OPINION
This is a summary judgment case. Appellant Friedrich Air Conditioning and Refrigeration Company (Friedrich) appeals from an order granting the cross-motion for summary judgment of appellees, Bexar Appraisal District and Appraisal Review Board of Bexar County. The lawsuit in the district court was an appeal from an order of the Appraisal Review Board determining a protest by Friedrich, and as such was a review of an action of the Appraisal District. 1
*765 In tax year 1987, the Appraisal District found that certain property, which it had previously found to be exempt from taxation under TEX.TAX CODE ANN. § 11.01(d) (Vernon 1982) (the “free-port law”), had escaped taxation in the two previous tax years. The Appraisal District therefore appraised the omitted property pursuant to TEX.TAX CODE ANN. § 25.21 (Vernon 1982), and listed the property it deemed to have been omitted in 1985 and 1986 upon supplemental appraisal records for 1987 in accordance with TEX.TAX CODE ANN. § 25.23 (Vernon 1982 & Supp.1988). Notice of the appraised value was sent to Friedrich. A timely notice of protest was filed, and a hearing conducted by the Appraisal Review Board. See TEX.TAX CODE ANN. § 25.23(d) (Vernon 1982). The Review Board upheld the Appraisal District’s appraisal of the property as omitted property, and ordered the appraised values to be entered on the 1987 supplemental appraisal roles. Friedrich properly perfected its appeal to the district court.
Appellees based their summary judgment position, that the previously exempted property should be “back-assessed,” upon their reading of the decision in
Dallas County Appraisal District v. Brinkman & Co.,
The trial court failed to declare the statute unconstitutional, but, rather, its judgment expressly upheld the constitutionality of section 11.01(d), the free-port law. The court construed section 11.01(d) as permitting appellees to rebut the statutory presumption that the property was temporarily located in Texas (and thus exempt), and found that appellees had indeed rebutted the presumption. The appeal is from that part of the judgment which expressly found that the free-port law did not apply in Friedrich’s favor, and that appellees could therefore place the property in question on the 1987 supplemental appraisal role, even though it had initially been deemed exempted for 1985 and 1986. Friedrich brings nine points of error. Ap-pellees bring one cross point of error: that the trial court erred in not declaring the free-port law unconstitutional.
Leaving aside for the moment the free-port statute, we find the crucial statutory provision in this case is TEX.TAX CODE ANN. § 25.21 (Vernon 1982). Section 25.21 authorizes a chief appraiser to appraise during a current tax year personal property which he discovers had escaped taxation in one of the two preceding years:
§ 25.21 Omitted Property
(a) If the chief appraiser discovers that real property was not taxed in any one of the 10 preceding years or that personal property was not taxed in one of the two preceding years, he shall appraise the property as of January 1 of each year that it escaped taxation and enter the property and its appraised value in the appraisal records.
(b) The entry shall show that the appraisal is for property that escaped taxation in a prior year and shall indicate the year and the appraised value for each year. 2
Friedrich’s first five points of error, that the trial court erred in granting appellees’ *766 motion for summary judgment, are based upon the language of a statutory predecessor of section 25.21, /ormer TEX.REV.CIV. STAT.ANN. art. 7208 (Vernon 1960) (repealed 1979), and the case law under that former statutory provision. The salient former provision read as follows:
Art. 7208 Back taxes on personal property
If the assessor of taxes shall discover in his county any property, or outside of his county but belonging to a resident of the county, any personal property which has not been assessed or rendered for taxation every year for two years past, he shall list and assess the same for each year thus omitted which it has belonged to said resident, in the manner prescribed for assessing other property; and such assessment shall be as valid and binding as though it had been rendered by the owner thereof. Acts 1887, p. 127; G.L. vol. 9, p. 925
TEX.TAX CODE ANN. § 22.01 (Vernon 1982) requires taxpayers such as Friedrich to render all personal property owned by them to the taxing authority. There is case law under former statutory provision art. 7208,
supra,
(and under still earlier incarnations of that provision), which indicates that property which was rendered or assessed in a tax year cannot be back-assessed in a subsequent tax year.
