RRB Land Investments Ltd v. HCAD (pdf) (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(per
curiam) (
only owner has standing to challenge property tax appraisal, application of Texas Rule of Civil
Procedure 28 re substitution of true name for common name, dba)   
AFFIRMED: Per Curiam   
Before Justices Brock Yates, Seymore and Brown    
14-09-00317-CV  RRB Land Investments Ltd., aka Cypresswood Venture I Ltd and Cypresswood Venture I Ltd,
as the Property Owners v.
Harris County Appraisal District    
Appeal from 269th District Court of Harris County  

MEMORANDUM OPINION

     Appellants,RRB Land Investments Ltd. (“RRB”) and Cypresswood Venture I, Ltd. appeal from the trial court’s
order granting Harris County Appraisal District’s (“HCAD”)[1] plea to the jurisdiction.  We affirm.

I.  Factual and Procedural Background

     The property at issue is located at 6401 Cypresswood Dr. in Spring and is known as the Cypresswood
Business Park.  Despite the fact that Cypresswood sold the property on April 24, 2006 to RRB, Cypresswood
filed a notice of protest with HCAD’s Appraisal Review Board protesting the 2007 tax assessment for the
property.  On October 11, 2007, the chairman of the Appraisal Review Board signed an order determining
protest ordering a reduction in the appraised value of the property.

     On December 6, 2007, Cypresswood filed an original petition in the trial court challenging the Review Board’s
determination.  On January 6, 2009, HCAD filed a plea to the jurisdiction arguing that the trial court lacked
subject matter jurisdiction because Cypresswood was not the owner of the property as of January 1, 2007, and
only the property owner had standing to appeal from the Review Board’s order.  HCAD attached to its plea a
copy of the warranty deed in which Cypresswood sold the land to RRB.  On January 27, 2009, Cypresswood
amended its petition naming RRB as a plaintiff in the suit for judicial review of the Board’s order.  Cypresswood
and RRB responded to HCAD’s plea to the jurisdiction, arguing that the procedural defects had been corrected
by applying section 42.21(e)(1) of the Texas Tax Code to correct or change the name of the plaintiffs.   
Appellants further argued that RRB was an assumed name of Cypresswood and that Texas Rule of Civil
Procedure 28 permits it to amend a petition to include RRB as the true name of the property owner.

     On March 11, 2009, the trial court granted HCAD’s plea to the jurisdiction and dismissed the suit.  In a single
issue, appellants contend that the trial court erred in granting the plea to the jurisdiction because RRB and
Cypresswood had standing to file the suit pursuant to section 42.21 of the Tax Code and because Rule 28
permits substitution of the true name of the plaintiff.

II. Standard of Review

Standing is a component of subject-matter jurisdiction that cannot be waived.  Tex. Ass’n of Bus. v. Tex. Air
Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993).  If a party does not have standing, a trial court has no subject-
matter jurisdiction to hear the case.  Id. at 444–45.  A trial court’s jurisdiction to hear the subject matter of a
dispute may be challenged by filing a plea to the jurisdiction.  See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000).

A defendant may prevail on a plea to the jurisdiction by demonstrating that, even if all the plaintiff’s pleaded
allegations are true, an incurable jurisdictional defect remains on the face of the pleadings that deprives the trial
court of subject-matter jurisdiction.  Harris County Appraisal Dist. v. O’Connor & Assocs., 267 S.W.3d 413, 416
(Tex. App.—Houston [14th Dist.] 2008, no pet.).  In determining a plea to the jurisdiction, a trial court may
consider the pleadings and any evidence pertinent to the jurisdictional inquiry.  Bland, 34 S.W.3d at 554–55.

We review a trial court’s ruling on a plea to the jurisdiction de novo.  See Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004).  In our review, we construe the pleadings liberally in favor of the
pleader and look to the pleader’s intent to determine whether the facts alleged affirmatively demonstrate the trial
court’s jurisdiction to hear the cause.  See id.

III. Analysis

     In a single issue, appellants assert that the trial court erred in granting the plea to the jurisdiction.  
Specifically, appellants contend that Cypresswood timely amended its petition to include RRB as a party pursuant
to section 42.21(e)(1) of the Texas Tax Code and Texas Rule of Civil Procedure 28.

A.        Standing

This court recently addressed both of these arguments in BACM 2002 PB2 Westpark Dr LP v. Harris County
Appraisal District, No. 14-08-00493-CV, 2009 WL 2145922 (Tex. App.—Houston [14th Dist.] June 21, 2009, no
pet.) (mem. op.), and we reach the same outcome here in holding RRB lacked standing.

As a general rule, only a property owner may protest tax liability before an appraisal-review board and seek
judicial review in court.  Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 909 (Tex. App.—
Houston [1st Dist.] 2000, no pet.)  Section 42.21(a) of the Property Tax Code requires a party who appeals as
provided by Chapter 42 of the Property Tax Code to timely file a petition for review with the district court.  Failure
to timely file a petition bars any appeal under the chapter.  Tex. Tax Code Ann. § 42.21(a) (Vernon Supp. 2009).  
Section 42.01 of the Tax Code specifies that a property owner is entitled to appeal an order of the appraisal
review board determining a protest by the property owner as provided by sections 41.41 et seq. of the Property
Tax Code.  Id. § 42.01(1)(A).  Alternatively, a property owner may designate a lessee or an agent to act on the
property owner’s behalf for any purpose under the Property Tax Code, including filing a tax protest.  Id. §§ 1.111
(Vernon 2008) (authorizing a designated lessee or agent to act for a property owner), 41.413(b) (Vernon 2008)
(authorizing a lessee to protest for the property owner in certain circumstances).

