author: KEASLER, J., HOLCOMB, J.,

text:
    Ramon REYNA, Appellant v. The STATE of Texas.
    No. PD-0255-04.
    Court of Criminal Appeals of Texas.
    June 29, 2005.

      Ronald W. Danforth, McKinney, for Appellant.
    Jeffrey Garon, Asst. District Atty., McKinney, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

in which KELLER, P.J., and MEYERS, PRICE, HERVEY, and COCHRAN, JJ., joined.

At Ramon Reyna’s trial, he attempted to introduce evidence which the trial judge excluded. He did not argue that the Confrontation Clause demanded admission of the evidence, but the Court of Appeals reversed the conviction on these grounds. We conclude that the appellate court erred because Reyna, as the proponent of the evidence, was required to offer the evidence for its admissible purpose, and he did not do so.

FACTS

Reyna was charged with indecency with a child. At trial, after the State had examined the victim, Reyna sought to introduce evidence of the victim’s prior false allegation of sexual assault and her recantation of that allegation. The judge conducted the following in camera hearing:

[DEFENSE COUNSEL]: Your Honor, for the record, the witness in front of the Court now is named [the victim]. The question that I would put to her is whether or not she was the victim of a sexual assault by a Mr. Miorga, her mother’s boyfriend. The date of the event would have occurred in 1995 or '96, where she took her two siblings and ran across the street to ánother house to report the sexual misconduct. And subsequent to that Angela was informed by the children what had happened, and Grandma Pat Reyna was also informed what had happened. And that after the incident was discussed amongst the adults and the children, [the victim] would testify that it did not happen, and that the allegation was false and no charges were filed against Mr. Miorga. The witnesses that also would testify similar to that testimony would be Pat Reyna, the grandmother; Les Gage, the, I guess you call step-father; Angela Rhea, [the victim]’s mother; Leslie Gage, [the victimj’s sister; and Joshua Gage, is [the victim]’s brother.
THE COURT: What you are saying is she would testify that she made an allegation of sexual abuse against a man in '95, and then admitted that it didn’t happen, and she would testify it never happened?
[DEFENSE COUNSEL]: That’s correct.
THE COURT: The purpose of bringing that in?
[DEFENSE COUNSEL]: Credibility issue at this point in time, Your Honor. She’s making similar allegations later on against another gentleman. And I’m not offering it to prove the truth of the matter asserted. I’m not offering it to go into her sexuality. I’m offering it to demonstrate that as to prior sexual activities, that she made allegations that there were prior sexual allegations, and recanted.
THE COURT: State objects?
[PROSECUTOR]: Yes.
THE COURT: The objection is sustained.

The judge then ordered that the record of the hearing be sealed for appeal.

PROCEDURAL HISTORY

The jury found Reyna guilty and assessed punishment at 10 years in prison and a $10,000 fine. The judge followed the jury’s recommendation to suspend the sentence and placed Reyna on community supervision for 10 years.

Reyna filed a motion for new trial arguing that “[e]vidence was withheld from the trier of fact in violation of the laws of the State of Texas.” He did not elaborate but cited Kesterson v. State and Fox v. State in support. The motion was overruled by operation of law.

On appeal, Reyna argued in his third point of error that the trial court erred “in regards to the matters of the hearing outside the presence of the jury.” Within this point, he “urge[d] any and all points of error from the sealed hearing.” He argued he was “denied a fair and impartial trial based upon the exclusion of evidence which was exculpatory in nature.” And he argued that he was denied his right to “fully cross examine critical witnesses, including but not limited to the accusing witness.” He offered no authority or argument in his brief, although he did state that he brought “to the attention of the trial court” Kesterson and Fox.

The Court of Appeals resolved these arguments in Reyna’s favor in a single sentence: “Evidence that a complainant has made previous false allegations of sexual misconduct is admissible.” The court cited but did not discuss Hughes v. State and Thomas v. State.

The State moved for rehearing and simultaneously filed a motion to view the sealed record. The Court of Appeals granted the motion to view the record but overruled the motion for rehearing.

We granted the State's petition for discretionary review on four grounds.

ANALYSIS

Sealed Record

The State argues in its first ground for review that the Court of Appeals erred in reversing the judgment without unsealing the record. The State contends that, since the in camera hearing never should have been sealed in the first place, the Court of Appeals should have unsealed the record and allowed the parties to review it and brief the issues accordingly. In lieu of that, the State argues, the Court of Appeals should have independently reviewed the record and determined whether any issues were preserved.

We agree that the appellate court should have unsealed the record. As the Court of Appeals recognized, there was no basis for sealing the record in this case. Although the trial judge’s rationale is not revealed in the record, the parties and the appellate court presume that the judge sealed the record pursuant to Evidence Rule 412(d). But as the Court of Appeals notes, that rule applies to eases of sexual assault, aggravated sexual assault, or an attempt to commit those offenses. It does not on its face apply to a case of indecency with a child.

Since the record of the in camera hearing never should have been sealed, the appellate court should have unsealed it and allowed the parties to view it before briefs were filed. Nevertheless, after handing down its opinion, the Court of Appeals granted the State’s motion to view the record, and both parties have had the opportunity to review it in filing briefs before this Court. We therefore proceed to the merits of the case.

Preservation of Error

In its second ground for review, the State complains that Reyna made only an evidentiary argument to the trial judge, but the appellate court reversed the conviction on constitutional grounds. Although the Court of Appeals did not mention the Confrontation Clause in its opinion, the cases that it cited both rely on the Confrontation Clause. The State contends that Reyna failed to preserve this constitutional argument in the trial court and, as a result, it should not be the basis for reversal on appeal.

Legal Background

At first blush, the State’s argument appears to lack merit. We have held, and the Rules of Evidence make clear, that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling. Since Reyna did both these things, he seems to have preserved error.

But a less common notion of error preservation comes into play in this case, although certainly not a novel one. Professors Goode, Wellborn and Sharlot refer to it as “party responsibility.” They explain it this way:

To the question, which party has the responsibility regarding any particular matter, it is infallibly accurate to answer with another question: which party is complaining now on appeal? This is because in a real sense both parties are always responsible for the application of any evidence rule to any evidence. Whichever party complains on appeal about the trial judge’s action must, at the earliest opportunity, have done everything necessary to bring to the judge’s attention the evidence rule in question and its precise and proper application to the evidence in question.

The basis for party responsibility is, among other things, Appellate Rule 33.1. It provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party “stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint.” So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.

We recently discussed this notion in Martinez v. State There, the defendant moved to suppress oral statements due to the State’s failure to comply with Art. 20.17. The State argued for the first time on appeal that Art. 20.17 did not apply. We concluded that the State forfeited this argument by failing to bring it to the trial judge’s attention. We explained that “both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are ‘judge-protecting’ rules of error preservation. The basic principle of both rules is that of ‘party responsibility.’ ” We recognized that “the party complaining on appeal (whether it be the State or the defendant) about a trial court’s admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge’s attention the evidence rule or statute in question and its precise and proper application to the evidence in question.” The issue, we said, “is not whether the appealing party is the State or the defendant or whether the trial court’s ruling is legally ‘correct’ in every sense, but whether the complaining party on appeal brought to the trial court’s attention the very complaint that party is now making on appeal.”

Similarly, in Willover v. State, the defendant sought to admit two videotaped interviews of the victim. At trial, “it [was] clear that, although [the defendant] did not actually recite the specific rule of evidence he was relying upon, [he] sought to admit the videotapes for impeachment purposes. [He] did not argue, nor was there any discussion at trial, that the tapes were not hearsay or that the videotapes were admissible under any exception to the hearsay rule other than Article 38.071 or for impeachment purposes.”

On appeal, the defendant argued for the first time that the videotapes were not hearsay. We relied on the notion of “party responsibility” to reject this argument because “[i]n order to have evidence admitted under a hearsay exception, the proponent of the evidence must specify which exception he is relying upon.” -It was up to the defendant, we said, and “not the trial court, to specify which exception to the hearsay rule he was relying upon or to specify how the evidence was not hearsay.”

