Mansion Partners, Ltd. v. Harris County Appraisal District, Appraisal Review Board of Harris County, Texas

Opinion issued on December 28, 2023.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-21-00306-CV
                           ———————————
                  MANSION PARTNERS, LTD., Appellant
                                       V.
           HARRIS COUNTY APPRAISAL DISTRICT, Appellee


                   On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Case No. 2020-28005


                         MEMORANDUM OPINION

      This appeal stems from a property-tax dispute between Mansion Partners, Ltd.

and the Harris County Appraisal District (“HCAD”). Mansion Partners protested

HCAD’s appraised value for its property for tax year 2019. The Harris County

Appraisal Review Board (“ARB”) denied Mansion Partners’ protest in August 2019.
Over three months later, Mansion Partners filed a second “notice of protest” asking

the ARB to reissue its August 2019 order to restart the clock and permit Mansion

Partners to file a timely petition for judicial review challenging the appraised value

of its property for tax year 2019. The ARB dismissed Mansion Partners’ second

“notice of protest” for lack of jurisdiction.

      In May 2020, Mansion Partners filed suit against HCAD and ARB

challenging (1) the ARB’s failure to reissue its August 2019 order and (2) the

appraised value of its property for tax year 2019 as unequal and excessive. HCAD

filed a plea to the jurisdiction arguing the district court lacked jurisdiction over

Mansion Partners’ suit because the petition was untimely. The district court granted

the plea and dismissed Mansion Partners’ claims against HCAD without prejudice.

      On appeal, Mansion Partners argues the district court erred by granting

HCAD’s plea to the jurisdiction because contrary to HCAD’s argument, Mansion

Partners did not judicially admit its petition was untimely, and even if its petition

was untimely, the trial court still abused its discretion by dismissing Mansion

Partners’ claims, rather than remanding the matter to “HCAD and/or the ARB” to

allow the ARB to exercise its implied power to reissue its orders determining protest

to cure any jurisdictional defects.

      We affirm the trial court’s judgment granting HCAD’s plea to the jurisdiction

and dismissing Mansion Partners’ claims for lack of jurisdiction.


                                            2
                                   Background

      Mansion Partners has two separate lawsuits pending against HCAD

concerning the appraised value of its property, the Deer Park Gardens Apartments,

for tax year 2019. This appeal concerns the second filed suit.

A.    The First Lawsuit

      Mansion Partners filed an administrative protest with the ARB challenging

HCAD’s appraised value of its apartment complex for tax year 2018 (the “First

Lawsuit”). Mansion Partners, Ltd. v. Harris Cnty. Appraisal Dist., No. 01-20-

00565-CV, 

, at *1 (Tex. App.—Houston [1st Dist.] Jan. 20, 2022,

no pet.) (mem. op.) (Mansion Partners I). Unsatisfied with the ARB’s determination

of its protest, Mansion Partners filed a timely petition for judicial review in the

district court challenging the 2018 appraised value.

      While its petition for judicial review was pending, Mansion Partners protested

HCAD’s appraised value of its apartment complex for tax year 2019. Id. at *1. The

ARB denied Mansion Partners’ 2019 tax protest and sent notice of its order

determining protest via email to Mansion Partners’ tax agent, O’Connor &

Associates. Id. Although the ARB order was dated “8/12/2019,” it was signed by

the chairman of the ARB, beneath the words: “Signed on this 2nd day of August,

2019.” Id.




                                         3
      Three months later, on November 26, 2019, Mansion Partners filed a second

“notice of protest” with the ARB. In its notice, Mansion Partners stated: “We did

not receive the County conf. letter from the tax agent. The agent informed us of the

letter date in a Sept. 3[, 2019] email but did not send the County letter as in years

past (until today). Can you please reissue the County confirmation letter to the

owner.”

      1.     Amended Petition and Plea to the Jurisdiction in District Court

      On January 3, 2020, five months after the ARB denied Mansion Partners’

2019 protest and while Mansion Partners’ second “notice of protest” remained

pending, Mansion Partners filed an amended petition for review in the First Lawsuit

adding allegations that HCAD’s 2019 appraisal of its property was excessive and

unequal. Id. at *1, 3; see TEX. TAX CODE § 42.21(c) (stating if petition for review

“is pending when the appraisal review board issues an order in a subsequent year

under a protest by the same property owner” relating to “the same property that is

involved in the pending appeal,” property owner may file appeal by amending

original petition for review to include grounds for appeal of subsequent order).

