Affirmed and Memorandum Opinion filed July 2, 2015.




                                    In The

                   Fourteenth Court of Appeals

                            NO. 14-14-00187-CV

                 HERITAGE OPERATING, L.P., Appellant
                                      V.
   BARBER HILL INDEPENDENT SCHOOL DISTRICT, CHAMBERS
      COUNTY, AND THE CITY OF MONT BELVIEU, Appellees

                  On Appeal from the 344th District Court
                        Chambers County, Texas
                     Trial Court Cause No. CV24078

                 MEMORANDUM OPINION

      Barber Hill Independent School District, Chambers County, and the City of
Mont Belvieu (“the Taxing Units”) sued Heritage Operating, L.P. (“Heritage”) to
recover delinquent and unpaid taxes. In one issue, Heritage appeals the trial
court’s judgment granting summary judgment in favor of the Taxing Units and
denying Heritage’s motion for summary judgment. We affirm.
                                  I. BACKGROUND

      Heritage owns personal property in Chambers County, Texas, consisting of
inventory stored in an underground storage facility referred to as the “Mont
Belvieu Storage Facility.” The record indicates that Heritage paid taxes on the
property for the 2003-2007 tax years, with the exception of 2004. For that one
year, Heritage claimed it did not receive notice of appraisal.

      The Taxing Units sued Heritage for the 2004 taxes it claimed were
delinquent, seeking over $800,000 in taxes, penalties and interest.         Heritage
answered, filing “special pleas” and a counterclaim seeking a declaration that the
2004 tax was void because the Taxing Units did not add the previously-omitted
property pursuant to Section 25.21 of the Texas Tax Code. See Tex. Tax Code
Ann. § 25.21 (West, Westlaw through 2015 R.S.).

      Heritage filed both a no-evidence and a traditional motion for summary
judgment to which the Taxing Units responded. The trial court denied the two
motions. Heritage filed a third and fourth no-evidence and traditional motion for
summary judgment, to which the Taxing Units responded. The Taxing Units also
moved for traditional motion for summary judgment. Heritage objected to the
affidavits supporting the Taxing Units’ traditional motion and responded.

      The trial court granted the Taxing Units’ motion for summary judgment and,
two months later, signed a “final summary judgment” granting the Taxing Units’s
traditional motion for summary judgment, incorporating its denial of all motions
filed by Heritage and denying all other relief.

                             II. SUMMARY JUDGMENTS

      In one issue, Heritage contends the trial court erred (1) in granting the
Taxing Units’ traditional motion for summary judgment because Heritage rebutted

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the presumption within Texas Tax Code Section 33.47(a), and (2) in denying
Heritage’s motion for summary judgment because Heritage did not receive notice
as required by Texas Tax Code Section 25.19. See Tex. Tax Code Ann. §§ 25.19,
33.47(a) (West, Westlaw through 2015 R.S.). In its appellate brief, Heritage does
not identify which of its four motions the trial court erred in denying. Heritage
also asserts that “the grounds upon which Heritage sought summary judgment and
the grounds upon which Heritage defended against the Taxing Units’ motion for
summary judgment are interrelated,” and it addresses collectively the grounds in
the parties’ motions and responses.

A.    Standard of Review

      When parties file cross-motions for summary judgment and the trial court
has granted one and denied the other, we may consider the propriety of the grant,
as well as the denial, of both motions and affirm or reverse accordingly. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)); Cullins v.
Foster, 171 S.W.3d 521, 529 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)
(citing Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 (Tex.
App.—Houston [14th Dist.] 2003, no pet.)). If the facts are undisputed and we
consider a question of law, we will affirm the judgment or reverse and render.
Cullins, 171 S.W.3d at 530.

      When both parties move for summary judgment, we must review the
summary-judgment evidence presented by both sides to determine the questions
presented, and render the judgment the trial court should have rendered. Gilbert
Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex.
2010); Expro Americas LLC v. Sanguine Gas Exploration, LLC, 351 S.W.3d 915,
919 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). In the case of cross-

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motions for summary judgment, each party must establish it is entitled to judgment
as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356
(Tex. 2000).

      A plaintiff moving for traditional summary judgment must conclusively
establish all essential elements of its claim. Cullins, 171 S.W.3d at 530 (citing
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)). If the movant establishes a
right to summary judgment, the nonmovant bears the burden to present evidence
raising an issue of material fact. M.D. Anderson Hosp. & Tumor Inst. v. Willrich,
28 S.W.3d 22, 23 (Tex. 2000).

