Opinion
NO. 01-20-00396-CV
06-03-2021
FORT BEND CENTRAL APPRAISAL DISTRICT, Appellant v. AMERICAN FURNITURE WAREHOUSE CO., Appellee
Tyler McCarty, Matthew Tepper, Sharon Coffee Baxter, Nicholas E. Goettsche, McCreary, Veselka, Bragg & Allen, P.C., 700 Jeffrey Way, Ste. 100, Round Rock, TX 78665, for Appellant. J. Andrew Love, Bradley W. Snead, Wright Close & Barger, LLP, One Riverway, Ste. 2200, Houston, Texas 77056, Mary A. Van Kerrebrook, Van Kerrebrook & Associates, P.C., 600 Travis, Ste. 6375, Houston, Texas 77002, for Appellee.
Tyler McCarty, Matthew Tepper, Sharon Coffee Baxter, Nicholas E. Goettsche, McCreary, Veselka, Bragg & Allen, P.C., 700 Jeffrey Way, Ste. 100, Round Rock, TX 78665, for Appellant.
J. Andrew Love, Bradley W. Snead, Wright Close & Barger, LLP, One Riverway, Ste. 2200, Houston, Texas 77056, Mary A. Van Kerrebrook, Van Kerrebrook & Associates, P.C., 600 Travis, Ste. 6375, Houston, Texas 77002, for Appellee.
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
Gordon Goodman, Justice
This is an interlocutory appeal from the trial court's denial of a plea to the jurisdiction in an ad valorem tax case. The appellant taxing authority is Fort Bend Central Appraisal District (FCAD), and the property owner is American Furniture Warehouse (AFW).
AFW petitioned for review of the Appraisal Review Board's (ARB's) final order determining AFW's protest of the appraisal of the value of its property for the 2019 tax year. FCAD filed a plea to the jurisdiction, arguing that AFW failed to file suit by the statutory deadline, i.e., within 60 days of receiving notice of the ARB's final order. FCAD supported its plea with, among other documents, the affidavit of its deputy chief appraiser and a certified mail receipt from the United States Postal Office, which showed that the final order was delivered and received at the address of AFW's designated tax agent 61 days before AFW filed suit. AFW objected to a key statement in the appraiser's affidavit, arguing that the statement was based on information from the USPS's website and thus hearsay. AFW also objected to the USPS certified mail receipt, arguing that the document was unauthenticated hearsay. The trial court sustained AFW's objections and denied FCAD's plea.
On appeal, FCAD argues that the USPS website and certified mail receipt are both self-authenticating public records exempted from the rule against hearsay and that the trial court therefore abused its discretion in sustaining AFW's evidentiary objections. FCAD argues that the trial court erred in denying its plea to the jurisdiction because it presented evidence raising the statutory presumption of delivery, which AFW failed to rebut, thereby entitling FCAD to the presumption and requiring the trial court to find that notice was delivered and received when it was deposited in the mail 63 days before AFW filed suit. FCAD further argues that even if AFW rebutted the presumption of delivery, the trial court still erred in denying its plea because its evidence not only raised the presumption but proved as a matter of law that AFW received notice 61 days before filing suit.
We hold that the trial court abused its discretion in sustaining AFW's evidentiary objections because the USPS website and certified mail receipt are self-authenticating public records exempted from the rule against hearsay. We further hold that FCAD presented evidence raising the statutory presumption of delivery and that AFW failed to rebut the presumption. Accordingly, we reverse the trial court's order and render judgment dismissing AFW's petition for lack of jurisdiction. We do not reach or express any opinion as to whether FCAD's evidence proved as a matter of law that AFW failed to file suit by the statutory deadline.
Background
AFW owns property in Fort Bend County. The property is within the jurisdiction of and annually appraised by FCAD.
In 2019, AFW filed a notice of protest with the ARB, alleging FCAD had appraised its property excessively and unequally for the 2019 tax year. The ARB heard AFW's protest and entered a final order denying AFW's request for a reduction of the appraised value of its property.
