                            NUMBER 13-09-00577-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ROBERT E. BOLKCOM,                                                          Appellant,

                                           v.

CAMERON APPRAISAL DISTRICT,                                                  Appellee.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.


                          MEMORANDUM OPINION

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

      This appeal involves a tax dispute between pro se appellant, Robert E. Bolkcom,

and appellee, Cameron Appraisal District (“the District”). After conducting a hearing, the

trial court found that Bolkcom failed to exhaust his administrative remedies and dismissed
the suit for lack of jurisdiction. By three issues, Bolkcom argues that: (1) he was denied

due process; (2) he was denied the opportunity to protest the “certification of Thomas

Sims” as the “responsible taxpayer”; and (3) the trial court has jurisdiction over his dispute

with the District. We affirm.

                                                 I. BACKGROUND

        On March 19, 2009, Bolkcom filed suit against the District alleging “negligence,”

“dereliction of duty,” and “accountability” arising from a “clerical error” regarding the

District’s appraisal of property and taxes allegedly owed on property in which Bolkcom

claimed to be part-owner.1 In his original petition, Bolkcom alleged that “efforts to correct

[his tax concern] have been attempted through administrative process (appraisal review

board) and failed . . . .” Although Bolkcom attached “exhibits” to his petition, he did not


        1
            Bolkcom ’s original petition sets forth the following “applicable facts”:

        1. I am Robert E[.] Bolkcom [,] a U.S. citizen, Cam eron Co. Taxpayer, and partial owner of
        block 13, the social and recreational (com m on elem ent) of Las Palm as I, a condom inium
        located at [sic] Brownsville, Texas and I am proceeding as plaintiff (litigant pro se). The
        claim s of this lawsuit are based upon the denial of m y rights to due process and as a
        consequence, benefits available to m e as set forth in the Texas Property Tax Code.

        2. The Cam eron District Appraisal office at nearby San Benito (defendant) at its inception in
        1982 denied m e those rights when it erred in certifying Thom as I[.] Sim s as the responsible
        taxpayer for 89% of block 13. . . . and withheld knowledge of it from m e for the next 23 years.
        That property was and is a com m on elem ent of Las Palm as I, and required to be specifically
        classified under the Texas Condom inium [A]ct of 1981. Defendant is com m anded by chapter
        23.18 to classify all condom inium s that qualify as special assessm ent parcels (and Las
        Palm as I was a perfect exam ple to include). They acted upon an im proper interpretation of
        the Las Palm as I docum ents[ ] and have refused to acknowledge or correct it for the past 26
        years. This m istake m ust be considered a “clerical error” and requires judicial process to
        [i]nterpret because it involves a determ ination of fact from a declaration filed under the Texas
        Cond[o]m inium Act of 1981.

Bolkcom later asserts:

        4. This error has been brought to the defendant[’]s attention form ally and inform ally (in person
        and in writing) over a period of the last [f]our years and the m atter has been received with
        indifference and silence on every occasion. Efforts to correct it have been [a]ttem pted
        through [a]dm inistrative process (appraisal review board) and failed because of a lack of
        com prehension of law. . . .
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attach documents indicating that he had exhausted or attempted to exhaust his

administrative remedies.

       The District: (1) generally denied Bolkcom’s allegations; (2) asserted governmental

immunity; (3) specially excepted to Bolkcom’s failure to state a cause of action upon which

relief might be granted; and (4) filed a plea to the jurisdiction alleging that the court lacked

jurisdiction over any claims not authorized by the tax code and that Bolkcom had not

exhausted the required administrative remedies.            Bolkcom filed a “Response to

Defendant’s Original Answer”; however, the response does not indicate that Bolkcom

exhausted his administrative remedies or to what extent he pursued his grievance with the

appraisal review board.

       On August 12, 2009, both parties appeared for a hearing before the trial court. At

the hearing, Bolkcom stated that he had filed a protest and appeared before the appraisal

review board. Bolkcom then stated that a protest hearing was held but the appraisal

review board “never acknowledged [his protest]; all they did was look up at the ceiling.”

