Pursuant to Section 112.101(a) of the Texas Tax Code, a taxpayer may bring an action for a restraining order or injunction that prohibits the assessment or collection of a tax or fee imposed or collected by the Texas Comptroller of Public Accounts under any law, including a local tax collected by the comptroller, or a statutory penalty assessed for the failure to pay the tax. As one of the requirements for seeking injunctive relief, Section 112.108 generally requires that the taxpayer pay or provide a bond for the disputed tax.

In 1994 Texas Supreme Court ruled the statute requiring prepayment before seeking relief promulgated by Section 112.108 was unconstitutional. “At the same time, the State has not, however, shown that the complete prohibition of prepayment declaratory relief contained in section 112.108 reasonably serves any governmental interest, let alone one that would override [the taxpayer’s] right to open courts.” R Commc’ns, Inc. v. Sharp, 875 S.W.2d 314, 317 (Tex. 1994). As a result of the Supreme Court’s ruling in R Commc’ns, the Legislature modified Section 112.108. However, the modified version of Section 112.108 has also been interpreted to be unconstitutional:

After the amendment became effective, this Court was asked to determine the constitutionality of the modified provision. Rylander v. Bandag Licensing Corp., 18 S.W.3d 296 (Tex.App.-Austin 2000, pet. denied). In Bandag, the trial court declared unconstitutional the amended version of section 112.108. Id. at 303. When considering the issue on appeal, we explained that the “indigency provision” is “irrelevant to the issue of whether that section constitutes an unreasonable financial barrier to access to the courts” and upheld the trial court’s determination that the amended version was unconstitutional. Id. at 304; see also Central Appraisal Dist. v. Lall, 924 S.W.2d 686, 692–93 (Tex.1996) (concluding that similar tax statute violated open-courts provision and imposed unreasonable financial barrier to court access even though it excused prepayment for indigent taxpayers). Although a petition for review was filed in Bandag, the supreme court declined to review the holding in our case.

Since our holding in Bandag, this Court has emphasized our constitutional ruling on at least two occasions.3 See FM Express Food Mart, Inc. v. Combs, No. 03–12–0144–CV, 2013 Tex.App. LEXIS 2744, at *17 n. 6, 2013 WL 1149551 (Tex.App.-Austin Mar. 15, 2013, no pet.) (mem.op.) (stating that this Court previously determined that amended version of section 112.108 was unconstitutional); Local Neon Co. v. Strayhorn, No. 03–04–00261–CV, 2005 Tex.App. LEXIS 4667, at *17 n. 6, 2005 WL 1412171 (Tex.App.-Austin June 16, 2005, no pet.) (mem.op.) (relating that Comptroller “concedes on appeal that this Court held section 112.108 unconstitutional”).

Richmont Aviation, Inc. v. Combs, No. 03-11-00486-CV, 2013 WL 5272834, at *5 (Tex. App. Sept. 12, 2013), review denied (Aug. 22, 2014).

Bottom line, it may be possible for taxpayers to challenge assessments made by the Comptroller in a Texas district court without furnishing a bond or paying the underlying tax. Given the dynamic nature of the law, in order to determine this, you must consult with an attorney familiar with sales tax issues and the Texas Tax Code.