CHAPTER 112. TAXPAYERS' SUITS - Texas Statutes

TAX CODE

TITLE 2. STATE TAXATION

SUBTITLE B. ENFORCEMENT AND COLLECTION

CHAPTER 112. TAXPAYERS' SUITS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 112.001. TAXPAYERS' SUITS: JURISDICTION. The district

courts of Travis County have exclusive, original jurisdiction of

a taxpayer suit brought under this chapter. This section prevails

over a provision of Chapter 25, Government Code, to the extent of

any conflict.

Acts 1981, 67th Leg., p. 1512, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 3, eff.

Sept. 1, 1989.

Sec. 112.002. INCLUSION OF PENALTY AND INTEREST. In this

chapter, the terms "tax" and "fee" include an assessment, tax, or

fee, and the penalty and interest computed by reference to the

amount of the assessment, tax, or fee.

Added by Acts 1991, 72nd Leg., ch. 705, Sec. 7, eff. Sept. 1,

1991.

SUBCHAPTER B. SUIT AFTER PROTEST PAYMENT

Sec. 112.051. PROTEST PAYMENT REQUIRED. (a) If a person who is

required to pay a tax or fee imposed by this title or collected

by the comptroller under any law, including a local tax collected

by the comptroller, contends that the tax or fee is unlawful or

that the public official charged with the duty of collecting the

tax or fee may not legally demand or collect the tax or fee, the

person shall pay the amount claimed by the state, and if the

person intends to bring suit under this subchapter, the person

must submit with the payment a protest.

(b) The protest must be in writing and must state fully and in

detail each reason for recovering the payment.

(c) The protest payment must be made within the period of time

set out in Subdivision (3) of Subsection (c) of Section 111.104

of this code for the filing of refund claims.

Acts 1981, 67th Leg., p. 1512, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1983, 68th Leg., p. 460, ch. 94, Sec. 6,

eff. May 10, 1983; Acts 1989, 71st Leg., ch. 232, Sec. 4, eff.

Sept. 1, 1989.

Sec. 112.052. TAXPAYER SUIT AFTER PAYMENT UNDER PROTEST. (a) A

person may bring suit against the state to recover an occupation,

excise, gross receipts, franchise, license, or privilege tax or

fee required to be paid to the state if the person has first paid

the tax under protest as required by Section 112.051 of this

code.

(b) A suit under this section must be brought before the 91st

day after the date the protest payment was made, or the suit is

barred, except that for the tax imposed by Chapter 171 for a

regular annual period, if an extension is granted to the taxpayer

under Section 171.202(c) for filing the report and the taxpayer

files the report on or before the last date of the extension

period, the protest required by Section 112.051 may be filed with

the report to cover the entire amount of tax paid for the period,

and suit for the recovery of the entire amount of tax paid for

the period may be filed before the 91st day after the date the

report is filed. If the report is not filed on or before the last

date of the extension period, a protest filed with the report

applies only to the amount of tax, if any, paid when the report

is filed.

(c) The state may bring a counterclaim in a suit brought under

this section if the counterclaim relates to taxes or fees imposed

under the same statute and during the same period as the taxes or

fees that are the subject of the suit and if the counterclaim is

filed not later than the 30th day before the date set for trial

on the merits of the suit. The state is not required to make an

assessment of the taxes or fees subject to the counterclaim under

any other statute, and the period of limitation applicable to an

assessment of the taxes or fees does not apply to a counterclaim

brought under this subsection.

Acts 1981, 67th Leg., p. 1512, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1983, 68th Leg., p. 1373, ch. 283, Sec. 6,

eff. Sept. 1, 1983; Acts 1989, 71st Leg., ch. 232, Sec. 5, eff.

Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 486, Sec. 7.01, eff.

Sept. 1, 1993.

