This morning, the Third Court of Appeals, sitting en banc on a Motion for Rehearing, issued an opinion holding that certain language in the Texas tax code which uses the word “may” is in fact mandatory, such that a successful Texas property tax protestant has an entitlement to his, her or its attorneys’ fees in making the protest. The opinion, which replaces an older opinion blogged about quite briefly here, addresses a split amongst Texas courts of appeals on the issue. Justice Patterson dissented, writing that the en banc majority “eviscerated” a distinction which ought to have given the trial court discretion on the issue.
We don’t do tax law, and we would not presume to blog about it, but the opinion is an important one in that it addresses a common question of statutory construction. The opinion discusses the general rule in Texas, which is that statutory language that says “a court may award fees” means that the court has discretion to award them or not, but language that says “a prevailing party may recover fees” means that the party is entitled to fees and thus the court is without discretion on the matter. See Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998). The section of the tax code at issue here reads somewhere in between, according to the Court: “A property owner who prevails in an appeal to the court under Section 42.25 or 42.26 may be awarded reasonable attorney’s fees.” Tex. Tax Code §42.29. The Court engages in a detailed discussion of the Legislature’s use of the passive voice (which is probably better left for someone like Wayne Schiess to discuss) and ultimately decides that in the Third Court of Appeals, anyway, the attorneys’ fee award is mandatory.
It is our rank speculation, based on anecdotal evidence (i.e. complaints from friends, personal experience and an article in the Austin-American Statesman), that the Travis Central Appraisal District, the defendant here, has recently gotten much more aggressive in its appraisals, at least in the personal property area (my own home’s appraisal went up roughly one-third this spring). Given that speculation, this issue may be one to watch.
Aaron Rents v. Travis Central Appraisal District, ___ S.W.3d ___ (Tex. App. – Austin, 2006) (en banc) (Cause No. 03-05-00171-CV).