Aaron Rents, Inc. v. Travis Central Appraisal District

Related Cases

212 S.W.3d 665 (2006)

AARON RENTS, INC., Appellant,
v.
TRAVIS CENTRAL APPRAISAL DISTRICT, Travis County Appraisal Review Board, and Travis County Tax Assessor Collector, Nelda Wells Spears, in Her Official Capacity, Appellees.

No. 03-05-00171-CV.

Court of Appeals of Texas, Austin.

September 8, 2006.

*666 Thomas M. Michel, Griffith, Jay, Michel & Moore, LLP, Fort Worth, and Lorri Michel, Michel Law Firm, P.C., Austin, for Appellant.

Elliott Beck, Assistant County Atty., Judith A. Hargrove, Linebarger Goggan Blair & Sampson, LLP, Austin, for Appellee.

*667 Before Chief Justice LAW, Justices B.A. SMITH, PATTERSON, PURYEAR, PEMBERTON and WALDROP.

OPINION

DAVID PURYEAR, Justice.

In response to appellant's motion for rehearing en banc, we grant the motion, withdraw our opinion and judgment issued on March 23, 2006, and substitute the following opinion. Aaron Rents, Inc., a furniture rental corporation, appeals a district court's judgment that denied its claim for attorney's fees in connection with its successful declaratory judgment action against the Travis Central Appraisal District.[1] Aaron Rents's suit alleged that the District exceeded its statutory authority by "re-appraising" the tangible personal property at Aaron Rents's four locations after the District had certified the property's appraised value to the tax collector.[2] In two issues, Aaron Rents claims that it is entitled to the fees under the Uniform Declaratory Judgments Act and the tax code. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997); Tex. Tax Code Ann. §§ 42.25, .29 (West 2001). Because we conclude that the district court did not abuse its discretion by denying Aaron Rents the attorney's fees it requested under the declaratory judgments act, we affirm that portion of the court's judgment. However, because we conclude that the district court abused its discretion by denying Aaron Rents the attorney's fees it requested under the tax code, we reverse and remand that portion of the court's judgment.

BACKGROUND

In 2003, the legislature added section 22.23(c) to the tax code, which encouraged property owners to render for taxation "tangible personal property used for the production of income that was omitted from the appraisal roll in one of the two preceding years." Tex. Tax Code Ann. § 22.23(c) (West Supp.2005).[3] Before this amendment, the chief appraiser could assess back taxes for personal property that was omitted from the appraisal roll in either of the two preceding years. Id. § 25.21 (West 2001). Section 22.23(c) granted "amnesty" to taxpayers by exempting their previously omitted property from retroactive taxation for the 2001 and 2002 tax years, if they rendered their property by December 1, 2003:

(c) if before December 1, 2003, a person files a rendition statement for the 2003 tax year that provides the information required by section 22.01 as that section exists on January 1, 2004, and, as a result of that information, the chief appraiser discovers that some or all of that person's tangible personal property used for the production of income was omitted from the appraisal roll in one of the two preceding years, the chief appraiser may not add the value of the omitted property to the 2001 or 2002 appraisal roll. This subsection expires January 1, 2005.

Act of May 31, 2003, 78th Leg., R.S., ch. 1173, § 6, 2003 Tex. Gen. Laws 3353, 3356 (expired January 1, 2005).

*668 Rendering tangible personal property for taxation involves filing a "rendition," a statement that contains: (1) the name and address of the property owner; (2) a description of the property by type or category; (3) if the property is inventory, a description of each type of inventory and a general estimate of the quantity of each type of inventory; (4) the physical location or taxable situs of the property; and (5) the property owner's good faith estimate of the market value of the property or, at the option of the property owner, the historical cost when new and the year of acquisition of the property. Tex. Tax Code Ann. § 22.01(a)(1)-(5) (West Supp. 2004-05).

The District sent a letter to all Travis County business owners, advising them of section 22.23(c)'s addition to the tax code and encouraging them to file the enclosed "Special Amnesty Rendition." Aaron Rents failed to file renditions with the District in 2003. It completed amnesty renditions, including depreciation schedules depicting the original cost of its property, because of its concern that there could be a difference between the property's cost and its appraised value in 2004, and that the District might believe that the difference in value was due to property that had been omitted from the appraisal roll. Moreover, because the statute provided for one-time amnesty, Aaron Rents would be precluded from filing an amnesty rendition in 2004.

After receiving these renditions, the District issued "2003 corrected value" appraisals for Aaron Rents's "omitted" property, even though the parties had previously agreed on the 2003 appraised value of the property at all four locations, the tax collector had certified the roll, and the "omitted" property appraisals did not identify any new property at any of Aaron Rents's locations. Asserting that none of its property had been omitted from the 2003 appraisal roll, Aaron Rents filed a protest of the District's "re-appraisal" with the Travis County Appraisal Review Board. Ruling for the District, the Board approved changes to the 2003 appraisal roll that increased the appraisals for Aaron Rents's property at all four locations. Aaron Rents appealed the Board's orders[4] to the district court. See id. § 42.01(1)(B) (West 2001).

Aaron Rents filed a motion for partial summary judgment requesting declarations that (I) the District acted without statutory authority and in violation of section 25.25 of the tax code by re-appraising Aaron Rents's tangible personal property after its value had been certified to the tax collector, (ii) the District's re-appraisal was excessive and unequal under sections 42.25 and 42.26 of the tax code as well as article VIII, section 1 of the Texas Constitution, (iii) any additional taxes resulting from the unlawful re-appraisal were unlawful and void, and (iv) the District should be ordered to correct its tax rolls to reflect the original appraised values. The District filed a motion for partial summary judgment arguing that Aaron Rents was not entitled to attorney's fees and that section 22.23(c) of the tax code authorized the District's actions.

After a hearing, the court denied the District's motion, granted Aaron Rents's motion "on all grounds other than attorney's fees," and reserved the attorney's fees issue for final trial. After final trial, the court ruled that Aaron Rents was not entitled to attorney's fees. On appeal, Aaron Rents contends that it is entitled to attorney's fees under the declaratory judgments *669 act and the tax code. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009; Tex. Tax Code Ann. §§ 42.25, .29.

