NO. 11-0078
__________________________________________________________________
IN THE SUPREME COURT OF TEXAS
__________________________________________________________________
HARRIS COUNTY APPRAISAL DISTRICT,
Petitioner,
v.
HOUSTON LAUREATE ASSOCIATES, LTD. and LEVERING & COMPANY,
Respondents
On Appeal from the Fourteenth Court of Appeals at Houston, Texas
PETITION FOR REVIEW
Tammy White-Chaffer
State Bar No. 24008273
Mario L. Dell’Osso
State Bar No. 05732150
Telephone: (713) 533-3800
Olson & Olson, L.L.P.
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019
Facsimile: (713) 533-3888
ATTORNEYS FOR PETITIONER,
HARRIS COUNTY APPRAISAL DISTRICT
IDENTITY OF PARTIES AND COUNSEL
HARRIS COUNTY APPRAISAL DISTRICT
Tammy White-Chaffer
State Bar No. 24008273
Mario L. Dell’Osso
State Bar No. 05732150
OLSON & OLSON, L.L.P.
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019
(713) 533-3800
(713) 533-3888 (facsimile)
HOUSTON LAUREATE ASSOC., LTD.,
LEVERING & COMPANY
Petition for Review
11-0078
Hugh L. McKenney
MCKENNEY & ASSOCIATES
2200 North Loop West, Suite 333
Houston, Texas 77018
(713) 688-6767
(713) 688-0199 (facsimile)
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................................. ii
TABLE OF CONTENTS ................................................................................................ iii
INDEX OF AUTHORITIES ........................................................................................... v
APPENDIX ...................................................................................................................... vii
STATEMENT OF THE CASE ....................................................................................... viii
STATEMENT OF JURISDICTION .............................................................................. ix
ISSUES PRESENTED..................................................................................................... ix
Issue 1.
Is there legally sufficient evidence to support the Trial Court’s judgment?
Issue 2.
Did the Court of Appeals err in affirming the Trial Court’s judgment, when
it was undisputed that the judgment was based on the opinion testimony of
an “expert witness” who had no knowledge of the individual characteristics
of the office building properties about which he opined, and the Court
merely accepted his experience as the sole basis for his assumptions and
adjustments?
Issue 3.
Was it error for the Trial Court to admit the testimony of the “expert” based
on a “special tool,” of unsubstantiated reliability, provided by a tax
consultant firm with a contingent fee interest in the outcome of the lawsuit?
Issue 4.
Did the Trial Court err in permitting the expert witness to testify when it
was undisputed that the testimony was offered in violation of Rule 3.04(b)
of the Texas Disciplinary Rules of Professional Conduct, which prohibits a
lawyer from offering the testimony of a witness he knows is provided by a
tax consultant firm with a contingent fee interest in the outcome of the
case?
Issue 5.
Did the Court of Appeals err in shifting the burden to demonstrate the
reliability of expert testimony from the proponent to the objecting party?
(reserved for briefing)
STATEMENT OF FACTS.............................................................................................. 1
SUMMARY OF THE ARGUMENT .............................................................................. 4
Petition for Review
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iii
ARGUMENT ................................................................................................................... 5
A. Incompetent expert testimony, presented under cover of ethical violations, is
not evidence. ..................................................................................................... 5
B. Goddard’s “special tool” = unequal appraisal, but without knowledge of
individual characteristics. .................................................................................. 6
C. Hired gun Goddard, armed with a “special tool,” came in after the tax
consultant filed this lawsuit. .............................................................................. 9
D. This lawsuit lottery violated the prohibition of Tex. Disciplinary R. Prof’l
Conduct 3.04(b)................................................................................................. 11
E. The Court of Appeals erred in failing to strike Goddard’s testimony.................. 12
F. The Court misconstrued Ethics Opinions Nos. 458 and 553............................... 13
CONCLUSION AND PRAYER ..................................................................................... 15
CERTIFICATE OF SERVICE....................................................................................... 16
Petition for Review
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iv
INDEX OF AUTHORITIES
CASES
Anderson Producing Co. v. Koch Oil Co., 929 S.W.2d 416 (Tex. 1996) ........................ 13
Ayres v. Canales, 790 S.W.2d 556 (Tex. 1990).............................................................. 12
Coastal Transport Company, Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227
(Tex. 2004)...................................................................................................................... 7
Exxon Pipeline Company v. Zwahr, 88 S.W.3d 623 (Tex. 2002)...................................... 7
Gammill v. Jack Williams Chevrolet., 972 S.W.2d 713 (Tex. 1998)............................... 10
Gentry v. State, 770 S.W.2d 780 (Tex. Crim. App. 1988) .............................................. 12
Guadalupe –Blanco River Authority v. Kraft, 77 S.W.3d 805 (Tex. 2002)....................... 7
Harris County Appraisal District v. Houston Laureate Associates Ltd., 2010 WL
3341880 (Tex. App.—Houston [14th Dist.] 2010, pet. filed) ......................... 1, 5, 7, 12, 14
In re MHCB (USA) Leasing and Finance Corp. and Valero Refining L.P., No. 01-0600075-CV, 2006 WL 1098922 (Tex. App.—Houston [1st Dist.] 2006, no pet.)................ 6
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2005) ................................ 12
Lively v. Missouri, K.&T. Ry., 102 Tex. 545, 120 S.W. 852 (Tex. 1909).......................... 6
NCNB Texas National Bank v. Hon. Bill F. Coker, 765 S.W.2d 398 (Tex. 1989)........... 12
Parker v. Spindletop Oil & Gas Co., 628 S.W.2d 765 (Tex. 1982) .................................. 6
State Farm Llyods v. Nicolau, 951 S.W.2d 444 (Tex. 1997) .......................................... 11
Valiani Taufiq, by and through its Authorized Agent Patrick O’Connor & Associates, et
al v. Harris County Appraisal District, 6 S.W.3d 652 (Tex. App.—Houston [14th Dist.]
1999, no pet.)................................................................................................................. 11
Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009)......................................6, 7, 8
Petition for Review
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v
STATUTES
TEXAS GOVERNMENT CODE
Texas Government Code § 22.001(a)(2) (West 2004) ........................................ viii
Texas Government Code § 22.001(a)(6) (West 2004) ........................................ viii
TEXAS TAX CODE
§ 6.01 (West 2008)................................................................................................ 1
§ 22.27 (West Supp. 2010).................................................................................... 8
§ 23.01(b) (West Supp. 2010) ............................................................................... 6
§ 42.25 (West 2008).............................................................................................. 1
§ 42.26(a)(3) (West 2008)................................................................................. 2, 6
RULES AND ETHICS OPINIONS
Tex. R. Prof’l Conduct 3.04(b) ................................................................. 3, 11, 13, 14, 15
Tex. R. Prof’l Conduct 3.04(b)(3).................................................................................. 14
Tex. Comm. on Prof’l Ethics, Op. 458 (1988)................................................................ 14
Tex. Comm. on Prof’l Ethics, Op. 553 (2004)............................................. 2, 3, 13, 14, 15
RECORD REFERENCES
The record is cited as follows:
Clerk’s Record: [Vol.] CR at [Page]
Reporter’s Record: [Vol.] RR at [Page], [Lines]
Exhibits:
P. Ex. [Number]
D. Ex. [Number]
Petition for Review
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APPENDIX
The following documents are included in the Appendix:
Final Judgment, January 30, 2009 (2 CR at 336)................................................................ A
Findings of Fact and Conclusions of Law, March 11, 2009 (2 CR at 347) ......................... B
Fourteenth Court of Appeals’ opinion and judgment, August 26, 2010 .............................. C
Tex. Tax Code Ann. § 42.26 (West 2008) (1 CR at 28) ..................................................... D
Tex. Tax Code Ann. § 23.01 (West Supp. 2010) (2 CR at 288).......................................... E
Tex. Disciplinary Rules Prof’l Conduct R. 3.04, reprinted in Tex. Gov’t Code Ann., tit. 2,
subtit. G, app. A (West 2005) ............................................................................................ F
O’Connor & Associates’ Appraisal Witnesses, before and after Ethics Opinion No. 553
(Similar chart contained in Appellant’s Motion for Rehearing, October 18, 2010)............. G
O’Connor & Associates, “Judicial Appeals” solicitation (D. Ex. 5.) .................................. H
Tex. Comm. on Prof’l Ethics, Op. 553 (2004) (2 CR at 201) ............................................. I
Tex. Comm. on Prof’l Ethics, Op. 458 (1988) (2 CR at 204) ............................................. J
Defendant’s Request for Additional Findings of Fact, March 28, 2009 (2 CR at 350)........ K
Order on Defendant’s Request for Additional Findings of Fact, April 6, 2009 (2 CR at
383) ................................................................................................................................... L
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STATEMENT OF THE CASE
Nature of the Case:
This is an appraisal case brought pursuant to Chapter 42 of
the Texas Property Tax Code (the “Tax Code”) appealing the
appraised value of the subject office building for tax year
2006. At trial, Plaintiff Houston Laureate Associates, Ltd.
and Levering and Company (“Houston Laureate”) alleged
that the Harris County Appraisal District (“HCAD”) had
unequally appraised the subject office building, and sought
relief pursuant to Section 42.26(a)(3) of the Tax Code.
Trial Court:
Judge Reece Rondon, 234th Judicial District Court of Harris
County, Texas.
Trial Court Disposition:
This case was tried to the bench on December 8 and 9, 2008.
After a hearing before the trial court on Plaintiff’s Motion for
Proposed Final Judgment and Defendant’s Objections to Entry
of Judgment, judgment was signed in favor of Houston
Laureate on January 30, 2009.
Parties in the Court
of Appeals:
District of the Court
of Appeals:
Harris County Appraisal District, Defendant-Appellant/
Petitioner; and
Houston Laureate Associates, Ltd. and Levering & Company,
Plaintiffs-Appellees/Respondents.
Fourteenth Court of Appeals, Houston.
Justices:
Justices Yates, Seymore, and Brown; opinion authored by
Justice Yates.
Citation:
Harris County Appraisal District v. Houston Laureate
Associates Ltd., 2010 WL 3341880 (Tex. App.—Houston
[14th Dist.] 2010, pet. filed) (See copy of this opinion at App.
Tab B).
Disposition by the Court
of Appeals:
Petition for Review
11-0078
Affirmed, without oral argument.
rehearing was overruled.
viii
HCAD’s motion for
STATEMENT OF JURISDICTION
The Supreme Court has jurisdiction in this case under Texas Government Code
§ 22.001(a)(2) (West 2004), because the Court of Appeals holds differently from prior
decisions of the Supreme Court on questions of law material to a decision of the case, and
§ 22.001(a)(6) (West 2004), because the errors are of such importance to the
jurisprudence of this State that they require correction.
ISSUES PRESENTED
ISSUE ONE
Is there legally sufficient evidence to support the Trial Court’s judgment?
ISSUE TWO
Did the Court of Appeals err in affirming the Trial Court’s judgment, when it was
undisputed that the judgment was based on the opinion testimony of an “expert witness”
who had no knowledge of the individual characteristics of the office building properties
about which he opined, and the Court merely accepted his experience as the sole basis for
his assumptions and adjustments?
ISSUE THREE
Was it error for the Trial Court to admit the testimony of the “expert” based on a “special
tool,” of unsubstantiated reliability, provided by a tax consultant firm with a contingent
fee interest in the outcome of the lawsuit?
ISSUE FOUR
Did the Trial Court err in permitting the expert witness to testify when it was undisputed
that the testimony was offered in violation of Rule 3.04(b) of the Texas Disciplinary
Rules of Professional Conduct, which prohibits a lawyer from offering the testimony of a
witness he knows is provided by a tax consultant firm with a contingent fee interest in the
outcome of the case?
ISSUE FIVE
Did the Court of Appeals err in shifting the burden to demonstrate the reliability of expert
testimony from the proponent to the objecting party? (reserved for briefing)
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ix
TO THE HONORABLE SUPREME COURT OF TEXAS:
The Harris County Appraisal District respectfully submits this Petition for Review.
STATEMENT OF FACTS
The Opinion of the Fourteenth Court of Appeals correctly states the nature of the
case; however, HCAD disagrees with the Court’s characterization of the facts and law
relied upon by Petitioner. These matters are addressed, in turn, in this Petition.
Annually HCAD “is responsible for appraising property in the district for ad
valorem tax purposes of each taxing unit … in the district.” Tex. Tax Code Ann. § 6.01
(West 2008). O’Connor & Associates (“O’Connor & Associates”), the contingent-fee
tax consultant retained by Houston Laureate, handled the administrative protest of the
2006 appraised value of its nine-story office building in Houston (the “subject
building”). (2 RR at 21, lines 10-13.) O’Connor & Associates facilitated the entire
litigation process, including hiring the lawyer, filing suit, and providing the expert
witness. (2 RR at 20, lines 6-21; D. Ex. 5, 4 RR/App. Tabs G & H.) The lawsuit alleged
that the appraised value of the subject building was excessive 1 and unequal under Tax
Code § 42.25 and § 42.26(a)(3). (1 CR at 2; 2 RR at 37, lines 4-10.)
Although the trial testimony was clear, the Court of Appeals’ Opinion
misapprehended 2 that O’Connor & Associates’ contingent compensation was based
1
Respondents’ claim of excessive appraisal (i.e., exceeds market value) was perfunctorily non-suited at the
beginning of trial. (2 RR at 7, line 18 thru 8, line 3.)
2
The Opinion correctly states, “Levering testified that Houston Laureate has a contingency fee agreement with
tax consultants O’Connor & Associates.” Harris County Appraisal District v. Houston Laureate, 2010 WL
334188, at *3 (Tex. App.—Houston [14th Dist.] 2010, pet. filed). (Emphasis added.) However, the Opinion
mistakenly states in footnote no. 2: “The record does not reflect the exact nature of the relationship between
O’Connor & Associates and Houston Laureate, but such a contingency interest may be inferred from the testimony
and evidence presented at trial.” Id. at *6.
solely on the amount of tax savings generated by a lower appraised value achieved at
trial. (2 RR at 20, lines 6-18.)
Delain Goddard (“Goddard”), the witness provided by
O’Connor & Associates, was the sole unequal appraisal witness. Goddard confirmed on
cross-examination that the tax consulting firm, O’Connor & Associates, paid all fees 3
associated with the litigation, including those of the expert witness and legal counsel. (2
RR at 20, line 6 thru 21, line 9; see also D. Ex. 1, 3, and 5.)
Goddard utilized O’Connor & Associates’ staff, facilities, proprietary software,
and research databases. (2 RR at 40, lines 1-8; D. Ex. 5.) Relying on a “special tool”
furnished by O’Connor & Associates (3 RR at 122, lines 6-14), Goddard testified the
subject building was unequally appraised according to Tax Code § 42.26(a)(3) (West
2008): “The district court shall grant relief on the ground that a property is
appraised unequally if: … the appraised value of the property exceeds the median
appraised value of a reasonable number of comparable properties appropriately
adjusted.” (Emphasis added; App. Tab D.)
At trial, Goddard testified he was employed by a separate entity, called Property
Evaluation Services (“PES”). PES was created with the assistance of Hugh McKenney,
Respondents’ counsel, to circumvent Tex. Comm. on Prof’l Ethics, Op. 553 (2004),
issued by the Professional Ethics Committee of the State Bar of Texas specifically to
address O’Connor & Associates’ litigation practices. (2 RR at 40, lines 1-8; 3 RR at 198,
line 2 thru 200, line 7; 3 RR at 13, lines 11-24.)
3
Cf.: “O’Connor & Associates will be responsible for all expenses, including court costs …expert witness fees and
legal fees associated with litigation . . . .” (D. Ex. 5/App. Tab H.)
