concurring.
Cases like this cause one to reflect upon why we have courts. Courts exist to protect people from abuse. Our most precious constitutional rights rest on the principle that the greatest potential abuser is the government. Whether through accord and satisfaction or some other doctrine, courts should be open to cure abuses like the one in this case. The public interest, and that of all taxpayers, will be served if governments know that and act accordingly.
In her dissenting opinion, Justice O’Con-nor concludes that we should take judicial notice of Houston City Ordinance 44-16. Thus, she would render judgment for the City and for HISD because they had no choice but to apply the money in accordance with the ordinance.
I believe that even if we judicially notice the ordinance, neither the City nor HISD is entitled to judgment. The ordinance does not apply to HISD. Thus, whatever the ordinance’s effect, HISD cannot benefit from it. As for the City, the ordinance should not protect it because the record shows the City had an option other than following the ordinance. It could have returned the check.
ORDINANCE 44-16 DOES NOT APPLY TO HISD
Houston Ordinance 44-16, set out in the dissenting opinion, applies only to the tax assessor-collector “of the City.” The City of Houston presumably would have no power to enact an ordinance governing the tax collection practices of a separate government entity, such as HISD. In any event, the City has not done so in ordinance 44-16.
ORDINANCE 44-16 SHOULD NOT PROTECT THE CITY
The City contends it could not apply the funds as directed in First City’s transmittal letter or in any other manner, except that provided by the ordinance. If the City could not accept the conditions that accompanied the tender, it should have returned the checks, as was its prior practice.
The City and HISD stipulated that they understood the instructions on the checks and transmittal letters. Despite that, they kept the money. There was evidence that this was the opposite of the City’s normal practice. Gordon Welch testified about the City’s practices upon receiving conditional tenders of tax payments. When this dispute arose, Welch was employed as a legal assistant at First City’s law firm and he participated in this transaction. Before that, he was employed as a supervisor of research for Heard, Goggan, Blair & Williams, the law firm that represented the City and HISD in this transaction and that received the checks. Before that, Welch worked as a legal assistant for the City of Houston. From his experience, Welch testified that if a taxpayer made a partial payment and requested a specific allocation *482the City could not make, the City normally would return the taxpayer’s check. He knew of several instances where such checks were returned, and he knew of no instances where such checks were not returned. Based on Welch’s testimony, the trial court could have concluded that the City should have returned the checks. This would support the finding of accord and satisfaction.
UNCONSTITUTIONALITY OF ORDINANCE 44-16 AS APPLIED
First City contends the ordinance is unconstitutional because, as applied by the City, it violates article 1, section 13 of the Texas Constitution, the open courts provision. On its face, the ordinance does not affect First City’s right to redress. However, First City contends that applying the payments as stated in the ordinance would moot any challenge to the penalty statutes because the penalties would then be paid in full and not refundable.
First City says it had three options:
1. Pay on condition, as it did.
2. Pay nothing and risk foreclosure.
3. Pay in full, even though courts will not order refunds of “voluntary” payments. See Salvaggio v. Houston Indep. School Dist, 709 S.W.2d 306, 308 (Tex.App. — Houston [14th Dist.] 1986, writ dism’d, w.o.j.)
First City argues that options 2 and 3 are no options at all, and if it cannot get relief as it did in this suit, then the courts are closed to its claim. This is no frivolous contention.
Courts should avoid constitutional decisions if a case can be decided on nonconsti-tutional grounds. Moreover, courts should not hold an ordinance unconstitutional, if it can be construed in a constitutional manner. By affirming this judgment, we uphold First City’s access to the courts. We also preserve the public interest in judicial review of government conduct deserving close scrutiny. Consequently, we need not rule on the constitutional issue.
For these reasons, in addition to those stated in Justice Bissett’s opinion, I concur.
O’CONNOR, J., dissenting.