Opinion

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

O P I N I O N

In

this property tax valuation case, appellant, Bullseye PS III LP (“Bullseye”),

challenges the trial court’s grant of a plea to the jurisdiction in favor of

the Harris County Appraisal District (“HCAD”) on Bullseye’s claim that HCAD

excessively and unequally appraised its property. [1] In three issues on appeal, Bullseye contends

that the trial court erred in (1) granting HCAD’s plea to the jurisdiction

because Bullseye’s agent did not enter into a valuation agreement with HCAD’s

chief appraiser at the protest hearing; (2) denying Bullseye’s motion for

continuance; and (3) denying rehearing of Bullseye’s motion to compel

depositions.

We

affirm the trial court’s judgment dismissing this case for lack of subject

matter jurisdiction.

Background

Bullseye

owns a 1.36 acre tract of property located in Harris County, Texas, and it

maintains a storage unit facility on that property. For the 2008 tax year, HCAD initially

appraised the property as having a market value of $6,283,781. Bullseye filed a protest of the initial

valuation with the Harris County Appraisal Review Board (“the Board”) and

appointed O’Connor & Associates, a tax consulting firm, as its agent for

the administrative protest process.

A

three-member panel of the Board held a hearing on Bullseye’s protest. At the hearing, Darren Blakemore, an O’Connor

employee, represented Bullseye, and Mike Garcia appeared as the representative

for HCAD. Before the hearing began,

Blakemore completed a “Hearing Affidavit” stating that his opinion for the

value of the property was $6,283,781 — the same amount at which HCAD had initially appraised the property. On the same form, Garcia, as the appraisal

district representative, swore that the testimony that he would present to the

Board was “true and correct.” The

parties then offered the following sworn testimony at the hearing:

[Garcia]: Account Number ending in

three. My name is Mike Garcia, I am

under oath. (Inaudible.)

[Blakemore]: Sorry.

My name is Darren Blakemore. My

opinion of the value for the property is $6,283,781.

Board

Member: Okay. Ready for you to sign. And, once again, the three of us have also

signed the affidavit. We have both the

disclosure statement signed, the affidavit signed. The opinion of value from the agent is

$6,283,781. And we’re ready now for a

description of the property.

[Garcia]: [Account Number.] Property location is 4250 Southwest Freeway,

Suite 600, a/k/a Bullseye Storage. This

is a 4396 mini warehouse built in 2000.

Net rentable area of 61,452 square feet.

Acreage of 1.3641 acres. It’s the

opinion of the district that the property is valued at $6,283,781.

Board

Member: Okay. Comment, Mr. Blakemore? Do you want to say anything more?

[Blakemore]: No, sir.

Board Member: Okay.

[Blakemore]: No, sir.

Board

Member: All right. And any questions here? I guess you will make a recommendation, or

did you already do that? You guys agreed

on it, so really it’s out of our jurisdiction anyway.

[Garcia]: Oh, you’ve agreed to this

value? Oh, I’m sorry, I didn’t catch

that.

Board Member: Yeah, he agreed to the noticed value.

[Garcia]: Sorry about that.

Board Member: Okay?

And you do too, right?

[Garcia]: I agree with it also.

Board

Member: All right. We’re going to close testimony. Both the agent and the appraiser have agreed

on the noticed value of $6,283,781. And

that will be the final figure for tax year 2008. That will conclude the hearing.

After the hearing, the Board mailed Bullseye an order

determining protest, confirming the final 2008 appraised value at

$6,283,781. The order included the

following notice:

YOU HAVE THE RIGHT TO APPEAL

THIS ORDER TO THE DISTRICT COURT. IF YOU

WANT TO APPEAL, YOU SHOULD CONSULT AN ATTORNEY IMMEDIATELY. YOU MUST FILE A PETITION WITH THE DISTRICT

COURT WITHIN 45 DAYS OF THE DATE YOU RECEIVE THIS NOTICE.

Within

forty-five days after receiving the order, Bullseye brought a suit for judicial

review of the Board’s decision in the district court, contending that HCAD and

the Board had excessively and unequally appraised the property. HCAD filed a plea to the jurisdiction arguing

that, because Bullseye’s agent and HCAD’s representative had reached an

agreement regarding the value of the property at the hearing, this agreement

rendered the valuation amount final and precluded Bullseye’s suit for judicial

review under Tax Code section 1.111(e). HCAD

contended that, although Tax Code section 41.45(c) provides that the chief

appraiser is to appear at each protest hearing before the Board, the chief

appraiser may delegate this authority to appraisal district employees pursuant

to Tax Code section 6.05(c). Because

HCAD’s representative and Bullseye’s agent agreed that the property should be

valued at $6,283,781, and this agreement was reached before the Board

determined Bullseye’s protest, the valuation became final, and, therefore,

according to HCAD, Bullseye could not challenge the valuation in a suit for

judicial review.

