### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00517
- CV

Z Bar A Ranch, LP, Appellant

v. Tax Appraisal District of Bell County, Appellee

FROM THE 169TH DISTR ICT COURT OF BELL CO UNTY NO. 284,660
- C, THE H ONORABLE GORDON G. A DAMS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Z Bar A Ranch, LP (Z Bar) appeals the district court’s final take nothing judgment following a bench trial on Z Bar’s claim that the Tax Appraisal District of Bell County (the Appraisal District) did not de liver notice that it deni ed Z Bar’s application for appraisal of its prop erty as open

- space land for tax year 2015. See generally Tex. Const. art. VIII, § 1

- d

- 1(a) (requiring legislature to provide by general law for taxation of open

- space land on basis o f productive capacity); Tex. Tax Code §§ 23.51

– .60 ( Appraisal of Agricultural Land ); see also Tex. Tax Code § § 23.51(1) (defining “[q]ualified open

- space land”) , .57(d) (requiring notice of denial of application for open

- space appraisal)

. The Appraisal Di strict responds that Z Bar fail ed to exhaust its administrative remedies by not rais ing before the Appraisal Review Board (the ARB) its claim regarding any alleged failure by the Appraisal District to provide notice of the denial of Z Bar’s open - space appr ai sal application ; instead , Z Bar only rais ed a claim for failure2

to provide notice of appraised value , which is no longer at issue in th e case . See Tex. Tax Code § 4 1 .411 (providing for protest before ARB for chief appraiser’s failure to provide notice t o which property owner is entitled ) ; compare id. § 25.19 (requiring notice of appraised value), with id. § 23.57(d) (requiring notice of denial of application for open

- space appraisal)

. Because we agree wit h the Appraisal District , we vacate the judgment an d dismiss for lack of jurisdiction.

BACKGROUND
Z Bar , a limited partnership, consists of two partners: Don and Karen Holloway. 1 Z Bar purchased the property at issue (the Property) in two separate transaction s : Z Bar acquired
700 acres in June 201 4 and an additional 161 acres in October 201 4 . Prior to the sale, the Property was appraised as open

- space land and mainta ined that assessment through tax year
2014

. 2 Both Karen and Don testified that they expected the P roperty would continue to enjoy
op en - space appraisal for tax year 2015. However, once the Property changed ownership, the new property owner was required to timely apply for open

- space appraisal. See Tex. Tax Code § 23.54(e) (providing for continued open

- space appraisal “without a new appl ic ation unless the

1 For convenience, we will refer to the Holloways by their first names. At trial, Karen explain ed that th e Hollowa ys “ma nage a s er ies of real estate in vestments a nd holding compan ies” and that thr ough these companies, including Z Bar, they own over 100 properties.

2 “The open

- space land valuation allows property used for farm or ranch purposes to be va lued based upo n the pr operty’s pr od uct i ve capacity rathe r tha n its market value ” and a property qualifies for the valuation if “1) it is currently being devoted principally to ‘agricultural use’ to the degree of intensity generally accepted in the area, an d 2) the p rope rty ha s been devote d pri n cipally to ‘agric ultur a l use’ or to prod uction of timber or forests for five of the preceding seven years.” Parker Cty

. Appraisal Dist. v. Francis , 436 S.W.3d 845, 849 (Tex. App.

— Fort Worth 2014, no pet.) (citing Tex . Tax Code § 2 3.51(1 ) ; HL Farm Corp. v. Self , 87 7 S.W.2d 28 8, 29 2 (Tex. 1994) ).3

ownership of the land changes”)

. 3 “If a person fails to file a valid application on time, the land is
i neligible for appraisal as provided by this subchapter for that year.” Id. In October 2015, the Holloways received Z Bar’s tax year 2 015 bill, which did not include the open

- space appraisal of the Property , for around $51,000

. According to K aren, if the open

- space appraisal value had been applied, taxes on the Property would have been approximately $1,300

.

