Findley, Wayne, Howard Tucker, Larry Farrar, Eddie Guelker and Duane Fitts, Indiv. & as Representatives of the Taxpayers of Andrews,Texas/City of Andrews, Texas v. City of Andrews, Texas/Wayne Findley, Howard Tucker, Larry Farrar, Eddie Guelker and Duane Fitts Indv. & as Representatives of the Taxpayers of Andrews, Texas--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WAYNE FINDLEY, HOWARD TUCKER, )

LARRY FARRAR, EDDIE GUELKER, and )

DUANE FITTS, Individually and As )

Representatives of the TAXPAYERS OF )

ANDREWS, TEXAS / CITY OF ANDREWS, )

TEXAS, ) No. 08-01-00390-CV

)

Appellants/Cross-Appellees, ) Appeal from the

)

v. ) 109th District Court

)

CITY OF ANDREWS, TEXAS / WAYNE ) of Andrews County, Texas

FINDLEY, HOWARD TUCKER, LARRY )

FARRAR, EDDIE GUELKER, and DUANE ) (TC# 15,445)

FITTS, Individually and As Representatives of )

the TAXPAYERS OF ANDREWS, TEXAS )

)

Appellee/Cross-Appellants. )

)

O P I N I O N

Appellants/Cross-Appellees Wayne Findley, Howard Tucker, Larry Farrar, Eddie Guelker, and Duane Fitts, individually and as representatives of the Taxpayers of Andrews, Texas (ATaxpayers@) raise ten issues related to Section 26.04 of the Tax Code. Appellee/

Cross-Appellant City of Andrews, Texas (Athe City@) takes issue with the trial court=s denial of attorneys= fees. We dismiss for lack of jurisdiction.

The City of Andrews has had a long standing accounting policy to treat capital asset depreciation as an expense and place cash equal to the depreciation expense in capital reserve accounts to fund future capital improvements and replacements. As a result, they have a surplus of monies earmarked for capital improvements in three separate capital reserve accounts.

Since 1962, the City has annually published and identified all non-capital reserve funds and balances in the tax notice. Under Tax Code ' 26.04, a local government must publish an annual tax notice that includes the Amaintenance and operation or general fund@ balances. Tex.Tax Code Ann. ' 26.04(e)(2)(Vernon 2001). The City interpreted this provision as requiring the inclusion of all property tax balances that are unencumbered and may be lawfully spent for day-to-day maintenance and operations. Accordingly, the City did not include the balances in the capital reserve accounts in the tax notice. However, this information was included in an annual comprehensive financial report.

In April 2000, the Taxpayers filed suit alleging violations of the Texas Constitution, the Charter of the City of Andrews, and the Tax Code. They assert the City=s actions constitute a bad faith violation of the Tax Code which entitles them to injunctive relief. They also request refund of the excess taxes and/or the imposition of a constructive trust, and a detailed accounting of all expenditures from the Aexcess case funds@ accounts. In May 2000, the City answered that the Taxpayers did not have standing to file suit and also asserted the affirmative defense of voluntary payment.

In January 2001, the Texas Supreme Court released Gilbert v. El Paso County Hospital District, 38 S.W.3d 85 (Tex. 2001). In response, the City began including all capital reserve balances in subsequent tax notices. Subsequently, both the taxpayers and the City moved for summary judgment. In September 2001, the trial court granted the City=s motion and dismissed the Taxpayers= claims. In October 2001, the City filed a motion for attorneys= fees, which was denied. Both parties now appeal.

On appeal, all of the Appellants= issues deal specifically and solely with Section 26.04(e)(2) of the Tax Code. Essentially the taxpayers are challenging the trial court=s summary judgment in favor of the City with regard to their claim under Section 26.04. The City claims that it should have been awarded attorneys= fees.

Summary judgment is proper only when the movant proves there is no genuine issue as to any material fact, and it is entitled to judgment as a matter of law. Randall=s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Duran v. Furr=s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). When evaluating a summary judgment, we assume all the non-movant=s evidence is true. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Duran, 921 S.W.2d at 784. We indulge every reasonable inference in favor of the non-movant. Id. All doubts about the existence of a genuine issue of any material fact are resolved against the movant. Johnson County Sheriff=s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). If the movant shows it is entitled to judgment as a matter of law, the non-movant must present evidence raising a fact issue to defeat a motion for summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Haight v. Savoy Apartments, 814 S.W.2d 849, 851 (Tex.App.--Houston [1st Dist.] 1991, writ denied).