ANALYSIS

Attorney's Fees Claimed Under Uniform Declaratory Judgments Act

Attorney's fees are recoverable only when provided for by statute or by the parties' agreement. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex.1992). Aaron Rents contends that it is entitled to attorney's fees under the declaratory judgments act. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009. But the UDJA does not require an award of attorney's fees to the prevailing party. Id. ("In any proceeding under [the UDJA], the court may award costs and reasonable and necessary attorney's fees as are equitable and just."); TML Intergovernmental Employee Benefits Pool v. Prudential Ins. Co. of Am., 144 S.W.3d 600, 607 (Tex.App.-Austin 2003, pet. denied). Because the UDJA affords the district court a measure of discretion in awarding the fees, we review the court's denial of a claim for attorney's fees for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The legal principle encompassed in the term "abuse of discretion" concerns a legal error committed by the district court in its award of attorney's fees that injured or prejudiced appellants. Strayhorn v. Raytheon E-Sys., 101 S.W.3d 558, 571 (Tex.App.-Austin 2003, pet. denied). We review a question of legal error de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996).

The District contends that Aaron Rents availed itself of its remedy under the tax code and that it cannot use the UDJA solely to obtain attorney's fees. See Raytheon E-Sys., 101 S.W.3d at 572 (citing Texas State Bd. of Plumbing Exam'rs v. Associated Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex.App.-Austin 2000, pet. dism'd by agr.)). When a statute provides an avenue for attacking an agency order, a declaratory judgment action will not lie to provide redundant remedies. Id. (citing Beacon Nat'l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex.App.-Austin 2002, no pet.)); see also City of Fort Worth v. Pastusek Indus., 48 S.W.3d 366, 371 (Tex.App.-Fort Worth 2001, no pet.) (UDJA cannot be used to evade exclusive administrative process and remedies provided in tax code).

Citing our opinion in Texas Municipal Power Agency v. Public Utility Commission, Aaron Rents argues that its requested declaratory judgment "is not redundant [because] it seeks guidance on the application of [tax code section 22.23(c)] and whether [the District] acted beyond its statutory authority." See 100 S.W.3d 510, 520 (Tex.App.-Austin 2003, pet. denied); see also Act of May 31, 2003, 78th Leg., R.S., ch. 1173, § 6, 2003 Tex. Gen. Laws 3353, 3356 (expired January 1, 2005). In Texas Municipal Power Agency, we noted that Municipal Power's declaratory judgment action requested relief more expansive than the reversal of a particular administrative determination. 100 S.W.3d at 520. But in this case, Aaron Rents's motion urged the court to find that section 22.23(c) did not authorize the District to change the 2003 appraisal roll by increasing the appraised value of Aaron Rents's property after the roll had been certified. Aaron Rents's motion further urged that the answer to the issue "hinge[d] on whether or not the Plaintiff [Aaron Rents] had property that was omitted from the appraisal roll." Thus, unlike the declaration sought in Texas Municipal Power Agency, Aaron Rents's motion clarifies that its declaration sought reversal of a particular administrative determination— that Aaron Rents had property that was omitted from the appraisal roll.

*670 Aaron Rents also cites generally to our opinion in Local Neon Company v. Strayhorn, to support its argument that its declaratory judgment relief is not redundant of its tax protest. See No. 03-04-00261-CV, 2005 WL 1412171, 2005 Tex.App. LEXIS 4667 (Tex.App.-Austin, June 16, 2005, no pet.) (mem.op.). Aaron Rents's requested declaration is distinct from that sought in Local Neon Company because Aaron Rents does not challenge the constitutionality of an administrative rule or the tax protest statutes. See id. 2005 WL 1412171, at *5, 2005 Tex.App. LEXIS 4667 at *24.

Similarly, Aaron Rents's reliance upon Texas Department of Human Services v. ARA Living Centers of Texas, Inc. is misplaced, as that case involved an award of declaratory relief based on one state agency's exercise of enforcement powers that were reserved to another. See 833 S.W.2d 689, 694-95 (Tex.App.-Austin 1992, writ denied). Here, there is no question that the District was authorized to enforce section 22.23(c) and the critical determination "hinge[d] on whether or not the Plaintiff [Aaron Rents] had property that was omitted from the appraisal roll."

Because Aaron Rents's declaratory judgment action sought reversal of the District's determination that Aaron Rents had property that was omitted from the appraisal roll and did not challenge the constitutionality of an administrative rule or tax protest statute, or that the District was exercising enforcement powers that were reserved to another agency, the requested declaratory relief was redundant to that sought in Aaron Rents's tax protest, with the exception of its request for attorney's fees. See Tex. Tax Code Ann. §§ 42.01(1)(B), 25.25 (West 2001). It is an abuse of discretion for a court to award attorney's fees under the UDJA when the relief sought is no greater than relief that otherwise exists by agreement or statute. Raytheon E-Sys., 101 S.W.3d at 572 (citing Texas State Bd. of Plumbing Exam'rs, 31 S.W.3d at 753; University of Tex. v. Ables, 914 S.W.2d 712, 717 (Tex.App.-Austin 1996, no writ)).

Furthermore, if Aaron Rents believed that the District acted beyond its statutory authority, it could have appealed directly to the district court. See MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 625 (Tex.App.-Austin 2005, pet. denied). Aaron Rents chose to pursue its administrative remedy under the tax code by filing a protest with the Board and appealing the Board's orders to the district court. The court ruled in favor of Aaron Rents "on all grounds other than attorney's fees." Aaron Rents's argument that the tax code is inapplicable to its claims against the District—after it availed itself of the code's full administrative process— is not persuasive. Because we find that Aaron Rents availed itself of its administrative remedy under the tax code and that the declaratory judgments act cannot be used to circumvent the code, we conclude that the court did not abuse its discretion in denying the requested attorney's fees under the UDJA. We overrule Aaron Rents's first point of error.

Attorney's Fees Claimed Under Section 42.29 of Tax Code

Aaron Rents next argues that an award of attorney's fees is mandatory under section 42.29 of the tax code because the District's appraisal of its property was excessive. See Tex. Tax Code Ann. §§ 42.25, .29; Zapata County Appraisal Dist. v. Coastal Oil & Gas, 90 S.W.3d 847, 854 (Tex.App.-San Antonio 2002, pet. denied).

The District contends that section 42.29 is inapplicable because the District's subsequent appraisal of Aaron Rents's property did not constitute an "excessive appraisal," i.e., an appraisal in excess of the property's fair market value. It argues *671 that the issue was whether Aaron Rents's property should have been appraised at all after the tax collector certified the 2003 appraisal roll. The District's argument is not persuasive because the court ruled in favor of Aaron Rents on the excessive appraisal issue and the District does not challenge that ruling on appeal. The court's order stated that it granted Aaron Rents's partial summary judgment "on all grounds other than attorney's fees." One of the declarations sought in Aaron Rents's motion was that "the District's reappraisal was excessive . . . under section[] 42.25 . . . of the tax code."

