NUMBER 13-12-00314-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IKE & ZACK, INC., ET AL., Appellants,

v.

MATAGORDA COUNTY AND

CITY OF PALACIOS, Appellees.

On appeal from the 130th District Court

of Matagorda County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria

Memorandum Opinion by Chief Justice Valdez

Appellants, Ike & Zack, Inc., Miss Gabrielle, Inc., Little Ken, Inc., Capt Anthony, 

Inc., Miss Adrianna, Inc., Sandra G. Inc., Capt Christopher, Inc., Father Mike, Inc., St. 

Daniel Philip III, Inc., Lady Toni, Inc., Kelly Marie, Inc., Capt Marcus, Inc., Capt Bubba, 

Inc., Trawler Emmanuel, Inc., Mariah Lynn, Inc., Trawler Santa Maria, Inc., and Josh & 

Jack, Inc., challenge the trial court’s summary judgment granted in favor of appellees, 
2

Matagorda County and the City of Palacios (collectively the “Appraisal District”).1 By 

two issues, appellants contend that they have raised a genuine issue of material fact 

regarding their affirmative defenses thus, precluding summary judgment. We reverse 

and remand.

I. BACKGROUND

Appellants are seventeen different corporations that own and operate shrimp 

boats in the Gulf of Mexico out of Port Lavaca, Calhoun County, Texas. On July 11, 

2005, the Appraisal District filed suit pursuant to section 33.41 of the Texas Tax Code 

seeking to recover delinquent ad valorem taxes imposed against appellants for the tax 

years of 2001, 2002, 2003, and 2004. See TEX. TAX CODE ANN. § 33.41 (West 2008). 

For those tax years, appellants alleged that the Appraisal District failed to send them ad 

valorem tax notices. The Appraisal District claims in its brief that it sent notice to the 

previous owners of the shrimp boats in Matagorda County, Texas. It is undisputed that 

the previous owners are now appellants’ shareholders.

Appellants responded to the Appraisal District’s petition alleging several

affirmative defenses. The Appraisal District moved for summary judgment addressing 

appellants’ affirmative defenses of improper situs, error in the tax rolls, laches, and 

double taxation.2 The Appraisal District attached as summary judgment evidence an 

affidavit from the chief appraiser, a document showing the rulings made by the 

Matagorda County Appraisal Review Board issued in 2005, deleting the commercial 

 

1

The Palacios Independent School District (“PISD”) was also a plaintiff in the trial court. 

However, the trial court dismissed PISD from the case on August 2, 2010, and it is not an appellee in this 

case.

2

Appellants claimed in their second amended answer that they were not liable to the Appraisal 

District because the Texas Constitution prohibits double taxation and appellants had paid ad valorem 

taxes to Calhoun County where the shrimp boats were rendered and accepted.
3

boats at issue from the Matagorda Appraisal Roll for 2005, and “certified copies of the 

entries of the official delinquent tax records of Matagorda County” for the tax years 

2001–2004 it claims showed the amounts owed by appellants. Appellants responded to 

the motion, and the Appraisal District filed objections to appellants’ response. The trial 

court granted the Appraisal District’s objections and struck appellants’ response and 

attached exhibits from the record. Appellants amended their original answer adding the 

affirmative defenses of lack of notice and non-ownership. The trial court then allowed 

appellants to file “Defendant’s Supplement to Defendants’ Response/Opposition to 

Plaintiffs’ Motion for Summary Judgment.” On April 13, 2012, the trial court signed its 

summary judgment in favor of the Appraisal District. This appeal ensued.

II. STANDARD OF REVIEW

The order granting summary judgment for the Appraisal District does not specify 

the reason the trial court granted the motion. When such an order exists, we will affirm 

the judgment if any of the theories advanced in the motion are meritorious and 

supported by competent summary judgment evidence. Harwell v. State Farm Mut. 

Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Carr v. Brasher, 776 S.W.2d 567, 569 

(Tex. 1989); Breshears v. State Farm Lloyds, 155 S.W.3d 340, 343 (Tex. App.—Corpus 

Christi 2004, pet. denied).

