If your client has authorized the initiation of a property tax lawsuit, don’t relax after it is filed. You must ensure the petition initiating the lawsuit and accompanying citation is timely delivered to the appraisal district, otherwise your client’s lawsuit can be dismissed.

To avoid dismissal, what is timely delivery of the petition and citation? Well, there is unfortunately no hard and fast rule.

As many know (or should!), Section 42.21(a) establishes a time limit for suing an appraisal district — 60 days after receiving notice of the board order. Easy. What is hard is that a lot of us likely don’t realize that the 60 days also includes delivering the petition and citation to the appraisal district. You might be thinking how it is that my clients haven’t been dismissed more often? Good question. This is because the date of service of process (delivery of the petition and citation) relates back to the lawsuit’s filing date if the plaintiff exercises due diligence in delivering the petition and citation to the appraisal district. Texas Courts have stated diligence as a test of “whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.” All to say, do something!

Recently the 2nd and 1st Court of Appeals found five and eleven months, respectively, as not timely. But the emphasis was not on the amount of time, but the amount of diligence. In both cases, it was nothing.

Sadeghian v. Denton Central Appraisal District, No. 02-23-00364-CV, 2024 WL 1318252 (Tex. App.—Fort Worth March 28, 2024, no pet. h.)
In Sadeghian v. Denton Central Appraisal District, the 2nd Court of Appeals dismissed a timely filed property tax lawsuit because the owner did not deliver the petition and citation until five months after the expiration of the 60-day period provided by Section 42.21(a). It wasn’t just the five-month delay that caused the dismissal. It was that the owner did not exercise due diligence in delivering the petition and citation. The owner only provided an excuse for not exercising due diligence. Specifically, that their “properties became part of legally binding arbitration” under Tax Code Section 41A.015 and they believed they could not serve Denton CAD until the arbitration was completed. The 2nd Court of Appeals rejected this as an excuse not involving the exercise of diligence in attempting to deliver the petition and citation to Denton CAD and affirmed the trial court’s dismissal.

Sealy IDV Thompson 10, LLC v. Harris County Appraisal District, No. 01-22-00584-CV, 2024 WL 269531 (Tex. App.—Houston [1st Dist.] Jan. 25, 2024, no pet.)
In Sealy IDV Thompson 10, LLC v. Harris County Appraisal District, the 1st Court of Appeals dismissed a timely filed property tax lawsuit as well. Like Sadeghian, it wasn’t the months of delay (here, eleven months) that caused the dismissal. It was that the owner did not exercise due diligence in delivering the petition and citation. The owner, as in Sadeghian, only provided an excuse for not exercising due diligence. The owner contended that “because the suit was filed during the COVID-19 pandemic, any delay was excusable.” And ultimately the excuses were: (1) the owner’s “attorney’s office staff was working remotely” due to COVID-19, and (2) the owner’s “counsel filed four new cases during the same time period and was unaware that service of citation had not been achieved.” Like the 2nd Court of Appeals in Sadeghian, the 1st Court of Appeals rejected these as excuses not involving the exercise of diligence and affirmed the trial court’s dismissal.

The takeaway from these two cases is…. do something! Don’t relax after the lawsuit is filed. You must ensure the petition initiating the lawsuit and accompanying citation is timely delivered to the appraisal district, otherwise your client’s lawsuit can be dismissed.

Tex. Tax Code § 42.21(a):
(a) A party who appeals as provided by this chapter must file a petition for review with the district court within 60 days after the party received notice that a final order has been entered from which an appeal may be had or at any time after the hearing but before the 60-day deadline.  Failure to timely file a petition bars any appeal under this chapter.

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To review the Opinion from Sadeghian v. Denton Central Appraisal District, click the following link (or copy and paste): https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=15a3c15b-9d01-4da7-9ffe-2d5733a586aa&coa=coa02&DT=Opinion&MediaID=1992e17d-8830-4feb-9595-5ff87ade7766.

To review the Opinion from Sealy IDV Thompson 10, LLC v. Harris County Appraisal District, click the following link (or copy and paste): https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=60882263-3a98-4992-91fd-8d18f9aea2eb&coa=coa01&DT=Opinion&MediaID=56ad857f-8ce3-41e5-beb0-2921c4beb93c.

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Key Sections of Texas Property Tax Code: 
§ 42.21, Petition for Review  

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