See Yamini v. Gentle,
The trial court did not accept Friedrich’s interpretation of the current statute, as the judgment stated that appellees “were authorized by the provisions of the Tax Code, including section 25.21, to add the property to the 1987 supplemental appraisal roll.” Although the parties contest whether the property in question was “rendered,” all parties maintain there is no fact issue to be resolved. Friedrich contends there is no fact issue concerning rendition because ap-pellees have no evidence tending to show the property in question was not rendered. A supplemental affidavit of an Appraisal District official, which appellees claim demonstrates that the property was not rendered, was stricken from the pleadings as untimely filed. The trial court did not consider that affidavit as part of appellees’ summary judgment evidence, and we cannot consider it here. Appellees, although maintaining that the property in question was not rendered, contend that there is still no fact issue because “rendering” is no longer material under section 25.21, the current statute. Appellees further contend that section 25.21 gives the Appraisal District the power to correct a prior decision to treat personal property as exempt which it subsequently deems erroneous, as long as the correction is made within the two-year time frame for retroactive appraisal established by the statute.
The role of the repealed statutory predecessors to section 25.21 in interpreting that statute was recently addressed in
El Paso Central Appraisal District v. Montrose Partners,
We agree with appellees that Friedrich’s “rendition” argument has no force under the current statutory scheme. The 1979 Tax Code palpably worked substantive change in Texas tax law in many respects, although 1981 amendments to the Tax Code were intended as non-substantive. See TEX.PROP.CODE ANN. Title 2 Enactment (Vernon 1982). When the legislature rewrites and transforms the law, in the absence of an indication on the part of the legislature that the change is intended as non-substantive, we tend to believe that the legislature designed through its action to work a change in the law. When the legislature devised and enacted the Tax Code it produced a significant difference in section 25.21 from the former articles 7207 and 7208, which once provided for back-assessment of real and personal property. In this instance, it is not logical to accept that the legislature omitted the “rendered” language without recognizing that the “rendered” language had previously constituted an integral substantive component of the law. Specifically, we interpret the absence of language concerning rendition in section 25.21 to indicate that initial rendition is no bar to an Appraisal District’s subsequent correction of an appraisal, so long as that correction is within the time frame indicated in section 25.21. The first five points are overruled.
By our interpretation of the Appraisal District’s authority under section 25.21, we do not endorse appellee’s interpretation of Brinkman, supra, that the free-port law, section 11.01(d), supra, was invalidated by the Court of Appeals or the Supreme Court. We merely hold that within the time frame allowed under section 25.21, the chief appraiser could re-evaluate a previous decision that personal property was exempt, and could correct a mistaken decision in that regard. Therefore, in order to defeat a challenge that the property in question was exempt under the free-port statute, appellees had to show, in the context of summary judgment proceedings, that the section 11.01 presumption of temporary location in the state (and thus exemption) was rebutted as a matter of law. This is precisely the same burden appellees would carry under such a challenge to a current year’s appraisal.
Defendants who move for summary judgment have the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff’s cause of action.
Griffin v. Rowden,
In its judgment, the trial court found as a matter of law that:
The subject property was located within the State of Texas on January 1, 1985 and January 1, 1986 for business purposes and not on a mere temporary or *768 transitory basis, and that as a consequence the presumption of temporary location contained in Section 11.01(d) of the Texas Property Tax Code, TEX.CIV. STAT.ANN. (Vernon 1987), commonly known as the “free-port law,” is overcome as a matter of law and the subject property should have been but was not included on the appraisal roll for 1985 and 1986.
The salient statutory provisions read, in pertinent part, as follows:
TEX.TAX CODE § 11.01(c) (Vernon 1982):
(c) This state has jurisdiction to tax tangible personal property if the property is:
(1)located in this State for longer than a temporary period; ...
TEX.TAX CODE § 11.01(d) (Vernon 1982):
(d) Goods, wares, ores (other than oil, gas and other petroleum products), and merchandise are presumed to be in interstate commerce and/or are not to be located in this state for longer than a temporary period if the property is:
(1) transported from outside this state into the state to be forwarded outside this state;
(2) detained in this state for assembling, storing, manufacturing, processing, or fabricating purposes; and
(3) not located in this state for longer than 175 days.
In
Brinkman, supra,
the Dallas Court of Appeals interpreted the free-port law in a fashion which avoided a direct conflict between that law and the Texas Constitution. The court recognized that under the Texas Constitution, “all law exempting property from taxation other than the property mentioned in this Section shall be null and void,” TEX. CONST, art. VIII, § 2, and that all property in this state is subject to taxation unless it comes under an exemption authorized in the Texas Constitution.