In some cases, we have applied the “party responsibility” theory without using those precise words. In Clark v. State, the State presented the testimony of Dr. James Grigson that the defendant would be a future danger. The defendant sought at trial to introduce a letter and accompanying report which listed eleven individuals convicted of capital murder whose sentences had later been commuted or reduced. In several of those cases, Dr. Grigson had predicted that the individual would be a future danger. The trial court refused to admit the evidence. .

On appeal, the defendant argued that the excluded evidence was admissible to impeach Dr. Grigson and show that his prior future dangerousness predictions had turned out to be incorrect. But the defendant had not articulated this basis for admission at trial. At trial, he had argued the evidence was admissible to impeach statements that Dr. Grigson had made in Lubbock County. The State had objected that the impeachment went to a collateral matter, and the trial judge had agreed.

We rejected the defendant’s argument on appeal because- he “did not clearly articulate” that he wanted to admit the evidence to demonstrate Grigson’s past mistakes in predicting future dangerousness. We said that the trial judge “never had the opportunity to rule upon [the defendant’s] appellate rationale.” Since the defendant “did not sufficiently clearly expressly offer the evidence for the purpose which he now claims on appeal,” that argument could not be raised on appeal.

Finally, in Jones v. State, the defendant sought at trial to admit the grand jury testimony of a witness who asserted her Fifth Amendment privilege against self-incrimination and refused to testify. The State objected, claiming hearsay. We concluded that the defendant failed to preserve error because he never specified which portions of the witness’s testimony he wanted to. admit into evidence. We said:

The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. In this case, because the trial court chose to exclude the evidence, appellant is the party adversely affected by his own default. Because appellant failed to specify which portion of the transcript he intended to introduce into evidence, the court was presented with a proffer containing both admissible and inadmissible evidence. When evidence which is partially admissible and partially inadmissible is excluded, a party may not complain upon appeal unless the admissible evidence was specifically offered.

Application

In this case, Reyna argued to the trial judge that the evidence should be admitted for “credibility.” He said that he was “not offering it to prove the truth of the matter asserted” and “not offering it to go into her sexuality.” Instead, he argued, “I’m offering it to demonstrate that as to prior sexual activities, that she made allegations that there were prior sexual allegations, and recanted.”

Reyna did not cite to any rules of evidence, cases, or constitutional provisions. Reyna’s references to “the truth of the matter asserted” reflect that he was arguing that the evidence was not hearsay under Evidence Rule 801(d), His claim that he was not offering it “to go into her sexuality” reflects his argument that the evidence should not be excluded under Evidence Rule 412(b). These arguments are both based on the Rules of Evidence. Reyna’s reference to “credibility” could be a reference to either the Rules of Evidence or the Confrontation Clause.

Reyna told the trial judge that the purpose of admitting the evidence was to attack the victim’s credibility, but he did not provide the basis for admitting the evidence. He could have been relying on the Rules of Evidence or the Confrontation Clause. It was up to the judge to discern some basis for admitting the evidence.

We have said that “[t]he purpose of requiring [an] objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection.” When a defendant’s objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error. An objection on hearsay does not preserve error on Confrontation Clause grounds.

Although this case involves a proffer of evidence rather than an objection, the same rationale applies. Reyna did not argue that the Confrontation Clause demanded admission of the evidence. Reyna’s arguments for admitting the evidence could refer to either the Rules of Evidence or the Confrontation Clause. His arguments about hearsay did not put the trial judge on notice that he was making a Confrontation Clause argument. Because Reyna “did not clearly articulate” that the Confrontation Clause demanded admission of the evidence, the trial judge “never had the opportunity to rule upon” this rationale. As the losing party, Reyna must “suffer on appeal the consequences of his insufficiently specific offer.” Reyna did not do “everything necessary to bring to the judge’s attention the evidence rule or statute in question and its precise and proper application to the evidence in question.” The Court of Appeals erred in reversing Reyna’s conviction on a ground that he did not present to the trial judge.

JUDGMENT

Because of our resolution of the State’s first two grounds for review, we need not reach the remaining grounds. They are dismissed. We reverse the judgment of the Court of Appeals and reinstate the judgment of the trial court.

HOLCOMB, J., filed a dissenting opinion in Part I of which WOMACK, J., joined and in which JOHNSON, J., joined in full.

HOLCOMB, J.,

filed a dissenting opinion, in which JOHNSON, J., joins. WOMACK, J., joins as to part I.

Today, the Court engrafts yet another new requirement — “party responsibility”— onto our preservation of error rules, see Tex.R.App. P. 33.1; Tex.R. Evid. 103, and in so doing again denies a criminal defendant an enumerated constitutional right, see e.g., Keeter v. State, in this case, the right to confrontation. Because this novel theory is not applicable to the facts at hand, I respectfully dissent.

Discussion

I.

I would hold that the offer of proof here and trial counsel’s reasons for requesting the right to question the witness about a subsequent accusation and recantation, preserved error of a confrontation eom-plaint because it was made with “sufficient specificity to make the trial court aware of [a confrontation] complaint,” and, the complaint was “apparent from the context of the objection.” See Tex.R.App. P. 33.1. The language of Rule 33.1 does not support the majority’s “party responsibility notion.” Supra at 177. Specifically, Rule 33.1 provides that error is preserved if “the specific grounds [not ground] are apparent from the context.” This language, of course, implies that more than one ground may be preserved by a general request for the admission of evidence [or objection to evidence] if the grounds supporting admission are apparent from the context. The Court’s holding today lops off half of the rule; that is, if there could be more than one ground for admission raised by a general argument for admission of evidence, the proponent of the evidence loses automatically, unless of course he splits hairs, something we have said a party is not required to do to. See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.App.1992). Nevertheless, as explained in the following discussion, I believe the record supports the fact that appellant preserved just one complaint — a confrontation clause complaint; and therefore, the majority’s application of its “less common notion” is in error.

The majority reasons that the less common notion of “party responsibility” prevents admission here because at least two grounds for admission of the evidence were articulated by defense counsel, the proponent of the evidence. However, a careful reading of defense counsel’s arguments belies the majority’s reasoning. Defense counsel made two arguments that the evidence should not be excluded under the rules of evidence. First, he argued that the evidence was not subject to exclusion under the hearsay rules because it was not hearsay — it was not being admitted for the truth of the matter asserted therein. Second, and also in an apparent effort to counter an anticipated argument — i.e., that the court should exclude the evidence based on Rule of Evidence 412(b), defense counsel argued that he was not offering the evidence “to go to her sexuality.” Both of these arguments were responses to anticipated arguments for exclusion of the evidence that the State never made. On the other hand, defense counsel’s third argument that the evidence should be admitted centered on his right to test the credibility of the witness before the jury, which is clearly a reference to the Confrontation Clause.

Speaking for defense counsel, however, the majority reasons that his “reference to credibility could be a reference to either the Rules of Evidence or the Confrontation Clause”; and because this fatal error so confused the trial judge, we now may summarily deny appellant his right to review based on the Confrontation Clause. Supra at 179. See Tex.Code CRiM. PROC. Ann. § 44.02.

Although the majority demands specificity from defense counsel, it is not willing to name the rule (or rules) of evidence it attributes to appellant. Should a reviewing court demand that parties make their objections so specific that no more than one ground for relief could be intertwined within another possible ground for relief, the other unnamed ground for relief should be specifically articulated. But because the majority does not do this, I will review every rule of evidence that uses the word “credibility” (as it relates to witnesses before the jury) to determine whether such an evidentiary argument can be reasonably attributed to appellant.

