      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-04-00151-CV



  MAG-T, L.P., d/b/a Maund Toyota; Uplink Corp.; Shoal Creek Dental Group, L.L.P.;
                       and GH Contracting, Inc., Appellants

                                                 v.

   Travis Central Appraisal District, Travis County Appraisal Review Board, and Nelda
     Wells Spears, in her capacity as Travis County Tax Assessor-Collector, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. GN400278, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                                          OPINION


               Appellants (the Taxpayers) sued the appellees, the Travis Central Appraisal District,

the Travis County Appraisal Review Board, and the Tax Assessor-Collector (the Taxing

Authorities),1 alleging the Taxing Authorities had improperly increased the Taxpayers’ property

taxes after the appraisal role had been certified. The Taxpayers asserted that they were excused from

exhausting the administrative remedies provided in the tax code by at least one of five exceptions

established in Texas jurisprudence. The district court found that the Taxpayers had not exhausted



       1
           Because their interests are often aligned, we refer to appellees Travis Central Appraisal
District, Travis County Appraisal Review Board, and the Tax Assessor-Collector collectively as the
“Taxing Authorities.” When their interests diverge, we refer to the appellees individually.
their administrative remedies and dismissed the suit for lack of jurisdiction. For the reasons stated

below, we affirm the judgment of the district court.


                                          BACKGROUND

                The Taxpayers are various owners of commercial property located in Travis County.

In May 2003, the Travis Central Appraisal District (the Appraisal District) sent Notices of Appraised

Property Value to the Taxpayers for the 2003 tax year. The notices advised the Taxpayers of the

appraised value the Appraisal District placed on each commercial property and the associated

property tax due. The Taxpayers did not protest the appraisal values published in the May notices.

On July 24, 2003, the Travis County Appraisal Review Board (ARB) approved and the Chief

Appraiser certified the appraisal roll. In November 2003, the Tax Assessor-Collector issued tax

statements and initiated the collection process pursuant to her statutory authority.

                The tax code codifies the constitutional obligation of our state government to appraise

and assess property for taxation purposes.2 See Atascosa County v. Atascosa County Appraisal Dist.,

990 S.W.2d 255, 257 (Tex. 1999). It creates appraisal districts and requires each district to appraise

property for the ad valorem taxing units within the district. Id. The tax code also establishes an

appraisal review board for every appraisal district, which is governed by its board of directors and

appoints the chief appraiser. See Tex. Tax Code Ann. §§ 6.031-.035, 6.05(c), 41.04 (West 2001),


        2
           The Texas Constitution requires all real property, unless exempt, be taxed in proportion
to its value, which shall be ascertained as may be provided by law. See Tex. Const. art. VIII, § 1(b).
The same section requires that taxation be “equal and uniform.” See id. § 1(a). The constitution
further requires all property not rendered for taxation by its owner “shall be assessed at its fair value
by the proper officer.” See id. § 11. Article VIII, section 18, requires that a “single appraisal” within
each county of property subject to ad valorem taxation is to be provided by general law. See id. § 18.

                                                   2
§§ 6.03, 6.41 (West Supp. 2004-05). The chief appraiser prepares the appraisal records, which list

all taxable property in the district and associated appraised values. See Tex. Tax Code Ann. § 25.01

(West 2001). Generally, taxable property is appraised at its market value as of January 1. Following

notice to the property owner of appraised value, if required, the chief appraiser submits the

completed appraisal records to the ARB for review and determination of protests. See id. § 25.22.

The appraisal roll may not be changed once approved by the ARB, except as provided by section

25.25 (correction of errors), sections 41.01-41.71 (hearing of protests and challenges by ARB) and

sections 42.01-42.43 (judicial review). See id. § 25.25(a).

               The tax code sets forth the administrative procedures for aggrieved property owners

to protest their tax liabilities. See generally Tex. Tax Code Ann. §§ 41.01-.42, 42.01-.22, 42.225-

.25, 42.28, 42.29, 42.42 (West 2001), 41.43, 42.221, 42.26, 42.41 (West Supp. 2004-05). The tax

code allows a property owner to protest, among other action, the appraised value of the owner’s

property, the inclusion of the property on the appraisal records, and any other action of the chief

appraiser, appraisal district, or ARB that applies to and adversely affects the property owner. Tex.

Tax Code Ann. §§ 41.41(a)(1), (3), (9) (West 2001). After the property owner receives notice of a

change, the property owner has 30 days to file a protest. Id. § 41.44(a)(2). A property owner who

files a protest after this deadline, but before the appraisal board approves the appraisal records, may

still obtain a hearing and a determination of the protest upon a showing of good cause for its failure

to file a timely protest. See id. § 41.44(b). The tax code contains provisions for review board

hearing procedures including provisions for the issuance of subpoenas and taking of evidence. See

id. §§ 41.61-.71.


                                                  3
               A property owner is also entitled to protest the failure of the Taxing Authorities to

give the proper notice to which a property owner is entitled. See id. § 41.411(a). If the failure to

deliver such notice is established, the ARB must then determine the property owner’s protest on its

merits. Id. § 41.411(b). The Code provides that a property owner who files a notice of protest

regarding the appraisal district’s failure to provide or to deliver any notice to which the property

owner is entitled has a right to a hearing and a determination of the property owner’s protest if the

owner (1) pays the amount of the taxes due on the portion of the taxable value of the property that

is not in dispute before the delinquency date, and (2) files its notice of protest before the date the

taxes on the property to which the notice applies becomes delinquent. See id. §§ 41.411, 41.44(c),

42.08(b).

               The legislature amended section 22.23(c) of the tax code to encourage property

owners to submit tangible personal property for taxation that had been previously omitted from the

appraisal rolls. See Tex. Tax Code Ann. § 22.23(c) (West Supp. 2004-05). Normally, the chief

appraiser has the authority to assess back-taxes for personal property that had been omitted from the

appraisal roll in either of the two preceding years. See id. § 25.21. However, under the section

22.23(c) amendment, if taxpayers rendered their property by the December 1, 2003 deadline, they

were granted “amnesty,” which means that their previously omitted property would be exempt from

retroactive taxation for the 2001 and 2002 tax years. See id. § 22.23(c).

