COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-14-00147-CV 

CITY OF ALEDO APPELLANT

V. 

TODD C. BRENNAN AND VALERIE 

S. SMITH, FRANK GALLISON AND 

NANETTE GALLISON, REBECCA 

HANLEY, GORDON HIEBERT AND 

KIMBERLY HIEBERT, WILLIAM 

HOOD AND LEONILA HOOD, 

LAYNE KASPER AND JESSICA 

KASPER, JAMES KITCHEN AND 

MARTHA KITCHEN, SHAUN 

KRETZSCHMAR AND NATALIE 

KRETZSCHMAR, SCOTT 

MITCHELL AND LESLIE 

MITCHELL, EVAN PETERSON AND 

GAYLE PETERSON, BRIAN 

STAGNER AND AMY STAGNER, 

STEVEN TOMHAVE AND JETTY 

TOMHAVE, AND ROBERT WOOD 

AND MARY FRANCES WOOD 

 APPELLEES

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2 

AND 

NO. 02-14-00153-CV 

TODD C. BRENNAN AND VALERIE 

S. SMITH, FRANK GALLISON AND 

NANETTE GALLISON, REBECCA 

HANLEY, GORDON HIEBERT AND 

KIMBERLY HIEBERT, WILLIAM 

HOOD AND LEONILA HOOD, 

LAYNE KASPER AND JESSICA 

KASPER, JAMES KITCHEN AND 

MARTHA KITCHEN, SHAUN 

KRETZSCHMAR AND NATALIE 

KRETZSCHMAR, SCOTT 

MITCHELL AND LESLIE 

MITCHELL, EVAN PETERSON AND 

GAYLE PETERSON, BRIAN 

STAGNER AND AMY STAGNER, 

STEVEN TOMHAVE AND JETTY 

TOMHAVE, AND ROBERT WOOD 

AND MARY FRANCES WOOD 

 APPELLANTS

V. 

CITY OF WILLOW PARK, TEXAS, 

PARKER COUNTY APPRAISAL 

DISTRICT, PARKER COUNTY 

APPRAISAL REVIEW BOARD, CITY 

OF ALEDO, TEXAS, AND LARRY 

HAMMONDS IN HIS OFFICIAL 

CAPACITY AS PARKER COUNTY 

TAX ASSESSOR/COLLECTOR 

 APPELLEES

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY 

TRIAL COURT NO. CV10-0429 

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3 

MEMORANDUM OPINION1

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These consolidated accelerated appeals involve assessed back property 

taxes for the tax years 2003 through 2007 for properties in the City of Aledo, 

Texas, and the City of Willow Park, Texas (collectively, the Cities). Through an 

agreed interlocutory appeal, the City of Aledo challenges the trial court’s order 

denying its motion for summary judgment. See Act of May 27, 2005, 79th Leg., 

R.S., ch. 1051, § 1, 2005 Tex. Gen. Laws 3512, 3513 (former Tex. Civ. Prac. & 

Rem. Code Ann. § 51.014(d)).2 The Taxpayers3 bring an interlocutory appeal 

from the trial court’s order denying their motion to certify a class action under 

Texas Rule of Civil Procedure 42. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 51.014(a)(3) (West Supp. 2015). We affirm the trial court’s orders. 

 1See Tex. R. App. P. 47.4. 

2This former version of section 51.014(d) was repealed in 2011 as to suits 

filed on or after September 1, 2011. See Act of May 25, 2011, 82nd Leg., R.S. 

ch. 203, § 6.01, 2011 Tex. Gen. Laws 758, 761. The original petition in the 

underlying case was filed on March 18, 2010. Rule of appellate procedure 28.2, 

which governs agreed interlocutory appeals in civil cases, applies to this case. 

See Tex. R. App. P. 28.3 cmt. (“Rule 28.2 applies only to appeals in cases that 

were filed in the trial court before September 1, 2011.”). 

3The term “Taxpayers” as used herein refers to the following parties named 

in this suit: Todd C. Brennan and Valerie S. Smith, Frank Gallison and Nanette 

Gallison, Rebecca Hanley, Gordon Hiebert and Kimberly Hiebert, William Hood 

and Leonila Hood, Layne Kasper and Jessica Kasper, James Kitchen and 

Martha Kitchen, Shaun Kretzschmar and Natalie Kretzschmar, Scott Mitchell and 

Leslie Mitchell, Evan Peterson and Gayle Peterson, Brian Stagner and Amy 

Stagner, Steven Tomhave and Jetty Tomhave, and Robert Wood and Mary 

Frances Wood. 
4 

I. Background 

The Taxpayers own real property located within the territorial boundaries of 

either the City of Aledo or the City of Willow Park, both of which are in Parker 

County, Texas. Larry Hammonds is the chief appraiser for the Parker County 

Appraisal District. See Tex. Tax Code Ann. § 6.05 (West 2015). The Cities 

contracted with the Parker County Appraisal District to serve as their tax 

collector. See id. § 6.24(a) (West 2015). As a result, Hammonds also serves as 

the Cities’ tax collector. See Brennan v. City of Willow Park, 376 S.W.3d 910, 

915 n.2 (Tex. App.—Fort Worth 2012, pet. denied) (op. on reh’g). 

For each tax year, the chief appraiser prepares an appraisal roll listing 

each property taxable in the appraisal district and then a separate appraisal roll 

for each taxing entity for which he appraises the property. See Tex. Tax Code 

Ann. §§ 25.01, 26.01 (West 2015). For the relevant tax years of 2003 through 

2007, the Taxpayers received tax bills from the Parker County Appraisal District 

for all taxing entities in Parker County except the Cities. In 2008, Hammonds 

realized that the tax bills for the years 2003 through 2007 that had been sent by 

the Parker County Appraisal District to the Taxpayers and paid by the Taxpayers 

had erroneously omitted city taxes. On October 3, 2008, Hammonds sent the 

Taxpayers a “Notice of Omitted Property Determination.” The notice provided in 

pertinent part as follows: 

This Notice is provided pursuant to the requirements of Texas Tax 

Code Sec. 25.21, which requires the chief appraiser, if he discovers 

that real property was omitted from an appraisal roll in any one of the 
5 

five preceding years, to add the appraised value of the omitted 

property to the appraisal records as of January 1 of each year that it 

was omitted. Please be advised that the City of Aledo [or the City of 

Willow Park] has informed me that the property described above was 

located within its jurisdiction but was not included on its appraisal roll 

for the tax years described on the attached tax statement. 

Therefore, the property value must be supplemented to the City’s 

appraisal roll and City of Aledo [or City of Willow Park] taxes 

collected for each year that it was omitted. 

You have a right to appeal this determination to the Parker County 

Appraisal Review Board (ARB). To appeal, you must file a 

WRITTEN protest with the ARB before November 3, 2008. 

Enclosed is a protest form to send the appraisal district. . . . 

The total tax shown is due upon receipt and will be delinquent if not 

paid before February 1, 2010.

Hammonds attached to each “Notice of Omitted Property Determination” a 

supplemental tax bill indicating what the owner’s taxes for the years 2003 

through 2007 were based on the supplemental assessment. 