In September 2019, AFW filed a petition for review of the ARB's final order.
In response, FCAD filed a plea to the jurisdiction, arguing that the trial court lacked subject-matter jurisdiction because AFW failed to file its petition by the statutory deadline, i.e., within 60 days of receiving notice of the ARB's final order. FCAD alleged that AFW received notice on July 20, 2019—61 days before AFW filed its petition. Thus, FCAD concluded, AFW's appeal was time-barred by statute.
FCAD supported its plea with the affidavit of its deputy chief appraiser, Irene Klein, and three attached documents. In her affidavit, Klein stated that, as deputy chief appraiser, she was qualified to certify that these documents were true and correct copies of official public records and documents retained by FCAD.
The first document was an Appointment of Agent for Property Tax Matters, in which AFW appointed a designated tax agent to represent it in "all property tax matters concerning [its] property." In the Appointment of Agent, AFW identified its property by its Appraisal District Account Number (R482849) and situs (Katy Village Parkway) and directed that all communications from the ARB concerning the property be sent to the agent at the following address:
Property Tax Service Co.PO Box 543185Dallas, TX 75354-3185
The second document was the Notice of the ARB's Final Order determining AFW's tax protest. The Notice is dated July 18, 2019 and addressed to:
Property Tax Service Co.PO Box 543185Dallas, TX 75354-3185
The Notice contains several categories of information regarding the protest, including, as relevant here:
• a Quick Reference ID for the subject property, which matches the Appraisal District Account Number for the property identified in AFW's Appointment of Agent (R482849);
• a legal description of the subject property (Village At Katy, BLOCK 2, ACRES 29.371, Unrestricted Reserve "D"), which corresponds to the situs of the property identified in AFW's Appointment of Agent (Katy Village Pkwy); and
• the identity of the taxpayer represented by the recipient of the notice (AFW).
The third document is a USPS Certified Mail Receipt & Proof of Delivery. The document is dated July 22, 2019, printed on USPS letterhead, signed by USPS, and addressed to FCAD. The page footer is marked by a Customer Reference Number, which matches the Quick Reference ID in the Notice of Final Order and the Appraisal District Account Number in the Appointment of Agent. The body of the document begins by stating:
The following is the delivery information for Certified Mail/RRE item number 9214890185054500183849. Our records indicate that this item was delivered on 07/20/2019 at 09:40 a.m. in DALLAS, TX 75354.
The body then provides scanned images of the recipient's signature and address. The image of the signature is illegible, but the image of the address is a legible handwritten number (543185), which matches the PO Box number of AFW's tax agent stated in the Notice of Final Order and Appointment of Agent. The document ends with a postscript disclaimer stating that the Customer Reference Number in the footer is "not validated or endorsed by [USPS]" and "is solely for customer use."
In her affidavit, Klein explained how these documents relate to each other and how she was able to use them to confirm when AFW received notice of the ARB's final order:
On or about July 18, 2019, the ARB's final order for the subject property contained within [the Notice] was mailed to [AFW]’s designated tax agent's address—the same address identified in [AFW's Appointment of Agent]. The USPS Certified Mail Receipt ... relates to R482849, which is the same Property ID Number to which the ARB order in [the Notice] relates. This is illustrated by the Customer Reference Number at the bottom of [the USPS Certified Mail Receipt]. The USPS tracking number for the ARB order was 9214 8901 8505 4500 1838 49. Using the USPS Track & Confirm page online, I was able to confirm that the ARB order contained in [the Notice] was delivered on July 20, 2019 to the address identified in [the Appointment of Agent]. The delivery date is further demonstrated by the USPS tracking information contained within [the Certified Mail Receipt].