Sec. 112.053. TAXPAYER SUIT: PARTIES; ISSUES. (a) A suit

authorized by this subchapter must be brought against the public

official charged with the duty of collecting the tax or fee, the

comptroller, and the attorney general.

(b) The issues to be determined in the suit are limited to those

arising from the reasons expressed in the written protest as

originally filed.

(c) A copy of the written protest as originally filed must be

attached to the original petition filed by the person paying the

tax or fee with the court and to the copies of the original

petition served on the comptroller, the attorney general, and the

public official charged with the duty of collecting the tax or

fee.

Acts 1981, 67th Leg., p. 1512, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1987, 70th Leg., ch. 89, Sec. 2, eff. Sept.

1, 1987; Acts 1997, 75th Leg., ch. 1423, Sec. 19.05, eff. Sept.

1, 1997.

Sec. 112.054. TRIAL DE NOVO. The trial of the issues in a suit

under this subchapter is de novo.

Acts 1981, 67th Leg., p. 1512, ch. 389, Sec. 1, eff. Jan. 1,

1982.

Sec. 112.055. CLASS ACTIONS. (a) In this section, a class

action includes a suit brought under this subchapter by at least

two persons who have paid taxes under protest as required by

Section 112.051 of this code.

(b) In a class action, all taxpayers who are within the same

class as the persons bringing the suit, who are represented in

the class action, and who have paid taxes under protest as

required by Section 112.051 of this code, are not required to

file separate suits, but are entitled to and are governed by the

decision rendered in the class action.

Acts 1981, 67th Leg., p. 1512, ch. 389, Sec. 1, eff. Jan. 1,

1982.

Sec. 112.056. ADDITIONAL PROTEST PAYMENTS BEFORE HEARING. (a)

A petitioner shall pay additional taxes when due under protest

after the filing of a suit authorized by this subchapter and

before the trial. The petitioner may amend the original petition

to include all additional taxes paid under protest before five

days before the day the suit is set for a hearing or may elect to

file a separate suit. No such election shall prevent the court

from exercising its power to consolidate or sever suits and

claims under the Texas Rules of Civil Procedure.

(b) Repealed by Acts 1989, 71st Leg., ch. 232, Sec. 25(a), eff.

Sept. 1, 1989.

(c) This section applies to additional taxes paid under protest

only if a written protest is filed with the additional taxes and

the protest states the same reason for contending the payment of

taxes that was stated in the original protest.

Acts 1981, 67th Leg., p. 1513, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1983, 68th Leg., p. 1374, ch. 283, Sec. 7,

eff. Sept. 1, 1983; Acts 1989, 71st Leg., ch. 232, Sec. 25(a),

eff. Sept. 1, 1989.

Sec. 112.057. PROTEST PAYMENTS DURING APPEAL. (a) If the state

or the person who brought the suit appeals the judgment of a

trial court in a suit authorized by this subchapter, the person

who brought the suit shall continue to pay additional taxes under

protest as the taxes become due during the appeal.

(b) Additional taxes that are paid under protest during the

appeal of the suit shall be governed by the outcome of the suit

without the necessity of the person filing an additional suit for

the additional taxes.

Acts 1981, 67th Leg., p. 1513, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 6, eff.

Sept. 1, 1989.

Sec. 112.058. SUBMISSION OF PROTEST PAYMENTS TO COMPTROLLER.

(a) Payments made under protest are to be handled as follows:

(1) An officer who receives payments made under protest as

required by Section 112.051 shall each day send to the

comptroller the payments, a list of the persons making the

payments, and a written statement that the payments were made

under protest.

(2) The comptroller shall, immediately on receipt, credit the

payments to each fund to which the tax or fee paid under protest

is allocated by law.

(3) The comptroller shall maintain detailed records of payments

made under protest.

(4) A payment under protest bears pro rata interest. The pro

rata interest is the amount of interest earned by the protested

funds.

(b) Repealed by Acts 2003, 78th Leg., ch. 1310, Sec. 121(25).

