NO. 12-22-00221-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN T. HARPOLE AND LENETTE 

A. KMIECIK, 

APPELLANTS

V.

RAINS COUNTY APPRAISAL 

DISTRICT,

APPELLEE

§

§

§

APPEAL FROM THE 354TH 

JUDICIAL DISTRICT COURT

RAINS COUNTY, TEXAS

MEMORANDUM OPINION

Appellants, John T. Harpole and Lenette A. Kmiecik, acting pro se, appeal the trial 

court’s grant of dismissal under Rule 91(a) and summary judgment in favor of Appellee, Rains 

County Appraisal District (the District). In four issues, Appellants argue that the trial court erred 

in disposing of their claims.1 We affirm.

BACKGROUND

In April of 2021, the District issued a Notice of Appraised Value to Appellants for a 

4.993-acre piece of real property located at 5193 East Highway 69 in Alba, Texas (the Property). 

Appellants protested the contents of the notice and appeared at a hearing before the Appraisal 

Review Board on July 20, 2021. They asserted in relevant part that the Property should not be 

taxed at all because Appellants are not “persons” under the Texas Tax Code, and that the 

1 Appellants list six “issues presented for review,” but actually brief only four “arguments” (which differ 

from the stated issues presented) setting forth their position and providing citations to the record and relevant law. 

See TEX. R. APP. 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 Muhammed v. Plains Pipeline, L.P., No. 12-16-00189-CV, 2017 WL 2665180, at *2 n.3 (Tex. App.—Tyler 

June 21, 2017, no pet.) (mem. op.) (pro se litigants are held to the same standards as licensed attorneys and must 

comply with all applicable rules of procedure; otherwise, pro se litigants would benefit from an unfair advantage 

over parties represented by counsel).
2

Property was appraised at an incorrect value. The 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 Review of the Final Decision in the 354th 

District Court of Rains County, Texas. In their petition, Appellants re-urged the argument that 

their property is not subject to taxation because they are not “persons” under the Texas Tax Code

and are therefore excused from paying taxes. Appellants re-asserted their allegation that the 

Property was appraised at a value reflecting an increase higher than that permitted by law.

Additionally, they argued that the District acted unconstitutionally in determining the value of 

the Property in federal reserve notes rather than in gold and/or silver, and in requiring Appellants 

to pay property taxes using the same currency. Appellants finally contended that the State of 

Texas lacks any right to tax property, and that the trial court judge would commit a felony if she 

ordered Appellants to pay their assessed property taxes in federal reserve notes.

The District moved to dismiss Appellants’ claims pursuant to Rule 91(a) of the Texas 

Rules of Civil Procedure. The trial court found that all of Appellants’ claims, save the claim 

alleging an unlawful increase in the Property’s appraised value, lacked any basis in law, and 

dismissed those claims. The trial court overruled Appellants’ request for findings of fact and 

conclusions of law. Thereafter, the District moved for summary judgment on Appellants’ claim 

that the District unlawfully increased the appraised value of Appellants’ homestead by more than 

ten percent from tax year 2020 to 2021. The District argued that only one acre of the Property is 

Appellants’ homestead, and subject to the limitation on its appraised value to 110% of the 

previous year’s appraised value (plus the value of any new improvements). The rest of the 

Property is not designated as Appellants’ homestead, is not subject to this limitation, and is 

appraised at market value. The District presented an affidavit from Chief Appraiser Sherri

McCall explaining her process for calculating the Property’s 2021 tax value, and attaching 

documentation showing the Property’s appraised value in previous tax years. Appellants 

requested oral argument on the District’s First Amended Motion for Summary Judgment for the 

purpose of cross-examining the District, which the trial court denied. The trial court granted the 

District’s First Amended Motion for Summary Judgment on May 31, 2022.
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Appellants requested findings of fact and conclusions of law on July 12. The trial court 

overruled the request. This appeal followed.2

RULE 91A DISMISSAL

We construe Appellants’ first, second, and third issues as challenging the trial court’s 

dismissal under Rule 91a.

