Opinion issued June 30, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00549-CV
                          ———————————
           EDWARD MOERS AND DANIEL MOERS, Appellants
                                      V.
   HARRIS COUNTY APPRAISAL DISTRICT, CHIEF APPRAISER OF
    HARRIS COUNTY APPRAISAL, JIM ROBINSON, AND HARRIS
         COUNTY APPRAISAL REVIEW BOARD, Appellees


                   On Appeal from the 165th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-55877


                                OPINION

      This is an appeal from the Harris County Appraisal District’s (“HCAD”)

denial for tax years 2010–2012 of Edward and Daniel Moers’s request for an open-

space land appraisal for land the Moerses used in their organic sheep-raising
operation. The Moerses sued HCAD, the Harris County Appraisal Review Board

(“HCARB”), and the Harris County Chief Appraiser, Jim Robinson, arguing that

the eligibility requirements for an open-space land appraisal adopted by HCAD’s

Chief Appraiser are invalid. The trial court dismissed HCARB and the Chief

Appraiser and granted HCAD’s motion for final summary judgment. We modify

the trial court’s dismissal of the claims for tax year 2012 to dismiss the claims

without prejudice and affirm as modified.

                                  Background

      In 2009, the Moerses began a sheep-raising operation on two non-contiguous

tracts of land. In years 2010–2012, the Moerses sought to have the two tracts

appraised as “open-space land.” The open-space land appraisal status would have

allowed the Moerses’ land to be valued based on its productive capacity for raising

sheep, rather than its market value, which would have resulted in a lower tax

liability for those years. HCAD denied the applications for each year, and the

Moerses protested to HCARB, which also denied the applications.

      The Moerses sued HCAD, HCAD’s Chief Appraiser, Jim Robinson, and

HCARB, challenging the denial of their open-space land applications for 2010–

2012. They also requested a declaratory judgment invalidating the degree of

intensity standards (“Standards”) governing HCAD’s determination that the

Moerses were ineligible for an open-space land appraisal on the basis that the



                                        2
Chief Appraiser lacked the authority to adopt the Standards. They sought an

injunction “precluding the Chief Appraiser from enforcing” the Standards and

prohibiting HCAD from collecting taxes on their tracts until the Chief Appraiser

complied with the Tax Code. They also alleged that Daniel had been denied due

process because HCARB refused to hold a hearing on his protest of the denial of

his open-space land application for tax year 2010.

      The trial court granted the Chief Appraiser’s plea to the jurisdiction, 1

dismissing the declaratory judgment, ultra vires, and injunctive relief claims

against the Chief Appraiser for lack of jurisdiction. It also dismissed HCAD’s plea

to the jurisdiction concerning the Moerses’ claims against HCAD for 2012 with

prejudice for failure to exhaust administrative remedies.

      HCAD then moved for final summary judgment, contending that the

Moerses were ineligible for open-space land appraisal status. Specifically, HCAD

argued that it was entitled to summary judgment because it conclusively proved

that the Moerses could not meet the “degree of intensity” necessary to qualify for

open-space land appraisal.

      In response to HCAD’s motion for final summary judgment, the Moerses

contended that the Standards adopted by the Chief Appraiser for determining open-


1
      The Chief Appraiser and HCAD filed a “Motion to Dismiss for Lack of Subject-
      Matter Jurisdiction,” which contained two separate pleas to the jurisdiction
      concerning the Chief Appraiser and HCAD.

                                         3
space land appraisal were invalid. The Moerses also filed a motion for partial

summary judgment as to the open-space land appraisal.

      The trial court denied the Moerses’ motion for partial summary judgment

and granted HCAD’s motion for final summary judgment. It ordered that the

Moerses “take nothing” for their claims for tax years 2010 and 2011 and assessed

costs against the Moerses.

                                    Discussion

      In six issues, the Moerses contend that the trial court erred in (1) granting

HCAD’s motion for summary judgment, (2) denying their motion for partial

summary judgment, (3) dismissing their claims against the Chief Appraiser,

(4) entering a final judgment, (5) dismissing all claims for tax year 2012 with

prejudice, and (6) ordering Daniel to pay court costs.

