                               COURT OF APPEALS FOR THE
                           FIRST DISTRICT OF TEXAS AT HOUSTON



                               ORDER OF ABATEMENT

Appellate case name:          J. Frederick Welling & 57 Off Memorial Apartments, LP v.
                              Harris County Appraisal District & The Appraisal Review
                              Board of Harris County Appraisal District

Appellate case number:        01-11-00874-CV

Trial court case number:      2010-68613

Trial court:                  190th District Court of Harris County, Texas

        Appellants, J. Frederick Welling and 57 Off Memorial Apartments, LP (Welling),
filed suit in district court against the Harris County Appraisal District challenging the
appraised value of property pursuant to Chapter 42 of the Texas Property Tax Code.
HCAD filed a plea to the jurisdiction alleging that Welling had failed to fully or
substantially comply with the tax payment provisions of section 42.08(b) of the tax code,
which, subject to section 42.08(d), reqmres "a property owner who appeals [to] pay
taxes in the amount required by this subsection before the delinquency date or the
property owner forfeits the right to proceed to a final determination of the appeal." TEx.
TAX CODE ANN. § 42.      . lngW.ell"
                    " 08(b)     responded that" he was excused from the requirement
that he prepay taxes under section 42. 08(d)    " allows a taxpayer to "be excused from
                                            , which
the requirement of prepayment of tax as a prerequisite to appeal if the court finds that
such prepayment would constitute an unreasonable restraint on the party’s right of access
!o th.e. courts." Id. § 42.0.8(d). In support of this contention, Welling filed an oath. of
 nablhty to pay and a motion to determine substantial compliance, as required by section
42.08(d). The trial court determined that Welling did not pay any taxes on the subject
property before the delinquency date, that by failing to follow the statutorily mandated
payment procedure under section 42.08 Welling forfeited his right to appeal, and that the
trial court did not have jurisdiction over the appeal. Despite Wellings’ request for
additional findings on the. ssues of whether his prepayment was excusedunder section
42.08(d) and whether he substantially complied with that subsection, the trial court did
not include any findings or conclusions on these issues.

       After a trial judge has filed findings of fact and conclusions of law, a party may
request additional findings and conclusions. TEx. R. CIv. P. 298.. A trial court is required
to enter additional findings on the ultimate or controlling issues. Buckeye Retirement
Co., LLC, Ltd. v. Bank of America, N.A., 239 S.W.3d 394, 402 (Tex. App.--Dallas2007,
no pet.). Harm is presumed when a trial court fails to make sufficient findings of fact,
unless the appellate court can determine from the face of the record that the appellant
suffered no harm. White v. Harris-White, No. 01-07-00521-CV, 2009 WL 1493015, at
*6 (Tex. App.--Houston [lst Dist.] May 28, 2009, pet. denied) (citing Panchal v.
Panchal, 132 S.W.3d 465, 466-67 (Tex. App.--Eastland 2003, no pet.)). Harmful error
results from the failure to make sufficient findings of fact when the appellant is prevented
from making an appeal. Id. The remedy for such a harmful error is for the appellate
court to abate the appeal for the entry of additional findings and conclusions. Id.

        Here, the. trial court did not make findings on whether the prepayment of taxes
requirement was an unreasonable restraint on Welling’s access to the courts such that he
may be excused from this requirement under section 42.08(d) (as opposed to 42.08(b)), or
whether Welling substantially complied with section 42.08(d) These are controlling
issues in this case and necessary to understanding the trial court’s judgment, and all of
Welling’s points of error on appeal relate to whether he was excused from prepayment of
taxes under section 42.08(d) and whether he substantially complied with that subsection.

        Abatement for additional findings of fact and conclusions of law 1s necessary to
allow Welling to present his appeal and, accordingly, we abate the appeal and remand the
case for entry of additional findings of fact and conclusions of law. The trial court as
directed to make written findings and conclusions on: (1) whether Welling timely-filed
his oath of inability to pay; (2) whether, under section 42.08(d), the requirement of
prepayment of taxes would constitute an unreasonable restraint on Welling’s right of
access to the courts such that he may be excused from that requirement; (3)whether
Welling substantially complied with section 42.08(d); and (4) any other matters the trial
court deems relevant or necessary. The written findings and conclusions of the trial court
shall be included in a supplemental clerk’s record and sent to this Court within 30 days
of the date of this order.


       It is so ORDERED.

Judge’s signature:/s/Rebeca Huddle
                1-¢1 Acting individually       Acting for the Court

Date: November 20, 2012
