Interpretation of Tax Code Section 112.108
In R Communications, Inc. v. Sharp, 875 S.W.2d 314 (Tex. 1994), the supreme court held unconstitutional this version of section 112.108 and sustained a taxpayer's right to bring a suit for declaratory relief under the the Uniform Declaratory Judgments Act to challenge the legality of an additional sales tax imposed against the taxpayer.
The court reasoned that the above-quoted version of section 112.108 violated the open courts guarantee of the state constitution through the combined effect of the requirement of prepayment of the taxes, the ban on declaratory judgments, and the inadequacy of the remedy of awaiting the filing of a collection suit by the Comptroller. See R. Communications, 875 S.W.2d at 317-18.
The opinion contained, however, this cautionary passage:
Our holding today should not be construed to imply that the guarantee of open courts protects declaratory judgment actions per se. the constitutional defect in the current prohibition against such relief arises from its impact on taxpayers in combination with other provisions of the existing Code.
We do not mandate an unconditional right to declaratory relief, but only direct that some constitutionally adequate means of judicial review not dependent on prior payment be provided. R Communications, 875 S.W.2d at 319.
In evident response to the decision in R Communications, the legislature amended section 112.108 in 1995 by adding the following proviso following the term "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 [to the district court] 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. Tax Code 112.108 (West Supp. 2000).