A.    Summary Judgment

      In their first and second issues, the Moerses contend that the trial court erred

in granting HCAD’s motion for summary judgment and in denying their motion

for partial summary judgment.

      1.     Standard of Review

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary

judgment without specifying the grounds for granting the motion, we must uphold



                                          4
the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch

Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). 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 Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005).

      In a traditional summary-judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and that the trial court should

grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick

v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).                  A

defendant moving for traditional summary judgment must conclusively negate at

least one essential element of each of the plaintiff’s causes of action. D. Houston,

Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). If the defendant conclusively

negates at least one element of a cause of action, the burden shifts to the plaintiff to

raise a fact issue to preclude summary judgment. See Parker v. Dodge, 98 S.W.3d

297, 299, (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      When, as here, the parties file cross-motions for summary judgment on

overlapping issues, and the trial court grants one motion and denies the other, we

review the summary judgment evidence supporting both motions and “render the




                                           5
judgment that the trial court should have rendered.” FM Props. Operating Co. v.

City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

      2.     Open-space land appraisal law

      The Texas Constitution and the Texas Tax Code contain provisions to

promote the preservation of open-space land devoted to farm or ranch purposes.

See TEX. CONST. art. VIII, § 1–d–1; TEX. TAX CODE ANN. §§ 23.51–.54 (West

2015). Accordingly, the Legislature provided for special appraisals for “qualified

open-space land.” TEX. TAX CODE ANN. § 23.52 (West 2015). “The open-space

land appraisal allows property used for farm or ranch purposes to be valued based

upon the property’s productive capacity rather than its market value.” Parker

Cnty. Appraisal Dist. v. Francis, 436 S.W.3d 845, 849 (Tex. App.—Fort Worth

2014, no pet.) (citing HL Farm Corp. v. Self, 877 S.W.2d 288, 292 (Tex. 1994)).

      To qualify for the open-space land appraisal, the property owner must

demonstrate that the land (1) is currently being devoted principally to agricultural

use (2) to the degree of intensity generally accepted in the area, and (3) has been

devoted principally to agricultural use or to production of timber or forests for five

of the preceding seven years. TEX. TAX CODE ANN. § 23.51(1).

      Chief Appraisers have been given the authority to determine applications for

open-space land appraisal. See TEX. TAX CODE ANN. § 23.57(a), (c) (West 2015).




                                          6
However the authority to establish the eligibility standards was delegated by the

Legislature to the Texas Comptroller of Public Accounts:

      The comptroller by rule shall develop and distribute to each appraisal
      office appraisal manuals setting forth this method of appraising
      qualified open-space land, and each appraisal office shall use the
      appraisal manuals in appraising qualified open-space land. The
      comptroller by rule shall develop and the appraisal office shall enforce
      procedures to verify that land meets the conditions contained in
      Subdivision (1) of Section 23.51 of this code . . . .

TEX. TAX CODE ANN. § 23.52(d). Considering these statutes together, both the

Chief Appraisers and the Comptroller play important roles in the open-space land

appraisal process. The Moerses do not challenge the validity of the authorization of

Chief Appraisers to determine open-space land appraisals, nor do they challenge

the delegation of authority to the Comptroller to set forth the method of appraisal.

      The Comptroller created the Manual for the Appraisal of Agricultural Land

(“the Manual”). See 34 TEX. ADMIN. CODE § 9.4001 (1990) (State Property Board

adopted Manual); Parker Cnty. Appraisal Dist., 436 S.W.3d at 853 n.6 (noting that

Office of State Comptroller assumed duties and responsibilities of state taxation in

1991); see also Tex. State Comptroller of Pub. Accounts, Guidelines for the

Appraisal of Agricultural Land (April 1990), http://comptroller.texas.gov/taxinfo/

proptax/agland/part1.pdf (containing entire Manual). “The Manual, promulgated

by rule, has the force and effect of law.” Pizzitola v. Galveston Cnty. Cent.

