Jones v. Hutchinson County

Decision Date29 April 1981
Docket NumberNo. 9212,9212
Citation615 S.W.2d 927
PartiesMarvin L. JONES, Appellant, v. HUTCHINSON COUNTY et al., Appellees.
CourtTexas Court of Appeals

Gibson, Ochsner & Adkins, Marvin W. Jones, Amarillo, for appellant.

Perdue, Brandon, Blair, Shiever & Fielder, Larry Brandon, Underwood, Wilson, Sutton, Berry, Stein & Johnson, Amarillo, for appellees.

REYNOLDS, Chief Justice.

Marvin L. Jones appeals from a judgment denying him injunctive relief from, and decreeing his liability for ad valorem taxes under, the method or scheme utilized by Hutchinson County in the evaluation and assessment of his agricultural land. The judgment, being invulnerable to the legal and factual attacks mounted against it, is affirmed.

Jones owns real property situated in Hutchinson County and used for agricultural purposes. It was stipulated that for the tax years 1977 and 1978, Jones met the constitutional conditions to have his land, which he designated for agricultural use, assessed for tax purposes on the consideration of only those factors relative to the agricultural use of land. Tex.Const. Art. VIII, § 1-d. Jones rendered the property at a value of $44,916, translating into a tax of $230.10 per year. The tax assessor-collector for Hutchinson County disagreed with the rendition and certified the dispute to the board of equalization. The board valued the property at $77,230, translating into a tax of $330.63 and $330.64 respectively, for 1977 and 1978.

The litigation underlying this appeal had its genesis in Jones' application to temporarily enjoin the taxing officials of Hutchinson County 1 from taxing his agricultural land under the method or scheme of evaluation and assessment utilized by them. Hutchinson County, acting by its authorized officials, counterclaimed to recover from Jones the amount of the 1977 and 1978 taxes generated by its scheme of taxation.

After a conventional bench trial on the merits, the trial court, formally finding the necessary prerequisites for Jones' liability for the taxes, rendered the judgment from which Jones brings this appeal. By its judgment, the court denied Jones all relief and decreed that Hutchinson County recover from Jones the amount of taxes assessed for the years 1977 and 1978, together with statutory penalty, interest and attorney's fees.

Initially, Jones complains the court erred in overruling his motions for partial summary judgment. We do not entertain the complaint. If the court overruled the motions, its order doing so is interlocutory and nonappealable. 2 After a party has moved unsuccessfully for summary judgment and subsequently loses in a conventional trial on the merits, the interlocutory order overruling the motion is not reviewable on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966). Thus, whether the court erred is not a matter for appellate consideration. 3 Morrow-Thomas, Inc. v. Harris, 466 S.W.2d 323, 324 (Tex.Civ.App. Eastland 1971, no writ).

Jones pleaded, as part of his cause for relief with respect to the 1978 taxes, the failure and refusal of the taxing officials of Hutchinson County (hereafter collectively referred to as Hutchinson County unless otherwise noted) to apply the provisions of Texas Revised Civil Statutes Annotated art. 7150k, 4 enacted effective 1 January 1978, but since repealed. 5 The article reads, in part, as follows:

Sec. 2. The value for ad valorem tax purposes of open-space land used to support the raising of livestock or production of farm crops or forest products shall be determined on the basis of the category of the land supporting livestock or producing farm crops or forest products using accepted income capitalization methods applied to average net to land. The value so determined shall never exceed the fair market value of the land as determined by other appraisal methods.... 6

Hutchinson County, indisputedly not honoring the provisions of article 7150k for the tax year 1978, contended that it was unconstitutional.

The trial court concluded that article 7150k expands Article VIII, Section 1-d of the Constitution of Texas, contravenes Article VIII, Section 1, thereof, and is unconstitutional. Jones assigns this conclusion as error. We perceive no error in the court's conclusion.

Article VIII, Section 1 of the Constitution of Texas 7 provides that

Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.

