(concurring).
I concur in affirmance of the judgment for the reasons stated in this separate opinion.
Appellee has asserted an affirmative cross-point as follows:
“This case should be affirmed because appellants totally and wholly failed to meet the burden of proof placed upon them by law to show either an arbitrary and illegal scheme of taxation or substantial injury.”
In my view, this affirmative cross-point should be expressly sustained.
This case involves a plan of taxation for each of the years 1963 and 1964 which had been put into effect prior to the filing of appellants’ suit to enjoin collection of taxes for such years and for other relief. Appellee correctly argues that in such circumstances the burden was upon appellants to prove not only that the scheme of taxation was fundamentally erroneous but also as a consequence that the taxpayer has suffered substantial injury. See State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954); City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954); Whelan v. State, 155 Tex. 14, 282 S.W.2d 378 (1955); City of Orange, Tex. v. Levingston Shipbuilding Co., 258 F.2d 240 (5 C. 1958). I agree that the taxpayers here did not sustain their burden of proof on the essential elements of their cause of action. In particular, appellants failed to show that any tract belonging to them was assessed at a higher rate than it would have been in the event that any omitted taxable property had been included on the tax rolls. Appellants therefore failed to show substantial injury or excessiveness. Judgment in favor of appellee upon its cross-action was, therefore, proper and should be affirmed.
It is further my view that although the record reflects certain errors in the course of the proceedings below, they are not shown to be such as were reasonably calculated to cause and probably did cause the rendition of an improper judgment so as to require reversal. Rule 434, T.R.C.P. The errors referred to were in connection with quashing the commissions to orally take three depositions of representatives of banks and a savings and loan association, and in holding that appellants had waived their rights to contest the validity of all taxes because payments were made on some tracts.
The action of the trial court in quashing the subpoenas issued in connection with such depositions may be properly upheld under the provisions of Rule 177a, T.R.C.P., but I am unwilling to hold that the trial court could completely prohibit appellants from taking the oral depositions of said witnesses. I believe that appellants should have been allowed to question the witnesses and if it developed that there was a refusal to answer as to certain matters, the court could have proceeded on proper application, under Rules 215a and 186b, T.R.C.P., to resolve the contested matters and to make such orders for the protection of the parties and the deponents as might be necessary under the conditions shown to exist. Counsel for appellants requested that such procedure be followed but such request was denied. The order of the trial court quashing the commissions to take the oral dep- ■ :‘:ons and the subpoenas was rendered *334on' September 17, 1965. The case was called for trial on the merits on September 20, 1965, at which time appellants announced ready and proceeded to trial. Appellants called as witnesses the representatives of the banks and savings and loan associations whose records were originally involved in the depositions sought to be taken and-elicited some testimony from them, particularly concerning total deposits, which was admitted into evidence. However, the record does not reflect that any of the said witnesses were served with subpoenas duces tecum to bring their account records with them at the trial on the merits. It thus appears that appellants did not follow through at the trial on the merits with the same requests concerning records as were made in connection with the attempt to take depositions. As a result of this and in the absence of other evidence, the record is silent concerning accounts to the credit of depositors in the three financial institutions involved which would have been subject to taxation by the City of Port Lavaca, and which were in fact not taxed. In my view, the failure., of appellants to attempt ‘ to develop their case more fully at the trial on the merits and the consequent lack of proof, renders harmless the erroneous rulings in connection with the depositions.
I am unwilling to hold that Art. 342-709, V.A.C.S., properly construed, precludes the development of material facts in a judicial proceeding such as this. To hold otherwise, in my view, would be to encounter serious questions as to constitutionality of the statute and deprivation of due process of law under Article 1, Sections 13 and 19 of the Constitution of Texas and the Fourteenth Amendment to the Constitution of the United States of America. The amounts of money on deposit in the three financial institutions were material as to the tax years in question only as of the first day of January, 1963 and 1964. The depositions were sought to be taken and the trial on the merits was held in September, 1965. The trial court has considerable discretion in connection with the taking of depositions relating to the records in question as well as their identification, production and admission into evidence upon the trial of the case, and may properly exercise it in order to protect the deponents and parties and to prevent oppression, harrassment, undue disclosure and expense.
The tremendous burden placed upon a taxpayer in a suit such as this would not be met by simply showing that certain amounts were on deposit in banks or savings and loan associations, but, in addition, the residence of the owner and the consequent situs for taxation must be proved in order to determine whether a particular taxing agency may lawfully assess and collect taxes on the same. City of Orange v. Levingston Shipbuilding Co., supra. Although appellants did not sufficiently develop their case to demonstrate reversible error, I cannot agree that the records of financial institutions such as those involved here would not be subject to judicial disclosure under appropriate safeguards in a proper case.
I am also unwilling to hold that appellants have waived their entire cause of action asserted in this case simply because they paid taxes to the City on a few parcels of real estate owned by them for the tax years in question. They may have justifiably concluded that they could not carry the onerous burden of proof to show substantial injury or excessiveness as to such tracts. Appellants should not be required to incur penalties and interest upon taxes they are willing to pay on some tracts in order to complain concerning other tracts upon which they might be. able to secure relief.
For the reasons stated, I concur in affirming the judgment of the lower court.