In general, we review a trial court's decision to award attorney's fees for an abuse of discretion and review the amount awarded under a legal sufficiency standard. See Allison v. Fire Ins. Exch., 98 S.W.3d 227, 262 (Tex.App.-Austin 2002, pet. granted, judgm't vacated w.r.m. by agr.). A trial court abuses its discretion if its decision "is arbitrary, unreasonable, and without reference to guiding principles." Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). However, some statutes remove the discretion from the trial court. Cf. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998).

The statutes pertinent to a determination of whether a party is entitled to attorney's fees in this appeal are sections 42.25 and 42.29 of the tax code. See Tex. Tax Code Ann. §§ 42.25, 42.29. Section 42.25 provide as follows:

If the court determines that the appraised value of property according to the appraisal roll exceeds the appraised value required by law, the property owner is entitled to a reduction of the appraised value on the appraisal roll to the appraised value determined by the court.

Id. § 42.25.

Section 42.29 states that a property owner who is successful in an "excessive appraisal" appeal under section 42.25 may be awarded attorney's fees and provides as follows:

(a) A property owner who prevails in an appeal to the court under Section 42.25 or 42.26 may be awarded reasonable attorney's fees. The amount of the award may not exceed the greater of:
(1) $15,000; or
(2) 20 percent of the total amount by which the property owner's tax liability is reduced as a result of the appeal.
(b) Notwithstanding Subsection (a), the amount of an award of attorney's fees may not exceed the lesser of:
(1) $100,000; or
(2) the total amount by which the property owner's tax liability is reduced as a result of the appeal.

Id. § 42.29 (emphasis added).

At first glance, the language in section 42.29 might be read as giving the trial court the discretion to award attorney's fees. See Tex. Gov't Code Ann. § 311.016(1), (2) (West 2005) (in construing statutes, word "may" creates discretionary authority or grants permission or power, but word "shall" imposes duty). However, the determination of whether a statute requires the imposition of attorney's fees or vests the trial court with the discretion to decide does not depend exclusively on whether the statute uses the word "may" or "shall." Cf. Bocquet, 972 S.W.2d at 20. Under the current state of the law, the determination primarily depends on whether the legislature has bestowed a power to trial courts or an entitlement to litigants.

In Bocquet, the supreme court distinguished between statutes that vest a trial court with the discretion to award attorney's fees and statutes that require *672 the court to award attorney's fees. See id.; compare Tex. Fam.Code Ann. § 106.002 (West Supp.2005) (court may render judgment for reasonable attorney's fees), with Tex. Civ. Prac. & Rem.Code Ann. § 38.001 (West 1997) (person may recover attorney's fees). Statutes providing that a "court may award" attorney's fees grant courts a measure of discretion in awarding attorney's fees, but statutes providing that a "party may recover," "party shall be awarded," or "party is entitled to" attorney's fees mandate an award of fees that are reasonable and necessary. See Bocquet, 972 S.W.2d at 20. The distinction drawn by the supreme court seems to hinge upon whether the statute in question speaks to what the litigant may receive or what the court may award. See Zapata County Appraisal Dist. v. Coastal Oil & Gas Corp., 90 S.W.3d 847, 853 (Tex.App.-San Antonio 2002, no pet.); Kimbrough v. Fox, 631 S.W.2d 606, 609 (Tex.App.-Fort Worth 1982, no writ).

An apparent split of authority has developed among Texas courts regarding which meaning attaches to section 42.29. In Tex-Air Helicopters, Inc. v. Appraisal Review Board of Galveston County, the Houston Court stated that under section 42.29 the trial court has the discretion to award attorney's fees. 940 S.W.2d 299, 304 (Tex.App.-Houston [14th Dist.] 1997), aff'd, 970 S.W.2d 530 (Tex.1998). However, because the trial court had determined that Tex-Air was not a prevailing party, the Houston Court did not reach the issue of attorney's fees. Id. The Texarkana Court made a similar statement in Tex-Air Helicopters, Inc. v. Harris County Appraisal District 15 S.W.3d 173, 177 (Tex.App.-Texarkana 2000, pet. denied). In that case, the court stated that the award of attorney's fees was discretionary but concluded that, because the case did not involve an "excessive appraisal," section 42.29 did not apply. Id.

The San Antonio Court, on the other hand, addressed the issue of attorney's fees and concluded that section 42.29 entitled a prevailing party to recover attorney's fees. Zapata, 90 S.W.3d at 854. In making this determination, the court relied on a distinction originally articulated in Kimbrough. Id. at 854. In Kimbrough, the court was faced with the question of whether a statute stating that a "claimant may . . . also recover . . . a reasonable amount of attorney's fees" was mandatory or discretionary. 631 S.W.2d at 609 (quoting Tex.Rev.Civ. Stat. Ann. art. 2226 (1979)). The Kimbrough court specified that "the question is whether . . . the legislature granted the litigant permission to recover the fees or whether it granted the trial court permission to either award or deny such fees." Id. Ultimately, the Kimbrough court concluded that the statutory language ("claimant may . . . recover . . . attorney's fees") granted the litigant the right to recover attorney's fees and expressly held that the use of the term "may" was not dispositive of whether the trial court had discretion to award attorney's fees. Id.

In reaching its conclusion in Zapata, the San Antonio Court also relied on the distinction described in Bocquet. 90 S.W.3d at 854. The court concluded that a statute providing that a "property owner . . . may be awarded" attorney's fees is more similar to a statute providing that "a party may recover" than it is to a statute specifying that a "court may award" attorney's fees. Id. As a result, the court concluded that the award of attorney's fees is mandatory. Id.

The real difficulty in this case arises due to the fact that this particular statute is neither clearly one or the other of the types of statutes distinguished in Bocquet. Due to the use of passive voice in the statute, the wording could be rearranged *673 and construed to mean that trial courts have the discretion to award attorney's fees to prevailing property owners. For example, the statute as written specifies that "[a] property owner . . . may be awarded reasonable attorney's fees." Tex. Tax Code Ann. § 42.29. The statute could be construed as impliedly stating that "a property owner . . . may be awarded reasonable attorney's fees by the trial court." Given the implied addition of the words "by the trial court" and due to the use of passive voice in the statute, the wording of the statute could be inverted to make the "trial court" the subject of the sentence and to read as follows: "the trial court may award a property owner reasonable attorney's fees." Under this inverted reading, the statute vests the trial court with the discretion to award attorney's fees.