Rule 607, which is entitled “Who May Impeach” provides that, “The credibility of a witness may be attacked by any party, including the party calling the witness.” The majority cannot reasonably conclude that defense counsel was invoking this rule because he was not being denied the right to attack the witness’s credibility. Rather, defense counsel thoroughly cross-examined the witness after the in camera request to question her about a similar accusation she made against another man. Additionally, Rule 607 is clearly inapplicable because it was promulgated to replace the former “voucher rule,” which prohibited a party from cross-examining a turncoat witness it called. See Russeau v. State, 785 S.W.2d 887, 390 (Tex.Crim.App.1990). This rule just does not fit here.

Rule 609(a)- — entitled Impeachment by Evidence of Conviction of Crime — mentions the word “credibility,” but it is also inapplicable here. Rule 610 prevents parties from offering evidence of a witness’s religious convictions to show credibility or lack of credibility. This rule could not be reasonably attributed to appellant’s credibility argument. Rule 608(a)(l)(2) provides the general guidelines to attack the credibility of a witness; thus, it would not directly support admission of the evidence here.

Because defense counsel was prevented from asking the complaining witness about a specific instance of past conduct — that she accused another man of molesting her and then later recanted, it would seem to draw Rule 608(b) into play. But this would be an odd interpretation of defense counsel’s argument for admission of the evidence, as Rule 608(b) is a rule of exclusion. Moreover, we have already ruled, albeit pre-Crawford, that there is no Confrontation Clause exception to the rule preventing cross-examination of witnesses upon specific instances of conduct. See Lopez v. State, 18 S.W.3d 220, 223 (Tex. Crim.App.2000).

Therefore, defense counsel’s argument can only be interpreted as an effort to invoke the protections of the Confrontation Clause, as the trial court was limiting appellant’s right to cross-examine the complaining witness about her similar accusation and later recantation. That is, it just makes no sense to attribute to defense counsel an evidentiary argument, as it appears no evidentiary argument would be helpful in admitting the accusation/recantation evidence.

Conversely, defense counsel’s argument that the evidence goes to the complaining witness’s credibility is most rationally centered on the Confrontation Clause. In Davis v. Alaska, the Supreme Court reversed a conviction, without a finding of harm, based on the Confrontation Clause, where the trial court refused to permit cross-examination of a material witness as to motive and bias. 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); accord United States v. Cronic, 466 U.S. 648, 656-57, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); cf. Carmona v. State, 698 S.W.2d 100, 103-04 (Tex.Crim.App.1985). We have construed this requirement to mean that a defendant may not be deprived of effective cross-examination. See Carmona, 698 S.W.2d at 104. Defense counsel’s request to cross-examine the witness so as to reflect her “credibility” and the trial court’s refusal to permit it, presents a classic Sixth Amendment deprivation argument; i.e., without the ability to cross-examine the witness upon her similar accusation and recantation, appellant would be deprived of his right to confrontation. See id.

And, the Supreme Court’s reasoning in Crawford v. Washington also supports the contention that defense counsel’s intent here was to invoke the protections of the Confrontation Clause and nothing else. In Crawford, the Court explained that the text of the Sixth Amendment “is most naturally read as a reference to the right of confrontation at common law,” which traditionally demanded “live testimony in court subject to adversarial testing.” 541 U.S. 36, 43, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (emphasis added). Any exceptions to the right of confrontation are only those recognized at common law. See id. at 54, 124 S.Ct. 1354. While Crawford’s holding addressed the admission of an out-of-court statement and the defendant’s inability to cross-examine the out-of-court de-clarant, the primary focus of the opinion is directed at the common law guarantee to cross-examine the witnesses against the accused in order to “tease out the truth” before the trier of fact. See id. at 67, 124 S.Ct. 1354. Indeed, the lion’s share of the majority opinion is devoted to the proposition that the confrontation right requires adversarial testing of the witness before the trier of fact so that the trier of fact can determine the witness’ credibility. See id. at 43^6, 124 S.Ct. 1354 (development of confrontation right at common law as it related to cross-examination of the witness before the trier of fact to determine credibility). Thus, the primary goal of the confrontation right, as Chief Justice Rehnquist points out in concurrence, is to allow the jury to determine the witness’ credibility:

[Cjross-examination is a tool used to flesh out the truth, not an empty procedure. See Kentucky v. Stincer, 482 U.S. 730, 737, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (“The right to cross-examination, protected by the Confrontation Clause, thus is essentially a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial”); see also Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact”).

See 541 U.S. at 74, 124 S.Ct. 1354 (Rehnquist, J., concurring).

Thus, as our binding authority suggests, we should be hesitant to conclude that, pursuant to a procedural rule (or a new interpretation of that rule), a defendant’s request to test the credibility of the witness through cross-examination is too vague to put the trial court on notice that the defendant is invoking the protections of the Confrontation Clause. See Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (“an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review”).

While defense counsel’s reason for admitting the evidence was not a model of clarity, I would hold that it put the trial court on notice that appellant’s right to confrontation would be violated if he was not allowed to test the witness’ credibility through extended cross-examination. See id.; Tex.R.App. P. 33.1. The most reasonable interpretation of defense counsel’s “credibility” argument is that, in this indecency with a child case, appellant was complaining about the limitations being placed on his right to cross-examine the witness, which is clearly a Confrontation Clause complaint. See Brooks v. State, 132 S.W.3d 702, 705 (Tex.App.-Dallas 2004, pet ref'd).

II.

It is true that defense counsel could have said, “Excluding the evidence would infringe on Mr. Reyna’s right to confront the witnesses against him under our state and federal constitutions.” But, under the majority’s reasoning set forth in Keeter, this would be a plain-vanilla argument insufficient to draw the trial court’s attention to constitutional error because there would be no mention of case authority, such as Crawford v. Washington, Davis v. Alaska, or Long v. State. See Keeter v. State, at -, 2005 WL 766974, *3, 2005 Tex.Crim.App. LEXIS 521 *12.

I must add that I am dismayed by this Court’s willingness to overturn decisions of the lower appellate courts based on newly created theories, such as the majority’s admittedly “less common notion” of party responsibility here. Put simply, the court of appeals did not err; it based its decision on controlling case law from this Court and a proper application of the rules.

Furthermore, I do not understand why this Court repeatedly construes the procedural default concepts of Tex.R.App. P. 33.1 to “protect” trial courts, as if trial judges are laymen rather than experts in law and procedure. The state and federal constitutions do not protect trial courts — rather, they protect the criminally accused. U.S. Const, amend VI; Tex. Const, art. I, § 10.

With today’s holding, we are not heading down a slippery slope; we have hit rock bottom. The majority decision today holds litigants to such a high standard that even the most careful, alert, knowledgeable, and brilliant lawyer can be tripped up, and the constitutional rights belonging to his client will be unavailable due to a judicially crafted enlargement of a reasonable and fair rule of court. We should not allow our new “less common notions” of hair-spitting analyses gut the constitutional rights of citizens accused. For these reasons, I dissent.

      . 997 S.W.2d 290 (Tex.App.-Dallas 1999, no pet.)

      . 115 S.W.3d 550 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d).

      . Reyna v. State, No. 11-02-00232-CR, 2003 WL 22838752 (Tex.App.-Eastland, November 26, 2003) (not designated for publication).

      . 850 S.W.2d 260 (Tex.App.-Fort Worth 1993, pet. ref’d).

      . 669 S.W.2d 420 (Tex.App.-Houston [1st Dist.] 1984, pet. ref’d).

      . Reyna, slip op. at 5.

      . Id.

      . Williams v. State, 937 S.W.2d 479, 489 (Tex. Crim.App.1996); Green v. State, 840 S.W.2d 394, 407 (Tex.Crim.App.1992); Stewart v. State, 686 S.W.2d 118, 122 (Tex.Crim.App.1984); Tex.R. Evid. 103(a)(2).

      . 1 Stephen Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 103.2 (2d ed.1993) (emphasis deleted).

      . Tex.R.App. P. 33.1(a)(1).

      . 91 S.W.3d 331 (Tex.Crim.App.2002).

      . Id. at 335.

