From: "Saved by Windows Internet Explorer 7" Subject: Texas Judiciary Online - HTML Opinion Date: Mon, 24 Mar 2008 23:21:35 -0500 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_002D_01C88E05.CD99AB80" X-MimeOLE: Produced By Microsoft MimeOLE V6.0.6000.16545 This is a multi-part message in MIME format. ------=_NextPart_000_002D_01C88E05.CD99AB80 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=85259 Texas Judiciary Online - HTML Opinion
Send this document to a=20 colleague    Close=20 This Window


Opinion issued March = 20, 2008=20




















In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas


NO. 01-07-00794-CV

__________


MOHAMMAD=20 IRANNEZHAD, Appellant


V.


ALDINE INDEPENDENT SCHOOL DISTRICT,=20 Appellee



On = Appeal=20 from the 270th District Court

Harris County, Texas

Trial Court=20 Cause No. 2007-17387



O = P I N I O=20 N

Appellant,=20 Mohammad Irannezhad, challenges the trial court's judgment = rendered in=20 favor of appellee, Aldine Independent School District ("Aldine"), = in=20 Aldine's suit against Irannezhad for delinquent post-judgment = taxes that=20 had accrued on a piece of real property ("the property") owned by=20 Irannezhad. In three issues, Irannezhad contends that Aldine was = not=20 entitled to recover any post-judgment taxes after Aldine had sold = all of=20 its interest in the property to Irannezhad in 2005, Aldine used = "unrelated=20 Texas Tax Code [provisions] to overrule the tax law," and the = trial court=20 acted improperly in signing the judgment against him.

We affirm.=20

Factual and Procedural = Background

On=20 September 19, 2002, Aldine and other taxing units, in an = underlying=20 proceeding, obtained a judgment for approximately $145,000 against = the=20 previous owners ("the Richey owners") of a piece = of real=20 property for delinquent taxes that had accrued on the property = from 1987=20 to 2001.=20 (1) = In that=20 case, the court, in its judgment, after noting that the adjudged = value of=20 the property was $52,450, ordered that the plaintiff taxing units, = including Aldine, "shall have foreclosure" of the tax liens taken = against=20 the property to secure the payment of the delinquent = taxes. The court = further=20 ordered that the property be "sold in satisfaction of the amount = of the=20 judgment," and it directed the clerk of the court to issue an = order of=20 sale, upon the request of the plaintiff taxing units, commanding = the=20 Constable to sell the property pursuant to Chapter 34 of the Texas = Tax=20 Code.=20 (2) = The court=20 expressly provided that its judgment was "without prejudice to the = authority and power of the plaintiff taxing units to collect taxes = or to=20 maintain a suit or suits to enforce and recover any taxes for the = 2002 tax=20 year and/or subsequent years on the property herein = described."

Following the = entry of this=20 judgment, Aldine continued to assess taxes against the property up = until=20 the tax sale, which occurred on September 2, 2003.=20 (3) = At the tax=20 sale, which was conducted pursuant to section 34.01 of the Tax = Code,=20 (4) = the=20 minimum bid for the property was not received.=20 (5) Accordingly, the property was "struck off"=20 (6) = to Aldine.=20 The "Deed Under Order of Sale," dated September 26, 2003, recited = that by=20 virtue of the order from the court in the underlying cause and = based upon=20 the judgment rendered on September 19, 2002, the Constable had = been=20 commanded to seize and sell the property, he had properly = advertised and=20 provided notice of the sale, and the property had been "struck off = to=20 [Aldine] for the use and benefit of itself and . . . other taxing = units=20 that established liens" in the underlying cause "for the amount of = the=20 taxes owing, including interest and penalties." The "Deed Under = Order of=20 Sale" further stated that the Constable had granted, sold, and = conveyed to=20 Aldine, for the use and benefit of Aldine and the other plaintiff = taxing=20 units that had established liens in the underlying cause, "all of = the=20 estate, right, title and interest" that the Richey owners had held = on=20 September 2, 2003, or at any time afterwards, to the = property.

