

Opinion issued August 11, 2011
 

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00016-CV
———————————
U. Lawrence Boze’ & Associates, P.C. and U. Lawrence Boze’, Appellants
V.
Harris
County Appraisal District, Appellee

 

 
On Appeal from the 165th District Court
Harris County, Texas

Trial Court Case No. 2009-33891
 

 
O P I N I O N
          In
this ad valorem tax case, appellants, U. Lawrence Boze’ & Associates, P.C.,
and U. Lawrence Boze’ (collectively, “Boze’”), sued the Harris County Appraisal
District (“HCAD”) to challenge the appraised value of business personal
property for the 2003, 2004, and 2005 tax years.  HCAD moved to dismiss for lack of
jurisdiction, contending that Boze’ did not substantially comply with the
prepayment requirements of Tax Code section 42.08.  The trial court granted the motion and
dismissed the suit.  In one issue, Boze’
contends that the trial court erred in granting HCAD’s motion because HCAD did
not present sufficient evidence to support a determination that Boze’ did not
substantially comply with section 42.08.
          We
affirm.
Background
          Boze’,
a solo attorney, leased office space at 2208 Blodgett Street in Houston to operate
his law office.  Boze’ had maintained a
“business personal property” account for this address with HCAD since at least
1991.  In February 2000, Boze’ moved his
law office and its associated property to his residential homestead, located at
2212 Blodgett Street, two lots from the office’s original location.  Although Boze’ alleges that he completed a
“change of address” form with the United States Postal Service, he did not
specifically inform HCAD of the office’s move, nor did he file an updated
rendition of business personal property with HCAD reflecting the new location
of the office and the property.  HCAD
continued to send personal property appraisal notices to Boze’s old address at
2208 Blodgett.
          Boze’
allegedly discovered this error in 2006, informed HCAD “that it was sending
personal property appraisal notices to the wrong address,” and notified HCAD
that he wished to protest the assessed taxes for tax years 2000–2006.  After allegedly being informed that it was
“too late” to protest the appraised value of his property for any tax year
other than 2006, Boze’ filed an administrative protest for his 2006 taxes
pursuant to Chapter 41 of the Tax Code.  On
the protest form, Boze’ manually changed his office’s address to 2212 Blodgett
Street and stated that “I have not practiced law at 2208 Blodgett in 6 [years] &
never owned that property.”  Boze’
successfully protested the 2006 appraised value of the property before the
Harris County Appraisal Review Board (“the Board”) and received a significant reduction
in the value.
          Boze’
alleged that over the next two years he received delinquent tax statements from
Linebarger, Goggan, Blair & Sampson, LLP, on behalf of the Harris County
Tax Assessor-Collector, for tax years 1998–2005.  He further alleged that he contacted
Linebarger Goggan each time he received a delinquent tax statement and disputed
the taxes owed for tax years 2003–2005 because these taxes were based on
business personal property that did not exist at 2208 Blodgett, the address
contained in HCAD’s records for his law office for these years.  In 2008, a representative of HCAD informed
Boze’ that, although he could no longer protest the value of his personal
property for tax years 2003–2005 pursuant to Chapter 41, he could file a
correction motion pursuant to Tax Code section 25.25 to correct the appraisal rolls.
          On
October 22, 2008, Boze’ filed a “Personal Property Correction Request/Motion”
with HCAD, requesting the correction of the appraisal rolls for tax years
2003–2005.  Boze’ selected four
“correction type” options on the form: 
(1) “Property not located at address shown on roll”; (2) “Error in
name/address/property description”; (3) “Property over-appraised by more than
1/3”; and (4) “Property does not exist.” 
Boze’ further indicated that he had not paid any of the taxes assessed
on the property.  As an explanation for
the requested corrections, he stated “no basis for more than 2,000% increase in
value of personal property for years 2005, 2004, and 2003 from 2000[,] also
2007 and 2006 reflect the value of the property after hearing.”  In the “Value Information” section of the
form, Boze’ stated that he believed that the property should be valued at
$2,600 for the 2003 tax year, $2,200 for the 2004 tax year, and $1,800 for the
2005 tax year.  After neither HCAD nor
the Board took any action on this motion, Boze’ filed a second correction
request form on March 17, 2009.  He
selected the same four “correction type” options, plus a fifth option:  “Clerical, Mathematical, Computer,
Transcription Error.”  On this form,
Boze’ stated that his valuation estimate for the property was $1,700 for all
three disputed tax years.
          On
April 8, 2009, Boze’ and a representative of HCAD attended a hearing on the
correction motion before a panel of the Board. 
At the hearing, Boze’ allegedly argued that no HCAD representatives had
visited his home at 2212 Blodgett during 2003–2005 to appraise the business
personal property, and, therefore, HCAD “could not know if any said personal
property even existed.”  He also
allegedly informed the Board that he had not paid the assessed taxes “because
he did not have the money to pay over $39,000 in taxes for the tax years in
question.”  Boze’ alleged that a Board
member stated, in reliance on a statement by the HCAD representative, that a
five-year statute of limitations barred HCAD from collecting the taxes assessed
for the 2003 tax year.[1]  The Board denied Boze’s correction motion for
this tax year.  The Board member further
stated that the panel would dismiss Boze’s correction motions for the 2004 and
2005 tax years because Boze’ had admitted that he did not pay any amount of the
assessed taxes for those two years.
          Shortly
after the hearing, Boze’ received an order determining protest for each of the
three contested tax years.  The order for
the 2003 tax year denied the correction motion, and the orders for the 2004 and
2005 tax years dismissed the respective correction motions for those two
years.  The 2004 and 2005 orders both
included the following paragraph:
In considering a protest
under Texas Tax Code Sec. 41.411 or a joint motion for correction of a
substantial error under Texas Tax Code Sec. 25.25, the Appraisal Review Board
determined that the property owner had not substantially complied with the tax
payment requirements of Texas Tax Code Sec. 42.08 and, as provided by law, has
forfeited his right to proceed to a final determination of his protest or
motion.
 