Standard of Review and Applicable Law

If a cause of action has no basis in law or fact, a party may move for dismissal under Rule 

91a. TEX. R. CIV. P. 91a; see also In re Farmers Tex. Cnty. Mutual Ins. Co., 621 S.W.3d 261, 

266 (Tex. 2021). “A cause of action has no basis in law if the allegations, taken as true, together 

with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.”

TEX. R. CIV. P. 91a.1. We review whether a cause of action has any basis in law de novo. San 

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 

that recovery by the plaintiff is foreclosed as a matter of law—i.e., that it is legally impossible 

for 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 plaintiff has alleged facts that defeat those 

causes of action under settled law (i.e., the plaintiff 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 plaintiff pleads himself out of court by alleging facts that render success 

on the merits impossible.” Id. at 25.

We accept as true the factual allegations in the pleadings and liberally construe the 

pleadings in favor of the plaintiff. HMT Tank Serv. v. Am. Tank & Vessel, Inc., 565 S.W.3d 

799, 808 (Tex. App.—Houston [14th Dist.] 2018, no pet.). If needed, the trial court may draw 

reasonable inferences from the factual allegations to determine if the cause of action has any 

basis in law or fact. Vasquez v. Legend Nat. Gas, LP, 492 S.W.3d 448, 450 (Tex. App.—San 

Antonio 2016, pet. denied). However, the court 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 originally dismissed this appeal because Appellants did not show that their notice of appeal was 

timely filed, and thus had not established the jurisdiction of this Court. See Harpole v. Rains Cty. Appraisal Dist., 

No. 12-22-00221-CV, 2022 WL 4393028 (Tex. App.—Tyler, no pet.) (per curiam) (mem. op.). We thereafter 

granted Appellants’ motion for rehearing and reinstated this appeal.
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permitted by [Texas Rule of Civil Procedure] 59.” TEX. R. CIV. P. 91a.6. “A motion to dismiss 

... must state specifically the reasons the cause of action has no basis in law, no basis in fact, or 

both.” TEX. R. CIV. P. 91a.2. Finally, when the trial court does not specify the ground on which 

it relied, a party appealing the grant of a motion to dismiss under Rule 91a must challenge every 

ground on which the trial court could have granted the motion. Emmanuel v. Izoukumor, 611 

S.W.3d 453, 458 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

Definition of “Persons”

Appellants argue that the trial court erred in dismissing their claim that they are not 

“persons” for purposes of the Texas Tax Code and are therefore exempt from paying property

taxes. See TEX. TAX CODE ANN. § 32.07 (West 2023) (stating that property taxes are the 

personal obligation of the person who owns the property). They cite Section 311.005(2) of the 

Texas Government Code as support for their contention, which provides that the word “person,”

when not otherwise defined by statute or context, “includes corporation, organization, 

government or governmental subdivision or agency, business trust, estate, trust, partnership, 

association, and any other legal entity.” TEX. GOV’T CODE ANN. § 311.005 (West 2023)

(emphasis added). Appellants argue that because Section 311.005(2) does not enumerate 

“human being” or “individual” as contained in the definition of “person,” Section 32.07 of the 

Tax Code does not apply to them. 

But Section 311.005(13) states that “includes” is a term of enlargement, rather than a 

term of limitation or exclusive enumeration, and its use “does not create a presumption that 

components not expressed are excluded.” Id. Paraphrased, when a statutory definition

specifically “includes” certain terms, it does not automatically exclude all other terms not listed. 

Therefore, the categories “human being” and “individual” are not excluded from statutory 

definitions of “person” merely because they are not specifically included in Section 311.005(2).

Moreover, the Tax Code does not contain its own definition of “person,” so we must interpret the 

word applying its common-law meaning or “common usage.” See id. § 311.011(a) (West 2023);

Coming Attractions Bridal & Formal, Inc. v. Texas Health Res., 595 S.W.3d 659, 662 (Tex. 

