NUMBER 13-22-00031-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PAUL JOHNSON, Appellant,
v.
BASTROP CENTRAL
APPRAISAL DISTRICT, Appellee.
On appeal from the 21st District Court
of Bastrop County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña
Memorandum Opinion by Justice Peña
Appellant Paul Johnson appeals a judgment following a jury trial concluding that
his property did not qualify for open-space appraisal for the 2019 tax year as previously
determined by appellee Bastrop Central Appraisal District (BCAD). See TEX. TAX CODE
ANN. §§ 42.01–.43 (permitting a property owner to seek judicial review of an order of an
appraisal review board). In thirty-seven issues, which we reframe and construe as five
issues, Johnson argues that: (1) the trial court lacked subject matter jurisdiction; (2) there
is legally insufficient evidence supporting the jury’s verdict; (3) the trial court’s jury
instructions were erroneous; (4) the trial court abused its discretion for multiple evidentiary
rulings; and (5) the trial court erred in denying Johnson’s motion to compel. We affirm. 1
I. BACKGROUND
Johnson owns a 20.14-acre property located in Bastrop County called Cripple Gray
Ranch. For tax year 2019, Johnson filed an application with BCAD seeking open-space
land appraisal. See id. § 23.51(1) (“‘Qualified open-space land’ means land that is
currently devoted principally to agricultural use to the degree of intensity generally
accepted in the area[.]”). Johnson claimed the property was native pastureland that was
used as grazing for five horses. BCAD’s chief appraiser denied Johnson’s application
because the property was not devoted principally to agricultural use. Johnson sought
further review from BCAD’s appraisal review board (ARB), which denied Johnson’s
appeal.
Johnson filed suit seeking a de novo review of the ARB’s ruling. See id. § 42.01.
The parties participated in a non-binding arbitration, and the arbitrator ruled that the
property was not entitled to open-space appraisal for tax year 2019. The case then
proceeded to a jury trial, at which the following evidence was adduced. The chief
1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(granting the supreme court the authority to transfer cases from one court of appeals to another if there is
“good cause” for the transfer).
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appraiser for BCAD adopted guidelines for determining whether a property met the
degree of intensity of agricultural use to qualify for open-space land appraisal. The
minimum size of land requirements for native pastureland was fifty-six acres, with a
minimum number of seven animals. During tax year 2019, Johnson’s property did not
meet either minimum requirement. Johnson trained and broke horses for Polocrosse and
pleasure riding on the property. The Cripple Gray Ranch Facebook page advertised that,
“Owners Susan H. Johnson and Paul Johnson raise and train horses for Polocrosse.”
During tax year 2019 horses were trained, stabled, fed, and cared for on the property.
The jury returned a verdict answering “No” to the following question: “Do you find
from a preponderance of evidence that the subject property is entitled to be appraised as
qualified open-space land for tax year 2019?” The trial court signed a final judgment
denying Johnson relief. Johnson filed a motion for judgment notwithstanding the verdict
and a motion for new trial, which were overruled by operation of law. This appeal followed.
II. JURISDICTION
In his first issue, Johnson complains the trial court lacked subject matter jurisdiction
over certain issues. Johnson complains that the trial court only had jurisdiction over issues
and defenses raised by BCAD in its initial denial letter.
A. Standard of Review & Applicable Law
Subject matter jurisdiction is required; without it, a court’s opinion is advisory, and
advisory opinions are not within the purview of the judicial branch of government. Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex. 1993). Accordingly,
subject matter jurisdiction may be raised at any time, including for the first time on appeal.
Id. at 445. We review subject matter jurisdiction questions de novo. Tex. Dep’t of Parks
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& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
“The appraisal records, as changed by order of the ARB and approved by that
board, constitute the appraisal roll for the district.” Willacy Cty. Appraisal Dist. v.
Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29, 40 (Tex. 2018) (citing TEX. TAX CODE
ANN. § 25.24). “Chapter 41 [of the tax code] allows a property owner to file a protest for
substantive challenges to property appraisals.” Id. (citing TEX. TAX CODE ANN. § 41.44).
An appeal of an ARB determination to the district court is a trial de novo,
and the 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
[ANN.] § 42.23(a). 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.” Trial de novo, BLACK’S LAW DICTIONARY (10th
ed. 2014); see also PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d
472, 476 (Tex. 2008). Such a trial is “appellate” only as distinguished from
“original” or “concurrent,” but not in the sense that the evidence is fixed or
that court is confined to that paper record. Id. A trial de novo is not confined
to the same evidence that was presented during the administrative phase,
and “the reviewing court shall try each issue of fact and law in the manner
that applies to other civil suits in this state as though there had not been an
intervening agency action or decision.” Id. Thus, in a trial de novo, a court
may consider arguments and evidence that are introduced afresh.
