                                        COURT OF APPEALS
                                     EIGHTH DISTRICT OF TEXAS
                                          EL PASO, TEXAS

                                                       §
 INDUSTRIAL COMMUNICATIONS,
 INC.,                                                 §                 No. 08-07-00083-CV

                           Appellant,                  §                      Appeal from

 v.                                                    §                  143rd District Court

 WARD COUNTY APPRAISAL                                 §                of Ward County, Texas
 DISTRICT and WARD COUNTY
 APPRAISAL REVIEW BOARD,                               §              (TC # 06-01-21130-CVW)

                           Appellees.                  §


                                                OPINION

       Industrial Communications, Inc. appeals from a summary judgment in favor of Ward County

Appraisal District and Ward County Appraisal Review Board (the Taxing Entities). We sustain

Issues One and Two; reverse the trial court’s order granting summary judgment in favor of the

Taxing Entities; reverse the trial court’s order denying Industrial’s motion for summary judgment;

render judgment granting Industrial’s motion for summary judgment on its declaratory judgment

action; and render judgment awarding attorney’s fees to Industrial.

                                         FACTUAL SUMMARY

       In July of 2000, Industrial Communications (Industrial) finalized its purchase of the accounts

receivable and equipment of Industrial Communications of Pecos, Inc. (ICP). The equipment

included three radio towers located on Barstow Hill in Ward County.1 Industrial’s headquarters was

located in Odessa, Texas while ICP was located in Pecos. In June of 2000, Industrial’s general


       1
           The towers are known as the PRD tower, the Dowell tower, and the Bell tower.
manager, Charles E. Wood, began the process of registering Industrial’s purchase of the three radio

towers from ICP.         On June 24, 2000, he accessed the internet and went to the Federal

Communication Commission’s website to register Industrial as the new owner of the three radio

towers. Wood believed he had successfully registered Industrial as the owner of the three towers

with the FCC, but he learned in 2006 that the online registration had been unsuccessful due to a

software problem; consequently, the FCC did not show Industrial as the owner. Anita Miller,

Industrial’s Accounts Payable and Accounts Receivable Clerk, notified all customers and vendors

of both Industrial and ICP of the address change when Industrial purchased ICP. Further, Industrial

had an employee at the Pecos address from February 5, 2002 through June 30, 2003. Thereafter,

Industrial made a change of address with the United States Post Office and requested that all mail

sent to the Pecos address be forwarded to the Odessa address.

        Beginning in tax year 2001, Industrial filed renditions on the property previously owned by

ICP but the renditions did not include the three Barstow Hill radio towers. The renditions were

accepted by Ward County, Industrial was taxed according to the rendered values, and Industrial

timely paid its taxes. Sometime prior to April 1, 2004, Industrial’s comptroller, Peggy Clemons,

received a letter from Ward County Appraisal District advising Industrial about a law created by

Senate Bill 340 which concerned the filing of business personal property renditions.2 The letter

advised that the new law, effective January 1, 2004, would impose tough penalties for failure to file

a rendition with the appraisal district or for filing after the statutory deadline of April 15, 2004.

Clemons thoroughly reviewed Industrial’s depreciation schedules and discovered that the three

Barstow Hill radio towers had been omitted and had never been rendered by either ICP or Industrial.



        2
         The letter is undated and the summary judgment evidence does not show when the letter was sent by the W ard
County Appraisal District or when it was received by Industrial.
On April 1, 2004, Clemons, on behalf of Industrial, prepared a business personal property rendition

of taxable property listing the three Barstow Hill radio towers with a total value of $15,5003 and

submitted it to the Ward County Appraisal District. Ward County Appraisal District accepted the

rendition and assessed the 2004 taxes on the three towers in accordance with the rendered values.

In October of 2004, Industrial received a 2004 tax bill for the Barstow Hill radio towers and other

property rendered by Industrial and it paid this bill on January 1, 2005. The 2004 taxes on the

Barstow Hill radio towers totaled $339.97. The Appraisal District also used the 2004 values for the

three radio towers in the 2005 notice of appraised value.

         In November 2004, Industrial received a delinquent account notice for the Barstow Hill radio

towers for the 2003 tax year. The notice was addressed to ICP but sent to Industrial’s address in

Odessa. This was the first notice Industrial had received regarding the 2003 property taxes for the

Barstow Hill radio towers because the prior notices, dated May 8, 2003, had allegedly been sent to

ICP at its address in Pecos.4 The Appraisal District had obtained the ownership information and

address listed on the prior notices from the Federal Communication Commission. According to this

notice, the 2003 taxes due on the Barstow Hill radio towers was $6,826.52 because the Appraisal

District showed the value of the three towers as $67,250 for the PRD tower, $74,750 for the Dowell

tower, and $79,750 for the Bell tower. Although the Ward County Appraisal District accepted the

2004 rendition showing the total value of the three towers as $15,500, the 2003 appraised value of

the towers was set at $221,750, a fourteen-fold increase. The 2003 taxes had become delinquent on

February 1, 2004. Around November 15, 2004, Industrial received a notice of the Appraisal


         3
             Two towers were listed at $5,000 each and the third tower had a listed value of $5,500.

         4
             Anita M iller, who processes all mail for Industrial, stated in her summary judgment affidavit that before
Industrial received the notice in November of 2004, “[n]o tax notice, bill, or any other communication regarding the 2003
taxes on the Barstow Hill radio towers was received at either the Pecos or Odessa addresses.”
District’s intent to sue. Like the delinquent account notice, the notice of intent to sue was addressed

to ICP but it was mailed to Industrial’s address in Odessa. Upon receipt of the notice of intent to

sue, Clemons prepared a property tax notice of protest for the 2003 taxes, and in the cover letter, she

complained about the Appraisal District’s failure to provide notice. The Appraisal District and

Appraisal Review Board refused to grant Industrial a hearing on its protest for the stated reason that

the “deadline for filing a protest based on failure of the chief appraiser to deliver a notice to which

the property owner is entitled has passed.”