However, the supreme court has indicated its reluctance to engage in wordplay to ascribe meaning to a statute that contradicts the meaning expressed in an unaltered reading of the statute. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 358 (Tex.2000) (courts must take statutes as they find them and should not give strained readings to statutes). When determining the meaning of a statute, our task is to interpret the statute as written. See In re Doe, 19 S.W.3d 346, 351 (Tex.2000) (statutes must be interpreted as written); Sorokolit v. Rhodes, 889 S.W.2d 239, 241-42 (Tex.1994). In construing statutes, our goal is to give effect to the legislature's intent. Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex.2004). Every word in a statute is presumed to have been used for a purpose and every word excluded must have been excluded for a purpose. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Further, the legislature is presumed to be aware of case law interpreting statutes it enacts. General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 596 (Tex.2001).

Section 42.29 was originally enacted after the distinction in attorney's fees was articulated in Kimbrough. See Act of May 26, 1983, 68th Leg., R.S., ch. 905, § 1, sec. 42.29, 1983 Tex. Gen. Laws 5033. When it enacted the statute, the legislature did not specify that the "court may award attorney's fees"; rather, the legislature specified that the prevailing taxpayer "may be awarded" attorney's fees. The phrase a "property owner may be awarded attorney's fees" is the functional equivalent of the phrase a "party may recover attorney's fees," which the supreme court has stated entitles a party to attorney's fees. See Bocquet, 972 S.W.2d at 20. Had the legislature intended to give trial courts the discretion to deny fees to a prevailing property owner, they would have drafted the statute accordingly. See Kimbrough, 631 S.W.2d at 609.[5]

*674 Under the previous version of section 42.29, a prevailing party was "entitled to reimbursement for reasonable attorney's fees." See Act of May 26, 1979, 66th Leg., R.S., ch. 841, § 1, 1983 Tex. Gen. Laws 2217, 2312. The bill analysis attaches no significance to the change in language from a property owner "is entitled to . . . attorney's fees" to "a property owner . . . may be awarded attorney's fees."[6]See Senate Comm. on Finance, Bill Analysis, H.B. 1580, 68th Leg., R.S. (1983). Had the legislature intended a substantive change in the statute with respect to the award of attorney's fees in the excessive appraisal context, one might look for some mention of that intention in the legislative history. We found none.

This interpretation of section 42.29 is also supported by a recent opinion from the Dallas Court of Appeals. In Gardner v. Warehouse Partners, the court was asked to decide whether remedies afforded to a prevailing tenant in section 92.0081 of the property code were mandatory or discretionary. No. 05-97-01501-CV, 2000 WL 284185, 2000 Tex.App. LEXIS 1766 (Tex.App.-Dallas Mar. 17, 2000, no pet.). Section 92.0081 provides, in relevant part, as follows:

(h) If a landlord violates this section, the tenant may:
. . .
(2) recover from the landlord a civil penalty of one month's rent plus $500, actual damages, court costs, and reasonable attorney's fees in an action to recover property damages, actual expenses, or civil penalties, less any delinquent rent or other sums for which the tenant is liable to the landlord.

Tex. Prop.Code Ann. § 92.0081(h) (West Supp.2005) (emphasis added). Even though the statute uses the words "may recover" when describing remedies available to the tenant, the court concluded that the language of section 92.0081 is mandatory, not discretionary, and that the prevailing tenant was "entitled to recover from Warehouse and Glendale the greater of his actual damages or one months rent and reasonable attorney's fees." Id. 2000 WL 284185, at *1, 2000 Tex.App. LEXIS 1766 at *3 (citing Bocquet, 972 S.W.2d at 20). Further, the court concluded that the trial court abused its discretion in failing to award Gardner the amount in question. Id. Like section 92.008, the subject of the relevant portion of section 42.29 of the tax code is a prevailing party, not the court. In addition, section 42.29, like section 92.0081, couples the use of a prevailing party as the subject of the statute with the use of the word "may" when describing remedies available to a litigant.

The unusual circumstances of this type of claim also support the conclusion that the award of attorney's fees to a prevailing property owner is not discretionary. The statute in question mandates the issuance of attorney's fees after a party has proven that the government has issued an excessive appraisal of the party's property. See Tex. Tax Code Ann. §§ 42.25 (remedy for excessive appraisal), 42.29. When an excessive appraisal is issued, a property owner is forced to pay more in taxes than is actually required. To recover the amount of money overpaid, the property owner must go through the onerous task and added expense of preparing and filing a lawsuit against the government. Given this fact setting, it is reasonable to conclude *675 the legislature intended parties to recover the amount of attorney's fees incurred in pursuing their claims when they prevail.

Were the slate clean, we would not draw the extremely subtle semantic distinction originally articulated in Kimbrough. Courts should be able to presume that the legislature speaks in more direct ways than this distinction implies. Further, we should be able to presume that, when the legislature uses phrases like "a party may recover attorney's fees" or "a party may be awarded attorney's fees," the legislature means what the phrases indicate: that an award of attorney's fees is discretionary. However, the slate is not clean. For all the reasons previously described, we conclude that Zapata articulates the correct reading of section 42.29, particularly in light of the supreme court's statement in Bocquet.

In its analysis, the dissent ignores the distinction articulated in Kimbrough and Bocquet and concentrates solely on the use of the word "may" and the use of passive voice in section 42.29. In support of its assertion that the phrase "may be awarded" in section 42.29 necessitates the conclusion that the award of attorney's fees is within the discretion of the trial court, the dissent cites to section 41.003(a) of the civil practice and remedies code, which provides, in relevant part, as follows:

Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves. . . .

Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a) (West Supp.2005).

The dissent notes that section 41.003 is a discretionary statute and asserts that this statute is similar to section 42.29. However, this statute differs significantly from section 42.29. This statute does not contain the same grammatical structure as the relevant portion of section 42.29. The subject of section 41.003(a) is "exemplary damages" whereas the subject of section 42.29 is "[a] property owner." Because the subject of the sentence is not the litigant, this statute is not similar to the type of statutes specified in Bocquet as mandating the award of attorney's fees. See Bocquet, 972 S.W.2d at 20 (mandatory statutes include statutes specifying "party may recover" and "party is entitled to recover" attorney's fees) (emphasis added). Further, section 41.010 of the civil practice and remedies code specifically states that the award of exemplary damages is "within the discretion of the trier of fact." Id. § 41.010(b) (West Supp.2005). There is no comparable statutory declaration regarding attorney's fees in the excessive appraisal context.

