## NO. 12

- 22

- 00221

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JOHN T. HARPOLE AND LENETTE A. KMIECIK , APPELLANT S

V.

RAINS COUNTY APPRAISAL DI STRICT , APPELLEE §

§

§ APPEAL FROM THE 354TH

JUDICIAL DISTRICT COURT

RAINS CO UNTY, TEXAS

MEMORAND UM OPINION Appellan ts , John T. Ha rpole and Lenette A. Kmiecik, acting pro se, appeal the trial

court ’ s grant of dismissal under Rule 91(a) and summ ary judgment in fa vor of Appell ee, Rains County Appraisal District ( the District )

. In four issues, Appellant s argue that the tri al cou rt erred in disposing of their claims

. 1 We aff irm.

B ACKGROUND In April of 2021, t h e District issued a Notice of App raised Value to Appellants for a 4.993

- acre piece of real property located at 5193 E ast High way 69 in Alba, Te xas (the Property)

. Appe llants pro tested the contents of the notice and appeared at a hearing before the Appraisal
Review Board on July 20 , 2021

. T hey asserted in relevant part that the P roperty should not be taxed at all because Appellants are not “ persons ” under the Texas Tax C ode, and that the

1 Appel lants list six “ issues pr esented f or review , ” but actually brief only f our “arguments ” (which differ from the state d issues pre sented) setting forth their position and providing citations to the record and relevant law. See T EX

. R. A PP

. P. 38.1(f) , (i) ( brief must state concisely all issues or points presented for review and contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record ) ; see also M uhammed v. Pla ins Pipeline, L.P. , No. 12

- 16

- 00189

- CV, 2017 WL 2665180, at *2 n.3 (Tex. App.

— Tyle r June 21, 2017, no pet. ) (mem. op.) (p ro se litigants are held to the same standards as licensed attorneys and must comply with all applicable ru les of procedu re; otherwise, pro se litigants would benefit from an unfair advantage over parties represented by counsel )

.2 Property was appraised at an incorrect value. Th e Appraisal Review Board issued its Final
Decision on July 23, finding that the appraisal records were correct and should not be changed.
Thereafter , Appellants filed a Petition for Re view of the Final Decision in the 35 4th District Court of Rains County, Texas

. In their petition, Appellants re

- urged the ar gument that their property is n ot subject to taxation b ecause they are not “ persons ” under the Texas Tax Code
and are therefore exc used f rom paying taxes

. Appellants re
- asserted their allegation that the Property was appraised at a value re flecting an inc rease higher than that permitted by law

. A ddition ally , they argu ed that the Distric t acted unconstitutionally in determining the v a lue of the Property in f ederal r eserve notes rather than in gold and/or silver , and in requiring Appellants to pay property tax es using the same currency

. Appellant s finally co ntended that the State of
Texas lacks any right to tax proper ty, and that the trial cou rt judge would commi t a felony if she
ordered Appellants to pay their assessed property taxes in f ederal r eserve not es

. The District moved to dis miss Appellant s ’ claims pursuant to Rule 91(a) of the Texas
Rules of Civil Procedure. The trial court found tha t all of Appellants ’ claims, save the claim alleging an unlawful increase in the Property ’ s appraised value, lacked any basis in law, and
dismiss ed those claim s. The trial cour t overruled App ellants ’ request for find ings of fact and
conclusions of law

. The reafter, the District moved for summary judgment on Appellant s ’ claim
that the District unlawfully increased the appr aised va lue of Appe lla nts ’ homestead by more than

ten percent from tax year 2020 to 2021. The District argued that only one acre of th e P ro perty is Appellants ’ homestead, a nd subject to the limitation on its appr aised value to 1 10% of the previous yea r ’ s a ppraised val ue (plus the value of any new im provements). The rest of the Property is not designated as Appel lants ’ home stead, is not subjec t to this limitation , and is appraised at market value. The District presented an affidavit from Chief Ap prais er Sherri McCall explaining her process f or calculating t he Property ’ s 2021 tax va lue , and attaching
documentation showin g the Property ’ s appraise d value in prev ious tax years. Appellants requeste d oral argument on the Distri ct ’ s First Amended Motion for S u mmary Judgment for the

pu rpose of cross

- examining the District , which the trial court denied. The trial court g ranted th e District ’ s First Amende d Motion for S u mmary Judgment on May 31, 2022

