The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4308(b)(3), that "[i]t is not always possible to quantify the 'value of the change sought'" and that "[o]ften, the value change is fluid and is based on sliding modifiers." If a petitioner alleges that a finding is inaccurate and claims that a value adjustment is necessary to correct the inaccuracy, the petitioner should be able to identify what value adjustment would correct the inaccuracy. The commenter did not request any specific change and no change was made in response.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented that §9.4308(b)(5) gives "PTAD the privilege to pass on the merits of its opponent's case before allowing the matter to proceed to a neutral hearing." The commenter stated that "[t]he parties will certainly disagree whether the evidence supports the petitioner's contention" and stated that "[t]he provision needs to be deleted in its entirety." The agency also received a written submission containing similar comments from another individual. The agency disagrees. If a petition or ground for objection is rejected for failure to comply with §9.4308, Subchapter L (relating to Procedures for Protesting Comptroller Property Value Study and Audit Findings) affords petitioners opportunity to seek review by the State Office of Administrative Hearings and a final determination by the deputy comptroller. No change was made in response to these comments.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented that §9.4308(c) "requires too great a level of specificity" and that "it should be permissible to protest the application of a modifier or time adjustment to all properties," noting "[t]hat is often the sole issue." The agency also received a written submission containing similar comments from another individual who stated that "[i]f there is a methodological issue that cuts across an entire range of properties or category of property, that flaw should be part of the appeal." The agency disagrees. As noted in §9.4308(c), "[m]atters such as calculation of local modifiers, land schedules, and stratification do not constitute comptroller findings, but may be used in arriving at comptroller findings." Government Code, §403.303 provides rights of protest as to comptroller findings. Nothing in §9.4308(c) prevents petitioners from challenging application of a local modifier or time adjustment in support of a protest of a specific comptroller finding. No change was made in response to these comments.

The agency also received a written submission by an individual regarding §9.4308(b) - (d), stating that the rules are unduly burdensome and too onerous. The agency disagrees. The rules provide clear direction to protesting parties and require very fundamental information regarding claims of inaccurate findings. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented that §9.4309(a) should be purged, stating that it denies further review "due to alleged non-compliance with 9.4308." The commenter states that "PTAD is taking . . . the attitude [that] a protest must meet its standards before even being allowed to have a hearing." The agency disagrees. If a petition or ground for objection is rejected for failure to comply with §9.4308, Subchapter L, affords petitioners opportunity to seek review by the State Office of Administrative Hearings and a final determination by the deputy comptroller. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4309(c), that "[g]iving no opportunity for an oral hearing on a rejection is also a ripe area for conflict and abuse." The agency disagrees. If a petition or ground for objection is rejected for failure to comply with §9.4308, Subchapter L, affords petitioners opportunity to seek review by the State Office of Administrative Hearings and a final determination by the deputy comptroller. A petition must reflect compliance with §9.4308; a petition requiring testimony or argument to establish compliance would not comply with §9.4308. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also inquired, with regard to §9.4309(g), "[a]gain, if the comptroller is not bound by the SOAH decision, what is the point? Does this section attempt to preclude judicial review?" Government Code, §403.303 expressly vests the comptroller with authority for final decisions. Additionally, Government Code, §403.303 governs the right of appeal to protest a comptroller determination and §9.4309(g) does not abridge any such right. The commenter did not request any specific change and no change was made in response.

The agency also received a written submission by another individual regarding §9.4309, stating that "[i]t is incongruous to allow the PTAD to reject an appeal merely because one of the myriad detailed, technical filing requirements has not been satisfied." The commenter stated that "[p]roviding for review by SOAH is helpful as compared to the current rule, but the nature of the review is so limited that the effectiveness of the review is questionable." The agency disagrees. The rules provide clear direction to protesting parties and require very fundamental information regarding claims of inaccurate findings. Additionally, if a petition or ground for objection is rejected for failure to comply with §9.4308, Subchapter L affords petitioners opportunity to seek review by the State Office of Administrative Hearings and a final determination by the deputy comptroller. A petition must reflect compliance with §9.4308; a petition requiring testimony or argument to establish compliance would not comply with §9.4308. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4309(h), that "[t]he petitioner should not have to ask for a reference to SOAH after a rejection." The agency disagrees. Some petitioners may not wish to request referral to SOAH. Thus, review by SOAH is optional, not mandatory. No change was made in response to this comment.

