Fort Bend Independent School Dist. v. Weiss

• Decision Date: 17 August 1978
• Docket Number: No. 17152,17152
• Citation: 570 S.W.2d 241
• Parties: FORT BEND INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Walter J. WEISS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 241

570 S.W.2d 241

FORT BEND INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Walter J. WEISS, Appellee.

No. 17152.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Aug. 17, 1978.

Dexter D. Joyner, Pasadena, Charles R. Slone, Richmond, for appellants.

Byrnes, Myers, Adair, Campbell & Sinex, Jay S. Siskind, Houston, for appellee.

PEDEN, Justice.

Walter J. Weiss brought this suit for injunctive relief from the payment of certain taxes due in 1975 and 1976 against the Fort Bend Independent School District (the District), its Tax Assessor-Collector, the three members of its Board of Equalization, officially and individually, the City of Sugarland (the City) and the Tax Assessor-Collector of the City. The trial court granted Weiss's motion for summary judgment enjoining the District and the City from enforcing the increased assessment in the year 1975 and ordering them to refund the payments he made in excess of his 1974 valuation. The court severed all issues in controversy pertaining to the 1975 tax year. The District and the City say that the summary judgment evidence raised a material issue of fact as to whether Weiss paid under duress and that one who voluntarily pays an illegal tax has no claim for repayment. Appellants also contend that their motions for summary judgment should have been granted because appellee's payment of his 1975 taxes operates to estop him from disputing liability.

We agree with the appellee's position that the appeals of all appellants except the City must be dismissed because no appeal bonds were filed and the City is the only appellant excused from filing one. We affirm the trial court's judgment as to the City. It is uncontroverted that the District and the City increased Weiss's property valuations for the 1975 tax year without notifying him that they intended to do so. Weiss paid his 1975 taxes in full on December 12, 1975, and the trial court found that he paid them " under protest and duress because statutory penalty and interest would be imposed . . . beginning February 1, 1976 . . ." Defendants Fort Bend Independent School District, its Board of Equalization and Tax Assessor-Collector, the City of Sugarland and its Tax Assessor-Collector sought and obtained from the district clerk a waiver of appeal bond.

Appellee contests the jurisdiction of this court over the appeals of the defendants other than the City on the ground that only the City is excused from filing an appeal bond. Independent school districts are not relieved by Article 2276, V.T.C.S from filing appeal bonds, Wilson v. Thompson, 162 Tex. 390, 348 S.W.2d 17, 19 (1961), but are not required to file appeal bonds in suits they institute to collect delinquent taxes. Sour Lake Independent School Dist. v. Easterling, 142 S.W.2d 237, 238 (Tex.Civ.App.1940, writ ref.); Articles 7297 and 7343 V.T.C.S. This is not such a case. The District is not exempt under those statutes, and neither are its officials. The District filed a supersedeas bond on February 6, 1978. A supersedeas bond, if filed on time, may also serve as a cost bond. Jones v. Banks, 331 S.W.2d 370 (Tex.Civ.App.1960, no writ); 4 Tex.Jur.2d (Part 1) 106. In our case, the appellants' motion for new trial was overruled by operation of law on December 24, 1977, more than 30 days before the supersedeas bond was filed. An appeal bond must be filed within 30 days after the overruling of the motion for new trial. Rule 356, T.R.C.P. Only the City has preserved the right to appeal this case.

The City contends in its first point of error that there is a fact issue as to whether Weiss voluntarily paid his taxes in 1975. Its second point asserts the rule that one who voluntarily pays an illegal tax has no claim for repayment absent a specific statute. See Howell, 21 Texas Practice-Property Taxes 466, § 353 (1975).

This Court has consistently held that the voluntary payment of an illegal tax will not support a claim for repayment; but that a payment under duress, which may be either express or implied, is not a voluntary payment and may be recovered.

State v. Conn. Gen. Life Ins. Co., 382 S.W.2d 745, 746-47 (Tex.1964). The issue in our case is whether the taxpayer was acting under duress when he paid his 1975 tax.

Weiss stated in an affidavit that he did not voluntarily pay his 1975-1976 taxes but that when defendants refused his tender of the amount he calculated to be due, he paid the taxes as assessed to escape penalty and interest charges and to request relief from the courts. The only testimony in the record controverting this statement is that of two of the defendants in their answers to interrogatories propounded by Weiss. Answers to interrogatories are admissable only against the parties...