Petition for Writ of Certiorari — David Hill, Individually and dba DOH Oil Company, Petitioner v. Huntley Fort Gill, et al.

Supreme Court briefJul 22, 2024

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No. _____

In the Supreme Court of the United States

DAVID HILL, INDIVIDUALLY AND D/B/A

DOH OIL COMPANY, PETITIONER

HUNTLEY FORT GILL, ROBYN G. ATTAWAY, AND

MIRIAM G. STIRN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

PETITION FOR A WRIT OF CERTIORARI

MATTHEW S. WOLCOTT

Counsel of Record

GRAHAM K. SIMMS

FREEMAN MILLS PC

801 Cherry St., Suite 1025

Fort Worth, Texas 76102

682-316-1677

mwolcott@freemanmillspc.com

gsimms@freemanmillspc.com

Counsel for Petitioner

QUESTION PRESENTED

The Texas Tax Code provides a statute of limitations on challenges to a purchaser’s title to property

acquired at a tax foreclosure sale. If a person was not

served citation in the tax foreclosure suit, but continues paying property taxes following the tax sale,

that person may challenge the validity of the tax sale

at any time. Otherwise, a one-year limitations period

applies, after which the purchaser has full title to the

property. The Texas Supreme Court rejected the

statute’s application to a claim that a tax sale was

invalid because the foreclosed owner was not properly served. The court held that a statute can never

limit the time to challenge a judgment taken without

constitutionally adequate notice.

The question presented, on which the States are

deeply divided, is:

Whether a statute can limit the time to challenge

a tax sale for lack of constitutionally adequate notice

to the owner, provided that the statute does not unreasonably limit the aggrieved owner’s time to enforce its rights.

RELATED PROCEEDINGS

143rd District Court of Reeves County, Texas:

Gill v. Hill, No. 19-02-22804-CVR (Dec. 16, 2019)

Eighth Court of Appeals, El Paso, Texas:

Gill v. Hill, No. 08-20-00081-CV (Aug. 30, 2022)

Supreme Court of Texas:

Gill v. Hill, No. 22-0913 (April 26, 2024)

iii

TABLE OF CONTENTS

Table of Authorities .................................................... v

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 2

Constitutional and Statutory Provisions

Involved.................................................................. 2

Introduction ................................................................ 3

Statement of The Case ............................................... 4

A. Statutory Background...................................... 4

B. This Case .......................................................... 5

Reasons for Granting the Petition ............................. 8

A. The States are split on whether

challenges to tax sales based on lack of

constitutional notice can be time-barred. ....... 8

B. This Issue Is Important and Recurring......... 14

C. The Decision Below Is Wrong and

Conflicts With This Court’s Cases ................. 18

D. This Case Is an Ideal Vehicle for

Resolving The Issue ....................................... 24

Conclusion ................................................................. 26

Appendix A - Texas Supreme Court opinion

(April 26, 2024) .................................................... 1a

Appendix B - Eighth Court of Appeals opinion

(August 30, 2022)............................................... 16a

Appendix C - Mitchell v. MAP Res., Inc.,

649 S.W.3d 180 (Tex. 2022) ............................... 44a

TABLE OF AUTHORITIES

Cases:

Am. Homeowner Pres. Fund, LP v. Pirkle, 475

S.W.3d 507 (Tex. App.—Fort Worth 2015,

pet. denied) .............................................. 15, 21, 24

Anadarko Land Corp. v. Family Tree Corp.,

389 P.3d 1218 (Wyo. 2017) ........................ 9, 16, 18

Barren v. Pa. State Police, 219 A.3d 722 (Pa.

Commw. Ct. 2019) ............................................... 19

Bd. of Comm’rs v. Bumpass, 63 S.E.2d 144

(N.C. 1951) ............................................................. 9

Bd. of Regents v. Tomanio, 446 U.S. 478 (1980) ...... 21

Benoit v. Panthaky, 780 F.2d 336 (3d Cir.

1985)....................................................................... 9

Blinn v. Nelson, 222 U.S. 1 (1911) ........................... 17

Bogart v. Lathrop, 523 P.2d 838 (Nev. 1974) ............. 9

Bonded Certificate Corp. v. Wildey, 45 A.2d

684 (N.J. 1946)....................................................... 9

Burgett v. McCray, 33 S.W. 639 (Ark. 1896) ............ 16

Campbell v. Holt, 115 U.S. 620 (1885) ..................... 22

Case v. Dean, 16 Mich. 12 (1867) ............................. 16

Chapin v. Aylward, 464 P.2d 177 (Kan. 1970) .... 9, 13

Chase Sec. Corp. v. Donaldson, 325 U.S. 304

(1945) ............................................................. 19, 22

Comptroller of the Treasury v. Wynne, 575 U.S.

542 (2015) ............................................................ 25

Coughlin v. Pierre, 286 N.W. 877 (S.D. 1939).......... 16

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ... 2, 25

Credit Suisse Sec. (USA) LLC v. Simmonds,

566 U.S. 221 (2012) ............................................. 19

Crown v. Parker, 462 U.S. 345 (1983) ...................... 18

Duff v. Penick, 26 P.2d 603 (Kan. 1933) .................. 16

Duncan v. Gabler, 215 S.W.2d 155 (Tex. 1948) ....... 15

Elbert, Ltd. v. Gross, 260 P.2d 35 (Cal. 1953) .......... 10

Ewart v. Boettcher, 50 P.2d 676 (Okla. 1935) ............ 9

First Nat’l Bank v. Meyer, 476 N.W.2d 267

(S.D. 1991) ............................................................. 9

Hardisty v. Kay, 299 A.2d 771 (Md. 1973) ............... 16

Hatten v. Parcels of Land, etc., 217 S.W.2d 511

(Mo. 1949) ............................................................ 16

Herder Spring Hunting Club v. Keller, 143

A.3d 358 (Pa. 2016).............................. 9, 11, 18, 26

Hood River Cty. v. Dabney, 423 P.2d 954 (Or.

1967)............................................... 9, 10, 11, 17, 20

Hunter v. Grier, 180 N.E.2d 603 (Ohio 1962) ............ 9

ISCA Enters. v. City of N.Y., 572 N.E.2d 610

(N.Y. 1991) ............................................................. 9

Izaak Walton League of Am. Endowment, Inc.

v. State, Dep’t of Nat. Res., 252 N.W.2d 852

(Minn. 1977)......................................................... 14

Jordan v. Jensen, 391 P.3d 183 (Utah 2017) . 9, 13, 18

Jorgensen v. Thurston Cty., 259 P. 720 (Wash.

1927)................................................................. 9, 12

Kaufman v. Gross & Co., 591 P.2d 1229 (Cal.

1979)................................................................. 8, 10

King v. Mullins, 171 U.S. 404 (1898) ....................... 15

Knapp v. Josephine Cty., 235 P.2d 564 (Ore.

1951)..................................................................... 20

Knowlton v. Coye, 37 N.W.2d 343 (N.D. 1949) .......... 9

Lake Canal Reservoir Co. v. Beethe, 227 P.3d

882 (Colo. 2010) ......................................... 8, 17, 18

Littlewolf v. Hodel, 681 F. Supp. 929 (D.D.C.

1988)..................................................................... 24

Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982) ............................................................. 19, 22

Lohr v. Saratoga Partners, L.P., 238 A.3d 1198

(Pa. 2020) ............................................................. 16

Lujan v. G & G Fire Sprinklers, 532 U.S. 189

(2001) ................................................................... 18

Mennonite Bd. of Missions v. Adams, 462 U.S.

791 (1983) ...................................................... 11, 23

Michel v. Stream, 19 So. 215 (La. 1896)................... 16

Mitchell v. MAP Res., Inc., 649 S.W.3d 180

(Tex. 2022) ..................7, 8, 9, 14, 15, 18, 22, 23, 24

Moorehead v. John Deere Indus. Equip. Co.,

572 P.2d 1207 (Colo. 1977) .................................. 15

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) ....................................... 10, 23

N. Laramie Land Co. v. Hoffman, 268 U.S. 276

(1925) ............................................................. 14, 20

vii

N.Y. State Club Ass’n v. City of N.Y., 487 U.S.

1 (1988) ................................................................ 18

Naylor v. Billington, 378 S.W.2d 737 (Tenn.

1964)....................................................................... 9

O’Donnell v. Krneta, 154 N.E.2d 45 (Ind. 1958) ........ 8

Oakland Cemetery Ass’n v. Cty. Of Ramsey,

108 N.W. 857 (Minn. 1906) ................................. 16

Owens v. Okure, 488 U.S. 235 (1989) ....................... 19

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80

(1988) ............................................................. 14, 23

Quelimane Co. v. Stewart Title Guar. Co., 960

P.2d 513 (Cal. 1998) ...................................... 10, 24

1236 (Alaska 1983) ............................................ 8, 9

Ross v. Rosen-Rager, 67 So. 3d 29 (Ala. 2010) ......... 16

Saffo v. Foxworthy, Inc., 687 S.E.2d 463 (Ga.

2009)........................................................... 8, 12, 18

Sage Land & Lumber Co. v. Hickey, 257

S.W.2d 941 (Ark. 1953) ................................... 8, 12

Sallie v. Tax Sale Inv’rs, 998 F. Supp. 612 (D.

Md. 1998) ............................................................. 16

Saranac Land & Timber Co. v. Comptroller of

N.Y., 177 U.S. 318 (1900) .............. 4, 12, 14, 17, 19

Schroeder v. New York, 371 U.S. 208 (1962) ........... 23

Shaffer v. Mareve Oil Corp., 204 S.E.2d 404

(W. Va. 1974) ................. 8, 9, 10, 11, 15, 17, 20, 24

Shnier v. Vahlberg, 110 P.2d 593 (Okla. 1941)........ 16

Simon v. Cronecker, 915 A.2d 489 (N.J. 2007) ........ 16

viii

Small v. Hull, 32 P.2d 4 (Mont. 1934) ....................... 9

Smitko v. Gulf S. Shrimp, Inc., 94 So. 3d 750

(La. 2012) ......................................................... 9, 18

State ex rel. Snow v. Farney, 54 N.W. 862

(Neb. 1893) ........................................................... 16

Stiff v. Equivest Fin., LLC, 325 So. 3d 738

(Ala. 2020) ............................................................ 17

Tallage Lincoln, LLC v. Williams, 151 N.E.3d

344 (Mass. 2020) .............................................. 9, 18

Texaco, Inc. v. Short, 454 U.S. 516

(1982) ....................................... 4, 14, 19, 20, 22, 25

Thomas v. Hardisty, 143 A.2d 618 (Md. 1958) .......... 9

Thornton, Ltd. v. Rosewell, 381 N.E.2d 249 (Ill.

1978)..................................................................... 16

Town of Hudson v. Gate City Dev. Corp., 660

A.2d 1100 (N.H. 1995) ......................... 9, 11, 17, 24

Tulsa Prof. Collection Servs., Inc. v. Pope, 485

U.S. 478 (1988) .................................................... 23

Turner v. New York, 168 U.S. 90 (1897) .................. 12

Tyler v. Cass Cty., 48 N.W. 232 (N.D. 1890) ............ 16

United States v. Locke, 471 U.S. 84 (1985) .............. 14

W. Orange-Cove Consol. I.S.D. v. Alanis, 107

S.W.3d 558 (Tex. 2003) ........................................ 15

Walker v. City of Hutchinson, 352 U.S. 112

(1956) ............................................................. 14, 23

Wayne Cty. Treasurer v. Perfecting Church (In

re Treasurer of Wayne Foreclosure), 732

N.W.2d 458 (Mich. 2007) ....................................... 9

Wells Fargo Bank, N.A. v. Up Ventures II,

LLC, 675 S.E.2d 883 (W. Va. 2009) .................... 11

Wells v. Thomas, 78 So.2d 378 (Fla. 1954) ................ 9

Wilder v. Dennis, 202 F. 667 (4th Cir. 1912) ........... 16

Constitution and Statutes:

U.S. Const. Amend. XIV (Due Process Clause) ......... 2

28 U.S.C. § 2244 ........................................................ 19

42 U.S.C. § 1983 .................................................. 19, 22

Tex. Tax Code § 31.02 ............................................... 20

Tex. Tax Code § 33.54 ............. 3, 4, 5, 7, 20, 21, 22, 26

Tex. Tax Code § 34.01 ......................................... 21, 26

Tex. Tax Code § 34.04 ............................................... 22

Tex. Tax Code § 34.05 ............................................... 21

Tex. Tax Code § 34.08 ............................................... 21

Miscellaneous:

Frank S. Alexander, Tax Liens, Tax Sales, and

Due Process, 75 Ind. L.J. 747 (2000) .................. 15

Senate Comm. on Intergovernmental

Relations, Bill Analysis, Tex. S.B. 1249,

75th Leg., R.S. (1997),

http://www.capitol.state.tx.us/tlodocs/75R/a

nalysis/html/SB01249S.htm ................................. 5

In the Supreme Court of the United States

DAVID HILL, INDIVIDUALLY AND D/B/A

DOH OIL COMPANY, PETITIONERS

HUNTLEY FORT GILL, ROBYN G. ATTAWAY, AND

MIRIAM G. STIRN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

PETITION FOR A WRIT OF CERTIORARI

David Hill, Individually and d/b/a DOH Oil

Company, respectfully petitions for a writ of certiorari to review the judgment of the Supreme Court of

Texas in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Texas

(App. 1a-15a) is reported at 688 S.W.3d 863. The

opinion of the El Paso Court of Appeals (App. 16a43a) is reported at 658 S.W.3d 618.

(1)

JURISDICTION

The Supreme Court of Texas entered its judgment

on April 26, 2024. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257(a). The Supreme

Court of Texas’s decision qualifies as a final judgment within the meaning of the statute. Cox Broad.

Corp. v. Cohn, 420 U.S. 469, 482-83 (1975).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

“No State shall … deprive any person of life, liberty, or property, without due process of law….” U.S.

Const. amend. XIV.

Tex. Tax Code § 33.54 provides in relevant part:

(a) Except as provided by Subsection (b), an action

relating to the title to property may not be maintained against the purchaser of the property at a tax

sale unless the action is commenced:

(1) before the first anniversary of the date

that the deed executed to the purchaser at the

tax sale is filed of record;

***

(b) If a person other than the purchaser at the tax

sale or the person’s successor in interest pays taxes

on the property during the applicable limitations period and until the commencement of an action challenging the validity of the tax sale and that person

was not served citation in the suit to foreclose the tax

lien, that limitations period does not apply to that

person.

purchaser at the tax sale or the purchaser’s successor

in interest has full title to the property, precluding

all other claims.

Tex. Tax Code § 33.54.

INTRODUCTION

This case presents an important question on the

Constitution’s limits on state legislative power that

has long divided the States.

Most States have statutes that limit the time to

challenge tax foreclosure sales. They exist to provide

finality and certainty of the purchaser’s title. And

they effectuate the public policy, shared throughout

the States, to encourage participation in tax sales to

prevent budgetary shortfalls and find new owners

that will make productive use of the property and

continue to pay the taxes.

Yet the States are deeply divided on the question

of whether a statute can limit the time to challenge a

tax sale when the delinquent owner did not receive

constitutionally adequate notice. In one camp, States

such as California, Oregon, and West Virginia hold

that it can. These states recognize that the issue

turns on the reasonableness of the time bar and not

whether the underlying form of service violated due

process under Mullane and its progeny. This Court

has likewise held that a legislature has the power to

limit the time to challenge a tax sale for jurisdictional defects, provided that the statute allows a reasonable period for an aggrieved owner to enforce its

rights. Saranac Land & Timber Co. v. Comptroller of

N.Y., 177 U.S. 318, 330-31 (1900); see also Texaco,

Inc. v. Short, 454 U.S. 516, 532 (1982).

In the other camp, States such as Texas, Kansas, and Utah answer the question in the negative.

These states interpret Mullane and its progeny to

hold that a time bar can never run against an owner

who was denied due process, regardless of the legislative intent.

The split among the States is longstanding and

entrenched—at least 12 have adopted the former

rule and at least 18 have adopted the latter. State

high courts addressing the issue over the last 15

years are split 4-4. The conflict will not resolve itself

absent this Court’s intervention, and this case presents an ideal vehicle to do so. The Court should

grant the petition and resolve this important constitutional question.

STATEMENT OF THE CASE

A. Statutory Background

Section 33.54 of the Texas Tax Code provides a

one-year statute of limitations for any action “relating to the title to property” against the purchaser of

the property at a tax foreclosure sale. Tex. Tax Code

§ 33.54(a). The statute of limitations begins running

on the date that the purchaser’s deed is filed. Id. The

limitations period may be tolled only if the challenger (1) was “not served citation” in the tax foreclosure

suit, and (2) paid taxes on the property during the

limitations period. Tex. Tax Code § 33.54(b). After

the statute of limitations lapses, the purchaser at the

tax sale is vested with full title to the property and

all other claims are precluded. Tex. Tax Code

§§ 33.54(c), 34.01(n).

The Texas Legislature intended section 33.54 to

apply to claims based on lack of constitutionally adequate notice. The plain text states that only persons

who were “not served citation in the suit to foreclose

the tax lien” may toll limitations by paying taxes.

Tex. Tax Code § 33.54(b). The legislative history also

confirms that section 33.54 was intended to apply to

a property owner claiming that “he or she was not

properly notified of the pending foreclosure action.”1

And the broad language barring any “action relating

to the title to property” against the purchaser encompasses a collateral attack on the validity of the

purchaser’s deed, whether for lack of notice or any

other reason. Tex. Tax Code § 33.54(a).

B. This Case

In 1998, taxing authorities in Reeves County,

Texas, filed a lawsuit to foreclose upon certain mineral interests because the property taxes on them

had not been paid. R. 6, 24. In 1999, the tax court

granted a judgment to the taxing authorities and ordered the sale of the mineral interests.2 R. 7-8, 24-29.

