Opinion issued October = 11,=20 2007
For=20
The
ALLEN R =
HARTMAN=20
& LISA HARTMAN, Appellants HARRIS =
COUNTY=20
APPRAISAL DISTRICT AND THE APPRAISAL REVIEW BOARD OF THE HARRIS =
COUNTY=20
APPRAISAL DISTRCT, Appellees
On =
Appeal from the=20
80th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2005-49164
O P I N =
I O=20
N Appellants, =
Allen R=20
Hartman and Lisa Hartman, sued appellees, Harris County Appraisal =
District=20
(HCAD) and the Appraisal Review Board of the Harris County =
Appraisal=20
District (HCARB), alleging that their real property was appraised=20
excessively and unequally for tax year 2005. Appellees moved for =
summary=20
judgment, asserting that the appraised value was the result of an=20
agreement between the parties and, therefore, under section =
1.111(e) of=20
the Tax Code, could not be contested in a judicial appeal. The =
trial court=20
granted appellees' motion and rendered judgment in their favor. In =
a=20
single point of error, the Hartmans contend that the trial court =
erred in=20
rendering summary judgment for three reasons: (1) there was no =
agreement=20
reached between the parties; (2) the valuation was determined by =
HCARB,=20
giving the Hartmans a statutory right to appeal under section =
42.01of the=20
Tax Code; and (3) the Hartmans' due-process rights were violated =
by the=20
application of section 1.111(e) of the Tax Code by denying their =
right to=20
a judicial appeal. We affirm.
HCAD appraised the Hartmans' =
real=20
property at a value of $1,476,828 for tax year 2005. As provided =
by=20
statute, the Hartmans filed a notice of protest of that value with =
the=20
HCARB. See Tex. Tax Code Ann. =A7 41.41 (Vernon =
2001). The=20
Hartmans designated Clyde Cooper, an employee of O'Connor &=20
Associates, as their agent to represent them at the HCARB hearing. =
Shelly=20
Summers represented the chief appraiser of HCAD. The transcript of =
the=20
hearing reveals the following proceedings: Female Speaker: The recorder's =
on. The=20
hearing is being recorded so the information you present before =
the board=20
Mr. Cooper with regards to the property owner you're representing =
should=20
be the truth. At this time, you need to sign the affidavit and put =
in an=20
opinion of value for us please. Mr. Cooper: Okay. Hold =
on. Female Speaker: And the opinion =
of the=20
value is? Mr. Cooper: $1,340,000=20
even. Female Speaker: Okay. =
Signature. And Ms.=20
Summers should be _____ under oath. Ms. Summers: Shelly Summers and =
I'm also=20
under oath. Mr. Cooper: Clyde Cooper. I'm =
under oath=20
as well. Female Speaker: ___ ___ ___ ___ =
place=20
themselves under oath at this time and once this is completed we =
will go=20
to the district for a description of the property. Ms. Summers: Service address is =
918=20
Huntington [Cove], Lot 4 in Huntington Cove. It's a 1994-year =
built with=20
6,746 square feet. It's on a slab foundation. ___ has central and =
heat.=20
It's a brick exterior wall with five bedrooms, five full baths and =
2 half=20
baths. It has a two-stop elevator and a conventional wood-burning=20
fireplace. It does have a canopy and a pool. The last sale ___ the =
property was in June of 2004 for $1,340,000. Total land area is =
46,961=20
square feet and the ___ market value for 2005 is =
$1,476,828. Female Speaker: Is that correct =
Mr.=20
Cooper? Mr. Cooper: It =
is. Female Speaker: Okay. We will =
hear from=20
you. Mr. Cooper: Thank you very much =
and in=20
Ms. Summers prelude to this hearing, she asked . . . did =
we=20
mention how we derive at our values of recent purchase as =
identified on=20
transaction report. I have it circled for you as well, at =
$1,340,000 is=20
the purchase price of June 2004. It is also identified on the =
property=20
record description card. Ms. Summers: The best =
indication of=20
market value would be recent purchase of the property. The =
property was=20
purchased in June of 2004 for $1,340,000 therefore, that is the =
district=20
recommendation. Female Speaker: Mr. =
Cooper? Mr. Cooper: Nothing=20
additional. Female Speaker: Okay, the =
hearings=20
closed. The property and the count concurs with the=20
district. Male Speaker #2: =
Concur. Female Speaker: Account ending =
0004 for=20
tax year 2005, the market value will be $1,340,000 even. This ends =
the=20
hearing. HCARB subsequently issued an =
Order=20
Determining Protest listing the final value at $1,340,000 and =
including=20
the following statement: YOU HAVE THE RIGHT TO APPEAL =
THIS ORDER=20
TO THE DISTRICT COURT. IF YOU WANT TO APPEAL, YOU SHOULD CONSULT =
AN=20
ATTORNEY IMMEDIATELY. YOU MUST FILE A PETITION WITH THE DISTRICT =
COURT=20
WITHIN 45 DAYS OF THE DATE YOU RECEIVE THIS NOTICE. See Tex. Tax Code Ann. =
=A7 41.47(e) (Vernon 2001). The Hartmans then filed suit =
under chapter=20
42 of the Tax Code, contending that their property value was =
assessed=20
excessively and unequally. See Tex. Tax Code Ann. =
=A7 42.01=20
(Vernon 2001). HCAD filed a motion for summary judgment on the =
ground that=20
a final and binding agreement between the parties, pursuant to =
section=20
1.111(e) of the Tax Code, had been reached at the HCARB hearing, =
thereby=20
barring the Hartmans from taking a judicial appeal. See =
Tex. Tax=20
Code Ann. =A7 1.111(e) (Vernon 2001). The Hartmans responded =
to the=20
motion by denying that an agreement had been made. The trial court =
granted=20
HCAD's motion, and the Hartmans perfected this appeal.
