      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00604-CV



                               Alhaji Isa Adegori Ayeni, Appellant

                                                  v.

                        The State of Texas; The City of Houston, Texas;
                     and The Transit Authority of Houston, Texas, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. D-1-GV-10-001791, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                              CONCURRING OPINION


               Although I join in the majority’s opinion and judgment—I wrote them, after all—I

write separately to offer some additional observations about Ayeni’s second issue. While it was

ultimately unnecessary for us to reach that issue here, it nonetheless warrants emphasis that

Ayeni has identified an aberration in this Court’s past jurisprudence addressing the effect of

Comptroller certificates of deficiency and how a taxpayer can oppose a summary-judgment motion

predicated on one.

               The notion that a taxpayer must present conclusive contrary evidence to rebut a

Comptroller’s certificate of deficiency does not find explicit textual support in the current tax code.

Subsection (a) of section 111.013 states only that the Comptroller’s certificate is “prima facie

evidence” of the taxes, penalties, and interest due, the delinquency of those amounts, and of the

comptroller’s compliance with the tax code. See Tex. Tax Code Ann. § 111.013(a) (West 2008).
“Prima facie” is Latin for “first view,”1 and “prima facie evidence” typically denotes evidence that

is determinative of a fact’s or facts’ existence, sometimes stated in terms of giving rise to a

“presumption” of their existence, unless and until some contrary evidence is presented. See Coward

v. Gateway Nat’l Bank of Beaumont, 525 S.W.2d 857, 859 (Tex. 1975); Dodson v. Watson, 220 S.W.

771, 772 (Tex. 1920) (“Prima facie evidence is merely that which suffices for the proof of a

particular fact until contradicted and overcome by other evidence.”); Black’s Law Dictionary 638–39

(9th ed. 2009) (defining “prima facie evidence” as “[e]vidence that will establish a fact or sustain

a judgment unless contrary evidence is produced”).2 But nothing in section 111.013 purports to

require conclusive contrary evidence to rebut or join issue with a Comptroller’s certificate. See

Tex. Tax Code Ann. § 111.013.

               Appellees rely less on the tax code than on precedents of this Court, and I must

concede they find some support there. As best I can tell, these decisions trace back to a 1967 no-writ

case involving a trial on the merits of a tax-deficiency claim, Smith v. State, 418 S.W.2d 893

(Tex. Civ. App.—Austin 1967, no writ). Smith, in turn, purported to rely on the analysis in a

1942 Texas Supreme Court opinion, Southland Life Insurance Co. v. Greenwade, 159 S.W.2d 854

(Tex. 1942).3 Southland Life addressed the nature and application of the presumption of receipt


       1
         See Black’s Law Dictionary 1310 (9th ed. 2009); Webster’s Third New Int’l Dictionary
1800 (2002).
       2
          See In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“We presume the Legislature is aware
of relevant case law when it enacts or modifies statutes.”) (citing Acker v. Texas Water Comm’n,
790 S.W.2d 299, 301 (Tex. 1990)); HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 363 (Tex. 2009) (“We
use definitions prescribed by the Legislature and any technical or particular meaning the words have
acquired . . . .” (citing Tex. Gov’t Code Ann. § 311.011)).
       3
        Southland Life Insurance Co. v. Greenwade, 159 S.W.2d 854 (Tex. 1942), was decided
by the Texas Commission of Appeals. However, because the opinion was adopted by the

                                                  2
afforded a properly stamped, addressed, and mailed letter in the context of a suit by a life-insurance

beneficiary to recover policy proceeds. See id. at 858. The defendant insurance carrier asserted that

the decedent’s life-insurance policy had lapsed prior to the insured’s death due to the insured’s

failure to make a premium payment that had come due. The case went to trial, at which the plaintiff

beneficiary presented detailed evidence that the decedent had properly stamped, addressed, and

mailed the premium payment to the insurance company prior to its final due date. This evidence

gave rise to the legal presumption that the insurance company had received the payment. See id.

at 857 (“It is settled in this state, however, that when a letter properly addressed and with postage

prepaid is mailed, a presumption of fact (rebuttable of course) arises that it was duly received by

the addressee.”). In response, the insurance company presented evidence that it had not received the

premium payment. Id. The trial court rendered judgment in favor of the plaintiff beneficiary.