      On June 29, 2020, HCAD filed a plea to the jurisdiction arguing the district

court lacked jurisdiction over Mansion Partners’ amendment because the

amendment was filed more than 60 days after Mansion Partners received the order




                                         4
from the ARB determining its 2019 protest.1 Id. at *2. HCAD attached to its plea

(1) Mansion Partners’ amended petition; (2) a certified copy of the ARB’s August

2, 2019 Order; and (3) the August 2, 2019 electronic service receipt showing the

ARB notified Mansion Partners’ tax agent of its August 2019 Order. Id.

      Mansion Partners responded, arguing HCAD had not established Mansion

Partners’ amended petition was filed more than 60 days after receiving notice of the

ARB’s August 2019 Order. Id. Thus, Mansion Partners argued, HCAD failed to

meet its burden to establish the amended petition for review was untimely. See id.

at *3. Mansion Partners did not dispute HCAD’s assertion that its January 2020

amended petition was untimely. Rather, Mansion Partners’ posture was to insist that

HCAD, as the party moving for dismissal, meet its burden to prove the amended

petition was untimely. Id.

      The trial court granted the plea to the jurisdiction and dismissed Mansion

Partners’ amended claims against HCAD for tax year 2019. Mansion Partners

appealed.




1
      A taxpayer must file a petition for judicial review within 60 days after receiving
      notice that a final order has been entered. TEX. TAX CODE § 42.21(a) (“A party who
      appeals as provided by this chapter must file a petition for review with the district
      court within 60 days after the party received notice that a final order has been
      entered from which an appeal may be had or at any time after the hearing but before
      the 60-day deadline. Failure to timely file a petition bars any appeal under this
      chapter.”).

                                            5
      2.     Appeal from Trial Court: Mansion Partners I

      On appeal, Mansion Partners argued HCAD had not carried its burden to

establish its amended petition was filed more than 60 days after Mansion Partners

received notice of the ARB’s August 2019 order because HCAD had not provided

evidence of “an agreement for E-Service between HCAD and Mansion Partners’

administrative tax agent.”2 Id. at *2–3. This Court agreed, stating:

      HCAD’s evidence of delivery was its electronic service receipt
      showing that it electronically sent a notice regarding the 2019 appraisal
      review board order to an O’Connor & Associates email address. But it
      did not provide evidence that Mansion Partners or its agent had an
      agreement regarding electronic communication as required by section
      1.085. . . . Absent such an agreement, HCAD was required to send the
      notice by mail. See TEX. TAX CODE § 1.07(a). Under the Property
      Tax Code, a notice sent by first-class mail is “presumed delivered when
      it is deposited in the mail.” Id. § 1.07(c). HCAD did not provide any
      evidence that the notice required by section 42.21 was deposited in the
      mail. See id.; Fort Bend Cent. Appraisal Dist., 

 at
      *4–8 (addressing evidence needed to raise presumption of delivery
      such as proof of sufficient postage, type of mail service used, how
      notice placed in the mail, current address used, and notice not returned).
      Because HCAD did not produce evidence that Mansion Partners or its
      agent agreed to electronic communication or evidence raising a
      presumption of delivery by mail, we conclude that HCAD did not prove
      when notice of the ARB order was received by Mansion Partners. We
      therefore conclude that HCAD did not prove that the amended petition
      was not timely filed. Accordingly, we hold that the trial court erred by
      granting the plea to the jurisdiction.

2
      In the present appeal, HCAD does not argue it proved Mansion Partners failed to
      file its petition for review within the 60-day deadline based on evidence the ARB
      electronically sent a notice of its August 2019 Order to Mansion Partners’ tax agent.
      Rather, HCAD argues that in the present case, Mansion Partners judicially admitted
      that its petition for review was untimely, thus excusing HCAD from producing
      evidence of that fact.
                                            6
Id. at *4.   We reversed the trial court’s order granting HCAD’s plea to the

jurisdiction and dismissing Mansion Partners’ claims challenging HCAD’s 2019

appraised value for its property.    We remanded to the trial court for further

proceedings. Id.