Standard of=20
Review Agreement between the=20
parties The Hartmans contend that there =
was no=20
agreement as to valuation as required by section 1.111(e) of the =
Tax Code.=20
When construing a statute, we =
look to the=20
language of the statute as the truest manifestation of legislative =
intent.=20
Alex Sheshunoff Management Servs., L.P. v. Johnson, 209 =
S.W.3d=20
644, 651 (Tex. 2006). Thus, when the language is unambiguous, we =
construe=20
the statute as written. Id. at 651-52. We read words and =
phrases=20
in context and construe them according to the rules of grammar and =
common=20
usage. Tex. Gov't Code Ann. =A7 311.011 (Vernon 2005). Although =
permitted by=20
the Code Construction Act, secondary materials should not be =
overly relied=20
upon, especially when the statute's language is clear. Alex =
Sheshunoff=20
Management Servs., 209 S.W.3d at 652 n.4 (citing Tex. Gov't =
Code =A7=20
311.023). Section 1.111(e) of the Tax =
Code=20
provides, An agreement between a property =
owner or=20
the owner's agent and the chief appraiser is final if the =
agreement=20
relates to a matter: (1) which may be protested to =
the=20
appraisal review board or on which a protest has been filed but =
not=20
determined by the board[.] Tex. Tax Code Ann. =
=A7 1.111(e)(1).=20
The Hartmans contend that, because they had already filed their =
notice of=20
protest and a hearing had been scheduled, the only applicable part =
of=20
section 1.111 is the clause, "on which a protest has been filed =
but not=20
determined by the board." They argue that it was, in fact, the =
board that=20
determined their appraised value. On the other hand, HCAD argues =
that the=20
clause, "which may be protested to the appraisal review board" is =
the=20
applicable clause in this case because the agreement "relates" to =
such a=20
matter. The two clauses in section =
1.111(e)(1) do=20
not relate to two separate types of matters to be considered =
through a=20
protest. A matter on which a protest has been filed is, =
necessarily, a=20
matter which may be protested to the board. When read together, =
the two=20
clauses in section 1.111(e)(1) provide a continuum beginning =
before any=20
protest is filed and continuing through the filing process up to =
the point=20
that a determination is made by the board. We conclude that an =
agreement=20
between a property owner or his agent and the chief appraiser made =
at any=20
point on this continuum is final, as provided in section 1.111(e). =
We need=20
not determine which of the two clauses is applicable to a =
particular=20
agreement. The issue is whether the agreement relates to a matter =
that may=20
be or has been protested, but not yet determined by the board. =
The Hartmans argue that no =
agreement was=20
announced and there was never an agreement between their agent and =
the=20
appraiser, but that the two "merely recommended the same value." =
The=20
Hartmans direct us to definitions of "agreement" from =
Merriam-Webster=20
OnLine, The Tax Code does not provide =
for any=20
particular method of informing HCARB of an agreement between an =
owner or=20
agent and the chief appraiser. When the Hartmans' agent and the =
appraiser=20
each announced the same opinion as to the value of the property, =
they were=20
in "the act or fact of agreeing" and were expressing a "harmony of =
opinion." And in announcing their opinions regarding the value, =
they were=20
"acting" upon the matter and informing the panel of their =
agreement.=20
Section 1.111 does not require a formal announcement such as "we =
agree."=20
Determination of the =
property=20
value by HCARB The Hartmans contend that the =
valuation=20
was actually determined not by agreement between the parties, but =
by=20
HCARB, as evidenced by the Order Determining Protest issued by =
HCARB four=20
days after the initial hearing. The order stated that "the board=20
. . . determined that the appraisal records should be =
changed as=20
follows: Final Value: 1,340,000" and included the notice required =
by=20
section 41.47(e) of the Tax Code, "You have the right to appeal =
this order=20
to the district court." See Tex. Tax Code Ann. =
=A7 41.47(e).=20
The facts of this case are =
similar to=20
those in Sondock v. Harris County Appraisal District, No. =
14-06-00676-CV, 2007 WL 1557424 (Tex. App.--Houston [14th Dist.] =
May 31,=20
2007, no pet. h.), and BPAC Tex., LP v. Harris County =
Appraisal=20
District, No. 01-03-01238-CV, 2004 WL 2422033 (Tex. =
App.--Houston=20
[1st Dist.] Oct. 28, 2004, no pet.) (mem. op.). In =
Sondock, at=20
the hearing before the three-member panel, the owner's agent =
stated a=20
value of $880,500. Sondock, 2007 WL 1557424, at *1. The =
HCAD=20
representative said, "The District concurs. The District would =
recommend=20
$880,000 even." Id. A panel member announced, "[T]he =
