Recent Texas Cases of Interest to Cities

Note:  Included cases are from June 11, 2016 through July 10, 2016.

Tort Claims Act: Sampson v. University of Tex., No. 14-0745, 2016 WL 3212996 (Tex. June 10, 2016).  This is Texas Tort Claims Act (TTCA) case, where the Texas Supreme Court held an extension cord which causes a trip and fall is to be analyzed under a “premise defect” analysis instead of a “tangible personal property” analysis.

As Sampson was walking to his office on a sidewalk adjacent to a University of Texas (UT) tailgate party, he tripped over an extension cord strung across a pedestrian walkway.  Sampson sued under the TTCA under both a negligent condition or use of tangible personal property claim and a premise defect claim. UT filed a plea to the jurisdiction which was denied. The Third Court of Appeals reversed the denial and dismissed the claim. Sampson appealed.

Under the TTCA, a different standard of care applies to a premise defect claim than a claim based on the negligent condition or use of tangible personal property. Citing to prior precedent, the court held “. . . a plaintiff cannot plead around the heightened standard for premises defects, which requires proof of additional elements such as actual knowledge, by casting his claim instead as one for a condition or use of tangible personal property.” After going through an extensive history and definition analysis the court held “[t]his determination turns on whether the contemporaneous ‘action or service’ (use) or ‘state of being’ (condition) of the tangible personal property itself caused the injury, or whether the tangible personal property created the dangerous real-property condition, making it a premises defect.” Here “. . . [t]he dangerous condition was the way the extension cord was positioned over the concrete retaining wall, resulting in a gap between the ground and the cord. The injury did not result from the use of tangible personal property because a UT employee was not putting or bringing the cord into action or service at the time of the injury.” Nor was the gap between the ground and the cord a condition of tangible personal property because it was not the defective state of the actual cord that resulted in the injury. This is a premise defect case, and under that standard, Sampson was unable to produce evidence UT had actual knowledge of the danger. “Hypothetical knowledge will not suffice.”  An inference is not reasonable if premised on mere suspicion.  After going through the evidence presented, the court held that “. . . while UT may have known the extension cord was capable of being pulled off of the ground, this amounts to constructive knowledge, which is not the same as actual knowledge of a dangerous condition.” The court affirmed the dismissal of the claims against UT.*

Takings: Harris Cnty. Flood Control Dist. v. Kerr, No. 13-0303, 2016 WL 3418246 (Tex. June 17, 2016).  In this substituted opinion, the Texas Supreme Court reversed itself and held property owners could not sue the county for a takings for merely permitting private development on land which eventually flooded their downstream property.

In June of 2015, the Texas Supreme Court issued its original 5-4 opinion holding that property owners could sue the county for permitting development to occur on upstream property which eventually flooded their lands. After a motion for rehearing and various amici briefs, the Texas Supreme Court withdrew its original opinion and issued this 5-4 opinion with Justice Guzman being the swing vote. The primary facts are simply that the county issued permits for private developers upstream to develop their properties increasing impervious cover. The county had several studies in its possession noting that unless development is reduced, the properties downstream would be flooded. The county utilized additional studies noting the reduction of development was not as high as originally feared. However, when the county continued to issue permits under the slightly modified regulations, private upstream property owners continued to develop. The downstream property owners suffered flooding and sued asserting the changes were insufficient and the county under-regulated.

