Opinion

Concurring opinion issued June 16, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-01139-CV

———————————

Bullseye PS III LP, as the Property Owners and the Property Owners , Appellant

V.

Harris

County Appraisal District , Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2008-55531

CONCURRING OPINION

Because

the result in this appeal is controlled by the prior memorandum opinion of this

court in Kelly v. Harris County Appraisal

District , No. 01-09-00996-CV, 2011 WL 497032 (Tex. App.—Houston [1st Dist.]

Feb. 10, 2011, no pet. h.), I concur in the judgment. I write separately to explain my disagreement

with the holdings in Kelly and the

sole relevant authority it relied upon, KM

TS Spring Cypress L.L.C. v. Harris County Appraisal District , No.

14–09–00978–CV, 2010 WL 3921126 (Tex. App.—Houston [14th Dist.] Oct. 7, 2010, pet.

denied) (per curiam mem. op.).

This

is an appeal from the trial court’s ruling sustaining the appraisal district’s

plea to the jurisdiction. The basis for

the jurisdictional challenge is the purported existence of an agreement between

the property owner’s agent and the chief appraiser. If such an agreement exists, it is final as

to any matter on which a protest has been filed but not determined by the

board. See Tex. Tax Code Ann. § 1.111(e)(1) (West Supp.

2010).

In

this case, as in Kelly and KM TS Spring Cypress , * the property owner disputes the

applicability of Tax Code section 1.111(e) on the basis that the agreement at

the hearing was made between the property owner’s agent and an employee of the

appraisal district, but not the chief appraiser himself. It is certainly the case that the chief

appraiser may delegate authority to his employees, see Tex. Tax Code Ann.

§ 6.05(e) (West 2008), and it therefore follows that included among the

responsibilities that may be so delegated are either or both of the responsibility

to represent the appraisal district at a protest hearing, see id. § 41.45(c)

(West Supp. 2010), and the power to enter into a binding final agreement

concerning appraised value, see id. § 1.111(e).

The

chief appraiser’s delegation of authority to his employees to represent the

appraisal district at a protest hearing could, but need not necessarily,

include a delegation of authority to enter into a final and binding agreement

as to appraised value. The factual basis

for the appraisal district’s claim of delegation was challenged by the property

owner in the trial court, and if it is in fact the case that such authority had

been delegated, then it would be plain that section 1.111(e) operates to

foreclose further litigation as to appraised value. But the appraisal district produced no

evidence to support its claim that the relevant authority had been delegated by

the chief appraiser, and the property owner sought discovery to confirm whether

there is a factual basis for the appraisal district’s claim. There is no statutory basis for denying

discovery into that matter. The statute

specifically identifies the chief appraiser as the person empowered to enter

into a final agreement for purposes of section 1.111(e). In a large county such as Harris County, a

chief appraiser is effectively required to delegate to employees the authority

to appear at protest hearings, simply because there are too many hearings for

the chief appraiser to attend them all.

Yet the chief appraiser might still wish to retain the power of personally

and finally approving agreements pursuant to section 1.111(e), thereby

providing a check against overly generous concessions by the appraisal

district’s representatives, collusion with agents for property owners, or any

other concern the chief appraiser may have.

The presumption in Kelly and KM TS Spring Cypress that such authority

may be inferred from the appearance of a representative in lieu of the chief

appraiser thus deprives the chief appraiser of the flexibility to tailor which

powers he may or may not wish to delegate to his employees. The property owner’s failure to object to the

absence of the chief appraiser — an

apparently futile objection given the chief appraiser’s power to delegate

responsibility for appearing at the protest hearing — adds nothing to the analysis.

When a

plea to the jurisdiction turns on disputed jurisdictional facts, the trial

court is required to resolve the jurisdictional issues by considering relevant

evidence submitted by the parties. See Texas Dep’t. of Parks & Wildlife v.

Miranda , 133 S.W.3d 217, 227 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). That fundamental concept is violated by the

rule of Kelly and KM TS Spring Cypress , which

short-circuits the inquiry and improperly assumes jurisdictional facts in favor

of the defendant appraisal district.

Michael

Massengale

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

*

See Kelly v. Harris Cnty. Appraisal Dist. , No. 01-09-00996-CV, 2011

WL 497032 , at *2 (Tex. App.—Houston [1st Dist.] Feb. 10, 2011, no pet. h.); KM TS Spring Cypress L.L.C. v. Harris Cnty.

Appraisal Dist. , No. 14-09-00978-CV, 2010 WL 3921126 , at *1 (Tex.

App.—Houston [14th Dist.] Oct. 7, 2010, pet. denied).