Petition for Review
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2
Omitted from the Court of Appeals’ opinion are the undisputed facts that define
the sham limited partnership that is PES. In substance, there is no difference between the
expert testimony by O’Connor’s & Associates’ experts provided prior to, and then after,
Ethics Opinion No. 553. (App. Tab G.)
In its Daubert challenge, which the Trial Court carried with the case, HCAD
objected to the expert’s testimony on two grounds. (2 RR at 24, line 21 thru 26, line 7; at
27, lines 23-24.)
First, due to PES’s role in obtaining O’Connor & Associates’
contingency fee, presentation of Goddard’s testimony violated the prohibition of Tex. R.
Prof’l Conduct 3.04(b), as explained by Ethics Opinion No. 553 (2004). HCAD also
objected on the grounds that his testimony was no evidence because it was irrelevant and
unreliable. (2 RR at 24, line 21 thru 26, line 7; at 27, lines 23-24.) Goddard did no
professional work. He provided no support for his assumptions or adjustments. He
lacked knowledge of the individual characteristics of either the subject property or the
comparable properties selected for him by the O’Connor & Associates’ “proprietary
software” designed to “locate and analyze the values of comparable properties.” (D. Ex.
5/App. Tab H.) HCAD was granted a running objection, and continued to object to
Goddard’s testimony, during and after the trial. (3 RR at 188, line 7 thru 190, line 16.)
Through cross examination, HCAD exposed Goddard’s speculative and
conclusory opinions:
(1)
Goddard had no support for the “comparable properties” selection
criteria which he plugged into the O’Connor & Associates’ proprietary
software program. (2 RR at 60, lines 15-18; at 62, lines 1-7; 3 RR at 100,
lines 6-25; at 101, lines 1-9; at 122, lines 6-11; at 129, lines 13-18.)
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3
(2)
Goddard had no personal knowledge regarding the individual
characteristics of either the subject building or the selected comparables. (3
RR at 54, lines 3-12; at 55, lines 16-20; at 56, lines 17-23; at 57, lines 8-11;
at 65, line 22 thru 66, line 5; at 66, line 21 thru 67, line 4; at 78, lines 7-9.)
(3)
Goddard had no support for his adjustments (size, location) which he
testified made the comparables, selected by the “special tool,” “even more
comparable.” (2 RR at 61, lines 13-25; 3 RR at 91, lines 12-25; at 98, lines
5-17; at 100, lines 13-25; at 101, lines 5-9; at 122, lines 6-11; at 129, lines
10-18; at 138, lines 11-23.)
(4)
Goddard could not “recall” what properties were excluded from the
original selection of comparables. (2 RR at 62, lines 1-7.)
Nonetheless, based upon his unsubstantiated opinion, the Trial Court entered final
judgment in favor of Houston Laureate on January 30, 2009. (2 CR at 336.)
HCAD
requested additional Findings of Fact, which were denied April 6, 2009. App. Tabs K &
L. HCAD appealed. Without granting oral argument, the Fourteenth Court of Appeals
affirmed. HCAD filed a motion for rehearing and a response from Houston Laureate was
requested by the Court, but the motion was denied.
SUMMARY OF THE ARGUMENT
In deference to the Trial Court, the Fourteenth Court of Appeals has legitimized an
appraisal practice under the Tax Code based on unsupported speculation and ethical
violations, evident on the face of the record.
To lower the appraised value of an office building, the unequal appraisal “expert”
witness was presented through a tax consultant with a contingent fee interest in the
outcome of this lawsuit - filed by the tax consultant. Based on the expert’s incompetent
testimony, the appraised value was adjusted downward. The result tarnishes the judicial
process and legal profession. Being a simple scheme it is easily followed, negatively
Petition for Review
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4
impacting appraisal districts, and adversely impacting the revenues of school districts,
other governmental units, and the State. This is a statewide problem. Public policy and
finance are at serious risk. HCAD respectfully requests that the Supreme Court grant
review.
ARGUMENT
A.
Incompetent expert testimony, presented under cover of ethical violations,
is not evidence. The Fourteenth Court of Appeals acknowledged: “HCAD asserts that
there is no evidence to support the judgment because (1) Houston Laureate’s attorney
violated the Texas Disciplinary Rules of Professional Conduct by presenting its unequal
valuation expert’s testimony and (2) this expert’s research and analysis were not
reliable.” Harris County Appr. Dist. v. Houston Laureate Assoc., Ltd., No. 14-09-00380CV, --S.W.3d--, 2010 WL 3341880, at *1, (Tex. App.—Houston [14th Dist.] August 26,
2010, pet. filed.) (Emphasis added.) (hereinafter “Houston Laureate.”) HCAD objected
to the expert testimony of Plaintiff’s expert witness before, during, and after the trial. (2
RR at 27, lines 23-24; at 28, lines 7-16.)
However, the Court of Appeals bypassed the no evidence standard of review for
reliability, finding “there would be no evidence to support the Trial Court’s judgment
only if we determined that the Trial Court erred in admitting this expert’s testimony.
Thus, the appropriate standard of review … is abuse of discretion.” Houston Laureate,
2010 WL 3341880, at * 6, fn. 3. To the contrary, this Court has held: “[u]nlike review of
a Trial Court’s ruling as to admissibility … in a no-evidence review we independently
consider … the entire record, including contrary evidence tending to show the expert
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5
opinion is incompetent or unreliable.” Whirlpool Corp. v. Camacho, 298 S.W.3d 631,
638 (Tex. 2009). The contrary evidence in this case is addressed below.
B.
Goddard’s “special tool” = unequal appraisal, but without knowledge of
individual characteristics. Each real property is unique. The Tax Code requires that
appraised values reflect the varying individual characteristics of each property. Tex. Tax
Code Ann. §23.01(b) (West Supp. 2010), attached under App. Tab E.
Article VIII of the Texas Constitution requires “that assessed valuations be equal
and be based upon reasonable cash market value.” Parker v. Spindletop Oil & Gas Co.,
628 S.W.2d 765, 767 (Tex. 1982). The market value standard was designed to ensure
equality and uniformity. See Lively v. Missouri, K.&T. Ry., 102 Tex. 545, 120 S.W. 852,
856 (Tex. 1909). In accord with these principles, the First Court of Appeals in In re
MHCB (USA) Leasing and Finance Corp. and Valero Refining L.P., No. 01-06-00075CV, 2006 WL 1098922 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (not designated
for publication), explained considerations necessary to an unequal analysis:
The comparable properties are adjusted according to factors that tend to
influence value, such as location, age, depreciation, physical characteristics
of the property, and economic factors.” (referencing Tax Code
§ 42.26(a)(3)), at * 3.
... adjustments made between and among properties may be quantified by
comparing characteristics that result in differences in appraised and market
value - as reflected by a price placed on various kinds of “adjustments.” Id.,
at * 4.
Goddard could not ignore the individual characteristics of the properties about
which he opined. Nonetheless, he did. Further, he relied on O’Connor & Associates’
proprietary software to select comparables; but that is not the type of support reasonably
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6
relied upon by appraisal experts. Adding to the mystery of his analysis, Goddard testified
“I typically don’t keep a list of properties that I’ve excluded,” when asked if any
properties were excluded from the original selection of comparables. (2 RR at 62, lines 17.) See Guadalupe –Blanco River Authority v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002)
(appraisal expertise is “specialized knowledge:” the expert’s bald assurance that a widely
accepted approach was used does not demonstrate the opinion is reliable); Coastal
Transport Company, Inc. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 232 (Tex.
2004) (it is the basis of the opinions, not qualifications or bare opinions).
“[R]ule 702’s reliability requirement focuses on … whether the analysis used to
reach … [the expert’s] conclusions is reliable.” Exxon Pipeline Company v. Zwahr, 88
S.W.3d 623, 629 (Tex. 2002) (Insert added). Goddard’s analysis impermissibly relied on
O’Connor & Associates’ proprietary software for the selection process and his alleged
“experience.” Otherwise, he had no basis for his comparable adjustments or selection
parameters. (2 RR at 65, line 7 thru 66; 3 RR at 138, lines 16-23.) See Whirlpool v
Camacho, 298 S.W.3d at 639 (courts cannot merely accept experience as a substitute for
proof).
The Court of Appeals erroneously accepted Goddard’s “experience and expertise,”
without more, to make adjustments. Houston Laureate, at * 5. But his testimony was
“subjective belief or unsupported speculation.” See Exxon Pipeline Co. v. Zwahr, 88
S.W.3d at 629. Referring to this as a “non-scientific case” (Houston Laureate, at * 4),
the Fourteenth Court of Appeals (i) did not require the proponent to “satisfy its burden
regardless of the quantity or quality of the opposing party’s evidence on the issue,” but
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instead (ii) erroneously placed the burden on HCAD to “prove the expert testimony is
wrong.” See Whirlpool v. Camacho, 298 S.W.3d at 639.
Goddard’s arm-chair analysis consisted of (i) his reliance on the O’Connor &
Associates’ proprietary software to “select” comparables from HCAD’s public records,
(ii) sifting through other HCAD public documents online, and then applying his
“experience” 4 to create adjustments, from which he divined unequal appraisal. (2 RR at
80, lines 9-19.) Taking the path of least resistance, he simply, and erroneously, assumed
that each and every property characteristic affecting value was easily found in the public
record. But see, e.g., Tax Code § 22.27, “Confidential Information.” (West Supp. 2010.)
Goddard succinctly admitted:
Q.
(HCAD Counsel) At any point do you try to make a determination about the
actual characteristics, physical and economic for the subject property, or
your properties that you deem to be comparable outside of the data that you
have from HCAD?
A.
Sure, I will.…
Q.
Did you do that in this case?
A.
No.
(3 RR at 95, line 21 thru 96, line 14.) (Emphasis added.)
Following this startling admission, the Trial Court had no discretion to credit Goddard’s
unsubstantiated opinion as evidence. Whirlpool Corp. v. Camacho, 298 S.W.3d 631,
637-38 (Tex. 2009) (failure to support or explain.) These are other examples of his
lackadaisical approach:
Q.
4
How can you tell the condition of the property from the outside?
Goddard was an “appraiser trainee” at the time. (3 RR at 9, lines 19-23.)
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A.
… Do I know what the condition of the inside of the property is? … no. (3 RR at
56, lines 17-23.)
Q.
Do you have any knowledge about the structural integrity of any of the properties
in your list?
A.
I do not. (3 RR at 57, lines 8-11.)
Q.
Do you have any information about the net operating income, the actual figures for
the property for the tax year at issue?
A.
No.…
Q.
Do you have any of that information for any of the properties on your list?
A.
No. (3 RR at 65, line 22 thru 66, line 5.).
Q.
Do you have a value that you’re offering to the Court to suggest what would be the
appropriate value for the property?
A.
As long as we don’t discover something else in the rest of this testimony, I believe
I do. (3 RR at 88, lines 8-12.)
Q.
… for instance, the fitness center, the pond, the fountain? Do you know if this
property number one has any of those types of amenities?
A.
No. I don’t know .… (3 RR 72, line 19 thru 73, line 8.)
--This is not expert testimony. See Tex. Tax Code Ann. § 23.01 (West Supp. 2010); App.
Tab E; Tex. R. Evid. 702, 703. HCAD objected that his testimony was no evidence. (2
RR at 12, line 12; 3 RR at 212-217.)
C.
Hired gun Goddard, armed with a “special tool”, came in after the tax
consultant filed this lawsuit. In this case, the Trial Court and the Fourteenth Court of
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9
Appeals credited, for the first time,5 Goddard’s incompetent testimony. This “hired
gun,” 6 armed for litigation with a “special tool,” testified:
Q.
(Respondents’ counsel) What does Property Evaluation Services [PES] do?
A.
That’s it. We just provide real estate appraisal services for people who are
appealing their property assessments.… (2 RR at 33, lines 9-12.) (Emphasis
added.)
Q.
(HCAD’s counsel) [L]itigation … Is that where PES would come in?
A.
Eventually, we’ll come in, you know, after O’Connor has filed the lawsuit.
Sure.
Q.
PES comes in as the expert witnesses in the case?
A.
Correct. (3 RR at 30, lines 1-10.) (Emphasis added.)
Q
…you handle all of the cases that O’Connor & Associates has in litigation and
that’s still true today?
A.
Well, PES does.… (3 RR at 22, lines 20-25.)
Q.
…[Y]ou came up with this list of properties, correct?
A.
Well, the database search program presents me with a list of properties. And
… I can apply adjustments if I deem they’re appropriate … (2 RR at 60, lines
9-22.) (Emphasis added.)
Q.
(The Court) … could I do searches like that? I mean, he did, right?
A.
(Respondents’ counsel) He has – he has a special tool to do that. (3 RR at 122,
lines 6-11.) (Emphasis added.)
5
(Goddard) “[T]he six trials that I’ve testified in, the Court found for the defendant; the ones that are on my
resume.” (3 RR at 49, lines 8-10.)
6
A witness whose opinion has no reliable basis in the knowledge of the discipline. Gammill v. Jack Williams
Chevrolet., 972 S.W.2d 713, 725-26 (Tex. 1998).
Petition for Review
11-0078
10
Goddard relied on O’Connor & Associates’ “special tool,” of unsubstantiated reliability,
that “presented him with a list” of comparable properties, from which he concluded 7 the
subject building was unequally appraised. Legitimizing this as “expert” testimony or
evidence is an affront to the judicial process and the legal profession.
D.
This lawsuit lottery violated the prohibition of Tex. Disciplinary R. Prof’l
Conduct 3.04(b). Tex. Disciplinary Rule Prof’l Conduct R. 3.04(b) is an express and
unequivocal prohibition:
“A lawyer shall not: … acquiesce in the payment of
compensation to a witness or other entity contingent upon the content of the
testimony of the witness or the outcome of the case.” (App. Tab F, Emphasis added.)
Rule 3.04(b) prohibits payment of contingent compensation to either the (a)
witness or (b) other entity.
Houston Laureate’s principal testified: “We pay them
[O’Connor & Associates] a contingent fee based on their ability to … have it
reappraised lower.” (2 RR at 20, lines 6-18.) Ignoring the prohibition, the Court of
Appeals legitimized O’Connor & Associates’ “no risk” lawsuit lottery 8 state-wide:
We [O’Connor & Associates] are currently coordinating … cases
statewide. … Our fee is [x]% of the potential property taxes saved as a
result of litigation. [and] You risk nothing because you don’t pay
anything until or unless you receive further value reduction.
(D. Ex. 5, App. Tab H; Insert and emphasis added.)
Indeed, O'Connor & Associates should have no role in this lawsuit. 9
7
Unequal appraisal was a foregone conclusion: the “special tool” selected 18 properties; one property was exempt and 16 had appraised values lower than the subject.
8
Unequal appraisal in this case is reminiscent of the description of insurance bad faith in State Farm Llyods v.
Nicolau, 951 S.W.2d 444, 453 (Tex. 1997) (dissent): like “…the Texas lottery: it costs almost nothing to play, you
can play whenever you want, and if you win you hit the jackpot ….”
9
Cf. Valiani Taufiq, by and through its Authorized Agent Patrick O’Connor & Associates, et al v. Harris County
Appraisal District, 6 S.W.3d 652, 654 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“The scope of O’Connor’s
representation is defined by statute and does not include representing [the property owner] in a lawsuit . . . .”).
Petition for Review
11-0078
11
Respondents’ counsel was prohibited from acquiescing in payment of
compensation to either the witness or other entity, O’Connor & Associates, contingent
on the outcome. But that is exactly what has been allowed.
E.
The Court of Appeals erred in failing to strike Goddard’s testimony. The
seriousness of the offending testimony presented in this case is manifest in Rule 3.04
itself. The section is entitled "Fairness in Adjudicatory Proceedings." The prohibition of
contingency-fee experts is included together with such other transgressions as falsifying
evidence and subornation of perjury. As pointed out in Ethics Opinion No. 553, this is
hardly a trivial matter. Here, public policy issues are seriously at risk.
