                                NUMBER 13-12-00314-CV

                                   COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


IKE & ZACK, INC., ET AL.,                                                  Appellants,

                                               v.

MATAGORDA COUNTY AND
CITY OF PALACIOS,                                                           Appellees.


                       On appeal from the 130th District Court
                           of Matagorda County, Texas.


                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Garza and Longoria
              Memorandum Opinion by Chief Justice Valdez

       Appellants, Ike & Zack, Inc., Miss Gabrielle, Inc., Little Ken, Inc., Capt Anthony,

Inc., Miss Adrianna, Inc., Sandra G. Inc., Capt Christopher, Inc., Father Mike, Inc., St.

Daniel Philip III, Inc., Lady Toni, Inc., Kelly Marie, Inc., Capt Marcus, Inc., Capt Bubba,

Inc., Trawler Emmanuel, Inc., Mariah Lynn, Inc., Trawler Santa Maria, Inc., and Josh &

Jack, Inc., challenge the trial court’s summary judgment granted in favor of appellees,
Matagorda County and the City of Palacios (collectively the “Appraisal District”).1 By

two issues, appellants contend that they have raised a genuine issue of material fact

regarding their affirmative defenses thus, precluding summary judgment. We reverse

and remand.

                                        I.       BACKGROUND

        Appellants are seventeen different corporations that own and operate shrimp

boats in the Gulf of Mexico out of Port Lavaca, Calhoun County, Texas. On July 11,

2005, the Appraisal District filed suit pursuant to section 33.41 of the Texas Tax Code

seeking to recover delinquent ad valorem taxes imposed against appellants for the tax

years of 2001, 2002, 2003, and 2004. See TEX. TAX CODE ANN. § 33.41 (West 2008).

For those tax years, appellants alleged that the Appraisal District failed to send them ad

valorem tax notices. The Appraisal District claims in its brief that it sent notice to the

previous owners of the shrimp boats in Matagorda County, Texas. It is undisputed that

the previous owners are now appellants’ shareholders.

        Appellants responded to the Appraisal District’s petition alleging several

affirmative defenses. The Appraisal District moved for summary judgment addressing

appellants’ affirmative defenses of improper situs, error in the tax rolls, laches, and

double taxation.2 The Appraisal District attached as summary judgment evidence an

affidavit from the chief appraiser, a document showing the rulings made by the

Matagorda County Appraisal Review Board issued in 2005, deleting the commercial

        1
         The Palacios Independent School District (“PISD”) was also a plaintiff in the trial court.
However, the trial court dismissed PISD from the case on August 2, 2010, and it is not an appellee in this
case.
        2
           Appellants claimed in their second amended answer that they were not liable to the Appraisal
District because the Texas Constitution prohibits double taxation and appellants had paid ad valorem
taxes to Calhoun County where the shrimp boats were rendered and accepted.


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boats at issue from the Matagorda Appraisal Roll for 2005, and “certified copies of the

entries of the official delinquent tax records of Matagorda County” for the tax years

2001–2004 it claims showed the amounts owed by appellants. Appellants responded to

the motion, and the Appraisal District filed objections to appellants’ response. The trial

court granted the Appraisal District’s objections and struck appellants’ response and

attached exhibits from the record. Appellants amended their original answer adding the

affirmative defenses of lack of notice and non-ownership. The trial court then allowed

appellants to file “Defendant’s Supplement to Defendants’ Response/Opposition to

Plaintiffs’ Motion for Summary Judgment.” On April 13, 2012, the trial court signed its

summary judgment in favor of the Appraisal District. This appeal ensued.

                              II.    STANDARD OF REVIEW

       The order granting summary judgment for the Appraisal District does not specify

the reason the trial court granted the motion. When such an order exists, we will affirm

the judgment if any of the theories advanced in the motion are meritorious and

supported by competent summary judgment evidence.           Harwell v. State Farm Mut.

Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Carr v. Brasher, 776 S.W.2d 567, 569

(Tex. 1989); Breshears v. State Farm Lloyds, 155 S.W.3d 340, 343 (Tex. App.—Corpus

Christi 2004, pet. denied).