The parties agree = that after=20 the property was struck off to Aldine, the property was exempt = from=20 taxation and that no additional taxes accrued on the property from = September 2, 2003 until January 4, 2005,=20 (7) = when=20 Irannezhad purchased the property for $25,000=20 (8) at a = public resale=20 conducted pursuant to section 34.05 of the Tax Code.=20 (9) The "Deed = Under=20 Re-Sale Pursuant to Texas Tax Code =A7 34.05," which was executed = to=20 evidence Irannezhad's purchase, identified the Grantor as the = Constable=20 "for itself and as trustee for [Aldine]" and the Grantee as = Irannezhad.=20 The Deed Under Re-Sale further referenced the date of the = "original tax=20 foreclosure sale" of September 2, 2003, and stated,

Order of=20 Re-Sale: That resolution, order, or ordinance dated June 15, 2004 = and=20 passed and adopted by Grantor's governing body at a regularly = scheduled=20 meeting and further authorizing the re-sale of the property = described=20 herein, previously acquired by Grantor in the following described = tax=20 foreclosure proceeding.



Cause: That=20 cause bearing Cause No. 2001-04514 filed in the 151st District = Court of=20 Harris County, Texas and styled Aldine Independent School = District. v.=20 Richey Family Trust No. 1.



The Deed = Under=20 Re-Sale further stated that the Constable granted, sold, and = conveyed to=20 Irannezhad, who was the highest bidder, "all of the estate, the = right,=20 title, and interest acquired or held by each taxing unit that was = a party=20 to the judgment foreclosing tax liens on the property which the = Grantor,=20 for itself, and as trustee for all taxing entities which = established tax=20 liens in the above reference cause had in and to the [property]." = Finally,=20 the Deed Under Re-Sale noted that the conveyance was subject to = any right=20 of redemption remaining to the former owner at the time of=20 resale.

On March=20 23, 2007, Aldine filed the instant suit against Irannezhad seeking = to=20 recover $2,878.11 for delinquent post-judgment taxes, i.e., the = taxes that=20 had accrued from the date of the original judgment (September 2, = 2002)=20 until the date that the property was struck off to Aldine = (September 26,=20 2003).=20 (10) = The=20 trial court rendered judgment in favor of Aldine for $2,799.11 for = delinquent taxes for years 2002 and 2003. The trial court further = ordered=20 the foreclosure of the tax liens against the property.

Recovery of=20 Post-Judgment Taxes by Taxing Unit After = Resale

In three=20 issues, Irannezhad contends that Aldine was not entitled to = recover the=20 post-judgment taxes after Aldine had sold all of its interest in = the=20 property to him in 2005, Aldine used "unrelated Texas Tax Code=20 [provisions] to overrule the tax law," and the trial court acted=20 improperly in signing the judgment against him.=20 (11) = Irannehezad agrees=20 that post-judgment taxes continued to accrue on the property after = the=20 foreclosure judgment.=20 (12) = Irannezhad further agrees that a purchaser of property at a tax = sale, as=20 opposed to a purchaser of property at a tax resale, purchases the = property=20 subject to post-judgment taxes. Nevertheless,=20 Irannezhad argues that because he purchased the property at a tax = resale,=20 the post-judgment taxes that had accrued on the property "merged" = with the=20 property's title at the time of the resale. In support of his = argument,=20 Irannezhad relies on State v. Moak, 146 Tex. 322, 207 = S.W.2d 894,=20 897 (Tex. 1948).

In=20 Moak, multiple taxing units obtained a judgment in 1939 for=20 delinquent taxes that had accrued from 1917 to 1937. Id. = at 895.=20 A judicial sale of the property, based on the 1939 tax judgment, = was=20 conducted on October 7, 1941. Id. At the judicial sale, = the city,=20 one of the plaintiff taxing units, purchased the property for = itself and=20 as trustee for the other plaintiff taxing units "in proportion to = the tax=20 recovery awarded by the judgment to each taxing unit." = Id. The=20 city subsequently sold the property in 1945, and the proceeds from = the=20 sale were divided between the taxing units. Id. After = this sale,=20 the state and county, who were the other plaintiff taxing units to = the=20 1939 judgment, asserted that liens had attached to the property = for taxes=20 that had accrued between the date of the 1939 judgment and the = date on=20 which the City purchased the property at the tax sale, i.e., the=20 post-judgment taxes. Id. Although the court agreed that = "taxes=20 continued to accrue against this property after the decree of = foreclosure"=20 and that "taxes did fall due for the years embraced in the period = now=20 under consideration," it concluded,

