NO. 04-14-00343-CV 

IN THE 

FOURTH COURT OF APPEALS 

San Antonio, Texas ___________________________________ 

EXLP LEASING, LLC and EES LESING, LLC,

Appellants 

v. 

WEBB COUNTY APPRAISAL DISTRICT and 

UNITED INDEPENDENT SCHOOL DISTRICT 

Appellees 

______________________________________ 

From the 406th Judicial District, Webb County Texas 

Trial Court No. 2013-CV-8000074-D4 

The Hon. Oscar J. Hale, Jr., Judge Presiding 

__________________________________________________________________ 

UNITED INDEPENDENT SCHOOL DISTRICT’S MOTION FOR 

REHEARING 

__________________________________________________________________ 

Alberto Alarcon 

 State Bar No. 00968425 

 Paul C. Saenz 

 State Bar No. 24013441 

 Guillermo G. Alarcon 

 State Bar No. 00968410 

ALARCON & SAENZ, PLLC 

1302 Washington 

Laredo, Texas 78040 

Tel. (956) 727 8585 

Fax. (956)727 8597 

Email: aalarcon@sbcglobal.net 

ATTORNEYS FOR THE UNITED 

INDEPENDENT SCHOOL DISTRICT 

ACCEPTED

14-00343

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

6/12/2015 4:28:22 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 06/12/2015 4:28:22 PM KEITH E. HOTTLE Clerk
i 

TABLE OF CONTENTS 

Index of Authorities...........................................................................ii 

Points Relied Upon Rehearing...............................................................iii 

Argument.......................................................................................1 

I. Under the doctrine of the “last antecedent”, the phrase “not in dispute” refers 

to value, the last and nearest antecedent, and not to the more remote phrase 

“the amount of taxes due”.........................................................1 

II. Applying the phrase “not in dispute” to “the amount of taxes due” renders 

the phrase “taxable value” meaningless and superfluous........................2 

III. Under the Court’s ruling, taxpayers will be able to extend the delinquency 

date, avoiding interest and penalties, without paying anything, simply by 

adding a situs dispute to their protest and appeal, regardless of merit; this is 

in direct contravention of the Legislature’s policy...............................2 

Conclusion and Prayer.........................................................................4 

Certificate of Service...........................................................................6 

Certificate of Compliance.....................................................................7 
ii 

INDEX OF AUTHORITIES 

Cases 

Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651 (Tex. 2013).........

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008)...

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009)................

In re Ford Motor Co., 442 S.W.3d 265 (Tex. 2014)............................... 

Palaniappan v. Harris Cnty. Appraisal Dist., No. 01-11-00344-CV, 2013 WL 

6857983 (Tex. App.-Houston [1st Dist.] Dec. 31, 2013, no pet.) (not 

designated by publication).......................................................

Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012)...........

Valerus Compression Services v. Gregg County Appraisal Dist., 457 S.W.3d 520 

(Tex. App.-Tyler 2015, no pet.)..................................................

.........4

.........2

.........1

.........2

.........3

.........1

......iv, 4 

Statutes and Rules 

Tex. Tax Code Ann. § 1.04 (10) (West, Westlawnext through 2015 Sess.)... 

Tex. Tax Code Ann. § 23.1241 (West, Westlawnext through 2015 Sess.)..... 

Tex. Tax Code Ann. § 41.4115 (b), 41A.10 (a), 42.08 (a) (West, 

Westlawnext through 2015 Sess.)................................................ 

Tex. Tax Code Ann. § 41.42 (West, Westlawnext through 2015 Sess.).......... 

Tex. Tax Code Ann. § 42.08 (a) (West, Westlawnext through 2015 Sess.)... 

Tex. Tax Code Ann. § 42.08 (b) (1) (West, Westlawnext through 2015 

Sess.)............................................................................... 

Tex. Tax Code Ann. § 42.08 (d) (West, Westlawnext through 2015 Sess.)... 

Tex. R. App. P. 49.1............................................................... 

