Opinion filed March 26, 2009

In The

Eleventh Court of Appeals

____________

No. 11-07-00048-CV

__________

MIDLAND CENTRAL APPRAISAL DISTRICT, Appellant/Cross-Appellee

V.

BP AMERICA PRODUCTION COMPANY ET AL, 

Appellees/Cross-Appellants

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CV44864 (consolidated)

O P I N I O N

The issue in this case is whether an ad valorem tax may be imposed on crude oil located in

Midland County in a tank farm that is an integral part of an interstate, common carrier pipeline

system. In its appraisal rolls for 2003 and 2004, Midland Central Appraisal District (MCAD)

included oil located in the tank farm on January 1 of the respective years. MCAD allocated

ownership of the oil to various shippers, including BP America Production Company; Amerada Hess

Trading Company; Chevron USA, Inc.; ChevronTexaco Products Company; ChevronTexaco Global
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Supply and Trading Company; TEPPCO Crude Oil LLC; and TEPPCO Crude P/L LLC (hereinafter

referred to collectively as the Oil Companies). The Oil Companies properly protested and ultimately

brought four separate suits in district court. After consolidating the suits and conducting a nonjury

trial, the trial court rendered judgment that the oil was not taxable but denied the Oil Companies’

request for attorney’s fees. MCAD appeals the trial court’s ruling regarding the taxability of the oil,

and the Oil Companies appeal the denial of attorney’s fees. We affirm. 

I. Issues

MCAD presents six issues for review. In the first issue, MCAD contends that the trial court

erred as a matter of law in determining that the oil is not taxable in Midland County. In the second

issue, MCAD contends that the trial court erred in finding that oil had no situs in Midland County.

In the third issue, MCAD contends that the trial court erred in holding that the oil was in interstate

commerce. In itsfourth issue, MCAD challengesthe legal and factual sufficiency of several findings

of fact and asserts that the trial court erred in considering the oil as individual barrels rather than an

aggregate inventory. MCAD argues in its fifth issue that the trial court erred in finding that the tax

is not applied to an activity or oil with a substantial nexus to Texas. In its final issue, MCAD asserts

that the trial court erred in finding that MCAD’s allocation of ownership of the oil was not

reasonable. 

The Oil Companies present two issues for review. In their first issue, the Oil Companies

contend that the trial court erred in denying their request for attorney’s fees because the award of

attorney’s fees was mandated by statute, specifically TEX. TAX CODE ANN. § 42.29 (Vernon 2008).

In their second issue, the Oil Companies assert that MCAD waived its challenge to the award of

attorney’s fees by requesting findings of fact that support the award. 

II. Background Facts

The record shows that the underlying facts in this case are largely undisputed. The

unchallenged findings of fact indicate that oil at issue in this case was produced mostly in West

Texas and a small amount in eastern New Mexico and was injected into the Midland Pipeline

System, a spiderweb configuration of interconnecting pipelines covering more than two dozen

counties in West Texas and eastern New Mexico. The Midland Pipeline System is an interstate,

common carrier pipeline system that is regulated by the Federal Energy Regulatory Commission and
We note also that a production tax is levied on oil that is produced in Texas. TEX. TAX CODE ANN. § 202.051 (Vernon

1

2008). 

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is operated by various pipeline companies that are not parties to these proceedings. Upon injection

of the subject oil into a pipeline, control and custody was relinquished to the pipeline companies;

the oil, being fungible, became part of the common stream of oil.

Oil in the system travels through pipelines in Texas, taking no more than two and one-half

weeks, to final destinations at various oil refineries located in Texas and in other states. During the

journey, a large amount of oil passes through the tank farm where the Midland Pipeline System

converges. The tank farm functions as an integral part of the Midland Pipeline System and exists

to facilitate the transportation of the oil, not to store oil. The oil in the tank farm arrives and exits

via the Midland Pipeline System. The time from entry into a tank to exit from a tank is six to

seventy-two hours. However, a certain minimum volume of cushion oil is required to be maintained

in each tank for safety reasons and to meet emission standards, resulting in the constant presence of

a large amount of oil in the tank farm. Blending, batching, or staging of the oil may occur at the tank

farm as necessary to facilitate the transmission of the oil through the Midland Pipeline System, but

these processes do not interrupt the continuity of transit. The tanks are not used for storage.