      . Id. at 335-36 (internal quotations omitted).

      . Martinez, 91 S.W.3d at 336, citing State v. Mercado, 972 S.W.2d 75 (Tex.Crim.App.1998).

      . 70 S.W.3d 841 (Tex.Crim.App.2002).

        .Id. at 844.

      . Id. at 846 and n. 4.

      . Id. at 845-56.

      . 881 S.W.2d 682 (Tex.Crim.App.1994).

      . Id. at 694.

      . Id.

      . Id.

      . Id.

      . 843 S.W.2d 487 (Tex.Crim.App.1992).

      . Id. at 492-93.

      . Id.

      . Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim.App.2000).

      . Cantu v. State, 939 S.W.2d 627, 634 (Tex.Crim.App.1997).

      . Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim.App.2004).

      . See Clark, 881 S.W.2d at 694.

      . See Jones, 843 S.W.2d at 492.

      . See Martinez, 91 S.W.3d at 335-36.

      . PD-1012-03, - S.W.3d -, -, 2005 WL 766974, *1-3, 2005 Tex.Crim.App. LEXIS 521 *9-14 (Tex.Crim.App.2005) (holding appellant did not preserve Brady claim where factual issue of disclosure by prosecutor of impeachment evidence was litigated in motion for new trial).

      . We have held that "No technical considerations or form of words” are required to preserve error for review. Id. (straightforward communication in plain English will always suffice if it lets the trial judge know what the party wants and why he thinks himself entitled to it).

      . Trial counsel's lack of clarity may be attributed in part to the State's failure to specifically object to appellant’s offer of proof. See supra at 176 (Court: "State objects?”; Prosecutor: "Yes”); see also Tex.R. Evid. 103(2),(b).

      . See also, Keeter, at-, 2005 WL 766974 *2-3, 2005 Tex.Crim.App. LEXIS 521 *11-12 (intertwined legal arguments during motion for new trial death knell to complaint on appeal).

      . Both the State and the majority agree that Rule 412(b) is not applicable here, so I will not address it.

      . The Federal Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” See also, Lopez v. State, 18 S.W.3d at 222 (a primary interest secured by the Confrontation Clause is the right of cross-examination); Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987) (outlining state confrontation right), cert. denied, 485 U.S. 993, 108 S.Ct. 1301, 99 L.Ed.2d 511 (1988), overruled by Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App.1990).

      . See Delaware v. Fensterer, 474 U.S. 15, 18, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (confrontation right is invoked by two broad circumstances: the admission of out-of-court statements and restrictions imposed by law or by the trial court on the scope of cross-examination).

      . Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); see also, Davis v. Alaska, 415 U.S. at 318, 94 S.Ct. 1105 (confrontation right abridged where the trial court did not permit defense counsel to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.”) (emphasis added).

      . Citing Douglas v. Alabama, 380 U.S. at 421-23, 85 S.Ct. 1074 the Dallas Court of Appeals concluded that a hearsay objection which also invoked a right to cross-examination, preserved constitutional error under the Sixth Amendment.

      . See Tex.R.App. P.33.1.

      . I agree with the majority opinion concerning the trial court's improper sealing of the record. However, because I would conclude that appellant adequately preserved his confrontation clause claim, I would hold the error harmless.


source: Caselaw Access Project

author: Justice Wright. LANG-MIERS, J.

license: Public Domain

text:
    CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT, Appellant, v. JPD, INC., Appellee.
    No. 05-03-01215-CV.
    Court of Appeals of Texas, Dallas.
    May 25, 2005.

      Daniel K. Bearden, Dallas, for appellant.
    G. Walter McCool, Rick L. Duncan, Brusniak, McCool & Blackwell, P.C., John Brusniak, Jr., Brusniak, Clement, Harrison & McCool, P.C., Dallas, for appellee.
    Before Justices WRIGHT, FRANCIS, and LANG-MIERS.
   OPINION

Opinion by

Justice Wright.

This appeal stems from a suit to collect delinquent taxes filed by the City of Irving (City). Subsequently, Carrollton-Farm-ers Branch Independent School District (CFBISD) intervened in this lawsuit on its own behalf as a plaintiff. The trial court entered judgment in favor of appellee JPD, Inc. on its counterclaim, and CFBISD appealed. In two points of error, CFBISD contends the trial court erred in: (1) concluding that a refund of taxes pursuant to section 42.43(a) of the tax code includes a refund of penalties and interest; and (2) awarding JPD its attorney’s fees. We sustain CFBISD’s second point of error. We affirm that portion of the trial court’s judgment ordering CFBISD to refund to JPD the penalties and interest paid on the incorrect appraised value. We reverse the trial court’s award of attorney’s fees and render judgment that JPD take nothing on its claim for attorney’s fees.

Background

For tax year 1999, the Dallas County Appraisal District (DCAD) appraised JPD’s property at $2,992,780.00. JPD protested this appraisal with the Dallas County Appraisal Review Board. Dissatisfied with its administrative protest, JPD filed a lawsuit on October 2, 2000 against DCAD and the appraisal review board seeking judicial review.

Seven days after JPD filed its protest lawsuit, the City sued JPD for delinquent taxes pursuant to chapter 33 of the tax code. CFBISD intervened as a plaintiff in the delinquency lawsuit. JPD filed an answer. Nothing further occurred in this lawsuit until JPD filed its counterclaim on December 20, 2001.

Meanwhile, both the City and CFBISD persisted in their efforts to collect taxes from JPD, obtaining several tax warrants. To avoid execution of the tax warrants, JPD made partial payments of the taxes, penalties, and interest assessed on the original appraisal. CFBISD and the City collected $73,463.80 from JPD before the appraised value was finally determined to be over two million dollars less than the original appraised value.

On September 4, 2001, JPD entered into an agreed judgment with DCAD and the appraisal review board lowering the appraised value of JPD’s property from $2,992,780.00 to $186,300.00. Neither party appealed this judgment. Once the property’s appraised value was reduced, CFBISD’s property tax on the property was reduced from $48,294.49 to $3,006.32. By the time the agreed judgment was entered reducing the property’s appraised value, JPD had paid CFBISD $54,104.85 in taxes, penalties, and interest. CFBISD refunded $31,046.24 to JPD. CFBISD did not refund the penalties and interest JPD paid on the incorrect, higher appraised value of $2,992,780.00.

JPD filed a counterclaim in the delinquency suit seeking a refund of the portion of the penalties and interest calculated on the incorrect appraised value. This case was tried to the court on stipulated facts. The trial court granted judgment in favor of JPD ordering CFBISD and the City to refund JPD the difference between the penalties and interest paid and the penalties and interest due based on the current tax roll. The trial court also awarded JPD its attorney’s fees. ■ CFBISD timely appealed.

Penalties and Interest

In its first issue, CFBISD contends the trial court erred in concluding that the tax code is ambiguous as to whether the term “taxes” as used in reference to any refund due under section 42.43(a) of the tax code includes penalties and interest and erred in resolving that ambiguity in favor of JPD.

In a case tried to the court on stipulated facts, the reviewing court generally may not find any facts not conforming to the agreed statement, unless the agreement provides otherwise. State Bar v. Faubion, 821 S.W.2d 208, 205 (Tex.App.Houston [14th Dist.] 1991, writ denied). Accordingly, we will, review only the correctness of the trial court’s application of law to the stipulated facts, and will not infer or find any facts absent from the parties’ stipulation. See Rabinowitz v. Cadle Co. II, Inc., 998 S.W.2d 796, 797 (Tex.App.-Dallas 1999, pet. denied).