Id. at 50.
To be eligible for open-space land appraisal, a property owner must establish that
“(1) their land was ‘currently devoted principally to agricultural use,’ (2) the agricultural
use was ‘to the degree of intensity generally accepted in the area,’ and (3) their land ‘has
been devoted principally to agricultural use . . . for five of the preceding seven years.’”
Moers v. Harris Cty. Appraisal Dist., 469 S.W.3d 655, 662 (Tex. App.—Houston [1st Dist.]
2015, pet. denied) (quoting TEX. TAX CODE ANN. § 23.51(1)). The chief appraiser has the
authority to determine applications for open-space land appraisal as well as the degree
of intensity standards. Id. at 263 (citing TEX. TAX. CODE ANN. § 23.57(a), (c)).
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B. Analysis
BCAD’s chief appraiser stated in the initial denial letter that Johnson’s property did
not qualify for open-space land appraisal because it was not devoted principally to
agricultural use. At trial, BCAD introduced evidence regarding whether the property met
the degree of intensity standards established by the chief appraiser and whether the
property met the prior use requirement. The jury charge also contained instructions
related to these elements. Johnson maintains that the trial court only had subject matter
jurisdiction over the issue relied on by BCAD in its initial denial letter—principal use.
A similar argument was rejected by the Texas Supreme Court in Willacy, which
stated that the respondent was:
hybridizing the problems of issue preservation (i.e., that an appealing party
must bring an argument to the attention of the trial court in order for an
appellate court to later consider it) and exhaustion of administrative
remedies (i.e., a party must file and go through an administrative
determination on their claim before filing suit in district court).
Willacy Cty. Appraisal Dist., 555 S.W.3d at 50 (citations omitted). With respect to
preservation, BCAD has not waived issues not raised in the administrative proceedings
because an appeal of the ARB determination to the district court is a trial de novo in which
the trial court tries each issue of fact and law afresh. See id. Further, “[u]nlike the property
owner, [BCAD] had no prior administrative remedy to exhaust at the ARB stage of the
proceedings.” Harris Cty. Appraisal Dist. v. Hous. 8th Wonder Prop., L.P., 395 S.W.3d
245, 251 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). “As the entity responsible
for the initial property valuation, [BCAD] had no right to initiate the protest procedure and
no control over what objections would be presented by the property owner to the ARB.”
Id.; see also Travis Cent. Appraisal Dist. by & Through Crigler v. Tex. Disposal Sys.
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Landfill, Inc., No. 03-20-00122-CV, 2022 WL 2236109, at *6–7 (Tex. App.—Austin June
22, 2022, pet. filed) (mem. op.). We conclude that the trial court had subject matter
jurisdiction over all issues pertaining to whether Johnson’s property qualified for open-
space land appraisal. See Miranda, 133 S.W.3d at 226.
Johnson also argues that BCAD failed to timely produce its evidence at the ARB
hearing in violation of his due process rights, rendering the entire proceeding void.
Johnson thus contends that the trial court was without jurisdiction to consider this void
ruling. Johnson relies on authority stating that an appellate court is without jurisdiction
over the merits of an appeal from a void judgment issued by the trial court. See Waite v.
Waite, 150 S.W.3d 797, 800 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (“If the
judgment is void because the trial court lacked subject matter jurisdiction, we must
declare the judgment void and dismiss the appeal because an appellate court has no
jurisdiction to decide the merits of an appeal from a void judgment or order.”). However,
Johnson cites no authority stating that a trial court lacks jurisdiction to conduct a de novo
trial in an appeal from a void ARB ruling in a Chapter 42 proceeding. More importantly,
Johnson does not provide argument or authority in support of his bare assertion that the
untimely production of documents rendered the ARB ruling void.
Rule 38.1 of the Texas Rules of Appellate Procedure requires that an appellant’s
brief “contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “Bare assertions of error
without argument or authority waive error.” In re J.A.M.R., 303 S.W.3d 422, 425 (Tex.