Generally, plaintiffs seeking recovery for a taking must prove the government “intentionally took or damaged their property for public use, or was substantially certain that would be the result.” A takings claim cannot be established by proof of mere negligent conduct by the government. Only affirmative conduct by the government will support a takings claim, but granting a permit can qualify if all other elements are met.  In addition, a specificity element runs in the case law and indicates that in order to form the requisite intent, the government ordinarily knows which property it is taking.  The Texas Supreme Court has “not recognized liability where the government only knows that someday, somewhere, its performance of a general governmental function, such as granting permits or approving plats, will result in damage to some unspecified parcel of land within its jurisdiction.” With regards to a public use element, merely granting permits to a private citizen is not enough. When a regulatory body does nothing more than allow, under its own regulations, a private person to develop their own private land, the public use element is not triggered. In this case, there was no evidence that the county ever had designs on the homeowners’ particular properties, and intended to use those properties to accomplish specific flood-control measures.  The only elements allegedly causing the flooding was private development on private land. Because inaction cannot give rise to a taking, the court held it “cannot consider any alleged failure to take further steps to control flooding, such as the failure to complete . . .” a proposed regulation plan which was not adopted.  Additionally, the court held “[b]ecause a taking cannot be premised on negligent conduct, we must limit our consideration to affirmative conduct the County was substantially certain would cause flooding to the homeowners’ properties and that would not have taken place otherwise. The only affirmative conduct on which the homeowners rely is the approval of private development. Further, the homeowners offered no proof that the County was substantially certain that the homeowners’ particular properties would flood if the County approved new housing developments.” “This is not a case where the government made a conscious decision to subject particular properties to inundation so that other properties would be spared, as happens when a government builds a flood control dam knowing that certain properties will be flooded by the resulting reservoir.” “The homeowners’ theory of takings liability would vastly and unwisely expand the liability of governmental entities, a view shared by the many public and private amicus curiae who have urged rehearing of this cause.  The theory lacks any discernible limiting principle and would appear to cover many scenarios where the government has no designs on a particular plaintiff’s property, but only knows that somewhere, someday, its routine governmental operations will likely cause damage to some as yet unidentified private property.” That is not a taking. As a result, the plea should have been granted. The case is reversed and rendered.

The concurring opinion by Justice Lehrmann focused on the possibility that a private person could, potentially have a proper takings claim, even if no “public use” is present. However, that is not the case here so he concurred.  The dissent simply recast the original 5-4 opinion with near identical analysis.*

Torts Claim Act:  City of Dallas v. Sanchez, No. 15-0094, 2016 WL 3568055 (Tex. July 1, 2016). This is a Texas Tort Claims Act (TTCA) case where the Texas Supreme Court holds immunity is not waived due to an alleged malfunction with a dispatch system.

Dallas dispatch received two 9-1-1 emergency calls at the same apartment complex requesting assistance with helping drug-overdosed victims.  The city erroneously concluded that the two closely timed 9-1-1 calls concerning overdose victims at the same locale were redundant. One was helped, while Sanchez died. In a wrongful-death suit against the City of Dallas, Sanchez’s parents allege the 9-1-1 telephone system malfunctioned and disconnected Sanchez’s call before the responders could establish the overdose reports were not duplicative. The city filed a Rule 91a jurisdictional challenge which the trial court denied and the court of appeals affirmed. The city appealed.

The court reviews the “merits of a Rule 91a motion de novo because the availability of a remedy under the facts alleged is a question of law and the rule’s factual-plausibility standard is akin to a legal-sufficiency review.”  For immunity to be waived under Section 101.021(2) of the Texas Tort Claims Act, “personal injury or death must be proximately caused by a condition or use of tangible personal or real property.” When a condition or use of property merely furnishes a circumstance “that makes the injury possible,” the condition or use is not a substantial factor in causing the injury.  After analyzing the pleadings, the court held the alleged telephone system malfunction was not a proximate cause of Sanchez’s death. “Between the alleged malfunction and Sanchez’s death, emergency responders erroneously concluded separate 9-1-1 calls were redundant and left the apartment complex without checking the specific apartment unit the dispatcher had provided to them. Moreover, approximately six hours passed between the phone malfunction and Sanchez’s death, further attenuating the causal connection. Although disconnection of the telephone call may have contributed to circumstances that delayed potentially life-saving assistance, the malfunction was too attenuated from the cause of Sanchez’s death—a drug overdose—to be a proximate cause.” “Sanchez’s death was caused by drugs, the passage of time, and misinterpretation of information.” The court rendered judgment and dismissed Sanchez’s claims.*

Employment: Paske v. Fitzgerald, No. 01-15-00631-CV, 2016 WL 3459217 (Tex. App.—Houston [1st Dist.] June 23, 2016). This is a police officer wrongful termination case for alleged violations of Texas Government Code chapter 614 where the First District Court of Appeals affirmed the granting of the city’s summary judgment motion.