Standing

Because the trial court dismissed the Taxpayers= claims, we look first to the City=s jurisdictional argument(s) related to the Taxpayers= standing. Standing is a component of subject matter jurisdiction and cannot be waived. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993). Moreover, it is a constitutional prerequisite to maintaining any suit. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Under Texas law, standing may be conferred by statute. Id. Otherwise, a plaintiff must demonstrate that he possesses an interest in a conflict distinct from that of the general public in order to have standing to sue. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). This requires a showing that the defendant=s actions have caused the plaintiff some particular injury. Id. Taxpayers enjoy a limited exception to this general rule, allowing them to enjoin the illegal expenditure of funds without demonstrating a particularized injury. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 556 (Tex. 2000). This so-called Ataxpayer standing@ is granted if two requirements are met: (1) the plaintiff must be a taxpayer; and (2) the public funds are expended on an allegedly illegal activity. Williams, 52 S.W.3d at 179.[1]

In this case, the Taxpayers argue they are given standing to sue under Section 26.04(g). This provision states:

A person who owns taxable property is entitled to an injunction prohibiting the taxing unit in which the property is taxable from adopting a tax rate if the assessor or designated officer or employee of the unit, as applicable, has not complied with the computation or publication requirements of this section and the failure to comply was not in good faith.

Tex.Tax Code Ann. ' 26.04(g). Any standing conveyed under this provision is for the limited purposes set forth in Section 26.04(g). Thus, standing would be conferred only to seek the injunctive relief described and only if the Taxpayers established both a failure to comply with Section 26.04(e) and that this failure to comply was not in good faith. Tex.Tax Code

Ann. ' 26.04(g).

For the purposes of argument, we will assume the Taxpayers are able to establish that the City failed to comply with Section 26.04(e). In order to obtain standing under this statute, they would still be tasked with proving the City=s failure to comply was not in good faith. Tex.Tax Code Ann. ' 26.04(g). An officer or employee of a taxing unit acts in good faith when he subjectively believes that he has complied with the computation or publication requirements of Section 26.04, if that belief is reasonable in light of existing law. El Paso County Hosp. Dist. v. Gilbert, 64 S.W.3d 200, 205 (Tex.App.--El Paso 2001, no pet.). The City produced evidence that it annually published a tax notice as required by Section 26.04. It openly acknowledges that funds from the capital reserve accounts were not included in the annual publication prior to the 2001-2002 tax notice. Because neither the statute nor case law directly addresses whether such funds must be disclosed in the tax notice, we find the City=s interpretation of Section 26.04(e) to be reasonable. Moreover, after the Supreme Court=s decision in Gilbert, the City began including the capital reserve funds in its tax notices. This reflects a good faith effort to heed the Court=s admonishments as to the underlying purposes of the provision. Further, the Taxpayers failed to provide the trial court evidence of bad faith. Accordingly, the Taxpayers did not adequately establish standing to sue for injunctive relief. Because we find the Taxpayers lacked standing to sue for injunctive relief under Section 26.04(g) of the Tax Code, we need not address each of their issues on appeal individually.

 The City=s Appeal of the Denial of Attorneys= Fees

Finally, the City argues it is entitled to recover attorneys= fees from the Taxpayers under the Uniform Declaratory Judgment Act. The Declaratory Judgment Act authorizes a trial court=s award of attorneys= fees to a prevailing party. Tex.Civ.Prac.&Rem.Code Ann. ' 37.009 (Vernon 1997). The fees must be equitable and just as a matter of law. Id. The awarding of fees is left to the sound discretion of the trial court. Bocquetv. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Justice Bail Bonds v. Samaniego, 68 S.W.3d 811, 815 (Tex.App.--El Paso 2001, pet. denied). A trial court abuses its discretion if its decision is arbitrary or unreasonable, or if it acts without reference to guiding legal rules and principles. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 762 (Tex.App.--El Paso 2000, no pet.).

We find nothing in the record to suggest that the trial court abused its discretion in denying the City=s request for fees. The City=s issue on appeal is overruled.

Finding the Taxpayers= lack standing to sue under the Texas Tax Code ' 26.04, we dismiss their appeal for lack of jurisdiction. Further, we find no error on the part of the trial court in its denial of the City=s motion for attorneys= fees. Accordingly, we overrule the City=s issue on appeal.

November 21, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] Although the Plaintiffs/Appellants in this case are taxpayers, they have not accused the City of using tax dollars on an illegal activity. Instead, they maintain the City=s accounting policies have resulted in an unreasonably high surplus, which they characterize as a Aslush fund.@ The Taxpayers further argue that these funds were not properly disclosed in the process of setting the budget and levying taxes. Because of the nature of the Taxpayers= complaints, they do not fall under the limited exception of Ataxpayer standing.@