Bolkcom provided no evidence to support his assertion that a protest hearing was held.

The trial court granted the District’s plea to the jurisdiction. This appeal ensued.

                                       II. JURISDICTION

A.     Applicable Law

       A plea to the jurisdiction challenges the district court’s authority to determine a

cause of action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). To

invoke a court’s authority, a plaintiff must allege facts that affirmatively demonstrate that

the court has jurisdiction to hear the cause. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Courts must consider evidence when necessary to decide

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jurisdictional issues. Id. at 221; Tex. Natural Res. Conservation Comm’n v. White, 46

S.W.3d 864, 868 (Tex. 2001); Blue, 34 S.W.3d at 554-55. If the relevant evidence is

undisputed or fails to raise a fact question on the jurisdictional issue, a district court rules

on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228. We review

de novo the grant of a plea to the jurisdiction. Id. at 226.

       A district court has “exclusive, appellate and original jurisdiction of all actions,

proceedings, and remedies, except in cases where exclusive, appellate and original

jurisdiction may be conferred by this Constitution or other law on some other court, tribunal,

or administrative body.” TEX . CONST . art. V, § 8. The administrative review process is

intended to resolve the majority of tax protests at the administrative level and to relieve the

burden on the court system. Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex.

2006); Webb County Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex.

1990). Judicial review of administrative orders is not available unless all administrative

remedies have been pursued to the fullest extent. See Rourk, 194 S.W.3d at 502. If an

agency has exclusive jurisdiction to determine a matter, a litigant’s failure to exhaust all

administrative remedies before seeking judicial review of the administrative body’s actions

deprives the court of subject-matter jurisdiction over claims within the body’s exclusive

jurisdiction, and the court must dismiss such claims without prejudice. TEX . GOV’T CODE

ANN . § 2001.171 (Vernon 2008); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84

S.W.3d 212, 220 (Tex. 2002).




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        Denial of due process is one exception to the general rule requiring exhaustion of

administrative remedies before judicial intervention.2 See Gibson v. Waco Indep. Sch.

Dist., 971 S.W.2d 199, 201-02 (Tex. App.–Waco 1998), vacated on other grounds, 22

S.W.3d 849, 851 (Tex. 2000). The constitutional claim exception to the exhaustion of

administrative remedies doctrine was created to protect property owners from the loss of

property without an opportunity to be heard at the administrative level and without recourse

to judicial review. Denton Cent. Appraisal Dist. v. C.I.T. Leasing Corp., 115 S.W.3d 261,

266 (Tex. App.–Fort Worth 2003, pet. denied). The collection of taxes constitutes a

deprivation of property; accordingly, a taxing unit must afford a property owner due process

of law and must provide meaningful relief to rectify any unconstitutional deprivation.

McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 31 (1990). At a

minimum, due process requires notice and a fair opportunity to be heard. Id. at 37. In tax

cases, Texas courts have held that due process is satisfied if the taxpayer is given an

opportunity to be heard before an assessment board at some stage of the proceedings.

ABT Galveston Ltd. P’ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146, 155 (Tex.

App.–Houston [1st Dist.] 2004, no pet.); C.I.T. Leasing Corp., 115 S.W.3d at 266.

B.      Analysis

        By his third issue, Bolkcom asserts that the trial court had jurisdiction over his tax




        2
           W ithout exhaustion of adm inistrative rem edies, the trial court’s order granting the plea to the
jurisdiction is only im proper if Bolkcom ’s case falls into one of five exceptions: (1) an adm inistrative agency
purports to act outside its statutory powers; (2) the issue presented is purely a question of law; (3) certain
constitutional issues are involved; (4) the adm inistrative rem edies are inadequate and the exhaustion of
adm inistrative rem edies would cause irreparable injury; and (5) failure to provide Bolkcom notice of appraised
property value deprives the District of jurisdiction and voids the appraisal. Gibson v. W aco Indep. Sch. Dist.,
971 S.W .2d 199, 201-02 (Tex. App.–W aco 1998), vacated on other grounds, 22 S.W .3d 849, 851 (Tex. 2000).
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issue.3 We disagree.