               The Taxpayers took advantage of the section 22.23(c) amnesty provision and timely

filed amnesty renditions by the December 1, 2003 deadline after the Taxpayers’ property had already

been assessed for taxes. Thus, the appraisal value upon which their original 2003 tax bill was based


                                                  4
did not include the value of the personal property disclosed in the amnesty renditions filed later in

2003. Accordingly, the Appraisal District prepared supplemental appraisal records that were

approved by the ARB, and issued new appraisal notices for the 2003 tax year that included increased

property appraisals encompassing the previously omitted property.

               The new Notices of Appraisal, dated January 6, 2004 (January 6 Notices), were

received by the Taxpayers on or about January 14. The new notices were in every respect the same

as the original notices received earlier in the 2003 tax year, save an upward adjustment in the

appraised property value and an increased tax bill reflecting the addition of the omitted property that

has been disclosed in the amnesty renditions.

               The January 6 notices informed the Taxpayers that they could protest the amended

appraisal before the ARB within thirty days of the notice under the administrative remedies provided

in chapters 41 and 42 of the tax code. See Tex. Tax Code Ann. §§ 41.01-.42, 42.01-.22, 42.225-.25,

42.28, 42.29, 42.42 (West 2001), 41.43, 42.221,42.26, 42.41 (West Supp. 2004-05). The Taxpayers

declined to do so. Instead, they filed suit in district court on January 30, seeking a temporary

restraining order, a temporary injunction, a permanent injunction, and a declaration that the

Taxpayers’ due process rights had been violated, that the Taxing Authorities violated Texas law and

acted without authority, and that the actions the Taxing Authorities took were null and void.

               The district court initially granted to the Taxpayers a temporary restraining order

enjoining the Taxing Authorities from appraising, assessing, or attempting to collect the disputed

additional property taxes. On February 4, the date of the temporary injunction hearing, the Tax




                                                  5
Assessor-Collector generated new tax bills that made the property taxes due on February 29. The

district judge denied the Taxpayers’ motion for temporary injunction on February 19 and entered the

order dismissing the Taxpayers’ petition for declaratory judgment on February 27.

               In its findings of fact and conclusions of law, the district court found that on or before

the December 1, 2003 deadline, the Taxpayers filed amnesty renditions with the Appraisal District

pursuant to section 22.23(c) and the Taxing Authorities delivered notices of appraised value that

were received by the Taxpayers on January 14, 2004. The district court also found that the

Taxpayers did not file a protest of the notices in question and did not exhaust the administrative

remedies provided by the tax code for complaining of the Taxing Authorities’ actions. The judge

dismissed the case for lack of jurisdiction, reasoning that the Taxpayers failed to exhaust the

administrative remedies contained in Chapters 41 and 42 of the tax code for protest and appeal of

the complained of actions. This appeal followed.


                                      Plea to the Jurisdiction

               The Taxpayers appeal the district court’s decision in one issue, whether the district

court erred when it granted the Taxing Authorities’ plea to the jurisdiction, and argue that at least

one of five exceptions applies to excuse the Taxpayers from having to exhaust their administrative

remedies before seeking judicial review.

               We begin our analysis with the assumption that a district court may hear and

determine any cause that is cognizable by courts of law or equity and may grant any relief that could

be granted by either courts of law or equity, unless a contrary showing is made. Tex. Const. art. V,



                                                   6
§ 8;3 Tex. Gov’t Code Ann. §§ 24.007-08 (West 2004); Subaru of America, Inc. v. David McDavid

Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). A plea to the jurisdiction challenges the district

court's authority to determine a cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). To invoke a court's authority, a plaintiff must allege facts that affirmatively

demonstrate that the court has jurisdiction to hear the cause. Texas Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Texas Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993). To prevail on a plea to the jurisdiction, the defendant must show an incurable

jurisdictional defect apparent from the face of the pleadings making it impossible for the plaintiff's

petition to confer jurisdiction on the district court. Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d

910, 914 (Tex. 1960); City of San Angelo v. Smith, 69 S.W.3d 303, 305 (Tex. App.—Austin 2002,

pet. denied). Courts must consider evidence when necessary to decide jurisdictional issues.

Miranda, 133 S.W.3d at 221; Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864,

868 (Tex. 2001); Blue, 34 S.W.3d at 554-55. If the relevant evidence is undisputed or fails to raise

a fact question on the jurisdictional issue, a district court rules on the plea to the jurisdiction as a

matter of law. Miranda, 133 S.W.3d at 228.

               We review the denial of a plea to the jurisdiction de novo. Id.; Texas Natural Res.

Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (citing Mayhew v. Town of




       3
           A district court has “exclusive, appellate and original jurisdiction of all actions,
proceedings, and remedies, except in cases where exclusive, appellate and original jurisdiction may
be conferred by this Constitution or other law on some other court, tribunal, or administrative body.”
See Tex. Const. art. V, § 8.

                                                   7
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). For purposes of this review, we liberally construe

the pleadings in favor of jurisdiction, looking to the plaintiff's intent. Miranda, 133 S.W.3d at 226.

                The intent of the administrative review process is to resolve the majority of tax

protests at the administrative level and to relieve the burden on the court system. Webb County

Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex. 1990). The corollary to this rule

is that judicial review of administrative orders is not available unless all administrative remedies

have been pursued to the fullest extent. See id. If an agency has exclusive jurisdiction to determine

a matter, a litigant’s failure to exhaust all administrative remedies before seeking judicial review of

the administrative body’s actions deprives the court of subject matter jurisdiction over claims within

the body’s exclusive jurisdiction, and the court must dismiss such claims without prejudice. Tex.

Gov't Code Ann. § 2001.171 (West 2000); Subaru, 84 S.W.3d at 221; Strayhorn v. Lexington Ins.

Co., 128 S.W.3d 772, 777 (Tex. App.—Austin 2004, pet. filed).

