Travis Central Appraisal District, by and Through Marya Crigler, Acting in Her Official Capacity as Chief Appraiser of Travis Central Appraisal District v. Texas Disposal Systems Landfill, Inc.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00122-CV

Travis Central Appraisal District, By and Through Marya Crigler, Acting In Her Official
Capacity as Chief Appraiser of Travis Central Appraisal District, Appellant

v.

Texas Disposal Systems Landfill, Inc., Appellee

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-006394, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

MEMORANDUM OPINION

Travis Central Appraisal District (TCAD) appeals from the district court’s

judgment granting pleas to the jurisdiction filed by Texas Disposal Systems Landfill, Inc. (the

Landfill) and dismissing TCAD’s claims. For the following reasons, we reverse the judgment

and remand to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

The relevant facts are undisputed. For tax year 2019, TCAD appraised the

Landfill’s property at $21.2 million, and the Landfill protested with the Travis Appraisal Review

Board (the ARB). The Landfill relied on two grounds—market value and unequal appraisal—

but withdrew the market value ground the day before the ARB hearing. After the hearing, the

ARB found that the appraisal was unequal and reduced the appraised value to $2.8 million.
 TCAD, through its chief appraiser, appealed to the district court for a trial de

novo, claiming that “the value set by the ARB” results in a “below market value and unequal

appraised value.” The Landfill filed a plea to the jurisdiction as to TCAD’s market value claim,

arguing that “TCAD lacks an order determining market value to challenge on appeal” because

the ARB determined only an unequal appraisal protest. The district court granted the plea,

dismissing TCAD’s market value claim but leaving TCAD’s unequal appraisal claim. The

Landfill filed another plea to the jurisdiction on TCAD’s remaining claim, arguing that TCAD

improperly relied on a 2017 general resolution by its board of directors—issued two years before

the ARB order—to satisfy Section 42.02(a)’s requirement to obtain written approval to appeal.

See Tex. Tax Code § 42.02(a) (providing that chief appraiser is “entitled to appeal” “[o]n written

approval of the board of directors of the appraisal district”). The district court granted the

Landfill’s second plea, dismissing TCAD’s remaining claim and rendering a final judgment.

II. DISCUSSION

In two issues, TCAD challenges the district court’s judgment granting the

Landfill’s pleas to the jurisdiction, which we review de novo. See Texas Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226–28 (Tex. 2004) (describing standard). First, TCAD

argues that Section 42.02(a)’s written approval requirement is not jurisdictional; that regardless,

the 2017 general resolution satisfies the requirement; and that even if it is not satisfied, the

district court should have abated rather than dismissed the cause. Second, TCAD claims that in a

de novo appeal to the district court, TCAD is not “limited by the arguments that the property

owner chooses to raise in the underlying administrative proceeding” and that therefore the

district court had jurisdiction to consider its market value claim.

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A. Section 42.02(a)’s Written Approval Requirement

We first consider TCAD’s challenge to the district court’s order granting the

Landfill’s second plea to the jurisdiction. The Landfill’s second plea to the jurisdiction was

based on Section 42.02(a), which provides, as relevant here: “On written approval of the board

of directors of the appraisal district, the chief appraiser is entitled to appeal an order of the

appraisal review board determining: (1) a taxpayer protest as provided by Subchapter C,

Chapter 41[.]” Tex. Tax Code § 42.02(a). TCAD argues that “Section 42.02(a) contains

‘no explicit language’ suggesting any legislative intent, much less a clear intent, that the

written-approval requirement be jurisdictional.”

1. Jurisdictional Prerequisite

Until 2000, Texas law was that “strict compliance with all statutory prerequisites

is necessary to vest a trial court with jurisdiction.” Texas Mut. Ins. v. Chicas, 593 S.W.3d 284,

286 (Tex. 2019) (quoting Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 510 (Tex.

