Maverick County v. Ethelvina I. Felan, 04-17-00393-CV

Maverick County v. Ethelvina I. Felan

04-17-00393-CV

| Tex. App. | Nov 1, 2017

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Case Information

CAUSE NO. $\underset{―}{04 - 17 - 00393 - C V}$

MAVERICK COUNTY, et al.,

Appellant v.

ETHELVINA I. FELAN

Appellees

On Appeal from Cause 17-02-33970-MCV; In the 293rd Judicial District Court Of Maverick County, Texas

APPENDIX OF APPEALLANT

SÁNCHEZ &; WILSON, P.L.L.C. ROBERT W. WILSON, ESQ. STATE BAR NO. 00794868 rww@sanchezwilson.com (210) 222-8899 (Telephone) (210) 222-9526 (Telecopier)

ATTORNEYS FOR APPELLANT

IDENTITY OF PARTIES AND COUNSEL

Maverick County, et. al, Appellant SÁNCHEZ &; WILSON, P.L.L.C. Robert W. Wilson, Esq., Mark Anthony Sanchez, Esq. Counsel For Appellants 6243 IH-10 West, Ste. 1025 San Antonio, Texas 78201 (210) 222-8899 (Telephone) (210) 222-9526 (Telecopier)

LUIS R. VERA &; ASSOCIATES Luis R. Vera, Esq. Counsel For Appellants 1325 Riverview Towers Bld. 111 Soledad St. San Antonio, Texas 78205 210-225-3300 Telephone 210-225-2060 Telecopier Ethelvina I. Felan, Appellee NAJVAR LAW FIRM, PLLC Jerad Wayne Najvar, Counsel for Appellee Andrew Patchan, Counsel for Appellee 2180 North Loop West, Suite 255 Houston, Texas 77018 (281) 404-4696 (Telephone) (281) 582-4138 (Telecopier) /s/ ROBERT W. WILSON ROBERT W. WILSON STATE BAR NO. 00794868 Counsel of Record for Appellant

Respectfully submitted, Sanchez &;Wilson, PLLC 6243 IH-10 West, Ste. 1025 San Antonio, Texas 78201 Telephone: 210-222-8899 Telecopier: 210-222-9526

By: /s/ROBERT W. WILSON
Robert W. Wilson
State Bar No: 00794868
rww@sanchezwilson.com
Attorneys for Appellant

APPENDIX OF APPEALLANT

Appellant filed their Brief on September 18, 2017. Appellant failed to file the Appendix pursuant to TRAP 38.1(l). Appellant includes the following as the appendix to Appellant's Brief.

APPENDIX

FINAL JUDGMENT
TEX. TAX CODE §26.04 (Vernon 2016)
TIME LINE OF EVENTS

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing Brief for Appellant has been delivered via telecopier transmission only to Jared Najvar and Andrew Patchan, Najvar Law Firm, PLLC,2180 North Loop West 255, Houston, Texas 77018 on this the $1^{st}$ day of November 2017. /s/ ROBERT W. WILSON Robert W. Wilson

No. 17-02-33970-MCV

FINAL JUDGMENT

On June 12, 2016, came to be considered the Plaintiff's Motion for Summary Judgment. The Court, having considered the Motion and supporting and opposing briefing and the applicable law cited therein, evidence presented, arguments of counsel, and the pleadings on file in this case, is of the opinion that Plaintiff's Motion for Summary Judgment should be GRANTED.

It is further, ORDERED that any deemed admission is undeemed or withdrawn.

It is further, ORDERED that Defendant's Plea to the Jurisdiction is denied.

*5 Electronically Filed at 6/16/2017 2:19:38 PM Leopoldo Vielma, District Clerk Maverick County, Texas By: Monica Gonzalez, Deputy

It is further, ORDERED that Defendant's Motion for Summary Judgment is denied.

