U.S. Fifth Circuit holds standing for First Amendment violation can be shown through chilled speech without the need for actual arrest or citation.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Anthony Barilla v. City of Houston, Tex., No. 20-20535 (5th Cir. Sept. 10, 2021).

In this appeal for dismissal for lack of standing by the district court, the U.S. Fifth Circuit reversed and remanded the district court’s order, holding that the intention to engage in busking (playing music for tips) plus the ordinance regulating the activity was sufficient to show standing on his First Amendment claim.

The plaintiff sued the city after his busking permit to play music for tips expired. He desired to busk in other parts of the city but was kept from doing so based on the need to get a permit and the ordinance that prohibits busking in most areas of the city.  He chose not to busk but instead to file suit against the city.  The city argued that the plaintiff had not proved an actual injury or standing because he had not been arrested, denied a permit, or cited for busking.  The district court granted the city’s motion to dismiss based on the plaintiff’s lack of standing.

To prove standing, a plaintiff must demonstrate an injury in fact by showing that the plaintiff: (1) has the serious intention of engaging in conduct that affects a constitutional interest; (2) that the conduct is regulated or prohibited; and (3) the threat of enforcement against the conduct is substantial.  Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).  Both music and solicitation for times are constitutionally protected.   See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).  Standing existed in this case because the plaintiff had shown a serious intention to busk as he had engaged in the activity previously, and the activity of busking is constitutionally protected.  The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s dismissal and remanded for further review on the standing issue.

The court of appeals reversed and remanded the district court’s dismissal on the basis of standing because the plaintiff provided sufficient evidence of a serious interest in engaging in constitutionally protected activity that is being regulated/prohibited by the city.

If you would like to read this opinion, click here.   Panel consists of Chief Judge Owen and Judges Clement and Higginson.  Opinion by Judge Stephen A. Higginson.

Tyler Court of Appeals holds a motion for new trial did not extend the time to perfect an accelerated appeal

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SignAd, Ltd. V. The City of Hudson, 12-21-00056-CV, (Tex. App – Tyler, Sept. 15, 2021)

This case is mainly procedural, and the Tyler Court of Appeals held SignAd failed to timely file its notice of appeal, either as an interlocutory appeal or of a final judgment.

This is a billboard construction case where the City sought injunctive relief and civil penalties asserting SignAd violated its local ordinances. SignAd asserted counterclaims for declaratory judgment, compensation for loss of the billboard if ordered to remove it, inverse condemnation, unenforceability of the ordinance against SignAd, and 42 U.S.C. § 1983. The trial court issued various orders but the order of contention is a January 19, 2021 order granting the City’s first amended motion to dismiss for lack of subject matter jurisdiction. The parties disagree as to whether the January 19th order was a final order or is interlocutory. The order contained various findings including that SignAd lacks standing to bring its counterclaim for declaratory judgment, SignAd’s billboards exceed the size limitations for commercial signs, and that SignAd cannot maintain its billboards under the ordinance even if it achieved a total victory in this case.

The court of appeals held if the order is an appealable interlocutory order, the notice of appeal was due to be filed within twenty days after the judgment or order was signed, i.e., February 8.  SignAd filed its notice of appeal on April 13th.  SignAd’s motion for a new trial did not extend the time to perfect an accelerated appeal. But even if not interlocutory a notice of appeal must be filed within thirty days after the judgment is signed or within ninety days after the judgment is signed if any party timely files a motion for new trial. However, any motion for new trial was due to be filed by February 18. SignAd filed its motion for new trial on February 22. The certificate of service attached to the motion for new trial reflects that it was served on February 16; however, the motion is file marked February 22. Thus, the motion was late and did not extend the time for filing the notice of appeal.  And an “order overruling an untimely new trial motion cannot be the basis of appellate review, even if the trial court acts within its plenary power period.”  As a result, the court of appeals dismissed the appeal for want of jurisdiction.

Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley. Dismissed for Want of Jurisdiction. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

13th Court of Appeals holds City sufficiently complied with TOMA and Tax Code in 2019 when it adopted its annual tax rate

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Leftwich v City of Harlingen, 13-20-00110-CV (Tex. App. – Corpus Christi, Sep. 9, 2021).

