Comptroller rule in Texas

2014See Miranda, 133 S.W.3d at 226–27.

2010See Miranda, 133 S.W.3d at 227 .

2022“Where statutory text is clear, that text is determinative of legislative intent unless the plain meaning of the statute’s words would produce 4 We address the Comptroller’s plea to the jurisdiction first because subject-matter jurisdiction “is never presumed and cannot be waived.” Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 , 443–44 (Tex. 1993). 5 an absurd result.” Texas Workforce Comm’n v. Wichita County, 548 S.W.3d 489, 492 (Tex. 2018) (citing Texas Mut.

2009"When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Id. (citing Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993)).

2017See, e.g., Combs v. Entertainment Publ’ns, Inc., 292 S.W.3d 712 , 723–24 (Tex. App.—Austin 2009, no pet.) (allowing claims for injunctive and declaratory relief because taxpayer was “not 13 seeking declaratory relief regarding the tax itself, but regarding the validity of the rule promulgated by the Comptroller in violation of the APA”); Rutherford Oil Corp. v. General Land Office, 776 S.W.2d 232, 235 (Tex. App.—Austin 1989, no writ) (“The purpose of [former version of section 2001.038] is to obtain a final declaration of a rule’s validity before the rule is applied.”).

2015See, Combs v. Entertainment Publications, Inc., 292 S.W.3d 712 (Tex. App. 2009) (“Entertainment did not seek declaratory relief regarding the tax itself, but regarding the validity of the rule promulgated by the Comptroller in violation of the APA, for which the legislature has expressly permitted suit by a declaratory-judgment action”).

1999See id. at 468 .

1999See id. at 468 .

2017See Roark Amusement, 422 S.W.3d at 636 (“If a term is expressly defined by statute, [courts] must follow that definition.”); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (“We do not look to the ordinary, or commonly understood meaning of the term because the Legislature has supplied its own definition, which we are bound to follow.” (citing Tex. Gov’t Code § 311.011(b))).

2016See id.

2017See Roark Amusement, 422 S.W.3d at 636 (“If a term is expressly defined by statute, [courts] must follow that definition.”); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (“We do not look to the ordinary, or commonly understood meaning of the term because the Legislature has supplied its own definition, which we are bound to follow.” (citing Tex. Gov’t Code § 311.011(b))).

2015See Roark Amusement, 422 S.W.3d at 636 (“If a term is expressly defined by statute, [courts] must follow that definition.”); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (“We do not look to the ordinary, or commonly understood meaning of the term because the Legislature has supplied its own definition, which we are bound to follow.” (citing Tex. Gov’t Code § 311.011(b))).

2010See Miranda, 133 S.W.3d at 227-28 ; Hendee, 228 S.W.3d at 368-69 ("summary judgment-like process" *95 applies when plea challenges alleged acts that are asserted to have been beyond actor's constitutional or statutory authority).

2010See Miranda, 133 S.W.3d at 227-28 ; Hendee, 228 S.W.3d at 368-69 (“summary judgment-like pro cess” applies when plea challenges alleged acts that are asserted to have been beyond actor’s constitutional or statutory authority).

2010See, e.g., Tex. Tax Code Ann. § 151.0101 (b) (giving the comptroller exclusive jurisdiction to interpret the definition of "taxable service" in subsection 151.0101(a) of the tax code). [2] In any event, the trial court did not have the benefit of the supreme court's decision in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009), when it issued the order denying the Comptroller's plea to the jurisdiction on April 11, 2008, since Heinrich was not released until over a year later on May 1, 2009.

2010In any event, the trial court did not have the benefit of the supreme court's decision in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex.2009), when it issued the order denying the Comptroller's plea to the jurisdiction on April 11, 2008, since Heinrich was not released until over a year later on May 1, 2009.

2010Citing the supreme court's holding in Cobb v. Harrington, 144 Tex. 360 , 190 S.W.2d 709 (1945), and quoting this Court's prior opinion in Texas Department of Insurance v. Reconveyance Services, Inc., 240 S.W.3d 418, 434 (Tex.App.-Austin 2007, pet. filed), the majority finds, "`[I]t is well-established that Texas courts have subject-matter jurisdiction to declare illegal or enjoin agencies' acts that misinterpret and misapply the laws they are charged with administering.'" See Combs v. City of Webster, 311 S.W.3d 85 , 97 (Tex. App.-Austin Oct. 2, 2009).

