Opinion
NUMBER 13-11 -00751 -CV
07-18-2013
THORA O. ROURK, ET AL., Appellants, v. CAMERON APPRAISAL DISTRICT, Appellee.
On appeal from the 357th District Court
of Cameron County, Texas.
OPINION
Before Justices Rodriguez, Benavides and Longoria
Opinion by Justice Benavides
By one issue, appellants, Thora O. Rourk, and others similarly situated, appeal the trial court's denial of attorney's fees in this property taxation case. We reverse and remand.
Named appellants are Thora O. Rourk, Elva Broker, Clara and Harry Schmoekel, Robert and Joan Niles, Carroll A. and Lois Iverson, William W. and Frances Wolfe, Terry and Jean Lathangue, A.J. and Betty Roy, Mabel Cheetham, Ryle Andrews, Larry and Mary Gustin, Lowell and Winona Krenger, George and Fran Wrasse, Donald E. and Virginia M. Sadler, Sheldon I. and Margurite C. Ross, Jewell and Martha Groover, Vassie Miller, Barry W. Hewitt and Sheila A. Hewitt, and Mike and Monica MacWilliam.
I. BACKGROUND
This opinion is a companion appeal with John J. Boll, et al. v. Cameron Appraisal Dist., Cause No. 13-11-00750-CV.
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This case is before us for a third time. See Rourk v. Cameron Appraisal Dist., 131 S.W.3d 285 (Tex. App.—Corpus Christi 2004), reversed and remanded, 194 S.W.3d 501 (Tex. 2006) (Rourk I); Rourk v. Cameron Appraisal Dist., 305 S.W.3d 231 (Tex. App.—Corpus Christi 2009, pet. denied) (Rourk II).
In Rourk II, we concluded that the appellants' travel trailers and recreational vehicles were not improvements, nor real property, but instead, tangible personal property that was exempt from taxation. See Rourk II, 305 S.W.3d at 236-39; see also TEX. TAX CODE ANN. § 11.14 (West 2008). Accordingly, we reversed the trial court's judgment to the contrary and remanded the case to determine whether the appellants were entitled to attorney's fees from appellee, Cameron Appraisal District (the Appraisal District).
On remand, appellants filed a motion for attorney's fees. After holding a hearing, the trial court denied appellants' motion for attorney's fees under the tax code and and/or the Texas Uniform Declaratory Judgment Act. This appeal followed.
II. ATTORNEY'S FEES
By their sole issue, appellants assert that the trial court erred by denying their motion for attorney's fees.
Texas law does not allow the recovery of attorney's fees unless authorized by statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006) (recognizing this principle as the "American Rule"). As such, we first examine whether appellants are entitled to attorney's fees under the tax code. The tax code provides the appropriate remedies structure for contesting an appraisal district's denial of an exemption—first, at the local level, see TEX. TAX CODE ANN. § 41.41 (West 2008); and second, through judicial review. See id. § 42.21 (West Supp. 2011). Furthermore, section 42.29 of the tax code expressly limits the recovery of attorney's fees in successful taxation appeals to: (1) excessive appraisals, see id. § 42.25 (West 2008); (2) unequal appraisals, see id. § 42.26 (West 2008); and (3) correction of the appraisal rolls. See id. § 25.25 (West Supp. 2011). See generally id. § 42.29 (West Supp. 2011).
In this case, the trial court found that appellants were not entitled to attorney's fees under the tax code despite appellants' successful appeal from the Appraisal District's denial of their claimed exemptions under section 11.14 of the tax code. The trial court erred in making this finding because a taxpayer who successfully protests the denial of a partial exemption under section 41.41(4) can demand attorney's fees under section 42.29 because the appraised value of the property for tax purposes will be lower with the exemption than it was without the exemption. See Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 79 (Tex. 1992) (providing examples of which types of protests amount to an excessive appraisal); see also TEX. TAX CODE ANN. §§ 42.25, 42.29.
The next question in our analysis turns on whether the language of section 42.29 makes the award of attorney's fees for excessive appraisals mandatory or discretionary. Section 42.29(a) provides the following relevant language:
A property owner who prevails in an appeal to the court under Section 42.25 or 42.26 or in an appeal to the court of a determination of an appraisal review board on a motion filed under Section 25.25 may be awarded reasonable attorney's fees.TEX. TAX CODE ANN. § 42.29(a) (emphasis added). While the statute's use of the phrase "may be awarded" could be interpreted as giving the trial court discretion to award attorney's fees, we do not adopt that viewpoint. Instead, we read the provision as mandatory like other statutes which provide that "a party may recover" attorney's fees. See Zapata County Appraisal Dist. v. Coastal Oil & Gas Corp., 90 S.W.3d 847, 853-54 (Tex. App.—San Antonio 2002, pet. denied); Aaron Rents, 212 S.W.3d at 671-75. This reading is consistent with the Bocquet decision in which the Texas Supreme Court recognized that statutes which state that a party "may recover" attorney fees are not discretionary. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (citing D.F.W. Christian Television, Inc. v. Thornton, 933 S.W.2d 488, 490 (Tex. 1996) (applying TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008.)).
Accordingly, we conclude that the trial court erred by denying appellants' request for attorney's fees. Appellants' sole issue is sustained.
III. CONCLUSION
We reverse the trial court's denial of appellants' motion for attorney's fees. We remand this cause to the trial court for the determination of the amount of attorney's fees to be awarded pursuant to section 42.29 of the tax code.
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GINA M. BENAVIDES,
Justice