[W]hen=20 the property was acquired by the taxing units at the judicial sale = .=20 . . , under an application of the general doctrine of merger it = must be=20 held that the liens of the bodies politic which were parties to = the suit=20 were merged into the title they acquired.


. = . .=20 .



The=20 conclusion follows that the liens for taxes held by the State and = the=20 County for 1939 through 1941 were, as a matter of law, merged = into the=20 title acquired by the taxing units on October 7, = 1941.


Id. at 896=20 (emphasis added)

Thus, the=20 holding in Moak relevant to this appeal is that, at = the time=20 the taxing units acquired the property at the tax sale, any = liens=20 held by the plaintiff taxing units, including any liens that had = attached=20 to the property for delinquent post-judgment taxes, merged into = the taxing=20 units' title. Id. This holding differs from Irannezhad's=20 contention on appeal that the post-judgment taxes merged into his = title=20 at the time he purchased the property at resale. =

Moreover,=20 Aldine contends that the merger doctrine applied in Moak = has been=20 superseded by multiple sections of the Tax Code, all of which make = clear=20 that a taxing unit may seek to recover post-judgment taxes even = after a=20 property is struck off to it. Aldine further argues that these = provisions,=20 which preserve a taxing unit's rights to pursue post-judgment = taxes even=20 after a property is struck off to it, necessarily apply when the = property=20 is sold at a tax resale.

Aldine=20 primarily relies on section 33.52(d) of the Tax Code, entitled = "Taxes=20 Included in Judgment," and section 34.01 of the Tax Code, entitled = "Sale=20 of Property." Tex. Tax Code Ann. =A7 33.52 (Vernon 2001), =A7 = 34.01. Aldine=20 asserts that both of these sections were amended in 1999 to = specifically=20 authorize the recovery of post-judgment taxes in circumstances = like those=20 presented here.

Section=20 33.52 provides, in relevant part,

(a) Only=20 taxes that are delinquent on the date of a judgment may be = included in the=20 amount recoverable under the judgment by the taxing units that are = parties=20 to the suit.



. = . .=20 .

(d) A=20 taxing unit's claim for taxes that become delinquent after the = date of=20 the judgment is not affected by the entry of the judgment or a tax = sale=20 conducted under that judgment. Those taxes may be collected by any = remedy=20 provided by this title.



Id. =A7=20 33.52(a), (d) (emphasis added).

Section=20 34.01 provides, in relevant part,

(k) The=20 taxing unit to which the property is bid off takes title to the = property=20 for the use and benefit of itself and all other taxing units that=20 established tax liens in the suit. The taxing unit's title = includes all=20 the interest owned by the defendant, including the defendant's = right to=20 the use and possession of the property, subject only to the = defendant's=20 right of redemption. Payments in satisfaction of the judgment and = any=20 costs or expenses of the sale may not be required of the = purchasing taxing=20 unit until the property is redeemed or resold by the purchasing = taxing=20 unit.



(l)=20 Notwithstanding that property is bid off to a taxing unit = under this=20 section, a taxing unit that established a tax lien in the = suit=20 may continue to enforce collection of any amount for which a = former=20 owner of the property is liable to the taxing unit, = including any=20 post-judgment taxes, penalties, and interest, in any = other manner=20 provided by law.



(m) The=20 officer making the sale shall prepare a deed to the purchaser of = real=20 property at the sale, to any other person whom the purchaser may = specify,=20 or to the taxing unit to which the property was bid off. . . .=20



(n) The=20 deed vests good and perfect title in the purchaser or the = purchaser's=20 assigns to the interest owned by the defendant in the property = subject=20 to the foreclosure, including the defendant's right to the = use and=20 possession of the property, subject only to the defendant's right = of=20 redemption . . . .