       On January 4, 2006, Industrial filed suit against the Appraisal District and the Appraisal

Review Board pursuant to Section 41.45(f) of the Tax Code seeking to compel the Appraisal Review

Board to hold a hearing on its protest. Alternatively, Industrial sought a declaratory judgment that

(1) the Texas Tax Code, as applied to Industrial, failed to provide due process; (2) the attempt to

collect taxes, penalties, and interest from Industrial without adequate notice or a hearing violated

Industrial’s right to due process, and (3) the 2003 taxes assessed on the radio towers are void.

Industrial filed a motion for summary judgment on all of its claims. The Appraisal District and the

Appraisal Review Board filed a motion for summary judgment on the sole ground that Industrial had

not exhausted the administrative remedies provided by the Property Tax Code. The trial court denied

Industrial’s motion for summary judgment and granted summary judgment in favor of the Appraisal

District and the Appraisal Review Board.

                                    SUMMARY JUDGMENT

       Industrial presents two issues on appeal complaining that the trial court erred in granting the

Taxing Entities’ motion for summary judgment and denying Industrial’s motion for summary

judgment because taxes were assessed against Industrial’s property without notice and a reasonable

opportunity to be heard. The Taxing Entities respond that the trial court properly denied Industrial’s
motion for summary judgment because the Appraisal District complied with all notice requirements

under the Property Tax Code by delivering notice of the 2003 appraisal to the record owner of the

property, ICP. Further, they contend that the trial court properly granted summary judgment in their

favor because Section 41.411 provides the exclusive administrative remedy for lack of notice and

Industrial failed to exhaust its administrative remedies under that section.

                                         Standard of Review

       When both parties move for summary judgment and the trial court grants one motion and

denies the other, the reviewing court should review both parties’ summary judgment evidence and

determine all questions presented. Dow Chemical Company v. Bright, 89 S.W.3d 602, 605 (Tex.

2002). In a traditional summary judgment case, the issue on appeal is whether the movant met its

summary judgment burden by establishing that no genuine issue of material fact exists and that the

movant is entitled to judgment as a matter of law. TEX .R.CIV .P. 166a(c); Southwestern Electric

Power Company v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The burden of proof is on the movant,

and all doubts about the existence of a genuine issue of material fact are resolved against the movant.

Southwestern Electric, 73 S.W.3d at 215. Evidence favorable to the non-movant will be taken as

true in deciding whether there is a disputed issue of material fact. Fort Worth Osteopathic Hosp.,

Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). All reasonable inferences must be resolved in favor

of the non-movant. Id.

                                 Taxpayer Entitled to Due Process

       Collection of a tax constitutes a deprivation of property; therefore, a taxing unit must afford

a property owner due process of law. McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco,

Dept. of Bus. Regulation of Florida, 496 U.S. 18, 36-7, 110 S.Ct. 2238, 2250-51, 110 L.Ed.2d 17

(1990); Appraisal Review Board of the El Paso County Central Appraisal District v. Fisher, 88
S.W.3d 807, 813 (Tex.App.--El Paso 2002, pet. denied). Due process affords a party the right to be

heard before final assessment of the taxes; it does not detail the review mechanism. Denton Central

Appraisal District v. CIT Leasing Corporation, 115 S.W.3d 261, 265-66 (Tex.App.--Fort Worth

2003, pet. denied). In cases involving taxation, due process is satisfied if the taxpayer is given an

opportunity to be heard before some assessment board at some stage of the proceedings. Id.; Fisher,

88 S.W.3d at 813.

                                    Due Process under the Texas Tax Code

         Pursuant to Section 41.41 of the Tax Code, a property owner is entitled to protest before the

appraisal review board several actions, including a determination of the appraised value of the

owner’s property. TEX .TAX .CODE ANN . § 41.41(a)(Vernon 2008). Additionally, a property owner

is entitled to protest before the appraisal review board the failure of the chief appraiser or the

appraisal review board to provide or deliver any notice to which the property owner is entitled.

TEX .TAX .CODE ANN . § 41.411(a)(Vernon 2008). If failure to provide or deliver the notice is

established, the appraisal review board shall determine a protest made by the property owner on any

other grounds of protest authorized by the Tax Code. TEX .TAX .CODE ANN . § 41.411(b)(Vernon

2008).

