San Antonio Court of Appeals holds forfeited councilmember can only seek reinstatement through quo warranto proceeding

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City of Leon Valley v. Benny Martinez, 04-19-00879-CV (Tex. App. – San Antonio, August 19, 2020, no pet. h.)

This is a council forfeiture case which the San Antonio Court of Appeals held could only be brought in a quo warranto proceeding.

Section 3.12 of the city charter describes the procedures for council investigations. Benny Martinez was a sitting city council member. After several complaints were filed against him for alleged charter violations the city council held §3.12 hearings. The city council ultimately declared he forfeited his place on the council and removed him. Martinez sued, alleging the procedures used to remove him from office violated his due process rights. He sought a declaratory judgment “to determine [his] right to be reinstated following his removal [from Place 4].”  The city filed a plea to the jurisdiction, which was denied. The city filed this interlocutory appeal.

A writ of quo warranto is an extraordinary remedy available to determine disputed questions about the proper person entitled to hold a public office and exercise its functions. See generally Tex. Civ. Prac. & Rem. Code § 66.001. The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning who may hold such office. The court held the plain and unambiguous language of the quo warranto statute confers standing exclusively on the State, not a private litigant. While Martinez asserted his removal was void (thereby trying to fall within an exception to the exclusivity), the court held none of Martinez’s factual allegations allege void acts, only voidable acts if proven. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Martinez, Justice Alvarez and Justice Rios. Opinion by Justice Alvarez.

 

 

Amarillo Court of Appeals holds findings of fact and conclusions of law improper for plea to the jurisdiction and remanded annexation case for trial

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Hill, et al. v City of Fair Oaks Ranch, 07-19-00037-CV (Tex. App. – Amarillo, Sep. 16, 2020)(mem. Op).

This is an annexation dispute where the Amarillo Court of Appeals reversed the grant of the City’s plea to the jurisdiction and remanded for trial.

In 2015 and 2016, the City was a general-law municipality and it did not annex any properties during those years. In 2017 it became a home-rule city and later that year adopted eleven annexation ordinances. Property owners challenged five of the ordinances. The five annexations added 20% to the City’s geographic area. The property owners challenge one annexation for violating the 1000-ft width requirement, and all five asserting they exceeded the maximum amount allowed by law for annexations. The City filed a plea to the jurisdiction, which the trial court granted. The owners appealed.

Chapter 43 of the Texas Local Government Code (dealing with annexation) waives immunity in limited circumstances. The issue is therefore only one of standing where owners have standing to challenge void ordinances but not procedural irregularities in the adoption process. Here, the landowners challenged the City’s involuntary annexation of the five contested areas as being void ab initio.  While the court acknowledged the owners did not properly brief the 1000-ft arguments, they did properly allege the annexations exceeded the area allowed within a given year under § 43.055.  Those allegations, if proven, would establish that the City’s annexation ordinances are void, not merely voidable.  The court determined that because the plea must be analyzed “under the rubric of a summary judgment” findings of fact and conclusions of law are not proper because there has been no conventional trial on the merits and are superfluous.  In closing, the court noted the parties “would have this court drift into the merits by engaging in statutory construction of the relevant statutes and determining whether the City violated those statutes. Such an analysis would be premature and beyond the scope of a de novo review…”  As a result, the order granting the plea was reversed and the case remanded for trial.

If you would like to read this opinion click here. Panel consists of Justices Pirtle, Parker and Doss.

Dallas Court of Appeals holds property owners failed to establish jurisdiction in annexation case where City was prevented from holding first reading of annexation ordinance

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City of Terrell, Texas, et al. v. Frederick George Edmonds, et al., 05-19-01248-CV  and 05-19-01382-CV  (Tex. App. – Dallas, September 8, 2020)

These are consolidated appeals from the case where several property owners sought to prevent annexation of a 1,000-foot wide strip of land. The Dallas Court of Appeals reversed the injunction order and dismissed the claims.