A property owner who disagrees with an appraisal has the right to an administrative protest as provided in chapter 41 of the tax code. See Tex. Tax Code Ann. § 41.41(a) (Vernon 2001). If the property owner is dissatisfied with the determination of his protest, he has the right to judicial review as provided in chapter 42 of the tax code. See Tex. Tax Code Ann. § 42.01 (Vernon 2001). A property’s appraised value may be determined only in a chapter 42 suit brought by the taxpayer. Tex. Tax Code Ann. § 42.09 (Vernon 2001). Once a chapter 42 review is determined, the chief appraiser must correct the appraisal roll and other appropriate records to reflect the final determination, and the assessor for each taxing unit must, in turn, correct its tax roll. Tex. Tax Code Ann. § 42.41(a) & (b) (Vernon Supp. 2004-05).

A taxing unit’s legal right to taxes claimed in a chapter 33 lawsuit depends upon the final determination of the appraised value of the property. Because a taxpayer cannot defend a lawsuit for delinquent taxes on the ground that the appraised value of the property is incorrect, it necessarily follows that judgment in the chapter 33 delinquency lawsuit be deferred until the chapter 42 appraisal appeal is resolved. See New v. Dallas Appraisal Review BcL, 734 S.W.2d 712, 717 (Tex.App.-Dallas 1987, writ denied); Valero Transmission Co. v. San Marcos Consolidated Indep. Sch. Dist., 770 S.W.2d 648, 651 (Tex.App.-Austin 1989, writ denied). The amount of delinquent taxes owed, including penalties and interest, cannot be determined until the valuation of the property is finally determined. See New, 734 S.W.2d at 717.

In a suit for delinquent taxes, a taxing unit’s recovery of taxes, penalties, and interest is assessed from the current tax roll. If a taxpayer has filed a chapter 42 lawsuit and the appraised value is subsequently lowered, the tax roll is corrected. The corrected tax roll becomes the current tax roll for purposes of a lawsuit for delinquent taxes. See Tex. Tax Code Ann. § 42.41(a) & (b) (Vernon Supp: 2004-05). Accordingly, a taxing unit is entitled to penalties and interest only on the corrected amount.

JPD’s chapter 42 suit against the appraisal district resulted in a final agreed judgment that neither party appealed. Following the conclusion of its chapter 42 lawsuit, JPD came back into the chapter 33 delinquent tax lawsuit with the corrected tax roll and counterclaimed for a refund of the portion of the penalties and interest it had already paid on the erroneous appraised value. In its counterclaim, JPD states that a final judgment had been entered in its protest suit, resulting in a lower appraised value of its property. Based on the corrected tax roll, JPD sought a refund of the excessive penalties and interest previously paid. The parties made numerous stipulations, including: (1) the value of JPD’s property was $186,300.00 as finally determined in JPD’s chapter 42 lawsuit; (2) the appraisal district corrected its tax rolls to reflect the lower value; and (3) the amount of penalties and interest calculated on the corrected appraised value in accordance with chapter 33.

The only issue before the trial court in this suit was the proper amount of penalties and interest due based on the current and corrected tax roll as stipulated by the parties. The evidence before the trial court established that JPD paid penalties and interest in excess of what CFBISD was entitled to in its delinquency lawsuit. Thus, in the tax delinquency lawsuit that is currently before us, the trial court correctly held that JPD was obligated to pay penalties and interest only upon the corrected appraisal value.

It is true that the parties, both in the trial court and in this Court, primarily focused their arguments on the meaning of the term “taxes” as used in section 42.43(a). However, this Court’s disposition is grounded in an argument made to the trial court. JPD argued at trial that penalties and interest cannot be calculated until a property’s appraised value is finally determined. Once the appraised value is finally determined, the tax rolls are corrected and the current tax roll is used to calculate penalties and interest recoverable in a delinquency lawsuit under chapter 33. Thus, even assuming, without deciding, the trial court erred in its determination that “taxes” is ambiguous as used in section 42.43(a), it does not mandate a different result because the trial court’s judgment is correct under another legal theory. See Custom Leasing, Inc. v. Texas Bank & Trust Co. of Dallas, 516 S.W.2d 138, 142 (Tex.1974) (duty of the appellate court to sustain trial court’s judgment if it is correct on any theory of law applicable to the case); Lone Star Salt Water Disposal Co. v. R.R. Comm’n, 800 S.W.2d 924, 931 (Tex.App.-Austin 1990, no writ) (stating appellate courts are under duty to uphold correct lower court judgment on any legal theory, even if lower court has relied on incorrect legal theory and even if lower court has given incorrect reason for its judgment). Based on the current tax roll and the parties’ stipulations, the trial court properly awarded JPD a refund of penalties and interest in excess of those calculated on the current tax roll.

Attorney’s Fees

In its counterclaim, JPD also requested attorney’s fees incurred as a result of CFBISD’s failure to pay the amount of tax refund due. Chapter 33 does not provide for a taxpayer to recover attorney’s fees in a delinquency suit. At trial, JPD’s attorney stated that JPD was requesting attorney’s fees pursuant to section 42.43(d) of the tax code. Pursuant to section 42.43(d), a property owner who prevails in a suit to compel a refund required by 42.43 that is filed on or after the 180th day after the appraisal roll is corrected is entitled to attorney’s fees. Tex. Tax Code Ann. § 42.43(d) (Vernon 2001). The appraisal district corrected the tax rolls on September 26, 2001. JPD filed its counterclaim against CFBISD on December 20, 2001, a little more than three months before the 180th day after the correction to the tax rolls. Thus, even if JPD’s counterclaim in the delinquency lawsuit is viewed as a suit to compel within the meaning of section 42.43(d), JPD is not entitled to its attorney’s fees. For these reasons, we conclude the trial court erred in awarding attorney’s fees to JPD.

Accordingly, we affirm that portion of the trial court’s judgment ordering CFBISD to pay a refund of penalties and interest in the amount of $14,530.78 plus interest to JPD. We reverse the portion of the trial court’s judgment awarding attorney’s fees to JPD and render judgment that JPD take nothing on its claim for attorney’s fees.

Dissenting Opinion by Justice LANG-MIERS.

LANG-MIERS, J.

dissenting.

In affirming the trial court’s judgment ordering a partial refund of penalties and interest, the majority decides this appeal under the provisions of chapter 33 of the property tax code. I disagree that chapter 33 applies to this appeal because chapter 42 was the basis for JPD’s counterclaim, and section 42.43(a) specifically addresses what the legislature intended to happen in exactly this situation; chapter 33 does not. Because I would decide this appeal under chapter 42 of the code and reverse the trial court’s judgment, I respectfully dissent.

As noted by the majority, this case began as a lawsuit by the City against JPD to collect delinquent taxes under chapter 33 of the property tax code. CFBISD intervened as a plaintiff also seeking to collect delinquent taxes owed by JPD. In a separate lawsuit, JPD sought judicial review under chapter 42 of DCAD’s appraisal of its property value and prevailed. The City and CFBISD were not parties to JPD’s chapter 42 lawsuit. After the appraisal was lowered, CFBISD refunded the difference between the taxes already paid and the taxes owed on the lower appraised value but did not refund any portion of the penalties or interest that JPD had paid. The City did not make any refund to JPD.

When these taxing authorities did not refund any of the interest and penalties it had paid, JPD filed a counterclaim in the chapter 33 lawsuit for the refund it believed it was due under section 42.43(a), which provides:

If the final determination of an appeal that decreases a property owner’s tax liability occurs after the property owner has paid his taxes, the taxing unit shall refund to the property owner the difference between the amount of taxes paid and amount of taxes for which the property owner is liable.

Tex. Tax Code Ann. § 42.43(a) (Vernon 2001). When the case was called to trial, only the issue of the refund under chapter 42 remained.

The trial court granted judgment in JPD’s favor, awarding it a refund of the difference between the taxes, penalties, and interest that JPD paid and the taxes, penalties, and interest due on the lower appraised value, interest on that amount, and its attorney’s fees. The trial court also entered findings of fact and conclusions of law, which included the following:

1. The Texas Property Tax Code is ambiguous as to whether the term “taxes” as used in connection with any refunds due under section 42.43(a), includes all penalties and interest.
2. Any ambiguity arising under the Texas Property Tax Code must be resolved in favor of the taxpayer.

