Opinion
Nos. 04-05-00046-CV, 04-05-00047-CV
Delivered and Filed: June 22, 2005.
Appeal from the 408th Judicial District Court, Bexar County, Texas, Trial Court Nos. 2003-CI-18295 and 2003-CI-18296, Honorable Rebecca Simmons, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Appellant, the Bexar County Appraisal District ("BCAD"), appeals the trial court's order denying its plea to the jurisdiction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Walton Castroville SHRL Investors III, L.P. and Walton AG SHRL Investors, III (collectively as "Walton"), owned two tracts of real property within Bexar County, Texas ("the properties"). After receiving notice from the BCAD regarding the assessed value of the properties for the 2003 tax year, Walton filed a timely written notice of protest with BCAD and the Bexar County Appraisal Review Board ("ARB") to dispute these assessments. After a hearing before the ARB, the ARB issued "Orders Determining Protest" for the properties on October 4, 2003. Walton appealed the decision of the ARB, and filed petitions for review with the district court on November 20, 2003. According to Walton's counsel, on November 19, 2003, his office sent a letter along with the petitions for review and checks for the appropriate fee to the Bexar County District Clerk, requesting that the clerk file the petitions and issue a citation upon BCAD. The letter was received, the petitions filed and the checks were accepted and deposited by the Bexar County District Clerk.
On September 24, 2004, Walton's counsel contacted the District Clerk's office to inquire whether an answer had been filed in the case. After Walton's counsel was informed by the clerk's office that the petitions had not been served, he requested service immediately. On October 7, 2004, BCAD filed an answer and general denial. On November 19, 2004, BCAD filed its First Amended Original Answers, Pleas to the Jurisdiction, and Motions to Dismiss, arguing the trial court lacked jurisdiction because the citations had not been served within the statutory forty-five day appeal deadline under section 42.21(a) of the Texas Tax Code. After a hearing, the trial court denied the pleas to the jurisdiction without prejudice to BCAD filing a motion for summary judgment. BCAD filed a notice of appeal and this accelerated appeal ensued.
JURISDICTION
Jurisdiction deals with the power of a court to determine an action involving a particular subject matter as between the parties and render a certain judgment. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); Nat'l Life Co. v. Rice, 140 Tex. 315, 320, 167 S.W.2d 1021, 1024 (1943). We review the trial court's determination of subject-matter jurisdiction, including its construction of pertinent statutes, de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). "[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. The court should, of course, confine itself to the evidence relevant to the jurisdictional issue." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
In its plea to the jurisdiction, BCAD argued the trial court lacked jurisdiction because Walton failed to satisfy the jurisdictional requirements codified in Tax Code section 42.21. Under the Texas Tax Code, a party seeking to appeal an appraisal review board decision "must file a petition for review with the district court within 45 days after the party received notice that a final order has been entered." Tex. Tax Code Ann. § 42.21(a) (Vernon 2001). "Failure to timely file a petition bars any appeal under this chapter." Id. Section 42.21(d) provides:
An appraisal district is served by service on the chief appraiser at any time or by service on any other officer or employee of the appraisal district present at the appraisal office at a time when the appraisal office is open for business with the public. An appraisal review board is served by service on the chairman of the appraisal review board. Citation of a party is issued and served in the manner provided by law for civil suits generally.
Id. § 42.21(d).
BCAD asserts that although Walton filed a petition for review with the district court within forty-five days, BCAD was not served until almost ten months later. BCAD argues although section 42.21(a) does not specify that the suit be filed and served within forty-five days, "it is presumed that this is required when the statute states that suit should be `brought' or in this instance `filed' within the period." According to BCAD, because Walton did not exercise due diligence in serving it with citation, the date of service does not relate back to the date he filed the petition with the district court. Therefore, BCAD concludes that because Walton did not file and diligently serve it with citation within forty-five days of notice of the ARB final order, the trial court was deprived of jurisdiction pursuant to section 42.21. We disagree.
Nothing in 42.21(a) conditions the right to petition for review on the completion of the requirements and procedures in 42.21(d). Unlike subsection (a), subsection (d) does not dictate that service must be accomplished within forty-five days or the suit will be barred for lack of jurisdiction. That the Legislature could have, but did not, provide a consequence for noncompliance with section 42.21(d) suggests that it chose not to do so. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 962 (citing Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956)). Here, the petitions were filed within the time required to confer subject-matter jurisdiction on the district court as provided in section 42.21(a). We will not add requirements to confer jurisdiction that the Legislature itself chose not to add.
This opinion should not be read as holding that a denial of a plea to the jurisdiction is a bar to pursuing a lack of due diligence claim under a statute of limitations affirmative defense. See e.g. Martinez v. Val Verde County Hosp. Dist., 110 S.W.3d 480, 485 (Tex — San Antonio 2003) (motion for summary judgment is the appropriate procedural vehicle for affirmative defenses, not a plea to the jurisdiction), aff'd, 140 S.W.3d 370 (Tex. 2004); Univ. of Houston v. Elthon, 9 S.W.3d 351, 356-57(Tex.App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.) (proper vehicle for raising the affirmative defense of limitations is a motion for summary judgment, not a plea to the jurisdiction); see also Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (when a plaintiff files suit within the limitations period, but fails to serve the defendant until after the statutory period has run, the suit is barred by the statute of limitations unless the plaintiff can show the exercise of diligence in obtaining service).
CONCLUSION
We conclude that the failure to serve notice of a claim on an opposing party within forty-five days under Tax Code section 42.21 does not deprive a court of jurisdiction over an action on that claim. Therefore, the trial court did not err in denying BCAD's plea to the jurisdiction.