2010Citing the supreme court’s holding in Cobb v. Harrington, 144 Tex. 360 , 190 S.W.2d 709 (1945), and quoting this Court’s prior opinion in Texas Department of Insurance v. Reconveyance Services, Inc., 240 S.W.3d 418, 434 (Tex.App.Austin 2007, pet. filed), the majority finds, “ ‘[I]t is well-established that Texas courts have subject-matter jurisdiction to declare illegal or enjoin agencies’ acts that misinterpret and misapply the laws they are charged with administering.’ ” See Combs v. City of Webster, 311 S.W.3d 85 , 97 (Tex.App.-Austin Oct. 2, 2009).

2010See Sefzik v. Texas Dep't of Transp., 267 S.W.3d 127, 134-35 (Tex.App.-Corpus Christi 2008, pet. filed).

2010See Sefzik v. Texas Dep’t of Transp., 267 S.W.3d 127, 134-35 (Tex.App.-Corpus Christi 2008, pet. filed).

2007See Perry Homes, 108 S.W.3d at 448 .

2006See Perry Homes, 108 S.W.3d at 448 .

2018In its opinion, the supreme court explained that its holding "should not be construed to imply that the guarantee of open courts protects declaratory judgment actions per se." R Commc'ns, Inc. v. Sharp , 875 S.W.2d 314 , 318 n.8 (Tex. 1994) (" R Commc'ns II ").

2018In its opinion, the supreme court explained that its holding "should not be construed to imply that the guarantee of open courts protects declaratory judgment actions per se." R Commc'ns, Inc. v. Sharp , 875 S.W.2d 314 , 318 n.8 (Tex. 1994) (" R Commc'ns II ").

1993On appeal, by one point of error, FSB contends that the trial court erred because it "has jurisdiction to entertain a request for and grant declaratory relief against an invalid rule adopted by the Comptroller." FSB relies on two cases from this Court to support its position that it may bring a declaratory judgment to challenge a Comptroller's rule: Bullock v. Marathon Oil Co. , 798 S.W.2d 353, 359-61 (Tex. App.--Austin 1990, no writ); Hammerman & Gainer, Inc. v. Bullock , 791 S.W.2d 330, 331 (Tex. App.--Austin 1990, no writ).

1993On appeal, by one point of error, FSB contends that the trial court erred because it “has jurisdiction to entertain a request for and grant declaratory relief against an invalid rule adopted by the Comptroller.” FSB relies on two cases from this Court to support its position that it may bring a declaratory judgment to challenge a Comptroller’s rule: Bullock v. Marathon Oil Co., 798 S.W.2d 353, 359-61 (Tex.App.—Austin 1990, no writ); Hammerman & Gainer, Inc. v. Bullock, 791 S.W.2d 330, 331 (Tex.App.— *83-95 Austin 1990, no writ).

2015See Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 100 (Tex.App.-Dallas 2009, pet. denied) (“If a case is not fully adjudicated on a motion for summary judgment, the trial court is authorized to render partial summary judgment, making ‘an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just’ ”) quoting Tex.R.

2013See Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 100 (Tex. App.—Dallas 2009, pet. denied) (“If a case is not fully 9 adjudicated on a motion for summary judgment, the trial court is authorized to render partial summary judgment, making ‘an order specifying the facts that are established as a matter of law, and directing such further proceedings in the action as are just’”) quoting Tex. R.

2013See id. (citing 34 Tex. Admin.

2013See id. (citing 34 Tex. Admin.

2003The Ethical Society’s Status under the Tax Code Having determined that the Comptroller’s test is invalid under the First Amendment, we are left with the question of whether, under an appropriate analysis, the Ethical Society constitutes a religious group. 11 Both parties refer us to *469 the line of cases relying on the three-factor test laid out by Judge Adams in his concurrence in Malnak v. Yogi, 592 F.2d 197, 207-210 (3d Cir.1979) (Adams, J., concurring), and later applied by him in Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir.1981). 12 The Malnak test gives a court the basis on whic

2003The Ethical Society's Status under the Tax Code Having determined that the Comptroller's test is invalid under the First Amendment, we are left with the question of whether, under an appropriate analysis, the Ethical Society constitutes a religious group. (11) Both parties refer us to the line of cases relying on the three-factor test laid out by Judge Adams in his concurrence in Malnak v. Yogi , 592 F.2d 197, 207-210 (3d Cir. 1979) (Adams, J., concurring), and later applied by him in Pennsylvania v. Africa , 662 F.2d 1025, 1032 (3d Cir. 1981). (12) The Malnak test gives a court the basis on w

