## 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 TOMHAV E AND JETTY TOMHAVE, AND ROBERT WOOD AND MARY FRANCES WOOD APPELLEES

----------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 TOMHAV E 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

---------- FROM THE 43RD DISTRICT CO URT OF PARKER COUNTY TRIAL COURT NO. CV10-0429

----------3 

### MEMORANDUM OPINION 1

---------- These consolidated accelerated appe als involve assess ed 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 (collectiv ely, the Cities). Through an agreed interlocutory appeal, the City of Aledo challenges the trial court’s order denying its motion fo r 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 Taxpayers 3bring an interlocutory appeal from the trial court’s order denying their motion to certify a class action under Texas Rule of Civ il Procedure 42. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(3) (West Supp. 2015). We affirm the trial court’s orders.

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

2 This former version of section 51.014(d) was repealed in 20 11 as to suits filed on or after September 1, 2011.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 75 8, 761. The original petition in the underlying case was filed on March 18, 2010. Rule ofappellate procedure 28.2, which governs agreed interlocutory appeals in civil cases, applies to this case. See Tex. R. App. P. 28.3 cm t. (“Rule 28.2 applies only to appeals in cases that were filed in the trial court before September 1, 2011.”).

3 The term “Taxpayers” as used herein re fers to the followi ng parties named in this suit: Todd C. Brennan and Vale rie S. Smith, Frank Gallison and Nanette Gallison, Rebecca Hanley, Go rdon Hiebert and Kimber ly 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 Tomh ave, 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 Al edo 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 re sult, 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 appraise r prepares an appr aisal 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 20 07 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 Omitt ed Property Determination.” The notice provided in pertinent part as follows: This Notice is provided pursuantto 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 the5 five preceding years, to add th e appraised value of the omitted property to the appraisal records as of January 1 of ea ch year that it was omitted. Please be advised thatthe City of Aledo [or the City of Willow Park] has informed me that the propertydescribed 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 mustbe supplemented to the City’s appraisal roll and Cityof Aledo [or City of Willow Park] taxes collected for each year that it was omitted. You have a right to appeal this de termination 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 se nd the appraisal district. . . . The total tax shown is due upon re ceipt and will be delinquent if not paid before February 1, 2010. Hammonds attached to each “Notice ofOmitted Property Determination” a supplemental tax bill indica ting what the owner’s ta xes for the years 2003 through 2007 were based on the supplemental assessment. Some of the Taxpayers—the Hieb erts and the Kretzschmars—filed protests. 4The 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.”

4 Even though the Hieberts and the Kret zchmars were the only parties to this suit to file protests, several other af fected property owners not parties to this suit filed protests. In ea ch of these protests, the Parker County ARB entered orders identical to those entered in the Hi eberts’ and the Kretzchmars’ protests.6 On December 9, 2008, the Parker C ounty 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 Appr aisal Review Board of Parker County, Texas, met to approve s upplemental appraisal records for tax year 2008. The board finds that the supple mental records, as corrected by the chief appraiser according to the orders of the board, should be approved and added to the app raisal roll for the district. The board therefore APPROVES the suppleme ntal records as corrected. The chairman of the Parker Co unty ARB signed the order. With the exception of Brennan and Sm ith, 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 ta xes for the years 2003 through 2007. Brennan and Smith counterclaimed, the rest of the Taxpay ers intervened, and the Taxpayers joined as third parties the City of Al edo, 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. 5The Taxpayers asse rted counterclaims and third-party claims for declaratory judgme nt, injunctive relief, and mandam us relief against the City of Willow Pa rk, the City of Aledo, th e Parker County Appraisal

5 The members of the Park er County ARB are not parties to this appeal.7 District, the Parker County ARB (colle ctively, the Government Entities), Hammonds, and the members of the Park er 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 fo r the tax years 2003–2007. The Taxpayers also f iled 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 fa iled to exhaust their administrative remedies, and that, in any event, the Gove rnment Entities and Hammonds were entitled to governme ntal 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 erre d 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 f iled 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 th e same day. The City of Willow Park8 nonsuited its collection suit because by then all of its taxes had been paid. 6The 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 Al edo appeal the denial of th eir 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 clas s certification appeal that the facts pled to de feat the Government Entities and Hammonds’s jurisdictional arguments in the prior appeal support “a n eventual outcome” in their favor. Accordingly, we will summarize the argumen ts and holding of ou r 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, 7entitled “Remedies Exclusive,” barre d 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 om itted 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–