Oil is bought, sold, and traded by document transfers irrespective of where the oil may be in

the system. These transfers do not alter the movement of the oil or interrupt its in-transit movement

to refineries. Upon arrival at a refinery, the oil is assessed and listed for taxation by the local

appraisal authorities. Furthermore, ad valorem taxes are assessed on the pipelines, tanks, physical 1

assets, and equipment at the tank farm. In 2003 and 2004, those ad valorem taxes were timely paid.

III. MCAD’s Appeal

A. Sufficiency of the Challenged Findings.

MCAD challenges several of the trial court’sfindings regarding the temporariness of the oil

in Midland County and in Texas, the continuity ofthe oil’stransit, the ultimate destination of the oil,

and the oil’s status as being in interstate commerce. MCAD argues in its fourth issue that there is

no evidence to support the challenged findings and that the evidence is factually insufficient to

support those findings. MCAD also argues in its fourth issue that the trial court erred in considering

the oil as individual barrels of oil rather than an oil inventory. 
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We review sufficiency challenges to a trial court’s findings of fact under the same standards

that we use to review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994);

Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). In analyzing a legal sufficiency

challenge, we must determine whether the evidence at trial would enable reasonable and fair-minded

people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

We must review the evidence in the light most favorable to the challenged finding, crediting any

favorable evidence if a reasonable factfinder could and disregarding any contrary evidence unless

a reasonable factfinder could not. Id. at 821-22, 827. We may sustain a no-evidence or legal

sufficiency challenge only when (1) the record discloses a complete absence of a vital fact, (2) the

court is barred by rules of law or evidence from giving weight to the only evidence offered to prove

a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or

(4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W.

Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63

(1960)). In analyzing a factual sufficiency challenge, we must consider and weigh all of the evidence

and determine whether the evidence in support of a finding is so weak as to be clearly wrong and

unjust or whether the finding is so against the great weight and preponderance of the evidence as to

be clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); In re King’s Estate, 244 S.W.2d

660, 661 (Tex. 1951). We review a trial court’s conclusions of law, including those mislabeled as

findings of fact, de novo. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002). 

At trial, several witnesses, including employees of the pipeline companies, explained that a

tank is basically a wide spot in a pipeline and that the tank farm is simply a gathering location of

multiple pipelines that bring barrels of oil in at varying rates and varying pressures and allows the

oil to be gathered to move on to the next destination. The Oil Companies are not allowed to store

oil in the pipeline system. The oil in the tanks is in constant movement: either filling or

withdrawing. After reviewing all the evidence, we hold that, although there is a substantial quantity

of oil that is constantly present in the tanks, the trial court’s findings regarding the continuity of the

oil’s transit are supported by legally and factually sufficient evidence. 
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MCAD also challenges findings regarding the ultimate destination of the oil and the oil’s

status as being in the stream of interstate commerce. The trial court found that a vast majority of the

oil located in the tank farm is sent to refineries located outside of Texas and that less than ten percent

of the oil remains in Texas. These findings are supported by testimony showing that the oil passing

through the tank farm travels through the pipeline system and can be offloaded at only three

refineries in Texas. Testimony showed that the amount of oil offloaded at these three refineries

amounts to less than ten percent of the oil that passes through the tank farm in the pipeline system

and that “the rest of the oil has to leave the state.” After reviewing all of the evidence, we hold that

the challenged findings of fact are supported by legally and factually sufficient evidence. To the

extent that MCAD’s fourth issue challenges the sufficiency of the evidence, it is overruled. 

B. Was the Oil Taxable in Midland County?

Unless exempt by law, tangible personal property in Texas is taxable if it is located in Texas

for longer than a temporary period, is temporarily located outside Texas but the owner resides in

Texas, or is used continually in Texas. TEX.TAX CODE ANN. § 11.01 (Vernon 2008);see also TEX.

