The 15th Court of Appeals has rejected a constitutional challenge to the statute authorizing the Comptroller to record a tax lien against a delinquent state taxpayer’s nonexempt real and personal property.
Vinh Huu Cao & Mai Hong Luu v. Kelly Hancock, In His Official Capacity as Acting Texas Conptroller of Public Accounts (No. 15-24-00012-CV; September 11, 2025) arose from a state tax lien on a delinquent mixed beverage gross receipts taxpayers’ real and personal property. In March 2020 the taxpayers filed suit in Harris County district court, alleging that the lien “unconstitutionally encumber[ed]” their homestead. The Comptroller filed a plea to the jurisdiction asserting that Travis County district courts have exclusive jurisdiction over suits to avoid a tax lien. The trial court granted the plea, and the Houston [1st] Court of Appeals affirmed. The taxpayers refiled the suit in Travis County. Once again, the Comptroller filed a plea to the jurisdiction based on immunity. The district court granted the plea and dismissed the suit without prejudice Taxpayers appealed.
In an opinion by Chief Justice Brister, the court of appeals affirmed. Section 113.001, Tax Code, authorizes the Comptroller to record a single lien on a taxpayer’s property for all unpaid taxes, interest, and penalties. But the statute limits the lien to “all of the person’s property that is subject to execution” (emphasis in original). That would exclude, as the court pointed out, homestead from application of the lien, since homesteads are not subject to execution. Oddly, the taxpayers claimed that the statute applied to their homestead despite the statutory language. The court didn’t buy that and held that the lien did not attach to the taxpayers’ residence.
So, if the lien didn’t attach in the first place, what were the taxpayers so hot about? They asserted that § 113.001 was unconstitutionally vague because subsection (a) imposes a lien on “all property subject to execution” whereas subsection (b) states that it applies to “all” property. By this sleight of hand, we presume, the taxpayers attempted to knock out the statute so that the lien itself would disappear. The court didn’t buy this argument, either, holding that the statute refers to only one lien regardless of when the taxpayer acquires non-exempt property. The statute was neither vague nor ambiguous. Based on that ruling, the court also rejected the taxpayers’ ultra vires claim that the Comptroller acted outside his authority in recording an unconstitutional lien and, consequently, did not have immunity to suit.
Finally, the taxpayers argued that the Legislature waived the Conmptroller’s immunity from suit in either the Uniform Declaratory Judgment Act or Chapter 113, Tax Code. Since the UDJA requires a claimant to establish the invalidity of a challenged law in order to obtain relief from the government, the court’s prior ruling that Chapter 113 is constitutional resolved that issue. Chapter 113 itself, moreover, has no provision relating to immunity from suit, unlike Chapter 112, which expressly authorizes taxpayers to sue the state. Here, the taxpayers didn’t seek to invalidate the lien but only its validity as to specific property, i.e. their homestead. Chapter 113 contains no provision permitting a taxpayer to bring suit against the Conptroller to “declare whether specific property is in or out.” Consequently, “absent a clear waiver of immunity, we cannot imply a waiver for standalone suits by curious taxpayers demanding that the Comptroller and courts declare which specific items of real and personal property to which a state tax lien does or does not attach.” In any event, even if Chapter 113 unambiguously waived immunity, the homeowners had no claim because “the only act by the Comptroller here—filing a single notice of tax lien as to all nonexempt real and personal property—is expressly allowed by the statute.” In fact, the Comptroller never tried to enforce the lien against the taxpayers’ homestead and conceded that the lien didn’t apply to the homestead. The court thus dismissed the case with prejudice.