The agency also received a written submission by another individual regarding §9.4309(h), stating that its provisions "are unclear regarding the procedures applicable to rejected grounds when other grounds from the same appeal are referred to SOAH" and that the "process requires clarification." The agency disagrees. Section 9.4309(h) provides that "[a]fter the parties have completed the prehearing stages of review, recommendation, submission of evidence, and informal conference on the grounds for objection that have not been rejected and the petitioner has the opportunity to request referral to SOAH, petitioner may, at the same time and in the same manner as grounds for objection that have not been rejected, request referral to SOAH of rejected grounds for objection. The request for referral to SOAH of rejected grounds for objection must be included in petitioner's request for referral to SOAH of grounds for objection that were not rejected." Section 9.4311(f) - (g) addresses the requirements for requesting referral to SOAH. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4310(b), that "[t]here should be some discovery mechanism short of a PIA request," stating that "[a] PIA request may well take too long to be efficacious." The agency disagrees. The property value study protest process is subject to limiting time constraints and Subchapter L does provide for exchange of evidence that is structured to further the goal of expeditious management of the protest process. No change was made in response to this comment.

The agency received a written submission from an individual who commented, with regard to §9.4310(c), that "the requirement that the petitioner provide the PTAD with a copy of its response to petitioner's request for documents is unnecessary and burdensome." The commenter stated that "[t]he PTAD responses are often voluminous, and the PTAD will have a record of what it produced. The PTAD should be able to compare its prehearing filing with its prior response to the petitioner's information request." The agency agrees. The provision in §9.4310(c) that is the subject of the comment has been revised accordingly.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4311(a), that "[a]llowing no response to a rejection is another way of muffling just presentation of a protest. The grounds for the rejection may be erroneous, but the protestor has no way of rebutting them." The agency disagrees. If a petition or ground for objection is rejected for failure to comply with §9.4308, Subchapter L affords petitioners opportunity to seek review by the State Office of Administrative Hearings and a final determination by the deputy comptroller. A petition must reflect compliance with §9.4308; a petition requiring testimony, argument, or response to establish compliance would not comply with §9.4308. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4311(b), that "[i]t is unreasonable to require such specificity from witnesses" and stated that "[i]t would be reasonable to require the protester to identify the general type of knowledge the witness has and provide a resumé if available." The agency disagrees. Section 9.4311(b) requires only identification of witnesses, the grounds for objection on which they may testify, and a current resumé, curriculum vitae, or summary of qualifications and identification of relevant certifications and licenses. Additionally, pursuant to §9.4311(b), no witness identification is required for the chief appraiser or other employees of the appraisal district that appraises property for the protesting school district. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also inquired, with regard to §9.4311(c), whether affidavits are still allowed. Section 9.4311 does not prohibit the use of affidavits as evidence. No change was made in response to this comment.

The agency received a written submission from an individual commenting that §9.4311(c) "appears to authorize the PTAD to deliver, for the first time, a copy of the documents underlying its study at this late stage of the process" and "[t]hat should not be permitted, and this provision should be reconciled with §9.4310(b)." The agency disagrees. Documents may be obtained pursuant to the Public Information Act and related statutory provisions. Nothing in Subchapter L abridges those rights. Section 9.4310(b) provides a protest-specific remedy under certain circumstances in which documents are not made available in response to a proper request in accordance with the Texas Public Information Act. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4311(d), that "[t]here needs to be some flexibility regarding attending the informal hearing rather than an automatic dismissal for missing it." Although the agency does not agree with the entire comment, §9.4304 provides for extensions of deadlines for good cause shown. To provide clarification of its potential applicability, §9.4304(b) has been revised accordingly.

The commenter writing on behalf of Baker Botts, L.L.P. recommended that the comptroller not adopt the language in §9.4311(d) requiring petitioners to participate in an informal conference. The commenter stated that the "proposed additional jurisdictional requirement to participate in an informal conference with the Comptroller before a protest is referred to the State Office of Administrative Hearings is inconsistent with the statutory requirement that a hearing be held to consider the protest" and that a hearing "may not be avoided by requiring petitioners to prove their case multiple times or lose the right to a hearing." The agency disagrees. The informal conference provides an opportunity for the parties to confer on protest issues. There is no requirement that a petitioner prove its case at the informal conference and §9.4311(d) does not, absent a failure to participate by a petitioner, abridge any right to a hearing.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4311(e), that "[m]aking the section inapplicable to grounds that have been unilaterally rejected again makes the rejection provisions particularly harsh." The agency disagrees. If a petition or ground for objection is rejected for failure to comply with §9.4308, Subchapter L affords petitioners opportunity to seek review by the State Office of Administrative Hearings and a final determination by the deputy comptroller. A petition must reflect compliance with §9.4308; a petition requiring testimony, argument, or response to establish compliance would not comply with §9.4308. No change was made in response to this comment.

