Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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ON MOTION FOR REHEARING EN BANC

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NO. 03-05-00171-CV

Aaron Rents, Inc., Appellant

v.

Travis Central Appraisal District, Travis County Appraisal Review Board,

and Travis County Tax Assessor Collector, Nelda Wells Spears,

in Her Official Capacity, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN401079, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

OPINION

In response to appellant’s motion for rehearing en banc, we grant the motion,

withdraw our opinion and judgment issued on March 23, 2006, and substitute the following opinion.

Aaron Rents, Inc., a furniture rental corporation, appeals a district court’s judgment that denied its

claim for attorney’s fees in connection with its successful declaratory judgment action against the

Travis Central Appraisal District.1 Aaron Rents’s suit alleged that the District exceeded its statutory

1

Aaron Rents, Inc. dismissed its claims against the Travis County Tax Assessor-Collector,

Nelda Wells Spears.

authority by “re-appraising” the tangible personal property at Aaron Rents’s four locations after the

District had certified the property’s appraised value to the tax collector.2 In two issues, Aaron Rents

claims that it is entitled to the fees under the Uniform Declaratory Judgments Act and the tax code.

See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997); Tex. Tax Code Ann. §§ 42.25, .29

(West 2001). Because we conclude that the district court did not abuse its discretion by denying

Aaron Rents the attorney’s fees it requested under the declaratory judgments act, we affirm that

portion of the court’s judgment. However, because we conclude that the district court abused its

discretion by denying Aaron Rents the attorney’s fees it requested under the tax code, we reverse and

remand that portion of the court’s judgment.

BACKGROUND

In 2003, the legislature added section 22.23(c) to the tax code, which encouraged

property owners to render for taxation “tangible personal property used for the production of income

that was omitted from the appraisal roll in one of the two preceding years.” Tex. Tax Code Ann.

§ 22.23(c) (West Supp. 2005).3 Before this amendment, the chief appraiser could assess back taxes

for personal property that was omitted from the appraisal roll in either of the two preceding years.

Id. § 25.21 (West 2001). Section 22.23(c) granted “amnesty” to taxpayers by exempting their

2

Aaron Rents nonsuited its federal and state constitutional due process claims against the

Travis Central Appraisal District and Travis County Appraisal Review Board. The record shows that

Aaron Rents and the District are the only parties to this appeal.

3

The parties referred to section 22.23(c) by its precodification bill number, Senate Bill 340.

See Act of May 31, 2003, 78th Leg., R.S., ch. 1173, § 6, 2003 Tex. Gen. Laws 3353, 3356 (expired

January 1, 2005).

2

previously omitted property from retroactive taxation for the 2001 and 2002 tax years, if they

rendered their property by December 1, 2003:

(c) if before December 1, 2003, a person files a rendition statement for the 2003 tax

year that provides the information required by section 22.01 as that section exists

on January 1, 2004, and, as a result of that information, the chief appraiser

discovers that some or all of that person’s tangible personal property used for the

production of income was omitted from the appraisal roll in one of the two

preceding years, the chief appraiser may not add the value of the omitted property

to the 2001 or 2002 appraisal roll. This subsection expires January 1, 2005.

Act of May 31, 2003, 78th Leg., R.S., ch. 1173, § 6, 2003 Tex. Gen. Laws 3353, 3356 (expired

January 1, 2005).

Rendering tangible personal property for taxation involves filing a “rendition,” a

statement that contains: (1) the name and address of the property owner; (2) a description of the

property by type or category; (3) if the property is inventory, a description of each type of inventory

and a general estimate of the quantity of each type of inventory; (4) the physical location or taxable

situs of the property; and (5) the property owner’s good faith estimate of the market value of the

property or, at the option of the property owner, the historical cost when new and the year of

acquisition of the property. Tex. Tax Code Ann. § 22.01(a)(1)-(5) (West Supp. 2004-05).

