Chief appraiser moves to prevent discovery, motions to compel hearings set for Thursday
A lawsuit claims that scores of property owners were denied their legal right to a hearing before the Travis Appraisal Review Board to protest property valuations assigned by the Travis Central Appraisal District.
The suit was brought by more than 150 property owners and two professional tax consulting companies (Texas ProTax-Austin Inc. et al vs Travis Appraisal Review Board et al, Cause No. D-1-GN-18-006098, copy linked below).
The Travis Appraisal Review Board (TARB) “is an independent, impartial group of citizens authorized to resolve disputes between taxpayers and the appraisal district,” a vehicle for property owners to address concerns related to the appraisal district’s determination of market values without having to file suit in district court. Although the TARB meets in the appraisal district’s offices, it is not controlled by the appraisal district and is a separate authoritative body.
An issue in the litigation is whether the chief appraiser—who by law is permitted upon request of the TARB to provide clerical assistance in scheduling protest hearings—exceeded her authority by actually controlling the hearing schedules and doing so in a way that caused the unlawful dismissal of appraisal protests without a hearing.
Plaintiff’s Motion to Compel filed December 14, 2018, claims that when Five Stone owner John “JP” Krueger complained about the hearing schedules and asked who set those schedules, Chief Appraiser Marya Crigler responded: “I set all your hearings.”
The lawsuit seeks an injunction to enjoin the chief appraiser from scheduling appraisal protest hearings or selecting the TARB panel that will hear the protests.
The litigation also claims the TARB violated the Texas Open Meetings Act by failing to list in a posted agenda any notice of dismissing appraisal protests. The remedy sought is for the court to declare void any actions taken to dismiss timely filed protests.
The suit was filed October 8, 2018, and has been followed up with motions to compel because the defendants TARB and Chief Appraiser Marya Crigler have refused to provide information requested in discovery, said Austin attorney Bill Aleshire, who represents the plaintiffs.
(Disclosure: Aleshire represented The Austin Bulldog in two public information lawsuits in 2011.)
Aleshire said in a telephone interview that protest hearings were so overscheduled that agents representing property owners could not possibly have attended them, then the protests were dismissed because of the no-shows.
Anti-SLAPP protection claimed
Crigler is represented by Andrea Chan and G. Todd Stewart of the Houston-based law firm Olson & Olson LLP.
On November 21, 2018, Chan filed a motion on Crigler’s behalf, seeking to dismiss the lawsuit under the Texas Citizens Participation Act (Anti-Strategic Lawsuits Against Public Participation, i.e., Anti-SLAPP) Civil Practice and Remedies Code Chapter 27.
Filing of an anti-SLAPP motion suspends all discovery in a lawsuit except that upon a showing of good cause the court may allow specified and limited discovery relevant to the motion.
The purpose of the statute “is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
That motion argues at “any actions or communications the Chief Appraiser has taken or will take to schedule protest hearings for TARB were taken or will be taken to exercise a lawful duty in conformity with the Tax Code.”
Further, “Plaintiffs cannot prove a prima facie case for injunctive relief, the court should dismiss the claim for injunctive relief, award attorney’s fees in defending against the action, and order sanctions….”
That 30-page motion (linked at the bottom of this story) provides details about how the protest hearings were scheduled. The motion states that for a small number of properties, neither of the tax-agent plaintiff firms were properly appointed as agents for the property owners.
“On each of the accounts that Plaintiffs timely protested, TARB sent Plaintiffs notices of the scheduled hearing date and time at least two weeks before the hearing date and reminded Plaintiffs that they could submit affidavits in lieu of presenting evidence in person at the hearings,” the motion states.
In addition, the motion states that 24 “of the accounts listed in the lawsuit are either still open protests or received some other type of final order after a hearing.”
Aleshire said he had expected to receive discovery from both defendants. But the anti-SLAPP motion is being applied to prevent discovery of not only Crigler’s role in scheduling meetings, but also for open meetings violations allegedly committed by the TARB.
Does anti-SLAPP apply to public officials?
A key legal question is whether a public official can use the Anti-SLAPP statute for protection when sued over performance of official duties.
Joseph Larsen, attorney with Houston-based Gregor Cassidy PLLC and a board member of the Freedom of Information Foundation of Texas, said he has filed a friend of the court brief in support of a public official who filed a motion to dismiss a case brought against him in his official capacity.
While he knows nothing about this case, he said, there is “nothing in the statute that restricts” a public official from using its protection if warranted.
At the same time, he said, “The statutory framework allows a person to be sanctioned if an anti-SLAPP motion is frivolous or solely intended to delay.”
Aleshire said he will be filing a response to Crigler’s anti-SLAPP motion and claims the motion is frivolous because it misstates the plaintiff’s petition.
Moreover, he notes that Crigler was sued in her official capacity for exceeding her legal authority, yet in her anti-SLAPP motion she claims plaintiff’s are interfering in her free speech rights.
Aleshire cites a U.S. Supreme Court decision, Garcetti v. Ceballos, which decided that free speech rights are not extended to employees acting in their official capacity.
“Bottom line,” Aleshire said in an email, “Crigler filed a motion on lying to the court about what our claim is, and she based the motion on a claim of free speech right that does not exist in her official capacity.”
Litigation exception claimed to withhold public records
The Travis Appraisal Review Board is represented by Julia Lacy Armstrong and Roy L. Armstrong of Armstrong & Armstrong PC, based in Taos, New Mexico.
On December 10, 2018, Julia Armstrong asked the Texas Attorney General to allow withholding public records requested by Texas ProTax-Austin “because these requests are subject to the litigation exception….”
In addition, the request states, “Since filing the petition, ProTax has engaged in a pattern of behavior evidently intended on finding examples of alleged wrongdoing by the ARB. ProTax agents regularly show up at the Appraisal District offices, whether or not they have hearings scheduled, and enter rooms where protest hearings are underway, where they observe and sometimes photograph the proceedings.”
On December 14, 2018, Armstrong filed a brief to support her request for a ruling, concluding that the TARB “has been subjected to a legal action which is groundless in law, and arguably brought in bad faith.”
The brief states that Armstrong intends to file a motion to dismiss the lawsuit.
Plaintiffs’ Original Petition and Discovery Requests, Cause No. D-1-GN-18-006098, Texas ProTax-Austin Inc., et al vs Travis Appraisal Review Board; Marya Crigler, chief appraiser (in her official capacity), October 8, 2018 (24 pages)
Plaintiff’s 2nd Supplemental Petition adding open government violation claims against defendant Travis Appraisal Review Board, December 13, 2018 (6 pages)
Plaintiff’s Motion to Compel defendant Travis Appraisal Review Board to respond to discovery, December 12, 2018 (13 pages)
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Ken Martin has been covering local government and politics in the Austin area since 1981. See more on Ken on the About page.
Email [email protected].
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