2012)). But beginning with Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76–77 (Tex. 2000), the

focus shifted: “The classification of a matter as one of jurisdiction . . . opens the way to making

judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to

be sealed in a judgment,” and “the modern direction of policy is to reduce the vulnerability of

final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction.” In re

United Servs. Auto. Ass’n, 307 S.W.3d 299, 306 (Tex. 2010) (orig. proceeding) (quoting Dubai,

12 S.W.3d at 76); see also Chicas, 593 S.W.3d at 286 (“We see no reason that this focus should

also not apply to judicial appeals from administrative rulings.”). Thus, “the focus post-Dubai is

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to strengthen the finality of judgments and reduce the possibility of delayed attacks.” Chicas,

593 S.W.3d at 286.

Notwithstanding this shift in focus, the Landfill argues that Section 42.02(a)’s

requirement is jurisdictional under Appraisal Review Board v. International Church of

Foursquare Gospel, 719 S.W.2d 160, 161 (Tex. 1986) (per curiam), and that Foursquare

Gospel’s holding was reaffirmed by Matagorda County Appraisal District v. Coastal Liquids

Partners, L.P., 165 S.W.3d 329, 331 n.5 (Tex. 2005), and Cameron Appraisal District v. Rourk,

194 S.W.3d 501, 502–03 (Tex. 2006) (per curiam). Foursquare Gospel’s holding, however, is

narrower than the Landfill asserts and does not control here. The Foursquare Gospel Court

concluded that a taxpayer’s compliance with a requirement from another statutory provision—

“to include the . . . Appraisal District as a party within 45 days after receiving notice that a final

order had been entered”—was jurisdictional. 719 S.W.2d at 161. The Foursquare Gospel Court

neither addressed the statutory requirements for a chief appraiser—rather than a taxpayer—to

appeal nor considered whether the written approval requirement is jurisdictional. Twenty years

later, in a footnote aside, the Matagorda Court broadly stated, “While we held twenty years ago

that compliance with the statutory requirements for appeal from an appraisal review is

jurisdictional, we have yet to address whether that holding survives Dubai[.]” 165 S.W.3d at

331 n.5 (citation omitted). And in an unremarkable statement regarding exhaustion of

administrative remedies, the Rourk Court noted, “[W]e have repeatedly held that ‘a taxpayer’s

failure to pursue an appraisal review board proceeding deprives the courts of jurisdiction to

decide most matters relating to ad valorem taxes.’” 194 S.W.3d at 502 (quoting Matagorda,

165 S.W.3d at 331). Matagorda and Rourk did not speak to Section 42.02(a)’s requirement, and

to the extent that they could be construed as implying that Foursquare Gospel’s holding should

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be extended to any and all statutory requirements—including those for a chief appraiser and not

just the taxpayer—for an appeal from an appraisal review order, those statements are

non-binding obiter dicta. See Seger v. Yorkshire Ins., 503 S.W.3d 388, 399 (Tex. 2016) (“Obiter

dictum is not binding as precedent.”). Because there is no controlling precedent as to whether

Section 42.02(a)’s written approval requirement for the chief appraiser to appeal is jurisdictional,

we apply the post-Dubai standard in considering whether the requirement is jurisdictional. See

Mosley v. Texas Health & Human Servs. Comm’n, 593 S.W.3d 250, 261 n.3 (Tex. 2019) (“[W]e

emphasize that Dubai and its progeny remain the standard for prospective decisions concerning

whether a statutory prerequisite to maintaining a cause of action is mandatory or jurisdictional.”).

We begin with the presumption that the Legislature did not intend to make the

Section 42.02(a)’s requirement jurisdictional; “a presumption overcome only by clear legislative

intent to the contrary.” City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009); see also

Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014) (“We resist

classifying a provision as jurisdictional absent clear legislative intent to that effect.”). To

ascertain clear legislative intent that a statutory requirement be jurisdictional, we examine the

statute’s plain language and apply statutory interpretation principles, considering the specified

consequences for noncompliance, the purpose of the statute, and the consequences of alternative

constructions. See Chicas, 593 S.W.3d at 287.