In

response, Bullseye contended that HCAD did not meet the requirements for

establishing an agreement pursuant to section 1.111(e) because that section

requires an agreement between the property owner or the owner’s agent and the chief appraiser , and an agreement

between the owner’s agent and a representative

of the appraisal district does not suffice.

Because HCAD only presented evidence of an agreement between the owner’s

agent and the appraisal district, which is distinct from the chief appraiser,

Bullseye argued that the trial court should deny HCAD’s plea to the

jurisdiction. In its response, Bullseye

also moved for a continuance, alleging that HCAD’s discovery responses were

“contradictory and indicated that until recently [HCAD’s] position was that no

agreement existed.” Bullseye requested a

continuance to conduct discovery “on [HCAD’s] contradictory position regarding

the purported agreement” with Bullseye’s agent.

Bullseye also requested a rehearing of its motion to compel depositions

of HCAD employees “[i]n light of the contradictory discovery responses and [HCAD’s]

position that the court lacks jurisdiction based upon an assertion of factual

circumstances.”

The

trial court granted HCAD’s plea to the jurisdiction and dismissed Bullseye’s

claim. This appeal followed.

Standard of Review

We

review a trial court’s ruling on a plea to the jurisdiction de novo. Tex.

Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226, 228 (Tex.

2004). We construe the pleadings

liberally in favor of the plaintiff while considering the pleader’s

intent. See id. A trial court

decides a plea to the jurisdiction by reviewing the pleadings and any evidence

relevant to the jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue , 34

S.W.3d 547, 555 (Tex. 2000). If the

jurisdictional defect cannot be cured by amending the pleadings, the trial

court may grant a meritorious plea to the jurisdiction without allowing the

plaintiff an opportunity to amend. See Cnty. of Cameron v. Brown , 80 S.W.3d

549, 555 (Tex. 2002). When reviewing a

plea to the jurisdiction, we cannot examine the merits of the case. See

Houston Indep. Sch. Dist. v. 1615 Corp. , 217 S.W.3d 631, 635 (Tex. App.—Houston

[14th Dist.] 2006, pet. denied).

Agreement on Valuation

In

its first issue, Bullseye contends that the trial court erred in granting

HCAD’s plea to the jurisdiction because (1) for an agreement to preclude a suit

for judicial review under Tax Code section 1.111(e), the agreement must be made

between the property owner’s agent and the chief appraiser, not merely a

representative of the appraisal district; (2) Bullseye has an “absolute right” seek

judicial review of the Board’s order; (3) applying section 1.111(e) under these

factual circumstances violates Bullseye’s due process rights; and (4) a

disputed factual issue exists regarding whether Bullseye’s agent made a

valuation agreement with the chief appraiser.

Chapter

41 of the Tax Code provides that property owners are entitled to protest the

determination of the appraised value of the property and the unequal appraisal

of the property before the county’s appraisal review board. Tex.

Tax Code Ann. § 41.41(a)(1)–(2) (Vernon 2008); Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist. , 225

S.W.3d 68, 75 (Tex. App.—El Paso 2005, no pet.). If the property owner meets certain

procedural requirements, the owner is entitled to a hearing on its protest

before the appraisal review board. Tex. Tax Code Ann. § 41.44(a)

(Vernon 2008); Appraisal Review Bd. of

Harris Cnty. Appraisal Dist. v. Spencer Square Ltd. , 252 S.W.3d 842, 845

(Tex. App.—Houston [14th Dist.] 2008, no pet.).

At the hearing, the appraisal district has the burden of establishing

the value of the property by a preponderance of the evidence, and, if it does

not, the board must determine the protest in favor of the owner. Tex.

Tax Code Ann. § 41.43(a) (Vernon 2008). The purpose of the hearing is to give both

the appraisal district and the property owner an opportunity to appear before the

board and to present evidence and arguments regarding the parties’ relative

opinions on the property’s value. See id. ; see also id. § 41.45(b) (Vernon Supp. 2010) (“The property

owner initiating the protest is entitled to an opportunity to appear to offer

evidence or argument.”); id.