That same month, the Holl ow ays prepared and signed a n otice of protest form on behalf of Z Bar for the Property. 4 Three boxes were chec ked under the “ Check r easons for y our
p rotest” section: (1) “Failure to send required notice” with “Notice of Appraised Value” written
in the bl an k for “type”; (2) “Exemption was denied, modified or cancelled”; and (3) “Ag

- use,
open - space or other special appraisal was denied, modified or cancelled.” Additionally, under the section , “Give facts that may help resolve your case,” the following two st a tements were typed : (1) “Per Subchapter C. Taxpayer protests under Glenn Hegar, Texas Comptroller of
Public Accounts, Section 41.411 Protest of Failure to Give Notice of Property Valuation and/or Change in Agriculture Status from Bell County Appraisal D i strict” ; and (2) “We never received Notice of Appraised Value for 2015 Tax Year.”

In December 2015, Z Bar hi red KE Andrews as a tax consultant to handle the matter. At the end of December, KE Andrews submitted another notice of protest on behalf of

3 Applications are gener ally due on May 1. See Tex. Tax Code § 23.54(d) . But late application s may be filed before the ARB approves the a ppraisal records , which must occur b y July 20

. S ee id. §§ 23 .541(a) ( per m itting late appli catio n if filed before ARB’s approval of appraisal records) ; 23.57(c) (providing that chief appraiser shall determine validity of appraisal application s before submitting appraisal records for review); 41.12(a) (re quirin g A RB to appr ov e r e cords by July 20)

.

4 At trial, Karen t estified that the Holloways filed “[a]pproximately 46 to 50” protests in various appraisal districts across the state of Texas for the tax year at the time of the hearing and tha t she has “so me fam ili arity with t he a ppraisal district proc e ss in the state o f Texas.”4

Z B ar for the Property. Once again, three boxes were checked under the “Check Reasons for Your Protest” 5 : (1) “F ailure to send required notice” with the “type” blank left empty; (2) “Ag

use, open - space or other special appraisal was denied, modified or ca nc el led”; and (3) “Other” with “25.25(c)” listed in the blank. 6 Under the “Give Facts That May Help Resolve You r Case” section, the notice included the following typed statement: “Owner states they did not receive notice that the agriculture status was b ei n g cancel ed, and did not receive any appraisal notices.”

A hearing before the ARB was set for February 25 , 2 016. The hearing notice listed that “[t]his particular hearing will consider the issues you raised concerning: 2015” “FAILURE TO SEND REQUIRED NO T ICE”; “OTHER”; and “AG

- USE, OPEN

- SPACE
OR OTHER SPECIAL APPRAISAL WAS DENIED, MODIFIED OR CANCELLED.” The
he aring notice also stated that all taxes must be paid on the undisputed amount on or before January 31, 2016

. On January 20 , Karen sent a certi f ie d letter with an enclosed check for the undisputed amount for the tax payment with an open

- space land va lua tio n. The letter also requested , “Please send us confirmation of our protest and the date and time for our ARB meeting disputing our loss of AG u s e. ”

On February 25 , the Holloways and Z Bar’s counsel attended the ARB hearing. At the hearing, counsel i ntr oduced Z Bar’s protest as follows:
The Holloways bought this property [in June and in October 2014].

. . . When they

-- when they did the cl o si n g on these properties

-- traditionally when they

-- when th e y buy a ranch property, the closing wi ll includ e t he

-- the ag renewal [i.e., open

- space appraisal application form]. For whatever reason, come to find out in this closing, the ag renewal was n ’t i ncluded in those closing documents.

5 The notice of protest form utilized by KE Andrews was a new notice of protest form, which is why the section headings are capitalized different ly

.

6 At the ARB he aring, Z B ar withdr ew its protes t reg a rding section 25. 25

.5

The Holloways paid the 2014 taxes in February of ’15. They paid the ag values. And at that point in time had not received any

-- any notice or understanding that there had been a change to that ag value for those pr o p erties. The next .

. . notice that

-- that the Holloways actually received was in October of ’15 , and tha t w as that, “Hey, here’s the new

-- the new values with all of the ag exemptions removed.” At that point in time, Mr. Holloway contacted the Tax Ap p r aisal District here, and we began kind of unpacking what the Tax Appraisal District has in their records t hat they had sent versus what the Holloways had in fact actually received.
Z Bar’s counsel then explained that the Appraisal District’s records s h ow e d “that an ag

exemption [form] application was mailed in February of ’ 15” and asked Don if he rece ived it , to which he responded “No.” Don did testify that he received “an ag

- exemption application” by email in October 2015, at which point he contacted th e Appraisal District. Don and Karen then testif ied about how they never received a ny notice of app raised va lue that the Property would not have the open

- space appraisal for tax year 2015 until receiving the 2015 tax bill in October

.

