622 S.W.3d 835
Tex.2021Background
- Several taxing units challenged the appraisal of "Category G" (oil, gas, mineral interests) before the Scurry County ARB, alleging undervaluation and omission from the rolls; the ARB denied relief.
- The Taxing Units timely filed a Section 42.031 judicial-review petition in district court naming the appraisal district and Kinder Morgan; the original petition alleged omission/undervaluation but contained no factual allegations implicating Kinder Morgan.
- The Taxing Units filed a first amended petition narrowing the claim to omission of Kinder Morgan’s mineral interests and later a second amended petition adding an allegation that Kinder Morgan knowingly provided inaccurate information (fraud).
- Kinder Morgan initially moved under Rule 91a, then withdrew that motion and filed a TCPA motion to dismiss after the second amended petition; the TCPA motion was filed 110 days after the original petition and 34 days after the second amended petition.
- Kinder Morgan also raised for the first time on appeal a jurisdictional challenge: the Taxing Units had engaged counsel under contingent-fee "tax ferret" contracts that Kinder Morgan contends were void, so the petition allegedly never perfected an appeal.
- The Supreme Court assumed (without deciding) the contracts might be invalid but held (1) the timely petition was a bona fide attempt to invoke jurisdiction and at worst defective, not void, and (2) the second amended petition’s fraud allegations were new essential facts that restarted the TCPA 60-day clock, making Kinder Morgan’s TCPA motion timely; case remanded.
Issues
| Issue | Taxing Units' Argument | Kinder Morgan's Argument | Held |
|---|---|---|---|
| Does an allegedly void contingent-fee "tax ferret" contract render the timely-filed judicial-review petition void so the trial court lacks subject-matter jurisdiction? | Even if the contracts are invalid, the attorney filed in good faith to perfect the statutory appeal; any defect does not negate jurisdiction and can be cured. | A void contingent-fee contract means counsel lacked authority and the filing is void ab initio, so the appeal was never perfected and court lacks jurisdiction. | Assuming contracts invalid, the petition was a bona fide attempt to invoke jurisdiction and is defective, not void; jurisdiction exists and dismissal on that ground is improper. |
| Did the Taxing Units’ second amended petition (adding fraud allegations) restart the TCPA 60-day deadline for filing a motion to dismiss? | The original petition gave fair notice of all omission theories, so the TCPA window began with the original petition and Kinder Morgan’s motion was untimely. | The fraud allegations were new essential factual allegations supporting the reappraisal claim, so they triggered a new 60-day TCPA period; Kinder Morgan’s motion (filed 34 days after the amendment) was timely. | Adding essential new facts (fraud) restarts the TCPA 60-day period as to those allegations; Kinder Morgan’s TCPA motion was timely. |
Key Cases Cited
- Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499 (Tex. 1991) (an instrument filed in a bona fide attempt to invoke jurisdiction is defective but not void; opportunity to correct required)
- Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29 (Tex. 2018) (appraisal remedy may encompass property omitted from the rolls due to taxpayer fraud)
- White v. McGill, 114 S.W.2d 860 (Tex. 1938) (definition and public-policy concerns with "tax ferret" contingent-fee contracts)
- Beck & Masten Pontiac-GMC, Inc. v. Harris Cnty. Appraisal Dist., 830 S.W.2d 291 (Tex. App.—Houston [14th Dist.] 1992) (reappraisal/back-appraisal available where property omission arises from taxpayer misrepresentation)
- Atascosa Cnty. v. Atascosa Cnty. Appraisal Dist., 990 S.W.2d 255 (Tex. 1999) (authorizes back-appraisal where property was improperly classified/exempted)