2020); Bandin v. Free & 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 common-law meaning of the

word “person” is “a human being.” PERSON, BLACK’S LAW DICTIONARY (11th ed. 2019). We 

assume the Texas Legislature was aware of the common-law meaning of the term “person” at the
5

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 enacted by the [L]egislature with 

complete knowledge of the existing law and with reference to it.”). Appellants specifically assert 

that they are human beings; thus, each of them is a “person” for purposes of the Texas Tax Code, 

and each of them may be liable for property taxes under Section 32.07.

Appellants’ contention that they are not persons and not liable for paying property taxes 

has no basis in law; thus, the trial court correctly dismissed this claim under Rule 91a. 

Appraisal Amount in Federal Reserve Notes 

Appellants argue that the trial court wrongly dismissed their claim that appraising the 

Property using federal reserve notes as a unit of value is unconstitutional. As best we can 

determine, Appellants contend that because federal reserve notes are not silver or gold, they are 

obligations of the United States government and not lawful money. Therefore, the valuation of 

the Property (and the basis for taxation thereon) in United States dollars constitutes a tax on an 

obligation of the United States. Their reasoning is based on United States Constitution Article I, 

Section 10, Clause 1, which provides that “[n]o State shall ... make any Thing but gold and silver 

Coin a Tender in Payments of Debts.” U.S. CONST. art. I, § 10, cl. 1.

Appellants’ argument is not novel and has been addressed and rejected by multiple Texas 

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

App.—Dallas 1985, writ ref’d) (rejecting claim that an appraisal valued in dollars violates the 

United States Constitution); Mikulin v. Harris Cnty., No. 01-18-00739-CV, 2019 WL 4936042, 

at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 8, 2019, no pet.) (mem. op.); Boyce v. Cnty. of 

Williamson, No. 03-01-00129-CV, 2002 WL 58470, at *1 (Tex. App.—Austin Jan. 17, 2002, no 

pet.) (mem. op.). The constitutional provision on which Appellants rely, by its plain language, 

only prohibits the states from creating a form of legal tender not recognized or authorized by the 

federal government. Boyce, 2002 WL 58470 at *1. The Congressional authority to establish 

national paper currency is derived from its power “[t]o borrow money on the credit of the United 

States.” U.S. CONST. art. I, sec. 8, cl. 2. This Constitutional mandate has long been recognized 

as providing Congress with the power to establish a uniform legal tender for the payment of 

debts. See Juilliard 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. § 411. Congress also designated United States coins and currency,
6

including federal reserve notes, as legal tender for all debts, public charges, taxes, and dues.

Boyce, 2002 WL 58470, at *1.

The Supreme Court has upheld the power of Congress to establish a system of fiat 

currency. See, e.g., Norman v. Baltimore & O.R. Co., 294 U.S. 240, 316, 55 S. Ct. 407, 419, 79 

L. Ed. 885 (1935). And we are obligated to follow not only the Constitution, but the decisions of 

the United States Supreme Court which apply and construe the Constitution. The District’s

appraisal of the Property’s value in United States dollars does not violate the Constitution or 

Appellants’ constitutional rights. Even construing the pleadings liberally in Appellants’ favor, 

their contention to the contrary lacks any basis in law, and the trial court properly dismissed this 

claim under Rule 91a.

Payment of Taxes Using Gold or Silver

Appellants argue that the trial court erred in dismissing their claim alleging they have a 

right to pay property taxes in gold or silver coin, rather than federal reserve notes. Specifically, 

Appellants appear to object to Section 31.06 of the Texas Tax Code, which requires parties 

collecting taxes to accept payment only by “United States currency or a check or money order,”

or “credit card or electronic funds transfer.” TEX. TAX CODE ANN. § 31.06 (West 2023).

Ripeness is a threshold issue that implicates subject matter jurisdiction and emphasizes 

the need for a concrete injury for a justiciable claim to be presented. Robinson v. Parker, 353 

S.W.3d 753, 755 (Tex. 2011). In evaluating ripeness, we consider whether, at the time a lawsuit 

is filed, the facts are sufficiently developed so that 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 at the 

time of filing, if a party cannot demonstrate a reasonable likelihood that the claim will soon 

ripen, the case must be dismissed. Id. A case is not ripe when resolution depends on contingent 

or hypothetical facts, or upon events that have not yet come to pass. Waco Indep. Sch. Dist. v. 