The District sent a letter to all Travis County business owners, advising them of

section 22.23(c)’s addition to the tax code and encouraging them to file the enclosed “Special

Amnesty Rendition.” Aaron Rents failed to file renditions with the District in 2003. It completed

amnesty renditions, including depreciation schedules depicting the original cost of its property,

because of its concern that there could be a difference between the property’s cost and its appraised

value in 2004, and that the District might believe that the difference in value was due to property that

3

had been omitted from the appraisal roll. Moreover, because the statute provided for one-time

amnesty, Aaron Rents would be precluded from filing an amnesty rendition in 2004.

After receiving these renditions, the District issued “2003 corrected value” appraisals

for Aaron Rents’s “omitted” property, even though the parties had previously agreed on the 2003

appraised value of the property at all four locations, the tax collector had certified the roll, and the

“omitted” property appraisals did not identify any new property at any of Aaron Rents’s locations.

Asserting that none of its property had been omitted from the 2003 appraisal roll, Aaron Rents filed

a protest of the District’s “re-appraisal” with the Travis County Appraisal Review Board. Ruling

for the District, the Board approved changes to the 2003 appraisal roll that increased the appraisals

for Aaron Rents’s property at all four locations. Aaron Rents appealed the Board’s orders4 to the

district court. See id. § 42.01(1)(B) (West 2001).

Aaron Rents filed a motion for partial summary judgment requesting declarations that

(I) the District acted without statutory authority and in violation of section 25.25 of the tax code by

re-appraising Aaron Rents’s tangible personal property after its value had been certified to the tax

collector, (ii) the District’s re-appraisal was excessive and unequal under sections 42.25 and 42.26

of the tax code as well as article VIII, section 1 of the Texas Constitution, (iii) any additional taxes

resulting from the unlawful re-appraisal were unlawful and void, and (iv) the District should be

ordered to correct its tax rolls to reflect the original appraised values. The District filed a motion for

partial summary judgment arguing that Aaron Rents was not entitled to attorney’s fees and that

section 22.23(c) of the tax code authorized the District’s actions.

4

The Board issued four orders concerning the tangible personal property—rental

furniture—at each of Aaron Rents’s locations.

4

After a hearing, the court denied the District’s motion, granted Aaron Rents’s motion

“on all grounds other than attorney’s fees,” and reserved the attorney’s fees issue for final trial. After

final trial, the court ruled that Aaron Rents was not entitled to attorney’s fees. On appeal, Aaron

Rents contends that it is entitled to attorney’s fees under the declaratory judgments act and the tax

code. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Tex. Tax Code Ann. §§ 42.25, .29.

ANALYSIS

Attorney’s Fees Claimed Under Uniform Declaratory Judgments Act

Attorney’s fees are recoverable only when provided for by statute or by the parties’

agreement. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992). Aaron

Rents contends that it is entitled to attorney’s fees under the declaratory judgments act. See Tex.

Civ. Prac. & Rem. Code Ann. § 37.009. But the UDJA does not require an award of attorney’s fees

to the prevailing party. Id. (“In any proceeding under [the UDJA], the court may award costs and

reasonable and necessary attorney’s fees as are equitable and just.”); TML Intergovernmental

Employee Benefits Pool v. Prudential Ins. Co. of Am., 144 S.W.3d 600, 607 (Tex. App.—Austin

2003, pet. denied). Because the UDJA affords the district court a measure of discretion in awarding

the fees, we review the court’s denial of a claim for attorney’s fees for an abuse of discretion.

Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The legal principle encompassed in the term

“abuse of discretion” concerns a legal error committed by the district court in its award of attorney’s

fees that injured or prejudiced appellants. Strayhorn v. Raytheon E-Sys., 101 S.W.3d 558, 571 (Tex.

5

App.—Austin 2003, pet. denied). We review a question of legal error de novo. State v. Heal, 917

S.W.2d 6, 9 (Tex. 1996).

The District contends that Aaron Rents availed itself of its remedy under the tax code

and that it cannot use the UDJA solely to obtain attorney’s fees. See Raytheon E-Sys., 101 S.W.3d

at 572 (citing Texas State Bd. of Plumbing Exam’rs v. Associated Plumbing-Heating-Cooling

Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex. App.—Austin 2000, pet. dism’d by agr.). When

a statute provides an avenue for attacking an agency order, a declaratory judgment action will not

lie to provide redundant remedies. Id. (citing Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260,

267 (Tex. App.—Austin 2002, no pet.)); see also City of Fort Worth v. Pastusek Indus., 48 S.W.3d

366, 371 (Tex. App.—Fort Worth 2001, no pet.) (UDJA cannot be used to evade exclusive

administrative process and remedies provided in tax code).