       The Appraisal District did not state in its motion for summary judgment whether it

was seeking traditional summary judgment or no-evidence summary judgment. See

TEX. R. CIV. P. 166a(c), (i). The two forms of summary judgment are distinct and invoke

different standards of review. Lavaca Bay Autoworld, L.L.C. v. Marshall Pontiac Buick

Oldsmobile, 103 S.W.3d 650, 653 (Tex. App.—Corpus Christi 2003, no pet.).             The



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Appraisal District’s motion for summary judgment states that it has attached evidence to

the motion “showing that there is no genuine issue as to any material fact respecting

[appellants’] liability to [it] for the delinquent taxes. . . . and entitled to Summary

Judgment . . . as a matter of law.” However, in its motion for summary judgment, the

Appraisal District did not assert that there was no evidence of a particular element. See

Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Therefore, we need not apply the

standard of review for a no-evidence motion for summary judgment. See id.

      In a traditional motion for summary judgment, the movant has the burden of

showing that no genuine issue of material fact exists and that it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548 (Tex. 1985). If the movant’s motion and summary judgment proof facially

establish a right to judgment as a matter of law, the burden shifts to the non-movant to

raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Holmstrom v. Lee, 26 S.W.3d 526, 530 Tex.

App.—Austin 2000, no pet.); HBO, A Div. of Time Warner Entm’t Co., L.P. v. Harrison,

983 S.W.2d 31, 35 (Tex. App.—Houston [14th Dist.] 1998, no pet.). In deciding whether

a disputed material fact issue precludes summary judgment, we resolve every

reasonable inference in favor of the non-movant and take all evidence favorable to it as

true. See Nixon, 690 S.W.2d at 548–49; Karl v. Oaks Minor Emergency Clinic, 826

S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.] 1992, writ denied). If the defendant

relies on an affirmative defense to defeat summary judgment, it must come forward with

evidence sufficient to raise a genuine issue of material fact on each element of the

defense. Sani v. Powell, 153 S.W.3d 736, 740 (Tex. App.—Dallas 2005, pet. denied)



                                               4
(citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see City of Houston v.

Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)). We review a summary

judgment de novo to determine whether a party’s right to prevail is established as a

matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.—Dallas

2000, pet. denied).

                                            III.     DISCUSSION

        In its motion for summary judgment, the Appraisal District claimed it was entitled

to summary judgment because it had shown that no genuine issue of material fact

existed regarding appellants’ affirmative defenses.3

        When a taxing unit introduces its delinquent tax notices into evidence, a prima

facie case is established as to every material fact necessary to establish its cause of

action. See TEX. TAX CODE ANN. § 33.47(a) (West 2008); Maximum Med. Improvement,

Inc. v. County of Dallas, 272 S.W.3d 832, 835 (Tex. App.—Dallas 2008, no pet.). A

rebuttable presumption then arises that the taxing entity has taken all actions necessary

to obtain legal authority to levy the tax, including proper delivery of all required tax

notices. Maximum Med. Improvement, Inc., 272 S.W.3d at 835. However, there is no

presumption of notice if the identity of the party named as owner of the property on the

Appraisal District tax roll does not match the identity of the defendant sued for non-

payment.4         Id. at 836–37 (“Although Section 33.47(a) provides a rebuttable


        3
          We note that appellants amended their response to the Appraisal District’s petition adding,
among other defenses, the defense of improper notice. On appeal, appellants complain that the
Appraisal District failed to challenge its defense of improper notice in its motion for summary judgment.
However, because we conclude that it is not dispositive of this appeal because we are sustaining
appellants’ second issue. Therefore, we will not address this issue. See TEX. R. APP. P. 47.1.
        4
         In its statement of facts section of its brief, the Appraisal District states, “For tax year 2002, 11 of
the 17 shrimp boats and for tax years 2003 and 2004, all 17 boats were sent ad valorem tax notices to
the most recent name and address in the possession” of the Appraisal District. “The names and

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presumption, if the identity of the entity named as the owner does not match the identity

of the defendant sued for non-payment, no presumption arises as to the

defendant . . . .”) (citing Pete Dominguez Enters. v. County of Dallas, 188 S.W.3d 385,

387 (Tex. App.—Dallas 2006, no pet.)).