Therefore, to qualify as a “party who appeals” by seeking judicial review of an appraisal-review board’s tax
determination under section 42.21(a), Cypresswood had to be an owner of the property, a designated agent of
the owner, or the authorized lessee of the property under the circumstances stated in section 41.413.  A party
who does not meet one of the above criteria would lack standing under the Property Tax Code.  BACM, 2009 WL
2145922, at *3.  If the litigant lacks standing, the trial court is deprived of subject-matter jurisdiction to consider a
suit for judicial review based on an ad valorem tax protest.  Id.

Here, Cypresswood did not own the property as of January 1, 2007.  Cypresswood did not claim rights to protest
under the Property Tax Code as either a lessee or an agent.  Therefore, Cypresswood lacked standing to pursue
judicial review as a “party who appeals” under section 42.21(a).  The record does not reflect that RRB pursued
its right of protest as the actual property owner.  According to the record, RRB was not named as a party until
January 27, 2009 when Cypresswood filed a first amended original petition.  Therefore, the Review Board had
not determined a protest by the actual property owner, RRB, upon which RRB could premise a right to appeal as
the property owner.  See Tex. Tax Code Ann. §§ 42.01(1)(A), 42.21(a); BACM, 2009 WL 2145922, at *4.

B.        Application of Section 42.21(e)(1)

Appellants also contend the trial court had jurisdiction because section 42.21(e)(1) allows amendment of a timely
filed petition “to correct or change the name of a party.”  See Tex. Tax Code Ann. § 42.21(e)(1); BACM, 2009 WL
2145922, at *5.  We disagree, for the same reasons announced in BACM.

Section 42.21(e) specifies that only petitions that are “timely filed under Subsection (a) or amended under
Subsection (c)” may later be amended to correct or change a party’s name.[2]  See Tex. Tax Code Ann.  42.21(e)
(1).  To seek judicial review under Subsection (a), the plaintiff must be a “party who appeals as provided by
[Chapter 42],” meaning the plaintiff must be the property owner, a properly designated agent, or a lessee.  Id. §
42.21(a).

Cypresswood timely filed a petition for review; however, Cypresswood did not own the property on January 1,
2007, and thus lacked standing to seek judicial review.  See BACM, 2009 WL 2145922, at *5.  Appellants’
argument that subsection 42.21(e)(1) operates to allow Cypresswood to correct or change the party’s name
presupposes that RRB was a proper party entitled to seek judicial review.  Id.  However, RRB did not pursue its
right of protest as the property owner.  When no proper party timely appealed to the district court, the trial court
did not acquire subject-matter jurisdiction, and the Review Board’s determination became final.  See id.

C.        Application of Texas Rule of Civil Procedure 28    

Lastly, appellants argue the trial court had jurisdiction to hear the case because Texas Rule of Civil Procedure
28, which governs suits by or against entities doing business under an assumed name, permits substitution of
RRB as Cypresswood’s “true name.”  
Rule 28 states:

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed
name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or
against it a substantive right, but on a motion by any party or on the court’s own motion the true name may be
substituted.

Tex. R. Civ. P. 28.  Appellants contend the name Cypresswood is the “common name” for the “true name” RRB.

In this case, Cypresswood attempted to substitute its “true name” RRB by filing an amended original petition and
arguing Rule 28 permitted the substitution.  For a party to take advantage of Rule 28 and sue in its common
name, there must be a showing that the named entity is in fact doing business under that common name.  Seidler
v. Morgan, 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009, pet. denied).  Whether an entity does business
under an assumed or common name is a question of fact for the trial court.  Sixth RMA Partners, L.P. a/k/a RMA
Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).  

Appellants did not make a showing that RRB was in fact doing business under the common name Cypresswood,
nor was there evidence that the entities used the name Cypresswood as an assumed or common name to
warrant application of Rule 28.  Compare Sixth RMA Partners, 111 S.W.3d at 52 (concluding evidence supported
assumed-name finding when Sixth RMA presented evidence that RMA Partners, L.P. was used as trade name for
various RMA partnerships, RMA letterhead was used, and payments on notes were made to RMA) and Chilkewitz
v. Hyson, 22 S.W.3d 825, 829 (Tex. 1999) (stating some evidence supported application of Rule 28 when
stationery and phone-number listing used by one-person professional association contained name of individual).
[3]  Accordingly, we overrule appellants’ issue on appeal.

The trial court’s judgment is affirmed.

                                                                             PER CURIAM

Panel consists of Justices Yates, Seymore, and Brown.

[1] RRB’s pleadings and notice of appeal identify both HCAD and the Harris County Appraisal Review Board as
defendants.  Because the record does not indicate that the Appraisal Review Board was served or appeared in
the suit and it was not a necessary party, we consider HCAD the only appellee properly before this court.  See
BACM 2002 PB2 Westpark Dr. LP v. Harris County Appraisal Dist., 14-08-00493-CV, 2009 WL 2145922 at 1, n. 1
(Tex. App.—Houston [14th Dist.] June 21, 2009, no pet.) (mem. op.).

[2] Appellants do not argue that Subsection (c) applies to this case.

[3] Although appellants cite HCAD’s records that reflect Cypresswood as the property owner even after the
property sale, HCAD’s records alone are not sufficient to establish RRB operated its business under the common
name of Cypresswood.  See
KM-Timbercreek, LLC v. Harris County Appraisal Dist., — S.W.3d —, No. 01-08-
00689-CV, 2009 WL 3321332, at *7 (Tex. App.—Houston [1st Dist.] Oct. 15, 2009, no pet.) (stating only
Timbercreek could establish whether it operated its business under an assumed or common name).  There is no
evidence that RRB held itself out as Cypresswood or requested HCAD refer to it as Cypresswood in its records.  
Id.