Citing our opinion in Texas Municipal Power Agency v. Public Utility Commission,

Aaron Rents argues that its requested declaratory judgment “is not redundant [because] it seeks

guidance on the application of [tax code section 22.23(c)] and whether [the District] acted beyond

its statutory authority.” See 100 S.W.3d 510, 520 (Tex. App.—Austin 2003, pet. denied); see also

Act of May 31, 2003, 78th Leg., R.S., ch. 1173, § 6, 2003 Tex. Gen. Laws 3353, 3356 (expired

January 1, 2005). In Texas Municipal Power Agency, we noted that Municipal Power’s declaratory

judgment action requested relief more expansive than the reversal of a particular administrative

determination. 100 S.W.3d at 520. But in this case, Aaron Rents’s motion urged the court to find

that section 22.23(c) did not authorize the District to change the 2003 appraisal roll by increasing

the appraised value of Aaron Rents’s property after the roll had been certified. Aaron Rents’s motion

further urged that the answer to the issue “hinge[d] on whether or not the Plaintiff [Aaron Rents] had

6

property that was omitted from the appraisal roll.” Thus, unlike the declaration sought in Texas

Municipal Power Agency, Aaron Rents’s motion clarifies that its declaration sought reversal of a

particular administrative determination—that Aaron Rents had property that was omitted from the

appraisal roll.

Aaron Rents also cites generally to our opinion in Local Neon Company v. Strayhorn,

to support its argument that its declaratory judgment relief is not redundant of its tax protest. See

No. 03-04-00261-CV, 2005 Tex. App. LEXIS 4667 (Tex. App.—Austin, June 16, 2005, no pet.)

(mem. op.). Aaron Rents’s requested declaration is distinct from that sought in Local Neon

Company because Aaron Rents does not challenge the constitutionality of an administrative rule or

the tax protest statutes. See id. at *24.

Similarly, Aaron Rents’s reliance upon Texas Department of Human Services v. ARA

Living Centers of Texas, Inc. is misplaced, as that case involved an award of declaratory relief based

on one state agency’s exercise of enforcement powers that were reserved to another. See 833 S.W.2d

689, 694-95 (Tex. App.—Austin 1992, writ denied). Here, there is no question that the District was

authorized to enforce section 22.23(c) and the critical determination “hinge[d] on whether or not the

Plaintiff [Aaron Rents] had property that was omitted from the appraisal roll.”

Because Aaron Rents’s declaratory judgment action sought reversal of the District’s

determination that Aaron Rents had property that was omitted from the appraisal roll and did not

challenge the constitutionality of an administrative rule or tax protest statute, or that the District was

exercising enforcement powers that were reserved to another agency, the requested declaratory relief

was redundant to that sought in Aaron Rents’s tax protest, with the exception of its request for

attorney’s fees. See Tex. Tax Code Ann. §§ 42.01(1)(B), 25.25 (West 2001). It is an abuse of

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discretion for a court to award attorney’s fees under the UDJA when the relief sought is no greater

than relief that otherwise exists by agreement or statute. Raytheon E-Sys., 101 S.W.3d at 572 (citing

Texas State Bd. of Plumbing Exam’rs, 31 S.W.3d at 753; University of Tex. v. Ables, 914 S.W.2d

712, 717 (Tex. App.—Austin 1996, no writ)).

Furthermore, if Aaron Rents believed that the District acted beyond its statutory

authority, it could have appealed directly to the district court. See Mag-T, L.P. v. Travis Cent.

Appraisal Dist., 161 S.W.3d 617, 625 (Tex. App.—Austin 2005, pet. denied). Aaron Rents chose

to pursue its administrative remedy under the tax code by filing a protest with the Board and

appealing the Board’s orders to the district court. The court ruled in favor of Aaron Rents “on all

grounds other than attorney’s fees.” Aaron Rents’s argument that the tax code is inapplicable to its

claims against the District—after it availed itself of the code’s full administrative process—is not

persuasive. Because we find that Aaron Rents availed itself of its administrative remedy under the

tax code and that the declaratory judgments act cannot be used to circumvent the code, we conclude

that the court did not abuse its discretion in denying the requested attorney’s fees under the UDJA.