2003The Ethical Society’s Status under the Tax Code Having determined that the Comptroller’s test is invalid under the First Amendment, we are left with the question of whether, under an appropriate analysis, the Ethical Society constitutes a religious group. 11 Both parties refer us to *469 the line of cases relying on the three-factor test laid out by Judge Adams in his concurrence in Malnak v. Yogi, 592 F.2d 197, 207-210 (3d Cir.1979) (Adams, J., concurring), and later applied by him in Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir.1981). 12 The Malnak test gives a court the basis on whic

2003The Ethical Society's Status under the Tax Code Having determined that the Comptroller's test is invalid under the First Amendment, we are left with the question of whether, under an appropriate analysis, the Ethical Society constitutes a religious group. (11) Both parties refer us to the line of cases relying on the three-factor test laid out by Judge Adams in his concurrence in Malnak v. Yogi , 592 F.2d 197, 207-210 (3d Cir. 1979) (Adams, J., concurring), and later applied by him in Pennsylvania v. Africa , 662 F.2d 1025, 1032 (3d Cir. 1981). (12) The Malnak test gives a court the basis on w

1999Driskill v. State, 787 S.W.2d 369, 370 (Tex.1990).

1990We adopt a similar construction for Section 101.055 of the Tort Claims Act. 787 S.W.2d at 370 (emphasis in original) (citations omitted). 2 Finally, in regard to its construction of section 101.055(1) of the code, the court declared: [W]e conclude that the legislature intended to limit the Comptroller's immunity to only those acts or omissions which constitute implementation of policy decisions on how to collect or assess taxes.

2022Royalties, Inc. v. Hegar, 500 S.W.3d 400 , 405–06 (Tex. 2016) (employing the rule against surplusage to interpret “processing” and concluding tax statute was unambiguous). 18 Id. at 406 . 19 TracFone Wireless, 397 S.W.3d at 182 (“The reach of an ambiguous tax statute must be construed ‘strictly against the taxing authority and liberally for the taxpayer.’” (quoting Morris v. Hous.

2015But see TracFone Wireless, Inc. v. Commission on State Emergency Commc’ns, 397 S.W.3d 173, 182-83 (Tex. 2013) (explaining that “agency deference does not displace strict construction when the dispute is not over how much tax is due but, more fundamentally, whether the tax applies at all”). 6 DISCUSSION In two issues on appeal, Brown asserts that the district court erred by failing to grant his motion for summary judgment and by granting the Comptroller’s motion for summary judgment.

2022Royalties, Inc. v. Hegar, 500 S.W.3d 400 , 405–06 (Tex. 2016) (employing the rule against surplusage to interpret “processing” and concluding tax statute was unambiguous). 18 Id. at 406 . 19 TracFone Wireless, 397 S.W.3d at 182 (“The reach of an ambiguous tax statute must be construed ‘strictly against the taxing authority and liberally for the taxpayer.’” (quoting Morris v. Hous.

2022Royalties, Inc. v. Hegar, 500 S.W.3d 400 , 405–06 (Tex. 2016) (employing the rule against surplusage to interpret “processing” and concluding tax statute was unambiguous). 18 Id. at 406 . 19 TracFone Wireless, 397 S.W.3d at 182 (“The reach of an ambiguous tax statute must be construed ‘strictly against the taxing authority and liberally for the taxpayer.’” (quoting Morris v. Hous.

2021See Hegar v. EBS Sols., Inc., 549 S.W.3d 849, 858 (Tex. App.—Austin 2018) (EBS I), rev’d sub nom.

2020The court of appeals reversed the trial court’s denial of the plea to the jurisdiction. 549 S.W.3d at 864 .

2020Background Businesses that offer “live nude entertainment” and allow the consumption of alcohol on their premises must “remit to the Comptroller a $5 fee for each customer admitted.”2 Combs v. Texas Entm’t Ass’n, Inc., 347 S.W.3d 277, 278 (Tex. 2011); see TEX.

2015C.f., Texas Entm’t Ass’n, Inc. v. Combs, 431 S.W.3d 790, 795 (Tex. App.—Austin 2014, pet. denied) (citing Combs v. Texas Entm’t Ass’n, Inc., 287 S.W.3d 852 , 864-65 (Tex. App.—Austin, 2009), rev’d on other grounds, 347 S.W.3d 277 (Tex. 2011)) (on remand, citing with approval its previous opinion holding that declaratory-judgment action challenging constitutionality and implementation of new tax statute was not preempted by Chapter 112 of Tax Code); Combs v. Entertainment Publ’ns Inc., 292 S.W.3d 712, 723 (Tex. App.—Austin 2009, no pet.) (affirming trial court’s denial of plea to jurisdiction i