The Thirteenth Court of Appeals held trial court must use substantial evidence standard when reviewing SOB permit denials

Special contributing author Laura Mueller, City Attorney for Dripping Springs

Larry Mark Polsky, esq. v. Sheriff Omar Lucio and Cameron County, No. 13-19-00062-CV (Tex. App.—Corpus Christi September 24, 2020) (mem. op.).

In this sexually-oriented business case, the 13th Court of Appeals reversed the grant of a dismissal order in favor of the County and Sheriff.

The plaintiff filed an application for a permit with the County to open a sexually oriented business near a public beach in Cameron County.  The Sheriff denied the permit on the basis that the public beach was a “public park” as defined by the County.  The plaintiff appealed to the governing body of the County which held a hearing. The County upheld the denial of the permit.  The plaintiff appealed to the trial court, who used the “abuse of discretion” standard to uphold the County’s decision.  The plaintiff then appealed to the Court of Appeals.

Counties have the authority to regulate sexually oriented business locations under Chapter 243 of the Texas Local Government Code.   This County had a regulation prohibiting a sexually oriented business from opening within 1500 feet of a public park.  The County interpreted the regulation to mean that a public beach is a public park.  The Court of Appeals held “[c]ontrary to the County’s position when cities and counties undertake the regulation of SOBs, they do so in an administrative capacity, and as such, the denial of an SOB permit is reviewed under the substantial evidence rule.”  Under the substantial evidence rule, the analysis is whether substantial evidence supports the government’s decision.  This is in contrast to the abuse of discretion standard which allows a court to overturn a decision only if the government abused its discretion in making the decision.

The Court of Appeals held that the trial court used the wrong standard and remanded the case back to the trial court.

If you would like to read this opinion click here.   The panel consists of Justices Benavides, Longoria, and Perkes. Opinion by Justice Perkes.