.3 Appellants r equested findings o f fact and conclusions of law on July 12. The tria l court
overruled th e request. This appeal followed. 2

R ULE 91 A D ISMISSAL We construe Appell ants ’ first, second, and third issu es as challenging the trial court ’ s dismissal under Ru le 91 a. Stan dard of Review and Applicable Law
If a ca use of action has no basis in law or fact, a party may move for dismissal under Rule
91a. T EX

. R. C IV

. P. 91a; see a lso In re Farmers Tex. Cnty. Mutu al Ins. Co. , 621 S.W.3d 261, 266 (Tex. 2021). “A cause of a ction has no basis in law if the allegations, t aken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sough t.”
T EX

. R. C IV

. P. 91a.1. We review whether a cause of action has any basis in law de novo. Sa n Jacinto River Auth. v. Medina , 627 S.W.3d 618, 628 (Tex. 2021). To establish that a cause of action has no basis in law, “the defendant must demonstrate
tha t reco very by t he plaintiff is foreclos ed as a matter of law

— i.e., that it is legally impossible
f or the plaintiff to recover on the claims in its petition

— because either (1) the causes of action in the petition are not recognized by Texas law or (2) the p lainti ff has al leged facts that defeat those causes of action under settled law (i.e., the plainti ff has pleaded itself out of court).” In re Shire
PLC , 633 S.W.3d 1, 19 (Tex. App.

— Texarkana 2021, no pet.) (orig. proceeding) (internal citations omitted). “A plai ntiff ple ads himself out of court by alleging facts that render success on the merits imposs ible.” Id. at 25. We accept as true the f actual allegations in the pleadings and liberally construe the pleadings in favor of the plaintiff. HMT Tank Serv . v. Am. Tank & Ves sel, Inc. , 565 S.W.3d
79 9, 808 (Tex. App.

— Houston [14th Dist.] 2018, no pet.). If n eeded, the trial court may draw

reasona ble inferences from the factual allegations to determine if the cause of action has any
basis in law or fact. Vas quez v. Legend Nat . G as, LP , 492 S.W.3d 448, 450 (Tex. App.

— San Antonio 2016, pet. denied). However, the c ourt may not consider evidence and must decide the motion “based solely on the pleading of the cause of action, together with any pleading exhibits

2 We origin ally dismissed this a ppeal because Appellants did not show that the ir notice of appeal was timely filed , and th us had not established th e jurisdiction of this Court. See Harpole v. Rains Cty. Appraisal D ist. , No. 12

- 22

- 00221

- CV, 20 22 WL 43 93028 (Tex. App.

— Tyler, no pet.) (per curiam) (mem. op.). We thereafter grante d Appellants ’ motion for rehearing and reinstated th is appe al.4 per mitted by [Texas Ru le of Civil Procedure] 59.” T EX

. R. C IV

. P. 91a.6. “A motion to dismiss

... must state specifically the reasons the cau se of action has no basis in law, no basis in fact, or
both.” T EX

. R. C IV

. P. 91a.2. Finally, when the trial court does not specify the g rou nd on which it relied, a party appealing the grant of a motion to dismiss under Rul e 91a must challenge every

grou nd on which the trial court could have granted the motion. Emmanuel v. Izoukumor , 611 S.W.3d 453, 458 (Tex. App.