§ 41.66(b) (Vernon 2008) (“Each party to a hearing is entitled to offer

evidence . . . .”); id.

§ 41.67 (Vernon 2008) (discussing types of evidence that may be presented

at hearing).

Generally,

property owners have a statutory right to file a suit for judicial review of an

appraisal review board’s order determining the property owner’s protest. Tex.

Tax Code Ann. § 42.01(a)(1)(A) (Vernon 2008) (“A property owner is

entitled to appeal an order of the appraisal review board determining a protest

by the property owner . . . .”). Tax Code section 1.111(e), however, provides

that:

(e) An agreement between a property owner or

the owner’s agent and the chief appraiser is final if the agreement relates to

a matter:

(1) which may be protested to the appraisal

review board or on which a protest has been filed but not determined by the

board[.]

Id.

§ 1.111(e)(1) (Vernon Supp. 2010).

Section 1.111(e) agreements are “final and not subject to protest by the

property owner or subject to a property owner’s statutory suit for judicial

review under chapter 42.” MHCB (USA) Leasing & Fin. Corp. v.

Galveston Cent. Appraisal Dist. , 249 S.W.3d 68, 84 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied). These

agreements are final even without approval or adoption by the appraisal review

board. Id. at 83 ; see also Tex. Tax Code Ann. § 41.01(b)

(Vernon 2008) (“The [appraisal review] board may not review or reject an

agreement between a property owner or the owner’s agent and the chief appraiser

under section 1.111(e).”); Sondock v.

Harris Cnty. Appraisal Dist. , 231 S.W.3d 65, 69 (Tex. App.—Houston [14th

Dist.] 2007, no pet.) (“Because the agreement related to [a matter in which a

protest had been filed but not determined by the Board], at the moment it was

reached, it became final.”).

The

Tax Code does not specifically define “agreement,” and thus we apply the

ordinary meaning of the term. Tex. Gov’t Code Ann. § 312.002(a)

(Vernon 2005); Sondock , 231 S.W.3d at

69 . In Sondock , the Fourteenth Court of Appeals defined “agreement” as

“the act of agreeing; harmony of opinion; accord.” Sondock ,

231 S.W.3d at 69 . The court held that

section 1.111(e) does not require the parties to act on the agreement or

announce the agreement to the court. Id.

Because the parties expressed the same approximate value for the

property at the hearing, this “meeting of the minds” qualified as an agreement

under section 1.111(e). Id.

This Court agrees. See Hartman v. Harris Cnty. Appraisal Dist. ,

251 S.W.3d 595, 600 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (“When

the Hartmans’ agent and the appraiser each announced the same opinion as to the

value of the property, they were in ‘the act or fact of agreeing’ and were

expressing a ‘harmony of opinion.’ And

in announcing their opinions regarding the value, they were ‘acting’ upon the matter

and informing the panel of their agreement.”).

A section 1.111(e) agreement may include the property owner’s acceptance

of a settlement offer made by the appraisal district; however, a formal

settlement agreement is not required under the statute. See

Tex. Tax. Code Ann. § 41.415(e)

(Vernon Supp. 2010) (“If the property owner accepts a settlement offer made by

the appraisal district, the chief appraiser shall enter the settlement in the

appraisal records as an agreement made under section 1.111(e).”). In Hartman ,

we concluded that section 1.111(e) “does not require a formal announcement such

as ‘we agree’” or any other “magic words.”

Hartman , 251 S.W.3d at 600,

601 . Instead, “[i]t is the fact of

agreeing — the harmony of opinions — that creates the agreement.” Id.

at 601 .

Both

this Court and the Fourteenth Court of Appeals have recently addressed whether

an agreement between the property owner’s agent and a representative of the

appraisal district constitutes an agreement with the chief appraiser that

qualifies as a section 1.111(e) agreement.

See Kelly v. Harris Cnty.

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

Dist.] Feb. 10, 2011, no pet. h.) (mem. op.); Crescent Oaks LP v. Harris Cnty. Appraisal Dist. , No.

14-10-00199-CV, 2011 WL 166932 (Tex. App.—Houston [14th Dist.] Jan. 13, 2011, no

pet.) (mem. op.) (per curiam); KM TS

Spring Cypress L.L.C. v. Harris Cnty. Appraisal Dist. , No. 14-09-00978-CV,

2010 WL 3921126 (Tex. App.—Houston [14th Dist.] Oct. 7, 2010, pet. denied)

(mem. op.) (per curiam). In Kelly , we noted that although Tax Code

section 41.45(c) directs that the chief appraiser “shall appear at each protest

hearing before the appraisal review board to represent the appraisal office,”

section 6.05(e) provides that “[t]he chief appraiser may delegate authority to

his employees.” Kelly , 2011 WL 497032 , at *4; Tex.