We overrule Aaron Rents’s first point of error.

Attorney’s Fees Claimed Under Section 42.29 of Tax Code

Aaron Rents next argues that an award of attorney’s fees is mandatory under section

42.29 of the tax code because the District’s appraisal of its property was excessive. See Tex. Tax

Code Ann. §§ 42.25, .29; Zapata County Appraisal Dist. v. Coastal Oil & Gas, 90 S.W.3d 847, 854

(Tex. App.—San Antonio 2002, pet. denied).

8

The District contends that section 42.29 is inapplicable because the District’s

subsequent appraisal of Aaron Rents’s property did not constitute an “excessive appraisal,” i.e., an

appraisal in excess of the property’s fair market value. It argues that the issue was whether Aaron

Rents’s property should have been appraised at all after the tax collector certified the 2003 appraisal

roll. The District’s argument is not persuasive because the court ruled in favor of Aaron Rents on

the excessive appraisal issue and the District does not challenge that ruling on appeal. The court’s

order stated that it granted Aaron Rents’s partial summary judgment “on all grounds other than

attorney’s fees.” One of the declarations sought in Aaron Rents’s motion was that “the District’s re-

appraisal was excessive . . . under section[] 42.25 . . . of the tax code.”

In general, we review a trial court’s decision to award attorney’s fees for an abuse of

discretion and review the amount awarded under a legal sufficiency standard. See Allison v. Fire Ins.

Exch., 98 S.W.3d 227, 262 (Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m. by agr.).

A trial court abuses its discretion if its decision “is arbitrary, unreasonable, and without reference

to guiding principles.” Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). However, some

statutes remove the discretion from the trial court. Cf. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.

1998).

The statutes pertinent to a determination of whether a party is entitled to attorney’s

fees in this appeal are sections 42.25 and 42.29 of the tax code. See Tex. Tax Code Ann. §§ 42.25,

42.29. Section 42.25 provide as follows:

If the court determines that the appraised value of property according to the appraisal

roll exceeds the appraised value required by law, the property owner is entitled to a

reduction of the appraised value on the appraisal roll to the appraised value

determined by the court.

9

Id. § 42.25.

Section 42.29 states that a property owner who is successful in an “excessive

appraisal” appeal under section 42.25 may be awarded attorney’s fees and provides as follows:

(a) A property owner who prevails in an appeal to the court under Section 42.25 or

42.26 may be awarded reasonable attorney’s fees. The amount of the award

may not exceed the greater of:

(1) $15,000; or

(2) 20 percent of the total amount by which the property owner’s tax liability

is reduced as a result of the appeal.

(b) Notwithstanding Subsection (a), the amount of an award of attorney’s fees may

not exceed the lesser of:

(1) $100,000; or

(2) the total amount by which the property owner’s tax liability is reduced as

a result of the appeal.

Id. § 42.29 (emphasis added).

At first glance, the language in section 42.29 might be read as giving the trial court

the discretion to award attorney’s fees. See Tex. Gov’t Code Ann. § 311.016(1), (2) (West 2005)

(in construing statutes, word “may” creates discretionary authority or grants permission or power,

but word “shall” imposes duty). However, the determination of whether a statute requires the

imposition of attorney’s fees or vests the trial court with the discretion to decide does not depend

exclusively on whether the statute uses the word “may” or “shall.” Cf. Bocquet, 972 S.W.2d at 20.

10

Under the current state of the law, the determination primarily depends on whether the legislature

has bestowed a power to trial courts or an entitlement to litigants.