The Court of Appeals’ reliance on Gentry v. State, 770 S.W.2d 780, 790-91 (Tex.
Crim. App. 1988) is misplaced. Houston Laureate, at * 3.
The Gentry holding is
applicable only in criminal cases, and, as the Court of Criminal Appeals points out in
footnote 8, the consequences of an ethical violation would be different in a civil case. It
is not surprising that there is a dearth of cases enforcing Disciplinary Rule 3.04(b);
lawyers have heeded the prohibition. When necessary, however, the prohibitions set out
by the disciplinary rules are enforced by the courts. See Johnson v. Brewer & Pritchard,
P.C., 73 S.W.3d 193, 205 (Tex. 2005) (lawyer fee sharing agreement that violates public
policy as expressed in the disciplinary rules is unenforceable); see also attorney-witness
cases: Ayres v. Canales, 790 S.W.2d 556-57, fn. 2 (Tex. 1990) (the trial court has not
only the power, but also the duty); NCNB Texas National Bank v. Hon. Bill F. Coker, 765
S.W.2d 398, 400 (Tex. 1989) (“By proving the substantial relationship … the moving
party establishes as a matter of law that an appearance of impropriety exists. … the trial
Petition for Review
11-0078
12
court should perform its role in the internal regulation of the legal profession ….”);
Anderson Producing Co. v. Koch Oil Co., 929 S.W.2d 416, 425, 430 (Tex. 1996) in
dissent, Justice Phillips, joined by Justice Spector, wrote: “[W]e have in practice
employed … disciplinary rules as the controlling standard …,” and also in dissent, Justice
Owen, joined by Justice Hecht, wrote: “[T]he contingency fee was not raised … but a
violation of this nature should not be sanctioned by any court, objection or no.”) In this
case, the Court of Appeals erred by not striking Goddard’s testimony.
F.
The Court misconstrued Ethics Opinions Nos. 458 and 553. The Court of
Appeals rejected HCAD’s contention that the presentation of Goddard’s testimony
violated the prohibition of Texas Disciplinary Rule of Prof’l Conduct R. 3.04(b), as
explained in Ethics Opinion No. 553. The Court did so on the basis of a major erroneous
conclusion. Before this case was tried, the Ethics Committee had already informed
O’Connor & Associates, its expert witnesses, and counsel - the very same individuals
before this Court - that their arrangement violated Tex. Disciplinary R. Prof’l Conduct
3.04(b). (2 CR at 206; 1 CR at 173.) After Ethics Opinion No. 553 was published in
August 2004, Goddard, et al, “[w]ith the advice of Mr. McKenney” (3 RR at 14, line 9),
took the minimal step to create a sham separate entity, Property Evaluation Services, or
“PES”. (3 RR at 13, lines 11-24; D. Ex. 7.) Beyond that, nothing changed. (App. Tabs
G & H; D. Ex. 5.) The Fourteenth Court of Appeals failed to address either this endaround or the blatant violation of the prohibition of Rule 3.04(b), thereby legitimizing
both.
Petition for Review
11-0078
13
Before and after Ethics Opinion No. 553, all the tools of Goddard’s “trade” were
paid for and provided by O’Connor & Associates: offices, staff, proprietary software,
research, and salaries. (2 RR at 33, lines 13-22; 2 RR at 40, lines 1-8; App. Tabs G & H,
D. Ex. 5.) O’Connor & Associates hired and paid the putative plaintiffs’ counsel and
expert witness, filed the lawsuit, and thus “facilitates the entire litigation process for
you.” Id. (3 RR at 30, lines 1-10.)
After the Ethics Opinion, Goddard’s salary, including raises, and witness
testimony fees were paid through PES by O’Connor & Associates. (3 RR at 17, line 20
thru 18, line 10; App. Tabs G & H.) Ethics Opinion No. 553 clearly explains the
prohibition:
... the employing entity could itself be a witness only through an
employee or other agent.
It should be noted that the result that was reached under the old Texas
Code of Professional Responsibility is even clearer under current Rule
3.04(b) because the current Rule makes explicit that the prohibition of
the Rule applies to payments of contingent compensation to an ‘other
entity’ as well as directly to a witness.
(Tex. Comm. on Prof’l Ethics, Op. 553; emphasis added, 1 CR at 172-73; referencing
Tex. Comm. on Prof’l Ethics, Op. 458 (1988); see App. Tabs I & J).
In Houston Laureate, payment hinged on the shared success of O’Connor &
Associates and Goddard/PES through litigation. The Court of Appeals has erroneously
approved of such relationships.
Houston Laureate, 2010 WL 3341880, at * 1, 2.
Further, the Court mistakenly likens their relationship to that of a contingency-fee
attorney retaining an expert, but Rule 3.04(b) is a prohibition (“a lawyer shall not”),
Petition for Review
11-0078
14
whereas Rule 3.04(b)(3) specifically authorizes (“a lawyer may”) an attorney to advance
“a reasonable fee for the professional services of an expert witness.”
Quoting a colloquy between the trial judge and Houston Laureate’s counsel, the
Court of Appeals focused on the fact that Goddard was a salaried employee who was paid
the same, win or lose. However, Goddard had been a salaried employee, win or lose, of
O’Connor & Associates at the time that Ethics Opinion No. 553 was issued. (3 RR at 17,
line 20 thru 18, line 10.) The salary of the employee was not at issue in Ethics Opinion
No. 553, it was the tie-back to the entity with the contingent interest, O’Connor &
Associates. The fact that Goddard was subsequently salaried through PES is irrelevant.
(3 RR at 21, line 21 thru 22, line 6.) Thus, the Court erred in concluding that because
“Goddard [himself] had no contingency interest,” Rule 3.04(b) did not prohibit his
testimony.
CONCLUSION AND PRAYER
Respectfully, the Supreme Court should grant this Petition for Review, and reverse
and render a take-nothing judgment in favor of HCAD, because there is no evidence in
the record to support the Trial Court’s judgment.
Petition for Review
11-0078
15
Respectfully submitted,
OLSON & OLSON, L.L.P.
By:
_________/s/_______________________
Tammy White-Chaffer
State Bar No. 24008273
Mario L. Dell’Osso
State Bar No. 05732150
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019
Telephone: (713) 533-3800
Facsimile: (713) 533-3888
ATTORNEYS FOR PETITIONER
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of February 2011, a true and correct copy of
the foregoing Petition for Review was served on the counsel for Respondent by:
telecopy (713) 688-0199
certified mail, return receipt requested
courier, receipted delivery
To Hugh L. McKenney, McKENNEY & ASSOCIATES, P.C., 2200 North Loop
West, Suite 333, Houston, Texas 77018.
____________/s/________________________
Tammy White-Chaffer
Petition for Review
11-0078
16
NO. 11-0078
APPENDIX TO THE PETITION FOR REVIEW
The following documents are included in the Appendix:
Final Judgment, January 30, 2009 (2 CR at 336) .................................................................. A
Findings of Fact and Conclusions of Law, March 11,2009 (2 CR at 347) .......................... B
FOUlieenth Court of Appeals' opinion and judgment, August 26,2010 ............................... C
Tex. Tax Code Ann. § 42.26 (West 2008) (I CR at 28) ....................................................... D
Tex. Tax Code Ann. § 23.01 (West Supp. 2010) (2 CR at 288) ........................................... E
Tex. Disciplinary Rules Prof! Conduct R. 3.04, reprinted in Tex. GOy't Code Ann., tit. 2,
subtit. G, app. A (West 2005) ................................................................................................ F
O'Connor & Associates' Appraisal Witnesses, before and after Ethics Opinion No. 553
(Similar chart contained in Appellant's Motion for Rehearing, October 18,20 I 0) ........ "... G
O'Connor & Associates, "Judicial Appeals" solicitation (D. Ex. 5.) .............................. "... H
Tex. Comm. on Prof I Ethics, Op. 553 (2004) (2 CR at 201) .......................................... "... I
Tex. Comm. on Prof! Ethics, Op. 458 (1988) (2 CR at 204) .......................................... " ... J
Defendant's Request for Additional Findings of Fact, March 28,2009 (2 CR at 350) ........ K
Order on Defendant's Request for Additional Findings of Fact, April 6,2009 (2 CR at
383) ..................................................... ,.................................................................................. L
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NO. 2006-<i4087
HOUSTON LAURBATE ASSOC LTD,
et a1.
vs.
HARRIS COUNTY APPRAISAL DISTRICT
and the APPRAISAL REVIEW
BOARD OF HARRIS COUNTY
APPRAISAL DISTRICt
§
§
§
§
§
§
§
§
§
IN THE DISTRICT COURT OF
FINAl, JUWMEJIT
On the 8'" day of December, 2008, the above styled matter was called to trial during its trial
docket period. The P\aintiffiJ, Houston Laureate Assoc Ltd nnd Levering & Company, appeared for
trial through its representative and through counscl., Hugh L. McKenney, and announced ready for
trial, The Defendant, Harris County AppmiBaI District, appeared for trial through cmmseJ, Tammy
White-Chaffer and Darren M. Poutra, and announced ready for trial. The Defendant, Appraisal
Review Board of Harris County Appraisal District, was not served with process in titis matter, nor
did it make any appearance herein. There having been no jury demand, nor jury fee pnid, trial was
to the bench.
The parties presented evidence through testimony and certain documents admitted into
evidence. At the conclusion of tile evideru::e the PJaintiffil rested and the Defendant rested. Counsel
for the parties made closing arguments to the Court.
After considering the testimony and evidence properly admitted at trial and the argument of
coun.'lcl, the Court was of the opinion that judgment should be entered in favor of the Plaintiffs on
their claim ofunequai appraisal. It is therefore,
_.-_._----_.
It is therefore, ORDERED, ADJUDGED, AND DECREED that for 2006 ad valorem tax
purposc.'<, the appraised value of Plaintiffs' proPCl1y which is the subject of this suit shall be as
follows:
Z()()6 APPRAISED YAIJJK
$13,327,490
1161 02()()()()()() I
It is further ORDERED that the Chief Appraiser of Defendant, Harris County Appraisal
District, shall pcrfonn the post-appeal administrative procedures provided in Section 42.4 J of the
Texns Property Tax Code.
It is further ORDERED that Plaintiffs, Houston'. Laureate
. Assoc Ltd and Levoring &
_.".
Company, have judgment against and recover of and from the Defendant, Harris County Appraisal
District, the sum of three thousand five hundred dollars ($3,500,00) aB attorneys feoo through trial
oflhis matter, and additio;w.\ conditional attorneys fees on appealaB folloWB: tile sum of$I,500.00
in the event ofullSU=sful appeal to the Court of Appeals; the sum 0[$1,500.00 in the event ofa
petition to the Supreme Court; and the sum of$l,500.00 in tho event that the Supreme Court grants
the petition.
It is further ORDERED that all costs are asaessed against the Defendant, Harris County
Appraisal District.
All requeSted rcliefnot granted is DENffiD. This is a final judgment which disposes of all
issues and parties.
SIGNED this
+-
. L~~./
~ day Of...;~:::.-_--,{--_ _ _ _ _
--->,
JM77i2~
JUDGE PRESIDING
200X.
v
APPROVED AND ENTRY REQUESmD:
MCKENNB)SS ··IATES, P.c.
By:
",L....~ . -cc---I-:-.--.---.-.
cr
, S
2200 N
Loop West, Sui'
HOUMtQa, Texas 77018
Telephone: 713.688.6767 / Facsimile: 713.688.0199
ATIORNEY FOR PLAINTIFFS
Hugb L.
APPROVED AS TO FORM:
By:
::::-----,---,.--------Tummy Whitc-Chaffcr
Olsoo & 01800
2727 Allen Patkway Suite 600
Telcl'hooo: 713.533.3800
Facsimile: 7\3.533.3888
ATfORNEY FOR DEFENDANT
l\lm1g2/lloutour3fj.wpd
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NO. 2006-64087
HOUSTON LAUREATE ASSOC LTD,
ET AL.
VS.
HARRIS COUNTY APPRAISAL
DISTRICT, ET AL.
§
§
§
§
§
§
§
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On December 8, 2008, this case was callcd for trial.
All parties appeared through
attomeys of record and announccd that they were ready for trial. The case was tried to tlle Court.
Based upon the evidence and arguments of counsel, this Court cnters the following Findings of
Fllct and Conclusions of Law.
To tile extent a finding is more appropriately considered a
conclusion, elich finding will also be a conclusion.
To the extent a conclusion ill more
appropriately considcred a finding, each conclusion will also be a finciing.
When this lawsuit was instituted in January of 2006, Plaintiff owned real property located
at 10000 Memorial Drive, Houston, Texas 77024, which property was the subject of this lawsuit.
TI1C
Subject Property is located ill Harris County, and is identificd in Defendant's records as
Account 116102000000 I.
Rule 702 of the Texas Rules of Civil Evidence provides that "if scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the fonn of an opitlion or otherwise." The Court
ruled at trial that Plaintiff's expert Mr. Goddard was sufficiently qualified to give testimony to
assist the Court in its fact fmding. Based on the testimony of Plaintiffs expert Goddard, which
the Court found to be crediblc and reliable, lhe appraised valuc of tbe Subject Property for the
tax year of 2006 exceeds the median appraised value of a reasonable number of comparable
properties appropriately adjusted. Furthcr, the methodology, proccdures, samplc size, etc., of
Goddard's research was such that the Court was persuaded by Goddard.
Defendant offered no expert testimony to controvert Goddard's testimony. Based on
Plaintiff's uncontroverted expert testimony, the Court finds that at the median appraised value of
a reasonable number of comparable properties appropriately adjusted, the Subject Property
would be appraised at $13,327,490.00 for tax year 2006. Further, Plaintiff incurred attomeys'
fees for representation in this matter through trial in the sum of $3,500.00, of which the Court
finds $3,500.00 to be reasonable and necessary. Moreover, the Court finds $1,500.00 to be
reasonable and necessary attorneys' fees for each level of appeal.
Purstlant to Section 42.26(a)(3) of the Texas Property Tax Code, Plaintiff is entitled to
relief on the grounds that the Subject Properly is wlequally appraised. The appraised value of
the Subject Property exceeds the median appraised value of reasonable and comparable
properties appropriately adjusted. TIle proper appraised value of the Subject Property for the
2006 tax year is $13,327,490.00. The appraised value of the Subject Property on the appraisal
roU of the Harris County Appraisal District should be changed to reflect the correct value of
$13,327,490.00 for tax year 2006 for I-[CAD Account 1161020000001.
This Court will enter a judgment in favor of Plaintiff for the value of the Subject Property
on Defendant's appraisal roll to be $13,327,490.00. Further, Plaintiff is awarded reasonable and
necessary attomeys fees in the amount of $3,500.00 through trial and additional conditional
altorneys fees on appeal as follows: the sum of $1 ,500.00 in the event of an unsuccessful appeal
to the Court of Appeals; the sum of $1,500.00 in the event of a petition to the Supreme Court;
and the sum of $1,500.00 in the eycnt that the Supreme Court grants the petition. Moreover,
PlaintifT is awarded all cost, incurred.
~
Signed this ._.J_\~ day of March, 2009
JUDGE REECE RONDON PRES1DlNG
Page 2 of B
VVestldw
Page I
--- S.W.3d----, 2010 WI. 3341880 (Tex.App.-Ilous. (14 Disl.»
(Cite as: 2010 WL 3341880 (Tex.App.-Hous. (14 Dist.)))
H
Only the Vvcstlaw citation is currently (\vai\able.
Court oj Appeals of Texas,
Iiouston (14th Disl.).
HARRIS COUNTY APPRAISAL DISTRICT,
Appellant,
v.