(c) Repealed by Acts 2003, 78th Leg., ch. 1310, Sec. 121(25).

(d) All protest payments of the following taxes that become due

during the fiscal biennium beginning September 1, 1987, may not

be placed in a suspense account, but shall immediately be

deposited to the credit of the fund or funds to which those taxes

are allocated by law:

(1) taxes imposed under Chapter 151, 152, 154, 155, 156, 157, or

171 of this code;

(2) taxes imposed under Article 4.11A, Insurance Code;

(3) surtaxes imposed under Chapters 221, 222, 223, 225, and 226,

Insurance Code; and

(4) taxes and fees paid under the provisions enacted by Article

9, H.B. No. 61, Acts of the 70th Legislature, 2nd Called Session,

1987.

(e) All protest payments of the taxes imposed under Chapters

151, 152, 154, 155, 156, 157, and 171 that become due during the

fiscal biennium beginning September 1, 1989, may not be placed in

a suspense account, but immediately shall be deposited to the

credit of the fund or funds to which those taxes are allocated by

law.

(f) All protest payments of taxes or of fees on prizes imposed

by and collected for the state under Chapter 2001, Occupations

Code, that become due on or after September 1, 1993, are governed

by Subchapter J, Chapter 403, Government Code.

Acts 1981, 67th Leg., p. 1513, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1985, 69th Leg., ch. 233, Sec. 1, eff. June

3, 1985; Acts 1987, 70th Leg., ch. 421, Sec. 1, eff. Aug. 31,

1987; Acts 1987, 70th Leg., 2nd C.S., ch. 5, art. 10, Sec. 1;

Acts 1989, 71st Leg., ch. 232, Sec. 7, eff. Sept. 1, 1989; Acts

1991, 72nd Leg., ch. 641, Sec. 26, eff. Sept. 1, 1991; Acts 1993,

73rd Leg., ch. 286, Sec. 25, eff. Sept. 1, 1993; Acts 1993, 73rd

Leg., ch. 486, Sec. 7.02, eff. Sept. 1, 1993; Acts 1997, 75th

Leg., ch. 1423, Sec. 19.06, eff. Sept. 1, 1997; Acts 2001, 77th

Leg., ch. 1420, Sec. 14.836, eff. Sept. 1, 2001; Acts 2003, 78th

Leg., ch. 1310, Sec. 92, 121(25), eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

728, Sec. 11.161, eff. September 1, 2005.

Sec. 112.059. DISPOSITION OF PROTEST PAYMENTS BELONGING TO THE

STATE. If a suit authorized by this subchapter is not brought in

the manner or within the time required or if the suit is properly

filed and results in a final determination that a tax payment or

a portion of a tax payment made under protest, including the pro

rata amount of interest earned on the payment, belongs to the

state, the comptroller shall ensure that the proper amount has

been deposited to the credit of the appropriate state fund.

Acts 1981, 67th Leg., p. 1513, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1991, 72nd Leg., ch. 641, Sec. 27, eff.

Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 486, Sec. 7.03, eff.

Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1423, Sec. 19.07, eff.

Sept. 1, 1997.

Sec. 112.060. CREDIT OR REFUND. (a) If a suit under this

subchapter results in a final determination that all or part of

the money paid under protest was unlawfully demanded by the

public official and belongs to the taxpayer, the comptroller

shall credit the proper amount, with the pro rata interest earned

on that amount, against any other amount finally determined to be

due to the state from the taxpayer according to information in

the custody of the comptroller and shall refund the remainder by

the issuance of a refund warrant.

(b) A refund warrant shall be written and signed by the

comptroller.

(c) Each tax refund warrant shall be drawn against each fund to

which the taxes paid under protest are allocated by law. If there

are not sufficient funds in each fund to which the taxes paid

under protest are allocated by law to pay a refund required to be

paid under Subsection (a) of this section, then the comptroller

shall draw the warrant against the General Revenue Fund or other

funds from which refund appropriations may be made, as the

comptroller determines appropriate.