— Ho uston [14th Dist.] 2020, no pet.).
Definition of “ P ersons ” Appellants argue that the tria l court erre d in dismissing their claim that they a re not

“ persons ” for purposes of the Texas T ax Code and are th erefore exempt from paying pro perty

taxes

. See T EX

. T AX C ODE A NN

. § 32. 07 (West 202 3 ) ( stat ing that prope rty taxes a re the personal obligation of the pers on who owns the property ). The y cite S ection 311.005(2) of the
Tex as Gov ern men t Code as support for their contention, which provides that the word “ person , ”
when not otherwi se defined by statute or context , “ i ncludes cor poration, organization, government o r governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity

. ” T EX

. G OV ’ T C ODE A NN

. § 311.00 5 (West 2023 ) (empha sis added)

. A pp ellants argue that because Section 311.005(2) does not enumerate

“ hu man being ” or “ individual ” a s contai ned in the definition of “ person, ” Section 32.07 of the
Tax Code does no t appl y to them.
But Section 311.005( 13 ) st ates that “ i nclud es ” is a term of en largement , rather t han a
term of limita tion or exclusive enumeration, and its use “ does not create a pre sumption that components not expressed are excluded

. ” Id. Paraphrased , w hen a statutory definition specifically “ i ncludes ” certain terms, it does not automatically exclude all other terms not listed. Therefore, the categories “ human being ” and “ individu al ” are not ex cluded from statut ory definition s of “ person ” merely because they are not s pecifically included in Se c tion 311.005(2)

. Moreover, t he Tax Code does not contain i ts own definition o f “ person, ” so we must interpret the
word applying its common
- law meaning or “ common usa ge

. ” See id

. § 311.0 11(a) (West 2023 ) ; Coming Attractions Bridal & Formal, Inc. v. Texas Health Res. , 595 S.W.3d 659, 662 (Tex. 2020) ; Bandin v. Fr ee & Sovereign State of Veracruz de Ignacio de la Llave , 590 S.W.3d 647, 652 (Tex. App.

— Houston [14th Dist.] 2019 , no pet. )

. And the com mon
- law meaning of the
word “ pe rson ” is “ a human being

. ” PERS ON, B LACK ’ S L AW D ICTIONARY (11th ed. 2019)

. We
assume the Tex as Legislature was aware of the common

- law meaning of the term “person” at the5 time it enacted Section 32.07 of the Tax Code

. See Acker v. Tex. Water Comm ’ n , 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is presumed to have been enacte d by the [L]egislatu re with complete knowledge of the existing law and with reference to it.”)

. App ellants specifically assert that they are human beings ; th us, each of them is a “ person ” for purposes of the T exas T ax Code , and each of them may be liable for property taxe s under Section 32.07

. A ppellants ’ c ontention that they are not persons and not lia ble for paying property taxes
has no basis in law ; thus, the tria l court correctly dismissed this clai m under Rule 9 1a. Appraisal Amount i n Federal Re serve Notes Appellants argue that the trial court wrongly dismissed their claim t hat appraising the Prop erty using f ederal r eserve notes as a unit of value is unconstitutional

. As best we can determine, App ellants conte nd that because federal reserve note s are not silver or gold, the y are obligations of the U nited States government and not lawful money. Th erefore, the valuation of
the P roperty ( and the basis for taxation thereon ) in United States dollars con stitutes a t ax on an obligation of the United Sta tes. Their rea soning is based on United States Constitution Article I, Section 10, Clause 1, which pro vides that “ [n] o State shall ... make any Thing but gold and silver Coin a Tender in Payments of Debts.” U.S. C ONST

. art. I, § 10, cl. 1. Appellants ’ ar gument is not novel and has b een addressed and rejected by multiple Texas

courts. See, e.g. , Rothacke r v. Rockwall Cty. Cent. Appraisal Dist. , 703 S.W.2d 235, 236 (Tex. App.

— Dallas 1985, writ ref ’ d ) (rejecting claim t hat an appraisal valued in dollars vio lates the
United States Const i tution) ; Mikulin v. Harris Cnty. , No. 01

- 18

- 00739

- CV, 2019 WL 4936042,

a t *2

– 3 (Tex. App.

— Houston [1st Dis t.] Oct. 8, 2019 , no pet. ) (mem. op.); Boyce v. Cnty. of
Williamson , No. 03

- 01

- 001 29

- CV, 2002 WL 58470, a t *1 (Tex. App.