               On appeal to the Waco Court of Civil Appeals, the insurance company asserted,

among other points, that the evidence did not support a finding that the premium payment had

been timely paid. See Southland Life Ins. Co. v. Greenwade, 143 S.W.2d 648, 650–51 (Tex. Civ.

App.—Waco 1940), reversed by 159 S.W.2d at 858. Specifically, the insurance company argued

that because it had produced evidence that it had never actually received the premium, both the

presumption of receipt and the foundational evidence supporting that presumption—i.e., that the

payment letter had been properly stamped, addressed, and mailed to the company—“disappeared”




Texas Supreme Court and, thus, has the full authority of a Texas Supreme Court decision,
it was effectively decided by the Texas Supreme Court. See National Bank of Commerce
v. Williams, 84 S.W.2d 691, 692 (Tex. 1935); see also Cadle Co. v. Butler, 951 S.W.2d 901, 911
(Tex. App.—Corpus Christi 1997, no pet.) (noting that Commission opinions adopted by the
Texas Supreme Court are given the same force, weight, and effect as supreme court opinions).

                                                  3
such that the trier of fact could no longer consider it; thus leaving the plaintiff without any proof

of receipt. See id. at 650. The Waco court overruled that issue, holding that even in the face of

evidence of non-receipt, the presumption of receipt “continued as evidence” that was sufficient to

support the trial court’s judgment. See id. at 650.

               On appeal, although ultimately affirming the trial court’s judgment and holding

that the evidence was sufficient to support a finding that the premium check had been timely

received, the supreme court explicitly rejected the Waco court’s view that a presumption like that

of receipt could itself be considered evidence. Instead, the supreme court held that a presumption

is not evidence and that it disappears once “substantial contrary evidence” is offered by the party

against whom the presumption operates. See Southland Life, 159 S.W.2d at 857 (citing Wigmore

on Evidence, 2d ed., § 2491); see also General Motors Corp. v. Saenz, 873 S.W.2d 353, 359

(Tex. 1993) (“Once . . . evidence contradicting the presumption has been offered, the presumption

disappears.”). But the court then went on to clarify that the evidence that gave rise to the

presumption could still be considered and weighed by the fact-finder, vis-à-vis the carrier’s contrary

evidence, as evidence that the premium payment had, in fact, been timely received. Southland Life,

159 S.W.2d at 857; see Saenz, 873 S.W.2d at 259. In other words, although the insurance company

had offered evidence that it had not timely received the payment, thus eliminating the presumption

of receipt, the trier of fact could still consider the facts underlying the presumption—i.e., that the

defendant stamped, addressed, and mailed the payment letter to the company—as themselves

evidence that the insurance company received the payment. See Southland Life, 159 S.W.2d at 857.

And, relying on this evidence of payment, the supreme court went on to hold that the evidence was

sufficient to support the trial court’s finding that the payment was timely received. See id.

                                                  4
               The court in Southland Life then went on to observe that there might be circumstances

where the presumption’s foundational facts could not be considered—i.e., would not support an

affirmative finding—by the trier of fact:


       We hold that an inference established prima facie (as in the present case) is
       overcome, together with the evidentiary facts tending to establish it, only when the
       evidence tending to support the contrary inference is conclusive, or so clear, positive
       and disinterested that it would be unreasonable not to give effect to it as conclusive.
       . . . [P]rima facie evidence and presumptions of fact disappear when the true facts
       are conclusively shown by other evidence . . . . In other words, presumptions, when
       controverted by facts, disappear, as such, and cannot be weighed as evidence against
       such facts.


Id. at 858 (internal citations omitted) (emphases in original). In other words, if the party against

whom the presumption of receipt operates presents evidence that conclusively negates receipt of

the mail, both the presumption of receipt and the probative value of any proof of underlying facts

could be said to “disappear” because the evidence, by definition, is legally insufficient to support a

finding of receipt. This amounts merely to an observation about the nature of conclusive evidence

that negates a fact’s existence. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)

(discussing conclusive contrary evidence and noting that “‘[n]o evidence points must, and may only,

be sustained when the record discloses [that] the evidence establishes conclusively the opposite of

the vital fact’” (quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of

Error, 38 Tex. L. Rev. 361 (1960)).

