In The

Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-11-00089-CV
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BOBIE KENNETH TOWNSEND, Appellant

V.

APPRAISAL REVIEW BOARD OF MONTGOMERY COUNTY, TEXAS,

Appellee

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On Appeal from the 359th District Court

Montgomery County, Texas
Trial Cause No. 10-08-09020 CV
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MEMORANDUM OPINION

This appeal concerns the 2010 appraisal of Bobie Kenneth Townsend’s property

by the Montgomery County Appraisal District. Townsend, the appellant, sued the

Appraisal Review Board of Montgomery County (the Board), seeking to have his

property removed from Montgomery County’s tax rolls, and requesting an award of

damages based on an alleged breach of fiduciary duty. Townsend’s petition, liberally

construed, asserts four claims which allege that (1) he suffered damages when the Board

refused to remove his property from the tax rolls, (2) the Board breached its fiduciary

duties by failing to address his claims, (3) the Board, by breaching various fiduciary
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duties, denied Townsend his right to receive due process under the Texas Constitution,

and (4) the Board denied Townsend his right under the Texas Constitution to receive

“due course of law of the land[.]” The Board appeared and then filed a motion to dismiss

for want of jurisdiction. Townsend appeals from the trial court’s order dismissing his suit.

Townsend raises two issues on appeal. In issue one, Townsend argues the Board’s

final order did not clearly require him to serve the District. In issue two, Townsend

argues that his service on the Board is sufficient. We affirm the trial court’s order.

Background

In May 2010, Townsend filed a notice of protest with the District claiming that his

property should not be taxed and that the District had improperly denied, modified, or

cancelled his request for an exemption. See Tex. Tax Code Ann. § 41.41 (West 2008)

(providing for property owner’s right to protest), § 41.44 (West 2008) (providing that

property owner must file a written notice of protest with the appraisal review board).

After conducting a hearing, the Board issued a written final order determining

Townsend’s protest. See Tex. Tax Code Ann. § 41.45 (West Supp. 2010) (requiring the

appraisal review board to conduct a hearing on the protest), § 41.47 (West 2008)

(requiring the appraisal review board to make its decision by written order). In its final

order, the Board determined that Townsend’s property was “over market value, value is

unequal compared with other properties[.]” The Board ordered that the value that had

been placed on the Townsend property should be changed to $124,900. See id. § 41.47.

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 After the Board gave Townsend notice of its final order, Townsend timely filed a

petition for review with the district court naming the Board as the only party. See Tex.

Tax Code Ann. § 42.21(a) (West Supp. 2010) (requiring petition for review to be filed

within 60 days after the party received notice that a final order was entered). The Board’s

answer to Townsend’s petition includes a plea to the jurisdiction. The Board’s plea

asserts that Townsend failed to invoke the jurisdiction of the court because he failed to

“sue the proper and necessary party[.]” See id. § 42.21(b). The Board subsequently filed a

motion to dismiss for want of jurisdiction. In its motion to dismiss, the Board stated

“[t]he failure to file suit against the proper party within the applicable time period is

jurisdictional[,]” and that Townsend “failed to invoke the jurisdiction of this Court

because of the failure to include the Montgomery Central Appraisal District as a party

within sixty (60) days after receipt of the Board’s final order as required by the Code.”

Townsend responded to the Board’s plea, asserting that although he “may have

been ignorant of the provision under Section 42.21of the Texas Tax Code[,]” he served

the appraisal district by serving the chairman of the Board. In its reply, the Board notes

that the Texas Rules of Civil Procedure apply to pro se litigants, and once again points

out that “[Townsend] did not file a lawsuit against the appraisal district as required by the

Code. [Townsend] does not dispute this fact and the court must dismiss the cause of

action for want of jurisdiction.” Even though the Board’s pleadings notified Townsend

that he needed to make the District a party to his lawsuit, he never did so.

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 Subsequently, the trial court granted the Board’s motion to dismiss for want of

jurisdiction. In the trial court’s findings of fact and conclusions of law, the trial court

found the Board was the only defendant named in Townsend’s lawsuit, the Board’s

motion to dismiss asserts the trial court lacked jurisdiction because Townsend had failed

to include the District as a defendant, and that Townsend had not filed any supplemental

or amended petitions to include the District as a defendant in this matter. The trial court

concluded that Townsend “failed to perfect an appeal of his protest because he failed to

include the District as a defendant in this lawsuit[,]” and that due to Townsend’s failure

to sue or include the District, the court did not have jurisdiction over Townsend’s lawsuit.

Townsend appealed.