[i]f ... the legislature were to define taxing jurisdiction in such a way that property subject to taxation under the Texas Constitution and federal law was not subject to taxation under the statutory definition of taxing jurisdiction, the legislature would be indulging in an unconstitutional attempt to grant an exemption from taxation ... Therefore, section 11.01, to the extent that it is valid, can only be a legislative reflection of Texas constitutional principles governing the power of political subdivisions of the State of Texas to tax real and tangible personal property.
Id. at 22-23. See also Aransas County Appraisal Review Bd. v. Texas Gulf Shrimp Co.,707 S.W.2d 186 , 190 (Tex.App.— Corpus Christi 1986, writ ref’d n.r.e.) (summarizing Brinkman, but concerning different statutory provisions).
The court in
Brinkman
further observed that although section 11.01(d) “outlines requirements for a
presumption
that goods are
not
‘located in the state for longer than a temporary period,’ ” section 11.01 does not define the term, “located in the state for longer than a temporary period.”
As with Friedrich, the personal property in question in Brinkman was warehoused inventory. The court in Brinkman cat-alogued the features and aspects of the inventory which could lead it to find that the inventory was “out of interstate transit,” and thus within the taxing jurisdiction *769 of the state. Ninety percent of the warehoused inventory was subject to sale and shipment either in state or out of state as orders came in. All the goods in Brink-man’s warehouse were apparently being detained there for business purposes and profits. All of the inventory of Carnation (the other taxpayer in the Brinkman case) was subject to sale and shipment either in state or out of state.
In the present case the only summary judgment evidence in the record before the court which describes characteristics of the property relevant to determining whether the inventory in question was in interstate transit, is contained in two affidavits of an Appraisal District official, Arthur J. O’Connell. A third, “supplemental affidavit,” supposedly concerning the issue of rendition, but stricken by the trial court as untimely filed, is not in the record before us. The first affidavit, attached to appellees’ cross-motion for summary judgment, states in pertinent part:
Plaintiff [Friedrich] represented to the Appraisal District that the business conducted by Plaintiff within Defendants’ taxing jurisdiction consisted of operating two plants which fabricated room air conditioners and certain commercial refrigeration units. The finished products were fabricated using component parts as well as finished products awaiting shipment to destinations within and without the State of Texas. The finished products were to be sold within and without the State of Texas....
The second affidavit was attached to appel-lees’ supplement to their cross-motion for summary judgment. The supplement was concerned with a cause of action which challenged the 1987 tax year appraisal (not a back-appraisal of omitted property), in which Friedrich was denied a free-port exemption. That had been a separate lawsuit, but it was consolidated with this appeal challenging the retroactive appraisals for 1985 and 1986. Friedrich, however, non-suited its challenge to the “prospective” 1987 appraisal which denied the free-port exemption for that year. The second affidavit, although attached to a motion addressed to the non-suited cause, was made “in conjunction with the motions for summary judgment presently pending ... and particularly [but not exclusively] Defendants’ Supplement....” Therefore, we may appropriately consider this affidavit for its content regarding the characteristics of the property in question, the same type of property which was the subject of the back-appraisal for 1985 and 1986. The affidavit states in pertinent part:
Defendant’s products are fabricated using components obtained from within and without the State of Texas. The property at issue in the instant case consists of these component parts as well as finished products awaiting shipment to destinations within and without the State of Texas. The property which Plaintiff contends are entitled to exemption were not segregated from the remainder of Plaintiff’s property ... The property was clearly within Texas for a business purpose, fabrication of component parts into finished products ...
We find that on the basis of the uneon-troverted statements concerning the nature of the property in question contained in the O’Connell affidavits, the trial court could determine that the goods were stored not merely to accommodate their transportation, but for the business purposes and profits of the company, and were not in interstate transit.
See Brinkman,
We note that appellees prayed in their petition for declaratory judgment that should the trial court determine the statute to be constitutional; that the trial court *770 render “a declaratory judgment as to the applicability of the statute” to the property. This constituted a theory for judgment: that the facts of the case were sufficient to overcome the free-port presumption of section 11.01(d). Appellees also based their position on the theory that section 11.01(d) had been invalidated as unconstitutional. Appellees claimed that the Texas Supreme Court had invalidated the statute, yet they sought a declaratory judgment from the district court that the statute was unconstitutional. On the other hand, appellees did specifically call the trial court’s attention to the affidavits of O’Con-nell, and the affidavits, as we have discussed, worked to rebut the 11.01(d) presumption. 3 We find that appellees fulfilled their burden on their cross-motion for summary judgment.