Article VIII, Section 1-d permits assessment of certain land at its agricultural use value. In this regard, the article states:

All land owned by natural persons which is designated for agricultural use in accordance with the provisions of this Section shall be assessed for all tax purposes on the consideration of only those factors relative to such agricultural use.

The term "value" as used in Section 1 of the article means market value, Lively v. Missouri, K. & T. Ry. Co. of Texas, 102 Tex. 545, 120 S.W. 852, 856 (1909), and the provision requires that assessed valuations be arrived at on the basis of reasonable cash market value. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 380 (1955). The adoption of Section 1-d of the article, while providing for special assessment of certain agricultural land, did not completely change the accepted methods of valuation of property. It does no more than require that valuation be based on the land's use only for agricultural purposes. King v. Real, 466 S.W.2d 1, 7 (Tex.Civ.App. San Antonio 1971, writ ref'd n. r. e.).

It is at once obvious that the language of article 7150k calls for a valuation of agricultural land on a basis other than, and in violation of, the market value basis required by the constitution. Therefore, sans a constitutional basis, article 7150k can have no effect. The Attorney General of Texas has so held. Tex. Att'y Gen.Op. No. H-1098 (1977). The attorney general's opinion, rendered in accordance with constitutional authority, has a highly persuasive value in the courts. Vick v. Pioneer Oil Co., Western Division, 569 S.W.2d 631, 633-34 (Tex.Civ.App. Amarillo 1978, no writ). Accordingly, the trial court did not err in its conclusion.

By a series of points, Jones attacks the court's findings that: (1) his land was valued and assessed pursuant to Article VIII, Section 1-d; and (2) the value of his land, pursuant to that constitutional provision, (a) was $77,230 for the tax years 1977 and 1978, and (b) was not excessive. Jones submits that the evidence conclusively established that the board of equalization failed to follow the constitutional mandate in valuing and assessing his property, and that all of the findings are against the great weight and preponderance of the evidence. The attacks are merited only if a review of the record reveals there is no evidence tending to support the court's finding of constitutional compliance, Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), and in the light of all the evidence, the findings are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

The evidential record is voluminous. There is in it, as Jones emphasizes, deposition testimony by the members of the board of equalization that the board considered Article VIII, Section 1-d, to be illegal and, as a result did not appraise the Jones property based solely on agricultural use. But there also is in the record, as Hutchinson County equally emphasizes, testimony by one or more of the board members that they were nervous or confused at the time they were deposed and, being without legal knowledge, they had difficulty in understanding the difference between constitutional provisions, statutes and bills. One or more of them gave trial testimony that they hired an expert because of their unfamiliarity with the principles of assessing land for agricultural purposes only; they attempted to set values strictly on an agricultural basis; and they fairly accurately assessed the agricultural lands at a fair market value for agricultural use only. Also before the court was testimony that the board members questioned the expert they hired as to his scheduled values of property, and that the schedule the board used in valuing and assessing Jones' property was based on both a comparable sales and a production approach in which sales were discounted to reflect only agricultural use and all other factors were excluded. The final schedule of valuation and assessment of agricultural lands adopted by the board, according to direct testimony, reflected only values for agricultural use.

The market value of Jones' property was adduced through two witnesses: C. W. Whitford produced by Jones, and J. W. McMorries, Sr., called by Hutchinson County. The qualifications of each as an expert land evaluator are not challenged.

Utilizing the income capitalization approach or production approach as the only reliable method to determine agricultural value, Whitford arrived at the market value of $44,916 for the tax years 1977 and 1978. Utilizing both the comparable sales approach and the productivity approach based upon available yield statistics, and excluding all factors except agricultural use, McMorries arrived at the market value of $77,230 for the two tax years.

By selected references to the record, each litigant does point to instances of informational challenges bearing on the accuracy of the opposing expert's valuation. Illustratively, Jones calls attention to McMorries' admission that, for Jones' land, he arbitrarily applied a reduction to an earlier schedule of properties to reach a result politically acceptable to Hutchinson County, and that the income capitalization method used by Whitford would be the most reliable if adequate data were available. In return, ...

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