Houston Crane Rentals, Inc. v. City of Houston
| Decision Date | 16 April 1970 |
| Docket Number | No. 15603,15603 |
| Citation | 454 S.W.2d 216 |
| Parties | HOUSTON CRANE RENTALS, INC., Appellant, v. The CITY OF HOUSTON, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Marvin Schulman, Houston, for appellant.
William A. Olson, City Atty., Jay Howell, Senior Asst. City Atty., Brian L. Reade, Asst. City Atty., Houston, for appellee.
This appeal is from a summary judgment rendered in favor of appellee, which sued for itself and the Houston Independent School District for taxes on personal property alleged to be due for the years 1966--1968, inclusive. Appellee employed the form of petition authorized by Article 7328.1, Vernon's Ann.Tex.Civ.St. The petition also sought to recover penalties, interest and attorney's fees and sought foreclosure of a lien. The petition described the property on which the taxes were due as 'machinery, equipment, and auto, 3816 Fannin.' Judgment was rendered for the taxes, interest and penalties and attorney's fees and for foreclosure of a lien. The amount of the judgment was $5,053.77. This included an attorney's fee of 10 per cent of the taxes, penalties and interest due by both the City and the School District.
Appellant assigns fourteen points of error, but they present the following basic contentions:
1. The assessment was void because the description of the property on the tax records is vague and uncertain and does not comply with the allegedly mandatory terms of Article 7204, V.A.T.S.
2. The valuation of the property was grossly excessive.
3. There was error in allowing attorney's fees for the following reasons:
(a) No fees are allowable where taxes are on personal property.
(b) The assessment was void.
(c) Appellant was not given the notice required by Article 7324, V.A.T.s.
(d) There was a fact question as to the reasonableness of the fee and in any case only a reasonable fee is allowed by Article 7332, V.A.T.S.
4. There was no proof of ownership of the property, its value or the tax rates.
5. There was no certified copy of the official tax roll and no prima facie case was made out.
6. There can be no foreclosure of a lien on defectively described property.
The position of appellee is that it is not proceeding under the general laws but is proceeding under its charter. The law creating the Houston Independent School District makes the City assessor and collector of taxes the assessor and collector for the School District. It also makes all of the City of Houston Charter relating to the assessment and collection of taxes applicable to the School District. Local & Special Laws of Texas, Regular Session of the 38th Legislature, 1923, Chapter 91, page 317 et seq., Section 35 of said act provides '* * * this Act shall be deemed a public act, and the Courts of this state shall take judicial notice of its provisions.' We are therefore required to judicially notice its provisions. Texas Law of Evidence, McCormick and Ray (Second Edition), Section 171, pages 181--182.
Appellant proceeds under the theory that the state statutes govern, while the City urges that it being a home rule city, its charter provisions control. While the state statutes authorize municipalities to use the state laws they are not required to do so. Article 1060a, V.A.T.S., is permissive and not mandatory.
We hold that the City for itself and Houston Independent School District is proceeding under its charter and not under the general laws with regard to taxation.
The provisions of the City Charter with regard to taxation apply to Houston Independent School District by virtue of the legislative act creating it. Special Laws of Texas, 38th Legislature 1923, Chapter 91, pages 317--334, Section 30. This section effectively makes the City of Houston the agency for the assessment and collection of school taxes and adopts the procedures of the City Charter in this regard. Greyhound Lines, Inc. v. Board of Equalization, 419 S.W.2d 345 (Tex.Sup.).
Where a municipality or school district does not elect to proceed under the general laws, the city charter is applicable. Eustis v. City of Henrietta, 90 Tex. 468, 39 S.W. 567; Blewett v. Richardson Independent School District, 240 S.W. 529 (Com.App.); Republic Insurance Co. v. Highland Park Independent School District, 141 Tex. 224, 171 S.W.2d 342; Smith v. City of Austin, 212 S.W.2d 947 (Tex.Civ.App.), n.w.h.; Forwood et al. v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282. While the cited cases did not involve suits by a municipal corporation for both it and a school district, they were either suits by an independent school district in which it was held the statutes governing independent school districts applied, or they were suits by a municipality in which it was held that the tax laws governing cities applied unless it was a home rule city, in which latter case the city charter was held to govern. Of course if there was a conflict with a state statute, the statute would prevail. We find no conflicts involved in this case.
The appellee's motion for summary judgment was based on its unsworn petition which described the property as above stated. The petition stated appellant was a 'Texas corporation' and service could be obtained by serving Mr. Lorraine M. George, 'President and agent for service, 3816 Fannin Street, Houston, Texas.' The petition complied with Article 7328.1 in its substantive allegations .
In further support of its motion appellee attached a certified copy of what is denominated 'Delinquent Tax Statement'. The following is a reproduction of the statement:
CITY OF HOUSTON, TEXAS
and
HOUSTON INDEPENDENT
SCHOOL DISTRICT
DELINQUENT
TAX STATEMENT
This statement when properly filled in and stamped becomes an official tax
receipt for years and amounts herein shown
EXHIBIT "A"
I hereby certify that this statement of Delinquent taxes due the City of
Houston and Houston Independent School District by the person or persons or
corporation named herein
Houston Crane Rental Inc
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on the property described herein for the years shown, was made from the tax
rolls of the City of Houston and Houston Independent School District in my
office, that this statement is true and correct as shown by said tax rolls
that no part of the taxes, penalties, interest or other charges or cost shown
have been paid
In testimony whereof, witness my hand on this the 2 day of Sept. 1969
-----------------------------------------
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Assessor and Collector of Taxes
for the City of Houston and
Houston Independent School District
SEAL:
-----------------------------------------
City Interest and Penalty .............................................. 357.97
School Interest and Penalty ............................................ 380.08
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Cost-Statement and Advertising
BURFORD C. RODGERS
ASSESSOR AND COLLECTOR, CITY OF HOUSTON
BY
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Deputy Assessor and Collector
Date Sept. 2, 1969
ACCOUNT No. 800-000-43-605/8
Received of Houston Crane Rentals Inc.
Address 3816 Fannin
Houston, Texas 77004
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Lot Block Addition-Survey
V
P Mach Eqpt. Auto
Tr
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Year City Lib. School Total
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1966 303 00 257 55 560 55
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1967 775 00 872 95 1647 95
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1968 775 00 872 78 1647 78
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1853 00 2003 28 3856 28
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City 357 97
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Sch. 380 08
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Atty Fee City 221. 10
--------------------------------------- 459 44
Atty Fee Sch. 238. 24
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Suit No. 792907
Court Cost
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TOTAL 5053 77
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It will be noted that the property is described 'Mach Eqpt auto'.
There is also an affidavit of Charles F. Coull, Deputy Tax Collector for the City, stating he is familiar with the current and delinquent tax records and supervises the preparation of the Delinquent Tax statements from the tax roll. It is then stated the attached statement is a true and correct copy of the delinquent tax records insofar as it affects appellant for delinquent ad valorem taxes for 1966--68, inclusive. The amount plus attorney's fees, penalty and interest is stated. It then further attests that the statement is impressed with the City of Houston seal and is signed by the City Tax...
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