HOUSTON LAUREATE ASSOCIATES LTD.
and Levering & Company, Appellees.
far property owner did not provide a basis for excluding expert's testimony as to unequal valuation
of properly by {he county appraisal district, where
neither expert, nor his employer, had a contingency
interest in the outcome of action against county appraisal district alleging unequal appraisal of property. State Bar Rules, V.T.eA., Government Code
Title 2, Subtitle G App. A, Art. 10, § 9, Rules or
Prof.Conciuct, Rule 3 .04(b).
[2\ Appeal and Error 30 C;:;>94G
No. 14-09-00380-CV.
Aug. 26, 20 I O.
Rehearing Overruled Dec. 23, 2010.
Background: Property owner brought action
against cOllnty appraisal district alleging appraisal
district unequally appraised properly. The 234th
District Court, Harris County, Reese Rondon, 1.,
adjusted the appraised value of the property, and
appraisal district appealed.
Holdings: The Court of Appeals, Leslie B. Yates,
1., held that:
(I) alleged violation of rule of professional conduct
did not provide a basis for excluding expert's testimony, and
(2) evidence was sufficient to support finding expert's tcstinlOny was reliable.
Affirmed.
West Headnotes
30 Appeal and Error
30XVI Review
30XVI(JI) Discretion of Lower Court
30k944 Power to Review
30k946 1<. Abuse of Discretion. Mosl
Cited Cases
Appeal and Error 30 C;:;>971(2)
30 Appeal and Error
30XVT Review
30XVI(H) Discretion of Lower Court
301<971 Examination of Witnesses
30k971(2) k. Competency of Witness.
Most Cited Cases
The Court of Appeals reviews a trial COUl-eS decision to admit or exclude an expert witness for an
abuse of discretion; under this familiar standard, the
trial court abuses its discretion when its ruling is arbitrary, unreasonable, or made without reference to
any guiding rules or legal principles.
[I J Evidence 157 C;:;>535.5
13J
157 Evidence
157XII Opinion Evidence
I 57Xll(C) Competency of Experts
157k535.5 k. Disqualification; Bias or
Conflict ofInteresl. Most Cited Cases
Alleged violation of rule of professional conduct prohibiting payment of compensation to a witness contingent on the content of the testimony of
the witness or the outcome of the case by counsel
157 Evidence
157Xll Opinion Evidence
I 57XTT(B) Subjects of Expert Testimony
157k508 k. Matters Involving Scientific
or Other Special Knowledge in General. Most Ciled
Cases
Evidence 157 C;:;>508
Evidence 157 C;:;>535
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2/11/2011
--- S. W.3d ----, 20 I 0 WL 3341880 (Tex.App.-llolis. (14 DisL))
(Cite as: 2010 we 3341880 (Tex.A pp.-Holls. (14 Dis!.)))
157 Evidence
157Xli Opinion Evidence
I 57XII(C) Competency of Experts
157k535 k. Necessity of Qualification.
Most Cited Cases
Evidence 157 €:=555.2
157 Evidence
157Xll Opinion Evidence
I 57XII(D) Examination of Experts
1571<555 Basis of Opinion
1571<555.2 Ie Necessity and Sufllclency. Most Cited Cases
Expert testimony is acllnissiblc only if the expert is qualified and the evidence is relevant and
based on a reliable foundation.
157 Evidence
157XII Opinion Evidence
157XJI(D) Examination of Experts
157k555 Basis of Opinion
157k555.6 Value
157k555.6( I0) Ie Comparable Sales
or Values. Most Cited Cases
Evidence was suf'ncient to support triHl court's
finding that expert witness's testimony rcgarding
the appraised value of subject property was reliable,
in property owner's action challenging county appraisal district's appraisal of property, even though
come of the appraised valued of comparable properties identified by expert might have changed during pendency of action, where expert changed his
conclusions to reflect the more current data, using
data obtained from appraisal district's rccords and
property classifications.
\4\ Evidence 157 €:=555.2
157 Evidence
I 57 XII Opinion Evidence
I 57Xll(D) Examination of Experts
157k555 Basis of Opinion
157k555.2 k. Necessity and Sufllciency. Most Cited Cases
In non-scientific cases the trial court ultimately
has discretion to determine how to assess reliability
of an expert witness's research and analysis.
\5\ Evidence 157 €:=555.2
I S7 Evidence
157XIl Opinion Evidence
I 57XlI(D) Examination of Experts
157k555 Basis of Opinion
157k555.2 k. Necessity and Sufficiency. Most Cited Cases
In determining whether an expert's research
and analysis is based on a reliable foundation, the
trial court does not decide whether the expert's conclusions are correct; instead, the trial COUlt must determine whether the analysis used to reach those
conclusions is reliable.
[6l Evidence 157 €:=555.6(IO)
Tmnmy Yolanda White-Chaffer, John E.. Fisher,
Mario L. Dell'Osso, I-louston, for appellant.
Hugh L. McKenney, Houston, for appellees.
Panel consists of lustices YATES, SEYMORE, and
BROWN.
OPINION
LESLIE B. YATES, lustice.
*1 In this ad valorem properly tax case, appellant Harris County Appraisal District ("HCAD")
challenges the trial court's judgment adjusting the
appraiscd value of the property owned by appellees
Houston Laureate Associates Ltd. and Levering &
Company (collectively, "Houston Laureate"). In
two issues, I-I CAD asselts that there is no evidence
to support the judgment because (1) Houston Laureates attorney violated the Texas Disciplinary
Rules of Professional Conduct by presenting its unequal valuation expert's testimony and (2) this expert's research and analysis were not reliable. We
afllrm.
Background
Property owners Houston Laureate sued HeAD
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21l1l20 11
Page 4
or 8
--- S.W.3d ----, 2010 WL 3341 BSO (Tex.App.-Ilous. (14 Disc»
(Cile as: 2010 WI, 3341880 (Tex.App.-Hous. (14 Dis!.)))
under Chapter 42 of the Texas Properly 'Tax Code-.
Houston Laureate alleged, that IleAD had unequally appraised their property, located on Memorial Drive in Houston, for tax year 2006. 'rl1c
case \vas tried to the bench in December 2008. AI
trial, only two witnesses testified: Gary Levering,
the president of Houston Laureate Associates, Ltd.,
and De-lain Goddard, a certified appraiser employed
by Property Evaluation Services.
Levering testified that Houston Laureate has a
contingency fcc agreement with tax consultants
O'Connor & Associates. According to L,cycring,
Houston Laureate pays O'Connor & Associates a
fcc contingent on O'Connor & Associates's ability
to get Houston Laurcate's property tax lowered.
L,cvcring testified that he believed the contingency
Ice was twenty-five percent. I-Ie further stated that
he "assumed" O'Connor & Associates hired and
paid the altorney and the expert witness for this trial. He explained that he had consulted v·,rith
O'Connor & Associates before filing suit, but that
the property manager of this particular property,
Todd Casper, had actually been the individual involved in the decision-making process regarding
the lawsuit. Todd Casper did not testify at trial.
Goddard testified and described his background
and experience as a certified appraiser.FN' He testified thaI he had formerly been employed by
O'Connor & Associates, but in 2005, he and two
colleagues formed Propelty Evaluation Services as
"a separate business venture outside of O'Connor."
According to Goddard, he and his collcagues left
O'Connor & Associates because they were concerned about "an issue in the cOUlis with attorneys
using expeli ... witnesses who were employed by
companies that had a contingency interest in the
cases that they were assigned to." The following
exchange on cross-examination between HCAD's
attorney and Goddard sets out the salient points regarding the relationship between Property Evaluation Services and O'Connor & Associates:
how it works?
1\. Well, through the ongoing agreement, we have
pretty much a standing order to analyze all the
property cases that they have in litigation to determine if they're unequally assessed in regards to
how any particular appraisal district assesses
their values. We'll perform market value studies
from time to time. And, then, \ve are to serve as
expert witnesses either in deposition or at trial
over the cascs that \ve've prepared.
*2 And, then, part or our arrangement, like I
had mentioned before, allows us access to a
group of clerical administrative people that help
to schedule the \vork, the actual production part
of it as far as the paperwork and that type of
thing. We have assistance in assembling the data
and somctinles the exhibits that might be included in particular \vork-file supplementation.
And, then, the agreement for subleasing the office space and office furniture and computers.
Q. And how is PES compensated for the work
that it does for O'Connor?
A. I think iI'S simply a monthly flat fee that is designed to accommodate the salaries of the appraisers who work for Property Evaluation Services.
Q. Are there any bonuses or commissions that are
realized by any of your appraisers'>
A. No. The only expert fees are just Iypical expert witness fees that would be invoiced, for example, in this case I'll invoice O'Connor through
PES for a fee for appearing here, but it's a flat fee.
Q. What is Ihal flat fee?
Q. Can you explain for the Court what exactly is
PES's arrangement or contract with O'Connor;
A. $1,500.
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--- S.W.3d----, 2010 WL 3341880 (Tcx.App.-llous. (14 LJisl.))
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Q. Is thaI a Oat fee thaI is paid to all the experts
thaI testify at trial at PES?
A. Currently that's our standard trial testimony
fee that we invoice to O'Connor.
Regarding the methodology underlying his unequal appraisal determination, Goddard explained
that he found comparable properties using criteria
including physical and geographic characteristics.
lle relied on HeAD's own property designations to
find other high-rise "Class A" properties within a
ten mile radius of the subject property. He located
eighteen comparable properties, which he opined
was a "reasonable" number. He explained the various adjustments he made to these properlies' appraised values so they would be comparable to the
Memorial Drive property, including adjustments for
size, age, and location. Several of the properties he
identified as com parables had changes to their appraised values during the pendency or the suit.
Goddard adjusted his calculations based on the
newer appraised values. In addition, HeAD established that several of the comparable properties had
separately accounted-for parking garages, but the
Memorial Drive property had a parking garage included in its appraised value; again Goddard adjusted his calculations to include the appraised value
of the parking garages for those buildings for which
the parking garages were separately accounted. Ultimately, Goddard opined that the subject property
had been unequally appraised in relation to the
comparable properties. He further calculated the
median appraised value of the comparable properties at $86.96 per square foot.
After hearing the testimony and argument of
counsel, the trial court found in favor of Houston
Laureate and reduced the 2006 appraised value of
the Memorial Drive property. On March II, 2009,
the trial court entered findings of fact and conclusions of law in support of its judgment. This appeal
followed.
Analysis
*3 [I] In its first issue, HCAD asserts that the
presentation of' Goddard's testimony violHtcd the
prohibitions or Texas Rule of Professional Conduct
3.04(b) and Professional Ethics Committee for the
Stale Bar of Texas Opinion No. 553 and thus constituted no evidence to support the trial court's
judgment We disagree.
I-leAD cites no authority for the proposition
that an attorney's alleged violation of an ethical rule
provides a basis for excluding evidence. Indeed, the
Court of Criminal Appeals has held that violation
or attorney disciplinary rules in obtaining evidence
1'01' a criminal proceeding docs not bal' introduction
of that evidence at trial. Gentry v. Slate, 770
S. W.2d 780, 790-91 (Tcx.Crim.App.1988); c/
TEX. DISCIPLINARY R. PROF'L CONDUCT
Preamble 1111 14-15, reprinted in TEX. GOY'T
CODE ANN., tit. 2, subtit. G app. A (Vernon 2005)
(''IT]hese rules are not designed to be standards for
procedural decisions. Furthermore, the purpose of
these rules can be abused when they are invoked by
opposing parties as procedural weapons.").
Further, we sec no violation of the ethical rule
upon which HCAD relies in this case. Rule of Professional Conduct 3.04(b) provides, in pertinent
part, as follows: "A lawyer shall not ... pay, offer to
pay, or acquiesce in the offer or payment of COl11~
pensation to a witness or other entity contingent
upon the content of the testimony of the witness or
the outcome of the case." TEX. DISCIPLINARY R.
PROF'L CONDUCT 3.04(b). In turn, Ethics Opinion No. 553 addresses the following question, "Is a
lawyer prohibited from offering the testimony of an
expert witness whose employer has entered into a
contingent fee contract with the lawyer's client regarding the subject matter of the litigation?" Op.
Tex. Ethics Comm'n No. 553 (2004). The Professional Ethics Committee for the State Bar of Texas
concluded that "[i]t is a violation of the Texas Disciplinary Rules of Professional Conduct for a lawyer to use in a case as an expert witness an employee of a business entity that has a contingent fee interest in the outcome of the case." ld.
Here neither Goddard nor his employer, Prop-
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Page 5
--- S.W.3d ----, 20 I 0 WL 33'11 SSO (Tex.AJlJl.-lltllls. (14 Ilis\.))
(Cite as: 2010 WL 3341880 (Tcx.App,-Holis. (14 Dis!.)))
crt)' Evaluation Services, had a contingency interest
in the outcome of this ](\\vsuit. Indeed, Goddard
testified unequivocally that he was employed by
Property Evaluation Services and that his employer
was to be paid a nat Icc for his services as an expert witness. This ilat fec \vas to be paid by
O'Connor & Associates, which presumably had a
contingency interest in the litigationYN7 Such an
arrangement is similar to an attorney with a contingency-fcc mTangement hiring, for a nat fcc, an expert to testify at his client's trial. Such an arrangement is perfectly acceptable, so long as the payment
of the expert's tee is not contingent upon the COlltent of the testimony or the outcomc- of the trial.
TEX. DISCIPLINARY R PROF'L CONDUCT
3.04(b)(3) (providing that a lawyer may advance,
guarantee, or acquiesce in the payment of a reasonabJe fcc for the professional services of an expert
witness).
*4 In short, there is simply nothing in the record to suggest that Goddard's fcc was contingent
upon the content of his testimony. 1n fact, the following questions by the trial court clariiled that the
expert's fee was not contingent upon the outcome of
the case:
The Court: The-as I appreciate it, the experl was
paid, period. Now, whether the original property
agent to challenge the appraisal gets a fee or not,
that person still has to pay the expert.
[Houston Laureate's Counsel]: Yes, Yes. The expert has been paid,
The Court: And if-if r '" enter a take-nothing
judgment for the plaintiffs, the expert doesn't return the money.
[Houston Laureate's Counsel]: No. He's been paid,
The Court: And if r end up entering a judgment in
favor of the plaintiffs, does the expert get any additionalmoney?
[Houston Laureate's Counsel]: No,
Thus, Goddard had no contingency interest ill
the outCOl1iC or the case and Vias paid his Icc regardless or whether O'Connor & Associates received its contingency fee. Under these circumstances, we overrule HeAD's llrst issue.
1n issue two, HeAD contends that C')odc\ard's
testimony was inadmissible and constituted no
evidence because his research and analysis were nol
reliable, Specifically, HCAD asserts that Goddard's
expert report contained mUltiple errors and omissions, Goddard included no support for his assumptiems in making the adjustments to the comparable
properties' appraised values, and he lacked knO\VH
ledge of the individual characteristics of either the
subject property or the properties he selected as
comparables.
l2][3] We review a trial court's decision to admit or exclude an expert witness ror an abuse of
discretionYN, Weingarten Rea/~y lnveSfOl'i'; v. Harris COlll1ly Appraisal Dis/., 93 S.W.3d 280, 283
(Tex,App.-Houston [14th Dis!.] 2002, no pe!.)
(citing Helena Chem. Co. v. Wilkins, 47 S. W.3d
486,499 (Tex.2001)). Under this familiar standard,
the trial court abuses its discretion when its ruling
is arbitrary, unreasonable, or made without reference to any guiding rules or legal principles. Id Expert testimony is adlnissible only if the expert is
qualified and the evidence is relevant and based on
a reliable foundation. lei. at 284 (citing 10.1. du /'0111
de Nemours & Co. v, Robinson, 923 S. W.2e1 549,
556 (Tex.1995)).