6 Brennan and Smith paid the assessed back taxes, plus penalties and interest, in September 2012.

7 Section 42.09 provides, in part, that “procedures prescr ibed by this title for adjudication of the grou nds of protest authorized by this title are exclusive.” Tex. Tax Code Ann. § 42.09(a) (West 2015).9 .71, 842.09 (West 2015 & Supp . 2015) (outlining the administrative protest procedure available to a prop erty owner to challenge val uation of his property by an appraisal district); Webb Cty. Appraisal Di st. 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 appl y because the Govern ment Entities and Hammonds acted outside th eir statutory powers. Id. In resolving the issue, we pointed out that the notices sent to the Taxpayers in October 2008 stat ed that they were sent pursuant to section 25.21, which addresses the situation in whic h 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 th at it was omitted and enter the property and its appraised value in the appraisal records

.

8 Some of the sections ofchapter 41 of the tax co de cited in our prior opinion have been amended since the opinion was issued. Because these amendments do not impact the issues ra ised in our prior opinion or in these consolidated appeals, we cite to th e current version of the statute.10 (b) The entry shall show th at the appraisal is for property that was omitted from an appraisal roll in a prior year and shall indicate the year and the appraise d value for each year. Tex. Tax Code Ann. § 25.21 (West 20 15) (emphasis adde d). 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 (q uoting Tex. Tax Code Ann. § 25.21). But in this case, the Taxp ayers’ properties were already properly appraised and entered in th e Parker County appraisal re cords 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 app raisal records from 2003 through 2007 as taxing units in which the Taxpay ers’ properties were taxable. Id. Thus, the taxes assessed against the Ta xpayers’ properties and pa id 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 Govern ment Entities and Hammonds acted outside their statutory author ity by utilizing se ction 25.21 to add the Cities as taxing units to the 2003 thro ugh 2007 appraisa l records. Id. The Government Entities and Hammon ds also contende d in the prior appeal that section 25.23(a)(1), enti tled “Supplemental Ap praisal Records,” authorized them to utilize sect ion 25.21 to include the Citi es as taxing units in the supplemental 2008 appraisal records and that the Parker County ARB’s December 9, 2008 order approved thos e supplemental appraisal records. Id. ;11 see Tex. Tax Code Ann. § 25.23(a)(1) (West Supp. 2015). 9The Government Entities and Hammonds further assert ed 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 record s that add omitted “property,” not omitted “taxing unit[s,]” and the tw o 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 th at section 25.23 could be construed to authorize the chief appraiser to prepare supplemental appraisal records including property that was omitted fr om an appraisal roll in a prior tax year (like the Government Entities and Ha mmonds contended the Taxp ayers’ properties were omitted from the Cities’ appraisal rolls in this case), section 25.23 dictates the substantive and procedur al 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 notic e and enclosed tax