This is a declaratory judgment suit to declare the city violated procedural requirements when it adopted its tax rate in 2019. The Thirteenth Court of Appeals held no alleged violation constituted a waiver of the City’s immunity.

Leftwich alleges the City violated several statutory requirements in 2019 when it adopted its tax rate, including (1) the published notice failed to conform to the “date, time[,] and location” requirements of Texas Local Government Code § 140.010(c),  (2) the City failed to meet the deadline to adopt the tax rate (requiring a vote on proposed tax rate “not be earlier than the third day or later than the [fourteenth] day after the date of the second public hearing”); (3) the City violated TOMA by not allowing public comment “before or during” the consideration of the of the tax ordinances and various other procedural deficiencies. The City filed a plea to the jurisdiction, which the trial court granted. Leftwich appealed.

The court first noted that TOMA’s waiver of sovereign immunity only extends to mandamus or injunctive relief for actual or threatened violations of TOMA, not to suits for declaratory relief.  Further, under TOMA, substantial compliance is sufficient. The location of a meeting may be sufficient without including the full street address, name of the city, or meeting room, so long as the notice sufficiently apprises the public of the location.  Here, the term “town hall” sufficiently put the public on notice of the location of the meeting. No general waiver of immunity exists under the UDJA.  Plaintiff sought a judgment “declaring that the[o]rdinances are invalid and void ab initio” due to appellees’ alleged TOMA and tax code violations. The alleged TOMA violation during the meeting focused on the City Council not taking public comments before voting on the first reading of the tax ordinance. However, the mayor was clearly heard on camera, prior to the final vote on the first reading of each ordinance, asking for discussion, to which no one responded. Assuming, arguendo, that the mayor’s call for discussion was not clearly directed to the public, Leftwich would remain unsuccessful as that was only the first reading. The ordinance was not adopted until the second reading. Only an action taken in violation of TOMA is voidable.  Under the tax code, no requirement exists that two publications exist for public hearings, only that two public hearings are held and that notice is published. Under § 26.06(e) of the Texas Tax Code, the City was required to hold a meeting to vote on the tax ordinances not “earlier than the third day or later than the [fourteenth] day after the date of the second public hearing.” However § 26.06(e) provides no authority for a court to enjoin the collection of taxes for failure to comply with § 26.06(e), which is what Plaintiff seeks.  Plaintiff further asserts the councilmember making the motion failed to follow the specific quoted language for the motion contained within the statute. However, after reviewing the record, the court concluded the motion followed the important parts of the statutory language, verbatim.  Leftwich next asserted the City failed to properly post the necessary tax information on the City’s website.  However, Leftwich failed to present evidence that would raise a fact issue as to whether the City previously posted the notice to the website. The court concluded the undisputed language which was present meets the requirements of Texas Tax Code § 26.05(b)(2), which requires the notice be published after the ordinance is adopted. Leftwich failed to allege jurisdiction under TOMA or the Tax Code for any alleged violation.  Finally, while Plaintiff attempts to bring a First Amendment claim, he failed to brief the claim and therefore waived it.

If you would like to read this opinion click here.  Panel consists of Justices Benavides, Hinojosa and Silva. Memorandum opinion by Justice Silva.

Fourth Court of Appeals holds plaintiff suing for BOA decision must be given opportunity to replead to show timing of when the BOA decision was filed in board’s offices

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Alpha Securities, LLC, v City of Fredericksburg, 04-20-00447-CV (Tex. App. – San Antonio, Aug. 10, 2021, no pet h.).

This is a board of adjustment appeal and declaratory judgment action where the San Antonio Court of Appeals agreed no jurisdiction existed, but remanded to provide the Plaintiff the opportunity to replead.

Alpha Securities purchased real property in Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other on Milam St.  As a result, Alpha Securities was unable to obtain a Certificate of Occupancy, water and electrical services. Alpha Securities appealed the determination to the City’s Board of Adjustment (BOA), and the BOA denied relief. Alpha sued the City, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha appealed.