[4][5] Here, HeAD only challenges the reliability of Goddard's research and analysis, In nonscientific cases such as this one, the trial court ultimately has discretion to determine how to assess reliability. ld In determining whether an expert's research and analysis is based on a reliable foundation, the trial COUlt does not decide whether the expert's conclusions are correct; instead, the trial
court must determine whether the analysis used to
reach those conclusions is reliable. lJa,.,.;s County
Appraisal Disi. v. Kempwood Plaza Ltd, 186
S.W.3d 155, 159 (Tex.App,-Houston [1st Dis!.]
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Pane
7 01'8
b
--- S.W.3d ----, 2010 WI. 3341880 ('fex.App.-IloLiS. (1'1 Disc))
(Cite"s: 2010 WI. 3341880 (Tex.App.-HoLiS. (14 Dis!.)))
2006, pc\. rcj1 d) (citing Gall/Illil/ F. JocA IYilliams
Chevl'oie/. inc., 972 S.W.2cl713, 728 (Tcx.19n)).
*5 HeAD identifies the follO\ving "errors"
Goddard's report and testimony:
!ll
• One of the properties Goddard claimed was
comparable had to be eliminated from the list because it \Vn$ exempt from property tax.
• The appraised values of several of the comparable properties were incorrect.
• Severa! of the comparable properties had separate appraisal accounts for their parking garages,
although the subject property had a parking garage included in its appraised value.
Each of these issues was, however, addressed
by Goddard's testimony. First, the property that was
exempt f)'om propelty tax was removed (i'oln the
Jist of comparable properties. Second, the pr()per~
tics HCAD refers to as having "incorrect" appraised
values had their appraised values adjusted downward during the pendency of this suil. In fact, Goddard explained the tluidity of appraised values as
follows:
[T]he values, especially of properties at this value
level, are constantly changing due to litigation
process, correction motions, And I don't consider
value when I'm doing these comparisons, so I'm
not relying on those values, I'm simply showing
the value that the appraisal district is carrying on
the property at the time I do the m1alysis.
It's not unlikely that during the beginning of the
analysis to the final resolution that some of those
comparable property's values may very well indeed change, which in this case we've seen.
Third, Goddard testified that adding the appraised values of the parking garages to the appraised values of the two buildings with separately
accounted-for parking garages did not change the
median appraised value of the comparable properties. Goddard further opined that none of these adjustments in value changed his ultimate opinion that
the subject property had been unequally appraised.
1"6] In sum, Goddard testified that he identil1ed
numerous comparable properties. HeAD classified
these properties with the same land lise codcs"Class A" high-rise properties. C;/ id (explaining
that appraiser selected properties from HeAD's tax
rolls with the same land llse code and building class
as the subject property). According to HeAD's description of this type of properties, Class A properties are income-producing properties with similar
physical characteristics, including both nev-/ and
older properties in desirable locations that command high rental rates, attract top quality tenants,
and have well-maintaincd finishes, with excellent
design and above-average \vorkmanship allli materials. Goddard adjusted these appraised valucs based
Oil factors such as size, age, and location. At trial,
HeAD did not challenge the specific adjustments
Goddard made to these properties (other than those
issues identified supra ), and an appraiser may usc
his experience and expertise to make these types of
adjustments. See ic!. at 161, Further, these adjustments are contemplated by the statutory scheme.
See TEX. TAX CODE ANN. § 42.26(a)(3) (Vernon
2008) (requiring the dist!'ict court to grant !'clief
based on unequal appraisal if the "appraised value
of the property exceeds the median appraised value
of a reasonable number of comparable properties
appropriately adjusted "); see also Kempw()od
Plaza Ltd., 186 S.W.3d at 159-60; Harris Coul1/Y
/lppraisa! Dis!. v. United InvestOl's Really 7i,ltsl, 47
S.W.3d 648, 650 n. 4 (Tex.App.-Houston [14th
Dis!.] 2001, pet. denied) (noting that appraiser
made adjustments based Oil, inter alia, location,
age, and physical characteristics of comparable
properties).
*6 In sum, we cannot say the trial court abused
its discretion in determining that Goddard's testimony was reliable. The fact that some of the appraised values of the comparable properties Goddard identified may have changed during the pendency of the suit does not make his data unreliable,
and Goddard changed his conclusions to reflect the
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morc curren! data. This data \vas obtained using
1--ICAI),s records and properly classif'icalions, and
HeAD
that the
parable.
160-6:2.
provided no competing expert testimony
properties used by Goddard \h,'crc not comS'ee Kell1jJwood /)/ozo Ltd., 186 S. W.3d at
Moreover, because this evidence v·,1as ad1T1issiblc, the trial courl's judgment is supported by
the evidence. Accordingly, we overrule HCAD's
second issue.
Conclusion
I-laving ovcrlllled each of' HeAIYs issues, we
afflrm the trial courl's judgment.
IC'N I. Before Goddard testified, the trial
court granted HeAD running objections to
his testimony on the grounds asserted on
appeal.
FN2. The record docs not reflect the exact
nature
of
the
relationship
betwecn
O'Connor & Associates and Houston Laureate, but such a contingcncy interest may
be inferred from the testimony and evidence presented at trial.
FN3. Although HCAD asserts that there is
no evidence to support the trial court's
judgrnent because the expert's testimony
was unreliable, there would be no evidence
only if we determined that the trial court
erred in admitting this expert's testimony.
Thus, the appropriate standard of review
for this particular issue is abuse of discretion. See, e.g., Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 499 (Tex.2001).
Tex.App.-Houston [14 Dist.],2010.
Harris County Appraisal Dist. v. Houston Laureate
Associates Ltd.
S.W.3d
2010
WL
3341880
(Tex.App.-Hous. (14 Dis!.))
END OF DOCUMENT
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2111/2011
August 26, 20 I0
JUDGMENT
BARRIS COUNTY APPRAISAL DISTRICT, Appellant
NO. 14-09-00380-CV
V.
HOUSTON LAUREATE ASSOCIATES LTD. AND LEVERING & COMPANY,
Appellees
This cause, an appeal from the judgment in favor of appellees Houston Laureate
Associates Ltd. and Levering & Company, signed January 30, 2009, was heard on the
transcript of the record. We have inspected the record and find no error in the judgment.
We order appellant Harris County Appraisal District to pay all costs incurred in
this appeaL We further order this decision certified below for observance.
j
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Wcstlaw
Effcclivc: September 1) 2003
Vernon's 'fcxas Statlltes and Codes Annotated
Tax Code
...
~_~HTQDtnQ"':iS
n\grS_~&'_ AnnQ;;)
Title I. Properly Tax Code
Subtitle F. Remedies
~~ ..Lhfln.tgL_42 . .J uc\ic la 1 Rcvi cw (l\9j~ _ &_./I,_lJ1}Sl.§)
~§LS_ lL\)5;J}JmJQIJ}. Review by District Court
~ § 42.26. Re.medy for Unequal Apprais,ll
(a) The district court shall grant relief OJ) the ground that a properly is appraised unequally if:
(I) the appraisal ratio of the property exceeds by at least 10 percent the median level or appraisal or a reasonable
and representative sample of other properties in the appraisal district;
(2) the appraisal ratio OJ the property exceeds by at least 10 percent the median level of appraisal of a sample or
properties in the appraisal district consisting of a reasonable number of other properties similarly situated to, or of
the same general kine! or character as, the property subject to the appeal; or
(3) the appraised value of the property exceeds the median appraised value of a reasonable number of comparable
properties appropriately adjusted.
(b) If a property owner is entitled to relief under Subsection (a)(l), the court shall order the property's appraised
value changed to the value as calculated on the basis of the median Jevel of appraisal according t.o Subsection (a)(I).
If a property owner is entitled to relief under Subsection (a)(2), the court shall order the property's appraised value
changed to the value calculated on the basis of the median level of appraisal according to Subsection (a)(2). If (l
property owner is entitled to relief uncler Subsection (a)(3), the court shall order the property's appraised value
changed to the value calculated on the basis of the median appraised value according to Subsection (a)(3). Ifa prop··
erty owner is entitled to relief under mare than one subdivision of Subsection (a), the court shall order the properly's
appraised value changed to the value that results in the lowest appraised value. The court shall determine cilch
applicable median level of appraisal or median appraised value according to law, and is not required to adopt the
median level of appraisal or median appraised value proposed by a party to the appeaL The court may not limit or
deny relief to the property owner entitled to relief under a subdivision of Subsection (a) because the appraised value
determined according to another subdivision of Subsection (a) results in a higher appraised value.
(c) For purposes of establishing the median level of appraisal under Subsection (a)(l), the median level of appraisal
in the appraisal district as determined by the comptroller under 3.~cti.g.!15.1 0 is admissible as evidence of the median
level of appraisal of a reasonable and representative sample of properties in the appraisal district for the year of the
comptroller's determination, subject to the Texas Rules of Evidence and the Texas Rules of Civil Procedure.
(d) For purposes of this section, the value of the property subject to the suit and the value of a comparable property
or sample property that is used for comparison must be the market value determined by the appraisal district when
the property is a residence homestead subject to the limitation on appraised value imposed by ii,C;..Ql1QH ..2;.L2J..
© 2011 Thomson Reuters. No Claim. to Orig. US Gov. Works.
V.TCA , Tax Code
~
!U 2()
CJUiUJ'J'(S)
Acts 1979, 66th [,eg., p. 231 I, ell. 841, § I, efT. Jan. I, 1982. Amended by Acts 1981, 67til Leg., 1s( C.S., p. 174, ch.
13, § 153, err. Jan, I, 1982; Acts 1983, 681h Leg., p, ~924, c!l. 8n, § 3, ciT. Jan, I, 1984; Acts 1985, 691h Leg" cil,
823, § 3, err. Jan, I, 1986; Acts 1989,'LIst)"'ILc:ILI96,§j5,~ll ,!tllle 15,., 1~)8(J; !\cts L99L 7;!llciLcg,ch 843,§
I), "IT,Sc:J2U, 192J; AcLsl9.97 ,.7.5t]JL"g". el! lQ}9, § J2,c.fL .lalli, 1998; ACls 2003, 71)IilLeg,ch, JQ4L§'1,
[JI:)q],L. 1,2003
r
t.~/·,
V.TeA., Tax Cod(: § LUll
c
Page I
Effective: January 1) 2010
Vernon's Texas Statutes and Codes Annolntcd Gl!rr.~;n{m!.;:;.~
Tax Code (ECJeik;\11I1Q,)
Tille 1. Property Tax Code
Sllb(ille D. Appraisal and AsseSS1Hcnl (B.gJ3. _&, ..6..ll!.ln§)
~~ .. ~h.(}12l~J.23.. Appraisal M.ctll0ds and Procedurcs n.'\'(;f~..&-._AIJ.n.Q.s.)
~~ .. S.llb~tE\12~~;L.L\. Appraisals Generally
.... § 23.0 I. Appraisals Generally
•
(a) Except as otherwise provided by this chapter, a!1 taxable property is appraised at its market value as of January 1.
(b) The market value of property shall be determined by the application of generally accepted appraisal methods and
techniqucs. If the appraisal district determines tile appraiscd value of a property using mass appraisal standards, the
mass appraisal standards must comply with the Unifonn Standards of Professional Appraisal Practice. The same or
similar appraisal methods and tecbniq·llcs shall be used in appraising the same or similar kinds of property. Uowcvcr,
each properly shall be appraised based upon the individual characteristics tilat affect the properly's market value, and
all available evidence that is specific to the value of the property shall be taken into account in determining thc
property's lnarket value.
<Text of subsec. (e), as added by Acts 2009, 81st Leg., ch. 619, § 1>
(c) Notwithstanding .Qy..c;.J!.QD..JJl1.CD.(C}' in del.ern1ining the market value of a residence homestead, the chier appraiser may not exclude from consideration the value of other residential property that is in the same neighborhood
as the residence homestead being appraised and would otherwise be considered in appraising the residence homestead because the other residential properly:
(1) was sold at a foreclosure sale conducted in allY of the three years preceding the {ax year in which the residence
homestead is being appraised and was comparable at the time of sale based on relevant characteristics with other
residence homesteads in lhe same ncighborhood; or
(2) has a market value that has declined because of a declining economy.
<Text of subsec. (e), as added by Acts 2009, 81st Leg., ch. 1211, § 1>
(c) Notwithstanding any provision of this subchapter to the contrary, if the appraised value of property in a tax year
is lowered under Subtitle F, the appraised value of the property as finally determined under that subtitle is considered to be the appraised value of the property for that tax year. In the following tax year, the chief appraiser may not
increase the appraised value of the property unless the increase by the chief appraiser is reasonably supported by
substantial evidence when all of the reliable and probative evidence in the record is considered as a whole. If the
appraised value is finally determined in a protest under Secti.Q!L41,1l{lllGi.l or an appeal under SectiQ!LAf"J~Q, the
chief appraiser may satisfy the requirement to reasonably support by substantial evidence an increase in the appraised value of the property in the following tax year by presenting evidence showing that the inequality in the appraisal of property has been corrected with regard to the properties that were considered in determining the value of
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
V.I'.C /\. Tax C\J(\t-
0 :d,O!
p;\gc)
tile subject properly. The burden or proof' is 011 the chicI' appraiser to support an increase. ill the "ppraiscd value or
properly lllHit:.r the CiICI111ISI<lnCCS described by this subsection.
<Text orsubscc. (c),
,IS
added hy Acts 2.009, 81st Leg., ell. \(105, § 2>
(c) The. nWI'kc! value or a residence homestead shall be determined solely Oil the b;lSis or the. properly's v,due as
residence homestead, regardless or whether the resident!"\ usc of' the property by the.
highest and best usc of the property.
OWller IS
il
cOllsidered to be till'
CREDIT(S)
Acts 1979, 66th Lep,., p. ),252, ell. 841, § 1, efT Jan. 1) 1982. Amended by Acts ]985, 69th Leg., ell. 823, § 5, efl.
Jan. I, InIJ; /\r;I, ISl97,},\Lh I,eg., <;11 IQ~9,§?I,cfr)i!l1, I,J9Q~;t\<;J,}QQ?,gLstl;:g, ell ,6.19,§ l,efT Jan I,
]DIQ; f\eI, 2QQ'),Slsl.leg,<;II.I.2JJ,§L.<;fJJanJ,Z!)J(); t\clsJOQQ,8IsLL-cr,,(;I\, .140S,.§ 2,eITJ'"1.1 ,2()1 O.
I'age 2 of II
Westlaw
V.T.e.A., CiOVL Code T.!, Sub!. C; !\pp. A, Art. 10,0
l),
Rule 3.0.'1
C
Vernon's Texas StMll\CS and Codes Annotated Currentness
Government Code (Refs & Annas)
Title 2. ludieial Branch (Refs & Annos)
Subtitle (). Attorneys
Title 2, Subtitle G·· Appendix
A. State Bar Rules
Article X. Discipline and Suspension of Members
fZ@lSection9. Texas Disciplinary Rules of Professional Conduct (Refs & Annas)
_:.-...
'1jJ Ill. Advocate
.~
..... Rule 3.04. Fairness in Adjudicatory Proceedings
A lawyer shall not:
(a) unlawf-ully obstruct another party's access to evidence; in anticipation ofa dispute unlawhlily alter, destroy
or conceal a document or other material that a competent lawyer would believe has potential Or actual evidentiary value; or counselor assist another person to do any such act.
Rna»
(b) falsify evidencc, counselor assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or
payment of compensation to a witness or other entity contingent upon the content of the testimony of the witncss
or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of:
(1) expenses reasonably incurred by a witness in attending or testifying;
(2) reasonable compensation t6 ;:i""v,/ilifes~;--r6fli'iln6ss-bt time in attending or testifying;
(3) a reasonable fee for the professional services of an expert witness.