Klein also provided a link to the USPS Track & Confirm page referenced in her affidavit. The page contains the Product Information and Tracking History of an item identified by Tracking Number 9214890185054500183849, which matches the Certified Mail/RRE item number in the USPS Certified Mail Receipt & Proof of Delivery. The Product Information states that the item was "First-Class Mail, Certified Mail Return Receipt Electronic." The Tracking History shows that the item was accepted at a USPS Origin Facility in Rosenberg (a city located in Fort Bend County) on July 18, 2019, and ultimately delivered to a location within the 75354 zip code of Dallas, TX on July 20, 2019. The zip code is the same zip code in the Appointment of Agent, Notice of Final Order, and Certified Mail Receipt. FCAD argued this evidence proved as a matter of law that AFW received Notice of the ARB's Final Order on July 20, 2019—61 days before AFW filed its petition for review.
In response to FCAD's plea, AFW objected to Klein's statement that she was able to confirm that the notice of final order was delivered on July 20, 2019, to AFW's tax agent's address, arguing that the statement was based on hearsay from the USPS Track & Confirm website. AFW further objected to the USPS Certified Mail Receipt, arguing that the document was unauthenticated hearsay. FCAD replied that the USPS Track & Confirm website and the USPS Certified Mail Receipt were self-authenticating public records exempted from the hearsay rule under Rules of Evidence 803(8) and 902(5).
The trial court sustained AFW's objections and denied FCAD's plea. FCAD appeals.
Discussion
On appeal, FCAD argues that the trial court abused its discretion in sustaining AFW's evidentiary objections and excluding part of Klein's affidavit and the USPS Certified Mail Receipt attached to it. FCAD argues that the trial court erred in denying its plea because it presented evidence (including the evidence improperly excluded) raising the statutory presumption of delivery, and AFW failed to present evidence rebutting the presumption, thereby entitling FCAD to the presumption and requiring the trial court to find that notice was delivered and received when it was deposited in the mail 63 days before AFW filed suit. FCAD further argues that even if AFW rebutted the presumption of delivery, the trial court still erred in denying its plea because its evidence not only raised the presumption but proved as a matter of law that AFW received notice 61 days before filing suit. AFW responds that, for various reasons, FCAD's evidence is insufficient to raise the presumption of delivery or prove when or even whether AFW received notice of the ARB's final order.
A. Standard of review
The existence of subject-matter jurisdiction is a question of law that can be challenged by a plea to the jurisdiction. Klumb v. Houston Mun. Emps. Pension Sys. , 458 S.W.3d 1, 8 (Tex. 2015). "A trial court decides a plea to the jurisdiction by reviewing the pleadings as well as any evidence relating to the jurisdictional inquiry." Storguard Invs., LLC v. Harris Cty. Appraisal Dist. , 369 S.W.3d 605, 610 (Tex. App.—Houston [1st Dist.] 2012, no pet.). "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder." Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 227–28 (Tex. 2004). Conversely, "if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Id. at 228.
"We review a trial court's ruling on a plea to the jurisdiction de novo, construing the pleadings liberally in favor of the plaintiff while considering the pleader's intent." Storguard Invs. , 369 S.W.3d at 610.
B. Applicable law
Under the Tax Code, county appraisal districts annually appraise each property within their boundaries. See TEX. TAX CODE § 23.01. A property owner may protest the appraised value of its property by filing a notice of protest with its local appraisal review board. Id. § 41.44(a). When the property owner files the protest, the ARB schedules a hearing and determines the merits of the property owner's claims. Id. § 41.45(a). The ARB's determination is made by written final order, which is delivered to the property owner by certified mail. Id. § 41.47(a), (d)(1). The order is "presumed delivered when it is deposited in the mail." Id. § 1.07(c). However, the "presumption is rebuttable when evidence of failure to receive notice is provided." Id.