        The trial court makes its determination of jurisdiction based upon what is presented

in the pleadings and at the hearing. See Blue, 34 S.W.3d at 555. Although the trial court

may not consider the merits of the underlying claims when determining jurisdiction, it is

appellant’s burden to allege facts affirmatively demonstrating the trial court’s jurisdiction.

See Blue, 34 S.W.3d at 554; Miranda, 133 S.W.3d at 226.

        In his original petition, Bolkcom alleged that “efforts to correct [his tax issue] have

been attempted through administrative process (appraisal review board) and failed.” The

District filed an answer combined with a plea to the jurisdiction to which Bolkcom

responded; however, Bolkcom’s response did not address the issue of jurisdiction, set forth

facts, or provide evidence supporting the allegation that he exhausted his administrative

remedies. Moreover, at the August 12, 2009 hearing, the trial court sought to determine

whether Bolkcom had exhausted his administrative remedies by inquiring into Bolkcom’s

alleged appearance before the appraisal review board. In response, Bolkcom merely

stated that he appeared before the appraisal review board, but that the appraisal review

board “made no record of it.” Bolkcom presented no evidence to support this assertion.

On appeal, however, Bolkcom asserts that he has “copies [o]f the presentation before the

[appraisal review board] (which was recorded electronic [sic] and was [t]aken under oath),”

which appears to undermine his statement that the appraisal review board failed to make

a record of the hearing. In any event, Bolkcom has not presented either the trial court or

this Court with a copy of the alleged presentation. Upon review of the record before us,

we conclude that Bolkcom has failed to allege facts that affirmatively demonstrate that the

        3
          Because Bolkcom ’s first and second issues address the m erits of his case, we consider his issues
out of order.
                                                     6
trial court has jurisdiction to hear the cause. See Blue, 34 S.W.3d at 554; Miranda, 133

S.W.3d at 226. We overrule Bolkcom’s third issue.

        By his first issue, Bolkcom asserts that he was denied his right to due process

because the District failed to comply with section 25.11 of the tax code. TEX . TAX CODE

ANN . § 25.11(c) (Vernon 2008) (“Within 30 days after an owner qualifies for separate

taxation or cancels a qualification, the chief appraiser shall deliver a written notice of the

qualification to the other owners.”). Due process challenges that have successfully been

made in court include instances when taxpayers were not afforded any opportunity to be

heard. See 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). However, an administrative

remedy exists for Bolkcom’s “due process” argument, and Bolkcom does not assert that

he was denied the opportunity to be heard. See TEX . TAX CODE ANN . § 41.411(a) (Vernon

2008) (“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.”). Furthermore, Bolkcom has not provided any evidence

demonstrating a failure by the appraisal review board to consider his section 25.11

arguments even though he asserts that he has electronic copies of the hearing allegedly

held before the appraisal review board. We conclude that Bolkcom’s due process claim

does not excuse him from exhausting his administrative remedies before seeking judicial

review. We overrule Bolkcom’s first issue.4


        4
          Because we have held that the trial court lacked jurisdiction over Bolkcom ’s claim , and because
Bolkcom ’s issue pertaining to the “certification of Thom as Sim s” as the “responsible taxpayer” requires an
analysis of the m erits of the case, we need not address his second issue. See T EX . R. A PP . P. 47.1; see also
Tex. Dep't of Parks & W ildlife v. Miranda, 133 S.W .3d 217, 226 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue,
34 S.W .3d 547, 554 (Tex. 2000).
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                                    III. CONCLUSION

      We affirm the trial court’s judgment.



                                                  ROGELIO VALDEZ
                                                  Chief Justice


Delivered and filed the
12th day of August, 2010.




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