Considering the plain language first, we note that the Legislature knows how to

use unequivocal language to make statutory requirements jurisdictional, see, e.g., Tex. Nat. Res.

Code § 33.171(d) (providing that “notice requirement” “is a jurisdictional prerequisite to the

institution of suit”), but Section 42.02(a) lacks such unequivocal language, see Tex. Tax Code

§ 42.02(a); Texas Mut. Ins. v. Ruttiger, 381 S.W.3d 430, 453 (Tex. 2012) (“We presume the

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silence is a careful, purposeful, and deliberate choice.”). The Legislature has also

straightforwardly mandated that “[s]tatutory prerequisites to a suit, including the provision of

notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov’t

Code § 311.034; see Chatha, 381 S.W.3d at 515 (noting “straightforward mandate that in suits

against the government, statutory prerequisites are jurisdictional”). But because a Section

42.02(a) appeal is generally against a private property owner—e.g., the Landfill—the statutory

requirement does not implicate the Legislature’s “straightforward mandate.” The Landfill argues

that the phrase “is entitled to appeal” creates the very right to appeal and therefore is

jurisdictional in nature. See Tex. Gov’t Code § 311.016(4) (“‘Is entitled to’ creates or recognizes

a right.”). 1 But “[a]lthough the plain meaning might suggest a jurisdictional bar,” we cannot

conclude that Section 42.02(a)’s language “meet[s] the requisite level of clarity to establish the

statute as jurisdictional,” especially when other statutory interpretation principles are considered.

See Crosstex Energy, 430 S.W.3d at 392 (construing requirement to file certificate of merit with

complaint as nonjurisdictional); cf. In re Department of Fam. & Protective Servs., 273 S.W.3d 637,

642 (Tex. 2009) (orig. proceeding) (concluding that “nothing in the language” indicates that

“deadlines are jurisdictional,” including such language as trial court “shall dismiss the suit” and

“may not retain the suit on the court’s docket” when deadlines expire).

1 The Landfill cites myriad authorities from our sister courts that have considered
jurisdiction over a Section 42.01(a) appeal, see Tex. Tax Code § 42.01(a) (stating conditions
when “[a] property owner is entitled to appeal”), and argues that Section 42.02(a)’s same
“entitled to appeal” language analogously should be considered jurisdictional as well. But in
contrast to a Section 42.02(a) appeal, a Section 42.01 appeal is against an appraisal district—a
political subdivision of the State with governmental immunity, id. § 6.01(c)—and therefore
implicates the mandate that such statutory prerequisites be construed as jurisdictional, see Tex.
Gov’t Code § 311.032.
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 Turning to the second consideration, Section 42.02 does not contain specific

consequences for noncompliance. “[W]hen a statute does not require dismissal for failure to

comply, this weighs in favor of a finding that it is not jurisdictional.” Chicas, 593 S.W.3d at 289

(citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001)). The cases relying on this

principle generally have been considering requirements with a specified deadline, unlike the

requirement here. See, e.g., id. at 288 (considering 45-day deadline for filing suit); Helena

Chem., 47 S.W.3d at 494 (considering requirement that complaint be filed within “time

necessary to permit effective inspection”). But to the extent this consideration has any weight

here, it weighs in favor of concluding that the requirement is nonjurisdictional.

As to the third consideration, the Legislature did not declare the statute’s purpose,

which generally means this “factor provides little assistance.” See Crosstex Energy, 430 S.W.3d

at 392. Both parties, however, acknowledge that the purpose is to make boards of directors

“gatekeepers” to Section 42.02(a) appeals. This purpose is not necessarily frustrated by

construing the requirement as nonjurisdictional. The boards may still act as “gatekeepers” when

a chief appraiser’s compliance is properly challenged, and the failure to comply with obtaining

written approval may still result in the loss of the appeal. See Helena Chem., 47 S.W.3d at 496

(noting that construing timing requirement as nonjurisdictional does not thwart purpose of

providing for investigation because board can conduct investigation despite delay); see also

White, 288 S.W.3d at 393 (noting that failure to comply with nonjurisdictional requirement may

result in loss of claim); Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992) (holding that failure to

perform while suit is abated for that purpose may result in dismissal). Thus, to the extent the

third consideration has any weight here, it weighs in favor of concluding that the requirement

is nonjurisdictional.