The property owner may appeal the ARB's final order by filing a petition for review in the trial court. Id. § 42.21(a). The property owner must file the petition within 60 days of receiving notice of the final order. Id. The 60-day filing deadline is "jurisdictional." Appraisal Review Bd. v. Int'l Church of Foursquare Gospel , 719 S.W.2d 160, 160 (Tex. 1986) (per curiam). If the property owner fails to timely file the petition, the trial court lacks jurisdiction to hear the appeal. See TAX § 42.21(a) ("Failure to timely file a petition bars any appeal."); Harris Cty. Appraisal Dist. v. Drever Partners, Inc. , 938 S.W.2d 196, 197 (Tex. App.—Houston [14th Dist.] 1997, no writ) ("Failure to timely file such a petition will deprive the district court of jurisdiction.").
To prove a property owner failed to timely file its petition, the appraisal district may invoke the presumption of delivery. If the property owner fails to rebut the presumption, the notice is presumed to have been received by the property owner on the date the notice was deposited in the mail.
The Code does not specify the evidence necessary to raise the presumption of delivery, and we have not squarely addressed the issue. But several of our sister courts have. Their opinions emphasize that "it is important to have the appraisal district prove that sufficient postage was placed on the envelope containing the notice, to know the means by which it places such notices in the mail, and to know that first-class mail was in fact utilized, and to know it was sent to the most current address and not returned." Harris Cty. Appraisal Dist. v. Dincans , 882 S.W.2d 75, 79 (Tex. App.—Houston [14th Dist.] 1994, writ denied) ; see Dallas Cty. Appraisal District v. Lal , 701 S.W.2d 44, 47–48 (Tex. App.—Dallas 1985, writ ref'd n.r.e.) (holding appraisal district raised presumption by producing affidavit of appraisal coordinator detailing steps taken by appraisal district in mailing notice to taxpayer).
C. Analysis
1. The trial court abused its discretion in sustaining AFW's evidentiary objections.
We begin by considering whether the trial court abused its discretion in sustaining AFW's objections to and excluding two pieces of evidence produced by FCAD in support of its plea: (1) Klein's affidavit testimony that, using the USPS Track & Confirm website, she was able to confirm that the ARB's final order was delivered to the address of AFW's designated tax agent on July 20, 2019; and (2) the USPS Certified Mail Receipt attached to Klein's affidavit. The trial court ruled that Klein's testimony contained inadmissible hearsay (namely, information from the USPS Track & Confirm website) and that the USPS Certified Mail Receipt likewise contained inadmissible hearsay and was also unauthenticated. FCAD argues that the trial court abused its discretion in making its hearsay rulings because both USPS documents qualify as public records excepted from the hearsay rule under Rule 803. FCAD further argues that the trial court abused its discretion in making its authentication ruling because the USPS Certified Mail Receipt is self-authenticating under Rule 902. We consider each argument in turn.
In its appellate brief, AFW does not dispute FCAD's contention that the evidence excluded by the trial court was in fact admissible. Instead, AFW contends that the evidence was not actually excluded. AFW bases its contention on the transcript of the hearing on FCAD's plea, which shows the trial court considered the evidence in making its ruling. The trial court's written order, however, clearly shows the opposite—that the trial court excluded and did not consider this evidence in ruling on FCAD's plea. Because the trial court's written order is controlling, see, e.g., Petrol. Analyzer Co. v. Olstowski , No. 01-09-00076-CV, 2010 WL 2789016, at *17 (Tex. App.—Houston [1st Dist.] July 15, 2010, no pet.) (mem. op.) ("Anytime there is a conflict between oral pronouncements made by a trial judge and his written judgment or order, the matters set forth in the written order control."), we consider the merits of the evidentiary issue raised by FCAD, notwithstanding AFW's failure to dispute FCAD's position.
We begin with FCAD's argument that the USPS documents are public records excepted from the hearsay rule under Rule 803. Under Rule 803, a record of a public office is not hearsay if (1) the record sets out the office's activities and (2) the opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness. TEX. R. EVID. 803(8)(A)(i), (B).
