ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

March 18,2005 

The Honorable Jeff Wentworth 

Chair, Senate Jurisprudence Committee 

Texas State Senate 

Post Office Box 12068 

Austin, Texas 7871 l-2068 

Opinion No. GA-03 11 

Re: Whether an appraisal review board may 

schedule a hearing on a property tax protest and 

notify the property owner of the hearing time 

before the property owner has filed a written 

notice of protest (RQ-0274-GA) 

Dear Senator Wentworth: 

You ask whether an appraisal review board may schedule a hearing on a property tax protest 

and notify the property owner ofthe hearing time before the property owner has filed a written notice 

of protest.’ 

I. Legal Backeround 

Subchapter C of chapter 41 of the Tax Code establishes procedures for property owners to 

protest certain actions relating to property appraisals before the appraisal review board. See TEX. 

TAXCODEANN. $5 41.41-.47 (Vernon 2001 & Supp. 2004-05); see also 5 41,41(a)(1)-(9) (Vernon 

2001) (listing appraisal district and appraisal review board actions that may be protested, including 

the determination of the property’s appraised value). The deadline for filing a written notice to 

protest an action depends upon the action involved. For example, section 25.19 of the Tax Code 

requires a chief appraiser to deliver written notice to a property owner of the appraised value of the 

property owner’s property “[b]y May 15 or as soon thereafter as practicable.” Id. 5 25.19(a) (Vernon 

Supp. 2004-05). Under section 41.44 ofthe Tax Code, “to be entitled to ahearing and determination 

of a protest” regarding an appraisal, “the property owner initiating the protest must file a written 

notice of the protest with the appraisal review board before June 1 or not later than the 30th day 

after the date that notice was delivered to the property owner as provided by Section 25.19, 

whichever is later.” Id. 9 41,44(a)(l) (Vernon 2001)? 

‘Letter from Honorable Jeff Wentwortb, Chair, Senate Jurisprudence Committee, to Honorable Greg Abbott, 

Texas Attorney General (Sept. 16,2004) (on file with Opinion Committee, also avnihble at http://www.oag.state.tx.us) 

[hereinafter Request Letter]. 

‘Section 4 1.44 also provides dates for filing a notice of protest regarding other appraisal district actions. See 

TEX. TAX CODE ANN. $41.44(a)(Z) (Vernon 2001) (“in the case of a protest of a change in the appraisal records ordered 

as provided by Subchapter A of this chapter or by Chapter 25, not later than the 30th day after the date notice of the 

change is delivered to the pmperty owner”), (3) (“in the case of a determination that a change in the use of land appraised 

(continued...) 
The Honorable Jeff Wentworth - Page 2 (GA-03 11) 

Other provisions in subchapter C govern the appraisal review board’s duties with respect to 

holding protest hearings. Section 41.45 provides: 

On the filing of a notice os required by Section 41.44, the 

appraisal review board shall schedule a hearing on the protest. If 

more than one protest is filed relating to the same property, the 

appraisal review board shall schedule a single hearing on all timely 

filed protests relating to the property. A hearing for a property that is 

owned in undivided or fractional interests, including separate interests 

in a mineral in place, shall be scheduled to provide for participation 

by all owners who have timely filed a protest. 

Id. § 41.45(a) (emphasis added). Section 41.46(a) requires the appraisal review board to “deliver 

written notice to the property owner initiating a protest of the date, time, and place fixed for the 

hearing on the protest unless the property owner waives in writing notice of the hearing.” Id. § 

41.46(a). The appraisal review board “shall deliver the notice not later than the 15th day before the 

date of the hearing.” Id. An appraisal review board “shall postpone the hearing to a later date if the 

property owner or the owner’s agent shows good cause for the postponement or ifthe chief appraiser 

consents to the postponement.” Id. 5 41.45(e). In addition, an appraisal review board may be 

required to postpone a hearing if the property owner or the owner’s agent is scheduled to appear at 

a hearing on a protest before another appraisal review board on the same date. See id. 8 41.45(g). 

An appraisal review board must hear and determine all or substantially all timely filed protests by 

July20. See id. 5 41.12. 

An appraisal review board is authorized to adopt rules governing its meetings and hearings. 

See id. $5 6.42(b) (“The board may meet at any time at the call of the chairman or as provided by 

rule ofthe board.“), 41.66(a) (“The appraisal review board shall establish by rule the procedures for 

hearings it conducts as provided by Subchapters A and C of this chapter.“), 41.71 (“An appraisal 

review board by rule shall provide for hearings on protests in the evening or on a Saturday or 

Sunday.“). However, an appraisal review board rule “may not impose additional burdens, 

conditions, or restrictions in excess of or inconsistent with the statutory provisions.” Burnet County 

Appraisal Dist. v. J&f. Huber Corp., 808 S.W.2d 613,615 (Tex. App.-Austin 1991, writ denied) 

(concluding that an appraisal review board’s refusal to recognize a letter as a notice of protest 

imposed additional burdens and exceeded the board’s authority under Tax Code section 41.44(d)). 

