Grayson County Officials v. Dennard

• Decision Date: 05 October 1978
• Docket Number: No. 5228,5228
• Parties: GRAYSON COUNTY OFFICIALS, Judge Les Tribble et al., Appellants, v. Billy DENNARD et al., Appellees.
• Court: Texas Court of Appeals

Page 179

574 S.W.2d 179

GRAYSON COUNTY OFFICIALS, Judge Les Tribble et al., Appellants, v. Billy DENNARD et al., Appellees.

No. 5228.

Court of Civil Appeals of Texas, Eastland.

Oct. 5, 1978.

Rehearing Denied Nov. 16, 1978.

Elvin E. Tackett, Bedford, Roger D. Sanders, Sherman, for appellants.

William B. Sullivant, Gainesville, Adrian M. Overstreet, Jr., Austin, for appellees.

DICKENSON, Justice.

Billy Dennard, O. M. Quattlebaum, James A. Clement, Patsy R. Clement, Charles B. Britt and Fred Watson (plaintiffs) sued the County Judge, County Commissioners and Tax Assessor-Collector of Grayson County (Grayson County Officials) on May 8, 1978, to permanently enjoin them from certifying the county tax rolls for 1978 until all taxable property was placed on the ad valorem tax rolls. Plaintiffs owned real property in the county, and they claimed that they would be harmed by having to pay more than their fair share of the ad valorem tax burden of Grayson County because of the failure to list all personal property subject to taxation on the tax rolls. This suit was filed in the 59th District Court of Grayson County.

The Grayson County Officials filed a plea to the jurisdiction and to abate this case because of an earlier lawsuit which was filed against them (or their predecessors in office) by James R. Newman on August 17, 1970. Newman's petition alleged that the real property was taxed at a lower percentage of its market value than personal property and that the only remedy "for this deplorable situation" would be a complete, fair and uniform reassessment of the values of all property in the county. Newman's suit was filed in the 15th District Court of Grayson County. Judge Dee Brown Walker of Dallas was assigned to hear the case, and he signed an agreed judgment on November 17, 1972, which attempted to retain continuing jurisdiction of this cause "for whatever period of time is necessary to effectuate the necessary revaluation and reappraisal of all taxable property in Grayson County". Judge Dee Brown Walker was still supervising the reappraisal and revaluation in 1978 when the second lawsuit was filed.

Judge W. C. Boyd of Denton was assigned to hear the case which was pending in the 59th District Court. He overruled the jurisdictional plea and refused to abate the second lawsuit. He also refused to consolidate the second lawsuit with the case which had been filed in the 15th District Court. At the conclusion of a non jury trial, Judge W. C. Boyd made findings of fact which include the following: household furniture is not placed on the tax roll; automobiles more than six years old are not placed on the tax roll; money is not placed on the tax roll; even if an individual renders stocks and bonds, they are not placed on the tax roll; it has been the policy of the tax collector's office through renditions for the 1978 tax year to inform taxpayers not to render their household goods, money, stocks and bonds, as the same are not included in the tax rolls of Grayson County; no remedial contact has been made with any person whom the tax officer told not to render personal property; the taxes of the plaintiffs would be substantially lower if all taxable property were placed on the tax roll; and the omission of taxable property from the rolls is the result of a deliberate, intentional and continuing plan.

Judge Boyd's conclusions of law include the following; the judgment in the Newman case became final in 1972; the 59th District Court has jurisdiction of the subject matter in this case and is the only court with such jurisdiction; the constitution and statutes of Texas require that money, stocks and bonds (except in Texas corporations) are taxable in Texas; the tax assessor in Grayson County failed to properly place all taxable property on the tax roll; the tax plan in this case, as formulated by the tax assessor-collector of Grayson County, is fundamentally erroneous in that it excludes intentionally and deliberately certain classes of taxable property; plaintiffs have been substantially harmed by the adoption of the tax plan in Grayson County; and plaintiffs have no adequate remedy at law.

Judgment was rendered by Judge W. C. Boyd on July 6, 1978, which decreed that the Grayson County Officials would be enjoined as follows:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendants be and they are hereby perpetually enjoined individually and collectively from certifying the tax rolls of Grayson County until all classes of taxable property within Grayson County, and without exempting any class of taxable property (not exempted by the constitution and statutes of Texas) are placed thereon; IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant, Tax Assessor-Collector, of Grayson County be and she is hereby perpetually enjoined to reconstitute the tax rolls of Grayson County and to include thereon all property in Grayson County, real, personal, or mixed except as may be expressly exempted by the constitution and statutes of the State of Texas . . ."