      We review de novo a summary judgment. See Ferguson v. Bldg. Materials
Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam). When reviewing a
summary judgment, we take as true all evidence favorable to the nonmovant and
we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Valence, 164 S.W.3d at 661.

B.    Motions for Summary Judgment

      The Taxing Units filed a traditional motion for summary judgment relying
on Texas Tax Code Section 33.47(a). See Tex. Tax Code Ann. § 33.47(a). As
supporting evidence, they attached certified copies of the delinquent tax rolls
identifying the property taxed, the amount of tax imposed, the correct amount of
the tax alleged to be delinquent and confirmation that the taxes were not paid.
Thus, the Taxing Units established a prima facie case “as to every material fact
necessary to establish its cause of action.” See City of Bellaire v. Sewell, 426
S.W.3d 116, 120 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing Maximum
Med. Improvement, Inc. v. County of Dallas, 272 S.W.3d 832, 835 (Tex. App.—
Dallas 2008, no pet.)) (other citations omitted).


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       In response to the Taxing Units’ traditional motion, Heritage asserted it did
not receive notice of appraisal as required by Section 25.19 and the failure to
receive that notice of appraisal rebutted the presumption found in Section 33.47(a).

       Heritage filed four no-evidence and traditional motions for summary
judgments. In its first two motions, Heritage argued that the Taxing Units did not
add the previously-omitted property as required by Section 25.21(a); therefore, the
Taxing Units could not prevail on their suit to recover delinquent taxes. See Tex.
Tax Code Ann. § 25.21(a) (West, Westlaw through 2015 R.S.). Heritage’s third
and fourth motions also relied on the Section 25.21(a) argument and added that the
Taxing Units failed to provide notice of appraised value pursuant to Section 25.19,
thus depriving Heritage of due process.1 See id.

       In its response to Heritage’s motions for summary judgment, the Taxing
Units urged they complied with Sections 25.21(a) and 25.19 and Heritage was
afforded due process because it could have filed a protest pursuant to Texas Tax
Code Sections 41.44 and 41.411. See id.

                                        III. ANALYSIS

       The chief appraiser’s listing of all taxable property and its appraised value
constitutes the tax roll. See Tex. Tax Code Ann. § 25.01 (West, Westlaw through
2015 R.S.). It is the duty of the chief appraiser to prepare and certify to the
assessor for each taxing unit the appraisal rolls listing property subject to taxation.
See id. § 26.01 (West, Westlaw through 2015 R.S.). The appraisal roll, including


       1
          Section 25.21(a) provides: “If the chief appraiser discovers that . . . personal property
was omitted from an appraisal roll in one of the two preceding years, he shall appraise the
property as of January 1 of each year that it was omitted and enter the property and its appraised
value in the appraisal records.” Tex. Tax Code Ann. § 25.21. Section 25.19(a) provides
generally that the chief appraiser must deliver notice of appraised value for property other than a
single-family resident by May 1. See Tex. Tax Code Ann. § 25.19(a).

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the amounts of tax, constitutes the taxing unit’s tax roll. See id. § 25.24 (West,
Westlaw through 2015 R.S.). After the chief appraiser certifies the appraisal roll,
the taxing unit then prepares and mails a tax bill to each person whose name is
listed on the tax roll. See id. § 31.01 (West, Westlaw through 2015 R.S.). At any
time a tax becomes delinquent, a taxing unit may file suit to collect the tax. See id.
§§ 33.41, 33.43 (West, Westlaw through 2015 R.S.). Because collection of a tax
constitutes deprivation of property, the taxing unit must afford the taxpayer due
process of law. McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, Dept.
of Bus. Regulation of Fla., 496 U.S. 18, 36–7, 110 S.Ct. 2238, 2250–51, 110
L.Ed.2d 17 (1990).