The City is surrounded by four major entryways and sought to annex 1,000-foot strips along each highway. The areas were divided into discrete subsections for annexation. The City’s Home Rule Charter requires that a proposed ordinance must be considered at two separate meetings for the ordinance to be effective. The agenda designated the proposed annexation areas into 10 individual ordinances, intending to annex separate phases over time.  However, before the first ordinance reading could occur, the plaintiffs obtained a temporary restraining order against the City. Plaintiff’s sought declaratory relief under the Texas Open Meetings Act (“TOMA”), Chapter 43 of the Texas Local Government Code (which regulates annexations) and injunction relief. The City filed a plea to the jurisdiction. However, the trial court conducted a temporary injunctive hearing and granted the temporary relief. The City appealed the injunction order.  Approximately thirty days after the injunction order, the trial court denied the City’s plea to the jurisdiction. The City filed a separate appeal.

As to the temporary injunction order, the City argued the issue was not yet ripe as the first reading of an ordinance is not the passage of an ordinance subjecting the plaintiffs to a likely injury. After analyzing the record, the panel held the City had taken no action to violate either (i) the City Charter or (ii) the Texas Local Government Code because the City had made no final decision regarding the proposed annexation ordinances.  The trial court lacked subject-matter jurisdiction to grant the TRO and injunction. Further, quo warranto is the only means to challenge annexation proceedings which are not void from the start. As a result, the plaintiffs cannot circumvent the quo warranto doctrine by bringing a TOMA claim. The court reversed the granting of the injunction and dismissed the plaintiffs’ claims based on a lack of jurisdiction.

If you would like to read this opinion click here.  Panel consists of Justice Schenck,
Justice Osborne and Justice Pedersen.

 

Fort Worth Court of Appeals holds trial court lacked jurisdiction involving school district’s disciplinary decision

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This is an interlocutory appeal from the denial of a plea to the jurisdiction filed by Northwest Independent School District.

Plaintiffs sued Northwest ISD on behalf of their minor child, C.R., seeking a temporary restraining order and injunctive relief based on the violation of C.R.’s rights to freedom of speech, freedom of association, and procedural and substantive due process. Parents allege that Northwest ISD enforced its “zero tolerance” policy when a search team found a substance in C.R.’s vehicle that was alleged to be marijuana. Parents utilized the Northwest ISD three-level appeal process. Ultimately, the consequences for C.R was assignment to an alternative school program and exclusion from drill team. Northwest ISD filed a plea to the jurisdiction asserting disciplinary decisions under Chapter 37 of the Texas Education Code could not be appealed.  The trial court granted the temporary restraining order and denied the plea to the jurisdiction.  Northwest ISD appealed.

Regarding discipline, the court held Chapter 37 expressly states such decisions are final and cannot be appealed. Therefore, the trial court lacked jurisdiction to consider Northwest ISD’s decision. The Court then held that “students do not possess a constitutionally-protected interest in their participation in extracurricular activities,” such as drill team. Parents’ claim of a constitutionally protected interest in their monetary investment in drill team was therefore invalid. Regarding the due process claims, the Court held that transferring C.R. to an alternative education program did not deprive C.R. of her right to receive an education. Further, there was no due process violation by infringing on C.R.’s right to her “good name and reputation.” Finally, the Court found the appeal process laid followed by Northwest ISD did not implicate due process violations. As a result, the plea should have been granted.

If you would like to read this opinion click here.  The panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Homeowners Association Had Standing to Sue Planning and Zoning Commission for Mandamus Relief

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 Escalera Ranch Owners’ Ass’n, Inc. v. Schroeder, 07-19-00210-CV, 2020 WL 4772973 (Tex. App.—Amarillo Aug. 17, 2020, no pet. h.)

This is an interlocutory appeal from the trial court’s order granting the plea to the jurisdiction.

In April of 2018, the City of Georgetown’s Planning and Zoning Commission (“Commission”) approved a plat for a new 89-home subdivision to be located adjacent to and north of an existing residential subdivision known as Escalera Ranch. The sole means of access to the new subdivision was through a residential street that provides access to and through the Escalera Ranch. The homeowner’s association of Escalera Ranch (“Association”) sued the Commission under mandamus seeking to invalidate the plat. The Association also requested a temporary injunction to halt the development of the subdivision. The Commission filed a plea to the jurisdiction which was granted and the Association appealed.