Some of the Taxpayers—the Hieberts and the Kretzschmars—filed 

protests.4 The Parker County ARB entered orders on the protests on December 

16, 2008. Each of the orders stated that based on the evidence, the Parker 

County ARB determined that “[t]he subject property was omitted from the city’s 

appraisal roll and meets the requirements of Section 25.21 for back assessment.” 

 4Even though the Hieberts and the Kretzchmars were the only parties to 

this suit to file protests, several other affected property owners not parties to this 

suit filed protests. In each of these protests, the Parker County ARB entered 

orders identical to those entered in the Hieberts’ and the Kretzchmars’ protests. 
6 

On December 9, 2008, the Parker County ARB approved the supplemental 

appraisal records for the 2008 tax year. The order approving the supplemental 

appraisal records provided, 

ORDER APPROVING SUPPLEMENTAL 

APPRAISAL RECORDS FOR 2008 

On December 9, 2008, the Appraisal Review Board of Parker 

County, Texas, met to approve supplemental appraisal records for 

tax year 2008. 

The board finds that the supplemental records, as corrected 

by the chief appraiser according to the orders of the board, should 

be approved and added to the appraisal roll for the district. 

The board therefore APPROVES the supplemental records as 

corrected. 

The chairman of the Parker County ARB signed the order. 

With the exception of Brennan and Smith, all of the Taxpayers paid the 

taxes before March 2010. In March 2010, the City of Willow Park brought suit 

against Brennan and Smith to collect taxes for the years 2003 through 2007. 

Brennan and Smith counterclaimed, the rest of the Taxpayers intervened, and 

the Taxpayers joined as third parties the City of Aledo, the Parker County 

Appraisal District, the Parker County ARB, Hammonds in his official capacity as 

Parker County Tax Assessor/Collector, and the members of the Parker County 

ARB in their official capacities.5 The Taxpayers asserted counterclaims and 

third-party claims for declaratory judgment, injunctive relief, and mandamus relief 

against the City of Willow Park, the City of Aledo, the Parker County Appraisal 

 5The members of the Parker County ARB are not parties to this appeal. 
7 

District, the Parker County ARB (collectively, the Government Entities), 

Hammonds, and the members of the Parker County ARB (collectively, the 

Government Officials). The Taxpayers sought declaratory relief as to the 

impropriety of the Government Entities’ and Government Officials’ actions, as 

well as a refund of the taxes they paid to the Cities for the tax years 2003–2007. 

The Taxpayers also filed a motion to certify a class action of “no less than 250” 

property owners in the Cities who, in 2008, were assessed city property taxes on 

their properties for the tax years 2003 through 2007. 

The Government Entities and Hammonds filed pleas to the jurisdiction, 

alleging that that the Taxpayers had failed to exhaust their administrative 

remedies, and that, in any event, the Government Entities and Hammonds were 

entitled to governmental immunity. Brennan, 376 S.W.3d at 915. The trial court 

granted the pleas to the jurisdiction and dismissed with prejudice the Taxpayers’ 

counterclaims and third-party claims. Id. The Taxpayers appealed. Id. This 

court determined that the trial court erred in granting the pleas to the jurisdiction 

on both grounds, reversed the trial court’s judgment, and remanded the 

Taxpayers’ claims to the trial court. Id. at 928. 

After remand, the City of Aledo filed a motion for summary judgment 

alleging that the assessed back taxes were not invalid or void on several 

grounds. The trial court heard the City of Aledo’s motion and the Taxpayers’ 

motion to certify a class action on the same day. The City of Willow Park 
8 

nonsuited its collection suit because by then all of its taxes had been paid.6 The 

trial court rendered orders denying the City of Aledo’s motion for summary 

judgment and the Taxpayers’ motion to certify a class action. Both the 

Taxpayers and the City of Aledo appeal the denial of their respective motions. 

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3); Tex. R. App. P. 28.2. 

II. This Court’s Prior Opinion 

The Taxpayers argue in the context of their class certification appeal that 

the facts pled to defeat the Government Entities and Hammonds’s jurisdictional 

arguments in the prior appeal support “an eventual outcome” in their favor. 

Accordingly, we will summarize the arguments and holding of our prior opinion as 

they inform our analysis of this appeal. 

Pertinent to this appeal is our resolution of the Government Entities and 

Hammonds’s contention in the prior appeal that tax code section 42.09,7 entitled 

“Remedies Exclusive,” barred the Taxpayers’ claims because they failed to 

exhaust their administrative remedies as set forth in chapter 41 of the tax code 

concerning either the October 28, 2008 determination of omitted property, the 

enclosed supplemental tax bills, or the December 9, 2008 Parker County ARB 

order. See Brennan, 376 S.W.3d at 917 (citing Tex. Tax Code Ann. §§ 41.01–

 6Brennan and Smith paid the assessed back taxes, plus penalties and 

interest, in September 2012. 

7Section 42.09 provides, in part, that “procedures prescribed by this title for 

adjudication of the grounds of protest authorized by this title are exclusive.” Tex. 

Tax Code Ann. § 42.09(a) (West 2015). 
9 

.71,8 42.09 (West 2015 & Supp. 2015) (outlining the administrative protest 

procedure available to a property owner to challenge valuation of his property by 

an appraisal district); Webb Cty. Appraisal Dist. v. New Laredo Hotel, 792 

S.W.2d 952, 954 (Tex. 1990) (discussing protest procedure)). In response, the 

Taxpayers argued (1) that exhaustion of administrative remedies—that is, 

utilization of the protest procedure set forth in chapter 41—was not required 

based on the exceptions to the exhaustion-of-administrative-remedies doctrine 

and (2) that the doctrine did not apply because the Government Entities and 

Hammonds acted outside their statutory powers. Id.

In resolving the issue, we pointed out that the notices sent to the 

Taxpayers in October 2008 stated that they were sent pursuant to section 25.21, 

which addresses the situation in which property has been omitted from the 

appraisal district’s appraisal records. Id. at 918. Section 25.21 provides as 

follows: 

(a) If the chief appraiser discovers that real property was 

omitted from an appraisal roll in any one of the five preceding years 

or that personal property was omitted from an appraisal roll in one of 

the two preceding years, he shall appraise the property as of 

January 1 of each year that it was omitted and enter the property 

and its appraised value in the appraisal records. 

 8Some of the sections of chapter 41 of the tax code cited in our prior 

opinion have been amended since the opinion was issued. Because these 

amendments do not impact the issues raised in our prior opinion or in these 

consolidated appeals, we cite to the current version of the statute. 
10 

(b) The entry shall show that the appraisal is for property that 

was omitted from an appraisal roll in a prior year and shall indicate 

the year and the appraised value for each year.