CFBISD appeals the trial court’s conclusions, arguing the language of section 42.43(a) of the property tax code requiring a refund of “taxes” means a refund of base tax only, not a refund of base tax as well as penalties and interest. I agree with CFBISD.

Applicable Law

A trial court’s conclusions of law are reviewed de novo. Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 293 (Tex.App.-Dallas 2001, no pet.). Statutory construction is a question of law. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002); G.E. Capital Corp., 58 S.W.3d at 293. The reviewing court must ascertain and give effect to the legislature’s intent for the provision it is construing. See Fleming Foods v. Rylander, 6 S.W.3d 278, 284 (Tex.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994); Calvert v. Tex. Pipe Line Co., 517 S.W.2d 777, 780 (Tex.1974). The legislature’s intent is determined by reading the language used in the particular statute and construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998); Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 190 (Tex.1981). The starting point is to look at the plain and common meaning of the statute’s words, viewing its terms in context and giving them full effect. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). If the language is unambiguous, the statute will be interpreted according to its plain meaning. State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). The reviewing court reads every word, phrase, and expression in a statute as if it were deliberately chosen and presumes the words excluded from the statute are excluded on purpose. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied); see City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex.App.-Austin 1996) (citing Cameron v. Terrell & Gamtt, Inc., 618 S.W.2d 535, 540 (Tex.1981), aff'd, 7 S.W.3d 109 (Tex.1999)); see also 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.25 (6th ed. 2000) (stating there is generally an inference that omissions from statute are intentional). Rules of construction or other extrinsic aids cannot be used to create ambiguity when the purpose of a legislative enactment is obvious from the language of the law itself. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999).

The Code Construction Act lists factors a court may consider in construing a statute, whether or not its language is ambiguous: (1) the statute’s objectives; (2) the circumstances under which the statute was enacted; (3) the statute’s legislative history; (4) common law, former law, and similar provisions; (5) the consequences of the statutory construction; (6) administrative agencies’ construction of the statute; and (7) the title, preamble, and any emergency provisions. Tex. Gov’t Code Ann. § 311.023(1)-(7) (Vernon 2005); In re Ca-nales, 52 S.W.3d 698, 702 (Tex.2001). The reviewing court must presume the legislature intended a just and reasonable result and favored public over private interests. Tex. Gov’t Code Ann. § 311.021(3), (5); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001).

CFBISD’s Position

CFBISD contends that section 42.43(a) is clear and unambiguous, should be given its common and ordinary meaning, and mandates only a refund of “taxes” because it does not state that the refund includes penalties and interest. See Tex. Tax Code Ann. § 42.43(a). It notes that, although the statutes do not define the words, the statutes do explain how to calculate each of them and that the different methods of calculation demonstrate the terms are intended to mean different things.

CFBISD cites other sections of the property tax code to show that the word “taxes” does not also include “penalties” and “interest.” One such provision is section 26.15(f), which states that “[i]f a correction decreases the tax liability of a property owner after the owner has paid the tax, the taxing unit shall refund to the property owner the difference between the tax paid and the tax legally due, except as provided by Section 25.25(h).” Tex. Tax Code Ann. § 26.15(f). And section 25.25(n) states that “[ajfter a chief appraiser certifies a change under Subsection (b) that corrects multiple appraisals of a property, the liability of a taxing unit for a refund of taxes under Section 26.15(f) and any penalty or interest on those taxes, is limited to taxes paid for the tax year in which the appraisal roll is changed and the four tax years preceding that year.” Tex. Tax Code Ann. § 25.25(h). CFBISD also refers to section 32.01(a) of the property tax code that provides for a lien which will “secure payment of all taxes, penalties and interest ultimately imposed for the year on the property” and section 42.08(b), which states a property owner must pay at least the amount of taxes owed on the undisputed value of the property to be allowed to appeal the property’s appraised value. See Tex. Tax Code Ann. §§ 32.01(a), 42.08(b). CFBISD argues the language in these sections demonstrates the legislature’s intent that the word “taxes” in section 42.43(a) means only the base tax, because the legislature adds the words “penalties” and “interest” when it intends those charges to be included.

JPD’s Position

JPD argues that section 42.43(a) is ambiguous and that the word “taxes” should be construed to include penalties and interest. JPD cites us to other provisions of the property tax code it contends demonstrate that “taxes” in the section at issue is not intended to be limited to base taxes. It argues that the existence of different methods for calculating taxes, penalties, and interest does not mean the refund provided by section 42.43 does not include penalties and interest. For example, under section 31.11, a taxpayer who has voluntarily paid the property tax may apply for a refund of an overpayment or erroneous payment of “taxes.” Tex. Tax Code Ann. § 31.11 (Vernon Supp. 2004-05). JPD reasons, under CFBISD’s definition

of “taxes,” a taxpayer would never get a refund of an erroneous payment of penalties and interest under this section if “taxes” means only base tax. It also contends that CFBISD misinterprets sections 26.15(g) and 25.25(h). It argues that if penalties and interest were not intended to be included as part of the refund of “taxes” under those sections, there would be no need to limit the liability for those refund payments to four years. See Tex. Tax Code Ann. §§ 25.25(n), 26.15(g). JPD also refers to section 31.10, which requires the tax collector to prepare a written report of all “taxes collected” and to deposit “all taxes collected.” See Tex. Tax Code Ann. § 31.10. It argues that under CFBISD’s definition of “taxes,” the tax collector would be responsible for reporting and depositing only the base tax and not the penalties and interest collected. Finally, JPD argues that if the taxing authority does not also have to refund penalties and interest, it will be awarded a disproportionate amount of attorney’s fees under section 6.30, which sets the compensation rate for attorneys hired to collect delinquent property taxes at twenty percent of the delinquent taxes, penalties, and interest. See Tex. Tax Code Ann. § 6.30 (Vernon 2001). If the refund does not include penalties and interest, JPD argues that attorney’s fees will be calculated on that higher amount even though the taxes are substantially reduced and the resulting penalties and interest on that amount would be substantially lower.

JPD contends that taxing statutes are to be construed strictly against the taxing authority and liberally for the taxpayer, and that to interpret the statute otherwise will give the taxing authority a windfall — if the appraisal had been correct initially and those taxes had not been paid timely, JPD would have been liable for penalties and interest only on the lower, unpaid tax. It argues that CFBISD’s interpretation of the statute is contrary to public policy and that it circumvents the taxpayer’s rights under the Texas Constitution because the taxpayer ends up paying penalties and interest on an appraised value in excess of the market value.

Discussion

The language in section 42.43(a) is straightforward: it provides for a refund of taxes and does not provide for a refund of penalties and interest. As a result, based on a review of the plain language of the statute, I conclude it is not ambiguous. Being mindful that if the language itself is clear and unambiguous, rules of construction or extrinsic aids should not be used to conclude it is ambiguous. Fitzgerald, 996 S.W.2d at 865.

This conclusion is supported by a review of other sections of the property tax code. For example, the property tax code provides specific and different methods for calculating taxes, penalties, and interest. Because each is calculated differently, it is reasonable to conclude the legislature intended the words to have different meanings in the property tax code. Additionally, although the words are not defined terms in the property tax code, the word “tax” is defined in section 32.07, entitled “Personal Liability for Tax,” where it states:

(g) In this section:
(2) “Tax” includes any ad valorem tax or money subject to the provisions of Subsection (d), including the penalty and interest computed by reference to the amount of tax or money.

Tex. Tax Code Ann. § 32.07(g). The fact that the legislature specifically defined taxes to also include penalties and interest for purposes of this section suggests that the legislature did not intend for taxes to have that same meaning in other sections.

As each of the parties has pointed out, in some sections the word “taxes” is used alone and in others the words “penalties” and “interest” are also used. To conclude the word “taxes” in this section is ambiguous and that it actually means “taxes,” “penalties,” and “interest,” is to effectively determine that the words “penalties” and “interest” are meaningless and surplusage in those sections where all three words are used together. If the legislature had intended the refund of taxes provided for in section 42.43(a) to include “penalties and interest,” it would have said so, as it did with section 32.07(g)(2).