9 In 2015, section 25.23 was amended to add subsection (a–1), which only applies to appraisal records for the 20 15 tax year and ex pires 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) (cod ified at Tex. Tax Code § 25.23(a–1)). Because this amendment does not impact the issues ra ised 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 20 08 fell within one of the exhaustion-ofadministrative-remedies doctrine’s except ions—that the ParkerCounty Appraisal District and the Parker County ARB acted outside th eir statutorily authorized power by utilizing section 25 .21 or section 25.2 3(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 se ction 25.23 did authorize the supplementation of the Cities’ appraisal rolls with the Taxpayers’ property, the Govern ment 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-outsi de-statutory-powers exception to the exhaustion-of-administrative-remedies doct rine, 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 th is appeal, the Taxpayers contend that the trial court erred by denying their motion fo r 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 discretion13 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 withou t supporting evidence. Ford Motor Co. v. Garcia , 363 S.W.3d 573, 578 (Tex. 2012). In determining whether the trial court ab used its discretion in denying class certification, we do not viewthe evidence in a light most favorable to the trial court’s decision nor do we entertain every pr esumption in favor ofthe trial court’s decision. Henry Schein, Inc. v. Stromboe , 102 S.W.3d 675, 690–91 (Tex. 2002). We determine whether the trial court, be fore ruling on a cl ass certification, performed a “rigorous analysis” of whether all prerequisites to certification have been met. Bernal, 22 S.W.3d at 435. Complianc e with class action requirements “must be demonstrated; it ca nnot merely be presumed.” Henry Schein , 102 S.W.3d at 691 (citing Bernal, 22 S.W.3d at 435). Furt her, “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 deny ing class certification “fac es a formidable task” and must demonstrate that rule 42 requiremen ts were satisfied and that the “trial14 court’s refusal to certify the class was legally unreasonable under the facts and circumstances of the case”). Not only mu st the Taxpayers demo nstrate that they satisfied all of the rule 42 requirements fo r certification, but they must also show that the trial court’s refusal to certify the class was legally unreasonable under the facts and circumst ances of the case. See Doran v. ClubCorp USA, Inc. , 174 S.W.3d 883, 888 (Tex. A pp.—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 denyin g 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 [und er 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 clas s action may be main tained 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) comm onality (“there are questions of law, or fact common to the class”); (3) typi cality (“the claims or defenses of the representative parties are typical of the cl aims or defenses of the class”); and (4)

10 Rule 42 is patterned after Feder al Rule of Civil Procedure 23; consequently, federal decisi ons and authorities interpre ting current federal class action requirements are persuasive authority. Bernal, 22 S.W.3d at 433.15 adequacy of represen tation (“the representative part ies 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 s ubsection (a) prerequisites, a class action mu st 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 ma intained as a class action when “the party opposing the class has acted or re fused to act on grounds generally applicable to the cl ass, thereby making appropria te final injunctive relief or corresponding declaratory relief with respect to the cl ass 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 predom inate over any questions affecting only individual members, and a class action is superior to other ava ilable methods for the fair and efficient adjudication ofthe 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 indivi dually controlling th e prosecution or defense of separate acti ons, (B) the extent and nature of any litigation concerning the controvers y already commenced by or against members of the class, (C) the desirability or undesirability of concentr ating the litigation of the claims in the particular forum, and (D) th e 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 decl aratory, injunctive, and mandamus relief. Specifically, they soug ht declarations that the relevant statutes (1) do not permit the Parker County ARB to allow au tomatic assessment of property taxes owed for previous years with out 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 assessmentof property for previous years when the approved rolls do not specify the ta x years being modified, (4) make the 2003–2007 assessment void ab initio , making any paymen ts 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 questi on and those appraisa l records containing such property were approv ed and subsequentlyassessed, (6) define explicitly and require the separate listing of “propert y,” “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 ro ll, and (7) as applied by th e Government Entities and Government Officials in this case, viol ate 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 Hamm onds are seeking to collect assessments from Counter–Plaint iffs and the cl ass members for prior years, which assessments this lawsuit seeks to have declared void.17 62. The Government Officials hav e committed various acts that are ultra vires of the scope of their auth ority under the Tax Code and that violate the due pr ocess and equal protec tion clauses of the Texas Constitution. 63. Specifically, the Tax Code li mits the method and process by which the Government Entities and Government Officials may assess and collect taxes—that me thod and process constitutes due process for the taxpayers. By faili ng to operate with in that method and process, the Gove rnment Entities and Government Officials have violated due process. 64. Additionally, the attempted co llection of assessments from any Counter–Plaintiffs and cl ass members who obtain ed their properties in the midst of the 20 03–2007 period and the refusal to collect the taxes from the prior owners constitutes an equal protection violation. 65. Counter–Plaintiffs and the cl ass 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 su ffer the loss or diminution of their property via tax liens and significant pena lties and interest through the imposition and collection of the as sessments 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 al one will not compensate for the imposition of illegal assessments on Counter–Plaint iffs’ properties or the failure of the Government Entities and Government Officials to comply with the law and the Te xas 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 restraining18 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 ma ndamus compelling the Government Officials to void the assessm ents 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 Taxp ayers’ properties for th e 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 depen dent upon their claims for declaratory and injunctive relief. When the claim is primarily one fo r monetary relief, notice and an opportunity to opt out of the class normally woul d 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 puta tive class.” “Altho ugh (b)(2) does not

