Reversed and Remanded and Opinion filed August 7, 2012.




                                    In The


                   Fourteenth Court of Appeals

                             NO. 14-11-00956-CV
                             NO. 14-11-00957-CV


                   PRATAP AND JAYA DESAI, Appellants
                                      V.
           CHAMBERS COUNTY APPRAISAL DISTRICT, Appellee


                                    AND


              VICTOR P. AND BONNIE K. YBARRA, Appellants
                                      V.
           CHAMBERS COUNTY APPRAISAL DISTRICT, Appellee

                   On Appeal from the 344th District Court
                           Chambers County, Texas
                 Trial Court Cause No. CV26666, No. CV26667



                                OPINION
        In this appeal we consider the impact under the “mailbox rule” of mailing
documents for filing to the district clerk at the physical address rather than a mailing
address. This consolidated appeal arises from two separate suits filed by property owners
in an appeal from the decisions of a county appraisal review board. The trial court
granted the appraisal review board’s respective pleas to the jurisdiction, finding that the
property owners’ petitions were not timely filed because they were addressed to the
physical address rather than the mailing address for the district clerk, and then returned
by the postal service after the statutory deadline. We reverse and remand.

                           FACTUAL AND PROCEDURAL BACKGROUND

        Plaintiffs/appellants Victor P. and Bonnie K. Ybarra and plaintiffs/appellants
Pratap and Jaya Desai (collectively, the “Property Owners”) respectively brought suits
against defendant/appellee Chambers County Appraisal District1 seeking to appeal
decisions relating to the Property Owners’ respective properties. The Property Owners
were represented by the same trial counsel, who mailed each petition to the Chambers
County District Clerk with proper postage affixed and the appropriate filing fees
enclosed. The petitions were returned unopened by the United States Postal Service
stamped, “Returned to Sender” and a handwritten mark beside a box labeled, “No Street
Delivery.” As a result, the Property Owners’ petitions were not accepted for filing before
the statutory deadline.

        In both cases, the Appraisal District filed answers and pleas to the jurisdiction,
alleging that the respective petitions were not timely filed. The Property Owners filed
separate responses to the pleas to the jurisdiction and attached the following documents
to each response:

                 An “Order Determining Protest or Order of Dismissal” along with a
                 “Notice of Final Order,” sent from the Appraisal District instructing
        1
         Although the Appraisal Review Board of Chambers County Appraisal District was also a
defendant in both suits, the claims against that entity were later non-suited and that entity is not a party on
appeal.
                                                      2
               the respective Property Owners how to appeal the Appraisal
               District’s decision;
               A copy of a cover letter to the district clerk and a copy of the mailing
               envelope, both reflecting the date of the attempted mailing;
               A copy of the first page of the petition, bearing the e-filing date of
               August 24, 2011;
               A document, entitled “2011 Texas Attorney’s/Paralegal’s
               Secretary’s Handbook” and associated with a website related to
               Chambers County government, reflecting, on the first page, the
               address of the “Courthouse, 404 Washington Street, Anahuac, TX
               77514” and the address of District Clerk Patti L. Henry “Anahuac–
               P.O. Drawer NN, 77514.” The second page of the document reflects
               two addresses and two phone numbers for District Clerk Patti Henry,
               each one set out in separate untitled columns: the first address is
               “404 Washington Avenue, Anahuac, TX 77514”; and the second
               address is “P.O. Box NN Anahuac, TX 77514”; and
               An affidavit of counsel in which counsel states he sent the petitions
               by first-class United States mail on August 22, 2011, in an envelope
               with the correct postage affixed, addressed to the proper clerk and
               sent to the address of the clerk’s office.
       The trial court conducted a single hearing on both of the Appraisal District’s pleas
to the jurisdiction. It is undisputed that the statutory deadline for filing suit under the
Texas Tax Code was August 22, 2011. As reflected in the record of the hearing, the
Appraisal District pointed to the Property Owners’ pleadings, each of which reflect an
electronic-filing stamp dated August 24, 2011, two days past the statutory deadline, as
proof of a jurisdictional bar to the suits.

