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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

DEFENDANT LLANO CENTRAL APPRAISAL DISTRICT 

AND DEFENDANT SCOTT DUDLEY’S 

MOTION TO DISMISS PLAINTIFF’S ORIGINAL COMPLAINT 

NOW COMES the Defendants, the Llano Central Appraisal District and Scott Dudley, 

and files this Motion to Dismiss Plaintiff’s Original Complaint. The Defendants would show the 

Court the following: 

MOTION TO DISMISS 

The Defendants deny that jurisdiction exists in this Court to hear this matter and move to 

dismiss pursuant to F.R. CIV. P. 12(b)(1). 

Under the Tax Injunction Act (28 U.S.C.A. § 1341), federal district courts "shall not 

enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a 

plain, speedy and efficient remedy may be had in the courts of such State." Plaintiff's cause of 

David Roy Hutchings, 

Plaintiff 

v. 

COUNTY OF LLANO, TEXAS, LLANO 

CENTRAL APPRAISAL DISTRICT, 

LLANO INDEPENDENT SCHOOL 

DISTRICT, LLANO COUNTY TAX 

ASSESSOR/ COLLECTOR, LLANO 

COUNTY EMERGENCY SERVICES, 

424TH JUDICIAL DISTRICT, LLANO, 

COUNTY SHERIFF’S OFFICE, JUDGE 

EVAN STUBBS, RONALD 

CUNNINGHAM, BILL BLACKBURN, 

SCOTT DUDLEY, KRIS FOGELBERGE, 

MAC EDWARDS, GILBERT BENNETT, 

AND JOYCE GILLOW 

Defendants. 

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CIVIL ACTION NO. 1:20CV0308LY 
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action in the instant case is rooted in the assessment, levying and collection of property taxes 

under the law of the State of Texas. 

The law of the State of Texas provides for a plain, speedy and efficient remedy for 

Plaintiffs grievances within the courts of Texas. Specifically, Chapter 41 of the Texas Tax Code 

allows a property owner who is dissatisfied with the appraisal of his property to protest that 

appraisal before a local appraisal review board. If the appraisal review board does not resolve the 

matter to the property owner's satisfaction, he can appeal the board's order and obtain judicial 

review in the form of a trial de novo from a district court. Id., Chapter 42. 

While Plaintiff’s Complaint seeks declaratory relief based on allegations of federal 

Constitutional violations, the Tax Injunction Act specifically prohibits a federal district court 

from issuing a declaratory judgment holding state tax laws unconstitutional. 

In a Rule 12(b)(1) motion a moving party may make a facial attack on the complaint's 

allegations as to the existence of subject matter jurisdiction. Holt v. United States, 46 F.3d 1000, 

1002 (10th Cir.1995) (internal citation omitted). In reviewing a facial attack, the district court 

must accept the allegations in the complaint as true. Id. The appropriate standard of review 

applicable to facial attack of court's subject matter jurisdiction involved accepting alleged facts 

as true and drawing all reasonable inferences in plaintiffs favor. Nelson v. Corn. of Pennsylvania 

Dept of Public Welfare, 244 F. Supp.2d (E.D.Pa. 2002). Thus, if, having taken all the factual 

allegations pled by the plaintiff as true, the weight of the evidence does not indicate that a federal 

question has been asserted, the Court must dismiss the matter before it. 

The Defendants accept the factual predicate in-artfully alleged by the Complainant that 

he once owned property in Llano County, that these Defendants placed that property on the 

Llano Central Appraisal District Appraisal roll and sent notices of appraised value to the 
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Complainant. These Defendants further accept the factual predicate that the taxing unit 

Defendants assessed taxes against that property, that the Complainant failed to pay those taxes, 

and that the taxing unit Defendants foreclosed on the property subsequently. 

Pursuant to the Tax Injunction Act (the "Act") (28 U.S.C.A. §1341), federal district 

courts "shall not enjoin, suspend or restrain the assessment, levy or collection of any tax 

under State law where a plain, speedy and efficient remedy may be had in the courts of such 

State." 28 U.S.C.A. § 1341. The limitation imposed by the Act is a reflection of Congressional 

concern over the intrusion of federal courts into matters of state government. Furthermore, the 

Act is "grounded in the need of states to administer their own fiscal matters without undue 

interference from the federal courts." Arkansas v. Farm Credit Services of Central Arkansas, 510 

U.S. 821, 832 (1997). 