After the Hollow a ys c o ncluded their testimony, Roger Chesser, the Appraisal District’s deputy chief appraiser, testifi ed regarding the Appraisal District’s process. He explained that the computer system “look[s] at property that had ag [ open - space appraisal] last
y e ar . ” The n, “ a s a courtesy,” the Appraisal District tries to send out a form application to the

own ers of a “property that had ag last year” but no longer ha ve it “[b]ecause some people don’t know that they have to apply for ag” when “ the agricultural has dro p p ed o ff because of a new

owner ” and “ the new owners have to apply, and they have to a pply timel y f or it to be applied.” He further explained , “ W e have [ Z Bar’s open - space application for the Property] for ’16, apparently. But we don’t have one for ’ 1 5. S o th ere’s not even been an application filed yet for6

2015.” 7 Su mming up, Che sser stated , “ [W] e aren’t required to send them a [n]

. . . application for
ag , ” but “if they had applied for ag and we had granted it and we did remove it, then we’re requi r ed to send it to ’ em. But they never had it, so we weren’t required to send.”

In an exchange between Chesser and Karen at the ARB hearing , Karen responded that “for 2014, Z Bar

. . . was billed for ag

. ” Chesser replied that because “you bought it du r in g
t h e year , ” it was billed “[b]ased on the previous owner’s ag application

. ” Karen an swe red , “Got it.” Karen continued to ask questions, saying , “I’m just trying to understand this, if you don’t mind,” and Chesser replied that “[t]he property was in a n ag - -- agri cultural special valuation because the application of the previous owner” and that “[w]e do n’t have a copy of a

-- or a received application for 2015 ag because you never submitted one. Not even yet today we don’t have one for ’15.” Chesser a lso sta t ed : “I’m not sayin’ that we’ve established that we didn’t send the things. I feel very comfo rtable that we did. But even if that was established, that doesn’t provide the remedy for the application for agriculture in 2015. And we still don’t h a ve

a n a p plic ation.”

Later at the hearing, Don responded to Chesser that “[m]aybe I can b lame it on th e U.S. Postal Service” and “[w]ho’s to say we didn’t send in the ag [application] and [indiscernible] you didn’t receive that, either?” Ches ser a ske d , “Did you? ” D on responded, “No, we didn’t.” Summing up, Chesser stated, “if [the H olloways h ad] come before the Board and said we had denied [the appraisal application], and we sent them a letter saying, ‘Hey, you applied and we denied it,’ the n the y g e t to come [ indi scernible] here and say, ‘Hey, we think we should have had it,’” but “ [t] hey’ve nev er been denied agriculture. We’ve never denied it

7 It is undisputed that the Propert y has been appraised as open

- space land for tax years 2014, 2016, and 2017; tax year 2015 is the only tax year at issue.7

because it’s never been applied for

. ” Neither Z Bar’s counsel nor the Holloways disputed this

acc ount at t h e ARB hear ing.

At the close of the hearing, one ARB member proposed a motion that the value of the Property not be appraised as open

- space land for tax year 2015 , stating , “I would like to give you relief .

. . but the law of the State of Texas very har d to pass [ sic] without that deadline on the 18th of July. Simply put, that deadline wasn’t met , f or whatever reason.” The motion carried with two ARB members in favor and one opposed.

Immediately following the hearing, the Holloways submitted an ap pli c ation for
Z Ba r for the Property to be valued as open

- space land for tax yea r 2015

. B ut on March 3, the Appraisal District sent a letter to the Holloways stating that it “is unable to consider your application” because it “was filed aft er th e s t ate manda t ed deadlin e an d the issue of late application was determined during a hearing o f t he [ARB] prior to the receipt of the application.”
Also in March , the ARB issued its order determining protest, in which it determined that “[t]he apprais al re cor d s are cor r ect and sh ould not be changed” based on the protest concerning “ the follow ing action(s) .