Paske was a sergeant with the Missouri City Police Department (department) when Chief Fitzgerald was appointed. Chief Fitzgerald found Paske to have been insubordinate on different occasions and subsequently issued Paske a performance improvement plan (PIP) which required an independent evaluation through the city’s employee assistance program (EAP). After the initial EAP evaluations, the EAP therapist found several “red flags” for potential steroid use so Paske was ordered to take a drug test. When Paske arrived for his appointment and was told to take a drug test (which was not nearby) he advised his babysitter (mother-in-law) had been struck by a car earlier in the day and the children were home alone, but he felt it was alright if he only had to go to the EAP appointment. He could not drive to the drug testing facility which was some ways away. Chief Fitzgerald called Paske and ordered him to report to the department’s headquarters within one hour. Paske refused. Paske did not go to headquarters that day, but he arranged for a drug exam issued by an accredited third-party. This exam did not test for steroids, but Paske’s results were negative for other substances. Chief Fitzgerald terminated Paske by a letter that listed several violations of the department’s code of conduct stemming from his failure to report for the drug test. Paske sued alleging, among other things, he was terminated in violation of Section 614.021 which requires a written complaint be provided to an officer before termination. The city filed a plea to the jurisdiction and motion for summary judgment asserting Chapter 614 does not apply when the chief of an agency discharges a subordinate based on failure to follow a lawful direct order. The trial court granted the city’s motion and Paske appealed.

First, the court noted Paske has alleged that Chief Fitzgerald failed to perform a necessary ministerial act by failing to provide him with a signed complaint pursuant to the Government Code, i.e. an ultra vires act. The trial court has jurisdiction over the claims relating to Chief Fitzgerald, but not the same declaratory judgment claims over the city. The city is immune from claims seeking a declaration to construe the meaning of the statute.  Next, Chief Fitzgerald argued that the trial court properly granted him summary judgment because there was no “complaint” in this case, and instead he acted upon employee misconduct that he personally witnessed in his official role as chief. The court analyzed the meaning of the word “complaint” and determined that procedure is not imposed as a precondition to every adverse employment action that may be taken against a law enforcement officer. Specifically, when conduct is personally witnessed by an agency chief, the language would be superfluous. As a result, the trial court properly granted summary judgment for Chief Fitzgerald.*

Tort Claims Act: Rodriguez v. Fort Worth Transp. Auth., No. 02-14-00340-CV, 2016 WL 3453183 (Tex. App.—Fort Worth June 23, 2016) (mem. op.). This is a Texas Tort Claims Act (TTCA) case where a plaintiff in a wrongful death case sued multiple entities trying to exceed the TTCA’s statutory cap on damages. The Fort Worth Court of Appeals held each individual entity is liable up to the statutory caps.

Fort Worth Transportation Authority (FWTA), McDonald Transit, Inc. (MTI), McDonald Transit Associates, Inc. (MTA), and LeShawn Vaughn (collectively the Transit Defendants) were sued by plaintiff whose mother was killed when struck by a bus driven by Vaughn. Vaughn is an employee of MTI. MTI and MTA are both independent contractors of FWTA. The procedural case became overly complex, but the center elements for this opinion focus on whether the TTCA statutory cap of $100,000 applies to all defendants collectively, or each defendant individually. The trial court granted the Transit Defendants’ motion to dismiss Vaughn and that the $100,000 cap applies to all defendants collectively. The maximum recovery by the plaintiff is, therefore, $100,000, not $300,000. Rodriguez appealed.

The court first held the TTCA provision for employees’ dismissal from suits applies only to employees of a governmental unit and not to employees of the governmental unit’s independent contractor. Next, as to the limits of FWTA, MTI, and MTA, Texas Transportation Code Sections 452.701–.720 provide that independent contractors of a transit authority are liable for damages only to the extent the authority is liable under the TTCA. After analyzing the statutory language and a litany of cases it held “[u]nder the TTCA, no matter how many parts of a particular government unit a plaintiff sues, that unit cannot be held liable for an amount in excess of the cap for that unit. On the other hand, when a plaintiff sues multiple entities, each with liability limited by the TTCA, the plaintiff may recover separately from each defendant up to the amount of the cap that applies to each respective entity.” As a result, Rodriguez’s potential damages under the TTCA are limited to $300,000.*