                The Taxing Authorities have exclusive jurisdiction over tax disputes and the

Taxpayers must exhaust their administrative remedies before seeking judicial review. E.g., General

Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1992) (taxpayer is

required to exhaust administrative procedures before challenging tax assessment); New Laredo

Hotel, 792 S.W.2d at 954 (taxpayer who failed to appear at administrative protest hearing deemed

to have failed to exhaust his administrative remedies, thus depriving district court of its jurisdiction

the hear the case); A.B.T. Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146,

152 (Tex. App.—Houston [1st Dist.] 2004, no pet h.) (taxpayer who did not timely file protest




                                                   8
deemed to have failed to diligently pursue or exhaust its administrative remedies under the tax code,

thus depriving district court of jurisdiction to hear claim); Dallas County Appraisal Dist. v. Lal, 701

S.W.2d 44, 46 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (taxpayer’s suit challenging excessive

property tax valuation dismissed for lack of jurisdiction because taxpayer failed to exhaust

administrative remedies). Therefore, the grant of a plea to the jurisdiction is only improper if the

Taxpayers’ case falls into one of the exceptions to the exhaustion of administrative remedies

doctrine.

               An aggrieved party is excused from exhausting its administrative remedies if certain

exceptions apply: (1) an administrative agency purports to act outside its statutory powers; (2) the

issue presented is purely a question of law; (3) certain constitutional issues are involved; (4) the

administrative remedies are inadequate and the exhaustion of administrative remedies would cause

irreparable injury; and (5) failure to provide the Taxpayers notice of appraised property value

deprives the Taxing Authorities of jurisdiction and voids the appraisal. Gibson v. Waco Indep. Sch.

Dist., 971 S.W.2d 199, 201-02 (Tex. App.—Waco 1998) (enumerating the exceptions), vacated on

other grounds, 22 S.W.3d 849 (Tex. 2000); see also Lexington Ins. Co., 128 S.W.3d at 780;

Appraisal Review Bd. of El Paso County Cent. Appraisal Dist. v. Fisher, 88 S.W.3d 807 (Tex.

App.—El Paso 2002, pet. denied); Larry Koch, Inc. v. Texas Natural Res. Conservation Comm'n,

52 S.W.3d 833, 839-40 (Tex. App.—Austin 2001, pet. denied).

               The Taxpayers assert that each exception applies to their case, excusing the Taxpayers

from having to exhaust their administrative remedies before seeking judicial review.




                                                  9
Exception: Acting Outside of Statutory Authority

               The Taxpayers assert the doctrine of exhaustion of administrative remedies does not

apply to their dispute because the Taxpayers contend that the Taxing Authorities acted outside of

their statutory authority.4 We disagree.

               If a state agency acts without authority and contrary to express statutes, the aggrieved

party may appeal directly to the courts. Lexington Ins., 128 S.W.3d at 780; Mitchison v. Houston

Indep. Sch. Dist., 803 S.W.2d 769, 773 (Tex. App.—Houston [14th Dist.] 1991, writ denied). In

such a case, the purposes underlying the exhaustion rule are not applicable, judicial and

administrative efficiency are not served, and agency policies and expertise are irrelevant if the

agency's final action will be a nullity. Lexington Ins., 128 S.W.3d at 780.

               The Taxpayers first assert that an increase in the appraised value after the tax roll was

certified was not authorized by section 22.23(c), and, thus the Taxing Authorities acted without

statutory authority when they increased the appraisal value of the Taxpayers’ property to account for

the personal property disclosed in the amnesty renditions. Second, the Taxpayers assert that even

if the Taxing Authorities had the power to augment the appraisal roll to reflect the value of the

omitted property, the Taxing Authorities improperly increased the appraisal roll after it had been

certified, violating section 25.25.

               When interpreting a statutory provision, a court must ascertain and effectuate the

legislative intent. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). If the statutory

       4
          The Taxpayers asserted that the Taxing Authorities acted without authority when they sent
out the January 6, 2004, notices. The Taxpayers claim that the notices contained several procedural
defects and violated sections 25.23(c), 25.19, 25.21(b) and 25.23(d) of the tax code. The Taxpayers
also assert they were denied a right to a hearing on the matter. We address both of these subissues
in our discussion related to the constitutional violations exception of the exhaustion of remedies
doctrine.

                                                  10
text is unambiguous, a court must adopt the interpretation supported by the statute’s plain language

unless that interpretation would lead to absurd results. Id. We consider a statute as a whole and do

not consider its provisions in isolation. Continental Cas. Ins. Co. v. Downs, 81 S.W.3d 803, 805

(Tex. 2001); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

                Several tax code provisions are critical to our interpretation. Section 25.25 prohibits

the Taxing Authorities from changing the appraisal roll after it is certified unless the Taxpayers filed

a Chapter 41 protest or a corresponding Chapter 42 lawsuit, or a motion was filed under Section

25.25 for certain specific situations which seem inapplicable to the present case. See Tex. Tax Code

Ann. § 25.25. However, Section 25.21 permits the chief appraiser to include omitted property in the

appraisal records at any time:


        (a) If the chief appraiser discovers that real property was omitted from an appraisal
            roll in any one of the five preceding years or 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.

        (b) The entry shall show that the appraisal is for property that was omitted from an
            appraisal roll in a prior year and shall indicate the year and the appraised value
            for each year.


Tex. Tax Code Ann. § 25.21 (West 2001) (Emphasis added.). Section 25.23 specifically authorizes

additions to the appraisal roll for “supplemental appraisal records,” such as previously omitted

property.5 See id. § 25.23(a)(1).




        5
           After submission of appraisal records, the chief appraiser shall prepare supplemental
appraisal records listing each taxable property the chief appraiser discovers that is not included in
the records already submitted, including property that was omitted from an appraisal roll in a prior
tax year.

                                                  11
                 Section 22.23(c) encouraged the Taxpayers to declare omitted personal property by

providing an amnesty incentive:


          If before December 1, 2003, a person files a rendition statement for the 2003 tax year
          that provides the information required by Section 22.01 . . . , and as a result of that
          information, the chief appraiser discovers that some or all of that person’s tangible
          personal property used for the production of income was omitted from the appraisal
          roll in one of the two preceding years, the chief appraiser may not add the value of
          the omitted property to the 2001 or 2002 appraisal rolls . . . .


