I respectfully dissent. Because the appraised values of the subject properties have been reduced as a result of the taxpayers winning their lawsuits, the taxpayers have undeniably prevailed under section 42.25 and, therefore, are entitled to attorney’s fees.
At trial, the taxpayers argued that, because of the open-space use of their property, they were entitled to have their land appraised at the lower per acre open-space land value as opposed to the higher market value. The amount in controversy was the difference between the market values and the open-space values of the properties. Clearly, the only reason for the institution of the suits challenging the taxing authorities’ appraisal was to seek a reduction in the appraised values to those values “required by law,” as provided in section 42.-25.
The Court concludes that the award of attorney’s fees under section 42.29 of the Tax Code should be limited to those eases specifically covered by sections 42.25 and 42.26 — those cases that challenge the dollar amounts of the appraised values as being excessive or unequal. I disagree with this rigid interpretation of the Tax Code.
The taxpayers’ appeals were brought to challenge the placing of an appraisal value on their property that was excessive under section 42.25 because the appraisals did not take into consideration the open-space use of the properties. As the Fort Worth court of appeals reasoned in May v. Appraisal Review Board of Tarrant Appraisal Dist., 794 S.W.2d 906 (Tex.App. — Fort Worth 1990, writ denied), when a taxpayer protests the refusal of a taxing authority to take into consideration the open-space use of his property, he is protesting the inaccurate determination of the appraisal or market value of his property under section 41.41(1). If the taxpayer demonstrates that he is entitled to the open-space designation, the original appraisal is, by definition, an excessive appraisal. Therefore, the taxpayer is entitled to a reduction under section 42.25. As a result, a taxpayer who successfully challenges the denial of an open-space land designation has “prevailed” under section 42.25 and is entitled to recover attorney’s fees under section 42.29.
In section 42.29, the Legislature provided a means for taxpayers to recover their attorney’s fees when they successfully challenge appraisal review board orders. By excluding the type of challenge made here from section 42.29, the Court seriously limits taxpayers’ right to protest the improper appraisal of their property.