Tex. Tax Code Ann. § 25.21 (West 2015) (emphasis added). The remedy 

provided by section 25.21 is the entry of “the property and its appraised value in 

the appraisal records.” Brennan, 376 S.W.3d at 918 (quoting Tex. Tax Code 

Ann. § 25.21). But in this case, the Taxpayers’ properties were already properly 

appraised and entered in the Parker County appraisal records for the years 2003 

through 2007, and they paid all property taxes assessed against their properties 

for the years 2003 through 2007. Id. at 919. But the taxing units—the Cities—

were not listed in the Parker County appraisal records from 2003 through 2007 

as taxing units in which the Taxpayers’ properties were taxable. Id. Thus, the 

taxes assessed against the Taxpayers’ properties and paid by them for the years 

2003 through 2007 did not include city taxes. Id. Section 25.21 does not provide 

a remedy for omitted taxing units. Id. Thus, we held that in the absence of any 

other statutory authorization the Government Entities and Hammonds acted 

outside their statutory authority by utilizing section 25.21 to add the Cities as 

taxing units to the 2003 through 2007 appraisal records. Id.

The Government Entities and Hammonds also contended in the prior 

appeal that section 25.23(a)(1), entitled “Supplemental Appraisal Records,” 

authorized them to utilize section 25.21 to include the Cities as taxing units in the 

supplemental 2008 appraisal records and that the Parker County ARB’s 

December 9, 2008 order approved those supplemental appraisal records. Id.; 
11 

see Tex. Tax Code Ann. § 25.23(a)(1) (West Supp. 2015).9 The Government 

Entities and Hammonds further asserted that the Taxpayers should have 

protested the December 9, 2008 ARB order. Brennan, 376 S.W.3d at 919. We 

held that the Government Entities and Hammonds’s argument failed for two 

reasons. See id. at 919–20. First, section 25.23(a)(1), like section 25.21, 

authorizes supplemental appraisal records that add omitted “property,” not 

omitted “taxing unit[s,]” and the two statutorily defined terms are not 

interchangeable. Id. (citing Tex. Tax Code Ann. §§ 1.04(1), (12), 25.23(a)(1) 

(West 2015)). Second, to the extent that section 25.23 could be construed to 

authorize the chief appraiser to prepare supplemental appraisal records including 

property that was omitted from an appraisal roll in a prior tax year (like the 

Government Entities and Hammonds contended the Taxpayers’ properties were 

omitted from the Cities’ appraisal rolls in this case), section 25.23 dictates the 

substantive and procedural mechanisms required to generate supplemental 

appraisal records, which were not followed in this case. Id. at 920; see Tex. Tax 

Code Ann. § 25.23. 

Accordingly, we held that the Taxpayers’ failure to exhaust administrative 

remedies concerning the October 2008 section 25.21 notice and enclosed tax 

 9In 2015, section 25.23 was amended to add subsection (a–1), which only 

applies to appraisal records for the 2015 tax year and expires December 31, 

2016. See Act of May 29, 2015, 84th Leg., R.S., ch. 465, § 3, sec. 25.23, 2013 

Session Law Serv. 1778, 1779 (West) (codified at Tex. Tax Code § 25.23(a–1)). 

Because this amendment does not impact the issues raised in our prior opinion 

or in these consolidated appeals, we cite to the current version of the statute. 
12 

bills or concerning the December 9, 2008 Parker County ARB order approving 

the supplemental appraisal records for 2008 fell within one of the exhaustion-ofadministrative-remedies doctrine’s exceptions—that the Parker County Appraisal 

District and the Parker County ARB acted outside their statutorily authorized 

power by utilizing section 25.21 or section 25.23(a)(1) to assess back city taxes 

against the Taxpayers based on the omission of taxing units from the Parker 

County Appraisal District’s appraisal records. Brennan, 376 S.W.3d at 921–22. 

And to the extent that section 25.23 did authorize the supplementation of the 

Cities’ appraisal rolls with the Taxpayers’ property, the Government Entities and 

Hammonds failed to comply with the statutory requisites to do so. Id. at 923. 

Because we determined that the Taxpayers’ failure to pursue any type of protest 

procedure fell within the acting-outside-statutory-powers exception to the 

exhaustion-of-administrative-remedies doctrine, we held that the trial court erred 

by granting the Government Entities and Hammonds’s plea to the jurisdiction on 

the ground that the Taxpayers failed to exhaust their administrative remedies 

under the tax code. See id. at 922, 928. 

III. Denial of Class Action Certification 

In their sole issue in this appeal, the Taxpayers contend that the trial court 

erred by denying their motion for class action certification. 

A. Standard of Review

We review a class certification order for an abuse of discretion. Sw. Ref. 

Co. v. Bernal, 22 S.W.3d 425, 439 (Tex. 2000). A trial court abuses its discretion 
13 

if it acts without reference to any guiding rules or principles, that is, if the act is 

arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire 

v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial court also abuses its 

discretion by ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 

S.W.3d 573, 578 (Tex. 2012). 

In determining whether the trial court abused its discretion in denying class 

certification, we do not view the evidence in a light most favorable to the trial 

court’s decision nor do we entertain every presumption in favor of the trial court’s 

decision. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 690–91 (Tex. 2002). 

We determine whether the trial court, before ruling on a class certification, 

performed a “rigorous analysis” of whether all prerequisites to certification have 

been met. Bernal, 22 S.W.3d at 435. Compliance with class action requirements 

“must be demonstrated; it cannot merely be presumed.” Henry Schein, 102 

S.W.3d at 691 (citing Bernal, 22 S.W.3d at 435). Further, “there is no right to 

litigate a claim as a class action. Rather, Rule 42 provides only that the court 

may certify a class action if the plaintiff satisfies the requirements of the rule.” 

Bernal, 22 S.W.3d at 439 (quoting Sun Coast Res., Inc. v. Cooper, 967 S.W.2d 

525, 529 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d w.o.j.) (op on reh’g)); 

see Tex. R. Civ. P. 42(a)–(b); Ridgeway v. Burlington N. Santa Fe Corp., 205 

S.W.3d 577, 581 (Tex. App.—Fort Worth 2006, pet. denied) (holding appellant 

seeking to reverse order denying class certification “faces a formidable task” and 

must demonstrate that rule 42 requirements were satisfied and that the “trial 
14 

court’s refusal to certify the class was legally unreasonable under the facts and 

circumstances of the case”). Not only must the Taxpayers demonstrate that they 

satisfied all of the rule 42 requirements for certification, but they must also show 

that the trial court’s refusal to certify the class was legally unreasonable under 

the facts and circumstances of the case. See Doran v. ClubCorp USA, Inc., 174 

S.W.3d 883, 888 (Tex. App.—Dallas 2005, no pet.); Fuller v. State Farm Cty. 

Mut. Ins. Co., 156 S.W.3d 658, 660 (Tex. App.—Fort Worth 2005, no pet.). So 

long as the trial court acted rationally in the exercise of its discretion, we will 

uphold its ruling denying certification. Vinson v. Tex. Commerce Bank–Houston 

Nat’l Ass’n, 880 S.W.2d 820, 824–25 (Tex. App.—Dallas 1994, no writ) (“[E]ven if 

certification would have been proper [under rule 42], a denial may still not be an 

abuse of discretion.”).

