Date: 03-03-2015

Case Style: Bobie Kenneth Townsend v. Montgomery Central Appraisal District, Montgomery Central Appraisal District, Chief Appraiser Mark Castleschouldt, Appraisal Review Board of Montgomery County, Texas and Appraisal Review Board of Montgomery County, Texas Chairman Terry Bowie

Case Number: 14-14-00103-CV

Judge: Tracy Christopher

Court: Texas Court of Appeals, Fourteenth Court of Appeal from 359th District Court of Montgomery County

Plaintiff's Attorney: Bobie Kenneth Townsend for Bobie Kenneth Townsend

Defendant's Attorney: Joseph T. Longoria and Robert A. Mott for Appraisal Review Board of Montgomery County, Texas, Montgomery Central Appraisal District, Chief Appraiser Mark Castleschouldt, Montgomery Central Appraisal District, and Appraisal Review Board of Montgomery County, Texas Chairman Terry Bowie

Description: In this case concerning a homeowner’s tax protest, the trial court dismissed
most of the homeowner’s claims for lack of subject-matter jurisdiction and granted
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summary judgment to the appraisal district on the homeowner’s remaining claim
regarding his 2011 property taxes. The homeowner challenges these rulings, and
additionally argues that the trial court erred in failing to set other matters for
submission or for an oral hearing. Finding no reversible error, we affirm.
I. BACKGROUND
Bobie Kenneth Townsend has filed suit three times in the 359th District
Court to assert claims concerning the appraisal of his home in Montgomery
County. The first two cases were appealed to the Ninth Court of Appeals. See
Townsend v. Montgomery Cent. Appraisal Dist., No. 09-10-00394-CV, 2011 WL
3207955 (Tex. App.—Beaumont July 28, 2011, pet. denied) (mem. op.)
(“Townsend I”); Townsend v. Appraisal Review Bd. of Montgomery Cnty., Tex.,
No. 09-11-0089-CV, 2011 WL 3847430 (Tex. App.—Beaumont Aug. 31, 2011,
pet. denied) (mem. op.) (“Townsend II”). The appeal of the third case was
transferred to this court, but because some of the same issues were addressed in the
prior appeals, we will briefly describe them as well.1
A. Townsend I
Townsend purchased a home in Montgomery County in 2004. Townsend I,
2011 WL 3207955, at *1. The Montgomery Central Appraisal District (“the
District”) had given the prior owners a three-year variance to allow them to repair
the house, but denied Townsend’s request to extend the variance. Id. Townsend
protested the District’s determination of the home’s value in 2005, 2006, 2008, and
2009, but did not timely seek judicial review of any of the resulting final orders.
See id. at *3.
1 We must decide this case in accordance with the precedent of the Ninth Court of
Appeals under principles of stare decisis if our decision otherwise would have been inconsistent
with our sister court’s precedent. See TEX. R. APP. P. 41.3.
3
In 2009, Townsend sued the District and chief appraiser Mark
Castleschoultd in the 359th District Court of Montgomery County. See id. at *1.
The trial court dismissed the claims for lack of subject-matter jurisdiction. See id.
at *5. The appellate court affirmed, explaining that all of the claims were based on
Townsend’s contention that the home was not properly appraised, and that
Townsend had failed to exercise his right to judicial review of the final orders
issued in the tax protests. See id. at *3. The court also held that because
Townsend’s claims against Castleschoultd concerned the chief appraiser’s
statutory duties of determining a home’s market value for the District’s records,
they were not claims of ultra vires conduct over which the trial court could
exercise jurisdiction. Id. at *4–5.
B. Townsend II
In 2010, Townsend again filed a tax protest, arguing that his property should
not be taxed and that the District wrongfully denied his request for an exemption.
See Townsend II, 2011 WL 3847430, at *1. The Appraisal Review Board (“the
Board”) lowered the appraised value but continued to maintain the property on the
appraisal roll without granting the requested exemption. Id. Townsend timely
sought judicial review, and although he named the Board as a defendant, he did not
make the District a party as required by the Tax Code. Id. at *2. The trial court
accordingly dismissed the case for lack of jurisdiction. Id. On appeal, Townsend
argued that the Board’s final order did not sufficiently explain how he was required
to serve the pleading he filed in the district court to obtain judicial review. Id. at
*3. The appellate court explained that this information is not required by section
41.47(e) of the Tax Code, which specifies what must be included in an appraisal
review board’s final order. See id. Rather, information on serving the pleading is
found in section 42.21(b) of the Tax Code. See id.