Tax Code Ann. §§ 41.45(c) (Vernon Supp. 2010), 6.05(e) (Vernon 2008);

see also Crescent Oaks , 2011 WL

166932 , at *2 (“The chief appraiser is not prohibited from delegating his

authority to reach an agreement with a property owner.”). We also observed that, given the size of

Harris County and the number of valuation protests, “it is not uncommon for an

HCAD representative to appear at protest hearings on behalf of the chief appraiser.” Kelly ,

2011 WL 497032 , at *4 (citing Sondock ,

231 S.W.3d at 69 ; Loposer v. Harris Cnty.

Appraisal Dist. , No. 14-07-00956-CV, 2009 WL 2146151 , at *1 (Tex.

App.—Houston [14th Dist.] July 21, 2009, no pet.) (mem. op.); Prince v. Harris Cnty. Appraisal Dist. ,

No. 14-07-00919-CV, 2009 WL 20975 , at *1 (Tex. App.—Houston [14th Dist.] Jan.

6, 2009, no pet.) (mem. op.); and Mann v.

Harris Cnty. Appraisal Dist. , No. 01-07-00436-CV, 2008 WL 1747807 , at *1

(Tex. App.—Houston [1st Dist.] Apr. 17, 2008, no pet.) (mem. op.)).

In Kelly , the Board held a protest hearing, an HCAD representative

appeared at the hearing on the chief appraiser’s behalf, Kelly did not object

to the chief appraiser’s failure to appear, and Kelly’s agent reached an

agreement at the hearing with the HCAD representative regarding the value of

the property. Kelly , 2011 WL 497032 , at *4.

We held that, notwithstanding the chief appraiser’s failure to appear,

because the chief appraiser could delegate his authority to appear at hearings

the agreement reached between Kelly’s agent and HCAD’s representative was final,

and Kelly could not seek judicial review of the Board’s subsequent order

confirming the agreed valuation amount. Id. ; see

also Crescent Oaks , 2011 WL 166932 , at *2 (stating, “We therefore reject

Crescent Oaks’s claim that an agreement between a property owner and an HCAD

representative appearing on behalf of the chief appraiser is not an agreement

subject to section 1.111(e).”); Spring

Cypress , 2010 WL 3921126 , at *1 (holding same).

This case is factually analogous to

Kelly , Crescent Oaks , and Spring

Cypress . The Board held a protest

hearing, at which Bullseye’s agent and an HCAD representative appeared. At the beginning of the hearing, HCAD’s

representative swore that he was present to represent HCAD and that the

testimony he would present to the Board was true and correct. The chief appraiser did not appear, but

Bullseye made no objection on this basis.

During the hearing, Bullseye’s agent and HCAD’s representative offered

identical opinions regarding the value of the property — which was the same amount as HCAD’s initial

valuation — and a Board member noted the

agreement on the record. Neither

representative offered any further testimony regarding the value of the

property, and a Board member stated that the parties had agreed on the noticed

value and that $6,283,781 would be the final value for the 2008 tax year. The Board then issued an order confirming

this amount as the final value. Under

section 1.111(e) of the Tax Code, this agreement was final and

non-appealable. See Tex. Tax Code Ann.

§ 1.111(e); id. § 41.01(b);

MHCB , 249 S.W.3d at 83–84. Nevertheless, Bullseye sought judicial review

in the district court.

The parties agree, as they must,

that the chief appraiser may delegate to appraisal district employees his

authority to attend a protest hearing and present evidence and a valuation

opinion to the Board. [2] Bullseye argues, however, that the record

must affirmatively demonstrate that the chief appraiser delegated to the

representative of the appraisal district in each case the specific authority to

enter into an agreement with the property owner before a court may determine

that a section 1.111(e) agreement has been reached. We hold that the statute does not require

this specific delegation. Although the

Tax Code contemplates that the owner and the appraisal district may reach a

formal settlement agreement regarding the property’s value, both this court and

our sister court, the Fourteenth Court of Appeals, have repeatedly held that

such formalities are not required under section 1.111(e). See,

e.g. , Hartman , 251 S.W.3d at 600 ;