It is further DECLARED that:

1) On September 12, 2016, the Maverick County Commissioners Court adopted a tax rate and a rollback rate; 2) Due to a good-faith mistake, those rates were incorrectly calculated; 3) On September 16, 2016, the Maverick County Commissioners Court rescinded agenda Item 26, which was the adoption of the tax rates; 4) On October 3, 2016, the Maverick County Commissioners Court ratified a property tax rate of approximately $$ 0.542$ per $$ 100$ of property evaluation; 5) By calculation and by admission, the correct Rollback Rate for this tax year is approximately $$ 0.466$ per $$ 100$ of property value; 6) Plaintiff filed a rollback petition within the time prescribed by law; 7) Within 20 days of receiving the rollback petition, the Maverick County Commissioner's Court adopted an order certifying more than enough signatures to engender a rollback election; 8) The Maverick County Commissioner's Court failed to order a rollback election within the time prescribed by statute, which is a purely ministerial act.

Therefore, it is ORDERED that the Clerk of Court shall forthwith issue a Writ of Mandamus commanding the Maverick County Commissioner's Court, its agents, employees, and all persons or entities of any type whatsoever acting in concert with the County, to hold a rollback election, pursuant to Texas Tax Code $§ 26.07$ , in not fewer than 30 days or more than 90 days from June 12, 2017.

*6 Costs of Court are adjudged against the Defendants. All other relief not ordered in this final judgment is DENIED.

SIGNED June $16 \cdot 2017$

Judge W.C. Kirkendall

APPROVED AS TO FORM:

Robert "Woody" Wilson, Attorney for Defendants

Martin Golando, Attorney Plaintiff

WESTLAW

$§ 26.04$ . Submission of Roll to Governing Body; Effective and Rollback Tax Rates

Currentness (a) On receipt of the appraisal roll, the assessor for a taxing unit shall determine the total appraised value, the total assessed value, and the total taxable value of property taxable by the unit. He shall also determine, using information provided by the appraisal office, the appraised, assessed, and taxable value of new property. (a-1) Expired. (b) The assessor shall submit the appraisal roll for the unit showing the total appraised, assessed, and taxable values of all property and the total taxable value of new property to the governing body of the unit by August 1 or as soon thereafter as practicable. By August 1 or as soon thereafter as practicable, the taxing unit's collector shall certify an estimate of the collection rate for the current year to the governing body. If the collector certified an anticipated collection rate in the preceding year and the actual collection rate in that year exceeded the anticipated rate, the collector shall also certify the amount of debt taxes collected in excess of the anticipated amount in the preceding year. (c) An officer or employee designated by the governing body shall calculate the effective tax rate and the rollback tax rate for the unit, where: (1) 'Effective tax rate' means a rate expressed in dollars per $$ 100$ of taxable value calculated according to the following formula:

$EFFECTIVE TAX RATE (LAST YEAR'S LEVY - LOST PROPERTY LEVY)$

(CURRENT TOTAL VALUE - NEW PROPERTY VALUE) ; and (2) 'Rollback tax rate' means a rate expressed in dollars per $$ 100$ of taxable value calculated according to the following formula:

$ROLLBACK TAX RATE = (EFFECTIVE MAINTENANCE AND OPERATIONS RATE x$

$1.08) +$ CURRENT DEBT RATE (c-1) Expired. (d) The effective tax rate for a county is the sum of the effective tax rates calculated for each type of tax the county levies and the rollback tax rate for a county is the sum of the rollback tax rates calculated for each type of tax the county levies.

NOTES OF DECISIONS (31)

Administrity of evidence Certification of person making tax rate calculations Collection methods Compliance with statute Evemptions Injunction Mandemus Notos Crossover of property Presumptions and burden of proof School districts Standing Sufficiency of evidence Water districts