Gibson, 22 S.W.3d 849, 852 (Tex. 2000). In this case, Appellants allege neither that they tried to 

pay their property taxes using gold or silver, nor that the relevant collection authority refused any 

such payment. Appellants also fail to allege that they are likely to attempt to pay taxes with gold 

and silver in the near future. Further, in granting the District’s Rule 91a motion to dismiss, the

trial court did not order Appellants to remit payment for property taxes in United States dollars.

See Mikulin, 2019 WL 4936042 at *2–3. The trial court could not have resolved this claim 

without reference to hypothetical events contingent upon actions not taken by Appellants.
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Because Appellants’ claim was not ripe, the trial court lacked subject-matter jurisdiction over the 

claim and correctly dismissed it under Rule 91a.

Even had Appellants unsuccessfully attempted to pay their property taxes using gold or 

silver, they would not be entitled to relief. As set forth infra, the purpose of Article I, Section 10 

of the United States Constitution 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 legal tender authorized 

by the federal government.” Rothacker, 703 S.W.2d at 236. And a payment in United States 

dollars is recognized by law as an acceptable form of payment for all debts and taxes. See

Boyce, 2002 WL 58470, at *1 (reconciling alleged conflict with United States Constitution 

article I, section 10, clause 1 and Texas Tax Code § 31.06(a)); Mikulin, 2019 WL 4936042, at *3 

(court order requiring payment of tax debt in United States dollars does not give rise to a conflict 

of laws or violate the Constitution).

Summation

For the above reasons, we conclude that the trial court properly granted the District’s

Rule 91a motion. We overrule Appellants’ first, second, and third issues.

ORAL HEARING ON SUMMARY JUDGMENT

In part of their fourth issue, Appellants contend that the trial court abused its discretion 

by denying their request for a hearing and oral argument on the District’s First Amended Motion 

for Summary Judgment. Specifically, Appellants contend that the trial court violated their Sixth 

Amendment right to cross-examine “the witness against [them],” because they did not have the 

opportunity to cross-examine Sherri McCall, the Chief Appraiser for Rains County.3

Rule 166a(c) of the Texas Rules of Civil Procedure calls for a hearing on a motion for 

summary judgment. TEX. R. CIV. P. 166a(c). However, “not every hearing called for under 

every rule of civil procedure necessarily requires an oral hearing.” Martin v. Martin, Martin & 

Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). Unless required by the express language or 

the context of the particular rule, the term “hearing” does not necessarily contemplate either a 

personal appearance before the court or an oral presentation to the court. Id. An oral hearing on 

a motion for summary judgment may be helpful to the parties and the court, but since oral 

testimony cannot be adduced in support of or opposition to a motion for summary judgment, an 

3 Appellants offer no argument with respect to the merits of the summary judgment order.
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oral hearing is not mandatory. Id.; TEX. R. CIV. P. 166a(c). The decision whether to grant an 

oral hearing on a summary judgment motion is purely within the discretion of the trial judge. 

Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex. App.—Houston [14th Dist.]), writ 

denied per curiam, 864 S.W.2d 491 (Tex. 1993), cert. denied, 511 U.S. 1053, 114 S. Ct. 1613,

128 L. Ed. 2d 340 (1994). Pursuant to Rule 166a, the trial court may determine the merits of the 

summary-judgment action only based upon the pleadings, discovery responses, sworn affidavits, 

and other valid evidence submitted as grounds for granting or denying the motion. TEX. R. CIV.

P. 166a(c). An oral hearing on summary judgment is little more than argument of counsel, and a 

trial court’s failure to conduct same upon request of a party is not reversible error. Giese v. 

NCNB Texas Forney Banking Ctr., 881 S.W.2d 776, 783 (Tex. App.—Dallas 1994, no pet.).

