      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                              444444444444444444444444444
                                ON MOTION FOR REHEARING
                              444444444444444444444444444


                                       NO. 03-05-00171-CV



                                   Aaron Rents, Inc., Appellant

                                                  v.

         Travis Central Appraisal District, Travis County Appraisal Review Board,
              and Travis County Tax Assessor Collector, Nelda Wells Spears,
                           in Her Official Capacity, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. GN401079, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                               DISSENTING OPINION


               Because I believe that an award of attorney’s fees is mandatory under section 42.29

of the tax code, I respectfully dissent from the majority’s decision to overrule Aaron Rents’s motion

for rehearing and from the opinion of the majority to the extent that it holds that the statute grants

trial courts the discretion to award attorney’s fees.

               In general, we review a trial court’s decision to award attorney’s fees for an abuse of

discretion. See Allison v. Fire Ins. Exch., 98 S.W.3d 227, 262 (Tex. App.—Austin 2002, pet.

granted, judgm’t vacated w.r.m. by agr.). However, some statutes remove the discretion from the

trial court. Cf. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998).
                The statute in question provides, in relevant part, as follows:


        (a) A property owner who prevails in an appeal to the court under Section 42.25 or
            42.26 may be awarded reasonable attorney’s fees.


Tex. Tax Code Ann. § 42.29 (West 2001) (emphasis added).

                At first glance the language might be read as giving the trial court the discretion to

award attorney’s fees. See Tex. Gov’t Code Ann. § 311.016(1), (2) (West 2005) (in construing

statutes, word “may” creates discretionary authority or grants permission or power, but word “shall”

imposes duty). However, the determination of whether a statute requires the imposition of attorney’s

fees or vests the trial court with the discretion to decide does not depend exclusively on whether the

statute uses the word “may” or “shall.” Cf. Bocquet, 972 S.W.2d at 20. Under the current state of

the law, the determination primarily depends on whether the legislature has bestowed a power to trial

courts or an entitlement to litigants.

                In Bocquet, the supreme court distinguished between statutes that vest a trial court

with the discretion to award attorney’s fees and statutes that require the court to award attorney’s

fees. See id.; compare Tex. Fam. Code Ann. § 106.002 (West Supp. 2005) (court may render

judgment for reasonable attorney’s fees), with Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West

1997) (person may recover attorney’s fees). Statutes providing that a “court may award” attorney’s

fees grant courts a measure of discretion in awarding attorney’s fees, but statutes providing that a

“party may recover,” “party shall be awarded,” or “party is entitled to” attorney’s fees mandate an

award of fees that are reasonable and necessary. See Bocquet, 972 S.W.2d at 20. The distinction

drawn by the supreme court seems to hinge upon whether the statute in question speaks to what the

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litigant may receive or what the court may award. See Zapata County Appraisal Dist. v. Coastal

Oil & Gas Corp., 90 S.W.3d 847, 853 (Tex. App.—San Antonio 2002, no pet.); Kimbrough v. Fox,

631 S.W.2d 606, 609 (Tex. App.—Fort Worth 1982, no writ).

               An apparent split of authority has developed among Texas courts regarding which

meaning attaches to the statute in question. In Tex-Air Helicopters, Inc. v. Appraisal Review Board

of Galveston County, the Houston Court stated that under section 42.29 the trial court has the

discretion to award attorney’s fees. 940 S.W.2d 299, 304 (Tex. App.—Houston [14th Dist.] 1997),

aff’d, 970 S.W.2d 530 (Tex. 1998). However, because the trial court had determined that Tex-Air

was not a prevailing party, the Houston Court did not reach the issue of attorney’s fees. Id. The

Texarkana Court made a similar statement in Tex-Air Helicopters, Inc. v. Harris County Appraisal

District, 15 S.W.3d 173, 177 (Tex. App.—Texarkana 2000, pet. denied). In that case, the court

stated that the award of attorney’s fees was discretionary but concluded that, because the case did

not involve an “excessive appraisal,” section 42.29 did not apply. Id. The majority apparently

agrees with the dicta expressed in these two opinions.

               The San Antonio Court, on the other hand, addressed the issue of attorney’s fees and

concluded that section 42.29 entitled a prevailing party to recover attorney’s fees. Zapata, 90

S.W.3d at 854. In making this determination, the court relied on a distinction originally articulated

in Kimbrough. Id. at 854. In Kimbrough, the court was faced with the question of whether a statute

stating that a “claimant may . . . also recover . . . a reasonable amount of attorney’s fees” was

mandatory or discretionary. 631 S.W.2d at 609 (quoting Tex. Rev. Civ. Stat. Ann. art. 2226 (1979)).

The Kimbrough court specified that “the question is whether . . . the legislature granted the litigant



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permission to recover the fees or whether it granted the trial court permission to either award or deny

such fees.” Id. Ultimately, the Kimbrough court concluded that the statutory language (“claimant

may . . . recover . . . attorney’s fees”) granted the litigant the right to recover attorney’s fees and

expressly held that the use of the term “may” was not dispositive of whether the trial court had

discretion to award attorney’s fees. Id.

                In reaching its conclusion in Zapata, the San Antonio Court also relied on the

distinction described in Bouquet. 90 S.W.3d at 854. The court concluded that a statute providing

that a “property owner . . . may be awarded” attorney’s fees is more similar to a statute providing that

“a party may recover” than it is to a statute specifying that a “court may award” attorney’s fees. Id.