Id. =A7=20 34.01(k)-(n) (emphasis added). The plain language of sections = 33.52(d) and=20 34.01(l), as amended in 1999, defeats Irannezhad's efforts to = avoid=20 liability for the post-judgment taxes. See id. = =A7 33.52(d),=20 34.01(l). First, section 33.52(d) provides that a taxing unit's = claim to=20 post-judgment taxes "is not affected by the entry of the judgment = or a tax=20 sale conducted under that judgment" and that post-judgment taxes = may be=20 collected following a tax sale by any remedy provided by this = title.=20 Id. =A7 33.52(d). Title I, the title referenced in = section=20 33.52(d), is entitled "Property Tax Code," and this title includes = Chapter=20 33, which is entitled "Delinquency," and Chapter 34, which is = entitled=20 "Tax Sales."=20 (13) = Nothing=20 in Chapters 33 and 34 of the Tax Code indicates that the = provisions=20 contained therein are so narrowly limited so as to apply only to = an=20 original tax sale and not a resale occurring after a property is = struck=20 off to a taxing unit. In fact, Chapter 34 specifically authorizes = both tax=20 sales and tax resales to satisfy tax liens. = See=20 Tex. Tax Code Ann. =A7=A7 34.01-34.23 (Vernon 2001 & = Supp. 2007).=20

Had the=20 Legislature sought to so narrowly limit the provision in section = 33.52(d)=20 that allows a taxing unit to pursue post-judgment taxes unaffected = "by the=20 entry of . . . a tax sale conducted under that judgment," it could = have=20 plainly stated such a limitation. Here, the Deed Under Re-Sale=20 specifically referenced the underlying cause and the original = foreclosure=20 judgment. We conclude that the resale constituted a "tax sale = conducted=20 under [the September 3, 2003] judgment," and, thus, section = 33.52(d)'s=20 provision, preserving a taxing unit's claim to post-judgment taxes = after a=20 tax sale, applied to preserve Aldine's claims for post-judgment = taxes=20 against Irannezhad.

Second,=20 section 34.01(l) provides that "[n]otwithstanding that = property is bid=20 off to a taxing unit under this section, a taxing unit that=20 established a tax lien in the suit may continue to enforce = collection of=20 any amount for which a former owner of the property is liable = to the=20 taxing unit, including any post-judgment taxes, = penalties, and=20 interest, in any other manner provided by law."=20 (14) = Id. =A7=20 34.01(l). We conclude that section 34.01(l) plainly authorizes a = taxing=20 unit, even after a property is struck off to it, to pursue = post-judgment=20 taxes for which a former owner is liable.

Irannezhad=20 complains that the above-cited sections do not apply to tax = resales, and=20 he asserts that we should only apply section 34.05 of the Tax = Code, which=20 is specifically entitled "Resale by Taxing Unit," in determining = if he=20 acquired the property free and clear of any tax liens. Irannezhad = contends=20 that our inquiry is governed by section 34.05(e) which provides, = in=20 relevant part,

(e) . . . .=20 [T]he sheriff or constable selling real property under Subsections = (c) and=20 (d) shall execute a deed to the property conveying to the = purchaser=20 the right, title, and interest acquired or held by each taxing = unit=20 that was a party to the judgment foreclosing tax liens on the = property. The conveyance shall be made subject to any remaining = right of=20 redemption at the time of the sale.



See=20 Tex. Tax Code Ann. =A7 34.05(e) (emphasis added).

We have=20 already rejected Irannezhad's assertion that section 33.52 and = 34.01 apply=20 only to tax sales as opposed to tax resales. Moreover, none of the = above-cited sections of the Tax Code supports Irannezhad's = contention that=20 he acquired the property at the tax resale "free and clear" of any = liens=20 for post-judgment taxes that accrued before the property was = struck off to=20 Aldine. See id. =A7 34.01(n) ("The deed vests good and = perfect=20 title in the purchaser or the purchaser's assigns to the = interest=20 owned by the defendant in the property subject to the = foreclosure . .=20 . .").