DOH Oil Company purchased the mineral interests at auction. R. 24. A sheriff’s deed conveying the

1 Senate Comm. on Intergovernmental Relations, Bill Analysis,

Tex.

S.B.

1249,

75th

Leg.,

R.S.

(1997),

http://www.capitol.state.tx.us/tlodocs/75R/analysis/html/SB0124

9S.htm.

2 The same state district court presided over the tax foreclosure suit and this case. To avoid confusion, “tax court” refers to

the district court as it presided over the tax foreclosure suit.

mineral interests to DOH was recorded in the county

records on April 8, 1999. R. 24-29.

The delinquent owners at the time of the tax suit

never challenged the validity of the tax foreclosure

sale.

1. In 2019, the plaintiffs below filed suit challenging the validity of the tax sale. R. 3. The plaintiffs claimed that they inherited the mineral interests from the delinquent owners in 2002. They alleged that the prior owners were improperly served

by posting in the tax suit, in violation of their due

process rights. R. 4-7. They sought a judgment voiding the tax sale and vesting them with title to the

mineral interests. R. 8-9.

DOH moved for summary judgment on the oneyear statute of limitations in section 33.54, arguing

that it barred any challenge to DOH’s title under the

tax sale and sheriff’s deed, regardless of the merits of

the challenge. R. 11-13. In response, the plaintiffs

asserted that the limitations provision does not apply

when an owner of record is not properly served or

made a party to the tax suit. R. 30-34. They did not,

however, present any evidence that their predecessors were not validly served by posting in the tax

suit. R. 30-34. The trial court granted DOH’s motion

for summary judgment, which became a final judgment. R.52.

2. The plaintiffs appealed the judgment to the El

Paso Court of Appeals, arguing that the statute of

limitations does not apply when an owner is denied

due process. App. 21a. The court of appeals noted

that the Texas Supreme Court recently addressed

this very issue in Mitchell v. MAP Resources, Inc.,

which held that section 33.54 does not apply when

notice was constitutionally inadequate and clarified

the type of evidence that could be used in a collateral

attack on this ground. App. 20a n.1; Mitchell v. MAP

Res., Inc., 649 S.W.3d 180, 191-94 (Tex. 2022); App.

66a-68a. Nevertheless, the court of appeals affirmed

the judgment because the plaintiffs failed to raise a

fact issue on the alleged lack of constitutional notice,

thus, they could not avoid the application of section 33.54.3 App. 27a-28a.

3. The Texas Supreme Court granted review. By

cross-point, DOH raised the same issue presented

here—whether a state statute of limitations can bar

a challenge to a tax sale for lack of constitutionally

adequate notice, provided that it gives the aggrieved

owner a reasonable time to enforce its rights.4 DOH

argued that, because section 33.54’s limitations period is reasonable as applied to claims based on lack of

constitutional notice, the judgment should be affirmed regardless of whether the plaintiffs could

have established a due process violation.5

The Texas Supreme Court held that the trial

court properly granted summary judgment for DOH,

and that the appellate court properly affirmed it, because the plaintiffs failed to present evidence of a

due process violation. App. 12a. Nevertheless, it reversed and remanded to allow the plaintiffs to reargue the summary judgment motion in light of the

Mitchell decision. App. 14a-15a.

3 It was undisputed that the plaintiffs or their predecessors

did not toll limitations by paying taxes following the tax sale.

Tex. Tax Code § 33.54(b).

4 Respondent’s Br. at xi.

5 Respondent’s Br. at 28-44

In neither this case nor Mitchell did the Texas

Supreme Court perform an analysis of whether section 33.54’s limitations bar is reasonable as applied

to claims based on lack of notice. App. 8a; Mitchell,

649 S.W.3d at 194; App. 66a-68a. Rather, the Texas

Supreme Court broadly held that a statute of limitations can never bar a challenge to judgment by a defendant who did not receive constitutionally adequate notice. App. 8a; Mitchell, 649 S.W.3d at 194;

App. 66a-68a.

REASONS FOR GRANTING THE PETITION

A. The States are split on whether challenges

to tax sales based on lack of constitutional

notice can be time-barred.

The decision below further deepens a longentrenched conflict among the States on an important constitutional question: whether state legislatures have the power to limit the time to challenge

tax sales for lack of constitutionally adequate notice.

Section 33.54 has analogs in most States, and the

split on this issue is well-recognized and mature. See

Shaffer v. Mareve Oil Corp., 204 S.E.2d 404, 411 (W.

Va. 1974); Register v. Kenai Peninsula Borough, 667

P.2d 1236, 1238 (Alaska 1983). Of the state high

courts that have addressed the issue, at least 12

have taken the position that such statutes can preclude claims based on lack of adequate notice. 6 At

6 Sage Land & Lumber Co. v. Hickey, 257 S.W.2d 941, 942

(Ark. 1953); Kaufman v. Gross & Co., 591 P.2d 1229, 1231 (Cal.

1979); Lake Canal Reservoir Co. v. Beethe, 227 P.3d 882, 886-87

(Colo. 2010); Saffo v. Foxworthy, Inc., 687 S.E.2d 463, 467 (Ga.

2009); O’Donnell v. Krneta, 154 N.E.2d 45, 52 (Ind. 1958); Town

least 18—including Texas—have gone the other way,

holding statutory time bars ineffective against a

challenge based on constitutionally inadequate notice.7 The Third Circuit has applied this position as

well. Benoit v. Panthaky, 780 F.2d 336, 339 (3d Cir.

1985). The former view is sometimes called the “minority” position, and the latter the “majority.” Id.;

Shaffer, 204 S.E.2d at 409 (“Where the policy bolstering a judicial rule is clear, the number of courts adhering to a particular position loses significance.”).

Many States adopting the “minority” view recognize that the issue of whether a statute can bar a

of Hudson v. Gate City Dev. Corp., 660 A.2d 1100, 1101-02 (N.H.

1995); Hunter v. Grier, 180 N.E.2d 603, 606 (Ohio 1962); Hood

River Cty. v. Dabney, 423 P.2d 954, 961-62 (Or. 1967); Herder

Spring Hunting Club v. Keller, 143 A.3d 358, 377-78 (Pa. 2016);

Jorgensen v. Thurston Cty., 259 P. 720, 720 (Wash. 1927); Shaffer, 204 S.E.2d at 409 (West Virginia); Anadarko Land Corp. v.

Family Tree Corp., 389 P.3d 1218, 1224 n.6 (Wyo. 2017).

7 Mitchell, 649 S.W.3d at 194; Register, 667 P.2d at 1238;

Wells v. Thomas, 78 So.2d 378, 383 (Fla. 1954); Chapin v. Aylward, 464 P.2d 177, 182 (Kan. 1970); Smitko v. Gulf S. Shrimp,

Inc., 94 So. 3d 750, 759 (La. 2012); Thomas v. Hardisty, 143

A.2d 618, 625 (Md. 1958); Tallage Lincoln, LLC v. Williams,

151 N.E.3d 344, 352 (Mass. 2020); Wayne Cty. Treasurer v. Perfecting Church (In re Treasurer of Wayne Foreclosure), 732

N.W.2d 458, 462-63 (Mich. 2007); Small v. Hull, 32 P.2d 4, 7-8

(Mont. 1934); Bogart v. Lathrop, 523 P.2d 838, 840 (Nev. 1974);

Bonded Certificate Corp. v. Wildey, 45 A.2d 684, 685 (N.J.

1946); ISCA Enters. v. City of N.Y., 572 N.E.2d 610, 614 (N.Y.

1991); Bd. of Comm’rs v. Bumpass, 63 S.E.2d 144, 147 (N.C.

1951); Knowlton v. Coye, 37 N.W.2d 343, 350 (N.D. 1949); Ewart

v. Boettcher, 50 P.2d 676, 678-79 (Okla. 1935); First Nat’l Bank

v. Meyer, 476 N.W.2d 267, 269 (S.D. 1991) (holding that due

process requires tolling of the limitations period until notice is

received); Naylor v. Billington, 378 S.W.2d 737, 740-41 (Tenn.

1964); Jordan v. Jensen, 391 P.3d 183, 196 (Utah 2017).

challenge based on lack of adequate notice is separate from the issue of whether the type of notice provided comported with due process under Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306,

314 (1950). The question instead turns on whether

the limitations period itself is reasonable and the intent of the particular legislature. See Kaufman, 591

P.2d at 1231; Dabney, 423 P.2d at 958-62; Shaffer,

204 S.E.2d at 409.

In Kaufman v. Gross & Co., the California Supreme Court held that a six-month statute of limitations barred an alleged owner’s challenge to a tax

deed based on lack of constitutional notice. Kaufman,

591 P.2d at 1231. The court expressly noted that its

holding was valid under Mullane. Id. at 1234 n.9

(“[D]efects of the type here considered, even if they

can be said to involve constitutional interests of the

type in question in Mullane, were nevertheless subject to the operation of reasonable statutes of limitation….”) (citing Elbert, Ltd. v. Gross, 260 P.2d 35, 39

(Cal. 1953)); see also Quelimane Co. v. Stewart Title

Guar. Co., 960 P.2d 513, 529 (Cal. 1998) (“Since the

state may fix a statute of limitations for the exercise

of constitutional rights, it may fix a reasonable limit

for claims affecting the right to property.”).

In Hood River County v. Dabney, the Supreme

Court of Oregon upheld a statute requiring a suit

challenging the validity of a tax foreclosure to be

brought by the later of two years from the date of the

judgment or within six months from the statute’s effective date. Dabney, 423 P.2d at 962. The court

found that the statute provided a reasonable time for

an aggrieved owner to assert its rights, even as to jurisdictional defects for lack of notice, because the legislature had the constitutional power to limit the

rights of delinquent taxpayers and the nature of taxation statutes “give warning to the owner that if he

does not pay his taxes he may lose his land.” Id. at

960-62.

In Shaffer v. Mareve Oil Corp., the West Virginia

Supreme Court considered a three-year limitations

provision that expressly applied to persons not

served with notice. Shaffer, 204 S.E.2d at 407. The

court noted that statutes of limitations that bar attacks on jurisdictionally defective or void tax deeds

are “constitutional and not violative of the Due Process Clause of the Fourteenth Amendment.” Id. at

409. And it held that the statute was valid as to

claims that a tax deed was void for a jurisdictional

defect because that was the legislative intent. Id. at

410-11. The court also found that the statute itself

gave fair warning to any delinquent taxpayer that he

might lose his property, and it observed that Mullane

“held that sufficiency of notice under the Fourteenth

Amendment depends on the type of transaction and

property interest involved with a weighing of the

public interest in resolving the litigation in which the

notice is involved.” Id. at 411; see Wells Fargo Bank,

N.A. v. Up Ventures II, LLC, 675 S.E.2d 883, 889 (W.

Va. 2009) (finding that Shaffer’s holding was not

overruled or modified by Mennonite Bd. of Missions

v. Adams, 462 U.S. 791 (1983)).

Other States have applied the same principles

and likewise concluded that reasonable statutes may

limit the time to attack jurisdictionally defective or

void tax deeds. See Herder, 143 A.3d at 378 (upholding Pennsylvania’s statutory two-year redemption

period “even if the owner received no notice of sale”);

Hudson, 660 A.2d at 1101 (holding New Hampshire’s

incontestability provision “conclusive against the al-

leged lack of notice”); Sage, 257 S.W.2d at 942 (holding Arkansas’s two-year statute of limitations “applicable to possession under a tax deed which sufficiently describes the land even though such deed is void

for other reasons, including jurisdictional defects”);

Saffo, 687 S.E.2d at 467 (stating the Georgia rule

that “any failure to provide the appropriate tax notice would not serve as a basis for nullifying the ultimate tax sale.”); Jorgensen, 259 P. at 720 (applying

Washington’s three-year statute of limitations to a

claim that a tax deed was void).

This Court, too, has held that state legislatures

have the power to preclude an attack on a tax deed

after a reasonable time, even if the attack is based on

a jurisdictional defect. Turner v. New York, 168 U.S.

90, 94 (1897); Saranac, 177 U.S. at 330-31.

In Turner, this Court upheld a six-month statute

of limitations on actions to redeem land sold for nonpayment of taxes. Turner, 168 U.S. at 94. This Court

held that because the time bar merely demanded

prompt action, and took away no rights, it was within the legislature’s constitutional power. Id.

In Saranac, this Court considered a Fourteenth

Amendment challenge to a two-year statute of limitations on a property owner’s right of redemption despite “jurisdictional defects” in the tax proceeding.

Saranac, 177 U.S. at 330. Following Turner, the

Court held that the statute was within the constitutional power of the legislature, provided that the

owner be given a reasonable time in which to enforce

its rights. Id. at 330-31.

In reaching the opposite conclusion, many States

adopting the “majority” position did not analyze

whether the specific time bar was unreasonable as

applied to persons who did not receive constitutionally adequate notice. Rather, they seemed to read Mullane and its progeny for the proposition that a statute can never limit the time to challenge a jurisdictionally defective or void tax judgment.

In Chapin v. Aylward, the Supreme Court of Kansas considered whether a statutory 12-month time

limit precluded attacking a tax sale for lack of constitutionally adequate notice. Chapin, 464 P.2d at 181.

The court’s prior precedents had held that “the time

limitation provision of the statute is absolute -- regardless of any claimed infirmity in a tax foreclosure

action.” Id. The court noted that since those precedents, this Court issued its opinions in Mullane and

Walker, which rendered publication service constitutionally inadequate in the case before it. Id. at 182.

The court then held that “the provision in question

must give way to a situation where the facts clearly

establish a denial of due process of law.” Id.

The Utah Supreme Court reached a similar conclusion in Jordan v. Jensen, 391 P.3d 183, 196 (Utah

2017). There, it considered whether a four-year limitations period applied to challenges to tax sales for

denial of due process. Id. at 194. It, too, overruled its

pre-Mullane precedent upholding the limitations

provision against such attacks, stating that Mullane

and its progeny “suggest that when state action occurring without due process of law triggers a statute

that limits a party’s ability to obtain relief, a due

process violation prevents that statute from running

against the aggrieved party.” Id. at 196. Thus, the

court held that the statute does not run against a defendant who does not receive constitutionally adequate notice. Id.

In Mitchell, the Texas Supreme Court similarly

held that “Texas rules must yield to contrary precedent from the U.S. Supreme Court.” Mitchell, 649

S.W.3d at 194. And it likewise relied on Mullane and

its progeny for the proposition that section 33.54 can

never apply to a defendant whose due process rights

are violated. Id. at 188-90 (citing Peralta v. Heights

Med. Ctr., Inc., 485 U.S. 80, 84 (1988) and Walker v.

City of Hutchinson, 352 U.S. 112, 116 (1956)).

B. This Issue Is Important and Recurring

The question presented is of important legal significance and national scope. It is well-established

that state legislatures have the power to vest clear

and conclusive title to property and may prescribe

the best procedures for satisfying due process considerations in doing so. Texaco, 454 U.S. at 532. So long

as such legislation is not unreasonable or arbitrary,

no constitutional limitations apply. Id. at 532 n.25.

“This is especially the case with respect to those

statutes relating to the taxation or condemnation of

land.” Id. (citing N. Laramie Land Co. v. Hoffman,

268 U.S. 276, 283 (1925)); see also Saranac, 177 U.S.

at 330; Izaak Walton League of Am. Endowment, Inc.

v. State, Dep’t of Nat. Res., 252 N.W.2d 852, 854 n.1

(Minn. 1977) (“The restraints upon such legislation,

and tax forfeiture proceedings generally, are only

those imposed by the state and Federal constitutions,

which require that such statutes comport with the

requirements of due process of law.”); see also United

States v. Locke, 471 U.S. 84, 104 (1985) (“Even with

respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or

to condition their continued retention on performance of certain affirmative duties.”).

Such is the case in Texas. The Texas Supreme

Court has long held that the legislature has the necessary power to prescribe the best procedure for foreclosing tax liens and selling property to collect taxes.

Duncan v. Gabler, 215 S.W.2d 155, 159 (Tex. 1948);

see Mitchell, 649 S.W.3d at 188 n.7 (“[T]he federal

Due Process Clause and the Texas Constitution’s

Due Course of Law clause are, for the most part, coextensive.”).

It is equally well-recognized that tax foreclosure

proceedings—unlike private controversies—implicate

important public interests, including the government’s need to support its very existence through the

collection of tax revenue. King v. Mullins, 171 U.S.

404, 429 (1898); see also Shaffer, 204 S.E.2d at 411;

W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d

558, 564 (Tex. 2003) (explaining that “local ad valorem taxes supplied more than half the funding for

public schools”). Accordingly, the resounding public

policy throughout the States is to encourage participation in tax foreclosure sales. 8 To effectuate that

8 Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507,

522-23 (Tex. App.—Fort Worth 2015, pet. denied) (noting that

“[t]he public policy underlying [the Texas Tax Code], and all

other jurisdictions with similar delinquent-property-tax-sale

statutes, is to encourage tax sale purchases”) (citing Frank S.

Alexander, Tax Liens, Tax Sales, and Due Process, 75 Ind. L.J.

747, 763 (2000)); Moorehead v. John Deere Indus. Equip. Co.,

572 P.2d 1207, 1210 (Colo. 1977) (“Persons should be encouraged to purchase personal property sold for delinquent taxes at

tax sales. Prospective buyers may be deterred from purchasing

if they cannot receive paramount title. If they are not willing to

purchase at such sales, tax collections will be less effective.”);

policy, legislatures must strike a balance between

the need to afford due process to delinquent taxpayers, and the need to ensure finality and stability of

the purchaser’s title. Simon, 915 A.2d at 495; Stiff v.

Sallie v. Tax Sale Inv’rs, 998 F. Supp. 612, 618 (D. Md. 1998)

(“Maryland has a significant interest in encouraging participation in its tax sale program and in decreeing marketable title.