See id. § 22.23(c)(Emphasis added.)

                 Section 12(c) of Senate Bill 340, which amended section 22.23(c), states:


          Subsection (c), Section 22.23, tax code, as added by this Act, takes effect September
          1, 2003, and applies to the rendition of property for ad valorem tax purposes for the
          2003 tax year.


Act of June 20, 2003, 78th Leg., R.S., ch. 1173, § 12(c), 2003 Tex. Gen. Laws 3353, 3358 (Emphasis

added).

                 We start our analysis by considering the change section 22.23(c) made to the tax code

in light of the property tax scheme. The chief appraiser has the authority to include personal property

that was omitted from an appraisal roll in any of the two preceding years and to create a

supplemental appraisal record for previously omitted property. See Tex. Tax Code Ann. §§ 25.21,

25.23(a)(1) (West 2001). Thus, absent section 22.23(c), the Taxing Authorities would have the

statutory authority to assess back property tax on the omitted property for tax years 2001 and 2002,

and for the current tax year, 2003. See id. Section 22.23(c) abrogates the Taxing Authorities’

powers to assess back taxes for omitted property for tax years 2001 and 2002. See Tex. Tax Code

                                                    12
Ann. § 22.23(c) (West Supp. 2004-05). We find no language in section 22.23(c) that repeals the

Taxing Authorities’ power under sections 25.21 and 25.23 to include previously omitted personal

property in the appraisal roll for the current tax year, 2003. We conclude therefore that the Taxing

Authorities acted with statutory authority when they assessed the Taxpayers additional tax reflecting

omitted property.

                 In their second argument, the Taxpayers complain that even if the Taxing Authorities

had the authority to augment the appraisal roll, they impermissibly increased their property appraisal

values after the appraisal roll had been certified. This question turns on the proper characterization

of the increase in appraisal value of which the Taxpayers complain. The Taxpayers assert that the

Taxing Authorities increased the appraisal value of the Taxpayers’ property after July, 25, 2003,

when the appraisal roll had been approved and certified, in violation of section 25.25 of the tax code.

See Tex. Tax Code Ann. § 25.25 (West 2001). The Taxpayers argue that since the Taxpayers neither

filed a Chapter 41 protest nor filed a Chapter 42 lawsuit and no other applicable situation under

25.25 arises, the Taxing Authorities’ actions to increase the appraisal roll in January 2004 violated

section 25.25.

                 Section 25.25 does not apply to the instant case. Although the Taxing Authorities are

not permitted under section 25.25 to increase the value at which property had been appraised after

the appraisal roll has been certified, the Taxing Authorities have the authority to add omitted

property, as discussed above, to the appraisal roll through a supplemental appraisal record even after

the roll has been certified. See id. §§ 25.21, 25.23.




                                                  13
               The Taxpayers cite two cases to support their claim that a dispute about whether

personal property exists at a given location is a dispute about value, rather than a dispute about

omitted property. See Titanium Metals v. Dallas Cent. Appraisal Dist., 35 S.W.3d 63, 66 (Tex.

App.—Dallas 1999, no pet.); Dallas Cent. Appraisal Dist. v. GTE Directories Corp., 905 S.W.2d

318, 322-23 (Tex. App.—Dallas 1995, writ denied). In Titanium Metals and GTE Directories, the

property owners argued that section 25.25(c) of the tax code entitled them to a downward adjustment

in their appraisal value for property no longer present on the premises. Titanium Metals, 3 S.W.3d

at 65; GTE, 905 S.W.2d 322-23. The issue in this case, however, is the addition of omitted property

to the appraisal roll under sections 25.21 and 25.23, rather than a dispute over valuation under

section 25.25. Thus, Titanium Metals and GTE do not impact our analysis. The Taxing Authorities

were authorized under the tax code to include omitted property in the appraisal roll.6

               The Taxpayers contend in their third argument that even if they owed additional taxes

for tax year 2003, the delinquency date Taxing Authorities placed on the taxes owed was too early

and violated section 31.01(a-1) of the tax code. Taxes are generally due on receipt of the tax bill and




       6
           The Taxpayers also argued that the Taxing Authorities did not present evidence that
established that the addition of omitted property, rather than an impermissible increase in appraisal
value, triggered the appraisal roll augmentation. We disagree. The evidence in the record shows that
the Taxpayers disclosed omitted personal property to the Taxing Authorities in late 2003 and that
the Taxing Authorities acted on the Taxpayers’ amnesty renditions and added the omitted property
to the appraisal roll. The Taxpayers admitted to filing amnesty renditions in late 2003 pursuant to
section 22.23(c) under the provisions put in place to encourage property owners to disclose personal
property omitted from the appraisal rolls. In the record, the amended appraisal roll included, as a
reason for the increase, the code “Amnesty CPPR 22.23(C).”

                                                  14
are delinquent if not paid before February 1 of the following tax year. Tex. Tax Code Ann.

§ 31.02(a) (West Supp. 2004-05). Section 31.04(a-1) of the tax code provides specific guidelines

for when tax bills become delinquent if the bill includes property that was erroneously omitted. See

id. § 31.04(a-1). 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. Id.

               Section 41.41(a)(9) entitles property owners to a right to protest any action of the

taxing authorities that applies to and adversely affects the property owners. Tex. Tax Code Ann.

§ 41.41(a)(9) (West 2001). Under section 31.04(a-1), the Taxpayers could argue that their 2003 tax

bill should be due on February 1, 2005. However, the Taxpayers’ argument that the statutory

violation exception of the exhaustion of administrative remedies doctrine applies to their case fails

because the Taxpayers could have filed a protest under section 41.41(a)(9), thus exhausting their

administrative remedies before seeking judicial review. The Taxpayers simply did not avail

themselves of the remedy provided in the tax code.

               We find that the Taxing Authorities acted under the authority of sections 22.23(c),

25.21, and 25.23 when they augmented the appraisal roll to reflect omitted property the Taxpayers

rendered pursuant to section 22.23(c). Thus, the three Taxing Authority actions the Taxpayers

complain of do not trigger the “action outside of statutory authority” exception to the exhaustion

doctrine.