In points of error six and seven appellant Friedrich argues that “principles of res judicata” should have been applied with regard to the Appraisal District’s initial exemption of the property in question, thereby barring a subsequent appraisal. When an administrative action is judicial or quasi-judicial, it is appropriately given res judicata effect.
Bryant v. L.H. Moore Canning Co.,
However, an administrative order bars subsequent agency adjudication of the same subject matter by the same party
unless allowed by statute,
or perhaps unless circumstances have changed.
Al-Jazrawi v. Texas Board of Land Surveying,
As a cross-point of error appellees argue that the trial court erred in not declaring the free-port law unconstitutional. Appel-lees petitioned the trial court for a declaration of unconstitutionality pursuant to TEX.CIV.PRAC. & REM.CODE ANN. §§ 37.001-37.011 (Vernon 1986). The trial court did not declare the statute unconstitutional, but, rather, expressly upheld the constitutionality of section 11.01(d). The court construed section 11.01(d) as permitting appellees to rebut the statutory presumption that the property was temporarily located in Texas, and found that appel-lees had rebutted the presumption.
Since the constitutionality of the free-port statute was not squarely faced, given the trial court’s interpretation of that statute, the court need not have, and should not have, reached the constitutional question. Neither should we address it here. It is a settled principle of our jurisprudence that, “ ‘a court will pass upon the constitutionality of a law only when necessary to the determination upon the merits of the cause under consideration....’”
Tigner v. First National Bank of Angleton,
Moreover, we “will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.”
Ashwander v. Tennessee Valley Authority,
In points of error nine and ten Freidrich argues that the “back-assessment” of its property as omitted property is an “unlawful and confiscatory taking,” in violation of Friedrich’s right to due process of law. Friedrich seeks to rely upon the case of
State v. Chicago R.I. & G. Ry. Co.,
In its due process argument, Friedrich reiterates and depends upon the case of
Yamini v. Gentle, supra,
in which a rendition by the taxpayer in a previous tax year was found to bar a back assessment for that year under pre-Tax Code law. We have found that rendition poses no such bar under section 25.21 and other applicable provisions of the Tax Code, and we have held that the Appraisal District’s action with regard to Friedrich, under section 25.21, was appropriate. Because section 25.21 authorized the appraisal, there is no absence of an authorizing law as in
State v. Chicago R.I. & G. Ry. Co., supra.
Moreover, a back-appraisal of omitted property under section 25.21 is not properly understood as additional tax on the same property.
See El Paso Central Appraisal District v. Montrose Partners,
The Tax Code provides for notice and hearing with regard to appraisals of property under section 25.21. Appellant Fried-rich does not appear to dispute but that appellees complied with the appropriate *772 provisions for notice and hearing, or that appellant was prejudiced by those provisions. Friedrich timely protested the appraisal after it had received proper notice. See TEX.TAX CODE ANN. § 25.23(c), (d) (Vernon 1982). A hearing was held by the Bexar Appraisal Review Board, which entered an order regarding the appraisal. Friedrich does not argue that the Review Board hearing was inadequate. Friedrich was entitled under the Tax Code to further appeal to the district court and to obtain there a trial de novo on the issues regarding the appraisal. See TEX.TAX CODE ANN. § 42.23 (Vernon 1982). Friedrich perfected its appeal to the district court by timely filing of notice and the suit, and the court entered an order in the case, from which this appeal was taken. Friedrich points to nothing in these procedures, which provided it multiple opportunities to be heard, that constitutes a deprivation of due process. Points of error eight and nine are overruled.
The judgment is affirmed.
CANTU and CHAPA, JJ., concur without opinion.
Notes
. District Court review of actions of an Appraisal District, after exhaustion of appeal to an Appraisal Review Board, as provided by statute, is by trial de novo pursuant to TEX.TAX CODE ANN. § 42.23 (Vernon 1982).
. The present provision dates from 1979, the year the Property Tax Code was enacted. See Property Tax Code, ch. 841, § 25.21, 1979 Tex. Gen.Laws 2, 2274-75 amended in part by Act of Aug. 14, 1981, ch. 13, § 109, 1981 Tex.Gen.Laws, 1st C.S., 161. The provision was amended to read as above in 1981. That amendment however, was non-substantive.
. Interestingly, the appellate reply brief of Friedrich to appellees’ cross-point of error contains statements which are tantamount to admissions that the property in question would be taxable if the reasoning set out in the Brinkman case could be retroactively applicable to the back-appraisals for 1985 and 1986 which are the subject of this case. Brinkman is applicable here.