AARON RENTS, INC., Aрpellant, 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.
Sept. 8, 2006.
212 S.W.3d 665
With certain exceptions, section 160.203 of the Privacy Rule provides that if the Privacy Rule requires action contrary to an action mandated by a state law, then the state law is preempted.
However, we have previously concluded that the Privacy Rule allows the disclosure of the information in question under section 164.512(a). Because the Department can comply with both the Privacy Rule and with the Public Information Act, the Public Information Act is not preempted by the Privacy Rule.
CONCLUSION
Having sustained the Attorney General‘s first issue on appeal and having concluded that the Public Information Act is not preempted, we reverse the judgment of the district court and render judgment that the information requested in this case is not confidential and is, therefore, subject to release under the Public Information Act.
Elliott Beck, Assistant County Atty., Judith A. Hargrove, Linebarger Goggan Blair & Sampson, LLP, Austin, for Appellee.
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
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.”
(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).
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 orders4 to the district court. See
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 Rеnts was not entitled to attorney‘s fees. On appeal, Aaron Rents contends that it is entitled to attorney‘s fees under the declaratory judg-
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
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, 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), 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.” 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.
Similarly, Aaron Rents‘s reliance upon Texas Department of Human Services v. ARA Living Centers of Texas, Inc., 833 S.W.2d 689, 694-95 (Tex.App.-Austin 1992, writ denied) is misplaced, as that case involved an award of declaratory relief based on one state agency‘s exercise of enforcement powers thаt were reserved to another. 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
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
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 ar-
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
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.
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 prоperty 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.
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
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
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, 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
In reaching its conclusion in Zapata, the San Antonio Court also relied on the distinction describеd 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
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 construing5 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
This interpretation of section 42.29 is also supported by a recent opinion from the Dallas Court of Appeals. In Gardner v. Warehouse Partners, No. 05-97-01501-CV, 2000 WL 284185, 2000 Tex.App. LEXIS 1766 (Tex.App.-Dallas Mar. 17, 2000, no pet.), 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. 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.
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
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 сonclude 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....
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.22d 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.”
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 seсtion 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
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.22d 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.22d 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
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.
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
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
- (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.
The plain language of section 42.29 does not suppоrt the majority‘s interpretation
Originally enacted by the legislature in 1983,2 section 42.29 of the tax code pro-
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
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 suсh fees. 972 S.W.22d 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.22d 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
Moreover, in 1995, the legislature recodified former section 11.18(a) of the family
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
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.
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.
Another more recent legislative enactment likewise сonfirms that the phrase “may be awarded” is discretionary, not mandatory. In 2005, the legislature changed the language in section 3106.002 of the government code10 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.
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 tаx 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.
EDWARDS AQUIFER AUTHORITY; Gregory M. Ellis, General Manager of the Authority, in his official capacity; and Carol Patterson, Michael Beldon, Levi Jackson, Rafael Zendejas, Susan Hughes, Doug Miller, Ken Barnes, Bailey Barton, Hunter Schuehle, Luana Buckner, Bruce Gilleland, Rogelio Munoz, George Rice, Johnny A. Rodriguez, Jr., and Cheryl Gilpin, in their official capacities, Appellants, v. CHEMICAL LIME, LTD., Appelleе.
No. 03-04-00379-CV.
Court of Appeals of Texas, Austin.
Sept. 14, 2006.