Opinion
08-20-00122-CV
04-08-2022
IRAAN-SHEFFIELD INDEPENDENT SCHOOL DISTRICT, Appellant, v. PECOS COUNTY APPRAISAL DISTRICT and Kinder Morgan Production Co., LLC, Individually and as Successor in Interest to Kinder Morgan Production Co., LP, Appellees.
ATTORNEY FOR APPELLANT: D. Brent Lemon, Law Office Of D. Brent Lemon, 1201 Elm Street, Suite 4880, Dallas, TX 75270-2035. ATTORNEYS FOR APPELLEES: James R. Evans, 1214 E. 7th Street, Austin, TX 78702, B. Jack Shepherd, Lynch, Chappell & Alsup PC, 300 N Marienfeld, Ste. 700, Midland, TX 79701.
ATTORNEY FOR APPELLANT: D. Brent Lemon, Law Office Of D. Brent Lemon, 1201 Elm Street, Suite 4880, Dallas, TX 75270-2035.
ATTORNEYS FOR APPELLEES: James R. Evans, 1214 E. 7th Street, Austin, TX 78702, B. Jack Shepherd, Lynch, Chappell & Alsup PC, 300 N Marienfeld, Ste. 700, Midland, TX 79701.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
GINA M. PALAFOX, Justice
This appeal arises from an ad valorem tax dispute between appellant Iraan-Sheffield Independent School District , a taxing unit, and a mix of appellees that include the Pecos County Appraisal District and Kinder Morgan Production Co., LLC, Individually and as Successor in Interest to Kinder Morgan Production Co., LP. (collectively, Kinder Morgan). Iraan-Sheffield ISD appeals from the trial court's dismissal of its claims with prejudice following its grant of Kinder Morgan's motion combining together a rule 12 motion to show authority and a plea to the jurisdiction.
For brevity and simplicity, we will refer to the taxing unit as "Iraan-Sheffield ISD" or "the district."
See Tex. R. Civ. P. 12 (providing for motion requiring attorney to show authority to act).
Finding error, we reverse the trial court's order and remand this cause for further proceedings.
I. BACKGROUND
In October 2017, Iraan-Sheffield ISD signed a contract (the Lemon Contract) hiring attorney D. Brent Lemon "to represent [its] interests in pursuing claims against Kinder Morgan, Inc. ... for the inaccurate valuation of property of Kinder-Morgan resulting in inadequate and insufficient ad valorem tax payments to the Iraan-Sheffield Independent School District ...." The Lemon Contract set counsel's compensation at 20% of gross recoveries received by Iraan-Sheffield ISD from any source related to or paid on behalf of Kinder Morgan related in any way to the claim of inadequate and insufficient ad valorem tax payments.
As represented by counsel, Iraan-Sheffield ISD filed a challenge with the Pecos County Appraisal Review Board (ARB) challenging the valuation of certain mineral interest real property owned by Kinder Morgan. The ARB denied that challenge and, on September 12, 2019, Iraan-Sheffield ISD filed a petition for review and writ of mandamus to pursue an administrative appeal from that denial. Iraan-Sheffield ISD specifically alleged that "mineral interest real property of Kinder Morgan in Pecos County was erroneously and incorrectly excluded and omitted from appraisal for years 2019, and 2013-2018."
Approximately four and a half months later, on January 24, 2020, Kinder Morgan filed a pleading titled, "Kinder Morgan's and Pecos County Appraisal District's motion to show authority and plea to the jurisdiction," alleging that counsel for Iraan-Sheffield ISD had been "unlawfully engaged to bring this tax ferret lawsuit on a contingent fee basis." Kinder Morgan asserted the Lemon Contract was void under Texas law. Given that circumstance, it further argued that, because the contract hiring counsel was void, attorney Lemon lacked authority to file the petition on Iraan-Sheffield ISD's behalf, and the trial court lacked subject matter jurisdiction because no proper petition was filed within the statutorily required time period.
Iraan-Sheffield ISD filed a response in which it objected that it was not given timely notice of the hearing under rule 12 of the Texas Rules of Civil Procedure. It also asserted defenses to the motion to show authority including waiver and laches. On the merits of the motion, Iraan-Sheffield ISD argued that Lemon was not a tax ferret and that he had both authority and permission to represent Iraan-Sheffield ISD in the litigation.
The trial court heard Kinder Morgan's motion to show authority and plea to the jurisdiction on February 5, 2020, at which time it overruled Iraan-Sheffield ISD's objection that it was not given sufficient notice of the hearing. The court heard argument from both sides and admitted eight exhibits offered by Iraan-Sheffield ISD, including the Lemon Contract and two affidavits by Iraan-Sheffield ISD's superintendent, Michael Meek.
The first Meek affidavit states that Iraan-Sheffield ISD engaged Lemon "relative to the investigation of possible exclusions or omissions of mineral interest real property from the tax rolls in Pecos County resulting in possible ad valorem taxes due on mineral interest real property." It further states, in relevant part, that Iraan-Sheffield ISD engaged and authorized Lemon:
• "... to pursue and obtain information and documents as to Pecos County mineral interest real property in a judicial or administrative proceeding pursuant to a lawful subpoena. TEX. TAX CODE § 22.27(b)(1)."
• "... to collect any outstanding delinquent taxes on mineral interest real properties believed to have resulted from property having been excluded or omitted, whether in toto or ab initio , from appraisal. TEX. TAX CODE § 22.27(b)(7)."