               In Smith, this Court, citing Southland Life, described a taxpayer’s burden in opposing

the presumed correctness of a Comptroller’s certificate of deficiency at trial as follows:




                                                  5
       With the prima facie presumption established that the State’s claim for admissions
       taxes[4] against [the owner of a business on the taxpayer’s property] was as shown
       in the Comptroller’s certificate under Article 1.08[5], appellant [taxpayer] had the
       burden to overcome the inference with such evidence tending to support the contrary
       as would be conclusive, or evidence so clear and positive it would be unreasonable
       not to give effect to it as conclusive.


Smith, 418 S.W.2d at 896 (citing Southland Life, 159 S.W.2d at 858). This Court has continued to

describe the taxpayer’s burden at trial in similar terms.6 To the extent such descriptions refer to the

concepts that a Comptroller’s certificate, even if met with the taxpayer’s contrary evidence, may

nonetheless be legally sufficient to support a fact finding of tax liability unless the taxpayer’s

contrary evidence is conclusive, it is merely an application of the principles described in Southland

Life. In any event, Ayeni does not quarrel with the notion that he would be required, at least

practically speaking, to present conclusive contrary evidence in order to overcome the effect of a

Comptroller’s certificate at trial on the merits. Otherwise, under the Southland Life analysis, the

certificate would remain as legally sufficient evidence that could potentially support fact findings

against the taxpayer.




       4
         “Admissions taxes” are taxes paid “on fees for admission to all places of amusement.” See
Smith v. State, 418 S.W.2d 893, 895 (Tex. Civ. App.—Austin 1967, no writ).
       5
           Predecessor statute to section 111.013 of the Texas Tax Code.
       6
           Accord Sundown Farms, Inc. v. State, 89 S.W.3d 291, 293 (Tex. App.—Austin 2002,
no pet.); Penny v. State, No. 03-97-00399-CV, 1998 WL 394173, at *2 (Tex. App.—Austin July 16,
1998, no pet.) (mem. op.); State v. Glass, 723 S.W.2d 325, 327 (Tex. App.—Austin 1987, writ ref’d
n.r.e.); Hylton v. State, 665 S.W.2d 571, 572 (Tex. App.—Austin 1984, no writ); Nu-Way Oil Co.
v. Bullock, 546 S.W.2d 336, 339 (Tex. Civ. App.—Austin 1976, no writ); Baker v. Bullock,
529 S.W.2d 279, 281 (Tex. Civ. App.—Austin 1975, writ ref’d n.r.e.); State v. Gifford-Hill & Co.,
428 S.W.2d 451, 457 (Tex. Civ. App.—Austin 1968) rev’d on other grounds by 442 S.W.2d 320
(Tex. 1969).

                                                  6
               But it is quite another thing, Ayeni urges, to hold that a nonmovant must present

conclusive contrary evidence to preclude summary judgment based on a Comptroller’s certificate,

as appellees argue here. I agree.

               The notion that a taxpayer nonmovant must counter a Comptroller’s certificate

with conclusive contrary evidence in order to preclude summary judgment traces back to a

2004 memorandum opinion of this Court, Wimmer v. State, No. 03-03-00135-CV, 2004 WL 210629,

at *3–4 (Tex. App.—Austin Feb. 5, 2004, pet. denied) (mem. op.). In Wimmer, we held that a

taxpayer “must conclusively establish that he owes no tax” to overcome a summary judgment

predicated on a Comptroller’s certificate of deficiency. See id. at *3. For support, this Court cited

Smith and its progeny—again, cases that involved trials on the merits. See id. at *3–4 (citing

Sundown Farms, 89 S.W.3d 291, 293 (Tex. App.—Austin 2002, no pet.); Hylton v. State,

665 S.W.2d 571, 572 (Tex. App.—Austin 1984, no writ); Smith, 418 S.W.2d at 893). There was

zero explanation or analysis of whether or how those concepts should properly be applied in the

vastly different procedural context of summary judgment. See Wimmer, 2004 WL 210629 at *3–4.7

