Opinion
NUMBER 13-15-00026-CV
01-26-2016
CAMERON COUNTY APPRAISAL DISTRICT AND FRUTOSO GOMEZ, Appellants, v. THORA O. ROURK, ET AL., Appellees.
On appeal from the357th District Court of Cameron County, Texas.
CONCURRING AND DISSENTING MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes Concurring and Dissenting Memorandum Opinion by Chief Justice Valdez
The question before this Court is whether appellees established the ultra vires exception to governmental immunity to recover attorney's fees under the Texas Uniform Declaratory Judgment Act ("UDJA"). To answer this question, we must determine whether Gomez, the chief appraiser for the Cameron Appraisal District (Appraisal District), performed acts that were legally authorized and not purely ministerial when he decided to tax appellees' travel trailers under article 11.14(a) of the Texas Tax Code rather than exempt those trailers from taxation. Because I disagree with the majority's conclusion that Gomez's determination regarding the taxability of some of appellees' travel trailers was legally authorized and non-ministerial, I concur in part and dissent in part.
I. Rourk II Remanded Only as to Some Appellees (Group 2)
In this case, there are a total of thirty-three appellees. Each appellee falls into one of three groups: (1) Rourk II plaintiffs whose travel trailers were not exempt from taxation ("Group 1"); (2) Rourk II plaintiffs whose travel trailers were exempt from taxation ("Group 2"); and (3) individuals who were not Rourk II plaintiffs at all ("Group 3"). See Rourk v. Cameron Appraisal Dist., 305 S.W.3d 231, 239 (Tex. App.—Corpus Christi 2009, pet. denied) (Rourk II) (separating the plaintiffs in Rourk II into two groups). In Rourk II, we reversed the trial court's judgment in part and remanded the case for a determination of attorney's fees only as to Group 2—not Groups 1 and 3. See id. ("revers[ing] the trial court's judgment regarding the [travel trailers] owned by the Group 2 [appellees], and. . . remand[ing] the case to the trial court for a determination of the issue of attorney's fees relating to the Group 2 [appellees'] claims"). When we remand a case and our decision clearly limits the subsequent trial to a particular issue, the trial court is restricted on remand to a determination of that issue. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); In re Henry, 388 S.W.3d 719, 726-27 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Therefore, we agree with the majority that the trial court erred in awarding attorney's fees as to Groups 1 and 3 because in Rourk II, we clearly limited a subsequent trial to the issue of attorney's fees for Group 2 only. However, for the reasons explained below, we do not agree with the majority that the trial court erred in awarding attorney's fees to Group 2 under the ultra vires exception to governmental immunity.
Appellees in Group 1 include: Clara and Harry Schmoekel, A.J. and Betty Roy, Sheldon I. and Margurite C. Ross.
Appellees in Group 2 include: Thora Rourk, Robert and Joan Niles, Carroll A. and Lois Iverson, William W. and Frances Wolfe, Terry and Jean Lathangue, Mabel Cheetham, Lowell and Winona Krenger, Donald E. and Virginia M. Sadler.
Appellees in Group 3 include: Elva Broker, Ryle Andrews, Larry and Mary Gustin, George and Fran Wrasse, Jewell and Martha Groover, Vassie Miller, Barry W. Hewitt and Shelia A. Hewitt, and Mike and Monica MacWilliam.
II. Group 2 Established the Ultra Vires Exception to Governmental
Immunity
Governmental immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. See Rourk v. Cameron Appraisal Dist., 443 S.W.3d 217, 220 (Tex. App.—Corpus Christi 2013, no pet.) (Rourk III) (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004)). However, governmental immunity does not bar suits against state officials within the government for non-discretionary acts that are unauthorized by law. Id. (citing Tex. Dep't of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)). This is known as the ultra vires exception to governmental immunity. Id. To fall under the ultra vires exception, the suit must not complain of a state officer's exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 371-72 (Tex. 2009) (observing that an ultra vires suit is proper when a state actor is left with "no room for discretion" in applying a statute). Ministerial acts are those "where the law prescribes and defines the duties to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). "Discretionary acts on the other hand require the exercise of judgment and personal deliberation." See id.