To enjoin the actions of a governmental body, an individual must plead and prove a “special injury,” by alleging how the person has been damaged beyond the same damage to a member of the general public. The Association alleged new residential subdivision would create a material increase in traffic as one street would serve as the sole inlet for both subdivisions. The association also alleged the added congestion creates a potential safety risk to the safety and welfare of neighborhood residents because the street served as the only emergency vehicle access to the neighborhood. Based upon those allegations, the court found Association’s members have an interest peculiar and distinguishable from the general public. Further, the Association alleged the Commission abused its discretion by approving a plat that did not comply with the City’s fire code. The court found the act of approving the plat was ministerial only if the plat conformed to applicable regulations, and if it does not conform, the act is not ministerial. If the Commission approved a plat that failed to comply with applicable regulations, it could constitute an abuse of discretion, subject to mandamus relief.

If you would like to read this opinion click here. The panel consists of Justices Pirtle, Paker and Doss.  Opinion by Justice Parker.

San Antonio Court of Appeals holds governmental immunity bars both suit and liability where the ‘only plausible remedy’ is invalidation of a government contract.

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City of San Antonio v. Patrick Von Dohlen, et al., 04-20-00071-CV (Tex. App.—San Antonio Aug. 19, 2020)

 This is an interlocutory appeal from the denial of a plea to the jurisdiction and Rule 91a motion to dismiss filed by the City of San Antonio.

Plaintiffs Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri sued the City of San Antonio (“City”) seeking declaratory and injunctive relief.  Plaintiffs alleged that the City violated Government Code Chapter 2400 by continuing to exclude Chick-fil-A from operating a restaurant in the City’s airport based on Chick-fil-A’s financial support for “certain religious organizations that oppose homosexual behavior.”  Section 2400.002 of the Texas Government Code specifically prohibits governmental entities from taking any adverse action against any person or business based on “membership in, affiliation with, contribution, donation, or other support provided to a religious organization.”  This legislation took effect on September 1, 2019, more than five months after the San Antonio City Council voted to implement an amended concession agreement that required Chick-fil-A to be replaced with a different vendor.  The City filed a plea to the jurisdiction, asserting governmental immunity, and a Rule 91a motion to dismiss for lack of standing, both of which the trial court denied.  The City then appealed.

The Fourth Court of Appeals determined that although a plaintiff may properly sue for declaratory and injunctive relief when the governmental entity and its officers acted without legal or statutory authority, such a suit is precluded by governmental immunity if the purpose or result is to cancel or nullify a valid contract with the entity.  In this case, the court examined the nature of the plaintiffs’ claims and held that even though the plaintiffs purportedly sought only prospective relief against the City, the only plausible remedy for their claims was nullification of the amended concession agreement.  The court agreed with the City and found that plaintiffs’ suit sought to “undo and invalidate a contract previously approved by the city council, compel the City to re-open the contract approval process, and require the City to re-award the contract to a subcontractor that will operate a Chick-fil-A restaurant in the airport.”  Furthermore, where the “only plausible remedy” for the plaintiff’s claim is invalidation of a government contract, governmental immunity bars both suit and liability.  As a result, the plea should have been granted.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Sandee Bryan Marion and Justices Patricia O. Alvarez and Irene Rios.  Opinion by Chief Justice Bryan Marion.  Docket page with attorney information can be found here.

Corpus Christi Court of Appeals held that a plaintiff does not have standing to bring suit, or merit a temporary injunction, where the plaintiff has not alleged an injury distinct from the public at large.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Concerned Citizens of Palm Valley, Inc. v. City of Palm Valley, 13-20-00006-CV (Tex. App.—Corpus Christi, August 13, 2020) (mem.op.).

In this taxpayer suit, the plaintiffs allege that the City is spending money on a private golf course in an unconstitutional manner, but the Court held that the denial of a temporary injunction was appropriate because the plaintiffs failed to show an injury distinct from the general public.

The plaintiffs are a group who oppose the City’s use of funds on a private golf course.  They sued the City under Texas Constitutional Article 3, Section 52 that states that A City cannot spend money on private property.  The plaintiffs sought a declaratory judgment preventing expenditures as well as temporary and permanent injunctions.  The trial court denied the temporary injunction because there was insufficient proof that the City was in violation of the Texas Constitution.  The plaintiffs appealed.  The Court of Appeals affirmed the trial court’s order, but on the ground that the plaintiffs have not alleged standing for its claims.

To present a claim for a declaratory judgment or to be able to be granted a temporary injunction, a plaintiff has to prove an injury distinct from the general public.  Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005).  A citizen cannot bring suit against a governmental entity to require it to follow legal requirements if it does not have a separate injury.  While these arguments were not made by the City, the Court of Appeals held that there was insufficient evidence of a particularized injury for standing for the temporary injunction.  The Court affirmed the trial court’s denial of the temporary injunction.