In further support of its argument, the dissent also cites to a statute the court in Bocquet considered to be a discretionary statute—former section 11.18(a) of the family code, which provides, in relevant part, as follows:

In any proceeding under this subtitle, including, but not limited to, habeas corpus, enforcement, and contempt proceedings, the court may award costs. Reasonable attorney's fees may be taxed as costs. . . .

Act of May 31, 1981, 67th Leg., R.S., ch. 355, § 3, 1981 Tex. Gen. Laws 942, 944 (emphasis added). This statute was later recodified into section 106.002 of the family code and amended to provide, in relevant part, as follows: "the court may order reasonable attorney's fees. . . ." See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 133.[7] The bill *676 analysis to the recodification states that the amendment to the statute was meant as a nonsubstantive recodification. See House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 655, 74th Leg., R.S. (1995). Based on the nonsubstantive nature of the amendment, the amended statute's language explicitly empowering the trial court to award attorney's fees, and the use of passive voice in section 42.29, the dissent argues that the phrase "may be awarded" found in section 42.29 similarly vests the trial court with the discretion to award attorney's fees.

The dissent's reliance on this statute is misplaced. In its analysis, the dissent ignores one of the tenets of statutory construction: to interpret the statute as a whole and give effect to every part. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). Even prior to the amendment, former section 11.18(a) specifically vested the discretion to issue attorney's fees with the trial court. The sentence authorizing imposition of attorney's fees as "costs" comes immediately after the sentence allowing the trial "court" to award "costs." See Act of May 31, 1981, 67th Leg., R.S., ch. 355, § 3, 1981 Tex. Gen. Laws 942, 944. Therefore, the statute's subsequent amendment is no indication that the phrase "may be awarded," regardless of the subject of the statute, always vests trial courts with the discretion to award fees.

Moreover, even if we were to employ the dissent's compartmentalized analysis of this statute, the phrase relied upon by the dissent in former section 11.18 ("[r]easonable attorney's fees may be taxed") also has the same structural distinction from section 42.29 discussed previously in relation to section 41.003 of the civil practice and remedies code. Specifically, the subject of the sentence in former section 11.18 is attorney's fees, not litigants or parties. Further, unlike section 42.29, former section 11.18 does not mention litigants, parties, or defendants in the entire subsection.

In its analysis, the dissent also comments on the fact that one of the statutes analyzed in one of the cases cited by the Kimbrough court for the distinction at issue in this case has been superseded. See 631 S.W.2d at 609 (citing Woods v. Littleton, 554 S.W.2d 662 (1977)). In Woods, the supreme court construed the language "each consumer who prevails may obtain: (1) three times the amount of actual damages plus court costs. . . ." found in section 17.50(b) of the business and commerce code to mean that the legislature intended that the award of treble damages was mandatory upon establishment of all necessary prerequisites. 554 S.W.2d at 669-70. The statute has been amended to allow the imposition of damages up to three times the amount of economic damages if the trier of fact determines the defendant acted knowingly. See Bus. & Com.Code Ann. § 17.50(b)(1) (West 2002); see also Horta v. Tennison, 671 S.W.2d 720, 724 (Tex.App.-Houston [1st Dist.] 1984, no writ.) (noting that, under previous version, imposition of treble damages was mandatory). The fact that the statute has been amended to place the discretion of issuing an award of damages in the hands of the trier of fact does not detract from the supreme court's conclusion that the language of the original statute was mandatory.

Accordingly, we hold that, upon request by a prevailing party under section 42.25, an award of reasonable attorney's fees is mandatory under section 42.29. Because Aaron Rents made a request for attorney's fees, the district court abused its discretion in failing to award reasonable attorney's fees. Therefore, we sustain Aaron Rents's second issue on appeal.

*677 CONCLUSION

Having overruled Aaron Rents's first issue on appeal, we affirm that portion of the district court's judgment. Having sustained Aaron Rents's second issue on appeal, we reverse that portion of the judgment of the district court and remand the case for proceedings consistent with this opinion.

JAN P. PATTERSON, Justice dissenting.

Today, a majority of this Court eviscerates the longstanding distinction between that which the legislature has deemed mandatory and that which the legislature has left to the trial court's discretion. Although the majority correctly concludes that an award of attorney's fees is not required under the Uniform Declaratory Judgments Act,[1] the majority misinterprets the phrase "may be awarded" in section 42.29 of the tax code to require a mandatory award of attorney's fees to a prevailing party. See Tex. Tax Code Ann. § 42.29 (West 2001). Because neither the plain language of section 42.29, supreme court precedent, legislative history, or the use of similar language in other statutory provisions supports the majority's construction of section 42.29, I respectfully dissent.

ANALYSIS

Aaron Rents argues that an award of attorney's fees is mandatory under section 42.29 of the tax code because the District's appraisal of its property was excessive. See Tex. Tax Code Ann. §§ 42.25, .29 (West 2001). Whether section 42.29 mandates an award of attorney's fees or leaves such an award to the trial court's discretion is a matter of statutory construction, which we review de novo. See Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002) (reviewing statutory construction question de novo). This Court's obligation in construing a statute is to determine and give effect to the legislature's intent. Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex.2004). We derive legislative intent from the entire act, not just its isolated portions. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). When construing a statute, we begin with the statute's plain language. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). Because the Code Construction Act applies when construing the tax code, see Tex. Tax.Code Ann. § 1.03 (West 2001), we may also consider:

(1) the object sought to be obtained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.

Tex. Gov't Code Ann. § 311.023 (West 2005).

The plain language of section 42.29 does not support the majority's interpretation

Originally enacted by the legislature in 1983,[2] section 42.29 of the tax code provides *678 that "[a] property owner who prevails in an appeal to the court under [s]ection 42.25 or 42.26 may be awarded reasonable attorney's fees." Tex. Tax Code Ann. § 42.29 (emphasis added). The plain language of this provision bespeaks a deliberate legislative choice that the trial court may award attorney's fees to a successful party, not that an award of attorney's fees is required. As stated in section 311.016(1) of the Code Construction Act, use of the word "may" "creates discretionary authority or grants permission or a power." See Tex. Gov't Code Ann. § 311.016(1) (West 2005). By its use of the word "may" in section 42.29, the legislature has granted discretionary power in the trial court to determine whether an award of attorney's fees is appropriate. Had the legislature intended to impose a mandatory award of attorney's fees, it would have used the word "shall." See Tex. Gov't Code Ann. § 311.016(2) (West 2005) ("shall" imposes a duty); see also Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998) (statutes providing that a party "shall be awarded" attorney's fees are not discretionary) (emphasis added).