In making this determination, it is helpful to look at the purpose of the statute. The Texas Property Tax Code was enacted effective January 1, 1982 and “contain[ed] a unified scheme for obtaining administrative and judicial review of property tax appraisals.” Farley P. Katz & Charles J. Muller III, Procedural Rights and Remedies Under the Texas Property Tax Code — A Guide to the Code, Recent Amendments, and Developing Case Law, 18 St. Maky’s L.J. 1209, 1210 (1986). A perception existed that, prior to passage of the code, a number of presumptions were created by the courts to protect the regularity of public revenues. Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., 704 S.W.2d 857, 861 (Tex.App.-Austin 1985, writ refd n.r.e.). The property tax code procedure balances the taxpayer’s due process rights with the need to resolve protests expeditiously; its administrative and judicial review provisions are mandatory and exclusive. Valero S. Tex. Processing Co. v. Stair County Appraisal Dist., 954 S.W.2d 863, 865 (Tex.App.-San Antonio 1997, pet. denied).

Additional evidence of the statute’s purpose is found in Valero Transmission Co., 704 S.W.2d at 860 n. 1, where the court noted:

The new Code concurrently provides for an uninterrupted flow of tax revenue, as evidenced by its provisions for supplemental tax bills, corrected tax bills, and refunds following the administrative-judicial review proceedings, whether the taxpayer’s protest ends with the decision of the appraisal review board, with the judgment of the district court, or with the judgment of an appellate court.[citations omitted] This implies in the strongest terms that an imposed tax shall be paid, as imposed by the taxing unit and as evidenced by a tax bill, in the ordinary course — that is to say, by February 1 of the tax year — subject to the taxpayer’s right of refund on the determination of his protest or the taxing unit’s right of additional tax should it prevail in its administrative “challenge,” whether in the appraisal review board or on judicial review of that board’s determination.

The property tax code sections create a comprehensive method for a taxpayer to challenge the property valuation and the resulting tax while still assuring that the government has a constant source of revenue. See Valero S. Tex. Processing Co., 954 S.W.2d at 865; Valero Transmission Co. v. San Marcos Consol. Indep. Sch. Dist., 770 S.W.2d 648, 650 n. 2 (Tex.App.Austin 1989, writ denied) (noting that section 31.071 has same purpose as section 42.08, which is to secure uninterrupted revenue for taxing authority while allowing property owner to protest appraisal).

The public interest in preserving an uninterrupted revenue stream is further demonstrated by section 42.08 of the property tax code, entitled, “Forfeiture of Remedy for Nonpayment of Taxes.” It provides that the pendency of a suit for ju-clidal review of a dedsion of the . appraisal board does not affect the date taxes become delinquent and that a property owner forfeits the right to a final determination of an appeal from an order of the appraisal review board unless the property owner pays the lesser of:

1. The amount of taxes due on the portion of the taxable value of the property that is not in dispute, or
2. The amount of taxes due on the property under the order from which the appeal is taken.

Tex. Tax Code Ann. § 42.08(b) (Vernon 2001).

The property tax code also allows the property owner to continue the appeal without prepayment of the taxes by filing with the court an oath of inability to pay the taxes at issue, after which the court gives notice, conducts a hearing, and a makes a finding that prepayment would constitute an unreasonable restraint on the party’s right of access to the courts. Tex. Tax Code Ann. § 42.08(d) (Vernon 2001). The legislature emphasized the importance of compliance with this section by also providing that, “[o]n the motion of a party ... [i]f the court determines that the property owner has not substantially complied with this section, the court shall dismiss the pending action.” Id. If the property owner complies with this section, the delinquency date for any additional amount of taxes due on the property is determined by section 42.42(c), and that additional amount is not delinquent before that date. See Jefferson County v. Clark Ref. & Mktg., Inc., 7 S.W.3d 324, 326 (Tex.App.Beaumont 1999, no pet.). If the tax was overpaid, the taxpayer is entitled to a refund of the difference between the amount of taxes paid and the amount of taxes for which the property owner is liable pursuant to section 42.43.

As previously noted, no specific provision exists for a refund of penalties and interest after there has been a final determination on appeal that reduces the tax liability. This makes sense because the statutory scheme establishes a method to avoid paying penalties and interest on the higher and contested appraised value: comply with section 42.08, either by paying all or a portion of the taxes due or by obtaining a ruling from the court that it had substantially complied with that section. It does not envision that a taxpayer appealing a valuation will accrue or pay penalties or interest on the taxes that are due because the statute provides no right to appeal if the taxes are not paid pursuant to section 42.08. And the taxpayer continues to accrue penalties and interest on the unpaid taxes if it does not follow the procedures in section 42.08.

As a result, neither the language in the statute nor a review of the statutory purpose suggests that the legislature meant something other than what it said in this section. Interpreting section 42.43(a) to require a refund of taxes as well as penalties and interest would stray from the plain language of the statute. Fitzgerald, 996 S.W.2d at 866 (“[W]hen we stray from the plain language of a statute, we risk encroaching on the Legislature’s function to decide what the law should be.”). Conversely, construing the section to mean that only base taxes overpaid are refunded, and not penalties and interest, maintains the integrity of the process put in place to assure a continuing revenue stream is protected.

Additionally, JPD argues it would be unfair and against public policy for CFBISD to retain the penalties and interest assessed on the original appraised value. While this may seem a harsh result, it is a result JPD could have avoided by complying with the statute. It is not the role of the judiciary to add words to an unambiguous statute to avoid what is perceived to be an unfair or unjust result. See Smith v. Brooks, 825 S.W.2d 208, 211 (Tex.App.-Texarkana 1992, no writ) (court may not amend a statute by adding provisions under the guise of construction no matter how desirable the provisions might seem); Robinson v. Steak and Ale, 607 S.W.2d 286, 288 (Tex.Civ.App.-Texarkana 1980, no writ) (courts have no authority to enlarge a statute to avoid what they consider an inequitable or unwise result).

JPD also argues that CFBISD’s interpretation of “taxes” results in a violation of JPD’s rights under the Texas Constitution that property will be taxed in proportion to its value and that it will never be assessed taxes at a greater value than its fair cash market value. Tex. Const. art. VIII, §§ 1(b), 20. Failure to refund penalties and interest in this case, JPD contends, is a deprivation of its property without due process. See Tex. Const. art. I, § 19. However, JPD admits that the property tax code procedures accord due process to a taxpayer in the determination of the market value of the taxpayer’s property. When a taxpayer follows this statutory procedure to contest the value assigned and resulting taxes assessed, the taxpayer’s rights under the Texas Constitution are protected. Although JPD argues it followed that procedure, it is undisputed that JPD failed to pay the tax when due or seek a court ruling that it was unable to pay the tax. See Tex. Tax Code Ann. § 42.08. JPD cannot now complain that the consequences of its failure to follow the procedures available, as opposed to the absence of procedures, creates an unconstitutional deprivation of property without due process.

For these reasons, I cannot conclude the statute is ambiguous or that it mandates a refund of the difference between penalties, additional penalties, and interest paid based on the initial appraisal and the amounts due based on the lowered appraisal. I would reverse the judgment against CFBISD and render that JPD take nothing in its claim against CFBISD. I agree with the majority’s disposition of the issue of attorney’s fees. However, because the majority decides this appeal under chapter 33 instead of chapter 42 of the property tax code, I respectfully dissent.

      . Chapter 33 of the tax code provides for a taxing unit to sue for delinquent taxes. See Tex. Tax Code Ann. § 33.41 (Vernon 2001 & 2004-05 Supp.).

      . The trial court ordered the City of Irving to pay JPD a refund of the excess penalties and interest received from JPD by the City. The City of Irving is not a party to this appeal.