Alpha’s first argument, that the City did not timely seek a ruling on the plea, was overruled. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel.  Alpha attempted to bring ultra vires claims but did not include any specific officials. Such claims were properly denied. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the UDJA does not waive the City’s governmental immunity.  Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision- rather when the BOA’s decision “is filed in the board’s office.” The pleadings do not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction].  The City asserts Alpha repled three times and should not be allowed to do so again. However, the Fourth Court determined that was inconsequential in this case. If the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.

If you would like to read this opinion click here. Panel consists of Justices Chapa, Rios, and Rodriguez. Memorandum opinion by Justice Rodriguez.

Property owners around lake drained by GBRA had no standing to sue as they possessed no particularized injury

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Jimmy and Cheryl Williams, et al. v. Guadalupe-Blanco River Authority and its Officers and Directors, 04-20-00445-CV, (Tex. App. – San Antonio, July 7, 2021)

This is a takings case where the San Antonio Court of Appeals partially reversed and affirmed the trial court’s judgment on Guadalupe-Blanco River Authority’s (“GBRA”) plea to the jurisdiction in takings suit. The trial court granted GBRA’s plea to all claims except the property owners’ takings claims after GBRA drained lakes around their properties.

Six hydroelectric dams (“Hydro Dams”) were privately constructed between 1928 and 1932 and put in service in the Guadalupe River Valley in Comal, Guadalupe, and Gonzales Counties. Construction of the hydro dams resulted in the formation of six lakes: Meadow, Placid, McQueeney, Dunlap, Wood, and Gonzales. In 1963, GBRA acquired the six hydro dams. Spill gates at two of the hydro dams failed draining both Lake Wood and Lake Dunlap. As a result of the deterioration of the hydro dams and respective spill gates, GBRA announced its intent to perform a “systematic drawdown” of the remaining four lakes, beginning at Lake Gonzales and then moving upstream to Meadow Lake, Lake Placid, and Lake McQueeney. Appellants—owners of properties adjacent to the lakes—sued GBRA (and its officers in their official capacities) for injunctive relief to prevent the announced drawdown, declaratory relief, and damages based on diminished property values.

GBRA asserted that the property owners lacked standing because they could not demonstrate a particularized injury.  Standing requires a plaintiff to establish: (1) the plaintiff’s claimed injury is “both concrete and particularized and actual and imminent, not conjectural or hypothetical”; (2) the injury is “fairly traceable to the defendant’s challenged action”; and (3) “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

The Court of Appeals reversed the trial court’s denial of the plea as to the taking claims, finding that the property owners could not demonstrate a particularized injury apart from the community at large absent ownership of a property right in the hydro dams, the lands underneath the lakes, or the water itself. As a result, the Court of Appeals dismissed the sole remaining claim against GBRA.

Panel consists of Justices Alvarez, Chapa, and Valenzuela. Memorandum Opinion by Justice Valenzuela can be read here. Docket page with attorney information found here.

Trespass to try title claims failed to waive immunity, but court remanded to allow further pleading attempts

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City of San Antonio v. Albert Davila, Individually; Madeline Davila, Individually; and Albert Davila as Trustee of the Albert Pena Davila and Madeline Davila Living Trust, 04-20-00478-CV, (Tex. App – San Antonio, August 4, 2021)

This is a trespass to try title case where the Fourth Court of Appeals reversed the denial of the City’s plea to the jurisdiction but remanded to allow Plaintiff the ability to replead.

The Davilas sued the City in a trespass to try title action. The Davilas alleged that, as part of closing and abandoning 12th Street and conveying parcels to adjoining landowners in 1987, the City deeded the subject property to the Davilas’ parents. Alternatively, they allege they adversely possessed the property. The City filed a plea to the jurisdiction asserting the City issued a quick claim deed to Davila’s parents and the deed recites the City passed an ordinance authorizing the sale of the property to the Davilas’ parents. The quitclaim deed also contains a metes-and-bounds description of the subject property and reserves a utility easement. The trial court denied the plea and the City appealed.