It is undisputed that the USPS is a public office. It is also undisputed that the delivery of mail is one of the USPS's activities; indeed, the delivery of mail is the USPS's essential activity. Thus, the USPS Certified Mail Receipt attached to Klein's affidavit qualifies as a public record under Rule 803(8) because (1) it is a record of a public office, the USPS, and (2) it sets out the office's principal activity, the delivery of mail (more specifically, the delivery of mail to AFW).
For the same reasons, the page from the USPS Track & Confirm website likewise qualifies as a public record under Rule 803(8). Various courts interpreting Rule 803(8) and its federal counterpart have held that documents printed from government websites—including specifically documents printed from the USPS Track & Confirm website—qualify as public records excepted from the hearsay rule. See, e.g., Masuku v. Bank of Am., N.A. , No. H-11-1443, 2012 WL 3528006, at *2, n.26 (S.D. Tex. Aug. 14, 2012) (documents printed from USPS Track & Confirm website qualified as public records under federal rules of evidence); Chapman v. San Francisco Newspaper Agency , No. C 01-02305 CRB, 2002 WL 31119944, at *2 (N.D. Cal. Sept. 20, 2002) (printout from USPS Track & Confirm website not hearsay under federal rules of evidence).
"Where the Federal Rules of Evidence are similar, we may look to federal case law for guidance in interpreting the Texas evidentiary rules." Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd. , 337 S.W.3d 846, 857 n.6 (Tex. 2011).
As Professor Steven Goode explains, public records that are digitally stored on the internet "are well-recognized and should not pose special evidentiary challenges." Steven Goode, The Admissibility of Electronic Evidence , 29 REV. LITIG. 1, 53 & n.227 (2009) (collecting authority). Indeed, "[w]hen combined with the public records exception to the hearsay rule, Rule 803(8), these official publications posted on government agency websites should be admitted into evidence easily." Lorraine v. Markel Am. Ins. Co. , 241 F.R.D. 534, 551 (D. Md. 2007).
Because both USPS documents set out the office's activities, and because AFW failed to demonstrate the source of the documents or other circumstances indicating a lack of trustworthiness, we hold that the documents qualify as public records under Rule 803(8) and that the trial court abused its discretion in ruling that Klein's affidavit (which was based on the USPS Track & Confirm website) and the USPS Certified Mail Receipt attached thereto contained inadmissible hearsay.
We now turn to FCAD's argument that the USPS Certified Mail Receipt is self-authenticating under Rule 902. Under Rule 902, an "official publication" is self-authenticating and requires no extrinsic evidence of authenticity to be admitted. TEX. R. EVID. 902(5). An "official publication" is defined as "a book, pamphlet, or other publication purporting to be issued by a public authority." Id. Here, the USPS Certified Mail Receipt bears the letterhead and signature of the USPS and addresses a subject matter within the purview of the USPS. It is undisputed that the USPS is a public authority. We hold that the USPS Certified Mail Receipt is a self-authenticating official publication under Rule 902(5) and that the trial court abused its discretion in ruling otherwise.
Having determined the admissibility of FCAD's jurisdictional evidence, we now consider whether this evidence is sufficient to raise the presumption of delivery.
2. FCAD presented evidence raising the presumption of delivery, and AFW failed to present evidence rebutting the presumption.
FCAD supported its plea with five pieces of evidence: (1) AFW's Appointment of Agent, (2) the Notice of the ARB's Final Order, (3) a USPS Certified Mail Receipt & Proof of Delivery, (4) a page from the USPS Track & Confirm website, and (5) the affidavit of its deputy chief appraiser, Irene Klein.