The orders also informed Boze’ that, if he appealed
the orders to the district court, he had to pay the “lesser of the amount of
taxes not in dispute or the amount of taxes due on the property under the order
from which the appeal is taken, to each taxing unit before taxes for the year
become delinquent.”  Boze’ timely filed a
petition for judicial review of all three of the Board’s orders.
          In
his petition for review, Boze’ contended that HCAD’s appraisal of his business
personal property was “excessive, fraudulent, and arbitrary and [was] not based
on personal inspection at any location.” 
Boze’ contended that he was entitled to a correction of the appraisal
rolls under Tax Code section 25.25(c)(3), which allows correction of the
“inclusion of property that does not exist in the form or at the location
described in the appraisal roll” because Boze’ owned no business personal
property located at 2208 Blodgett, the address on file with HCAD for his law
office, during 2003–2005.  Boze’ also
argued that he should not be required to pre-pay his taxes before the
delinquency date as a prerequisite to judicial review because he “disputed all
of the alleged taxes in question . . . since such taxes are
based on alleged appraisals by Defendant HCAD of business personal property
which did not exist in any form at the 2208 Blodgett location indicated in the
appraisal roll.”  Boze’ further argued
that, due to the “five year statute of limitations,” HCAD could not collect the
delinquent taxes for the 2003 tax year.  Boze’
included with his petition an oath of inability to pay the taxes at issue,
first filed with the trial court on May 29, 2009.
          HCAD
moved to dismiss the suit for lack of jurisdiction and requested a hearing to
determine whether Boze’ had substantially complied with the payment
requirements of Tax Code section 42.08.  HCAD
contended that the trial court should dismiss the case because Boze’ did not
pay the lesser of the undisputed amount of taxes owed on the property or the
current tax liability before each tax year’s relevant delinquency date, and,
therefore, Boze’ did not exhaust his administrative remedies as required by Tax
Code section 25.25(e), which requires a taxpayer to comply with section 42.08
or the taxpayer forfeits the right to have the appraisal review board finally
determine the correction motion.
HCAD further contended that Boze’s
oath of inability to pay taxes, filed with his petition for review on May 29,
2009, did not substantially comply with the requirements of Tax Code section
42.08(d) because this oath was filed more than three years after the delinquency
date for the 2005 tax year—and more
than one month after the Board issued its orders determining Boze’s correction
motions—and thus did not provide
sufficient notice to the taxing authorities that Boze’ could not pay the
assessed taxes.  HCAD also argued that
any claim that Boze’ should be excused from the prepayment requirements of
section 42.08 because all correspondence from HCAD and the taxing authorities,
including appraisal notices and tax bills, was delivered to 2208 Blodgett, and
not 2212 Blodgett, was not meritorious because Boze’, who had had an account
with HCAD regarding the subject property since 1991 and had paid the assessed
taxes for tax years 2000–2002, after he moved his law office, did not follow
the statutory procedures for protesting HCAD’s alleged failure to deliver a
required notice.
          In
response, Boze’ argued that his suit for judicial review was not seeking “a
re-appraisal of the value of the business personal property in question” but
was seeking to “correct errors for business personal property that did not
exist in its form and at the location indicated by Defendant HCAD for tax years
2003, 2004, and 2005.”  Boze’ contended
that he was not required to pre-pay any of the taxes as a prerequisite for
filing a petition for review because he “disputed all of the alleged taxes due
on business personal property for tax years 2003, 2004, and 2005.”  Boze’ argued that the fact that he had
admitted in his correction motion that he had taxable business property located
at 2212 Blodgett did not affect his contention that “there was no undisputed
amount of taxes that had to be paid for non-existent business personal property
located at 2208 Blodgett.”  Boze’ further
stated that all notices from HCAD and the taxing authorities regarding payment
of taxes were sent to 2208 Blodgett, and not 2212 Blodgett, and therefore Boze’
“had no knowledge of the taxes assessed for his alleged business personal
property or the delinquency date for such taxes for each of the tax years in
question until 2006.”  Boze’ also
contended that he informed the Harris County Tax Assessor-Collector “when he
became aware of the alleged personal property taxes due plus penalties, in
2006, that he could not pay taxes for personal property that never
existed.”  He argued that his “conduct in
notifying the interested parties of his inability to pay plus Defendant HCAD’s
failure to present any evidence of [his] ability to pay satisfies the
substantial compliance provision for Section 42.08.”  These conclusory statements are the only
indications that Boze’ contacted the Harris County Tax Assessor-Collector’s
office and informed it that he could not pay the assessed taxes.
          On
December 7, 2009, the trial court held a hearing to determine whether Boze’ had
substantially complied with section 42.08. 
On appeal, Boze’ contends that the judge at this hearing was an
“unnoticed, surprise, visiting judge.” 
Boze’ did not object at any time to this judge presiding over the
hearing.  Ultimately, the trial court
ruled that Boze’ did not substantially comply with section 42.08 and granted
HCAD’s motion to dismiss for lack of jurisdiction.
          Boze’
timely requested findings of fact and conclusions of law.  After the trial court failed to file such
findings and conclusions, Boze’ filed a notice of past due findings and conclusions.  The trial court again failed to file findings
and conclusions.  This appeal followed.
Standard of Review
          Compliance
with the prepayment requirements of section 42.08 “is a jurisdictional
prerequisite to [the] district court’s subject matter jurisdiction to determine
property owner’s rights.”  Lawler v. Tarrant Appraisal Dist., 855
S.W.2d 269, 271 (Tex. App.—Fort Worth 1993, no writ).  Whether a trial court has subject matter
jurisdiction is a question of law, and, therefore, we review de novo a trial
court’s ruling on a motion to dismiss for lack of jurisdiction.  See