If you would like to read this opinion click here.   Panel consists of Chief Justice Contreras and Justices Longoria and Hinojosa.  Opinion by Chief Justice Contreras.

Beaumont Court of Appeals holds pro se Plaintiff did not establish entitlement to injunctive relief to prevent demolition of building

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Rema Charles Wolf v. City of Port Arthur, 09-19-00047-CV, (Tex. App – Beaumont, Aug. 6, 2020)

This is an interlocutory appeal from the denial of a temporary injunction request by a pro se property owner.

Pro se Plaintiff Wolf sued the City seeking a temporary restraining order and temporary injunction relief asserting the City failed to grant her a permit to repair a building she owns after Hurricane Harvey.  According to Wolf, the building “was never hazardous for anybody[.]”  The petition made claims against the City for fraud, harassment, and trespass, and sought damages. She also sought a restraining order to prevent the City from demolishing the building. The trial court granted the TRO and set the temporary injunction for a hearing. The  City demolished the building. The City filed a plea to the jurisdiction asserting The City also alleged that § 214.0012 of the Texas Local Government Code provides the exclusive remedy and basis for judicial review of actions related to the City’s Construction Board of Adjustments and Appeals. In a second plea, the City produced evidence of a public hearing on the demolition and that Wolf signed in and presented.  After the public hearing, the Board entered a ninety-day raze-or-repair order and provided it to Wolf. According to the plea, the City sent Wolf a letter on October 25, 2018, that notified her of the upcoming demolition, demolition began on November 15, 2018, and the demolition was two-thirds completed when the City received notice of the TRO.  After a temporary injunction hearing, the trial court denied the temporary relief and finding the plea was moot.

For a temporary injunction, a review of a trial court order is limited.  In this case, several of Wolf’s issues on appeal complain about matters not within the scope of the order being appealed. The record includes no appealable ruling, order, or judgment granting or denying damages or some of the other relief requested by Wolf. As a result, the court of appeals lacks jurisdiction over such requests.  “An appeal from an order on a temporary injunction becomes moot when the act sought to be enjoined occurs.” In this case, the remainder of the building was demolished.   The trial court expressly stated at the conclusion of the hearing that it had not found sufficient evidence of irreparable loss. Deferring to the trial court as fact finder, the court of appeals held the trial court did not abuse its discretion in denying the injunctive relief.

If you would like to read this opinion click here. Panel consists of Justices Kreger, Horton, and Johnson. Affirmed. Memorandum Opinion by Justice Johnson. Docket page with attorney information can be found here.

Fourth Court of Appeals holds no jurisdiction exists for ex-councilmember to sue after office was declared forfeit for charter violations – quo warranto is exclusive remedy

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City of Leon Valley v Martinez, 04-19-00879-CV (Tex. App. — San Antonio, August 19, 2020)

This is a suit by an ousted city council member to recover his position. The San Antonino Court of Appeals held the exclusive remedy in this situation was a quo warranto lawsuit brought by the State.

After the City received complaints from several City employees about then councilmember Martinez’s conduct, the City Council investigated the complaints pursuant to the city charter. The City Council held several hearings, received testimony from several witnesses, and ultimately determined that Martinez had violated the city charter. The City Council removed Martinez, appointed a replacement, and the replacement was sworn in and began functioning.  Martinez sued asserting he was denied his due process rights and sought a determination of his right to be reinstated.  The City filed a plea to the jurisdiction, which was denied. The City appealed.

The purpose of a quo warranto action involving officeholders is to determine disputed questions concerning the proper person entitled to hold a public office and exercise its functions. The plain and unambiguous language of the quo warranto statute confers standing to lodge such a challenge on the State, not a private litigant. A quo warranto proceeding is the exclusive remedy to test the right of an officer to hold office. Martinez’s attacks on the type of notice he should have been provided and the number of votes required to remove him must be brought by the State.  As a result, the plea should have been granted.

If you would like to read this opinion click here. The panel consists of Justices Alvarez, Martinez and Rios. Opinion by Justice Alvarez.

 

 

U.S. 5th Circuit holds a board reprimand against an elected official for speech on a matter of public concern is an actionable First Amendment claim under § 1983.