TAX CODE ANN. § 21.02 (Vernon 2008) (taxable situs in taxing unit). In determining whether the

oil at issue in this case was taxable, we address whether the oil was in the stream of interstate

commerce, whether the trial court erred in failing to consider the oil as a constant presence in the

tanks rather than individual barrels in transit, and whether the oil had situs in Midland County. We

ultimately conclude that the tax violated the Commerce Clause of the United States Constitution,

U.S. CONST. art. I, § 8, cl. 3, and that the tax was not valid under Section 21.02(a)(1) due to the

temporary period during which the oil was located in Midland County. 

1. Interstate Commerce.

The first question is whether the oil had been placed into the stream of interstate commerce.

MCAD argues that it had not. Interstate commerce “occurs when goods ‘have been shipped, or

entered with a common carrier for transportation to another State, or have been started upon such

transportation in a continuous route or journey.’” Va. Indon. Co. v. Harris County Appraisal Dist.,

910 S.W.2d 905, 908 (Tex. 1995) (VICO) (citing Coe v. Errol, 116 U.S. 517, 527 (1886)). 

The trial court found and the uncontroverted evidence indicates that, prior to making its way

to the tank farm, the subject oil was injected into a federally regulated, interstate common carrier
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pipeline system. Once injected, the oilremained in the pipeline and under the pipeline’s control until

it reached its ultimate destination, a refinery. The evidence also shows that the tanks in the tank farm

are and were an integral part of the interstate pipeline system and that, although the destination of

the oil actually in the tanks at the time of the assessment could not be determined, over ninety

percent of the oil passing through the tank farm was transported to refineries out of state. See Eureka

Pipe Line Co. v. Hallanan, 257 U.S. 265, 272 (1921) (stating that a tank in an oil pipeline “may be

regarded as a pipe of larger size”). 

The next question is whether the oil remained in transit in the stream of interstate commerce

when it was at the tank farm. MCAD asserts that the subject oil should be viewed as a massive

constant presence of oil in the tank farm and that, if so viewed, it cannot be concluded that the oil

was in interstate commerce or that it was only temporarily in Midland County. In support of this

contention, MCAD relies upon Diamond Shamrock Refining and Marketing Co. v. Nueces County

Appraisal District, 876 S.W.2d 298 (Tex. 1994), and Exxon Corp. v. San Patricio County Appraisal

District, 822 S.W.2d 269 (Tex. App.—Corpus Christi 1991, writ denied). We find these cases to

be factually distinguishable. 

In Diamond Shamrock, the supreme court held that oil stored in tanks was subject to an

ad valorem tax where the oil was imported from abroad into Texas, which was its final destination.

876 S.W.2d 298. Upon arriving in Texas, the oil, which was owned by Diamond Shamrock and

destined for Diamond Shamrock’s refinery in Texas, was offloaded into a storage facility and stored

in tanks before being transported to a refinery in another county by pipeline. Although the parties

stipulated that the oil at issue was “in transit,” the court determined that the situs of each barrel

should not be considered because the incidence of the tax imposed was the year-round presence in

the storage facility of a large volume of oil belonging to Diamond Shamrock. Id. at 300-04. The

court in Diamond Shamrock specifically limited its holding to foreign goods in transit through only

one state that remain in that state. Id. at 302, n.7. Furthermore, the oil at issue in Diamond

Shamrock was located in a storage facility, whereas the oil at issue in this case had been injected into

interstate common carrier pipelines and was located in tanks that were an integral part of the

common carrier pipeline system within the stream of interstate commerce. Even when viewed as

a constant presence, the oil at issue in this case, like the massive quantity of oil constantly present
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within the pipelines themselves, was located in the stream of interstate commerce where it had been

commingled with oil from numerous other shippers and was – for the most part – being transported

to another state. 

In Exxon, as in the present case, oil that was located in working tanks was taxed. 822 S.W.2d

269. The court ruled that, although each individual barrel remained in the county for no longer than

seventeen days, the oil acquired situsthere because Exxon maintained at all times a massive quantity

of oil in the tanks. Id. at 272-74. As in Diamond Shamrock, however, the oil in Exxon was not

destined for any location outside the State of Texas. The oil at issue in Exxon was transported,

refined, and sold in Texas. Id. at 272. Nothing in the court’s opinion in Exxon indicates that

interstate commerce was involved. 