. . Q04 (Failure to send required notice) Q05 (Other) Q08 (Ag

- use,
open - space or other special appraisal was denied, modified or cancelled).”

On April 22 , Z Bar su e d the Appr aisa l District in district court. See Tex. Tax Code § 42. 01( a)(1)(A) (providing property owner with right to appeal ARB order determining protest). Z Bar’s original petition alleged four claims: denial of open

- space valuatio n, fa ilu r e to deli v er notice, sec tion 25.2 5 (c)(3) clerical errors, and attorn ey’s fees. I n its live petition

— the second amended petition

— Z Bar limited its claim s to assert that it “never received any notice that the Appraisal District rejected its applica tion f or s pecial a p praisal ba sed on the Property’s
open - space use, or any noti ce of prop ose d value indicating that the Property would not be valued8

based on open

- space use.” Z Bar alleged in its petition that “[a]fter acquiring the Property, [Z Bar] appli ed for sp e cial app r aisal base d on the Property’s open

- space use to continue th e valuatio n d esignation already in place ” but did not state when it applied. T he Appraisal District filed a plea to the jurisdiction, claiming that Z Bar “failed to exhaust [its ] adm ini s trative

r e medies” be caus e it failed to protest “that the Apprais al Distric t f ailed to give notice of denial of
open - space application, per [section] 23.57” and instead “only protested the Appraisal District’s alleged failure to send a notice of ap prais ed v alue , per [section ] 25.1 9.” (Emphasis in original

. ) The district court did not expressly rule on the plea.

The district court conducted a review of the ARB’s order by a bench trial de novo

o n February 5 and A pri l 25, 2018. See Tex. Tax Code § 42.23 (a) (“Revie w is by tri al d e no vo.”).
Ka ren , Don, and Chesser testified. Although Z Bar did not present at the ARB hearing any evidence of having submitted an open - space appraisal application for tax year 2015, Karen
tes t ified at the bench trial th at she had s ubmitt e d a pplicat ion s for t ax years 2 014 and 2015 first on July 7, 2014 , for the portion of the P roperty purchased in the first transaction and second on December 18, 2014, for the portion purchased in the second tra n sa cti on . C opies of the
app lications were adm i tted as ex hibi ts. Karen also tes tified that a fter receiving the tax year 2015 bill, she spoke with the Appraisal District’s chief appraiser and told him that she had filed applications in 2014 but w as told th a t the re were no open - space appraisal applicat i ons on fil e. Don also testif

ied that his wif

e did file open

- space appraisal applications prior to May 1, 2015

. W hen Don was asked at trial regarding his testimony at the ARB hearing that no application was
f i le d, he stated that he “sho uld have said, ‘No , I didn’t, ’ bu t I just said, ‘No ’”

— implying t hat he meant to speak only for himself, not for Karen.9 Chesser, on the other hand, testified that at the ARB hearing there was no argument made that an applicatio n h ad been presented and tha t Don expressly st a ted that Z Bar had not filed an ap pli cation; that he discussed with representatives from KE Andrews that no application had been filed on Z Bar’s behalf ; that after the ARB hearing the Holloways asked him if they c o ul d f

ill out an applic ation for tax year 2015, whic h Ch esser said they coul d a nd gave them the forms but clarified that the Appraisal District would not be able to consider it because it was untimely; and that Don had reiterated to Chesser that he had tho u gh t a n application had been filed by the title comp any, but the title comp any had said no. At the end of trial, t he Appraisal District’s counsel summarized its position as follows: “ t here is just no rationale to [Z Bar’s] behavior other than the fact that no appl i ca tio n was f iled and that this whole suit is being brought under a story t hat is intended to secure the plaintiff a $40,000 refund” ; “the Holloways received a tax bill for 2014 which had open

- space appraisal, and they just assumed that it would roll over t o 201 5, with out realizing that the taxpay er h ad to file an application, an d t hat they were enjoying open space for 2014 under the prior owners’ application ”; and “our position is that [the application] was never received and that [the Holloways] indicated to th e ARB, under oath, that n o applicati on h ad been filed and that it

was n’t until after the suit was filed that an application was ever produced.”