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Wilson v. Houston Community College System, 19-20237 (U.S. 5th Cir. April 7, 2020)

This is a First Amendment/§1983 case where a former member of the board of trustees claimed the College censured him in violation of his First Amendment Rights. The U.S. Fifth Circuit Court of Appeals reinstated the plaintiff’s First Amendment claims but sustained the dismissal of his declaratory and injunction claim.

Houston Community College System (“HCC”) is a public college system in the Houston area. HCC is controlled by a board of nine publicly elected trustees, one of whom was Wilson. Wilson publicly chastised HCC on various occasions for its policy decisions and even filed multiple state court lawsuits including one to prohibit videoconferencing votes as being illegal under the bylaws and in excluding him from meetings. The Board of Trustees held a hearing and issued a censure resolution which  chastised Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. Once censured, Wilson brought §1983 claims under the First Amendment, including declaratory and injunctive relief. The trial court granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction due to a non-distinct injury. In August 2019, Wilson resigned. He was not re-elected.

In the context of free speech, “the governmental action need not have a direct effect on the exercise of First Amendment rights . . . [but] must have caused or must threaten to cause a direct injury to the plaintiffs.” The trial court held the censure did not forbid Wilson from performing his official duties or speaking publicly. Disagreeing with the trial court, the 5th Circuit held  Wilson’s allegation of retaliatory censure is enough to establish an injury in fact.  Further, a free speech violation giving rise to a reputational injury is an injury in fact and properly states First Amendment standing. However, Wilson’s claims for declaratory and injunctive relief regarding the application of the Board’s censure and Code of Conduct are moot given they are no longer live controversies.

If you would like to read this opinion click here. Panel consists of Justices Davis, Smith and Stewart. Opinion by Justice Stewart.

Fort Worth Court of Appeals analyzes the law-of-the-case doctrine and determines private property owners did not establish claims against a city regarding fee simple land ownership

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City of Mansfield, et al., v Saverings, et al, 02-19-00174-CV (Tex. App. – Fort Worth, July 16, 2020)

In this lengthy opinion, the Fort Worth Court of Appeals holds certain private property owners did not establish a right to declaratory relief regarding fee-simple ownership of lots over which the City exercised some regulatory control, asserting they were public paths.

A developer filed a final plat in Tarrant County, creating a planned housing development—The Arbors of Creekwood – Gated Community (the Development) located in the City, but which had two HOAs. An amended plat divided the lots into R1 and R2 lots. All R2 lots were in the floodplain, which was governed by City ordinance. The developer created a lake and connected jogging paths ending at the lake. The developer testified the paths were for public use.  The boundary line for the R2 lots abutting the lake was to the north of the lake; thus, the lake was not included within the boundaries of these R2 lots. The developer executed a declaration of covenants, conditions, and restrictions (the Declaration) for the Development and filed them in Tarrant County. The Declaration stated the HOAs owned fee-simple title to private streets in the Development and “common properties” which had a complicated definition. In 1997, the Arbors HOA forfeited its right to do business and became a terminated entity. The surviving HOA asserted the Arbors HOA property lots (R2) automatically transferred to it. In January 2012, the City began planning for a “possible future trail connection” to the jogging path. Construction on the bridge began in 2013 and opened on January 25, 2014. Some owners of R1 lots noticed an increase in people using the jogging path and trespassing on the R1 lots. The R1 owners sued seeking a declaration they owned the R2 lots as common properties, and seeking to quiet title The Court of Appeals issued an interlocutory opinion in review of a temporary injunction noting the R2 lots were included in the definition of “common properties.” The R1 Owners also raised claims against the City Defendants for trespass and inverse condemnation.  The City Defendants filed a traditional and no-evidence motion for summary judgment, including arguments that the facts and law had substantially changed since the interlocutory order. They argued the R1 owners did not have a right to possess the R2 lots (which were originally owned by the defunct HOA) and that they did not have a private right to enforce a city ordinance on floodplain development. The trial court denied the City Defendants’ motions and granted the partial summary judgment of the R1 owners. The City Defendants appealed.

