

5.

Id. § 33.04.

6.

Any reference to "the code" will be to the Tax Code unless otherwise indicate.

7.

Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 33.40, 1979 Tex. Gen. Laws

2217 , 2290 amended by Act of August 10, 1981, 67th Leg., 1st C.S., ch. 13, §

128, sec. 33.04, 1981 Tex. Gen. Laws 117, 168 , amended by Act of May 26,

1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 Tex. Gen. Laws 2600 ,

2601, amended by Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 16, sec.

33.04, 1999 Tex. Gen. Laws 5097 , 5101, amended by Act of May 15, 2001,

77th Leg., R.S., ch. 1430, § 11, sec. 3401, 2001 Tex. Gen. Laws 5109 , 5112.

8.

Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 Tex. Gen.

Laws 2600 , 2601 .

9. Id.

§ 2 .

10.

Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 16, sec. 33.04, 1999 Tex.

Gen. Laws 5097 , 5101.

11.

Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 43(c), 1999 Tex. Gen. Laws

5097 , 5114.

12.

Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 45, 1999 Tex. Gen. Laws

5097 , 5114.

13.

AISD and the County contend that the 1999 version of section 33.04 should

apply in this case. However, as stated above, the 1999 amendatory language

to section 33.04 states that the amended language applies only to notices sent

in 2000 and after.

14.

The trial court made a finding of fact that AISD and the County had not

delivered a five-year notice of delinquency to the Oggs in 2000. It is important

to note that AISD filed suit against the Oggs in October 1998 and the County

intervened in February 1999. The proceeding before the tax master was held

in February 2000, and the trial de novo before the district court occurred in

July 2000. Under the circumstances, sending a delinquency notice to then-property owner Connie Ogg, would have served little purpose in affording the

Oggs due process and is not determinative in deciding whether the taxing units

are entitled to penalties and interest.

15.

Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 Tex. Gen.

Laws 2600 , 2601 .

16.

In a finding of fact, the trial court stated as follows: "'[C]ompetent evidence'

was introduced by [the Oggs] to rebut the presumptions established by virtue

of the taxing jurisdictions' prima facie case."

17.

In addition to the presumption of delivery accorded the taxing units under

section 33.47, Tax Code section 1.07 provides for the presumption of delivery

of notice upon the notice's deposit in the mail for delivery by first-class mail.

Tex. Tax Code Ann. § 1.07 (c) (Vernon 2001) . Courts have defined what

conditions are necessary to establish this presumption. Dallas County

Appraisal Dist. v. Lal , 701 S.W.2d 44, 47-48 (Tex. App.--Dallas 1985, writ

ref'd n.r.e.) (discussing eight factors viewed in determining whether

presumption of delivery is available). However, it was unnecessary for AISD

and the County to establish the presumption of delivery pursuant to section

1.07 because each established every material fact necessary to prove its cause

of action pursuant to section 33.47, including the delivery of the required

notices .

18.

Here, the taxing units did not have the burden of proof as to the issue of which

they complain the evidence is insufficient. It is undisputed that the taxing units

proved their prima facia case, including delivery of the required notices, when

they introduced their official tax records. Thus, the relevant question on appeal

is whether the evidence offered by the Oggs was legally and factually sufficient

to rebut the presumption of delivery accorded the taxing units under code

section 33.47. This is an issue on which the Oggs had the burden of proof.

19.

The County was not required to deliver a five-year delinquency notice to Jack

Ogg in 1985 because he did not owe "a tax that has been delinquent more than

one year" to the County. Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1,

sec. 33.04, 1985 Tex. Gen. Laws 2600 , 2601 . The first tax year for which the

County sought delinquent taxes was 1984. The taxes for that year would not

have been delinquent until after February 1, 1985, and would not have been

delinquent for "more than one year" until February 1, 1986. See Tex. Tax

Code § 31.02(a) (Vernon 2001). Thus, the first 33.04(b) notice that the

County was required to send was in 1990.

20.

As previously mentioned, AISD stipulated that collection of the delinquent

taxes owed for tax year 1977 was barred by the statute of limitations and only

sought collection for tax years 1978 through 1987 in this suit.

21.

Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 Tex. Gen.

Laws 2600 , 2601 .

22.

Id.

23.

Subsection (b) was amended in 1989 and made effective September 1, 1989.

Act of May 26, 1989, 71st Leg., R.S., ch. 796, § 1, sec 1.07(b), 1989 Tex. Gen.

Laws 3591 , 3591. Subsection (b) has not been subsequently amended.

24.

Brian Mackenzie testified in two capacities at trial--as a former tax appraiser

with AISD and as an employee of Harding and Carbone.

25.

Section 1.11 has not been amended since enactment in 1981.

26.

Though the trial court made specific findings of fact that AISD and the County

failed to deliver the 33.04(b) notices to Harding and Carbone in 1990, the court

did not make similar findings for 1995. However, the trial court made general

findings of fact that none of the notices required by law had been delivered by

the taxing units. This would necessarily include the 33.04(b) notices required

to be delivered in 1995.

27.

The 1985 version of subsection (a) stated, " the notice need not be delivered if

a bill for the tax was not mailed pursuant to the authorization provided by

Section 31.01(f) of this code." Act of May 26, 1985, 69th Leg., R.S., ch. 761,

§ 1, sec. 33.04, 1985 Tex. Gen. Laws 2600 , 2601. However, subsection (f) of

31.01 does not apply in this case.

28.

Id.

29.

This was also the requirement for tax years 1985, 1986, and 1987 under the

Tax Code.

30.

The language of subsection (g) has not been amended since section 33.01' s

enactment.

31.

The trial court stated in a conclusion of law as follows: "[AISD] and [the

County] failed to acquire taxing jurisdiction over all the property made the

subject of this lawsuit, which is an element necessary to any recovery by

them." However, we are not bound by the trial court's conclusions of law.

Connelly v. Paul , 731 S.W.2d 657, 661 (Tex. App.--Houston [1st Dist.] 1987,

writ ref'd n.r.e.).

32.

Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 1, 1979 Tex. Gen. Laws 2217 .

33.

Act of May 12, 1939, 46th Leg., R.S., ch. 16, § 3, 1939 Tex. Gen. Laws 654 ,

655-57, repealed by Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 6, 1979

Tex. Gen. Laws 2217 , 2329-30.

34.

Act of July 15, 1977, 65th Leg. 1st C.S., ch. 1, § 15, sec. 20.03, 1977 Tex. Gen.

Laws 11 , 27-29, repealed by Act of May 24, 1979, 66th Leg., R.S., ch. 841, §

6, 1979 Tex. Gen. Laws 2217 , 2329-30.

35.

Because of the disposition of the preceding issues, we need not discuss any

remaining issues or sub-issues not discussed above, including the County's

issue seven attacking the trial court's judgment on the ground that, to the

extent the trial court's judgment extinguishes interest that has accrued since

August 26, 1991, it violates Article III, § 55 of the Texas Constitution.

36.

The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District

of Texas at Houston, participating by assignment.