B.    The Second Lawsuit

      In March 2020, the ARB dismissed Mansion Partners’ second “notice of

protest.” The ARB issued an “Order of Dismissal,” stating it had no “jurisdiction to

consider or grant the relief requested” by Mansion Partners in its November 26, 2019

protest and it ordered that Mansion Partners’ “motion and/or protest be dismissed

without hearing or determination for lack of jurisdiction.” Although the ARB order

was dated “3/16/2020,” it was signed by the chairman of the ARB, beneath the

words: “Signed on this 6th day of March, 2020.”

      On May 6, 2020, Mansion Partners filed a petition for judicial review against

HCAD and the ARB challenging “HCAD’s or the ARB’s failure to re-issue its order

determining Mansion Partners’ administrative tax protest [for tax year 2019], so that

Mansion Partners could file a new tax appeal” and complaining of HCAD’s

valuation of its apartment complex for tax year 2019 as excessive and unequal (the

“Second Lawsuit”).

      HCAD filed a plea to the jurisdiction arguing the district court lacked

jurisdiction over Mansion Partners’ petition because Mansion Partners’ petition for


                                         7
judicial review was untimely.3 HCAD argued that Mansion Partners had judicially

admitted in its own petition for judicial review that its petition had not been filed

within the required statutory time frame. HCAD attached to its plea a copy of the

ARB’s August 2019 order determining protest and a certified copy of Mansion

Partners’ May 6, 2020 petition filed in the Second Lawsuit.

      Mansion Partners responded to HCAD’s plea to the jurisdiction, but it

provided no evidence. Mansion Partners argued the ARB had abused its discretion

by dismissing Mansion Partners’ November 26, 2019 protest for lack of jurisdiction

because the ARB “enjoys the reasonably necessary, implied (though not inherent)

power to re-issue an Order Determining Protest.” According to Mansion Partners,

the ARB’s “implicit authority to re-issue an Order Determining Protest follows from

its general power to adjudicate property tax cases and mirrors or is somewhat akin

to its authority to entertain a late-filed notice of protest.” Mansion Partners argued

that “although it is acknowledged that Tax Code procedures for adjudicating protests

are exclusive, TEX. TAX CODE 42.09(a), the Appraisal Review Boards of Texas


3
      HCAD’s plea to the jurisdiction does not address Mansion Partners’ challenge to
      the ARB’s March 2020 order dismissing its November 2019 reissuance request. On
      appeal, however, HCAD argues the trial court lacks jurisdiction over Mansion
      Partners’ challenge to the ARB’s failure to reissue its August 2019 order because
      Mansion Partners did not identify a valid waiver of immunity against HCAD.
      HCAD may raise this jurisdictional ground for the first time on appeal. Waco Indep.
      School Dist. v. Gibson, 

, 850–51 (Tex. 2000) (holding that
      jurisdictional grounds not raised in plea to jurisdiction can be raised for first time
      on appeal).

                                            8
nevertheless retain the rights to issue and to re-issue their Orders, as they see fit and

as the equities require.”4

      Mansion Partners denied it had judicially admitted that its petition for review

was untimely. It argued HCAD had not shown that it had “properly notified

[Mansion Partners] about the issuance of the Order Determining Protest,” an issue

Mansion Partners acknowledged was “at least impliedly decided in a fashion

adverse” to Mansion Partners by the trial court in the First Lawsuit. Mansion

Partners argued the trial court either “should remand this matter to the [ARB] for

further proceedings or adjudicate the substance of [Mansion Partners’] request [for

re-issuance of the August 2019 order] in accordance with the trial de novo schema of

the Texas Tax Code.” During the non-evidentiary hearing on HCAD’s plea to the

jurisdiction, Mansion Partners acknowledged it had not filed its petition for review

challenging the 2019 tax appraisal “within 60 days of the date on the order

determining protest which was issued August 12, 2019 . . . no one disputes that.”




4
      Tax Code Section 42.09(a) states: “Except as provided by Subsection (b) of this
      section, procedures prescribed by this title for adjudication of the grounds of protest
      authorized by this title are exclusive. . .” TEX. TAX CODE § 42.09(a); see id.
      § 42.09(b) (allowing “person against whom a suit to collect a delinquent property
      tax is filed” to plead specific affirmative defenses).