Subsequent to its opinion in Diamond Shamrock, the Texas Supreme Court considered and

struck down an ad valorem tax assessed on goods that had been placed into the export stream of

commerce but were temporarily located in a facility belonging to an independent export packer.

VICO, 910 S.W.2d at 906-08. Although the court in VICO relied upon the Import-Export Clause,

U.S.CONST. art. I, § 10, rather than the Commerce Clause to invalidate the tax, the court recognized

that the doctrine used to determine whether goods are in transit at the time of taxation applies equally

under either clause. Id. at 908 & n.1. The court recognized the year-round presence in the packer’s

facility of goods belonging to VICO but did not rely on the goods’ constant presence as a factor in

its determination that the goods remained in transit and in the stream of export. Id. at 907-14. 

In VICO, the goods had been committed to foreign export and were transported to the

packer’s facility to be checked, approved for import into Indonesia, inspected, packaged, and cleared

for shipping. Id. at 907, 913-14. The court held that the temporary stoppage of the goods at the

packer’s facility, which usually took no more than forty-five days, did not break the continuity of

transit and that the goods remained in the stream of export. Id. at 907, 912-14. In determining

whether the stoppage disrupted the continuity of transit, the court in VICO followed Supreme Court

precedent and reasoned that it “is the purpose of the stoppage that is important.” Id. at 912 (citing

Champlain Realty Co. v. Town of Brattleboro, 260 U.S. 366, 376-77 (1922), and Minnesota v.

Blasius, 290 U.S. 1, 11-12 (1933)). When the stoppage is attributable to a business purpose of the

owner, the in-transit status is deemed to have terminated, and the goods are subject to taxation in the
Blending is the mixing of oil of low sulfur content (sweet crude) with oil of higher sulfur content (sour crude). Batching 2

keeps oil of different grades separate. Staging is the accumulation of sufficient volumes of oil necessary for transmission in the

pipeline system.

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jurisdiction where they are stopped. Id. In contrast, if the stoppage is a necessity of the journey or

for the purpose of safety and convenience in the course of the journey, the stoppage does not

interrupt the continuity of transit. Id. 

In the present case, the “stoppage” was not related to a business purpose of the owner. The

evidence and the trial court’s findings indicate that, barring any malfunction, oil is delayed for six

to seventy-two hours in the tank farm for purposes related to the operation of the pipeline system.

Each tank is required to maintain 8,000 to 10,000 barrels of oil as a cushion for safety and emission

reasons. Oil may also be delayed for blending, batching, or staging – operational functions of the

pipeline system that are necessary to facilitate the transmission of the oil. Thus, as in VICO, the 2

“stoppage” of the oil did not interrupt the continuity of transit. 

We hold that the trial court correctly determined that the oil was in the stream of interstate

commerce. The oil had been injected into a common carrier pipeline system and remained in that

interstate system at the time of the tax assessment. Any delay at the tank farm was not attributable

to the Oil Companies but, rather, was incidental to the transportation of the oil by the common

carrier and was necessary for the safe and efficient operation of the pipeline system. 

2. Validity of Tax Under Commerce Clause.

Next, we must determine whether the tax on the oil in interstate transit violated the

Commerce Clause. The Commerce Clause grants Congress the power to regulate interstate

commerce and implicitly prohibits certain state regulation of interstate commercial activity. Okla.

Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995). However, not all state taxes on interstate

commerce are prohibited. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977). Pursuant to

Complete Auto, a state tax does not violate the Commerce Clause if it meets a four-pronged test set

out by the Court. To be valid, the tax must (1) apply to an activity with a substantial nexus with the

taxing state, (2) be fairly apportioned, (3) not discriminate against interstate commerce, and (4) be

fairly related to the services provided by the state. Id. at 279, 287; Vinmar, Inc. v. Harris County

Appraisal Dist., 947 S.W.2d 554, 555 (Tex. 1997). To establish that a state tax is unconstitutional,
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the taxpayer need only prove that the tax fails one prong of the Complete Auto test. Vinmar, 947

S.W.2d at 555. 