         Under the version of Section 41.44 applicable to this case, a property owner who wishes to

protest pursuant to Section 41.411 must file the protest before the date the taxes on the subject

property become delinquent. Acts 2005, 79th Leg., R.S., ch. 829, § 1, 2005 Tex.Gen.Laws 2839

[current version found at TEX .TAX CODE ANN . § 41.44(c)(Vernon 2008)]. The property owner must

comply with the payment requirements of Section 42.085 or the property owner forfeits the right to


         5
           See T EX .T AX .C O D E A N N . § 42.08(b)(Vernon 2008)(providing that the property owner must pay before the
delinquency date the lesser of the amount of taxes due on the portion of the taxable value of the property not in dispute,
or the amount of taxes due on the property under the order from which the appeal is taken).
a final determination of the protest.                See Acts 1985, 69th Leg., R.S., ch. 504, § 1, 1985

Tex.Gen.Laws 2089 [current version found at TEX.TAX.CODE ANN. § 41.411(c)(Vernon 2008].6 The

pre-2008 version of Section 41.411 gave most property owners the opportunity to be heard at some

stage of the administrative proceeding, satisfying due process. The issue in this case is whether the

pre-2008 Tax Code provides due process for a property owner who is not given notice of the

inclusion of property on the appraisal roll and the assessment of taxes until after the taxes have

become delinquent. The authors of one law review article have concluded that the pre-2008 version

of Section 41.411 left open a small gap in which the Tax Code fails to provide adequate due process

for a taxpayer who does not receive notice in time to take advantage of Section 41.411, and

appropriate pre-Code remedies may still be available. Farley P. Katz and Charles J. Muller III,

Procedural Rights and Remedies under the Texas Property Tax Code--A Guide to the Code, Recent

Amendments, and Developing Case Law, 18 St. Mary’s L.J. 1209, 1232 (1987). The 2007

amendment to Section 41.411(c) and the addition of Section 41.44(c-3) presumably close this gap,

but the amendments do not apply to this case.

                                     Exhaustion of Administrative Remedies

         We now consider whether the trial court properly granted summary judgment in favor of the

Taxing Entities on their motion for summary judgment. In the sole ground addressed to the merits



         6
                In 2007 while this appeal was pending, the Legislature amended Section 41.411(c) to provide that the
delinquency date for purposes of Section 42.08(b) for the taxes on the property subject to a protest under this section
is postponed to the 125th day after the date that one or more taxing units first delivered written notice of the taxes due
on the property, as determined by the appraisal review board at a hearing under Section 41.44(c-3). T EX .T AX C O D E A N N .
§ 41.411(c)(Vernon 2008). However, the amendment applies only to an ad valorem tax protest filed on or after the
effective date of the act, January 1, 2008. Acts 2007, 80th Leg., R.S., ch. 1106, § 4(c), 2007 T EX .G EN .L AW S 3738, 3739.
Section 41.44(c-3) now permits a property owner to file a protest under Section 41.411 not later than the 125th day after
the property owner, in the protest filed, claims to have first received written notice of the taxes in question. T EX .T AX
C O D E A N N . § 41.44(c-3)(Vernon 2008). This amendment applies only to an ad valorem tax protest filed on or after the
effective date of the Act, January 1, 2008. Acts 2007, 80th Leg., R.S., ch. 1106, § 4(c), 2007 T EX .G E N .L A W S 3738,
3739.
of Industrial’s suit, the Taxing Entities alleged that Industrial cannot maintain its suit in the district

court because it failed to exhaust its administrative remedies provided by the Tax Code. More

specifically, the Taxing Entities argued that Industrial was required to file a protest pursuant to

Section 41.411 and it was required to pay taxes on the property in accordance with Section 42.08 in

order to maintain its suit. Industrial argues, as it did in the trial court, that the Tax Code does not

provide it with any administrative remedies because it did not receive notice of the 2003 taxes until

after the taxes had become delinquent, and therefore, a Section 41.411 protest was unavailable.

        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 generally dismiss such claims without prejudice. TEX .GOV ’T CODE ANN .

§ 2001.171 (Vernon 2008); Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d

212, 221 (Tex. 2002); MAG-T, L.P. v. Travis Central Appraisal District, 161 S.W.3d 617, 624

(Tex.App.--Austin 2005, pet. denied); see TEX .GOV ’T CODE ANN . § 311.034 (Vernon Supp.2008)

(“Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements

in all suits against a governmental entity.”). Taxing authorities have exclusive jurisdiction over tax

disputes, and taxpayers must therefore exhaust their administrative remedies before seeking judicial

review. MAG-T, 161 S.W.3d at 624; see General Electric Credit Corporation v. Midland Central

Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991)(recognizing that taxpayer is required to exhaust

administrative procedures before challenging tax assessment); Webb County Appraisal District v.

New Laredo Hotel, 792 S.W.2d 952, 954-55 (Tex. 1990)(holding that taxpayer who failed to appear

at administrative protest hearing was deemed to have failed to exhaust his administrative remedies,

thus depriving district court of its jurisdiction to hear case); ABT Galveston Ltd. Partnership v.
Galveston Central Appraisal District, 137 S.W.3d 146, 157-58 (Tex.App.--Houston [1st Dist.] 2004,

no pet.)(stating that taxpayer who did not timely file protest was deemed to have failed diligently to

pursue or to exhaust its administrative remedies under Texas Property Tax Code, thus depriving

district court of jurisdiction to hear claim); see also TEX .TAX CODE ANN . § 42.09(a)(Vernon

2008)(stating that remedies set forth in Texas Property Tax Code are exclusive except as provided

by Subsection (b) of Section 42.09).         An aggrieved party is excused from exhausting its

administrative remedies under certain circumstances: (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 the appraised property’s value deprives the taxing authority of jurisdiction and voids the

appraisal. MAG-T, 161 S.W.3d at 625.