                                                  15
Exceptions: Constitutional Claims and Jurisdiction

               The Taxpayers claim that the Taxing Authorities took actions that amounted to a

deprivation of property and a violation of the Taxpayers’ due process rights and thus they are

excused from exhausting their administrative remedies. Fisher, 88 S.W.3d at 813; Gibson, 971

S.W.2d at 201-02. The Taxpayers’ also challenge whether the Taxing Authorities acquired

jurisdiction over the Taxpayers if the Taxing Authorities did not furnish the required notice. Fisher,

88 S.W.3d at 812; Harris County Appraisal Dist. v. General Elec. Corp., 819 S.W.2d 915, 920 (Tex.

App.—Houston [14th Dist.] 1991, no writ); Garza v. Block Distrib. Co., 696 S.W.2d 259, 262 (Tex.

App.—San Antonio 1985, no writ).

               Collection of a tax constitutes a deprivation of property; accordingly, a taxing unit

must afford a property owner due process of law and must provide meaningful backward-looking

relief to rectify any unconstitutional deprivation. McKesson Corp. v. Division of Alcoholic

Beverages & Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 31 (1990); Fisher, 88

S.W.3d at 813. At a minimum, due process in this context requires notice and a fair opportunity to

be heard before a deprivation of a protected property interest. McKesson, 496 U.S. at 37. However,

due process only affords a right to be heard before final assessment; it does not detail the review

mechanism. A.B.T. Galveston Ltd., 137 S.W.3d at 155; Lal, 701 S.W.2d at 47. In tax cases, Texas

courts have held that due process is satisfied if the taxpayer is given an opportunity to be heard

before an assessment board at some stage of the proceedings. A.B.T. Galveston Ltd., 137 S.W.3d

at 155; Denton Cent. Appraisal Dist. v. C.I.T. Leasing Corp., 115 S.W.3d 261, 266 (Tex. App.—Fort

Worth 2003, pet. denied).



                                                 16
                The Taxing Authorities are required to provide property owners notice in the form

of a letter. Tex. Tax Code Ann. § 25.19(a), (b), (g), (h), (j) (West Supp. 2004-05). The letter must

cite appraised property value, segregate real and personal property appraisals, and provide a detailed

explanation of the time and procedure for protesting the appraisal value. Id. Supplemental appraisal

records are the proper way to add omitted property to the appraisal roll, subject to review, protest and

appeal under chapters 41 and 42 of the tax code. Tex. Tax Code Ann. § 25.23(a)(1), (d) (West

2001). Section 25.23 provides that the chief appraiser shall deliver notice as required under 25.19,

as soon as practicable after determining the appraisal value of supplemental appraisal records. Id.

§ 25.23(c). If a correction of the tax roll increases the tax liability of a property owner after the tax

bill is mailed, the assessor shall prepare and mail a corrected tax bill that conforms with chapter 31

notice guidelines. Id. § 26.15(d).

                The tax code allows a property owner to protest, among other items, the appraised

value of the owner’s property, the inclusion of the property on the appraisal records, and any other

action of the chief appraiser, appraisal district, or ARB that applies to and adversely affects the

property owner. Id. §§ 41.41(a)(1), (3), (9). After the property owner receives notice of an

objectionable change, the property owner has 30 days to file such a protest. Id. § 41.41(a)(2).

                A property owner may also protest the failure of the Taxing Authorities to give the

proper notice to which a property owner is entitled. See id. § 41.411(a). Under this section, after

the property owner files a notice of protest with the ARB, the ARB holds an evidentiary hearing to

determine whether the property owner was sent or received the required notice and determines the

property owner’s protest on its merits. Id. §§ 41.411(b), (c); C.I.T. Leasing, 115 S.W.3d at 266. A



                                                   17
property owner who files a notice of protest regarding the appraisal district’s failure to provide or

to deliver “any notice to which the property owner is entitled” has a right to a hearing if the owner

(1) pays the amount of the taxes due on the undisputed portion of the taxes owed before the

delinquency date and (2) files its notice of protest before “the date the taxes on the property to which

the notice applies becomes delinquent.” Id. §§ 41.411, 41.44(c), 42.08(b). If the owner is

unsuccessful in his protest to the appraisal review board, the owner may appeal the board's order to

the district court. Id. § 42.01(1)(A). The district court will then review the board's order de novo.

C.I.T. Leasing, 115 S.W.3d at 266; City of Fort Worth v. Pastusek Indus., 48 S.W.3d 366, 370 (Tex.

App.—Fort Worth 2001, no pet.).

               The tax code expressly provides that a taxpayer’s failure to receive notice does not

affect the validity of the appraisal or “the imposition of any tax on the basis of the appraisal.” Tex.

Tax Code Ann. §§ § 25.19(a)(3), (d) (West Supp. 2004-05); C.I.T. Leasing, 115 S.W.3d at 265; Lal,

701 S.W.2d at 48. Under subsection (e), notice may be dispensed with “if the amount of increase

in appraised value is $1,000 or less.” Tex. Tax Code Ann. § 25.19(e) (West Supp. 2004-05). In

addition, section 41.411 expressly grants the appraisal review board jurisdiction to hear taxpayer

complaints regarding lack of notice. Tex. Tax Code Ann. § 41.411 (West 2001). Each of these

provisions is evidence that the legislature did not intend that the notice required under section 25.19

be a prerequisite to a taxing district’s jurisdiction. Therefore, we hold that the failure to provide

notice of appraised value is not jurisdictional and does not render an appraisal void.

               The Taxpayers further contend that the Taxing Authorities did not provide the

Taxpayers with proper notice or a meaningful opportunity to dispute the Taxing Authorities’ action,



                                                  18
which resulted in a deprivation of due process. The Taxpayers complain that the January 6 notice

they received did not comply with the notice provisions set forth under sections 25.19 and 25.23(c)

and that the supplemental tax bill did not contain a brief explanation of the reason for the correction

as required by section 26.15 (d).7 The Taxpayers also allege that the January 6 notice erroneously

indicated that the Taxpayers had already participated in a protest hearing on the matter when in fact

they had not, which resulted in a deprivation of property without an opportunity to be heard.