When a city is sued in a trespass to try title action based on adverse possession, governmental immunity is not waived, and the trial court lacks subject matter jurisdiction. As a result, the claims, as alleged, do not waive immunity. The Davilas argue section 16.005 of the Texas Civil Practice & Remedies Code waives the City’s governmental immunity, which relates to road closure ordinances. The Davilas did not request relief from the City’s ordinance under Chapter 16, which authorized the sale or abandonment of property, but from the quitclaim deed itself. It does not waive immunity. However, the plea attacks the pleadings only. The City’s brief does not argue or explain why the pleading defect—suing the City instead of government officials for ultra vires acts—is incurable. As a result, the Davilas must be given the opportunity to amend their pleadings.

Panel consists of Chief Justice Martinez, and Justices Chapa and Valenzuela. Reversed and remanded. Memorandum Opinion by Justice Chapa can be read here. Docket page with attorney information found here.

 

Junk vehicle owner failed to establish ownership in municipal court, so was not entitled to sue for taking in later suit

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Jane Vorwerk v. City of Bartlett and John Landry Pack, Mayor, 03-21-00001-CV, (Tex. App – Austin, August 6, 2021)

The Bartlett Municipal Court declaring a 1986 Toyota mobile home to be a junk vehicle. The municipal court found that defendant James Fredrick Hisle was the owner or person in lawful possession of the mobile home, he was properly notified and appeared in person before the court, and he was afforded ample time to remove the mobile home from his property under Ordinance. It was also declared to be a public nuisance. The court ordered removal and if Hisle did not remove it the City could.  Vorwerk filed suit in justice court asserting she owned the vehicle and the City committed a taking. The City’s filed a plea to the jurisdiction which was granted.

Vorwerk asserted she created a fact issue regarding the ownership of the vehicle. Vorwerk did not submit any evidence that she owned the mobile home at the time of the municipal-court proceeding. Therefore, because the relevant evidence presented by the City and the Mayor was undisputed, that is, that Vorwerk was not the registered owner, and because Vorwerk did not present any evidence that she was the owner of the mobile home at the time of the municipal-court proceeding, the court conclude that she did not raise a fact issue concerning her ownership of the mobile home at the time of the municipal court hearing. The JP properly dismissed the case for lack of jurisdiction.

Panel consists of Justices Goodwin, Triana, and Kelly. Affirmed. Memorandum Opinion by Justice Triana can be read here. Docket page with attorney information found here.

 

San Antonio Court of Appeals held City park and airport police could proceed with declaratory claims to establish collective bargaining rights

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City of San Antonio and Erik Walsh, in his Official Capacity v. San Antonio Park Police Officers Association, et al, 04-20-00213-CV, (Tex. App – San Antonio, July 14, 2021).

This is a civil service/collective bargaining suit where the San Antonio Park Police Officers Association (“SAPPOA”) sought declaratory relief for three distinct issues related to the legal classification of San Antonio’s park and airport police officers. The San Antonio Court of Appeals affirmed in part and reversed in part the City’s plea to the jurisdiction.

The SAPPOA argued that San Antonio’s park and airport police officers are “police officers” entitled to collectively bargain with the City of San Antonio (“City”) under chapters 174 and 143 of the Texas Local Government Code.  The court explained  Chapter 174 provides a limited waiver of immunity as follows: “This chapter is binding and enforceable against the employing public employer, and sovereign or governmental immunity from suit and liability is waived only to the extent necessary to enforce this chapter against that employer.” Tex. Loc. Gov’t Code Ann. § 174.023.  SAPPOA clearly alleged a violation of their right to collectively bargain under Chapter 174. The court held that these factual allegations were sufficient to establish the subject matter jurisdiction of the court.

However,  SAPPOA did not allege or argue that chapter 143 provides for a waiver of immunity for their declaratory judgment claim. The court held  SAPPOA did not request a declaration concerning the validity of chapter 143, but instead sought a declaration as to the park and airport police officers’ rights under this chapter. Thus, the court held that the UDJA does not waive the City’s immunity with respect to their declaratory claim pursuant to chapter 143.

Finally, the court held that SAPPOA alleged sufficient facts that, if taken as true, would confer standing for their ultra vires claims.