       The Taxing Entities argue that the administrative remedies provided by the Tax Code are

exclusive and Industrial failed to exhaust its administrative remedies because it did not file a protest

pursuant to Section 41.411 of the Tax Code. But as we have already noted, such a protest must be

filed before the date on which the taxes on the subject property become delinquent. It is undisputed

that until November of 2004 Industrial did not have actual notice that the Barstow Hill radio towers

had been included on the 2003 tax roll or that taxes had been assessed on the 2003 appraised value.

By the time Industrial received notice from the Taxing Entities, the taxes were already delinquent.

Thus, the remedy provided by Section 41.411 was unavailable to Industrial.

       The Taxing Entities concede the lack of notice but argue that Industrial is presumed to know

that it owed taxes on the three radio towers, and therefore, it had constructive notice that some

amount of tax was due by the delinquency date. Given this constructive notice, the Taxing Entities
reason that Industrial cannot maintain its suit in the district court unless it made diligent efforts to

protest and exhausted its administrative remedies. In support of this argument, they cite Mag-T, L.P.

v. Travis Central Appraisal District, 161 S.W.3d 617 (Tex.App.--Austin 2005, pet. denied) and

Denton Central Appraisal District v. CIT Leasing Corporation, 115 S.W.3d 261 (Tex.App.--Fort

Worth 2003, pet. denied).

         In Mag-T, the taxpayers owned commercial property in Travis County. Mag-T, 161 S.W.3d

at 621. The appraisal district sent notices of appraised property value to the taxpayers for the 2003

tax year. Id. at 623. The taxpayers did not protest the appraisal values and the appraisal roll was

approved and certified. After the tax assessor sent tax statements, the taxpayers timely filed amnesty

renditions by the December 1, 2003 deadline after the property had already been assessed for taxes.7

Consequently, the appraisal district prepared supplemental appraisal records that were approved by

the appraisal review board 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, were received by the taxpayers around January 14. The taxpayers

did not file protests but instead sued the appraisal district, the appraisal review board, and the tax-

assessor collector asserting that the taxing authorities had improperly increased the property taxes

after the appraisal roll had been certified. The taxpayers argued they were excused from exhausting

their administrative remedies under various exceptions. Among other things, the taxpayers

complained that the notice they received was defective. The district court found that the taxpayers

had not exhausted their administrative remedies and dismissed the suit for lack of jurisdiction. The


         7
            In 2003, 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. Acts 2003, 78th Leg.,
ch. 1173, § 6, 2003 T EX .G EN .L AW S 3353, 3355. If a taxpayer filed a rendition statement of the omitted property before
December 1, 2003, the chief appraiser could not add the value of the omitted property to the 2001 or 2002 appraisal roll.
Id.
Austin Court of Appeals affirmed, finding that none of the exceptions to the exhaustion of

administrative remedies doctrine excused the taxpayers’ failure to exhaust their administrative

remedies. Id. at 625-35. The court of appeals specifically held that 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. Id. 631-32. Further, the court

refused to accept the taxpayers’ argument “that would permit a property owner to do nothing when

confronted with an obviously erroneous tax bill.” Id. at 632.

       The instant case is factually distinguishable. In Mag-T, the taxpayers received notice in time

to file a protest but they simply chose not to pursue their administrative remedies. Here, Industrial

could not file a Section 41.411 protest because it did not get notice that the property had been

included on the 2003 appraisal roll until after the taxes had become delinquent. Mag-T does not

support the Taxing Entities’ argument that Industrial had constructive notice that it owed some

amount of taxes before the due date and failed to exhaust its administrative remedies.

       The Taxing Entities also rely on Denton Central Appraisal District v. CIT Leasing

Corporation, 115 S.W.3d 261 (Tex.App.--Fort Worth 2003, pet. denied). There, the taxpayer, CIT

Leasing, owned an airplane that was appraised for taxation by the appraisal district for the 1998 tax

year. Id. at 263. In November of 1998, the tax office informed CIT that the property had been

added to the 1998 appraisal roll and informed CIT of the appraised value, the amount of taxes owed,

and the delinquency date for those taxes. CIT paid the taxes and in March of 2000, it filed a notice

of protest alleging that it had not been provided with notice of the appraised value as required by

Section 25.19 of the Tax Code. The appraisal review board conducted a hearing on the protest and

determined that it was untimely. CIT filed suit in district court seeking to have the aircraft removed

from the appraisal roll. CIT filed a no-evidence motion for summary judgment, contending there
was no evidence that the appraisal district had sent it the notice of appraised value required under

Section 25.19. The taxing authorities filed a motion for traditional summary judgment alleging that

CIT’s failure to exhaust its administrative remedies precluded judicial review. The trial court

granted CIT’s motion and ordered the appraisal district to remove the property from the 1998

appraisal roll. The trial court also denied the appraisal district’s motion for summary judgment. The