Appraisal Dist., 808 S.W.2d 244, 248 (Tex. App.—Houston [1st Dist.] 1991, no



                                          7
writ) (citing Gen. Elec. Credit Corp. v. Small, 584 S.W.2d 690, 694 (Tex. 1979)).

Courts have approved appraisal districts’ reliance on the Manual, in some cases

noting that it is entitled to great deference. See, e.g., Compass Bank v. Bent Creek

Invs., Inc., 52 S.W.3d 419, 421 (Tex. App.—Fort Worth 2001, no pet.); Resolution

Trust Corp. v. Tarrant Cnty. Appraisal Dist., 926 S.W.2d 797, 799 (Tex. App.—

Fort Worth 1996, no writ); Walker v. Appraisal Review Bd. for Guadalupe Cnty.

Appraisal Dist., 846 S.W.2d 14, 16 (Tex. App.—San Antonio 1992, writ denied);

Pizzitola, 808 S.W.2d at 248.

      The Manual requires that the land for which a property owner seeks open-

space land appraisal “be used for an agricultural purpose to the degree of intensity

typical in the area.” Tex. State Comptroller of Pub. Accounts, Qualification of

Land Under Section 1-d-1 (April 1990), at 9, http://comptroller.texas.gov

/taxinfo/proptax/agland/part2.pdf; see also TEX. TAX CODE ANN. § 23.51(1). This

“degree of intensity test measures whether the land is being farmed or ranged to

the extent typical for agricultural operations.” Tex. State Comptroller of Pub.

Accounts, Qualification of Land Under Section 1-d-1, at 9. The Manual mandates

that the Chief Appraiser determines “land use and degree of intensity Standards for

qualifying land” and “set Standards according to local agricultural practices.” Tex.

State Comptroller of Pub. Accounts, Manual for the Appraisal of Agricultural




                                         8
Land     (April    1990),       at   3,   http://comptroller.texas.gov/taxinfo/proptax

/agland/part1.pdf. It states:

       The law does not state what degree of intensity qualifies a particular
       type of land. The chief appraiser must set the standards according to
       local agricultural practices. Because of the variety of soil types,
       climate conditions, and crops in a state as large as Texas, no single
       statutory definition could cover all possible uses.

Tex. State Comptroller of Pub. Accounts, Qualification of Land Under Section

1-d-1, at 9. The Manual also mandates that the Chief Appraiser’s “decision on

what constitutes an ‘area’ will define ‘typical’ agricultural intensity.” Id. The

Manual contemplates that a Chief Appraiser’s determination of the typical area for

a particular agricultural practice is not confined to a county’s typical agricultural

intensity:

       The size of the area can vary with the commodity. For a common
       crop, the chief appraiser may be able to look to farming practices
       within the county. Rarer crops may require the chief appraiser to
       consider a multi-county region to decide the typical agricultural
       inputs.

Id.

       The degree of intensity Standards for open-space land in Harris County

adopted by the Chief Appraiser provide that for the production of livestock,

“improved pasture” land must be a minimum of seven acres and “[p]roduce

sufficient forage to sustain a minimum of 4 animal units.” See Harris Cnty.

Appraisal Dist., Tax Savings on Land Used for Agriculture & Wildlife



                                           9
Conservation, http://www.hcad.org/Help/Process/AG.asp#Intensity (last visited

June 26, 2015). The Standards define an animal unit as “any domestic animal or

combination of animals with a forage dry matter (DM) requirement of 27 lb/day,”

and specifically provides that “6 sheep” is an animal unit. Id.

      3.     Did HCAD conclusively negate an element of the Moerses’ open-
             space land appraisal claim?

      To be eligible for open-space land appraisal, the Moerses had to establish

that (1) their land was “currently devoted principally to agricultural use,” (2) the

agricultural use was “to the degree of intensity generally accepted in the area,” and

(3) their land “has been devoted principally to agricultural use or to production of

timber or forest products for five of the preceding seven years.” See TEX. TAX

CODE ANN. § 23.51(1). HCAD moved for summary judgment on the basis that the

Moerses could not establish the degree of intensity required to qualify for the open-

space land appraisal.

