## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00086

- CV

CODY WOMMACK , Appellant

V. CITY OF LONE STAR, TEXAS, BRIANNA MCCLAIN, JERRI CHISM, KEITH REITER, TONY JOHNSON, CODY WOMMACK, AND CYNDI ANDREWS , Appellee s

O n Appeal from the 76th District Court Morris County, Texas Trial Court No. 27,646

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
C ody Wommack appeals the dismissal of his petition against the City of Lone Star, Texas, and its officials, Brianna McClain, Jerri Chism, Keith Reiter, Tony Johnson, Cody Wommack, 1 and Cyndi Andrew s. Because we agree with Wommack’s argument that the trial court erred by failing to afford him notice and a hearing before dismissing his petition, we reverse the trial court’s judgment and remand the matter to the trial court for further proceedings.
I. Factual Background In his petition, Wommack stated , “ O n August 17, 2023, the Lone Sta r , Texas[,] C i ty Coun cil voted to approve a proposed property tax rate of 0.4730 per $100. ” Wommack alleged that Appellees violated Chapter 102 of the Texas Local Government Code 2 and Chapter 26 of the
Texas Tax Code by adopting the 2023 budget and tax rate b ecause i t was all egedly accomplished without following proper notice procedures. As a result, Wommack sought a declaratory judgment that Appellees (1) “acted without legal authority in adopting and approving a tax rate for the 2023 tax year ” and ( 2) “would b e co mmi tt ing A rticle I, S ection 19 [,] constitutional violations against the plaintiff and all Lone Star property owners if property owners were deprived of their property without due course of law by an ultra vires property tax.” Wommack also sought a tempor a ry inj un ct ion prohibiting Appellees from enforcing or taking any steps to

1 Womma ck is also an “ alderman of the City of L one Sta r” and app ea rs to h a ve attempted to sue himself in his official capacity.

2 Chapter 102 of the Texas Local Government Code relates to the adoption of a municipal budget. See T EX
. L OC

. G OV ’ T C ODE A NN . §§ 102.001

– .011.3

enforce the property tax. Wommack also asked for a permanent injunction prohibiting the enforcement or collection of a property tax for the 2023 tax year. Wommack’s petition ack no w ledged t h at the tax rate at issue was a simplified tax rate and
th at Section 26.052 of the Texas Tax Code , which exempted Appellees from the regular tax
notice and publication requirements, applie d

. See T EX
. T AX C ODE A NN
. § 26 .052 (Supp.) (containi ng spe c ial not i c e provisions for simplified tax rates)

. In its answer , Appellees included

a “ Specific Denial ” that Wommack was legally barred from obtain ing the injunctive relief sought

. On the same day that the answer was filed, w ithout any hearing, the trial court e n t ered
an order , stating, “Plaintiff’s Petition and Application for Temporary Restraining Order and Temporary and Permanent Injunction is hereby DENIED .”
II. Wommack Was Entitled to Notice and a Hearing
Womma ck correctly argues that he was entitl e d to n o ti ce and a hearing before the trial court’s summary dismissal of his petition

. First, it appears that the trial court interpreted Appellees’ specific denial as a motion for a Rule 91a dismissal because it c ame c lose to arguing that Wommack’ s causes o f ac t io n had no basis in law. See T EX
. R. C IV
. P

. 91a.1. Even so, “ [a] motion to dismiss must state that it is made pursuant to ” Rule 91a, and Appellees’ answer made
no mention of Rule 91a. T EX
. R. C IV
. P

. 91a.2. Further, “[e]ach p arty is entitled to at le a s t 14 days’ notice of the hearing on the motion to dismiss.” T EX
. R. C IV
. P

. 91a.6. Wommack’s petition was filed on October 4 , 2023. Appellees filed their answer on
October 5, and the tria l court d ismissed Wo m mack’s petition o n the same day. Be cause t h e trial
court dismissed Wommack’s petition without notice and a hearing, we sustain Wommack’s point4

of error on appeal. 3 See Gaskill v. VHS San Antonio Partners, LLC , 456 S.W.3d 234, 238 ( Tex. App.

— San Antonio 2014 , pet. denied )

. I II . C onclusion
We re v e rse the trial court’s judgment and remand the matter for further proceedings.

Scott E. Stevens Chief Justice
Date Submitted: January 31, 2024 Date Decided: February 1 , 2024

3 Wommack also argues that th e trial court’s d is missal w as not supported by factually sufficient evidence. In light of our disposition remanding the case to the trial court, we refrain from discussing the merits.