.........1

......iv, 4

.........2

.........iv 

......3, 4

...iii, v, 1 

.........3

.........iii
iii 

POINTS RELIED UPON REHEARING 

Pursuant to Rule 49.1 of the Texas Rules of Appellate Procedure, Appellee, 

United Independent School District (“UISD”), relies on the following points in filing 

this motion for rehearing: 

Section 42.08 (b) (1) of the Texas Tax Code requires a payment in order to 

prevent the forfeiture of judicial review. The actual text states that the payment must 

be in “the amount of the taxes due on the portion of the taxable value of the property that 

is not in dispute” (emphasis added). In its decision, the Court misinterpreted section 

42.08 (b) (1) by failing to apply the phrase “not in dispute” to the phrase’s nearest and 

last antecedent referent, “taxable value of the property”. Instead, the Court applied the 

phrase “not in dispute” to the more remote phrase “the amount of taxes due”, stating 

that “the owner must pay the lesser of: (1) the amount of taxes not in dispute....” Op.

at 5. If the Court had applied the phrase “not in dispute” to its last and nearest referent, 

the Court would have had to apply the meaning given by the Legislature to the phrase 

“taxable value”. “Taxable value” only means value; not value that an entity has 

jurisdiction to tax. By failing to do so, the Court revised the statute and created an 

exception of $-0- prepayment requirement in situs disputes, an exception which is 

nowhere to be found in section 42.08. 

Moreover, if the phrase “amount of taxes due” was intended as a referent of the 

phrase “not in dispute”, the Legislature would not have had to include the phrase 

“taxable value of the property”. Necessarily, if the “taxable value” is in dispute so then 
iv 

would be the “amount of taxes due”, making the phrase “taxable value” superfluous 

and meaningless. In other words, it would have been sufficient to for the statute to state 

exactly what the Court stated: “the amount of taxes not in dispute,” making the phrase 

“taxable value” totally superfluous and meaningless. Op. at 5 

The Legislature’s policy is easily discernible from the text of Chapters 41, 41A 

and 42 of the Tax Code as a whole. The policy is to prevent taxpayers from using the 

judicial review as a subterfuge for delaying or avoiding the payment of taxes and to 

assure that the activities of the local governments which rely on ad valorem taxes are 

not unduly impeded during judicial review. When the tax statutes were enacted, the 

Legislature was fully aware that there would be situs disputes. See Tex. Tax Code Ann. 

§ 41.42 (West, Westlawnext through 2015 Sess.). But the Legislature chose to make no 

exception to the prepayment requirement in situs disputes when it could have easily 

done so. Whether section 42.08 ought to contain an exception to the prepayment 

requirement in situs cases is a policy choice the Legislature has made. 

The Court’s decision paves the way for abuse of the use of judicial review as a 

subterfuge for delaying or avoiding the payment of taxes in cases even where the situs 

is clearly within the jurisdiction of the taxing district. This case is a prime example. 

Whether the property the subject of this case is dealer’s heavy equipment inventory or 

not has nothing to do with the clear situs of the equipment. In its decision, the Court 

did not address Valerus Compression Services v. Gregg County Appraisal Dist., 457 S.W.3d 520 

(Tex. App.-Tyler 2015, no pet.), which held that section 23.1241 (section dealing with 
v 

dealer’s heavy equipment inventory) has nothing to do with situs. The Court’s ruling 

gives taxpayers an exception to the prepayment requirement not contained in section 

42.08, so long as situs is in dispute. Therefore, any taxpayer may now include a claim of 

improper situs in their protest, even if the claim lacks merit, and then appeal an adverse 

ruling and the prepayment requirement would be $-0-. More gravely, the exception 

created by the Court gives the taxpayer the ability to extend the delinquency date, 

without paying a dime or incurring penalties or interest, for as long as the taxpayer can 

keep the case in court. This case was filed in 2013 for taxes that would have become 

delinquent in February 1, 2013, and there is still no delinquency date. It is obvious why 

the Legislature decided not to create an exception of $-0- prepayment requirement in 

situs disputes. If such an exception is read into section 42.08, every protest and appeal 

will undoubtedly contain a situs dispute, regardless of merit. 
1 

ARGUMENT 

I. Under the doctrine of the “last antecedent”, the phrase “not in dispute” 

refers to value, the last and nearest antecedent, and not to the more remote 

phrase “the amount of taxes due” 