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C. The present case (“Townsend III”)
The present case concerns Townsend’s 2011 tax protest. In this protest, he
again complained that the variance granted to the prior owners was not extended to
him. He additionally asserted that the property should not be taxed in Montgomery
County, and that an exemption was denied, modified, or cancelled. After a
hearing, the Board issued its final order. It held that the appraisal records were
incorrect because the District’s stated value for the property was above market
value. It accordingly ordered the property’s value for tax year 2011 changed to
$124,900, which is the same value assigned to the property in 2010. See id. at *1.
Townsend again filed suit in the same Montgomery County district court.
Just as in Townsend II, he named the Board as a defendant; as in Townsend I, he
named Castleschouldt and the District as defendants. To these defendants, he
added the Board’s chairman Terry Bowie. He included some of the same
allegations raised in the prior lawsuits.
A year after Townsend filed the lawsuit, the trial court issued an order on its
own motion in which it construed Townsend’s pleading as a petition for review of
his 2011 taxes and dismissed all of his other claims for lack of subject-matter
jurisdiction. The District then filed a motion for traditional and no-evidence
summary judgment on Townsend’s 2011 tax protest. Townsend also filed a
motion for summary judgment, but the record does not show that it was ever set for
a hearing.
The trial court granted the District’s summary-judgment motion, and
Townsend brought this appeal.
II. TIMELINESS OF APPEAL
As a threshold issue, the District contends that Townsend’s appeal is
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untimely, and thus, this court lacks jurisdiction. We disagree.
By filing a notice of appeal, a party invokes the appellate court’s
jurisdiction. See TEX. R. APP. P. 25.1(b). In an ordinary appeal from a final
judgment, the notice of appeal must be filed within thirty days after the judgment is
signed; however, if any party timely takes certain actions—such as filing a motion
for new trial—then the notice of appeal must be filed within ninety days after the
judgment is signed. See TEX. R. APP. P. 26.1(a)(1).
Townsend filed a notice of appeal eighty days after the trial court signed the
final judgment. The District asserts that the notice was untimely because
Townsend did not move for a new trial, and thus, Townsend was required to file
the notice of appeal within thirty days of the judgment.
Contrary to the District’s contentions, Townsend timely filed a motion for
new trial. Less than two weeks after the trial court signed the judgment, Townsend
filed a motion styled, “Plaintiff’s Motion for Vacating Final Summary Judgment.”
In it, he argued that he had raised a “fact question to be resolved by a jury,” and he
asked the trial court to vacate the judgment “and reschedule the pre-trial
conference to finalize matters still pending before trial.” The District nevertheless
contends that Townsend did not file a motion for new trial, apparently because the
document containing the request was styled as a motion to vacate, which is not
explicitly mentioned in Rule 26.1 as a motion that extends the time to appeal. But
when determining whether a motion has such an effect, we consider not only the
document’s title, but also the relief sought. See Ryland Enter., Inc. v.
Weatherspoon, 355 S.W.3d 664, 665–66 (Tex. 2011) (per curiam). Because
Townsend timely filed a motion in which he asked for a new trial, he had ninety
days in which to file a notice of appeal, and thus, this appeal is timely.
Having determined that we have jurisdiction to do so, we turn now to the
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matters raised by Townsend on appeal.
III. ISSUES PRESENTED
Townsend presents nine issues for review, which we have rearranged into
three broad categories. Because “subject-matter jurisdiction is essential to a
court’s power to decide a case,”2 we first consider Townsend’s assertion that the
trial court erred in dismissing some of his stated causes of action for lack of
subject-matter jurisdiction. Next, we will analyze his complaints about the
summary judgment. Finally, we will address any remaining complaints about the
way that proceedings were conducted in the trial court.
IV. SUBJECT-MATTER JURISDICTION
The existence of subject-matter jurisdiction presents a question of law,
which we review de novo. City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.
2013) (per curiam). After reviewing the seven causes of action described in
Townsend’s petition, we hold that the trial court did not err in characterizing the
pleading as a petition for review of Townsend’s 2011 tax protest and in dismissing
all other claims for lack of jurisdiction. Specifically, we conclude that
(a) Townsend lacked standing to assert one of the causes of action, and (b) the
remaining causes of action were governed by the procedures set forth in the
Property Tax Code, under which the trial court had jurisdiction to consider only
Townsend’s appeal of his 2011 tax protest.