B. Class Action Certification 

Texas Rule of Civil Procedure 42 governs class action certification.10 See

Tex. R. Civ. P. 42. A class action may be maintained only if it satisfies the four 

requirements of rule 42(a): (1) numerosity (“the class is so numerous that joinder 

of all members is impracticable”); (2) commonality (“there are questions of law, or 

fact common to the class”); (3) typicality (“the claims or defenses of the 

representative parties are typical of the claims or defenses of the class”); and (4) 

 10Rule 42 is patterned after Federal Rule of Civil Procedure 23; 

consequently, federal decisions and authorities interpreting current federal class 

action requirements are persuasive authority. Bernal, 22 S.W.3d at 433. 
15 

adequacy of representation (“the representative parties will fairly and adequately 

protect the interests of the class”). Tex. R. Civ. P. 42(a); Bernal, 22 S.W.3d at 

433. In addition to the subsection (a) prerequisites, a class action must meet one 

of the three requirements under rule 42(b). Tex. R. Civ. P. 42(a)–(b); Bernal, 22 

S.W.3d at 433. 

The Taxpayers sought certification under both rule 42(b)(2) and (b)(3). 

Subsection (b)(2) provides that an action may be maintained as a class action 

when “the party opposing the class has acted or refused to act on grounds 

generally applicable to the class, thereby making appropriate final injunctive relief 

or corresponding declaratory relief with respect to the class as a whole.” Tex. R. 

Civ. P. 42(b)(2). Subsection (b)(3) provides that an action may also be 

maintained as a class action when “the questions of law or fact common to the 

members of the class predominate over any questions affecting only individual 

members, and a class action is superior to other available methods for the fair 

and efficient adjudication of the controversy.” Tex. R. Civ. P. 42(b)(3). The 

nonexhaustive factors the trial court should consider in this determination are (A) 

the interest of members of the class in individually controlling the prosecution or 

defense of separate actions, (B) the extent and nature of any litigation 

concerning the controversy already commenced by or against members of the 

class, (C) the desirability or undesirability of concentrating the litigation of the 

claims in the particular forum, and (D) the difficulties likely to be encountered in 

the management of a class action. Tex. R. Civ. P. 42(b)(3)(A)–(D). 
16 

C. The Taxpayers’ Claims 

The Taxpayers pled claims for declaratory, injunctive, and mandamus 

relief. Specifically, they sought declarations that the relevant statutes (1) do not 

permit the Parker County ARB to allow automatic assessment of property taxes 

owed for previous years without the taxing units’ first exhausting administrative 

remedies, (2) do not allow the sending of tax bills before the tax rolls are 

approved, (3) do not allow the assessment of property for previous years when 

the approved rolls do not specify the tax years being modified, (4) make the 

2003–2007 assessment void ab initio, making any payments involuntary and 

entitling the Taxpayers to a refund, (5) do not allow the supplementation of 

“omitted property” to tax rolls where that property previously appeared in the 

appraisal records for all years in question and those appraisal records containing 

such property were approved and subsequently assessed, (6) define explicitly 

and require the separate listing of “property,” “appraised value,” all “taxing units,” 

and all “tax years” in which a property is taxable in the appraisal records, the 

appraisal roll, and the tax roll, and (7) as applied by the Government Entities and 

Government Officials in this case, violate the due process and equal protection 

clauses of the Texas Constitution.

In support of their claim for injunctive relief, the Taxpayers pled in part that 

61. The Cities and Larry Hammonds are seeking to collect 

assessments from Counter–Plaintiffs and the class members for 

prior years, which assessments this lawsuit seeks to have declared 

void. 
17 

62. The Government Officials have committed various acts that are 

ultra vires of the scope of their authority under the Tax Code and 

that violate the due process and equal protection clauses of the 

Texas Constitution. 

63. Specifically, the Tax Code limits the method and process by 

which the Government Entities and Government Officials may 

assess and collect taxes—that method and process constitutes due 

process for the taxpayers. By failing to operate within that method 

and process, the Government Entities and Government Officials 

have violated due process. 

64. Additionally, the attempted collection of assessments from any 

Counter–Plaintiffs and class members who obtained their properties 

in the midst of the 2003–2007 period and the refusal to collect the 

taxes from the prior owners constitutes an equal protection violation. 

65. Counter–Plaintiffs and the class members will suffer immediate 

and irreparable injury, loss, or damage if the collection of the 

assessments described above is not permanently enjoined because 

Counter–Plaintiffs could suffer the loss or diminution of their property 

via tax liens and significant penalties and interest through the 

imposition and collection of the assessments on their respective 

properties. Additionally, the loss of constitutional protection is 

irreparable harm. 

66. Counter–Plaintiffs do not have an adequate remedy at law 

because money alone will not compensate for the imposition of 

illegal assessments on Counter–Plaintiffs’ properties or the failure of 

the Government Entities and Government Officials to comply with 

the law and the Texas Constitution. 

Based on these allegations, the Taxpayers sought an injunction restraining the 

Government Officials from exceeding the scope of their authority, restraining the 

Cities and Hammonds from collection of “invalid assessments,” and restraining 
18 

the Government Entities from allowing the Cities to avoid exhausting their 

administrative remedies via a challenge petition.11

Lastly, the Taxpayers sought a writ of mandamus compelling the 

Government Officials to void the assessments on the Taxpayers’ properties by 

the Cities for the tax years 2003–2007 and to refund all ad valorem taxes paid to 

the Cities on the Taxpayers’ properties for the tax years 2003–2007. 

D. Analysis 

All of the Taxpayers and all of the prospective class members have paid 

the assessed back property taxes for the tax years 2003 through 2007. The 

Taxpayers’ ultimate objective is a refund of the taxes paid, and they state that 

their claim for “damages” is wholly dependent upon their claims for declaratory 

and injunctive relief. 

When the claim is primarily one for monetary relief, notice and an 

opportunity to opt out of the class normally would be required in a (b)(2) class as 

they would be in a (b)(3) class. Doran, 174 S.W.3d at 887 (citing Compaq 

Computer Corp. v. Lapray, 135 S.W.3d 657, 668–69 (Tex. 2004)). The 

Taxpayers concede that “regardless of the subsection used, notice and opt-out 

provisions should be granted to the putative class.” “Although (b)(2) does not 

 11See Tex. Tax Code Ann. § 41.03(a)(5) (stating that a taxing unit is 

entitled to challenge before the appraisal review board the failure to identify the 

taxing unit as one in which a particular property is taxable). See generally

Atascosa Cty. v. Atascosa Cty. Appraisal Dist., 990 S.W.2d 255, 259 (Tex. 1999) 

(discussing challenges by taxing units to appraisal district decisions under 

chapters 41 and 42 of the tax code). 
19 

explicitly require predominance and superiority as (b)(3) does, (b)(2) does require 

a rigorous analysis of ‘cohesiveness.’” Lapray, 135 S.W.3d at 670. If notice and 

opt-out rights are provided to a (b)(2) class, the class cohesion analysis often 

“will be identical to the ‘predominance and superiority’ directive undertaken by 

the trial courts certifying (b)(3) classes.” Id. at 671. Because the trial court 

refused to certify a class under both (b)(2) and (b)(3) and the Taxpayers concede 

that notice and op-out provisions should be granted to the putative class, the 

(b)(2) cohesiveness and (b)(3) predominance and superiority analyses are 

identical in this case. See id.; see also Doran, 174 S.W.3d at 887–88. 