App.—Dallas 2010, no pet.). An appellate court is not permitted to perform an
independent review of the record and applicable law to determine whether there was
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error. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). In doing
so, we would be abandoning our role as neutral adjudicators and become an advocate
for that party. Id. “When a party fails to adequately brief a complaint, he waives the issue
on appeal.” See Washington v. Bank of New York, 362 S.W.3d 853, 854–55 (Tex. App.—
Dallas 2012, no pet.). We overrule Johnson’s first issue.
III. DEPENDENT ISSUES
In his second and third issues, Johnson raises arguments that are dependent on
those raised in issue one. In his second issue, Johnson contends that there is legally
insufficient evidence supporting the jury’s finding that his property did not qualify for open-
space land appraisal. 2 Johnson argues that the sufficiency of the evidence should be
judged only against whether his property was currently devoted principally to agricultural
use. Johnson does not challenge the sufficiency of the evidence supporting the jury’s
implicit findings that his property did not meet the degree of intensity and prior use
requirements based on his contention that the court was without jurisdiction over those
issues. These findings independently support the jury’s verdict. See Britton v. Tex. Dep’t
of Crim. Just., 95 S.W.3d 676, 682 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“[W]hen
independent jury findings fully support a judgment, an appellant must attack each
independent jury finding to obtain a reversal.”).
In his third issue, Johnson maintains that the trial court’s jury charge was
erroneous for not limiting the jury’s consideration to only whether his property was
2 Johnson raised his no evidence arguments in his motion for judgment notwithstanding the verdict
and motion for new trial. He raised similar arguments in his motion for summary judgment. He contends the
trial court erred by denying all three motions.
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devoted principally to agricultural use. Based on our conclusion that the trial court had
subject matter jurisdiction over all issues and evidence raised in the de novo proceeding,
we necessarily reject these dependent arguments.
Johnson additionally argues under his third issue that the trial court erred in
refusing Johnson’s proposed jury instructions to disregard BCAD’s degree of intensity
guidelines. However, as stated above, the chief appraiser has the statutory authority to
determine the degree of intensity standards for open-space land appraisals. See TEX.
TAX. CODE ANN. § 23.57(a), (c); Moers, 469 S.W.3d at 662. Because Johnson’s proposed
instructions were misstatements of the law, the trial court did not abuse its discretion in
denying those instructions. See Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012) (“An
instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds
support in the pleadings and evidence.”). For the foregoing reasons, we overrule
Johnson’s second and third issues.
IV. EVIDENTIARY RULINGS
In his fourth issue, Johnson challenges several evidentiary rulings. Evidentiary
rulings are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 132 (Tex. 2012). The test for abuse of discretion is “whether the court acted
without reference to any guiding rules and principles.” In re Nat’l Lloyds Ins. Co., 507
S.W.3d 219, 226 (Tex. 2016) (orig. proceeding) (per curiam) (citing Cire v. Cummings,
134 S.W.3d 835, 838 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985)). “A party seeking to reverse a judgment based on
evidentiary error must prove that the error probably resulted in rendition of an improper
judgment.” Bennett v. Comm’n for Lawyer Discipline, 489 S.W.3d 58, 73 (Tex. App.—
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Houston [14th Dist.] 2016, no pet.).
Most of Johnson’s complaints are bare assertions of error, unsupported by
argument or authority. For these complaints, Johnson fails to explain how the trial court
abused its discretion in relation to the applicable rules of evidence. He further fails to
provide any argument or authority on how the trial court’s evidentiary rulings constituted
harmful error. Therefore, we conclude that Johnson has waived these contentions due to
inadequate briefing. See Washington, 362 S.W.3d at 854–55.
Johnson has not preserved the remainder of his complaints either by failing to
timely object at trial or by raising arguments on appeal that do not comport to his
objections at trial. See TEX. R. APP. P. 33.1(a)(1); Martin v. Cottonwood Creek Constr.,
LLC, 560 S.W.3d 759, 763 (Tex. App.—Waco 2018, no pet.) (“In order to preserve error
for appellate review, a party’s argument on appeal must comport with its argument in the
trial court.”). We overrule Johnson’s fourth issue.
V. MOTION TO COMPEL
In his fifth issue, Johnson argues that the trial court erred in denying his motion to
compel the discovery of the identity of BCAD’s on-site inspectors. Similar to many of his
evidentiary complaints, Johnson’s issue is a bare assertion of error, unsupported by
argument and authority. Therefore, he has waived the issue due to inadequate briefing.
See Washington 362 S.W.3d at 854–55. We overrule Johnson’s fifth issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
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L. ARON PEÑA JR.
Justice
Delivered and filed on the
25th day of January, 2024.
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