On May 9, 2018, the district court entered a take nothing judgment. After Z Bar requested findings of f

a ct an d concl usions of law, the district c ourt found, among other things,
t hat “[t]he evide nce heard at trial did not support the claim that [Z Bar ] filed an application for10

open - space appraisal .

. . for tax year 2015 prior to the deadline of July 18, 201 5 .” 8 Z Bar t imely appealed to t his Court , rai sing two issues: the trial c our t erred in fi nding that the evidence at trial did not support the claim that Z Bar timely filed applications for open

- space, and the trial court erred in finding that Z Bar could no t e stablis h that it was enti t led to a n otic e of determination on its app lic ation for ope n - space appraisal

. The Appraisal District responded, adding the additional issue for appeal that Z Bar did not “exhaust its admin ist rative remedi es on the sole clai m i t m ade
at trial

. ”

DISCUSSION

Because the Appraisal District’s jurisdictional challenge is a threshold issue , we address it first. Concluding that the jurisdictional issue is dispositive to this appeal, we do not add res s Z Bar’s two issues presented. Se e T ex. R. App. P. 47.1

.
Sta n dard of Re view

“When an agency has exclusive jurisdiction and the plaintiff has not exhausted administrative remedies, the trial court lacks subject

- matter jurisdiction and must dis mis s any claim w ithin the agency’s e xc lus ive jurisdict ion.” In re Accid e nt Fund Ge n. I ns. , 543 S.W.3d 750 , 752 (Tex. 2017) (orig. proceeding) (per curiam) (citing In re Entergy Corp. , 142 S.W.3d 316,
321

– 2 2 (Tex. 2004) (orig. proceeding) )

. Whether a tri al court has subject matter juri s di c ti on is a question of law that we rev i ew de novo

. S ee Texas Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). “When a statute requires the exhaustion of administrative remedies before a plaintif f m ay file suit, the plaintiff bear s t h e burden to show it has met the

8 At trial, Chesser testified that t he tax yea r 2015 appra isal records we re c ertified on July 17. S ee Tex. Tax Code §§ 23 .541(a) (per mitting la te application if filed before ARB’s approval of appraisal records) , 41.12(a) (requiring ARB to approve records by July 20).11

prere q uisite to suit .” Rio Valley, LLC v. City of El Paso , 441 S.W.3d 482, 487 (Tex. App.

— El Paso 2014, no pet.) (collecting cases). In the procedural posture of this appeal from a fi nal judgment, we consider the parti e s’ ev idence to the ext ent necessary to r e solve chal leng ed jurisdictional facts, taking as true all evidence favorable to the plaintiff and indulging every reasonable inference and resolving any doubts in the plaintiff’s fav or. City of New Braunfels

v. Ca r ow e st Land, Ltd. , 549 S.W.3d 163, 169 (T e x. App.

— Au stin 2017, pet. deni ed ) (citing Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000)).

Exhaustion of Administrative Remedies

“The Texas Constitution express ly allows the Le gislature to bestow ex c lu si ve original jurisd iction on admin istrative bodi es.” Cameron Appraisal Dist. v. Rourk , 194 S.W.3d 501 , 502 (Tex. 2006) (per curiam) (citing Tex. Const. art. V, § 8). Here, “[t]here is no question the Legislature int ended to do s o” with respect to a p r ot es t brought under ch apter 41 of the Texas
Tax Cod e. See id. Chapter 41 details “exclusive” administrative procedures for those who would contest their property taxes. See generally Tex. Tax Cod e §§ 41.01

– .7 1; see also id. § 4 2 .0 9(a ) (describing “proce dure s prescribed by th is title for ad judication of the grounds of protest authorized by this title” as “exclusive”). Thus, exhaustion of administrative remedies is generally mandatory for tax pr ote sts under cha pter 41 , including f or pr otests brought under

sec tion 41.411. 9 See Rourk , 194 S.W .3d at 502

.

The exhaustion of administrative remedies doctrine “ honors the Legislature ’ s intent that ‘ the appropriate body adjudicates the dispute ’ first an d t hereby ‘ ensur e[s] an orderly

9 “ [L] ong - reco gnized exc eption s” to the exhaustio n of a dministrative rem edies doctrin e exist but are no t applicable here

. S ee Str ayhorn v. Lexington Ins. , 128 S.W.3d 772, 780 (Tex. App.