In=20 accordance with sections 33.52(d) and 34.01(l), we hold that the = Tax Code=20 authorized Aldine, even after the property was struck off to it, = to pursue=20 recovery of these post-judgment taxes from Irannezhad after the = tax=20 resale.=20 (15) =

We overrule=20 Irannezhad's three issues.

Conclusion

We affirm=20 the judgment of the trial court.




Terry=20 Jennings

Justice


Panel=20 consists of Chief Justice Radack and Justices Jennings and Bland.=20

1. See = Aldine=20 Indep. Sch. Dist. v. Richey Family Trust No. 1, No. = 2001-04514 (151st=20 Dist. Ct., Harris County, Tex.).=20

2. See = Tex.=20 Tax Code Ann. =A7=A7 34.01-34.23 (Vernon 2001 & Supp. 2007); = see also=20 id. =A7 33.53(a), (b) (Vernon 2001) ("If judgment in a suit = to collect=20 a delinquent tax is for foreclosure of a tax lien, the court shall = order=20 the property sold in satisfaction of the amount of the judgment"; = "On=20 application by a taxing unit that is a party to the judgment, the = district=20 clerk shall prepare an order to an officer authorized to conduct = execution=20 sales ordering the sale of the property. . . .").=20

3. We note = that prior=20 to a tax sale, "[i]f the owner pays the amount of the judgment = before the=20 property is sold, the taxing unit shall: (1) release the tax lien = held by=20 the taxing unit on the property; and (2) file for record with the = clerk of=20 the court in which the judgment was rendered a release of the = lien."=20 Id. =A7 33.53(e) (Vernon 2001).=20

4. See = Tex.=20 Tax Code Ann. =A7 34.01 (Vernon Supp. 2007).=20

5. The = property was=20 offered for sale in accordance with section 33.50 of the Tax Code, = and=20 Aldine represents in its briefing that the minimum bid for the = property at=20 the September 2, 2003 tax sale was $52,450, which was the adjudged = value=20 of the property as reflected in the September 19, 2002 judgment. = See=20 Tex. Tax. Code Ann. =A7 33.50 (Vernon 2001). Section 33.50=20 provides,



(a) In a=20 suit for foreclosure of a tax lien on property, the court shall = determine=20 the market value of the property on the date of trial. The = appraised value=20 of the property according to the most recent appraisal roll = approved by=20 the appraisal review board is presumed to be its market value on = the date=20 of trial, and the person being sued has the burden of establishing = that=20 the market value of the property differs from that appraised = value. The=20 court shall incorporate a finding of the market value of the = property on=20 the date of trial in the judgment.



(b) If the=20 judgment in a suit to collect a delinquent tax is for the = foreclosure of a=20 tax lien on property, the order of sale shall specify that the = property=20 may be sold to a taxing unit that is a party to the suit or to any = other=20 person, other than a person owning an interest in the property or = any=20 party to the suit that is not a taxing unit, for the market value = of the=20 property stated in the judgment or the aggregate amount of the = judgments=20 against the property, whichever is less.


(c) The=20 order of sale shall also specify that the property may not be sold = to a=20 person owning an interest in the property or to a person who is a = party to=20 the suit other than a taxing unit unless:


(1) that=20 person is the highest bidder at the tax sale; and


(2) the=20 amount bid by that person is equal to or greater than the = aggregate amount=20 of the judgments against the property, including all costs of suit = and=20 sale.

Id.=20

6. "The = phrase 'struck=20 off' refers to properties purchased by taxing units at a tax sale = when=20 bids are insufficient." Guajardo v. State, No. = 04-04-00554-CV,=20 2005 WL 236881, at *1 n.1 (Tex. App.--San Antonio Feb. 2, 2005, = pet.=20 denied) (mem. op.). "Such properties are said to be 'struck off' = the tax=20 roll while they are in possession of taxing units because such = properties=20 are exempt from taxation." Id. at *1 n.1 (citing = State v.=20 Moak, 146 Tex. 322, 207 S.W.2d 894, 897 (Tex. = 1948)).