       The parties’ arguments turned on whether the petitions were “properly addressed”
pursuant to Rule 5 of the Texas Rules of Civil Procedure, commonly referred to as the
“mailbox rule,” when the Property Owners mailed the petitions to the physical address of
the district clerk instead of a mailing address for the district clerk. The Property Owners
referred to documents attached to their responses as evidence that the Property Owners
mailed their petitions within the statutory limitations period. The Property Owners,


                                              3
through their counsel, mailed the petitions to the following address, as reflected on the
outside envelopes:

         Ms. Patti Henry, District Clerk, Chambers Cty.
         Attn: Civil Filings
         404 Washington Street
         Anahuac, Texas 77514
The United States Postal Service returned the mailings to counsel’s office on August 24,
2011. Each returned mailing reflected that the city, state, and zip code were marked
through, and each returned mailing was stamped “Returned to Sender” with a
handwritten “X” placed in a box beside the phrase “No Street Delivery,” as reflected
below:




                                             4
Counsel then filed the petitions electronically with the district clerk on August 24, 2011,
and confirmed electronic filing.

       The Appraisal District argued that the petitions were not “properly addressed” as
contemplated by Rule 5, because the petitions should have been sent to the mailing
address of the district clerk, a post office drawer, instead of the physical location of the
district clerk at the courthouse. The Appraisal District referred to a document, which is

                                             5
not included in the record, apparently printed from the Chambers County website,
identifying both a physical address (the address on Washington Street) and a different
address (a P.O. Drawer) for the district clerk, apparently under the heading, “Mailing
Address.” The Appraisal District also pointed to its copy of the Texas Legal Directory
for Chambers County, purportedly reflecting a mailing address for the district clerk as a
post-office box. This publication is not included in the appellate record either.

       At the hearing, counsel for the Property Owners stated that a person in his office
placed a call to the district clerk before mailing the documents to confirm that the district
clerk’s address is “404 Washington Street.” Counsel also stated that on the morning of
the hearing, he walked to the physical address of the district clerk’s office on 404
Washington Street, where the district clerk accepted for filing copies of the Property
Owners’ responses to the pleas, which previously had been filed electronically.

       The trial court took judicial notice that the United States Postal Service does not
deliver mail to the district clerk at the physical address on Washington Street and that the
district clerk’s mailing address is a postal drawer in the post office that is directly across
the street from the courthouse. The trial court noted that a person can walk to the
physical address of the clerk’s office on Washington Street to file a legal document and
that private couriers routinely deliver legal documents for filing to the physical address of
the district clerk on 404 Washington Street. The trial court also expressed frustration that
the post office will not place mail bearing the physical address of the courthouse on
Washington Street in the post office box intended for receipt by the district clerk.
Nonetheless, the trial court granted the Appraisal District’s pleas to the jurisdiction,
ruling that the Property Owners’ petitions were not timely filed and noting,
“Unfortunately, I think when you rely on mail delivery, you better get the mailing address
right.” The trial court dismissed the suits for lack of jurisdiction. The Property Owners
appealed and this court consolidated the cases for appeal.



                                              6
                                     ISSUES PRESENTED

       In two issues, the Property Owners assert that the trial court erred in granting the
Appraisal District’s pleas to the jurisdiction and dismissing the cases as untimely filed
because Texas Rule of Civil Procedure 5 does not specify that the term “properly
addressed” requires a mailing address of the district clerk in lieu of a physical address of
the district clerk’s office.

                                          ANALYSIS

       As reflected in the record and giving rise to the Property Owners’ suits, the
Appraisal District sent an “Order Determining Protest or Order of Dismissal” along with
a “Notice of Final Order” to the respective Property Owners, who received both
documents on June 23, 2011. These documents are substantially the same for both the
Ybarras and the Desais. The Notice of Final Order informs the Property Owners of the
right to appeal the appraisal board’s determination of a protest pursuant to chapter 41 of
the Texas Tax Code. The Notice of Final Order provides, in relevant part, as follows:

       To appeal such an order to [the] district court, a party must file a petition
       for review with the district court within 60 days after the party receives
       notice that a final order has been entered from which an appeal may be had
       or at anytime after the hearing but before the 60-day deadline.

Additionally, the notice of final order reflects the following, in pertinent part:

       For more information regarding appeal to district court, you should consult
       Texas Tax Code, Chapter 42 and the clerk of the court. If you need legal
       advice, you should consult an attorney.

       Chapter 42 of the Texas Tax Code governs judicial review of a determination
made by the Appraisal District. See Tex. Tax. Code Ann. §§ 42.01–42.42 (West Supp.
2011). For parties seeking review by a district court, section 42.21(a), entitled “Petition
for Review” provides as follows:


                                               7
       A party who appeals as provided by this chapter must file a petition for
       review with the district court within 60 days after the party received notice
       that a final order has been entered from which an appeal may be had or at
       any time after the hearing but before the 60-day deadline. Failure to timely
       file a petition bars any appeal under this chapter.