Fort Worth Court of Appeals found that CIT had administrative remedies available to it under the

Tax Code because it received a tax assessment in November of 1998 and the delinquency date was

not until April 30, 1999. Id. at 265. CIT did not file a protest until March of 2000, more than ten

months after the delinquency date. Thus, the court of appeals concluded that CIT, by failing to

exhaust its administrative remedies, forfeited its right to a final determination of its protest and

precluded judicial review of the 1998 tax assessment on the aircraft. Id. at 266. In contrast with the

facts of this case, CIT Leasing received notice well in advance of the delinquency date and it had

ample time to take advantage of the protest procedures provided by the Tax Code. Industrial did not

receive notice until after the delinquency date. Like Mag-T, CIT Leasing does not support the

Taxing Entities’ argument that Industrial had constructive notice that it owed taxes on the towers and

failed to exhaust its administrative remedies.

       The undisputed summary judgment evidence established that Industrial did not have notice

that the Barstow Hill radio towers had been included on the 2003 appraisal roll or that taxes had been

assessed until after the taxes became delinquent on February 1, 2004. We thus conclude on these

facts, that the Tax Code did not provide Industrial with any remedies. The trial court erred in

granting summary judgment in favor of the Taxing Entities on the ground that Industrial failed to

exhaust its administrative remedies.

                            Industrial’s Motion for Summary Judgment
       We now consider whether the trial court properly denied Industrial’s motion for summary

judgment. By its suit, Industrial sought two alternative forms of relief: (1) judgment compelling the

Appraisal Review Board to hold a hearing pursuant to Section 41.45(f) on Industrial’s protest of the

appraised values; or (2) a declaratory judgment that the taxes were void because they had been

imposed without due process.

                                          Section 41.45(f)

       Section 41.45(f) provides that:
        A property owner who has been denied a hearing to which the property owner is
        entitled under this chapter may bring suit against the appraisal review board by filing
        a petition or application in district court to compel the board to provide the hearing.
        If the property owner is entitled to the hearing, the court shall order the hearing to be
        held and may award court costs and reasonable attorney fees to the property owner.
        [Emphasis added.]

TEX .TAX CODE ANN . § 41.45(f)(Vernon 2008). We have already determined that Industrial was not

entitled to a hearing under Section 41.411 because it did not receive notice until after the 2003 taxes

had become delinquent, and therefore, Industrial could not timely file a protest under that section.

Industrial’s protest made pursuant to Section 41.41 was untimely because it was made after the taxes

had been assessed and had become delinquent. See Acts 1999, 76th Leg., R.S., ch. 631, § 12, 1999

TEX .GEN .LAWS 3191, 3197 [current version found at TEX .TAX CODE ANN . § 41.44 (Vernon 2008)].

The Tax Code, as it existed prior to 2008, contains no procedural mechanisms to provide Industrial

a hearing on its protest. Thus, the trial court properly denied Industrial’s motion for summary

judgment on this cause of action.

                                        Declaratory Judgment

        Industrial also sought a declaratory judgment that (1) the Texas Tax Code, as applied to

Industrial, failed to provide due process; (2) the attempt to collect taxes, penalties, and interest from

Industrial without adequate notice or a hearing violated Industrial’s right to due process, and (3) the

2003 taxes assessed on the radio towers are void. It is undisputed that Industrial’s property was

included on the 2003 appraisal roll and taxes were assessed on the property without notice to

Industrial until after the taxes had become delinquent. Further, the Taxing Entities refused all of

Industrial’s requests for a hearing on the late notice or the merits of the dispute about the values

assigned to the Barstow Hill radio towers. Nevertheless, the Taxing Entities responded to

Industrial’s motion for summary judgment by arguing they were not obligated to provide notice
under the Tax Code because Industrial failed to put them on notice that it owned the three radio

towers or notify them of its change of address.

          Exaction of a tax constitutes a deprivation of property, and 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 Corporation v. Division of Alcoholic Beverages &

Tobacco, Department of Business Regulation of Florida, 496 U.S. 18, 36, 110 S.Ct. 2238, 2250, 110

L.Ed.2d 17 (1990); Appraisal Review Board of the El Paso County Central Appraisal District v. )(,

88 S.W.3d 807 (Tex.App.--El Paso 2002, pet. denied). At a minimum, due process in this context

requires notice and a fair opportunity to be heard before deprivation of a protected property interest.

McKesson, 496 U.S. at 37, 110 S.Ct. at 2250. In tax cases, 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 Central Appraisal District, 115 S.W.3d at 266.

          The Tax Code requires the chief appraiser to provide property owners with written notice of

the appraised value of the property owner’s property if the property was not on the appraisal roll in

the preceding year. TEX .TAX CODE ANN . § 25.19(a)(3)(Vernon 2008). The Taxing Entities concede

that sending notice to ICP at the Pecos address did not provide Industrial with the required notice,

but they maintain that Industrial was not entitled to notice because it failed to inform the Appraisal

District that it owned the property by properly recording its interest or by rendering the property for

taxation. The Taxing Entities cite Dallas Central Appraisal District v. Brown, 19 S.W.3d 878

(Tex.App.--Dallas 2000, no pet.) in support of their argument that Industrial was not entitled to

notice.