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); see also Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004) (holding that we review
trial court’s ruling on plea to the jurisdiction de novo); Quorum Int’l v. Tarrant Appraisal Dist., 114 S.W.3d 568, 571 (Tex.
App.—Fort Worth 2003, pet. denied) (reviewing dismissal for want of
jurisdiction based on taxpayer’s alleged failure to exhaust administrative
remedies de novo); Dallas Cent. Appraisal
Dist. v. 717 S. Good Latimer Ltd., No. 05-09-00779-CV, 2010 WL 1729343, at
*1 (Tex. App.—Dallas Apr. 29, 2010, pet. denied) (mem. op.) (reviewing de novo grant
of plea to the jurisdiction based on failure to substantially comply with
section 42.08).
Substantial Compliance with Section 42.08
          A
taxpayer owes a continuing obligation to pay taxes on his property.  Atascosa
Cnty. v. Atascosa Cnty. Appraisal Dist., 990 S.W.2d 255, 258 (Tex.
1999).  The State of Texas has
jurisdiction to tax tangible personal property if the property is located in
Texas for longer than a temporary period. 
Tex. Tax Code Ann.
§ 11.01(c)(1) (Vernon 2008); id.
§ 21.02(a)(1) (Vernon Supp. 2010) (“[T]angible personal property is
taxable by a taxing unit if it is located in the unit on January 1 for more
than a temporary period.”); see also id.
§ 11.14(a) (Vernon 2008) (“A person is entitled to an exemption from
taxation of all tangible personal property . . . that the
person owns and that is not held or used for production of income.”).
Each tax year, a person is required
to “render for taxation all tangible personal property used for the production
of income that the person owns . . . on January 1.”  Id.
§ 22.01(a) (Vernon Supp. 2010); Starflight
50, L.L.C. v. Harris Cnty. Appraisal Dist., 287 S.W.3d 741, 748 (Tex.
App.—Houston [1st Dist.] 2009, no pet.); see
also Harris Cnty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105
S.W.3d 88, 92 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“The word
‘shall’ in section 22.01(a) is mandatory, not discretionary.”).  The rendition statement shall contain, among
other requirements, the property owner’s name and address, a description of the
property, the “physical location or taxable situs” of the property, and a good
faith estimate of the property’s market value. 
Tex. Tax Code Ann.
§ 22.01(a).  If the property owner
fails to timely file a rendition statement, the chief appraiser is required to
impose a penalty upon the owner.  Id. § 22.28(a) (Vernon 2008).  It is undisputed that after moving his law
office to 2212 Blodgett in 2000, Boze’ did not file a rendition statement with
HCAD that reflected the office’s correct address and the correct situs of his
business personal property.
          Property
owners are entitled to administratively protest certain actions, such as the determination
of the appraised value of the owner’s property, to the appraisal review board
pursuant to Chapter 41.  See id.
§ 41.41(a) (Vernon 2008). 
Generally, a property owner must file a written notice of protest within
thirty days after the owner receives notice of the appraised value of the
property.  Id. § 41.44(a) (Vernon 2008); see also id. § 25.19(d) (Vernon 2008) (providing that failure
to receive notice of appraised value “does not affect the validity of the
appraisal of the property [or] the imposition of any tax on the basis of the
appraisal”).  A property owner may also
protest the failure of the chief appraiser to provide or deliver “any notice to
which the property owner is entitled.”  Id. § 41.411(a).  It is undisputed that Boze’ did not avail
himself of his Chapter 41 administrative protest remedies for any of the tax
years in question, nor did he protest, pursuant to section 41.411, the chief
appraiser’s alleged failure to deliver the appraisal notices for the business
personal property for the relevant tax years to his correct address.
A mistake in the name or address of
a property owner does not affect the validity of the appraisal records or of
the tax imposed, and such mistakes “may be corrected as provided by [the Tax
Code].”  Id. § 25.02(b) (Vernon 2008). 
Tax Code section 25.25 allows the chief appraiser to, at any time,
change the appraisal roll to correct an erroneous address.  Id.
§ 25.25(b) (Vernon 2008).  This
section also allows a property owner to move to correct errors in the appraisal
records after the time limits for a Chapter 41 administrative protest have
expired; however, “[a] property owner’s ability to change approved tax
appraisal rolls is clearly limited.”  Anderton v. Rockwall Cent. Appraisal Dist.,
26 S.W.3d 539, 542 (Tex. App.—Dallas 2000, pet. denied).  A property owner may move the appraisal
review board to correct, for any of the five preceding tax years, (1) clerical
errors that affect a property owner’s liability for a tax imposed in that tax
year; (2) multiple appraisals of a property in that tax year; or (3) the
inclusion of property that does not exist in the form or at the location
described in the appraisal roll.[2]  Tex.
Tax Code Ann. § 25.25(c).  If
the chief appraiser and the property owner do not agree to the correction
within fifteen days of the date the motion is filed, a movant under subsection
(c) or (d) of section 25.25 “is entitled on request to a hearing on and a
determination of the motion by the appraisal review board.”  Id.
§ 25.25(e).  “A property owner who
files the [section 25.25(c)] motion must comply with the payment requirements
of Section 42.08 or forfeit the right to a final determination of the motion
[by the appraisal review board.]”  Id.
Tax Code section 42.08 generally
applies to a suit for judicial review of an adverse appraisal review board determination
of the appraised value of the property pursuant to Chapter 41, but section 25.25(e)
also requires compliance with section 42.08 before the appraisal review board
may determine a correction motion.  See id.; see also id. § 41.411(c) (“A property owner who protests as
provided by this section must comply with the payment requirements of Section
42.08 or the property owner forfeits the property owner’s right to a final
determination of the protest [of the alleged failure of the chief appraiser to
deliver a required notice].”).  Section
42.08 requires that:
Except as provided in
Subsection (d), a property owner who appeals as provided by this chapter must
pay taxes on the property subject to the appeal in the amount required by this
subsection before the delinquency date or the property owner forfeits the right
to proceed to a final determination of the appeal.  The amount of taxes the property owner must
pay on the property before the delinquency date to comply with this subsection
is the lesser of:
 