 Section 42.08 (b) (1) does not provide for a payment of $-0- if the property owner 

claims the property is not sitused in the taxing jurisidiction, nor does it provide, as held 

by the Court, that “a taxpayer is required to pay only the lesser of the undisputed portion 

of the taxes...” Op. at 6. Instead, the actual text of section 42.08 (b) (1) provides for a 

payment of “the amount of taxes due on the portion of the taxable value of the property that 

is not in dispute.” Tex. Tax Code Ann. § 42.08 (b) (1) (West, Westlawnext through 2015 

Sess.) Under the doctrine of the “last antecedent,” relative and qualifying words, 

phrases, and clauses are to be applied to the words or phrases immediately preceding, 

and are not to be construed as extending to or including others more remote. Texas W. 

Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 184 (Tex. 2012). Here, the phrase “not in 

dispute” refers to the “taxable value of the property” and not to the more remote phrase 

“the amount of taxes due.” And, “taxable value” does not mean value that is subject to 

the taxing entity’s jurisdiction to tax; it simply means value. Tex. Tax Code Ann. § 1.04 

(10) (West, Westlawnext through 2015 Sess.) (when the Legislature has supplied its own 

definition, as is the case here, the courts do not look at the ordinary or commonly 

understood meaning; the courts are bound by the definition supplied by the Legislature. 

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)). 
2 

II. Applying the phrase “not in dispute” to “the amount of taxes due” renders 

the phrase “taxable value” meaningless and superfluous 

 Moreover, applying the phrase “not in dispute” to the phrase “the amount of 

taxes due” would not make sense because it would render the phrase “taxable value of 

the property” meaningless and superfluous, in violation of yet another cannon of 

statutory construction. The courts must not interpret a statute in a manner that renders 

any part of the statute meaningless or superfluous. Columbia Med. Ctr. of Las Colinas, Inc. 

v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). If the phrase “amount of taxes due” was 

intended as a referent of the phrase “not in dispute”, it would not have been necessary 

to include the phrase “taxable value of the property” because if the “taxable value is in 

dispute” so then would be the “amount of taxes due”, making the phrase taxable value 

superfluous. 

III. Under the Court’s ruling, taxpayers will be able to extend the delinquency 

date, avoiding interest and penalties, without paying anything, simply by 

adding a situs dispute to their protest and appeal, regardless of merit; this 

is in direct contravention of the Legislature’s policy 

 

 Also, in ascertaining the meaning of a statute, the courts must look, in addition 

to the particular statutory language, to the language and design of the statutory scheme 

as a whole. In re Ford Motor Co., 442 S.W.3d 265, 280 (Tex. 2014). There can be no 

doubt that the meaning of the statue is that the delinquency date is not affected by a 

protest or an appeal unless the taxpayer pays taxes on the value not in dispute. Tex. Tax 

Code Ann. § 41.4115 (b), 41A.10 (a), 42.08 (a) (West, Westlawnext through 2015 Sess.) 
3 

The Legislature’s policy is apparent from the text-to prevent taxpayers from using the 

judicial review as a subterfuge for delaying or avoiding the payment of taxes and to 

assure that the activities of the local governments which rely on ad valorem taxes are 

not unduly impeded during judicial review. Palaniappan v. Harris Cnty. Appraisal Dist., 

No. 01-11-00344-CV, 2013 WL 6857983, at *4 (Tex. App.-Houston [1st Dist.] Dec. 31, 

2013, no pet.) (not designated by publication). Of course, an owner who is unable to 

pay the taxes while a protest or appeal is pending may be excused upon a showing of 

inability to pay, but that is not the case here. Tex. Tax Code Ann. § 42.08 (d) (West, 

Westlawnext through 2015 Sess.) The owner of the property who protests and appeals 

is given the benefit of extending the delinquency date while the case is on appeal, so 

long as the owner pays pay taxes on the value not in dispute. Tex. Tax Code Ann. § 42.08 

(a) (West, Westlawnext through 2015 Sess.). Now, under the Court’s ruling, owners will 

be able to pay $-0- by including a lack of situs claim, regardless of merit. 