*8 (e) By August 7 or as soon thereafter as practicable, the designated officer or employee shall submit the rates to the governing body. He shall deliver by mail to each property owner in the unit or publish in a newspaper in the form prescribed by the comptroller. (1) the effective tax rate, the rollback tax rate, and an explanation of how they were calculated; (2) the estimated amount of interest and sinking fund balances and the estimated amount of maintenance and operation or general fund balances remaining at the end of the current fiscal year that are not encumbered with or by corresponding existing debt obligation; (3) a schedule of the unit's debt obligations showing: (A) the amount of principal and interest that will be paid to service the unit's debts in the next year from property tax revenue, including payments of lawfully incurred contractual obligations providing security for the payment of the principal of and interest on bonds and other evidences of indebtedness issued on behalf of the unit by another political subdivision and, if the unit is created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, payments on debts that the unit anticipates to incur in the next calendar year. (B) the amount by which taxes imposed for debt are to be increased because of the unit's anticipated collection rate; and (C) the total of the amounts listed in Paragraphs (A)-(B), less any amount collected in excess of the previous year's anticipated collections certified as provided in Subsection (b): (4) the amount of additional sales and use tax revenue anticipated in calculations under Section 26.941; (5) a statement that the adoption of a tax rate equal to the effective tax rate would result in an increase or decrease, as applicable, in the amount of taxes imposed by the unit as compared to last year's levy, and the amount of the increase or decrease; (B) in the year that a taxing unit calculates an adjustment under Subsection (i) or (j), a schedule that includes the following elements: (A) the name of the unit discontinuing the department, function, or activity; (B) the amount of property tax revenue spent by the unit listed under Paragraph (A) to operate the discontinued department, function, or activity in the 12 months preceding the month in which the calculations required by this chapter are made; and (C) the name of the unit that operates a distinct department, function, or activity in all or a majority of the territory of a taxing unit that has discontinued operating the distinct department, function, or activity; and (7) in the year following the year in which a taxing unit raised its rollback rate as required by Subsection (j), a schedule that includes the following elements: (A) the amount of property tax revenue spent by the unit to operate the department, function, or activity for which the taxing unit raised the rollback rate as required by Subsection (j) for the 12 months preceding the month in which the calculations required by this chapter are made; and (B) the amount published by the unit in the preceding tax year under Subdivision (6)(B). (e-1) The notice requirements imposed by Subsections (e)(1)-(6) do not apply to a school district. (f) If as a result of consolidation of taxing units a taxing unit includes territory that was in two or more taxing units in the preceding year, the amount of taxes imposed in each in the preceding year is combined for purposes of calculating the effective and rollback tax rates under this section. (g) A person who owns taxable property is entitled to an injunction prohibiting the taxing unit in which the property is taxable from adopting a tax rate if the assessor or designated officer or employee of the unit, as applicable, has not complied with the computation or publication requirements of this section and the failure to comply was not in good faith.

(h) For purposes of this section, the anticipated collection rate of a taxing unit is the percentage relationship that the total amount of estimated tax collections for the current year bears to the total amount of taxes imposed for the current year. The total amount of estimated tax collections for the current year is the sum of the collector's estimate of: (1) the total amount of property taxes imposed in the current year that will be collected before July 1 of the following year, including any penalties and interest on those taxes that will be collected during that period; and (2) the total amount of delinquent property taxes imposed in previous years that will be collected on or after July 1 of the current year and before July 1 of the following year, including any penalties and interest on those taxes that will be collected during that period. (i) This subsection applies to a taxing unit that has agreed by written contract to transfer a distinct department, function, or activity to another taxing unit and discontinues operating that distinct department, function, or activity if the operation of that department, function, or activity in all or a majority of the territory of the taxing unit is continued by another existing taxing unit or by a new taxing unit. The rollback tax rate of a taxing unit to which this subsection applies in the first tax year in which a budget is adopted that does not allocate revenue to the discontinued department, function, or activity is calculated as otherwise provided by this section, except that last year's levy used to calculate the effective maintenance and operations rate of the unit is reduced by the amount of maintenance and operations tax revenue spent by the taxing unit to operate the department, function, or activity for the 12 months preceding the month in which the calculations required by this chapter are made and in which the unit operated the discontinued department, function, or activity. If the unit did not operate that department, function, or activity for the full 12 months preceding the month in which the calculations required by this chapter are made, the unit shall reduce last year's levy used for calculating the effective maintenance and operations rate of the unit by the amount of the revenue spent in the last full fiscal year in which the unit operated the discontinued department, function, or activity. (j) This subsection applies to a taxing unit that had agreed by written contract to accept the transfer of a distinct department, function, or activity from another taxing unit and operates a distinct department, function, or activity if the operation of a substantially similar department, function, or activity in all or a majority of the territory of the taxing unit has been discontinued by another taxing unit, including a dissolved taxing unit. The rollback tax rate of a taxing unit to which this subsection applies in the first tax year after the other taxing unit discontinued the substantially similar department, function, or activity in which a budget is adopted that allocates revenue to the department, function, or activity is calculated as otherwise provided by this section, except that last year's levy used to calculate the effective maintenance and operations rate of the unit is increased by the amount of maintenance and operations tax revenue spent by the taxing unit that discontinued operating the substantially similar department, function, or activity to operate that department, function, or activity for the 12 months preceding the month in which the calculations required by this chapter are made and in which the unit operated the discontinued department, function, or activity. If the unit did not operate the discontinued department, function, or activity for the full 12 months preceding the month in which the calculations required by this chapter are made, the unit may increase last year's levy used to calculate the effective maintenance and operations rate by an amount not to exceed the amount of property tax revenue spent by the discontinuing unit to operate the discontinued department, function, or activity in the last full fiscal year in which the discontinuing unit operated the department, function, or activity. (k) to (q) Expired

