Lambertz v. Robinson (HCAD) (Tex.App.- Houston [14th.] Mar. 25, 2010)(per curiam)
(
tax protest appeal and due process, administrative remedies exclusive remedy)
AFFIRMED: Per Curiam      
Before Justices Brock Yates, Seymore and Brown   
14-09-00650-CV Robert W. Lambertz v. Jim Robinson and Oliver Esch    
Appeal from 333rd District Court of Harris County
Trial Court Judge:
Joseph ("Tad") Halbach   

MEMORANDUM OPINION

       Robert Lambertz appeals from an order granting appellees’ plea to the jurisdiction.  Appellant
appealed the decision of the Harris County Appraisal Review Board concerning the appraised value of an
apartment complex he owns.  In his original petition, appellant complained that he was not permitted to
present evidence at the hearing and he suffered mistreatment by the Board.  Appellant alleged a claim
against appellees under 42 U.S.C. § 1983 asserting the Board’s mistreatment and failure to permit him the
opportunity to present evidence was a denial of due process.  Appellant alleged appellees denied his due
process rights by failing to properly train and supervise members of the Appraisal Review Board.

       Appellees filed a plea to the jurisdiction seeking dismissal of appellant’s federal and state law damage
claims.  At the hearing on appellees’ plea, appellant filed an amended original petition.  At the conclusion of
the hearing, the trial court directed appellees to file an amended plea to the jurisdiction in response to
appellant’s amended petition.  In their amended plea, appellees argued, among other things, that even if
appellant stated a cause of action for violation of his due process rights arising out of a failure to train and
supervise, the provisions of the Tax Code that provide for an appeal of the Board’s decision satisfy
appellant’s due process rights.  The trial court granted appellees’ plea and severed this cause of action
from the appeal of the appraisal award.  In twelve issues, appellant argues the trial court erred in granting
appellees’ plea and dismissing his causes of action under 42 U.S.C. § 1983.

       A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the
cause of action.  Harris County v. Cypress Forest Public Utility Dist. of Harris County, 50 S.W.3d 551, 552
(Tex. App.—Houston [14th Dist.] 2001, no pet.).  Whether the trial court has subject matter jurisdiction is a
question of law that we review de novo.  C.L. Westbrook, Jr. v. Penley, 231 S.W.3d 389, 394 (Tex. 2007).  
The plaintiff has the burden to plead facts affirmatively demonstrating the trial court has jurisdiction.  See
State v. Holland, 221 S.W.3d 639, 642–43 (Tex. 2007).  A plea to the jurisdiction is a dilatory plea intended
to defeat a cause of action without regard to the merits of the asserted claims.  Bland Indep. School Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000).

       The district courts are courts of general jurisdiction and have jurisdiction over all actions, proceedings
and remedies except in cases where exclusive, appellate, or original jurisdiction may be conferred by the
Texas Constitution or other law on some other court, tribunal, or administrative body.  Tex. Const. Art. V, §
8.  An agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the Legislature
intended for the regulatory process to be the exclusive means of remedying the problem to which the
regulation is addressed.  In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004).  In the Tax Code, the
Legislature bestowed exclusive original jurisdiction in ad valorem tax cases on the appraisal review boards
and granted the district courts appellate jurisdiction over appraisal review board orders.  See Tex. Tax
Code Ann. §§ 41.45, 42.21 (Vernon 2001); see also Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501,
502 (Tex. 2006) (holding appraisal review boards have exclusive original jurisdiction over property tax
protests).

       Here, appellant filed an appeal in the district court of the Board’s decision on the appraisal of his
property pursuant to chapter 42 of the Tax Code.  Although due process includes reasonable notice and
the right to be heard, there is no violation of due process if provision is made for a trial de novo in the
district court on the issues passed upon by the Board.  See Keggereis v. Dallas Central Appraisal Dist., 749
S.W.2d 516, 518 (Tex. App.—Dallas 1988, no writ).  When the Legislature enacted the pertinent provisions
of Tax Code, it devised a specific regulatory scheme where a property owner may informally present
evidence to an appraisal review board to protest the district’s valuation of real property. See Tex. Tax Code
Ann. § 41.45.  Further, in Chapter 42, the Legislature provided a specific appellate process for review of
board orders.  See Tex. Tax Code Ann. §§ 42.21, 42.23, 42.28.  Due process affords a right to be heard
before final assessment; it does not detail the review mechanism.  Keggereis, 749 S.W.2d at 518.  The Tax
Code meets the requirement of due process because appellant has a right to a de novo review in the
district court.  See Appraisal Review Bd. of Harris County Appraisal Dist. v. Spencer Square Ltd., 252 S.W.
3d 842, 844 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that district court does not have
jurisdiction to order an appraisal review board to conduct a new hearing because statute permits de novo
review in district court).

       It is undisputed that appellant is entitled to de novo review of the Board’s determination in the district
court.  Appellant filed that action, and is entitled to present evidence at a trial de novo in the underlying
action.  Because the Tax Code meets the requirement of due process, we conclude the trial court correctly
granted appellees’ plea to the jurisdiction.  Appellant’s twelve issues are overruled.[1]

       The judgment of the trial court is affirmed.


                                                                               PER CURIAM


Panel consists of Justices Yates, Seymore, and Brown.


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[1] On March 10, 2010, appellant filed a “Motion/Brief asking the 14th Court Justices to Cease and Desist
Their Ongoing Denial of Due Process of Law to Appellant.”  Inasmuch as appellant’s motion urges the same
arguments urged in his appeal, the motion/brief is taken with the case and denied pursuant to this opinion.