      In a suit to collect delinquent taxes, Section § 33.47(a) provides:

      [T]he taxing unit’s current tax roll and delinquent tax roll or certified
      copies of the entries showing the property and the amount of the tax
      and penalties imposed and interest accrued constitute prima facie
      evidence that each person charged with a duty relating to the
      imposition of the tax has complied with all requirements of law and
      that the amount of tax alleged to be delinquent against the property
      and the amount of penalties and interest due on that tax as listed are
      the correct amounts.
Tex. Tax Code Ann. § 33.47(a).
      Where a taxing unit sues to recover delinquent taxes, Section 42.09 sets
forth the exclusive remedies for the property owner:

      (a) Except as provided by Subsection (b) of this section, procedures
      prescribed by this title for adjudication of the grounds of protest
      authorized by this title are exclusive, and a property owner may not
      raise any of those grounds:
             (1) in defense to a suit to enforce collection of delinquent
      taxes; or
            (2) as a basis of a claim for relief in a suit by the property
      owner to arrest or prevent the tax collection process or to obtain a
      refund of taxes paid.
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      (b) A person against whom a suit to collect a delinquent property tax
      is filed may plead as an affirmative defense:
             (1) . . . that the defendant did not own the property on which
      the tax was imposed on January 1 of the year for which the tax was
      imposed; or
             (2) . . . that the property was not located within the boundaries
      of the taxing unit seeking to foreclose the lien on January 1 of the year
      for which the tax was imposed.
Id. § 42.09 (West, Westlaw through 2015 R.S.).

      The grounds of protest referred to in Section 42.09(a) are found in Sections
41.411 and 41.44. See id. §§ 41.411, 41.44. Section 41.411 provides:

      (a) A property owner is entitled to protest before the appraisal review
      board the failure of the chief appraiser or the appraisal review board
      to provide or deliver any notice to which the property owner is
      entitled.
      (b) If failure to provide or deliver the notice is established, the
      appraisal review board shall determine a protest made by the property
      owner on any other grounds of protest authorized by this title relating
      to the property to which the notice applies.
      (c) A property owner who protests as provided by this section must
      comply with the payment requirements of Section 41.4115 or the
      property owner forfeits the property owner’s right to a final
      determination of the protest.
Id. § 41.411 (emphasis added).

      Section 41.44(a)(2) requires that a property owner must file a written notice
of protest with the appraisal review board “before June 1 or not later than the 30th
day after the date that notice was delivered to the property owner as provided by
Section 25.19 . . . whichever is later.” Id. § 41.44(a)(2) (West, Westlaw through
2015 R.S.).    Section 41.44(c-3) also provides the property owner a further
opportunity for protest:



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      Notwithstanding Subsection (c), a property owner who files a protest
      under Section 41.411 on or after the date the taxes on the property to
      which the notice applies become delinquent, but not later than the
      125th day after the property owner, in the protest filed, claims to have
      first received written notice of the taxes in question, is entitled to a
      hearing solely on the issue of whether one or more taxing units timely
      delivered a tax bill.
Id. § 41.44(c-3) (West, Westlaw through 2015 R.S.).

      In the case before us, the Taxing Units introduced the tax records described
in Section 33.47(a), thereby creating a rebuttable presumption that the taxes were
due, delinquent, and unpaid. See City of Bellaire, 426 S.W.3d at 120. The burden
then shifted to Heritage to proffer competent summary judgment evidence that it
paid the taxes, did not own the property, or assert other applicable defenses. See
id.

      In its response to the Taxing Units’ motion for summary judgment, Heritage
argued it did not receive notice of the appraised value pursuant to Section 25.19.
Heritage contended that, because it did not receive notice of appraisal, the Taxing
Units had not “complied with the law,” the presumption of Section 33.47(a) did not
attach and the Taxing Units did not conclusively establish their claim for
delinquent taxes. We disagree because it is undisputed that Heritage received the
tax bill in 2007 and was required to exhaust its administrative remedies in order to
raise this issue to defeat a summary judgment.

      Section 25.19 requires the chief appraiser to provide notice of appraised
value. Tex. Tax Code Ann. § 25.19. In addition, Section 41.411(a) provides that a
property owner may protest “the failure of the chief appraiser or the appraisal
review board to provide or deliver any notice to which he property owner is
entitled.” Id. 41.411(a). If the property owner is dissatisfied with the review
board’s decision of his protest, Section 42.01 provides that the property owner may

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seek judicial review of the order. See id. § 42.01(a)(1)(A). Those administrative
procedures established for challenging matters associated with ad valorem
taxation, such as valuation and notice, are exclusive and must be exhausted before
the property owner can seek judicial review. See id. § 42.09. In particular, as
quoted above, Section 42.09(a) states that a property owner may not raise any of
the grounds of protest in a defense to a suit to enforce collection of delinquent
taxes. See id. § 42.09(a)(1); Waobikeze v. Fort Bend County, No. 01-13-00181-
CV, 2014 WL 4345085, at *2 (Tex. App—Houston [1st Dist.] Aug. 29, 2014, no
pet.) (mem. op.) (concluding that a taxpayer’s failure to protest determination of
appraised value pursuant to statutory scheme precludes due process attack
regarding tax assessments).