value is and=20
shall be $880,000." Id. Following the hearing, the Board =
issued=20
an Order Determining Protest setting the value at $880,000 and =
stating=20
that the homeowner had the right to appeal. Id. In =
response to=20
Sondock's claim that there was no agreement, the court of appeals =
referred=20
to The American Heritage Dictionary's definition of agreement, =
"The act of=20
agreeing; harmony of opinion; accord," and concluded that there =
was=20
harmony of opinion between the Sondocks and HCAD regarding the =
value of=20
the property and that section 1.111(e) does not require the =
parties to=20
"announce" their agreement. Id. at *2. The court further=20
concluded that, because the agreement related to the appraised =
value of=20
the property, the agreement was final, and any subsequent =
determination by=20
the Board, such as the Order Determining Protest, was irrelevant.=20
Id. In BPAC, the property =
owner's=20
agent submitted a written statement that, in his opinion, the =
property=20
value was $12,075,920. BPAC, 2004 WL 2422033, at *1. The =
HCAD=20
representative, after giving the property description, said, =
"[W]e'll=20
agree with that number." Id. When asked if that value was =
agreeable to him, the owner's agent said, "Yes, it is." =
Id. The=20
panel then deliberated and set the value at $12,075,920. =
Id.=20
HCARB ordered that HCAD correct its appraisal roll and sent a copy =
of the=20
order to BPAC with a notice stating that BPAC had a right to =
appeal the=20
decision to the district court. Id. BPAC filed suit in =
district=20
court, which rendered summary judgment for HCAD. Id. at =
*2. On=20
appeal, BPAC claimed that there was no agreement between it and =
HCAD.=20
Id. We said that the "testimony at the protest hearing =
plainly=20
establishe[d] the existence of an agreement" and that, because the =
property value had not been determined by the board, the agreement =
was=20
final, regardless of any later action taken by HCARB. Id. =
at *3.=20
The Hartmans distinguish the =
facts in=20
BPAC from the facts in this case because, in =
BPAC, the=20
chief appraiser's representative said, "We'll agree [to the =
agent's=20
value]," and the agent, when asked if the value was agreeable to =
him,=20
said, "Yes, it is." We do not consider that these statements =
distinguish=20
BPAC, nor does the HCAD representative's statement in=20
Sondock, "The District concurs," distinguish that case. =
No magic=20
words are required by the statute. It is the fact of agreeing--the =
harmony=20
of opinions--that creates the agreement. That agreement is present =
in this=20
case as it was in Sondock and BPAC. Due-process=20
violation The Hartmans contend that the =
trial=20
court's rendition of summary judgment based on a finding of an =
agreement=20
and precluding a judicial appeal constitutes a denial of due=20
process. It is well-established that the =
collection of taxes constitutes deprivation of property; =
therefore, a=20
taxing authority must afford a property owner due process of law.=20
McKesson Corp. v. Div. of Alcoholic Beverages & =
Tobacco, 496=20
U.S. 18, 36-37, 110 S. Ct. 2238, 2250-51 (1990); ABT Galveston =
Ltd.=20
P'ship v. Galveston Cent. Appraisal Dist., 137 S.W.3d 146, =
155 (Tex.=20
App.--Houston [1st Dist.] 2004, no pet.); see also U.S. =
Const.=20
amend. XIV; Tex. Const. art. I, =A7 19. However, "[d]ue process =
simply=20
affords a right to be heard before final assessment; it does not =
detail=20
the review mechanism." Dallas County Appraisal Dist. v. =
Lal, 701=20
S.W.2d 44, 47 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). In =
cases=20
involving property taxation, due process is satisfied if the =
taxpayer is=20
given an opportunity to be heard before an assessment board at =
some stage=20
of the proceedings. ABT, 137 S.W.3d at 155; Denton =
Cent.=20
Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 266 =
(Tex.=20
App.--Fort Worth 2003, pet. denied); Lal, 701 S.W.2d at =
47.=20
The Hartmans' agent was at the =
protest=20
hearing before a panel of the board when he gave his opinion of =
the=20
Hartmans' property, to which the HCAD representative agreed by =
stating the=20
same value. Thus, the Hartmans had an opportunity to be heard =
before the=20
board. Their contention that they were denied due process has no =
merit.=20
We hold that the trial court =
did not err=20
in granting summary judgment in favor of HCAD. Accordingly, we =
overrule=20
the Hartmans' sole issue. We affirm the judgment. =
Sam Nuchia Justice Panel consists of Justices =
Nuchia, Hanks,=20
and Bland. 1. Internet Website: 2. We note that the Hayes court did =
not=20
define "agreement." The definition was in the trial court's =
charge, and no=20
one objected to the definition. Hayes v. Nichols, 203 =
S.W.2d 274,=20
274 (Tex. Civ. App.--Eastland 1947, no writ).=20