          In Dallas Central Appraisal District, the Browns filed suit in district court challenging the

denial of a property tax homestead exemption for tax years 1993 through 1996. The Browns
purchased the home in 1992 but they did not record their warranty deed. They lived in the home

continually until 1998 and paid property taxes but did not file an application for a property tax

homestead exemption. The prior homeowner had been granted a homestead exemption and the

Browns paid property taxes based on the prior owner’s exemption. In 1997, the Dallas Central

Appraisal District learned the Browns had not applied for a homestead exemption and canceled the

prior owner’s exemption. The appraisal district sent notice of the cancellation to the previous owner

who delivered the notice to the Browns. On February 18, 1998, the Browns filed an application for

a homestead exemption requesting an exemption for the tax years 1993 through 1998. The appraisal

district granted the exemption for 1997 and 1998 but denied it for the previous years. The Browns

filed a notice of protest with the appraisal review board and recorded their warranty deed on July 6,

1998. The appraisal review board denied the protest for the years 1993 through 1996 and the

Browns filed suit in district court. The district court granted summary judgment in favor of the

Browns and ordered that they were entitled to a homestead exemption for tax years 1993 through

1996. The Dallas Court of Appeals reversed the summary judgment because the Tax Code provides

that a taxpayer may not receive an exemption for a year in which the taxpayer fails to file a timely

application. TEX .TAX CODE ANN . § 11.43(e)(Vernon 2008). The evidence showed the Browns did

not file an application until 1998. An appraisal district has a nondiscretionary duty to remove

erroneous exemptions if discovered within five years. TEX .TAX CODE ANN . § 11.43(i)(Vernon

2008); Brown, 19 S.W.3d at 880. Because the Browns did not comply with the statutory scheme

for claiming a homestead property tax exemption for the years 1993 through 1996, they were not

entitled to a homestead exemption for these years and the chief appraiser was under a statutory duty

to reappraise the property for the period of time the Browns erroneously benefitted from the prior

owner’s exemption. See Brown, 19 S.W.3d at 880. The Browns argued that the appraisal district
could not deny the claimed exemption for 1993 through 1996 because the appraisal district had not

complied with Section 25.19(g) of the Tax Code requiring the appraisal district to send notice to the

property owner if the ownership of the property changed during the preceding year. The Court of

Appeals rejected this argument because the Browns’ construction of the Tax Code was unreasonable

as it would bar an appraisal district from removing an erroneous exemption as long as the current

property owners were successful in hiding the most recent conveyance of the property. Id. at 882.

The court went on to hold that where the taxpayers failed to record their warranty deed, the appraisal

district could not be faulted for any failure to comply with Section 25.19(g). Id.

       Brown is distinguishable from the instant case because the Browns did not file suit asserting

a due process violation arising from a lack of notice and no opportunity to protest an action of the

taxing authorities. The taxpayers there had notice of the appraisal district’s removal of the

exemption in time to file a protest with the appraisal review board. Further, the Tax Code placed

a duty on the Browns to timely file an application seeking the homestead exemption. The penalty

for failure to file that application is the removal of the homestead exemption to which the Browns

were not entitled. In contrast, the only statutorily-imposed requirement Industrial failed to perform,

filing a rendition, does not result in the imposition of taxes without due process or the removal of

any exemption to which Industrial was entitled under the Tax Code.

       A person is required to render for taxation all tangible personal property used for the

production of income that the person owns. TEX .TAX CODE ANN . § 22.01 (Vernon 2008). The Tax

Code imposes substantial penalties on a person who fails to render property for taxation. TEX .TAX

CODE ANN . § 22.28 (a)(Vernon 2008)(failure to timely file a rendition statement subjects the person

to a penalty in an amount equal to ten percent of the total amount of taxes imposed on the property
for that year by taxing units participating in the appraisal district).8 The chief appraiser may waive

the penalty if the chief appraiser determines that the person exercised reasonable diligence to comply

with or has substantially complied with the requirements of Chapter 22 of the Tax Code. TEX .TAX

CODE ANN . § 22.28 (Vernon 2008). Nothing in the Tax Code indicates that failure to render

property constitutes a forfeiture of the right to due process. The Taxing Entities do not cite any

authority for their argument that a property owner’s failure to render property constitutes a waiver

of the property owner’s constitutional right to due process. In the absence of any supporting

authority, we decline to hold that the notice and hearing requirements of the Tax Code are contingent

on the filing of a rendition statement. The Taxing Entities’ argument that Industrial waived its right

to due process by failing to render the Barstow Hill radio towers is without merit.

         The Taxing Entities also maintain that Industrial was not entitled to notice because it failed

to advise them of its address change. While it is certainly advisable for a property owner to keep the

taxing authorities informed of any change of address, the Tax Code does not require a property

owner to inform the appraisal district of his current address nor does it provide that failure to do so

waives the right to notice. The Tax Code does not state that the appraisal district’s obligation to

provide the notice required by Section 25.19 is contingent upon the property owner notifying the tax

assessor of its current address. The Taxing Entities do not cite any cases holding that a property

owner forfeits his right to due process if he fails to inform the taxing authorities of his current

address. The United States Supreme Court has held that a taxpayer’s failure to comply with a

statutory obligation to keep his address updated did not forfeit his right to constitutionally sufficient

notice. See Jones v. Flowers, 547 U.S. 220, 232, 126 S.Ct. 1708, 1717, 164 L.Ed.2d 415 (2006).