• "... [to be] responsible for auditing, monitoring, or reviewing the operations of the Pecos County Appraisal District to the extent necessary to identify and correctly value any mineral interest real property in Pecos County to determine if any property was excluded or omitted, whether in
toto or ab initio , from appraisal. TEX. TAX CODE § 22.27(b)(8)."
The second Meek affidavit states that Iraan-Sheffield ISD engaged Lemon "relative to the collection of any outstanding delinquent taxes on mineral interest real properties of Kinder Morgan believed to have resulted from property having been excluded or omitted, whether in toto or ab initio , from appraisal." It further states that Iraan-Sheffield ISD authorized Lemon "to prosecute all possible claims and to fully represent the District in all aspects of the issues in [certain] claims and litigation[.]"
Other evidence submitted by Iraan-Sheffield ISD shows that it had made inquiry to the Pecos County Appraisal District concerning Kinder Morgan's renditions as early as March 2015 (over two-and-a-half years before Lemon was retained).
In its brief, Iraan-Sheffield ISD discusses additional documents concerning its earlier investigations into Kinder Morgan's renditions. These documents were not before the trial court and will not be considered by this Court.
Neither party presented any live testimony. The trial court ruled from the bench in Kinder Morgan's favor and, the following day, signed an order granting the combined motion to show authority and plea to the jurisdiction. The trial court's order dismissed Iraan-Sheffield ISD's claims with prejudice.
Iraan-Sheffield ISD filed a motion for new trial, which was overruled by operation of law. It also filed a request for findings of fact and conclusions of law.
Responding to the request for findings, the trial court noted it had reached determinations on the combined motion and plea based on uncontested facts, with the exception that certain of Iraan-Sheffield ISD's defenses raised fact issues which the court resolved against it. The court then entered findings of fact essentially stating that Iraan-Sheffield ISD had not established its defenses. Specifically, concerning the defenses of waiver and laches, the court found that Iraan-Sheffield ISD failed to show prejudice, neither from the timing of the hearing nor from Kinder Morgan's delay in filing its motion. In other words, the court found Iraan-Sheffield ISD failed to show that any delay in the filing of the motion was unreasonable in the circumstances.
In its conclusions of law relating to the motion to show authority, the court concluded:
• "The engagement between the Taxing Unit and Mr. Lemon is a tax-ferret engagement."
• "As a governmental entity, the Taxing Unit can exercise only those powers that the Legislature has expressly or impliedly conferred upon it."
• "Any action taken by the Taxing Unit in absence of Legislative authorization is void."
• "No Texas law expressly or impliedly authorizes the Taxing Unit to enter into a tax-ferret engagement or any engagement such as the one the Taxing Unit entered into with Mr. Lemon."
• "The Taxing Unit did not have authority to enter into the engagement with Mr. Lemon, and that engagement is void."
• "Mr. Lemon does not have authority to prosecute this suit on behalf of the Taxing Unit."
Concerning the plea to the jurisdiction, the court concluded:
• "The Taxing Unit purported to appeal the appraisal review board's decision by purporting to file a Petition
in this Court within 60 days of that decision."
• "The Taxing Unit's purported appeal was prosecuted by Mr. Brent Lemon under an engagement that is not authorized under Texas law and is void."
• "Texas law does not authorize the Taxing Units to appeal the appraisal review board's decision through a void engagement."
• "The Taxing Unit's Petition is void and of no effect."
• "To date, the Taxing Unit has not filed a valid Petition from the appraisal review board's decision."
• "The Taxing Unit did not timely appeal the decision of the appraisal review board."
• "This Court lacks subject-matter jurisdiction over this lawsuit."
Next, Iraan-Sheffield ISD filed objections contending the trial court's findings of fact were conclusory and its conclusions of law were erroneous. It requested numerous additional specific findings but the court did not issue any further findings. Iraan-Sheffield ISD now appeals the order of dismissal.
II. ISSUES ON APPEAL
Iraan-Sheffield ISD presents three issues on appeal. In its first issue, the district contends the trial court abused its discretion and committed reversible error in granting the motion to show authority and plea to the jurisdiction. Along with a general assertion of error, the first issue includes sub-arguments asserting the following:
(A) that Kinder Morgan purposefully concealed material evidence proving the "tax ferret" assertion was completely false;
(B) that the motion to show authority was waived as untimely or barred by laches;
(C) that Lemon had authority to represent Iraan-Sheffield ISD; and
(D) that Iraan-Sheffield ISD had express and implicit authority to hire Lemon on a contingency fee basis.
In its second and third issues, Iraan-Sheffield ISD asserts the trial court erred by making conclusory findings of fact and refusing to make specific, additional findings, as requested, and by granting the plea to the jurisdiction despite not having stricken the district's pleadings.
We address the motion to show authority separate and apart from the plea to the jurisdiction.
III. DISCUSSION
A. The Motion to Show Authority
In its first issue, Iraan-Sheffield ISD contends the trial court abused its discretion in granting Kinder Morgan's motion to show authority which asserted the contract between Iraan-Sheffield ISD and attorney Lemon amounted to an impermissible "tax ferret" contract not properly approved by state officials. Resolving this issue requires a brief historical overview of such contracts and the laws which govern these arrangements.
