Opinion filed April 2, 2009




                                                In The


   Eleventh Court of Appeals
                                            ____________

                                      No. 11-07-00225-CV
                                          __________

   LAWRENCE F. AVERITT, INDIVIDUALLY AND AS INDEPENDENT
    EXECUTOR OF THE ESTATE OF BEULAH AVERITT, Appellant
                             V.
       BETTY CAUDLE, CHIEF APPRAISER ET AL, Appellees


                              On Appeal from the 106th District Court
                                       Gaines County, Texas
                                Trial Court Cause No. 04-09-14829


                              MEMORANDUM OPINION
        This is an ad valorem tax suit. Lawrence F. Averitt filed suit to appeal the Appraisal Review
Board’s order concerning the value of his oil and gas interests. The jury determined the market value
of the interest on the property for the tax years in question. The jury further found that the appraisals
for the tax years in question complied with the applicable provisions of the Texas Tax Code. The
trial court entered judgment in accordance with the jury’s verdict. We affirm.
        Averitt inherited the oil and gas interests from his aunt. Averitt testified that the oil and gas
interests are very valuable and that he receives over $200,000 a year in royalties on the property.
Averitt further testified that he became concerned that the value placed on his oil and gas interests
for tax purposes was too high. He eventually hired an attorney to help him challenge the appraised
value of his interests. Averitt hired an independent appraiser who valued the interests considerably
less than the appraisal by the Gaines County Appraisal District. For each of the tax years 2004,
2005, and 2006, Averitt filed a protest with the District; each protest was heard and denied by the
Appraisal Review Board. Averitt then appealed to the district court.
       Betty Caudle, chief appraiser for the District, testified that, as chief appraiser, it is her duty
to “appraise all the taxable properties within the county at market value.” Caudle stated that her
office does not conduct the appraisals for oil and gas properties. Gaines County contracts with
Capitol Appraisal Group to perform oil and gas appraisals for the county. Caudle stated that she
expects Capitol to follow the pertinent tax laws and that she has confidence in Capitol because “they
get to market value.”
       Benny L. Latham, vice president of Capitol, is a registered professional engineer and a
registered professional appraiser. Latham prepared values on Averitt’s interests using the provisions
of TEX . TAX CODE ANN . § 23.175 (Vernon 2008) and also using accepted appraisal standards.
Latham testified that he prepared his own estimate of market value because the value using
Section 23.175 would cause the interests to be “overassessed.” Latham said property cannot by law
be appraised at a value greater than market value.
       Andrew B. Burleson, an independent petroleum engineer, testified that he conducted an
appraisal on Averitt’s interests for the tax years in question based upon Chapter 23 of the Texas Tax
Code. TEX . TAX CODE ANN . ch. 23 (Vernon 2008). Burleson stated that Capitol valued the property
130% higher than his appraisal. Burleson testified that Capitol’s values do not comply with the
provisions of Chapter 23 of the Texas Tax Code and that Capitol’s values exceed market value.
       In his first issue on appeal, Averitt argues that the trial court erred in instructing the jury. In
Question No. 1, the trial court instructed the jury to find the “market value required by law for each
of Mr. Averitt’s Gaines County properties” for the tax years 2004, 2005, and 2006. The charge
defined market value as set out in TEX . TAX CODE ANN . § 1.04(7) (Vernon 2008):
               (7) “Market value” means the price at which a property would transfer for
       cash or its equivalent under prevailing market conditions if:

                      (A) exposed for sale in the open market with a reasonable
               time for the seller to find a purchaser;


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                      (B) both the seller and the purchaser know of all the uses and
               purposes to which the property is adapted and for which it is capable
               of being used and of the enforceable restrictions on its use; and

                      (C) both the seller and purchaser seek to maximize their gains
               and neither is in a position to take advantage of the exigencies of the
               other.

The charge further provided as set out in Section 23.01(b):

               (b) The market value of property shall be determined by the application of
       generally accepted appraisal methods and techniques. If the appraisal district
       determines the appraised value of a property using mass appraisal standards, the mass
       appraisal standards must comply with the Uniform Standards of Professional
       Appraisal Practice. The same or similar appraisal methods and techniques shall be
       used in appraising the same or similar kinds of property. However, each property
       shall be appraised based upon the individual characteristics that affect the property's
       market value.

In its charge, the trial court further instructed the jury on the provisions in Section 23.175 as it
pertained to appraisals for oil and gas interests:
               (a) If a real property interest in oil or gas in place is appraised by a method
       that takes into account the future income from the sale of oil or gas to be produced
       from the interest, the method must use the average price of the oil or gas from the
       interest for the preceding calendar year. . . .

               (b) The comptroller by rule shall develop and distribute to each appraisal
       office appraisal manuals that specify methods and procedures to discount future
       income from the sale of oil or gas from the interest to present value.

              (c) Each appraisal office shall use the methods and procedures specified by
       the appraisal manuals developed under Subsection (b) of this section.