(1) the amount of taxes due on
the portion of the taxable value of the property that is not in dispute; or
 
(2) the amount of taxes due on
the property under the order from which the appeal is taken.
 
Id.
§ 42.08(b) (Vernon Supp. 2010). 
Generally, with some exceptions not applicable here, “taxes are due on
receipt of the tax bill and are delinquent if not paid before February 1 of the
year following the year in which imposed.” 
Id. § 31.02(a) (Vernon
2008); see also id. § 31.04 (Vernon
2008) (providing that delinquency date may be postponed in certain
circumstances).  Under Tax Code section
31.01, the assessor for each taxing unit is required to prepare and mail a tax
bill to each property owner listed on the tax roll; however, “failure to send
or receive the tax bill required by [section 31.01] does not affect the
validity of the tax, penalty, or interest, the
due date, the existence of a tax lien, or any procedure instituted to
collect a tax.”  Id. § 31.01(a), (g) (Vernon Supp. 2010) (emphasis added).
          Subsection
(d) of section 42.08 provides an exception to the prepayment requirement of
subsection (b) and allows that:
After filing an oath of
inability to pay the taxes at issue, a party may be excused from the
requirement of prepayment of tax as a prerequisite to appeal if the court,
after notice and hearing, finds that such prepayment would constitute an
unreasonable restraint on the party’s right of access to the
courts. . . .  If the court determines that the
property owner has not substantially complied with this section, the court
shall dismiss the pending action.  If the
court determines that the property owner has substantially but not fully
complied with this section, the court shall dismiss the pending action unless
the property owner fully complies with the court’s determination within 30 days
of the determination.
 