        Here, the Appraisal District provided as summary judgment evidence the

delinquent tax notices showing that appellants owed past due taxes. The Appraisal

District did not provide copies of the actual notices sent. However, appellants attached

to their response to the Appraisal District’s motion for summary judgment copies of the

property appraisals from the Appraisal District’s website showing that the appellants

were not listed as the owners of the properties at issue in this case during the 2002 and

2003 tax years. This constitutes evidence that the identity of the property owners listed

in the Appraisal District tax rolls for the 2002 and 2003 tax years does not match the

appellants’ identities. Therefore, any presumption of notice disappeared.5 See id. The

Appraisal District also argues that the Appraisal District records attached to appellants’

response neither proves nor disproves that notice was properly sent. However, it is

reasonable to conclude that the Appraisal District sent notice of the taxes to the persons

listed as the owners of the properties at the addresses listed in its own records as

required by statute. See TEX. TAX CODE ANN. § 1.07(b) (West Supp. 2011) (requiring

the taxing entity to address the tax notice to the property owner, or his agent, at the

address according to the most recent record in the possession of the property taxing

addresses where the ad valorem tax notices were sent, were those of the prior owners who incorporated
the 17 shrimp boats.”
        5
           The Appraisal District, citing evidence that was stricken from the record based on the Appraisal
District’s objections, claims that appellants were notified of the taxes. However, because the trial court
struck these documents from the record, this evidence was not before the trial court when it granted the
summary judgment. Accordingly, we will not consider it.


                                                        6
entity). Moreover, as previously stated, the presumption of notice did not arise in this

case, and the Appraisal District has offered no evidence that notice was given.

       We find the facts of this case analogous to the facts in Industrial

Communications, Inc. v. Ward County Appraisal District, wherein the taxing entities

claimed that they had complied with all notice requirements under the tax code by

delivering notice of a 2003 appraisal to the previous owner, ICP, a company that was

listed as the record owner of the property in the taxing entities’ tax rolls. 296 S.W.3d

707, 713 (Tex. App.—El Paso 2009, pet. denied).          In Industrial, the taxing entities

argued, among other things, that they were not obligated to provide notice under the tax

code because Industrial failed to put them on notice that it owned the subject property

and to notify them of its change of address. Id. at 718. The court rejected the taxing

entities’ argument that they were not required to provide notice to Industrial and an

opportunity for Industrial to be heard because Industrial failed to file a rendition

statement concerning the property, and failed to advise them of its address change. Id.

at 720. The court concluded that due process requires notice to a taxpayer of an

appraisal and an opportunity for the taxpayer to be heard. Id. at 719–21.

       In Industrial, the taxing entities also argued that Industrial should have filed a

protest pursuant to section 41.411 of the tax code, which provides that “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.” See id. at 713–14. The court explained that “[u]nder the

[pre-2008] version of section 41.44 applicable to [the case], a property owner who

wishe[d] to protest pursuant to [s]ection 41.411 must [have] file[d] the protest before the



                                                7
date the taxes on the subject property [became] delinquent.” Id. at 714. The court

further explained that section 41.411 of the tax code “is not contingent on the property

owner keeping the taxing authorities informed of his current address.” Id. at 721. The

court stated that the pre-2008 tax code failed to provide an adequate constitutional

remedy for a taxpayer who received notice after the taxes became delinquent. 6 See id.

at 714. The court found that the taxing entities had not provided notice to Industrial of

the taxes and concluded that the assessed taxes and penalties were void due to the

lack of notice. Id. at 722–23.

        The Appraisal District also argues that appellants should have filed a protest

pursuant to section 41.411 of the tax code. However, as stated in Industrial, the pre-

2008 tax code applies and that version of the statutes would not have allowed

appellants to file a protest pursuant to section 41.411 if they did not receive notice

before the taxes became delinquent, as they claim.                    See id. at 714.         Therefore,

assuming appellants received notice after the taxes became delinquent, they are in the

same situation as the property owners in Industrial, and a section 41.411 protest was

not available to them for their due process claim. See id.

        Next, the Appraisal District argues that it complied with the requirements of the

tax code and that failure to send or receive a tax bill does not affect the validity of the

tax, penalty, or interest, the due date, the existence of a tax lien, or any procedure to

collect a tax. See TEX. TAX CODE ANN. § 31.01(g) (West Supp. 2011). However, the

Appraisal District did not make this argument in its motion for summary judgment;

        6
          As stated in Industrial, section 41.44 “now permits a property owner to file a protest under TEX.
TAX CODE ANN. § 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.” Indust. Commc’ns, Inc. v. Ward County
Appraisal Dist., 296 S.W.3d 707, 714 (Tex. App.—El Paso 2009, pet. denied).


                                                        8
therefore, the trial court could not have based its decision on this argument. Therefore,

we will not consider it. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.