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 Finally, we consider the consequences of alternative interpretations. If Section

42.02(a)’s written approval requirement were jurisdictional and a chief appraiser successfully

pursued an appeal to a final judgment but did not timely get approval, see Tex. Tax Code

§ 42.06(a) (requiring notice of appeal to be filed within fifteen days after receiving notice that

order has been issued), or relied on approval that was later determined to be defective—as may

be the case here—that judgment would be vulnerable to collateral attack in perpetuity,

cf. Crosstex Energy, 430 S.W.3d at 392–93 (noting that if certificate of merit requirement were

jurisdictional, judgment would be vulnerable to collateral attack and that “statute acts as a

procedural bar for claims without a certificate of merit” but that “[i]t does not follow that

because the Legislature created this procedural bar, it also wanted to create a basis for attacking

the judgment in perpetuity”); Dubai, 12 S.W.3d at 76 (“When, as here, it is difficult to tell

whether or not the parties have satisfied the requisites of a particular statute, it seems perverse to

treat a judgment as perpetually void merely because the court or the parties made a good-faith

mistake in interpreting the law.”). On the other hand, as we have already noted, the purpose of

the requirement (as described by the parties) would not be frustrated by construing the

requirement as nonjurisdictional, and the Landfill has not identified any other negative

consequences for such a construction. Accordingly, this last consideration weighs in favor of

construing Section 42.02(a)’s requirement as nonjurisdictional.

Weighing these considerations, we conclude that Section 42.02(a)’s written

approval requirement is not jurisdictional.

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 2. Proper Remedy

TCAD argues that if we conclude that Section 42.02(a)’s written approval

requirement is not jurisdictional, then we must determine if the 2017 general resolution satisfied

the requirement and if it did not, what the proper remedy is for the failure to comply, citing

White, 288 S.W.3d at 398 (“Having determined that the notice provision is not jurisdictional, we

must determine the proper remedy, if any, for the City’s failure to comply.”). But White

involved a different procedural posture. After receiving a suspension letter from the police

department, White had the option of appealing either to the Civil Service Commission or an

independent third-party hearing examiner. Id. at 391. White elected to appeal to an independent

third-party hearing examiner but then argued that the examiner was without jurisdiction to hear

his appeal because the suspension letter did not satisfy the requirement to “notify White that an

appeal to a hearing examiner would limit his ability to seek further review with a district court

judge.” Id. White filed suit in district court under a statutory provision “permitting judicial

review of hearing examiner decision on grounds that the examiner was without jurisdiction.” Id.

at 392 (citing Tex. Loc. Gov’t Code § 143.057(j)). The district court granted summary judgment

in White’s favor, which the City appealed. Id. In that procedural posture, the Texas Supreme

Court concluded that the notice requirement did not deprive the hearing examiner of jurisdiction,

“determine[d] the proper remedy” for failure to comply with the nonjurisdictional statutory

requirement, and remanded the case to the district court in the interest of justice “with

instructions to remand to the hearing examiner, so that White has an opportunity to make an

appellate election with full knowledge of his appellate rights and with knowledge of our

guidance in this opinion.” Id. at 398, 401.

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 In contrast, the procedural posture here is an appeal from the district court’s

granting of the Landfill’s pleas to the jurisdiction regarding the district court’s jurisdiction over

TCAD’s claims. And as an intermediate court and in contrast to the Texas Supreme Court, we

are instructed to “hand down a written opinion that is as brief as practicable but that addresses

every issue raised and necessary to final disposition of the appeal.” Compare Tex. R. App. P.