— Austin Jan. 17, 2002 , no pet. ) (mem. op

. )

. Th e constitutional provision on which Appellants rely , by its plain language, only prohibits the states from creating a form of legal tender not recog nized or authorized by the federal government

. B oyce , 2002 WL 58470 at *1

. The Congressional authority to establish national paper currency is derived from its po wer “ [t] o borrow money on the credit of the United
States.” U.S. C ONST

. art. I, sec. 8, cl. 2. This Constitutional m andate has long b een recog nized as providing Congress with the power to e stablish a uniform legal tender for the payment of
debts. See Juil liard v. Greenman , 110 U.S. 421, 444, 4 S. Ct. 122, 128, 28 L. Ed. 204, 213 (1884)

. And Congress has exercised its power by means of delegation to the Federal Reserve System. 12 U.S.C.A. § 41 1

. Congress also designated United States coins and currency ,6 i ncluding f ederal reserve notes , as legal tender for all debts, public charges, taxes, and dues. Boyce , 2002 WL 584 70, at *1

. The Sup reme Court has upheld the power of Congress to establish a sy stem of fiat

currency. See, e.g. , Norman v. Baltim ore & O.R. Co. , 294 U.S. 240, 316, 55 S. Ct. 407, 419, 79 L. Ed. 885 (1935)

. And we are obli gated to follow not only the Cons titution, but the de cisions of
the United States Supreme Court which apply and co nstrue the Constitution

. The District ’ s appraisal of the P roperty ’ s value in United States dollars does not violate the Constitution or Appellants ’ c onstitutional rights

. Ev en construin g the pleadin gs liberally in Appellant s ’ favor,
their contention to the contrary lacks any basis in law, and the trial court pro per ly dismissed this
claim under Rule 91a

. Payment of Taxes Using Gold or Sil ver Appellant s argue that the trial co urt erred in dismissing their claim alleging they have a right to pay property taxe s in gold or silver coin, rather than federal reserve not es

. Specifically, Appellants appear to obj ect to Section 31.06 of the Texas Ta x Code, which requires parties
collec ting taxe s to accept payment only by “ United States currency or a check or money ord er , ”

or “ credit card or electronic funds transfer. ” T EX

. T AX C ODE A NN

. § 31.06 (West 2 023 )

. Ripeness is a threshold issue that implicat es subject ma tter jur isdiction a nd e mphasizes the need for a concrete injury for a justiciable claim to be presented. Rob inson v. Parker , 353 S.W.3d 753, 755 (Tex. 2011)

. In evaluating ripeness, we consider whether, at the time a lawsuit is filed, the fact s are suffici ently developed so th at an injury has occurred or is likely to occur, rather than being contingent or remote

. Id. Although a claim is not required to be ripe a t the time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will s oon ripen, the case must be d ismissed. Id. A case is not ripe when resolution depends on contingent or hypot hetical facts, or upon events that have not yet c ome to pass. Waco Indep. Sch. Dist. v.
Gibson , 22 S.W.3d 849, 852 (Tex. 2000)

. In this case, Appell ants allege nei ther that they tried to
pay their property taxes using gold or silver , nor that the relevant collection authority refused any such payment

. Appellan ts also fail to allege that they a re lik ely to attempt to pay taxes with go ld

an d silver in t he near future

. Further, i n granting the District ’ s Rule 91a motion to dismiss , t he
trial court did not orde r Appellants to remi t payment for property ta xes in United States dollars

. See Mikulin , 2019 WL 4936042 at *2

– 3

. The trial co urt could not have resolved this c laim
without re ference to hypothe tical events c ontingent upon actions not taken by Appellants

.7 Be cause Appellants ’ claim w as not ripe , the t rial court lacked subject

- matter jurisdiction over the
claim and cor rectly d i smissed it under Rule 91a.
E ven had App ell ants unsuccessfully attempted to pay their property taxes using gold or
silver , they would not be entitled to relief

. As set forth infra , t he purpose of Article I, Section 10
of the United States Constituti on is “to inhibit the ability of the states to create a form of legal tender and was not meant to preclude the payment of debts in any form of l egal tender authorized by the federal gove rn ment.” Rothacker , 703 S.W.2d at 236

. And a payment in Uni ted States
dollars is rec ognized by law as an acceptabl e form of payment for all debts and taxes. See Boyce , 2002 WL 58470, at *1 (reconciling alleged conflict with United States Constitution

ar ticle I, section 10, clause 1 and Texas Tax Code § 31.06(a ) ) ; Mikulin , 2019 WL 4936042, at *3 ( cour t order requi ring payment of tax debt in United States doll ars does not give rise to a conflict
of laws or violate the C onstitution ).
Summation
For the abov e reasons, w e conclude that the trial court pro p e rly grant ed the District ’ s Rule 91a motion

. We overrule Appella nts ’ first, second, and third issues

.