      The failure to exhaust the exclusive administrative procedures of the Tax
Code precludes courts from reviewing complaints associated with taxation issues
and “deprives the property owner of the right to raise such protest as a defense
against a suit to enforce collection of delinquent taxes.” Waobikeze, 2014 WL
4345085, at *3 (citing Nevada Gold & Silver, Inc. v. Andrews Indep. Sch. Dist.,
225 S.W.3d 68, 76 (Tex. App.—El Paso 2005, no pet); Denton Central Appraisal
Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 265 (Tex. App.—Dallas 2003, pet.
denied), cert. denied, 125 S.Ct. 106, 543 U.S. 869, 160 L.Ed.2d 115 (2004))
(holding that a taxpayer must comply with the Tax Code’s protest procedures,
including a situation wherein the taxpayer alleged it was not provided notice of
appraised value pursuant to Section 25.19 of the Tax Code).

      Heritage could have protested its claims, but there is no evidence in the
record that it did so. Because Heritage failed to address its omitted property and
lack-of-notice claims within the administrative framework, it may not raise these
issues to defeat the Taxing Units’ motion for summary judgment. See Tex. Tax

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Code Ann. § 42.09; Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 501 (Tex.
2006) (concluding taxpayer’s failure to operate within administrative framework
“deprives the courts of jurisdiction to decide most matters relating to ad valorem
taxes.”) (citing Matagorda Cnty. Appraisal Dist. v. Coastal Liquids Partners, L.P.,
165 S.W.3d 329, 331 (Tex. 2005) (other citations omitted); MAG-T, L.P. v. Travis
Cent. Appraisal Dist., 161 S.W.3d 617, 630–32 (Tex. App.—Austin 2005, pet.
denied) (holding that Sections 41.41 and 41.411 are the exclusive remedies
available to the taxpayer to challenge taxing authority action, including notice
required under Section 25.19)).

       Additionally, it is undisputed that Heritage received the actual tax bill in
December 2007.2          Under Section 31.04(a-1), the 2004 taxes would not have
become delinquent until February 1, 2009. See Tex. Tax Code Ann. § 31.04(a-1)
(West, Westlaw through 2015 R.S.)3 Therefore, Heritage would have had until
January 31, 2008 to exhaust administrative remedies under Section 41.411. See id.
§ 41.411. Because the Tax Code provided Heritage the opportunity to be heard, its
lack-of-due-process claim is without support. To adopt the argument Heritage
advances “would defeat the entire tax scheme the code sets out for protesting and
appealing actions of the taxing authorities.” See MAG-T, 161 S.W.3d at 632

       2
          The record also reflects that Heritage relied on the Taxing Units’ answers to requests
for admission where the Taxing Units admitted: the omitted property was added to the appraisal
records in December 2006; and Heritage protested the addition of omitted property, indicating
Heritage had knowledge of the property being added at some point on or after December 2006.
There was a hearing on May 15, 2007, the appraisal review board issued its order determining
the protest on that date, and the Taxing Units added the omitted property to the tax rolls on the
same date. The record does not reflect an attempt by Heritage to appeal the determination of the
appraisal review board.
       3
           Section 31.04(a-1) provides “If a tax bill is mailed that includes taxes for one or more
preceding tax years because the property was erroneously omitted from the tax roll in those tax
years, the delinquency date provided by Section 31.02 is postponed to February 1 of the first year
that will provide a period of at least 180 days after the date the tax bill is mailed in which to pay
the taxes before they become delinquent.” Tex. Tax Code Ann. § 31.04(a-1).

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(concluding taxpayer received due process when afforded an opportunity to protest
defective notice); Dan’s Big & Tall Shop, Inc. v. County of Dallas, 160 S.W.3d
307, 312 (Tex. App.—Dallas 2005, pet. denied) (holding taxpayer received actual
notice from the taxing authority when it received the tax bill and taxpayer forfeits
protest rights if it does not comply with the provisions of the Tax Code).