Standard of Review

First, we consider whether, based on the Board’s plea to the jurisdiction, the trial

court properly granted the Board’s motion to dismiss. See Bland Indep. Sch. Dist. v. Blue,

34 S.W.3d 547, 554 (Tex. 2000) (noting that “the plea should be decided without delving

into the merits of the case”). A trial court must have subject matter jurisdiction to decide

a case, and subject matter jurisdiction may be challenged by a plea to the jurisdiction. Id.

at 553-54. Whether a petition alleges facts affirmatively demonstrating that a trial court

possesses subject matter jurisdiction over the claims that have been asserted in the

lawsuit is a question of law that is reviewed de novo. Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

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 In determining the sufficiency of the plaintiff’s pleadings, courts construe the

pleadings in the plaintiff’s favor and look at the plaintiff’s intent. Id. Where the plaintiff’s

pleadings affirmatively negate the existence of jurisdiction, “then a plea to the

jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.” Id.

at 227. Stated another way, to prevail on a plea to the jurisdiction, a “defendant must

show that even if all the plaintiff’s allegations are true, an incurable jurisdictional defect

remains on the face of the pleadings that deprives the trial court of subject matter

jurisdiction.” Appraisal Review Bd. of Harris Cnty. Appraisal Dist. v. O’Connor &

Assocs., 267 S.W.3d 413, 416 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

Additionally, “[i]n a suit against a governmental unit, the plaintiff must affirmatively

demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Dallas Area

Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).

Generally, a litigant has a right to amend its pleadings to attempt to cure pleading

defects. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). A pleader

must be given an opportunity to amend in response to a plea to the jurisdiction if the

defects are curable. See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.

2007). If a plaintiff has a reasonable opportunity to amend after a governmental entity

files a plea to the jurisdiction, and if the pleadings do not state a cause of action upon

which the trial court has jurisdiction, then the trial court should dismiss the plaintiff’s

action with prejudice. Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).

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 Although the general rule expresses a preference to allow a plaintiff the

opportunity to amend, a plaintiff can waive this opportunity through inaction. Robinson v.

Alief Indep. Sch. Dist., 298 S.W.3d 321, 328 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied) (citing Kassen v. Hatley, 887 S.W.2d 4, 13-14 n.10 (Tex. 1994)). Specifically, a

plaintiff who does not present an objection to the trial court or request an opportunity to

amend its petition waives any complaint that it was not given an opportunity to amend.

See Kassen, 887 S.W.2d at 13 n.10; Tara Partners, Ltd. v. City of South Houston, 282

S.W.3d 564, 578 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“By failing to

seek permission to amend after the trial court found the City’s plea meritorious,

appellants forfeited the opportunity to amend while this case was pending in the trial

court.”).

Analysis

In issue one, Townsend claims that the Board’s final order did not sufficiently

explain how he was required to serve his petition for review in district court. Townsend’s

petition named only the Board, and does not name the District. By statute, a party who

files a petition seeking review of a final appraisal order must bring the petition for review

“against the appraisal district[.]” Tex. Tax Code Ann. § 42.21(b). The statute further

provides that “[a] petition for review is not required to be brought against the appraisal

review board, but may be brought against the appraisal review board in addition to any

other required party, if appropriate.” Id. The information required to be included in the

Board’s final order does not include information on how service of the petition is

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perfected, as that information is found in section 42.21(b). See id. We conclude that the

Board’s final order contained the information required by section 41.47(e). See id. §

41.47(e). We overrule issue one.

In issue two, Townsend argues that his service on the Board is sufficient. With

respect to the consequences that resulted from Townsend’s failure to name or serve the

District, the record shows that Townsend made no effort to amend his petition despite the

fact that he had the opportunity to do so. Townsend could have amended his original

petition in response to the Board’s first supplemental original answer, plea to the

jurisdiction, and special denials, as each notified Townsend that he had failed to sue the

District, a necessary party to the suit. The Board also filed its motion to dismiss for want

of jurisdiction providing Townsend with an additional opportunity to correct his

pleadings by naming and serving the District. We conclude that Townsend had the

opportunity to amend his petition to make the District an additional party to his suit

before the trial court dismissed his suit for lack of jurisdiction. See Levatte v. City of

Wichita Falls, 144 S.W.3d 218, 225 (Tex. App.—Fort Worth 2004, no pet.); see also

Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 346-47 (Tex. App.—Eastland 2008, no

pet.).

After the trial court dismissed Townsend’s suit, Townsend did not file any post-

judgment motions requesting that he be allowed an opportunity to amend to add the

District as a party. See Kassen, 887 S.W.2d at 13 n.10. Townsend also did not object or

except to the trial court’s conclusion that the court had no jurisdiction in the matter.

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Finally, we note that Townsend’s brief does not ask that we give him the opportunity to

cure his failure to name the District as a party to his appeal from the Board’s final order.

See Levatte, 144 S.W.3d at 225.

A taxpayer’s failure to make the District a party to a suit challenging an appraisal

review board’s final order deprives the trial court of subject matter jurisdiction over a suit

challenging the decisions of the appraisal review board. Appraisal Review Bd. v. Int’l

Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986) (“Compliance with §

42.21 [of the Texas Tax Code] is jurisdictional and the jurisdictional error of the trial

court is apparent on the face of the record.”). We overrule issue two.

Having reviewed the record, we conclude the trial court properly granted the

Board’s jurisdictional plea, and that Townsend, through his inaction, waived his right to

amend his pleadings. Because Townsend’s suit was properly dismissed, the trial court

acted properly when it refused to address the merits of the four claims alleged in

Townsend’s petition. We overrule Townsend’s issues, and we affirm the trial court’s

order dismissing Townsend’s suit for want of jurisdiction.

AFFIRMED.

___________________________
HOLLIS HORTON
Justice

Submitted on July 11, 2011

Opinion Delivered August 31, 2011
Before McKeithen, C.J., Gaultney and Horton, JJ.