      Under the degree of intensity Standards adopted by the Harris County Chief

Appraiser, a livestock operation raising sheep on improved pasture in Harris

County must include seven acres and produce sufficient forage to support four

animal units—approximately 24 sheep. See Harris Cnty. Appraisal Dist., Tax

Savings on Land Used for Agriculture & Wildlife Conservation.               HCAD’s

summary-judgment evidence included the Standards and the affidavits of two

HCAD employees, Gary Underwood and Brian White. Underwood averred that


                                         10
the Moerses “have never had the required twenty-four (24) sheep on each of their

properties.” White averred he “personally inspected both Edward Moers’ and

Daniel Moers’ properties” and he has “never seen twenty-four (24) or more sheep

present on each of the subject properties. Sometimes there were no sheep at all,

sometimes there were sheep but there were always less than twenty-four (24).”

      The Moerses did not adduce evidence that they ever had the requisite 24

sheep on their land. Rather, in their response to HCAD’s motion for summary

judgment and in their cross motion, the Moerses argued that the Harris County

Chief Appraiser lacked authority to create the degree of intensity Standards and

that the Standards are invalid. In support, they adduced evidence that purportedly

demonstrates that HCAD should use different degree of intensity Standards. We

conclude that this is insufficient to raise a fact issue on HCAD’s motion or to

demonstrate entitlement to summary judgment on the Moerses’ cross motion.

      As a preliminary matter, we note that the Chief Appraiser has the authority

to create the degree of intensity Standards. The Tax Code expressly grants the

Chief Appraiser the authority to determine applications for open-space land

appraisal. See TEX. TAX CODE ANN. § 23.57(a), (c). In addition to that legislative

grant of authority, the Tax Code grants the Comptroller the authority to create the

Manual, and the Manual defers to each appraisal district’s Chief Appraiser the

creation of the degree of intensity Standards for its county. See TEX. TAX CODE



                                        11
ANN. § 23.52(d); Tex. State Comptroller of Pub. Accounts, Qualification of Land

Under Section 1-d-1, at 9.

      Courts recognize rules contained in the Manual as agency rules. See, e.g.,

Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) (recognizing

Manual’s rule as agency rule); Bexar Appraisal Dist. v. Sivage Invs., Ltd., Nos. 04-

14-00227-CV, 04-14-00228-CV, 04-14-00229-CV, 04-14-00230-CV, 2014 WL

6475369, at *2 (Tex. App.—San Antonio Nov. 19, 2014, no pet.) (same). And

agency rules carry a presumption of validity. CenterPoint Energy Houston Elec.,

LLC v. Pub. Util. Comm’n, 354 S.W.3d 899, 902 (Tex. App.—Austin 2011, no

pet.); TXU Generation Co., L.P. v. Pub. Util. Comm’n of Tex., 165 S.W.3d 821,

829 (Tex. App.—Austin 2005, pet. denied) (same).             We defer to a rule

promulgated by an agency as long as it is reasonable and does not contradict the

plain meaning of the statute. See CenterPoint, 354 S.W.3d at 902–04; DuPont

Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 420 (Tex. App.—Austin 2006,

pet. denied).

       “An agency’s rules must comport with the agency’s authorizing statute, but

the legislature does not need to include every specific detail or anticipate all

unforeseen circumstances.”     State, Office of Pub. Util. Counsel v. Pub. Util.

Comm’n of Tex., 131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied)

(citing Railroad Comm’n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex.



                                        12
1992)). Likewise, “[i]n ascertaining the scope of an agency’s authority, we give

great weight to the agency’s own construction of a statute.” Tex. Mun. Power

Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007).