Id.
§ 42.08(d).  The Austin Court of
Appeals, in J.C. Evans Construction Co.
v. Travis Central Appraisal District, held that “a property owner may avoid
the forfeiture provision by substantially complying with either section
42.08(b) or (d), or some combination of both.” 
4 S.W.3d 447, 450 (Tex. App.—Austin 1999, no pet.).
As the party seeking dismissal of
the case for lack of subject-matter jurisdiction, HCAD had the burden to
establish that Boze’ did not substantially comply with the prepayment
requirements of Tax Code section 42.08.  See id. at 449; Lee v. El Paso Cnty., 965 S.W.2d 668, 671 (Tex. App.—El Paso 1998,
pet. denied) (“The party seeking dismissal for lack of jurisdiction maintains
the burden of proof.”).  Whether a
property owner has substantially complied with section 42.08 is a factual
matter to be determined by the trial court on a case-by-case basis.  J.C.
Evans, 4 S.W.3d at 449; Harris Cnty.
Appraisal Dist. v. Bradford Realty, Ltd., 919 S.W.2d 131, 135 (Tex.
App.—Houston [14th Dist.] 1994, no writ). 
We construe tax statutes strictly against the taxing authority and
liberally in favor of the taxpayer.  J.C. Evans, 4 S.W.3d at 449 (citing Arch Petroleum, Inc. v. Sharp, 958
S.W.2d 475, 478 (Tex. App.—Austin 1997, no pet.)).  If a statute is designed to relieve a
property owner from the harshness of the forfeiture of appeals, we should
liberally construe the statute to accomplish that purpose.  See id.;
Jackson Hotel Corp. v. Wichita Cnty.
Appraisal Dist., 980 S.W.2d 879, 882 (Tex. App.—Fort Worth 1998, no pet.).
The procedures provided in the Tax
Code for “adjudication of the grounds of protest . . . are
exclusive.”  Tex. Tax Code Ann. § 42.09(a) (Vernon 2008); see also Cameron Appraisal Dist. v. Rourk,
194 S.W.3d 501, 502 (Tex. 2006) (per curiam) (“The Texas Tax Code provides
detailed administrative procedures for those who would contest their property
taxes.”).  “Compliance with the tax code
is a jurisdictional prerequisite to pursuing judicial review, and failure to
strictly comply with the time lines set forth in the code is a jurisdictional
defect precluding review.”  Tarrant Appraisal Dist. v. Gateway Ctr.
Assocs., Ltd., 34 S.W.3d 712, 714 (Tex. App.—Fort Worth 2000, no pet); see also Webb Cnty. Appraisal Dist. v. New
Laredo Hotel, Inc., 792 S.W.2d 952, 954 (Tex. 1990) (“[J]udicial review of
administrative orders is not available unless all administrative remedies have
been pursued to the fullest extent.”).
We must determine whether Boze’,
who admittedly has never paid any portion of the taxes assessed for tax years
2003–2005 and who did not file an oath of inability to pay until he filed his
suit for judicial review in the district court on May 29, 2009, more than one
month after the Board dismissed his correction motions, substantially complied
with either subsection (b) or subsection (d) of section 42.08.
A.  
Substantial Compliance with Section
42.08(b)
Section 42.08(b) requires a
property owner, to avoid forfeiture of his right to file a suit for judicial
review, to pay either the lesser of the amount of taxes not in dispute or the
current tax liability prior to the delinquency date for the tax year.  Tex.
Tax Code Ann. § 42.08(b); J.C.
Evans, 4 S.W.3d at 450.  Section
42.08 does not immediately require full compliance upon filing the suit for
judicial review; if a property owner “substantially complies,” the owner
receives a thirty-day grace period to fully comply before the trial court is
required to dismiss the action.  Tex. Tax Code Ann.
§ 42.08(d).  “Substantial
compliance” means that one has performed the “essential requirements” of a
statute and it “excuse[s] those deviations from the performance required by
statute which do not seriously hinder the legislature’s purpose in imposing the
requirement.”  Mo. Pac. R.R. Co. v. Dallas Cnty. Appraisal Dist., 732 S.W.2d 717,
721 (Tex. App.—Dallas 1987, no writ).  In
Missouri Pacific, the Dallas Court of
Appeals identified two objectives of section 42.08(b)’s prepayment
requirement:  (1) to ensure that property
owners “would not use the right of judicial review as a subterfuge for delaying
or avoiding the payment of at least some tax”; and (2) to “assure that the
activities of the local governments which relied on ad valorem taxes would not
be unduly impeded by granting the property owner the right of judicial review.”  Id.;
see J.C. Evans, 4 S.W.3d at 451.
Courts have repeatedly held that if
the property owner does not pay any portion of the assessed taxes by the delinquency
date, even if it later pays some or all of the taxes after the due date, the
property owner has not substantially complied with section 42.08(b).  J.C.
Evans, 4 S.W.3d at 451; see Gen.
Motors Acceptance Corp. v. Harris Cnty. Mun. Util. Dist. No. 130, 899
S.W.2d 821, 823 (Tex. App.—Houston [14th Dist.] 1995, no writ) (“The courts of
appeals have consistently held that if the taxpayer does not pay any of the
taxes on the property by the delinquency date, the taxpayer has not
substantially complied and the appeal should be dismissed.”); Harris Cnty. Appraisal Dist. v. Dipaola
Realty Assocs., 841 S.W.2d 487, 490 (Tex. App.—Houston [1st Dist.] 1992,
writ denied) (“Here, however, where no
tax money was timely paid, a finding of substantial compliance is not
appropriate.”) (emphasis in original); Filmstrips
& Slides, Inc. v. Dallas Cent. Appraisal Dist., 806 S.W.2d 289, 291
(Tex. App.—Dallas 1991, no writ) (“Either the time requirement is complied with
or it is not. . . .  [W]e are not persuaded that paying
after the tax delinquency deadline will suffice because any forgiveness will
eventually lead to a complete obliteration of the time requirement.”); see also Cent. Appraisal Dist. of Rockwall
Cnty. v. Lall, 924 S.W.2d 686, 690 (Tex. 1996) (“[A] person judicially
challenging a property tax must tender at least the amount conceded to be owed
in order to maintain the action.”).
Here, it is undisputed that Boze’
never paid any portion of the assessed taxes for tax years 2003–2005 at any
time, let alone by the delinquency dates for these years:  February 1, 2004, February 1, 2005, and
February 1, 2006, respectively.  Boze’,
however, argues that he was not required to prepay any amount of the taxes
because section 42.08(b) requires payment of the lesser of the amount not in dispute or the current tax
liability, and, because he contends that he had no taxable personal property
located at 2208 Blodgett, the address listed on HCAD’s appraisal rolls for his
law office for the 2003–2005 tax years, he disputed the entire amount of the assessed taxes, and therefore the “lesser
amount” under section 42.08(b) was zero. 
HCAD responds that Boze’ is not excused from the prepayment requirement
because it is undisputed that he moved his taxable personal property two lots
over to 2212 Blodgett and, thus, although the specific situs of the property
named in HCAD’s records was erroneous, he owned taxable personal property
within the taxing units for the tax years at issue.  HCAD points out that Boze’ did not inform it
of his address change until 2006, six years after he moved; he never filed an
amended rendition of taxable personal property as required by Tax Code section
22.01; he admitted in his correction motions that the value of his taxable
personal property located at 2212 Blodgett—that he had moved from 2208 Blodgett in 2000—was at least $1,700; and he did not receive tax
bills at 2212 Blodgett for this personal property until he notified HCAD of the
address change.
In Pratt & Whitney Canada, Inc. v. McLennan County Appraisal District,
the Waco Court of Appeals addressed whether a property owner was required to
prepay assessed taxes as a prerequisite to appeal when the owner argued that it
owed no taxes because the appraisal
district lacked jurisdiction to assess taxes on the property, and thus the
“entire amount” of taxes was in dispute. 
927 S.W.2d 641, 643 (Tex. App.—Waco 1996, writ denied) (per
curiam).  The McLennan County Appraisal
District cited, among other cases, Dipaola
Realty and Filmstrips & Slides
for the proposition that the property owner had to pay some amount as a prerequisite to appeal under section
42.08(b).  See id. at 643–44.  The Waco
court, however, distinguished that line of cases because “none of those cases
concern the jurisdiction to impose a tax on the property in question, but
rather, concern disputes over the valuation of property that is admittedly
taxable.”  Id. at 644.  The court
ultimately held that “where a property owner asserts that the District lacks
jurisdiction to tax certain property, and no tax was imposed during the
previous year, then the property owner does not lose its right to proceed to a
final determination on appeal based upon its failure to timely pay the taxes
assessed by the District.”  Id.
Here, unlike in Pratt & Whitney, Boze’ is not
asserting that the taxing authorities of Harris County lack jurisdiction to
assess taxes on his business personal property. 
Boze’ admits that he owned taxable business personal property within the
jurisdiction of the taxing authorities for the tax years 2003–2005, albeit at a
different location within the taxing unit than was listed in HCAD’s appraisal
records.  Boze’ does not assert that he
received tax bills for the subject property at 2212 Blodgett during 2003–2005,
and thus there is no contention that this property was subject to double
taxation.  In 2000, Boze’ moved his
taxable business personal property to 2212 Blodgett and did not inform HCAD of
this move until 2006; as a result, HCAD and taxing authority officials believed
that his taxable property was still located at 2208 Blodgett and accordingly
mailed notices and bills to that address.
Boze’
cites the Dallas Court of Appeals’ decision in Titanium Metals Corp. v. Dallas County Appraisal District, for the
proposition that relief was available to him under section 25.25(c)(3) because
correction of the appraisal rolls under this subsection “is only allowed when
the appraisal roll erroneously reflects that a particular form of property
exists at a specified location and, in fact, no such property exists at that
location.”  3 S.W.3d 63, 66 (Tex.
App.—Dallas 1999, no pet.).  In Titanium Metals, the property owner did
not dispute that it owned personal property at the location described in the
appraisal rolls; rather, it argued that because it had moved some of its personal property to a
location outside of the jurisdiction, it “[did] not maintain as much personal property there as is
evidenced by the appraisal roll.”  Id. (emphasis in original).  The Dallas Court construed this argument as a
complaint about the value of the property described in the appraisal roll, and
it concluded that because property did exist in the form and location described
in the appraisal roll, amendment of the roll under section 25.25(c)(3) was not
authorized.  Id.
Boze’
argues that because he never had business personal property at the location
described in the appraisal rolls for tax years 2003–2005, unlike Titanium
Metals, which had at least some property at the location of record, he can use
section 25.25(c)(3) to change the appraisal rolls.  The Dallas Court in Titanium Metals did not, however, address substantial compliance
with section 42.08, which is the issue in this case, and Boze’ provides no
argument for why this decision excuses him from prepaying the taxes owed on the
business personal property admittedly located within the jurisdiction of the taxing
unit as a prerequisite to the appraisal review board’s deciding his section
25.25(c) motion and to his suit for judicial review to the district court.[3]
We conclude that because Boze’
admitted that he owned the taxable business personal property at issue in this
case, moved his business without notifying the taxing authorities for six
years, and maintained that property within the jurisdiction of the taxing
authorities during the relevant tax years, albeit at an address not named in
HCAD’s appraisal records, he was not excused from the prepayment requirement of
section 42.08(b).  We therefore hold that,
because Boze’ did not pay any portion of the assessed taxes before the relevant
delinquency dates, he did not substantially comply with section 42.08(b).
 