In Bocquet, the supreme court distinguished between statutes that vest a trial court

with the discretion to award attorney’s fees and statutes that require the court to award attorney’s

fees. See id.; compare Tex. Fam. Code Ann. § 106.002 (West Supp. 2005) (court may render

judgment for reasonable attorney’s fees), with Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West

1997) (person may recover attorney’s fees). Statutes providing that a “court may award” attorney’s

fees grant courts a measure of discretion in awarding attorney’s fees, but statutes providing that a

“party may recover,” “party shall be awarded,” or “party is entitled to” attorney’s fees mandate an

award of fees that are reasonable and necessary. See Bocquet, 972 S.W.2d at 20. The distinction

drawn by the supreme court seems to hinge upon whether the statute in question speaks to what the

litigant may receive or what the court may award. See Zapata County Appraisal Dist. v. Coastal

Oil & Gas Corp., 90 S.W.3d 847, 853 (Tex. App.—San Antonio 2002, no pet.); Kimbrough v. Fox,

631 S.W.2d 606, 609 (Tex. App.—Fort Worth 1982, no writ).

An apparent split of authority has developed among Texas courts regarding which

meaning attaches to section 42.29. In Tex-Air Helicopters, Inc. v. Appraisal Review Board of

Galveston County, the Houston Court stated that under section 42.29 the trial court has the discretion

to award attorney’s fees. 940 S.W.2d 299, 304 (Tex. App.—Houston [14th Dist.] 1997), aff’d, 970

S.W.2d 530 (Tex. 1998). However, because the trial court had determined that Tex-Air was not a

prevailing party, the Houston Court did not reach the issue of attorney’s fees. Id. The Texarkana

Court made a similar statement in Tex-Air Helicopters, Inc. v. Harris County Appraisal District 15

11

S.W.3d 173, 177 (Tex. App.—Texarkana 2000, pet. denied). In that case, the court stated that the

award of attorney’s fees was discretionary but concluded that, because the case did not involve an

“excessive appraisal,” section 42.29 did not apply. Id.

The San Antonio Court, on the other hand, addressed the issue of attorney’s fees and

concluded that section 42.29 entitled a prevailing party to recover attorney’s fees. Zapata, 90

S.W.3d at 854. In making this determination, the court relied on a distinction originally articulated

in Kimbrough. Id. at 854. In Kimbrough, the court was faced with the question of whether a statute

stating that a “claimant may . . . also recover . . . a reasonable amount of attorney’s fees” was

mandatory or discretionary. 631 S.W.2d at 609 (quoting Tex. Rev. Civ. Stat. Ann. art. 2226 (1979)).

The Kimbrough court specified that “the question is whether . . . the legislature granted the litigant

permission to recover the fees or whether it granted the trial court permission to either award or deny

such fees.” Id. Ultimately, the Kimbrough court concluded that the statutory language (“claimant

may . . . recover . . . attorney’s fees”) granted the litigant the right to recover attorney’s fees and

expressly held that the use of the term “may” was not dispositive of whether the trial court had

discretion to award attorney’s fees. Id.

In reaching its conclusion in Zapata, the San Antonio Court also relied on the

distinction described in Bocquet. 90 S.W.3d at 854. The court concluded that a statute providing

that a “property owner . . . may be awarded” attorney’s fees is more similar to a statute providing that

“a party may recover” than it is to a statute specifying that a “court may award” attorney’s fees. Id.

As a result, the court concluded that the award of attorney’s fees is mandatory. Id.

12

The real difficulty in this case arises due to the fact that this particular statute is

neither clearly one or the other of the types of statutes distinguished in Bouquet. Due to the use of

passive voice in the statute, the wording could be rearranged and construed to mean that trial courts

have the discretion to award attorney’s fees to prevailing property owners. For example, the statute

as written specifies that “[a] property owner . . . may be awarded reasonable attorney’s fees.” Tex.

Tax Code Ann. § 42.29. The statute could be construed as impliedly stating that “a property owner

. . . may be awarded reasonable attorney’s fees by the trial court.” Given the implied addition of the

words “by the trial court” and due to the use of passive voice in the statute, the wording of the statute

could be inverted to make the “trial court” the subject of the sentence and to read as follows: “the

trial court may award a property owner reasonable attorney’s fees.” Under this inverted reading, the

statute vests the trial court with the discretion to award attorney’s fees.

