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Property Tax Hearing Protest 41.45a

Section 41.45(a) – Hearing on Property Tax Protest

The appraisal review board is required to schedule a hearing when a property owner files a property tax protest. There does not appear to be any provision for either the appraisal review board or the appraisal district to initiate rescheduling a property tax protest.

This seemingly straightforward section of the property tax code has been the source of much mischief by appraisal districts and appraisal review boards.

At least one appraisal district attempted to schedule hearings prior to the filing of a property tax protest. The attorney general as since ruled appraisal review boards cannot schedule a hearing prior to a property tax protest being filed.

Appraisal districts (instead of the appraisal review boards) schedule most of the property tax protests. The appraisal districts take the position there are simply handling a “clerical task” delegated to them by the appraisal review board. Since scheduling property tax protest hearings involves professional judgment regarding the complexity of the accounts, the proportion that will be settled informally and the proportion that will not appear for the hearing, this claim seems unreasonable. Of course, the time per hearing, informal settlement rate and “no show” rate al vary with the size and complexity of the accounts.

Some appraisal districts, including Dallas Central Appraisal District, schedule 500+ accounts for one date and time. For example, they might schedule 500 accounts for June 20 at 8am. There is no clarification of which accounts will be done first, how many ARB panels will be hearing property tax appeals on June 20 and what happens to protests not resolved on June 20.

Harris County Appraisal District often over-schedules the number of property tax appeal hearings. Even though it is inconsistent with the Texas Property Tax Code, they informally reschedule the hearing for the following day. There is no provision for the appraisal district to reschedule appeal hearings. If the property owner requests a rescheduled date, the hearing is to be rescheduled to a date not less than five days and not more than 15 days from the originally scheduled date.

Appraisal districts sometimes dismiss or “no show” hearings there did not have ARB panels to process.

Appraisal review boards need to schedule and administer property tax appeal hearings, as required by the Texas Property Tax Code.

Sec. 41.45. Hearing on Protest.

(a) On the filing of a notice as 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.

(b) The property owner initiating the protest is entitled to an opportunity to appear to offer evidence or argument. The property owner may offer his evidence or argument by affidavit without personally appearing if he attests to the affidavit before an officer authorized to administer oaths and submits the affidavit to the board hearing the protest before it begins the hearing on the protest. On receipt of an affidavit, the board shall notify the chief appraiser. The chief appraiser may inspect the affidavit and is entitled to a copy on request.

(c) The chief appraiser shall appear at each protest hearing before the appraisal review board to represent the appraisal office.

(d) An appraisal review board consisting of more than three members may sit in panels of not fewer than three members to conduct protest hearings. However, the determination of a protest heard by a panel must be made by the board. If the recommendation of a panel is not accepted by the board, the board may refer the matter for rehearing to a panel composed of members who did not hear the original hearing or, if there are not at least three members who did not hear the original protest, the board may determine the protest. Before determining a protest or conducting a rehearing before a new panel or the board, the board shall deliver notice of the hearing or meeting to determine the protest in accordance with the provisions of this subchapter.

(e) The 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 if the chief appraiser consents to the postponement. The hearing may not be postponed to a date less than five or more than 15 days after the date scheduled for the original hearing unless the date and time of the hearing as postponed are agreed to by the appraisal review board, the property owner, and the chief appraiser. Postponement under this subsection does not require the delivery of additional written notice to the property owner.

(f) A property owner who has been denied a hearing to which the property owner is entitled under this chapter may bring suit against the appraisal review board by filing a petition or application in district court to compel the board to provide the hearing. If the property owner is entitled to the hearing, the court shall order the hearing to be held and may award court costs and reasonable attorney fees to the property owner.

(g) In addition to the grounds for a postponement under Subsection (e), the board shall postpone the hearing to a later date if:

(1) the owner of the property or the owner’s agent is also scheduled to appear at a hearing on a protest filed with the appraisal review board of another appraisal district;

(2) the hearing before the other appraisal review board is scheduled to occur on the same date as the hearing set by the appraisal review board from which the postponement is sought;

(3) the notice of hearing delivered to the property owner or the owner’s agent by the other appraisal review board bears an earlier postmark than the notice of hearing delivered by the board from which the postponement is sought or, if the date of the postmark is identical, the property owner or agent has not requested a postponement of the other hearing; and

(4) the property owner or the owner’s agent includes with the request for a postponement a copy of the notice of hearing delivered to the property owner or the owner’s agent by the other appraisal review board.

(h) Before the hearing on a protest or immediately after the hearing begins, the chief appraiser and the property owner or the owner’s agent shall each provide the other with a copy of any written material that the person intends to offer or submit to the appraisal review board at the hearing.

(i) To be valid, an affidavit offered under Subsection (b) must be attested to before an officer authorized to administer oaths and include:

(1) the name of the property owner initiating the protest;

(2) a description of the property that is the subject of the protest; and

(3) evidence or argument.