The Legislature’s failure to make an exception of non-payment if the dispute is 

situs is evident. An exception of payment of taxes for value not in dispute is understandable 

because the owner is still required to make a payment. The Court’s ruling means that if 

situs is one of the issues, the owner has to pay nothing while the case is on appeal. With 

or without merit, anyone can contest situs and avoid paying anything, without accruing 

penalties or interest, for as long as the owner can maintain the case in court. This 

subterfuge in cases where the situs is clearly within the jurisdiction of the taxing district 

can be used by any property owner. In this case, for example, whether the property is 
4 

dealer’s heavy equipment inventory or not has nothing to do with the clear situs of the 

equipment in Webb County. In Valerus Compression Services v. Gregg County Appraisal 

District, 457 S.W.3d at 524-527, the court held that section 23.1241 (the section dealing 

with heavy equipment inventory) is not a situs statue and it was never intended as such. 

The Webb County Appraisal District has already made a determination that the 

compressors are not dealer’s heavy equipment inventory and its value, a determination 

that entails substantial inspection of the equipment’s characteristics located in its 

jurisdiction. Obviously, the Legislature has made what it considers a wise policy choice 

to prevent such kind of abuse by not allowing taxpayers to pay nothing and be in 

compliance with the prepayment requirement of section 42.08. The Court should 

decline the taxpayers’ invitation to thwart the Legislature’s policy. 

CONCLUSION AND PRAYER 

The Court must “take the Legislature at its word, respect its policy choices, and 

resist revising a statute under the guise of interpreting it”, even if liberally. Christus Health 

Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013). The words of the statute are 

not ambiguous. Its plain meaning does not provide an exception of $-0- prepayment 

requirement in cases involving allegations of improper situs. When the words of the 

statute are unambiguous and yield but one interpretation, the judge’s inquiry is at end. 

Id. UISD, therefore, prays that the Court reconsider its opinion and judgment of June 

3, 2015, and affirm the judgment of the trial court. 
5 

Respectfully submitted, 

/s/ Alberto Alarcon 

Alberto Alarcon 

 State Bar No. 00968425 

 Paul C. Saenz 

 State Bar No. 24013441 

 Guillermo G. Alarcon 

 State Bar No. 00968410 

ALARCON & SAENZ, PLLC 

1302 Washington 

Laredo, Texas 78040 

Tel. (956) 727 8585 

Fax. (956)727 8597 

Email: aalarcon@sbcglobal.net 

ATTORNEYS FOR THE UNITED 

INDEPENDENT SCHOOL DISTRICT 
6 

CERTIFICATE OF SERVICE 

I certify that on June 12, 2015, a true and correct copy of United Independent 

School District’s Motion for Rehearing was served via the States’ E-filing system upon 

the following counsel: 

Evan A. Young 

98 San Jacinto Blvd., Suite 1500 

Austin, Texas 78701 

Tel. (512) 322 2500 

Fax. (512) 322 2501 

Email: evan.young@bakerbotts.com 

Paul R. Elliott 

Benjamin A. Geslison 

One Shell Plaza 

910 Louisiana St. 

Houston, Texas 77002 

Tel. (713) 229 1241 

Fax. (713) 229 2841 

Email: paul.elliott@bakerbotts.com 

Email: geslison@bakerbotts.com 

Dylan Wood 

Purdue, Brandon, Fielder, Collins & Mott L.L.P. 

3301 Northland Drive, Suite 505 

Austin, Texas 78731 

Tel. (512) 302 0190 

Fax. (512) 323 6963 

Email: dwood@pbfcm.com 

 /s/ Alberto Alarcon 

 Alberto Alarcon 

 
7 

CERTIFICATE OF COMPLIANCE 

As required by Texas Rule of Appellate Procedure 9.4 (i) (3), I certify that this brief 

complies with the type-volume limitation of Texas Rule of Appellate Procedure 9.4 

(i)(2)(B) and 9.4(i)(1). The Brief contains 1909 words. The undersigned counsel certifies 

that he relied upon the word count of the computer program used to prepare the 

document. The undersigned counsel also certifies that this brief complies with the 

typeface requirements of Texas Rule of Appellate Procedure 9.4(e). This brief has been 

prepared in a proportionally spaced typeface in fourteen (14) point “Garamond” style 

font for text. 

 /s/ Alberto Alarcon 

 Alberto Alarcon