Sondock , 231 S.W.3d at 69 . All that is required for an agreement is that

the parties express the same opinion regarding value — they need not have discussed the matter or come

to a consensus prior to the hearing, nor must they state on the record at the

hearing that they agree on the value. If

the property owner happens to state the same valuation opinion as the appraisal

district representative, who undisputedly has the power to state a valuation

opinion on behalf of the chief appraiser, an agreement is reached. No specific authority from the chief

appraiser to enter into an agreement with the property owner is necessary. We therefore hold that because the chief

appraiser may delegate authority to appraisal district employees to appear at

protest hearings and present a valuation opinion, by stating the same opinion

regarding the value of the property, Bullseye’s agent and HCAD’s representative

reached an agreement pursuant to section 1.111(e), precluding Bullseye from

seeking judicial review of the subsequent Board order. See

Kelly , 2011 WL 497032 , at *4; Crescent

Oaks , 2011 WL 166932 , at *2; Spring

Cypress , 2010 WL 3921126 , at *1.

Bullseye also contends, in its

first issue, that it had an “absolute right to appeal” the Board’s order

determining the protest pursuant to Tax Code sections 42.01 and 42.21. See

Tex. Tax Code Ann.

§§ 42.01(a) (Vernon 2008), 42.21(a) (Vernon Supp. 2010). This is an incorrect statement of the law. As we noted in MHCB , “appraisal agreements between property owners and chief

appraisers are final and cannot be reviewed or rejected by appraisal review

boards.” MHCB , 249 S.W.3d at 83 ; see

also Sondock , 231 S.W.3d at 69 (noting that Legislature amended section

1.111(e) and deleted requirement that Board approve of agreement before it

becomes final). Because the Board cannot

review a section 1.111(e) agreement, “it necessarily cannot render an order

resolving a protest based on a review of that agreement.” MHCB ,

249 S.W.3d at 83 (citing Tex. Tax Code

Ann. § 41.01(b)). Thus,

because the Board cannot render an order resolving the protest after the

parties reach a valuation agreement, “the property owner cannot file a suit for

judicial review under Tax Code Chapter 42 . . . of matters

relating to an appraisal agreement.” Id. (citing BPAC Tex., LP v. Harris Cnty. Appraisal Dist. , No. 01-03-01238-CV,

2004 WL 2422033 , at *3 (Tex. App.—Houston [1st Dist.] Oct. 28, 2004, no pet.)

(mem. op.)). At the moment the parties

reach an agreement, the agreement becomes final and any subsequent valuation

determinations by the appraisal review board are irrelevant. MHCB ,

249 S.W.3d at 88 ; Sondock , 231 S.W.3d

at 69 .

At the time that Bullseye’s agent

and HCAD’s representative agreed at the hearing on the value of the property,

the Board had not yet determined Bullseye’s protest. See

Tex. Tax Code Ann. § 1.111(e)

(stating agreement is final if it relates to matter on which protest has been

filed but not yet determined by review board).

Because the agreement became final at the time the agent and the

representative stated the same value for the property, “the subsequent approval

and order by the [B]oard was irrelevant,” and Bullseye did not have a Board

order of which it could seek judicial review in the district court. See Kelly ,

2011 WL 497032 , at *4; see also Mann ,

2008 WL 1747807 , at *6 (“[W]e conclude that the protest was not ‘determined by

the Board,’ even though, after the parties reached an agreement, the Board

entered an ‘Order Determining Protest’ that set the appraised value at the

amount agreed to by the parties.”).

Bullseye also contends that precluding

its suit for judicial review in the district court violates its due process

rights. This Court and the Fourteenth

Court have repeatedly addressed this assertion and found due process satisfied

under these circumstances.

The collection of taxes constitutes

deprivation of property, and, therefore, a taxing authority must afford a

property owner due process of law. McKesson Corp. v. Div. of Alcoholic

Beverages & Tobacco, Dep’t of Bus. Regulation of Fla. , 496 U.S. 18 ,

36–37, 110 S. Ct. 2238 , 2250–51 (1990); Sondock ,

231 S.W.3d at 70 . “[D]ue process simply

affords a right to be heard before final assessment; it does not detail the

review mechanism.” ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist. , 137

S.W.3d 146, 155 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (quoting Dallas Cnty. Appraisal Dist. v. Lal , 701

S.W.2d 44, 47 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)). In taxation cases, due process is satisfied

if the taxpayer is given an opportunity to be heard before an assessment board

at some stage of the proceedings. Id. (citing Denton Cent. Appraisal Dist. v. CIT Leasing Corp. , 115 S.W.3d 261,

266 (Tex. App.—Fort Worth 2003, pet. denied)).