In the Appointment of Agent, AFW appointed Property Tax Service Co. as its designated tax agent for all property tax matters concerning property identified by a specific Appraisal District Account Number (R482849) and situs (Katy Village Parkway). AFW directed that all communications from the ARB concerning the property, including the Notice of Final Order at issue here, be sent to Property Tax Service Co. at the following address:
Property Tax Service Co.PO Box 543185Dallas, TX 75354-3185
The Notice of Final Order is dated July 18, 2019 and addressed as follows:
Property Tax Service Co.PO Box 543185Dallas, TX 75354-3185
The Notice contains several categories of information regarding the protest, including, as relevant here:
• a Quick Reference ID for the subject property (R482849), which matches the Appraisal District Account Number for the property identified in AFW's Appointment of Agent;
• a legal description of the subject property (Village At Katy, BLOCK 2, ACRES 29.371, Unrestricted Reserve "D"), which corresponds to the situs of the property identified in AFW's Appointment of Agent (Katy Village Pkwy); and
• the identity of the taxpayer represented by the recipient of the notice (AFW).
The USPS Certified Mail Receipt & Proof of Delivery is dated July 22, 2019, printed on USPS letterhead, signed by USPS, and addressed to FCAD. The page footer is marked by a Customer Reference Number (R482849), which matches the Appraisal District Account Number in AFW's Appointment of Agent and the Quick Reference ID in the Notice of Final Order. The body of the document begins by stating:
The following is the delivery information for Certified Mail/RRE item number 92148901850545001383849. Our records indicate that this item was delivered on 07/20/2019 at 09:40 a.m. in DALLAS, TX 75354.
The body then provides scanned images of the recipient's signature, which is illegible, and address, which is designated by a legible handwritten number, 543185. This number matches the PO Box number of the address to which AFW directed the ARB to send notices in its Appointment of Agent, which, in turn, matches the PO Box number of the address of the recipient of the Notice of Final Order. The USPS Certified Mail Receipt ends with a postscript disclaimer stating that the Customer Reference Number in the footer is "not validated or endorsed by [USPS]" and "is solely for customer use."
The page from the USPS Track & Confirm website contains the Product Information and Tracking History of an item identified by Tracking Number is 9214890185054500183849, which matches the Certified Mail/RRE item number in the USPS Certified Mail Receipt & Proof of Delivery. The Product Information states that the item was "First-Class Mail, Certified Mail Return Receipt Electronic." The Tracking History shows that the item was accepted at a USPS Origin Facility in Rosenberg (located in Fort Bend County) on July 18, 2019, and ultimately delivered to a location within the 75354 zip code of Dallas, TX on July 20, 2019. The zip code is the same zip code in the Appointment of Agent, Notice of Final Order, and Certified Mail Receipt.
In her affidavit, Klein explains how these four pieces of evidence relate to each other and how she was able to use them to confirm when AFW received notice of the ARB's final order:
On or about July 18, 2019, the ARB's final order for the subject property contained within [the Notice] was mailed to [AFW]’s designated tax agent's address—the same address identified in [AFW's Appointment of Agent]. The USPS Certified Mail Receipt ... relates to R482849, which is the same Property ID Number to which the ARB order in [the Notice] relates. This is illustrated by the Customer Reference Number at the bottom of [the USPS Certified Mail Receipt]. The USPS tracking number for the ARB order was 9214 8901 8505 4500 1838 49. Using the USPS Track & Confirm page online, I was able to confirm that the ARB order contained in [the Notice] was delivered on July 20, 2019 to the address identified in [the Appointment of Agent]. The delivery date is further demonstrated by the USPS tracking information contained within [the Certified Mail Receipt].
Considered together, this evidence establishes four crucial facts concerning the Notice of Final Order. Specifically, it establishes that the Notice of Final Order was: (1) shipped via USPS first-class, certified mail; (2) addressed to AFW's designated tax agent, as requested by AFW in its Appointment of Agent; (3) deposited in the mail on July 18, 2019; and (4) delivered and received at the address of AFW's designated tax agent on July 20, 2019.
AFW did not present evidence to rebut these facts. AFW nevertheless contends that FCAD's evidence fails to raise the presumption of delivery for a variety of reasons. We find none of these reasons compelling.