A. Standing
A trial court has no subject-matter jurisdiction over a claim by a plaintiff
who lacks standing to assert it. Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566,
580 (Tex. 2013). The standing inquiry focuses on whether a party has a sufficient
2 Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000).
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relationship with the claim so as to have a “justiciable interest” in its outcome. See
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). A party has
standing to assert a claim if it has suffered a distinct injury, and the judicial
determination sought will determine a real controversy. Brown v. Todd, 53 S.W.3d
297, 305 (Tex. 2001). A plaintiff suing on his own behalf lacks standing to assert a
claim in which he has no enforceable right or interest. See Rodarte v. Investeco
Grp., L.L.C., 299 S.W.3d 400, 407 (Tex. App.—Houston [14th Dist.] 2009, no
pet.); AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 649 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied).
In his fifth cause of action, Townsend asked the district court to remove
Castleschouldt from his position as the District’s chief appraiser and to remove
Bowie from the Board. Our legislature has enacted statutes identifying those
empowered to remove a person from a position as a district’s chief appraiser or as
a member of an appraisal review board. See TEX. TAX. CODE ANN. § 6.05(c)
(West Supp. 2014) (providing that the chief appraiser “serves at the pleasure of the
appraisal district board of directors”); id. § 6.41 (identifying the means and
grounds for removing a member of an appraisal review board). Townsend does
not contend that he is among those with a statutory right to have either defendant
removed from his respective position. Townsend also is not a person empowered
to initiate a quo warranto proceeding. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 66.002 (West 2008) (providing that a quo warranto proceeding is initiated by
“the attorney general or the county or district attorney of the proper county”); see
also Bute v. League City, 390 S.W.2d 811, 815 (Tex. Civ. App.—Houston 1965,
no writ) (“Quo warranto is not available to a private citizen in his private capacity,
although it may be brought upon facts related and verified by him.”). We therefore
conclude that Townsend lacks standing to assert these claims, and thus, the trial
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court properly dismissed them for lack of subject-matter jurisdiction.
B. Matters Governed by the Property Tax Code
Because Townsend’s remaining claims concern the appraisal of his property
and the determination of his property-tax protests, the trial court’s subject-matter
jurisdiction over them is determined by the Property Tax Code. If the Property
Tax Code authorizes a particular ground of protest, then the Code’s procedures are
the property owner’s exclusive means of adjudicating that ground as a basis for tax
relief. See TEX. TAX CODE ANN. § 42.09(a) (West 2008). The Property Tax Code
authorizes a property owner to protest the actions listed in Tax Code section
41.41(a), including: the property’s appraised value, its unequal appraisal, its
inclusion on the appraisal records, the whole or partial denial of an exemption,
“identification of the taxing units in which the owner’s property is taxable,” or
“any other action of the chief appraiser, appraisal district, or appraisal review
board that applies to and adversely affects the property owner.” Id. § 41.41(a).
A property owner is entitled to appeal an order of the appraisal review board
determining a tax protest by the property owner as provided by subchapter C of
chapter 41 of the Tax Code.3 Id. § 42.01(a) (West Supp. 2014). To obtain this
appellate review, the petition for review must be filed within sixty days after the
party received notice that a final order in the tax protest has been entered. Id. A
trial court lacks subject-matter jurisdiction to hear an untimely petition for review.
See id. § 42.21(a); Townsend I, 2011 WL 3207955, at *3. And although a property
owner may protest and appeal tax decisions based on any action of the chief
appraiser or the Board, the Property Tax Code’s exclusive procedures authorize a
petition for review to be filed only against the District, not against the chief
3 A property owner may appeal other matters listed in Tax Code section 42.01(a), but
these other matters are not involved in this case. See TEX. TAX CODE ANN. § 42.01(a).
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appraiser, the Board, or the Board’s members. See TEX. TAX CODE ANN.
§ 42.21(b); see also Townsend I, 2011 WL 3207955, at *5 (affirming the trial
court’s dismissal of Townsend’s claims against Castleschoultd for lack of
jurisdiction). Thus, to the extent that Townsend’s remaining claims raise a ground
of protest authorized under the Property Tax Code, the trial court has subjectmatter
jurisdiction over the part of the complaint that is both timely and is brought
against the proper party.4
We accordingly begin our analysis by determining whether each cause of
action falls within the broad scope of matters that can be asserted in a timely
property-tax protest. If so, then the claim is subject to the restrictions set forth in
the Property Tax Code. If such a claim is asserted against the District and is
timely—that is, if it concerns Townsend’s 2011 tax protest—then the trial court
properly treated the cause of action as a petition for review of Townsend’s 2011
tax protest. To the extent that the claim is untimely or asserted against the wrong
party, then the trial court properly dismissed it for lack of subject-matter
jurisdiction.
Townsend identifies his first cause of action as “Article I, Section 2 of the
4 In its order of dismissal, the trial court did not specify which parties and claims were
dismissed, but instead stated that
[T]he Court considered the pleadings on file and determined that all of Plaintiff’s
causes of actions and attempted causes of action lacked jurisdiction, save and
except construing Plaintiff’s Original Petition as a Petition for Review pursuant to
the Texas Tax Code as to the 2011 taxes assessed on Plaintiff’s property made the
basis of this suit.
THEREFORE, all other causes and attempted causes of action in
Plaintiff’s Original Petition are hereby dismissed for lack of subject matter
jurisdiction with the exception of Plaintiff’s Petition for Review of the 2011 taxes
assessed by the Defendant(s).
Because the Code authorizes a petition for review to be filed only against the District, we
construe this order to be a dismissal of the claims against Castleschouldt, Bowie, and the Board.
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Texas Constitution.” He contends that the District “has no authority over the
plaintiff or plaintiff’s property except by plaintiff’s consent.” In connection with
this cause of action, Townsend states that the district court “has the jurisdiction to
order the defendants to remove plaintiff’s private property from the appraisal roll.”
Thus, in this cause of action, Townsend challenged the District’s inclusion of his
property on the appraisal roll. Because the Property Tax Code authorizes this
ground of protest, its procedures are the exclusive means of adjudicating this
complaint. To the extent that Townsend challenges the decision on his 2011 taxes,
the trial court properly construed this as a timely petition for review; to the extent
that Townsend attempts to bring an untimely challenge to an earlier tax decision or
attempts to assert the claim against a party other than the District, the trial court
properly dismissed the cause of action.
The same is true of Townsend’s second, third, and fourth causes of action.
Although his second cause of action appears under the heading “Quo Warranto,” it
merely restates his first cause of action. Townsend again asserts that “the
defendants lack authority and discretion to place plaintiff’s non-income producing
private property on the . . . appraisal roll without plaintiff’s consent.”5 In his third
cause of action, Townsend alleged that his property is not subject to taxation, so
that by including Townsend’s property, Castleschouldt falsified the appraisal roll.6
5 Although these allegations appear under the heading, “Quo Warranto,” they do not
constitute a quo warranto proceeding. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 66.001–.003
(West 2008).
6 Under the same heading, Townsend also asserted that his property had defects affecting
its market value and that the District and Castleschouldt appraised properties unequally;
however, he attached and incorporated his notice of protest, which does not include a challenge
to the appraisal on those grounds. Moreover, he admits in his appellate brief that his protest
“involved four issues . . . . that were transferred to the 359th District court by appeal” from the
Board’s final order. As in his notice of protest, he identifies these as (1) “Property should not be
taxed in Montgomery County”; (2) “Property should not be taxed in this appraisal district or in
one or more taxing units”; (3) “Exemption was denied, modified or canceled”; and (4) “Variance
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Townsend refers to his fourth cause of action as “Texas Legislative Intent,” under
which he alleges, “It is the Texas legislative intent that plaintiff retain his right to
private property and not be placed on the appraisal roll without plaintiff’s consent.”
He also asserts that the property has no taxable situs. These allegations, too, are
grounds of protest within the scope of section 41.41 of the Tax Code. The trial
court therefore did not err in retaining these claims only to the extent that
Townsend asserted a claim against the District for review of his 2011 tax protest,
and in dismissing the remainder of the claims for lack of subject-matter
jurisdiction.
Townsend refers to his sixth cause of action as “entrapment.” Under this
heading, he alleges that he purchased his property in 2004 because the District and
Castleschouldt entrapped him into purchasing the property by failing to advise him
in advance that if he purchased the property, taxes would be assessed at the
appraised market value, and he would not be given the same variance that had been
given to the seller. In effect, Townsend is contesting the District’s denial of his
request to extend the variance and the resulting increase in the appraised value of
his property. These complaints concern the denial of a variance in appraised value,
which is a ground of protest within section 41.41’s scope; however, Townsend
complains of actions taken many years ago. Because the complaint is untimely,
the trial court properly dismissed it. See Townsend I, 2011 WL 3207955, at *3
(holding that Townsend’s judicial challenges to the tax decisions of 2005, 2006,
2008, and 2009 were time-barred, and thus, appropriately dismissed for lack of
subject-matter jurisdiction).
Finally, Townsend raised a seventh cause of action, which he refers to as
“change the final order format.” In this section of the petition, he asks the trial
Denied.” Complaints about market value and unequal appraisal were not mentioned.
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court to order the Board to change the format of its final order, primarily to explain
that the Board and the District are separate and to explain how to perfect service of
an appeal from a tax protest; however, the state legislature already has determined
what information must be included in an appraisal review board’s order. See TEX.
TAX CODE ANN. § 41.47 (West Supp. 2014). Information about perfecting service
is not required to be included; as Townsend acknowledges elsewhere in his
complaint, information about perfecting service is located in section 42.21 of the
Property Tax Code. See id. § 42.21; also Townsend II, 2011 WL 3847430, at *3
(pointing out both statutes in the first case in which Townsend raised this
complaint). Moreover, the only injury that Townsend alleges from the formatting
of the Board’s order is that “[l]ast year, Plaintiff was damaged by [the Board] not
giving plaintiff clear and concise language of whom to serve process to.”
Townsend’s untimely complaint regarding his 2010 tax protest was adjudicated in
Townsend II, and our sister court already has affirmed the trial court’s dismissal of
the claim for want of subject-matter jurisdiction.
In sum, the Property Tax Code’s procedures and deadlines apply to all of the
claims that Townsend has standing to assert. The trial court accordingly did not err
in retaining Townsend’s claims against the District only to the extent that they
could be construed as a timely request for judicial review of his 2011 tax protest,
and in dismissing the remainder of the claims against the District and against all
other parties for lack of subject-matter jurisdiction. We accordingly overrule this
issue. Our disposition of this issue makes it unnecessary for us to review
Townsend’s remaining appellate complaints concerning the dismissed claims.7
7 To the parties, who are familiar with the sequence of the issues presented in
Townsend’s brief, this means that we overrule Townsend’s second issue, rendering his fourth
and ninth issues moot. It also renders moot all appellate complaints concerning defendants other
than the District, and claims other than Townsend’s 2011 tax protest.
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V. SUMMARY JUDGMENT
In his third, fifth, and seventh issues, Townsend contends that the trial court
erred in granting the District’s motion for summary judgment and denying his own
summary-judgment motion.
A. Standard of Review
We review summary judgments de novo. Boerjan v. Rodriguez, 436 S.W.3d
307, 310 (Tex. 2014) (per curiam).
A movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Such a motion must stand or
fall on the grounds expressly presented in the motion, not on grounds that may be
gleaned from briefs or summary-judgment evidence. McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). If the movant initially
establishes a right to summary judgment on the issues expressly presented in the
motion, then the burden shifts to the nonmovant to present to the trial court any
issues or evidence that would preclude summary judgment. See City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). We consider all
the evidence in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
In a no-evidence motion for summary judgment, the movant represents that
there is no evidence of one or more essential elements of the claims for which the
nonmovant bears the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte
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Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The burden then shifts to
the nonmovant to present evidence raising a genuine issue of material fact as to the
elements specified in the motion. See Mack Trucks, Inc., 206 S.W.3d at 582. We
sustain a no-evidence summary judgment when (1) there is a complete absence of
evidence of a vital fact, (2) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence
conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168
S.W.3d 802, 810 (Tex. 2005).
B. The trial court did not err in granting the District’s summary-judgment
motion on traditional and no-evidence grounds.
We begin our review with the motion that the trial court granted. The
District sought summary judgment on both traditional and no-evidence grounds,
and the trial court stated in its order that it granted the motion on both types of
grounds.
At the outset of its motion, the District stated that the trial court had
dismissed all of Townsend’s claims except his contention that the property should
not be taxed in Montgomery County, in the District, or indeed, taxed at all.
Townsend’s contention could be characterized either as a claim that the property
simply is not taxable by the District, or as a claim that Townsend is entitled to an
exemption. Because the way in which the claim is characterized determines who
bears the burden of proof, the District moved for traditional summary judgment on
the issue on which it bore the burden of proof, and sought no-evidence summary
judgment on the issue for which Townsend bore the burden.
1. The District met its traditional summary-judgment burden to
establish that the property is taxable by the District.
In the “traditional” portion of its summary-judgment motion, the District
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argued that the subject property is taxable by the District because it consists of land
and improvements that are physically located in Montgomery County, Texas. See
TEX. TAX CODE ANN. § 11.01(a), (b) (West 2008) (providing that “[t]his state has
jurisdiction to tax real property if located in this state” and “[a]ll real and tangible
personal property that this state has jurisdiction to tax is taxable unless exempt by
law”); id. § 21.01 (“Real property is taxable by a taxing unit if located in the unit
on January 1, except as provided by Chapter 41, Education Code.”). This is an
issue on which the District bore the burden of proof. See Oake v. Collin County,
692 S.W.2d 454, 455 (Tex. 1985) (explaining that a county’s taxing entities must
prove that the real property it seeks to tax is situated within its geographical
boundaries). It accordingly was an appropriate subject for traditional summary
judgment. This portion of the motion was supported by the affidavit of the
District’s deputy chief appraiser and the District’s property-data sheet, appraisal
cards, and a photograph of the property, which together establish that the subject
property consists of land and improvements within Montgomery County’s
boundaries. The burden therefore shifted to Townsend to come forward with
evidence sufficient to raise a genuine issue of material fact about the character of
the property or its location.
Townsend did not file anything styled as a response to the District’s
summary-judgment motion. Although he filed a document styled as a motion for
summary judgment, it was not set for submission or hearing before the trial court
granted the District’s summary-judgment motion. Moreover, Townsend’s motion
contains only a list of other documents that he asserts support the motion; he states
no grounds in the motion either for granting summary judgment to himself or for
denying it to the District. See McConnell, 858 S.W.2d at 341 (explaining that
grounds for granting summary judgment must be expressly stated in the motion,
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and grounds for avoiding summary judgment must be expressly stated “by written
answer or other written response to the motion and are not expressly presented by
mere reference to summary judgment evidence”).
Townsend also filed a document styled as “Plaintiff’s Notice of Objection to
Defendant’s ‘No Evidence’ Motion for Summary Judgment and Traditional
Motion for Summary Judgment.” To the extent that its contents can be construed
as actual objections, complaints regarding them are waived because Townsend
failed to obtain a ruling on them. See TEX. R. APP. P. 33.1(a). Assuming that the
argument sections of the document can be construed as a response to the summaryjudgment
motion and not merely as objections, Townsend still has failed to raise a
genuine issue of material fact. He instead argued that his real property in
Montgomery County is not taxable unless the District proves either that Townsend
has rendered the property for taxation, or that (a) Townsend is a “taxpayer” as
defined in the Multistate Tax Compact,8 and (b) he is a “person” as that term is
used in the Tax Code.9 He contends that because the District has not proved any of
these things, his property is not taxable. But the District was not required to prove
8 By its terms, the Multistate Tax Compact concerns the tax obligations of organizations
and people that act as business entities in more than one state. See TEX. TAX CODE ANN.
§ 141.001 (West 2008). Townsend does not contend that he personally acts as a multistate
business entity.
9 Townsend insists that as used in the Tax Code, the term “person” excludes human
beings and applies only to organizations. He does not explain why the definition of “person” is
relevant, given that it is “property” that is taxed, not the owner. See TEX. TAX CODE ANN.
§ 11.01. In any event, he is mistaken; though the word “person” is not defined in the Tax Code,
human beings fall within the ordinary meaning of this term. Furthermore, “person” is used to
mean a natural person many times in the Tax Code, as can be seen by the statutory references to
“a disabled person,” “a person’s lifetime,” “a person’s spouse,” etc. See also TEX. TAX CODE
ANN. § 1.03 (West 2008) (providing that the Code Construction Act applies to the Texas Tax
Code); TEX. GOV’T CODE ANN. § 311.005(2) (West 2013) (“‘Person’ includes a corporation,
organization . . . and any other legal entity.”) (emphasis added); id. § 311.005(13) (“‘Includes’
and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use
of the terms does not create a presumption that components not expressed are excluded.”).