(d) The comptroller shall issue each tax refund warrant and

shall deliver it to the person entitled to receive it.

(e) The comptroller may not refund an amount of tax to a

taxpayer or person who collects taxes from another person unless

the taxpayer or person refunds all the taxes to the person from

whom the taxes were collected.

Acts 1981, 67th Leg., p. 1514, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1985, 69th Leg., ch. 233, Sec. 2, eff. June

3, 1985; Acts 1989, 71st Leg., ch. 232, Sec. 8, eff. Sept. 1,

1989; Acts 1993, 73rd Leg., ch. 486, Sec. 7.04, eff. Sept. 1,

1993; Acts 1997, 75th Leg., ch. 1040, Sec. 9, eff. Sept. 1, 1997;

Acts 1997, 75th Leg., ch. 1423, Sec. 19.08, eff. Sept. 1, 1997.

SUBCHAPTER C. INJUNCTIONS

Sec. 112.101. REQUIREMENTS BEFORE INJUNCTION. (a) An action

for a restraining order or injunction that prohibits the

assessment or collection of a tax or fee imposed by this title or

collected by the comptroller under any law, including a local tax

collected by the comptroller, or a statutory penalty assessed for

the failure to pay the tax or fee may not be brought against the

public official charged with the duty of collecting the tax or

fee or a representative of the public official unless the

applicant for the order or injunction has first:

(1) filed with the attorney general not later than the fifth day

before the date the action is filed a statement of the grounds on

which the order or injunction is sought; and

(2) either:

(A) paid to the public official who collects the tax or fee all

taxes, fees, and penalties then due by the applicant to the

state; or

(B) filed with the public official who collects the tax or fee a

good and sufficient bond to guarantee the payment of the taxes,

fees, and penalties in an amount equal to twice the amount of the

taxes, fees, and penalties then due and that may reasonably be

expected to become due during the period the order or injunction

is in effect.

(b) The amount and terms of the bond and the sureties on the

bond authorized by Subsection (a)(2)(B) must be approved by and

acceptable to the judge of the court granting the order or

injunction and the attorney general.

(c) The application for the restraining order or injunction must

state under the oath of the applicant or the agent or attorney of

the applicant that:

(1) the statement required by Subsection (a)(1) has been filed

as provided by that subsection; and

(2) the payment of taxes, fees, and penalties has been made as

provided by Subsection (a)(2)(A) or a bond has been approved and

filed as provided by Subsection (a)(2)(B) and Subsection (b).

(d) The public official shall deliver a payment or bond required

by Subsection (a)(2) to the comptroller. The comptroller shall

deposit a payment made under Subsection (a)(2)(A) to the credit

of each fund to which the tax, fee, or penalty is allocated by

law. A payment made under Subsection (a)(2)(A) bears pro rata

interest. The pro rata interest is the amount of interest that

would be due if the amount had been placed into the suspense

account of the comptroller.

Acts 1981, 67th Leg., p. 1514, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 9, eff.

Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 486, Sec. 7.05, eff.

Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1423, Sec. 19.09, eff.

Sept. 1, 1997.

Sec. 112.1011. NATURE OF ACTION FOR INJUNCTION. (a) A court

may not issue a restraining order or consider the issuance of an

injunction that prohibits the assessment or collection of an

amount described by Section 112.101(a) unless the applicant for

the order or injunction demonstrates that:

(1) irreparable injury will result to the applicant if the order

or injunction is not granted;

(2) no other adequate remedy is available to the applicant; and

(3) the applicant has a reasonable possibility of prevailing on

the merits of the claim.

(b) If the court issues a temporary or permanent injunction, the

court shall determine whether the amount the assessment or

collection of which the applicant seeks to prohibit is due and

owing to the state by the applicant.