11 See Tex. Tax Code Ann. § 41.03(a)(5 ) (stating that a taxing unit is entitled to challenge before the appraisal re view board the failure to identify the taxing unit as one in which a particular property is taxable). See generally Atascosa Cty. v. Atasco sa 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 predomin ance 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) predomi nance 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 moststringent prerequisites to class certification.’” Lapray , 135 S.W.3d at 663 (quoting Bernal , 22 S.W.3d at 433). “The predominance requirement prevents class certificatio n when complex and diverse individual issues would overw helm or confuse a ju ry or severely compromise a party’s ability to present ot herwise 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-efficien t and fair manner.” Id. (citing Henry Schein , 102 S.W.3d at 688). The test for determi ning whether common issues predominate is notwhether the common issu es outnumber individual issues but whether the common or individual issues w ill be the objectof most of the litigants’ efforts. Bernal, 22 S.W.3d at 434. “If, after common issues are20 resolved, presenting and resolving indi vidual issues is likely to be an overwhelming or unmanageabl e task for a single jury, then common issues do not predominate.” Id. “[A] judgment in favor of th e class should settle the entire controversy and all t hat 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 t he Cities’ tax rolls and the failure to bill or collect the disputed taxes discovered?

 What specific actions were ta ken by Hammonds to correct the omission, send notices and tax bills for the back taxes, and obt ain approval of the Parker County ARB fo r a supplemental tax roll?

 Did the omission of the class mem bers’ properties from the Cities’ tax rolls from 2003 to 2007 cause th e assessment and taxes for each of those years to be illegal or void?

 Was there statutory or other aut hority for the actions taken by Hammonds to back-assess taxes, send notices a nd tax bills, and supplement the 2008 tax roll?

 Was Hammonds acting within his di scretion 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 durin g 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 class21 member paid his or her taxes to and (2) how much the class member paid in taxes. And, as they point out, eviden ce of both is already in the record. 12 The Government Entities and Hammon ds raised the voluntary payment rule as a defense to the Taxpayers’ clai ms and argue that the rule bars class certification in this case be cause 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 member s of the class do not pred ominate over individual issues because litigation [ove r] the application of the voluntary payment rule as to each individual class member predomi nate over the issues common to the class.” The trial court al so found that “the propos ed class lacks sufficient cohesiveness to warrant a class certific ation 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 ha ve 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 “s ecures taxing authorities in the orderly conduct of their financial affairs,” prot ects governmental ent ities from “threats

12 A list of all of the affected property owners was admitted into evidence at the class-certification hearin g. The list set forth ea ch property owner’s name; how much in taxes, princi pal, and interest for the ta x 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 discoura ging litigation with the government.” Id. at 876–77. To avoid application of the rule, a payo r must show some type of duress. Id. at 877–78. There is “no exact rule as to what cons titutes sufficient duress or compulsion to make the pay ment 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 (w hether called duress, implied duress, business compulsion, economicduress or duress of pr operty),” a claim of duress requires a showing of “improper or unlawf ul conduct or threat of improper or unlawful conduct that is in tended to and does interf ere with another person’s exercise of free will and judgment.” Bolton , 185 S.W.3d at 878–79. The application of the vo luntary payment rule can cause individual issues to predominate and therefore preclude class certification. See Salvaggio v. Houston ISD , 709 S.W.2d 306, 30 8 (Tex. App.—Houston [1 4th Dist.] 1986, writ dism’d) (holding trial court did not abuse its discretion in refusing to certify a class based on voluntary paymen t rule’s application wher e taxpayers were seeking recovery of attorney-fee c harges paid in connection wi th penalty and interest charges for delinquent taxes). Here, the trial court recognized in its order denying class certification that the clai ms of each class member would require23 individual factual and legal inquiries as to the voluntary nature of the payment of the assessed backtaxes such as,

 Did the class member pa y 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 mo tive for his payment?