Panel consists of Chief Justice Martinez, and Justices Rios and Watkins. Reversed in part, Rendered in part, and Affirmed in part. Memorandum Opinion by Chief Justice Martinez can be read here. Docket page with attorney information found here.

Amarillo Court of Appeals holds committed individual cannot challenge commitment or conditions through secondary suit

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James Richards v. Marsha McLane, in Her Official Capacity as Director of the Texas Civil Commitment Office, 07-20-00306-CV, (Tex. App – Amarillo, July 6, 2021)

This is a declaratory judgment/ultra vires type case where the Amarillo Court of Appeals affirmed the granting of the Director’s plea to the jurisdiction.

Richards sued the director of the Texas Civil Commitment Office involving his commitment orders for being a sexually violent predator. The Director filed a plea to the jurisdiction, which was granted. Richards appealed.

Section 841.082 of the Texas Health and Safety Code provides that the court civilly committing someone as a sexually violent predator “retains jurisdiction of the case with respect to a proceeding conducted under . . . subchapter [E of the statute], . . . or to a civil commitment proceeding conducted under Subchapters F and G.” TEX. HEALTH & SAFETY CODE ANN. § 841.082(d) (West Supp. 2020).  The Court examines the claims based on the nature of the facts asserted and not the labels placed upon them by the pleading party. When reviewing the pleadings, the court held Richards actually challenged the legitimacy of his confinement for inpatient services. Richards sought to obtain less restrictive housing and supervision through the suit, thereby countermining the committing court’s jurisdiction. Further, since the housing requirements apply upon the “release” of an individual, and Richards has yet to be released, the challenge is not yet ripe.

Panel consists of Chief Justice Quinn, and Justices Pirtle and Parker. Affirmed. Memorandum Opinion per curiam can be read here. Docket page with attorney information found here.

Austin Court of Appeals holds AG established only 6 days of violations by city of concealed handgun prohibitions, not the 500+ asserted

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Ken Paxton, Texas Attorney General v. City of Austin, Mayor Steve Adler, Ora Houston, Delia Garza, Sabino Renteria, Gregorio Casar, Ann Kitchen, Don Zimmerman, Leslie Pool, Ellen Troxclair, Kathie Tovo, and Sheri Gallo, each in their Official Capacity, 03-19-00501-CV, (Tex. App – Austin, July 22, 2021)

This is a handgun notice/AG penalty case against the City of Austin. The Austin Court of Appeals affirmed the imposition of civil penalties against the City of Austin imposed by the trial court and denied the AG’s request for stronger penalties as a matter of law.

In 2015, the Legislature enacted Section 411.209 (“Wrongful Exclusion of Concealed Handgun License Holder”) of the Texas Government Code, which it amended in 2017 and 2019. The section addresses penalties against a City that improperly prohibits the carrying of concealed handguns in certain locations. Under §30.06 of the Texas Penal Code, in order to prohibit a licensed concealed handgun carrier from entering a public building, the City must post a specific sign with specific language. A citizen testified he sent the City notices to remove a pictorial sign and that he was orally told he could not enter.  Under §411.209, the AG filed suit against the City for improperly prohibiting licensed carriers. The trial court dismissed the claims related to the City’s prohibition picture of a gun with a circle and line through it, but held the AG met its burden of proof as to other warnings (including oral warnings) on six separate days. The trial court imposed penalties of $9,000 against the City. The City did not appeal, but the AG did.  AG asserted the City should have been penalized over $5 million due to continuing violations and in dismissing the pictorial violation.