Appellees sued Gomez, a government official, under the ultra vires exception to governmental immunity, complaining that Gomez acted without legal authority and failed to perform a purely ministerial act when he refused to exempt appellees' travel trailers from taxation under article 11.14(a). The 2001 version of article 11.14(a) provided that:
A person is entitled to an exemption from taxation of all tangible personal property, other than manufactured homes, that the person owns and that is not held or used for production of income.Act of April 20, 1989, 71st Leg., R.S., ch. 76, § 1, sec. 11.14(a), 1989 Tex. Gen. Laws 391, amended by Act of April 1, 2003, 78th Leg., R.S., ch. 5, § 1, sec. 11.14(a), 2003 Tex. Sess. Law Serv. 6. Applying the ultra vires exception to the 2001 version of article 11.14(a), the majority provides two main reasons why Gomez had discretion to tax appellees' travel trailers.
First, the majority states that Gomez had to determine whether the travel trailers were "manufactured homes" within the meaning of article 11.14(a) and therefore subject to taxation. However, as applied to the facts of this case, the statutory definition of manufactured homes left Gomez no room but to exempt Group 2's travel trailers from taxation. By statute, a manufactured home can be one of two things. See Rourk II, 305 S.W.3d at 237 (citing the relevant statutory provisions). First, a manufactured home can be a "HUD-code" manufactured home, which does not include a "recreational vehicle"—that is, a vehicle designed as "temporary living quarters for recreational, camping, travel, or seasonal use." Id. (citing 24 C.F.R. § 3282.8(g)). Second, a manufactured home can be a "mobile home," which is defined as "a structure that was constructed before June 15, 1976." Id. In Rourk II, the Appraisal District did not dispute that appellees' travel trailers were recreational vehicles, so the trailers could not be HUD-code manufactured homes. Id. at 238 (holding that the "undisputed evidence demonstrates that [appellees] only use their [travel trailers] temporarily and seasonally"). As such, the taxability of Group 2's travel trailers came down to whether they were "mobile homes"—that is, structures constructed before 1976. In Rourk II, there was never any dispute that Group 2's travel trailers were built after 1976, so the trailers could not be mobile homes either. Id. In sum, we cannot agree with the majority that Gomez had discretion to tax Group 2's travel trailers as "manufactured homes" when the undisputed evidence showed that they were neither "HUD-code manufactured homes" nor "mobile homes" by statute.
Second, the majority states that Gomez had discretion to tax appellees' travel trailers under article 22.01(b) of the tax code. Article 22.01(b) states that the chief appraiser may require a taxpayer to "render for taxation any other taxable property that he owns. . ." TEX. TAX CODE ANN. § 22.01(b). However, contrary to the majority's view, nothing in the language of article 22.01(b) gives the chief appraiser unfettered discretion to tax non-income producing, tangible personal property that is otherwise exempt from taxation under article 11.14(a). In fact, the plain language of article 22.01(b) indicates that the chief appraiser may only require a property owner to render for taxation property that is "taxable," meaning not otherwise exempt. See id. Moreover, article 22.01 governs only the "procedure" for reporting taxable property to the chief appraiser and does not give him carte blanche authority to tax property that is otherwise exempt. See Starflight 50, L.L.C. v. Harris County Appraisal Dist., 287 S.W.3d 741, 748 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (observing that "[r]endition [under article 22.01] is the reporting of taxable property by the owner to the appraiser and is thus procedural in nature") (internal citation and quotation omitted)).
III. Conclusion
For these reasons, I would conclude that Rourk established the ultra vires exception to governmental immunity and would therefore affirm the trial court's award of attorney's fees as to Rourk and the other Group 2 appellees. See Heinrich, 284 S.W.3d at 371-72; Rourk II, 305 S.W.3d at 237. However, concurring with the majority, I would reverse the trial court's judgment awarding attorney's fees to the appellees in Groups 1 and 3 because in Rourk II, we clearly limited a subsequent trial to the issue of attorney's fees for Group 2 only. See Rourk II, 305 S.W.3d at 239; see also Hudson, 711 S.W.2d at 630; In re Henry, 388 S.W.3d at 726-27.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed the 28th day of January, 2016.