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Click here for the full text of this decision FACTS:After a bench trial, the trial judge entered judgment for Texas Land Finance Company II for taxes due on property purchased by Ronald A. Weisfeld, Slawomir Leszinski, Arturo Singer, and Blankenship #1 F.L.P. In three issues, appellants allege the trial judge erred in dismissing their counterclaim for usury and awarding attorneys’ fees and interest in the judgment. Teleamerica Spanish Network, L.L.C. owned property at 2090 San Jacinto in Dallas. In October 2001, and January 2002, Texas Land Finance paid the taxes due on the property for the years 2000 and 2001, and the County of Dallas Tax Office transferred the tax liens on the property to Texas Land Finance. On Jan. 22, 2002, Teleamerica as maker signed a real estate lien note in the amount of $38,825.91 to Texas Land Finance as payee. The note reflected the funds advanced by Texas Land Finance to pay the taxes due on the property. Texas Land Finance later brought suit against Teleamerica for the amounts due on the note. In March, 2003, appellants purchased the property at a foreclosure sale, and Texas Land Finance joined appellants as defendants in the suit. Appellants answered and filed a counterclaim for usury. They also tendered the last amount allegedly demanded by Texas Land Finance, $53,220.33, into the registry of the court. Texas Land Finance filed a plea in abatement alleging appellants did not have standing to assert their usury claim. The trial judge granted the plea. After a bench trial, the trial judge awarded Texas Land Finance $49,996.34 as the amount owing on the transferred liens, plus interest and attorneys’ fees. Appellants allege the trial judge erred in granting the plea in abatement and awarding Texas Land Finance attorneys’ fees and interest. HOLDING:Affirmed. Citing Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1998), appellants contend that in Texas Tax Code 32.065(e), the legislature intended to make usury remedies available to parties who are not obligors, because there is no language restricting the remedy to the obligor. In Quick, the petitioners claimed a city of Austin water pollution control ordinance was void because it was not approved in advance by the Texas Natural Resource Conservation Commission. The judge disagreed, pointing to numerous statutes in which the legislature had expressly required prior commission approval before a local ordinance became effective. The statute at issue in Quick had no similar language. The judge reasoned: “We presume that this omission has a purpose. The only purpose that we can ascribe for such an omission is that the Legislature did not intend that water pollution programs such as the Ordinance require Commission approval before becoming effective.” Unlike the statute in Quick, however, 32.065(e) cross-references a statute that does limit the lender’s liability to an obligor. Section 32.065(e) cross-references Chapter 349 of the Finance Code to determine the amount of the penalty. Section 349.001 of the Finance Code provides that a person who contracts for, charges, or receives interest greater than the amount permitted by statute “is liable to the obligor” for certain penalties. The legislature’s cross-reference to a statute expressly including the limiting language does not evidence an intent to create a new, broader rule not limited to obligors. Texas Land Finance contends for the year 2001 it could recover attorneys’ fees of 15 percent under 33.48 of the tax code. Texas Land Finance contends for the year 2000 it could recover attorneys’ fees of 10 percent under 32.06(h), contingent upon foreclosure. Texas Land Finance argues the judgment correctly treats the two tax years at issue differently because the taxes for 2000 were delinquent while the taxes for 2001 were not. Appellants counter that 33.07(c) of the tax code prohibits any recovery of attorneys’ fees. Section 33.07(c) provides: “If a penalty is imposed pursuant to this section, a taxing unit may not recover attorneys’ fees in a suit to collect delinquent taxes subject to the penalty.” A penalty is imposed “pursuant to this section,” however, only where taxes become, and remain, delinquent. Texas Land Finance argues 33.07(c) does not apply to the taxes for 2001, because the 2001 taxes were paid before any penalties, interest, or fees were imposed. The court agrees. Texas Land Finance was not prohibited by 33.07(c) from recovering attorneys’ fees of 15 percent for the year 2001, and the trial judge did not err in including this award in the judgment. For the year 2000, the taxes were delinquent, and the lien transferred from the taxing authority to Texas Land Finance included amounts for penalties and interest. Texas Land Finance does not argue it is entitled to recover the 15 percent measure of 33.48 for the year 2000. Instead, Texas Land Finance contends it could recover attorneys’ fees for the year 2000 under 32.06(h), in the event of foreclosure of the lien. Under 32.06(h), a holder of a lien may file suit to foreclose the lien, and, “[i]f the suit results in foreclosure of the lien, the person filing suit is entitled to recover attorneys’ fees in an amount not to exceed 10 percent of the judgment.” The trial judge found Texas Land Finance could recover attorneys’ fees for 2000 under this provision only upon foreclosure. Therefore, the judgment reflects that the award of attorneys’ fees for the year 2000 is “due only on foreclosure sale.” The awards of attorneys’ fees in the judgment do not exceed the applicable statutory percentages, the court concludes, and because 33.48 does not condition recovery of attorneys’ fees upon foreclosure, it was not necessary for the judgment to make the award for the year 2001 contingent upon foreclosure. OPINION:Mark Whittington, J.; Morris, Whittington and Francis, JJ.

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