To be a prohibited notice under former Section 411.209(a), the notice must be either “by a communication described by Section 30.06, Penal Code” or “by any sign expressly referring to that law or to a license to carry a handgun.” Former Tex. Gov’t Code § 411.209(a). The City’s pictorial sign is not “a communication described by Section 30.06, Penal Code.” And although the City’s Etching perhaps could be considered a “written communication” in the ordinary and common meaning of that phrase, Section 30.06 expressly defines “written communication” under which the pictorial sign does not qualify. As a result, dismissal of claims related to the pictorial sign was proper. Next, the district court concluded that the Attorney General met his burden to establish a violation of former Section 411.209(a) for six different days in 2016.  However, it failed to prove continuing violations on any other day. When a party attacks the legal sufficiency of an adverse finding on an issue on which it bears the burden of proof, the judgment must be sustained unless the record conclusively establishes all vital facts in support of the issue.  The AG failed to make such a showing. Finally, the Attorney General did not raise any complaint until his appeal regarding the district court’s award of a $1,500 per diem amount rather than the mandatory $10,000 minimum authorized by the statute for subsequent violations.  As a result, the court could not review that issue as it was not preserved.

Panel consists of Justices Goodwin, Kelly, and Smith. Affirmed. Memorandum Opinion by Justice Goodwin can be read here. Docket page with attorney information found here.

Copyright infringement does not qualify as a constitutional taking says Texas Supreme Court

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Jim Olive Photograph, D/B/A Photolive, Ince v University of Houston System, 19-0605 (Tex. June 18, 2021)

The Texas Supreme Court held that a governmental entity’s infringement on a copyright does not qualify as a taking under the federal or state constitution.

Jim Olive Photography d/b/a Photolive, Inc. (Olive) is a professional photographer who took a series of aerial photographs of the City of Houston in 2005 and displayed them on his website for purchase. Such photos were registered with the United States Copyright Office.  Olive asserts the University of Houston (“University”) downloaded a copy and removed all identifying copyright and attribution material and began displaying the photographic image on several web pages.  Olive sued the University for a taking without compensation. The University filed a plea to the jurisdiction which was denied. The University appealed. The court of appeals disagreed and dismissed Olive’s claims. Olive appealed.

A copyright is a form of intellectual property that subsists in works of authorship that are original and are fixed in a tangible medium of expression. For a term consisting of the author’s life plus seventy years, the owner of a copyright enjoys the five exclusive rights of reproduction, adaptation, distribution, and public performance and display. The Court assumed, without deciding, that a copyright is a protected property interest. However, a compensable taking does not arise whenever state action adversely affects private property interests. Governments interfere with private property rights every day. Some of those intrusions are compensable; most are not. “A taking is the acquisition, damage, or destruction of property via physical or regulatory means.” To determine whether a physical or regulatory interference with property constitutes a taking, a court ordinarily undertakes a “situation-specific factual inquiry.” Property is the bundle of rights that describe one’s relationship to a thing and not the thing itself. Infringement of a copyright, however, is different than a typical appropriation of tangible property where rights are more closely bound to the physical thing. An act of copyright infringement by the government does not take possession or control of, or occupy, the copyright. The government’s violation of the copyright owner’s rights does not destroy the right or property. The Copyright Act provides that no action by a governmental body to seize or appropriate such ownership shall be given any effect under the Act. Similarly, the government’s unauthorized use of a copy of the copyrighted work is not an “actual taking of possession and control” of the copyright. Copyright infringement not only lacks the key features of a per se taking; it also does not implicate the reasons for creating a per se rule in the first place. Although the Texas Constitution waives governmental immunity with respect to inverse condemnation claims, such a claim must still be “predicated on a viable allegation of taking.” Allegations of copyright infringement assert a violation of the owner’s copyright, but not its confiscation, and therefore factual allegations of an infringement do not alone allege a taking. The plea should have been granted.

The concurring opinion focused more on the need to be flexible with a broad range of harm to property. However, the concurring justices agreed that copyright infringement was too far outside the protection.

If you would like to read this opinion click here. JUSTICE DEVINE delivered the opinion of the Court. JUSTICE BUSBY filed a concurring opinion (found here) in which JUSTICE LEHRMANN joined and in which JUSTICE BLACKLOCK joined as to part II.

Texas Supreme Court holds historic preservation ordinance is not “zoning” but must still comply with certain Chapter 211 requirements

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Powell, et al., v City of Houston, 19-0689 (Tex. June 4, 2021)

The Texas Supreme Court determined that Houston’s Historic Preservation Ordinance was not a zoning ordinance and therefore the zoning restrictions under state law do not apply. However, certain provisions of Chapter 211 of the Texas Local Government Code still apply to the ordinance.