(c) except as stated in paragraph (d), in representing a client before a tribunal:
(1) habitually violate an established rule of procedure or of evidence;
(2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or
that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when
testifying as a witness;
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211\12011
Page 3
V.l.C.I\., C.iov\. Code T. 2, Subl. C; J\pp. A, Art. 10,
~
9, Ruk 3.0:4
(3) state a persona! opinion as to the justness ora cmlSC, the credibility ora wilness, the culpability or a civil
or
litigant or the guilt or innocence
an accused, except tbat a lawyer may argue 011 his analysis oftbc evidence
and other permissible considerations for any position or conclusion with respect to the matters stated herein;
(4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the qllestion will lead to relevant and admissible evidence; or
(5) engage in conduct intended to disrupt the proceedings.
(d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules ar ar a ruling by a
tribunal except far an apen refusal based either on an assertion that na valid obligation exists or on the client1s
willingness to accept any sanctions arising from such disobedience.
(e) request a person other than a client to refrain from voluntarily giving relevant information to another party
unless:
(l) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from
giving such information.
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I~xpert Testimony After Opinion 553 2
Expert Testimony Before Opinion 553 1
I. 0' Connor & Assoc. contingency fee
I. O'Connor & Assoc. contingency fee
2. Suit filed by O'Connor
2. Suit filed by O'Connor
3.
o 'Connor provides expert witness
3. O'Connor provides expel·t witness
4. Expert employed by O'Connor
•
•
Salary paid by O'Connor
•
Offlce furniture provided by
4. Expert Employed by PES
•
O'Connor
Offlces provided by O'Connor
•
•
O'Connor
•
•
•
•
O'Connor
Computers by O'Connor
•
•
Client database by O'Connor
Proprietary computer
Research databases by
O'Connor
•
•
•
Goddard & co-workers
handled 100% 0' Connor
•
Administrative staff provided
programs by 0' Connor
Research databases by
•
Offlce furniture provided by
by 0' Connor
Proprietary computer
programs by 0' Connor
•
Offices provided by O'Connor
O'Connor
Administrative staff provided
by O'Connor
•
Salary and fees paid by
Computers by O'Connor
Client database by O'Connor
Goddard & co-workers
litigation
handled 100% O'Connor
Advertising by 0' Connor
litigation
•
5. Goal to lower taxes
Advertising by O'Connor
6. Lawyer paid by O'Connor
5. Goal to lower taxes
7. Couri costs paid by O'Connor
6.
Lawyer paid by O'Connor
7. Court costs paid by O'Connor
'(3 RR at 16, lines 17-25; at 17, lines 1-19; at
21, lines 6-15; D. Ex. 5.) (3 RR at 17, lines, 2025; al 18, lines 1-10.)
(2 RR at 20, lines 6-25; at 21, lines 1-9; see
also D. Ex. 1, 3, and 5.) (3 RR at 20, lines 22-25;
al21thru 22, lines 1-19.)
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'rorlc;ty.Tax Reduction Planning Texas - O'Connor and Associates Appraisal District
Page 1 0[2
HOME t CONTAcr us 1 APPRAISAL CUENT lOGIN
SeZlrc1l1
Tuesday, April 15, 2003
IlONE
ABOUT US
PROPERTVTAX
APPRAISALS
RESEARCH &. CONSULTING
fEDERAL TAX REDUCTION
INTHE NEWS
If you are not satisfied with your Appraisal Review Board (ARB) decision, there is still another
appeal step available to you. Even if you already completed a formal hearing with the ARB and achieved a
PROPERTY TAX
>~
~~
value reduction, you have the l"ight, within 45 days, to file a judicial appeal.
OvelView
» )u(liclat Appeals
»
To make sure property owners are taxed on the most fair and accurate value for their property "fexas law makes
How to Protest
» Commercial Owners
» Homeowners
» Important Dates
» Frequent Questions
available this final protest step of filing a lawsuit against the counly appraisal district. And this step can be much
easier and less costly than most owners realize!
lesS frequently Asked Questlons
»
» Property Tax Glossary
» Oient Accol<Jdes
» Texas Property Tax Code
» Texas Property Tax Code Explained
» Apprilisal District Information
upon mutual agreement, we will engage outside council to file the lawsuit
on your behalf,
engage expert witness
selVlces for research and analySiS; then we'll coordinate and facilitate the entire litigation process for you. There
are no upfront
» County Links
)} Property Tax Tips e-Newsletter
» Man<lgement ProOles
» Sign Up Now\
» Property Tax News
costs! You pay only a percentage of savings as defined In our agreement.
We arc the only property tax consulting firm in Texas with surficient technical support and skilled personnel to
effectively tackle and win a substantial number of judici<il appeals. Property owners choose O'Connor more than
any other consultant when an appeal beyond ARB is indicated. We are currently coordinating more Ulan 3,200
INFORMATION
cases statewide. And, we're successful 80-90% of the time.
» S1eps to Protesting Your Properly Taxes
»lhe Appro()ches to Establishing Property V,llue
» Useful Property Tax Information
O'Connor coordinates the entire litigCltion process
» Our Fee Offer for Commerciol Property Owners
» Our Fee Offer for HomeownerS
•
» Sample House BiB 201 tetter
~..<;.J~u1.tJ:l5;:l'§f;
Analyzing and comparing existing aSsessments,
•
Engaging specialized legal council.
•
Providing expert witness testimony
•
Assisting you with schedules and allle9al paperwork.
at
mediation or trial as needed.
» Preparing f0r Binding Arbitration
» Propert)' Tax Tip # 1: Appea!ing Properly Taxes for Your
HOITlr;
~,Property Tax Tip 1t2: Preparing for Your Property Tax
Hearing
» Property Ti'!x Tip 113: The Hearing Process
» Appeal YOur Property Taxes on M(lrket Value and Unequal
Appraisal
» Protesting Commercial Property Taxes (PDf)
» Texas Business Personal Property Rendition and Taxation
>, Appealing
Property Taxes for Apartmeflts
>"Property Tax Appeals - Its YOur Money!
A frequent and effective approach is (In appeal based on your properly's value being uniform and equ51 when
compared to similar properties. Our firm developed proprietary software to locate and analyze the values of
comparable properties and we've been repeatedly successful using this informat"lon in informal, formal and
judicia! protests. In fact, O'Connor is the statewide leader in uniform and equal appeals.
"Uniform and Equal" appeals are effective -- even when property values ol'"c below market!
l).$gtv.l,f_<?ntll'_
»Protest Form (41-4"1)
.> Exemption form (50-114)
., Motion for Hear'lng to Correct One-Third Over-Appraisal
Error (SO-230)
Frequently Asked Questions Abouttax protest lawsuits
How can O'Connor
guarantee
r won't owe anything unless I save tax dollars?
»Joint Motion to Correct Incorrect Appraised Value (50-249)
» Property Owner's Affidavit of Evidence
(SO-283)
,> Request for Binding Arbitration (AP-219)
»
,I
»,
'lent of Agent for Property Taxes (50-162)
.In
for l"d-l (Open-Space) Agricultural APpraisal
.!iO-ltQ)
.> General Real Est()te Rendition of"faxable Property (50-141)
» Genera! Personal Property Rendition of Tax("I\.>!e Property Non Income Producing (50-1<12)
We engage outside council and expert witnesses who have been negotiating property tax cases for years and are
familiar with typical county appraisal district melhodologies and defenses. In addition, our resources for research
and analysis
are
unsurpassed. These reasons have contributed
to our 80-90% success ratc.
You risk nothing
because you don't p.Jy onything until or unless you receive [[J!LlII,:!r vdlue reduction .
How much will
lto://www.eutmvtaxes.eom/nron tax iurlicial
it cost me if O'Connor saves me taxes through
Hnneaka~n
it
judicial appeal?
411
<;n()n~
),(\jlerLy,'!'ax Reduction Planning Texas - O'Connor and Associates Appraisal District
, Business Personal Properly Rendition of r,lXilble P!'O!Jelty
(50'144)
Page 2 of2
Our fee is 50% of the potential property taxes saved as a result of Illigalion. For calculuUon of the litigation fcc,
the initio I asscs..<;ed value for each year is the assessed v()lue set by the Appraisal Review Board. O'Connor &
Associates will be responsible for <)11 expenses, including court costs, appraisal, engineering reports, expert
» To view P[)F files, you will need to dOl'lnlOild t!1e
fr(~e
Adobe Acrobat viewer.
witness fees and legal fees associaled with litigation and for handling aU correspondence with the county
ilppraisal clislTict. If the result does not represent tax savings to you, you won't receive an invoice!
~EEP
ME INFORMED
Do I need lo.pay my tax bill on the higher value?
Your n<lme
Yes. Until your value is offiCially lowered on the county records, all taxes must be paid timely.
Your c-mail
What if I miss the 45~d<)y dC<'Idline to <'lppeal my ARB value?
Contact O'Connor immediately to determine actual time requirements for your account. If it is In fact too lote,
., Whilt is this?
sign up for us to present a thorough, well-dowmented protest next year.
wtwt <Ire O'Connor's credentials
to help me with a judicial appeal?
We coordinate more judicia! appeals than any other Texas firm. We're the largest property tax consulting firm in
the state. Our staff of over 125 employees utitizes full time state-licensed prope!ty tax consultants and appraisers
and supplements with additionnllicensed staff on a seasonal basis. O'Connor & Associates Is a nationally
recognized and highly regarded source or commercia! real estate market trends and publications. Patrick
O'Connor, president, Is a design(lted member of the Appraisal Institute and authored Cut Yoor Texas Property
Taxes.
How much of my time will it take?
Our goal is to simplify the process for you while achieving positive results. Our staff will keep track of aU court
and filing dates for you,
,md prepare necessary documents for submission. If it becomes necessnry for you to
appear at a mediat"!on or court deposHion appointment, we'!! assist you to prepare for that meetklg.
Corpor<lte Office
2200 North Loop West, Suite 200
Office
Houston, lX 77018
to all locations
(I) 713.686.9955 Il.BOO.S56.REAL
(f) 713.686.33n
driving directions
For generol questions not relate\! to property tax, e-mail U~.
For property tax Questions e.·malilhe Properly Tax Department.
Services: Cost Scgrcgation I
Copyright @ 2008 O'Conn(lr & Associates. All Rights Reserved.
ttn://www.cut1llvtaxeR.COln/nr'()n hTX illdic:iFll ::Innf':flk
loc~tiol1s
DaUas, TX
Houston,1X (corpornte)
san Anlonlo, 1)(
los Angeles, CA
Newport (leoch, CII
Chicago, IL
Atlanta, GA
rlepelty Tax I Apprais"ls I Res~arch & Consulting
Sitemap Privacy Policy I legal NoUce
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Ethics Opinions \ TBJ
Issued b,Y the Projession.fxl glhics (]ol1unitteefor the State Bar
Up/NfDAl No,
-"'\--=-c:'-(!-__-_
, Reque'ls lor .lhle5 Oplnlon$$bouid hesenil~ Ihe Pr¢;
:Ie.slonol ~Ihlcs C<immlilee fcirlhe' Stal. Bar ofTexas, c/o',
':ranya Beckham"Slole 8aiC)fT.~Qs; 'P.O. Bcix 12487,'
'Austin 78711-2487. for'linmedlale, "on.blndlngaIMe,'
'.advlee,
'callih.
lowyer Elhle'l-l0llineolt6001532~94?:
,. "
.
. '. -... ' . . . . . . ' .. "c.,-.
", .' .. , . . . . . ";.'_ .
(~f
lhe lawye,'s
S--
Texas
5S-_3
__/_S_D7_'V-~
emplo~-~:-or
(J
J
~-r
Ia\:'~,~,~,-~~e de;:'e~~ d;ssern;--~
or
nation by any nlc:ans or media of confidential information, in
this Instance (he lnwyer's fcc: statement, ocher (brill as permitted by Rule 1.05 is prohibited.
Under the facts presented, the lawyer must advise the
insured that the delivery of conildcntlal information to a
third party may adversely Itff~et the insured's legal position
• E ics Opinion No. 55'2, August 2004
in order for the insured to be able to give an informed COIlsent for the lawyer to send hif> fee statement to the auditor.
Question resented
A consent by the insured to tlw delivery or the lawyer's fer.
Is it permissi
und~r tile Texas Disciplif1(J(Y RU/fJS of Pmfessliltcmcot, or any other confidential information, to a third
sionol Conduct
a /o'W)'ef, who has been retained by an
party obtained at the time the policy is purchased, or otherinsurance compnoy deFend lIs inwred, /0 (1) (umish 10 11)0
wise in advance, could not be fin informed conscnt afwl' CO\)insuronce company's I . d'PQ(ty oudilor Ihe lao,.vyer's fee slo/csultation. fn ordel' thal tile client's consent be made on an
menls via electronic moil
cI (2) poy /0 Jile Ihirdpatfy (Juditor
informed basis, the lawyer's cOllsutWtiOI1 ncccssnrily mUH
o purcenJage of the lawyer's .e for auditing well sto!ernenls?
include a discussion of the dis<idvantages to the client's \egal
pos!t!on which may nrise should the conf!dentlili In{orll1f1Statement of focts
tioll lose its protected status through the lawyer's disclosure
A lawyer rcp!'e~enUng 1m ins\,lml1c comp'1oy'S insured Is
of {he inionn;ltioo to the al1ditor. The natme of the ca:>c $Inti
required by the insurance compilny to . jumit Ihe lawyer's
the fact situation mUst be knowll by the lawyer for this consultation to be effective.
fcc $U-ItCnHmt via eleclronic mail to a third- arty auditor in a
specified oomp~Jtcr formnt. The third-pany a \lor &\lbject."
A lawyer's lwymenl of a perccnull~c of the lnwyer's fee to
the fee statemont to a computer prollram for the tJq)OSC of
the third-party aUditor for its (IUtlit is prohibited by Rlllc
oetcHlIlning if the lawyer's fees are !n 00mptiancc ith lhe
5.0<1(0'1), which stales that, with exceptions not here applicainsuran0c compnny's "ciainl-handlin!l guidelines.' The
ble, "(allawyl2r or law finn shall not share Or promise to
lawyer is lllso required by the Insurance company to pay 0
shure legal fees with fl non-lawyer .... " The Insurance comthe third·party auditor {or (:onchlCllng the audit a percentage
pany has nol f(~quircd the lawyef to pay pll.rt or ll.1I of the
of llw lawyer's fcc.
cllIal expense of the third-party audit, Il has required that
t
lawycr split his or her fcc with the third-party Iluditor Oil
Discussion
a pc enlnge basis, The paY\l\ent of a percentage of the
The question presented raiSes i,~Sucs cOllocmlll/l disclolawyer eo to the third-pan)" auditor constltutes a violation
Sure of confidential information llod fee splitting. R~llc 1.0S
of Rule 5. (a).
of the 'texas DiSCiplinary Rules of Professional Conduet (the
The Cotm 'W~e expressCf; no opinion regarding the rc\a~
"DiscipllnMY !tules") ,1ddn.!.'lscS the disclosllrc of confidenti()(1ship betwee the insured and the il1:'Hlrer Of retal'diJ1L~
tial informatIon to a third j)(lrty. Rule 5.0<1 addresses the
any contractual d
s or dulles owed by one to the other or
Issue of fcc splitting.
eontractualobligntion of the insurance: company to pay for
le~al services rendered t< 'ts insured. Those matters involve
Professiorllli Ethics Committee Opinion 532 (September
2000) denlt with a fact sltuation very similar to that Imder
legal issucs that this Co 1lttee is not authorized to
consideration. Citing Rule l.OB(e), Opinion 532 states that a
nddrc$s. Although an insuran
cOlllpnny and its Insured
lawyer I'Iwy not a.ccept compcl)sl'Ition from tl person other
can enter into varlo~ul [onns of c tracts, such a~reeillent~
thllll the client unless (here Is no Interference with tllC
cllnnot diminish n lawyer's rMpons lliHcs to the instlrcd
lawyer's independent judgment or with the client-lawyer
under the Disciplinary Rules once the' Isurcd becOIllcs a
relationship and information relating to the relationshIp is
lawyer's client
prOlected as required by Rule 1.0S.