— Austin 2004), aff’d , 209 S.W.3d 83 (Tex. 2006)

.12

pro c ed ure to enforce those ri ghts

. ’ ” Clint Indep. S ch. Dist. v. Ma rquez , 487 S.W .3d 538, 544 (Tex. 2016) (quoting Essenburg v. Dallas County , 988 S.W.2d 188, 189 (Tex. 1998) (per curiam) ) ; see City of Houston v. Rhule , 417 S .W. 3d 440, 442 ( Tex. 2013)). We ha v e not ed two primary purpo ses for the doctrine:
“First, exhaust ion protec ts a dministrative agency authority” by giving an agency oversight over the programs it administers and discouraging “disregard of the agency ’ s procedur es. ” “Second, e xhaustion promotes e ff ici ency. Claims gen eral ly can be resolved much more quic kly and ec onom ically in proceedings before an agency than in litigation,” and, in some cases, “claims are settled at the administrative level” or the agency proc eedi ngs will suc ceed in convincing t he lo sing party not to pur sue the matter in court.

Lueck v . State , 3 25 S .W.3d 752, 762 (Tex. App.

— Austin 2010, pet. denied) (internal citations omitted) (quoting Woodford v. Ngo , 548 U.S. 81, 88 (2006)) . In other words , as the Texas
S upreme Court explai n ed :
By requiring the agen cy to address the complaints firs t, the law per mits the agency to apply its expertise and exercise its discretion to resolve the issue and to develop a complete factual record if the courts late r ge t involved. A party who obtain s r eli ef through the ad mini strative process a voids the expen se and del ay o f litigation. And if the outcome of the administrative process leaves the party dissatisfied, it may file suit and have the courts review the agen cy ’ s decision.

M arquez , 487 S.W.3d a t 544

– 45 (internal cit atio ns omitted) ).

He re, if a party is dissati sfie d with the ARB’s decision after exhausting its administrative remedies, the party may file suit and t he district court review s the ARB’s decision
b y tr ial de novo

. S ee Tex. Tax Code § 42. 23 (a). “A trial de n ovo is ‘[a] new tr ial on the enti re

case

— th at i s, on both questions of fact and issues of law

— conducted as if there had been no trial in the first instance’” and “is not confined to the same evi denc e that was p resented during the ad min istrative phase.” Wi llacy Cty

. Apprais al Dist. v. Seb astian Cot ton & Grain, Ltd. ,13

555 S.W.3d 29, 50 (Tex. 2018) (quoting Trial de novo , Black’s Law Dictionary (10th ed. 2014)). “Thus, in a trial de novo, a court m ay c onsider argu ments and evidence t ha t a re introduced afr esh. ” Id. But a tria l de novo does not provid e th e plaintiff with the right to introduce new clai ms that were not raised and considered by the ARB ; a p laintiff is still required to exhaust administrative remedies as to its claims before a trial de novo

. See id. at 50

– 51 (not ing that apprai sal distri ct c ould raise fraud issue because it “ was raised only as an affirmative defense and not as a cause of action ” and appraisal district did not “ fail to exhaust i ts administrative remedies with regards to fraud ” bec ause there was “ no need ” for it “ to pursue a re medy under ” specific tax code provision )

.

A t its trial d e nov o , Z Bar introd uced evidence to support its new claim that it timely submitted an open

- space appraisal application for the Property prior to the A RB hearing and tha t this predicat e fact req uire d that the Appraisal District provide notic e of its denial o f the appl i ca tio n. See Tex. Ta x Co de § 23.57 (d) ( requiring notice of denial of application for open

space appraisal)

. Our jurisdictional analysis h ere does not addre ss the validity of Z Bar’ s

ev idence . Rather, our analysis is limited to whether Z Bar exhausted its administrative re medi es by raisin g this claim before the ARB. 10 And at the ARB hearing, Z Bar did not raise th e claim that the Appraisal District was requi red to take cer tain actio n s b ecause of the predicate fact of
Z Bar’s timely submitted application. Instead, Z Bar solel y re lied on the changed sta t us of the Property f

rom its 2014 tax bill t o its 2015 tax bill to argue that the Appraisal District was
requ ired to send no tice of ei ther the change in s tatus or the cancel l ation of the open

- space

10 For this reason, we do not consider a s rele vant to t hi s j u risdictional inquiry the ne w evidence present ed at the bench tri al as to whether Z Bar had submitted an earlier application , except insofar as it goes to whether this claim was raised before the ARB

.14

appraisal

— not that it was required to send notice of a denied applicati on . Compare id. § 25.19(a) , with id. § 23.57(d)

.