Further, Maryland’s tax sale mechanism is an effective means

of collecting property taxes for the state, and is critical to the

state’s need to provide a source of revenue for a host of governmental services provided to its citizens.”); Lohr v. Saratoga

Partners, L.P., 238 A.3d 1198, 1212 (Pa. 2020) (recognizing “the

legislative interest in facilitating the collection of delinquent

taxes by ensuring certainty and finality for tax sales, which, in

turn, likely encourages higher bids based on the greater security provided to the purchaser”); Coughlin v. Pierre, 286 N.W.

877, 879 (S.D. 1939) (“Viewing these statutes broadly…it becomes apparent that they were enacted to further the collection

of the public revenues. As a means to that end they not only

seek to strengthen the position of the county as the collector of

these revenues in situations not here important, but they also

propose to encourage bidding at tax sales through the expedient

of enhancing the security of such purchasers.”).

See also Ross v. Rosen-Rager, 67 So. 3d 29, 44 (Ala. 2010);

Burgett v. McCray, 33 S.W. 639, 640 (Ark. 1896); Thornton, Ltd.

v. Rosewell, 381 N.E.2d 249, 253 (Ill. 1978); Duff v. Penick, 26

P.2d 603, 604 (Kan. 1933); Michel v. Stream, 19 So. 215, 218

(La. 1896); Hardisty v. Kay, 299 A.2d 771, 774 (Md. 1973); Case

v. Dean, 16 Mich. 12, 29 (1867); Oakland Cemetery Ass’n v. Cty.

Of Ramsey, 108 N.W. 857, 858 (Minn. 1906); Hatten v. Parcels

of Land, etc., 217 S.W.2d 511, 514 (Mo. 1949); State ex rel. Snow

v. Farney, 54 N.W. 862, 865 (Neb. 1893); Simon v. Cronecker,

915 A.2d 489, 497 (N.J. 2007); Tyler v. Cass Cty., 48 N.W. 232,

236 (N.D. 1890); Shnier v. Vahlberg, 110 P.2d 593, 595 (Okla.

1941); Wilder v. Dennis, 202 F. 667, 675 (4th Cir. 1912); Anadarko Land Corp. v. Family Tree Corp., 389 P.3d 1218, 1226

(Wyo. 2017).

Equivest Fin., LLC, 325 So. 3d 738, 740-41 (Ala.

2020).

The enactment and strict enforcement of reasonable statutes of limitations are important to achieving those legislative objectives. See Saranac, 177

U.S. at 323-24; Lake Canal, 227 P.3d at 887 (finding

application of the statute of limitations to claims

based on insufficient notice “neither harsh nor unreasonable, but necessary for the protection of purchasers at tax sales, and to secure the collection of

the public revenue”); Dabney, 423 P.2d at 961 (“The

imposition of the duty upon the defendant owner to

learn what was being done to enforce the payment of

taxes against his property and the limitation upon

his right to attack the foreclosure decree…is a legitimate exercise of legislative power in carrying out a

property tax program.”). Such time limits are valid

exercises of a legislature’s power, provided that the

statute itself does not violate due process. Saranac,

177 U.S. at 330-31; Shaffer, 204 S.E.2d at 410; see

Hudson, 660 A.2d at 1101 (“This incontestability

provision is therefore conclusive against the alleged

lack of notice here, provided the statute is itself not

violative of due process.”); see also Blinn v. Nelson,

222 U.S. 1, 7 (1911) (“If the legislature thinks that a

year is long enough to allow a party to recover his

property from a third hand, and establishes that

time in cases where he has not been heard of for

fourteen years and presumably is dead, it acts within

its constitutional discretion.”).

The Federal Constitution’s limits on state legislative power to preclude challenges to tax foreclosure

sales are no different in Texas than in California. Yet

the States are deeply divided as to the limits of that

power when a delinquent taxpayer did not receive

constitutionally adequate notice. The conflict is beyond resolving itself; it persists in even the most recent decisions from state high courts. Over the past

15 years, those that have addressed the question are

split 4-4.9 This Court should grant certiorari to resolve the conflict.

C. The Decision Below Is Wrong and Conflicts

With This Court’s Cases

Statutes are presumed constitutional. Lujan v. G

& G Fire Sprinklers, 532 U.S. 189, 198 (2001). The

burden is on the challenging party to establish the

unconstitutionality of a statute, and a court will not

substitute its judgment for that of the legislature.

Id.; N.Y. State Club Ass’n v. City of N.Y., 487 U.S. 1,

17 (1988).

Statutes of limitations are intended to prevent

plaintiffs from sleeping on their rights and to protect

defendants against stale or unduly delayed claims.

Crown v. Parker, 462 U.S. 345, 352 (1983); Credit

Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221,

9 Since 2009, Georgia, Colorado, Pennsylvania, and Wyoming have endorsed the “minority” position. See Saffo, 687

S.E.2d at 467 (reaffirming “the rule in this state…that defects

in following the notice provisions of the tax sale statute may

give an injured party a claim for damages, but will not render

the tax sale or the deed therefrom void,” where foreclosed owner

failed to timely redeem the property); Lake Canal, 227 P.3d at

886; Herder, 143 A.3d at 378; Anadarko, 389 P.3d at 1224 n.6

(“We recognize that a legislature may limit challenges to even a

void deed by specifically imposing a statute of limitations on

challenges to a void deed.”). In the same time period, Louisiana,

Utah, Massachusetts, and Texas have endorsed the “majority”

position. See Smitko, 94 So. 3d at 759; Jordan, 391 P.3d at 196;

Tallage, 151 N.E.3d at 352; Mitchell, 649 S.W.3d at 194.

227 (2012). By definition, they are arbitrary, and

their operation does not discriminate between the

just and the unjust claim, or the avoidable and unavoidable delay. Chase Sec. Corp. v. Donaldson, 325

U.S. 304, 314 (1945).

In Donaldson, this Court recognized that “statutes of limitation go to matters of remedy, not to destruction of fundamental rights.” Id. A statute of limitations “will bar any right, however high the source

from which it may be deduced, provided that a reasonable time is given a party to enforce his right.”

Saranac, 177 U.S. at 330. This includes fundamental

rights. See, e.g., 28 U.S.C. § 2244(d) (providing a oneyear statute of limitations on the constitutional

guarantee of habeas corpus); Owens v. Okure, 488

U.S. 235, 250 (1989) (holding that a forum state’s

general statute of limitations for personal injury actions applies to a civil action for deprivation of constitutional rights under 42 U.S.C. § 1983); see also

Barren v. Pa. State Police, 219 A.3d 722, 722 (Pa.

Commw. Ct. 2019) (“Statutes of limitations can be

asserted in proceedings that seek to remedy an alleged void order, such as a return of property or

monetary relief.”). So long as the statute itself is not

unreasonable or arbitrary, it is within the legislature’s constitutional power. Texaco, 454 U.S. at 532;

Donaldson, 325 U.S. at 314-316; Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982).

Here, even assuming that the tax judgment and

sheriff’s deed were taken without constitutionally

adequate notice to the delinquent owners, section 33.54 does not unreasonably limit their right of

redress. The statute allows any aggrieved owner to

challenge the tax sale within one year of the recording of the sheriff’s deed, and it allows an owner who

was not validly served to extend that time indefinitely by the simple act of paying the taxes. Tex. Tax

Code § 33.54(b).

As many States have recognized with respect to

similar statutes, “we are not here dealing with a

statute of limitations which cuts off the rights of the

owner without warning.” Dabney, 423 P.2d at 961;

Shaffer, 204 S.E.2d at 411. The statutory scheme itself puts every property owner on notice that the

failure to pay taxes may result in the loss of one’s

property via foreclosure. Tex. Tax Code §§ 33.41 –

33.58. This Court has long held that “persons owning

property within a State are charged with knowledge

of relevant statutory provisions affecting the control

or disposition of such property.” Texaco, 454 U.S. at

532. Property owners must take note of the procedure adopted, and “when that procedure is not unreasonable or arbitrary there are no constitutional

limitations relieving them from conforming to it.” Id.

at 532 n.25 (quoting Hoffman, 268 U.S. at 283); see

also Spitcaufsky v. Hatten, 182 S.W.2d 86, 96 (Mo.

1944) (“[T]axes are collected periodically under fixed

laws which, in a restricted sense, impart their own

notice.”); Knapp v. Josephine Cty., 235 P.2d 564, 570

(Ore. 1951) (“[T]ax obligations are imposed under

public statutes with which the property owner is presumably familiar.”).

Even without the tolling provision, section 33.54’s

one-year period alone is reasonable. Property taxes

are due every year and owners know whether they

have paid them. Tex. Tax Code § 31.02. One year

provides enough time for the claimant to challenge

the sale within the next assessment cycle, but it is

not so long that it discourages prospective purchasers from bidding at tax sales. See pp. 15-17 and n.8,

supra; see also Bd. of Regents v. Tomanio, 446 U.S.

478, 485 (1980) (“Although any statute of limitations

is necessarily arbitrary, the length of the period allowed for instituting suit inevitably reflects a value

judgment concerning the point at which the interests

in favor of protecting valid claims are outweighed by

the interests in prohibiting the prosecution of stale

ones.”).

Moreover, section 33.54’s tolling provision for persons not served in the tax suit prevents unfair results. If a person continues to pay the taxes and that

person was not properly served in the foreclosure

suit, the statute of limitations is tolled indefinitely.

Tex. Tax Code § 33.54(b). Thus, a foreclosed owner

without notice could toll limitations, even unwittingly, by simply doing what a property owner is supposed to do—paying the taxes.

Further, section 33.54 does more than just provide the limitations period for challenges to the purchaser’s title; it explicitly confers upon the purchaser

“full title to the property, precluding all other

claims,” when a prior owner fails to timely challenge

the tax sale. Tex. Tax Code § 33.54(c).10 This Court

has recognized the distinction between a statute of

limitations that merely operates as a defense and one

that vests title to a property interest. Campbell v.

10 Other provisions of the Tax Code likewise evidence the legis-

lature’s intent to balance the due process rights of aggrieved

owners with the public policy for finality and certainty of titles.

See pp. 15-17 and n.8, supra. Indeed, the Tax Code is “replete

with affirmations that the purchaser at tax sales should take

the property free and clear” of all adverse claims. Pirkle, 475

S.W.3d at 522; see Tex. Tax Code §§ 33.54(c), 34.08(b), 34.01(n),

34.05(f).

Holt, 115 U.S. 620, 625 (1885). Where a statute of

limitations has vested a party with title to property,

it cannot be repealed without implicating the vested

party’s due process rights. Id.; see Donaldson, 325

U.S. at 311-12. In other words, applying section

33.54’s limitations period does not implicate an unserved owner’s due process rights, but not applying it

after it has expired does implicate a purchaser’s due

process rights. Donaldson, 325 U.S. at 311-12.

Importantly, section 33.54 does not cut off every

right of redress for the foreclosed owner. The statute

only cuts off “an action relating to the title to property…against the purchaser.” Tex. Tax Code § 33.54(a).

It is silent as to other forms of redress, including the

right to recover the excess proceeds from the sale.

See Tex. Tax Code § 34.04. Nor does it purport to bar

any other legal action by which an aggrieved owner

might seek to be made whole, such as a suit for damages under 42 U.S.C. § 1983. Of course, section 1983

actions are subject to a reasonable statute of limitations of their own. Owens, 488 U.S. at 250.

In deciding this question against purchasers, the

Texas Supreme Court did not analyze the reasonableness of the statutory time bar, and it did not give

effect to the express legislative intent to bar claims

by persons “not served” in the tax foreclosure proceeding. Texaco, 454 U.S. at 532; Donaldson, 325

U.S. at 314-16; Logan, 455 U.S. at 437. Instead, the

court held that under Mullane, Peralta, and Walker,

a statute of limitations “cannot place a temporal limit on a challenge to a void judgment filed by a defendant who did not receive the type of notice to

which she was constitutionally entitled.” Mitchell,

649 S.W.3d at 194.

Mullane and its progeny do not support the Texas Supreme Court’s broad rule that a time bar may

never apply to challenges to tax sales based on lack

of constitutional notice. App. 8a; Mitchell, 649

S.W.3d at 194; App. 66a-68a. And none of them considered the narrow question presented here.

In Mullane, Walker, Schroder, Tulsa, and Mennonite, the sole issue before this Court was whether

publication notice was constitutionally sufficient in

the underlying case. Mullane, 339 U.S. at 307; Walker, 352 U.S. at 116; Schroeder v. New York, 371 U.S.

208, 208-09 (1962); Tulsa Prof. Collection Servs., Inc.

v. Pope, 485 U.S. 478, 479 (1988); Mennonite, 462

U.S. at 792. 11 And Peralta concerned whether the

former meritorious-defense requirement under Texas’s bill of review procedure violates due process

where a default judgment was entered without proper notice. Peralta, 485 U.S. at 83. None of these cases

addressed the constitutionality of a time bar as applied to a foreclosed owner who did not receive adequate notice of a tax foreclosure.

Moreover, Mennonite involved a due process challenge to a tax sale by a mortgagee—not an owner—

brought outside of a 2-year redemption period. Mennonite, 462 U.S. at 795. The balancing of interests

differs when cutting off the rights of a lienholder versus the property owner because the property owner,

and not the lienholder, is the one responsible for paying the property taxes. Indeed, even before Mitchell,

11 Each of these cases reached this Court with the lower

court having upheld the constitutionality of publication notice

under the circumstances. See Mullane, 339 U.S. at 307; Walker,

352 U.S. at 115; Schroeder, 371 U.S. at 211; Tulsa, 485 U.S. at

483; Mennonite, 462 U.S. at 795.

Texas courts recognized an exception under section

33.54 for record lienholders who do not receive adequate notice of the tax suit and may not be aware of

the tax delinquency. Pirkle, 475 S.W.3d at 514-15; see

Mennonite, 462 U.S. at 792 (noting that the mortgagee had no knowledge that the owner had failed to

pay the property taxes).

And perhaps most importantly, none of these cases disturbed this Court’s holdings in Turner and Saranac. Indeed, since Mullane, many jurisdictions

have relied on Turner and Saranac to uphold the

constitutionality of statutes of limitations as applied

to claims for the recovery of real property based on

lack of notice. Shaffer, 204 S.E.2d at 409; Hudson,

660 A.2d at 1101; Quelimane, 960 P.2d at 529; see

also Littlewolf v. Hodel, 681 F. Supp. 929, 940

(D.D.C. 1988) (holding that the constitutionality of

the White Earth Reservation Land Settlement Act’s

statute of limitations “is buttressed by the venerable,

and still valid, decision in Turner….”).

D. This Case Is an Ideal Vehicle for Resolving

The Issue

This case is an ideal vehicle for resolving this

question. DOH presented the issue to the Texas Supreme Court. It held, in reliance on Mitchell, that the

statute of limitations does not bar a challenge to the

tax sale if notice was constitutionally inadequate.

App. 8a; Mitchell, 649 S.W.3d at 194 (“[A] statute of

limitations cannot place a temporal limit on a challenge to a void judgment filed by a defendant who did

not receive the type of notice to which she was constitutionally entitled.”) (internal quotation marks omitted); App. 67a. The Texas Supreme Court’s decisions

here and in Mitchell were published. There are no

impediments to this Court reaching the issue.

The Texas Supreme Court’s judgment was “final”

within the meaning of § 1257. See Cox, 420 U.S. at

482-83 (holding that, even when further proceedings

are pending, the finality requirement is met when

“the federal issue has been finally decided in the

state courts” and the party seeking review “might

prevail on the merits on nonfederal grounds, thus

rendering unnecessary review of the federal issue by

this Court, and where reversal of the state court on

the federal issue would be preclusive of any further

litigation on the relevant cause of action”). Thus, “refusal immediately to review the state-court decision

might seriously erode federal policy” because the

constitutional issue is dispositive. Id. at 483.

Indeed, allowing the Texas court’s opinion to

stand erodes the broad power of the legislature to effectuate public policy and balance competing interests in tax foreclosure proceedings. See pp. 15-17 and

n.8, supra; Texaco, 454 U.S. at 532 n.25; Comptroller

of the Treasury v. Wynne, 575 U.S. 542, 599 (2015)

(Ginsburg, J., dissenting) (“Resolving the competing

tax policy considerations this case implicates is

something the Court is even less well equipped to do.

For a century, we have recognized that state legislatures and the Congress are constitutionally assigned

and institutionally better equipped to balance such

issues.”).

Further, this case is emblematic of how the issue

commonly arises, both factually and procedurally: A

challenger brings a belated challenge to a tax purchaser’s title after the statutory period has lapsed,

and the purchaser seeks summary judgment under

the statutory bar. See Herder, 143 A.3d at 378. Not

only will the correct resolution of this question be

outcome dispositive, it will also effectuate the legislature’s intent to give finality to a tax sale and conclusiveness to a purchaser’s title by statute, rather than

leaving them open to protracted attacks and uncertainty in the courts. Tex. Tax Code §§ 33.54(c),

34.01(n).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MATTHEW S. WOLCOTT

Counsel of Record

GRAHAM K. SIMMS

FREEMAN MILLS PC

801 Cherry St., Suite 1025

Fort Worth, Texas 76102

682-316-1677

mwolcott@freemanmillspc.com

gsimms@freemanmillspc.com

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Appendix A - Texas Supreme Court opinion

(April 26, 2024) .................................................... 1a

Appendix B - Eighth Court of Appeals opinion

(August 30, 2022)............................................... 16a

Appendix C - Mitchell v. MAP Res., Inc.,

649 S.W.3d 180 (Tex. 2022) ............................... 44a

APPENDIX A

SUPREME COURT OF TEXAS

No. 22-0913

HUNTLEY FORT GILL, ROBYN G. ATTAWAY, AND

MIRIAM G. STIRN, PETITIONERS,

DAVID HILL, INDIVIDUALLY AND D/B/A

DOH OIL COMPANY, RESPONDENT

On Petition for Review from the

Court of Appeals for the Eighth District of Texas

Argued: January 9, 2024

Decided and Filed: April 26, 2024

OPINION

JUSTICE HUDDLE delivered the opinion of the

Court.