                 Firmly rooted in Texas jurisprudence is a constitutional claim exception to the

exhaustion of administrative remedies doctrine. E.g., Fisher, 88 S.W.3d at 813; Gibson, 971 S.W.2d

at 201-02. The constitutional claim exception to the exhaustion of administrative remedies doctrine

was created to protect property owners from the loss of property without an opportunity to be heard

at the administrative level and without recourse to judicial review. C.I.T. Leasing, 115 S.W.3d at


       7
         The Taxpayers also complain that the notices they received did not comply with section
26.15(e) of the tax code, which provides:

           If a correction that increases the tax liability of a property owner is made after the
           tax is paid, the assessor shall prepare and mail a supplemental tax bill in the
           manner provided by Chapter 31 of this code for tax bills generally. He shall
           include with the supplemental bill a brief explanation of the reason for and effect
           of the supplemental bill. The additional tax is due on receipt of the supplemental
           bill and becomes delinquent if not paid before the delinquency date prescribed
           by Chapter 31 of this code or before the first day of the next month after the date
           of the mailing that will provide at least 21 days for payment of the tax, whichever
           is later.

Tex. Tax Code Ann. § 26.15(e) (West 2001) (emphasis added).

         We do not address this claim, because there is no evidence in the record that the Taxpayers
have paid their 2003 taxes and that the Tax Assessor-Collector has issued a supplemental tax bill.
The record reflects the situation more aptly described in section 26.15(d) that the Taxpayers have
received amended tax bills after the original tax bills had been mailed.

                                                    19
266. Before the enactment of section 41.411, the property tax scheme did not provide taxpayers with

adequate remedies at law to cure defective notice. Id. Thus, courts developed equitable remedies

in order to provide taxpayers with due process protections. Id. The addition of section 41.411,

however, provided taxpayers with the due process protections that had previously been lacking under

the previous statutory scheme. Id.

               The purpose of section 41.411 is to determine whether a property owner failed to

receive notice of a tax assessment, thereby depriving it of the right to be heard at the administrative

level. See C.I.T. Leasing Corp., 115 S.W.3d at 266; General Elec. Corp., 819 S.W.2d at 919.

Assuming without deciding that the Taxing Authorities sent the Taxpayers defective notice, the tax

code provided the Taxpayers with administrative procedures specifically created to allow them to

protest defective notice of such actions and to protest improper actions the Taxing Authorities took

adverse to the Taxpayers’ interests. See Tex. Tax Code Ann. §§ 41.41(a)(1), (3), (9), 41.411(a)

(West 2001). The Taxpayers were provided with statutory protections under which they could

protest objectionable Taxing Authority actions but chose not to avail themselves of their

administrative remedies. Therefore, since the Taxpayers were presented with an opportunity to be

heard, deprivations of property that stem from the addition of the omitted property are not

unconstitutional.

               The Taxpayers rely heavily on Fisher, General Electric and Garza to support their

position. See Fisher, 88 S.W.3d at 813 (holding the Taxing Authorities violated taxpayer’s due

process rights because taxpayer neither received notice nor had an opportunity to contest the

appraisal); General Elec. Corp., 819 S.W.2d at 920 (holding that not scheduling a protest hearing



                                                  20
was unconstitutional, after property owners had paid their taxes “under protest” and timely filed for

a protest hearing); Garza v. Block Distrib. Co., 696 S.W.2d 259, 262 (Tex. App.—San Antonio

1985, no writ) (holding that an appraisal board did not acquire jurisdiction to consider an increase

in the appraised value of the subject property when statute, before the enactment of section 41.411,

did not require notice and an opportunity to be heard).

               In Fisher, the El Paso Court of Appeals found that Fisher’s due process rights had

been violated because he was not afforded any opportunity to be heard as to the increased appraisal

of his property before the appraisal district approved the tax roll. See Fisher, 88 S.W.3d at 813. In

the present case, the Taxpayers were not denied the opportunity to protest the Taxing Authorities’

actions. Rather, the Taxpayers simply did not avail themselves of the administrative remedies

created for their benefit under the protest provisions of the tax code. See Tex. Tax Code Ann.

§§ 41.41(a)(1), (3), (9), 41.411(a) (West 2001).

               In General Electric, the property owners properly followed the administrative protest

procedures, paid the taxes owed “under protest,” and filed a timely protest. General Elec. Corp., 819

S.W.2d at 918. The appraisal review board did not schedule a protest hearing after property owners

complied with the statutory prerequisites and therefore did not provide General Electric with notice

of its hearing. Id. at 919. The court observed that General Electric was denied due process because

it was denied its protest hearing and was left with no other way to obtain a protest determination

from the appraisal review board to present for judicial review. Id. at 920. The court held that the

taxing authorities never obtained jurisdiction over General Electric, and the increased appraisal was

a void act. Id. In contrast to General Electric, the Taxpayers here have not availed themselves of



                                                   21
the administrative protest procedure. The Taxpayers were provided with due process but chose not

to embrace their opportunities to protest the actions of which they complain. Garza is inapplicable

because it was decided before section 41.411 codified a property owner’s right to formally protest

the failure of a taxing authority to deliver any notice “to which the property owner is entitled.”

A.B.T. Galveston, 137 S.W.3d at 157.

               The Taxpayers propose an interpretation of the tax code that denies the Taxing

Authorities the power to address and remedy, through established administrative procedures, the

subsequent increased appraisal of January 2004. In view of the cases placing the burden on the

property owner to pursue his administrative remedy in a timely manner, we cannot accept the

Taxpayers’ argument that would permit a property owner to do nothing when confronted with an

obviously erroneous tax bill. See A.B.T. Galveston, 137 S.W.3d at 157; Harris County Appraisal

Dist. v. Dincans, 882 S.W.2d 75, 78 (Tex. App.—Houston [14th Dist.] 1994, writ denied). To

interpret the tax code in this manner would defeat the entire tax scheme the code sets out for

protesting and appealing actions of the taxing authorities. The simple allegation of constitutional

misdeeds does not suffice to avoid the administrative process. See Jones v. Clarkville Indep. Sch.

