A determination that is wrongly decided does not render that decision outside an official’s authority for ultra vires purposes says 13th Court of Appeals.

Cameron County Appraisal District and Frutoso Gomez v. Thora O. Rourk, Et Al. 13-15-00026-CV (Tex. App. – Corpus Christi, January 28, 2016).

This is primarily a Uniform Declaratory Judgment Act (“UDJA”)/Ultra Vires case but with the underlying claim asserting a tax on travel trailers and RVs is illegal.

Rourke filed a UDJA suit to hold the Appraisal District’s tax on travel trailers and RVs is an unauthorized tax under the Texas Constitution and Texas Tax Code §11.14.  They sued the Appraisal District and the Chief Appraiser, Frutoso Gomez. In a prior opinion (Rourke II), the court held certain travel trailers and RVs were exempt from taxation, but remanded on the issue of attorney’s fees. In another opinion, Rourke III, the Court of Appeals held the District retained immunity from attorney’s fees. However, the 13th Court of Appeals allowed Rourke to amend to sue an individual official. On remand, Rourk amended the pleading to add Frutoso Gomez. The trial court held Gomez acted in an ultra vires manner in assessing the tax. The trial court then awarded attorney’s fees to Rourke. The District and Gomez appealed.

An ultra vires suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer either acted without legal authority or failed to perform a purely ministerial act. An agency determination that is wrongly decided does not render that decision outside the agency’s authority. Further, an incorrect agency determination rendered pursuant to the agency’s authority is not a determination made outside that authority. The Court of Appeals noted that in Rourk III the plaintiffs “are not challenging the validity of a provision of the tax code; instead, they are challenging [the Appraisal District’s] actions under it[.]” “Likewise, we conclude that the substance of Rourk’s amended allegations are complaints about Gomez’s interpretation of the tax code, not that he acted illegally or without controlling authority.” Such is not an act exceeding authority. Applying the tax code’s exemptions requires discretion. The tax appraiser must determine whether the property is a manufactured home, a mobile home, or a recreational vehicle based on the facts at hand. As a result, it is not a ministerial act. As a result, there is no waiver of immunity and the plea should have been granted.

The concurring and dissenting opinion divided the issues up into three groups of Plaintiffs. The concurring portion agreed the groups who did not have exempt property or those who were added later were not entitled to relief. However, the dissent believes the Plaintiffs who had exempt property and were parties in Rourke II, should be entitled to attorney’s fees under the ultra vires exception.

If you would like to read this opinion, click here. Panel: Chief Justice Valdez, Justice Rodriguez and Justice Perkes. Memorandum Opinion by Justice Perkes.  Concurring and Dissenting Memorandum Opinion by Chief Justice Valdez found here.    The attorney listed for the County Defendants is Judith A. Hargrove.  The attorney listed for Rourk is Ruben R. Pena.