O RAL H EARING ON S UMMARY J UDGMENT In part of their f ourth i ssue, A ppellants contend that the trial court a bused its discretion by den ying the ir request for a h earing and oral argument on the District ’ s First Amended Mo tion
for S u mmary Judgment

. S pecifically , Appellants contend that th e tr ial court violated their Sixth Amendment right to cross
- examine “ the wit ness against [the m] , ” because they did not have the

opp ortunity to cross
- examine Sherri M cCall, the Chi ef Appra i ser for Rains County

. 3 Rule 166a(c) of the Texas Rules of Civil Procedure calls for a hearing on a moti on for summary judgment

. T EX

. R. C IV

. P. 166a (c)

. However, “ not every hearing called for under

eve ry rule of civil procedure necessarily requires an or al hearing. ” Martin v. Martin, Martin & Richards, Inc. , 989 S.W.2d 357, 359 (Tex. 1998)

. Unless required by the express language or
th e contex t of the particular r ule, the term “hearing” does not necessarily contemplate either a personal appearance befor e th e court or an oral pre sentation to the court. Id. An oral hearing on a motion for summary judgment may be helpful to the parties and the c ourt, but since oral

te stimony cannot be adduced in support of or opposition to a motion for summary judgment, a n

3 Appellant s offer no ar gument with res pect to the merits of the summary judgment order.8 oral hearing is not mandatory. Id

. ; T EX

. R. C IV

. P. 166a (c)

. The decision whether to grant an oral hearing on a s ummary judgment motion is p urely within the discreti on of the trial judge. Adamo v. State Farm Lloyds Co. , 853 S.W.2d 673, 677 (Tex. App.

— Houston [1 4th Dist.] ), writ
denied per curiam , 864 S.W.2d 491 (Tex. 1993), cert. denied , 511 U.S. 1053, 114 S. C t. 1613,
128 L. Ed. 2d 340 (1994 )

. Pursuant to R ule 166a, th e trial court may determine the merits of the

summary
- judgment action only based up on the pleadin gs, discovery responses, sworn affidavits, and other valid evidence submitted as grounds for granting or denying the motion. T EX

. R. C IV

. P. 166a( c). A n oral h earing on summary judgment is little more than argument of counsel , and a
trial c ourt ’ s failure t o conduct same upon request of a party is not reversible error. Giese v. NCNB Texas Forney Banking Ct r. , 881 S.W.2d 776, 783 (T ex. A pp.

— Dallas 1994 , no pet. )

. B y its express terms, the Sixth Amendmen t right to confrontation applies to crim inal

ac tions , not civil actions. U.S. C ONST

. amend. VI (“In all criminal prosecutions, the accused shall enjoy the rig ht ... to be confronted w ith the witnesses ag ainst him”) ( emphasis added); see also T EX

. C ONST

. art. I, § 10 (“In all criminal prosecutio ns the accused

. . . shall be confronted by the witnesses against him [.] ”)

. Because the appraisal decision Appellants c hallenge is civil
rather than criminal in nature, Appel lan ts enjoy ed no right to confront wi tnesses

. And b ecause a trial court may not collect oral t estimony either in support of or in oppo sition to a motion for summary judgment, McCall would not have prov i ded any live testimony at a hearing on the
District ’ s motio n , a nd Appel lants would not have had any opportunity to question or cross
e xamine her even if the trial court granted their request for a hearing. Se e T EX

. R. C IV

. P.
166a (c)

. We conclude that the trial court did not a buse its discretion in denying Appellants ’ request for a hearing on the District ’ s motion for summary judgment a nd overrule this portion of Appellants ’ fourth issue.