Rule 1.0S(b)(1)(ii) provides tiHlt, ahsent the consent of
Conclusion
th(~ cHent nfter eonsuitlltion as provideJ by Rule 1.05(0)(2)
A lawy~r's fee swtcmcnl or invoice is confident llnior·
and except as otherWise authorized by the provisions o(
mation, which the lawyer must protect, nolwi.(hstantiil the
parag,raphs (e) and (d) or reqUired by paraltraphs (e) "nd (f)
payment of the lawyer's fees by the insured's insurance .co of Rule 1.05, a lawyer shall not lmowingly reveal confidential
pany. The delivery of conritientillj Information to a third
informotlon of n client to Hnyonc other than the clie:nt, the
party, by any me.alls or medi:l, without the informed consent
client's represenlotivcs, or the members, t\i;soeiatcs or
of the insured client Violates Rule 1.05 of the Texas Disoipb-
('W~'''''b''~'_'-----------c~~ ~)
-------E«
OV''''''''67 ,,,,,,,,,.. ,'llOfii}.
j
00059
~~\W,~
TIU I Ethios Opinions
l"ssued by the ProJes$fonal Et.hics GorrnnitteG f01" the S(r.ae 13m" of Texas
nary Rules of Profe);Sional Conduct. The pnymcn~~cr~
ccntag.~ of tb~ lawyer's fee by the law
:-crat1l\rd~party
auditor of the insurance c
constitutes fcc splitting In
Vi()lat~,
of the Texa~ Disciplinary Rilles of I'ro£oo-st6nal Oonduct.
on behalf of the property owner thut one of the Company's
employ(~es! who Is R licensed real estate. appraiser, can serve
as fin expert witness to provide testimony in the ease as to
the value of the propeny for tax assessment purposes,
Discussion
•
EllIe 3,04 of the 'l'exas Di~cip1illury Rules of Profesf;ional
Conduct provides in pertinent part:
A lawyer shall no!:
Ethics Opinion No. 553, August 2004
QU(~5tion Pn:~serHed
/5 (J lawyer prollihiled from offering Ill(! los/imany of on expert
witness wllOse employer has cntered into a conlingcnl fee conlwei willi the lawyer's client regardjng the 5tJbieci molle/' of ,118
(b) ... pay, offer to pay, or tlcqtliescc in the offer or
payment of compcll.';aUon to a witness or other
entity conLin~ellt upOn the Content of the teStimony of the witness or the outcome of the casco nut n
lawyer may advance, guarantee, or acquiesce \n
the payment of:
(1) expenses rcmwnlluly incurred by a witm~s~ in
litigolion?
Statement of Facts
f.. property lax consulting oompany (the "Company") represenU; owners of real property in protesting find (Ippealing ad
valo,'c!:li.- tax fI::;~cSijll1ents on ~hclr property. 'ff\~racl
cntered into between thc Company and a property owner
provides thnt the Company wHl file a notice of protC);l ~l1\d
<lppcnl of the {(IX assessment and prepare ~nd present appeals
to eounty apprfllsa! district and vdmlnistrfltive review boards,
!~or this $~rYicc the Company's written cornp~ns<ltlon agreement with l>roperty owners provides that it Is to receive n fee
of $$00, plus a cOIHinl1ency fce in an amount equal to 12
percent of all property taxcs sflved by Ihe property owner. f{
the prolCst is not ,~uccessfuJ or does not achieve an acccpt~
~Ihle reduction In taxer., the property owner may I\grce with
the Company to the filint of a lawsuit. If a lawsuit is filed, the
propcny owner agrees to ptl.y the Company a contingent fec
in an amount equal to 50 percent of the property taxes saved
f1S H result of the lowsult. The Compnny a~recs to pay nIl
expenses associated with the iitigation, Including court costs,
_~s. englnccrln$ reports, expert witness fees, and legal
~ The Company Informs the lawyer handllng the lawt:uH
No Merit· No Charge
."'"
I
~ E ~ D Witness, Ltd,
n:etlJCil10~pOJl.tcs\lmonylllmodlC't3lmolp'aet\ca. pCIse:n31 rnJ\J!Vad!s:\bl~lyttalm~
.. ,'. .
MedWllnessprovldes
.quality medIcal experts In
. .anVlleldofhea!\b'ltre• : .
..
.' ",. ,.,;. ~ ~ ':', "',
.
. '.. '....
..;~47~r~~~~2$!.>
'~ We~te (l\f\lll.C<lmp\llln~eVlilh~be'10\VrCKas ~s~~~, ~u.~~,~~~ ~I)~ectton '3~O1:~
a.ttending or testifying;
(Z) reasonable compensation to a witness for bIt>
loss of lime in attending or tcstlfyinf,;
(3)
<l
re,\so[};\b\c fcc (or the pro(cs:;ionnJ services of
all experl witness.
It \g clear ullder Rule J.04(b) tlwt a lawyer ()annot flcQui-
cscei'O'"il1epiiYli)C'iiT(ifCompunsauoil to a witnc.'ls contin~cnt
upon the content of the witness's leS(~ or upon the Olltcome of the cast;, AI) expert witness can be paid (l. reasonable
Tee' (or hl~ or ber scrvlcct: llnder Rule 3.0<1(1))(3), but Rule
3,04(b) prohihit.s usc of 1m expcrt witllest: who has a cOntil)gent Inten~sl ill the o\\tcomc of the case. gXpcrt('; provide
speCialized lmowledgc to assist the trier of fact in understandlnr, the evidence or determining fl fflct in lSS11(\ An
expert witness who is paid bnsco on a percentage of the
reCOVCIY in a litigated matter would have an obvlo\\s R\.ah.e In
the outcome of the litigation, which is inconsistent with an
expert's role.
In the circumslnt)ces presented, the contingent payment
is not made directl>.:!.? the expert witness but rather is made
to the Compalw, which Is the employer o( the expert wit~
ness. fZu1e 3.04(b) expressly prohibits a lawyer from paylng,
...,or acquiescinG in the payment of, compensation (0 un witoess 01' aliter entity contingent upon the contcnt of the testi~
mony of the witness or the outcome of the ca.~eH (emphRsis
add cd), The payment of a conlintcnt fee to an entity that i~
~ployer of fm expert witness clearly COll1es withlilibe
prohlbillon of Rule 3,Q'1(b), particularly In view of ~
thflt tho employing entity- could Itself be a witness only
,t.hrough an employee or other agent. Accordingly, it would
be a violation of Rule J.04(b) for a lawyer to use flll en)jlloyce of the Company as nn expert witness ill the property
owner's laWSUit when the Company hM II cont.\nCent fee
interc);t in the outcome of the casc,
L"
{
Co .)J'q AJ{).f? ,
___<0---..
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\'NNI,lc)(osbor.<.om
00060
Ethios Opinions I TB.J
Issued by the Professional Ethics Committee for the S
fi£/JJ/DrJ Lf5'iJ) CA
the r~8ult reached under Rule 3.04(b) Is coos\.sten Ith
tile result. reach III Pro Mslonru Ethlos COlUmittee 0 llnlon
458 (Maroh 1988),'whtoh wa.s issued prior to the adoption of
the Oltrr~nt Tex(lG Disciplinary Rules or Professional Con·
duct. In thnt oplnioll, a medlcaiMlegai oonsu.Itfn& finn entered
into conUngent fee oontraots with platnUfis and, tn return 1
~provlded aorvloes including expert tC6timony, Tho 106ue presented Wns whether 0. lawyer was prohtbited from pa.rtlclpnllug In Ot reoommending thlll l\ c1lc.nt enler Into suoh nn
ngroemeflt with the oonsulting finn. The Oommlttee "lied,
rtr\
clting Dlsclplinal), Rule 7-109(C) of tho Tcxo.a Code of 'fIroCC86ionnl Responslbllity then In effeot, that the eayment or a
fee based on n p<:roent.a.ge of the recovery to a oonsulting
finn providing expert witnesses would neoosBttrlly Involve
pnyln/l for testimony tn violation of that mle. Dlsolplinnry
Rule 7 l09(C) of the Texa.s Codu of ProfeSSional Responsibility Is the predecessor ot the Provisions at Rule 3.04(b) of
the 'I'eXfJ.6 Disciplinary Rules of Profusaiontll Conduct quoted
above. It should be noted tha.t the result that was renohcd
,under the old TextlA Code of Professional Respousibillty 16
~cven clc&rer under current Rule 3.04(b) because the current
r
Rule makes exp1101t that the prohibition of the R\1\c appllca
to p(lym~llt8 of contingent compensation to an "other Ct~~,"
M well as directly to n witness.
Cond\J~ion
It is n. violatlon of the Texas DlsoipUno.ry Rules of hofesstonal Conduct for a lawyer to use in a O£l8e fUllin expert wit·
ncs~ an employee of (I buelne66 entlty that hM a contingent
fec Interest in the outcome of the cnse.
~..J!L.
Ion 497 (Allg,,,, 1994),0
100 40 (February 2002),
cons lercd the representt .. __ . __
rv¥'_' __ •• ~~ ..... .."
......... , .... ,
who
8 alao a city commission.er, a county comml.ssloner, a
county Idge, or a munlolpal Judge before OOurtil wuhln the
jurl&dlct!
of the particular publio office Involved. In Moh
prior orin 11, the lawyer as fI. publio offlc1nl had direct bud~
~etnry and!
I}QI1'Ionnol auulOrlty affeoting the oourt andlor
its offlcClll. T at direot a~tthorlty regArding peraonnel or tllC
fundIng of t.'01l opcrnHoIls reneonnbly appeared to lldver(je~
ly limit the Itlwy 1"s responsibilltica to the private olienl and
the public. Such 'IroumstallcclI would, '101eJ.l8 the require.
ments for the exec tlm1 of Rule 1.06(c) of tho Texilo Disoiplinary Rltles ()f Pro ~ional Conduct were met, OOllstltute a
violatioo of Rule 1. 6(b)(2), 1\\\Ie l,06(b)(2) prohibl(.s
(absent the applicnbllU of the Rule 1.06(0) cx(.,"CpUon) representation of a person f that representation "roa8onably
appears to be or beoome fl versely ltmtted by the lawyer'tl Or
law firm'a responslblliti('.8 to mother client or to n tlllrd per60n or by the lawyer's or law
rot'S own intcrClltil,tl
The budgctiuy tLud perSOnn authority of ule lllwyer acting in the capnc1ty of a 8t'1tc uc tOr or state l'eprcsuntatlv{J
has only general Ilnd Indirect u }licntion to all oonrta In
Texn.'1 nnd ill not apeclOc to (IllY 0 e court. BccalHw of this
lac\( (jf direct budgetnry and pcraom 1 authority at tho local
level) the lawyerAeglslntors reaponol iliUes to the private
client and to tlH~ p\lbllc nrc not fl.dvera ly limited such that
Rute 1.06(b)(2) would be Violated. How vcr, til the case of
eaoh proposed reprea~ntntlon of n p vate chcnt, the
lawycr/le.glslntor must consider the requl. mcnliJ of alate
statutea Ilnd the ethical rules apl)licable to he leglalator'o
elected omoo,
•
Et •• Opinion No. 554, August :1004
Condusion
Under the Texas DlaclplintU)' Rules of Professl
QUadicm
ls it penn!ssib
ndar the Taxos DiSCiplinary Rvlos of Profa$slon·
01 Condl)ct for a wyer cvmmlly serving as a stale senator or
~tato repres.onlotivo
ropre${lnt clionts Mfof& (I <:ityl countyl
or state court b:olod t the \awyor's legislative dhlrict?
duot, a In.wyer who Is ah~o a state senalOr or reprcse! a.Uvc Is
not prohiblted beoause he or 6ho holds leglslntlvc om from
representing clients tn the oUy. oounty. find state eOll 6 In
'fexll8, Including those within his or her legIslative dlstfl t.
Statomcmt of Facti
A lawyer elccted ruld ourr tly serving tIS a state Senator
or stale 'Represcntntlve deslres 0 represent clients in the
va.rious courts looated within his 0 lor leg.l.slative dlstriot.
DiscuSs.ion
Thill Committee has addressed the cth 1 issues remtlng
to laWY~r8 who have been cleoted to oity 0
unty ptlbHo
o{fJoe aud who pfOp<lse to represent private c·' nta before
courts iocated in tho JurtGdtoUonnl dtutrlctII: in 11011 the
\nwyC!rs were elected, Pro(essionol EthiCS comml~~.
~,Ioxa,bo'lo,,,,al.,,,,,,
~
Vol\lllle 67 1Number 111911;>,
00061
Texas Cenlel for Legal LIb!:,. ·"eI Professionali,m1
Page I of2
tM':t.U3EHSHIP
CONTACf
us
SHEIv'IAP
ABOUT THE CENTER COlJHSI'S & [VEinS HEFEIU,NCES HESOUI1CES BOOI\STOi<E MEMBEI<S ONLY
Texas Professional Ethics Opinions
OPINION 45U
TEXAS
March 1888
ETHICS
Tex. Comm. on Professional Ethics, Op. 453, V. 51 Tex. B.J. 942 (1988)
FACTS
A rnedicaHena! consulting finn has engaged in substantial advertislnn involving U"\o use of
contingent fce contracts wherein the firm en\IJrs into a contingent contract with a
particular plaintiff Dnd In roturn provides various services Including the providing of expert
tesllmony.
poes tlw Texas Code of Professional He~~ponsibiHty,.j
specificallY DH UJ1QiQl...m:9Jibit [In
attorney fron2..~icipat\ng in~Q!...rn.~m.ling~ a C\k~ll~JiDJ.Qr.in\o..f!S&lltlnqQngyjtt
~i.qreemenl with a mcdiCal-lei1~~.£~n~~!!~lL.!}!!!:?_
DISCUSSION
There arc four basic Issues which must be considered in ligt'lt of the Texas COde of
Professional Responsibility, Firs\, is tho contingent fee agreement I) mc}re subterfuge for
fee splitting with nonlawyers? Second, is (he attomey g"ivlng up complete or partial control
of the case? Third, does the contingency contract resutt in the paYlnont of excessive fees
by the client? And fourtll, (joes the contract result in the payment of <:l contingent (ec to ()
witness In exchange for his or her testimony?
Opln!ons from various lurisdictions, while showing thal a slight majority of slates allow
such contracts, tend to fall on two sides of a very narrow line, Those Jurisdictions allowing
such contracts do so hesitantlY1 expressing concern over possible violations of the Code
of Professional Responsibility, Such seems to be tho rule in Indiana (Opi!'lion 1 of 1901):
Arizona (Opinion 849), and Conneclicut, (Informal Opinion 827), The ABA Informal
Opinion 1375 (1976) Is fairly represontativo In Ihis area. rhe ABA would allow such an
arrangement so long as:
"(1) the lay person or agency (medlcal.legol consulting servIce and experts provldod by
Ihe same) is nol 10 engage In Ihe unaulhorized practice o( law, OR 3101(A): (2) Ihe lawyer
does nol share legal (eos wilh Ihe lay person or agency, DR 3102(A)(1)(3): and (3) Iho
contingent fee is nol payable for tho testimony of tho lay person or agency, DR 7109(C)."
All of the jurisdictions which allow such fee arrangements have expressed Similar
reservations for attorneys who recommend or participate in such arrangements, These
states see these as potential violations and not as violations per so, Thesa Slates scem to
havc come to U1c conclusion that with careful contracting and diligenco on !)ehalf of tile
attorney in maintaining control of the case, ethical violations can be avoided,
Other states, however, havo seen theso prol)lenls as too serious to bo cornpletely
ovoidcd.ln Opinion 57? or the New York Stn\e Bar Associ~:lL9f) Commillce on
hit p:llwww,lxelhics,argilerercl\cc_opi niolls.nsp? opini(lI\l\\lIlF1 S8
0~
_ -._-_.-_
.•.