The successors in interest of various mineralrights holders sued in 2019 for a declaration that a

1999 judgment foreclosing on their predecessors’

property for delinquent taxes is void. They contend

there was constitutionally inadequate notice of the

foreclosure suit, so, their argument goes, the foreclosure judgment and the tax sale that followed both

are void, and they should be adjudged the mineral

interests’ rightful owners.

The current owners sought traditional summary

judgment based on the Tax Code’s command that an

action relating to the title to property against the

purchaser of the property at a tax sale may not be

commenced later than one year after the date that

the deed executed to the purchaser at the tax sale is

filed of record. See TEX. TAX CODE § 33.54(a)(1). We

must decide whether summary judgment based on

this statute of limitations was proper despite the

nonmovant’s assertion that the underlying judgment

and tax sale, the recording of which ordinarily would

trigger the running of the one-year limitations period, are themselves void for lack of constitutionally

required due process.

We hold that under Draughon v. Johnson, the

nonmovant seeking to avoid the limitations bar by

raising a due-process challenge bears the burden to

adduce evidence raising a genuine issue of material

fact about whether the underlying judgment is actually void for lack of due process. Because the nonmovant here adduced no such evidence, the trial

court correctly granted summary judgment based on

Section 33.54(a)(1).

But that is not the end of this story. The law governing this case has undergone meaningful refine-

ment since the summary-judgment proceedings took

place. Since that time, this Court decided two cases

crucial to our analysis: Draughon, which addressed

the burden of proof when summary judgment is

sought based on a statute of limitations; and Mitchell

v. MAP Resources, Inc., which clarified the types of

evidence that can be used in a collateral attack such

as this. Given these recent and substantial developments in the relevant law, we remand this case to

the trial court for further proceedings in the interest

of justice.

I. Background

In 1998, Pecos-Barstow-Toyah Independent

School District, Reeves County, and Reeves County

Hospital District sued over 250 defendants who

owned property in Reeves County. The attorney for

these taxing entities filed a citation-by-posting affidavit claiming that the names and residences of the

owners of the properties were unknown and could

not be ascertained after diligent inquiry. The property owners were all represented by the same attorney

ad litem, who was appointed just eight days before

trial. After a bench trial, the trial court rendered

judgment in February 1999, authorizing the properties’ foreclosure. James W. Gill and Gale T. Goss (collectively, Gill) owned mineral interests that were

subject to the foreclosure judgment.

The following month, David Hill d/b/a DOH Oil

Company purchased at auction the foreclosed mineral interests previously owned by Gill. The conveyance was by a sheriff’s tax deed dated April 6, 1999.

The sheriff’s deed was filed the same day and recorded on April 8.

Twenty years later, in 2019, Gill’s successors in

interest, whom we will call the Gill Parties, sued to

have the foreclosure judgment declared void for lack

of due process and to quiet title to the mineral interests in their names. They allege that the 1999 judgment was void due to “a complete failure of service of

citation” on the defendants in the foreclosure suit.

Hill moved for summary judgment, arguing that

the one-year statute of limitations in the Texas Tax

Code for challenges to property sold in a tax sale

barred the suit. See TEX. TAX CODE § 33.54(a)(1)

(“[A]n action relating to the title to property may not

be maintained against the purchaser of the property

at a tax sale unless the action is commenced . . . before the first anniversary of the date that the deed

executed to the purchaser at the tax sale is filed of

record . . . .”). In support, Hill attached a copy of the

sheriff’s deed showing that it was recorded on April

8, 1999. The Gill Parties responded that the Tax

Code’s statute of limitations did not apply because

the defendants in the foreclosure suit were not

properly served and, thus, the foreclosure judgment,

tax sale, and resulting deed are void. However, the

Gill Parties did not present any evidence to support

these arguments. The trial court granted Hill’s motion for summary judgment. The Gill Parties appealed.

A divided court of appeals affirmed. The majority

held that the sheriff’s deed conclusively established

the accrual date for limitations, so the burden shifted

to the Gill Parties to adduce evidence raising a genuine issue of material fact as to whether there was a

due-process violation that could render the statute of

limitations inoperable. 658 S.W.3d 618, 624 (Tex.

App.—El Paso 2022). Because the Gill Parties relied

only on their arguments and presented no evidence

of a due-process violation, the majority concluded,

Hill was entitled to summary judgment. Id. at 626–

27. The dissenting justice would have held that it

was Hill’s burden, as the movant, to conclusively

prove that no due-process violation occurred and that

the statute of limitations applied. Id. at 632 (Palafox,

J., dissenting). The Gill Parties petitioned for review,

which we granted.

II. Applicable Law

A. Due Process

The Fourteenth Amendment to the United States

Constitution protects the citizens of Texas by preventing the State from depriving “any person of life,

liberty, or property, without due process of law.” U.S.

CONST. amend. XIV, § 1. Article I, Section 19 of the

Texas Constitution similarly protects a citizen from

being deprived of “life, liberty, [or] property . . . except by the due course of the law of the land.” TEX.

CONST. art. I, § 19 (emphasis added). As in Mitchell

v. MAP Resources, Inc., a case involving similar issues, the parties in this case have “not identified any

differences in text or application that are relevant to

the issues raised here, so we treat the requirements

of both Constitutions as identical for purposes of this

opinion.” 649 S.W.3d 180, 188 n.7 (Tex. 2022).

To afford due process, “the government [must]

provide the owner [of property to be taken] ‘notice

and opportunity for hearing appropriate to the nature of the case.’” Jones v. Flowers, 547 U.S. 220, 223

(2006) (quoting Mullane v. Cent. Hanover Bank & Tr.

Co., 339 U.S. 306, 313 (1950)). The adequacy of this

notice is not judged by whether actual notice was

provided but by whether the government appropri-

ately attempted to provide actual notice. See Dusenbery v. United States, 534 U.S. 161, 170 (2002) (explaining that “the Due Process Clause does not require . . . heroic efforts by the Government” to assure

the notice’s delivery); Mullane, 339 U.S. at 315 (“The

means employed [in pursuing notice] must be such as

one desirous of actually informing the absentee

might reasonably adopt to accomplish it.”). Of course,

actual notice is preferable, but if a property owner

cannot be “reasonably identif[ied],” constructive notice can satisfy due process. Mitchell, 649 S.W.3d at

190 (citation omitted); see also In re E.R., 385 S.W.3d

552, 559 (Tex. 2012) (“For missing or unknown persons, service by . . . ‘indirect and even . . . probably

futile’ means did not raise due process concerns.”

(quoting Mullane, 339 U.S. at 317)).

B. Summary Judgment on Limitations

“The standard for reviewing a summary judgment

under Texas Rule of Civil Procedure 166a(c) is

whether the successful movant at the trial level carried its burden of showing that there is no genuine

issue of material fact and that judgment should be

granted as a matter of law.” KPMG Peat Marwick v.

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746,

748 (Tex. 1999). “A defendant moving for summary

judgment on the affirmative defense of limitations

has the burden to conclusively establish that defense.” Id. Furthermore, to succeed on limitations at

the summary-judgment stage, the movant “must also

conclusively negate application of the discovery rule

and any tolling doctrines pleaded as an exception to

limitations.” Draughon v. Johnson, 631 S.W.3d 81,

85 (Tex. 2021) (quoting Erikson v. Renda, 590 S.W.3d

557, 563 (Tex. 2019)).

However, a summary-judgment movant does not

have the burden of proof to negate every potential

challenge to a limitations defense. While this case

was on appeal, we addressed the placement of the

burdens of proof in such cases in Draughon and established the following rule: “The defendant has the

burden regarding any issues raised that affect the

running of limitations, while the plaintiff has the

burden to raise a fact issue on equitable defenses

that defeat limitations even though it has run.” Id. at

88.

Draughon establishes that the movant seeking

traditional summary judgment has the burden of

proof on issues that affect whether limitations has in

fact run. So if the nonmovant challenges the date on

which the limitations period began or argues that

limitations did not expire before suit was filed (due to

tolling or some other doctrine), a movant must conclusively disprove the nonmovant’s allegations to

carry its summary-judgment burden. However, if the

nonmovant instead asserts that the statute of limitations cannot operate to bar the suit even if the limitations period has expired, then the nonmovant

bears the burden to raise a fact issue in support of

that assertion. Id. at 89; see also 658 S.W.3d at 627

(Alley, J., concurring) (“[T]he plaintiff carries the

burden to present some evidence in its summary

judgment response to support certain doctrines that

avoid a statute of limitations defense.”). The parties

here did not have the benefit of Draughon at the time

of the summary-judgment proceedings.

Nor did they have the benefit of our decision in

Mitchell, a case arising from the same 1999 foreclosure suit for delinquent taxes that resulted in the

judgment at issue here. As here, the former property

owner’s successors in that case asserted that the

foreclosure judgment was void for lack of due process, and the current owners argued in a summaryjudgment motion that the suit was barred by limitations. 649 S.W.3d at 183–84. Unlike here, however,

the successors also sought summary judgment and

presented evidence—“warranty deeds on file in the

public records at the time of the foreclosure suit”—

showing an address at which the former property

owner, their predecessor in interest, could have been

reached and notified of the foreclosure suit. Id. at

186. Mitchell held that these public deeds and tax

records were not “extrinsic evidence” and thus should

have been considered by the trial court in determining whether service on the former property owner by

publication satisfied due process. Id. at 190–91. And

Mitchell rejected the argument that the statute of

limitations would bar the suit even if notice was constitutionally inadequate, concluding that “state statutory requirements must give way to constitutional

protections.” Id. at 194. We concluded that notice by

posting was inadequate for a property owner whose

address was filed in the public property records, and,

accordingly, we reversed the trial court’s grant of

summary judgment based on the Tax Code’s statute

of limitations. Id. at 197.

III. Analysis

The Gill Parties argue that a statute-oflimitations defense cannot bar their attack on the

1999 foreclosure judgment because that judgment

was obtained without affording their predecessors,

the defendants in that suit, constitutionally required

due process in the form of notice of the suit. They argue that Hill, as the summary-judgment movant,

bore the burden to conclusively negate their asser-

tion that the 1999 judgment and resulting deed are

void by proving notice of the suit satisfied due process. In the alternative, the Gill Parties argue that

we should take judicial notice of the facts in Mitchell

and hold, without regard to the record in this case,

that there is a fact issue here regarding whether

their predecessors were afforded constitutionally adequate notice of the 1999 foreclosure suit. Hill contests all these assertions and also contends that the

Gill Parties waived their burden-of-proof argument

by failing to assert it below. We begin with the waiver argument and address each other issue in turn.

A. There was no waiver.

Throughout this suit, the Gill Parties have challenged Hill’s entitlement to summary judgment on

limitations and argued that the 1999 judgment and

resulting tax sale did not satisfy due-process requirements. But Hill contends that the Gill Parties

waived their argument about which party bore the

burden of proof regarding these due-process complaints in the context of a traditional motion for

summary judgment by not timely raising it in their

briefs in the court of appeals. Requiring parties to

first raise issues in the lower courts preserves judicial resources and promotes fairness among litigants.

See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003).

But briefs do not have to perfectly articulate every

point of law to preserve arguments that are fairly

subsumed in the issue addressed. Indeed, one of this

Court’s common refrains is that briefing waiver is

generally disfavored. See Los Compadres Pescadores,

L.L.C. v. Valdez, 622 S.W.3d 771, 780 (Tex. 2021); see

also Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008)

(“Appellate briefs are to be construed reasonably, yet

liberally, so that the right to appellate review is not

10a

lost by waiver. Simply stated, appellate courts should

reach the merits of an appeal whenever reasonably

possible.” (citations omitted)).

The Gill Parties’ argument that it was Hill’s

summary-judgment burden to conclusively establish

the validity of the 1999 judgment and resulting tax

sale is fairly subsumed in their issues asserting that

the judgment and sale were void and that Hill failed

to establish that he was entitled to summary judgment. Construing the Gill Parties’ briefing “reasonably, yet liberally,” Perry, 272 S.W.3d at 587, we hold

that there was no waiver. We therefore consider

whether Hill bore the burden, in a traditional summary-judgment posture, to establish that posted notice of the 1999 foreclosure suit was constitutionally

adequate and thus establish that Section 33.54(a)

bars the suit.

B. Hill carried his summary-judgment burden.

The Gill Parties’ suit undoubtedly is an “action relating to the title to property . . . against the purchaser of the property at a tax sale.” TEX. TAX CODE

§ 33.54(a). Under Section 33.54(a), the suit is barred

unless it was commenced within one year of “the date

that the deed executed to the purchaser at the tax

sale [was] filed of record.” Id. § 33.54(a)(1). Hill, in

moving for summary judgment, bore the burden to

conclusively establish his defense. See KPMG Peat

Marwick, 988 S.W.2d at 748. Hill adduced the sheriff’s deed as evidence establishing that it was filed on

April 6, 1999, and recorded on April 8. Thus, Hill

carried his burden to conclusively establish that the

Tax Code’s one-year limitations period expired in

11a

April 2000—some nineteen years before the Gill Parties brought this suit.

The crux of the parties’ dispute is whether Hill

had to prove anything more to obtain summary

judgment. Hill claims he did not. But the Gill Parties

contend Hill also bore the burden to negate their

claim that the 1999 foreclosure judgment is void because it was obtained based on constitutionally inadequate notice. Put differently, the Gill Parties contend Hill had to prove that the foreclosure judgment

that gave rise to the tax sale by which Hill obtained

the mineral interests comports with constitutional

due-process requirements. We agree with Hill—

under the framework set out in Draughon, the burden of proof was on the nonmovant to raise a fact issue on whether the foreclosure judgment was void.

Draughon was a quiet-title action in which the

plaintiff argued that a warranty deed was invalid

due to his mental incapacity at the time of signing.

631 S.W.3d at 85–86. However, the defendant moved

for summary judgment under the general four-year

statute of limitations. Id. at 86. The plaintiff argued

that the defendant had the burden at the summaryjudgment stage to disprove his assertion that the

running of limitations was tolled while under a legal

disability of “unsound mind.” Id. at 94; see TEX. CIV.

PRAC. & REM. CODE § 16.001(a)(2), (b). The Court

held that the defendant, as the summary-judgment

movant on limitations, had the burden to disprove

unsound-mind tolling. Draughon, 631 S.W.3d at 97.

But we noted that the burden of proof on a defense

against limitations is not always on the movant.

Instead, we explained that there are two types of

defenses against limitations with differing burdens of

12a

proof. Affirmative defenses like unsound-mind tolling

that argue that certain days within the limitations

period should not be counted place the burden of

proof on the movant. Id. at 88. But affirmative defenses that concede the limitations period expired yet

argue limitations should not bar the suit place the

burden of proof on the nonmovant. See id. at 89. Ultimately, the distinction Draughon draws is between

defenses that avoid the statute of limitations entirely

and those that toll certain days.

In this case, the Gill Parties argue that, although

many years have passed since the 1999 deed was

recorded, the suit should not be time-barred because

the underlying foreclosure judgment was procured in

violation of due-process requirements and is thus

void and incapable of triggering the Section 33.54(a)

limitations clock. This more closely resembles the

second Draughon category in that it is an argument

for avoiding the statute of limitations altogether rather than an argument that certain days within the

limitations period should not count. See Draughon,

631 S.W.3d at 88–89. The Gill Parties raise a defense

that, if established, would “defeat limitations even

though it has run.” Id. at 88. Under Draughon, it was

their burden to present evidence raising a fact issue

whether the foreclosure judgment was, in fact, void.

They failed to meet that burden because they adduced no evidence that notice of the 1999 suit was

constitutionally inadequate so as to render the judgment void.

The Gill Parties argue we should nevertheless

hold that a fact issue exists. They urge the Court to

do so by taking judicial notice of the facts in Mitchell.

They insist that our conclusion that notice was constitutionally inadequate for one of the property-

13a

owner defendants in Mitchell allows us to conclude it

was so for others. But whether due process was afforded to a particular defendant is an individualized

inquiry, and the facts that made notice by posting

insufficient for the petitioners’ predecessors in

Mitchell do not necessarily make notice by posting

improper for Gill.

The inquiry undergirding the adequacy of due

process is individualized to the circumstances of the

person to whom notice is directed. See Tulsa Pro.

Collection Servs., Inc. v. Pope, 485 U.S. 478, 484

(1988) (“[A]s Mullane itself made clear, whether a

particular method of notice is reasonable depends on

the particular circumstances.”). The Gill Parties suggest that the facts in Mitchell show a lack of diligence by the taxing entities and that this supports a

finding that notice was inadequate for all defendants. But the appropriate level of diligence needed to

satisfy due process is an individualized inquiry. If

the evidence shows that Gill was nowhere to be

found after a diligent inquiry, then alternative service by posting may have sufficed. See Mullane, 339

U.S. at 318 (distinguishing the appropriate notice for

those “whose interests or addresses” are unknown);

Walker v. City of Hutchinson, 352 U.S. 112, 116

(1956) (“[I]n some cases it might not be reasonably

possible to give personal notice, for example where

people are missing or unknown.”); see also Mitchell,

649 S.W.3d at 189–90 (discussing what distinguishes

the adequacy of notice by posting versus notice by

service). Unlike the petitioners in Mitchell, the Gill

Parties adduced no individualized proof regarding

the ease or difficulty with which Gill could have been

located and served.

14a

In any event, taking judicial notice of the facts in

Mitchell would be inappropriate. An appellate court

may take judicial notice of a relevant fact that is either generally known within the trial court’s territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Freedom Commc’ns, Inc. v.

Coronado, 372 S.W.3d 621, 623 (Tex. 2012); see TEX.

