Affirmed and Opinion filed August 8 , 201 3

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 1 2

- 0 0 637

- CV

MILLSTONE INVESTMENT & MANAGEMENT, L.L.C

. , Appellant

V. BNC RETAX, L.L.C. , Appellee

On Appeal from the 13 3rd District Court

Harris County, Texas Trial Court Cause No. 201 1

- 09092

O P I N I O N In a single issue, Millstone Investment & Management, L.L.C. contends the trial court erred by denying Millstone’s motion for summ ary judgment and granting BNC Ret ax, L.L.C.’s cross

- motion for summary judgment

. We affirm.2 I. B ACKGROUND In 2002, TTSF, L.P. #2 owned an apartment complex (“the Property”) and granted a lender a deed of trust on the Property to secure a promissory note. In 2006, TTSF was delinquent on taxes from the 2005 tax year owed to Alief Independent School District (“A ISD”) and Harris County. 1 Pursuant to the Tax Code, o n January 1 of each year, a tax lien attaches to property to secure payment of all taxes, penalties, and interest ultimately imposed for the year on the property.
See Tex. Tax Code Ann. § 32.01 (West 2 008) (unchanged since 1999)

. The tax lien is given priority over almost all antecedent and subsequent property interests, except for a few interest s inapplicable in this case. See id. § 32.05 (West 2008) (unchanged since 2005). Section 32.06 of the Tax Code provides that a tax lien may be transferred to a person who pays taxes with the property owner’s permission.
In 2006, TTSF entered into an agreement with RETax Funding L.P. ,

w hereby RETax agreed to pay the delinquent taxes. In exchange, TTSF granted
RETax a deed of trust on the Property and agreed to follow the procedures of
section 32.06 for the transfer of AISD’s and Harris County’s tax liens to RETax

. Pursuant to the requirements of section 32.06, TTSF filed sworn document s with
the tax co llectors for AISD and Harris County in which TTSF sw ore RETax was authorized to pay the delinquent taxes on TTSF’s behalf and the taxing units were
authorized to transfer their tax liens to RETax. Shortly thereafter, RETax paid the delinquent taxes . The tax collector for AISD certified in a document that RE Tax had paid the taxes and AISD’s tax lien was transferred to RETax

. A ttached to this
document was the tax collector’s seal of office, and the document was

1 For simplicity, we do not give the exact names of the taxing units to which TTSF owed delinquent taxes but refer to them as “AISD” and “Harris County.”3

acknowledged before a notary public. Similar ly, the tax collector for Harris County certified in a document that RETax had paid the taxes and Harris County’s
tax lien was transferred to RETax . T his document also contained the tax collector’s seal but was not acknowledged before a notary public. Neither of the tax collectors’ documents was sworn, and we will refer to the documents as “the Certifications.” The parties do not dispute that TTSF’s sworn documents and the tax collectors’ C ertification s were properly filed in the real property records. In April 2010, the Property was sold at a foreclosure sale pursuant to the 2002 deed of trust. Millstone purchased the property at the sale. In September 2010, RETax assigned the tax liens to BNC. After BNC filed an application to foreclose on the prop erty pursuant to the tax liens, Millstone filed suit against BNC, seeking a declaration that the 2010 foreclosure sale extinguished the tax
liens. Millstone filed a traditional motion for summary judgment, arguing that BNC’s tax liens were invalid because the tax collectors’ C ertificates were not

sworn as required by se ction 32.06. BNC filed a cross

- traditional motion for summary judgment, arguing that section 32.06 does not require sworn certificates. In a final judgment, t he trial court denied Millston e’s motion and grant ed BNC’s motion, declaring that BNC ’ s tax liens are valid and awarding attorney’s fees to
BNC

. II. S UMMARY J UDGMENT

In its sole issue , Millstone claims it owns the Property unencumbered by any liens because BNC’s purported tax liens are i nvalid due to the tax collector s ’ failure to swear to the veracity of their Certificates as required by section 36.02

.4

A. Standard of R eview A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215

– 16 (Tex. 2003). If the movant establishes a right to summary judgment,
the burden shifts to the non

- movant to present evidence raising a material fact
issue. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2 000); Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). We review a summary judgment de novo. Valence Operating Co. v.
Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). In reviewing the trial court’s rulings

on cross

- motions for summary judgment, we must consider all summary

- judgment evidence, determine all issues presented, and render the judgment the trial court
should have rendered. FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000). We may consider evidence presented by both parties in determining whether to grant either motion. Expro Americas, LLC v. Sanguine
Gas Exploration, LLC , 351 S.W.3d 915, 919 (Tex. App.