 
B.  
Substantial Compliance with Section
42.08(d)
Although section 42.08(b) generally
requires a property owner to prepay the lesser of the amount of taxes not in
dispute or the current tax liability as a prerequisite to appeal, subsection
(d) excuses the owner from this requirement if the owner files an “oath of
inability to pay the taxes at issue” and the trial court determines that “such
prepayment would constitute an unreasonable restraint on the party’s right of
access to the courts.”  Tex. Tax Code Ann. § 42.08(d).
In J.C. Evans, which did not involve a correction motion under section
25.25(c), the taxpayer admittedly did not file an oath of inability to pay;
however, it contacted the assessor-collector on the delinquency date, informed
him that it would be unable to pay, and, after the assessor-collector “acquiesced in J.C. Evans’ representation
of inability to pay,” J.C. Evans entered into a short-term installment
agreement with the assessor-collector.  4
S.W.3d at 452 (emphasis in original). 
The Austin Court of Appeals concluded that, as a result of this conduct,
J.C. Evans substantially complied with the objectives of subsection (d) by
“notifying the interested parties that certain tax revenue could not be paid
prior to the delinquency date, and also by specifying when and how it would be
paid.”  Id.
Section 25.25(e) requires a
taxpayer to either pay at least a portion of the assessed taxes before the
delinquency date pursuant to section 42.08(b) or file an oath of inability to
pay the assessed taxes pursuant to section 42.08(d) or the taxpayer “forfeit[s]
the right to a final determination of the [correction] motion.”  Tex.
Tax Code Ann. § 25.25(e). 
Thus, as we have already determined that Boze’ did not pay any portion
of the assessed taxes, to avoid forfeiture, Boze’ must have filed an oath of
inability to pay before the Board considered his correction motions.
It is undisputed that Boze’ did not
file an oath of inability to pay until May 29, 2009, with his original petition
for judicial review, more than one month after the Board denied Boze’s
correction motion for the 2003 tax year and dismissed his motions for the 2004
and 2005 tax years.  The only evidence
that Boze’ informed either the taxing authorities or the Board that he could
not pay the assessed taxes is his self-serving and conclusory statements in his
first amended petition for review and first amended oath of inability to pay that
he informed the Harris County assessor-collector “in 2006” that he “could not
pay taxes for personal property that never existed” and that he told a Board
member, when asked at the hearing whether he had paid the assessed taxes, that
he had not paid the taxes “because [he] did not have the money to pay taxes,
plus penalties and interest, for the tax years in question.”  Although Boze’ noted that his hearing before
the Board was recorded, he did not attach a transcript or reporter’s record to
his petition for review, oath of inability to pay, or response to HCAD’s motion
to dismiss.  Cf. J.C. Evans, 4 S.W.3d at 452 (holding taxpayer substantially
complied with section 42.08(d) when it contacted taxing authority before
delinquency date, informed taxing authority that it could not pay assessed
taxes, and entered into installment agreement to pay taxes).
Because Boze’ did not file an oath
of inability to pay before the Board considered his correction motions, Boze’
“forfeit[ed] the right to a final determination” of the motions.  We hold that the trial court correctly
determined that Boze’ did not substantially comply with section 42.08, which
was a prerequisite to the Board determining his correction motions, and, thus,
the trial court correctly granted HCAD’s motion to dismiss for lack of
jurisdiction.
We overrule Boze’s sole issue.
Objection to Visiting Judge
Although he does not present this
argument as a distinct issue on appeal, Boze’ argues that if he had received
the required notice that a visiting judge would be presiding over the hearing
on HCAD’s motion to dismiss, he “would have exercised [his] right to object to
this assigned visiting former judge by filed written motion” pursuant to
Government Code section 74.053(c).  HCAD
contends that Boze’ waived this complaint because he did not object before the
start of the hearing and he cannot raise this argument for the first time on
appeal.  We agree with HCAD.
Government Code section 74.053
provides that when a judge is assigned to a trial court, the presiding judge
shall, “if it is reasonable and practicable and if time permits,” give notice
of the assignment to the attorneys representing each party.  Tex.
Gov’t Code Ann. § 74.053(a) (Vernon 2005).  Any objection to the assignment 
must be filed not later than
the seventh day after the date the party receives actual notice of the
assignment or before the date the first hearing or trial, including pretrial
hearings, commences, whichever date occurs earlier.  The presiding judge may extend the time to
file an objection under this section on written motion by a party who
demonstrates good cause.
 