R. EVID. 201(b). The question of whether a particular

type of notice comports with due-process requirements is neither generally known nor the kind of fact

that is capable of being judicially noticed. We hold

that the trial court correctly granted summary judgment.

Having concluded that the trial court’s summary

judgment was proper, we would typically reinstate

the trial court’s judgment. But the events surrounding this case have not been typical. Indeed, the law

governing this case has developed in two meaningful

respects since the summary-judgment proceedings.

Both Draughon and Mitchell were decided after the

trial court granted summary judgment. Both cases

clarified relevant questions: (1) which side bears the

burden to demonstrate a due-process violation that

renders a statute of limitations inoperable? and (2)

what evidence is admissible to prove such a violation?

The Texas Rules of Appellate Procedure permit a

remand when justice requires, see TEX. R. APP. P.

60.2(f), 60.3, which we have employed based on intervening developments in the controlling law. See,

e.g., Rogers v. Bagley, 623 S.W.3d 343, 358 (Tex.

2021) (remanding to the trial court “[b]ecause our decision today substantially clarifies [a] novel issue”);

Carowest Land, Ltd. v. City of New Braunfels, 615

15a

S.W.3d 156, 159 (Tex. 2020) (similar); Boyles v. Kerr,

855 S.W.2d 593, 603 (Tex. 1993) (similar). Because of

Draughon’s and Mitchell’s meaningful import for this

case, we conclude that a remand in the interest of

justice is appropriate.

IV. Conclusion

Hill satisfied his summary-judgment burden to

conclusively show that the one-year statute of limitations expired before this suit was filed. The Gill Parties bore the burden to raise a genuine issue of material fact as to whether the 1999 judgment was void

because it was obtained without constitutionally adequate notice, in violation of Gill’s due-process rights.

The Gill Parties adduced no such evidence; accordingly, the trial court correctly granted summary

judgment on Hill’s limitations defense.

Nevertheless, because the summary-judgment

proceedings took place without either side having the

benefit of our decisions in Draughon or Mitchell, both

of which substantially clarified the applicable law

and likely would have affected the parties’ motion

practice, we vacate the lower courts’ judgments and

remand the case to the trial court for further proceedings. See TEX. R. APP. P. 60.2(f).

Rebeca A. Huddle

Justice

OPINION

DELIVERED:

April

26,

2024

16a

APPENDIX B

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

No. 08-20-00081-CV

HUNTLEY FORT GILL, ROBYN G. ATTAWAY, AND

MIRIAM G. STIRN, PETITIONERS,

DAVID HILL, INDIVIDUALLY AND D/B/A

DOH OIL COMPANY, RESPONDENT

Appeal from the 143rd District Court of

Reeves County, Texas (TC# 19-02-22804-CVR)

Decided and Filed: August 30, 2022

Before: RODRIGUEZ, Chief Justice,

PALAFOX and ALLEY, Justices

OPINION

17a

Appellants, Huntley Fort Gill, Robyn G. Attaway

and Miriam G. Stirn, appeal the trial court’s entry of

summary judgment against them and in favor of Appellees, David Hill, Individually and d/b/a DOH Oil

Company, on Appellees’ affirmative defense of limitations. Appellants’ 2019 lawsuit was a collateral attack on a tax lien foreclosure which occurred in 1999,

which Appellants allege occurred without adequate

notice and in violation of their predecessors’ due process rights. Appellees moved for summary judgment

based on the Tax Code’s one-year statute of limitations, which the trial court granted.

We find the trial court did not err in granting

summary judgment in favor of Appellees because

Appellants failed to meet their burden to present evidence indicating a material issue of fact on the applicability of the statute of limitations to their case.

We affirm the judgment of the trial court.

BACKGROUND

In 1999, Appellees purchased various mineral interests at auction after they had been foreclosed upon by Pecos-Barstow-Toya ISD, Reeves County, and

Reeves County Hospital District. The sheriff’s deed

conveying the mineral interests to DOH Oil Company was recorded in the property records on April 8,

1999.

On February 13, 2019, Appellants filed a lawsuit

collaterally attacking the validity of the tax sale of

the mineral interests to DOH Oil Company. In their

petition, they alleged their predecessors-in-title

owned a portion of the mineral interests in question

at the time of the tax sale foreclosure, and the tax

sale was undertaken without any service of process

upon their predecessors. As a result, according to

18a

Appellants’ petition, the judgment following the tax

sale was void for lack of due process. Their petition

sought a declaratory judgment that the tax sale

judgment was void and sought to quiet title on the

subject mineral interests.

In their answer, Appellees pleaded the affirmative defense of limitations, among others. They later

moved for summary judgment on limitations, invoking the one-year statute of limitations prescribed by

the Texas Tax Code for challenges to title of property

sold in a tax sale. See TEX.TAX CODE ANN. §

33.54(a)(1). Appellees argued Appellants’ deadline to

challenge the validity of the sale was one year after

the deed of sale to DOH Oil Company was recorded

in the property records, or April 8, 2000, pursuant to

Section 33.54. See id. Because Appellants’ lawsuit

was not filed until 2019, Appellees asserted Appellants’ claims were barred. Additionally, Appellees

argued the Tax Code’s tolling provision—namely, for

Appellants or their predecessors to have paid taxes

on the property from the time of the sale until the

suit challenging the sale was brought—was not triggered in this case because Appellants did not allege

that they or their predecessors paid taxes during

that time. See TEX.TAX CODE ANN. § 33.54(b). Furthermore, Appellees argued the statute of limitations

applies to cases challenging the validity of a tax sale

even where due process has been denied to a property owner by improper or a complete lack of service of

process, based on Texas precedent. See, e.g., W.L.

Pickens Grandchildren’s Joint Venture v. DOH Oil

Co., 281 S.W.3d 116, 121 (Tex.App.—El Paso 2008,

pet. denied); Am. Homeowner Pres. Fund, LP v. Pirkle, 475 S.W.3d 507, 514-15 (Tex.App.—Ford Worth

2015, pet. denied); John K Harrison Holdings, LLC v.

19a

Strauss, 221 S.W.3d 785, 791 (Tex.App.—Beaumont

2007, pet. denied); Session v. Woods, 206 S.W.3d 772,

778 (Tex.App.—Texarkana 2006, pet. denied); Barrera v. Chererco, LLC, No. 04-16-00235-CV, 2017 WL

943436, at *2 (Tex.App.—San Antonio 2017, no

pet.)(not designated for publication).

In response, Appellants argued Texas intermediate courts applying the statute of limitations to cases

asserting constitutional challenges were incorrectly

decided. Appellants claim Texas Supreme Court and

United States Supreme Court precedent mandates

that for the requirements of due process in a tax

foreclosure to be met, a property owner was entitled

to personal service of process of the proceedings, and

the preservation of due process trumped any limitations periods prescribed by state statute. See, e.g., In

re E.R., 385 S.W.3d 552, 566-67 (Tex. 2012)(declining

to apply statute of limitations under Texas Family

Code for suit terminating parental rights when due

process was denied to mother through improper service); see also Schroeder v. New York, 371 U.S. 208,

211 (1962)(due process was not satisfied when notice

of foreclosure was only by publication and posting,

even though the challenge was filed outside of the

limitations period); Walker v. City of Hutchinson, 352

U.S. 112, 116 (1956)(notice by publication deprived

landowner of due process even though collateral attack was filed after deadline for appeal).

Appellees filed a reply in support of their motion

for summary judgment, reiterating their position

that the statute of limitations applied to Appellants’

due process claims. Appellees also argued that even

if Appellants’ due process claims would prevent application of the statute, Appellants had failed to carry their burden of producing any evidence tending to

20a

raise an issue of material fact on the allegedly inadequate notice.

Following a hearing, the trial court granted Appellees’ motion for summary judgment. Appellants

filed a motion for new trial, reasserting the same argument alleged in their response and newly claiming

Appellees failed to meet their burden on summary

judgment “demonstrat[ing] that there was not even a

scintilla of evidence that the due process rights of

[Appellants’] predecessor in interest were not violated.” The trial court denied Appellants’ motion for

new trial.

This timely appeal followed.

DISCUSSION

Appellants present one issue on appeal: whether

the trial court erred in granting Appellees’ motion for

summary judgment on the affirmative defense of limitations when Appellants’ case seeks to void a tax

judgment based on the denial of constitutional due

process for lack of valid service. In response, Appellees argue that ample precedent, including precedent

binding on this Court, has upheld summary judgment against plaintiffs challenging the validity of a

tax judgment for lack of service and constitutional

due process issues when the challenge is raised outside of the limitations period.1 Moreover, according to

1 During

the pendency of this appeal, the Texas Supreme

Court decided Mitchell v. MAP Resources, Inc., No. 21-0124,

2022 WL 1509745, *1 (Tex. May 13, 2022), which squarely addresses this issue. We acknowledge that neither party had the

benefit of Mitchell’s analysis in the trial court proceedings or

briefing stages of this appeal. However, as we discuss more fully below, Mitchell’s analysis is inapplicable to the facts of this

21a

Appellees, summary judgment was proper because

Appellants failed to present evidence in support of

their due process arguments at the summary judgment phase, and thus failed to carry their burden to

avoid having summary judgment entered against

them.

We first consider Appellees’ contention that

summary judgment was proper because Appellants

failed to meet their burden of proof to defeat Appellees’ motion.

Standard of Review and Applicable Law

A grant of summary judgment is reviewed de novo. Murray v. Nabors Well Service, 622 S.W.3d 43, 50

(Tex.App.—El Paso 2020, no pet.)(citing Merriman v.

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).

Summary judgment is appropriate when the movant

shows that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law.

TEX.R.CIV.P. 166a. In deciding whether a genuine

issue precludes summary judgment, we treat all evidence favorable to the non-movant as true and indulge every reasonable inference and resolve all

doubts in the non-movant’s favor. Sw. Elec. Power

Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When a

defendant conclusively establishes all elements of an

affirmative defense, the defendant is entitled to

summary judgment. See SmithKline Beecham Corp.

v. Doe, 903 S.W.2d 347, 355 (Tex. 1995); Holland v.

Thompson, 338 S.W.3d 586, 593 (Tex.App.—El Paso

2010, pet. denied).

case as a result of evidentiary deficiencies at the summary

judgment stage.

22a

To achieve summary judgment on the defense of

limitations, “[t]he defendant must (1) conclusively

prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been

pled or otherwise raised[.]” Holland, 338 S.W.3d at

593 (citing KPMG Peat Marwick v. Harrison County

Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.

1999)). This well-established tenet applies to cases

where a tax judgment is being collaterally attacked.

See W.L. Pickens, 281 S.W.3d at 119. Upon such

showing, the non-movant bears the burden to present evidence raising an issue of material fact to

avoid the statute of limitations. Rodriguez v. Cemex,

Inc., 579 S.W.3d 152, 160 (Tex.App.—El Paso 2019,

no pet.). The non-moving party is not required to

marshal all its proof in response to a summary

judgment motion but must present evidence that

raises a genuine issue of material fact on each of the

challenged elements. Stierwalt v. FFE Transp. Services, Inc., 499 S.W.3d 181, 194 (Tex.App.—El Paso

2016, no pet.). If a plaintiff fails to raise a genuine

issue of material fact as to the affirmative defense,

the trial court must grant the motion. See id.

Analysis

We first consider whether Appellees met their

burden of proof as the movant. In their motion, Appellees cite to Section 33.54 of the Texas Tax Code,

which provides a limitations period of one year from

“the date that the deed executed to the purchaser at

the tax sale is filed of record” for challenges to title of

property sold in a tax sale. See TEX.TAX CODE ANN.

§ 33.54(a).2 As summary judgment evidence, Appel2 As discussed further in our opinion, Section 33.54 includes

an exception to the limitations period for persons who were not

23a

lees attached a copy of the Sheriff’s Tax Deed from

the sale of the mineral interests including those belonging to Appellants’ predecessor-in-interest. The

date of filing the deed in the property records establishes the accrual date of claims, which the record

affirmatively shows is April 6, 1999.

Accordingly, Appellees have conclusively proved

the accrual date for Appellants’ claims. It was not

necessary for Appellees to negate the discovery rule,

since it was neither pleaded by Appellants nor is applicable to claims challenging a tax sale. See W.L.

Pickens, 281 S.W.3d at 122 (precluding application of

the discovery rule to cases challenging a tax sale).

Appellees met their initial burden proving their entitlement to summary judgment on limitations.

At this juncture in the summary judgment proceedings, the burden shifted to Appellants to present

evidence raising a material issue of fact as to the applicability of the statute of limitations to their petition. See Rodriguez, 579 S.W.3d at 160; W.L. Pickens,

281 S.W.3d at 123. Evidence which would preclude

application of the statute of limitations is proof that

Appellants and/or their predecessors paid taxes on

the property from the time of the sale in 1999 until

their suit was brought. See W.L. Pickens, 281 S.W.3d

at 123; TEX.TAX CODE ANN. § 33.54(b). When a person challenging a tax sale presents evidence it paid

taxes between the time of the sale and the time the

challenge is brought, the limitations period on suits

challenging the sale is inapplicable. See W.L. Pickserved with citation in the suit to foreclose the tax lien when

those persons paid taxes on the property during the limitations

period and until a suit challenging the tax sale is commenced.

See id. § 33.54(b).

24a

ens, 281 S.W.3d at 123; TEX.TAX CODE ANN.

§ 33.54(b). However, no such evidence was provided

by Appellants, nor did Appellants make any contention they or their predecessors-in-interest paid taxes

during this period.

Additionally, Appellants could have presented evidence to support their due process claims. Since this

appeal was filed, the Texas Supreme Court issued its

opinion in Mitchell v. MAP Resources, Inc., No. 210124, 2022 WL 1509745, *1 (Tex. May 13, 2022).

Mitchell also examined whether due process rights

were violated after heirs to a mineral interest

learned their predecessor’s rights were foreclosed upon after she was served by publication, despite her

address being available in recorded warranty deeds

and the county’s tax records. See id. The Texas Supreme Court held that the publicly available property records offered as evidence in a summary judgment proceeding should have been considered by the

trial court in a collateral attack on a judgment for

due process concerns. Id. Further, because the records contained the predecessor-in-interest’s address,

serving her by posting violated her right to procedural due process. Id.

We realize Appellants did not have the benefit of

Mitchell as precedent at the time of their proceedings

in the trial court. However, if they intended to rely

on allegations of a due process violation as a response to a motion for summary judgment, they were

required to present evidence of the alleged violation

in response to Appellees’ motion. See Sec. State Bank

& Tr. v. Bexar County, 397 S.W.3d 715, 723

(Tex.App.—San Antonio 2012, pet. denied)(where

bank was a lienholder of record and entitled to notice

of tax sale, but evidence on summary judgment

25a

showed complete lack of notice, one-year statute of

limitations did not bar challenge to sale brought by

the bank).3 They did not. In fact, Appellants did not

attach any evidence to their response to Appellees’

motion for summary judgment. Rather, they relied

on the arguments in their response and the substance of their petition claiming the notice by posting

to their predecessors-in-interest was constitutionally

infirm and deprived them of due process, which they

assert precludes application of the statute of limitations. Their failure to present any evidence of the alleged violation is a key distinction between the facts

of this case and Mitchell, where the successors-ininterest attached as evidence in the summary judgment proceedings copies of public records which had

been readily available to the taxing authorities at the

time of the foreclosure sale. See Mitchell, 2022 WL

1509745 at *3. Appellants argue that documents filed

among the property records of Reeves County would

have demonstrated the lack of diligent inquiry into

their whereabouts at the time of the foreclosure sale.

However, they failed to attach those documents, or

any other evidence in support of the alleged due process violations, and instead relied on the substance of

their arguments. But—and on this there can be no

3 See

also Ocwen Loan Servicing, LLC v. Gonzalez Fin.

Holdings, Inc., 77 F. Supp. 3d 584, 588 (S.D. Tex. 2015), aff’d

sub nom. Ocwen Loan Servicing, L.L.C. v. Moss, 628 Fed. Appx.

327, 328 (5th Cir. 2016)(declining to apply one-year statute of

limitations to a lienholder who did not receive notice of the tax

sale)(“When the moving party has met its [summary judgment]

burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings.

The nonmovant must identify specific evidence in the record

and explain how that evidence prevents summary judgment on

the movant’s claim.”).

26a

disagreement—arguments in pleadings are not evidence, even when sworn to or verified. CHRISTUS

Health Gulf Coast v. Carswell, 505 S.W.3d 528, 540

(Tex. 2016); In re Elamex, S.A. de C.V., 367 S.W.3d

891, 898 (Tex.App.—El Paso 2012, no pet.).

In their reply brief, Appellants argue for the first

time on appeal that Appellees failed to satisfy their

summary judgment burden. Specifically, Appellants

argue Appellees “clearly asserted in their Petition

that the Texas Tax Code’s statute of limitations does

not apply to sales held in violation of a property owner’s due process rights[,]” and therefore, Appellees

were required to negate this contention in their motion for summary judgment. 4 Appellants claim that

in order to prove Appellees were entitled to summary

judgment, Appellees needed to “proffer . . . evidence

to negate Appellants’ claimed due process violation,

i.e. evidence that notice and service of process was

proper[.]” First, any issue not raised initially in an

appellant’s primary brief is not preserved for review.

Fox v. City of El Paso¸ 292 S.W.3d 249, 251

(Tex.App.—El Paso 2009, pet. denied)(citing

TEX.R.APP.P. 38.3). Appellants attempt to couch this

argument as responsive to Appellees’ brief; however,

the argument made by Appellees to which Appellants

address this new contention is the very same ground

upon which Appellees sought summary judgment in

the first place. In fact, Appellants made a similar argument in their motion for new trial, indicating an

intention to pursue this position on appeal. However,

they failed to raise it in their brief on the merits,

4 It

is unclear to this Court where in Appellants’ petition

they plead the inapplicability of the Tax Code’s statute of limitations to their case.

27a

thereby waiving the issue on appeal.

TEX.R.APP.P. 38.1(i); Fox, 292 S.W.3d at 251.

See

Even if Appellants had properly preserved this issue, their position is a misstatement of the summary

judgment burden. Appellants argue that for Appellees to succeed on their limitations defense at the

summary judgment stage, they must marshal evidence “conclusively establishing” that service upon

Appellants’ predecessors was proper, thus foreclosing

on Appellants’ due process claims. In other words,

Appellants interpret the law to mean that to succeed

on an affirmative defense through a summary judgment motion, the party must “conclusively” dispose

of the merits of its opponent’s claim. Appellants’ position is incorrect. An affirmative defense is a reason

offered by a defendant why the plaintiff is ineligible

for recovery regardless of the merits of his claim. See

MAN Engines & Components, Inc. v. Shows, 434

S.W.3d 132, 137 (Tex. 2014). We acknowledge the

somewhat unique circumstances of this particular

case, and Appellants’ assertion their predecessors-ininterests’ violation of due process—their substantive

claim—precludes application of Appellees’ statute of

limitations affirmative defense. However, the summary judgment standard is well-settled and the parties’ respective burdens at the summary judgment

stage are clear: the burden to present some evidence

demonstrating an issue of material fact on the applicability of the statute of limitations lay with Appellants as the non-movants. See Stierwalt, 499

S.W.3d at 194. If they intended to rely solely on their

due process claims to defeat the limitations assertion, as their petition and response indicate, it was

their burden to present some evidence of a due pro-

28a

cess violation. 5 Their failure to present any evidence of a due process violation or any other reason

why the limitations period should not apply after

Appellees satisfied their burden proving the limitations period should apply is insufficient to avoid imposing summary judgment against them.

Appellants also raise for the first time in their reply brief that a summary judgment based upon the

plaintiff’s pleadings requires the court to assume all

allegations and facts contained in the plaintiff’s petition are true. This argument has also not been preserved for review. See TEX.R.APP.P. 38.1(i); Fox, 292

S.W.3d at 251. Even if it was, however, Appellants

misstate the law. A defendant moving for summary

judgment against a plaintiff for failing to state a

cause of action relies solely upon the contents of the

plaintiff’s petition, and “all allegations, facts, and inferences in the pleadings are taken as true and

viewed in the light most favorable to the nonmovant.” Valles v. Texas Com’n on Jail Standards,

845 S.W.2d 284, 286 (Tex.App.—Austin 1992, writ

denied). However, Appellants misapprehend Appel5 We

recognize, as the concurring opinion expounds on,

there are circumstances where a defendant asserting a statute

of limitations affirmative defense has the burden to conclusively

negate a plaintiff’s claim that the limitations period has not expired. Those circumstances include, as we mentioned previously

in this opinion, where the plaintiff has pleaded the discovery

rule. See Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021).

Similarly, the burden lies with a defendant to conclusively negate other tolling provisions when they have been pleaded by

the plaintiff. Id. at 95. However, when, as here, the plaintiff’s

argument is not for the tolling of limitations, but rather its

complete avoidance for reasons of equity, the burden lies with

the plaintiff to raise a fact issue to preclude summary judgment

against it on a limitations defense. Id. at 88.

29a

lees’ motion. Appellees did not assert Appellants had

failed to state a claim against them in their petition;

rather, Appellees argued only that (1) Appellants’

lawsuit was barred by limitations, and (2) Appellants

had not alleged they or their predecessors paid taxes

on the property which would toll the limitations period. Accordingly, even if this argument were preserved on appeal, it is without merit.

We find the record shows Appellees satisfied their

burden showing applicability of the Tax Code’s statute of limitations to Appellants’ lawsuit. We likewise

find Appellants failed to present any evidence raising

a genuine issue of material fact to avoid application

of the statute of limitations. Rodriguez, 579 S.W.3d

at 160. Accordingly, we find it was proper for the trial court to grant Appellees’ motion for summary

judgment.

Appellants’ sole issue is overruled.

CONCLUSION

Having overruled Appellants’ sole issue, the

judgment of the trial court is affirmed.

August 30, 2022

YVONNE T. RODRIGUEZ,

Chief Justice

Before Rodriguez, C.J., Palafox and Alley, JJ.

Alley, J., Concurring

Palafox, J., Dissenting

30a

CONCURRENCE

I concur in the Court’s judgment. I write separately to further explain why the Appellants here

carried the burden to submit some evidence of their

claimed due process violation once the Appellees met

their initial summary judgment burden for establishing the statute of limitations defense.

When a plaintiff files suit outside of the statute of

limitations but alleges a reason for doing so, must

the defendant disprove that asserted reason when

pursuing a traditional motion for summary judgment

on limitations? Or must the plaintiff submit some evidence to support the reason avoiding limitations in

its response? Well, it depends. The Texas Supreme

Court’s latest writing on the question, Draughon v.

Johnson, answered the question when the plaintiff

claimed that his mental incapacity excused an untimely suit to set aside a deed. 631 S.W.3d 81, 85

(Tex. 2021). Section 16.001 of the Texas Civil Practice and Remedies Code tolls the limitations period

“[i]f a person entitled to bring a personal action is

under a legal disability”—defined as being under 18

years old or “of unsound mind.” TEX.CIV.PRAC.&

REM.CODE ANN. § 16.001(a), (b). If the plaintiff has

pleaded the tolling provision, Draughon holds that a

party advancing a statute of limitations defense

through a traditional motion for summary judgment

must conclusively negate that tolling provision’s applicability. Draughon, 631 S.W.3d at 95. Stated otherwise, because the plaintiff alleged that he was of

31a

unsound mind, the defendant needed to affirmatively

negate that contention to prevail on a traditional

summary judgment motion based on limitations. The

plaintiff carried no burden to prove his mental incapacity in response to the summary judgment motion.

And the Draughon court noted other situations

that are similarly treated, such as when a party

pleads the discovery rule. Id. at 89-90; Schlumberger

Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018)

(“In cases in which the plaintiff pleads the discovery

rule, the defendant moving for summary judgment

on limitations bears the additional burden of negating the rule.”). The same is true for other tolling provisions. Draughon, 631 S.W.3d at 92. (“In sum, a

plaintiff’s assertion that the statute of limitations

was tolled falls within the category of issues affecting

the running of limitations on which the moving defendant bears the burden. To obtain traditional

summary judgment on the ground that the limitations period expired before the plaintiff brought suit,

the defendant must conclusively negate any tolling

doctrines asserted.”).

Conversely, the plaintiff carries the burden to

present some evidence in its summary judgment response to support certain doctrines that avoid a statute of limitations defense. “[I]f the defendant carries

that burden and conclusively establishes its [limitations] defense, the plaintiff can avoid summary

judgment by raising a genuine issue of material fact

on any equitable defense that its suit should not be

barred even though the limitations period has run—

such as fraudulent concealment, estoppel, or diligent

service.” Draughon, 631 S.W.3d at 88-89, citing Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593

(Tex. 2017) (estoppel); Murray v. San Jacinto Agency,

32a

Inc., 800 S.W.2d 826, 830 (Tex. 1990) (lack of due diligence in service of process); Nichols v. Smith, 507

S.W.2d 518, 521 (Tex. 1974) (fraudulent concealment). The court describes these cases as falling into

a second category called reasons to “avoid” limitations that are “independent of the defendant’s conclusive showing that the limitations period expired.”

Draughon, 631 S.W.3d at 93-94.

In summary, the court reconciled these situations

by writing the “defendant has the burden regarding

any issues raised that affect the running of limitations, while the plaintiff has the burden to raise a

fact issue of equitable defenses that defeat limitations even though it has run.” Draughon, 631 S.W.3d

at 88.

So where does the Appellants’ lack-of-service-dueprocess claim fall? It is not like a tolling provision.

The Tax Code has a statutory tolling provision, but

that would have required Appellants to be paying the

taxes, and so long as they did, their deed claim would

have not accrued. See TEX.TAX CODE ANN. § 33.54(b).

Appellants did not plead section 33.54(b) tolling in

their petition. Instead, they allege that the 1999 tax

suit judgment was void based on the lack of service

on the record owners of the property. And that claim

is unlike a tolling provision because under their theory of the case, the statute of limitations is not simply interrupted—it never applies. Traditional tolling

may come to an end—that is, the plaintiff reaches

the age of majority, or achieves a sound mind.

TEX.CIV.PRAC.& REM.CODE ANN. § 16.001(a), (b). If a

party was not served before a judgment was rendered, that fault can never be undone.

33a

Nor is Appellants’ limitations-avoidance claim

like the discovery rule, which delays accrual until the

plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury. Schlumberger, 544 S.W.3d at 834. Appellants do not allege the discovery rule nor does

their argument turn on when some person learned of

the tax sale. Rather, it more resembles a confession

and avoidance claim, as it admits that limitations

have run, but they avoid its consequences due to lack

of service. It is also a claim in equity, as it asks a

court to overturn a judgment outside the confines of

the tax statute and divest the Appellees of property

that was purchased some nineteen years earlier in a

facially proper tax sale.1 And Draughon placed “equitable defenses that defeat limitations” into the category of defenses which require a plaintiff to present

some evidence in response to the summary judgment.

631 S.W.3d at 88-89. Appellants’ due process claim

most neatly fits into that category. And as the majority notes, Appellants did not present any evidence to

demonstrate their due process violation. 2 So while

1 We describe a bill of review as an “equitable proceeding”

that allows a court to set aside a judgment that is no longer

subject to regular appeal. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003); Baker v. Goldsmith, 582 S.W.2d

404, 406 (Tex. 1979). How much more so is a collateral attack

on a judgment brought even after the time for filing an equitable bill of review

2 I recognize, of course, that at the time the summary judg-

ment was heard, Appellants would have faced the argument

that the kind of extrinsic evidence at issue here—public deed

records—would have been inadmissible in a collateral attack.

See York v. State, 373 S.W.3d 32, 41 (Tex. 2012). The Texas Supreme Court modified that rule in an appeal arising from the

very same tax sale judgment that gives rise to this case. Mitch-

34a

the due-process-lack-of-service claim could negate

the statute of limitations, the procedural posture of

the summary judgment record precludes our consideration of that argument.

With this additional explanation, I join the majority opinion.

JEFF ALLEY, Justice

August 30, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.

ell v. MAP Resources, Inc., No. 21-0124, 2022 WL 1509745, at *1

(Tex. May 13, 2022). I concede that the result here is harsh: the

Appellants were not prescient enough to foresee the outcome of

the Mitchell case and include their own deed records in their

summary judgment response. But we cannot merely assume

what those deed records may have shown, and further assume

they would have provided the original taxing entities with a

viable address for service of process.

35a

DISSENTING OPINION

As evident by the differing views of my two colleagues—who otherwise agree on the outcome of the

case—the critical inquiry of this summary judgment

dispute necessarily requires that we determine on

which party the burden of proof rested, and whether

that burden was met. Chief Justice Rodriguez determines that Appellees met their initial summary

judgment burden such that a burden of proof shifted

to Appellants to present evidence raising a fact issue

precluding the applicability of Appellees’ statute of

limitations defense. She determines that evidence

satisfying that burden, which Appellants failed to

produce, would include proof that taxes were paid on

their property from the time of the tax sale in 1999 to

the date of the filing of their suit. While Justice Alley

agrees that the initial burden shifted to Appellants,

he writes separately to further explain that he would

categorize Appellants’ due process claim as one that

“more resembles a confession and avoidance claim.”

He nonetheless agrees such equitable defense to the

running of limitations required Appellants to present

evidence raising a fact issue to avoid summary judgment.

Regardless of the differences reflected by these

separate writings, the plurality opinion concludes

that based on the evidence attached to Appellees’

motion for summary judgment, they met their initial

burden of proof to conclusively establish the running

of the one-year statute of limitations against Appel-

36a

lants’ due process claim. See TEX. TAX CODE ANN. §

33.54. As proof of such defense, Appellees relied on

the sheriff’s deed from which title of the property at

issue had been conveyed to Appellees following a tax

sale. That deed reflected a recording date of April

1999. The majority concludes the deed conclusively

established that Appellants’ suit was brought nearly

nineteen years after the running of the applicable

statute of limitations. The majority further concludes

the burden shifted to Appellants to produce evidence

raising a fact issue on their due process claim, which

they failed to do.

Based on the nature of Appellants’ claim and the

well-established standards of a traditional motion for

summary judgment, I disagree that Appellees met

their initial burden of proof, such that a burden ever

shifted to Appellants to create a fact issue.

To start, Appellants identified their claim as “a

collateral attack on a void 1999 tax suit judgment.”

The petition contends that the tax judgment was entered without personal jurisdiction over James W.

Gill and Gale T. Goss (James and Gale), now deceased, who were Appellants’ predecessors-in-title to

a mineral interest in land located in Reeves County.

Appellants’ claim alleged “[t]he [tax] [j]udgment was

void as to James and Gale because there was a complete failure of service of citation on them and they

were thereby denied due process guaranteed to them

under the Fourteenth Amendment to the United

States Constitution and Article I, Sections 13 and 19

of the Constitution of the State of Texas.” Moreover,

Appellants asserted that, because the judgment was

void, “the resulting tax sale and [s]heriffs’ [t]ax

37a

[d]eed to [DOH Oil Company] were also void as to the

[p]roperty.” Finally, Appellants alleged that even

though the sheriff’s deed correctly identified the interests formerly owned by James, “it did not correctly

identify the interest purportedly owned by Gale.”

Based on all these allegations, Appellants sought a

judgment declaring the tax judgment void and of no

effect as to James, Gale, and the property; and further declaring that the sheriff’s deed could not and

did not convey any interest that was not included in

the tax suit petition and foreclosed upon by the

judgment.

As the majority opinion describes, the Supreme

Court of Texas recently addressed a similar due process claim brought against the same 1999 tax judgment at issue here. See Mitchell v. MAP Resources,

Inc., No. 21-0124, 2022 WL 1509745, at *1 (Tex. May

13, 2022). In Mitchell, the heirs of Elizabeth Mitchell

sued the current owners of disputed mineral interests, alleging the tax foreclosure judgment rendered

against Elizabeth was void as to her because she had

not been properly served, thus violating her federal

and state constitutional rights. Id. Elizabeth was a

named defendant— “[among the] almost 500 other

defendants”—whose mineral interests were foreclosed upon by taxing authorities. Id. Mitchell considered whether section 33.54 of the Tax Code applied to the heirs’ due process claim. Id. at *9.

Regarding the nature of such claim, Mitchell explained, “[t]he Due Process Clause of the [Fourteenth

Amendment to the] United States Constitution prevents the government from depriving a person of his

or her property, without due process of law.” Id. at *5

(citing U.S. CONST. AMEND. XIV, § 1 and TEX. CONST.

art. I, § 19). Thus, constitutional protections “require

38a

that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for

hearing appropriate to the nature of the case.” Id.

(citing Mullane v. Cent. Hanover Bank & Tr. Co., 339

U.S. 306, 313 (1950)). Notice must be “reasonably

calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.” Id. (citing Peralta v. Heights Med. Ctr., Inc.,

485 U.S. 80, 84 (1988)).

Regarding claims of this nature, Mitchell builds

on the guidance earlier provided by the Supreme

Court of Texas in PNS Stores, Inc. v. Rivera, 379

S.W.3d 267, 273 (Tex. 2012). Addressing procedural

aspects of such due process claims, PNS Stores held

that “a judgment may also be challenged through a

collateral attack when a failure to establish personal

jurisdiction violates due process.” Id. (citing Peralta,

485 U.S. at 84). The Supreme Court observed that “a

judgment entered without notice or service is constitutionally infirm, and some form of attack must be

available when defects in personal jurisdiction violate due process.” Id. at 272–73. PNS Stores further

described that a failure to give notice violates “the

most rudimentary demands of due process of law.”

Id. at 273. A litigant may attack a void judgment directly or collaterally. Id. at 271. Although a direct attack must be brought within a definite time, a collateral attack may be brought at any time. Id. at 272

(citing In re E.R., 385 S.W.3d 552, 566 (Tex.2012)).

When attacked collaterally, a judgment alleged as

void is presumed valid, but the presumption disappears when the record affirmatively reveals a jurisdictional defect. Id. at 273. Here, Appellants brought

such a collateral attack outside the one-year limita-

39a

tions period provided by the Tax Code, alleging the

tax judgment and resulting sheriff’s deed were void

and without effect.

When reviewing such a due process claim, Mitchell also discussed the applicability of counterarguments and defenses raised by the property owners’

own motion for summary judgment. Similar to the

defense asserted in the case at hand, the property

owners named as defendants in the Mitchell heirs’

suit alleged that even if the foreclosure judgment violated due process, the judgment could not be declared

void given it was barred by the running of the Tax

Code’s one-year statute of limitations. Mitchell, 2022

WL 1509745, at *9. But Mitchell rejected this argument. The Supreme Court noted that no temporal

limits may be placed on a challenge to a void judgment when such a claim is filed by a party who did

not receive the type of notice to which the party was

entitled to receive under the circumstances. Id. at

*10. Rather, “state statutory requirements must give

way to constitutional protections.” Id. (citing E.R.,

385 S.W.3d at 566)(providing that Texas rules “must

yield to contrary precedent from the U.S. Supreme

Court”). Mitchell concluded that when such a claim is

properly brought, the requirements of section 33.54

of the Tax Code are “irrelevant” as the suit operates

independent of the state statutory provision. Id.

Appellees’ Traditional Motion for Summary Judgment

Yet Mitchell offers only limited guidance here because its procedural posture significantly differs. As

stated earlier, the parties in Mitchell filed crossmotions for summary judgment and those motions

included a hybrid motion for summary judgment

40a

filed by defendant, MAP Resources. Id. at *3. As a

result, both sides of the lawsuit attached evidence to

their motions, and both affirmatively argued that

each were entitled to judgment as a matter of law.