The Appraisal District did not state in its motion for summary judgment whether it 

was seeking traditional summary judgment or no-evidence summary judgment. See

TEX. R. CIV. P. 166a(c), (i). The two forms of summary judgment are distinct and invoke 

different standards of review. Lavaca Bay Autoworld, L.L.C. v. Marshall Pontiac Buick 

Oldsmobile, 103 S.W.3d 650, 653 (Tex. App.—Corpus Christi 2003, no pet.). The 
4

Appraisal District’s motion for summary judgment states that it has attached evidence to 

the motion “showing that there is no genuine issue as to any material fact respecting 

[appellants’] liability to [it] for the delinquent taxes. . . . and entitled to Summary 

Judgment . . . as a matter of law.” However, in its motion for summary judgment, the 

Appraisal District did not assert that there was no evidence of a particular element. See 

Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). Therefore, we need not apply the 

standard of review for a no-evidence motion for summary judgment. See id.

In a traditional motion for summary judgment, the movant has the burden of 

showing that no genuine issue of material fact exists and that it is entitled to judgment 

as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 

546, 548 (Tex. 1985). If the movant’s motion and summary judgment proof facially 

establish a right to judgment as a matter of law, the burden shifts to the non-movant to 

raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. 

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Holmstrom v. Lee, 26 S.W.3d 526, 530 Tex. 

App.—Austin 2000, no pet.); HBO, A Div. of Time Warner Entm’t Co., L.P. v. Harrison, 

983 S.W.2d 31, 35 (Tex. App.—Houston [14th Dist.] 1998, no pet.). In deciding whether 

a disputed material fact issue precludes summary judgment, we resolve every 

reasonable inference in favor of the non-movant and take all evidence favorable to it as 

true. See Nixon, 690 S.W.2d at 548–49; Karl v. Oaks Minor Emergency Clinic, 826 

S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.] 1992, writ denied). If the defendant 

relies on an affirmative defense to defeat summary judgment, it must come forward with 

evidence sufficient to raise a genuine issue of material fact on each element of the 

defense. Sani v. Powell, 153 S.W.3d 736, 740 (Tex. App.—Dallas 2005, pet. denied)
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(citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see City of Houston v. 

Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)). We review a summary 

judgment de novo to determine whether a party’s right to prevail is established as a 

matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.—Dallas 

2000, pet. denied).

III. DISCUSSION

In its motion for summary judgment, the Appraisal District claimed it was entitled 

to summary judgment because it had shown that no genuine issue of material fact 

existed regarding appellants’ affirmative defenses.

3

When a taxing unit introduces its delinquent tax notices into evidence, a prima 

facie case is established as to every material fact necessary to establish its cause of 

action. See TEX. TAX CODE ANN. § 33.47(a) (West 2008); Maximum Med. Improvement, 

Inc. v. County of Dallas, 272 S.W.3d 832, 835 (Tex. App.—Dallas 2008, no pet.). A 

rebuttable presumption then arises that the taxing entity has taken all actions necessary 

to obtain legal authority to levy the tax, including proper delivery of all required tax 

notices. Maximum Med. Improvement, Inc., 272 S.W.3d at 835. However, there is no 

presumption of notice if the identity of the party named as owner of the property on the 

Appraisal District tax roll does not match the identity of the defendant sued for nonpayment.4

 Id. at 836–37 (“Although Section 33.47(a) provides a rebuttable 

 

3 We note that appellants amended their response to the Appraisal District’s petition adding, 

among other defenses, the defense of improper notice. On appeal, appellants complain that the 

Appraisal District failed to challenge its defense of improper notice in its motion for summary judgment. 

However, because we conclude that it is not dispositive of this appeal because we are sustaining 

appellants’ second issue. Therefore, we will not address this issue. See TEX. R. APP. P. 47.1.

4

In its statement of facts section of its brief, the Appraisal District states, “For tax year 2002, 11 of 

the 17 shrimp boats and for tax years 2003 and 2004, all 17 boats were sent ad valorem tax notices to 

the most recent name and address in the possession” of the Appraisal District. “The names and 
6

presumption, if the identity of the entity named as the owner does not match the identity 

of the defendant sued for non-payment, no presumption arises as to the 

defendant . . . .”) (citing Pete Dominguez Enters. v. County of Dallas, 188 S.W.3d 385, 

387 (Tex. App.—Dallas 2006, no pet.)).