F INDINGS OF F ACT AND C ON CLUSIONS OF L AW In the remaining portion of the ir fourth issue, A ppellants contend that the trial court erred by ove rruling their request for findings of fact and conclusions o f law as to its order s granting the
District ’ s Rule 91a motion to dismiss and traditiona l motion for summary judgment

. Rule 29 6 of the Texas Rule s of Civil Procedure requires the filing of findings of fact and
conclusions of law upon request of a party in cases “t ried in the district or county court without a9 jury.” T EX

. R. C IV

. P. 296

. A trial judge has the authority and duty to file requested f in dings of
fact an d conclusions of law when there has been an evidentiary hearing to the court or a bench
trial on the me rits. Zimmerman v. Robinson , 862 S.W.2d 162, 164 (Tex. Ap p.

— Amarillo 1993 , no pet. )

. However, findin gs and conclusio ns should not be re quested or made when the trial
court renders judgment as a matter of law , because they serve no purpose

. IKB Indus. (Nige ria)
Ltd. v. Pro

- Line Corp. , 938 S.W.2d 440, 4 43 (Tex. 19 97)

. W hen ruling on a Rule 91a motion to d ismiss, a court d oes not consider evidence bu t rather must determ ine whether, accepting all facts alleged by the plaintiff as true, reco very by t he plaintiff is foreclosed as a matter of law

. In re Shire PLC , 633 S .W.3d at 19

. Because the tria l
court decide s a Rule 91a mot ion to d ismiss based upon the pleading of the causes of action , findings of fact an d conclusions of law are neither required nor appropriate

. T EX

. R. C IV

. P.
91a.6 ; WISD Taxpayers Ass ’ n v. Waco In dep. Sch. Dist. , 912 S.W.2d 392, 394 (Tex. App.

— Waco 1995 , n o pet. ) ( “ W he n a court dismisses a suit based on the pleadings, fin dings of fact an d conclusions of law are not app ropriate. ” ). Similarly, w hen a trial court grants summary judgment relief, findin gs of fact are not appropriate because the summary judgment proceeding
h as not been “ tried ” within the scope of R ule 296. Willms v . Americas Tire Co. , 190 S.W.3d 796, 810 (Tex. App.

— Dallas 2006, pet. denied ) ; Besing v. Moffit t , 882 S.W.2d 79, 82 (Tex. App.

— Amar illo 1994 , no pet. )

. If summary judgment is proper, the re are no facts to find, and the legal conclusions have already been stated in the motion and response. Linwood v. NCNB
Tex. , 885 S.W.2d 102 , 103 (Tex.1994) ( f indings of fact and conclusions of la w “ have no place ”
in a summary judgment proceeding ); Willms , 190 S .W. 3d at 810. In this case, none of Appellants ’ claim s were “ tried ” w ithin the meaning of Rule 296,
because the t rial court rendered judgment only as a matter of law. We conclude t hat t he t rial
court did not err by denying Appellants ’ requests for f indings of fact and conclusions of law

. Consequ ently, we o verrule this part of Appellants ’ fourth issue.
D ISPOSITION
Ha ving concluded that t he trial court committed no reversible error and overrul ed each of Ap pellants ’ issues , we affirm the judgment of the trial c ourt.
J AMES T. W ORTHEN Justice
Opinion delivered May 17 , 2023. Pane l consiste d of Worthen, C.J., Hoyle, J., a nd Neeley, J.

## COURT OF APPEALS

TW ELFTH COURT OF APPEALS DISTRICT OF TEXAS

J UDGMENT

M AY 17, 2023

NO

. 12-22-00221- CV

J OHN T. HARPOLE AND LENETTE A. KMIECIK , Appellants V. RAINS COUNTY APPRAISAL DISTRICT , Ap pellee

A ppeal from the 354th District Court
of Rains County, Texas (Tr.Ct.No. 11157)

T HIS CAUSE came to be heard on the appellate rec ord and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in t he judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed , all costs of this appeal are assessed against the Appellants, JOHN T. HARPOLE and LENETTE A. KMIECIK , and that this decision be

cer tified to the court below for observance.
J ames T. Worthen , Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.