 When was the payment made in relation to the taxes becoming delinquent and incurr ing penalties and interest?

 Did the class member protest the taxes before the appraisal review board, and if so, wh at grounds were asserted?

 Did the class member file suit to challenge the assessment and pay the tax prior to the delinqu ency date pending the resolution of the suit?

 Did the class member indicate that payment was made under protest?

 Did the class member expre ss a willingness to pay the tax?

 Did the class member receive any favorable federal income tax treatment from payment ofthe assessed back taxes?

 Did the class member receive adequate notice concerning the disputed taxes?

 Was the class member deni ed procedural due process?

 If the facts concerning a particular class member are undisputed, whether the payment wa s voluntary or involuntary is a question of law.24 The Taxpayers assert thatno individualized inqu iry is necessary for the reason that the voluntary pa yment rule does not apply in this case as the class members were under implied economic duress as a matt er of law because of the threats of penalties, interes t, and tax liens, the actual imposition of penalties and interest against some of t he property owners in this case, and the Cities’ ability to file suits to collect unpaid taxes an d 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 th e pressure to pay these government exactions is indirect and fl ows from statutes or ordina nces.”). They argue that because these “coercive elem ents” are objectively presen t, an examination of the subjective minds of the cla ss members is not necessary. Courts have held on specif ic 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 throug h 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, 2 11, 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.2d25 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 cityordinance requiring payment of illegal cab operator’s license fee under threatof forfeiting the right to do business constituted payment under du ress or business compulsion as a matter of law). But, despite these specificholdings, as the suprem e 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, ta x code section 31.115 provides a mechanism through which property taxes can be paid under protest: Payment of an ad valorem tax is in voluntary if the taxpayer indicates that the tax is paid under protest: (1) on the instrument by wh ich 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 agr ee with the Taxpayers that all of the prospective class members were under im plied economic dure ss 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 re quest a waiver of the fees or otherwise protest the26 imposition of the fee, any coercion that existed was not actual and imminent and did not constitute duress as a matter of law.”). Accord ingly, we cannot conclude that trial court abused its discretion by finding that the voluntary payment rule might apply to some memb ers of the prospective class but not to others. A list of the omitted properties admi tted into evidence at the classcertification hearing showed that all of the affect ed taxpayers had paid the back property taxes for the ta x years 2003 through 2007. 13Discovery excerpts also admitted into evidence indicate that so me of the Taxpayers—Brennan and Smith and the Kaspers—noted on their tax payme nts that they were being paid under protest. Thus, assuming that common is sues 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, particula rly whether the voluntary payment rule applies to each particular property owner. The trial court could have reasonably concluded that after resolving the comm on issues, “presenting and resolving individual issues [was] likely to be an overwhelming or unma nageable 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