1. Standard of Review
Rule 12 of the Texas Rules of Civil Procedure provides that a party may challenge the authority of an attorney in a pending lawsuit by filing a sworn written motion "stating that he believes the suit or proceeding is being prosecuted or defended without authority." TEX. R. CIV. P. 12. In addition to questioning whether an attorney has permission or authority from the party he or she purports to represent, the rule may also be employed to question whether the party has authority to hire the attorney. Gulf Reg'l Educ. Television Affiliates v. Univ. of Houston , 746 S.W.2d 803, 809 (Tex. App.—Houston [14th Dist.] 1988, writ denied) ; see Angelina Cnty. v. McFarland , 374 S.W.2d 417, 423 (Tex. 1964).
In response to a motion to show authority, the challenged attorney must appear before the court and show the authority to act. Id. The challenged attorney bears the burden of proof "to show sufficient authority to prosecute or defend the suit on behalf of the other party." TEX. R. CIV. P. 12 ; see In re Sassin , 511 S.W.3d 121, 125 (Tex. App.—El Paso 2014, orig. proceeding). If the challenged attorney fails to sustain this burden, the court "shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears." TEX. R. CIV. P. 12.
A trial court's ruling on a motion to show authority is reviewed for an abuse of discretion. In re Guardianship of Benavides , 403 S.W.3d 370, 373 (Tex. App.—San Antonio 2013, pet. denied). "A trial court abuses its discretion if it acts without reference to any guiding rules and principles or clearly fails to analyze or apply the law correctly." Id. at 373-74 (citing City of Dallas v. Vanesko , 189 S.W.3d 769, 771 (Tex. 2006) ; Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985) ). "But a trial court has no discretion in determining what the law is or applying law to facts." Pressley v. Casar , 567 S.W.3d 327, 333 (Tex. 2019) (internal quotation marks omitted); see Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). For this reason, conclusions of law are reviewed de novo. City of Austin v. Whittington , 384 S.W.3d 766, 788 (Tex. 2012) ; BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002).
2. Applicable Law
a) White v. McGill
In 1938, the Supreme Court of Texas considered whether a contract entered between El Paso County and various individuals relating to the assessment for taxation of personal property was void for not having been approved by the Comptroller and the Attorney General of the State of Texas. White v. McGill , 131 Tex. 231, 114 S.W.2d 860, 861 (1938). The Court described the contract as "a ‘tax ferret contract,’ under the terms of which the tax ferrets agreed to perform certain duties in the way of pointing out property for taxation." Id. The terms of the contract provided that the "tax ferrets" agreed "to point out to the Tax Assessor and Collector of El Paso County, ... personal property which the owner or owners ... have either failed or refused to assess their taxes for the year 1937, or years prior thereto, and such property is not on the County tax rolls and has never been discovered or found by the said Tax Assessor and Collector of El Paso County and placed on said rolls ...." Id.
The tax ferrets were to receive "a fee of fifteen (15) per cent of the full amount of State and County taxes actually collected on such personal property as has been pointed out by them and assessed ...." Id. But if the State Comptroller or Attorney General refused to permit the payment of a percentage of State taxes collected, then the fee would be "twenty-five (25) per cent of the full amount of the County taxes actually collected on such personal property as has been pointed out by them and assessed ...." Id. at 861-62. The State Comptroller and Attorney General failed to approve the contract and, as a result, the tax ferrets limited their claim to twenty-five percent of the county taxes collected. Id. at 862. In this factual context, the Supreme Court engaged in a review of the use of tax ferret contracts. It noted that, under prior law, a county commissioners court could legally contract for the collection of delinquent taxes without the approval of the Comptroller and Attorney General. Id. Many counties, however, entered into contracts "which shocked the public conscience as being unfair and exorbitant." Id. Nevertheless, the contracts were upheld under the existing statutes, including former article 7335 of the Texas Revised Civil Statutes. Id. Responding to the public outcry, the Legislature enacted article 7335a, in 1930, which limited the compensation under contracts "in connection with the collection of delinquent taxes" to fifteen percent of the amount collected, required that such contracts be approved by both the State Comptroller and the Attorney General, and provided that any contract made in violation of the statute is void. Id. at 862.
The Supreme Court noted that "[t]he Legislature has the sole power to provide for the collection of delinquent taxes and to fix the compensation to be paid for such services. It is also true that the commissioners’ courts derive their power to execute contracts with respect to the collection of delinquent taxes exclusively from the statutes." Id. at 863. The court determined that the contract before it was one "in connection with the collection of delinquent taxes" and, thus, was subject to article 7335a. Id. Because the contract between individuals and El Paso County was not approved by the State Comptroller and the Attorney General, as statutorily required, it was held to be void. Id.
b) Marquart v. Harris County
Shortly after White was decided, the Galveston Court of Appeals addressed a contract that had, as one of its major purposes, "to discover and place on the rolls for taxation property which had theretofore escaped taxation." Marquart v. Harris Cnty. , 117 S.W.2d 494, 501 (Tex. App.—Galveston 1938, writ dism'd). Like in White , the Marquart court determined that the contract was one "in connection with the collection of delinquent taxes" and was thus subject to article 7335a. Also, as in White , the contract at issue was not approved by the State Comptroller or the Attorney General and was held to be void. Id.
c) 2000 Attorney General Opinion
In 2000, the Office of the Attorney General of Texas (OAG) issued an opinion in response to an inquiry about the "[l]egality of a business that locates property omitted from the appraisal rolls for a percentage of the amount of tax generated for a local taxing unit." Tex. Att'y Gen. Op. No. JC-0290 (2000). In answering that inquiry, the OAG explained that "[a] taxing unit other than a home-rule municipality has, by its very nature, only those powers that the constitution or statutes expressly confer or those necessarily implied from the express powers." Id. at *2. It concluded that a business such as the one inquired about is not illegal, but that "no taxing unit, including a home-rule municipality, may contract with a private entity to locate property omitted from the appraisal rolls on a contingent fee basis" because "[n]o statute expressly authorizes a taxing unit to enter a contingent fee contract in these circumstances." Id.