By its express terms, the Sixth Amendment right to confrontation applies to criminal 

actions, not civil actions. U.S. CONST. amend. VI (“In all criminal prosecutions, the accused 

shall enjoy the right ... to be confronted with the witnesses against him”) (emphasis added); see

also TEX. CONST. art. I, § 10 (“In all criminal prosecutions the accused . . . shall be confronted by 

the witnesses against him[.]”). Because the appraisal decision Appellants challenge is civil 

rather than criminal in nature, Appellants enjoyed no right to confront witnesses. And because a

trial court may not collect oral testimony either in support of or in opposition to a motion for 

summary judgment, McCall would not have provided any live testimony at a hearing on the 

District’s motion, and Appellants would not have had any opportunity to question or crossexamine her even if the trial court granted their request for a hearing. See TEX. R. CIV. P.

166a(c).

We conclude that the trial court did not abuse its discretion in denying Appellants’

request for a hearing on the District’s motion for summary judgment and overrule this portion of 

Appellants’ fourth issue.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In the remaining portion of their fourth issue, Appellants contend that the trial court erred

by overruling their request for findings of fact and conclusions of law as to its orders granting the 

District’s Rule 91a motion to dismiss and traditional motion for summary judgment.

Rule 296 of the Texas Rules of Civil Procedure requires the filing of findings of fact and 

conclusions of law upon request of a party in cases “tried in the district or county court without a 
9

jury.” TEX. R. CIV. P. 296. A trial judge has the authority and duty to file requested findings of 

fact and conclusions of law when there has been an evidentiary hearing to the court or a bench 

trial on the merits. Zimmerman v. Robinson, 862 S.W.2d 162, 164 (Tex. App.—Amarillo 1993, 

no pet.). However, findings and conclusions should not be requested or made when the trial 

court renders judgment as a matter of law, because they serve no purpose. IKB Indus. (Nigeria) 

Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997).

When ruling on a Rule 91a motion to dismiss, a court does not consider evidence but 

rather must determine whether, accepting all facts alleged by the plaintiff as true, recovery by the 

plaintiff is foreclosed as a matter of law. In re Shire PLC, 633 S.W.3d at 19. Because the trial 

court decides a Rule 91a motion to dismiss based upon the pleading of the causes of action, 

findings of fact and conclusions of law are neither required nor appropriate. TEX. R. CIV. P.

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

Waco 1995, no pet.) (“When a court dismisses a suit based on the pleadings, findings of fact and 

conclusions of law are not appropriate.”). Similarly, when a trial court grants summary 

judgment relief, findings of fact are not appropriate because the summary judgment proceeding 

has not been “tried” within the scope of Rule 296. Willms v. Americas Tire Co., 190 S.W.3d 

796, 810 (Tex. App.—Dallas 2006, pet. denied); Besing v. Moffitt, 882 S.W.2d 79, 82 (Tex. 

App.—Amarillo 1994, no pet.). If summary judgment is proper, there 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) (findings of fact and conclusions of law “have no place”

in a summary judgment proceeding); Willms, 190 S.W.3d at 810.

In this case, none of Appellants’ claims were “tried” within the meaning of Rule 296, 

because the trial court rendered judgment only as a matter of law. We conclude that the trial 

court did not err by denying Appellants’ requests for findings of fact and conclusions of law.

Consequently, we overrule this part of Appellants’ fourth issue.

DISPOSITION

Having concluded that the trial court committed no reversible error and overruled each of 

Appellants’ issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Justice

Opinion delivered May 17, 2023.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT 

MAY 17, 2023 

NO. 12-22-00221-CV

JOHN T. HARPOLE AND LENETTE A. KMIECIK, 

Appellants 

V.

RAINS COUNTY APPRAISAL DISTRICT, 

Appellee

Appeal from the 354th District Court 

of Rains County, Texas (Tr.Ct.No. 11157) 

THIS CAUSE came to be heard on the appellate record and briefs filed herein, 

and the same being considered, it is the opinion of this court that there was no error in the 

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 

certified to the court below for observance.

James T. Worthen, Chief Justice. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.