text:
    In re Sara Renee ESTES, Relator.
    No. 07-04-0284-CV.
    Court of Appeals of Texas, Amarillo.
    July 20, 2004.

      William E. Kelly III, Canyon, for Relator.
    Edward Lee Self, Plainview, Respondent pro se.
    Paul Holloway, Law Office of Paul Holloway, Plainview, for Respondent.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

PHIL JOHNSON, Chief Justice.

Relator Sara Renee Estes seeks issuance of a writ of mandamus directing the trial court to dismiss the claim of her husband and real party in interest Jerry Devin Estes for a child custody order regarding the children of the marriage. Sara asserts that the trial court had neither subject matter jurisdiction over the child custody matter under Family Code section 152.201 nor temporary emergency jurisdiction under Family Code section 152.204. We conditionally grant the writ in part.

BACKGROUND

Relator Sara Estes and real party in interest Jerry Estes were married in Nebraska in August, 1999, and moved to Texas in February, 2000. They had two children during the marriage. On or shortly prior to May 1, 2003, Sara took the children and traveled to Nebraska, where her parents lived. Sara and the children stayed in Nebraska after they left Texas.

On February 11, 2004, Jerry filed a divorce action in the 242nd District Court of Hale County, Texas, where he lived. As relates to this proceeding, Jerry sought temporary and permanent orders concerning conservatorship of the children.

The trial court entered a temporary restraining order and set a hearing on temporary orders for February 23, 2004. Sara was served, but remained in Nebraska with the children and did not appear at the temporary orders hearing.

The trial court entered temporary orders which (1) contained findings that the residence of the children was with Sara, (2) appointed Sara and Jerry as temporary joint managing conservators of the children, and (3) awarded Jerry the exclusive right to establish the primary residence of the children in Hale County. Jerry took a copy of the temporary orders to Nebraska. Confronted with the court order, Sara yielded possession of the children. Jerry and the children returned to Texas on February 26, 2004, where he and the children remained.

On March 26, 2004, Sara filed a special appearance and plea to the jurisdiction in the Texas proceeding. She asserted that she and the children were domiciled in Nebraska and, citing section 152.201 of the Texas Family Code, urged that Texas lacked jurisdiction because Texas was not the children’s home state at the time of or within six months of the commencement of the action. Jerry responded by filing an amended petition on April 19th in which he maintained that Texas had jurisdiction under section 152.201, had temporary emergency jurisdiction under section 152.204, and the children were now present in Texas. On April 20, 2004, Sara filed an action for separation in the District Court of Platte County, Nebraska, seeking court-ordered separation, property division and custody of the children.

On April 26, the Texas court heard Sara’s special appearance and plea to the jurisdiction. Prior to the hearing, the trial judge contacted, by email, the Nebraska judge who was presiding over the Nebraska proceeding. See section 152.110. Copies of communications between the judges were made part of the hearing record.

The trial court overruled Sara’s special appearance, denied her plea to the jurisdiction based on section 152.201, continued the temporary orders of February 26th in effect, declined to rule on Jerry’s assertion of section 152.204 temporary emergency jurisdiction, and temporarily abated the proceedings to allow the Nebraska court to consider the child custody claim in Sara’s Nebraska proceeding.

By one issue, Sara challenges the trial court’s order denying her plea to its subject matter jurisdiction over child custody issues. Jerry responds by asserting that the children “lived” in Texas throughout them stay in Nebraska because their absence from Texas was only a temporary absence in the nature of a vacation. He also urges that the trial court had temporary emergency jurisdiction once the children returned to Texas in February.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). Writ of mandamus is an appropriate means to require a trial court to vacate a void order arising out of an erroneous assertion of jurisdiction in regard to child custody determinations. See Geary v. Peavy, 878 S.W.2d 602, 603-04 (Tex.1994); In re McCormick, 87 S.W.3d 746, 748-49 (Tex.App.-Amarillo, orig. proceeding).

Subject matter jurisdiction is never presumed. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The existence of a court’s subject matter jurisdiction over a case or controversy is a legal question. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Accordingly, the standard of review is de novo. Id. In examining jurisdiction vested in Texas courts by a statute such as the Family Code, the most important rule is to ascertain and give effect to the Legislature’s intent. See State v. Hodges, 92 S.W.3d 489, 494 (Tex.2002). The Legislature’s intent is determined by examining the language used in the statute within the context of the entire statute. See id.

Because a court deciding a plea to the jurisdiction is not required to look solely to the pleadings, but may consider evidence and must do so when necessary to resolve the jurisdictional issue, see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000), appellate review is of the pleadings and evidence relevant to the jurisdictional issue. See Texas Dep’t. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). Whether undisputed evidence of jurisdictional facts establishes a trial court’s jurisdiction is a question of law. Texas Dep’t. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction may not be granted until the fact issue is resolved by the fact finder. See id.

When determination of a trial court’s subject matter jurisdiction requires examination of evidence, then timing of the determination of jurisdiction, and thus of the evidence available to be considered, generally lies within the trial court’s discretion. That is, the trial court exercises its discretion in deciding whether the jurisdiction determination should be made at a preliminary hearing or await a fuller development of the case. Id.; Blue, 34 S.W.3d at 554; In re Jane Doe, 19 S.W.3d 249, 253 (Tex.2000) (abuse of discretion standard is typically applied to procedural or other trial management determinations).

In this instance, the trial court held both a temporary orders hearing and a hearing on Sara’s plea to the jurisdiction. The evidence as to jurisdiction was different at the two hearings. And, as pointed out forcefully by Sara in contesting Jerry’s assertion that the trial court had temporary emergency jurisdiction, at the first hearing in February the children were not physically present in Texas. Sara does not, however, challenge the trial court’s consideration of evidence presented at the April 26th hearing in determining its jurisdiction. At that time the children were in Texas. Because the trial court exercised its discretion to wait and,determine its jurisdiction when it heard Sara’s plea to the jurisdiction on April 26th, we will review the jurisdiction issue based on the pleadings and evidence as of that time.

SECTION 152.201 JURISDICTION

Except for temporary emergency jurisdiction, a Texas court has jurisdiction to make an initial child custody determination only in accordance with the provisions of section 152.201. See section 152.201(a), (c). Section 152.201 prioritizes, by the four subsections of section 152.201(a), the manner in which the trial court’s jurisdiction is analyzed. See In re Oates, 104 S.W.3d 571, 576 (Tex.App.-El Paso 2003, orig. proceeding).

Section 152.201(a) provides that except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding, and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1)
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).

We will first consider whether the trial court had jurisdiction pursuant to subsection 152.201(a)(1). See In re Oates, 104 S.W.3d at 576.

On February 11, 2004, Jerry filed his first pleading in Hale County seeking divorce and custody of the children. It is undisputed that the children were not physically in Texas at any time between at least May 1, 2003, and February 26, 2004, when Jerry transported them from Nebraska to Hale County where he and his parents resided. Jerry maintains that the children’s absence from Texas was only a temporary vacation-like visit to Nebraska and the children continued to “live” in Texas throughout their physical absence of over nine months.

At the April 26, 2004, hearing on Sara’s special appearance and plea to the jurisdiction, Sara introduced the affidavit she filed in support of her plea to the jurisdiction, and the first of two UCCJEA affidavits which Jerry attached to his pleadings. In her affidavit, Sara stated that in April, 2003, Jerry had been jailed for shoplifting and bad check charges. On the advice of Jerry’s father, she took the children and moved to Nebraska, where she and the children lived with her parents from April 27th until June 26th. On June 26th, Sara and the children moved to their own apartment. Sara averred that the move to Nebraska was not temporary; in May, 2003, she was issued a Nebraska driver’s license, registered her automobile and insured it in Nebraska, and began receiving support and medical care assistance from the state of Nebraska for the children and herself; and her apartment lease and utilities were in her name from June 26, 2003. She also outlined difficulties with the children in Nebraska which resulted in the juvenile division of the County Court of Platte County, Nebraska, assuming jurisdiction of the children.

Jerry’s first Affidavit for UCCJEA Information was executed in February, 2003, and had been attached to his original petition. In the affidavit, Jerry verified that the children lived with Sara at 470 — 5th Avenue, Columbus, Nebraska, from May 1, 2003, until “the present.”

Sara also introduced a copy of an Amended Petition she filed in the District Court of Platte County, Nebraska, on April 20, 2004. The pleading recited, in relevant part, that Sara was a resident of Platte County but had not resided there a year; from April 27, 2003, to February 26, 2004, the children resided with Sara at 2481 E. 5th Avenue # 14, Columbus, Nebraska; that she and Jerry had been married at Columbus, Nebraska, on August 14, 1999;, and the marriage was irretrievably broken. She sought an order of separation and custody of the children.

The Texas trial court took notice of Jerry’s testimony at the February 23rd temporary- orders hearing. Jerry testified at the hearing he “understood” when Sara left Texas and went to Nebraska with the children, that it was not a move to Nebraska, but rather was “more or less like a little vacation, giving them time to see [Sara’s parents] up there in Nebraska.” In his second UCCJEA affidavit, which was also before the court, Jerry set out that “I stayed in contact with Sara Renee Estes by telephone. Sara Renee Estes indicated on repeated occasions that her intention was to return to Texas.”

Correspondence between the trial court and the judge of the District Court of Platte County, Nebraska, was furnished to the parties and introduced as court exhibits. That correspondence reflected the trial judges’ concurrence that both Texas and Nebraska had enacted the UCCJEA and Nebraska appeared to be the appropriate forum for exercising jurisdiction over the children. See section 152.207.