The Houston City Council adopted a Historic Preservation ordinance which required owners of properties in those districts to seek approval from the Houston Archaeological and Historical Commission before modifying or developing their property. The City originally had a waiver provision, but it was removed in 2010 and instead adopted a procedure allowing a neighborhood to seek reconsideration of a designation. Several property owners brought this suit seeking a declaratory judgment that the Ordinance is void and unenforceable because it violated the City Charter’s limits on zoning and it does not comply with certain provisions of Chapter 211 of the Local Government Code. The trial court ruled for the City after a bench trial. The owners appealed arguing the ordinance is a zoning regulation, but the court of appeals disagreed and affirmed the trial court’s order.

The Houston City Charter does not prohibit the City from zoning altogether, but it limits the City’s power to adopt a zoning ordinance by requiring six months’ notice of any proposed ordinance and voter approval in a binding referendum. Zoning regulations have numerous characteristics, and given the prevalence of zoning ordinances, not all of these characteristics are always present. However, generally, a zoning ordinance is defined as a city ordinance that regulates the use to which land within various parts of the city may be put. It also allocates uses to the various districts of a municipality, as by allocating residences to certain parts and businesses to other parts, but more on a comprehensive basis throughout the entire city. Conversely a “historic preservation” is the effort to conserve, preserve, and protect artifacts and developed places, including structures and landscapes, of historical significance, and does not fall under traditional zoning categories. The Court analyzed various aspects of zoning and definitions, historically and determined the ordinance was not a zoning ordinance. For example, the ordinance impacts a site by requiring alterations and additions to a building to remain compatible with the building’s own existing height, size, and location, and with that of the rest of the district. Because each building is regulated according to its own features or the features of nearby buildings, there is no uniform standardization of height, bulk, and placement across the district as in traditional zoning laws. In sum, the Ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance. Therefore, it is not zoning.

However, Chapter 211 of the Local Government Code subjects regulations that would not traditionally be considered zoning to certain procedural requirements, such as regulation of structures in historically significant areas and certain pumping and use of groundwater. The fact Chapter 211 applies to this type of regulation does not mean it qualifies as zoning. However, even though Chapter 211 applies, the owners failed to establish that the City did not comply with the requirements.  For example, the ordinance actually qualifies, by itself, as a comprehensive plan for its intended purpose. As a result, the court of appeals order is affirmed.

If you would like to read this opinion, click here. JUSTICE BUSBY delivered the opinion of the Court.

Fort Worth Court of Appeals holds oral pronouncements from bench cannot be considered when appealing a written order granting Town’s plea to the jurisdiction

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John Artuso v. Town of Trophy Club, Texas, 02-20-00377-CV, (Tex. App – Fort Worth, May 13, 2021)

This is a negligence, taking,  and declaratory judgment action where the Fort Worth Court of Appeals affirmed the granting of the Town’s plea to the jurisdiction.

Plaintiff Artuso sued the Town of Trophy Club for negligence and gross negligence with regard to his home’s placement in the Town’s Public Improvement District No. 1 (PID) and the special assessments imposed in the district. Artuso asserted he timely paid all assessments and even overpaid. He requested the Town credit his account for previously over-assessed amounts, which he characterized as a taking. He claimed that the manner in which the Town apportioned the PID costs was arbitrary and capricious, amounting to a violation of his due process rights, and he complained that the Town had not responded to his assessment-reduction petition. The Town filed two pleas to the jurisdiction, which were granted. Artuso appealed.

Artuso’s argument that the trial court’s oral statements about the grounds for granting the plea were improper. The trial court’s signed order listed no grounds.  The appellate court asserted it could not look to the oral statements in the record, only to the wording of the actual written order. By applying this policy, the courts and parties are relieved of the obligation to “parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.” Because Artuso has failed to challenge all of the grounds upon which the Town’s motion could have been granted, and failed to brief all grounds, the court of appeals affirmed the granting of the dispositive motions.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, and Justices Kerr and Womack. Memorandum Opinion by Chief Justice Sudderth. Docket page with attorney information found here.