Here, the Appraisal District provided as summary judgment evidence the 

delinquent tax notices showing that appellants owed past due taxes. The Appraisal 

District did not provide copies of the actual notices sent. However, appellants attached 

to their response to the Appraisal District’s motion for summary judgment copies of the 

property appraisals from the Appraisal District’s website showing that the appellants 

were not listed as the owners of the properties at issue in this case during the 2002 and 

2003 tax years. This constitutes evidence that the identity of the property owners listed 

in the Appraisal District tax rolls for the 2002 and 2003 tax years does not match the 

appellants’ identities. Therefore, any presumption of notice disappeared.5 See id. The 

Appraisal District also argues that the Appraisal District records attached to appellants’

response neither proves nor disproves that notice was properly sent. However, it is 

reasonable to conclude that the Appraisal District sent notice of the taxes to the persons 

listed as the owners of the properties at the addresses listed in its own records as 

required by statute. See TEX. TAX CODE ANN. § 1.07(b) (West Supp. 2011) (requiring 

the taxing entity to address the tax notice to the property owner, or his agent, at the 

address according to the most recent record in the possession of the property taxing 

 

addresses where the ad valorem tax notices were sent, were those of the prior owners who incorporated 

the 17 shrimp boats.”

5

The Appraisal District, citing evidence that was stricken from the record based on the Appraisal 

District’s objections, claims that appellants were notified of the taxes. However, because the trial court 

struck these documents from the record, this evidence was not before the trial court when it granted the 

summary judgment. Accordingly, we will not consider it.
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entity). Moreover, as previously stated, the presumption of notice did not arise in this 

case, and the Appraisal District has offered no evidence that notice was given.

We find the facts of this case analogous to the facts in Industrial 

Communications, Inc. v. Ward County Appraisal District, wherein the taxing entities 

claimed that they had complied with all notice requirements under the tax code by 

delivering notice of a 2003 appraisal to the previous owner, ICP, a company that was 

listed as the record owner of the property in the taxing entities’ tax rolls. 296 S.W.3d 

707, 713 (Tex. App.—El Paso 2009, pet. denied). In Industrial, the taxing entities 

argued, among other things, that they were not obligated to provide notice under the tax 

code because Industrial failed to put them on notice that it owned the subject property

and to notify them of its change of address. Id. at 718. The court rejected the taxing 

entities’ argument that they were not required to provide notice to Industrial and an 

opportunity for Industrial to be heard because Industrial failed to file a rendition 

statement concerning the property, and failed to advise them of its address change. Id.

at 720. The court concluded that due process requires notice to a taxpayer of an 

appraisal and an opportunity for the taxpayer to be heard. Id. at 719–21.

In Industrial, the taxing entities also argued that Industrial should have filed a 

protest pursuant to section 41.411 of the tax code, which provides that “a property 

owner is entitled to protest before the appraisal review board the failure of the chief 

appraiser or the appraisal review board to provide or deliver any notice to which the 

property owner is entitled.” See id. at 713–14. The court explained that “[u]nder the

[pre-2008] version of section 41.44 applicable to [the case], a property owner who 

wishe[d] to protest pursuant to [s]ection 41.411 must [have] file[d] the protest before the 
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date the taxes on the subject property [became] delinquent.” Id. at 714. The court 

further explained that section 41.411 of the tax code “is not contingent on the property 

owner keeping the taxing authorities informed of his current address.” Id. at 721. The 

court stated that the pre-2008 tax code failed to provide an adequate constitutional 

remedy for a taxpayer who received notice after the taxes became delinquent.6 See id.

at 714. The court found that the taxing entities had not provided notice to Industrial of 

the taxes and concluded that the assessed taxes and penalties were void due to the 

lack of notice. Id. at 722–23. 

The Appraisal District also argues that appellants should have filed a protest 

pursuant to section 41.411 of the tax code. However, as stated in Industrial, the pre2008 tax code applies and that version of the statutes would not have allowed 

appellants to file a protest pursuant to section 41.411 if they did not receive notice 

before the taxes became delinquent, as they claim. See id. at 714. Therefore, 

assuming appellants received notice after the taxes became delinquent, they are in the 

same situation as the property owners in Industrial, and a section 41.411 protest was 

not available to them for their due process claim. See id.

Next, the Appraisal District argues that it complied with the requirements of the 

tax code and that failure to send or receive a tax bill does not affect the validity of the 

tax, penalty, or interest, the due date, the existence of a tax lien, or any procedure to 

collect a tax. See TEX. TAX CODE ANN. § 31.01(g) (West Supp. 2011). However, the 

Appraisal District did not make this argument in its motion for summary judgment; 

 

6

As stated in Industrial, section 41.44 “now permits a property owner to file a protest under TEX.

TAX CODE ANN. § 41.411 not later than the 125th day after the property owner, in the protest filed, claims 

to have first received written notice of the taxes in question.” Indust. Commc’ns, Inc. v. Ward County 

Appraisal Dist., 296 S.W.3d 707, 714 (Tex. App.—El Paso 2009, pet. denied).
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therefore, the trial court could not have based its decision on this argument. Therefore, 

we will not consider it. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 

1997) (citing TEX. R. CIV. P. 166a(c) ("The motion for summary judgment shall state the 

specific grounds therefor."); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 

341 (Tex. 1993)).