The agency received a written submission from an individual commenting, with regard to §9.4311(g), that "[t]he request for referral should be based on any objections/issues raised by petitioner that have not been agreed to during the prior phases of the process," stating that "[r]equiring the petitioner to list them creates another unnecessary stumbling block for petitioners" and that "the clock should not start running until petitioner receives a definitive PTAD response on all issues raised in the appeal." The agency disagrees. Some petitioners may not wish to request referral to SOAH on all issues for which referral to SOAH may be requested. Review by SOAH is optional, not mandatory. Additionally, nothing in Subchapter L prohibits continued negotiation between parties. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4312(a), that "[g]iving only PTAD the right to refer to SOAH is very unilateral." The agency disagrees. SOAH's authority to conduct administrative hearings under Subchapter L is limited by Government Code, §2003.021(b)(4) to matters referred by a governmental entity for a fee and under a contract. Furthermore, Subchapter L affords petitioners opportunity to seek review by the State Office of Administrative Hearings. No change was made in response to this comment.

The commenter writing on behalf of Baker Botts, L.L.P. recommended that §9.4312(a) should state that "[t]he division shall refer all unresolved matters to the State Office of Administrative Hearings." The commenter stated that the proposed "language could be interpreted to allow the Comptroller discretion as to whether or not to refer a protest to SOAH for a hearing." The agency received a written submission containing similar comments from an individual writing on behalf of Texas Taxpayers and Research Association (TTARA), stating that §9.4312(a) should be amended "to clarify that a referral of a dispute to SOAH must be made by the Comptroller if requested by the petitioner." The agency disagrees with these comments. Subchapter L provides language for referral to SOAH that is not in any manner abridged by the language in §9.4312(a). Additionally, some petitioners may not wish to request referral to SOAH. Review by SOAH is optional, not mandatory, but the change requested by the commenter writing on behalf of Baker Botts, L.L.P. would suggest otherwise. No change was made in response to these comments.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4312(c), that "PTAD should not be able to unilaterally join different protests." The agency disagrees. The property value study protest process is subject to limiting time constraints and joining protests for purposes of hearing furthers the goal of expeditious management of the protest process. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also inquired, with regard to §9.4313(b), why the petitioner must "provide a copy of the transcription at its own expense." A petitioner need not incur any such expense if no court reporter is retained for purposes of a hearing. A court reporter need not be retained; all oral hearings under Subchapter L are recorded. No change was made in response to this comment.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented, with regard to §9.4313(g), that "[t]he restrictions on testimony seem to go beyond what the rule of evidence or procedure would restrict" and stated that "[i]t will be impossible for a witness to put into documentary form all of his anticipated testimony" and "rebuttal testimony might not be anticipated." The agency received a written submission from another individual stating that "[a]s long as the testimony relates to an issue properly the subject of the hearing, including applicable standards, it should be allowed." The agency disagrees. Section 9.4313(g) does not require a witness to put all testimony in documentary form; only the facts must be reflected in the documentary evidence. Pursuant to §9.4313(g), the testimony of a witness may provide, subject to proper objections, background regarding, governing law or standards relating to, or explanation of the documentary evidence. Furthermore, under Subchapter L, all parties are required to produce all facts in advance of any oral hearing. No change was made in response to these comments.

The commenter writing on behalf of members of McCreary, Veselka, Bragg & Allen, P.C. also commented that §9.4313(h) is "grossly overly restrictive." The commenter stated that "[p]roperty owners may be witnesses," "[t]he Ag Advisory Board may have useful testimony," and "[f]ee appraisers are not even per se allowed by this section." The agency disagrees. Section 9.4313(h) does not exclude the testimony of such persons; it merely provides that they are subject to challenge and exclusion in accordance with the Texas Rules of Evidence and applicable case law. No change was made in response to this comment.