— Houston [14th Dist.] 2011, pet. denied )

. B. Former Section 32.06 and Standard s of Statutory Construction

As noted above, s ection 32.06 provides that a tax lien may be transferred to a person who pays the taxes with the property owner’s permission. Here, the purported tax

- lien transfers occurred in 2006, and the parties agree the version of
section 32.06 in effect in 2006 applies. The 2006 version of s ection 32.06 reflected changes from the 2005 legislative session. 2 All citations to section 32.06 in this opinion refer to the 2006 version.

2 See Act of May 20, 2005, 79th Leg., R.S., ch. 406, § 1, 2005 Tex. Gen. Laws 1098,5

Under section 32.06, a property owner ma y authorize another person ( the transferee) to pay any delinquent taxes imposed by a taxing unit if the property
owner filed with the tax collector for the taxing unit a sworn document authorizing transfer of the tax lien and describing the property. Tex. Tax Code Ann. §
32. 06(a

– 1). The tax collector’s responsibilities are governed by section 32.06(b):
(b) If a transferee aut horized to pay a property owner’ s taxes pursuant to Subsection (a

- 1) pays the taxes and any penalties and interest imposed, the collector shall issue a tax receipt to that transferee. In addition, the collector or a person designated by the collector shall certify on the sworn document that payment of the taxes and any penalties and interest on the described property and collection costs has been made by the transferee on behalf of the property owner liable for the taxes when imposed and that t he taxing unit’ s tax lien is transferred to that transferee. The collector shall attach to the sworn document the collector ’ s seal of office or sign the document b efore a notary public and deliver the sworn document, a tax receipt, and the affidavit attesting to the transfer of the tax lien to the transferee within 30 days. The sworn document, tax receipt, and affidavit attesting to the transfer of the tax lien may be combined into one document

. The collector shall conspicuously identify in the applicable taxpayer ’ s account the date of the transfer of a tax lien transferred under this section.
Id. § 32.06 (b) (emphasis added). “ To be enforceable, a tax lien transfe rred as provided by this section must be recorded with the sworn statement and affidavit attesting to the transfer of the tax lien as described in Subsection (b) in the deed

1098; Act of May 29, 2005, 79th Leg., R.S., ch. 1126, § 13, 2005 Tex. Gen. Laws 3717, 3720. These amendments were effective September 1, 2005 to August 31, 2007. The statute h as been amended several times since. See Act of May 22, 2007, 80th Leg., R.S., ch. 1220, § 3, 2007 Tex. Gen. Laws 4111, 4116; Act of May 25, 2007, 80th Leg., R.S., ch. 1329, § 1, 2007 Tex. Gen. Laws 4484, 4484; Act of May 11, 2009, 81st Leg., R.S., ch. 87 , § 22.006, 2009 Tex. Gen. Laws 208, 334; Act of May 12, 2009, 81st Leg., R.S., ch. 104, § 1, 2009 Tex. Gen. Laws 402, 402; Act of May 26, 2009, 81st Leg., R.S., ch. 1382, § 4, 2009 Tex. Gen. Laws 4340, 4341; Act of May 23, 2011, 82nd Leg., R.S., ch. 622, § 1, 2011 Tex. Gen. Laws 1498, 1498.6