Whistleblower Act: Fort Worth Indep. Sch. Dist. v. Palazzolo, No. 02-14-00262-CV, 2016 WL 3667867 (Tex. App.—Fort Worth July 7, 2016).  Fort Worth Independent School District (FWISD) terminated Assistant Principal Joseph Palazzolo (Palazzolo) for various allegations of wrongful conduct.  Palazzolo, before the report accusing him of the wrongful conduct, had reported FWISD to the Texas Education Agency concerning some illegal practices being done at the same high school that he was an assistant principal, such as altering students’ attendance records.  Palazzolo sued FWISD alleging violation of the Texas Whistleblowers Act (TWA).  During the trial, FWISD asserted Government Code Section 554.004(b), the affirmative defense within the TWA that states, “it is an affirmative defense to suit under this chapter that the employing state or local government entity would have taken the action against the employee that forms the basis of the suit based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under the [TWA].”  FWISD submitted evidence that it terminated Palazzolo for the reason in the report and not as retaliation for the report to TEA.  The trial court denied FWISD’s inclusion of the affirmative defense jury charge.

The Second Court of Appeals reviewed whether the trial court erred in not allowing FWISD to present its affirmative defense jury charge to the jury.  It first looked at whether FWISD tendered the written question concerning the affirmative defense. It determined that it did by showing it had submitted the affirmative defense question with the pretrial charges and by objecting to the non-inclusion of the affirmative defense during the trial.

Next, the court distinguished an affirmative defense from an inferential rebuttal issue.  It explained that an inferential rebuttal defense operated to rebut an essential element of the plaintiff’s case by proof of other facts, where as an affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim even if all the allegations in the plaintiff’s petition are true.  Even though both of the Houston courts of appeal have construed TWA’s affirmative defense as an inferential rebuttal issue, this court said that when construing a statute, the primary objective of the court is to determine and to give effect to the legislature’s intent as expressed by the language of the statute.  This court went through the meaning of “affirmative defense” stating that the legislature knows what it means and it was not the court’s job to second guess the legislature’s clear and unambiguous language.  Also, the burden of proof is on the defendant to present sufficient evidence to establish the defense and obtain the requisite jury findings.  The court stated that the TWA’s affirmative defense operates as an affirmative defense just as the legislature intended it to and that FWISD did preserve the error of the trial court for appellate review.

Lastly, the court looked at the merits of the issue.  It stated that the affirmative defense cannot be effectively incorporated in the charges, but that it should be set out in clear and conspicuous terms leaving no doubt that the charge properly conveyed the defense for the jury to consider. Therefore, the court determined that there was enough evidence presented by the plaintiff and defendant to allow for the inclusion of the affirmative defense and that the trial court abused its discretion by not including it and reversed and remanded to the trial court for a new trial.

Municipal Fees: Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, No. 03-15-00370-CV, 2016 WL 3390850 (Tex. App.—Austin June 15, 2016). This is an appeal by Reagan National Advertising (Reagan) following the trial court ruling that the City of Austin’s (city) billboard assessment was a constitutional regulatory fee and that Reagan’s claims for billboard fees paid in August of 2009 and March of 2010 were time-barred.

Reagan owns and operates billboards in the Austin area. The city regulates these billboards and requires them to be registered. After amending its regulations in 2009, the city collected an assessment of $200 per billboard per year. In 2012, the city lowered the assessment to $190 per year. Reagan paid the $200 billboard assessment each year from 2009 to 2012 and the $190 assessment each year for 2013 and 2014.

In April 2010, Reagan sued the city in federal district court. The federal judge concluded that the city’s billboard assessment was a “tax” for purposes of the Tax Injunction Act (TIA) and, therefore, the court lacked subject matter jurisdiction. Under the TIA, federal courts lack subject-matter jurisdiction to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. The judge issued a final judgment dismissing the suit without prejudice. On December 29, 2011, the city filed a motion for new trial, which the judge denied by an order signed on February 6, 2012.

On April 25, 2012, Reagan filed suit in the Travis County District Court. The trial court ordered that Reagan take nothing on its claims. The court found that the city’s billboard fee was reasonable and constitutional, that Reagan’s claims for fees paid in August of 2009 and March of 2010 were time-barred, and that the federal district court’s finding that the billboard fee was a tax under the TIA did not bar the trial court from re-litigating the matter and finding that the assessment is a regulatory fee.

Reagan appealed the trial court’s judgment. The Austin Court of Appeals found that Reagan’s claims are governed by a two-year statute of limitations, but a savings clause tolled the statute of limitations. The savings clause is satisfied in this case because (1) Reagan filed its federal action within the limitations period which was dismissed for lack of subject matter jurisdiction; and (2) Reagan then filed this suit in state court within 60 days from the time the federal court’s judgment dismissing Reagan’s claims for lack of jurisdiction became final. Tex. Civ. Prac. & Rem. Code § 16.064(a). The Court found that the federal court’s dismissal became final following the court’s denial of the city’s motion for a new trial on February 6, 2012.