Finally, the Appraisal District argues that appellants were not denied due process 

because they could have protested the delinquent taxes pursuant to section 25.25(c) of 

the tax code. See TEX. TAX CODE ANN. § 25.25 (West Supp. 2011). Section 25.25(c) 

provides that “[t]he appraisal review board, on motion of the chief appraiser or of a 

property owner, may direct by written order changes in the appraisal roll for any of the 

five preceding years to correct . . . the inclusion of property that does not exist in the 

form or at the location described in the appraisal roll.” See id. The Appraisal District 

filed its petition to collect the delinquent taxes on July 11, 2005. There is no summary 

judgment evidence indicating that appellants received notice of the delinquent taxes for 

the contested years before the Appraisal District filed its suit. Therefore, there is a 

question of fact regarding whether appellants could have filed a complaint pursuant to 

section 25.25 before this suit ensued. Furthermore, appellants are alleging lack of 

notice as a defense to the suit instituted by the Appraisal District to collect the 

delinquent taxes. Section 25.25 does not provide for a challenge to the taxes on the 

basis that the taxpayer did not receive notice. To challenge the lack of notice, 

appellants could have filed a protest pursuant to section 41.411; however, as stated 

above, the pre-2008 tax code did not allow a taxpayer who received notice after the 

taxes became delinquent to file a protest. See Industrial, 296 S.W.3d at 714.
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Moreover, although taxpayers must generally exhaust their administrative 

remedies, there are several exceptions: “(1) where an injunction is sought and 

irreparable harm would result; (2) where the administrative agency cannot grant the 

requested relief; (3) when the issue presented is purely a question of law; (4) where 

certain constitutional issues are involved; and (5) where an administrative agency 

purports to act outside its statutory powers.” Strayhorn v. Lexington Ins. Co., 128 

S.W.3d 772, 780 (Tex. App.—Austin 2004) (explaining that the policy reason “for the 

exhaustion-of-administrative-remedies doctrine is to allow the agency to resolve 

disputed issues of fact and policy and to assure that the appropriate body adjudicates 

the dispute”) aff’d, 209 S.W.3d 83, 84, 90 (Tex. 2006). “In the case of an agency 

allegedly acting outside of its statutory powers, the ‘purposes underlying the exhaustion 

rule are not applicable: judicial and administrative efficiency are not served, and agency 

policies and expertise are irrelevant, if the agency’s final action will be a nullity.” Id.

(citing Larry Koch, Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833, 840 

(Tex. App.—Austin 2001, pet. denied)). Here, appellants have alleged that the 

Appraisal District has acted outside of its statutory powers by levying the contested 

taxes without providing notice. See id.; see also Industrial, 296 S.W.3d at 722–23 

(concluding that the 2003 taxes assessed on Industrial’s property and the associated 

penalties were void because Industrial did not receive notice of the inclusion of the 

property on the 2003 tax rolls and did not have an opportunity to protest the 2003 

appraisals on that property). As stated above, there is no summary judgment evidence 

that appellants ever received notice of the delinquent taxes before the Appraisal District 

filed suit. So, if appellants were to prevail on their theory that the Appraisal District was 
11

acting outside its authority in assessing these taxes against them because they did not 

receive proper notice, the taxes would become void and any administrative 

requirements would be mere formalities. See Strayhorn, 128 S.W.3d at 780; see also

Industrial, 296 S.W.3d at 722–23; Appraisal Review Bd. of the El Paso County Cent. 

Appraisal Dist. v. Fisher, 88 S.W.3d 807, 813 (Tex. App.—El Paso 2002, pet. denied)

(holding that the taxpayer was denied due process and the taxes and penalties 

assessed based on the appraisal were void because he did not receive notice or have 

an opportunity for a hearing to contest the appraisal). Therefore, based on our de novo 

review, we conclude that the Appraisal District’s right to summary judgment has not 

been established as a matter of law. See Dickey, 12 S.W.3d at 175; see also TEX. R.

CIV. P. 166a; Nixon, 690 S.W.2d at 548. We sustain appellant’s second issue.

IV. CONCLUSION

We reverse the trial court’s summary judgment and remand the case for further 

proceedings consistent with this opinion.

____________________

ROGELIO VALDEZ

Chief Justice

Delivered and filed the 

14th day of March, 2013.