Added by Acts 1989, 71st Leg., ch. 232, Sec. 10, eff. Sept. 1,

1989.

Sec. 112.1012. COUNTERCLAIM. The state may bring a counterclaim

in a suit for a temporary or permanent injunction brought under

this subchapter if the counterclaim relates to taxes or fees

imposed under the same statute and during the same period as the

taxes or fees that are the subject of the suit and if the

counterclaim is filed not later than the 30th day before the date

set for trial on the merits of the application for a temporary or

permanent injunction. The state is not required to make an

assessment of the taxes or fees subject to the counterclaim under

any other statute, and the period of limitation applicable to an

assessment of the taxes or fees does not apply to a counterclaim

brought under this section.

Added by Acts 1989, 71st Leg., ch. 232, Sec. 11, eff. Sept. 1,

1989.

Sec. 112.102. RECORDS AFTER INJUNCTION. (a) After the granting

of a restraining order or injunction under this subchapter, the

applicant shall make and keep records of all taxes accruing

during the period that the order or injunction is effective.

(b) The records are open for inspection by the attorney general

and the public officer authorized to enforce the collection of

the tax to which the order or injunction applies during the

period that the order or injunction is effective and for one year

after the date that the order or injunction expires.

(c) The records must be adequate to determine the amount of all

affected taxes or fees accruing during the period that the order

or injunction is effective.

Acts 1981, 67th Leg., p. 1515, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 12, eff.

Sept. 1, 1989.

Sec. 112.103. REPORTS AFTER INJUNCTION. (a) On the first

Monday of each month during the period that an order or

injunction granted under this subchapter is effective, the

applicant shall make and file a report with the state officer

authorized to enforce the collection of the tax to which the

order or injunction applies.

(b) The report must include the following monthly information:

(1) the amount of the tax accruing;

(2) a description of the total purchases, receipts, sales, and

dispositions of all commodities, products, materials, articles,

items, services, and transactions on which the tax is levied or

by which the tax is measured;

(3) the name and address of each person to whom a commodity,

product, material, or article is sold or distributed or for whom

a service is performed; and

(4) if payment of the tax is evidenced or measured by the sale

or use of stamps or tickets, a complete record of all stamps or

tickets used, sold, or handled.

(c) The report shall be made on a form prescribed by the state

official with whom the report is required to be filed.

Acts 1981, 67th Leg., p. 1515, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 13, eff.

Sept. 1, 1989.

Sec. 112.104. ADDITIONAL PAYMENTS OR BOND. (a) If an applicant

for an order or injunction granted under this subchapter has not

filed a bond as required by Section 112.101(a)(2)(B) of this

code, the applicant shall pay to the comptroller all taxes, fees,

and penalties to which the order or injunction applies as those

taxes, fees, and penalties accrue and before they become

delinquent. The comptroller shall credit the payment to each fund

to which the tax, fee, or penalty is allocated by law.

(b) If the attorney general determines that the amount of a bond

filed under this subchapter is insufficient to cover double the

amount of taxes, fees, and penalties accruing after the

restraining order or injunction is granted, the attorney general

shall demand that the applicant file an additional bond.

Acts 1981, 67th Leg., p. 1515, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 14, eff.

Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 486, Sec. 7.06, eff.

Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1423, Sec. 19.10, eff.

Sept. 1, 1997.

Sec. 112.105. DISMISSAL OF INJUNCTION. (a) The attorney

general or the state official authorized to enforce the

collection of a tax to which an order or injunction under this

subchapter applies may file in the court that has granted the

order or injunction an affidavit stating that the applicant has

failed to comply with or has violated a provision of this

subchapter.

(b) On the filing of an affidavit authorized by Subsection (a)

of this section, the clerk of the court shall give notice to the

applicant to appear before the court to show cause why the order

or injunction should not be dismissed. The notice shall be served

by the sheriff of the county where the applicant resides or by

any other peace officer in the state.