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that any of these things are true, nor could Townsend avoid summary judgment by
proving that any of these things were false. As we have explained, the District was
required to prove only that the property is real property located within
Montgomery County. Townsend admitted in his summary-judgment objections
“that the physical boundaries of the subject property are within the physical
boundaries of Montgomery County, thereby claiming a trap effect which gives
some taxing units an interest in Plaintiff’s property.” The District therefore met its
burden to prove that the real property is taxable in Montgomery County.
2. Townsend failed to meet his summary-judgment burden to raise a
fact question about whether his property was exempt.
The District sought no-evidence summary judgment on the question of
whether the real property was exempt from taxation. This is an issue on which the
the person claiming the exemption bears the burden of proof; thus, contrary to
Townsend’s arguments, it is an appropriate question to resolve through a noevidence
motion for summary judgment. See Bullock v. Nat’l Bancshares Corp. of
Tex., 584 S.W.2d 268, 271–72 (Tex. 1979) (explaining that a claimant bears the
burden to establish entitlement to a statutory exemption). Because Townsend
identified no exemption that was wrongfully denied in the 2011 tax year, the trial
court properly granted summary judgment on this issue.
3. Texas Rule of Civil Procedure 91a does not apply.
Despite the foregoing, Townsend argues that the trial court violated Texas
Rule of Civil Procedure 91a.3 by granting the District’s motion for summary
judgment. See TEX. R. CIV. P. 91a.3 (setting forth deadlines within which a certain
type of motion to dismiss must be filed and ruled upon). Rule 91a governs a
specific type of motion to dismiss. See TEX. R. CIV. P. 91a.1 (explaining that, with
certain exceptions, “a party may move to dismiss a cause of action on the grounds
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that it has no basis in law or fact”). Motions for summary judgment, on the other
hand, are governed by Texas Rule of Civil Procedure 166a. The trial court granted
the District’s motion for summary judgment; thus, the provisions of Rule 91a do
not apply. Cf. TEX. R. CIV. P. 91a.9 (“This rule is in addition to, and does not
supersede or affect, other procedures that authorize dismissal.”).
Because Townsend failed to respond with evidence sufficient to raise a
question of fact on the questions of whether his property is taxable by the District
or is exempt, the trial court did not err in granting the District’s summary-judgment
motion. We accordingly overrule Townsend’s issues regarding summary
judgment.
VI. CONDUCT OF PROCEEDINGS
In Townsend’s remaining issues, he asserts that the trial court erred or
abused its discretion in failing to set a variety of motions on the submission docket
or in failing to see that the trial court’s staff did so; however, the record does not
reflect that the trial court refused to allow any motion to be set for submission.
Townsend also contends that the trial court erred in granting the District’s
motion for summary judgment before conducting an oral hearing on certain
matters. He filed a “Motion for An Open Hearing” in which he noted that the trial
court’s scheduling order provided that the case would be dismissed for want of
prosecution at the pretrial conference on October 24, 2013 “if there is no
announcement of ready with all preliminary matters addresse[d].” He asked for an
open hearing to be scheduled “as soon as possible”10 on a dozen matters that he
described as “preliminary matters pending to be resolved before trial as per the
Scheduling Order.” After Townsend filed this request, the District filed its motion
10 Capitalization normalized.
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for summary judgment, and the record does not show that the matters identified by
Townsend were set for an oral hearing before the trial court granted the District’s
summary-judgment motion.
We cannot conclude that the trial court reversibly erred in failing to set these
matters for an oral hearing before the date on which the District’s summaryjudgment
motion was heard by submission. Townsend’s request for a hearing
shows that he sought to have the twelve matters he listed heard “as soon as
possible,” but before the pretrial conference on October 24, 2013, whereas the
District set its summary-judgment motion to be heard by submission on September
16, 2013. We cannot tell from record before us that the trial court could have held
an oral hearing addressing a dozen matters before the date on which the District’s
summary-judgment motion was set for submission. Moreover, Townsend neither
specified that he sought an oral hearing before September 16, 2013, nor requested a
continuance of the hearing on the District’s summary-judgment motion.11
We accordingly overrule these issues.
VII.

Outcome: CONCLUSION
Finding no reversible error, we affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
11 Townsend’s summary-judgment motion was among the matters on which he requested
an oral hearing, but as previously mentioned, the motion is a list of other documents, devoid of
argument.

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