Id.
§ 74.053(c).
The Texas Supreme Court has held
that “[a]n objection to a judge assigned under Chapter 74 is timely if it is
filed before the very first hearing or trial in the case, including pretrial
hearings, over which the assigned judge is to preside.”  In re
Canales, 52 S.W.3d 698, 704 (Tex. 2001). 
“Once an assigned judge has heard any matter in a case, the parties have
waived the right to object to that judge under section 74.053 of the Government
Code.”  Id.; see also In re Hourani,
20 S.W.3d 819, 823 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding)
(“Subsection (c) [of section 74.053] leaves no doubt that the objection under
subsection (b) necessary to trigger a right to removal may only be made before the visiting judge takes action on the
case.  The window of opportunity
terminates when the first hearing or trial ‘over
which the assigned judge is to preside’ begins.”) (emphasis in original); Holstein v. Fed. Debt Mgmt., Inc., 902
S.W.2d 31, 37 (Tex. App.—Houston [1st Dist.] 1995, no writ) (“To preserve his
error for appellate review, Holstein should have objected to the visiting judge
before the motion for summary judgment was resolved (if he was informed of the
appointment of the visiting judge); if he was not informed of the appointment,
Holstein should have filed a motion for new trial objecting to the appointment
of the visiting judge.  He did
neither.”).
Although Boze’ asserts that he did
not receive notice of the assignment of a visiting judge until the day of the
hearing on HCAD’s motion to dismiss, it is undisputed that he did not object to
the assignment at any time before, during, or after the hearing.  He did not file any type of post-dismissal
motion objecting to the assignment.  We
therefore conclude that Boze’ failed to preserve this complaint for appellate
review.
Discovery Conduct
Additionally, Boze’ complains that
HCAD refused to comply with his proper discovery requests by providing
“improper, intentionally evasive, conflicting responses” and that it
“intentionally, and in bad faith thwarted, concealed and/or circumvented the
discovery of information relevant to [Boze’s] appeal against [HCAD].”  HCAD contends that Boze’ waived these
complaints because he never requested a ruling on the objections that HCAD had
made to his discovery requests, nor did he file a motion to compel HCAD to
properly respond.
If a party is not satisfied with an
opposing party’s discovery objections or responses to discovery inquiries, that
party may move the trial court to compel discovery.  See
Tex. R. Civ. P. 215.1; see also Tex. R. Civ. P. 193.4 (providing that any party may request a
hearing on an objection or claim of privilege to a discovery request).  To preserve error on a discovery dispute, the
appealing party must obtain a ruling by the trial court on the discovery
issue.  See Goodchild v. Bombardier-Rotax GMBH Motorenfabrik, 979 S.W.2d 1,
6–7 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (“The statement of facts
from the hearing indicates appellants raised their complaints [regarding a
motion to compel interrogatories and a response to a motion for production] at
the hearing, but they did not obtain a ruling from the trial court on the
motion and they did not object to the trial court’s failure to make such a
ruling.”); see also Tex. R. App. P. 33.1(a)(1)(A)
(requiring, for error preservation purposes, complaint to trial court by timely
request, objection, or motion stating grounds for ruling with sufficient
specificity to make trial court aware of complaint and ruling on request,
objection, or motion); Hayes v. Wells
Fargo Bank, N.A., No. 01-06-00720-CV, 2007 WL 3038043, at *5 (Tex.
App.—Houston [1st Dist.] Oct. 18, 2007, pet. denied) (mem. op.) (“Aggrieved
parties in a discovery dispute must obtain a ruling before trial begins in
order to preserve error.  Having failed
to obtain a ruling on his discovery request before trial, Hayes waived any
error.”).
Here, the record reflects that HCAD
objected to a substantial number of Boze’s discovery requests.  Boze’ complained about HCAD’s objections and
its discovery answers in his responses to HCAD’s motion to dismiss.  However, he never filed either formal
objections to HCAD’s answers or a motion to compel discovery, and he did not
request a hearing on HCAD’s objections. 
The record reflects that the trial court did not issue any rulings on
discovery issues.  We therefore conclude
that Boze’ has failed to preserve any complaints about HCAD’s discovery conduct
for appellate review.
Failure to File Findings of Fact and Conclusions of
Law
Before filing his appellate brief
in this case, Boze’ filed a “motion to reverse and remand for a new trial for
error not curable for failure of the trial court to file findings of
fact.”  Boze’ contended that because the
trial court failed to file findings and conclusions, he was “left to guess the
reasons for the decision of a visiting former judge to grant dismissal of this
case” and he “[could not] properly present [his] case to this Appeals
Court.”  Although Boze’ mentions in his
appellate brief that the trial court failed to file findings and conclusions,
he does not present further argument regarding how the trial court’s failure
prevented him from presenting his case on appeal, and he does not present this
failure as a separate issue supporting reversal of the trial court’s judgment.
A party is entitled to findings of
fact and conclusions of law after a conventional trial on the merits to the
court.  See Tex. R. Civ. P.
296; IKB Indus. (Nigeria) Ltd. v.
Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997).  A “trial” is a hearing in which the court
hears and receives evidence.  Gen. Elec. Capital Corp. v. ICO, Inc.,
230 S.W.3d 702, 711 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).  If the trial court renders judgment as a
matter of law, such as when a court grants a motion to dismiss for lack of
jurisdiction, findings and conclusions are not improper, but they have no
purpose and should not be requested or considered on appeal.  See
Pro-Line, 938 S.W.2d at 443; F-Star
Socorro, L.P. v. El Paso Cent. Appraisal Dist., 324 S.W.3d 172, 175 (Tex.
App.—El Paso 2010, no pet.).  “This is
especially true when a plea to the jurisdiction does not involve disputed
facts.”  F-Star Socorro, 324 S.W.3d at 175 (citing Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 346 (Tex.
App.—Eastland 2008, no pet.)).  When
reviewing these decisions, we exercise our own judgment in determining each
issue, and, therefore, we “cannot consider findings and conclusions even if
they are included in the record.”  Id.
The only issue before the trial
court in HCAD’s motion to dismiss was whether the trial court lacked
subject-matter jurisdiction because Boze’ did not substantially comply with the
payment requirements of section 42.08 as a prerequisite to the Board’s
determination of his correction motions and, therefore, did not exhaust his
administrative remedies.  The facts
relevant to this determination were undisputed: 
Boze’ agreed that he did not pay any portion of the taxes assessed for
the 2003–2005 tax years before the relevant delinquency dates, and he agreed
that he did not file an oath of inability to pay until he filed his original
petition, more than one month after the Board issued its decision regarding
Boze’s correction motions.  See F-Star Socorro, 324 S.W.3d at 175
(“While the parties expressed disagreement about the legal effect of the facts
in this case, the facts related to EPCAD’s jurisdictional arguments are
undisputed.  Consequently, there were no
fact issues for the trial court to resolve prior to making its decision, and
findings of fact and conclusions of law would have served no purpose.”).  In its order on HCAD’s motion, the trial
court explicitly stated that “[t]he Court, having considered the pleadings on
file and having heard the argument of counsel, finds that [Boze’] did not
substantially comply with Property Tax Code 42.08 and the Motion to Dismiss
should be granted.”  Because the relevant
jurisdictional facts were undisputed, there were no factual issues for the
trial court to resolve, and findings of fact and conclusions of law would not serve
any purpose on appeal.
Furthermore, an error in failing to
file findings of fact and conclusions of law when properly requested is
presumed harmful unless the record affirmatively shows the complaining party
suffered no harm.  Midwest Med. Supply Co. v. Wingert, 317 S.W.3d 530, 535 (Tex.
App.—Dallas 2010, no pet.) (citing Larry
F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex. App.—Dallas
2003, pet. denied)).  “An appellant is
harmed if, under the circumstances of the case, it must guess at the reason the
trial court ruled against it.”  Id.
Any error arising out of the trial
court’s failure to file findings and conclusions was harmless in this
case.  Boze’ was able to present his
issues on appeal, and we are able to address and decide those issues.  See
White v. Harris-White, No. 01-07-00521-CV, 2009 WL 1493015, at *6–7 (Tex.
App.—Houston [1st Dist.] May 28, 2009, pet. denied) (mem. op.); see also Polycomp Admin. Servs., Inc. v.
Jackson, No. 01-09-00999-CV, 2010 WL 1611760, at *10 (Tex. App.—Houston
[1st Dist.] Apr. 22, 2010, no pet.) (mem. op.) (“Regarding Polycomp’s second
issue that challenged the trial court’s refusal to issue findings of fact and
conclusions of law, we do not reach this issue because Polycomp has been able
to successfully present its appeal without those findings.”).
We therefore deny Boze’s motion
asking us to reverse and remand this case to the trial court for its failure to
file findings of fact and conclusions of law.