More over, the testimony be fore the ARB makes clear that Z B ar was not rai sing a cl aim that the Appraisal District failed to send required notice of a denied application. 11 W hen

a sked wheth e r h e had sent in a n application, Don

— one of Z Bar’s two partners

— expressly responded , “No, we didn’t , ” and the Appraisal Distr ict provid ed f urther testimony through Chesser that Z Bar did no t submit an application before the ARB h eari ng . At the ARB Hearing, Z Bar did not dispute the testimony from Don or Chesser that no application was filed. Bu t a t the trial de n o vo , D on tried to exp lai n aw ay his ARB hearing testimony by stating that he should have said , “No, I didn’t” instead of just , “No

. ” T his clarification fails to account for his use of “we” in the statement , “No, we didn’t.” (Emph asis ad ded

. ) We fail to se e ho w Don’s u s e of “w e” cou ld refer to anything other than both Karen and Don

— the only two partners of Z Bar. Thus, at th e he aring before the ARB, i t w as undispu ted tha t Z Bar did not file a 2015 application , regardless of whether it w as later disputed or if Don was m istaken in his testimony

. Accordingly, Z Bar’s alleged claim that the Appraisal District was required to send noti ce of its de nial of Z B ar’ s 2015 application pur suant to section 23.57(d) of the Texas Tax Code was not

11 Z Bar argues that “evidence, ar gument , or other test imony” offer ed at an ARB h e ari n g is inadmissi ble and therefore s hould not be con sidered. See Tex. Tax Code § 42.23(b), (h). But when the Appraisal District offered the audio recording and transcript of the ARB hearing into evidence, Z Bar did n ot object to the audio recording

. Z Bar objected to th e trans cript only a s “not a complet e transcri pt” because it says “not discernible” at multiple places but was overruled. Thus, the audio recording and transcript constitute admitted evidenc e in t he record within th e scope of o ur review , and an y e rror as t o the admissi on of the evidence is waived

. S ee, e.g. , Bay Area Healthcare Grp. v. McShane , 239 S.W.3d 231, 235 (Tex. 2007) (“Error is waived if the complaining party allows the evidence to be int rodu ced withou t objection. ”) ; see also T e x . R

. Evid. 103(a) (detailing re quirem ents to preserve error on evidentiary rulings); Tex. R. App. P. 33.1 (detailing requirements to preserve appellate complaints).15

befo re the ARB and the refore could no t be raise d fo r the first time on appeal to the district court

. See Sebastian Cotton & Gra in , 555 S.W.3d at 50

– 51.

Z Bar nevertheless argu es t hat it satis fied the e x hau st i on of administra tive remedies requirement by che cking the box in i ts notice of pr otests tha t st ated , “Ag

- use, open space or other special appraisal was denied, modified or cancel ed.” But notice of protests are
insufficient in t hemselves to satisfy t h e ex h austion of admini strative remedies requirement. 12 Cf. Unified Hous . of Parkside C rossing, L LC v . Appraisal Review Bd. of Williamson C ty
. , No. 03

- 09

- 00217

- CV, 2010 WL 2133955, at *4 (Tex. App.

— Austin May 22, 2010, no pet.) (mem. op.) (notin g that “[f ] il in g ‘ [t]he protest its elf merely initiates the proce ss while the affid avit or appeara nce provid es t he evidence on which the protest will be determined’” and that “‘[i]f the taxpayer presents no evidence, the appraisal review board has n othing befor e it on wh i c h t o make a determinati on, which is a prerequisi te to judicial rev iew’” (quoting Webb Cty. Appr aisal Dist. v. New Laredo Hotel, Inc. , 792 S.W.2d 952, 953 (Tex. 1990))).
Z Bar also argues that under Cooke C oun ty Tax Appraisal Dist rict v. Teel , 129 S.W.3d 724 (Tex. App.