Supreme court precedent does not support the majority's interpretation

Although the majority recognizes the general rule that "may" is discretionary and "shall" is mandatory, the majority ignores this rule in favor of a judicially created exception based on the supreme court's decision in Bocquet v. Herring, 972 S.W.2d 19 (Tex.1998). The majority misinterprets Bocquet and erroneously concludes that, at least in this context, "may" means "must" or "shall." Bocquet does not support the majority's conclusion.

In Bocquet, the supreme court considered the proper standard of review for an award of attorney's fees under the UDJA. 972 S.W.2d at 20. Finding that the UDJA stated that a court "may" award attorney's fees, the supreme court held that such language does not require an award of attorney's fees but, instead, affords a "measure of discretion" to the trial court in deciding whether to award attorney's fees. Id. (citing Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637-638 (Tex.1996); Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 444-446 (Tex.1994); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 398-399 (Tex.1989); Duncan v. Pogue, 759 S.W.2d 435, 435-436 (Tex. 1988); Oake v. Collin County, 692 S.W.2d 454, 455-456 (Tex.1985)). Comparing other statutes that provided for attorney fee awards, the supreme court confirmed that statutes providing that a court "may" award attorney's fees are discretionary, see id. (collecting cases), whereas statutes providing that a party "may recover," "shall be awarded," or "is entitled to" are not. See id. at 20-21. (collecting cases).[3]

*679 The supreme court's holding that the phrase "shall be awarded" requires a mandatory award of attorney's fees makes clear that the phrase "may be awarded" is different and does not require a mandatory award of attorney's fees. See 927 S.W.2d at 20-21; see also In re Bell, 91 S.W.3d 784, 790 (Tex.2002) (explaining that we must presume that every word included in a statute has been used for a purpose). The majority fashions a new rule for determining whether attorney's fees are mandatory or discretionary based on who is the "actor" or the "subject" specified in the statute. According to the majority, if the statute provides that the trial court "may award" attorney's fees, then the statute is discretionary and an award of attorney's fees is at the option of trial court; thus, the majority reasons that if the statute provides that a party "may recover" or "obtain" attorney's fees, then the statute is mandatory and requires an award of attorney's fees. This argument proves too much.

But a proper analysis of the statutes considered by the court in Bocquet demonstrates that the phrase "may be awarded" affords a "measure of discretion" in the trial court to award such fees. 972 S.W.2d at 20-21. For example, one of the statutes considered in Bocquet was former section 11.18(a) of the family code.[4]See Bocquet, 972 S.W.2d at 20 (citing Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996)). As amended by the legislature in 1981, section 11.18(a) provided that attorney's fees "may be taxed" and may be ordered to be paid directly to the attorney. See Act of May 31, 1981, 67th Leg., R.S., ch. 355, § 3, 1981 Tex. Gen. Laws 942, 944. After this amendment, the full text of section 11.18(a) provided:

In any proceeding under this subtitle, including but not limited to, habeas corpus, enforcement, and contempt proceedings, the court may award costs. Reasonable attorney's fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order for fees in his own name.

See id. (emphasis added). Like the "may be awarded" language in section 42.29 of the tax code, former section 11.18(a) of the family code couples the word "may" along with use of the passive voice in the phrase "may be taxed." The supreme court held such language to be discretionary. Bocquet, 972 S.W.2d at 20 (citing Bruni, 924 S.W.2d at 368).[5] Contrary to the majority's opinion, this holding supports the interpretation that the phrase "may be awarded" in section 42.29 is also discretionary.[6]

Moreover, in 1995, the legislature recodified former section 11.18(a) of the family *680 code into section 106.002. See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 133 (current version at Tex. Fam.Code Ann § 106.002 (West 2002)) (recodifying Title 2 of the family code). The amended statute now provides: "In a suit under this title, the court may order reasonable attorney's fees as costs and order the fees to be paid directly to an attorney." Tex. Fam.Code Ann. § 106.002. Because this change was the product of a nonsubstantive recodification,[7] the revised language confirms that an award under former section 11.18(a) was discretionary, not mandatory.

Although the majority ultimately agrees that an award of attorney's fees under former section 11.18(a) was discretionary, the majority opines that this was always the case because the first sentence of former section 11.18(a) "specifically vested" the trial court with discretion "to award `costs.'" Therefore, the majority argues, since the trial court could only award reasonable attorney's fees as costs, such an award must have been discretionary because any award of costs was already discretionary as provided in the first sentence of the statute. This circular reasoning lends no support to its claim that the phrase "may be awarded" in section 42.29 of the tax code requires a mandatory award of attorney's fees. Costs are not the equivalent of attorney's fees, and without the second sentence of former section 11.18(a), specifying that attorney's fees "may be taxed as costs," there would have been no provision for the award of attorney's fees at all. The majority's analysis fails to give effect to the full text of the statute and ignores two important rules of statutory construction: the legislature included every word in a statute for a purpose, and the legislature has not done a useless act. See In re Bell, 91 S.W.3d at 790; Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex.2004).

The majority's reliance on the split decision by the San Antonio court of appeals in Zapata County Appraisal District. v. Coastal Oil & Gas Corporation, 90 S.W.3d 847 (Tex.App.-San Antonio 2002, pet. denied), is similarly misplaced.[8] Like the supreme court in Bocquet, the majority of the San Antonio court in Zapata traces its reasoning to a 1982 decision by the Fort Worth court of appeals in Kimbrough v. Fox, 631 S.W.2d 606 (Tex.App.-Fort Worth 1982, no writ). In Kimbrough, the Fort Worth court of appeals considered whether article 2226 of the revised civil statutes required a mandatory award of attorney's fees. 631 S.W.2d at 609. At the time, article 2226 provided in relevant part that "a claimant may recover . . . a reasonable amount as attorney's fees." Id. (quoting former Tex.Rev.Civ. Stat. Ann. art. 2226 (Vernon 1971)[9]). Although the court noted that "may" was permissive and "shall" was mandatory, the Fort Worth court of appeals concluded that the question turned upon legislative intent and in whom the *681 legislature had vested authority in article 2226. Id. Stated differently, the Kimbrough court explained that whether a fee award was mandatory or discretionary depended on whether the legislature had granted the litigant permission to recover attorney's fees or whether it had granted the trial court permission to award or deny such fees. Id. Relying on the supreme court's decision in Woods v. Littleton, 554 S.W.2d 662 (1977), the Fort Worth court of appeals in Kimbrough held that the phrase "may recover" provided for a mandatory award of attorney's fees. Kimbrough, 631 S.W.2d at 609. In Woods v. Littleton, the supreme court considered whether the phrase "may obtain" in section 17.50(b) of the business and commerce code entitled a claimant to a mandatory award of treble damages. Woods, 554 S.W.2d at 668-69. Although the supreme court concluded that the phrase "may obtain" was mandatory in the context of an award of treble damages under section 17.50(b), that holding has since been abrogated by statutory amendment as recognized in Horta v. Tennison, 671 S.W.2d 720, 724 (Tex.App.-Houston [1st Dist.] 1984, no writ).