      Similarly, when we review a challenge to a rule promulgated by a Chief

Appraiser who has legislative authority to determine applications for open-space

land appraisal, we are limited to evaluating whether the Chief Appraiser acted

contrary to the authorizing statute. See State, Office of Pub. Util. Counsel, 131

S.W.3d at 331. “To establish the rule’s facial invalidity, a challenger must show

that the rule: (1) contravenes specific statutory language; (2) runs counter to the

general objectives of the statute; or (3) imposes additional burdens, conditions, or

restrictions in excess of or inconsistent with the relevant statutory provisions.” Id.

      The Moerses complain that the Chief Appraiser’s implementation of the

degree of intensity Standards inappropriately imposes a minimum size of land

requirement and minimum number of animal requirement.               But the statutory

definition of open-space land appraisal references the concept of the degree of

intensity generally accepted in the area and does address whether a minimum

amount of land and animals could be necessary to achieve the degree of intensity

generally accepted in the area. See TEX. TAX CODE ANN. § 23.51 (to qualify for

open-space land appraisal, property owner must demonstrate land is currently

devoted principally to agricultural use “to the degree of intensity generally



                                          13
accepted in the area”). Therefore, the fact that the Chief Appraiser has identified

those criteria is not in conflict with the general legislative scheme.

      Rather, the Chief Appraiser implemented this tax scheme in exercise of the

statutory authority to determine applications for open-space land appraisal, TEX.

TAX CODE ANN. § 23.57(a), (c), acting within the bounds of guidance promulgated

by the Comptroller. Tex. State Comptroller of Pub. Accounts, Qualification of

Land Under Section 1-d-1, at 9 (Manual permits Chief Appraiser to set degree of

intensity Standards). We thus conclude that nothing on the face of the Standards

violates or is in conflict with the legislative scheme. See State, Office of Pub. Util.

Counsel, 131 S.W.3d at 331 (holding that to establish agency rule is invalid, must

show that it contravenes statutory language, runs counter to statute’s general

objectives, or imposes additional or inconsistent conditions).

      In response to HCAD’s motion to summary judgment, 2 the Moerses also

argued that the Chief Appraiser’s degree of intensity Standards are not generally


2
      The Moerses contend that their response to HCAD’s motion for summary
      judgment raised at least three material fact issues precluding summary judgment:
      (1)“What is the degree of intensity generally accepted in Harris County relating to
      the production of organic sheep?”; (2) “How were HCAD’s degree of intensity
      Standards determined and are such Standards in accordance with the requirements
      for achieving [open-space land] agricultural appraisal as set forth in the Texas
      Constitution and the Texas Property Tax Code?”; and (3) “Are the properties
      owned by [the Moerses] qualified open-space land in 2010 and/or 2011 in that
      each was currently devoted principally to agricultural use to the degree of intensity
      generally accepted in the area and had been devoted principally to agricultural use
      for the past seven years?”


                                           14
accepted in Harris County and that the average farm in Harris County has a

significantly lower stocking rate.

      The Moerses’ summary-judgment evidence, at most, supports an argument

that the Chief Appraiser should adopt and apply different degree of intensity

Standards. All of the Moerses’ arguments and evidence presented to suggest that

the Chief Appraiser’s degree of intensity Standards were arbitrary and had no

factual basis are all premised on the idea that the “degree of intensity generally

accepted in the area” has to be determined by referring to Harris County. But the

Tax Code and Manual do not require that the Chief Appraiser create Standards in

accordance with the degree of intensity generally accepted in Harris County.

Rather, the Manual expressly states that the Chief Appraiser may need to consider

a larger region to decide the degree of intensity requirement for particular

agricultural practices. Tex. State Comptroller of Pub. Accounts, Qualification of

Land Under Section 1-d-1, at 9 (Chief Appraiser may need to “consider a multi-

county region to decide the typical agricultural inputs”). Therefore, the Moerses

have failed to raise a fact issue as to whether the Standards contravene the Tax

Code or Manual, run counter to the general objectives of the statutes or Manual, or

impose additional burdens, conditions, or restrictions in excess of or inconsistent

with the relevant statutory provisions because they adduced no evidence and

pointed to no authority requiring that the Standards must equate to typical



                                        15
agricultural practices in Harris County. Accordingly, the Moerses have not raised

a fact issue regarding whether the Standards are invalid.