Section=20 34.01 of the Tax Code, which authorizes the "striking off" of a = property=20 to a taxing unit, provides,



If a bid=20 sufficient to pay the lesser of the amount calculated under = Subsection (b)=20 or the adjudged value is not received, the taxing unit = that=20 requested the order of sale may terminate the sale. If the = taxing unit=20 does not terminate the sale, the officer making the sale shall bid = the=20 property off to the taxing unit that requested the order of = sale,=20 unless otherwise agreed by each other taxing unit that is a party = to the=20 judgment, for the aggregate amount of the judgment against the = property or=20 for the market value of the property as specified in the judgment, = whichever is less . . . .").



Tex. Tax=20 Code Ann. =A7 34.01(j) (emphasis added).=20

7. Thus, no = taxes=20 accrued for the remainder of 2003, 2004, and a few days in 2005.=20

8. Aldine = asserts that=20 Irannezhad's purchase price of $25,000 was far less than the = adjudged=20 value of the property of $52,450, which is the adjudged value = reflected in=20 the September 19, 2002 judgment. However, as Irannezhad notes, the = judgment signed by the trial court on August 7, 2007, which is the = judgment that is the subject of the instant appeal, reflects an = adjudged=20 market value of the property of $22,485. Neither party explains = this=20 discrepancy.=20

9. See = Tex.=20 Tax Code Ann. =A7 34.05 (Vernon 2001).=20

10. Aldine = identified=20 multiple other Harris County plaintiff taxing units, but all of = these=20 other taxing units subsequently filed an "Intervenor's = Disclaimer,"=20 stating that there were no deliquent ad valorem taxes due. These = taxing=20 units included Harris County, the Harris County Education = Department, the=20 Port of Houston Authority of Harris County, the Harris County = Flood=20 Control District, The Harris County Hospital District, North = Harris=20 Montgomery Community College District, and two Harris County = Emergency=20 Services Districts.=20

11. As all = three issues=20 concern Irannezhad's contention that he purchased the property = free and=20 clear of any liens, we consider these issues together.=20

12. For = example, in his=20 brief, Irannezhad does not dispute that the post-judgment taxes = accrued,=20 but rather contends that these "taxes were part of the resale."=20

13. Title 1 is = entitled=20 "Property Tax Code." See Tex. Tax. Code Ann. tit. 1 = (Vernon 2001=20 & Supp. 2007).=20

14. In support = of its=20 argument that the 1999 amendments to section 34.01(l) authorize = its=20 recovery of delinquent post-judgment taxes against Irannezhad, = Aldine=20 cites the bill analysis for these amendments, which provides that = Section=20 34.01(l),



[a]uthorizes a=20 taxing unit that established a tax lien in the suit to continue = to=20 enforce collection of any amount due from the owner for which a = former=20 owner of the property is liable to the taxing unit, including any=20 post-judgment taxes, penalties, and interest, in any = other manner=20 provided by law, notwithstanding that the property has been bid = off to a=20 taxing unit under this section.



House Ways=20 & Means Comm., Bill Analysis, Tex. H.B. 3549, 76th Leg., R.S. = (1999)=20 (emphasis added).



Aldine also=20 notes that during the 77th legislative session in 2001, bills were = introduced in both the House and Senate attempting to reverse the = effect=20 of the 1999 amendments to sections 33.52(d) and 34.01(l), which=20 specifically authorized a taxing unit to recover post-judgment = taxes even=20 after a property is struck off to it. Senate Bill 880 proposed the = following language to amend section 34.01(l):

(l) All of=20 a taxing unit's existing liens of any character that are not = included and=20 foreclosed in a tax foreclosure judgment or that attach to the = foreclosed property after the signing of the judgment are = extinguished as=20 to that property, and the taxes or other claims secured by those = liens are=20 cancelled and forever barred, if: (1) the taxing unit established = its=20 delinquent tax liens as a participant in the judgment, and (2) the = property is bid off to a taxing unit under Subsection (j) or=20 (o).