 
Conclusion
          We
affirm the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Sharp, and Massengale.
 




[1]
          Boze’ cites no authority for
this proposition that collection is barred after five years.  The “Appraisal Review Board Panel
Recommendation” for the 2003 tax year states as the reason for denying the
protest that “[the protest] exceeds [statute] of limitations per HCAD’s counsel
5 [years] from cert date.”  Because this
case involves a correction motion, this statement most likely refers to Tax
Code section 25.25(c), which 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 . . . .”  Tex.
Tax Code Ann. § 25.25(c) (Vernon 2008) (emphasis added); see also Harris Cnty. Appraisal Dist. v.
Tex. Gas Transmission Corp., 105 S.W.3d 88, 98 (Tex. App.—Houston [1st
Dist.] 2003, pet. denied) (noting that section 25.25(c)(3) “provide[s] a
limited five-year exception” to changing appraisal records).


[2]
          Before the taxes become
delinquent, a property owner may also move “to change the appraisal roll to
correct an error that resulted in an incorrect appraised value for the owner’s
property.  However, the error may not be
corrected unless it resulted in an appraised value that exceeds by more than
one-third the correct appraised value.”  Tex. Tax Code Ann. § 25.25(d) (Vernon
2008).  In his correction motion, Boze’
asserted the following desired “correction types”:  (1) property not located at address
shown on roll; (2) error in name/address/property description; (3) property over-appraised by more than 1/3;
and (4) property does not exist. 
(Emphasis added.)  Boze’ thus
asserted that the appraisal records should be changed pursuant to both section
25.25(c) and section 25.25(d), although he classifies the correction motion
solely as a 25.25(c) motion throughout the litigation and on appeal.  It is undisputed that Boze’ did not file a
correction motion pursuant to section 25.25(d) until October 22, 2008, more
than two years after the taxes for the 2005 tax year became delinquent.  See id.
(requiring a 25.25(d) motion to be filed prior to taxes becoming delinquent); Interstate Apartment Enters. v. Wichita
Appraisal Dist., 164 S.W.3d 448, 451 (Tex. App.—Fort Worth 2005, no pet.)
(“[A] section 25.25 motion must be filed before the date the taxes become
delinquent.”).


[3]
          Furthermore, to the extent Boze’
contends that HCAD’s initial appraisal of his property was “[e]xcessive,
fraudulent, and arbitrary,” we construe this as a complaint about the value of the property, and this type of
correction is inappropriate for a section 25.25(c)(3) motion.  See Titanium
Metals Corp. v. Dallas Cnty. Appraisal Dist., 3 S.W.3d 63, 66 (Tex. App.—Dallas 1999, no pet.); see also Tex. Gas, 105 S.W.3d at 98–99
(noting that section 25.25(c)(3) allows corrections for property that does not
exist because it “does not have any physical location in Texas throughout the
entire taxable year” while section 25.25(d) provides relief “for property that
changes value”).