Here, Bullseye protested the

initial appraised value of its property and received an opportunity to present

its opinion regarding the value to the Board.

At the hearing, both Bullseye’s agent and HCAD’s representative opined

that the value of the property was $6,283,781 — the same amount as the initial appraised value. After the HCAD representative stated his

belief regarding value and after a Board member noted that the parties appeared

to agree on value, Bullseye’s agent did not object or make any further

comments. The Board later issued an

order confirming the 2008 value at $6,283,781, in accordance with the parties’

agreement. We therefore conclude that

because Bullseye had an opportunity to protest the initial value to the Board

and it reached an agreement with HCAD during the hearing, Bullseye’s due process

rights were not violated. See Kelly , 2011 WL 497032 , at *5; see also Sondock , 231 S.W.3d at 70 (“We

cannot imagine how the Sondocks were deprived of due process when they were

given the opportunity to present their arguments to a legal panel and they

reached an agreement fully satisfying their stated contentions.”).

Finally, Bullseye contends in its

first issue that the trial court incorrectly granted HCAD’s plea to the

jurisdiction because a disputed factual issue existed regarding whether

Bullseye’s agent and the chief appraiser agreed on the value of the property.

The record is clear that, at the

protest hearing, Bullseye’s agent and HCAD’s representative both stated that

they believed that the property should be valued at $6,283,781. As we have held, this is considered an agreement

under section 1.111(e). See Hartman , 251 S.W.3d at 600 ; see also Sondock , 231 S.W.3d at 69 . It is undisputed that the chief appraiser did

not appear at the protest hearing but that an appraisal district representative

appeared and expressed the same valuation opinion as Bullseye’s agent. The question before us on appeal is whether

an agreement between an owner’s agent and an appraisal district representative — as opposed to the chief appraiser — qualifies as a section 1.111(e) agreement that

precludes a suit for judicial review. As

the Fourteenth Court of Appeals has held, this is a question of law that is

proper for a plea to the jurisdiction. See Crescent Oaks , 2011 WL 166932 , at *2;

Spring Cypress , 2010 WL 3921126 , at

*2. We conclude that this issue may

permissibly be determined via a plea to the jurisdiction.

We overrule Bullseye’s first issue.

Because this issue is dispositive

of this appeal, we do not reach Bullseye’s second issue, arguing that the trial

court, in granting HCAD’s plea to the jurisdiction, erred in implicitly denying

its motion for continuance, or its third issue, arguing that, in granting the

plea to the jurisdiction, the trial court erroneously denied a rehearing of

Bullseye’s motion to compel the depositions of appraisal district employees.

Conclusion

We

affirm the judgment of the trial court dismissing this case for lack of subject

matter jurisdiction. All pending motions

are dismissed as moot.

Evelyn V.

Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

Justice

Massengale, concurring.

[1]

Although Bullseye’s original

petition listed both the Harris County Appraisal District and the Harris County

Appraisal Review Board as defendants, the record does not indicate that the

Board received service of citation or appeared in the proceeding. An appraisal review board is not a necessary

party to a petition for judicial review of the board’s order. Tex.

Tax Code Ann. § 42.21(b) (Vernon Supp. 2010). Because the Board is not a necessary party to

the appeal and the record does not affirmatively demonstrate that the Board was

served or that it appeared, we hold that HCAD is the only appellee properly

before the court. See KM-Timbercreek, LLC v. Harris Cnty. Appraisal Dist. , 312 S.W.3d

722 , 724 n.1 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

[2]

At the hearing on HCAD’s plea to

the jurisdiction, Bullseye’s counsel acknowledged that Jim Robertson, HCAD’s

chief appraiser, had completed an affidavit in which he averred that he

delegates authority to HCAD employees and appraisers to make final agreements

with property owners pursuant to the Tax Code.

Bullseye’s counsel stated that her problems with the affidavit were that

it did not address the specific hearing in this case, nor did it discuss when

and how authority is delegated. The

trial court stated that delegation of authority is a “verbal act of independent

legal significance” and it discounted the relevance of when and how the chief

appraiser delegated his authority and of whether he globally delegated

authority or delegated on a case by case basis.

The chief appraiser’s affidavit was, therefore, not entered into

evidence at the hearing and is not part of the appellate record.