However, the supreme court has indicated its reluctance to engage in wordplay to

ascribe meaning to a statute that contradicts the meaning expressed in an unaltered reading of the

statute. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 358 (Tex. 2000) (courts must

take statutes as they find them and should not give strained readings to statutes). When determining

the meaning of a statute, our task is to interpret the statute as written. See In re Doe, 19 S.W.3d 346,

351 (Tex. 2000) (statutes must be interpreted as written); Sorokolit v. Rhodes, 889 S.W.2d 239, 241-

42 (Tex. 1994). In construing statutes, our goal is to give effect to the legislature’s intent. Texas

Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004).

Every word in a statute is presumed to have been used for a purpose and every word excluded must

have been excluded for a purpose. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659

13

(Tex. 1995). Further, the legislature is presumed to be aware of case law interpreting statutes it

enacts. General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 596 (Tex. 2001).

Section 42.29 was originally enacted after the distinction in attorney’s fees was

articulated in Kimbrough. See Act of May 26, 1983, 68th Leg., R.S., ch. 905, § 1, sec. 42.29, 1983

Tex. Gen. Laws 5033. When it enacted the statute, the legislature did not specify that the “court may

award attorney’s fees”; rather, the legislature specified that the prevailing taxpayer “may be

awarded” attorney’s fees. The phrase a “property owner may be awarded attorney’s fees” is the

functional equivalent of the phrase a “party may recover attorney’s fees,” which the supreme court

has stated entitles a party to attorney’s fees. See Bocquet, 972 S.W.2d at 20. Had the legislature

intended to give trial courts the discretion to deny fees to a prevailing property owner, they would

have drafted the statute accordingly. See Kimbrough, 631 S.W.2d at 609.5

Under the previous version of section 42.29, a prevailing party was “entitled to

reimbursement for reasonable attorney’s fees.” See Act of May 26, 1979, 66th Leg., R.S., ch. 841,

5

We note that, in an unpublished opinion, this Court previously concluded that an award of

attorney’s fees under section 42.29 is discretionary. See Hays County Appraisal Dist. v. Mayo Kirby

Springs, 1997 Tex. App. LEXIS 5876 (Tex. App.—Austin 1995, no writ.); see also Tex. R. App.

P. 47.7 (“Opinions not designated for publication by the court of appeals . . . have no precedential

value . . . .”). However, this case was decided before the supreme court decided Bocquet. Further,

in support of its conclusion that the language in section 42.29 is discretionary, this Court cited to the

Texas Uniform Declaratory Judgments Act, which provides as follows:

In any proceeding under this chapter, the court may award costs and reasonable

and necessary attorney’s fees as are equitable and just.

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997).

Unlike section 42.29 of the tax code, the declaratory judgment act specifically gives trial

courts the power to decide whether to award attorney’s fees. See Tex. Tax Code Ann. § 42.29.

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§ 1, 1983 Tex. Gen. Laws 2217, 2312. The bill analysis attaches no significance to the change in

language from a property owner “is entitled to . . . attorney’s fees” to “a property owner . . . may be

awarded attorney’s fees.”6 See Senate Comm. on Finance, Bill Analysis, H. B. 1580, 68th Leg., R.S.

(1983). Had the legislature intended a substantive change in the statute with respect to the award

of attorney’s fees in the excessive appraisal context, one might look for some mention of that

intention in the legislative history. We found none.

This interpretation of section 42.29 is also supported by a recent opinion from the

Dallas Court of Appeals. In Gardner v. Warehouse Partners, the court was asked to decide whether

remedies afforded to a prevailing tenant in section 92.0081 of the property code were mandatory or

discretionary. No. 05-97-01501-CV, 2000 Tex. App. LEXIS 1766 (Tex. App.—Dallas Mar. 17,

2000, no pet.). Section 92.0081 provides, in relevant part, as follows:

(h) If a landlord violates this section, the tenant may:

...

(2) recover from the landlord a civil penalty of one month’s rent plus

$500, actual damages, court costs, and reasonable attorney’s fees in

an action to recover property damages, actual expenses, or civil

penalties, less any delinquent rent or other sums for which the tenant

is liable to the landlord.