1112/2009
... . - '
q,
00062
Texas Ccoler Cor Legal Hili'
q(\
Page I 0[2
Professionalism
MEMl')EHSH1P
ABOUT THE Ct::NTEH CQUHS!:S & EVENtS
11.r:[:EREt~CES
CONlACT
us SlTEM!\P
HESOURCES BOOKSTOfH: MEMBERS OtiLY
Texas Professional Ethics Opinions
or SH'l1'ch for specific keywords.
,,
'C!SiY.~21:d,~,O
OPINION 45B
TEXAS
March 1988
ETHICS
Tex. Cornrn. on Profession,d Ethics, Op. 458 1 V. 51 Tex. B.J. 942 (1988)
FACTS
A nH~dic81-1cga\ consulting firm has cn~!8gcd in substanlinl (lclvertising involving tiH:: tlscof
contingent fee contracts wherein the finn enters into a contingent contract with a
particular plaintiff and in return provides various *,erviccs lnc!ucling {he providing of expert
testimony.
Docs the Texas Code of Profes?ionall\e.:ill0nsH~iillYI_§pecifjca\ly 013 71.QQLQ.LQ!.9hi1.ill.~n
attor~ey fr~~~.£.~·ticiIpting in or recornmendingj!lsUl cllent.Qill.Q.rjr\tQJli,-o.nli.ng~.n~.YJri~t
~agreemenl ,!"iU~'?_!'1].£~.\~iI.!:leq8! consulting fi~?_
DISCUSSION
There are four basic issues which must be considered in light of the T eX8S Code of
Professional Responsibility. First, is the contingent fee agreement a mOre subterfuge for
fee splitting with nonlawyers? Second, is the attorney gIving up complete or partial control
of the case? Third, do os tho contingency contract result in the payment of excessive fees
by the client? And fourth, does the contract result in the payment of a contingent fee to i1
witness in exchange for his or IlGr testlmony?
Opinions from valious jurisdictions, while showing that a sHght majority of states allow
such contracts, tend to fall on two sides of a very narrow line. Those JurisdictIons allowing
such contracts do so hesItantly, expressing concern over possible violations of the Code
of Professional RespollslbHity. Such seems to be tho rule il11ndlana (OpinIon 1 of 1981):
Arizona (Opinion 849), and Conneclicul, (Informal Opinion 827), The ABA Informal
Opinion 1375 (1976) Is fairly represGotative In IhiB area. The ABA would allow such an
arrangement so long as:
"(1) the lay person or agency (medical-legal consulling service and experts provided by
the same) is not to engage in Ihe unaulhorized practice of law, DR 3101(A); (2) the lawyer
does not share legal feos with the lay person or agency, DR 3102(A)(1)(3); and (3) Ih.
contingenl fee is nol payable for Ihe testimony of tho lay person or agency, DR 7109IC)."
AU of the jurisdictions which allow such fee armngements have expressed sImilar
reservations for attomeys who recommend or participate in such arrangements. These
states see these as potential violations and not as violations per se, These states seem to
have come to the conclusion that with careful contracting and diligence on behalf of tho
attorney in maintaining control of Ihe case, ethical violations can be avoided.
Other slates, !1Owcver, have seen theso problems as too serious to be completely
avoided. In Opinion 572 of the New York SIDle Bar Associati90 Committee on
hltp:llwww,txelhics.org/reference_opinions,asp?opinioIlI\\lm=458
0~
1/1212009
00059
.Texas Center fill' Legal Etliir J'd Prolessionalism
r~' ~ ')~)sjonal
Page 2 01'2
'
~o
Uhics, \lIe COlnrnilt8() concluded that
wore serious eth(C(l1 probloms in
(o\8\ion to the 20%30'% contingent foo In addition to tho attornoys contlngonl f08. This
v. . as ospocially true in light of tho fnct thot U10 consuWn<J firm porfonns many of tho
function:; normally dono by tho oltorney for his or her foc alone.
nut tho most tJDubling pmblorn in this area comes in light of DR 7109(C) which states:
~A iOVl'Yor shall not pay, offor \0 pay, or acqu!esCQ In tho pnymonl of componsaUon to a
witness contingent upon tl10 contont of his tosUmoriy or tilO outcomo of Uw casa, Bul a
lawyer may advance, guarentoo. or acquiesce In Uw payment of:
(1) Expanses reasonably incurred by a witness in aUondlng ortostlfying;
(2) Roasonablo C01YlpCflsation to a witness for his loss of timo in attending or testifying;
(3) A reasonable foo for tho professional sOrvlCBS of an oxperV
In Idaho Formal Opinion 104, 1110 oUllcs commillee found that lhe paying of a contingent
foo to a "findor" was tho functional oqulvalont of paying fl contingent foo to a wttnos8,
1110(0 dOBS oxlst a financlallncontivo to Influence tho tosllmony of U10 witnessos
provided, Idaho found these conlingonl foo contracts to viola to DR 7109{C) ond thorofore
prohibited attorneys from partlclpatlng In or rocommondlng S~lch contracts.
CONCLUSION
Sovom.! states have hoedod tho warnings of olhor slatos Hnd havo held such contingent
(00 arwng€lments to bo unethical. Boyond Ul0 problem prosontod In tho uroas of (1) foo
splitting, (2) excessive fees, (3) loss of attorney control, (4) preventing tho unautholized
practlco of law (not dealt with by Ulls committee), Hnd (5) paymonl of conlingent fees In
exchango for oxport testimony, tho ontlre arrangement gives tho appearanco of
Improprioty.
Thus, an altome who aids, assists, or OlmIto a client to entor into such a contract
v 0 atoB
. wou SGeln 0 0 0 on y on en con us on aval a. 0, )8 wtlcm
you pay a roo bused on a PQrcontage ot me reeovery to a conSUltlrm]ltl! p!ovl<lhlg expert
wltnessos In essence ou are a' for tosUmon , Theoretically. tho bottor the
tostimony. tho larger U\O recovery an lonce, 0 urger tiv.) foe to tho witness, Under
728, 'wItnesses Should always testify truUlfully and should be froe from any flnanclol
Inducemonts that might tempt them to do otheiWlsa."
Tnis Committee does not offer an opinion on the legitimacy or enforceability of a contract
between e client and e medical-legal consulllng Orm, It merely addrosses the Issue of an
attorney's participation In such an agreement and tho ethical Implications artGing
therefrom.
bIl<l.lli I C<,lJm>-&..lillJJGlo.Mutod.ta I fi.fJlm,.,. I e..SQlmla
iloo1utruJl. I Mflmbornlilll I l:oolJlctJJ. I SlJo.matl
Copyright C 2007 Tho Tcxas Cenler for L~al EthIcs Md ProresslOO~lam
http://Www.lxethics,orglreference_opinions.asp?opinionnull1=4 58
~....ruatumrul1
1/12/2009
00063
Texas Center for Legal Ethi'
"~d l'rol'cssionalism
F~~)ssiona!
.
.
Page 2 0[2
~o
Ethics, tlw Corfllnittco conduded U,at
woro seriolls ethical prot)lems in
rolation to the 20%30% conlingonl joo In uddltion to tho attorneys conUngclflt f08. This
was especlaUy true in light of U10 fact that tho consulting firm porforms many of tho
functions normally done by the attorney for hIs or hor foe alono.
Bul [ho [nost troublinu problom in thIs area comos In light of DR 7109(C) which slates:
"A lawyor shall not pay, offer to pay, or acquIesce In tho payrnont of componsation 10 a
wilnof,s contingont upon the contont of hIs testlmohy or the outcome of the case. Gut
lawyer may odvanco, guarantoG, or acquiesC{) in tho payment of:
a
(1) Expensos reasonabty incu""d by a witness In attondln;J or testifying;
(2) R08sonable compensation to a wltnoss for Ills loss of time in attending or testifying;
(3) A reasonable foe for tile professional servlcas of an expo It"
In Idaho Fonnal Opinion 104. ti18 oUlles committee found that the peying of a c<lOUngenl
feo to a "find or" was the nmctional equivalont of paying a contlngent foo to n wltnoss.
11wro dOGS exist a financ!allncontive to influencG tho tantimony of tho wilnoS60S
provided. Idaho found these conlingont fee contracts to violate DR 7109(C) and therefore
prohibito(! attorneys from particlpating In or rocommcmdlng such contracts,
CONCLUSION
Sovoml stalos have hoodod tho warnings of other states and havo held such contingent
foo arrangoments to bo uneUlicaL Boyond tho problem presentod \n UH~ areas of (1) feo
splilll n\), (2) excosslYe fees. (3) 1033 of attornoy control. (4) preventing tilO unauthonzcd
practice of law (not dealt wllh by this commtttee). and (5) paymant of contingent fees In
oxchango for oxport testimony, tho entire arrangemont gIves tho appcomnco of
Improprlefy.
Thus, an attomo~ who aids, assists, or ormlts a client to onter into such a contracl
vlolatos DR 710 ( . wou seem 0 0 eon y og cal conclusion avaIlable, Ulat when
you pay n foo 5nsod on a percentage of the rocoVory to a MmmttlnrrnmrpTUV1dlnrrygr<lrt
witnesses, In eS8enco you am paying lortestlmon(" TIleoreticaliy, tile battorthe
testimony, tho larger the recovory end fience. the arger tile (oe to tho witness, Under
728. "wltnessos should always testify lruU)(ully and shoukl be (rea (rom any financial
Inclucoments that might ternptthem to do oUlerwise."
This Commltteo does not offer an opinion on tile legitimacy or anforcoablilty 01 a contract
belwoen a client and a medical-legal consulting finn. tt meroly addresGes the Issuo of on
attorney's participation In such an agroement and tho ethical Implications arising
therefrorn.
8Imut I Co!lm<l._~_Couo>o..Ma\!lllAI. I B<rll>rollOl! I Er>""",,",,
Rookslore I Mlmlb1'lrnWn! Can1act.u5 I Slto.mIl$l
Copyrlght CI 2001 Tho l'Oxtls Centor for Legal Ethics and Prof'os$lOOall$m
http://www ,txethics.orgireference_opinions, asp? opini OllllUm"~4 58
- _... -------------_.
POVAQ'
Sla!orn!ill1
1112/2009
0006
,i
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CAUSE NO. 2006·6408)
HOUSTON UIlJREATFC ASSOC LTD
§
LEV1,RINCJ & COMPANY, AS TIlE?
§
PROPERTY OWNERS AND TIlE
.{i
PROPERTY OWNlon.S )
(o"n
Dls(r /Ck.~
IN THE DISTRICT COURT OF
'4 D})
~
PlainLiff',
&y "'...
~~
let;;;,
SOl)
""~
~ R.2 Ii ~OS
.
~,.,..~~
HARRIS COUNTY, TEXAS
,
v
HARRIS COUNTY APPRAISAL
Y
DISTRICT AND THE APPRAISAL
REVIEW BOARD OF HARRIS COUNTY
APPRAISAL DISTRICT,
Defendan\.
§
§
§
§
§
234th JUDICIAL DlSlRICT
REQURSTYOR ADDITIONAL FlNI~INGS OF_FACT
TO THE HONORABLE JUDGE OF SAID CmJRT:
NOW COMES the Harris County Appraisal District ("HCAD"), Defendant in the above ..
styled and numbered cause, and make and file the following Additional Findings of Fac\.
l.
Defendant HeAD respectfully requests that the COUli make these additional findings of
fact as set forth in Exhibit "A" attached hereto,
II.
These proposed findings reflect facts established at trial, were not disputed, and are
necessary to address the Court's decision and ruling on the issue of admissibility of Plaintiffs
expert's testimony.
Ill.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that the Court
approve additional findings of fact and that same be filed with the Clerk of the Court.
.....
00059
Respeclfully submitted,
OLSON & OLSON, L.U'.
By:
~~-',l~[~
Tammy White q/u[ el
ptale
r dI' No. ).4008)'
W'{J\i1am Tower, Suite 600
2727 Allcn Parkway
Houston, Texas 770 \ 9-2 \ 33
Te\ephone:
(7 \ 3) 533,3800
Facsimile:
(713) 533-3888
ATroRNEYS FOR DEFENDANT
CERTIFICATE OF SltRV[CE
I hereby certify that on the
%nX
OJ day
of March, 2009, a true and con'cct copy of the
foregoing Defendant's Request for Additional Findings of cact was sel'vcd via facsimile
transmission to Hugh L. McKenney, MCKENNEY & ASSOClATES, p.e., 2200 North Loop
West, Suite 333, Houston, Texas 77018, (7\3) 688-0\99.
2
00061
CAUSE NO. 200GMOW7
HOUSTON LAUREA'lT': ASSOC LTD
LEVERING & COMPANY, AS THE
PROPERTY OWNERS AND THE
PROPERTY OWNERS,
Plaintiff,
§
§
§
§
§
§
§
Y,
§
§
BARRlS COUNTY APPRAISAL
DISTRICT AND THE APPRAlSAL
REVIEW BOARD OF HARRIS COUNTY
APPRAISAL DISTRICT,
§
§
Defendant.
§
§
§
§
2J4lh JUDICIAL DISTRICT
A])DlTl9NAL FINDINGS OF FACT
The COllrt in the alJove .. styled and [lumbered euuse, makes and files the following
Additional Findings of Fact:
1,
Plaintiff's tax agent, C)'Connor & Associates, a tax consulting finn, has a contingency fee
interest in this ease and wi1\ receive a percentage ortlle tax reduction. (Yol. \, R,R, at pg,
20, lines 6-12),
2.
PrOpetty Evaluatioll Services ("PES") has a cOlltract with O'COllllor & Associates to
provide expert testimony in lawsuits that O'Connor & Associates manages as a tax
consultant. (Vol. 2, H..H., at pg, \ 7, lines 4-19; p. 21, lines 1.6-25),
3,
O'Collllor & Associates, through PES, provided the expert witness, Delain Goddard in
this case. (YoL 2, H..R. at pg, 17, lines 22-25; p, 19, lines 1-9; p, 20, lines 4-18; p, 20,
line 19, thru p. 22, line 25, lines 1-14; p. 38, lines I-II).
,lUDGE PRESIDING
EXHlBlT _.(\
NO.
200G· 640B!
HOUSTON LI\UHF;I\TE: I\SSOC LTD,
ct a1.
)
IN TI·IE
1
)
)
)
VS.
HARRIS COUNTY I\PPRAISAL
DISTRICT, et aJ ..
HARIUS COUNTY, T E X 1\ S
1
)
231th JUDICII\L DISTRICT
ORDER ON DEFh~ANT'S REQUEST
FOR ADDITIONAl. FINDINGS OF FACT
Came on to be heard the Defendant's Request for Additional
Findings of ,'act and the Court,
after consi.dering the request and
the Response filed by the Plaintiffs, was of the opinion that the
request should be denied.
It is therefore,
ORDERED, I\DJUDGED and DECREED that the Defendant's Request
:Cor I\dditional
E'ind.i.~
Signed the .....
of Fact be and is hereby DENIl::D.
&. . . day
4ci.L__. ._........._,
of .....
2009.
/Vfl2JJJ--/
DIS'l'RICT JUDGE - - -.....--.-~-.----
P~RE :
~ W1/;->
'i!UG:;-;-.~"=.=jMcK8
B¥./SBOT*1370610·0·
North Loop West, Suite 333
H ston, Texas 77018
(713) 688-6767
(713) 688-0199 telefax
220
FILED
loren JBckson
District Clerk
00059
I certify that a copy of the abovc documcnt was ckl.i.vered
to:
..~_Til!\lmy Whi.t.c··Chilffer
Olson & Oisort, LLP
2727 Allen Parkway. Suite 600
Houston, Tcxas 77019
on the
hlm/g3/honl(l\ll;'or.d. wpd
00061