CARL NICHOLS v. COUNTY OF DALLAS (2011)

MEMORANDUM OPINION

Carl J. Nichols, appearing pro se, appeals from an order denying his petition for excess proceeds relating to a tax lien foreclosure sale.¹  The Texas Tax Code, however, indicates that an order on a petition for excess proceeds is appealable only if the order directs that excess proceeds be paid.   See Tex. Tax Code Ann. § 34.04(e) (West Supp.2010) (“An order under this section directing that all or part of the excess proceeds be paid to a party is appealable.”).   As a result, we sent a letter to the parties on August 19, 2011 raising this jurisdictional issue and directing the parties to file a letter brief addressing our jurisdiction over this appeal.

In response to our letter appellant filed a jurisdictional brief.   In his brief appellant argues that the trial court's order denying his petition for excess proceeds is appealable under section 34.04(e) because it “ratified the prior unlawful disbursement of excess proceeds” and therefore “constitutes the equivalent of an order directing all excess proceeds to be paid to the appellees.”   Alternatively, appellant argues that section 34.04(e) must be construed to provide for appeals from denials of petitions for excess proceeds “in order to avoid constitutional infirmity transgressing upon” appellant's rights under the Texas and United States constitutions.   We disagree with appellant.

From September 1, 2001 to August 31, 2009, section 34.04(e) stated, “an order under this section is appealable.”   Act effective Sept. 1, 2001, 77th Leg., R.S., ch. 1430, 2001 Tex. Gen. Laws 5118 (amended 2009) (current version at Tex. Tax Code Ann. § 34.04(e) (West Supp.2010)).   Now section 34.04(e) states, “An order under this section directing that all or part of the excess proceeds be paid to a party is appealable.”  Tex. Tax Code Ann. § 34.04(e).   Appellant acknowledges that his notice of appeal was filed in November 2009, and he agrees that “the 2009 amended version [of section 34.04(e) ] applies in this case, not the old 2001 version.”   Because section 34.04(e) does not provide for an appeal from an order denying a petition for excess proceeds, we conclude that we lack jurisdiction over this appeal.   See id.   We dismiss this appeal for want of jurisdiction.   See Tex.R.App. P. 42.3(a).

091426F.P05

FOOTNOTES

FN1. The County of Dallas responded to appellant's petition and noted, among other things, that the property at issue was sold at a tax sale in May 2007, and in July 2009, pursuant to section 34.03(b) of the Texas Tax Code, “the unclaimed proceeds remaining in the Court's registry were disbursed to the taxing units who participated in the sale of the property.”   The county also cited section 34.04(a) of the tax code and argued, among other things, that appellant was barred from recovering excess proceeds because he did not file his petition within two years from the date of the sale.   The trial court denied appellant's petition on the ground that “[n]o excess proceeds exist.”.  FN1. The County of Dallas responded to appellant's petition and noted, among other things, that the property at issue was sold at a tax sale in May 2007, and in July 2009, pursuant to section 34.03(b) of the Texas Tax Code, “the unclaimed proceeds remaining in the Court's registry were disbursed to the taxing units who participated in the sale of the property.”   The county also cited section 34.04(a) of the tax code and argued, among other things, that appellant was barred from recovering excess proceeds because he did not file his petition within two years from the date of the sale.   The trial court denied appellant's petition on the ground that “[n]o excess proceeds exist.”

ELIZABETH LANG–MIERS JUSTICE