      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00753-CV



       Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott,
              in his official capacity as Texas Attorney General, Appellants

                                                   v.

             Texas Small Tobacco Coalition and Global Tobacco, Inc., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
     NO. D-1-GN-13-002414, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                                             ORDER


                On November 15, 2013, the trial court issued an injunction in favor of Texas

Small Tobacco Coalition and Global Tobacco, Inc., appellees and plaintiffs below, declaring a

statute to be unconstitutional. The State appealed, and on January 9, 2014, appellees filed in the trial

court a Motion for Hardship Exemption from Payment of Unconstitutional Tax During State’s

Appeal, asking the trial court to grant them a hardship exemption from the requirement that they

continue to pay the disputed taxes during the appeal and asserting that if they are required to continue

paying the disputed tax, they will in all likelihood be driven out of business in Texas. The State

opposed the motion, arguing that the trial court’s plenary power had expired and that the court thus

had no jurisdictional basis to award the requested relief. The trial court heard the motion and, on

February 12, 2014, signed an order dismissing appellees’ motion for lack of jurisdiction. Appellees

have filed a motion asking this Court to review the trial court’s determination that it had no
jurisdiction to consider the motion for a hardship exemption. Appellees argue that because the trial

court retains the authority to set and adjust a supersedeas bond while the appeal is pending, see

Tex. R. App. P. 24.2, the court had the authority to use that power, in conjunction with section

112.108 of the tax code, to “deny[] the State’s supersedeas.” See Tex. Tax Code § 112.108. They ask

us either to enter an order under section 112.108 excusing them from paying the disputed taxes

during the pendency of the appeal or to direct the trial court to determine their motion on the merits.

                If the State appeals from a trial court’s ruling under the tax code, the taxpayer must

continue to pay taxes under protest as the taxes become due during the appeal. Id. § 112.057(a). In

subchapter C of the tax code, which governs a suit for an injunction prohibiting the assessment or

collection of a tax, section 112.108 states that a trial court may not issue relief related to the

constitutionality of a statute other than a restraining order or injunction issued under subchapter C.

Id. § 112.108. Section 112.108 further states that:


        after filing an oath of inability to pay the tax, penalties, and interest due, a party may
        be excused from the requirement of prepayment of tax as a prerequisite to appeal if
        the court, after notice and hearing, finds that such prepayment would constitute an
        unreasonable restraint on the party’s right of access to the courts.


Id. It is upon that provision that appellees relied before the trial court and upon which they rely here

in asking this Court to review the trial court’s decision. However, appellees did not seek to avail

themselves of that provision while the trial court still had plenary power to act.1


       1
          A trial court retains plenary power for thirty days after (1) it signs a final judgment or (2)
the overruling, whether by order or by operation of law, of a timely postjudgment motion that
operates to extend the court’s plenary power. See Tex. R. Civ. P. 329b. Even after its plenary power
expires, the trial court retains jurisdiction to make orders related to supersedeas under rule 24 of the
rules of appellate procedure. See Tex. R. App. P. 24.3(a).

                                                    2
                Here, the trial court signed the final judgment on November 15, 2013, and because

no relevant postjudgment motions were filed, its plenary power expired thirty days later. Appellees

filed their motion for a hardship exemption on January 9, 2014. Appellees did not seek relief

pursuant to a proper motion under rule 24, which governs how a judgment debtor may supersede the

trial court’s judgment by posting a bond or other security. See Tex. R. App. P. 24.1, 24.2.2 Instead,

they relied on section 112.108’s hardship exemption but asserted that the trial court should consider

that provision to be akin to rule 24 and, thus, exercise jurisdiction under its rule 24 power.

                As the trial court explained, rule 24 does not include a hardship exemption and

instead provides a limited exception to the general rule that trial courts lose plenary power thirty days

after signing a final judgment or overruling a postjudgment motion and applies only when a party

properly invokes the trial court’s authority under rule 24. Section 112.108 does not implicate rule

24, and appellees did not file a motion that could give the trial court extended power under that rule.

We agree with the trial court that appellees’ motion “pleads itself out of jurisdiction by arguing a

basis that cannot be considered and requesting relief the court cannot grant.” The trial court did not

err in determining that it lacked jurisdiction to consider appellees’ motion.

                As for appellees’ request that we consider the merits of their motion for a hardship

exemption, we agree with the State that a request for an exemption under section 112.108 must be


        2
          Rule 24.2 governs how the amount of security is determined and provides that in a suit for
recovery of money, the amount of supersedeas may not exceed 50% of a judgment debtor’s current
net worth. See id., R. 24.2(a)(1)(B). In a suit for something other than money or property, the
amount of security must adequately protect the judgment creditor’s interests, and the trial court may
decline to allow the judgment to be superseded if the judgment creditor posts security that will
protect the judgment debtor’s interests. Id. R. 24.2(a)(3).

                                                   3
heard by the trial court. As the State observes, the language used in section 112.108 shows that a

hardship exemption must be sought from the trial court. See Tex. Tax Code § 112.108 (party may

be excused from prepayment of tax during appeal if “the court, after notice and hearing, finds that

such prepayment would constitute an unreasonable restraint on the party’s right of access to the

courts,” and “[t]he court may grant such relief as may be reasonably required by the circumstances”

(emphasis added)).3 We cannot step into the shoes of the trial court, hold a hearing, and consider

the merits of a motion under section 112.108.4 Our power related to the suspension of a judgment

on appeal is generally limited to reviewing a trial court’s decision on a motion related to supersedeas

under rule 24. See Tex. R. App. P. 24.4. Therefore, we deny appellees’ request that we determine

the merits of their section 112.108 motion.




        3
          Throughout chapter 112, “the court” refers to the trial court hearing a taxpayer suit; it never
refers to an appellate court. See Tex. Tax Code §§ 112.001 (Travis County district courts have
exclusive, original jurisdiction over taxpayer suits under chapter 112), .053(c) (original petition in
taxpayer suit is filed “with the court”), .056 (amended petition does not “prevent the court from
exercising its power to consolidate or sever suits and claims”), .1011 (“[a] court may not issue”
restraining order or injunction unless taxpayer satisfies certain requirements, and “the court” shall
determine whether complained-of taxes are due to State), .105 (if taxpayer violates chapter 112,
subchapter C, State may file affidavit explaining violation, and “clerk of the court shall give notice
to the [taxpayer] to appear before the court to show cause” why order or injunction should not be
dismissed; if during hearing court finds that taxpayer failed to comply with subchapter C, “the court
shall dismiss” the application and dissolve injunction), .151 (explaining what must be attached to
original petition for refund and stating that petition and documents are “filed with the court”).
        4
          It is not for this Court to effectively rewrite a statute based on appellees’ assertions that
they did not have the required information to seek a hardship exemption until after the time to file
the motion had run. Such a decision must be made by the legislature.

                                                   4
                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Goodwin, and Field
 Dissenting Opinion by Justice Field

Filed: April 25, 2014




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