      The Moerses next contend that the Standards should not apply from 2010–

2012 because they fall within a statutory exception to their application. Section

23.522 of the Tax Code states:

      The eligibility of land for appraisal under this subchapter does not end
      because the land ceases to be devoted principally to agricultural use to
      the degree of intensity generally accepted in the area if:

         (1) a drought declared by the governor creates an agricultural
            necessity to extend the normal time the land remains out of
            agricultural production; and

         (2) the owner intends to use the land in that manner and to that
            degree of intensity [when the drought ends].

TEX. TAX CODE ANN. § 23.522 (West 2015).

      The Moerses adduced evidence that former Governor Perry proclaimed

drought from 2009–2012. But the Moerses proffered no evidence demonstrating

that the drought “create[d]” the “necessity to extend the normal time the land

remains out of agricultural production.” See TEX. TAX CODE ANN. § 23.522(1).

Nor is there evidence that the land “ceased” to be devoted principally to

agricultural use—to the required degree of intensity Standards.        There is no

evidence here that the Moerses ever met the degree of intensity Standards. Based

on the summary-judgment record, we conclude that the Moerses failed to raise a




                                         16
fact issue as to whether the Standards were inapplicable because of drought

proclamations.

      Having concluded that the Moerses failed to demonstrate that the Standards

are invalid or raise a fact issue as to whether they satisfied the degree of intensity

requirement, we hold that the trial court properly granted HCAD’s motion for final

summary judgment and denied the Moerses’ motion for partial summary judgment

regarding the Moerses’ eligibility for open-space land appraisal for the years 2010–

2012. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)

(holding that claimant moving for summary judgment on its claim must

conclusively prove all essential elements of claim and that claimant has burden to

show that there are no genuine issues of material fact and that claimant is entitled

to judgment as a matter of law).

      We overrule the Moerses’ first and second issues.

B.    The trial court properly dismissed all claims against the Chief
      Appraiser

      In their third issue, the Moerses contend that the trial court erred in

dismissing their ultra vires claims against the Chief Appraiser for lack of subject-

matter jurisdiction.

      An ultra vires claim is “‘an action to determine or protect a private party’s

rights against a state official who has acted without legal or statutory authority

. . . .’” City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009) (quoting


                                         17
Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997)). To fall within the

ultra vires exception to sovereign immunity, “a suit must not complain of a

government officer’s exercise of discretion, but rather must allege, and ultimately

prove, that the officer acted without legal authority or failed to perform a purely

ministerial act.” Id. at 372 (citations omitted).

      The Moerses alleged that the Chief Appraiser acted ultra vires by failing to

(1) set the degree of intensity requirement “according to local agricultural

practices” and in accordance with the Manual, (2) timely resolve their applications,

and (3) follow other provisions of the Tax Code.

      First, the Moerses’ claims that the Chief Appraiser failed to “set the degree

of intensity according to local agricultural practices” and adopt proper appraisal

Standards in accordance with various sections of the Manual amounts to claims

that the Chief Appraiser “got it wrong.” See MHCB (USA) Leasing & Fin. Corp.

v. Galveston Cent. Appraisal Dist. Review Bd., 249 S.W.3d 68, 80–81 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (“[J]ust because an agency

determination is wrongly decided does not render that decision outside the

agency’s authority . . . an incorrect agency determination rendered pursuant to the

agency’s authority is not a determination made outside that authority.”) (emphasis

in original); Williams v. Houston Firemen’s Relief & Ret. Fund, 121 S.W.3d 415,

430 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (Appellant “does not challenge



                                          18
the fact that the Fund has . . . this statutory authority. Regardless of his phrasing it

in terms of ‘authority’ . . . the crux of [appellant’s] argument is that the trustees

interpreted the statute in a way they should not have. This is a complaint of

‘getting it wrong,’ not of acting outside statutory authority.”). Complaints that the

official “reached an incorrect or wrong result when exercising its delegated

authority” is not sufficient to state an ultra vires claim of exceeding statutory

authority.   Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Env’t

Quality, 307 S.W.3d 505, 517–18 (Tex. App.—Austin 2010, no pet.); see

Williams, 121 S.W.3d at 430.