Dist., 46 S.W.3d 467, 474 (Tex. App.—Texarkana 2001, no pet.).

               We conclude that the Taxpayers received the process they were due when they were

afforded an opportunity to protest defective notice and to be heard on the merits of their tax dispute

during the administrative process. The constitutional claims or jurisdiction exceptions do not excuse

the Taxpayers from exhausting their administrative remedies before seeking judicial review.




                                                 22
Exceptions: Irreparable Injury and Inadequate Remedies

                The Taxpayers assert that they are exempt from exhausting their administrative

remedies because the remedies offered by the tax code are inadequate and will cause irreparable

injury. The Taxpayers specifically complain that they are required to pay their taxes before the

deadline for filing a protest and that statutory penalties, interest, liens, seizures, and attorney’s fees

accrue before the administrative process can commence. Taxpayers further broadly claim that the

inadequacies of the Appraisal District’s and ARB’s actions resulted in irreparable injury. Finally,

Taxpayers claim they are entitled to injunctive relief to remedy constitutional violations.

                Texas courts have recognized an exception to the exhaustion of administrative

remedies doctrine if the administrative remedies are inadequate or an aggrieved party will suffer

irreparable harm.8 See Houston Fed’n of Teachers v. Houston Indep. Sch. Dist., 730 S.W.2d 644,

646 (Tex. 1987); Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 363, 366 (Tex. App.—San

Antonio 2004, no pet.); Jones v. Dallas Ind. Sch. Dist., 872 S.W.2d 294, 296 (Tex. App.—Dallas

1994, writ denied). “Irreparable harm” means that an award of damages at a later date will not

adequately compensate an aggrieved party. See Houston Fed’n of Teachers, 730 S.W.2d at 646;

Gutierrez, 139 S.W.3d at 367.

                In Houston Fed’n of Teachers, the supreme court reviewed the decision of the court

of appeals that dissolved a temporary injunction barring a school district from lengthening the school

day and dismissed the underlying suit. Houston Fed’n of Teachers, 730 S.W.2d at 645. The district


        8
          Texas courts seemed to have applied this doctrine once, in Houston Fed’n of Teachers.
Although the Gutierrez and Jones discussed the irreparable injury and inadequate remedies exception
to the exhaustion doctrine, they declined to apply it.

                                                   23
court recognized that the Commissioner of Education was not authorized to order immediate

injunctive relief and that if the teachers had started the administrative process, the teachers would

have suffered irreparable harm by the time injunctive relief could be obtained from the courts. Id.

The court of appeals held that the teachers should have first pursued their claim through the

administrative process before resorting to the courts, and did not address the district court’s finding

of severe, immediate and irreparable harm that formed the basis of the temporary injunction. Id.

The supreme court stated that parties should not be required to pursue the administrative process if

the parties would suffer irreparable harm and if the agency is unable to provide relief. Id. Under

these circumstances, the courts may properly exercise their jurisdiction in order to provide an

adequate remedy. Id. Because the court of appeals did not disturb the district court’s finding, the

supreme court held that the court of appeals erred in dismissing the suit and remanded the cause to

the court of appeals to determine whether the district court had abused its discretion in granting the

temporary injunction. Id.

               In this matter, the Taxpayers’ assertions about the nature of the statutory scheme here

are incorrect. A taxpayer who protests lack of notice under section 41.411 is required to comply with

section 42.08 payment requirements or forfeit his or her right to a final determination. Tex. Tax

Code Ann. § 41.411(c) (West 2001). During the pendency of an appeal, a property owner must only

pay the lesser of the amount of taxes the owner agrees is correct or the amount of the assessment.

Id. § 42.08(b). The delinquency date for any additional amount of taxes due on the property is

determined by guidelines set forth under section 42.42(c). Id. § 42.08(a). If the property owner does

not prevail in the protest, section 42.42(c) directs the tax assessor to prepare and mail a supplemental



                                                  24
tax bill, and the property owner will be liable for penalties and interest calculated under section

33.01. Id. § 42.42(c). The Tax Assessor-Collector is required to refund any amount of taxes that

have been overpaid. Id. § 42.43(a). Penalties and interest due on the unpaid portion of the taxes

owed are calculated pursuant to section 33.01. Id. § 33.01.

               Thus, the statutory scheme does not force the Taxpayers to pay all of the taxes the

Taxing Authorities assessed but, rather, requires only that the Taxpayers pay the portion of the

assessed taxes with which they have no disagreement. Tex. Tax Code Ann. §§ 41.411(c); 42.08(a).

The Taxpayers admit that the actions taken and taxes assessed by the Taxing Authorities prior to the

January 6 notice were proper. Thus, paying the taxes the Taxpayers agree are due would not cause

the Taxpayers harm.

               The tax code contemplates that the all taxes, disputed and undisputed alike, are due

by the set delinquency date. Id. § 42.08(a); § 42.42(c). The disputed amount is subject to penalties

and interest only if the Taxpayers lose their protest. Id. If the Taxpayers are concerned that interest

and penalties would accrue on the unpaid, disputed portions of the taxes owed, the Taxpayers could

pay the disputed portions by the delinquency date, and if they prevail in their protest, the Taxpayers

would be entitled to a refund. See id. § 42.43(a). The statutory scheme does not permit the Taxing

Authorities to assert a tax lien, seize the Taxpayers’ property, or assess penalties, interest, or

attorneys’ fees before the administrative process commences, as the Taxpayers assert.

               In sum, nothing about this scheme causes the sort of “irreparable harm” that might

have been envisioned in Houston Fed’n of Teachers, nor is there any evidence in the record that

indicates the actions of the Taxing Authorities have otherwise caused irreparable harm to the



                                                  25
Taxpayers. Last, since there was no constitutional violation, as discussed above, Taxpayers are not

entitled to injunctive relief on this separate ground.

               We find that the irreparable injury or inadequate remedy exception does not apply to

excuse the Taxpayers from exhausting their administrative remedies.


Exception: Pure Questions of Law

               The Taxpayers claim that three of their contentions are pure questions of law and

excuse the Taxpayers from exhausting their administrative remedies. The Taxpayers rely on

Grounds v. Tolar Indep. Sch. Dist. for the proposition of law that an exception to the exhaustion

doctrine exists when the dispute involves a pure question of law. Grounds v. Tolar Indep. Sch. Dist.,

707 S.W.2d 889, 892 (Tex. 1986).9 In Grounds, a teacher/head football coach was informed by the

Tolar Independent School District that his contract would not be renewed. Id. at 890. Grounds


       9
           The supreme court in Grounds relies in part on Mingus v. Wadley for the proposition that
when a cause of action is derived from a statute, the statutory prerequisites are mandatory and
exclusive, and that they must be satisfied or the action cannot be maintained for lack of jurisdiction.
Grounds, 707 S.W.2d at 891-92 (citing Mingus v. Wadley, 285 S.W. 1084, 1087 (Tex. 1926)). In
2000, the supreme court overruled Mingus to the extent that it characterized the plaintiff’s failure
to establish statutory prerequisites as a jurisdictional matter. Dubai Petroleum Co. v. Kazi, 12
S.W.3d 71, 76 (Tex. 2000). The Dubai Court found that a district court had the jurisdiction to hear
a wrongful death action, not because the plaintiffs had satisfied their statutory prerequisites, but
rather because the matter was within the court’s constitutional subject matter jurisdiction. Id. Thus,
the question of whether a district court has jurisdiction to hear a case is a separate inquiry from
whether a plaintiff has satisfied his statutory prerequisites, a question which addresses whether the
plaintiff has a right to seek relief under a statute. Id.

          The overruling of Mingus does not disturb our analysis of Grounds. Although the Grounds
Court found that the district court lacked the jurisdiction to hear the case because the plaintiff did
not satisfy its statutory requirements, an improper conclusion in view of Dubai, the Grounds Court’s
reasoning with respect to the exhaustion doctrine and its exceptions is sound. See Grounds, 707
S.W.2d at 892.

                                                  26
appealed the school district’s decision, which resulted in the State Commissioner of Education

ordering Grounds’s re-employment in the “same professional capacity.” Id. The school district

neither filed a motion for rehearing nor appealed the State Commissioner of Education’s decision

in a Travis County district court, both actions required by the Administrative Procedure and Texas

Register Act. Id. Instead, the school district attacked the administrative order in district court in

Hood County. Id. The district court rendered judgment for the school district and the court of

appeals affirmed. Id. The primary issue in Grounds, according to the supreme court, is whether an

administrative order is subject to collateral attack in violation of the procedural prerequisites of the

agency’s enabling statute and the Administrative Procedure and Texas Register Act. Id. The

supreme court found that the school district did not follow the mandatory and exclusive statutory

prerequisites for review, and did not invoke the jurisdiction of the Hood County district court. Id.

at 892.

                The school district claimed, and the court of appeals held, that in matters involving

the administration of school law, a party need not exhaust all administrative remedies when pure

questions of law are involved. Id. Although the supreme court acknowledged the pure question of

law exception to the exhaustion doctrine, it declined to apply it in Grounds. Id. The supreme court

reasoned that because the relevant enabling statute provides for the interpretation of teacher contracts

and for appellate procedures, it was clearly within the State Commissioner of Education’s power to

determine a teacher’s statutory rights. Id. The interpretation of the rights of the parties to the teacher

contract is not a pure question of law. Id. Thus, questions dedicated to an administrative agency as

part of its exclusive jurisdiction in a statutory scheme to interpret are not subject to collateral attack



                                                   27
in district court without first exhausting the administrative remedies provided in the statutory

scheme, even if the aggrieved party characterizes the question as a “pure questions of law.” See id.

               The Taxpayers assert the following three questions are pure questions of law and

excuse them from exhausting their administrative remedies before seeking judicial review: whether

the Taxing Authorities violated statutory law by increasing the tax roll after it had been approved to

take into account the § 22.23(c) amnesty provision; whether the Taxing Authorities gave the

Taxpayers proper notice and a meaningful opportunity to be heard when they amended the appraisal

roll as required by the Constitution and the tax code; and whether the due date on the Taxpayers’

increased tax bill violates the tax code.

               Although these questions may well be mixed questions of law and fact, even if each

question were a pure question of law, the Legislature has given the Taxing Authorities exclusive

jurisdiction to interpret and act under the § 22.23(c) amnesty provision and to hear disputes about

the appraised value of the owner’s property, the inclusion of the property on the appraisal records,

whether the Taxing Authorities provided the required notice and any other action of the chief

appraiser, appraisal district, or ARB that applies to and adversely affects the property owner. Tex.

Tax Code Ann. §§ 41.41(a)(1), (3), (9), 41.411(a) (West 2001), §22.23(c) (West Supp. 2004-05);

see, e.g., General Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex.

1992); A.B.T. Galveston, 137 S.W.3d at 157. Because the questions the Taxpayers raise have already

been dedicated to the Taxing Authorities to decide, the Taxpayers cannot collaterally attack the final

actions and decisions of the Taxing Authorities in district court on the grounds that they are excused




                                                 28
from exhausting their administrative remedies because the matters are “pure questions of law.” See

Grounds, 707 S.W.2d at 892. We overrule the Taxpayers’ issue.


                                          CONCLUSION

               The Taxpayers assert that each of five exceptions to the exhaustion of remedies

doctrine apply to except the Taxpayers from pursuing their administrative remedies. We conclude

that none of the established exceptions to the exhaustion of administrative remedies doctrine applies

to the Taxpayers’ case. The Taxpayers failed to exhaust all administrative remedies before seeking

judicial review, and consequently, deprived the district court of subject matter jurisdiction over

claims within the administrative body’s exclusive jurisdiction. The district court did not err when

it granted the Taxing Authorities’ plea to the jurisdiction, nor when it denied the Taxpayers’ request

for a temporary injunction. We affirm the judgment of the district court.




                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: February 3, 2005




                                                 29