AFW contends that Klein's affidavit fails to show that her statements are based on her personal knowledge. An affiant's lack of personal knowledge is a defect of form, and a party objecting on that basis must object timely and obtain a ruling to preserve error on appeal. Washington DC Party Shuttle, LLC v. IGuide Tours , 406 S.W.3d 723, 736 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc). AFW did not timely assert, or obtain a ruling on, an objection that Klein lacked personal knowledge of the facts stated in her affidavit. Therefore, any objection on this ground is waived.
At any rate, Klein asserted in her affidavit that she had personal knowledge of the facts stated therein, which is supported by other facts contained in the affidavit, such as her position as deputy chief appraiser. See Valenzuela v. State & Cty. Mut. Fire Ins. Co. , 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("An affiant's position or job responsibilities can qualify him to have personal knowledge of facts and establish how he learned of the facts.").
AFW argues that Klein's affidavit is conclusory because it fails to provide the underlying facts forming the basis of the statements made therein. Again, we disagree. An affiant's statement is not conclusory if it is supported by attached documentary evidence. See, e.g., Groff v. Bank of Am., N.A. , No. 14-19-00383-CV, 2020 WL 4873171, at *3 (Tex. App.—Houston [14th Dist.] Aug. 20, 2020, no pet.) (mem. op.) (holding that affiant's statement was "not conclusory because the affiant attached factual evidence supporting the statement"); Hou-Tex, Inc. v. Landmark Graphics , 26 S.W.3d 103, 112–13 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (statement in affidavit not conclusory when supported by attached contract and letter). And, as demonstrated above, the statements made by Klein in her affidavit are supported by the documents attached to it and webpage cited by it. We hold Klein's affidavit is not conclusory.
AFW analogizes this case to Harris County Appraisal District v. Dincans , in which the court of appeals held that the appraisal district failed to raise the presumption of delivery by presenting a single agreed stipulation stating, "According to the official records of [the appraisal district], a notice of the appraised market value was mailed to [the taxpayer] at his correct address on September 13, 1984." 882 S.W.2d at 78.
We do not agree that the stipulation in Dincans is analogous to the evidence presented by FCAD here. Instead, we agree with FCAD that the case is more properly analogous to MCI Telecommunications Corp. v. Tarrant County Appraisal District , in which the court of appeals held that the appraisal district raised the presumption by providing evidence that it sent the notice to the attention of the taxpayer's tax representative at the taxpayer's address as requested by the taxpayer and paid an extra fee for a copy of the return receipt, which was signed not by the tax representative himself but by some individual purporting to be the taxpayer's agent. 723 S.W.2d 350, 356 (Tex. App.—Forth Worth 1987, no writ). Like the appraisal district in MCI , FCAD mailed the notice of final order to a specific party (Property Tax Service Co.) at a specific address (PO Box 543185, Dallas, TX 75354-3185) at the specific request of the taxpayer (AFW) and paid an extra fee for a copy of the return receipt—which, like the return receipt in MCI , shows that the notice was signed by an individual purporting to act on behalf on the party to whom the notice was addressed.
We hold that FCAD presented evidence raising the presumption of delivery and that AFW failed to present evidence to rebut it. Thus, the Notice of Final Order is presumed to have been received by AFW on the date it was deposited in the mail—July 18, 2019. Because the notice was deposited 63 days before AFW filed its petition for review, we further hold that the petition is untimely and that the trial court therefore lacks jurisdiction to hear AFW's appeal. Because our holding on this issue is dispositive, we need not consider FCAD's additional argument that the trial court erred in denying its plea because its evidence proved as a matter of law that AFW received notice 61 days before filing suit.
Conclusion
We reverse the trial court's order sustaining AFW's objections and denying FCAD's plea to the jurisdiction and render judgment dismissing AFW's petition for lack of jurisdiction.