Reagan argued that the trial court erred in deciding that the federal court’s conclusion that the billboard assessment is a tax did not preclude re-litigation of the issue and in holding that the assessment is a constitutional regulatory fee. Issue preclusion applies only if four conditions are met: (1) the issue under consideration in a subsequent action must be identical to the issue litigated in a prior action; (2) the issue must have been fully and vigorously litigated in the prior action; (3) the issue must have been necessary to support the judgment in the prior case; (4) there must be no special circumstance that would render preclusion inappropriate or unfair. State Farm Mut. Auto. Ins. Co. v. LogistiCare Sols., LLC, 751 F.3d 684, 689 (5th Cir. 2014).

The court of appeals found that the federal court’s determination that the billboard fee was a tax under the TIA involved an issue of fact or law identical to the question of whether the assessment is a tax under the Texas Constitution. In determining whether the assessment is a tax under the TIA, the critical factor focuses on the purpose of the assessment and the ultimate use of the funds. The federal court determined that the assessment was a tax, not a fee, because the assessments were deposited into the city’s general-revenue fund and the evidence on whether the assessment was revenue-neutral was conflicting. The record lacked any indication of the city’s purpose for increasing the assessment so the court determined that the assessment benefitted the entire community rather than only defraying the city’s reasonable cost of registering billboards.

In order to determine whether the assessment is a tax under the Constitution, courts consider whether the primary purpose of the assessment was for regulation or raising revenue.  Therefore, the court found that the federal court’s determination that the billboard assessment raised revenue in excess of the reasonable cost of registering billboards and benefitted the entire community is identical to a determination that the assessment is a tax under the Texas Constitution.

The court found no dispute that the federal judge conducted a bench trial, which included the presentation of expert testimony concerning the cost of the billboard registration program. Thus, the issue was fully and vigorously litigated in the prior action.

The court concluded that the federal court’s determination that the billboard assessment raised revenue in excess of the reasonable cost of registering billboards was necessary to support the judgment that the assessment was a tax and that the court lacked subject-matter jurisdiction.

Finally, the court found no special circumstance that would render preclusion inappropriate or unfair in this instance. Nothing in the record indicates that the city was treated unfairly in the federal-court litigation. Accordingly, the federal court’s determination that the city’s billboard assessment was a tax invokes issue preclusion, and the trial court did, in fact, err in re-litigating the matter.

Because the city’s billboard assessment constitutes a tax on billboards under article VIII, section 1(f) of the Texas Constitution, it may not exceed half of the tax levied by the state on outdoor advertising. Texas levies no tax on billboards, so the city’s billboard assessment violates the Texas Constitution and is void.

Employment:  City of Plainview v. Ferguson, No. 07-14-00405-CV, 2016 WL 3522129 (Tex. App.—Amarillo June 23, 2016) (mem. op.).  This is a police disciplinary case under Chapter 614 of the Texas Government Code.

Ferguson was a police officer for the city. He was terminated based on an investigation stemming from a citizen complaint. Amber Washington requested assistance with a domestic matter. When Ferguson spoke with her in the police station lobby he asserts she was angry, cursed at him, and was uncooperative. He asked her to leave the station; she refused. As a result, he arrested her for disorderly conduct. The confrontation was recorded on video. The next day, Washington made a verbal then written complaint. Lieutenant Guerra investigated the complaint and requested Ferguson provide a written explanation; however, Ferguson was not given a copy of the Washington complaint at that time. Officers of the department met with Ferguson on March 3, March 9, and March 11, and testified Ferguson was permitted to make a copy of Washington’s complaint at the March 3 meeting.  Ferguson testified he saw the complaint at that meeting, “read it and started kind of skimming through it[,]” but was not then given a copy.  On March 9, Ferguson was terminated. Ferguson filed suit. After a trial, the court ordered reinstatement. The city appealed.