      Second, the Moerses’ allegations regarding timeliness are also insufficient to

state an ultra vires claim. Allegations of a failure to comply with every applicable

administrative procedure do not state an ultra vires claim. See Appraisal Review

Bd. of Harris Cnty. Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d 413, 419

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (“[F]ailure to perfectly comply

with all of the intricacies of the administrative process [does not] necessarily

constitute extra-judicial action by an agency.”).

      Third, the Moerses’ allegations that the Chief Appraiser failed to follow

various sections of the Tax Code are also insufficient to state an ultra vires claim

because the Moerses point to several provisions that are unrelated to this case. See

TEX. TAX CODE ANN. §§ 23.22 (concerns appraisal of land burdened by



                                          19
government-imposed restrictions on use), 23.23 (concerns appraisal of homestead),

23.25 (concerns method of appraising homestead that is contiguous with open-

space land), 23.44 (concerns procedures in application to qualify for “agricultural

use” appraisal) (West 2015). The Moerses reference only two sections that are

related to open-space land appraisal. See id. §§ 23.51 (definitions applicable to

open-space land qualifications), 23.57 (procedures for Chief Appraiser to follow in

application seeking to qualify for open-space land appraisal).        But those two

sections relate to an allegation that an agency failed to follow all procedural

requirements, which does not amount to an ultra vires claim. See O’Connor &

Assocs., 267 S.W.3d at 419.

      Because the Moerses failed to allege an ultra vires claim against the Chief

Appraiser, we hold that the trial court properly dismissed their claims against the

Chief Appraiser.

      We overrule the Moerses’ third issue.

C.    The summary judgment and plea to the jurisdiction disposed of all
      claims

      In their fourth issue, the Moerses contend that HCAD’s motion for final

summary judgment did not cover all of their pending claims and, therefore, the trial

court granted greater relief than the motion justified by entering a final judgment.

      The Moerses specifically argue that HCAD’s motion did not address their

Declaratory Judgment causes of action contained in paragraphs 13 and 14 of their


                                          20
Eighth Amended Petition. In paragraphs 13 and 14, the Moerses requested a

declaratory judgment that “HCAD and/or the Chief Appraiser” had “imposed

additional rules in violation of statutory requirements for agricultural appraisal

which are neither valid nor enforceable” and attempts to add a “minimum land

area” requirement was “inconsistent with the requirements set forth in the Texas

Constitution, the Texas Property Code Tax Code, and the Manual.” These were

their claims:

   • “Pursuant to the Uniform Declaratory Judgment Act, Texas Civil Practice &
     Remedies Code § 37.001 et seq., Plaintiffs request [a] declaratory judgment
     declaring that Defendant HCAD and/or Defendant Chief Appraiser has
     imposed additional rules in violation of statutory requirements for
     agricultural appraisal which are neither valid nor enforceable . . .
     Specifically, Plaintiffs would show that the attempts by HCAD and/or Chief
     appraiser to add a ‘minimum land area’ requirement for property owners to
     achieve [open-space land] agricultural appraisal is beyond, as well as
     inconsistent with, the requirements set forth in the Texas Constitution, the
     Texas Property Tax Code, and the Texas Property Tax Manual for the
     Appraisal of Agricultural Land . . . HCAD and/or Chief Appraiser have
     improperly set an arbitrary size of land as an element that must be met by a
     property owner to meet the degree of intensity test required for [open-space
     land] agricultural appraisal.”