In its analysis, the OAG stated that the type of contract at issue, "wherein a private entity contracts with a taxing unit to locate property omitted from the tax rolls, is known as a tax ferret contract." Id. at *2. It noted that "[j]udicial opinions issued before the 1979 adoption of the Tax Code determined that a contingent fee, tax ferret contract relates to ‘the collection of delinquent taxes’ and that a taxing unit might enter one in strict compliance with applicable law." Id. at *3 (citing White , 114 S.W.2d at 863 ; Marquart , 117 S.W.2d at 501 ). But because the law was substantially amended since the tax ferret cases were decided, those cases were not dispositive of the issue raised. Id.
The OAG then determined that no statute then in effect expressly or impliedly authorized a taxing unit to enter a contingent fee tax ferret contract. Id. at *4. It concluded that, "[i]n light of the legislative policy against a taxing unit entering a contingent fee contract, authority to do so should not be implied." Id. at *5. And "[b]ecause there is no such express authority, a taxing unit may not enter a contingent fee, tax ferret contract." Id.
d) Kinder Morgan SACROC, LP v. Scurry County
And finally, the Supreme Court of Texas recently considered the tax ferret issue, but only to a limited extent, in a dispute with nearly the same parties as those litigating here except as to the taxing entities involved. In Kinder Morgan SACROC, LP v. Scurry County , 622 S.W.3d 835, 838-39 (Tex. 2021), several taxing units filed petitions before the Scurry County Appraisal Review Board (ARB) challenging the appraised value of mineral interest property owned by Kinder Morgan. Id. at 839. After the ARB denied the challenge petitions, the taxing units timely appealed to the district court, naming the appraisal district and Kinder Morgan as defendants. Id. Kinder Morgan eventually filed a motion to dismiss under the Texas Citizens Participation Act (TCPA), arguing the taxing units’ live petition implicated Kinder Morgan's constitutional right to speak freely and petition the government. Id. at 840-41. The taxing units responded by asserting that Kinder Morgan had filed its TCPA motion to dismiss outside the 60-day filing deadline. Id. at 841. After the trial court denied the motion as untimely, Kinder Morgan filed an interlocutory appeal. Id. The court of appeals affirmed the trial court's denial of the motion. Id. Kinder Morgan then filed a petition for review with the Supreme Court, which the taxing units followed with a response. Id. In replying, Kinder Morgan raised a new issue for the first time questioning the subject-matter jurisdiction of the suit apart from the timeliness of the TCPA motion at issue. Id.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001 -.011.
As a threshold matter, Kinder Morgan's reply contended the taxing units attorney had been employed under an alleged "tax ferret contract" that was purportedly void because it provided for compensation on a contingent-fee basis without approval from appropriate state officials. Id. Kinder Morgan thus argued the effect of the purportedly void contract was that all services by the attorney that were provided under the contract, including filing the petition for judicial review, were similarly void and without effect. Id. In sum, Kinder Morgan argued that no appeal from the ARB's order was timely perfected under the prevailing tax code and, as a result, the trial court's jurisdiction had not been timely invoked. Id.
Because the tax ferret issue was raised for the first time after the case had reached the highest court, the Supreme Court determined it could only consider that issue to the limited extent of determining whether a jurisdictional impediment existed such that it barred the suit in its entirety. Id. at 845. Assuming without deciding the merits of the issue, the Court determined that, even if the attorney contract was void as an impermissible tax ferret agreement, that circumstance alone would not, in any event, nullify the taxing units bona fide attempt to invoke the trial court's jurisdiction over the appeal from the ARB's order denying the challenge petition. Id. at 845-46 (citing Grand Prairie Independent School District v. Southern Parts Imports, Inc. , 813 S.W.2d 499, 500 (Tex. 1991) )("a court of appeals may not dismiss an appeal when the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error."). To the extent the attorney contract could properly be characterized as defective, the Court found that an appeal could not be dismissed without affording the taxing units a reasonable opportunity to refile the necessary perfecting instrument. Id. at 847. Thus, the Court found no jurisdictional impediment existed to reaching the merits of the TCPA issue, even without deciding the tax ferret issue. Id.
3. Analysis
a) The Lemon Contract
Relying on White and Marquart , Iraan-Sheffield ISD contends the definition of a tax ferret contract is limited to one in which a private entity is engaged to identify property not previously on the tax rolls and is compensated on a contingency basis solely for identifying such new property. It argues that, because Kinder Morgan's property was already on the tax rolls (although undervalued, allegedly), Lemon was not retained to identify "new" property and so the Lemon Contract could not be a tax ferret contract.
As earlier noted, the court in White characterized the contract before it as "a ‘tax ferret contract,’ under the terms of which the tax ferrets agreed to perform certain duties in the way of pointing out property for taxation." 114 S.W.2d at 861. And, while the facts of White reveal that the engagement at issue was intended to identify personal property that had not previously been discovered by the tax assessor-collector and thereafter placed on the tax rolls, the opinion does not state that that is the only circumstance in which a contract may be deemed to be a tax ferret contract. Similarly, the court in Marquart described the contract before it as one "to locate personal property, which had not theretofore been assessed, so that such property could be placed on the current [tax] roll," and noted its similarity to the tax ferret contract in White. 117 S.W.2d at 502. But the Marquart court also did not limit the definition of a tax ferret contract to one involving property that had never been placed on the tax rolls.