1997) (citing TEX. R. CIV. P. 166a(c) ("The motion for summary judgment shall state the

specific grounds therefor."); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,

341 (Tex. 1993)).

      Finally, the Appraisal District argues that appellants were not denied due process

because they could have protested the delinquent taxes pursuant to section 25.25(c) of

the tax code. See TEX. TAX CODE ANN. § 25.25 (West Supp. 2011). Section 25.25(c)

provides that “[t]he appraisal review board, on motion of the chief appraiser or of a

property owner, may direct by written order changes in the appraisal roll for any of the

five preceding years to correct . . . the inclusion of property that does not exist in the

form or at the location described in the appraisal roll.” See id. The Appraisal District

filed its petition to collect the delinquent taxes on July 11, 2005. There is no summary

judgment evidence indicating that appellants received notice of the delinquent taxes for

the contested years before the Appraisal District filed its suit. Therefore, there is a

question of fact regarding whether appellants could have filed a complaint pursuant to

section 25.25 before this suit ensued.     Furthermore, appellants are alleging lack of

notice as a defense to the suit instituted by the Appraisal District to collect the

delinquent taxes. Section 25.25 does not provide for a challenge to the taxes on the

basis that the taxpayer did not receive notice.       To challenge the lack of notice,

appellants could have filed a protest pursuant to section 41.411; however, as stated

above, the pre-2008 tax code did not allow a taxpayer who received notice after the

taxes became delinquent to file a protest. See Industrial, 296 S.W.3d at 714.



                                               9
       Moreover, although taxpayers must generally exhaust their administrative

remedies, there are several exceptions:         “(1) where an injunction is sought and

irreparable harm would result; (2) where the administrative agency cannot grant the

requested relief; (3) when the issue presented is purely a question of law; (4) where

certain constitutional issues are involved; and (5) where an administrative agency

purports to act outside its statutory powers.”       Strayhorn v. Lexington Ins. Co., 128

S.W.3d 772, 780 (Tex. App.—Austin 2004) (explaining that the policy reason “for the

exhaustion-of-administrative-remedies doctrine is to allow the agency to resolve

disputed issues of fact and policy and to assure that the appropriate body adjudicates

the dispute”) aff’d, 209 S.W.3d 83, 84, 90 (Tex. 2006).         “In the case of an agency

allegedly acting outside of its statutory powers, the ‘purposes underlying the exhaustion

rule are not applicable: judicial and administrative efficiency are not served, and agency

policies and expertise are irrelevant, if the agency’s final action will be a nullity.” Id.

(citing Larry Koch, Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833, 840

(Tex. App.—Austin 2001, pet. denied)).          Here, appellants have alleged that the

Appraisal District has acted outside of its statutory powers by levying the contested

taxes without providing notice. See id.; see also Industrial, 296 S.W.3d at 722–23

(concluding that the 2003 taxes assessed on Industrial’s property and the associated

penalties were void because Industrial did not receive notice of the inclusion of the

property on the 2003 tax rolls and did not have an opportunity to protest the 2003

appraisals on that property). As stated above, there is no summary judgment evidence

that appellants ever received notice of the delinquent taxes before the Appraisal District

filed suit. So, if appellants were to prevail on their theory that the Appraisal District was



                                                10
acting outside its authority in assessing these taxes against them because they did not

receive proper notice, the taxes would become void and any administrative

requirements would be mere formalities. See Strayhorn, 128 S.W.3d at 780; see also

Industrial, 296 S.W.3d at 722–23; Appraisal Review Bd. of the El Paso County Cent.

Appraisal Dist. v. Fisher, 88 S.W.3d 807, 813 (Tex. App.—El Paso 2002, pet. denied)

(holding that the taxpayer was denied due process and the taxes and penalties

assessed based on the appraisal were void because he did not receive notice or have

an opportunity for a hearing to contest the appraisal). Therefore, based on our de novo

review, we conclude that the Appraisal District’s right to summary judgment has not

been established as a matter of law. See Dickey, 12 S.W.3d at 175; see also TEX. R.

CIV. P. 166a; Nixon, 690 S.W.2d at 548. We sustain appellant’s second issue.

                                  IV.       CONCLUSION

      We reverse the trial court’s summary judgment and remand the case for further

proceedings consistent with this opinion.

                                                 ____________________
                                                 ROGELIO VALDEZ
                                                 Chief Justice

Delivered and filed the
14th day of March, 2013.




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