Cockerell v. Taylor County

• Decision Date: 29 August 1991
• Docket Number: No. 11-90-241-CV,11-90-241-CV
• Citation: 814 S.W.2d 892
• Parties: Carroll R. COCKERELL, et al., Appellants, v. TAYLOR COUNTY and Jim Ned C.I.S.D., Appellees.
• Court: Texas Court of Appeals

Page 892

814 S.W.2d 892

Carroll R. COCKERELL, et al., Appellants, v. TAYLOR COUNTY and Jim Ned C.I.S.D., Appellees.

No. 11-90-241-CV.

Court of Appeals of Texas Eastland.

Aug. 29, 1991.

Rehearing Denied Sept. 26, 1991.

Edward E. Cockerell, Jack Yates, Abilene, for appellants.

Gary L. Hacker, Whitten, Hacker, Hagin, Anderson & Rucker, P.C., Abilene, for appellees.

OPINION

ARNOT, Justice.

The taxpayers, Carroll R. Cockerell; Bank de Investire, Inc., for itself and as the successor of William A. Henley, Trustee; Anbore, Inc., a wholly owned subsidiary of the successor of MBank Abilene, N.A.; and the Oaks Development Company, sued the taxing units, Taylor County and Jim Ned Consolidated Independent School District, for the refund of the overpayment of taxes. The taxpayers appeal the trial court's dismissal of their cause of action for want of subject matter jurisdiction. We modify and affirm.

The taxpayers own property in the Moses Evans Survey 111 located in Taylor County. Although this survey was patented in 1853 for 640 acres, the actual Letters Patent described 1158.2 acres, thereby creating an excess acreage of 518.2 acres. According to local legend, the discrepancy occurred when the surveyors were chased away by hostile Indians. The taxpayers received deeds of acquittance from the State of Texas in 1987. Because the excess acreage amounted to 44.7376 percent of the total acreage in the survey, the taxpayers filed a suit for recovery of overpayment of taxes for the years 1985, 1986, and 1987 based upon TEX.TAX CODE ANN. § 31.11 (Vernon 1982). The taxing units filed a plea to the jurisdiction of the court, alleging that judicial review of a denial of refund under Section 31.11 is controlled by TEX.TAX CODE ANN. § 42.01 et seq. (Vernon 1982); that taxpayers have failed to follow these provisions; and, therefore, that taxpayers cannot recover. Based upon this plea, the trial court dismissed the taxpayers' cause of action.

By stipulation, the taxpayers and the taxing units agreed that the cause of action is "based on the relief" as provided in Section 31.11. ¹ The taxpayers have predicated their suit upon the premise that they have erroneously paid taxes on 518.2 "excess" acres owned by the State. However, "excess" lands ² are treated as "sold" lands because the State has divested itself of title to these lands. Even though the State can still collect payment for the extra lands in the survey, the extra lands are owned by the vendee in the sense that anyone owns lands that have not yet been fully paid for. Foster v. Duval County Ranch Co., 260 S.W.2d 103 (Tex.Civ.App.--San Antonio 1953, writ ref'd n.r.e.); Winter v. Cook, 207 S.W.2d 145 (Tex.Civ.App.--Amarillo 1947, writ ref'd n.r.e.).

In three points of error, the taxpayers complain that the trial court erred in dismissing their cause of action.

The taxing units argue that a judicial review of a denial of a refund under Section 31.11 must come under the provisions of Sections 42.01 et seq. We disagree. The Tax Code makes no provision for judicial review of the auditor's determination that a payment was or was not erroneous or excessive. By definition Section 31.11 applies to overpayments or erroneous payments, while Sections 42.01 et seq. applies to judicial review of disputed appraisals or assessments by a review board. Section 31.11 applies in cases where the tax is correctly assessed but the taxpayer errs in paying it. First Bank of Deer Park v. Deer Park Independent School District, 770 S.W.2d 849 (Tex.App.--Texarkana 1989, writ den'd); Texas National Bank of Baytown v. Harris County, 765 S.W.2d 823 (Tex.App.--Houston [14th Dist.] 1988, writ den'd). In contrast, Sections 42.01 et seq. applies in cases where the amount of the assessment is in issue.

Further, Section 31.11(b) provides that the taxpayer shall have three years to make an application for a refund from the taxing unit. Section 31.11 does not say when a suit must be brought to seek judicial review of the taxing unit's refusal to make a refund. In contrast, Sections 42.01 et seq. provides strict time limits within which the taxpayer must act or lose the right to seek judicial review of the...