13 Some of the property owners presente d tax certificates showing they had purchased their property du ring or after the 2003 th rough 2007 timeframe and were not required to pay taxes for the years prior to their ownership.27 their individual claims.”). Thus, we c onclude the trial court did not abuse its discretion in denying the Ta xpayers’ motion for class ce rtification. 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 ofthis issue, we need not address their arguments regarding rule 42(a). See Tex. R. App. P. 47.1. Accordingly, we overrule t he Taxpayers’ sole issue. IV. Denial of the City of Aled o’s Motion for Summary Judgment In four issues, the City of Aledo complains in its ap peal that the trial court erred by denying its motion for summary judg ment on the Taxp ayers’ claims. A. Standard of Review We review a summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 20 10). We consider the evidence presented in the light most favorable to the nonmovant, crediting ev idence favorable to the nonmovant if reasonable jurors could, an d disregarding evidence contrary to the nonmovant unless reasonab le 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 essent ial 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 assessi ng 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 c ourt of appeals” and carries it forward on appeal “merely to preserve the issue.” Because this issu e, as well as portio ns of the City of Aledo’s first and third issues, have been de cided previously by this court, our first opinion in this case consti tutes “law of the case” and will determine our resolution of this issue, as well as portions of the City of Aledo’s fi rst and third issues. Under the “law of the case” doctrine , a decision rendered in a former appeal of a case is gene rally binding in a later ap peal 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, or ig. 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 Gene rales 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 71 4, 716 (Tex. 2003)). It may do so in its own discretion, however, and there is not an absolute29 bar to reconsideration if subsequent hearings, brie fing, 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 in vitation 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 Ci ty of Aledo failed to prove as a matter of law that Hammon ds 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 Ci ty 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 ta xes in this case did not render the assessment and resulting taxe s void. In its motion an d on appeal, the City of Aledo relies on McPhail v. Tax Collecto r of Van Zandt County , 280 S.W. 260 (Tex. Civ. App.—Dallas 1925, writ re f’d), to support this contention. In McPhail , the Van Zandt County school trus tees, acting pursuant to new legislation, formed the Colf ax high school district by consolidating the Colfax and Clowers districts and appointed seven trustees for the district. Id. at 262. The30 new trustees organized the board and levi ed a tax on the pr operty in the new district at the same rate th at had been levied by the trustees in the respective school districts. Id. The tax rolls for the new distri ct 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 fo rmed 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 di strict 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 omissi on as frequently occurs in the practical administration of tax laws. If such an oversight as this had the effect of nullifying an entire assessment, interm inable confusion would prevail in regard to the collect ion 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 proper ty for any reason has escaped assessment for any year, it is th e duty of the owner to render the same and pay the tax; but, if he should fail to di scharge this legal duty, it becomes the duty of the asse ssor to assess the property for the omitted year at the same rate under which it should have been assessed, and attach the assessm ent 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 situati ons, and is app licable here. It is the duty of the tax assessor , under the statute in question, to make a complete lega l assessment of all prop erty in the district and this duty would not be discha rged where an omission of this nature takes place, unless th e property is assessed in a supplemental assessment as indicate d above, or is brought forward31 on an unrendered roll, which pr ocedure the assessor is also authorized to pursue. Id. (emphasis added) (citations omitted). In its summary-judgment motion, the Ci ty of Aledo argued that based on the holding in McPhail —when no statute specifically ap plies, the assessor is still under a duty to back-assess taxes and t he taxpayer is still under a duty to pay them—the back assessment ma de without statutory authori ty 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 co de 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 challe nge petition with the ap praisal review board. See Tex. Tax Code Ann. §§ 41.03(a)(5), .04. The appraisal review bo ard is required to hear a challenge only if the taxing unit f iles a petition with the board before June 1 or within fifteen days after the date th at the appraisal records are submitted to the board, whichever is later. Id. § 41.04. After notice an d hearing, the board is required to make a determination on the ch allenge, enter an appropriate written order, and send notice of the dete rmination to the taxing unit. Id. §§ 41.05–.07. If “the board finds that the appraisal record s are incorrect in some aspect raised by the challenge,” it “shall re fer 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 taxa tion 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 pr operty not rendered for taxation by the owner thereof shall be asse ssed at its fair va lue by the proper officer.”). The tax code creates a system for property tax admi nistration, defines taxable property, establishe s exemptions, sets out proc edures for appraisal, tax assessment, and tax collectio n, and provides review a nd challenge procedures. See Tex. Tax Code Ann. §§ 1.01–43.04 (West 2015 & Supp. 2015). It also provides a mechanism throu gh which the City of Aledo could have challenged its omission from the 2003 through 2007 Pa rker 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 be lieve the court’s holding in McPhail, which predates the enactment of th e current version of the tax code, excuses the City of Aledo’s failu re to follow this procedure. The City of Aledo also argues on appeal that “u nder Texas law there was no need for the back-assessmen t 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 co ntention, 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 upon33 which such tax is levied by the officer or tribunal to whom this duty is committed by law.” 47 Tex. 73, 84 (1 877). 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 ex pressly presented to the trial court by written motion, answer or other response shall not be consider ed on appeal as grounds for reversal.”); see also Tex. R. App. P. 33.1(a)(1) (stating that as prerequisite for presenting complaint fo r appellate review, record must show complaint was made to trial court by ti mely request, objection, or motion). The Taxpayers alleged t hat Hammonds had a duty to refrain from sending the tax bills until the tax rolls were approv ed 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 asse ssment of property in previous years where the approved rolls do not specify the tax years being modified. In its summaryjudgment motion, the City ofAledo argued that the tax code does not require that the supplemental appraisal re cords be approved before the assessor mails a tax bill to a property owner and that the “2 008 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 appraisa l rolls from 2003 through 2007. But as we held in our previous opinion, no supplemental appraisal records exist for the year s 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 in cluded within the su pplemental appraisal records approved by Parker CountyARB in its December 9, 200834 order approving supplemental appr aisal records for 2008. Because section 25.23(a)(1) does not authorize the inclusion of the Cities as taxing units in supplemental ap praisal records and because the statutory requisites for inclusion of [the Taxpayers’] properties on the Cities’ appraisal rolls for the tax years 2003–2007 vi a supplemental appraisal records were not met, Pa rker County ARB acted outside its statutory authority by purportin g to approve the inclusion of the Cities as taxing units of [the Ta xpayers’] 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 matte r of law that the assessed back taxes were not invalid or vo id. Accordingly, we overrule its first issue. D. Did the City of Aledo violate th e Taxpayers’ equal protection rights? The Taxpayers allege d that the City of Aledo violated their right to equal protection by not attempting to collect ta xes from former property owners who owed taxes for the 2003 through 2007 period. 14In its second issue, the City of Aledo asserts that the tr ial court erred by denying its motion for summary judgment because the Taxpayers’ equal protection a llegations 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