As can be seen, Sara averred clearly and specifically that her move to Nebraska with the children was not temporary. No evidence contradicted the statements in her affidavit that she registered and insured her car in Nebraska in May, 2003; she leased an apartment in her name on June 26, 2003; and she and the children lived in that apartment from June 26th until she surrendered the children on February 24, 2004, pursuant to the Texas temporary orders. Jerry, on the other hand, did not detail any dates on which he talked to Sara, nor did he specify what Sara said on which he based his opinion that when Sara left Texas with the children it was “like a little vacation.” He did not set out her alleged statements which led him to opine that she “indicated” her intention to return to Texas numerous times, nor the dates on which she allegedly made them. Nor did Jerry set out any statements made by Sara which evidenced that she intended to return to Texas because her move to Nebraska was only a temporary visit instead of a permanent move.

Jerry’s testimony created a fact question for the trial court to resolve as to whether Sara originally intended to merely visit her parents in Nebraska on a temporary vacation-type visit when she and the children went there in late April or early May of 2003. Beyond that, however, and in light of the uncontradicted facts set out in Sara’s affidavit, Jerry did not present sufficient evidence to create a fact question as to the “temporary visit” nature of the presence of Sara and the children in Nebraska after their move to Sara’s leased apartment on June 26, 2003.

Thus, the evidence before the trial court at the hearing on Sara’s plea to the jurisdiction was conclusive that as of the filing of the Texas proceeding on February 11, 2004, the children had not lived in Texas for at least six consecutive months immediately preceding the filing, nor was there any date during the six months preceding February 11, 2004, at which the children lived in Texas for at least six consecutive months immediately preceding such date. See subsections 152.201(a), (a)(1), 152.102(7). It follows that Texas was not the home state of the children as of the time Jerry filed his suit, and subsection 152.201(a)(1) did not provide subject matter jurisdiction for the trial court to make an initial child custody determination.

Because subsection 152.201(a)(1) did not provide jurisdiction, we next consider subsection 152.201(a)(2). Correspondence between the Texas and Nebraska judges, the relevant Nebraska statutes, and the record of the May 4, 2004, hearing in the proceeding filed by Sara in Nebraska demonstrate that Sara’s proceeding vested jurisdiction over the children in the District Court of Platte County, Nebraska, in regard to child custody matters. At the May 4, 2004, hearing, the Nebraska court sustained Jerry’s special appearance, but declined to dismiss the case as to child custody matters, pending the Texas courts’ determinations. The Nebraska court, understandably, declined to enter a custody order because of the existing February 26th temporary orders from the Texas court and because entry of an order by the Nebraska court would have resulted in two separate existing court orders as to the children’s custody. The Nebraska court did not decline to exercise jurisdiction over custody matters on the basis that either Nebraska was an inconvenient forum, see subsection 152.201(a)(2) and section 152.207, or Sara had engaged in unjustifiable conduct. See subsection 152.201(a)(2) and section 152.208. Therefore, subsection 152.201(a)(2) did not provide subject matter jurisdiction in the Texas trial court for an initial child custody determination.

Because neither subsection 152.201(a)(1) nor subsection 152.201(a)(2) provided jurisdiction, we next consider whether subsection 152.201(a)(3) did so. In regard to subsection 152.201(a)(3), we have previously noted that the Nebraska court did not decline to exercise its jurisdiction over the children because the Texas court was a more appropriate forum to determine the custody of the children on the basis that either Nebraska was an inconvenient forum, or Sara had engaged in unjustifiable conduct. The Nebraska court declined to enter a custody order because the judge did not “... want to put us in a situation where we’ve got two courts entering custody orders that are conflicting regarding the same minor children.” Accordingly, subsection 152.201(a)(3) does not provide subject matter jurisdiction to the Texas court for an initial child custody determination.

Finally, subsection 152.201(a)(4) provides jurisdiction to Texas courts if Nebraska courts did not have jurisdiction under criteria specified by subsections 152.201(a)(1), (2), or (3). The children were physically with Sara in Nebraska for more than nine consecutive months prior to Jerry’s filing the Texas proceeding in February, 2004. Further, we have determined that there is no fact question about the absence from Texas of Sara and the children being merely a temporary absence to visit Nebraska after June 26, 2003. Thus, the children having lived in Nebraska with Sara for over seven months before Jerry filed suit on February 11, 2004, Nebraska would be the home state of the children under criteria of subsection 152.201(a)(1). Subsection 152.201(a)(4) did not provide subject matter jurisdiction to the Texas court for an initial child custody determination.

In sum, section 152.201 did not provide subject matter jurisdiction in the Texas court.

SECTION 152.204 TEMPORARY EMERGENCY JURISDICTION

On April 19, 2004, Jerry filed an amended petition by which he alleged that the children were in Texas, and that in addition to jurisdiction pursuant to section 152.201, the trial court also had temporary emergency jurisdiction under section 152.204. Sara argued, and asserts in this mandamus proceeding, that the trial court did not ever have temporary emergency jurisdiction because when Jerry’s first pleading was filed on February 11, 2004, the children were not in Texas, see section 152.204(a), and that Jerry could not “bootstrap” the trial court into having temporary emergency jurisdiction by using void temporary orders to obtain physical possession of the children in Nebraska, bring them to Texas, then urge their presence in the state as a basis for temporary emergency jurisdiction.

At the April 26th hearing, the trial court made two specific rulings in relation to this issue. First, it specifically deferred ruling on Jerry’s request for it to exercise temporary emergency jurisdiction over the children. Next, it extended the temporary orders based on its determination that it had jurisdiction pursuant to section 152.201.

Because the children were not in Texas at the time Jerry commenced the proceeding on February 11th, the trial court did not then have section 152.204 temporary emergency jurisdiction. See section 152.204(a). The amended pleading, however, set out that the children were in Texas. For purposes of determining the trial court’s jurisdiction, the amended pleading and its allegation of facts supporting new grounds for jurisdiction is deemed a new suit as of the time it is filed. See Perry v. Del Rio, 66 S.W.3d 239, 253 (Tex.2001); Leach v. Brown, 156 Tex. 66, 292 S.W.2d 329, 331 (1956).

As to Sara’s claim that the trial court did not have temporary emergency jurisdiction, we note that section 152.204(a) provides:

A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

Under the clear and unambiguous language of the statute, if a child is in the state, a Texas court has jurisdiction to temporarily protect the child under specified circumstances. Section 152.208 mandates a Texas court to decline to exercise its jurisdiction if the jurisdiction exists because a person seeking to invoke the jurisdiction has engaged in unjustifiable conduct, “Except as otherwise provided in section 152.204 or other law of this state.” See section 152.208(a).

In examining section 152.204(a) in the context of the detailed directives in subsections 152.204(b), (c) and (d), sections 152.201(a) and section 152.208, we conclude that the Legislature intended to vest jurisdiction in Texas courts to temporarily protect children physically present in the state, even though the children are brought into Texas under the circumstances in this matter, so long as it is necessary to protect the children on one of the grounds specified by section 152.204(a). See Hodges, 92 S.W.3d at 494; Saavedra v. Schmidt, 96 S.W.3d 533, 542 n. 12, 544 (Tex.App.-Austin 2002, no pet.).

The children had been in Texas since February 26, 2004. The amended pleadings and the evidence before the trial court at the April 26th hearing on Sara’s plea to the jurisdiction were sufficient to vest jurisdiction in the trial court for it to determine if it had section 152.204 temporary emergency jurisdiction over the children. See Blue, 34 S.W.3d at 555.

CONCLUSION

The trial court did not have subject matter jurisdiction to make an initial child custody determination under subsection 152.201(a). We sustain Sara’s issue as to the trial court’s jurisdiction to enter and continue its temporary orders determining child custody matters. We conditionally grant writ of mandamus directing the trial court to set aside its temporary orders and to dismiss Jerry’s claims as to child custody on the basis of section 152.201. The writ will be issued only if the trial court fails to do so.

We decline the application for writ, without prejudice, to the extent the application seeks mandamus directing the trial court to dismiss Jerry’s application seeking relief pursuant to section 152.204.

      . Sara had one child at the time of the marriage. References to “the children” will not encompass that child unless specifically noted.

      . See Tex. Fam.Code Ann. § 152.201 (Vernon 2002). Further references to provisions of the Family Code will be by reference to “section _"

      . The April 20th filing was an Amended Petition. The record before us does not indicate whether an original petition was filed, and if so, the date on which it was filed.

      . We will not reference Sara’s special appearance further because she does not seek relief in this mandamus proceeding from the trial court’s overruling of the plea.

      . Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA”), which Texas adopted effective September 1, 1999. See In re Oates, 104 S.W.3d at 576.


source: Caselaw Access Project

author: Opinion by Justice BRIDGES.

license: Public Domain

text:
    Roger FARAHMAND and Bruce Wardlay, Appellants, v. THANG DO, Appellee.
    No. 05-03-01024-CV.
    Court of Appeals of Texas, Dallas.
    July 22, 2004.
    Rehearing Overruled Feb. 3, 2005.

      Roger Arash Farahmand, Farahmand Law Firm, P.C., Dallas, for Appellants.
    John M. Gillis, Dallas, for Appellee.
    Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
   OPINION

Opinion by Justice BRIDGES.

Roger Farahmand and Bruce Wardlay appeal the trial court’s summary judgment in favor of Thang Do. In five points of error, appellants argue the trial court abused its discretion in denying appellants’ motion to withdraw deemed admissions and granting appellee’s motion for summary judgment. We reverse the trial court’s summary judgment for attorney’s fees and remand that issue to the trial court for further proceedings. In all other respects, the judgment of the trial court is affirmed.