Tex. S.B.=20 880, 77th Leg., R.S. (2001) (emphasis added). The bill analysis = for this=20 proposed amendment stated that the amending = language,


Provides=20 that all of a taxing unit's existing liens of any character that = are not=20 included and foreclosed in a tax foreclosure judgment or that = attach to=20 the foreclosed property after the signing of the judgment are = extinguished=20 as to that property, and the taxes or other claims secured by = those liens=20 are canceled and forever barred, given certain conditions. Deletes = text=20 authorizing a taxing unit that established a tax lien in the suit = to=20 continue to enforce collection of any amount for which a former = owner of=20 the property is liable to the taxing unit.


Sen. Comm.=20 On Intergovernmental relations, Bill Anlaysis, Tex. S.B. 880, 77th = Leg.,=20 R.S. (2001) (emphasis added). Senate Bill 880 also contained a = provision=20 to amend section 33.52(d) by adding the language, "[e]xcept as = provided by=20 Section 34.01(l)," at the beginning of the subsection. See id. = A=20 companion bill in the house was offered with language proposing = identical=20 amendments to sections 33.52(d) and 34.01(l). See Tex. H. = B. 490,=20 77th Leg., R.S. (2001). These amendments, if adopted, would have = precluded=20 Aldine from pursuing the recovery it seeks in the instant case. = However,=20 Senate Bill 880 was never enacted into law, and House Bill 490 = became law=20 only after the proposed amending language to sections 33.52(d) and = 34.01(l) was deleted.=20

15. To the = extent that=20 Moak dictates otherwise, then Moak is in = conflict with=20 section 33.52(d) and 34.01(l) and has been superseded by the=20 Legislature.=20

------=_NextPart_000_002D_01C88E05.CD99AB80 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.1stcoa.courts.state.tx.us/resource/opinions/images/icoEMail.gif R0lGODlhFAAPAKIAAAAAgIAAAP///8DAwICAgAAAAAAAAAAAACwAAAAAFAAPAAADNCi63P4wykaq vba4Mrr/ndaITxAM5JI2JrotQCwr7jjVDCnPAq7eKwEHRAwWjshkcsJsShIAOw== ------=_NextPart_000_002D_01C88E05.CD99AB80 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.1stcoa.courts.state.tx.us/resource/images/icons/close.gif R0lGODlhFwAPAMQAAMDAwP//nP/OnPf39+/v5+/e3ufn5+fWxt7e3s7OY6+vMpycAISEhISEAFlN MkpCQkpCOTEhAAAAhAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAACH5BAEA AAAALAAAAAAXAA8AQAVxICCOJMCU6KgMQesGArwYUTouCTMAgzQMBkijYRMtYkgYTLCoFQGLqA74 eIoU0aw2ijBUbYuXEsl0Fh3otNqKYgTZt0Rut/PCF25DQUKQHAxBRCkKIj88IwIJCwcIXyhhLTFj iU1FYZJJSJWWW51mIiEAOw== ------=_NextPart_000_002D_01C88E05.CD99AB80 Content-Type: text/css; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/resource/includes/oca.css .TitleBlue { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .TitleBlueCenter { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: center } .TitleMaroon { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: maroon; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleWhite { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleBlack { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .NavWhite { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.NavWhite:hover { TEXT-DECORATION: underline } .BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } A.BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.BreadCrumbs:hover { COLOR: blue } .TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } .TextJustify { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = black; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: justify } A.TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-DECORATION: underline } A.TextNormal:hover { FONT-WEIGHT: bold } .TextSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow } .TextSmallBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = #000099; FONT-FAMILY: Arial Narrow } .TextSmallJust { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow; TEXT-ALIGN: justify } A.TextSmall { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmallJust { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmall:hover { FONT-WEIGHT: bold } A.TextSmallJust:hover { FONT-WEIGHT: bold } .TextSmallWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = white; FONT-FAMILY: Arial Narrow } .TextWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: white; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif } A.TextWhite { =09 } A.TextWhite:hover { FONT-WEIGHT: bold } .LinksSite { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow; TEXT-DECORATION: none } A.LinksSite { =09 } A.LinksSite:hover { FONT-WEIGHT: bold } .TextNotify { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_002D_01C88E05.CD99AB80--