(j) A statement from the property owner that specifies the determination or other action of the chief appraiser, appraisal district, or appraisal review board relating to the subject property from which the property owner seeks relief constitutes sufficient argument under Subsection (i).

(k) The comptroller shall prescribe a standard form for an affidavit offered under Subsection (b). Each appraisal district shall make copies of the affidavit form available to property owners without charge.

(l) A property owner is not required to use the affidavit form prescribed by the comptroller when offering an affidavit under Subsection (b).

(m) If the protest relates to a taxable leasehold or other possessory interest in real property that is owned by this state or a political subdivision of this state, the attorney general or a representative of the state agency that owns the land, if the real property is owned by this state, or a person designated by the political subdivision that owns the real property, as applicable, is entitled to appear at the hearing and offer evidence and argument.

Amended by 1981 Tex. Laws (1st C.S.), p. 171, ch. 13, Sec. 138; amended by 1987 Tex. Laws, ch. 794, Sec. 1; amended by 1989 Tex. Laws, p. 3602, ch. 796, Sec. 37; amended by 1995 Tex. Laws., p. 4211, ch. 828, Sec. 2; amended by 1997 Tex. Laws, p. 3915, ch. 1039, Sec. 38; amended by 1999 Tex. Laws, p. 2751, ch. 416, Sec. 3; amended by 1999 Tex. Laws, p. 2891, ch. 463, Sec. 2; amended by 2001 Tex. Laws, p. 4312, ch. 1420, Sec. 21.001(99).

Cross References:
Right to protest by taxpayer, see Sec. 41.41.
Determination of protest, see Sec. 41.47.
Notice of Protest Hearing, see Sec. 41.46.
Appraisal review board record requirement, see Rule Sec. 9.803.

Appearance at appraisal review board hearing in person or by affidavit is mandatory condition precedent to filing suit. Webb County Appraisal District v. New Laredo Hotel, Inc., 792 S.W.2d 952 (Tex. 1990).

Appraisal review board members perform quasi-judicial functions so that immunity did apply in barring claims against them in the performance of their duties. Three appraisal review board panel members were sued by a tax consultant claiming negligence in a value determination for not basing the value reduction on a preponderance of the evidence presented at the protest hearing. The members asserted the affirmative defense of judicial immunity. Sledd v. Garrett, 123 S.W.3d 592 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).

An unadjudicated protest filed by a taxpayer does not bar a hearing pursuant to a motion for late correction under Section 25.25(d). Dismissal of a protest for failure to appear at a hearing is not an adjudication of the rights of the parties. The taxpayer was not entitled, however, to recover attorneys fees under Section 41.45 as a result of the denial of the hearing on the motion for late correction. Koger Equity, Inc. v. Bexar County Appraisal Review Board, 123 S.W.3d 502 (Tex. App.-San Antonio, 2003, no pet. h.).

Tax Code Section 25.25(c), subject to a five-year limitation, gives the appraisal review board the authority to change the appraisal roll on motion of the chief appraiser or a property owner. Section 25.25(b) does not contemplate the filing or presentation of any protest, or authorize the appraisal review board to review the chief appraiser’s decision. Western Athletic Clubs, Inc. v. Harris County Appraisal District and Harris County Appraisal Review Board, 56 S.W.3d 269 (Tex. App. – Amarillo 2001, no pet.).

An appraisal review board exceeds its authority by having a written procedure that a taxpayer’s fiduciary authorization must be filed prior to the filing of a protest or motion. Tarrant Appraisal Review Board v. Martinez Brothers Investments, Inc., 946 S.W.2d 914 (Tex. App.-Fort Worth 1997, no writ).

Taxpayer is entitled to judicial review of the appraisal review board order – he is not required to meet his burden of proof or present evidence at the appraisal review board hearing. When the appraisal review board issues its order, the taxpayer has exhausted his administrative remedies. National Pipe and Tube Company v. Liberty County Appraisal District, 805 S.W.2d 593 (Tex. App.-Beaumont 1991, writ denied).

These codes affect property owners across the state, in both larger and smaller cities including:

  • Lochridge
  • Hitchcock
  • Montgomery
  • Thompsons
  • Rollingwood
  • Lake Jackson
  • Algoa
  • Sugar Valley
  • Lincoln Park
  • Hudson Bend
  • Copeville
  • Blue Mound
  • Willis
  • Shavano Park
  • Cross Mountain
  • Bedford
  • Krum
  • Ferris
  • Brazoria
  • Thorndale

The Texas Property Tax Code applies to all property types in Texas including:

  • Bar
  • Regional mall
  • Manufacturing/processing
  • Veterinary clinic
  • Motel
  • Multifamily
  • Land
  • Lodging
  • Warehouse
  • Cold storage facility

O’Connor & Associates offers property tax services to all property owners of all land uses across Texas.

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