       The standard of review for an allegation of jury charge error is an abuse of discretion. Tex.
Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Schrock v. Sisco, 229 S.W.3d 392,
393 (Tex. App.—Eastland 2007, no pet.). A trial court abuses its discretion by acting arbitrarily,
unreasonably, or without consideration of guiding principles. Walker v. Gutierrez, 111 S.W.3d 56,
62 (Tex. 2003); Schrock, 229 S.W.3d at 394. If a trial court abuses its discretion when it submits
an instruction to the jury, we do not reverse in the absence of harm. See Lone Star Gas Co. v.


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Lemond, 897 S.W.2d 755, 756 (Tex. 1995); Schrock, 229 S.W.3d at 394. Harm occurs when the
error in the charge probably caused the rendition of an improper judgment or prevented appellant
from properly presenting the case to the court of appeals. TEX . R. APP . P. 44.1(a); Wal-Mart Stores,
Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003); Schrock, 229 S.W.3d at 394.
        The trial court instructed the jury to find the “market value required by law.” Averitt
specifically argues that the charge should not use the term “market value” but, rather, that the jury
should only be instructed to find the “appraised value” using the special provisions of
Section 23.175. TEX . CONST . art. VIII, § 1(b) states:
              All real property and tangible personal property in this State, unless exempt
       as required or permitted by this Constitution . . . shall be taxed in proportion to its
       value, which shall be ascertained as may be provided by law.

Section 23.01(a) provides that, “[e]xcept as otherwise provided by this chapter, all taxable property
is appraised at its market value as of January 1.” In its charge, the trial court defined market value
and further instructed the jury that market value “shall be determined by the application of generally
accepted appraisal methods and techniques” as set out in Section 23.01(b). Chapter 23, subchapter
B sets out special appraisal provisions. The jury was instructed on the special appraisal provisions
for oil and gas interests in Section 23.175.
       The charge follows the relevant provisions set out in the Texas Tax Code and provides
instructions and definitions to enable the jury to render a verdict. See TEX . R. CIV . P. 277. The jury
heard evidence on the value of Averitt’s oil and gas interests using the provisions set out in
Section 23.175. The jury further heard evidence on the value of Averitt’s interests using other
accepted appraisal methods. The jury was instructed to find the market value as required by law and
was given the provisions of Section 23.175 as requested by Averitt. The trial court did not abuse its
discretion in charging the jury. Moreover, Averitt has not shown that the charge probably caused
the rendition of an improper judgment. Averitt’s first issue on appeal is overruled.
       In his second issue on appeal, Averitt argues that the evidence was conclusive that the
appraisals conducted by Capitol for the District “did not comply with [Section] 23.175, so that the
jury’s verdict to the contrary was error.” In Question No. 2, the trial court asked the jury whether,
for the tax years in question, the District’s appraisals failed to comply with Section 23.175. The


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charge again contained the provisions set out in Section 23.175. The jury answered “no” on every
interest owned by Averitt for each tax year in question.
       Latham testified that he prepared separate appraisals using both Section 23.175 and other
accepted appraisal methods. Latham stated that the appraisals using the provisions of Section 23.175
resulted in a value that exceeded market value. TEX . CONST . art. VIII, § 20 provides in part:
                No property of any kind in this State shall ever be assessed for ad valorem taxes at
        a greater value than its fair cash market value nor shall any Board of Equalization of any
        governmental or political subdivision or taxing district within this State fix the value of any
        property for tax purposes at more than its fair cash market value.

The jury heard evidence on the values prepared by Latham using the provisions of Section 23.175.
Latham acknowledged that the values exceeded market value violating state law. Latham stated that
he also prepared appraisals using accepted appraisal methods to arrive at market value. The evidence
does not conclusively establish that the District failed to comply with Section 23.175. Averitt’s
second issue on appeal is overruled.
       In his third issue on appeal, Averitt contends that, “because Mr. Latham’s expert testimony
was conclusory on its face, [appellees] failed to offer legally sufficient evidence of any kind of
value.” The District argues that Averitt has not preserved his complaint for review, citing TEX . R.
APP . P. 33.1(d). In Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233
(Tex. 2004), the court stated:
               We therefore conclude that when a reliability challenge requires the court to
       evaluate the underlying methodology, technique, or foundational data used by the
       expert, an objection must be timely made so that the trial court has the opportunity
       to conduct this analysis. However, when the challenge is restricted to the face of the
       record for example, when expert testimony is speculative or conclusory on its face
       then a party may challenge the legal sufficiency of the evidence even in the absence
       of any objection to its admissibility.

Averitt argues that Latham’s testimony was conclusory on its face; therefore, we will consider his
complaint on appeal.
       Latham testified without objection to his expertise and qualifications. Latham testified in
great detail how he arrived at the appraisal values for Averitt’s oil and gas interests. Latham
explained that he valued the property using accepted appraisal methods. Latham testified at length


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regarding the methods and techniques he used to appraise Averitt’s properties. Averitt also
conducted extensive cross-examination of Latham regarding his appraisal techniques. Latham also
gave his appraisal values using Section 23.175, and he explained that these values exceeded market
value. The evidence does not support Averitt’s argument that Latham’s testimony was conclusory
and, therefore, legally insufficient. Averitt’s third issue on appeal is overruled.
       The judgment of the trial court is affirmed.




                                                               JIM R. WRIGHT
                                                               CHIEF JUSTICE


April 2, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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