The city did not contest the trial court’s findings of fact noting Ferguson did not receive a copy of the complaint within a reasonable time after receipt by the city. The consequence is the city does not contest it violated Section 614.023 (requiring a written complaint be provided an officer within a reasonable time). Instead, the city asserts reinstatement is not a relief which can be granted for non-compliance. The city pointed to numerous pieces of evidence showing Ferguson was unfit to be a police officer. But while such testimony exists, so does evidence supporting the remedy of reinstatement. “A trial court does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision.”  As a result, the order of reinstatement was not an abuse of discretion. The trial court judgment was affirmed.*

Property Rights: Lamar Advantage Holding Co. v. City of Stephenville, No. 11-14-00133-CV, 2016 WL 3573931 (Tex. App—Eastland June 9, 2016) (mem. op.).  This is a trespass to try title suit filed against the City of Stephenville and Mark Kaiser, in his official capacity as city administrator.

The city owns a tract of property upon which Lamar Advantage Holding Company (Lamar) maintains billboards. Lamar contends that it has a right to possess the property where the billboards are located by virtue of a ten-year lease it executed in 2007. The city contends Lamar’s leasehold interest expired in 2011.  Lamar filed a declaratory judgment action against the city seeking a declaration of the parties’ rights under the 2007 lease. Lamar subsequently amended its pleadings to include a claim for trespass to try title claim. The city defendants filed a plea to the jurisdiction which the trial court granted.

The trespass to try title claim was brought against the city administrator in his official capacity and not truly against the city. [Comment: The city maintains immunity for a trespass to try title claim normally.]  The key to Lamar’s claim is that the successor deed reserved the right to lease billboards within the deed itself, thereby granting superior title to the leasehold. After analyzing the deed language, the court held “ . . . that this reference . . . to a single lease does not constitute a reservation of future leasing rights.”  Nowhere does the deed purport to reserve from the conveyance any future right to lease the property for billboard purposes. The deed is controlled by the parties’ objective intent as expressed in the document, not their subjective intent. Given this interpretation, as a matter of law, the city defendants conclusively established superior title and the right to possess the property, thereby negating the jurisdictional basis for Lamar’s claim. The plea was properly granted.*

Delinquent Property Taxes:  Heritage Operating, L.P. v. Barbers Hill Indep. Sch. Dist., No. 14-14-00187-CV, 2016 WL 3365330 (Tex. App.—Houston [14th Dist.] June 16, 2016) (op. on reh’g). This opinion replaces one originally summarized in the July 2015 TCAA newsletter.

Heritage owed a storage facility in the City of Mont Belvieu. Heritage paid property taxes on the property for the 2003-2007 tax years, with the exception of 2004, when Heritage claimed it did not receive notice of appraisal. The city, county, and school district (“taxing units”) sued Heritage for over $800,000 in delinquent property taxes, penalties, and interest for the 2004 tax year. Heritage filed a counterclaim seeking a declaration that the 2004 tax was void due to the taxing units’ failure to provide adequate notice within two years in accordance with Tax Code provisions. The trial court ultimately granted the taxing units’ motion for summary judgment, and Heritage appealed.

In its initial opinion, the court of appeals concluded that Heritage received the tax bill in 2007, which included notice of the 2004 delinquency, and was required to exhaust its administrative remedies in order to raise this issue to defeat a summary judgment. Because Heritage did not, the taxing units conclusively established that they were entitled to summary judgment. The court overruled Heritage’s sole issue and affirmed the judgment of the trial court. The court of appeals later granted Heritage’s motion for rehearing, and withdrew its memorandum opinion issued in July of 2015.

The court went back and reexamined the question of whether Heritage’s failure to challenge the appraisal before the appraisal review board deprived the trial court of jurisdiction to consider Heritage’s defense. A critical issue on rehearing was the fact that Tax Code Section 41.44(c-3), which would have given Heritage a viable remedy through the appraisal review board to handle the tax protest, went into effect on January 1, 2008. If Heritage first received written notice of the 2004 taxes for the first time in May 2007, then it could not fail to exhaust its administrative remedies for the lack of notice because no such remedy existed at the time. The court concluded that sufficient evidence exists to show that Heritage first received notice of the 2004 taxes in May of 2007, and the taxing units failed to raise a question of fact as to whether the initial notice was delivered at some other time. Therefore the trial court was not deprived of its jurisdiction over Heritage’s defense. The original judgment in favor of the taxing unit was reversed and the matter was remanded to the trial court.

*Case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to