               Contrary to the holdings of Wimmer, and any progeny, their analytical cornerstone

in Southland Life would imply that the contrary evidence used to rebut the presumption, even if not

conclusive, would raise a fact issue that would have to be resolved by the fact finder and not by

summary judgment. See Southland Life, 159 S.W.2d at 857; see also Balawajder v. Texas Dep’t of

Criminal Justice Inst. Div., 217 S.W.3d 20, 27 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)




       7
         See also Kawaja v. State, No. 03-05-00491-CV, 2006 WL 1559343 (Tex. App.—Austin
June 8, 2006, no pet.) (mem. op.) (also applying, without analysis, conclusive-evidence notion to
summary-judgment proceeding) (citing Glass, 723 S.W.2d at 327; Hylton, 665 S.W.2d at 572).

                                                 7
(“In the context of a summary judgment, the party against whom the presumption operates must

produce evidence sufficient ‘to neutralize the effect of the presumption’ for the case to proceed

to trial.” quoting Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex. App.—Houston [14th Dist.]

2001, pet. denied)); First Nat’l Bank of Libby, Montana v. Rector, 710 S.W.2d 100, 103

(Tex. App.—Austin 1986, writ ref’d n.r.e.) (holding that where document created presumption of

foreign judgment’s validity, the party against whom the presumption operates must “produce some

evidence at least raising an issue of material fact as to the validity” of the judgment to defeat

summary judgment). And Wimmer, and any subsequent cases that might have followed it, are at

odds with the summary-judgment burdens that the Texas Supreme Court has prescribed. Even if it

is in some sense correct to state that a taxpayer must overcome a Comptroller’s certificate with

conclusive evidence at trial on the merits, the supreme court has made it clear that nonmovants do

not face higher or different summary-judgment burdens based on the burdens of proof they may face

at trial: “The failure of one party in a hearing upon a motion for summary judgment to discharge the

burden which would rest on him at a trial on the merits is no ground for a summary judgment in

favor of the other party.” Tigner v. First Nat’l Bank of Angleton, 264 S.W.2d 85, 87 (Tex. 1954).

It has likewise made clear that a movant’s summary-judgment burden does not depend on its burden

of proof at trial: “The presumptions and burden of proof for an ordinary or conventional trial are

immaterial to the burden that a movant for summary judgment must bear.” Missouri-Kan.-Tex. R.R.

Co. v. City of Dallas, 623 S.W.2d 296, 298 (Tex. 1981) (citing Tigner, 264 S.W.2d at 87). In fact,

the supreme court held in Missouri-Kansas-Texas Railroad that the taxing authority, which enjoyed

a number of presumptions in its favor, including that its property valuations were valid, must

nevertheless “‘establish [its] entitlement to a summary judgment on the issues expressly presented

                                                 8
to the trial court by conclusively proving all essential elements of [its] cause of action or defense as

a matter of law.’” Id. (quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979)). Thus, even if the taxpayer’s burden of proof at trial requires him to produce conclusive

evidence to prevail on the merits, he must only produce evidence sufficient to raise a question of fact

as to the taxing authority’s claim in order to avoid summary judgment.

                Nonetheless, because Ayeni has not presented competent contrary summary-judgment

evidence that would even meet the customary burden of a summary-judgment nonmovant, this is not

the case in which this Court should undertake to reexamine the suspect holdings of Wimmer and any

progeny en banc.8 But that case will come along inevitably, so I leave this writing as a place marker

for that day. Alternatively, the Legislature could, of course, provide statutory clarification that would

obviate the need for any such reexamination.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Henson;
  Justice Henson Not Participating

Filed: February 20, 2013




        8
          We may not overrule a prior panel opinion of this court absent an intervening change in
the law by the Legislature or a higher court or by decision of this court sitting en banc. See Tex. R.
App. P. 41.2 (providing that en banc consideration is appropriate to secure or maintain uniformity
of appellate court decisions); In re Smith, 366 S.W.3d 282, 289 (Tex. App.—Dallas 2012, no pet.);
Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

                                                   9