The court first went through a detailed analysis of the evidence submitted, objections to the evidence, and what constituted judicial admissions. The court held the law-of-the-case doctrine only applied to claims fully litigated and determined in a prior interlocutory appeal; it did not apply to claims that have not been fully litigated. The law-of-the-case doctrine is flexible and directs the exercise of court discretion in the interest of consistency but does not limit its power.  The interlocutory opinion (which was a complicating obstacle) did not address the R1 Owners’ UDJA claim regarding title to the R2 lots, only a probable right of relief for trespass claims based on an undeveloped record. The court noted they were substantially different arguments, issues, law, and review standards. [Comment: For a good analysis of the doctrine and its boundaries, read this section of the case.]  The City argued the R2 lots owned by the defunct HOA could be distributed only under the terms of the articles of incorporation and could not pass to the live HOA automatically. The court agreed with the City that the R1 owners did not establish a proper conveyance under the articles.

Next the court turned to the floodplain ordinance, where the R1 owners asserted the City failed to follow its own ordinance by obtaining studies before constructing structures in the floodplain connecting the jogging paths. The City Defendants’ argument no private cause of action to enforce the ordinance exists is one of standing. The R1 Owners did not challenge the validity of the ordinance but rather asserted that they wanted a construction of the ordinance and enforcement of it against the City Defendants. The R1 Owners did not have a right to enforce the ordinance through a UDJA claim, which only waives immunity for ordinance invalidation.  Alternatively, under the record, the R1 owners did not establish the City violated the ordinance. The City Defendants proffered summary-judgment evidence raising a fact issue on their substantial compliance.  Finally, since the court held the R1 owners could not bring a UDJA claim, the attorney’s fee award was reversed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Gabriel and Kerr.  Opinion by Justice Gabriel.

Austin Court of Appeals holds no vested rights for zoning changes related to square foot of use ratio

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River City Partners, Ltd. V City of Austin, 03-19-00253-CV (Tex. App. —  Austin, June 4, 2020).

This is a vested rights/Chapter 245 challenge suit where the Austin Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

In 1986, River City’s predecessor in title applied to rezone the property to the Community Commercial classification and the  City approved with some conditions.  In April 2003, the property owner applied to the City for approval to create an eight-lot commercial subdivision.  While the application was pending the City passed its zoning ordinance.  The City then approved the plat.  Fast forward to 2017, aware that its plans exceeded the zoning ordinance limits on use size in relation to the building, River City sought an exemption on the ground that the ordinance conflicted with the 1986 Covenants. When the City denied the request, River City Partners sued for declaratory and injunctive relief asserting the City must apply the regulations in effect at the time of the application. The City filed a plea to the jurisdiction which was granted.  River City Partners appealed.

Under Chapter 245 of the Texas Local Government Code, a vested right will attach to a project rather than a permit holder and follow any conveyances or transfers of rights related to the project. River City’s as-applied challenge is consistent with parts of Chapter 245 that apply on a project-by-project basis.  However, Chapter 245 “does not apply to,” municipal zoning regulations unless they affect certain categories, including building size.   Section 245.004 also does not employ similar language or even include the term “project” so the project-based analysis is not applicable. So, the question becomes does the restriction qualify as a zoning regulation on “building size.” The court interpreted the LDC provisions as they applied to the entire code and not simply in isolation.  The City’s LDC required that uses not exceed a certain ratio of gross floor area to gross site area. However, the LDC does not prohibit multiple uses within the same building and therefore River City failed to establish the LDC affected building size, only use size. Since Chapter 245 only waives immunity for applicable vested rights, and River City failed to establish a possible vested right, the trial court was without jurisdiction. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Rose, and Justices Triana and Smith.

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals

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Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

Texas Supreme Court holds a lack of immunity for coronavirus is not a “disability” for purposes of mail-in election ballots

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In re State of Texas, 20-0394 (Tex. May 27, 2020)

This is a mail-in ballot case. The great folks at the Texas Municipal League already summarized this case, and I try not to duplicate any summaries they beat me to. Their summary is found here and was issued May 28, 2020.

However, since not everyone may have seen the summary and it affects multiple entities, I’ve included this condensed version.

Essentially, the Texas Attorney General filed the lawsuit directly with the Supreme Court, seeking to prevent clerks and other election officials from allowing mail-in ballots for those fearful of contracting the virus responsible for COVID-19. Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances, one being the voter is disabled by statutory definition. The Court emphasized that it takes no side in what is the best policy, as that is for the Legislature. Its job is to interpret the language of the Election Code. Based on the language provided, the Court held  “…a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face.”  As a result, it declined to issue a mandamus against any officials, noting the Court was confident they would comply with the law in good faith, now that the Court has clarified the statutory language.