         8
           The statute authorizing imposition of the penalty became effective on January 1, 2004. Thus, Industrial was
not subject to a penalty for failure to render the radio towers in the prior years.
The Taxing Entities’ argument is also undercut by Section 41.411 which affords a property owner

the right to protest the failure of the chief appraiser or review board to provide or deliver a required

notice to the property owner. A taxpayer’s ability to seek relief pursuant to Section 41.411 is not

contingent on the property owner keeping the taxing authorities informed of his current address. If

the Taxing Entities are correct that a property owner forfeits his right to due process if he does not

keep the taxing authorities informed of his current address, the remedy provided by Section 41.411

would be limited to those cases where the taxpayer is not at fault.

       Finally, the Taxing Entities urge that Industrial waived its right to due process because it

failed to properly record its property interest in the three radio towers. Again, the Taxing Entities

cite no authority in support of their argument that a property owner forfeits its right to due process

by not recording its ownership of the subject property. If the evidence established that a taxpayer

affirmatively attempted to hide its ownership of the property and avoid paying taxes, an argument

could be made that the taxpayer intentionally relinquished its constitutional right to due process.

Waiver is defined as “an intentional relinquishment of a known right or intentional conduct

inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003),

quoting Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987). Waiver is largely

a matter of intent, and for implied waiver to be found through a party’s actions, intent must be clearly

demonstrated by the surrounding facts and circumstances. Jernigan, 111 S.W.3d at 156; Motor

Vehicle Board v. El Paso Independent Automobile Dealers Association, Inc., 1 S.W.3d 108, 111

(Tex. 1999). There can be no waiver of a right if the person sought to be charged with waiver says

or does nothing inconsistent with an intent to rely upon such right. Jernigan, 111 S.W.3d at 156.

Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are

undisputed, the question becomes one of law. Id. at 156-57. Here, there is no evidence that
Industrial attempted to hide its ownership of the Barstow Hill radio towers. Instead, the summary

judgment evidence established that Industrial made a diligent effort to record its interest in the

property but was unsuccessful due to a software problem. Industrial presented the affidavits of

Charles Wood, general manager of Industrial, and Peggy Clemons, comptroller of Industrial, in

support of its motion for summary judgment. On June 24, 2000, Wood attempted to register

Industrial as the new owner of the Barstow Hill radio towers. Industrial attached a printout from that

online registration effort dated June 24, 2000 and showing Industrial as the registrant. Wood

believed he had successfully registered Industrial’s ownership of the towers on the FCC website.

Clemons also believed the radio towers had been registered with the FCC at the time of the purchase

in July of 2000. After this lawsuit was filed, Clemons attempted to confirm the registration of the

radio towers with the FCC. She contacted the FCC and was told that Industrial’s registration had

not been acknowledged and the towers remained registered to ICP. Between January 2006 and

March 2006, Clemons attempted to register the towers to Industrial three different times. Each time

she believed the registration had been successfully completed but it was not. She worked with the

FCC online and by telephone and the FCC finally determined that the registration had not been

completed because Industrial needed JAVA software to complete the registration online. The towers

were finally registered to Industrial on March 9, 2006. Under these undisputed facts, we decline to

hold that Industrial forfeited or waived its right to due process.

       Industrial conclusively established that it did not receive notice of the inclusion of the three

Barstow Hill radio towers on the 2003 appraisal roll and it did not have an opportunity to protest the

appraised values of the property before taxes were assessed on the property. Because Industrial did

not receive notice prior to the taxes on the property becoming delinquent, the remedy provided by

Section 41.411 is unavailable to Industrial and the Tax Code does not provide any other backward-
looking relief to rectify the unconstitutional deprivation. Accordingly, we conclude that Industrial

conclusively established that its right to due process was violated. The trial court erred by denying

Industrial’s motion for summary judgment on its declaratory judgment action.

        We must now determine what remedy is appropriate to rectify the due process violation.

Industrial asks that we render a judgment declaring that the Taxing Entities’ failure to provide due

process renders the assessed taxes and associated penalties void. On the other hand, the Taxing

Entities point to Section 25.19(d) of the Tax Code which 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(d)(Vernon 2008). Application of Section 25.19(d)

is reasonable where a taxpayer has an opportunity to protest a lack of notice pursuant to Section

41.411 and other Tax Code provisions permit the correction of the records and issuance of

supplemental tax bills after a taxpayer has been given an opportunity to be heard. But if we apply

Section 25.19(d) literally, this taxpayer is left without a remedy for a due process violation. The pre-

2008 version of the Tax Code simply does not provide a remedy for the situation presented by this

case. Accordingly, we find that Section 25.19(d) is inapplicable to these unique facts.