Tex. Prop. Code Ann. § 92.0081(h) (West Supp. 2005) (emphasis added). Even though the statute

uses the words “may recover” when describing remedies available to the tenant, the court concluded

6

The only mention of attorney’s fees in the bill analysis states that the purpose of section

42.29 is to “provide a maximum amount of attorney’s fees that may be awarded . . . .” Senate

Comm. on Finance, Bill Analysis, H.B. 1580, 68th Leg., R.S. (1983). However, the statutory cap

on attorney’s fees found in section 42.29 is not relevant to the issue in this case.

15

that the language of section 92.0081 is mandatory, not discretionary, and that the prevailing tenant

was “entitled to recover from Warehouse and Glendale the greater of his actual damages or one

months rent and reasonable attorney’s fees.” Id. at *3 (citing Bocquet, 972 S.W.2d at 20). Further,

the court concluded that the trial court abused its discretion in failing to award Gardner the amount

in question. Id. Like section 92.008, the subject of the relevant portion of section 42.29 of the tax

code is a prevailing party, not the court. In addition, section 42.29, like section 92.0081, couples the

use of a prevailing party as the subject of the statute with the use of the word “may” when describing

remedies available to a litigant.

The unusual circumstances of this type of claim also support the conclusion that the

award of attorney’s fees to a prevailing property owner is not discretionary. The statute in question

mandates the issuance of attorney’s fees after a party has proven that the government has issued an

excessive appraisal of the party’s property. See Tex. Tax Code Ann. §§ 42.25 (remedy for excessive

appraisal), 42.29. When an excessive appraisal is issued, a property owner is forced to pay more in

taxes than is actually required. To recover the amount of money overpaid, the property owner must

go through the onerous task and added expense of preparing and filing a lawsuit against the

government. Given this fact setting, it is reasonable to conclude the legislature intended parties to

recover the amount of attorney’s fees incurred in pursuing their claims when they prevail.

Were the slate clean, we would not draw the extremely subtle semantic distinction

originally articulated in Kimbrough. Courts should be able to presume that the legislature speaks

in more direct ways than this distinction implies. Further, we should be able to presume that, when

the legislature uses phrases like “a party may recover attorney’s fees” or “a party may be awarded

16

attorney’s fees,” the legislature means what the phrases indicate: that an award of attorney’s fees is

discretionary. However, the slate is not clean. For all the reasons previously described, we conclude

that Zapata articulates the correct reading of section 42.29, particularly in light of the supreme

court’s statement in Bocquet.

In its analysis, the dissent ignores the distinction articulated in Kimbrough and Boquet

and concentrates solely on the use of the word “may” and the use of passive voice in section 42.29.

In support of its assertion that the phrase “may be awarded” in section 42.29 necessitates the

conclusion that the award of attorney’s fees is within the discretion of the trial court, the dissent cites

to section 41.003(a) of the civil practice and remedies code, which provides, in relevant part, as

follows:

Except as provided by Subsection (c), exemplary damages may be awarded only if

the claimant proves . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a) (West Supp. 2005).

The dissent notes that section 41.003 is a discretionary statute and asserts that this

statute is similar to section 42.29. However, this statute differs significantly from section 42.29.

This statute does not contain the same grammatical structure as the relevant portion of section 42.29.

The subject of section 41.003(a) is “exemplary damages” whereas the subject of section 42.29 is “[a]

property owner.” Because the subject of the sentence is not the litigant, this statute is not similar to

the type of statutes specified in Bocquet as mandating the award of attorney’s fees. See Bocquet, 972

S.W.2d at 20 (mandatory statutes include statutes specifying “party may recover” and “party is

entitled to recover” attorney’s fees) (emphasis added). Further, section 41.010 of the civil practice

and remedies code specifically states that the award of exemplary damages is “within the discretion

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of the trier of fact.” Id. § 41.010(b) (West Supp. 2005). There is no comparable statutory

declaration regarding attorney’s fees in the excessive appraisal context.

In further support of its argument, the dissent also cites to a statute the court in

Bocquet considered to be a discretionary statute—former section 11.18(a) of the family code, which

provides, in relevant part, as follows:

In any proceeding under this subtitle, including, but not limited to, habeas corpus,

enforcement, and contempt proceedings, the court may award costs. Reasonable

attorney’s fees may be taxed as costs . . . .