      Heritage claimed its situation fell within a “gap” which precluded it from
filing a written protest, relying on Industrial Communications, Inc. v. Ward County
Appraisal Dist., 296 S.W.3d 707, 715–717 (Tex. App.—El Paso 2009, pet.
denied), in which the court concluded that certain provisions of the Tax Code
failed to provide adequate due process protection for a taxpayer who does not
receive notice in time to file a protest within the parameters of Section 41.411.
Industrial involved a taxpayer’s claim that it did not receive notice of appraised
value pursuant to the Tax Code and, therefore, it was prevented from exhausting
administrative remedies. Id., 296 S.W.3d at 712. However, the Industrial court
considered a pre-2008 version of the Tax Code which, under the facts of that case,
precluded the taxpayer from pursuing remedies it had regarding its lack of notice
of the tax bill upon which the taxing authority filed its suit for delinquency. Id.,
296 S.W.3d at 714–717. The facts considered in Industrial differ from those at
issue here for two reasons: (1) Industrial involved a pre-2008 version of the Tax
Code; and (2) the taxpayer did not receive notice of the tax bill. See id. Here, the
record reflects that Heritage received the tax bill in May of 2007, the Taxing Units
filed suit on April 7, 2008, and Heritage was served.

      Heritage does not dispute it received notice of the taxes. Thus, without
deciding whether Heritage received notice of appraised value, Section 41.44(c-3)
provided an opportunity for Heritage to file a written protest of its appraisal and
notice complaints not later than the 125th day after it received notice of the taxes.

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See Tex. Tax Code Ann. 41.44(c-3). The record does not contain evidence that
Heritage availed itself of the exclusive remedies set forth in the Tax Code. See Rio
Valley, LLC v. City of El Paso, 331 S.W.3d 482, 489 (Tex. App.—El Paso 2014,
no pet.) (holding effective date of Section 41.44(c-3), January 1, 2008, removed
the “gap” of the prior version of the Tax Code and property owner is required to
exhaust administrative remedies).

      In sum, it is undisputed that Heritage did not exhaust the administrative
remedies set forth in the Tax Code. After Heritage received actual notice of the
2004 tax bill or of the suit to recover delinquent taxes, it was required to exhaust
administrative remedies before asserting its lack-of-notice as a response to the
Taxing Units’ motion for summary judgment. See Morris v. Houston Independent
School Dist., 388 S.W.3d 310, 313 (Tex. 2012) (per curiam) (holding that Section
42.09 established a detailed set of exclusive procedures which property owners
must exhaust before raising grounds of protest in defense of the suit to collect
delinquent taxes); Thames Shipyard & Repair Co. v. Galveston Central Appraisal
Dist., No. 14-11-00691-CV, 2011 WL 5042836, at *3 (Tex. App.—Houston [14th
Dist.] Oct. 25, 2013, no pet.) (per curiam) (mem. op.) (holding that, even though
notice did not allow taxpayer thirty days to protest under Section 41.44, taxpayer
was required to exhaust administrative remedies pursuant to Section 41.411);
Public, Inc. v. County of Galveston, 264 S.W.3d 338, 342–33 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (holding trial court lacked jurisdiction to
consider notice complaints where taxpayer did not follow administrative
procedures).

      We conclude that Heritage did not proffer evidence contesting the
presumption created by Section 33.47 and the Taxing Units conclusively
established they were entitled to summary judgment. The trial court properly

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granted the Taxing Units’ traditional motion for summary judgment.

      Additionally, because we hold the trial court did not err in granting the
Taxing Units’ motion for summary judgment, we need not address the merits of
Heritage’s motions for summary judgment.            Even if meritorious, none of the
arguments raised in Heritage’s motions for summary judgment entitle it to
judgment because Heritage did not exhaust the exclusive administrative remedies
in the Tax Code. See ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal
Dist., 137 S.W.3d 146, 152 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(holding the taxpayer’s failure to pursue and exhaust administrative remedies
deprives the trial court of jurisdiction).

      We overrule Heritage’s sole issue and affirm the judgment of the trial court.




                                         /s/      John Donovan
                                                  Justice



Panel consists of Justices Christopher, Donovan, and Wise.




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