The Grayson County Officials filed a supersedeas bond and perfected their appeal. The judgment of the trial court will be modified and affirmed.

The first point of error is that Judge W. C. Boyd erred in holding that the 59th District Court had jurisdiction, in refusing to abate, and in refusing to consolidate this cause with the Newman case which had been filed in the 15th District Court in 1970. This point of error is overruled. The agreed judgment in the Newman case was entered by Judge Dee Brown Walker on November 17, 1972, and it became final 30 days later. We hold that the controversies between those parties were settled by that judgment, and it will be deemed a final judgment. This is true even though further proceedings were required to carry the judgment into full effect. Such proceedings may be expressly provided for in the face of a judgment without affecting its finality, provided they are merely incidental to its proper execution. Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944); Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975); Jamison v. City of Pearland, 520 S.W.2d 445 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ); Moody v. State, 520 S.W.2d 452 (Tex.Civ.App. Austin 1975, no writ); Starkey v. Holoye, 536 S.W.2d 438 (Tex.Civ.App. Houston (14th Dist.) 1976, writ ref'd n. r. e.); and White v. Parr, 538 S.W.2d 234 (Tex.Civ.App. San Antonio 1976, writ ref. n. r. e.).

Judge Dee Brown Walker's post-judgment supervision of the Grayson County revaluation and reappraisement is not before us, and we will say only that the plaintiffs' cause of action in this case was not subject to abatement or consolidation with those proceedings.

The second point of error is that Judge W. C. Boyd erred in rendering the order which perpetually enjoined the Grayson County Officials from certifying the tax roll for 1978 until all classes of taxable property are placed thereon and in perpetually enjoining the Tax Assessor-Collector to reconstitute the tax rolls to include all taxable property in the county. The injunction is overly broad. A less sweeping remedy will be sufficient to protect the rights of the named plaintiffs in this lawsuit.

The remedies which are available to protect taxpayers who complain of unfair ad valorem taxation, and the burden of proof required of them, depend upon when the taxpayers file their suit. If the suit is filed before the tax rolls are certified, taxpayers have a lower burden of proof. They also have the possibility of securing an injunction against a defective tax system. If the taxpayers wait until the tax roll is certified, they face a higher burden of proof and are not entitled to an injunction against the tax system. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954) recognized the right to relief from an arbitrary plan of taxation; however, Chief Justice Calvert points out on page 416 of that opinion:

". . . if the taxpayer fails to avail himself of the remedies of mandamus and injunction to prevent a taxing authority from putting such a plan into effect, as those remedies were used in such cases as City of Houston v. Baker, Tex.Civ.App., 178 S.W. 820, writ refused, and City of Wichita Falls v. Cooper, Tex.Civ.App., 170 S.W.2d 777, writ refused, his right to relief is limited. . . . Once such a plan is put into effect the litigant may defeat the recovery of taxes only to the extent that they are excessive and he must assume the burden of proving excessiveness. . . ."

City of Houston v. Baker, 178 S.W. 820 (Tex.Civ.App. Galveston 1915, writ ref'd) was a precertification attack by the taxpayers. The court found that the City intentionally omitted household goods, money, stocks, bonds, mortgages, notes, credits and other similar personal property from the tax rolls. The City taxed land at 70% Of its full value, improvements at 25% Of full value, and merchandise at 50% Of full value. The City's tax plan violated the provision of the constitution which demands uniformity of taxation and which requires that all property be taxed in proportion to its value. The evidence showed that a large class of individuals would be directly injured by the City's illegal tax plan. The court held that the action was not brought prematurely. The court recognized on page 825 of its opinion that after the valuations were made and completed:

". . . then a case will have arisen where an extraordinary mandatory injunction will be required, commanding every valuation of property in the city to be remade, the effect of which will be to bring about a state of affairs so complex and difficult that the courts might be inclined to let the illegal acts stand, giving the taxpayers the right to pay taxes on the lowest valuation adopted . . . ."

We note that the City of Houston expressly admitted that its tax plan was illegal, that it was deliberately adopted, and that it would be adhered to unless forbidden...