records of each county in which the property encumbered by the lien is located. ”
Id. § 32.06 (d). Statutory construction is a question of law we review de novo. City of Round Rock v. Rodrigue z, 399 S.W.3d 130, 133 (Tex. 2013). In construing a
statute, we must determine and give effect to the Legislature’ s intent, begin ning with the pl ain and common meaning of the statute’ s words. Tex. W. Oaks Hosp.,
LP v. Williams , 371 S.W.3d 171, 177 (Tex. 2012). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See St. Luke’ s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex. 1997). We employ the common usage rule, meaning words and phrases shall be read in context and construed according to the rules of grammar and common usage, but we will also give words a techn ical meaning if such a meaning has been provided by legislative definition or as a term of art. Traxler v. Entergy Gulf States, Inc. , 376 S.W.3d 742, 747 (Tex. 2012) (citing Te x. Gov ’t Code Ann. §
311.011 ). E very word in a statute is presumed to have bee n used for a purpose
and , if reasonable and possible , is to be given effect. Tex. Workers’ Comp. Ins. Fund v. Del Indus., Inc. , 35 S.W.3d 591, 593 (Tex. 2000). If a statute is unambiguous, we adopt the interpretation supported by its plain language, unless such an interpretation would lead to absurd results. TGS

– NOPEC Geophysical Co.
v. Combs , 340 S.W.3d 432, 439 (Tex. 2011 )

. C. Analysis This dispute centers on the meaning of the word “affidavit” as used in
section 32.06 (b) . Millstone contends the ordinary meaning of “affidavit” supplied
in the Government Code applies, which is “ a statement in writing of a fact or facts signed by the part y making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office. ” Tex. Gov ’ t7

Code Ann. § 312.011 (1) (West 2013 ) . B ecause it is undisputed that the
Certifications were not sworn t o by the tax collectors before a person authorized to administer oaths, Millstone argues the tax collectors did not swear to the tax

- lien
transfers in affidavit s as required by section 32.06. According to Millstone, th e lack of sworn affidavit s conclusive ly establis hes the tax

- lien transfers are invalid because section 32.06(d) states, “To be enforceable, a tax lien transferred as provided by this section must be recorded with the sworn documents and affidavit attesting to the transfer of the tax lien as d escribed in Subsection (b).” Tex. Tax
Code Ann. § 32.06(d). BNC counters that section 312.011 of the Government Code provides that its definitions apply “unless a different meaning is apparent from the context of the statute in which the word appears.” Tex. Gov ’ t Code Ann. § 312.011

. BNC
argues the context in which “affidavit” appears in section 32.06 (b) indicates that
the Legislature did not intend for the ordinary meaning of the word to apply. We
agree. Under section 32.06(b), after the transferee pays the taxes, the tax collector shall issue a tax receipt to the transferee. Tex. Tax Code Ann. § 32.06(b). The tax collector then has a certification duty, requiring him to certify on the sworn
document that all required taxes and costs hav e been paid by the transferee on behalf of the property owner and that the taxing unit’s tax lien is transferred to the
transferee

. Id. 3 The tax collector also shall attach to the sworn document his seal

3 On appeal, the parties do not debate the meaning of the requirement that the tax collector make his certifications and attach his seal or sign before a notary public “on the sworn document.” See Tex. Tax Code An n. § 32.06(b). We note that, in construing the 2006 version of section 32.06, our court recently held that this requirement does not literally mean the tax collector must make his certifications and attach his seal on or sign the physical sworn document provid ed by the property owner; it was sufficient that the certifications and seal or signature were made on a separate document. See Avelo Mortg. LLC v. Infinity Capital, LLC , 366 S.W.3d 258, 263 (Tex. App.

— Houston [14th Dist.] 2012, no pet.).8

of office or sign the document before a notary pub lic. Id. Finally, the tax collector shall “deliver the sworn document , a tax receipt, and the affidavit attesting to the transfer of the tax lien to the transferee .” Id. (emphasis added). In this final requirement, the word “affidavit” is modified by the word “the” and the phrase “attesting to the transfer of the tax lien.” See Combs , 340 S.W.3d at 441 (“Language cannot be interpreted apart from context.”). In this context, u se of
the def inite article “the” instead of the indefinite article “an” means “affidavit” is something already familiar to the reader. See, e.g. , Grafmuller v. Com. , 698 S.E.2d 276, 280 (Va. Ct. App. 2010) (citing several cases discussing difference between
definite a nd indefinite articles and holding “ the child” as used in sent encing portion of statute referred to “any person [defendant] knows or has reason to
believe is a child” as used in offense portion of statute). The term “sworn document” as used in section 32. 06 also follows this grammatical rule. Section 32.06(a

- 1) refers to “a sworn document” because it is the first mention of this particular document in the statute. Tex. Tax Code Ann. § 32.06(a

- 1). However, in section 32.06(b), the same document is referr ed to a s “the sworn document”
because it is already familiar to the reader. Id. § 32.06(b).