Credits

Acts 1979, 66th Leg., p. 2277, ch. 641, § 1, eff. Jan. 1, 1982. Amended by Acts 1981, 67th Leg., 1st C.S., p. 163, ch. 13, § 116, eff. Jan. 1, 1982; Acts 1983, 68th Leg., p. 2185, ch. 400, § 1, eff. June 17, 1983; Acts 1983, 68th Leg., p. 5376, ch. 987, § 3, eff. June 19, 1983; Acts 1983, 68th Leg., p. 5402, ch. 1001, § 1, eff. Jan. 1, 1984; Acts 1985, 69th Leg., ch. 657, §§ 1, 2, eff. June 14, 1985; Acts 1985, 69th Leg., 1st C.S., ch. 1, § 2, eff. Sept. 1, 1985; Acts 1986, 69th Leg., 3rd C.S., ch. 10, art. 1, § 36, eff. Jan. 1, 1987; Acts 1987, 70th Leg., ch. 699, § 1, eff. June 19, 1987; Acts 1987, 70th Leg., ch. 649, § 2, eff. Aug. 31, 1987; Acts 1987, 70th Leg., ch. 947, § 3, eff. Jan. 1, 1988; Acts 1987, 70th Leg., ch. 968, § 1, eff. June 18, 1987; Acts 1991, 72nd Leg., ch. 14, § 284 (18), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 2nd C.S., ch. 6, § 45, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 81, § 2, eff. May 4, 1993; Acts 1993, 73rd Leg., ch. 811, §§ 1, 2, eff. Aug. 30, 1993; Acts 1997, 75th Leg., ch. 165, §§

*10

29.01, 29.03, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1070, § 54, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 398, § 2, eff. Aug. 30, 1999; Acts 1999, 76th Leg., ch. 1358, § 1, eff. Jen. 1, 2000; Acts 1999, 76th Leg., ch. 1561, § 1, eff. Aug. 30, 1999; Acts 2015, 84th Leg., ch. 465 (S.B. 1), § 4, eff. June 15, 2015.

Relevant Additional Resources

Additional Resources listed below contain your search terms.

Editors' Notes

HISTORICAL AND STATUTORY NOTES

Acts 1999, 76th Leg., ch. 1358, in subsec. (e), inserted subd. (5); renumbered former subsec. (e)(5) and (6) as subsec. (e)(6) and (7); in subsec. (e)(8), deleted "the unit shall publish" preceding "a schedule"; in subsec. (e)(7), in the introductory paragraph, deleted "the taxing unit shall publish" preceding "a schedule"; and in subsec. (e)(7)(B), substituted "(6) (B)" for "(5)(B)".

Acts 1999, 76th Leg., ch. 1561, added subsecs. (k) to (q). These subsections, relating to rollback tax rates of taxing units contracting for funding a distinct department, function or activity, expired by the terms of subsec. (q) January 1, 2001.