Relying on the 2000 OAG opinion, Kinder Morgan asserts that a tax ferret contract encompasses not only property that has never been placed on the tax rolls, but property that has been "omitted" by virtue of being undervalued. See Tex. Att'y Gen. Op. No. JC-0290 (2000) (tax ferret contract is one in which a private entity contracts with a taxing unit to locate property "omitted" from the tax rolls). Kinder Morgan argues the Lemon Contract is a tax ferret contract because attorney Lemon was retained to identify its mineral interest real property that was purportedly excluded or omitted from the tax rolls by virtue of being undervalued as a result of taxpayer fraud.
We agree with Kinder Morgan that a tax ferret contract is not limited to one in which a private party is hired to identify property that has wholly escaped taxation by virtue of having been previously undiscovered by the tax appraiser. As Texas courts recognize, property may be "omitted" from the tax rolls and thus escape taxation by virtue of undervaluation resulting from taxpayer fraud. See Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd. , 555 S.W.3d 29, 50 (Tex. 2018) ; In re ExxonMobil Corp. , 153 S.W.3d 605, 613 (Tex. App.—Amarillo 2004, orig. proceeding) ; Beck & Masten Pontiac-GMC, Inc. v. Harris Cnty. Appraisal Dist. , 830 S.W.2d 291, 294-95 (Tex. App.—Houston [14th Dist.] 1992, writ denied). Engaging a private party to identify property omitted from the tax rolls because of such undervaluation involves the same policy concerns as engaging a private party to identify property that has been wholly omitted. Thus, we find no principled reason to differentiate between the two for purposes of defining a tax ferret contract.
The question remains, however, whether the Lemon Contract at issue here, qualifies as an impermissible tax ferret contract. The language of the contract states that Lemon is retained to represent Iraan-Sheffield ISD's interests in pursuing claims against Kinder Morgan "for the inaccurate valuation of property of Kinder-Morgan resulting in inadequate and insufficient ad valorem tax payments to [Iraan-Sheffield ISD]." The second Meek affidavit explains that Iraan-Sheffield ISD engaged Lemon "relative to the collection of any outstanding delinquent taxes" believed to have been omitted from appraisal, and authorized Lemon "to prosecute all possible claims and to fully represent the District in all aspects of the issues in [certain] claims and litigation[.]" In addition, Iraan-Sheffield ISD presented evidence that it had begun investigating the possibility that Kinder Morgan property was omitted due to undervaluation over two years before it entered the Lemon Contract.
This evidence indicates that Lemon was retained to pursue legal action ultimately designed to collect taxes on that omitted property. Other evidence, however, indicates that Lemon's role was not so limited. The first Meek affidavit shows that Lemon was also engaged in an investigative role and was authorized not only to litigate rendition issues that had already been identified, but also "to identify and correctly value any mineral interest real property in Pecos County to determine if any property was excluded or omitted ... from appraisal." (Emphasis added.)
The two Meek affidavits are not inconsistent or contradictory, one merely builds on the other. For this reason, we agree with the trial court that no fact issue exists requiring resolution. We further agree that, insofar as the Lemon Contract includes engaging Lemon to identify property omitted from appraisal, it is a tax ferret contract. See White , 114 S.W.2d at 861 ; Marquart , 117 S.W.2d at 501 ; Tex. Att'y Gen. Op. No. JC-0290 (2000).
This does not, however, complete our analysis. Neither White nor Marquart nor the OAG opinion declares that a contract is void simply by virtue of being a tax ferret contract. Rather, the condition that renders such a contract void is that it calls for the taxing unit to pay a contingent fee under circumstances that are not authorized by statute. Ultimately, then, the issue we must resolve is not what label to place on the Lemon Contract, but whether Iraan-Sheffield ISD had any statutory authority to enter into that contract. On this issue, the 2000 OAG opinion on which Kinder Morgan relies is of limited assistance. That opinion concerned whether there is statutory authority, express or implied, for a taxing unit to enter a contingent fee contract with a private business to identify omitted property. See Tex. Att'y Gen. Op. No. JC-0290, (2000). It did not address the specific circumstance of a taxing unit contracting with an attorney, a distinction which, for reasons discussed below, we find significant. b) Tax Code section 6.30
Iraan-Sheffield ISD argues that its contract with Lemon is authorized by sections 11.1511 and 45.231 of the Texas Education Code and by section 6.30 of the Texas Tax Code. See TEX. EDUC. CODE ANN. §§ 11.1511(c), 45.231(a) ; TEX. TAX CODE ANN. § 6.30(c). We need address only the latter.
Tax Code section 6.30 provides that "[t]he governing body of a taxing unit may contract with any competent attorney to represent the unit to enforce the collection of delinquent taxes." TEX. TAX CODE ANN. § 6.30(c). It further provides that "the total amount of compensation provided may not exceed 20 percent of the amount of delinquent tax, penalty, and interest collected." Id.