Eastland Court of Appeals holds City failed to obtain ruling on special exceptions, therefore it could not complain about a lack of factual specificity in the pleadings within its plea to the jurisdiction

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City of Odessa, Texas v. AIM Media Texas, LLC d/b/a The Odessa American, 11-20-00229-CV  (Tex. App. – Eastland, May 13, 2021).

This is a Public Information Act (“PIA”) case where the Eastland Court of Appeals held the Plaintiff had properly fallen under the jurisdiction of the PIA.

AIM Media, a newspaper company, sued the City for mandamus under the PIA asserting the City failed to timely provide the information requested and improperly redacted information. The City asserted it provided all information and that AIM Media plead conclusory allegations only, with no facts. The City asserts it filed special exceptions to the bare pleadings then filed a plea to the jurisdiction, which was denied. The City appealed.

The court noted the City challenged the pleadings only, so the pleadings were taken as true for purposes of the plea. The PIA allows a requestor to sue for mandamus.  While the court appeared to acknowledge that a lack of factual allegations can be grounds for a plea, the court held the City failed to obtain a ruling on their special exceptions. As a result, whether the special exceptions properly put AIM Media on notice of any jurisdictional defects was not before the court. Taking the pleadings as true, the court held AIM Media pled the minimum jurisdictional requirements.  The plea was therefore properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Trotter and Justice Williams. Opinion by Chief Justice Bailey.

Texas Supreme Court holds ratepayer has standing to sue to challenge electric rate increase

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Data Foundry, Inc. v City of Austin, 19-0475 (Tex. April 9, 2021)

This is a utility rate challenge case. However, the issue considered by the Texas Supreme Court is whether the company purchasing electricity has standing to sue. The Court held it does have standing.

Data Foundry is an internet service provider that operates data centers in Austin. The City owns and operates Austin Energy, an electric utility system. In 2016, Austin Energy proposed to change the retail rates it was charging for electric services. The City hired a hearing examiner to conduct a review of the proposed new rates. Several ratepayers, including Data Foundry, intervened and participated in the hearing process. Ratepayers were permitted to conduct discovery, provide testimony, and cross-examine witnesses at a public hearing. Data Foundry submitted briefs in which it argued, as it does in this case, that Austin Energy’s proposed rate structure would result in rates that were unreasonable, unlawful, and confiscatory.  The Austin City Council passed an ordinance establishing new base rates and pass-through rates. Data Foundry sued in district court to hold the ordinance invalid. The City filed a motion to dismiss all of Data Foundry’s claims under Rule 91a. The trial court granted the motion, but the Court of Appeals reversed in part and affirmed in part.

The threshold inquiry into standing “in no way depends on the merits of the [plaintiff’s] contention that particular conduct is illegal.” To maintain standing, a plaintiff must show: (1) an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) that the injury is fairly traceable to the defendant’s challenged action; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.  In the context of lawsuits filed by ratepayers to challenge utility rates charged by a municipality, the Court has not required an individual plaintiff to allege its injury is distinct from injuries other ratepayers may suffer. An injury is “particularized” for standing purposes if it “affect[s] the plaintiff in a personal and individual way.” Data Foundry thus alleges an injury that is particularized to it—Data Foundry suffers financial harm because it must pay Austin Energy a particular sum of money that exceeds what Data Foundry contends it should have to pay and that the rate is discriminatory. The fact that the City’s actions may also injure other residents does not preclude a finding that Data Foundry has alleged a sufficiently particularized injury. Being forced to part with one’s money to pay an excessive electric rate is an injury that is personal and individual, even though others may suffer the same injury. The Court held several cases holding that a utility ratepayer cannot establish standing to sue unless it alleges an injury different from that of other ratepayers, beyond its personal obligation to pay a rate that it claims is improper, are disapproved of as inconsistent with Texas standing jurisprudence. The Court remanded to determine the remaining issues under PURA as such determinations are not based on standing, which was the only ground upon which the trial court ruled.

If you would like to read this opinion click here. JUSTICE HUDDLE delivered the opinion of the Court.