(c) The date of the show-cause hearing, which shall be within

five days of service of the notice or as soon as the court can

hear it, shall be named in the notice.

(d) If the court finds that the applicant failed, at any time

before the suit is finally disposed of by the court of last

resort, to make and keep a record, file a report, file an

additional bond on the demand of the attorney general, or pay

additional taxes, fees, and penalties as required by this

subchapter, the court shall dismiss the application and dissolve

the order or injunction.

Acts 1981, 67th Leg., p. 1515, ch. 389, Sec. 1, eff. Jan. 1,

1982.

Sec. 112.106. FINAL DISMISSAL OR DISSOLUTION OF INJUNCTION. (a)

If a restraining order or injunction is finally dismissed or

dissolved, the comptroller shall:

(1) if a bond was filed, make demand on the applicant and the

applicant's sureties for the immediate payment of all taxes,

fees, and penalties due the state; or

(2) if no bond was filed, ensure that the proper amount of

taxes, fees, and penalties has been deposited to the credit of

the proper fund to which the taxes, fees, and penalties are

allocated.

(b) Taxes, fees, and penalties that are secured by a bond and

remain unpaid after a demand for payment shall be recovered in a

suit by the attorney general against the applicant and the

applicant's sureties in a court of competent jurisdiction of

Travis County or in any other court having jurisdiction of the

suit.

Acts 1981, 67th Leg., p. 1516, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1993, 73rd Leg., ch. 486, Sec. 7.07, eff.

Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1423, Sec. 19.11, eff.

Sept. 1, 1997.

Sec. 112.107. CREDIT OR REFUND. If the final judgment in a suit

under this subchapter maintains the right of the applicant for a

temporary or permanent injunction to prevent the assessment or

collection of the tax, the comptroller shall credit the money

deposited under this subchapter, with the pro rata interest

earned on the money, against any other amount finally determined

to be due to the state from the applicant according to

information in the custody of the comptroller and shall refund

the remainder to the applicant.

Acts 1981, 67th Leg., p. 1516, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 15, eff.

Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 486, Sec. 7.08, eff.

Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1423, Sec. 19.12, eff.

Sept. 1, 1997.

Sec. 112.108. OTHER ACTIONS PROHIBITED. Except for a

restraining order or injunction issued as provided by this

subchapter, a court may not issue a restraining order,

injunction, declaratory judgment, writ of mandamus or

prohibition, order requiring the payment of taxes or fees into

the registry or custody of the court, or other similar legal or

equitable relief against the state or a state agency relating to

the applicability, assessment, collection, or constitutionality

of a tax or fee covered by this subchapter or the amount of the

tax or fee due, provided, however, that after filing an oath of

inability to pay the tax, penalties, and interest due, a party

may be excused from the requirement of prepayment of tax as a

prerequisite to appeal if the court, after notice and hearing,

finds that such prepayment would constitute an unreasonable

restraint on the party's right of access to the courts. The court

may grant such relief as may be reasonably required by the

circumstances. A grant of declaratory relief against the state or

a state agency shall not entitle the winning party to recover

attorney fees.

Added by Acts 1989, 71st Leg., ch. 232, Sec. 16, eff. Sept. 1,

1989. Amended by Acts 1995, 74th Leg., ch. 579, Sec. 13, eff.

Jan. 1, 1996.

SUBCHAPTER D. SUIT FOR TAX REFUND

Sec. 112.151. SUIT FOR REFUND. (a) A person may sue the

comptroller to recover an amount of tax, penalty, or interest

that has been the subject of a tax refund claim if the person

has:

(1) filed a tax refund claim under Section 111.104 of this code;

(2) filed, as provided by Section 111.105 of this code, a motion

for rehearing that has been denied by the comptroller; and

(3) paid any additional tax found due in a jeopardy or

deficiency determination that applies to the tax liability period

covered in the tax refund claim.