— Fort W orth 2004, no pet.) , t he ARB ’s ord er determining protest confers jurisdict io n because the orde r stated that i t consider ed and determined the merits of the issues raised in the notice of protest and provided that “the ARB has made a final decision on
your p rotest.

. . . You ha ve a ri g ht t o appeal this order to t he District Court

. ” In Teel , our sis ter court held that the T eels had exhausted their administrative remedies even though they “failed to timely apply for the favorable valuation and failed to time ly protest their failu re to r e ce iv e the favorable valuatio n ” when the ARB n ev ertheless conducte d the protest h earing and entered an

12 For the same reason, we conclude that t he ARB ’s h earing not ices

— which merely r epeated the is su es s tated i n the protest noti ce s

— did not esta blish exhau st ion of administrative remedies.16

order specifically finding that it had jurisdiction over the case. Id. at 728

– 29 (citing Tex. Tax Code § 42.01)

. But Teel does not stand for th e propos i ti on t hat a claim not raise d to the ARB can b e raised on appeal f

rom the ARB’s o rder. Thu s, Teel does not control here. Finally, Z Bar claims that applying the exhaustion of administrative remedies doctrine here would be to app ly “the ty pe of hypert ec hnical re qu ir ement that was r ejected by the Leg is lature when it ado pted the Tax Co de.” See Midland Cent. Appraisal Dist. v. Plains Mktg.,
L .P. , 202 S.W.3d 469 , 475 (Tex. App.

— Eastland 2006, pet. denied) (“ Courts have recognized tha t the legi slature reje ct ed hyp e rt ec hn ical requirement s for challenges t o appraisal values w hen it adopted the curren t tax protest mechanism. ”). But it is not a “hypertechnical requirement” to require a taxpayer to raise its claim for protest before the ARB and no t for the fi rs t time in a trial de novo , consistent with the ex ha ustion of adminis trative remedies doctrine

. Rather, the doctrine promotes efficiency, encourages settlement at the administrative level, and potentially prevents the expenses and delays of litigation , while stil l provid i ng f or judicial review if a party i s dissatisfied wi th the outcome o f the admi nistrative process as to th at claim

. See Lueck , 325 S.W.3d at 762 ; see also Marquez , 487 S.W.3d at 544

– 45. As the Plains Marketing court held, when the claim “ was prese nte d t o , de ba ted before, and denied by th e [ARB] , ” then the plaintiff “exhau sted its a dministrative remedies.” 202 S.W.3d at 475. But u nlike the Plains Marketing plaintiff, Z Bar did not exhaust its administrative remedies as to its cla im that the Appraisal District was required to provide noti ce of its denial of Z Bar ’ s alleged appraisal applic ation that was timely file d . T herefore , the district court lacked subject matter jurisdiction

over th i s claim

.17 CONCLUSION For these reasons, we vacate the distr ict co urt ’s t ak e nothing judgme nt and di sm iss Z Bar’s claim for lack of sub ject matte r jurisdiction. See Tex. R. App. P. 43.2(e); see also In re United Servs. Auto Ass ’ n , 307 S.W.3d 299, 309 (Tex. 2010) (orig. proceeding) (holding that jud gment is v oid if rende red b y co urt without subj ect matte r jurisdiction);
Da imlerChrysler Co rp. v. Inm an , 252 S.W.3d 299, 304 , 307 (Tex. 2008) (“Without jurisdiction, the trial court should not render judgment that the plaintiffs take nothing; it should sim ply dismis s the case. . . . W e do not render j udgment t ha t the plaintiffs take nothing, as we would if their claims failed on the merits; we dismiss the case for want of jurisdiction

. ” ) ; McFadden

v. Olesky , 517 S.W.3d 287, 300 (Tex. App.

— Austin 2017, pet . denied) ( vacati ng tr ial c our t ’s final judgment followin g trial and dismiss ing claims for l ack of sub ject matter jurisdiction).

__________________________________________ Melissa Goo dwin, Just i ce Before Justice s Goodwin, Baker, and Trian a Vacated and Dismissed Filed: April 22, 2020