Foster v. Hubbard Independent School Dist.

• Decision Date: 30 July 1981
• Docket Number: No. 6321,6321
• Citation: 619 S.W.2d 607
• Parties: J. B. FOSTER, Trustee, et al., Appellants, v. HUBBARD INDEPENDENT SCHOOL DISTRICT, Appellee.
• Court: Texas Court of Appeals

Page 607

619 S.W.2d 607

J. B. FOSTER, Trustee, et al., Appellants, v. HUBBARD INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 6321.

Court of Civil Appeals of Texas, Waco.

July 30, 1981.

Rehearing Denied Aug. 20, 1981.

Chris Harsdorff, Donald R. Davis, Foster & Garrett, Arlington, for appellants.

Gilbert T. Bragg, McCreary, Huey & Veselka, Austin, for appellee.

HALL, Justice.

Plaintiff Hubbard Independent School District filed this suit on July 24, 1979, for the recovery of delinquent ad valorem taxes assessed by plaintiff against certain real property located in Limestone County for the years 1975, 1977, and 1978; for penalties and interest; and for foreclosure of a tax lien against the property. Defendants are J. B. Foster, Trustee, William T. Jarvis, and Jacquelyn Keitt Jarvis. They answered plaintiff's suit with general denials. Plaintiff filed its first amended original petition on May 1, 1980, to include in its action recovery of the taxes assessed for 1979. These pleadings substantially followed the form prescribed in Article 7328.1, Vernon's Tex.Civ.St., for suits of this nature.

On August 11, 1980, plaintiff filed its motion for summary judgment. The motion was heard on September 12, 1980. Judgment was rendered on October 1, 1980, granting the motion and awarding plaintiff the recoveries sought. Defendants brought this appeal. We affirm the judgment.

Plaintiff's motion for summary judgment was supported by the affidavit of Kathryn Grund, plaintiff's tax assessor and collector. The affidavit incorporated by reference attached exhibits which included statements of delinquent taxes and certified copies of plaintiff's delinquent tax roll. Viewed alone, plaintiff's pleadings and motion and supporting proof supported the summary judgment. The tax rolls constituted prima facie evidence of the lawful levy of the taxes and the amount due. Articles 7326, 7336, and 7343, Vernon's Tex.Civ.St.; Combs v. City of Port Arthur, 437 S.W.2d 400, 403-404 (Tex.Civ.App. Beaumont 1969, writ ref'd n. r. e.) See, also, Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132, 133 (Tex.1970). Defendants do not assert otherwise.

Defendants' two contentions for reversal may be summarized as follows: (1) Plaintiff failed to establish that the taxes in question were levied by ordinance as required by law, rather than by resolution; and (2) the summary judgment record raises a fact question as to whether the taxes were levied by ordinance or by resolution. These contentions are grounded upon the rule in Texas that the levy of an annual ad valorem tax by the board of trustees of an independent school district must be by ordinance rather than by a simple resolution of motion. Crystal City Ind. Sch. Dist. v. Griffith-Williams Cattle Company, 575 S.W.2d 336, 338 (Tex.Civ.App. San Antonio 1979, writ ref'd n. r. e.); Mercedes Ind. Sch. Dist. v. Nolen, 536 S.W.2d 662, 664 (Tex.Civ.App. Corpus Christi 1976, no writ); St. Louis Southwestern Ry. Co. v. Naples Ind. Sch. Dist., 30 S.W.2d 703, 705 (Tex.Civ.App. Texarkana 1930, no writ).

Defendants filed their "Response To Motion For Summary Judgment" on August 25, 1980. In its pertinent parts this pleading provided as follows:

"The affidavit of Kathryn Grund is an affidavit of an interested witness in that Kathryn Grund is Tax Assessor-Collector of Hubbard Independent School District and it is inconsistent with other evidence with the Court in that Kathryn Grund, in testimony given in her deposition in this case on the 2nd of May, 1980, testified that she did not know whether or not the annual assessments for the years 1975 and 1977 were authorized by resolution of the Hubbard Independent School District Board following proper notice.

"There are genuine issues of material facts which preclude the granting of summary judgment in favor of Plaintiff as appear from the pleadings, the deposition of Kathryn Grund and the affidavit submitted on this motion. More particularly, there is an issue of fact as to whether or not the assessments for the tax years in question were properly enacted by the Hubbard Independent School District in accordance with the law of the State of Texas."

On September 12, 1980, the day that plaintiff's motion for summary judgment was heard, defendants filed an instrument denominated in its body as a "supporting affidavit to opposition to motion for summary judgment." This instrument was executed by defendant John B. Foster, and it contained the following statements:

"There are several issues of fact to be...