14 The record shows that the prop erty owners wh o presented tax certificates showing that they purchase d the property during or after the 2003– 2007 period were not required to pay asse ssed 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 tr eat the claimant di fferent from other similarly-situated landowners wi thout 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 collec tion 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 thos e 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 t hese 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, provid ed no summary-judgment evidence to establish this basis for not pursuing coll ection actions agains t former property

owners. See Quanaim v. Frasco Rest. & Catering , 17 S.W.3d 30, 42 (Tex. App.—Houston [14th Dist.] 2000, pet. deni ed) (op. on reh’g) (explaining that “neither the motion for summary judgmen t, 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. Ap p.—San Antonio 1991, writdenied) (stating that “motion for summary judgme nt is a pleading and ma y not be considered as summary judgment evidence” (citing Kendall v. Whataburger, Inc. , 759 S.W.2d 751, 754 (Tex. App.—Houston [1 st Dist.] 1988, no writ))); see also Tex. R. Civ. P. 166a(c) (“No oral testimony shall be re ceived at the [summary-judgment] hearing.”). Because the City of Aledo failed to produce any summary-judgment evidence establishing its right to summ ary judgment on the Taxpayers’ equal36 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 Al edo violate the Taxpayer s’ due process rights? The Taxpayers alleged th at the City of Aledo vi olated their due process rights by failing to utilize th e proper procedure under t he 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 opportun ity to protest or contest Hammonds’s actions as tax assessor/colle ctor. The City of Aledo argues in its third issue—as it did in its motion fo r summary judgment—that th e Taxpayers’ due process allegations fail as a matter of law because there was no lack of notice. The collection of a tax co nstitutes 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 pr ocess, 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 were37 provided notice of a procedure to follow to challenge the supp lemental 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 entitl ed to protest before the appraisal review board the failure of the chief appraiser or the appr aisal 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 no tice is insufficient beca use the Parker County ARB does not have jurisdiction to review Ha mmonds’s actions as the Parker County tax assessor/collector. We agree. As we pointed out in our prior opinion, no protest procedures exist to cont est 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 ch ief appraiser, appraisal district, or appraisal review board but not acti ons 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 ofaction 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 i ssue, we affirm the trial court’s order denying their motion to certify a class action. Having ov erruled each of the City of Aledo’s issues, we affirm the trial court’s order de nying the City of Aledo’s motion for summary judgment. We remand this case to the tr ial 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