Tex. Tax Code Ann. § 42.21(a) (West Supp. 2011). Pursuant to section 42.21(a), failure
to timely file a petition with the district court will deprive the trial court of jurisdiction.
See Reddy P’ship/5900 North Freeway LP v. Harris Cnty. Appraisal Dist., No. 11-0400,
2012 WL 2476928, at *3 (Tex. June 29, 2012); Harris Cnty. Appraisal Dist. v. Drever
Partners, Inc., 938 S.W.2d 196, 197 (Tex. App.—Houston [14th Dist.] 1997, no writ).
To have invoked the trial court’s jurisdiction, the Property Owners would have to have
filed their respective petitions on or before August 22, 2011, the statutory deadline.

       At the hearings on the pleas to the jurisdiction, the Appraisal District referred to
the petitions giving rise to the suits, reflecting the electronic filing date of August 24,
2011, two days beyond the statutory deadline. The Appraisal District argued that the
petitions were not timely filed pursuant to section 42.21(a). According to the Appraisal
District, the untimely-filed petitions were a jurisdictional bar to the suits, warranting
dismissal.

       The Property Owners relied on the “mailbox rule” to show that the mailed
petitions were timely filed within the statutorily prescribed deadline set forth in section
42.21(a).    The “mailbox rule”, established in Rule 5 of the Texas Rules of Civil
Procedure, entitled, “Enlargement of Time,” provides in relevant part:

       If any document is sent to the proper clerk by first-class United States mail
       in an envelope or wrapper properly addressed and stamped and is deposited
       in the mail on or before the last day of filing same, the same, if received by
       the clerk not more than ten days tardily, shall be filed by the clerk and be
       deemed filed in time. A legible postmark affixed by the United Stated
       Postal Service shall be prima facie evidence of the date of mailing.

Tex. R. Civ. P. 5. To perfect filing, the clerk of court must receive the mailed document
within ten days. Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268 (Tex. 1996).
                                              8
        The Desais claimed to have mailed their petition on August 19, 2011, and the
Ybarras claimed to have mailed their petition on August 22, 2011; the Property Owners
referred to the documents attached to their response for support that the petitions were
timely filed. The Appraisal District contends on appeal that the documents attached to
the Property Owners’ responses were not offered into evidence at the hearing and not
properly authenticated; consequently, the Appraisal District argues, this court should not
consider these documents in our appellate review. The issues raised in a dilatory plea,
such as a plea to the jurisdiction, are often such that that they cannot be resolved without
hearing evidence. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
Because the trial court cannot act without determining whether it has subject-matter
jurisdiction to do so, it should hear evidence as necessary to determine the issue, a
procedure that is generally similar to summary-judgment proceedings. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Bland, 34 S.W.3d at
555. The trial court was free to consider, just as this court may review, the evidence
attached in response to the pleas to the jurisdiction, which do not implicate the merits of
the Property Owners’ causes of action, for purposes of resolving the jurisdictional
dispute. See Miranda, 133 S.W.3d at 227; Bland, 34 S.W.3d at 555.

        The “Notice of Final Order” sent to the Property Owners instructs them to consult
chapter 42 of the Texas Tax Code and the clerk of the court for “more information
regarding appeal to district court.” Chapter 42 of the Texas Tax Code instructs “a party
who appeals as provided by this chapter must file a petition for review with the district
court.” But, chapter 42 does not reflect an address for the district clerk in any county.
See Tex. Tax Code Ann. § 42.21(a). At the hearing on the pleas to the jurisdiction,
counsel for the Property Owners stated that an agent or representative from his law office
contacted the district clerk’s office to ascertain the correct address before mailing the
petitions, and was informed of the Washington Street address.2 The Appraisal District

        2
           Although the Appraisal District objected to this statement as hearsay testimony, the Appraisal
District did not obtain a ruling on the objection or secure the trial court’s refusal to rule. See Tex. R. App.
                                                      9
attempts to place the onus on the Property Owners to have consulted the Chambers
County website, at which the district clerk’s “mailing address” is identified and reflected
as a post-office box.       Neither the “Notice of Final Order” nor chapter 42 of the Texas
Tax Code state that parties are required to consult this website. Nor does either of these
sources state that the filing must be mailed to the mailing address of the district clerk
rather than the physical courthouse address.

