Opinion
No. 14-04-00859-CV
Supplemental Opinion filed July 20, 2006.
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 03-40164.
Motion for Rehearing Overruled.
Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
SUPPLEMENTAL OPINION
Appellants Houston Independent School District, City of Houston, and Harris County (hereinafter the "Taxing Authorities") have filed a motion for rehearing in this case, contending, among other things that, in addressing their third issue, we overlooked binding precedent from this court, St. Joseph Orthodox Christian Church v. Spring Branch ISD, 110 S.W.3d 477 (Tex.App.-Houston [14th Dist.] 2003, no pet.). According to the Taxing Authorities, the St. Joseph case holds that the application of section 42.09 of the Tax Code deprives the trial court of jurisdiction, contrary to this court's decision on original submission. In their original briefing, the parties did not cite the St. Joseph case, and in our opinion, we did not address this case. As explained below, this case is not on point and does not change our analysis.
In St. Joseph, taxing authorities filed suit against a church to enforce collection of delinquent taxes. See id. at 478. In response to the taxing authorities' motion for summary judgment, the church asserted that it was exempt from taxation, and the church filed a third-party action against the Harris County Appraisal District. See id. The only way that a jurisdictional issue could have arisen in St. Joseph was as to the third-party action because the trial court had jurisdiction over the taxing authorities' enforcement action and the church's alleged defenses thereto. However, this court determined that the church's third-party action was not before the trial court because the church never effected service on the Harris County Appraisal District. See id. at 480.
Although the church labeled this action a "counterclaim," this court noted that the Harris County Appraisal District was not a party in the case when the church asserted this claim; therefore, the "counterclaim" was actually a third-party action. See St. Joseph, 110 S.W.3d at 480.
In the St. Joseph case, the trial court granted summary judgment in favor of the taxing authorities and did not conclude that it lacked subject matter jurisdiction over any claim for relief filed by the church. Id. at 478B79. This court affirmed the trial court's summary judgment on the merits. Id. In noting that the church could not assert its alleged exemption for the first time in a defense to a suit to enforce collection of delinquent taxes, this court stated that "the church had no right to assert, and the trial court had no jurisdiction to consider, the church's claim of entitlement to an exemption." Id. at 479. However, the statement that the trial court lacked jurisdiction was not necessary to the determination of the case and was therefore obiter dictum. Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Furthermore, the St. Joseph case did not cite the Texas Supreme Court's decision in Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000) or the effect of this case on prior section 42.09 cases. Id. at 478B79. The St. Joseph case is not on point and does not conflict with our opinion in this case.
In their motion for rehearing, the Taxing Authorities also contend that this court erred (a) in applying Dubai Petroleum v. Kazi to the facts of this case; and (b) in concluding that the application of the exclusive-remedies provision of Tax Code section 42.09 does not deprive the trial court of subject matter jurisdiction. The additional cases cited in the Taxing Authorities' motion for rehearing are not on point and present no basis to change our analysis in this case. For the reasons stated in our prior opinion, we disagree with the Taxing Authorities' argument on rehearing and conclude that the Texas Supreme Court's opinion in Kazi controls the disposition of this case. See Houston Indep. Sch. Dist. v. 1615 Corp., No. 14-04-00859-CV, 2005 WL 2787279, at *4B6 (Tex.App.-Houston [14th Dist.] Oct. 27, 2005, no pet. h.). Accordingly, we overrule the Taxing Authorities' motion for rehearing.
The Taxing Authorities cite additional cases on rehearing. See, e.g., Czerwinski v. The Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 121B22 (Tex.App.-Houston [14th Dist.] 2002, pet denied) (following Texas Supreme Court's holding that failure to file an age-discrimination complaint with the Texas Commission on Human Rights within 180 days of the alleged discriminatory act, as required by section 21.202 of the Texas Labor Code, deprives the trial court of jurisdiction); MAG-T, L.P. v. Travis Cent. App. Dist., 161 S.W.3d 617, 625B35 n. 9 (Tex.App.-Austin 2005, pet. denied) (analyzing the applicability of five exceptions to exhaustion-of-administrative-remedies requirement, in appeal in which appellant raised only this issue, not addressing section 42.09 of the Tax Code, and indicating in footnote that Kazi opinion made this requirement nonjurisdictional but that precedent overruled by Kazi is still relevant in determining applicability of exception to this requirement).