                                             9
      On June 9, 2021, the trial court granted HCAD’s plea to the jurisdiction and

dismissed Mansion Partners’ claims against HCAD without prejudice. This appeal

followed.

            Property Appraisals under the Texas Property Tax Code

      The Texas Property Tax Code establishes an appraisal district for each county.

TEX. TAX CODE § 6.01(a).        County appraisal districts annually appraise each

property within their boundaries and send notice of the appraised value to the

property’s owner. See id. § 23.01. If a property owner disagrees with the appraised

value of its property, the property owner may file an administrative protest before

the county’s appraisal review board under Chapter 41 of the Tax Code. See id.

§ 41.41(a); see also Willacy Cnty. Appraisal Dist. v. Sebastian Cotton & Grain, Ltd.,

 (Tex. 2018) (“Chapter 41 gives property owners the right to

protest a number of actions before the ARB, including the appraised value of their

property, a determination of ownership, or ‘any other action of the chief appraiser,

appraisal district, or appraisal review board that applies to and adversely affects the

property owner.’” (quoting TEX. TAX CODE § 41.41(a)). Once the ARB reviews the

protest, it sends notice of the issuance of its order determining the protest as well as

a copy of the order to the property owner or its agent. See Mansion Partners I, 

 at *3; see also TEX. TAX CODE § 41.47(a) (stating board must

“determine the protest and make its decision by written order”); id. § 41.47(d)(1)


                                          10
(requiring notice of order and order to be delivered by certified mail to property

owner); id. § 1.085(a) (stating “notice . . . that is required or permitted by this title

to be delivered between a chief appraiser, an appraisal district, an appraisal review

board, or any combination of those persons and a property owner or [agent of a

property owner] may be delivered in an electronic format if the chief appraiser and

the property owner [or agent] agree under this section”).

      The property owner may appeal the ARB’s final order by filing a petition for

review in the district court within 60 days of receiving notice of the final order. TEX.

TAX CODE § 42.21(a). Because filing of a timely petition for review in the district

court is jurisdictional, an untimely petition deprives the district court of jurisdiction

to hear a property owner’s appeal. See Fort Bend Cent. Appraisal Dist. v. Am.

Furniture Warehouse Co., 

, 536 (Tex. App.—Houston [1st Dist.]

2021, no pet.); see also Appraisal Review Bd. v. Int’l Church of Foursquare Gospel,

 (Tex. 1986); see TEX. TAX CODE § 42.21(a) (“Failure to timely

file a petition bars any appeal under this chapter.”).

      The property owner must exhaust its administrative remedies before filing its

petition for judicial review. See Willacy Cnty. Appraisal Dist. v. Sebastian Cotton

& Grain, Ltd., 

 (Tex. 2018) (stating property owner is required to

exhaust administrative remedies before filing petition). A property owner’s failure

to exhaust its administrative remedies before filing a petition for judicial review


                                           11
“deprives the courts of jurisdiction to decide most matters relating to ad valorem

taxes.” Vitol v. Harris Cnty. Appraisal Dist., 

 (Tex. App.—

Houston [14th Dist.] 2017, no pet.) (quoting Cameron Appraisal Dist. v. Rourk, 

 (Tex. 2006)).

                              Plea to the Jurisdiction

      The existence of subject matter jurisdiction is a question of law that can be

challenged by a plea to the jurisdiction. Klumb v. Hous. Mun. Emps. Pension Sys.,

 (Tex. 2015). We review a court’s ruling on a plea to the jurisdiction

de novo. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 

 (Tex. 2019). When reviewing a trial court’s ruling on a challenge to its

jurisdiction, we consider the plaintiff’s pleadings and factual assertions, as well as

any evidence relevant to the jurisdictional issue. See City of Elsa v. Gonzalez, 

, 625–26 (Tex. 2010). We construe pleadings liberally in favor of the

plaintiff, look to the pleader’s intent, and determine if the pleader has alleged facts

affirmatively demonstrating the court’s jurisdiction. 

. “If the evidence

creates a fact question regarding the jurisdictional issue, then the trial court cannot

grant the plea to the jurisdiction, and the fact issue will be resolved by the fact

finder.” Tex. Dep’t of Parks & Wildlife v. Miranda, 

, 227–28 (Tex.