47.1 (emphasis added), with id. R. 63 (“The Supreme Court will hand down a written opinion in

all cases in which it renders a judgment.”). Accordingly, we sustain TCAD’s first issue to the

extent that it asks us to reverse the district court’s order granting the Landfill’s second plea to the

jurisdiction based on the Section 42.02(a) issue. 2

2 The Landfill also contends that because the 2017 resolution did not satisfy Section
42.02(a)’s requirement, the chief appraiser “lacked authority to file a notice of appeal” in the
district court. We construe this argument as a contention that the chief appraiser lacked capacity
to appeal the ARB order. See Tex. R. Civ. P. 93(1)–(2) (requiring verified plea to challenge
when “plaintiff has not legal capacity to sue” or “plaintiff is not entitled to recover in the
capacity in which he sues”); Pike v. Texas EMC Mgmt., LLC, 610 S.W.3d 763, 779 (Tex. 2020)
(holding that question whether claim brought by partner actually belongs to partnership is
matter of capacity and noting that “capacity ‘is conceived of as a procedural issue dealing
with the personal qualifications of a party to litigate’” (quoting Austin Nursing Ctr. v. Lovato,
171 S.W.3d 845, 848 (Tex. 2005))). Capacity, however, does not implicate a court’s subject
matter jurisdiction and may be waived. Pike, 610 S.W.3d at 778–79. The defendant has the
burden to challenge capacity via verified plea, and if properly challenged, “the trial court should
abate the case and give the plaintiff a reasonable time to cure any defect.” Lovato, 171 S.W.3d at
853 n.7; cf. Kinder Morgan SACROC, LP v. Scurry County, 622 S.W.3d 835, 838, 846 (Tex.
2021) (holding that invalidity of legal services contract does not invalidate bona fide attempt to
invoke trial court’s jurisdiction and noting that “[a] bona fide effort to invoke the trial court’s
jurisdiction may be defective, but it is not void, and the proceedings cannot be dismissed without
affording an opportunity to refile a proper instrument, if necessary”). To the extent that the
district court granted the Landfill’s second plea to the jurisdiction and dismissed the cause on the
ground that the chief appraiser lacked capacity to appeal the ARB order, we conclude that
it erred.
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B. Market Value Claim

In its second issue on appeal, TCAD challenges the district court’s dismissal of its

market value claim. TCAD initially found the market value of the Landfill’s property to be

$21,714,939 and appraised the property at $21,230,464 after certain deductions. Because the

Landfill withdrew its market value protest, the ARB did not determine market value; instead, the

ARB determined that the equal appraisal value of the property is $2,800,000. The chief

appraiser then appealed the ARB order determining the Landfill’s protest. In such an appeal,

“[r]eview is by trial de novo,” and “[t]he district court shall try all issues of fact and law raised

by the pleadings in the manner applicable to civil suits generally.” Tex. Tax Code § 42.23(a);

see also Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29, 50

(Tex. 2018) (“A trial de novo is ‘[a] new trial on the entire case—that is, on both questions of

fact and issues of law—conducted as if there had been no trial in the first instance.’” (quoting

Trial De Novo, Black’s Law Dictionary (10th ed. 2014))).

As its market value claim, TCAD asserted that “[t]he market value of [the

Landfill’s] property is greater than the determination of the ARB” and that “[t]he result of the

ARB’s determination is an appraisal of the subject property below market value[.]” But we do

not reach those merit issues. The question before us today is more limited: Does the district

court have jurisdiction over TCAD’s market value claim? We conclude that it does.