Act of May 31, 1981, 67th Leg., R.S., ch. 355, § 3, 1981 Tex. Gen. Laws 942, 944 (emphasis added).

This statute was later recodified into section 106.002 of the family code and amended to provide,

in relevant part, as follows: “the court may order reasonable attorney’s fees . . . .” See Act of Apr.

6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 133.7 The bill analysis to the

recodification states that the amendment to the statute was meant as a nonsubstantive recodification.

See House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 655, 74th Leg., R.S.

(1995). Based on the nonsubstantive nature of the amendment, the amended statute’s language

explicitly empowering the trial court to award attorney’s fees, and the use of passive voice in section

42.29, the dissent argues that the phrase “may be awarded” found in section 42.29 similarly vests

the trial court with the discretion to award attorney’s fees.

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The current version of section 106.002 provides, in relevant part, as follows: “the court may

render judgment for reasonable attorney’s fees and expenses . . . .”

Tex. Fam. Code Ann. § 106.002 (West Supp. 2005).

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The dissent’s reliance on this statute is misplaced. In its analysis, the dissent ignores

one of the tenets of statutory construction: to interpret the statute as a whole and give effect to every

part. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Even prior to the

amendment, former section 11.18(a) specifically vested the discretion to issue attorney’s fees with

the trial court. The sentence authorizing imposition of attorney’s fees as “costs” comes immediately

after the sentence allowing the trial “court” to award “costs.” See Act of May 31, 1981, 67th Leg.,

R.S., ch. 355, § 3, 1981 Tex. Gen. Laws 942, 944. Therefore, the statute’s subsequent amendment

is no indication that the phrase “may be awarded,” regardless of the subject of the statute, always

vests trial courts with the discretion to award fees.

Moreover, even if we were to employ the dissent’s compartmentalized analysis of

this statute, the phrase relied upon by the dissent in former section 11.18 (“[r]easonable attorney’s

fees may be taxed”) also has the same structural distinction from section 42.29 discussed previously

in relation to section 41.003 of the civil practice and remedies code. Specifically, the subject of the

sentence in former section 11.18 is attorney’s fees, not litigants or parties. Further, unlike section

42.29, former section 11.18 does not mention litigants, parties, or defendants in the entire subsection.

In its analysis, the dissent also comments on the fact that one of the statutes analyzed

in one of the cases cited by the Kimbrough court for the distinction at issue in this case has been

superseded. See 631 S.W.2d at 609 (citing Woods v. Littleton, 554 S.W.2d 662 (1977)). In Woods,

the supreme court construed the language “each consumer who prevails may obtain: (1) three times

the amount of actual damages plus court costs . . . .” found in section 17.50(b) of the business and

commerce code to mean that the legislature intended that the award of treble damages was

mandatory upon establishment of all necessary prerequisites. 554 S.W.2d at 669-70. The statute has

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been amended to allow the imposition of damages up to three times the amount of economic

damages if the trier of fact determines the defendant acted knowingly. See Bus. & Com. Code Ann.

§ 17.50(b)(1) (West 2002); see also Horta v. Tennison, 671 S.W.2d 720, 724 (Tex. App.—Houston

[1st Dist.] 1984, no writ.) (noting that, under previous version, imposition of treble damages was

mandatory). The fact that the statute has been amended to place the discretion of issuing an award

of damages in the hands of the trier of fact does not detract from the supreme court’s conclusion that

the language of the original statute was mandatory.

Accordingly, we hold that, upon request by a prevailing party under section 42.25,

an award of reasonable attorney’s fees is mandatory under section 42.29. Because Aaron Rents made

a request for attorney’s fees, the district court abused its discretion in failing to award reasonable

attorney’s fees. Therefore, we sustain Aaron Rents’s second issue on appeal.

CONCLUSION

Having overruled Aaron Rents’s first issue on appeal, we affirm that portion of the

district court’s judgment. Having sustained Aaron Rents’s second issue on appeal, we reverse that

portion of the judgment of the district court and remand the case for proceedings consistent with this

opinion.

David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith, Patterson, Puryear, Pemberton and Waldrop

Affirmed in Part; Reversed and Remanded in Part

Filed: September 8, 2006

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