        The undisputed evidence demonstrates that the petitions were addressed to the
proper clerk and sent by first-class United States mail in a properly stamped envelope.
See Tex. R. Civ. P. 5. The undisputed evidence also reflects that the petitions were
deposited in the mail on or before the last day for filing as set forth in section 42.21(a).
See id. The Appraisal District challenged only the Property Owners’ compliance with
Rule 5’s requirement of a “properly addressed” envelope, when the Property Owners
addressed the envelopes with the physical address of the district clerk instead of the
mailing address for the district clerk.

        The term “properly addressed” is not defined. The parties have not cited and
research has not revealed any cases in which the Supreme Court of Texas or this court
has considered what a “proper address” under Rule 5 entails. The Amarillo Court of
Appeals has determined that the term “address,” in the context of Rule 5, means “mailing
address,” relying in part on postal regulations to reach its conclusion.                       Judkins v.
Davenport, 59 S.W.3d 689, 690 (Tex. App.—Amarillo 2000, no pet.).                             Under this
rationale, an envelope reflecting the incorrect zip code that nevertheless reached the clerk
for timely filing satisfies Rule 5 because the Domestic Mail Manual provides “additional
guidance” that a zip code may be omitted “from pieces mailed by the general public at
the single-piece rates for First-Class Mail and from pieces bearing a simplified address.”


P. 33.1(a)(2); W.W. Weber, L.L.C. v. Harris County Toll Road Auth., 324 S.W.3d 877, 882 n.10 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (holding that appellant failed to preserve error as to
admissibility complaint because appellant failed to obtain a ruling on objection or secure the trial court’s
refusal to rule).
                                                    10
Id. at 690–91 (quoting 39 C.F.R. § 111.5 (2000)). Although the Domestic Mail Manual
may prove instructive in considering whether an envelope has been properly addressed, it
is by no means the sole determinant in whether a party has satisfied Rule 5. See White v.
Dietrich Indus., Inc., 554 F. Supp. 2d 684, 689 (E.D. Tex. 2006) (disapproving of Judkins
on the basis that Rule 5 does not limit “properly addressed” mail to mail in conformity
with the Domestic Mail Manual’s requirements). Other Texas courts have interpreted
“properly addressed” to mean “sufficiently specific as to be timely received at the proper
place.” Moore v. State, 840 S.W.2d 439, 441 (Tex. Crim. App. 1992) (interpreting Rule
9.2 of the Texas Rules of Appellate Procedure, formerly Rule 4(b), which contains
substantially the same language as Rule 5); see also White, 554 F. Supp. 2d at 690. The
case at hand is factually distinguishable from Judkins because the Property Owners
provided the correct zip code and correct physical address of the district clerk’s office,
where the district clerk receives legal documents for filing.

       The district clerk’s office on 404 Washington Street is a proper place for the
district clerk to receive the Property Owners’ petitions; the record reflects that at this
location, the district clerk regularly receives documents for filing via private courier and
from persons who physically enter the building to file documents. See Tex. Tax Code
Ann. § 42.21(a); Moore, 840 S.W.2d at 441. The district clerk’s office is physically
located in the Chambers County courthouse at 404 Washington Street, and the Property
Owners’ petitions were placed in an envelope bearing the accurate components of this
address. See Moore, 840 S.W.2d at 441 (providing that to be “properly addressed” an
envelope or wrapper must be “sufficiently specific as to be timely received at the proper
place”). Notably, we are not presented with a “Returned to Sender, Address Unknown”
scenario. The address was known and valid. The record reflects that 404 Washington
Street actually exists as the physical location of the district clerk’s office. A different
result would follow if this address did not exist or if the office of the district clerk was not
located at this address. See Saunders v. Martin, 390 S.W.2d 513, 516–17 (Tex. Civ.
App.—Texarkana 1965, no writ) (providing that an envelope containing a motion for
                                              11
rehearing addressed to Texarkana Court of Appeals clerk of court at the city of “Dallas,
Texas” instead of “Texarkana, Texas” was improperly addressed and not in compliance
with Rule 5). The Property Owners presented a prima facie case showing that the
petitions were mailed to a proper court address. See Stokes, 917 S.W.2d at 268; see also
Moore, 840 S.W.2d at 441. Because the clerk received the petitions within the ten-day
period following the timely mailed petitions, the petitions were timely filed. See Stokes,
917 S.W.2d at 268. The trial court erred in finding that the petitions were not timely
filed. We sustain the Property Owners’ two issues.

      The trial court’s judgment is reversed and this case is remanded to the trial court
for further proceedings in accordance with this opinion.




                                         /s/     Kem Thompson Frost
                                                 Justice



Panel consists of Justices Frost, McCally, and Busby.
.




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