(b) The suit must be brought against both the comptroller and

the attorney general and must be filed in a district court.

(c) The suit must be filed before the expiration of 30 days

after the issue date of the denial of the motion for rehearing or

it is barred.

(d) The amount of the refund sought must be set out in the

original petition. A copy of the motion for rehearing filed under

Section 111.105 of this code must be attached to the original

petition filed with the court and to the copies of the original

petition served on the comptroller and the attorney general.

(e) A person may not intervene in the suit.

(f) Repealed by Acts 1997, 75th Leg., ch. 1423, Sec. 19.128,

eff. Sept. 1, 1997.

Acts 1981, 67th Leg., p. 1516, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1987, 70th Leg., ch. 89, Sec. 3, eff. Sept.

1, 1987; Acts 1989, 71st Leg., ch. 232, Sec. 17, 25(a), eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1423, Sec. 19.128, eff.

Sept. 1, 1997.

Sec. 112.1512. COUNTERCLAIM. The state may bring a counterclaim

in a suit brought under this subchapter if the counterclaim

relates to taxes or fees imposed under the same statute and

during the same period as the taxes or fees that are the subject

of the suit and if the counterclaim is filed not later than the

30th day before the date set for trial on the merits of the suit.

The state is not required to make an assessment of the taxes or

fees subject to the counterclaim under any other statute, and the

period of limitation applicable to an assessment of the taxes or

fees does not apply to a counterclaim brought under this section.

Added by Acts 1989, 71st Leg., ch. 232, Sec. 18, eff. Sept. 1,

1989.

Sec. 112.152. ISSUES IN SUIT. (a) The grounds of error

contained in the motion for rehearing are the only issues that

may be raised in a suit under this subchapter.

(b) The suit applies only to a tax liability period considered

in the comptroller's decision.

Acts 1981, 67th Leg., p. 1516, ch. 389, Sec. 1, eff. Jan. 1,

1982.

Sec. 112.153. ATTORNEY GENERAL TO REPRESENT COMPTROLLER. The

attorney general shall represent the comptroller in a suit under

this subchapter.

Acts 1981, 67th Leg., p. 1517, ch. 389, Sec. 1, eff. Jan. 1,

1982.

Sec. 112.154. TRIAL DE NOVO. In a suit under this subchapter,

the issues shall be tried de novo as are other civil cases.

Acts 1981, 67th Leg., p. 1517, ch. 389, Sec. 1, eff. Jan. 1,

1982.

Sec. 112.155. JUDGMENT. (a) The amount of a judgment for the

plaintiff shall be credited against any tax, penalty, or interest

imposed by this title or by Section 81.111, Natural Resources

Code, and due from the plaintiff.

(b) The remainder of the amount of a judgment not credited to a

tax, penalty, or interest due shall be refunded to the plaintiff.

(c) The plaintiff is entitled to interest on the amount of tax

included in a judgment for the plaintiff equal to the amount of

interest that would be due if the tax had been deposited in the

suspense account of the comptroller. The interest accrues

beginning from the date that the tax was paid until:

(1) the date that the amount is credited against the plaintiff's

tax liability; or

(2) a date determined by the comptroller that is not sooner than

10 days before the actual date on which a refund warrant is

issued.

Acts 1981, 67th Leg., p. 1517, ch. 389, Sec. 1, eff. Jan. 1,

1982. Amended by Acts 1989, 71st Leg., ch. 232, Sec. 19, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1423, Sec. 19.13, eff.

Sept. 1, 1997.

Sec. 112.156. RES JUDICATA. The rule of res judicata applies in

a suit under this subchapter only if the issues and the tax

liability periods in controversy are the same as were decided in

a previous final judgment entered in a Texas court of record in a

suit between the same parties.

Acts 1981, 67th Leg., p. 1517, ch. 389, Sec. 1, eff. Jan. 1,

1982.