The trial court concluded that the tax violated the Commerce Clause and that the tax did not

satisfy the “substantial nexus” requirement of the Complete Auto test. The substantial nexus

requirement of Complete Auto is a means for limiting state burdens on interstate commerce. Quill

Corp. v. North Dakota, 504 U.S. 298, 313 (1992). 

In support of their contention regarding substantial nexus, the Oil Companies cite to a recent

opinion of the Texarkana Court of Appeals, Peoples Gas, Light, & Coke Co. v. Harrison Central

Appraisal District, 270 S.W.3d 208 (Tex. App.—Texarkana 2008, pets. filed). In Peoples, the court

struck down an ad valorem tax assessed against the owner of natural gas on gas that had been placed

into the stream of interstate commerce and was located in an underground storage facility owned by

an interstate pipeline company. The court determined that the tax violated the Commerce Clause

because the gas owner’s activities in Texas and its connection to Texas were too tenuous to create

a substantial nexus. 270 S.W.3d at 218. 

In contrast, MCAD asserts that we should not follow Peoples but should instead follow the

decision reached by the Supreme Court of Oklahoma in In re Assessment of Personal Property Taxes

Against Missouri Gas Energy, a Division of Southern Union Co., No. 103,355, 2008 WL 4648330

(Okla. Oct. 21, 2008). In Missouri Gas, the court upheld an ad valorem tax on gas held in an

underground storage facility owned and operated by an interstate, common carrier pipeline. Missouri

Gas Energy owned the gas, which was ultimately transported out of state. The Oklahoma court

determined that the gas was not merely passing through the county to an out-of-state destination

because the large volumes of gas that were stored in the facility for a substantial part of the year were

“not in transit in such a way as to invoke the protection of the Commerce Clause.” 2008 WL

4648330, at *11. 

We find at least one crucial fact of Missouri Gas to be distinguishable from the facts of the

present case. The crude oil in the present case was not in storage but, rather, was in transit in the

stream of interstate commerce. For this same reason, the case at hand presents an even stronger case

for a Commerce Clause violation than did the circumstances in Peoples. 
We note that MCAD asserts in its brief that the oil is also taxable pursuant to Section 21.02(a)(4), which allows personal 3

property to be taxed if “the owner resides (for property not used for business purposes) or maintains the owner’s principal place of

business in this state (for property used for business purposes) in the unit and the property is taxable in this state but does not have

a taxable situs pursuant to Subdivisions(1) through (3) of thissubsection.” However, the trial court made no findings of fact on this

issue, and MCAD did not request that the trial court make a finding regarding the principal place of business. Moreover, the evidence

does not indicate that Midland County is the principal place of business in this state for any of the Oil Companies. 

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To comply with the first prong of the Complete Auto test, the ad valorem tax on the oil in the

tank farm must have applied to an activity with a substantial nexus with Texas. Although the oil

itself had a substantial nexus with this state as much of it was produced in this state and some of it

was destined for an in-state refinery, the “activity” being taxed had no such nexus. The activity

essentially being taxed in this case was the ownership of oil that was present but in transit on

January 1 in a tank farm that constituted an integral part of an interstate, common carrier pipeline

system.

Furthermore, if the tax in this case is upheld, then ad valorem taxes could potentially be

levied by any taxing authority on oil in transit but located, at the time of assessment, in the portion

of an interstate pipeline system within the boundaries of that taxing authority. The result would be

an impermissible multiple burden on interstate commerce. See Michigan-Wisconsin Pipe Line

Co. v. Calvert, 347 U.S. 157, 170 (1954) (holding that tax on taking of gas into interstate pipeline

infringed upon the Commerce Clause and recognizing that such tax would permit a multiple burden

upon commerce because other states could impose a tax on the first taking of the same gas in their

state). We hold that the tax in the present case does not satisfy the Complete Auto test and that it

runs afoul of the Commerce Clause. 

3. Validity of Tax Pursuant to State Law.

Section 21.02 provides in relevant part that tangible property in Texas is taxable by a taxing

unit if “it is located in the unit on January 1 for more than a temporary period.” Section 21.02(a)(1).3

The trial court concluded that the oil was not located in Midland County for longer than a temporary

period. We agree. 