   • “Defendants HCAD and Chief Appraiser have wrongfully added an element
     to achieve [open-space land] agricultural appraisal that is beyond, as well as
     inconsistent with, the requirements set forth in the Texas Constitution, the
     Texas Property Code, and the Manual for Appraisal of Agricultural Land.
     Plaintiffs respectfully request . . . a declaratory judgment declaring that
     Defendant HCAD’s and/or Defendant Chief Appraiser’s imposition of an
     arbitrary ‘minimum land area’ requirement to achieve [open-space land]
     agricultural appraisal is invalid and unenforceable . . . .”




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      Although the Moerses assert these allegations against “HCAD and/or the

Chief Appraiser,” only the Chief Appraiser has authority to develop and adopt the

Standards. Tex. State Comptroller of Pub. Accounts, Qualification of Land Under

Section 1-d-1, at 9. Therefore, the Moerses cannot assert such a claim against

HCAD.        Having concluded that all claims against the Chief Appraiser were

properly dismissed by the plea to the jurisdiction, we conclude that the trial court

dismissed the Moerses’ claims related to the requested declaratory judgment.

      We overrule the Moerses’ fourth issue.

D.    The trial court erred in dismissing the Moerses’ 2012 claims with
      prejudice

      In their fifth issue, the Moerses contend that the trial court erred by

dismissing each of their claims for tax year 2012 with prejudice. HCAD agrees

that the trial court should not have dismissed these claims for tax year 2012 with

prejudice.

      In its plea to the jurisdiction, HCAD moved to dismiss the Moerses’ claims

for tax year 2012 for lack of subject-matter jurisdiction on the grounds that they

failed to exhaust administrative remedies for that year. The trial court dismissed

all of the Moerses’ claims for tax year 2012 with prejudice. But dismissal for

failure to exhaust all administrative remedies “does not implicate the claims’

merits, [and] the trial court must dismiss [such] claims without prejudice.” Subaru

of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). We


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thus conclude that the trial court erred by dismissing the claims with prejudice and

modify the trial court’s judgment to reflect that the 2012 claims were dismissed

without prejudice. See TEX. R. APP. P. 43.2(b) (court of appeals may modify trial

court’s judgment and affirm it as modified).

      We sustain the Moerses’ fifth issue.

E.    The trial court did not abuse its discretion in assessing costs against
      Daniel

      In their sixth issue, the Moerses contend that the trial court abused its

discretion by assessing costs against Daniel.

      Texas Rule of Civil Procedure 131 provides that the “successful party to a

suit shall recover of his adversary all costs incurred therein, except where

otherwise provided.” TEX. R. CIV. P. 131. But the Tax Code includes a more

specific provision regarding costs in a suit over an appraisal review board’s denial

of a hearing: “[a] property owner who has been denied a hearing to which the

property owner is entitled may bring suit against the appraisal review board . . . [i]f

the property owner is entitled to the hearing, the court shall order the hearing to be

held and may award court costs . . . .” TEX. TAX CODE ANN. § 41.45(f) (West

2015). A trial court thus has discretion in awarding costs when a party prevails on

a claim relating to the entitlement to a hearing with the appraisal review board.

See TEX. GOV’T CODE ANN. § 311.026(a) (West 2015) (providing that specific

provision controls over general provision).


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      According to Daniel, the trial court should not have assessed costs against

him because he prevailed on his claim to obtain a protest hearing with HCARB for

2012, and the record makes no mention of good cause justifying an award of costs

against him. But it was within the trial court’s discretion to not award Daniel

costs. See TEX. TAX CODE ANN. § 41.45(f) (“If the property owner is entitled to

the hearing, the court shall order the hearing to be held and may award court costs

. . . .”) (emphasis added). Further, Daniel did not prevail on any of his multiple

other claims relating to the open-space land appraisal. Accordingly, we hold that

the trial court did not abuse its discretion in assessing costs against Daniel.

      We overrule the Moerses’ sixth issue.

                                     Conclusion

      We modify the trial court’s order dismissing Appellants’ claims for tax year

2012 to provide that the dismissal is without prejudice. We affirm the trial court’s

judgment as modified.




                                                Rebeca Huddle
                                                Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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