Here, only Appellees filed a motion for summary

judgment, not Appellants. Relying on section 33.54 of

the Tax Code and the recording date of the attached

sheriff’s deed, Appellees argued first that “the time

for challenging the tax [sale] passed nineteen years

ago.” Second, they urged that Appellants did not allege that they or their predecessors had paid taxes in

the interim. Based on the form and substance of the

motion, Appellees filed a traditional motion for

summary judgment, not a no-evidence or hybrid motion. Compare TEX. R. CIV. P. 166a(c)(traditional motion), with TEX. R. CIV. P. 166a(i)(no-evidence motion); see also Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013)(discussing the combination of a traditional motion with a no-evidence motion results in a hybrid motion). Nowhere in the motion did Appellees assert that no evidence supported

one or more essential elements of Appellants’ due

process claim.

The standard for reviewing motions filed under

Rule 166a(c) of the Texas Rules of Civil Procedure “is

whether the successful movant at the trial level carried its burden of showing that there is no genuine

issue of material fact and that judgment should be

granted as a matter of law.” KPMG Peat Marwick v.

Harrison County Housing Fin. Corp., 988 S.W.2d

746, 748 (Tex. 1999); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985)). Under

that standard, we must take as true all evidence favorable to the non-movant and must make all reasonable inferences in the non-movant’s favor as well.

41a

See KPMG Peat Marwick, 988 S.W.2d at 748; Nixon,

690 S.W.2d at 548–49.

In Draughon v. Jones, the Supreme Court of Texas instructed that “[a] court must grant a ‘traditional’

motion for summary judgment ‘forthwith if [the

summary judgment evidence] show[s] that . . . there

is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of

law on the issues expressly set out.’” Draughon v.

Johnson, 631 S.W.3d 81, 87 (Tex. 2021)(alteration in

original)(quoting TEX. R. CIV. P. 166a(c)). Describing

the movant’s burden of proof under our traditional

rule, Draughon stated, “courts never shift the burden

of proof to the non-movant unless and until the movant has established his entitlement to a summary

judgment by conclusively proving all essential elements of his cause of action or defense as a matter of

law.” Id. at 87–88. Of further note, Draughon clarified that the traditional motion has been interpreted

such that “the presumptions and burden of proof for

an ordinary or conventional trial are immaterial to

the burden that a movant for summary judgment

must bear.” Draughon, 631 S.W.3d at 87 (citing Missouri-Kansas-Texas R.R. v. City of Dallas, 623

S.W.2d 296, 298 (Tex. 1981); Chavez v. Kan. City So.

Ry. Co., 520 S.W.3d 898, 899 (Tex. 2017)(per curiam)). “The non-movant’s failure to answer or respond

cannot supply by default the summary judgment

proof necessary to establish the movant’s right.”

Draughon, 631 S.W.3d at 88.

Applicable to this case, Appellants carry the burden at trial to rebut the presumption of validity that

applies to the tax judgment and sheriff’s deed, which

they collaterally attack by their pending suit. See

PNS Stores, 379 S.W.3d at 273. And based on that

42a

presumption, they must affirmatively demonstrate

that the trial court lacked personal jurisdiction over

James and Gale, their predecessors-in-interest. Yet,

as relevant to the standards applicable to this summary judgment proceeding, that burden operates in

reverse order in this instance. See Draughon, 631

S.W.3d at 81; Chavez v. Kan. City So. Ry. Co., 520

S.W.3d at 899 (Tex. 2017).

Because Appellees carry the initial burden to conclusively establish their entitlement to the Tax

Code’s limitations defense, that burden necessarily

includes a requirement to show that such defense

would apply to Appellants’ claim. To do so, Appellees

carry the burden to show that no due process violation occurred with regard to the collaterally attacked

tax judgment and sheriff’s deed. Said differently, to

rely on the deed to establish the running of limitations, Appellees carried the burden of establishing

not only the date of the deed’s recording but also its

validity. That is, not merely that the judgment and

deed were presumed valid, but that they were in fact

valid and of legal force and effect. When such burden

of proof is met, the statute of limitations defense

would be applicable to Appellants’ claim.

In sum, the sheriff’s deed did not enjoy a presumption of validity in this proceeding, as it does enjoy at trial, such that Appellees could rely on it alone

to shift the burden of proof to Appellants to prove

otherwise. As Draughon aptly stated, “[i]f a defendant prefers to place the burden on the plaintiff to

raise a fact issue regarding any aspects of limitations

on which the plaintiff would have the burden at trial,

it is free to file a no-evidence motion for summary

judgment as to those matters.” Id. at 85. Here, Appellees chose not to file a no-evidence or hybrid mo-

43a

tion, and Appellants themselves had neither sought a

summary judgment on their claim. Choosing to travel solely on a traditional motion for summary judgment, Appellees carried the full burden to establish

the date of the sheriff’s deed and its validity.

Conclusion

Because I would conclude that Appellees failed to

conclusively establish their affirmative defense of

limitations as a matter of law, I respectfully dissent.

August 30, 2022

GINA M. PALAFOX, Justice

Before Rodriguez, C.J., Palafox, and Alley, JJ.

44a

APPENDIX C

SUPREME COURT OF TEXAS

No. 21-0124

STEPHEN L. MITCHELL, JANIE MITCHELL BELEW, LISA

MITCHELL SEIGMANN, AND LINDA MITCHELL

STAPLETON, PETITIONERS,

MAP RESOURCES, INC., PECOS BEND ROYALTIES, LLP,

PBR PROPERTIES JOINT VENTURES, AND TOMMY

VASCOCU, RESPONDENTS

On Petition for Review from the

Court of Appeals for the Eighth District of Texas

Argued: February 22, 2022

Decided and Filed: May 13, 2022

OPINION

45a

JUSTICE BUSBY delivered the opinion of the Court.

Elizabeth S. Mitchell owned a mineral interest in

property in Reeves County, and she died in 2009. Her

heirs, the petitioners, sued to declare void a 1999 default judgment foreclosing a tax lien on Elizabeth’s

interest, alleging that she was not properly served

with notice of the underlying foreclosure suit and

thus the judgment violated her constitutional right

to procedural due process. The taxing authorities

that brought the foreclosure suit served Elizabeth

and almost 500 other defendants by posting citation

on the courthouse door.

Elizabeth’s heirs contend that she should have

been served personally because her name and address were available in eight publicly recorded warranty deeds and in the county’s tax records. Respondents, the current owners who purchased the

property at a tax sale or later acquired an interest in

it, reply that those deeds and records cannot be considered in this collateral attack on the foreclosure

judgment because they are outside the record of the

underlying suit.

The trial court granted summary judgment for

the current owners, ordering that the heirs take

nothing. A divided court of appeals affirmed, holding

the heirs did not conclusively establish a violation of

Elizabeth’s due process rights and declining to consider the warranty deeds because of the bar on extrinsic evidence in collateral attacks.

There are two questions before us: (1) can information available in relevant public records be considered in a collateral attack on a judgment that al-

46a

leges constitutional due process violations; and (2) if

those records are considered here, were Elizabeth

Mitchell’s due process rights violated in the 1999

suit? We answer both questions yes. When public

property or tax records include contact information

for a defendant that was served by publication, we

hold that a court hearing a collateral attack on a

judgment on due process grounds may consider those

records. And because the deed records here featured

Elizabeth’s mailing address, we hold that serving her

by posting did not comply with procedural due process. Accordingly, we reverse the court of appeals’

judgment, render partial summary judgment for the

heirs, and remand the case to the trial court for further proceedings regarding certain of the current

owners’ defenses.

BACKGROUND

As the concurring justice in the court of appeals

observed, “to anyone who values property rights and

due process, the facts of this case are troubling.” 615

S.W.3d 212, 224 (Tex. App.—El Paso 2020) (Alley,

C.J., concurring). In December 1998, the PecosBarstow-Toyah Independent School District, Reeves

County Hospital District, and Reeves County (collectively the Taxing Authorities) sued approximately

500 owners of more than 1600 parcels of mineral

property—totaling tens of thousands of acres—who

had failed to pay their property taxes.1 To notify the

1 The original petition by the Taxing Authorities does not

name the defendants individually. Instead, it incorporates an

attached exhibit listing the mineral leases and their owners.

The list is arranged alphabetically by owner first name and

spans 55 pages in the record. Strangely, starting on page 29 of

the list, it begins to repeat itself. Every subsequent page is a

47a

defendants that they had been sued, the Taxing Authorities posted citations on the door of the Reeves

County Courthouse.

Citation by posting was necessary, the Taxing

Authorities swore, because not one of the 500 defendants could be located for personal service despite

the Authorities’ allegedly diligent search. Roughly

one month, two attorneys ad litem, and a five-minute

bench trial later, the court signed a default judgment

foreclosing tax liens on all 1600 parcels, including

mineral interests in 320 acres owned by Elizabeth S.

Mitchell (misidentified in the defendant list as “Elizabeth A. Mitchell”). Sixteen years later, Elizabeth’s

heirs brought suit to have the 1999 judgment and

subsequent sale set aside for constitutional due process violations.

A. The tax suit and 1999 foreclosure judgment

The Taxing Authorities’ original suit sought to

foreclose tax liens on mineral interests whose owners

had not paid their taxes at some point between 1978

and 1998. Several months after filing their original

petition with an attached exhibit listing all defendants and properties, the Taxing Authorities’ attorney

filed an affidavit seeking court approval for citation

by posting under Texas Rule of Civil Procedure

117a. 2 Tracking the requirements of Rule 117a,

duplicate of a prior page, although the order is not the same.

Our review of the first 28 pages of the list, before the entries

duplicate, revealed roughly 500 unique owners, 80 owners identified only as “unknown,” and 1600 parcels of property.

2 Rule 117a(3) provides:

48a

counsel said in part that each defendant listed in the

exhibit was either a nonresident, absent from the

state, or a transient person. Additionally, he said

that the names or residences of the other landowners

involved in the suit were unknown and could not be

ascertained after diligent inquiry. Counsel further

swore that, for any defendants for whom a rendition

was filed in the previous five years with the appraisal district office that showed the address of any record owner, personal service was issued to the rendition address. The record contains no citation or return of attempted service on any defendant listed in

the exhibit.

The court took the Taxing Authorities at their

word and authorized citation by posting. On December 17, 1998, the exhibit and a two-page notice to defendants were provided to the Reeves County Sheriff’s Office and posted at the county courthouse. The

notice required defendants to appear and answer the

suit within 42 days, by January 31, 1999. See TEX. R.

CIV. P. 114.

Also on December 17, the Taxing Authorities filed

a motion to appoint an attorney ad litem for the deWhere any defendant in a tax suit is a nonresident of the

State, or is absent from the State, or is a transient person, or

the name or the residence of any owner of any interest in any

property upon which a tax lien is sought to be foreclosed, is unknown to the attorney requesting the issuance of process or filing the suit for the taxing unit, and such attorney shall make

affidavit that such defendant is a nonresident of the State, or is

absent from the State, or is a transient person, or that the name

or residence of such owner is unknown and cannot be ascertained after diligent inquiry, each such person in every such

class above mentioned, together with any and all other persons

. . . may be cited by publication.

49a

fendants who had not appeared or answered. See

TEX. R. CIV. P. 244. The Court appointed Roddy Harrison, who withdrew two months later, on February

10, 1999, due to conflicts. The next day, the court appointed a new attorney ad litem, Jesse Gonzalez, Jr.

At that time, a non-jury trial was scheduled for February 19, 1999. Mr. Gonzalez did not receive the records for the case until February 16, three days before

trial.

The trial apparently took less than five minutes.3

After trial, the court signed a Statement of Evidence—to which the attorney ad litem agreed—

reciting that the court had inquired into the sufficiency of the diligence exercised by the Taxing Authorities in attempting to discover the whereabouts

of defendants. See id. According to the statement, the

Taxing Authorities’ witness testified to a search of

the public records of the county, and that, where the

records showed an address for a defendant, “citation

was issued for personal service . . . at such address

. . . but was unserved.” The court concluded that diligent inquiry had been made and signed a default

judgment foreclosing the Taxing Authorities’ liens on

the subject properties. The properties, including

Elizabeth’s mineral interests, were then sold at a

sheriff’s sale.

3 The record indicates that six other tax delinquency suits

were scheduled for trial at the same time as the suit at issue

here, each with a different defendant or attorney ad litem. Trying all seven cases was estimated to take thirty minutes. Assuming each case received roughly the same amount of time,

that would allow about four minutes per case.

50a

B. The Mitchell heirs’ 2015 suit

Elizabeth’s heirs (collectively the Mitchells) filed

the present suit in 2015—five years after Elizabeth’s

death and sixteen years after the foreclosure judgment—against respondents, MAP Resources and

other current owners of the mineral interests (collectively MAP). The Mitchells sought declarations that

the foreclosure judgment was void as to Elizabeth

because she had not been properly served and thus

her federal and state constitutional rights had been

violated. Specifically, they alleged that the attorney

for the Taxing Authorities gave false testimony that

Elizabeth’s address could not be ascertained after diligent inquiry because eight warranty deeds on file in

the public records at the time of the foreclosure suit

showed that Elizabeth owned the subject property

and listed a post office box where she could be

reached.4 They contended that if the Taxing Authorities had actually conducted the diligent inquiry they

claimed, Elizabeth’s address would have been discovered in the deed records.

The parties filed cross-motions for summary

judgment in the trial court. The Mitchells’ motion

argued that the foreclosure judgment is void as to

Elizabeth and her property because the Taxing Authorities, despite having knowledge of her address,

failed to serve her in compliance with Texas Rule of

Civil Procedure 117a and thereby violated both the

United States and Texas Constitutions. Because the

judgment is void, they contended that the resulting

4 All eight warranty deeds are included in the record before

us in this 2015 suit. Each deed was filed in 1983, names Elizabeth S. Mitchell as the grantee of the property, and lists as

Elizabeth’s address “P.O. Box 428, Van Horn, Texas 79855.”

51a

deeds and sales of the property are also void.5 The

Mitchells sought declaratory relief to that effect and

to quiet title to the property. As evidence, the Mitchells provided, among other things, copies of the eight

publicly recorded warranty deeds, probate documents

regarding Elizabeth’s estate, and copies of documents

from the original foreclosure suit, including the citation by posting, statement of evidence, and default

judgment.

In response to the Mitchells’ motion, MAP raised

a number of defenses, including that the Mitchells

failed to comply with certain statutory requirements

in the Tax Code. Specifically, MAP argued that the

Mitchells’ claims are barred by the one-year statute

of limitations for challenging tax sales. See TEX. TAX

CODE § 33.54(a). MAP also contended that the

Mitchells failed to satisfy the Tax Code’s statutory

precondition for suits challenging the validity of a

tax sale, which requires deposit of any delinquent

taxes before the action may be commenced. Id. §

34.08(a). Additionally, MAP argued that the Mitchells could not collaterally attack the tax judgment

because the statement of evidence established that

Elizabeth was properly served, and the Mitchells improperly sought to introduce the warranty deeds despite the bar on extrinsic evidence. Finally, MAP argued that the Mitchells’ claims were barred by laches

because they unreasonably delayed bringing suit.

5 After the judgment, the mineral interests were sold at a

sheriff’s sale to respondents PBR Properties Joint Ventures,

Pecos Bend Royalties, Inc., and Tommy Vascocu, who received a

sheriff’s deed. That interest was subsequently conveyed in part

to MAP Resources via quitclaim deed. The Mitchells seek to

have both the sheriff’s and quitclaim deeds declared void.

52a

MAP also filed its own hybrid motion for summary judgment.6 Its motion raised many of the same

grounds it argued in response to the Mitchells’ motion for summary judgment, with the exception of its

laches defense. MAP argued in its motion that the

Mitchells’ claims failed because they did not file

within the statutory limitations period or comply

with statutory procedure for challenging a tax sale.

It also contended that the Mitchells’ attempt to attack the judgment collaterally was impermissible because they could not demonstrate that the judgment

was void on its face. As evidence, MAP provided copies of the record from the foreclosure suit, the sher-

6 Motions for traditional summary judgment under Rules

166a(a) or (b) may be combined with Rule 166a(i) no-evidence

motions in “hybrid” motions for summary judgment. Binur v.

Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004); see also City of

Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 299

(Tex. 2017) (per curiam). If a party has the burden of proof on

claims or defenses, however, it cannot use a no-evidence motion

to establish those claims or defenses. See TEX. R. CIV. P. 166a(i);

Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.—

Houston [14th Dist.] 2003, no pet.). MAP’s motion sought summary judgment on the grounds that the statutory limitations

period in the Tax Code had run, that the Mitchells provided no

evidence that the tolling provision of the statute had been triggered, and that the Mitchells’ suit was an improper collateral

attack. MAP’s claim that the Mitchells failed to provide evidence that the Tax Code’s tolling provision applied can properly

be decided in a no-evidence motion because the Mitchells would

have the burden of proving tolling at trial. See Draughon v.

Johnson, 631 S.W.3d 81, 85 (Tex. 2021) (“If a defendant prefers

to place the burden on the plaintiff to raise a fact issue regarding any aspects of limitations on which the plaintiff would have

the burden at trial, it is free to file a no-evidence motion for

summary judgment as to those matters.”). Given our disposition, however, we do not reach the tolling issue.

53a

iff’s tax deed to PBR Properties Joint Venture, Pecos

Bend Royalties, Inc., and Tommy Vascocu, and the

quitclaim deed from those parties to MAP Resources.

In response to MAP’s motion, the Mitchells contended that MAP’s argument improperly elevates the

statutory requirements of the Tax Code over constitutionally mandated due process rights. In their

view, accepting MAP’s position would essentially

foreclose any collateral attack on a judgment where

service was constitutionally inadequate. The Mitchells argued they were not barred from bringing their

collateral attack because constitutional due process

rights trump statutory requirements.