2015 Legislation

"This Act applies beginning with the 2015 tax year."

Prior Laws:

Vernon's Ann.Civ.St. arts. 2784e, 2784e-1, 7244c; V.T.C.A., Education Code § 20.03 (c).

CROSS REFERENCES

Authorized expenditures, see V.T.C.A., Education Code § 45.105. Correction of appraisal roll, see V.T.C.A., Tax Code § 25.25. Exemptions generally, see V.T.C.A., Tax Code § 11.01 et seq. Indigent Health Care and Treatment Act, property tax rate exceeding rate calculated under this section by more than $8 %$ , see V.T.C.A., Health &; Safety Code $§ 61.010$ . Junior college district under separate board of trustees, ad valorem tax levy, see V.T.C.A., Education Code $§ 130.018$ . Municipal sales and use tax, excess over property tax revenue, use for debt reduction, see V.T.C.A., Tax Code $§ 321.507$ .

Notice of appraised value, value greater than preceding year, tax rate under this section if total values were approved, see V.T.C.A., Tax Code $§ 25.19$ . Notice of budget and tax rate meeting, budget adoption, see V.T.C.A., Education Code § 44.004.

Procedures for incorporation or establishment of another form of local government for certain areas subject to regional participation agreement, see V.T.C.A., Local Government Code $§ 43.0755$ . Proposed property tax rate notice for counties and municipalities, see V.T.C.A., Local Government Code $§ 140.010$ . Real property and improvements for school districts, see V.T.C.A., Local Government Code $§ 271.004$ . Revenue from additional city sales and use tax exceeding amount of taxes calculated for city under subsec. (c) of this section, see V.T.C.A., Tax Code $§ 321.507$ . Special appraisal generally, see V.T.C.A., Tax Code $§ 23.01$ et seq.

LAW REVIEW COMMENTARIES

Annual survey of Taxas law: Property tax. Richard C. Stark and Joyce D. Slocum, 37 Sw.L.J. 412 (1983).

RESEARCH REFERENCES

Encyclopedias

TX Jur. 3d Taxation § 45, Increase in Amount of Property Taxes.

Treatises and Practice Aids

*11

TIMELINE OF EVENTS

August 8, 2016 - The Tax Assessor calculates the 2016 Rollback Rate and 2016 Effective Tax Rate and submits to Commissioner's Court for Approval. Maverick County Commissioner's Court approves a 2016 Rollback Tax Rate of .586535 per $$ 100$ and a 2016 Effective Tax Rate of 0.542309 per $$ 100$ .
August 8, 2016 - Maverick County Commissioner's Court approves a proposed rate of not an excess of $$ 0.586535$ per $$ 100$ .
August 25, 2016 - Maverick County Commissioner's Court has a public hearing regarding the proposed 2016 Tax Rate.
September 1, 2016 - Maverick County Commissioner's Court has a second public hearing regarding the proposed 2016 Tax Rate.
September 11, 2016 - Appellee obtains a signature to the Rollback Petition.
September 12, 2016 - Maverick County Commissioner's Court approves a 2016 Tax Rate of $$ 0.586535$ per $$ 100$ .
Soon after September 12, 2016 - Mistake is discovered in the calculation of the 2016 Rollback Rate by the Tax Assessor.
September 29, 2016 - the Maverick County Commissioner's rescinded the adopted 2016 tax rate. this action lowered the 2016 Tax Rate from $$ 0.5856536 / $ 100$ to $$ 0.542309 / $ 100$ .
October 3, 2016 - the 2016 Tax Rate was ratified by Commissioner's Court. 10.October 7 - October 10, 2016 - Tax notices sent out to the taxpayers. 11.December 22, 2016 - Appellee files the Rollback Petition. 12.February 21, 2016 - Appellee files Plaintiff's Original Petition for Writ of Mandamus, Permanent Injunction, and Declaratory Judgment, and Request for Disclosure.

*12 13.May 3, 2017 - ninety percent of taxes were collected by this date.