      . See Tex. Tax Code Ann. § 42.43(a) (Vernon 2001).

      . Section 33.47(a) provides:
      (a) In a suit to collect a delinquent tax, the taxing unit's current tax roll and delinquent tax roll or certified copies of the entries showing the property and the amount of the tax and penalties imposed and interest accrued constitute prima facie evidence that each person charged with a duty relating to the imposition of the tax has complied with all requirements of law and that the amount of tax alleged to be delinquent against the property and the amount of penalties and interest due on that tax as listed are the correct amounts.
      Tex Tax Code Ann. § 33.47(a) (Vernon 2001).

      . The dissent contends that neither party appeals the issues involved in the chapter 33 lawsuit. To the contrary, the amount of penalties and interest owed to a taxing unit is a key issue in a chapter 33 lawsuit. Chapter 33 provides the relief JPD requested in its counterclaim. Consequently, we have analyzed this appeal under chapter 33.

      . At trial, JPD argued that in a delinquent tax suit, a property’s appraised value must first be finally determined before calculating penalties and interest recoverable in a tax delinquency suit:
      You look at the New case which says you can’t calculate those penalties, interest, and attorney’s fees unless you have an assessed value, an appraised value that’s ultimately decided to be the market value. So you can't — you can’t calculate penalties, interest, and attorney’s fees until you have a Constitutional mandated market value. And in this case, there wasn’t until the judgment came down.

      . The parties advised the trial court that the delinquency issues had been settled and no claims remained against JPD. None of the parties has appealed any of the issues involved in the chapter 33 delinquency lawsuit.

      . Additionally, CFBISD cites us to section 31.01 of the property tax code, which refers to the terms “tax” and "penalty" as distinct terms, Tex Tax Code Ann. § 31.01; section 31.02(a) of the property tax code, which refers to “taxes” and “tax bill,” Tex. Tax Code Ann. § 31.02(a); and section 33.01 of the property tax code, which explains the penalties and interest due on delinquent taxes, Tex. Tax Code Ann. § 33.01.

      . Section 6.30 uses the words "tax,” "penalty,” and "interest” separately.

      . See Tex. Tax Code Ann. §§ 26.09 (calculation of taxes), 33.01 (calculation of penalties and interest), 33.07 (calculation of additional penalty for collection costs for taxes due before June 1).

      . For example, section 31.02 (uses the words "taxes,” "penalty," and "interest” in discussing delinquency date for active military personnel serving in the Persian Gulf); section 31.031 (provides a method by which a disabled person may pay property "taxes” in installments without "penalty” or "interest”); section 31.04 (discussing "penalties” and “interest” calculated on delinquent property "taxes” when the delinquency date has been postponed); section 31.05 (authorizing discounts on "taxes”); section 31.071 (authorizing conditional payments of "taxes” before the delinquency date when filing a challenge or protest); section 31.111 (authorizing refund of duplicate payments of "taxes”); section 31.12 (requiring the taxing unit to pay "interest” on refunds of "taxes” not made within a certain time period); section 32.01 (providing that a tax lien attaches to property on January 1 of each year to secure payment of all "taxes, penalties, and interest” imposed on the property); section 32.07 (imposing personal liability for "taxes,” "penalties” and "interest” in which "tax” is defined to include "penalty” and "interest” for purposes of this section); section 33.01 (discussing "penalties” and "interest” which accrue on delinquent "tax”); section 33.011 (setting out when "penalties” and “interest” may be waived); section 33.02 (providing for the payment of delinquent "taxes,” "penalties,” and "interest” in installments); section 33.06 (authorizing elderly and disabled property owners to defer or abate a suit to collect delinquent "tax” but does not eliminate accrued "penalties” and "interest”); section 33.065 (authorizing a taxpayer to request that collection of delinquent "taxes” be deferred on the portion of the property’s value that exceeds a certain amount, but only if the "taxes” that do not exceed that amount are not delinquent and providing that "interest,” but not "penalties,” continues to accrue during the abatement period); section 33.08 (calculation of "additional penalty” for attorney’s fees for taxes due on or after June 1); section 33.42 (in a suit to foreclose a lien securing payment of “taxes,” if tax becomes delinquent before judgment is entered, judgment must include the "tax” and any "penalty and interest”); section 33.43 (petition to initiate a suit to collect delinquent property tax should allege the amount of “tax” due and the amount of "penalties, interest, and costs” authorized by law and that taxing unit asserts a lien to secure the payment of all "taxes, penalties, interest and costs”); section 33.46 (allowing for the partition of property when property is owned by two or more people and one has paid the "taxes, penalties, interest, and costs” apportioned to him); section 33.48 (authorizing a taxing unit to recover attorney’s fees of fifteen percent of the total amount of "taxes, penalties, and interest” due); section 33.52 (setting out the method by which the "taxes,” “penalties,” and "interest” may be included in a judgment); section 33.93 (providing that a tax warrant directs that property subject to the warrant may be seized as payment of "taxes, penalties, and interest” owing on the property); section 34.01 (authorizing sale of property seized pursuant to foreclosure of tax lien and requiring a calculation of the "taxes, penalties and interest” due under the judgment); section 34.02(b)(3) (applying proceeds of tax sale against "taxes, penalties, and interest” due under the judgment); section 34.04 (referring to “taxes,” "penalties,” and "interest” separately in allocating who may claim a right to excess proceeds from a tax sale); section 41.44 (property owner entitled to a hearing and determination of his protest if the protest was filed prior to "taxes” becoming delinquent); section 42.29 (calculation of attorney’s fees as a percentage of "tax liability” if property owner prevails in an appeal of appraised value); section 42.42(c) ("penalties” and "interest” due on tax in supplemental tax bill calculated as if tax became delinquent on the original delinquency date when taxpayer paid a portion of taxes due before delinquency date); section 42.42(d) ("interest” due on tax included in supplemental tax bill calculated as if tax became delinquent on original delinquency date when property owner did not pay any portion of taxes imposed on the property because the court found that payment would constitute an unreasonable restraint on the taxpayer’s right of access to courts).

      . JPD contends that because its lawsuit against DCAD was not dismissed, JPD should be deemed to have complied with § 42.08. However, that issue is not before the Court. TexR.App. P. 25.1(c).

      . CFBISD cites to Richardson Independent School District v. GE Capital Corp., 58 S.W.3d 290 (Tex.App.-Dallas 2001, no pet.), where the property owner challenged the appraised value of the property but did not pay the taxes before the delinquency date. Ultimately, the valuation and taxes on the property were reduced and a new tax bill was sent out. The taxpayer sought a waiver of penalties and interest and a determination that the delinquency date for the taxes accrued only from the time the new tax bill was sent out. We held that section 26.15(d) of the properly tax code did not nullify the effect of and did not set aside all penalties and interest applicable to nonpayment of the original tax bill. We reasoned that if the legislature had intended such an effect, it would have said so. CFBISD argues the same analysis applies here. JPD argues Richardson supports its position because in that case we held that if the legislature had intended a corrected tax bill to set aside all penalties and interest, it would have said so, which JPD contends means that some penalties and interest — the penalties and interest assessed on the wrong valuation — should be set aside. Richardson is not helpful for this analysis because it determined the delinquency date for purposes of calculating penalties and interest, an issue not involved here, and did not interpret sections 42.43 and 42.08.

      . JPD does not specify whether it claims it has been deprived of substantive or procedural due process. JPD concedes the properly tax code provides "due process.” To show a substantive due process violation, JPD must show CFBISD deprived JPD of its property in a capricious and arbitrary manner. See City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.-Amarillo 1996, no pet.). JPD has not done this. Procedural due process requires notice and an opportunity to be heard. See Cohen v. City of Houston, 185 S.W.2d 450, 452 (Tex.Civ.App.-Galveston 1945, no writ). JPD cannot complain that it has been deprived of its "day in court” because JPD has been provided even more notice and opportunity to be heard than is authorized under the property tax code.