In June 2001, appellants borrowed $150,000 from appellee for the purpose of buying a hospital from a bankruptcy trustee. Appellants executed a handwritten promissory note whereby they agreed to repay the $150,000 according to certain repayment options available to appellee. Appellants defaulted on the loan, and ap-pellee sued to recover under the note. On March , 17, 2003, appellee served a request for admissions on appellants, to which appellants failed to timely respond. Because the response was untimely, the requests were deemed admitted. Appellants filed a motion to withdraw deemed admissions. Although the trial court conducted a hearing on appellants’ motion, no reporter’s record was made of the proceedings, and no findings of fact or conclusions of law were requested. The trial court denied appellants’ request to withdraw their deemed admissions. Appellee filed a motion for summary judgment. The trial court granted appellee’s motion for summary judgment, and this appeal followed.

In their first and second points of error, appellants argue the trial court abused its discretion in denying their motion to withdraw deemed admissions because good cause was shown and such denial amounted to death penalty sanctions. Because the trial court has broad discretion in permitting or denying the withdrawal of deemed admissions, the appellate court should set aside the trial court’s ruling only if, after reviewing the entire record, it is clear that the trial court abused its discretion. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). However, because appellants have not brought forward a reporter’s record of the hearing on their motion for withdrawal of their deemed admissions, they are not entitled to argue that the evidence presented at such hearing showed that the trial court committed a clear abuse of discretion. See Ruiz v. Nicolas Trevino Forwarding Agency, Inc., 888 S.W.2d 86, 89 (Tex.App.-San Antonio 1994, no writ) (citing Cherry v. North American Lloyds of Tex., 770 S.W.2d 4, 5 (Tex.App.-Houston [1st Dist.] 1989, writ denied)). Accordingly, in the absence of a reporter’s record, we cannot conclude the trial court abused its discretion in denying appellants’ motion to withdraw deemed admissions. See Ruiz, 888 S.W.2d at 89; Cherry, 770 S.W.2d at 5. We overrule appellants’ first and second points of error.

In their third and fourth points of error, appellants complain the trial court erred in granting appellee’s motion for summary judgment because it was not supported by a proper affidavit or by the deemed admissions. In reviewing the trial court’s decision to grant summary judgment, we apply well-known standards. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Here, appellants’ deemed admissions establish appellants executed the $150,000 promissory note, and the debt evidenced by the note was due and payable, plus interest. Regardless of the propriety of appellee’s affidavit, the deemed admissions were sufficient to establish appellee’s entitlement to recover the $150,000 under the note, plus interest. See id. Accordingly, the trial court properly entered summary judgment in favor of appellee under the note. Id. We overrule appellants’ third and fourth points of error.

In their fifth point of error, appellants argue the trial court erred in awarding appellee $35,000 in attorney’s fees because there was no affidavit regarding attorney’s fees attached to appel-lee’s motion for summary judgment and no other evidence in the record to support the award. In his motion for summary judgment, appellee requested the trial court to set a hearing on the matter of attorney’s fees to be held immediately following the summary judgment. In his brief, appellant asserts the trial court conducted a hearing on attorney’s fees immediately following the summary judgment hearing. However, there is no record of the hearing.

In his petition, appellee stated he had hired an attorney, and a reasonable fee for the attorney’s services was “at least $250 per hour.” In his motion for summary judgment, appellee asserted he was entitled to attorney’s fees and requested a hearing on the matter. In the trial court’s summary judgment, appellee was awarded $35,000 in attorney’s fees. Nowhere in the record is there an affidavit supporting the reasonableness or necessity of the attorney’s fees requested by appellee or establishing the proper amount of such fees other than “at least $250 per hour.” Because the trial court decided the issue of attorney’s fees as a summary judgment, we review the judgment under the summary judgment standard. On the record before us, we conclude a fact issue exists as to appellee’s entitlement to attorney’s fees and the amount of such fees. Accordingly, we sustain appellants’ fifth point of error to the extent the record does not support the trial court’s summary judgment for attorney’s fees.

We reverse the trial court’s summary judgment for attorney’s fees and remand that issue to the trial court for further proceedings. In all other respects, the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Kerwin GIBBS, Appellant, v. ALLSUP ENTERPRISES, INC., Appellee.
    No. 07-04-0315-CV.
    Court of Appeals of Texas, Amarillo.
    Aug. 18, 2004.
    Joe A. Izen, Jr., Bellaire, for appellant.

      Bill Harriger, Hund & Harriger, LLP, Lubbock, for appellee.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

PER CURIAM.

Kerwin Gibbs appeals from an adverse summary judgment. Determining that he did not reasonably explain the need for an extension of time to file his late-filed notice of appeal, we dismiss for want of jurisdiction.

The 64th District Court of Hale County granted summary judgment in favor of Allsup’s Enterprises, Inc., and against Kevin Gibbs. Gibbs filed a motion for new trial which was overruled as a matter of law. He filed his notice of appeal late, but within 15 days after the deadline for filing the notice. See Tex.R.App. P. 26.3. Accompanying the late-filed notice of appeal was a motion to enlarge time for filing of notice of appeal which we deemed to be a motion for extension of time to file the notice of appeal. Pursuant to direction of the court, Gibbs filed further documentation explaining his need for an extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex.1997).

Gibbs’ explanation for failing to timely file his notice of appeal is that his attorney was waiting to review the trial court’s order overruling his motion for new trial, after which his attorney was to confer with him and a final decision would be made about whether to appeal. The trial court, however, did not enter an order overruling the motion for new trial.

Gibbs does not set out facts as to when he and his attorney made the final decision to appeal. It is apparent from his motion to enlarge time for filing notice and subsequently-filed affidavit from his attorney, however, that once a final decision to appeal was made, the notice of appeal was filed.

A “reasonable explanation” for needing an extension of time to file notice of appeal includes any plausible statement of circumstances indicating that the late filing was not deliberate or intentional, but was the result of inadvertence,. mistake, or mischance. See Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex.1989). If the decision to delay filing notice of appeal until after the appropriate deadline was a deliberate or intentional decision, we may not extend the time for filing a notice of appeal, and we must dismiss for want of jurisdiction. See Garcia, 774 S.W.2d at 670; Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex.App.-Amarillo 1999, pet. denied).

Filing of Gibbs’ notice of appeal was intentionally delayed until a final decision had been made to appeal. Such circumstances do not comprise a reasonable explanation for needing an extension of time for filing notice of appeal. See Garcia, 774 S.W.2d at 670; Meshwert, 549 S.W.2d at 384; Kidd, 1 S.W.3d at 310.

The appeal is dismissed for want of jurisdiction.

      . Further reference to a rule of appellate procedure will be by reference to “TRAP — "


author:
JAMES T. CAMPBELL, Justice.
      DON H. REAVIS, Justice,

text:
    In re EXXONMOBIL CORPORATION, et al., Relators. In re ChevronTexaco Corporation, et al., Relators.
    Nos. 07-04-0285-CV, 07-04-0286-CV.
    Court of Appeals of Texas, Amarillo.
    Aug. 26, 2004.

      William Ikard, William W. Kilgarlin, Laurie Ratliff, Popp & Ikard LLP, Austin, Lynne Liberato, Aleñe Ross Levy, Haynes and Boone, LLP, M. Benjamin Singletary, Dennis Cameron, Lisa Silvestri, Gable & Gotwals, Tulsa, OK, John A. ‘Jad’ Davis, Turner Davis & Gerald, Midland, for rela-tors.
    E.R. Norwood, Cotton Bledsoe Tighe & Dawson, PC, Catherine Zabel, Houston, Shannon H. Ratliff, Bracewell <& Patterson, L.L.P., Lisa A. Paulson, Ratliff Law Firm PLLC, Austin, Ed Kliewer III, Kliewer, Breen, Garatoni, Patterson & Malone, Inc., San Antonio, Rodney W. Sat-terwhite, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, Jack Balagia Jr., Mobil Oil Co., Litigation Houston, Macedón, NY, G. Luke Ashley, P. Jefferson Ballew, Adrienne E. Dominguez, Thompson & Knight, LLP, Dallas, Jasper G. Taylor III, Daniel M. McClure, Fulbright & Jaworski L.L.P., James D. Thompson III, Max Hendrick III, Vinson & Elkins L.L.P., H. Lee Godfrey, Thomas W. Paterson, William Christopher Carmo-dy, William R.H. Merrill, Frank T. Apoda-ca, Susman Godfrey, LLP, Houston, Robert Duncan, Peter A. Lowy, Alexandria, LA, Donald M. Hunt, Lawrence M. Doss, Mullin Hoard & Brown, L.L.P., Lubbock, for real party in interest.
    Kelly G. Moore, Brownfield, respondent.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   JAMES T. CAMPBELL, Justice.

Amerada Hess Corporation, et al. and ChevronTexaco Corporation, et al., as rela-tors, have filed petitions seeking writs of mandamus directing respondent, the Honorable Kelly G. Moore, judge of the 121st District Court, Yoakum County, to vacate a May 3, 2004, order entered in cause number 8198 pending in that court. The order denied pleas to the jurisdiction. Real parties in interest are Yoakum County, Denver City Independent School District and Plains Independent School District.

In cause 8198, Yoakum County and Denver City ISD sued some twenty-eight companies, including relators, that they allege own or operate oil properties in Yoakum County, asserting causes of action for fraud and conspiracy with respect to the valuation of the properties for ad valorem tax purposes. Plains ISD intervened, making the same assertions.

Concluding that the district court does not have jurisdiction over the suit brought by local taxing units and that mandamus is available to correct the trial court’s erroneous contrary conclusion, we will conditionally grant the writs relators seek.

Taxing Units’ Pleadings

The taxing units’ pleadings state that appraisal districts, and the independent appraisers whose services they utilize, use historical sales prices for oil as a part of their calculation of the income projected to be received in the future from oil properties. That estimate of future income, in turn, is used in valuing the oil properties for ad valorem tax purposes. The historical price data used by appraisers includes, the taxing units allege, “posted” prices for oil and sales prices reported to the Texas Comptroller of Public Accounts. The taxing units allege that the defendant companies, knowing and intending that appraisers rely on this information, engaged in a conspiracy and fraud carried out by misrepresentations of the market price for oil through various transactions, including posted price sales; sales of oil to subsidiary or affiliated companies at below-market prices; and “buy/sell” or “swap sales.” The taxing units allege that the defendants or their subsidiaries or affiliates fraudulently misrepresented that each of these types of transactions reflected the market value of oil when the transactions actually understated market value, thereby knowingly and intentionally misrepresenting the market value of oil to the Comptroller, to independent appraisers hired by appraisal districts, to appraisal districts and to the taxing units. The taxing units further allege the defendants used affiliates and subsidiaries to report fraudulently undervalued prices for oil, deliberately using thousands of transactions with them to “generate non-arms length, non-market prices,” which they then reported as the market value of oil. In some instances, the taxing units’ pleadings allege, the affiliates and subsidiaries had no separate corporate existence, but “existed only on paper,” furthering the fraud and concealing it from taxing authorities. The taxing units also allege the defendants conspired together to defraud the taxing units, inter alia, by misrepresenting that posted price sales, affiliate sales and buy/sell or swap sales reflected the market value of oil, all of which constituted a “systematic price undervaluation” that reduced the taxable value of their mineral interests and caused the taxing units to lose tax revenue. It is alleged that each of the affiliated companies participating in the fraud did so for the benefit of the defendants, and that the defendants accepted monetary benefits from the scheme, and ratified the fraudulent conduct of their agents. The taxing units allege these actions caused the appraisal district to undervalue, for ad valo-rem tax purposes, mineral interests-owned or operated by the defendants resulting in an “underassessment and undercollection of taxes” by the taxing units, thereby causing them damage by “depriving them of substantial amounts of revenues.” Alleging the defendants’ conduct was willful and malicious, the taxing units seek compensatory and exemplary damages, interest, costs and attorneys fees.

The suit is not one to collect delinquent taxes. There is no allegation the defendants failed to pay the taxes assessed them with respect to the oil interests.

Relators contend the trial court's determination that it had jurisdiction was an abuse of its discretion because it was a misapplication of Tax Code provisions giving exclusive original jurisdiction over property appraisals to the appraisal district and the appraisal review board. The taxing units respond that their suit is one asserting common law tort causes of action and nothing in the Tax Code deprives them of their right to assert such claims against tortfeasors such as the defendant companies or deprives the district court of jurisdiction to hear them. They emphasize the general jurisdiction of district courts under our state constitution and statutes.

Standards for Plea to Jurisdiction and Mandamus

In reviewing the trial court’s ruling on a plea to the jurisdiction, we review the pleadings and any evidence relevant to the jurisdictional issue. See Texas Dep’t of Transportation v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002). We will construe the pleadings liberally in the taxing units’ favor. Id. at 867. The pleadings must allege facts, however, that affirmatively demonstrate the court’s jurisdiction to hear the cause. See Texas Ass’n of Bus. v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993). Whether the trial court has subject matter jurisdiction is a legal question that is reviewed de novo. State ex rel. State Dept. of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002).

A writ of mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law, when there is no other adequate remedy by law. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994). In regard to analyzing the law or application of the law to the facts, a trial court has no “discretion,” and must both properly analyze and apply the law to the facts. Therefore, a clear failure to correctly analyze or apply the law will constitute an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). An erroneous legal conclusion, even in an unsettled area of the law, is an abuse of discretion. Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex.2001).

Tax Code Provisions

Article VIII, section 1 of our state constitution requires that all real property, which includes mineral interests, unless exempt, be taxed “in proportion to its value, which shall be ascertained as may be provided by law.” Tex. Const, art. VIII, § 1(b). The same section requires that taxation be “equal and uniform.” Tex. Const, art. VIII, § 1(a). The constitution further requires that “all lands and other property not rendered for taxation by the owner thereof shall be assessed at its fair value by the proper officer.” Tex. Const, art. VIII, § 11. By a 1980 amendment, article VIII, section 18 of the constitution requires that a “single appraisal” within each county of property subject to ad valo-rem taxation is to be provided by general law. The general law passed by the Legislature to codify the single appraisal concept was the Property Tax Code. Wilson v. Galveston County Cent. Appraisal Dist., 713 S.W.2d 98, 100 (Tex.1986). The Tax Code thus codifies the constitutional obligation of our state government to appraise and assess property for purposes of taxation. See Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 257 (Tex.1999). As a part of this codification, the Legislature in the Tax Code created appraisal districts to begin operation January 1, 1982, as political subdivisions of the state. Id.; see § 6.01 (establishing an appraisal district in each county and declaring it “responsible for appraising property in the district for ad valorem tax purposes of each taxing unit that imposes ad valorem taxes on property in the district”). The Tax Code also established an appraisal review board for each district. §§ 6.41,41.01.

An appraisal district is governed by its board of directors, who are district residents selected by the taxing units in the district. See §§ 6.03-6.035. The district’s board of directors appoints the chief appraiser, see § 6.05(c), and the appraisal review board, also consisting of individuals residing in the district. See § 6.41.

Among the duties of the chief appraiser is the preparation each year of appraisal records listing all property taxable in the district and stating the appraised value of each. § 25.01. The form of appraisal records is prescribed by the Comptroller. Generally, taxable property is appraised at its market value as of January 1. Market value, defined by section 1.04(7), is to be determined by the application of generally accepted appraisal methods and techniques. § 23.01. Real property must be' reappraised at least as often as every three years. § 25.18. Section 25.01(b) authorizes an appraisal district to contract with a private appraisal firm to perform appraisal services. The taxing units’ pleadings indicate that Yoakum County Appraisal District has engaged an appraisal firm to value oil and gas properties.

Following notice to the property owner of the appraised value, if required, the chief appraiser submits the completed appraisal records to the appraisal review board “for review and determination of protests'.” § 25.22. Property owners may protest before the appraisal review board adverse actions, including the chief appraiser’s determination of the value of property. § 41.41. The Tax Code contains provisions for the board’s hearing procedures, including provisions for issuance of subpoenas and taking of evidence. See §§ 41.61, et seq. Under section 25.24, the appraisal records, as changed by order of the appraisal review board and approved by that board, constitute the appraisal roll for the district. § 25.24. The chief appraiser certifies to the tax assessor of each taxing unit in the district the part of the appraisal roll listing the property taxable by that unit, which part becomes the appraisal roll for that unit. § 26.01(a). The chief appraiser also certifies the appraisal district appraisal roll, or a summary, to the Comptroller. § 26.01(b).

Section 41.01 of the Tax Code sets out the duties of the appraisal review board, which, as relevant here, include the duties to determine protests initiated by property owners, determine challenges initiated by taxing units and “take any other action or make any other determination that this title specifically authorizes or requires.” § 41.41. Taxing units are entitled to bring challenges of designated actions before the appraisal review board, among them, challenges to the level of appraisals of any category of property in the district and challenges to an exclusion of property from the appraisal records. § 41.03.

Pursuant to section 25.21, the chief appraiser is to enter in the appraisal records real property that was omitted from an appraisal roll in any of the five preceding years, appraising the property as of January 1 of the year it was omitted. Except as provided by section 25.25, providing for correction of errors, chapter 41, generally providing for the hearing of protests and challenges by the appraisal review board, and chapter 42, providing for judicial review, once approved by the appraisal review board, the appraisal roll may not be changed. § 25.25(a).

Chapter 42 of the Tax Code provides for trial de novo in the district court on appeal of orders of the appraisal review board determining, inter alia, protests of property owners and challenges by taxing units. §§ 42.01, 42.02, 42.031. Chapter 43 authorizes suits by taxing units against the appraisal district to compel the district’s compliance with Code provisions, rules of the Comptroller or other applicable law. § 43.01.

Threshold Conclusions

Two threshold conclusions guide our dispositions of these proceedings. The first concerns the nature of the underlying suit. Relators call the taxing units’ suit an ad valorem tax case. The taxing units call it a fraud and conspiracy case. They disclaim any intention to change the tax appraisals or tax rolls. They note their suit seeks common law damages for fraud and conspiracy, and point out the Tax Code nowhere prohibits counties or school districts from bringing suit to recover damages from those committing tortious acts. The taxing units do not deny, though, that the compensatory damages they seek necessarily would be measured by the reduction in tax revenue caused by the defendants’ tortious conduct. That determination, of course, cannot be made without finding the amount of ad valorem taxes that would have been received by the taxing units if the defendants’ minerals had been properly valued. The district court therefore cannot adjudicate the claims asserted in the taxing units’ pleading and award the relief they seek without determining the market value, for ad valorem tax purposes, of the mineral interests in question. See § 26.09.

The Texas Supreme Court considered an analogous circumstance in Ector County v. Stringer, 843 S.W.2d 477 (Tex.1992). There, constables sued in district court for additional compensation for past services. The court of appeals held the district court had jurisdiction over the suits, despite the holding of Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104, 109 (Tex.1981), that the constitution entrusts the duty to set reasonable salaries for constables to the discretion of the commissioners court and a district court is without jurisdiction to perform that task. The court of appeals distinguished Vondy on the ground that Stringer sought a judgment for services rendered in the past, in an amount measured by a reasonable salary. Reversing the court of appeals, the Supreme Court held that the district court would necessarily substitute its judgment for that of the commissioners court by awarding damages in an amount determined by the district court without deference to the commissioners court’s authority to set a reasonable salary. It said: “Reclassifying the compensation due for the past services of a constable as a debt is ineffective to circumvent the authority of the commissioners court to set the salary of a constable.” Stringer, 843 S.W.2d at 480.

Likewise, a suit to recover damages measured by the ad valorem taxes not received by a taxing unit because of undervaluation of property necessarily involves substituting the district court’s determination of the proper value of the property for that determined by the appraisal district and approved by the appraisal review board. And, just as reclassifying the claim in Stringer as one for a debt did not remove it from the constitutional and statutory provisions vesting authority in the commissioners court, we cannot consider the trial court’s jurisdiction over the taxing units’ claims here outside the constitutional and statutory provisions governing appraisal of property for ad valorem tax purposes.

Secondly, we conclude the Tax Code provided a remedy for the taxing units. In Atascosa County, the Supreme Court held that the chief appraiser’s duty under section 25.21 to add to the appraisal roll real property omitted in any one of the five preceding years is a nondis-cretionary duty. 990 S.W.2d at 257. For purposes of section 25.21, property “omitted” from the appraisal roll includes that undervalued by virtue of taxpayer fraud. See Beck & Masten Pontiac-GMC, Inc. v. Harris County Appraisal Dist., 830 S.W.2d 291, 294-95 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The taxing units attempt to distinguish Beck & Mas-ten. The distinctions they point out do not weaken, though, the applicability of its holdings that because of taxpayer fraud the property assessments there involved were void ab initio and thus the property “escaped taxation” (in the wording then appearing in section 25.21). 830 S.W.2d at 295. We see no reason why mineral interests undervalued by the fraudulent activity alleged in the taxing units’ pleadings would not be subject to similar treatment.

The challenge procedures provided a further remedy for the taxing units in the event the chief appraiser failed to address the oil companies’ actions that they considered fraudulent. Section 41.03 specifically authorizes taxing units to bring to the appraisal review board challenges to the level of appraisals of any category of property and to an exclusion of property from the appraisal records. Failing a satisfactory result at the appraisal review board, de novo judicial review of its decision was available. See §§ 42.031, 42.21, 42.23; Atascosa County, 990 S.W.2d at 259.

The taxing units elsewhere point to deadlines in Tax Code procedures as indicating the Legislature cannot have intended the appraisal review board to provide a remedy for fraud and conspiracy claims such as those they seek to pursue here. They note section 41.04 requires challenge petitions to be filed with the review board within fifteen days after the chief appraiser submits completed appraisal records to the review board, and that sections 41.11 and 41.12 would permit only fifty days to complete the hearing at the review board, obtain the board’s order and allow the board to notify the mineral owners of a tax increase. For several reasons, the argument is not persuasive. First, the Tax Code expressly provides for challenges by taxing units, and it contains no indication that challenges based on the appraisal district’s failure to deal with tortious conduct by taxpayers are excluded. Secondly, the argument ignores the availability of judicial review, by which a weakness in the outcome of appraisal review board action, whether due to press of time or other causes, may be addressed, de novo. Under section 42.23, the district court is to “try all issues of fact and law raised by the pleadings in the manner applicable to civil suits generally.” Thirdly, the argument ignores the express provision in sections 5.08 and 41.65 for the Comptroller’s professional and technical assistance to appraisal review boards. Lastly, that the statutory procedures applicable to appraisal review boards might be strained by an adjudication of the magnitude presented by this case does not suggest the Legislature did not intend the procedures to provide a remedy in cases of this nature. The taxing units’ argument does not explain how the Tax Code procedures can be adequate to deal with fraud raised in the context of a taxpayer protest case, see Beck & Masten, 830 S.W.2d at 295, but the same procedures are so inadequate as to be inapplicable when the issue is presented by a taxing unit.

Exclusive Jurisdiction

Our threshold conclusions lead to the question whether the Tax Code’s remedies are the exclusive means by which a taxing unit must address claims of fraud and conspiracy occurring in the appraisal process.

The Government Code states that a district court has the jurisdiction provided by article V, section 8 of the Texas Constitution, and further states that the district court “may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity.” Tex. Gov’t Code Ann. §§ 24.007-08 (Vernon 2004). Article V, section 8 of the constitution provides district courts with jurisdiction consisting of “exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Tex. Const, art. Y, § 8. Our district courts are courts of general jurisdiction, presumably having subject matter jurisdiction unless a contrary showing is made. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex.2002); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). Consistent with the language of article V, section 8 of the constitution, that contrary showing may be that the Legislature has provided the claim must be heard elsewhere. See In re Entergy Corp., 142 S.W.3d 316, 321-323, 47 Tex. Sup.Ct. J. 729, 731-32 (2004); Dubai Petroleum, 12 S.W.3d at 75.

Relators contend the Legislature has granted the appraisal district and appraisal review board exclusive jurisdiction to address, as an initial matter, the taxing units’ claims. Whether an administrative body has been given the sole authority, or exclusive jurisdiction, to make an initial determination in a dispute depends on statutory interpretation. See Subaru, 84 S.W.3d at 221. When interpreting a statute, we “consider the entire act, its nature and object, and the consequences that would follow from each construction.” Atascosa County, 990 S.W.2d at 258, quoting Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991). We must also “reject interpretations of a statute that defeat the purpose of the legislation so long as another reasonable interpretation exists.” Atascosa County, 990 S.W.2d at 258, quoting Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996).

In support of their contention that the appraisal review board has no jurisdiction over the claims they assert against relators, the taxing units correctly note that in an analysis of a claim of exclusive administrative agency jurisdiction, the administrative body is limited to the powers clearly and expressly given it and courts will not imply additional agency authority. See, e.g., Subaru, 84 S.W.3d at 220. We have stated our conclusion that the Tax Code provided the taxing units a remedy for the infection of the appraisal process by fraud. We do not consider that conclusion requires us either to imply authority of the appraisal review board to ensure that mineral interests in Yoakum County are appraised based on market value, unreduced by fraud, or to imply authority of taxing units to bring a challenge if necessary to insist that the appraisal review board do so. We find, to the contrary, that the provisions of the Tax Code expressly provide the necessary authority. See, e.g., §§ 6.01, 6.03, 23.01, 25.21; see also Atascosa County, 990 S.W.2d at 257 (appraisal review board is “charged with ensuring that property is properly appraised”).

The taxing units effectively propose an interpretation of the Tax Code that denies the appraisal review board and taxing units the power to address and remedy, through Code procedures, fraudulent conduct that reduces the appraised value of mineral interests below the statutorily-required market value. Such an interpretation would defeat the Tax Code’s purpose. It also would require us to conclude the Legislature has only partially satisfied the constitutional requirement that it provide, by general law, for a single appraisal of property in each county. The Tax Code hardly can be said to meet that requirement if it leaves individual taxing units the duty to correct appraisals based on fraud through suits for damages against property owners.

Recent supreme court opinions considering exclusive jurisdiction issues look for the presence of a “pervasive regulatory scheme” indicating legislative intention that the regulatory process be the “exclusive means of remedying the problem to which the regulation is addressed.” Entergy, 142 S.W.3d at 322, 47 Tex. Sup.Ct. J. at 732; Subaru, 84 S.W.3d at 221. The supreme court has referred to the tax scheme embodied in the Tax Code as comprehensive, Atascosa County, 990 S.W.2d at 259, and certainly it is so in scope and detail. With respect to appraisal, the Code created two new bodies, appraisal districts and appraisal review boards, prescribing their duties, standards and procedures. Without belaboring the point, we find the Tax Code’s provisions governing appraisal of properties for ad valorem tax purposes, with its procedures for resolving disputes over valuation, clearly create the type of regulatory scheme discussed in Entergy and Subaru.

The comprehensive nature of the Tax Code is consistent with the object it serves. As we have noted, through its enactment the Legislature carried out specific constitutional mandates. See, e.g., Tex. Const, art. VIII, § 18(b) (requiring provision by general law of a single appraisal in each county); Id., § 18(d) (requiring the Legislature to prescribe by general law “methods, timing and administrative process” to implement section’s requirements). The Tax Code does not reflect merely a legislative decision to regulate otherwise private business activity; it constitutes the exercise of the public function of taxation. See Atascosa County, 990 S.W.2d at 257, Wilson; 713 S.W.2d at 100; Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 135 Tex. 280, 142 S.W.2d 945, 948 (1940) (power to tax belongs to sovereignty; can only be exercised by subordinate corporate body when so delegated by constitution or legislature).

The taxing units contend the Legislature’s 2003 addition of section 22.29 to the Tax Code supports their position that the Code is not a “pervasive regulatory scheme” providing administrative remedies that are exclusive with respect to taxing units. See Cash America Int'l, Inc. v. Bennett, 35 S.W.3d 12, 17 (Tex.2000) (recent amendment to statute suggested administrative jurisdiction not intended to be exclusive). Effective January 1, 2004, section 22.29 authorizes the chief appraiser to impose a tax penalty of fifty percent on a taxpayer who commits certain actions, including the filing of a false rendition statement with the intent to commit fraud or evade tax. The taxing units point out that determination of a taxpayer’s liability under section 22.29(c) is made by a court, not by the appraisal review board. We do not agree that the addition of section 22.29 supports the taxing units’ argument. As relators point out, the specific provision in that section for court determination of liability would be unnecessary if the taxing units were correct that the Tax Code does not preclude common law actions for taxpayer fraud outside the Code procedures.

The Tax Code does not contain language like that in the former Motor Vehicle Commission Code discussed in Subaru, 84 S.W.3d at 219, or that in the former Public Utility Regulatory Act discussed in Entergy, 142 S.W.3d at 323, 47 Tex. Sup.Ct. J. at 732, by which the administrative bodies there involved expressly were given “exclusive original jurisdiction” over matters arising under those statutes. The taxing units point out that the only reference in the Tax Code to the exclusiveness of remedies appears in section 42.09, which declares the prescribed procedures for adjudication of grounds of protest by property owners authorized by the statute to be exclusive and, with two exceptions, prohibits a property owner from raising those grounds in defense to a suit for collection of delinquent taxes or as a basis of a claim for relief in a suit by the property owner. The taxing units note that the section by its wording is applicable only to taxpayer protests and the Code contains no comparable provision expressly providing that taxing units are limited to the remedies provided by the Code.

Other courts have examined the legislative intention behind section 42.09. See Watson v. Robertson County Appraisal Review Board, 795 S.W.2d 307, 310 (Tex.-App.-Waco 1990, no writ); Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., 704 S.W.2d 857, 859 n. 1, 861-62 (Tex.App.-Austin 1985, writ ref'd n.r.e.). Those opinions describe the efforts of taxpayers under prior law to interpose common law claims and remedies in ad valo-rem tax cases. See Watson, 795 S.W.2d at 310; Valero Transmission, 704 S.W.2d at 859 n. 1, 861-62. See generally Yudof, The Property Tax in Texas Under State and Federal Law, 51 Tex. L.Rev., 885, 896 et seq. (1973). Given that history, it is not surprising the Legislature would specify that the Code remedies and procedures for taxpayers were being made exclusive. By contrast, there is no history under pre-Code law of local taxing bodies appraising property and assessing taxes through common law causes of action. The absence of a Code provision applicable to taxing units comparable to section 42.09 is not evidence of legislative intent to exempt the claims the taxing units assert in the underlying suit from adjudication through Code procedures.

Our review of the entire Tax Code leads us to conclude it is no less comprehensive with respect to the rights and duties of taxing units than those of property owners, at least with respect to the claims the taxing units assert in the underlying suit. Significantly, for example, the Tax Code contains several provisions indicating the legislative intent that a taxing unit’s direct involvement with the appraisal process is limited. Taxing units are expressly prohibited by section 1.15 from directly employing appraisers for the purpose of appraising property for taxation. Section 25.20, though, requires chief appraisers to give a taxing unit’s assessor access to appraisal records. While a taxing unit may challenge, under section 41.03(a), the level of appraisals of a category of property, it may not challenge the appraised value of a single taxpayer’s property. A 1989 amendment to section 42.031 provides that a taxing unit may not intervene in or otherwise be made a party to an appeal of an order of an appraisal review board determining a taxpayer protest if the appeal is brought by the property owner.

As the supreme court stated in Entergy, specific legislative expressions of intent may make a court’s exclusive jurisdiction inquiry uncomplicated. 142 S.W.3d at 321-23, 47 Tex. Sup.Ct. J. at 732. Despite the absence from the Tax Code of specific language so providing, the nature of the governmental function exercised through the Tax Code, the constitutional mandates it implements, its comprehensive and detailed provisions concerning appraisal of property, and its provision of remedies combine to require the conclusion that the Legislature intended the Code procedures to be the exclusive means through which the taxing units may seek a remedy for the injuries caused them by the tortious conduct alleged here.

When the Legislature has given exclusive jurisdiction to an administrative body, a litigant’s failure to exhaust all administrative remedies before seeking judicial review of the administrative body’s action deprives the court of subject matter jurisdiction over claims within the body’s exclusive jurisdiction, and the court must dismiss such claims without prejudice. Subaru, 84 S.W.3d at 221; Cash America, 35 S.W.3d at 15. At the hearing on rela-tors’ pleas to the jurisdiction, the Yoakum County Appraisal District chief appraiser testified she had held that position since its creation, and the taxing units had never submitted a challenge to the appraisal roll or filed a suit against the appraisal district. The taxing units have thus failed to exhaust remedies the Legislature has made exclusive under the Tax Code, depriving the trial court of jurisdiction. The trial court’s conclusion to the contrary and its denial of relators’ pleas to its jurisdiction were a clear error of law and failure to apply the law correctly, thus an abuse of its discretion. See Walker, 827 S.W.2d at 840.

Adequacy of Remedy by Appeal

Denial of a plea to the jurisdiction traditionally has been treated as an incidental trial court ruling, not reviewable by petition for writ of mandamus when there is an adequate remedy by appeal. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.1990); Abor v. Black, 695 S.W.2d 564, 566-67 (Tex.1985); see Canadian Helicopters, 876 S.W.2d at 306. The mere cost to the parties and delay involved in pursuing an appeal do not render an appellate remedy inadequate. Entergy, 142 S.W.3d at 321-22, 47 Tex. Sup.Ct. J. at 731; Canadian Helicopters, 876 S.W.2d at 306. Our supreme court has issued mandamus, though, when the exercise of jurisdiction by a trial court in the face of exclusive jurisdiction held by an administrative body would work “a clear disruption of the orderly processes of government.” Entergy, 142 S.W.3d at 321-22, 47 Tex. Sup.Ct. J. at 731, citing State v. Sewell, 487 S.W.2d 716, 719 (Tex.1972). In Entergy, electric utility ratepayers brought suit alleging that, by entering into an inconsistent later agreement, the utility had breached an agreement that called for a rate proceeding providing certain rate savings to be filed with the Public Utility Commission. Both the agreement the ratepayers sought to enforce and the later agreement had been approved by the PUC and implemented through PUC orders. Before determining that the Public Utility Regulatory Act gave the PUC exclusive jurisdiction over the dispute between the utility and its ratepayers, the court discussed the issue of the appropriateness of mandamus relief, noting that if the PUC’s jurisdiction was exclusive, “permitting a trial to go forward would interfere with the important legislatively mandated function and purpose of the PUC.” 142 S.W.3d at 321-22, 47 Tex. Sup.Ct. J. at 731. In short, the court said, if the PUC had exclusive jurisdiction in the dispute, “the judicial appropriation of state agency authority would be a clear disruption of the ‘orderly processes of government.’ ” Id. The court concluded that disruption, coupled with the hardship to the defendant of postponing appellate review of the jurisdictional issue, warranted mandamus relief. We conclude that permitting trial to go forward of a case brought by taxing units, the end of which involves the judicial re-appraisal of mineral properties for ad valorem tax purposes, would constitute no less of an interference with the function and purpose of the appraisal district and appraisal review board.

There is present here another factor that argues in favor of mandamus relief. The record reflects that there are 36 similar cases pending in other district courts of our state, all brought by taxing units and many involving common defendants. Finding that the cases involve common material questions of fact and law, the presiding judges of the administrative judicial regions involved have assigned them to two pretrial judges pursuant to Rule 11 of the Rules of Judicial Administration. Early appellate resolution of the exclusive jurisdiction issue in this case may aid in the adjudication of those cases and thus help minimize the disruption of processes of government.

Taken together, the burden of expense and delay that would result from trial and appeal of the case, the interference with appraisal district and appraisal review board functions and the presence of a number of other cases involving common questions justify the conclusion that appeal is not an adequate remedy for the trial court’s error of failing to grant relators’ pleas to the jurisdiction.

Conclusion

We conditionally grant the petition for writ of mandamus, directing the trial court to vacate its order of May 3, 2004, and to dismiss the underlying suit. Confident the trial court will comply with this opinion, only in the event the trial court does not do so will we direct this court’s Clerk to issue the writ.

REAVTS, J., concurring.

DON H. REAVIS, Justice,

concurring.

The taxing units allege that the defendant companies engaged in a conspiracy and fraud to fix posted prices for oil. However, because they did not seek relief under sections 15.05(c) and (h) and 15.21 of the Texas Business and Commerce Code Annotated, and without expressing any opinion whether these provisions may provide them a remedy, I concur in the decision of the majority opinion.

      . Relators in'cause number 07-04-0285-CV are Amerada Hess Corporation; Amerada Hess Trading Company; BP Corporation North America, Inc., f/k/a Amoco Corporation; BP America Production Company i/k/a Amoco Production Co.; Arco Oil & Gas Co.; Atlantic Richfield Company a/k/a ARCO Permian; Altura Energy Ltd. n/k/a Occidental Permian Ltd.; Altura Energy LLC n/k/a Occidental Permian Manager LLC; Marathon Petroleum Company; and Marathon Oil Company.
      Relators in cause number 07-04-0286-CV are ChevronTexaco Corporation; Chevron U.S.A., Inc. a/k/a Chevron Products Company; Texaco Inc.; Texaco Exploration & Production, Inc.; Four Star Oil & Gas Company; Texaco Trading and Transportation, Inc; Texaco Refining and Marketing, Inc. a/k/a Texaco U.S.A.; ExxonMobil Corporation 1/k/a Exxon Corporation a/k/a Exxon Company, USA; Mobil Producing Texas & New Mexico, Inc.; ExxonMobil Oil Corporation a/k/a Exxon f/k/a Mobil Oil Corporation; Shell Oil Company; Shell Exploration & Production Company; Shell Western E & P, Inc; Shell Oil Products Company; Equilon Enterprises, LLC; Ash-land Inc.; and Plains Marketing L.P.
      The two petitions for mandamus are not identical, but they are not inconsistent. We do not consider it necessary to distinguish between them in our discussion of the issues presented.

      . All the defendants in trial court cause number 8198 except one, Shell Frontier Oil & Gas, Inc., are included among the relators in one or the other of the two mandamus proceedings.

      . Mineral interests may be listed in appraisal records in the name of the operator designated with the Railroad Commission of Texas. Tex. Tax Code Ann. § 25.12(b) (Vernon 2001).

      . In their pleadings, the taxing units use the term "fixed oil interests” for the oil-producing mineral interests owned or operated by rela-tors.

      . We will use the term “taxing units” for the real parties in interest, following nomenclature used by the parties and by the Tax Code. Section 1.04(12) defines "taxing unit” to include counties and school districts, as well as other political units authorized to impose ad valorem taxes on property.

      . The petition alleges that "Posted prices are the prices that purchasing oil companies publish by bulletin to express the amount that the company is willing to pay for crude oil at the lease. Defendants fraudulently misrepresented that transactions based on posted prices reflected the market value of oil, when in fact these transactions understated market value.”

      . The petition alleges: "Buy/sell or swap sales occur when two parties to a transaction swap a certain volume of commodity in one geographic area in exchange for the agreement to do the same in another geographic area, accounting for transportation costs by cash payment. The parties record these transactions as actual sales of oil and provide a reported price for these transactions that understates the market value of oil. Often, Defendants reported revenues based on posted price as the price at which buy/sell or swap sales occurred ...”

      .The Yoakum County Appraisal District is not a party to the suit.

      . The Property Tax Code is the short title of Title I, consisting of Chapters 1 through 43, of the Tax Code. Tex. Tax Code Ann. § 1.01 (Vernon 2001). All references to the Tax Code in this opinion are to sections of Title I; for simplicity, we will refer to it as the Tax Code. Unless otherwise indicated, all section references refer to the Texas Tax Code Annotated (Vernon 2001).

      . The county tax assessor-collector may serve as a director under some circumstances. See § 6.03(a).

      . The Tax Code provides for substantial involvement of the Comptroller, both direct and indirect, in the work of appraisal districts. It requires the Comptroller, inter alia, to adopt rules establishing minimum standards for administration and operation of a district, to provide for training for appraisal review board members and appraisers, to prescribe the contents of forms and a uniform record system, to issue appraisal manuals and other publications, to publish an annual report of the operations of appraisal districts, and to conduct an annual study of appraisal levels in each district. §§ 5.03-5.101. It further requires the Comptroller to review the standards, procedures and methodology used by certain districts to determine compliance with generally accepted appraisal standards and practices and, if a district is not in compliance, to initiate corrective action. § 5.102. It mandates performance audits of appraisal districts by the Comptroller under certain conditions. § 5.12. Section 5.10, requiring the annual study of appraisal levels in each district within each major category of property, authorizes the Comptroller’s representatives to inspect property used for the production of income to determine its existence and market value. § 5.10(c). An appraisal review board may request the Comptroller to assist in determining the accuracy of the district's appraisals, and the Comptroller may provide other professional and technical assistance. §§ 5.08, 41.65.

      . Defined to include minerals in place. § 1.04(2).

      . See §25.19.

      . Compare Tex. Gov’t Code Ann. § 403.302 (Vernon 1998) (requiring Comptroller to conduct annual study to determine total taxable value of all property in each school district).

      . The current version of section 25.21, which was effective January 1, 1992, reads as follows:
      (a) If the chief appraiser discovers that real property was omitted from an appraisal roll in any one of the five preceding years or that personal property was omitted from an appraisal roll in one of the two preceding years, he shall appraise the property as of January 1 of each year that it was omitted and enter the property and its appraised value in the appraisal records.

      . In so holding, Beck & Masten is consistent with the long-cited precept that fraud will negate an otherwise final assessment. See, e.g., Tex. & Pac. Ry. Co. v. City of El Paso, 126 Tex. 86, 85 S.W.2d 245, 250 (1935); Yamini v. Gentle, 488 S.W.2d 839, 842 (Tex.Civ.App.-Dallas 1972, writ ref'd n.r.e.).

      .Granted, the "back-appraisal” of property under section 25.21 is limited to the five years preceding the chief appraiser’s action. See Harris County Appraisal Dist. v. Reynolds/Texas, J.V., 884 S.W.2d 526, 529 (Tex.App.-El Paso 1994, no writ). Legislative attention to that section leaves no doubt, though, that the five-year limitation is intentional. By a 1991 amendment to section 25.21, the back-appraisal period was shortened from ten years to five. See Act of June 7, 1991, H.B. 507, § 1, 72nd Leg., R.S. 1991 Tex. Gen. Laws 1417.

      . As an alternative, section 43.01 authorizes a taxing unit to bring suit directly against the appraisal district to compel its compliance with Code provisions, rules of the Comptroller or other applicable law.

      . The taxing units’ allegations here involve, from the statements in one paragraph of their pleadings, hundreds of thousands of transactions occurring over a ten- to fifteen-year period.

      . Thus, as Entergy makes clear, 142 S.W.3d at 321-23, 47 Tex. Sup.Ct. J. at 731-32, the exclusive jurisdiction doctrine is grounded in article V, section 8 of the constitution as well as in traditional administrative law concepts. See Cash America Int’l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000).

      . Both opinions quote Humphrey, Comment, Antitrust Jurisdiction and Remedies in an Electric Utility Price Squeeze, 52 U. Chi. L.Rev. 1090, 1107 n. 3 (1985).

      . Tax Code provisions governing appraisal of oil and gas interests are especially detailed. Section 23.175, added in 1993, prescribes the manner in which the average price of oil or gas is to be calculated for use in an appraisal of oil or gas in place by a method that takes into account the future income anticipated from the sale of oil or gas to be produced. (The taxing units' pleadings indicate that oil and gas interests in Yoakum County are appraised by such a method.) That Code section also requires the Comptroller to develop methods and procedures to be used when appraisers discount future income from the sale of oil or gas to present value, and requires appraisal offices to use the methods and procedures specified by the Comptroller. The Comptroller’s manual for that purpose appears at 34 Tex. Admin. Code § 9.4031.

      . See, e.g., §§ 6.01, 41.01.

      . See, e.g., §§ 23.01, 41.07, 41.47.

      . See, e.g., §§ 25.01, et seq., 41.01, et seq.

      . Now codified in Chapter 2301 of the Occupations Code. See Tex. Occ.Code Ann. § 2301.151 (Vernon 2004) (providing board with exclusive original jurisdiction).

      . Now codified in the Utilities Code. See Tex. Util.Code Ann. § 32.001 (Vernon 1998) (granting commission exclusive original jurisdiction).

      . ChevronTexaco Corporation, et at. state in a brief filed in this court that the taxing units’ suit asserts claims only through the late 1990’s. The taxing units’ petition in the trial court alleges at one point that the transactions through which relators conducted their fraudulent scheme took place from the mid-to late-1980’s through the mid- to late-1990’s, but we do not read their pleadings to limit their claims to those arising by that time. Nor do we perceive that the taxing units have in this court characterized their claims as being so limited.


author: JAMES T. CAMPBELL, Justice.

text:
    In re EXXONMOBIL CORPORATION, et al., Relators. In re Chevrontexaco Corporation, et al., Relators.
    Nos. 07-04-0285-CV, 07-04-0286-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 19, 2004.
    William Ikard, William W. Kilgarlin, Laurie Ratliff, Popp & Ikard LLP, Austin, Lynne Liberato, Aleñe Ross Levy, Haynes and Boone, LLP, M. Benjamin Singletary, Dennis Cameron, Lisa Silvestri, Gable & Gotwals, Tulsa, OK, John A. ‘Jad’ Davis, Turner Davis & Gerald, Midland, for rela-tors.
    E.R. Norwood, Cotton Bledsoe Tighe & Dawson, PC, Catherine Zabel, Houston, Shannon H. Ratliff, Bracewell & Patterson, L.L.P., Lisa A. Paulson, Ratliff Law Firm PLLC, Austin, Ed Kliewer III, Kliewer, Breen, Garatoni, Patterson & Malone, Inc., San Antonio, Rodney W. Sat-terwhite, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, Jack Balagia Jr., Mobil Oil Co., Litigation Houston, Macedón, NY, G. Luke Ashley, P. Jefferson Ballew, Adrienne E. Dominguez, Thompson & Knight, LLP, Dallas, Jasper G. Taylor III, Daniel M. McClure, Fulbright & Jaworski L.L.P., James D. Thompson III, Max Hendrick III, Vinson & Elkins L.L.P., H. Lee Godfrey, Thomas W. Paterson, William Christopher Carmo-dy, William R.H. Merrill, Frank T. Apoda-ca, Susman Godfrey, LLP, Houston, Robert Duncan, Peter A. Lowy, Alexandria, LA, Donald M. Hunt, Lawrence M. Doss, Mullin Hoard & Brown, L.L.P., Lubbock, for real party in interest.
    Kelly G. Moore, Brownfield, respondent.
    Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
   ORDER ON MOTIONS FOR ISSUANCE OF WRIT OF MANDAMUS

JAMES T. CAMPBELL, Justice.

On August 26, 2004, we issued an opinion and judgment in companion original proceedings, each seeking a writ of mandamus directing the Honorable Kelly G. Moore, judge of the 121st District Court, Yoakum County, to vacate a May 3, 2004, order denying pleas to the jurisdiction. In re ExxonMobil Corporation, No. 07-04-0285-CV; In re ChevronTexaco Corporation, No. 07-04-286-CV (Tex.App.-Amarillo August 26, 2004) (orig.proceeding). Finding the trial court lacked jurisdiction, we conditionally granted the petition for writ of mandamus, and directed the trial court to vacate its May 3 order and to dismiss the underlying suit. Our opinion stated this court’s Clerk would be directed to issue the writ only in the event the trial court failed to comply with the opinion. Id. at 25.

On October 1, 2004, relators in docket number 07-04-0285-CV filed a motion asserting the trial court had failed to comply with our August 26th opinion and requesting issuance of the writ of mandamus. The motion also asserted the real parties in interest had not obtained a stay of this court’s judgment and relators had moved for an order complying with our ruling. Relators acknowledged the trial court’s delay in rendering an order of dismissal was to provide a reasonable opportunity for the real parties in interest to seek mandamus relief in the Texas Supreme Court. Without agreeing that delay was appropriate, relators argued the real parties in interest had been given a reasonable time to seek a stay in the supreme court and “no basis for further delay exists.” Relators in docket number 07-04-0286-CV filed a similar motion on October 6.