But even if one accepts the distinction created in Bocquet, Kimbrough and Woods, the phrase "may be awarded" does not compel a mandatory award of attorney's fees. Although both of the statutes at issue in Kimbrough and Woods used the word "may," neither of those statutes coupled the word may with use of the passive voice. See Kimbrough, 631 S.W.2d at 609; Woods, 554 S.W.2d at 668-69. As one commentator has explained, "The point about passive voice is that the subject of the clause does not perform the action of the verb." Brian A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts 157 (1999). Use of the passive voice requires the addition of a "by-phrase" to reveal the true actor of the sentence. Id. at 158. With this addition, section 42.29 becomes: "a property owner . . . may be awarded reasonable attorney's fees [by the trial court]." Even under the majority's "actor/subject" rule it is the trial court—not the litigant—who is the actor and subject in section 42.29. Accordingly, Bocquet, Kimbrough, and Woods do not support the interpretation of the phrase "may be awarded" urged by the majority here.

Legislative history does not support the majority's interpretation

When the legislature enacted section 42.29 of the tax code in 1983, it repealed section 42.27 of the tax code in the same legislation. See Act of May 30, 1983, 68th Leg., R.S., ch. 905, §§ 1-2, 1983 Tex. Gen. Laws 5033 (enacting section 42.29 and repealing section 42.27). Prior to these 1983 amendments, former section 42.27(d) provided that a prevailing taxpayer was "entitled to reimbursement for reasonable attorney's fees." See Act of May 26, 1979, 66th Leg., R.S., ch. 841, § 1, 1983 Tex. Gen. Laws 2217, 2312.

In changing the words of the statute, we may not lightly presume that the legislature has done a useless act. Travis County v. Pelzel & Assocs., 77 S.W.3d 246, 250 (Tex.2002) (citing Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.1998) (construing statute in which the legislature changed the word "company" to "person")). And the legislature is presumed to enact a statute with complete knowledge of the existing law and with reference to it. Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990). In reaching the conclusion that section 42.29 is mandatory, however, the majority ignores its legislative history. Based on the change in the statutory language, it is clear that the legislature intended to change attorney's fees in section 42.29 from a mandatory entitlement to a discretionary award.

*682 The majority is wrong to assume that the legislature would have mentioned its intent to make a substantive statutory change in the bill analysis. When the legislature changes statutory language from "is entitled to attorney's fees" to "may be awarded attorney's fees," we do not presume the legislature has done a useless act. Brown, 156 S.W.3d at 566. As the supreme court has recognized, the mere deletion of a word during recodification plainly indicates the legislature's intent to alter the substantive meaning of a statute. Fleming Foods v. Rylander, 6 S.W.3d 278, 286 (Tex.1999). Given this clear change in the plain language of the statute, there is no need to assume, much less expect, that the legislature would have to explain itself or its intent in a bill analysis.

Use of similar language in other statutes does not support majority's interpretation

The majority fails to consider the legislature's use of the phrase "may be awarded" in contexts other than attorney's fees awarded under section 42.29. But adoption of the majority's interpretation of "may be awarded" in this context could lead to absurd results and unintended consequences when applied in other contexts beyond section 42.29.

For example, in the context of exemplary or punitive damages, the legislature has stated "exemplary damages may be awarded" if the claimant proves by clear and convincing evidence that the harm for which recovery is sought resulted from fraud, malice, or gross negligence. Tex. Civ. Prac. & Rem.Code Ann. § 41.003(a) (West Supp.2005). No one would argue that the decision to award exemplary damages is mandatory. See Tex. Civ. Prac. & Rem.Code Ann. § 41.010(b) (West Supp. 2005) (giving trier of fact discretion to award exemplary damages). But adoption of the majority's interpretation of the "may be awarded" language in section 42.29 of the tax code could result in a mandatory award of exemplary damages upon the requisite proof under section 41.003 of the civil practices and remedies code. See id. § 41.003(a). Such a result would be in direct conflict with section 41.010 of the civil practices and remedies code because that section expressly provides that the decision to award exemplary damages is discretionary. Accordingly, the legislature's use of the phrase "may be awarded" in section 41.003 of the civil practices and remedies code confirms that such language is discretionary, not mandatory.

Another more recent legislative enactment likewise confirms that the phrase "may be awarded" is discretionary, not mandatory. In 2005, the legislature changed the language in section 3106.002 of the government code[10] from "may be awarded" to "shall be awarded." See Act of May 25, 2005, 79th Leg., R.S., ch. 99, § 1, 2005 Tex. Gen. Laws 3295. Section 3106.002 provides for the award of the Peace Officers' Star of Texas Award to each peace officer seriously injured in the line of duty and to the surviving next of kin of each peace officer who is killed or sustains a fatal injury in the line of duty. Tex. Gov't Code Ann. § 3106.002 (West Supp.2005). The bill analyses for this 2005 amendment confirm that section 3106.002 now requires, rather than authorizes, an award under this statute. See Senate Comm. on Intergovernmental Relations, Bill Analysis, Tex. H.B.1977, 79th Leg., R.S. (2005); House Comm. on Transp., Bill Analysis, Tex. H.B.1977, 79th Leg., R.S. (2005). In other words, this 2005 amendment *683 makes clear that the phrase "may be awarded" is discretionary, not mandatory.

The majority's interpretation portends unintended consequences. By interpreting section 42.29 of the tax code to require a mandatory award of attorney's fees to a prevailing party, the majority provides an incentive for taxpayers to challenge the district's tax appraisal. Although the majority construes this incentive as necessary to encourage districts to engage in settlement negotiations as opposed to litigation, indeed the opposite may result. To accept the majority's interpretation, districts may now have an incentive to negotiate a settlement rather than pursuing litigation, but taxpayers will have the opposite incentive knowing that, should they succeed, they will be entitled to an automatic award of attorney's fees. This interpretation may well result in more taxpayer suits and could have an unintended impact on the government fisc. Appraisal districts are merely the entities that assess and collect local property taxes. By requiring appraisal districts to fund a mandatory award of attorney's fees under section 42.29 of the tax code, the majority exposes local taxing units to uncontemplated costs that "may hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments [and attorney's fees] rather than using those resources for their intended purposes." See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex., 2006). This will surely require local taxing authorities to re-calibrate and, perhaps, increase local property taxes to account for the majority's interpretation of this statute. That simply cannot be what the legislature intended when it spoke clearly that attorney's fees "may be awarded" to a prevailing party under section 42.29 of the tax code.