‘(...continued) 

under Subchapter C, D, E, or H, Chapter 23, has occurred, not later than the 30th day after the date the notice of the 

determination is delivered to the property owner”), (c) (“A property owner who tiles notice of a protest authorized by 

Section 41.4 11 [for failure to provide any required notice] is entitled to a hearing and determination of the protest if he 

files the notice prior to the date the taxes on the property to which the notice applies become delinquent. An owner of 

land who files a notice ofprotest under Subsection (a)(3) is entitled to a hearing and determination of the protest without 

regard to whether the appraisal records are approved.“). 
The Honorable Jeff Wentworth - Page 3 (GA-031 1) 

II. Analvsis 

You state that certain appraisal review boards “have adopted the practice of setting protest 

hearings sua sponte for several pieces ofproperty, sometimes prior to June 1, notifying the property 

owners of the date, time and location of the hearing should they protest, and then holding a hearing 

at the specified date only if the respective owner tiles a timely protest.” Request Letter, supra note 

1, at l-2. You specifically ask “whether filing a property appraisal protest pursuant to Texas Tax 

Code section 41.44 is a condition precedent to an appraisal review board’s setting a hearing on the 

protest.” Id. at 2. 

Section 41.45(a) provides that, “[o]n the filing of a notice as required by Section 41.44, the 

appraisal review board shall schedule a hearing on the protest.” TEX. TAX CODE iiNN. 5 41.45(a) 

(Vernon 2001). The Code Construction Act provides that the term “shall” generally “imposes a 

duty.” TEX. GOV’T CODE ANN. 5 3 11.016(2) (Vernon 2005).’ According to its plain terms, section 

41.45(a), in using the term “shall,“imposes a duty on an appraisal review board. And, taken together 

with the first clause of section 41.45(a), it is plain that this duty to schedule a hearing arises only 

“[o]n the filing of a notice” of protest, See TEX. TAX CODE ANN. 5 41.45(a) (Vernon 2001). 

Furthermore, we believe that subchapter C, viewed as a whole, does not authorize an 

appraisal review board before it receives a protest notice to schedule a hearing on an anticipated 

protest and to notify the property owner about the hearing time. Subchapter C establishes a detailed 

timeline for taxpayer protest events. For example, a property owner who wishes to protest an 

appraisal determination must file4 a written notice ofprotest before June 1 or “not later than the 30th 

day after the date that notice [of appraised value]” was delivered’ to the property owner, “whichever 

is later.” See id. 5 41.44(a)(l). Section 41,45(a) requires an appraisal review board to schedule a 

hearing upon receiving a notice of protest, and section 41.46(a) requires an appraisal review board 

to deliver6 notice of a scheduled hearing not later than the 15th day before the date of the hearing. 

‘By contrast, the term “must” “creates or recognizes a condition precedent.” TEX. GOV’T CODE ANN. $i 

311.016(3) (Vemon2005). 

‘When a property owner is required by title 1 of the Tax Code “to make a payment or to file or deliver a report, 

application, statement, or other document or paper before a specified date,” the action is timely if: “(1) it is sent by 

regular first-class mail, properly addressed with postage prepaid; and (2) it bears a post office cancellationmark of a date 

earlier than the specified date and within the specified period or the property owner furnishes satisfactory proof that it 

was deposited in the mail before the specified date and within the specitied period.” TEX. TAX CODE ANN. 5 1.08 

(Vernon 2001); see also id. 5 1.06 (“If the last day for the performance of an act is a Saturday, Sunday, or legal state or 

national holiday, the act is timely if performed on the next regular business day.“). 

‘An official or agency required by title 1 of the Tax Code “to deliver a notice to a property owner may deliver 

the notice by regular first-class mail, with postage prepaid, unless this section or another provision of this title requires 

a different method of delivery or the parties agree that the notice must be delivered as provided by Section 1.085.” Id. 

5 1.07(a); see also id. 5 1.07(c) (“A notice permitted to be delivered by first-class mail by this section is presumed 

delivered when it is deposited in the mail. This presumption is rebuttable when evidence of failure to receive notice is 

provided.“). 

‘See id. $ 1.07(a). 
The Honorable Jeff Wentworth - Page 4 (GA-031 1) 

See id. $5 41.45(a), .46(a). Together, these provisions contemplate that a property owner will have, 

at a minimum, a period of approximately 30 days after receiving notice of the property’s appraised 

value to decide whether to file a notice ofprotest, followed by a period of approximately tifteen days 

to prepare for the protest hearing. See id.; see also supra notes 4-5 (noting that delivery or filing may 

be accomplished by regular first-class mail). In establishing this detailed timeline, the legislature 

has not authorized an appraisal review board to schedule a hearing on a protest before receiving the 

property owner’s notice of protest or to notify a property owner of a prescheduled hearing, and, in 

light of the detailed nature of the procedures the legislature has prescribed, we do not believe this 

authority may be implied. 

Finally, an appraisal review board rule may not impose on a property owner additional 

burdens, conditions, or restrictions in excess ofor inconsistent with statutory provisions. See Burnet 

County Appraisal Dist., 808 S.W.2d at 615. No provision in subchapter C authorizes an appraisal 

review board to schedule a hearing on a protest before receiving the property owner’s notice of 

protest or to inform a property owner who has not filed a protest notice that a hearing has been 

scheduled. Moreover, an appraisal review board that notifies a property owner of a hearing date 

before the property owner has filed a notice of protest may shorten the property owner’s statutorily 

allotted time to decide to file the protest or to prepare for the protest hearing, imposing conditions 

on the property owner that are inconsistent with subchapter C. Thus, we conclude that an appraisal 

review board lacks authority by rule to establish a procedure to preschedule hearings and to notify 

property owners about such prescheduled hearings. 
The Honorable Jeff Wentworth - Page 5 (GA-031 1) 

SUMMARY 

An appraisal review board lacks authority before a property 

owner has filed a written notice of protest to schedule a hearing on a 

property tax appraisal protest and to notify the property owner about 

the hearing time. 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee