
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



 




NO. 3-90-200-CV 




BURNET COUNTY APPRAISAL DISTRICT
AND BURNET COUNTY APPRAISAL REVIEW BOARD,


	APPELLANTS



vs.




J. M. HUBER CORPORATION,
CALCIUM CARBONATE DIVISION,

	APPELLEE




 


FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 13,126, HONORABLE D. V. HAMMOND, JUDGE PRESIDING

 


	The Burnet County Appraisal District ("the District") and
the Burnet County Appraisal Review Board ("the Board") appeal a
summary judgment granting the appellee, J. M. Huber Corporation,
Calcium Carbonate Division, a hearing before the Board to protest
a 1989 property appraisal.  Appellee filed suit seeking an order
directing the Board to conduct a hearing or, in the alternative,
determining the property's value.  The District counterclaimed
against appellee for unpaid 1989 taxes.  All parties filed motions
for summary judgment.  The trial court granted summary judgment for
the appellee, ordering the Board to conduct a hearing on appellee's 
protest.  The District's counterclaim was dismissed without
prejudice.  We will affirm the judgment of the trial court.
	The uncontroverted summary judgment proof shows that
around April 22, 1989, the District sent appellee an appraisal
notice reflecting an appraised value of $15,160,001.00 for
appellee's property, in contrast to its 1988 appraisal value of
$1,550,000.00.  Appellee's Manager of Business Analyses, Peter
Yacko, telephoned Chief Appraiser Melda Hart to find out if the
appraised value was the result of a clerical error in the placement
of a decimal point.  She told him that there was no such clerical
error.  On May 18, 1989, Yacko sent a letter to the District
stating appellee's disagreement with the appraisal.  The May 18
letter is the focus of this appeal.
	In their first point of error, appellants complain that
the trial court erred in granting summary judgment ordering the
Board to conduct a hearing because, as a matter of law, appellee's
letter did not satisfy the requirements of a "notice of protest"
within the meaning of the statute. (1)  Appellants concede that if the
letter constitutes a correctly filed notice of protest, appellee is
entitled to a hearing, and the judgment is correct.
	On review of a summary judgment, this Court will
determine whether the movant has shown that there is no genuine
issue of material fact and that it is entitled to judgment as a
matter of law.  Nixon v. Mr. Property Management, Inc., 690 S.W.2d
546, 548 (Tex. 1985).  The facts in the present cause are not at
issue; instead, appellants challenge the legal grounds entitling 
appellee to a summary judgment.  Appellants argue that appellee's
letter of May 18th did not meet the requirements of § 41.44 because
it constituted merely a "rendition" of value rather than a notice
of protest and because appellee filed it with the District rather
than with the Board.  We disagree with appellants' characterization
of the letter.    
	The relevant provisions of the Tax Code provide a
framework for evaluating the May 18 letter.  The Code was enacted
primarily to remedy the many inequities that had characterized the
administration of the ad valorem tax system.  Valero Transmission
Co. v. Hays Consol. Indep. School Dist., 704 S.W.2d 857, 859 n.1
(Tex. App. 1985, writ ref'd n.r.e.).  The Code establishes, in each
county, an appraisal district which must in turn establish an
appraisal office.  Code, §§ 6.01, 6.05 (1982 & Supp. 1991).  The
chief appraiser administers the appraisal office.  Code, § 6.05
(1982).  The Code also establishes an appraisal review board. 
Code, § 6.41 (1982 & Supp. 1991).
	Property is to be valued at its fair market value as of
January 1 of the tax year.  Code, § 23.01 (1982).  Before April 1,
but no later than May 15, a taxpayer may file a rendition. (2)  Code,
§§ 22.01, 22.23 (1982 & Supp. 1991).  The chief appraiser sends
notices of appraised value to taxpayers by May 15 and, at the same
time, submits the proposed values to the appraisal review board for
review and for determination of any protests.  Code, §§ 25.01,
25.19, 25.22, 41.01. (1982 & Supp. 1991).
	To contest an appraisal, the taxpayer must file with the
appraisal review board a notice of protest before June 1 or thirty
days after receipt of the notice of appraised value, whichever is
later.  Code, § 41.44 (Supp. 1991).  The Board then holds a
hearing, at which the taxpayer is allowed to present evidence and
arguments with respect to the property's value.  Code, § 41.45
(1982 & Supp. 1991).  The appraisal review board then considers the
evidence and issues its order determining the protest.  Code,
§ 41.47 (1982 & Supp. 1991).  Chapter 42 governs the taxpayer's
appeal from the decision of the Board to district court.  In
addition, the taxpayer must have appeared, either personally, by
representative, or by affidavit, at the protest hearing to preserve
the right to appeal to district court.  See Code, § 41.45 (1982 &
Supp. 1991); Webb County Appraisal Dist. v. New Laredo Hotel, Inc.,
792 S.W.2d 952 (Tex. 1990).
	Appellants contend, first, that the Board was not
required to grant appellee a hearing because the May 18 letter
constituted merely a "rendition" rather than a notice of protest. 
We reject appellants' invitation to decide whether the letter can
be construed as a rendition, because the possibility that the
letter might so qualify does not affect our analysis.  To decide
whether the Board was obliged to grant appellee a hearing, we need
only determine whether the letter satisfies the requirements of a
notice of protest within the meaning of the statute and, if so,
whether it was filed with the correct authority. 
	The Code specifies, in relevant part:  "A notice of
protest is sufficient if it identifies the protesting property
owner ... identifies the property that is the subject of the
protest, and indicates apparent dissatisfaction with some
determination of the appraisal office.  The notice need not be on
an official form . . . ."  Code, § 41.44 (d) (Supp. 1991).
	Appellee's letter clearly meets these criteria:  it
identifies both the property owner and the property that is the
subject of the protest.  Its opening sentence also indicates
apparent dissatisfaction:  "With J. M. Huber, Calcium Carbonate
Division, disagreeing with the Appraised Value of property on the
recently sent Notice of Appraised Value by your office . . . ." 
Another sentence also explicitly expresses dissatisfaction:  "Huber
also disagrees with appraisal value for all lots."
	The legislative history of the Code reveals the
legislature's rejection of hypertechnical requirements for
challenges to appraisal values.  The Code was enacted in part
because taxpayers rarely prevailed in challenging appraisals;
various legal doctrines, controlling presumptions, and burdens of
proof proved insurmountable.  Valero, 704 S.W.2d at 859 n.1. 
Section 41.44(d) clearly indicates that three simple requirements
"are sufficient" to constitute a notice of protest.  In addition,
agency rules may not impose additional burdens, conditions, or
restrictions in excess of or inconsistent with the statutory
provisions.  Riess v. Williamson County Appraisal Dist., 735 S.W.2d
633, 638 (Tex. App. 1987, writ den.).
	We also reject appellants' contention that the May 18
letter does not qualify as a notice of protest because it was filed
with the Appraisal District, not with the Review Board.  The
statute requires that "the property owner initiating the protest
must file a written notice of the protest with the appraisal review
board having authority to hear the matter protested."  Code,
§ 41.44 (a) (Supp. 1991).  
	Although the Code establishes the appraisal district and
the appraisal review board as separate entities, the appraisal
review board may use the staff of the appraisal office for clerical
assistance.  Code, § 6.43 (1982).  In Burnet County, the Board has
no staff of its own.  The appraisal office staff, headed by Chief
Appraiser Melda Hart, opens all mail addressed to the District or
the Board, maintains file cabinets for both the District and the
Board, schedules all protest hearings and sends all notices of
protest hearings.  The staff also tries to determine whether
correspondence from a taxpayer constitutes a notice of protest.  
	The tax notice appellants sent directed that "if you
disagree with" the property valuation, the taxpayer should contact
the appraisal office and could appeal any problem to the ARB by
filing a written protest with the ARB within thirty days.  "Protest
forms are available at the appraisal district (215 S. Pierce,
Burnet)."  The notice did not explain the meaning of the initials
"ARB."
	The record reveals appellee's May 18 letter was
addressed:  