CONCLUSION

Because neither the plain language of the statute, supreme court precedent, legislative history, nor use of the phrase "may be awarded" in other statutes supports the majority's interpretation that section 42.29 of the tax code requires a mandatory award of attorney's fees to a prevailing party, I dissent.

NOTES

[1] Aaron Rents, Inc. dismissed its claims against the Travis County Tax Assessor-Collector, Nelda Wells Spears.

[2] Aaron Rents nonsuited its federal and state constitutional due process claims against the Travis Central Appraisal District and Travis County Appraisal Review Board. The record shows that Aaron Rents and the District are the only parties to this appeal.

[3] The parties referred to section 22.23(c) by its precodification bill number, Senate Bill 340. See Act of May 31, 2003, 78th Leg., R.S., ch. 1173, § 6, 2003 Tex. Gen. Laws 3353, 3356 (expired January 1, 2005).

[4] The Board issued four orders concerning the tangible personal property—rental furniture—at each of Aaron Rents's locations.

[5] We note that, in an unpublished opinion, this Court previously concluded that an award of attorney's fees under section 42.29 is discretionary. See Hays County Appraisal Dist. v. Mayo Kirby Springs, 903 S.W.2d 394 (Tex.App.-Austin 1995, no writ.); see also Tex. R.App. P. 47.7 ("Opinions not designated for publication by the court of appeals . . . have no precedential value. . . ."). However, this case was decided before the supreme court decided Bocquet. Further, in support of its conclusion that the language in section 42.29 is discretionary, this Court cited to the Texas Uniform Declaratory Judgments Act, which provides as follows:

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney's fees as are equitable and just.

Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997).

Unlike section 42.29 of the tax code, the declaratory judgment act specifically gives trial courts the power to decide whether to award attorney's fees. See Tex. Tax Code Ann. § 42.29.

[6] The only mention of attorney's fees in the bill analysis states that the purpose of section 42.29 is to "provide a maximum amount of attorney's fees that may be awarded. . . ." Senate Comm. on Finance, Bill Analysis, H.B. 1580, 68th Leg., R.S. (1983). However, the statutory cap on attorney's fees found in section 42.29 is not relevant to the issue in this case.

[7] The current version of section 106.002 provides, in relevant part, as follows: "the court may render judgment for reasonable attorney's fees and expenses. . . ."

Tex. Fam.Code Ann. § 106.002 (West Supp. 2005).

[1] See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 1997) ("In any proceeding under [the UDJA], the court may award costs and reasonable and necessary attorney's fees as are equitable and just.")

[2] See Act of May 30, 1983, 68th Leg., R.S., ch. 905, § 1, 1983 Tex. Gen. Laws 5033 (amended 1991, 1997) (current version at Tex. Tax Code Ann. § 42.29 (West 2001)).

[3] One of the statutes held by the supreme court to require a mandatory award of attorney's fees was former section 251.008 of the election code. See Bocquet, 972 S.W.2d at 20-21 (citing Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 86 (Tex.App.-Dallas 1990), aff'd in part and rev'd in part on other grounds, 801 S.W.2d 880 (Tex.1990)). Without further explanation or citation, the supreme court mentions that former section 251.008 has been recodified as section 253.131 of the election code. See Bocquet, 972 S.W.2d at 20-21. Although former section 251.008 provided, inter alia, that a person who knowingly makes or accepts an unlawful campaign contribution "shall be civilly liable" to an opposing candidate for "reasonable attorneys' fees," see Ragsdale, 790 S.W.2d at 81, section 253.131 (and section 253.132) of the election code now provides that reasonable attorney's fees "may be awarded." See Tex. Elec.Code Ann. § 253.131(e) (West 2003); see also id. § 253.132(c) (West 2003) (stating that reasonable attorney's fees "may be awarded").

[4] Act of May 25, 1973, 63rd Leg., R.S., ch. 543, § 1, 1973 Tex. Gen. Laws 1411, 1419, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113.

[5] This Court has likewise found issues raised under former section 11.18(a) to "concern matters within the trial court's discretion." See Satterfield v. Huff, 768 S.W.2d 839, 841 (Tex.App.-Austin 1989, no writ) (opinion on reh'g).

[6] Likewise, the majority's citation to the unpublished opinion in Gardner v. Warehouse Partners, No. 05-97-01501-CV, 2000 WL 284185, 2000 White & W. 1766 (Tex.App.-Dallas Mar.17, 2000, no pet.), does not support the result it seeks. In Gardner, the court considered whether the remedies afforded to a prevailing tenant under section 92.0081 of the property code were mandatory or discretionary. Id. Because section 92.0081 provided that the tenant "may recover" the specified remedies, the court concluded that such remedies were mandatory. Id. But language stating that a party may recover attorney's fees is not the same as language stating that a party may be awarded attorney's fees. Thus, Gardner fails to resolve the question at hand— namely, how to interpret the phrase "may be awarded" as used in section 42.29 of the tax code.

[7] The bill analysis prepared by the House Committee on Juvenile Justice and Family Issues states:

The intent of this bill is a nonsubstantive recodification of the statutes relating to parents and children and suits affecting the parent—child relationship. This recodification does not make changes in the meaning or intent of present law.

House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 655, 74th Leg., R.S. (1995) (emphasis added).

[8] According to both the majority and dissenting opinions in Zapata, evidently both parties acknowledged that the award of fees was discretionary. See 90 S.W.3d at 852-53; id. at 854-55 (Marion, J., dissenting).

[9] Act approved Mar. 13, 1909, 31st Leg., R.S., ch. 47, § 1, 1909 Tex. Gen. Laws 93 (repealed 1985) (current version at Tex. Civ. Prac. & Rem.Code §§ 38.001-.006 (West 1997)).

[10] This provision was renumbered from section 3105.002 to 3106.002 by Act of May 24, 2005, 79th Leg., R.S., ch. 728, § 23.001(43), 2005 Tex. Gen. Laws 2188, 2316.