“[P]redominance is ‘one of the most stringent prerequisites to class 

certification.’” Lapray, 135 S.W.3d at 663 (quoting Bernal, 22 S.W.3d at 433). 

“The predominance requirement prevents class certification when complex and 

diverse individual issues would overwhelm or confuse a jury or severely 

compromise a party’s ability to present otherwise viable claims or defenses.” 

Stonebridge Life Ins. Co. v. Pitts, 236 S.W.3d 201, 205 (Tex. 2007) (citing Henry 

Schein, 102 S.W.3d at 690; Bernal, 22 S.W.3d at 434). “Certification is not 

appropriate unless it is determinable from the outset that the individual issues 

can be considered in a manageable, time-efficient and fair manner.” Id. (citing 

Henry Schein, 102 S.W.3d at 688). The test for determining whether common 

issues predominate is not whether the common issues outnumber individual 

issues but whether the common or individual issues will be the object of most of 

the litigants’ efforts. Bernal, 22 S.W.3d at 434. “If, after common issues are 
20 

resolved, presenting and resolving individual issues is likely to be an 

overwhelming or unmanageable task for a single jury, then common issues do 

not predominate.” Id. “[A] judgment in favor of the class should settle the entire 

controversy and all that should remain is for the other class members to file their 

proof of claim.” Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 554 (Tex. App.—

Houston [14th Dist.] 2002, no pet.). 

In its order denying the Taxpayers’ motion to certify, the trial court 

identified the following issues of fact and law common to the proposed class 

members:

 How was the omission of the properties from the Cities’ tax rolls and 

the failure to bill or collect the disputed taxes discovered? 

 What specific actions were taken by Hammonds to correct the 

omission, send notices and tax bills for the back taxes, and obtain approval 

of the Parker County ARB for a supplemental tax roll? 

 Did the omission of the class members’ properties from the Cities’ 

tax rolls from 2003 to 2007 cause the assessment and taxes for each of 

those years to be illegal or void? 

 Was there statutory or other authority for the actions taken by 

Hammonds to back-assess taxes, send notices and tax bills, and 

supplement the 2008 tax roll? 

 Was Hammonds acting within his discretion as chief appraiser or the 

Cities’ tax assessor-collector when he took these actions? 

 Was there a rational basis to waive taxes for property owners 

who sold their property during the 2003 to 2007 period? 

The Taxpayers argue that once these common issues are decided, the only 

individual issues left for the trial court to decide are (1) which city the class 
21 

member paid his or her taxes to and (2) how much the class member paid in 

taxes. And, as they point out, evidence of both is already in the record.12

The Government Entities and Hammonds raised the voluntary payment 

rule as a defense to the Taxpayers’ claims and argue that the rule bars class 

certification in this case because it causes individual issues to predominate over 

the issues common to the putative class. The trial court found that “the issues 

concerning the application of the voluntary payment rule to each class member 

will be the object of most of the efforts of the litigants and this [c]ourt” and that 

“the issues common to members of the class do not predominate over individual 

issues because litigation [over] the application of the voluntary payment rule as to 

each individual class member predominate over the issues common to the 

class.” The trial court also found that “the proposed class lacks sufficient 

cohesiveness to warrant a class certification under rule 42(b)(2) even if notice 

and opt-out were provided.” 

The voluntary payment rule provides that “[a] person who pays a tax 

voluntarily and without duress does not have a valid claim for its repayment even 

if the tax is later held to be unlawful.” Dallas Cty. Cmty. Coll. Dist. v. Bolton, 185 

S.W.3d 868, 876 (Tex. 2005). This rule “secures taxing authorities in the orderly 

conduct of their financial affairs,” protects governmental entities from “threats 

 12A list of all of the affected property owners was admitted into evidence at 

the class-certification hearing. The list set forth each property owner’s name; 

how much in taxes, principal, and interest for the tax years 2003 through 2007 

each property owner paid; and the date the payment was made. 
22 

to . . . financial security that can arise from unpredictable revenue shortfalls,” and 

“supports the age-old policies of discouraging litigation with the government.” Id.

at 876–77. 

To avoid application of the rule, a payor must show some type of duress. 

Id. at 877–78. There is “no exact rule as to what constitutes sufficient duress or 

compulsion to make the payment of an illegal tax an involuntary payment[;] the 

question is one to be determined from the particular circumstances under which 

the payments are made.” Crow v. City of Corpus Christi, 209 S.W.2d 922, 924 

(Tex. 1948). But “in all its forms (whether called duress, implied duress, 

business compulsion, economic duress or duress of property),” a claim of duress 

requires a showing of “improper or unlawful conduct or threat of improper or 

unlawful conduct that is intended to and does interfere with another person’s 

exercise of free will and judgment.” Bolton, 185 S.W.3d at 878–79. 

The application of the voluntary payment rule can cause individual issues 

to predominate and therefore preclude class certification. See Salvaggio v. 

Houston ISD, 709 S.W.2d 306, 308 (Tex. App.—Houston [14th Dist.] 1986, writ 

dism’d) (holding trial court did not abuse its discretion in refusing to certify a class 

based on voluntary payment rule’s application where taxpayers were seeking 

recovery of attorney-fee charges paid in connection with penalty and interest 

charges for delinquent taxes). Here, the trial court recognized in its order 

denying class certification that the claims of each class member would require 
23 

individual factual and legal inquiries as to the voluntary nature of the payment of 

the assessed back taxes such as, 

 Did the class member pay the taxes voluntarily? 

 Did the class member comply with the tax code procedures 

that would have allowed him to assert his right to refunds? 

 Did the class member pay the taxes under duress or 

coercion? 

 What was the class member’s state of mind when payment 

was made and what was the motive for his payment? 

 When was the payment made in relation to the taxes 

becoming delinquent and incurring penalties and interest? 

 Did the class member protest the taxes before the appraisal 

review board, and if so, what grounds were asserted? 

 Did the class member file suit to challenge the assessment 

and pay the tax prior to the delinquency date pending the resolution 

of the suit? 

 Did the class member indicate that payment was made under 

protest? 

 Did the class member express a willingness to pay the tax? 

 Did the class member receive any favorable federal income 

tax treatment from payment of the assessed back taxes? 

 Did the class member receive adequate notice concerning the 

disputed taxes? 

 Was the class member denied procedural due process? 

 If the facts concerning a particular class member are 

undisputed, whether the payment was voluntary or involuntary is a 

question of law. 
24 

The Taxpayers assert that no individualized inquiry is necessary for the 

reason that the voluntary payment rule does not apply in this case as the class 

members were under implied economic duress as a matter of law because of the 

threats of penalties, interest, and tax liens, the actual imposition of penalties and 

interest against some of the property owners in this case, and the Cities’ ability to 

file suits to collect unpaid taxes and to foreclose on the tax liens. See Bolton, 

185 S.W.3d at 877 (“We have referred to business compulsion and economic 

duress as ‘implied duress,’ because the pressure to pay these government 

exactions is indirect and flows from statutes or ordinances.”). They argue that 

because these “coercive elements” are objectively present, an examination of the 

subjective minds of the class members is not necessary. 