2004). Conversely, “if the relevant evidence is undisputed or fails to raise a fact




                                          12
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction

as a matter of law.” 

; Fort Bend Cent. Appraisal Dist., 630 S.W.3d at 535.

                              Governmental Immunity

       Governmental immunity protects political subdivisions of the state, including

appraisal districts, from lawsuits and liability for monetary damages unless the

political subdivision’s immunity is waived by the Legislature. See Dohlen v. City of

San Antonio, 

, 392 (Tex. 2022) (stating political subdivision

“retain[s] immunity unless the Legislature clearly and unambiguously waives it);

TEX. TAX CODE § 6.01(c) (“An appraisal district is a political subdivision of the

state.”). Because immunity from suit implicates a court’s subject matter jurisdiction,

a governmental entity may raise a governmental immunity claim in a plea to the

jurisdiction. Univ. of Tex. M.D. Anderson Cancer Ctr., 

.

                                       Discussion

       In its plea to the jurisdiction, HCAD argued the district court lacked

jurisdiction over Mansion Partners’ petition for review because Mansion Partners’

petition was not filed timely. In support of its plea, HCAD relied on Mansion

Partners’ statement in its petition for review, which stated Mansion Partners “desired

to file this appeal within the span of time which is permitted by the Texas Tax Code

but did not do so.” HCAD argued the statement was a judicial admission of the fact




                                            13
the petition was not filed “within the span of time which is permitted by the Texas

Tax Code.”

      On appeal, Mansion Partners argues the trial court erred by granting HCAD’s

plea to the jurisdiction because contrary to HCAD’s argument, it did not judicially

admit that its petition was untimely. And even if its petition was untimely, the

district court erred by dismissing Mansion Partners’ appeal for lack of jurisdiction

rather than remanding the matter “to HCAD and/or the ARB” pursuant to Tax Code

Section 42.231 to allow Mansion Partners to cure any jurisdictional defects.5

According to Mansion Partners, it is entitled to have the matter remanded to HCAD

or the ARB to allow Mansion Partners to file a timely petition for review, thereby

curing any alleged jurisdictional issues, because HCAD effectively moved to

dismiss its petition based on Mansion Partners’ alleged failure to exhaust its

administrative remedies.

      1.     Mansion Partners’ Judicial Admission

      Mansion Partners argues that contrary to HCAD’s argument, Mansion

Partners did not judicially admit “any fact undermining its right to maintain this

lawsuit or appeal.” Mansion Partners argues that the “statement in its petition, that



5
      Mansion Partners further argues that this Court should remand this matter to
      “HCAD or the ARB for further administrative proceedings,” or, alternatively,
      “remand this matter to the trial court with instructions to remand to HCAD or the
      ARB” to allow it to cure any jurisdictional issues.

                                          14
it desired to file its petition within the span permitted by the Texas Tax Code but did

not do so, is not clearly and unequivocally an admission” of Mansion Partners’

“inability to seek judicial relief, or (without limitation) a waiver of the right to insist

that [HCAD and the ARB] prove proper noticing of the Orders Determining

Protest.” Mansion Partners states that its statements in the petition “should be

construed merely to assert what already is beyond cavil, that [Mansion Partners] did

not file a tax year 2019 petition for review within sixty days of August 12, 2019.”

       A judicial admission is a clear, deliberate, and unequivocal assertion of fact

which conclusively disproves a right of recovery or a defense and makes the

introduction of other evidence on an issue unnecessary. In re Estate of Guerrero,

 (Tex. App.—Houston [14th Dist.] 2015, pet. denied); see also

Holy Cross Church of God v Wolf, 

 (Tex. 2001) (stating “judicial

admission that is clear and unequivocal has conclusive effect and bars the admitting

party from later disputing the admitted fact”). This rule is based on the public policy

that it would be unjust to permit a party to recover after he has sworn himself out of

court by a clear, unequivocal statement. Guerrero, 

. To constitute

a judicial admission, the statement must be (1) made in the course of a judicial

proceeding; (2) contrary to a fact essential for the party’s recovery or defense;

(3) deliberate, clear, and unequivocal; (4) in accordance with public policy if given




                                            15
conclusive effect; and (5) consistent with the opposing party’s theory of recovery.

 at 705–06.