The Act is a broad limitation of the power of federal courts which prevents such courts 

from granting injunctive relief, declaratory relief, and suits for damages. California v. Grace 

Brethren Church, 457 U.S. 393, 411 (1982); Brooks v. Nance, 801 F.2d 1237, 1239 (10'11 Cir. 

1986). The bar to jurisdiction created by the Act prevents federal courts from considering cases 

which involve allegation of federal Constitutional violations. Id. This principle of jurisdictional 

bar in matters of state tax collection, rooted in equity practice and issues of federal-state comity, 

has an extensive history which extends well beyond the specific parameters of the Act. See, for 

example, Matthews v. Rogers, 52 S.Ct. 217 (1932); Dows v. City of Chicago, 78 U.S. 108 (1870). 

To balance the potential harm done to state taxpayers if federal courts are completely 

barred from asserting jurisdiction over matters related to the assessment, levy or collection of a 

state tax, the Act requires that plaintiffs be afforded "a plain, speedy and efficient remedy" in 
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state court. (28 U.S.C.A. §1341). If the court determines that such a remedy is available to a 

plaintiff, then the Act bars federal adjudication of the matter. 

Under the laws of the State of Texas, Plaintiffs in the case at bar have the right to 

challenge tax appraisals, or even the taxability, of their property with which they disagree. 

Chapter 41 of the Texas Tax Code allows a property owner to file a protest with the local 

appraisal review board, an impartial body of citizens appointed to hear and decide complaints 

from property owners. The board conducts a hearing at which the property owner has the 

opportunity to present evidence and arguments challenging the appraisal of his property. If the 

property owner is dissatisfied with the board's order determining his protest, he can appeal the 

order to the local state district court for judicial review under Chapter 42 of the Tax Code. 

Judicial review is by trial de novo. Section 42.09 states that the Code's protest and appeal 

procedures are the exclusive means through which a property owner can contest the appraisal of 

his property. The Tax Code's procedures and remedies have repeatedly been held to satisfy the 

requirements of due process. Graham v. Hutchison County Appraisal Review Board, 776 S.W.2d 

592 (Tex. App. — Amarillo 1988, writ den.); Brooks v. Bachus, 661 S.W.2d 288 (Tex. App. — 

Eastland 1983, writ ref. n.r.e.). 

In order to meet the requirements of the "a plain, speedy and efficient remedy" condition, 

state remedies must provide the taxpayer with a full hearing and judicial determination at which 

the taxpayer may raise any and all constitutional objections to the tax. Rosewell v. LaSalle Nat. 

Bank, 450 U.S. 503, 514-515 (1981). The condition has been found to be satisfied where the 

aggrieved party could seek a judicial determination of the constitutionality of a tax in state court 

after exhausting state administrative remedies. California v. Grace Brethren Church, 457 U.S. 
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393, 415 (1982). Based on these standards, the remedy provided by the State of Texas meets or 

exceeds the minimum requirements of "a plain, speedy and efficient remedy." 

PRAYER 

WHEREFORE the Defendants asks the Court to dismiss this cause for want of 

jurisdiction, that all assess costs be taxed against plaintiff, and award defendants all other relief 

the Court deems appropriate and may be justly entitled. 

Respectfully submitted, 

LOW SWINNEY EVANS & JAMES, PLLC 

623 S. Baker Circle 

Leander, Texas 78641 

(512) 379-5800 

(512) 367-5932 (fax) 

/s/ Kirk Swinney 

By: ___________________

Kirk Swinney 

State Bar No. 19588400 

kswinney@lsejlaw.com

Ryan L. James 

State Bar No. 24078731 

rjames@lsejlaw.com 

James R. Evans, Jr. 

State Bar No. 06721500 

jevans@lsejlaw.com 

E. Barry Gaines 

State Bar No. 24042358 

bgaines@lsejlaw.com 

Marjorie I. Bachman 

State Bar No. 24044910 

mbachman@lsejlaw.com 

ATTORNEYS FOR DEFENDANT 
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CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing has been electronically served upon all 

counsel of record in compliance with the Federal Rules of Civil Procedure on this the 27th day of 

March, 2020. 

David Roy Hutchings 

Via email: drroylyn@yahoo.com 

/s/ Kirk Swinney 

____________________________________ 

Kirk Swinney