It is undisputed that Iraan-Sheffield ISD is a taxing unit. See TEX. TAX CODE ANN. § 1.04(12) (definition of "taxing unit" includes a school district). The Lemon Contract recites that Lemon, an attorney, is employed to represent Iraan-Sheffield ISD's interests in pursuing claims against Kinder Morgan "for the inaccurate valuation of property of Kinder-Morgan resulting in inadequate and insufficient ad valorem tax payments" to Iraan-Sheffield ISD. In addition, the second Meek affidavit states that Iraan-Sheffield ISD retained Lemon "relative to the collection of any outstanding delinquent taxes" on property believed to have been excluded or omitted from appraisal, and that Lemon was authorized to prosecute claims on Iraan-Sheffield ISD's behalf. The affidavit specifically invokes section 6.30 as authority for the contract.
Kinder Morgan contends that section 6.30 does not apply because the underlying lawsuit—which is prosecuted by attorney Lemon on behalf of Iraan-Sheffield ISD—does not involve the collection of delinquent taxes. Iraan-Sheffield ISD's petition states that its claims are brought pursuant to sections 25.21 and 41.03 of the Tax Code, both of which concern taxation of omitted property. See TEX. TAX CODE ANN. §§ 25.21 (duty of chief appraiser to place omitted property on appraisal records), 41.03 (taxing unit challenge to exclusion of property from appraisal records). Kinder Morgan argues the collection of delinquent taxes is governed by a separate provision— Tax Code section 33.41. See TEX. TAX CODE ANN. § 33.41.
Section 33.41 provides, in part, "At any time after its tax on property becomes delinquent, a taxing unit may file suit to foreclose the lien securing payment of the tax, to enforce personal liability for the tax, or both." TEX. TAX CODE ANN. § 33.41(a). The Tax Code generally provides that "taxes are due on receipt of the tax bill and are delinquent if not paid before February 1 of the year following the year in which imposed." TEX. TAX CODE ANN. § 31.02(a). It also contains a specific provision identifying the delinquency date for property erroneously omitted from the tax rolls, that date being "February 1 of the first year that will provide a period of at least 180 days after the date the tax bill is mailed in which to pay the taxes before they become delinquent." TEX. TAX CODE ANN. § 31.04(a-1).
No tax bill on the allegedly omitted property has been sent because it has not yet been determined that that property was, in fact, erroneously omitted from appraisal and thus subject to taxation. Indeed, that is the point of the underlying lawsuit. Kinder Morgan concludes that, because it has not received a tax bill on the disputed property, no delinquency date has been established and, therefore, there are no delinquent taxes to be collected. Consequently, at least in the context of the present lawsuit, Lemon cannot have been engaged to collect delinquent taxes. Kinder Morgan insists that "delinquent taxes," as used in section 6.30, must be given the technical meaning derived from sections 31.02 and 31.04 —taxes that remain unpaid after a statutorily-defined date following receipt of a tax bill. See TEX. TAX CODE ANN. §§ 6.30(c), 31.02(a), 31.04(a-1). We believe this is an overly restrictive reading of the phrase as used in section 6.30, and one that was rejected by the Supreme Court in White when interpreting a predecessor statute:
When the purpose for which article 7335a was passed is considered, we do not think the Legislature used the words "delinquent taxes" in a technical sense. We think it clearly appears that the Legislature intended by the enactment of this law to check the evil then existing, and not only to specify the maximum compensation to be paid, but also to require that such contracts should be approved by both the Comptroller and the Attorney General of Texas, in order to make them valid.
White , 114 S.W.2d at 863.
Kinder Morgan counters that White and other cases interpreting prior law no longer have any application. That contention is based on the 2000 OAG opinion, which states:
Judicial opinions issued before the 1979 adoption of the Tax Code determined that a contingent fee, tax ferret contract relates to "the collection of delinquent taxes" and that a taxing unit might enter one in strict compliance with applicable law. See White , 114 S.W.2d at 863 ; Marquart , 117 S.W.2d at 501. Because the law has been substantially amended since the tax ferret cases were decided, the cases do not dispose of the issue you raise.
Tex. Att'y Gen. Op. No. JC-0290 (2000) (Emphasis added.). But the OAG opinion does not address the specific issue presented in this case, nor does it declare that White and its progeny no longer have any application at all. To determine what, if any, impact White has on the issue before us, it is necessary to examine the fate of articles 7335 and 7335a, the statutes discussed in that case.
Former article 7335 authorized the commissioners court of any county to "contract with any competent attorney to enforce or assist in the enforcement of the collection of any delinquent state and county taxes for a per cent. on the taxes, penalty and interest actually collected[.]" Commissioners’ Court of Madison Cnty. v. Wallace , 118 Tex. 279, 15 S.W.2d 535, 536 (1929) (quoting former article 7335 ); see Bell v. Mansfield Indep. Sch. Dist. , 133 Tex. 403, 129 S.W.2d 629, 631 (Tex. Comm'n App. 1939). With the subsequent passage of article 7335a, "this right of contract was restricted and limited to not more than fifteen per cent of the amount collected and the contract was required to be approved by the Comptroller and Attorney General." Bell , 129 S.W.2d at 631. But the approval requirement was held not to apply to contracts made by independent school districts. Id. In addition, the language of article 7335a did not limit its application to contracts with attorneys but referred more generally to contracts "made or entered into by the Commissioners’ Court in connection with the collection of delinquent taxes[.]" See White , 114 S.W.2d at 862 (quoting former article 7335a).
Articles 7335 and 7335a were later codified in section 6.30 of the Tax Code. Damon v. Cornett , 781 S.W.2d 597, 598 (Tex. 1989). The codified statute revised the terms of former 7335a by expressly narrowing its application to contracts with attorneys and by increasing the allowable compensation to an amount not to exceed "20 percent of the amount of delinquent tax, penalty, and interest collected." Tex. Att'y Gen. Op. No. JM-135 (1984) (quoting language of codified statute). In addition, the approval requirement was limited to contracts for the collection of state taxes. Id.