      In its petition for judicial review, Mansion Partners stated that it “desired to

file this appeal within the span of time which is permitted by the Texas Tax Code

but did not do so.” (emphasis added). Mansion Partners’ failure to file its petition

for review “within the span of time which is permitted by the Texas Tax Code” is

contrary to a fact essential for Mansion Partners’ recovery and consistent with

HCAD’s argument that the district court lacked subject matter jurisdiction over

Mansion Partners’ petition because an untimely petition deprives a district court of

jurisdiction. Guerrero, 465 S.W.3d at 705–06 (stating requirements for judicial

admission). Mansion Partners’ statement was a clear, unequivocal, and deliberate

statement made in a judicial proceeding.

      The application of the judicial admission doctrine in this case is also consistent

with the public policy of the Tax Code, which aims to balance property owners’

rights to contest tax appraisals with the need to achieve finality in appraisal rolls.

See 

 (stating judicial admission doctrine based on “public policy that it

would be unjust to permit a party to recover after he has sworn himself out of court

by a clear, unequivocal statement”). Cf. Anderton v. Rockwall Cent. Appraisal Dist.,

 (Tex. App.—Dallas 2000, pet. denied) (“The legislature’s

intent, as may be determined from the overall tax appraisal protest scheme, is that


                                           16
the appraisal rolls become fixed after property owners have been given adequate

time to file their protests.”); Valero Transmission Co. v. Hays Consol. Indep. Sch.

Dist., 

, 859 n.1 (Tex. App.—Austin 1985, writ ref’d n.r.e.) (stating

purpose of Property Tax Code is “the orderly collection of revenue so that the

functions of government should not be dependent upon the outcome of a multitude

of lawsuits”).

      We thus hold Mansion Partners judicially admitted that its petition for review

was not filed “within the span of time which is permitted by the Texas Tax Code,”

and that HCAD was entitled to rely on the judicial admission in meeting its burden

to establish that Mansion Partners’ petition was untimely.6 See Philips v. McNease,

 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding



6
      Although we reach a different disposition than in Mansion Partners I, the opinions,
      which are based on different facts, are not inconsistent. In Mansion Partners I, we
      held HCAD failed to prove Mansion Partners’ amended petition filed in the First
      Lawsuit was not timely because “HCAD did not produce evidence that Mansion
      Partners or its agent agreed to electronic communication or evidence raising a
      presumption of delivery by mail” and thus failed to prove Mansion Partners received
      notice of the ARB’s order. We did not consider whether Mansion Partners had
      judicially admitted the untimeliness of its petition in the First Lawsuit because that
      issue was not advanced by HCAD nor considered by the trial court. See Mansion
      Partners I, 

, at *4. Unlike in Mansion Partners I, in this case,
      HCAD relied on Mansion Partners’ judicial admission that its petition for review in
      the Second Lawsuit was untimely and HCAD was thus relieved of its obligation to
      produce evidence to establish Mansion Partners’ petition for review was untimely.
      See In re Estate of Guerrero, 

 (Tex. App.—Houston [14th
      Dist.] 2015, pet. denied) (stating judicial admission is formal waiver of proof that
      dispenses with production of evidence on issue and bars admitting party from
      disputing issue).

                                            17
defendant moving for summary judgment was entitled to rely on plaintiff’s judicial

admission in petition regarding existence of document).

      2.     Tax Code Section 42.231

      Mansion Partners argues that even if it judicially admitted that its petition for

review was untimely, the trial court should have remanded the matter to the ARB

pursuant to Tax Code Section 42.231 to allow Mansion Partners an opportunity to

cure any jurisdictional defects.7 According to Mansion Partners, on remand the ARB

could reissue its August 2019 Order with a new date, allowing Mansion Partners to

file a timely petition for review, thereby curing any jurisdictional defect. Mansion

Partners argues it is entitled to have the matter remanded to the ARB pursuant to

Section 42.231 because the filing of a timely petition for review is an administrative

remedy, and thus HCAD effectively moved to dismiss Mansion Partners’ petition

for review for lack of jurisdiction based on Mansion Partners’ alleged failure to

exhaust its administrative remedies.