The Landfill raises two arguments for why jurisdiction does not exist over

TCAD’s market value claim. First, the Landfill argues that the ARB did not determine market

value, and therefore an appeal from “an order of the appraisal review board determining . . . a

taxpayer protest” does not encompass a market value claim if the ARB did not determine market

value. But TCAD’s market value claim is not challenging the ARB’s market value

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determination; TCAD is challenging the ARB’s equal appraisal value determination on the

ground that it is below market value. TCAD may or may not be successful on the merits, but the

statutory language providing for an appeal from “an order of the appraisal review board

determining . . . a taxpayer protest” does not preclude such a challenge. See Tex. Tax Code

§ 42.02(a). 3

Second, the Landfill argues that “TCAD’s de novo theory is at odds with the

exclusive-remedies scheme established by the Property Tax Code” and that “[p]ermitting a

district court to resolve new protest grounds would denigrate the administrative hearing process

and the exclusive-remedies scheme established by the Property Tax Code.” But the statutory

scheme provides that on appeal the district court may “fix the appraised value of property in

accordance with the requirements of law if the appraised value is at issue.” Tex. Tax Code

§ 42.24(1); see also Cherokee Water Co. v. Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 877

(Tex. 1990) (“Given the appeal of the district’s appraisal is by trial de novo, the trial court

clearly has power to determine market value whether it be higher or lower than the value

determined by the appraisal district.”). The Landfill quotes our holding that “a trial de novo does

not provide the plaintiff with the right to introduce new claims that were not raised and

considered by the ARB.” Z Bar A Ranch, LP v. Tax Appraisal Dist. of Bell Cnty.,

No. 03-18-00517-CV, 2020 WL 1932908, at *6 (Tex. App.—Austin Apr. 22, 2020, no pet.)

(mem. op.). But Z Bar concerned whether the plaintiff taxpayer had exhausted administrative

remedies prior to appealing the appraisal review board’s order. Id. at *6–8. Here, in contrast,

TCAD—not the protesting taxpayer—is appealing the ARB order. As our sister court has noted:

3 We do not address whether TCAD was required to raise the issue before the ARB to
preserve it; the Landfill concedes that it “has not raised waiver and the district court did not rely
on waiver in dismissing the market-value claim.”
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 Unlike the property owner, the appraisal district had no prior administrative
remedy to exhaust at the ARB stage of the proceedings. As the entity responsible
for the initial property valuation, the appraisal district had no right to initiate the
protest procedure and no control over what objections would be presented by the
property owner to the ARB. Regardless of what issues were presented by the
property owner, the appraisal district had no grievance until the ARB altered its
determination of the property’s market value and appraised value. The statutory
procedure for the appraisal district to complain about the ARB’s ruling began
with its right of “appeal” to the district court for a trial de novo. Thus, because
the appraisal district contended that the ARB erred by reducing the property’s
market value and appraised value, and it followed the statutory procedures for
initiating an appeal, it had standing to challenge the ARB’s order in accordance
with its statutory right to do so. There was no prior administrative procedure
available to the appraisal district that it failed to exhaust.

Harris Cnty. Appraisal Dist. v. Houston 8th Wonder Prop., L.P., 395 S.W.3d 245, 251 (Tex.

App.—Houston [1st Dist.] 2012, pet. denied). Although the appraisal district in Houston 8th

Wonder contested the appraisal review board’s alteration of both the market value and appraised

value, here the ARB only determined the equal appraisal value. Nevertheless, in its de novo trial

before the district court, TCAD is contesting the ARB’s determination of the equal appraisal

value as below market value (along with its other claim that the ARB’s determination is an

unequal appraisal), a grievance that did not emerge until after the ARB had made its

determination and for which “[t]here was no prior administrative procedure available to the

appraisal district that it failed to exhaust.” Id.

Accordingly, we conclude that the district court erred in granting the Landfill’s

plea to the jurisdiction and dismissing TCAD’s claim that the ARB’s determination of the equal

appraisal value is below market value.

III. CONCLUSION

For these reasons, we reverse the district court’s judgment and remand for further

proceedings consistent with this opinion.
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 __________________________________________
Melissa Goodwin, Justice

Before Justices Goodwin, Triana, and Smith

Reversed and Remanded

Filed: February 18, 2022

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