It is apparent from this discussion that the substance of articles 7335 and 7335a did not simply disappear upon enactment of the Tax Code. That substance, albeit somewhat revised, carried forward into section 6.30, the statute Iraan-Sheffield ISD now invokes as authorizing its contract with Lemon. And the purpose for which the statutes were enacted remains the same—"to check the evil then existing" when the statutes were enacted. White , 114 S.W.2d at 863. But that evil is not the identification of property omitted from the tax rolls; the evil is "the execution of contracts calling for excessive and unreasonable compensation" for identifying such property. See id. at 862.
We find no basis for ignoring the Supreme Court's determination that, in the context of statutes intended to curb contracts calling for excessive and unreasonable compensation, the Legislature did not use the phrase "delinquent taxes" in its technical sense. See White , 114 S.W.2d at 863. The White court concluded that article 7335a applied to a contract to identify property that had been omitted from the tax rolls—property on which no tax bill had been sent and, therefore, on which no taxes were delinquent in the technical sense. See id. at 861, 863. We likewise conclude that Tax Code section 6.30 applies to the contract here at issue even though the taxes sought to be collected are not yet delinquent in the technical sense.
Iraan-Sheffield ISD's underlying lawsuit alleges that certain Kinder Morgan property was omitted or excluded from the tax rolls due to Kinder Morgan's misrepresentation and fraud. It seeks to have the court "fix the accurate and correct appraised values of the mineral interest real property at issue" and to order the Pecos County Appraisal District and Chief Appraiser to reappraise that property so that it may be taxed in accordance with those values. In other words, Iraan-Sheffield ISD alleges that Kinder Morgan owes taxes on certain of its properties that it has not yet paid, with the further implication that, because Kinder Morgan fraudulently caused that property to be excluded or omitted from the tax rolls, it is aware that those taxes are due and owing. Thus, the taxes are, in a nontechnical sense, "delinquent." See https://www.merriam-webster.com/dictionary/delinquent (defining "delinquent" as "being overdue in payment").
The record establishes that Lemon was retained to pursue legal claims against Kinder Morgan to recoup Kinder Morgan's delinquent taxes. Lemon's compensation for those legal services is twenty percent of the payments received by Iraan-Sheffield ISD in relation to those claims. We conclude that the Lemon Contract falls within the parameters of section 6.30. Consequently, it is authorized by that statute and is not void. See TEX. TAX. CODE ANN. § 6.30(c).
We acknowledge again there is evidence that Iraan-Sheffield ISD also authorized Lemon to investigate and identify property on which additional claims might be made, i.e. , to act as a tax ferret. But as previously discussed, a contract is not void even to the extent it is a tax ferret contract unless it includes an agreement to pay an unauthorized contingent fee. See White , 114 S.W.2d at 862-63. The Lemon Contract does not contain such an agreement. Rather, it expressly states that the twenty percent contingent fee is "in consideration of the legal services to be rendered pursuing [Iraan-Sheffield ISD's claims]." (Emphasis added.) The contract does not provide for payment of a contingent fee for any tax ferret services Lemon might furnish.
We must also bear in mind the context of Kinder Morgan's challenge to the Lemon Contract is a rule 12 motion to show authority to prosecute the underlying lawsuit. Lemon sustained his burden under rule 12 by demonstrating that Iraan-Sheffield ISD contractually authorized him to pursue such lawsuits in exchange for a contingent fee that is, in turn, authorized by Tax Code section 6.30. Whether Iraan-Sheffield ISD also authorized Lemon to engage in other activities does not negate his authority to prosecute the underlying lawsuit.
We conclude that the Lemon Contract is not void. We reiterate that this conclusion is not at odds with the 2000 OAG opinion. Section 6.30, which we hold authorizes the Lemon Contract, applies only to contracts with attorneys. See TEX. TAX. CODE ANN. § 6.30(c). The OAG opinion concerned only contracts with a private business. See Tex. Att'y Gen. Op. No. JC-0290 (2000). Because section 6.30 does not apply to the situation addressed by the OAG, our conclusion that that statute authorizes the contract in the present case does not conflict with the OAG's conclusion that it does not authorize the type of contract that was the subject of its opinion.
The OAG opinion specifically recognizes section 6.30 as a statute permitting a taxing unit to enter a contingent fee contract with an attorney in relation to the collection of delinquent taxes. See Tex. Att'y Gen. Op. No. JC-0290 (2000).
c) Government Code section 2254.1038
Iraan-Sheffield ISD asserts that the trial court's decision on the motion to show authority resulted from its confusion regarding the applicability of a portion of the Government Code regulating contingent fee contracts for legal services. See TEX. GOV'T CODE ANN. ch. 2254, subch. C (Subchapter C) While the court's conclusions of law do not indicate that Subchapter C was the basis for its decision, we deem it advisable to address its applicability because Kinder Morgan did raise it, albeit tangentially, as a ground for granting the motion to show authority.
Subchapter C sets out various requirements, including approval by the attorney general, for contingent fee contracts for legal services entered into by governmental entities. Subchapter C applied only to state governmental entities until its amendment in 2019. At that time, section 2254.102 was amended to make the subchapter also applicable to political subdivisions. See TEX. GOV'T CODE ANN. § 2254.102(a). The requirement that contingent fee contracts be approved by the attorney general was also made applicable to political subdivisions at that time. See TEX. GOV'T CODE ANN. § 2254.1038(a).