      HCAD argues Section 42.231 is inapplicable because it did not move to

dismiss Mansion Partners’ petition for review based on Mansion Partners’ failure to

exhaust its administrative remedies. Rather, HCAD sought dismissal of Mansion



7
      Mansion Partners also argues that this Court should remand this matter to “HCAD
      or the ARB for further administrative proceedings,” or, alternatively, “remand this
      matter to the trial court with instructions to remand to HCAD or the ARB” to allow
      it to cure any jurisdictional issues.

                                          18
Partners’ petition for failure to file a timely petition for review, a jurisdictional defect

that deprives the trial court of jurisdiction. According to HCAD, the filing of a

timely petition for review is a judicial remedy, not an administrative remedy, and

Mansion Partners exhausted its administrative remedies before filing its petition for

review because (1) Mansion Partners filed a protest with the ARB for tax year 2019,

(2) Mansion Partners attended the ARB’s hearing on the protest, and (3) the ARB

determined Mansion Partners’ protest by a written order. We agree with HCAD.

       “The Texas Tax Code provides detailed administrative procedures for those

who would contest their property taxes.” Vitol, 

 (quoting Rourk,

). After a property owner receives notice of the appraised value

of its property for a given tax year, the property owner may protest the appraisal

value before the ARB. The procedures for protesting before the ARB are set forth

in Chapter 41 of the Tax Code, which is entitled “Local Review.” Once the ARB

determines the protest pursuant to Chapter 41, a property owner is entitled to seek

judicial relief by filing a petition for judicial review in the district court challenging

the appraised value of the property. TEX. TAX CODE § 42.21. Tax Code Section

42.21, which authorizes property owners to file a petition for review, is included in

Subchapter B of Chapter 42 of the Tax Code, which is entitled “Judicial Review.”

       Generally, property owners must exhaust their administrative remedies before

seeking judicial review pursuant to Section 42.21. Willacy Cnty. Appraisal Dist.,


                                            19


; see also Harris Cnty. Appraisal Dist. v. ETC Mktg., Ltd., 

 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (same); Vitol,

 (same). A property owner’s failure to exhaust its administrative

remedies before filing a petition for review “deprives the courts of jurisdiction to

decide most matters relating to ad valorem taxes.” Vitol, 

 (quoting

Rourk, 

). Tax Code Section 42.231(b), which allows the district

court to remand a matter to the ARB to allow a property owner to exhaust its

administrative remedies, states:

      Subject to the provisions of this section and notwithstanding any other
      law, if a plea to the jurisdiction is filed in the appeal on the basis that
      the property owner failed to exhaust the property owner’s
      administrative remedies, the court may, in lieu of dismissing the appeal
      for lack of jurisdiction, remand the action to the appraisal review board
      with instructions to allow the property owner an opportunity to cure the
      property owner’s failure to exhaust administrative remedies.

TEX. TAX CODE § 42.231(b).

      Mansion Partners’ appellate argument conflates two separate jurisdictional

requirements: (1) the exhaustion of administrative remedies before filing a petition

for review, with (2) the timely filing of that petition for review.8 “Exhaustion of

remedies requires a party in an administrative proceeding to await that proceeding’s


8
      Although Mansion Partners asked the trial court to remand the matter to the ARB
      to allow it to cure any jurisdictional defects, it did not do so based on Tax Code
      Section 42.231(b), nor did Mansion Partners argue that HCAD was effectively
      moving to dismiss its petition based on the exhaustion-of-administrative-remedies
      doctrine.
                                          20
completion, thereby securing all available administrative relief before seeking

judicial review of the agency’s action.” Cash Am. Intern. Inc. v. Bennett, 

 (Tex. 2000). The administrative proceeding before the ARB is complete

when the board determines the protest by written order. See SPX Corp. v. Altinger,

, 374 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (holding

property owner exhausted its administrative remedies when owner protested

appraisal review board’s property appraisal, appeared in person at hearings,

submitted argument and evidence, and appraisal review board determined protest

because “no further relief was available to SPX at the administrative level”);

Midland Cent. Appraisal Dist. v. Plains Mktg., L.P., 

 (Tex.

App.—Eastland 2006, pet. denied) (stating plaintiff “exhausted its administrative

remedies” when plaintiff’s claim “was presented to, debated before, and denied by”

county appraisal review board).