Because “the affidavit” references something already identified, we look to the preceding language to determine what this is. According to the preceding language, the tax collector is required to certify 4 the transferee paid the taxes and that the tax unit’s lien is transferred to the tra nsferee and attach his seal of office

or sign the document before a notary public. Based on these requirements, “the

4 “Certify” mean s “[t] o authenticate or verify in writing.” Black’s Law Dictionary 220 (7th ed. 1999). There is n o requirement that a person be placed under oath before he may “certify” something. For example, under the Government Code definition of “affidavit,” a nota ry public certifies that the affiant was under oath but there is obviously no requirement that the notary public also be under oath to make this certification. See Tex. Gov’t Code Ann. § 312.011(1).9

affidavit” is further modified by the phrase “attesting to the transfer of the tax lien.” Accordingly, “the affidavit attesting to the tr ansfer of the tax lien” refers to a
document which includes the tax collector ’ s certification of tax payment by, and
transfer of the tax lien to, the transferee and either bears the tax collector’s seal or is signed before a notary public. Absent is any r equirement that the “the affidavit attesting to the transfer of the tax lien” be sworn to by the tax collector. Therefore, we hold “the affidavit attesting to the transfer of the tax lien” is a document unique to section 32.06 and not subject to the Gover nment Code definition of “affidavit.” 5
Furthermore, requiring “the affidavit attesting to the transfer of the tax lien” to be “ signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the o fficer under his seal of office,”
Tex. Gov ’ t Code Ann. § 312.011 (1), would contradict the tax collector’s option to
either attach his seal to the document or sign it before a notary public. Tex. Tax Code Ann. § 32.06(b). We construe th is option to mean t he tax collector need not employ any services of a notary public (including administration of an oath) if the
tax collector attaches his seal

. Millstone argues that attaching an official seal to a document or signing the document before a notary public a re simply methods to authenticate the document, whereas swearing to the contents of a document serves the separate purpose of establishing the truth of the statements asserted therein

. Thus, according to Millstone, the fact that the tax collector has the option to attach his seal or sign before a notary is unrelated to whether the document needs to be sworn. Millstone correctly notes Texas Rule of Evidence 902 provides that a document is self

-

5 Because the meaning of “the affidavit attesting to the transfer of the tax lien” is unambiguous, we need not refer to the legislative history cited by the parties. See Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge) L.L.C. , 171 S.W.3d 905, 915 (Tex. App.

— Houston [14th Dist.] 2005, no pet.).10

authenticating when it either bears a governmental seal and a s ignature purporting
to be an attestation or is signed by a governmental employee in his official capacity before a public officer who certifies under seal that the sign atory ha s official capacity and the signature is genuine. See Tex. R. Evid. 902(1)

– (2). We agree that authentication and swearing to the truth of matters are separate legal concepts. Nevertheless, as we have determined, section 32.06(b) provides explicit instructions for how a tax collector is to certify that a tax lien has been transferre d,
and these instructions do not include sw earing to the contents of the certification

. Next, Millstone notes the 2006 deed of trust from TTSF to RETax provided, “This Deed of Trust is given in conjunction with the Transfer of Tax Lien by [Harris County an d AISD]

. . . , and which Transfer of Tax Lien, including affidavit thereto, shall be recorded in the county in which the Mortgaged Property is located.” (emphasis added). Millstone contends this language proves that
RETax