Kinder Morgan noted in its motion to show authority that section 2254.1038 requires approval by the attorney general of a contingent fee contract for legal services entered into by a political subdivision. TEX. GOV'T CODE ANN. § 2254.1038(a). It further noted that Iraan-Sheffield ISD had not obtained attorney general approval for the Lemon Contract.
The amendments to Subchapter C, including section 2254.1038, have an effective date of September 1, 2019, and apply only to contracts entered into on or after that effective date. See Act effective September 1, 2019, 86th Leg., R.S., ch. 857, §§ 10, 11, 2019 Tex. Gen. Laws 2321, 2324. The Lemon Contract was entered into in October 2017, two years prior to the amendments’ effective date. In addition, only certain provisions of Subchapter C apply to contracts for legal services entered under Tax Code 6.30. See TEX. GOV'T CODE ANN. § 2254.102(e). Section 2254.1038 is not one of those provisions. See id. Neither Subchapter C, generally, nor section 2254.1038 ’s approval requirement, specifically, apply to the Lemon Contract.
Kinder Morgan acknowledges that section 2254.1038 does not apply in this case, but argues that its enactment confirms that there was no implied authority under prior law for a school district to enter a contingent fee contract. It notes that prior law permitted "larger and more powerful [governmental] entities" to enter such contracts but only in accordance with strict requirements, including attorney general approval. It urges that it would be "illogical" to grant tightly regulated contingent fee authority to those larger and more powerful entities without imposing the same regulations on school districts.
Our task is not to evaluate the logic of the Legislature in enacting statutes, but to interpret and apply the language of those statutes as enacted. But if any explanation is warranted concerning the logic of imposing an attorney general approval requirement on larger entities but not on school districts, that explanation was articulated as early as 1939:
We think it proper here to observe that the requirement of Article 7335a, that contracts made by commissioners courts shall be approved by the Comptroller and Attorney General, should not be held to be applicable to contracts made by independent school districts.... The state has a direct interest in the collection of state and county taxes, but has no such direct interest in the collection of delinquent taxes of independent school districts. The reason for the provisions for the approval by the Comptroller and Attorney General of contracts made by commissioners courts is obvious. But no similar reason exists for requiring such approval of contracts made by independent school districts. We are, therefore, of the opinion that such requirement of approval is not applicable to these latter contracts.
Bell , 129 S.W.2d at 631. This explanation is confirmed by the fact that the approval requirement contained in Tax Code section 6.30 as originally enacted specifically applied only to the collection of state taxes. See Tex. Att'y Gen. Op. No. JM-135 (1984).
In any event, determining whether the Lemon Contract is tacitly authorized by statutes preceding Government Code section 2254.1038 is not necessary to our resolution of this appeal because we have determined that the contract is expressly authorized by Tax Code section 6.30 and is therefore not void. Because the contract is not void, it is sufficient to sustain Lemon's rule 12 burden to show his authority to represent Iraan-Sheffield ISD in the underlying lawsuit. See TEX. R. CIV. P. 12. The trial court erred by concluding to the contrary.
As a result of this holding, we need not address Iraan-Sheffield ISD's more narrow arguments concerning concealed evidence, waiver, laches, the sufficiency of notice of the rule 12 hearing, or the adequacy of the trial court's findings of fact and conclusions of law, with regard to the motion to show authority. See TEX. R. APP. P. 47.1. As a result, there is no need to address the district's second and third issue in context to the motion.
Accordingly, we sustain in part Iraan-Sheffield ISD's first issue.
B. The Plea to the Jurisdiction
The trial court's ruling granting Kinder Morgan's plea to the jurisdiction is based on the following reasoning, as reflected in the court's conclusions of law: (1) a petition appealing an appraisal review board decision must be filed within 60 days of that decision; (2) Iraan-Sheffield ISD purported to appeal through a petition filed on its behalf by Lemon; (3) Iraan-Sheffield ISD's engagement contract with Lemon is void; (4) Iraan-Sheffield ISD cannot appeal through a void engagement contract; (5) Iraan-Sheffield ISD's petition is therefore void; (6) Iraan-Sheffield ISD did not file a valid petition within 60 days of the appraisal review board decision; and so (7) the court lacks subject matter jurisdiction. The lynchpin of the court's decision on the plea to the jurisdiction is thus its conclusion that the Lemon Contract is void.
Because we hold the Lemon Contract is not void, this holding effectively negates the trial court's basis for granting Kinder Morgan's plea to the jurisdiction rendering that ruling erroneous. And, even if we had determined that the Lemon Contract was void, we are nonetheless instructed by the Supreme Court in Scurry County that such circumstance alone would not nullify Iraan-Sheffield ISD's bona fide attempt to invoke the trial court's jurisdiction over its appeal from the ARB's order denying the challenge petitions. See Scurry County , 622 S.W.3d at 845. There's no need to further address the plea to the jurisdiction. Thus, as occurred with the motion to show authority, there's no need to address the second and third issues in context to the plea.
Accordingly, we sustain the remaining part of Iraan-Sheffield ISD's first issue.
IV. CONCLUSION
The trial court erred by granting Kinder Morgan's motion to show authority and plea to the jurisdiction, and by dismissing Iraan-Sheffield ISD's claims. The order of dismissal is reversed and this cause is remanded to the trial court for further proceedings.