Courts have held on specific facts that a payment of an illegal tax or fee 

was made under duress so as to defeat a claim of voluntary payment. See, e.g.,

Lowenberg v. City of Dallas, 261 S.W.3d 54, 59 (Tex. 2008) (holding that 

payment of city fee implemented through city ordinance and assessed against 

commercial buildings to generate funds for fire protection services was not 

voluntary when nonpayment of the fee constituted a Class C misdemeanor); 

Miga v. Jensen, 96 S.W.3d 207, 211, 224–25 (Tex. 2002) (concluding that 

compulsion “implied by the threat of statutory penalties and accruing interest” 

constituted economic duress); Highland Church of Christ v. Powell, 640 S.W.2d 

235, 237 (Tex. 1982) (holding duress could be implied from a statute which 

imposed a penalty for failure to pay a tax); State v. Akin Prods. Co., 286 S.W.2d 
25 

110, 111–12 (Tex. 1956) (holding that if a reasonably prudent man finds that in 

order to preserve his property or protect his business interest it is necessary to 

make a payment of money which he does not owe, the taxes are paid under 

duress); Crow, 209 S.W.2d at 925 (holding city ordinance requiring payment of 

illegal cab operator’s license fee under threat of forfeiting the right to do business 

constituted payment under duress or business compulsion as a matter of law). 

But, despite these specific holdings, as the supreme court has noted, the 

voluntary payment rule has been rendered largely unavailable in Texas due to 

specific provisions of the tax code. See Bolton, 185 S.W.3d at 879–80; BMG 

Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 769–71 (Tex. 2005). As pointed out 

in Bolton, 185 S.W.3d at 879, tax code section 31.115 provides a mechanism 

through which property taxes can be paid under protest: 

Payment of an ad valorem tax is involuntary if the taxpayer indicates 

that the tax is paid under protest: 

(1) on the instrument by which the tax is paid; or 

(2) in a document accompanying the payment. 

Tex. Tax Code Ann. § 31.115 (West 2015). 

 Because section 31.115 provides a mechanism through which a taxpayer 

may pay a tax under protest, we cannot agree with the Taxpayers that all of the 

prospective class members were under implied economic duress as a matter of 

law. See id.; cf. Bolton, 185 S.W.3d at 881 (“In light of the choices the students 

retained and their right to request a waiver of the fees or otherwise protest the 
26 

imposition of the fee, any coercion that existed was not actual and imminent and 

did not constitute duress as a matter of law.”). Accordingly, we cannot conclude 

that trial court abused its discretion by finding that the voluntary payment rule 

might apply to some members of the prospective class but not to others. 

A list of the omitted properties admitted into evidence at the classcertification hearing showed that all of the affected taxpayers had paid the back 

property taxes for the tax years 2003 through 2007.13 Discovery excerpts also 

admitted into evidence indicate that some of the Taxpayers—Brennan and Smith 

and the Kaspers—noted on their tax payments that they were being paid under 

protest. Thus, assuming that common issues in this case could be decided in 

favor of the proposed class, it would be necessary to determine, on an individual 

basis, the issues identified by the trial court in its order denying the Taxpayers’ 

motion to certify the class, particularly whether the voluntary payment rule 

applies to each particular property owner. The trial court could have reasonably 

concluded that after resolving the common issues, “presenting and resolving 

individual issues [was] likely to be an overwhelming or unmanageable task for a 

single jury.” Bernal, 22 S.W.3d at 434; see also Vinson, 880 S.W.2d at 825 

(“Nevertheless, in this case, if appellants prevail as to any one of the common 

issues of law, the members of the class must do more than prove the amount of 

 13Some of the property owners presented tax certificates showing they had 

purchased their property during or after the 2003 through 2007 timeframe and 

were not required to pay taxes for the years prior to their ownership. 
27 

their individual claims.”). Thus, we conclude the trial court did not abuse its 

discretion in denying the Taxpayers’ motion for class certification. Because we 

have determined that the Taxpayers have failed to demonstrate that they 

satisfied rule 42(b)(2) or 42(b)(3), which is dispositive of this issue, we need not 

address their arguments regarding rule 42(a). See Tex. R. App. P. 47.1. 

Accordingly, we overrule the Taxpayers’ sole issue. 

IV. Denial of the City of Aledo’s Motion for Summary Judgment 

 In four issues, the City of Aledo complains in its appeal that the trial court 

erred by denying its motion for summary judgment on the Taxpayers’ claims. 

A. Standard of Review 

 We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the 

light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could, and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every 

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, 

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively 

negates at least one essential element of a cause of action is entitled to 

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 

494, 508 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 

166a(b), (c). 
28 

B. Did Hammonds correctly follow tax code section 25.21? 

 In its fourth issue, the City of Aledo asserts that Hammonds correctly 

followed tax code section 25.21 in assessing the back taxes. The City of Aledo 

raised this issue in its motion for summary judgment “in the event this case is 

appealed beyond the court of appeals” and carries it forward on appeal “merely 

to preserve the issue.” Because this issue, as well as portions of the City of 

Aledo’s first and third issues, have been decided previously by this court, our first 

opinion in this case constitutes “law of the case” and will determine our resolution 

of this issue, as well as portions of the City of Aledo’s first and third issues. 

Under the “law of the case” doctrine, a decision rendered in a former 

appeal of a case is generally binding in a later appeal of the same case. In re 

Assurances Generales Banque Nationale, 334 S.W.3d 323, 325 (Tex. App.—

Dallas 2010, orig. proceeding); see In re Henry, 388 S.W.3d 719, 727 (Tex. 

App.—Houston [1st Dist.] 2012, orig. proceeding [mand. denied]); Truck Ins. 

Exch. v. Robertson, 89 S.W.3d 261, 264 (Tex. App.—Fort Worth 2002, no pet.). 

Having decided an issue previously, a court of appeals is not obligated to 

reconsider the matter in subsequent appeals. Paradigm Oil, Inc. v. Retamco 

Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012); see also In re Henry, 388 

S.W.3d at 727; In re Assurances Generales Banque Nationale, 334 S.W.3d at 

325; Woods v. VanDevender, 296 S.W.3d 275, 279 (Tex. App.—Beaumont 2009, 

pet. denied) (all citing Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 

2003)). It may do so in its own discretion, however, and there is not an absolute 
29 

bar to reconsideration if subsequent hearings, briefing, or pleadings have 

modified the facts or relief sought. See Briscoe, 102 S.W.3d at 716–17. When, 

however, the issue is really one of law, our discretion to revisit the issue will be 

used sparingly, if at all. See, e.g., In re Henry, 388 S.W.3d at 728; City of Dallas 

v. Jones, 331 S.W.3d 781, 784–85 (Tex. App.—Dallas 2010, pet. dism’d). 

Regardless, our review of the record leads us to decline the invitation to revisit 

the City of Aledo’s fourth issue and, as explained below, portions of its first and 

third issues since they relate to questions of law.

Based upon our prior holding, we conclude that the City of Aledo failed to 

prove as a matter of law that Hammonds correctly followed section 25.21 in 

assessing the back taxes in this case. See Brennan, 376 S.W.3d at 918–22. 

Accordingly, we overrule the City of Aledo’s fourth issue. 

C. Are the taxes invalid or void? 

In its first issue, the City of Aledo argues that the trial court erred by 

denying its motion for summary judgment because the lack of specific statutory 

authority for the assessment of back taxes in this case did not render the 

assessment and resulting taxes void. In its motion and on appeal, the City of 

Aledo relies on McPhail v. Tax Collector of Van Zandt County, 280 S.W. 260 

(Tex. Civ. App.—Dallas 1925, writ ref’d), to support this contention. 

 In McPhail, the Van Zandt County school trustees, acting pursuant to new 

legislation, formed the Colfax high school district by consolidating the Colfax and 

Clowers districts and appointed seven trustees for the district. Id. at 262. The 
30 

new trustees organized the board and levied a tax on the property in the new 

district at the same rate that had been levied by the trustees in the respective 

school districts. Id. The tax rolls for the new district were delivered to the county 

tax collector, but because of an omission by the tax assessor, the property of two 

landowners was omitted from the tax rolls. Id.

 Other property owners in the newly formed district brought suit to enjoin 

the collection of the taxes. Id. at 261–62. They argued that the assessment was 

illegal and void because not all property located within the district was included 

on the assessor’s tax rolls. Id. at 265. In addressing this argument, the court 

stated, 

The failure of the assessor to assess the property of the two 

taxpayers was just such an omission as frequently occurs in the 

practical administration of tax laws. If such an oversight as this had 

the effect of nullifying an entire assessment, interminable confusion 

would prevail in regard to the collection of taxes; but such is not the 

case. The taxpayer’s obligation is not thereby discharged, nor does 

his property escape taxation. The law anticipated that such 

mistakes would occur, and made provision for same. The general 

procedure is that, where property for any reason has escaped 

assessment for any year, it is the duty of the owner to render the 

same and pay the tax; but, if he should fail to discharge this legal 

duty, it becomes the duty of the assessor to assess the property for 

the omitted year at the same rate under which it should have been 

assessed, and attach the assessment as a supplement to the 

regular rolls for the current year. While there is no definite provision 

to this effect in the statute under consideration, yet it is the rule 

applied in analogous situations, and is applicable here. 

It is the duty of the tax assessor, under the statute in question, 

to make a complete legal assessment of all property in the district 

and this duty would not be discharged where an omission of this 

nature takes place, unless the property is assessed in a 

supplemental assessment as indicated above, or is brought forward 
31 

on an unrendered roll, which procedure the assessor is also 

authorized to pursue. 

Id. (emphasis added) (citations omitted). 

 In its summary-judgment motion, the City of Aledo argued that based on 

the holding in McPhail—when no statute specifically applies, the assessor is still 

under a duty to back-assess taxes and the taxpayer is still under a duty to pay 

them—the back assessment made without statutory authority in this case did not 

render the assessment or the taxes void. However, as pointed out by the 

Taxpayers, section 41.03(a)(5) of the tax code allows a taxing unit to challenge 

the failure to identify the taxing unit as one in which a particular property is 

taxable by filing a challenge petition with the appraisal review board. See Tex. 

Tax Code Ann. §§ 41.03(a)(5), .04. The appraisal review board is required to 

hear a challenge only if the taxing unit files a petition with the board before June 

1 or within fifteen days after the date that the appraisal records are submitted to 

the board, whichever is later. Id. § 41.04. After notice and hearing, the board is 

required to make a determination on the challenge, enter an appropriate written 

order, and send notice of the determination to the taxing unit. Id. §§ 41.05–.07. 

If “the board finds that the appraisal records are incorrect in some aspect raised 

by the challenge,” it “shall refer the matter to the appraisal office and by its order 

shall direct the chief appraiser to make . . . corrections in the records that are 

necessary to conform the records to the requirements of law.” Id. § 41.07(b). 
32 

 The Texas Constitution creates the obligation to appraise and assess 

property for purposes of taxation and provides that all property must be equally 

and uniformly taxed. See Tex. Const. art. VIII, § 1(a) (“Taxation shall be equal 

and uniform.”), art. VIII, § 11 (“[A]ll lands and other property not rendered for 

taxation by the owner thereof shall be assessed at its fair value by the proper 

officer.”). The tax code creates a system for property tax administration, defines 

taxable property, establishes exemptions, sets out procedures for appraisal, tax 

assessment, and tax collection, and provides review and challenge procedures. 

See Tex. Tax Code Ann. §§ 1.01–43.04 (West 2015 & Supp. 2015). It also 

provides a mechanism through which the City of Aledo could have challenged its 

omission from the 2003 through 2007 Parker County appraisal records. See id. 

§§ 41.03(a)(5), .04. The City of Aledo does not explain why its failure to follow 

the procedure set forth in the tax code does not render the assessment of the 

taxes in this case void or invalid. And we do not believe the court’s holding in 

McPhail, which predates the enactment of the current version of the tax code, 

excuses the City of Aledo’s failure to follow this procedure. 

 The City of Aledo also argues on appeal that “under Texas law there was 

no need for the back-assessment in this case because there were already valid 

taxes and assessments of the subject properties for each tax year between 2003 

and 2007.” In support of this contention, the City of Aledo cites George v. Dean, 

which held that the two essential elements for a valid tax are a “legal levy by [a] 

competent legislative authority” and “a valid assessment of the property upon 
33 

which such tax is levied by the officer or tribunal to whom this duty is committed 

by law.” 47 Tex. 73, 84 (1877). The City of Aledo, however, did not raise this 

argument in its motion for summary judgment. Thus, we do not address it. See 

Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by 

written motion, answer or other response shall not be considered on appeal as 

grounds for reversal.”); see also Tex. R. App. P. 33.1(a)(1) (stating that as 

prerequisite for presenting complaint for appellate review, record must show 

complaint was made to trial court by timely request, objection, or motion). 

 The Taxpayers alleged that Hammonds had a duty to refrain from sending 

the tax bills until the tax rolls were approved and sought a declaration that the tax 

code did not permit Hammonds to send a tax bill before the tax roll was approved 

and did not allow the assessment of property in previous years where the 

approved rolls do not specify the tax years being modified. In its summaryjudgment motion, the City of Aledo argued that the tax code does not require that 

the supplemental appraisal records be approved before the assessor mails a tax 

bill to a property owner and that the “2008 tax year” language in the ARB order 

included the supplement to the appraisal records made for the property that was 

omitted from the City of Aledo’s appraisal rolls from 2003 through 2007. But as 

we held in our previous opinion, 

no supplemental appraisal records exist for the years 2003–2007 [in 

the form required by tax code sections 25.23(b) and 25.02(a)(10)], 

and thus supplemental appraisal records for the years 2003–2007 

could not have been included within the supplemental appraisal 

records approved by Parker County ARB in its December 9, 2008 
34 

order approving supplemental appraisal records for 2008. Because 

section 25.23(a)(1) does not authorize the inclusion of the Cities as 

taxing units in supplemental appraisal records and because the 

statutory requisites for inclusion of [the Taxpayers’] properties on the 

Cities’ appraisal rolls for the tax years 2003–2007 via supplemental 

appraisal records were not met, Parker County ARB acted outside 

its statutory authority by purporting to approve the inclusion of the 

Cities as taxing units of [the Taxpayers’] properties for the years 

2003–2007 via the December 9, 2008 order approving supplemental 

appraisal records for 2008. 