      The record reflects Mansion Partners filed a protest before the ARB for tax

year 2019, attended the ARB’s hearing on its protest, and the ARB determined

Mansion Partners’ protest by a written order. At that point, Mansion Partners, which

had “secur[ed] all available administrative relief” from the ARB, exhausted its

administrative remedies and was entitled to file a petition in the district court for

judicial review of its property’s 2019 appraised value. TEX. TAX CODE § 42.01(a).

But Mansion Partners was required to file its petition for judicial review within 60


                                         21
days of receiving notice of the ARB’s order. Id. Mansion Partners did not do so. As

it judicially admitted, its petition was untimely, thus depriving the court of

jurisdiction. HCAD’s plea was based on the untimeliness of Mansion Partners’

petition, not the exhaustion-of-administrative-remedies doctrine. We thus hold

Section 42.231(b) is inapplicable, and Mansion Partners was not entitled to have the

matter remanded to the ARB based on this statute.

      We overrule Mansion Partners’ challenge to the trial court’s decision to

dismiss Mansion Partners’ claims against HCAD, rather than remanding the matter

to the ARB.

      3.      Dismissal of Mansion Partners’ November 2019 Protest

      The ARB’s March 6, 2020 order dismissing Mansion Partners’ second “notice

of protest” states the ARB has no “jurisdiction to consider or grant the relief

requested” by Mansion Partners in its November 26, 2019 protest. The ARB ordered

that Mansion Partners’ “motion and/or protest be dismissed without hearing or

determination for lack of jurisdiction.” To the extent Mansion Partners argues that

the district court erred by granting HCAD’s plea to the jurisdiction because the ARB

has the implied power to reissue its August 2019 Order, Mansion Partners does not

prevail on this point.

      The ARB is an administrative agency. See Clint Indep. Sch. Dist. v. Marquez,

 (Tex. 2016) (referring to county appraisal review board as type


                                        22
of administrative agency); Beltran Gutierrez v. City of Laredo, No. 04-17-00838-

CV, 

, at *2 (Tex. App.—San Antonio Feb. 20, 2019, pet. denied)

(mem. op.) (same); see also Rourk, 

 (stating in suit involving

county appraisal district: “The Texas Constitution expressly allows the Legislature

to bestow exclusive original jurisdiction on administrative bodies. There is no

question the Legislature intended to do so here.” (internal citation omitted)). As an

administrative agency, the ARB possesses only those powers expressly provided to

it by statute or necessarily implied to carry out the express powers the Legislature

has given it. See Public Util. Comm’n v. City Pub. Serv. Bd., 

(Tex. 2001); Public Util. Comm’n v. GTE-Sw., Inc., 

 (Tex.

1995).

      Regardless of whether the ARB has a general implied power to reissue its

orders as Mansion Partners argues, an issue we do not decide, it is readily apparent

that the reissuance of an order determining a protest three months after the original

order was issued for the sole purpose of extending or restarting the 60 deadline to

file a petition for review to allow a taxpayer to make what is essentially an out-of-

time appeal is not a power “necessarily implied in order to carry out” the ARB’s

power under the Tax Code to determine appraisal value protests. The ARB’s

administrative function was satisfied when it issued its initial order in August 2019

denying Mansion Partners’ protest.


                                         23
      Because the ARB does not have the power to grant Mansion Partners the only

relief it requested in its November 2019 protest, and thus lacks jurisdiction over

Mansion Partners’ protest, the district court did not err by granting HCAD’s plea to

the jurisdiction. Thus, to the extent Mansion Partners challenges the district court’s

granting of the plea to the jurisdiction on this basis, we overrule the issue. 9

                                      Conclusion

      We affirm the trial court’s judgment granting HCAD’s plea to the jurisdiction

and dismissing Mansion Partners’ petition for judicial review for lack of jurisdiction.




                                                Veronica Rivas-Molloy
                                                Justice

Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.
Goodman, J., concurring.




9
      HCAD argues the trial court does not have jurisdiction over Mansion Partners’
      challenge to the ARB’s failure to reissue its order of dismissal because Mansion
      Partners did not identify a valid waiver of immunity against HCAD with respect to
      this issue. In light of our holding that the ARB does not have the power to grant
      Mansion Partners the relief it seeks, we need not address this argument.

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