        Given the unavailability of any remedies provided by the Tax Code, it is appropriate to look

to the equitable remedies available in cases decided prior to enactment of Section 41.411. See, e.g.,

Appraisal Review Board of the El Paso County Central Appraisal District v. Fisher, 88 S.W.3d 807,

813 (Tex.App.--El Paso 2002, pet. denied)(holding that because taxpayer did not receive notice or

have an opportunity for a hearing to contest the appraisal, he was denied due process and the taxes

and penalties assessed based on the appraisal are void); Harris County Appraisal District v. Dincans,

882 S.W.2d 75, 79 (Tex.App.--Houston [14th Dist.] 1994, writ denied)(holding that, under the law

as it existed at the time, the taxpayer was not required to exhaust administrative remedies because
it did not receive notice of appraised value); Harris County Appraisal Review Board v. General

Electric Corporation, 819 S.W.2d 915, 920 (Tex.App.--Houston [14th Dist.] 1991, writ

denied)(holding that appraisal district never acquired jurisdiction over the increase in value of the

property where taxpayer filed a chapter 41 protest); Bank of America National Trust & Saving

Association v. Dallas Central Appraisal District, 765 S.W.2d 451, 454 (Tex.App.--Dallas 1988, writ

denied)(holding that, under the law as it existed at the time, the appellant was denied procedural due

process); New v. Dallas Appraisal Review Board., 734 S.W.2d 712, 716 (Tex.App.--Dallas 1987,

writ denied)(holding that an appraisal district must deliver notice of appraised value before it obtains

jurisdiction to increase a value). Because Industrial did not receive notice of the inclusion of the

Barstow Hill radio towers on the 2003 tax roll and it did not have an opportunity to protest the 2003

appraisals on that property, we conclude that the 2003 taxes assessed on the radio towers and the

associated penalties are void. Fisher, 88 S.W.3d at 813. Issues One and Two are sustained.

                                        ATTORNEY’S FEES

        In its third issue, Industrial asserts that it was entitled to attorney’s fees under the Declaratory

Judgments Act. The Act provides that the trial court “may award costs and reasonable and necessary

attorney’s fees as are equitable and just.” TEX .CIV .PRAC. & REM .CODE ANN . § 37.009 (Vernon

2008). The granting or denial of attorney’s fees in a declaratory judgment action is within the trial

court’s discretion and is not dependent on a finding that a party substantially prevailed. Barshop

v. Medina County Underground Water Conservation District, 925 S.W.2d 618, 637 (Tex. 1996).

Article 37.009 imposes four limitations on the court’s discretion: the fees awarded must be

reasonable and necessary, which are matters of fact, and they must be equitable and just, which are

matters of law. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Abraxas Petroleum

Corporation v. Hornburg, 20 S.W.3d 741, 762 (Tex.App.--El Paso 2000, no pet.). Because the grant
or denial of attorneys’ fees is within the sound discretion of the trial court, its judgment will not be

disturbed on appeal in the absence of a clear showing that it abused its discretion. Oake v. Collin

County, 692 S.W.2d 454, 455 (Tex. 1985); Abraxas, 20 S.W.3d at 762. A trial court abuses its

discretion if its decision is arbitrary, unreasonable, or if the court acted without reference to guiding

legal rules and principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997); Abraxas, 20

S.W.3d at 762. In reviewing a fee award under the Act, we must determine whether the trial court

abused its discretion by awarding fees when there was insufficient evidence that the fees were

reasonable and necessary, or when the award was inequitable or unjust. Bocquet, 972 S.W.2d at 21;

Abraxas, 20 S.W.3d at 762-63. Conversely, in reviewing a trial court’s decision to not award fees,

we must examine whether the complaining party established not only that the fees sought are

reasonable and necessary, but also that the award is equitable and just. Abraxas, 20 S.W.3d at 763.

        The Taxing Entities argue that Industrial is not entitled to attorney’s fees under the

Declaratory Judgment Act because it did not prevail in the trial court. An award of attorney’s fees

under the Act is not dependent on a finding that a party substantially prevailed. Barshop, 925

S.W.2d at 637. We have determined that Industrial should have prevailed on its claim for

declaratory relief. The Taxing Entities did not controvert the evidence offered by Industrial showing

that a reasonable and necessary attorney’s fee for trial is $15,713, for appeal to this Court is $10,000,

and for appeal to the Texas Supreme Court is $7,500. Industrial argues that an award of attorney’s

fees is equitable and just under the circumstances of this case because it has incurred substantial

attorney’s fees to protect its due process rights even though the tax savings will likely be less than

$10,000. Although not economical for it to do so, Industrial has illustrated a gap in the Tax Code

which has been closed, albeit too late for Industrial to benefit. Other taxpayers caught in this same

gap will likely benefit from Industrial’s decision to prosecute this case. In the absence of any
argument that awarding attorney’s fees to Industrial is not equitable and just, we conclude that the

trial court abused its discretion by failing to award attorney’s fees to Industrial. Issue Three is

sustained.

                                         CONCLUSION

       Having sustained Issues One and Two, we render judgment declaring that Industrial’s right

to due process was violated because it did not receive notice of the appraisals or the imposition of

taxes on the Barstow Hill radio towers and it did not have an opportunity to protest the appraisals

before taxes were imposed on the property. We render judgment declaring void the 2003 taxes

assessed on the three Barstow Hill radio towers and the associated penalties. Having sustained Issue

Three, we render judgment awarding attorney’s fees to Industrial in the amount $15,713 for trial,

$10,000 for appeal to this Court, and $7,500 in the event of appeal to the Texas Supreme Court.
June 3, 2009
                                            ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating
