CAUSE NO. 06-2079-CV

RONALD F. AVERY, § IN THE DISTRICT COURT OF

Plaintiff, §

v. §

MS. TAVIE MURPHY, § GUADALUPE COUNTY, TEXAS

GUADALUPE COUNTY TAX OFFICE, §

and SEGUIN INDEPENDENT SCHOOL §

DISTRICT, §

Defendants. § 25th JUDICIAL DISTRICT

DEFENDANTS TAVIE MURPHY and the GUADALUPE COUNTY TAX OFFICE’S

PLEA TO THE JURISDICTION

Defendants Tavie Murphy and the Guadalupe County Tax Office file this Plea to the Jurisdiction and in support thereof would show the Court as follows:

INTRODUCTION

This case involves Plaintiff’s attempt to challenge the assessment of ad valorem property taxes by Tavie Murphy and the Guadalupe County Tax Office for the benefit of the SISD on the grounds that such taxes are unconstitutional. See Plaintiff’s Original Petition at ¶ 6. Plaintiff, who currently owes and has refused to pay pending school property taxes, alleges that such taxes assessed by the Guadalupe County Tax Office on behalf of SISD violate Article VII, Section I and Article VIII, Section 1-e of the Texas Constitution. See id. at ¶¶ 17–47. As the relief sought in his lawsuit, Plaintiff demands that Tavie Murphy, the Guadalupe County Tax Office, and SISD pay him monetary damages of approximately $201,000. See id. at ¶¶ 48–49. As set forth below, Plaintiff’s claims against Tavie Murphy and the Guadalupe County Tax Office should be dismissed for want of subject matter jurisdiction.

II.

ARGUMENT AND AUTHORITIES

A. Standard For Granting A Plea To The Jurisdiction.

A movant may file a plea to the jurisdiction on any ground in which it claims the court has no subject matter jurisdiction. See City of Austin v. L.S. Ranch, Ltd., 970 S.W. 2d 750, 752 (Tex. App.– Austin 1998, no pet.). The burden is on the plaintiff to allege facts affirmatively showing that the trial court has subject matter jurisdiction. See Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999). A court may look beyond the pleadings and consider appropriate evidence to determine if jurisdiction exists. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Courts should be particularly concerned with jurisdictional challenges asserted by governmental entities because the high cost of defending lawsuits is ultimately borne by the public. See L.S. Ranch, Ltd., 970 S.W.2d at 753. In the present case, Plaintiff’s Original Petition fails to satisfy his burden of alleging facts necessary to confer subject matter jurisdiction on this Court for each of the claims listed above.

B. Plaintiff Lacks Standing To Bring His Claims.

As a general rule, an individual taxpayer does not have the right to bring a suit to contest government decision making. See Burks v. Yarbrough, 157 S.W.3d 876, 879 (Tex. App.–Houston [14^th Dist.] 2005, no pet.) (citing Bland Indep. Sch. Dist., 34 S.W.3d at 555)). In Texas, a citizen has no standing as a taxpayer unless he alleges an injury that is distinct and separate from that which he may have incurred as a member of the general public. See Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550 (Tex. App.–Ft. Worth 1994, no writ); Parker v. City of San Antonio, 609 S.W.2d 877,879 (Tex. Civ. App.–San Antonio 1980, no writ); Tuck v. Texas Power & Light Co., 543 S.W.2d 214, 215 (Tex. Civ.App.–Austin 1976, writ ref’d. n.r.e.).

In the case at bar, Plaintiff’s allegations concerning Tavie Murphy and the Guadalupe County Tax Office’s purported unconstitutional imposition of school property taxes fails to identify any individual injury or damage that is any different from members of the general public. Plaintiff makes no attempt to distinguish his purported injury – the collection of school property taxes – from any other ad valorem taxpayer. Indeed. Plaintiff makes specific reference to his belief that the state of Texas should avoid “all ad valorem property taxes,” thereby suggesting that his injury is in common with other taxpayers. See Plaintiff’s Original Petition at ¶ 11. Plaintiff further alleges that Texas Governor Rick Perry’s recent task force studying property taxes was meant to “fool the people” into thinking that school property taxes would be lowered and to “cool the public disappointment” with the Legislature’s recent enactment of new school funding legislation. See Plaintiff’s Original Petition at ¶ 12. Plaintiff’s own allegations underscore his view that all ad valorem taxpayers are purportedly being subject to unconstitutional taxes. Thus, it cannot be said that Plaintiff has asserted any distinguishable injury from other taxpayers that would grant him standing to bring his claims in this lawsuit.

Plaintiff cites no authority, as none exists, to show that an ad valorem taxpayer has any direct standing to challenge the taxing authority of a government entity. Instead, Plaintiff relies on dicta from the Texas Supreme Court’s decision in West Orange-Cove Consolidated Indep. Sch. Dist. v. Neeley, 176 S.W.3d 746 (Tex. 2005) in which it theorized that an individual could have standing to challenge the school property tax system. This Court should note, however, that nothing in the Supreme Court’s decision specifically stated that a taxpayer still did not have to satisfy the general Texas legal requirement of demonstrating a particularized injury distinguishable from other members of the general public in order to establish standing. Therefore, West Orange-Cove does nothing to change the requirements to establish standing.

Accordingly, Plaintiff’s status in this case as an ad valorem taxpayer does not distinguish him in any meaningful way from other members of the general public. In sum, Plaintiff, having failed to plead the facts demonstrating a justiciable interest different from that of the public in general, lacks standing to bring suit and his claims must be dismissed for want of subject matter jurisdiction.

C. Plaintiff’s Claims Are Partially Barred By Limitations.

The upshot of Plaintiff’s claims in this lawsuit are that the Defendants, through the exercise of their taxing authority, have deprived Plaintiff of his personal property (money) through forcing him to pay what he believes are unconstitutional school property taxes. Specifically, Plaintiff complains that the “unconstitutional school taxes have been collected, at least since 1992, … and [Plaintiff] has owned the subject property since 1995 and paid around $40,000 plus about $27,000 in back taxes ‘owed’ before he acquired it.” Plaintiff’s Original Petition at ¶ 9. Plaintiff demands that Defendants refund these amounts as the relief sought in his lawsuit, along with punitive damages.

Essentially, Plaintiff is asserting claims for an unlawful taking of personal property, which have a two-year statute of limitations under Texas law. See Tex. Civ. Prac. & Rem. Code § 16.003(a). Plaintiff filed suit on December 7, 2006, which means that he may only pursue claims from December 7, 2004 through the date of filing. Plaintiff, however, complains of paying purportedly unconstitutional property taxes since 1995, well beyond the applicable statute of limitations. Therefore, any claim for refund of property taxes assessed and/or paid between 1995 through December 6, 2004, is barred by limitations and should be dismissed by this Court for want of subject matter jurisdiction.

D. Plaintiff Has Failed To Exhaust His Administrative Remedies.

In his Original Petition, Plaintiff complains of the specific tax rates charged on his property by SISD through the County Tax Assessor’s office, and the County Tax Assessor/Collector Tavie Murphy. See Plaintiff’s Original Petition at ¶ 16. Specifically, Plaintiff complains that the lower ad valorem property tax rate set by SISD only resulted in a total of $1.93 less tax for 2005 versus 2004. See id. As explained below, Plaintiff has failed to exhaust his administrative remedies with respect to this claim, thereby depriving the Court of subject matter jurisdiction over his claims.

To the extent that Plaintiff is complaining of the actual tax rate and amount assessed by the Defendants, the exclusive remedy for such claims is provided by Chapters 41 and 42 of the Texas Tax Code. Under the Tax Code, a property owner has a right to an administrative protest before the appraisal review board for “any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner.” Tex. Tax Code § 41.41(a)(9). To be entitled to a hearing and determination of a protest, the property owner initiating the protest must file a written notice of the protest with the appraisal review board in accordance with the procedural requirements set out in Section 41.44 of the Tax Code. See id. at §§ 41.44(a), (d). The appraisal review board must then determine the protest and make its decision by written order. See id. at § 41.47(a). If the property owner is then dissatisfied by the determination of the board, he is then entitled to seek judicial review as provided in Chapter 42 of the Tax Code. See id. at §§ 42.01, 42.21(a).

Failure to exhaust these exclusive administrative remedies precludes judicial review of a property owner’s challenge to the appraisal agency’s actions and also deprives the property owner of judicial review. See Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992) (holding that, as a rule, a party must exhaust his administrative remedies before seeking judicial review of an agency action); Denton Central Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 264 (Tex. App.–Fort Worth 2003, pet. denied), cert. denied, 125 S.Ct. 106 (1994) (finding that judicial review of a tax assessment is not available unless all administrative remedies have been pursued to the fullest extent). Here, it is undisputed that Plaintiff did not initiate the Chapter 41 process for his complaints concerning the tax rates assessed and taxes charged against his property by Defendants. Plaintiff acknowledged his failure to do so in his recent pleading titled “Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District,” wherein he admitted, “Plaintiff will admit that one of his complaints could have been addressed by [Chapter 41].” Given his failure to avail himself of the mandated Chapter 41 administrative protest, his claim challenging the tax rates and assessments by Defendants should be dismissed for want of subject matter jurisdiction.

E. Plaintiff’s Claim For A Refund Of Prior Property Taxes Paid Is Barred

By The “Voluntary Payment Rule.”

As noted above, the relief Plaintiff seeks in this lawsuit is the refund of $67,000 of previously paid school property taxes (along with punitive treble damages). See Plaintiff’s Original Petition at ¶¶ 17, 48–49. As Plaintiff alleges, “[t]he unconstitutional school taxes have been collected, at least since 1992 as evidenced by a letter from Governor Ann Richards (Exhibit K) and [Plaintiff] has owned the subject property since 1995 and paid around $40,000 plus about $27,000 in back taxes “owed” before he acquired it. This totals to somewhere around 67,000 in actual damages.” See id. at ¶ 17. However, the relief Plaintiff seeks is barred from the outset by the “voluntary payment rule.”

In Texas, the “voluntary payment rule” provides that a party who has voluntarily paid a tax has no claim for repayment even if the tax was illegal. See State v. Conn. Gen. Life Ins. Co., 382 S.W.2d 745, 746–47 (Tex. 1964); Nat’l Biscuit Co. v. State, 135 S.W.2d 687, 692 (Tex. 1940); Sheldon v. Jasper Indep. Sch. Dist., 768 S.W.2d 884, 885 (Tex. App.–Beaumont 1989, writ denied); Tex. Nat’l Bank of Baytown v. Harris County, 765 S.W.2d 823, 824-25 (Tex. App.–Houston [14th Dist.] 1988, writ denied); Salvaggio v. Houston Indep. Sch. Dist., 752 S.W.2d 189, 193 (Tex. App.–Houston [14th Dist.] 1988, writ denied). Here, Plaintiff seeks a refund of property taxes he voluntarily paid from 1995 to the present. Thus, even if it is determined that the District’s previous levy of taxes in this case was somehow illegal – which it was not at the time of assessment and payment – the Plaintiff’s claim is still barred by the voluntary payment rule. Given Plaintiff’s failure to state a valid claim, his claim for a refund of property taxes should be dismissed.

F. Plaintiff Cannot Recover Monetary Damages For Alleged Violations

of the Texas Constitution.

It is well-settled under Texas law that there is no private cause of action for monetary relief under the Texas Constitution, whether sought from a state agency or an individual official. See City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995); Univ. of Tex. System v. Courtney, 946 S.W.2d 464, 471 (Tex. App.–Fort Worth 1997, writ denied). In the present case, the sole relief Plaintiff seeks is monetary damages in the amount of $201,000 from the Defendants, for their purported violations of Article VII, Section 1 and Article VIII, Section 1-e of the Texas Constitution. See Plaintiff’s Original Petition at ¶¶ 48–49. Plaintiff asserts no other claims in his lawsuit save for the purported constitutional violations. Given that Texas law does not recognize Plaintiff’s cause of action, his claim should be dismissed for want of subject matter jurisdiction.

WHEREFORE, PREMISES CONSIDERED, Defendants Tavie Murphy and the Guadalupe County Tax Office request that this Court grant their Plea to the Jurisdiction and dismiss Plaintiff’s claims in their entirety with prejudice for want of subject matter jurisdiction, and that Defendants be awarded all such other and further relief to which they may show themselves justly entitled.

Respectfully submitted,

McCREARY, VESELKA, BRAGG & ALLEN, P.C.

700 Jeffrey Way (Suite 100)

Round Rock, Texas 78664-2425

Phone (512) 323-3200

Fax (512) 323-3294

By:_______________________________

Kirk Swinney

State Bar No. 19588400

Matthew Tepper

State Bar No. 24029008

Noe Reyes

State Bar No. 24043460

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Plea to the Jurisdiction by Defendants Tavie Murphy and the Guadalupe County Tax Office has been forwarded to all counsel of record by fax and to the Pro Se Plaintiff by Email, facsimile, and certified mail, return receipt requested, on the 28th day of February, 2007, properly addressed as follows:

Ronald F. Avery, Pro Se

1955 Mount Vernon Street

Seguin, Texas 78155

CM/RRR #7006-3450-0003-3883-6727

Fax (830) 372-5534

Email: taphouse@sbcglobal.net

Ricardo Lopez

Feldman and Rogers

517 Soledad Street

San Antonio, Texas

Fax (210) 406-4100

____________________________________

Matthew Tepper