As discussed above, the record shows that the oil had been injected into an interstate,

common carrier pipeline system; that the oil merely traveled through Midland County in the pipeline

system; that any delay of the oil in the tank farm was temporary and was necessary only to facilitate

the continued transportation of the oil; and that the tank farm was not used for storage. Although
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much of the oil had a nexus with Texas in that it was produced in Texas, it had no such nexus with

Midland County. The oilwas merelytransported through MidlandCounty and was only temporarily

located in the county. Thus, we hold that the trial court did not err in concluding that the oil had no

taxable situs in Midland County. 

The tax was not valid under the Commerce Clause or Section 21.02(a)(1). Consequently,

MCAD’s first, second, third, fourth, and fifth issues are overruled. We need not reach MCAD’s

sixth issue concerning allocation of ownership. TEX. R. APP. P. 47.1. 

IV. Oil Companies’ Appeal

The Oil Companies appeal the trial court’s refusal to award them attorney’s fees. In Texas,

attorney’s fees are recoverable from an opposing party only when authorized by statute or by contract

between the parties. Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996).

The Oil Companies assert that attorney’s fees were authorized by Section 42.29 of the Tax Code.

The trial court entered findings of fact as to the amount of attorney’s fees that would be reasonable

if recoverable under Section 42.29. The trial court concluded, however, that the Oil Companies were

not entitled to attorney’s fees under Section 42.29.

Section 42.29 provides that a “property owner who prevails in an appeal to the court under

Section 42.25 or 42.26 may be awarded reasonable attorney’s fees.” TEX. TAX CODE ANN. § 42.25

(Vernon 2008) provides a remedy for an excessive appraisal, entitling the owner to a reduction of

the appraised value on the appraisal roll. TEX. TAX CODE ANN. § 42.26 (Vernon 2008) provides a

remedy for the unequal appraisal of property in relation to the appraised values of other properties.

Sections 42.25 and 42.26 do not apply to this case because the Oil Companies did not challenge the

appraised value of the oil; they challenged the ability of Midland County to tax the oil.

Consequently, since the Oil Companies did not prevail on a claim “under Section 42.25 or 42.26,”

attorney’s fees were not authorized by Section 42.29. If the legislature had intended for attorney’s

fees to be recoverable in a case of this type, it could have included in its Section 42.29 authorization

of attorney’s fees an appeal challenging the inclusion of the property on the appraisal roll, the

determination of ownership, or the denial of an exemption. The legislature specifically authorized

such protests in TEX. TAX CODE ANN. § 41.41(a) (Vernon 2008) (listing nine distinct actions that

may be protested by taxpayer, including: excessive value, unequal appraisal, denial of an exemption,
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ownership, and inclusion on tax roll). The legislature, however, did not authorize attorney’s fees for

all such protests. Section 42.29 authorizes attorney’s fees for only two distinct types of protest:

excessive value and unequal appraisal. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d

75, 77-79 (Tex. 1992). The Oil Companies’ protest cannot be categorized as falling within either

of those two. See id. The Oil Companies’ first issue is overruled. 

In the second issue, the Oil Companies assert that MCAD waived any complaint it had to the

award of attorney’s fees by requesting findings of fact that supported an award of attorney’s fees.

We disagree. MCAD repeatedly objected to issues related to the prospective award of attorney’s

fees, and MCAD did not request any findings of fact that would entitle the Oil Companies to

attorney’s fees or waive MCAD’s objection to such fees. MCAD merely requested that the trial

court amend its findings regarding attorney’s fees to omit the phrase “recoverable under Tax Code

§ 42.29.” The requested amendments reflected MCAD’s continued objection to the award of

attorney’s fees and continued contention that the fees were not “recoverable.” Moreover, MCAD

did not ask the trial court to amend Conclusion of Law No. 9, wherein the trial court concluded:

“The Oil Companies are not entitled to attorney’s fees under Tax Code § 42.29.” MCAD did not

waive its complaint to the award of attorney’s fees. The Oil Companies’ second issue is overruled.

V. Conclusion

The judgment of the trial court is affirmed. 

JIM R. WRIGHT

CHIEF JUSTICE

March 26, 2009

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.