Brennan, 376 S.W.3d at 920–21 (footnote omitted). 

Thus, the City of Aledo has failed to establish as a matter of law that the 

assessed back taxes were not invalid or void. Accordingly, we overrule its first 

issue. 

D. Did the City of Aledo violate the Taxpayers’ equal protection rights? 

The Taxpayers alleged that the City of Aledo violated their right to equal 

protection by not attempting to collect taxes from former property owners who 

owed taxes for the 2003 through 2007 period.14 In its second issue, the City of 

Aledo asserts that the trial court erred by denying its motion for summary 

judgment because the Taxpayers’ equal protection allegations are insufficient as 

a matter of law as the City of Aledo had a rational basis for not pursuing 

collection actions against former property owners. See Mayhew v. Town of 

Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998) (“An as-applied equal protection 

 14The record shows that the property owners who presented tax 

certificates showing that they purchased the property during or after the 2003–

2007 period were not required to pay assessed back property taxes for the years 

they did not own the property. See Tex. Tax Code Ann. § 31.08. 
35 

claim requires that the government treat the claimant different from other 

similarly-situated landowners without any reasonable basis.”), cert. denied, 526 

U.S. 1144 (1999). 

In its motion for summary judgment, the City of Aledo argued that 

it is conceivable that tax collection is not being pursued against 

former owners because, although those persons are still personally 

liable for those taxes, there might not still be a lien on the subject 

property securing payment of those taxes if a tax certificate was 

erroneously issued showing no taxes owing. Tex. Tax Code 

§§ 31.08(c), 32.01(a), 32.07(a). The additional costs associated with 

pursuing collection suits against these former owners when their 

location may or may not be known also provide a rational basis to 

treat them differently. 

The City of Aledo, however, provided no summary-judgment evidence to 

establish this basis for not pursuing collection actions against former property 

owners. See Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42 (Tex. 

App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh’g) (explaining that 

“neither the motion for summary judgment, nor the response, even if sworn, is 

ever proper summary judgment proof”); Cuellar v. City of San Antonio, 821 

S.W.2d 250, 252 (Tex. App.—San Antonio 1991, writ denied) (stating that 

“motion for summary judgment is a pleading and may not be considered as 

summary judgment evidence” (citing Kendall v. Whataburger, Inc., 759 S.W.2d 

751, 754 (Tex. App.—Houston [1st Dist.] 1988, no writ))); see also Tex. R. Civ. P. 

166a(c) (“No oral testimony shall be received at the [summary-judgment] 

hearing.”). Because the City of Aledo failed to produce any summary-judgment 

evidence establishing its right to summary judgment on the Taxpayers’ equal 
36 

protection claim, the trial court did not err in denying its motion for summary 

judgment on this ground. Accordingly, we overrule the City of Aledo’s second 

issue. 

E. Did the City of Aledo violate the Taxpayers’ due process rights? 

 The Taxpayers alleged that the City of Aledo violated their due process 

rights by failing to utilize the proper procedure under the tax code to assess and 

collect the back taxes. They argue on appeal that the due process violation 

occurred when the taxes were assessed without notice and a hearing, which left 

the Taxpayers with no statutory opportunity to protest or contest Hammonds’s 

actions as tax assessor/collector. The City of Aledo argues in its third issue—as 

it did in its motion for summary judgment—that the Taxpayers’ due process 

allegations fail as a matter of law because there was no lack of notice. 

The collection of a tax constitutes a deprivation of property, and thus, a 

taxing unit must afford a property owner due process of law. Appraisal Review 

Bd. of El Paso Cty. Cent. Appraisal Dist. v. Fisher, 88 S.W.3d 807, 813 (Tex. 

App.—El Paso 2002, pet. denied) (citing McKesson Corp. v. Div. of Alcoholic 

Beverages & Tobacco, Dept. of Bus. Regulation of Fl., 496 U.S. 18, 36–37, 110 

S. Ct. 2238, 2250–51 (1990)). “Due process, at a minimum, requires notice and 

a fair opportunity to be heard prior to a deprivation of a protected property 

interest.” Id.

The City of Aledo alleged in its motion for summary judgment that it did not 

violate the Taxpayers due process rights because (1) the Taxpayers were 
37 

provided notice of a procedure to follow to challenge the supplemental appraisal 

records, (2) there was no allegation that this notice was inadequate, and (3) if the 

notice were inadequate, the Taxpayers had the right to challenge the sufficiency 

of the notice before the Parker County ARB. See Tex. Tax Code Ann. § 41.411 

(“A property owner is entitled to protest before the appraisal review board the 

failure of the chief appraiser or the appraisal review board to provide or deliver 

any notice to which the property owner is entitled.”). 

The notices sent to the Taxpayers along with the tax bill informed them 

that they had a right to appeal to the Parker County ARB Hammonds’s decision 

as the chief appraiser to add the omitted taxing units to the appraisal rolls. The 

Taxpayers complain this notice is insufficient because the Parker County ARB 

does not have jurisdiction to review Hammonds’s actions as the Parker County 

tax assessor/collector. We agree. As we pointed out in our prior opinion, 

no protest procedures exist to contest an already-issued, statutorily 

unauthorized tax bill received from the tax assessor collector on 

already-appraised property. See Tex. Tax Code Ann. § 41.41(a)(9) 

(authorizing protest of actions of chief appraiser, appraisal district, or 

appraisal review board but not actions of tax assessor/collector); 

Dallas Cent. Appraisal Dist. v. 1420 Viceroy Ltd. P’ship, 180 S.W.3d 

267, 269–70 (Tex. App.—Dallas 2005, no pet.) (explaining that tax 

code did not authorize protest of action of taxing unit). 

Brennan, 376 S.W.3d at 917 n.6. 

Accordingly, we conclude that the City of Aledo failed to establish its right 

to judgment as a matter of law on the Taxpayers’ due process claims. 

Accordingly, we overrule the City of Aledo’s third issue. 
38 

V. Conclusion

Having overruled the Taxpayers’ sole issue, we affirm the trial court’s order 

denying their motion to certify a class action. Having overruled each of the City 

of Aledo’s issues, we affirm the trial court’s order denying the City of Aledo’s 

motion for summary judgment. We remand this case to the trial court for further 

proceedings in accordance with this opinion. 

/s/ Anne Gardner 

ANNE GARDNER 

JUSTICE 

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ. 

DELIVERED: June 2, 2016