Waco Court of Appeals holds an allegation of overzealous code enforcement actions is inadequate to establish a substantive due process violation when regulations are enforceable.
Special contributing author Laura Mueller, City Attorney for Dripping Springs
House of Praise Ministries, Inc. v. City of Red Oak, Texas, 10-19-00195-CV (Tex. App.—Waco, Aug. 6, 2020).
In this substantive due process case, the Waco Court of Appeals affirmed a trial court’s grant of a plea to the jurisdiction because the plaintiff did not bring any allegations that rose to the level of a substantive due process violation for code enforcement on its property.
The plaintiff is the owner of a piece of property in Red Oak, Texas that was the subject of code enforcement actions including substandard building declaration in municipal court. The plaintiff initially brought claims for regulatory taking, procedural due process, and substantive due process based on the municipal court case determining that the buildings on its property were substandard. In an earlier ruling by the trial court and this court of appeals, the regulatory taking and procedural due process claims were dismissed, but the plaintiff was given the opportunity to replead the substantive due process claim. The plaintiff replead the substantive due process claim including allegations that the City’s offered amortization agreement, overzealous code enforcement actions, and premature lis pendens filing violated its substantive due process rights. The trial court granted the City’s plea to the jurisdiction related to the substantive due process claim.
To present a substantive due process claim, the plaintiff must prove that the government deprived the plaintiff of a constitutionally protectable property interest capriciously and arbitrarily. City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex. App.—Amarillo 1996, writ denied). The Court of Appeals held that none of the three allegations met this standard. The amortization agreement was never entered into by the plaintiff and so did not deprive it of any rights. The Court of Appeals then held that “conclusory allegations that the code enforcement officer enforced the City’s regulations arbitrarily and capriciously are inadequate, standing alone, to support a substantive due process claim.” The Court also noted that there was no allegation that the regulations themselves were an issue. Finally, the Court held that a lis pendens filing, which puts potential property purchasers on notice that an action against a property is currently being brought, does not violate substantive due process even if filed prematurely, where no other evidence of capriciousness or arbitrariness in filing the lis pendens. The Court of Appeals affirmed the trial court’s dismissal of the case.
If you would like to read this opinion click here. Panel consists of Chief Justice Gray and Justices Davis and Neill. Opinion by Justice John E. Neill.