If you would like to read this opinion, click here. Chief Justice Hecht delivered the opinion of the court. Justices Guzman, Boyd and Bland delivered separate concurring opinions.

U.S. 5th Circuit adopts 1st Amendment unbridled discretion/prior-restraint standards in federal suit against Texas Governor

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Freedom from Religion Foundation, Inc. v. Greg Abbott Governor of the State of Texas, 18-50610, (5th Cir – April 3, 2020)

This is a First Amendment case regarding immunity and viewpoint discrimination where the U.S. 5th Circuit adopted a specific prior restraint test.

The Texas State Preservation Board (“the Board”) is a state agency that preserves and maintains the Texas Capitol and its grounds. Governor Abbott is the chairman of the Board, which allows private citizens to display exhibits within the Texas Capitol building. Such displays must have a public purpose. FFRF is a non-profit organization that advocates for the separation of church and state and educates on matters of nontheism. FFRF learned that a Christian nativity scene had been approved by the Board and displayed in the Texas State Capitol. FFRF submitted an application to the Board regarding a Bill of Rights nativity exhibit, which was also approved. FFRF’s depiction was displayed, but the day before its final display date, Governor Abbott sent a letter to then Executive Director of the Board, Mr. Welch, urging him to “remove this display from the Capitol immediately.” The letter explained that the exhibit was inappropriate for display because “[s]ubjecting an image held sacred by millions of Texans to the Foundation’s tasteless sarcasm does nothing to promote the morals and the general welfare,” “the exhibit promotes ignorance and falsehood insofar as it suggests that George Washington, Benjamin Franklin, and Thomas Jefferson worshipped (or would worship) the bill of rights in the place of Jesus[.]”  This letter resulted in the removal of the FFRF display prior to its scheduled removal date. When FFRF submitted another application for the same display, it was told the display did not promote a public purpose. FFRF sued for declaratory and injunctive relief.  The district court granted FFRF summary judgment on certain grounds and denied it on others.  The parties appealed/cross-appealed.

Governor Abbott and Mr. Welsh argue that the district court’s declaratory judgment is retrospective and therefore barred by sovereign immunity (including 11th  Amendment immunity). They further asserted no prospective relief was proper because the dispute is not ongoing. A litigant may sue a state official in his official capacity in federal court as long as the lawsuit seeks prospective relief to redress an ongoing violation of federal law. FFRF alleged constitutional violations against Abbott and Welsh in their official capacities. Further, they established an ongoing violation and Abbott and Welsh did not technically appeal the viewpoint discrimination finding. Speech cannot be prohibited on the basis of offensiveness, and the defendants have only presented arguments through counsel that their behavior will change.  The district court had jurisdiction to entertain the suit, and the controversy is ongoing.  The district court did not, however, have jurisdiction to award FFRF purely retrospective relief.  The declaration that FFRF’s rights were violated in the past is prohibited to the extent it is an individual claim. The U.S. 5th Circuit remanded for the trial court to determine proper prospective relief.  Next, the court analyzed the unbridled discretion arguments regarding public purpose determinations (i.e. prior restraint arguments). Unbridled discretion runs afoul of the First Amendment because it risks self-censorship and creates proof problems in as-applied challenges. Even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment. However, in situations such as where space is limited, certain discretion should be afforded. Because discretionary access is a defining characteristic of a limited public forum, the government should be afforded more discretion to use prior restraints on speech in limited public forums than in traditional public forums. The possibility (including imposed checks and balances) of viewpoint discrimination is key to deciding unbridled discretion claims in the context of limited or nonpublic forums. A reasonableness test would be insufficient, by itself.  In a matter of first impression for the 5th Circuit, the court held that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, the issue was remanded.

If you would like to read this opinion click here. Panel consists of Davis, Graves, and Higginson, Circuit Judges. Vacated and Remanded in part; Reversed and Remanded in part. Memorandum Opinion by Higginson, Circuit Judge. Attorney for Appellant is Kyle Douglas Hawkins, of Austin, Texas. Attorney for Appellee is Samuel Troxell Grover, of Madison, Wisconsin.