In a response filed October 6, 2004, the real parties in interest reported fifing a petition for writ of mandamus in the supreme court, with a request for temporary relief. The supreme court denied both the petition and the request for temporary relief on October 7, 2004.

We have received correspondence from Judge Moore that includes a copy of an “Order and Final Judgment” also signed October 7, vacating his May 3, 2004 order, granting defendants’ pleas to the jurisdiction and dismissing the case. The trial court’s October 7 order renders moot the pending motions for issuance of writ of mandamus, and they are dismissed.


author: CAMPBELL, Justice.

text:
    Ricky D. STARKS, Appellant, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., Appellee.
    No. 07-03-0278-CV.
    Court of Appeals of Texas, Amarillo.
    Aug. 30, 2004.

      Ricky D. Starks, Amarillo, pro se.
    Greg Abbott, Attorney General, Austin, for Appellee.
    Before QUINN and REAVIS and CAMPBELL, JJ.
   OPINION

CAMPBELL, Justice.

On February 19, 2003, appellant Ricky D. Starks filed a petition, pro se, alleging personal injuries under the Texas Tort Claims Act. Starks is an inmate housed in the William P. Clements Unit of the Institutional Division of the Texas Department of Criminal Justice. On that same day he filed an application to proceed in forma pauperis. Starks’ petition was dismissed by the trial court on March 5, 2003, before service of process on the named defendants and without a fact-finding hearing. The suit was dismissed as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code and Starks appeals the dismissal. We will dismiss the appeal for lack of jurisdiction.

Starks filed a request with the trial court for findings of fact and conclusions of law on May 5, 2003, sixty-one days after the judgment dismissing his case was signed. He filed his notice of appeal on June 9, 2003. We later notified Starks by letter that his appeal appeared to be untimely and was subject to dismissal for want of jurisdiction. Tex.R.App. P. 42.3. We gave him an opportunity to respond.

Starks’ February 19, 2003, pleading was entitled “Plaintiffs Amended or Substitute First Supplemental Complaint Against the Texas Department of Criminal Justice.” It asserted essentially the same claims Starks had presented in an earlier-filed pleading and the trial court clerk filed it in trial court cause number 90,654-B, the same cause as the earlier pleading. Starks’ response to this court’s letter indicates he was confused when he received notice, pursuant to Rule of Civil Procedure 306a, of the trial court’s dismissal of cause number 90,654-B, apparently wrongly believing the dismissal simply meant the court had dismissed his previously-filed complaint and had replaced it with the February 19 filing. His response indicates his misunderstanding of the effect of his filing of an amended petition. See Tex.R. Civ. P. 62-65. With respect to his compliance with applicable rules and procedures, even though he is proceeding pro se, Starks is held to the same standard as a licensed attorney. See Greenstreet v. Heiskell, 940 S.W.2d 831 (Tex.App.-Amarillo 1997, no writ).

In documents filed with this court, Starks acknowledges that he received notice pursuant to Rule of Civil Procedure 306a of the judgment dismissing trial court cause number 90,654-B, within twenty days of the signing of the judgment on March 5, 2003. The provisions of Rule of Civil Procedure 306a(4), therefore, have no application here. The notice of dismissal received by Starks contained the information necessary for him to file a timely notice of appeal.

A motice of appeal must be filed within thirty days after a judgment is signed. Tex.R.App. P. 26.1. This time period is extended to ninety days if a timely request for findings of fact and conclusions of law is filed and such findings are either required by the Rules of Civil Procedure, or could properly be considered by the appellate court. Tex. RApp. P. 26.1(a)(4). Under Rule 296 of the Rules of Civil Procedure a request for findings of fact and conclusions of law must be filed with the clerk of the court within twenty days after the judgment is signed. Tex.R. Civ. P. 296. As noted, appellant filed his request sixty-one days after the judgment was signed. Because appellant’s request for findings of fact and conclusions of law was not filed in a timely manner, the time period for filing a notice of appeal was not extended and appellant’s notice of appeal was due 30 days after the judgment was signed, or no later than April 4, 2003. Tex.RApp. P. 26.1.

Although Starks does not specifically identify his notice of appeal as a notice of restricted appeal, the notice contains language that indicates he is attempting to pursue a restricted appeal. A party who did not participate in the hearing that resulted in the judgment complained of, and who did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), is allowed additional time to file a notice of appeal, pursuant to Rules 26.1(c) and 30 of the Texas Rules of Appellate Procedure, providing for restricted appeals. A restricted appeal is available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. In re E.K.N., 24 S.W.3d 586, 590 (Tex.App.-Fort Worth 2000, no pet.).

A restricted appeal is allowed only if (1) the notice of appeal is filed within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.2004); Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex.1999) (applying former Rule of Appellate Procedure 45). Starks meets the first two elements. We consider here whether Starks participated in the hearing that resulted in dismissal of his cause of action, such that he is disqualified from pursuing a restricted appeal.

The participation element focuses on a litigant’s participation in the “decision-making event” that resulted in the judgment complained of on appeal. See Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589-90 (Tex.1996) (also applying former Rule 45); Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181, 185 (Tex.App.-Fort Worth 2004, no pet.); Diferrante v. Keraga, 976 S.W.2d 683, 685 (Tex.App.-Houston [1st Dist.] 1997, no writ) (applying Rule 45). Courts have recognized the nature and extent of participation that will preclude a restricted appeal is a matter of degree, because the rule must be applied in a wide variety of procedural settings. See Texaco, Inc. 925 S.W.2d at 589; Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex.1985) (applying former Article 2249a of Texas Revised Civil Statutes); Thacker v. Thacker, 496 S.W.2d 201, 203 (Tex.Civ.App.-Amarillo 1973, writ dism’d) (also applying former Article 2249a). In Diferrante the court held that the plaintiffs filing of a response to a motion to dismiss and for sanctions for failure to file an expert report in a health care liability case, together with other pleadings, constituted sufficient participation in the events leading to dismissal of the case to bar a writ of error appeal under former Rule 45. Diferrante, 976 S.W.2d at 685.

Here, the record reflects that appellant participated in the events leading to the dismissal of his case by filing (1) a motion requesting a stay pursuant to Section 14.005(c) of the Texas Civil Practice and Remedies Code, (2) a motion to consolidate his complaint with a complaint previously filed under a separate cause number, (3) a first “supplemental” complaint, (4) an un-sworn declaration of the status of a grievance he filed with the Texas Department of Criminal Justice, (5) an affidavit of previous filings, (6) an application to proceed in forma pauperis, (7) a certified copy of his inmate trust account, (8) an amended or substitute first supplemental complaint, and (9) seven witness statements, all filed before the trial court dismissed appellant’s petition.

Just as disposition by summary judgment, without participation in a formal trial, is provided for under the authority conferred by Rule of Civil Procedure 166a, see Thacker, 496 S.W.2d at 204 (applying participation requirement to summary judgment proceeding), Chapter 14 expressly provides for dismissal of cases subject to its provisions, before or after service of process, if the court makes the specified findings. Tex. Civ. Prac. & Rem. Code § 14.003. The statute authorizes but does not require a fact-finding hearing. Tex. Civ. Prac. & Rem.Code § 14.003(c). The trial court did not hold a hearing prior to dismissing appellant’s complaint as frivolous; dismissal accordingly was based on the pleadings on file at the time of the dismissal. Under the unique provisions applicable to inmate litigation under Chapter 14, we find that appellant, by filing his numerous pleadings, participated to the extent Chapter 14 requires in the decision-making event that resulted in dismissal of his suit.

Our conclusion is consistent with the distinction historically drawn between those who should use a speedier ordinary appeal and those whose circumstances make appeal by writ of error, now restricted appeal, appropriate. See Texaco, Inc., 925 S.W.2d at 590-91; Lawyers Lloyds v. Webb, 137 Tex. 107, 110, 152 S.W.2d 1096, 1097 (Tex.1941); Thacker, 496 S.W.2d at 204. A party who participates in the proceedings leading up to the judgment is familiar with the record and is in a position to prepare an appeal on short notice. Lawyers Lloyds, 137 Tex. at 111, 152 S.W.2d at 1098. A party who has not participated in the actual trial is unfamiliar with the record and may need additional time in which to familiarize himself with the record. Id. In a dismissal, before service of process, pursuant to Chapter 14, the inmate plaintiff is familiar with the record, composed of his own pleadings, and should not need additional time to prepare a simple notice of appeal.

Because the non-participation requirement is mandatory and jurisdictional, when an appellate court determines that an appellant participated in the hearing that resulted in the judgment complained of, the appropriate action is to dismiss the appeal for lack of jurisdiction. Dillard v. Patel, 809 S.W.2d 509, 512 (Tex.App.—San Antonio 1991, writ denied).

The record indicates that appellant participated in the decision-making events that led to the dismissal of his case and as a result he does not meet the requirements for a restricted appeal. His notice of appeal was therefore untimely filed; accordingly, we dismiss the appeal for want of jurisdiction. Tex.R.App. P. 42.3.

      . All references to Chapter 14 refer to Chapter 14 of the Texas Civil Practices and Remedies Code Annotated (Vernon 2002).

      . The appeal was docketed and allowed to proceed because it first appeared to be a timely-filed restricted appeal. As we discuss later in this opinion, we now conclude otherwise.

      . Former Rule of Appellate Procedure 45 was superseded in 1997 by the current Rule 30. Rule 30 replaced the former writ of error appeal with a restricted appeal. The “participation” language also was refined; Rule 45 denied writ of error appeal to one who had participated in the "actual trial of the case.”

      . Lambda Constr. Co. v. Chamberlin Waterproofing & Roofing Sys., Inc., 784 S.W.2d 122, 124 (Tex.App.-Austin 1990, writ denied) (citing Nutter v. Phares, 523 S.W.2d 292, 293 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.)).