Burnet County Appraisal District
215 South Pierce St.
Burnet, Texas 78611

Attention:  Melda Hart


The letter was delivered, via Federal Express, to the only street
address given on the Notice of Appraised Value, which was for the
"Burnet County Appraisal District."  Because the District and Board
share the same office, address, and staff, the only way a Burnet
County taxpayer may file a notice of protest is to file it with the
appraisal district staff at the address shown, which appellee did. 
Thus, appellants' challenge relies on the fact that the letter was
addressed to the District rather than to the Board.  When Hart
received the letter, she filed it without setting a hearing.
	In the only case construing § 41.44(a), this Court held
that a taxpayer who had filed no notice of protest at all for 1985
had complied with the requirements of the statute when a suit
challenging an identical appraisal for 1984 was pending at the time
the 1985 notice of protest was due.  Estepp v. Miller, 731 S.W.2d
677 (Tex. App. 1987, writ ref'd n.r.e.).  "This pending litigation
clearly gave the Appraisal District notice of apparent
dissatisfaction with the 1985 appraisal since that valuation was
based on the same facts that justified the 1984 figure."  Estepp,
731 S.W.2d at 680.
	The cases appellants cite as holding that filing notice
with the appraisal district is not effective notice to the
appraisal review board are inapposite.  All of these cases involve
§ 42.06, which controls appeals from the appraisal review board to
district court.  In contrast, the section at issue here, §  41.44,
merely specifies the steps a taxpayer must take to obtain a hearing
before the appraisal review board.  See Program Centers of Grace
Union Presbytery, Inc. v. Earle, 726 S.W.2d 628 (Tex. App. 1987, no
writ); Underhill v. Jefferson County Appraisal Dist., 725 S.W.2d
301 (Tex. App. 1987, no writ); Texas Conference Ass'n of Seventh
Day Adventists v. Central Appraisal Review Board, 719 S.W.2d 255
(Tex. App. 1986, writ ref'd n.r.e.); Corchine Partnership v. Dallas
County Appraisal Dist., 695 S.W.2d 734 (Tex. App. 1985, writ ref'd,
n.r.e.).
	If there are any doubts about the meaning of the law, we
must resolve them in favor of the taxpayers.  Estepp, 731 S.W.2d at
682 (Shannon, C.J., concurring).  In the present case, the require-ments of § 41.44 are straightforward; appellee met them, so it is
entitled to a hearing before the Board to protest the 1989
appraisal valuation.  
	Appellants' first point of error is overruled.  Because
appellee is entitled to a hearing, we need not consider appellants'
second point of error, that the trial court erred in dismissing
appellants' counterclaim for delinquent taxes.  The judgment of the
trial court is affirmed.


 
					Marilyn Aboussie, Justice
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Affirmed
Filed:  April 17, 1991
[Publish] 
1.        The Board is not required to hold a hearing in the
absence of a timely filed notice of protest.  See Tex. Tax Code
Ann. §§ 41.44-.45 (1982 & Supp. 1991) ("the Code").
2.        A rendition is "the reporting of taxable property by the
owner to the appraiser."  4 Crumbley, Shapiro & Williams, Texas
Tax Service ¶ 89.01[1], at 89-3 (1990).