— the original purported tax

- lien transferee and BNC’s predecessor

— understood that the tax collector was required to swear to the transfer in an
affidavit . However, considering all provisions of the 2006 deed of trust as a whole,
we conclude the reasonable int erpretation of this language is that the par ties thereto simply intended to comply with 32.06(d), requiring that “the sworn statement and affidavit attesting to the transfer of the tax lien” be recorded in the county in which the property is located for the tax

- lien transfer to b e en forceable. See Tex. Tax
Code Ann. § 32.06(d) ; see also id. § 32.065(b) (version applicable in 2006) (requiring contract between property owner and transferee under section 32.06 shall provide for, inter alia , “recording of the sworn document and affidavit attesting to the transfer of the tax lien”)

. Millstone also analogizes section 32.06 (b) to section 53.052 of the Property Code, wh ich requires a person claiming certain lien s to “file an affidavit with the11

county clerk.” Tex. Pro p. Code Ann. § 53.052 (a ) (West 2007 ). Millstone contends
courts have construed “affidavit” as used in section 53.052 to require a sworn

statement , and we should apply the same interpretation to section 32.06 (b)

. Millstone’s contention ignores the context of “affidavit” as used in section
32.06 (b) . Furthermore, requirements for a section 53.052 affidavit are expressly delineated in the Property Code and include “a sworn statement of the amount of the claim.” See id. § 53.054 (West 200 7 ) (entitled “Contents of Affidavit”).
Finally, Millstone argues case law pertaining to section 32.06 supports its position

. In Genesis Tax Loan Serv ice s., Inc. v. Kothmann , the Supreme Court of
Texas held that a tax

- lien transfer complied with the 200 4 version of 32.06

. 339 S.W.3d 104, 106 (Tex. 2011). T hat version of the statute did not include the te rm “affidavit” but provided,
[T] he collector shall certify on the sworn document that payment of the taxes and any penalties and interest on the described property has be en made by a person other than the person liable for the taxes when i mposed and that the taxing unit’ s tax lien is transferred to the person paying the taxes. The collector shall attach to the document the collector’s seal of office and deliver the document to the person paying the taxes

. Id. at 108 (quoting Tex. Tax Code Ann. § 32.06(b) (2004 version))

. T he supreme
court held , inter alia , (1) the absence of the tax collector’s seal of office did not
render the tax

- transfer documents void because th e tax collector did not yet have a seal and a notary public ’s seal was attached
, and (2) the tax collector’s failure to maintain copies of the tax liens did not invalidate the transfer

. Id. at 110

. Although these holding s are inapposite to the present i ssue, Millstone emphasizes the supreme court ’s state ment , “The statutory transfer process involves an authorization by the property owner and a certification by the tax collector.
These sworn documents must be recorded for the lien transfer to be enforceable. ”12

Id. (emphasis added). Relying on this language, Millstone argues the supreme
court held that both the property owner’s sworn document and the tax collector’s
certification must be sworn

. Howev er, we agree with BNC that the supreme court’s word choice was non

- precedential obiter dictum

. See Garza v. Slaughter , 331 S.W.3d 43, 48 n.4 (Tex. App.

— Houston [14th Dist.] 2010, no pet.) (explaining difference between judicial dicta and obiter dicta). Ad ditionally , Kothmann is not applicable to our case because we are concerned with a substantially different version of section 32.06 (b)

. 6
In sum, having determined that the 2006 version of 32.06(b) did not require
the tax collectors to swear to the veracity of their Certifications, we overrule Millstone’s sole issue and affirm the trial court’s judgment.

/ s / John Donovan J ustice

Panel consists of Justice s Frost, Brown, and Donovan

.

6 Millstone also cit es WMC Mortgage Corp. v. Moss , in which the First Court of Appeals interpreted the Kothmann court to hold a “tax collector’s sworn statement made before a notary satisfied the requirements of Section 32.06(b) when the tax collector had no seal and therefor e failed to attach his seal of office to the authorization.” No. 01

- 10

- 00948

- CV, 2011 WL 2089777, at *4 (Tex. App.

— Houston [1st Dist.] May 19, 2011, no pet.) (mem. op.) (emphasis added). However, even if the tax collector in Kothmann swore to the facts o f the tax

- lien transfer, this does not mean such action was necessarily a requirement of the statute.