Following a hearing, the trial court granted

MAP’s motion for summary judgment and denied the

Mitchells’ motion. The court rendered judgment for

MAP and the other defendants and ordered a takenothing judgment on the Mitchells’ claims. The

Mitchells appealed.

C. The court of appeals’ opinions

The court of appeals affirmed, holding that the

Mitchells had not established as a matter of law that

the trial court lacked personal jurisdiction over Elizabeth. 615 S.W.3d at 223 (plurality opinion). Each of

the three panel members wrote a separate opinion.

Justice Palafox wrote a plurality opinion holding that

although a judgment may be collaterally attacked on

the ground that the court did not acquire personal

jurisdiction over the defendant in compliance with

due process, the record in this case does not conclusively establish that no attempt was made by the

Taxing Authorities to personally serve Elizabeth. Id.

at 222.

54a

Chief Justice Alley concurred. He concluded that

although the record established a due process violation under Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306 (1950), and Mennonite Board of

Missions v. Adams, 462 U.S. 791 (1983), the plurality’s outcome was correct in light of Texas precedent

barring consideration of extrinsic evidence. He encouraged a reexamination of this precedent, including a possible exception “when a judgment is based

on an express representation that a party performed

a diligent review of public records to support an alternative form of service.” Id. at 224 (Alley, C.J., concurring).

Justice Rodriguez dissented, arguing that due

process rights should always trump a state statute or

evidentiary rule. Because the warranty deeds in the

public record created serious doubts that a diligent

search for Elizabeth’s whereabouts had actually been

conducted, she would have set aside the judgment for

complete lack of service. Id. at 237 (Rodriguez, J.,

dissenting). As explained below, we agree in part

with both the concurrence and the dissent.

The Mitchells filed a petition for review, which we

granted. We review the trial court’s rulings on the

parties’ cross-motions for summary judgment de novo, considering both sides’ summary judgment evidence and determining all questions presented. FM

Props. Operating Co. v. City of Austin, 22 S.W.3d

868, 872 (Tex. 2000).

55a

ANALYSIS

I. In a collateral attack on a default judgment,

contact information available in deed and tax

records may be considered in deciding whether

service by posting satisfied due process.

The Mitchells contend that the default foreclosure

judgment should be declared void because Elizabeth

was not personally served in compliance with constitutional due process requirements, and thus the

court did not acquire personal jurisdiction over her.

See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273

(Tex. 2012) (holding that “a judgment may . . . be

challenged [as void] through a collateral attack when

a failure to establish personal jurisdiction violates

due process”). The parties’ principal dispute concerns

what evidence a court may consider in deciding

whether Elizabeth was properly served by posting.

To place this dispute in context, we begin by discussing the service requirements of the Constitution and

our rules.

Texas Rule of Civil Procedure 117a governs the

service of citation on defendants in suits for delinquent ad valorem taxes. To justify citation by publication or posting when a defendant is a nonresident

of or absent from the state, or its name is unknown

to the attorney requesting issuance of process, the

attorney must aver that the defendant is absent,

transient, or that its name and residence “cannot be

ascertained after diligent inquiry.” TEX. R. CIV. P.

117a(3). The “diligent inquiry” requirement of Rule

117a incorporates the requirements of constitutional

due process.

The Due Process Clause of the United States

Constitution prevents the government from depriv-

56a

ing a person of his or her “property, without due process of law.” U.S. CONST. amend. XIV, § 1; see also

TEX. CONST. art. I, § 19 (“No citizen of this State

shall be deprived of . . . property . . . except by the

due course of the law of the land.”).7 It is well settled

that these words “require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case.” Mullane, 339 U.S. at 313. Notice

must be “reasonably calculated, under the circumstances, to apprise interested parties of the pendency

of the action and afford them the opportunity to present their objections.” Peralta v. Heights Med. Ctr.,

Inc., 485 U.S. 80, 84 (1988) (quoting Mullane, 339

U.S. at 314).8

In Mullane, the Supreme Court of the United

States explained that “when notice is a person’s due,

process which is a mere gesture is not due process.

The means employed must be such as one desirous of

7 This Court has held that the federal Due Process Clause

and the Texas Constitution’s Due Course of Law clause are, for

the most part, coextensive. See Patel v. Tex. Dep’t of Licensing

& Regul., 469 S.W.3d 69, 86 (Tex. 2015). The parties have not

identified any differences in text or application that are relevant to the issues raised here, so we treat the requirements of

both Constitutions as identical for purposes of this opinion.

8 See also Cunningham v. Parkdale Bank, 660 S.W.2d 810,

813 (Tex. 1983) (“[P]rocedural due process ‘requires notice that

is reasonably calculated to inform parties of proceedings which

may directly and adversely affect their legally protected interests.’” (quoting City of Waco v. Roddey, 613 S.W.2d 360, 365

(Tex. App.—Waco 1981, writ dism’d))); Hamm v. Robinson, 314

S.W.3d 204, 209 (Tex. App.—El Paso 2010, no pet.) (“As an elementary and fundamental requirement, our system of justice

comprehends due process to include notice and an opportunity

to be heard by interested parties to the action.”).

57a

actually informing the absentee might reasonably

adopt to accomplish it.” 339 U.S. at 315. The reasonableness of any chosen method of providing notice,

and hence its constitutionality, “may be defended on

the ground that it is in itself reasonably certain to

inform those affected, or, where conditions do not

reasonably permit such notice, that the form chosen

is not substantially less likely to bring home notice

than other of the feasible and customary substitutes.” Id. (citations omitted).

This Court echoed Mullane in Anderson v. Collum, a case concerning the validity of service by publication under Rule 117a. 514 S.W.2d 230 (Tex.

1974). We held that where property owners were residents and could have been found with diligent inquiry, and where the state’s affidavit for citation by

publication alleged only that the owner was a nonresident or person whose residence was unknown,

the tax sale should be set aside. Id. at 230–31. “[T]he

failure to comply with [Rule 117a], and the admitted

lack of diligence to locate the defendants renders the

service by publication ineffective.” Id. at 231; see also

Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 147 (Tex.

1951).

We have not considered service under Rule 117a

since Anderson, but when we have discussed the requirement of diligent inquiry as it relates to citation

by publication, we have done so with reference to the

due process considerations outlined in Mullane. See

In re E.R., 385 S.W.3d 552, 558–60, 565 (Tex. 2012)

(“Sending a few faxes, checking websites, and making three phone calls . . . is not the type of diligent

inquiry required before the [State] may dispense

with actual service . . . . Mullane authorized service

by publication when it is not reasonably possible or

58a

practicable to give more adequate warning.” (internal

quotation marks omitted)). Rule 117a’s requirement

of a diligent inquiry into the whereabouts of a defendant in a tax foreclosure suit ensures that a party

seeking to serve a defendant by publication or posting has provided process that is more than a mere

gesture.

A diligent inquiry by a person who actually desires to find a defendant in a tax suit includes a

search of public property and tax records. Following

Mullane, the Supreme Court has consistently held

that when an unknown defendant can be identified

or a known defendant’s address can be ascertained

from publicly recorded instruments, notice by posting

or publication is insufficient to satisfy due process. In

Walker v. City of Hutchinson, the Court held that notice of condemnation proceedings published in a local

newspaper was an inadequate means of informing a

landowner whose name was known to the city and

was on its official records. 352 U.S. 112, 116 (1956).

“[T]here seem to be no compelling or even persuasive

reasons,” the Court wrote, “why such direct notice

cannot be given.” Id. A few years later, in Schroeder

v. City of New York, the Court reaffirmed that publication in newspapers and posted notices was inadequate to apprise a property owner of condemnation

proceedings when his name and address were ascertainable from deed records and tax rolls. 371 U.S.

208, 210–11 (1962).

The Court returned to this issue twenty years later in Mennonite Board of Missions v. Adams, addressing whether notice by publication and posting

provided a mortgagee of real property with adequate

notice of a nonjudicial proceeding to sell the mortgaged property to recover delinquent taxes. 462 U.S.

59a

at792. The Court held that a mortgagee has a legally

protected property interest and is therefore entitled

to notice that is reasonably calculated to apprise her

of an impending tax sale. Id. at 798. Further, when a

mortgagee is identifiable through an instrument

“that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to

the mortgagee’s last known available address, or by

personal service.” Id. “Personal service or mailed notice is required even though sophisticated [defendants] have means at their disposal to discover

whether property taxes have not been paid and

whether tax sale proceedings are likely to be initiated.” Id. at 799. Only when a mortgagee is “not reasonably identifiable” does constructive notice alone

satisfy the requirements of Mullane. Id. at 798.

In light of these principles, we likewise hold that

citation by publication or posting violates due process

when the address of a known defendant is readily ascertainable from public records that someone who

actually wants to find the defendant would search.

See E.R., 385 S.W.3d at 564 (explaining that reasonable search “must extend to places where information is likely to be obtained and to persons who, in

the ordinary course of events, would be likely to have

information of the person or entity sought” (quoting

In re S.P., 672 N.W.2d 842, 846 (Iowa 2003))). Here,

the default judgment and the Taxing Authorities’

testimony in the foreclosure suit refer to the county’s

public records, including the deed records. Those records show that if the “diligent inquiry” required by

the Constitution and Rule 117a had been performed

by a person actually desirous of locating Elizabeth

Mitchell, he would have discovered her correct name

and post office box in the deed records.

60a

MAP responds that the warranty deeds listing

Elizabeth S. Mitchell’s name and address cannot be

considered under our precedent because they are extrinsic to the record of the underlying foreclosure

suit. MAP is correct that, as a general rule, extrinsic

evidence cannot be considered in a collateral attack

to set aside a final judgment. See Templeton v. Ferguson, 33 S.W. 329, 332–33 (Tex. 1895); Crawford v.

McDonald, 33 S.W. 325, 328 (Tex. 1895). But this

rule does not extend to cases over which a court “has

not, under the very law of its creation, any possible

power.” Templeton, 33 S.W. at 332. In York v. State,

we observed that the law of Texas courts’ creation

includes the United States Constitution. 373 S.W.3d

32, 42 (Tex. 2012); see also Burnham v. Superior

Court, 495 U.S. 604, 608–09 (1990) (invoking principle of coram non judice in determining validity of

judgment challenged for alleged lack of personal jurisdiction).

As explained, the Constitution requires a diligent

inquiry into a defendant’s whereabouts, including a

search of public deed and tax records for the defendant’s address. Moreover, the concerns that animate

this and other courts’ application of the bar on extrinsic evidence—such as fraud, manipulation, and

fading memories9—are inapplicable to such records.

The authenticity of the deed and tax records is not in

question here.

9 “To permit impeachment of a judgment by extrinsic evidence opens the possibility of fraudulent avoidance of judgments, for example by a claim that process was not actually

served. The testimony of a person making such a claim often

cannot be contradicted, because the memory of other possible

witnesses has faded by the time the claim is litigated.” RESTATEMENT (SECOND) OF JUDGMENTS § 77 cmt. b (1982).

61a

Because the Constitution and Rule 117a require a

plaintiff to consult public deed and tax records as

part of its diligent inquiry when a defendant’s name

or residence is unknown, the contents of those records should be regarded as part of the record of the

suit rather than as extrinsic evidence. We therefore

hold that when such public records contain the address of a defendant served by publication or posting,

a court hearing a collateral attack on a judgment

may consider that evidence in deciding whether service complied with the constitutional demands of due

process.

II. Consideration of the deed records demonstrates that serving the defendant by posting

did not comply with procedural due process.

Having defined the scope of the record, we next

consider whether it establishes a jurisdictional defect. See PNS Stores, 379 S.W.3d at 273. Although a

judgment attacked collaterally is presumed valid,

that presumption disappears when the record “exposes such personal jurisdictional deficiencies as to

violate due process.” Id.

Here, the record shows that the Taxing Authorities did not comply with Rule 117a or the requirements of due process. As explained above, due process requires notice that is reasonably calculated to

apprise parties of the pendency of an action. Personal

service of written notice is always adequate, but notice by publication must be scrutinized because

“chance alone” brings a resident’s attention to a notice published in a newspaper or posted on a courthouse door. Mullane, 339 U.S. at 315. Thus, notice by

publication is not enough with respect to a person

whose name or address is easily ascertainable; such

62a

persons should be served personally. Schroeder, 371

U.S. at 212–13; Sgitcovich, 241 S.W.2d at 147.

There is no evidence that personal service on

Elizabeth was ever attempted. The record of the underlying tax foreclosure suit does contain a statement of evidence as required by Texas Rule of Civil

Procedure 244. 10 The statement recites that where

the Taxing Authorities’ search of public records

showed the address of any defendant, “citation was

issued for personal service . . . at such address . . .

but was unserved.” But the statement does not address whether an attempt was made to serve the issued citation, and the record contains no citation or

return reflecting attempted personal service on any

of the 500 defendants, including Elizabeth.

10 MAP argues that the Mitchells have not produced a complete record of the foreclosure suit and that this failure is fatal

to their collateral attack. Specifically, MAP points out that the

Mitchells failed to produce a transcript of the testimony of the

attorney for the Taxing Authorities that he diligently searched

for but could not ascertain the defendants’ whereabouts. We

find this argument unpersuasive. As the Mitchells point out,

the trial court in this suit took judicial notice of the record of

the foreclosure suit. Moreover, it is unclear that a reporter’s

record was taken of the brief default trial in the foreclosure

suit. Court reporters are not required to transcribe court proceedings unless a party requests it, see TEX. GOV’T CODE §

52.046(a), which Elizabeth could not do because she was not

present. Even if a transcript was taken in 1999, court reporters

are only required to preserve their notes for three years. Id. §

52.046(a)(4). This potential unavailability of transcripts is precisely why Rule 244 requires a statement of evidence. The

statement creates a record of the evidence supporting a default

judgment arising from notice by publication or posting. We conclude that parties may rely on that statement in lieu of a transcript.

63a

The parties dispute whether our Rules of Civil

Procedure required that records of attempted personal service be filed with the court in 1999, at the

time of the foreclosure suit. The version of Rule

107—entitled “Return of Service”—then in effect

provided: “The return of the officer or authorized

person executing the citation shall be endorsed on or

attached to the same; it shall state when the citation

was served and the manner of service and be signed

by the officer officially or by the authorized person.”

TEX. R. CIV. P. 107 (1990, amended 2011). It further

provided that “when the officer or authorized person

has not served the citation, the return shall show the

diligence used by the officer or authorized person to

execute the same and the cause of failure to execute

it, and where the defendant is to be found, if he can

ascertain.” Id. In addition, Rule 25 required then

(and requires now) that the clerk’s file show, “in brief

form, the officer’s return on the process.” TEX. R. CIV.

P. 25.11

Thus, if the Taxing Authorities had attempted to

serve Elizabeth personally in compliance with our

rules, the record of the underlying tax foreclosure

suit should reflect it. It does not.12

11 The parties also dispute the relevance and applicability of

Rule 99. Currently, Rule 99 requires that the clerk retain a

copy of citation in the court’s file. TEX. R. CIV. P. 99. In 1999,

Rule 99 did not have this requirement. Given that Rule 107

(both now and in 1999) requires retention of copies of the return, however, consideration of Rule 99 is unnecessary to resolve the issue.

12 We have held that it is “the established law of this State

that it is imperative and essential that the record affirmatively

show a strict compliance with the provided mode of service.”

McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). Specifical-

64a

MAP argues that the absence of citations in the

record cannot be treated as affirmative proof that the

Taxing Authorities did not attempt personal service.

We have noted that “unless the party contesting service presents a preponderance of evidence to the contrary—for example, the party’s testimony along with

corroborating facts or circumstances—the officer’s

return of service is sufficient proof that the citation

and petition were properly served.” State v. Bristol

Hotel Asset Co., 65 S.W.3d 638, 648 (Tex. 2001). Citations are also treated as presumptive evidence of

service, unless the party challenging service carries

its burden of showing, by a preponderance of the evidence, that service was not effected. Ward v. Nava,

488 S.W.2d 736, 738 (Tex. 1972). These principles do

not apply here, however, because no citation or return for Elizabeth appears in the record.

Because Elizabeth was not personally served,

constitutional principles of due process and Rule

117a required the Taxing Authorities to conduct a

diligent inquiry regarding her residence before serving her by posting. See supra Part I. The statement

of evidence reflects the testimony of the Taxing Authorities’ counsel that public records were searched

for the defendants’ addresses, and counsel stated in

his affidavit that the names and residences of the dely, we have held that a failure to comply with the requirements

of Rule 107 renders a default judgment invalid. Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam). In Hubicki,

we held that the respondent’s failure to establish return of service in compliance with the requirements of Rule 107 rendered

service ineffective. Id. “Under these circumstances, as a matter

of law, Festina failed to establish that alternative service . . .

was reasonably calculated to provide Hubicki with notice of the

proceedings.” Id.

65a

fendant owners being served by publication could not

be ascertained after diligent inquiry. But the assertion that not one of the approximately 500 defendants had an identifiable address strains credulity.

And the recorded warranty deeds bearing Elizabeth’s

post office box address reveal that, as to her, the Taxing Authorities either did not complete the diligent

records search they claimed or did not act on its results. Thus, the recitation in the judgment that the

Taxing Authorities exercised diligence “rings hollow,”

as Chief Justice Alley observed. 615 S.W.3d at 230

(Alley, C.J., concurring).

MAP argues that a post office box is not a “residence,” so “proof that the taxing entities were aware

of [Elizabeth’s] P.O. Box does not negate their lawyers’ statement that her residence was unknown,

which is all Rule 117a requires for citation by publication.” This argument is beside the point. “[O]ne desirous of actually informing” Elizabeth of the suit

could simply have sent notice to her post office box.

Mullane, 339 U.S. at 315. There is no evidence that

the Taxing Authorities did so here.

When the record underlying the tax foreclosure

judgment, incl

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