As a result, the court concluded that the award of attorney’s fees is mandatory. Id.

                The real difficulty in this case arises due to the fact that this particular statute is

neither clearly one or the other of the types of statutes distinguished in Bouquet. Due to the use of

passive voice in the statute, the wording could be rearranged and construed to mean that trial courts

have the discretion to award attorney’s fees to prevailing property owners. For example, the statute

as written specifies that “[a] property owner . . . may be awarded reasonable attorney’s fees.” Tex.

Tax Code Ann. § 42.29. The statute could be construed as impliedly stating that “a property owner

. . . may be awarded reasonable attorney’s fees by the trial court.” Given the implied addition of the

words “by the trial court” and due to the use of passive voice in the statute, the wording of the statute

could be inverted to make the “trial court” the subject of the sentence and to read as follows: “the

trial court may award a property owner reasonable attorney’s fees.” Under this inverted reading, the

statute vests the trial court with the discretion to award attorney’s fees.



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               However, the supreme court has indicated its reluctance to engage in wordplay to

ascribe meaning to a statute that contradicts the meaning expressed in an unaltered reading of the

statute. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 358 (Tex. 2000) (courts must

take statutes as they find them and should not give strained readings to statutes). When determining

the meaning of a statute, our task is to interpret the statute as written, not to engage in games of

grammatical gymnastics. See In re Doe, 19 S.W.3d 346, 351 (Tex. 2000) (statutes must be

interpreted as written); Sorokolit v. Rhodes, 889 S.W.2d 239, 241-42 (Tex. 1994). In construing

statutes, our goal is to give effect to the legislature’s intent. Texas Dep’t of Protective & Regulatory

Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). Every word in a statute is

presumed to have been used for a purpose and every word excluded must have been excluded for

a purpose. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). Further,

the legislature is presumed to be aware of case law interpreting statutes it enacts. General Servs.

Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 596 (Tex. 2001).

               Section 42.29 was originally enacted after the distinction in attorney’s fees was

articulated in Kimbrough. See Act of May 26, 1983, 68th Leg., R.S., ch. 905, § 1, sec. 42.29, 1983

Tex. Gen. Laws 5033. When it enacted the statute, the legislature did not specify that the “court may

award attorney’s fees”; rather, the legislature specified that the prevailing taxpayer “may be

awarded” attorney’s fees. The phrase a “property owner may be awarded attorney’s fees” is the

functional equivalent of the phrase a “party may recover attorney’s fees,” which the supreme court

has stated entitles a party to attorney’s fees. See Bocquet, 972 S.W.2d at 20. Had the legislature




                                                   5
intended to give trial courts the discretion to deny fees to a prevailing property owner, they would

have drafted the statute accordingly. See Kimbrough, 631 S.W.2d at 609.1

                 The unusual circumstances of this type of claim also support the conclusion that the

award of attorney’s fees to a prevailing property owner is not discretionary. The statute in question

mandates the issuance of attorney’s fees after a party has proven that the government has issued an

excessive appraisal of the party’s property. See Tex. Tax Code Ann. §§ 42.25 (remedy for excessive

appraisal), 42.29. When an excessive appraisal is issued, a property owner is forced to pay more in

taxes than is actually required. To recover the amount of money overpaid, the property owner must

go through the onerous task and added expense of preparing and filing a lawsuit against the

government. Given this fact setting, it is reasonable to conclude the legislature intended parties to

recover the amount of attorney’s fees incurred in pursuing their claims when they prevail.

                 Were the slate clean, I would not draw the extremely subtle distinction originally

articulated in Kimbrough. We should be able to presume that the legislature speaks in more direct


        1
          In support of their conclusion that the language of section 42.29 is discretionary, the
majority cites to an unpublished opinion previously issued by this Court. See Hays County Appraisal
Dist. v. Mayo Kirby Springs, 1997 Tex. App. LEXIS 5876 (Tex. App.—Austin 1995, no writ); see
also Tex. R. App. P. 47.7 (“Opinions not designated for publication by the court of appeals . . . have
no precedential value . . . .”). However, this case was decided before the supreme court decided
Bocquet. Further, in support of its conclusion that the language in section 42.29 is discretionary, this
Court cited to the Texas Uniform Declaratory Judgments Act, which provides as follows:

            In any proceeding under this chapter, the court may award costs and reasonable
            and necessary attorney’s fees as are equitable and just.

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997).

          Unlike section 42.29 of the tax code, the declaratory judgment act specifically gives trial
courts the power to decide whether to award attorney’s fees. See Tex. Tax Code Ann. § 42.29.

                                                   6
ways than this distinction implies. Further, we should be able to presume that, when the legislature

uses phrases like “a party may recover attorney’s fees” or “a party may be awarded attorney’s fees,”

the legislature means what the phrases indicate: that an award of attorney’s fees is discretionary.

However, the slate is not clean. For all the reasons previously described, I would conclude that

Zapata articulates the correct reading of section 42.29, particularly in light of the supreme court’s

statement in Bocquet. Therefore, I would find that Aaron Rents is entitled to attorney’s fees under

section 42.29 unless and until the supreme court addresses this issue further. For this reason, I

dissent from the portion of the majority opinion and judgment that concludes section 42.29 of the

tax code does not mandate an award of attorney’s fees. I concur in the judgment and opinion of the

majority in all other respects.




                                              David Puryear, Justice

Before Justices B. A. Smith, Patterson and Puryear

Filed: March 23, 2006




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