Third Court of Appeals holds church’s motion for new trial in water rate EDJA case held valid given unique and troubling circumstances in case


City of Magnolia v Magnolia Bible Church, et al., 03-19-00631-CV (Tex. App. – Austin, Dec. 18, 2020)

This is an interlocutory appeal from an order granting a new trial and denying a plea to the jurisdiction in a water rate case in which the Austin Court of Appeals affirmed the granting of new trial and the denial of the City’s plea.

This case involves the interplay between the provisions of the Expedited Declaratory Judgment Act (“EDJA”)(which deals with public securities), the Texas Rules of Civil Procedure, and the constitutional principles of due process. The City adopted an ordinance relating to the City’s water-system rates. In addition to residential and commercial accounts, the ordinance created a new category of water user, the “Institutional/Non-Profit/Tax-Exempt accounts,” which, among others, covered churches.  The Churches opposed the new category and surcharge as being discriminatory under the Tax Code and the Texas Religious Freedom Restoration Act (“TXRFRA”).  The City preemptively filed a validation suit under the EDJA to validate the bonds and rates tied to the bonds, but only notified the public through newspaper publications. It did not expressly notify the church of the suit. The trial court granted the City’s validation of the rates. The Church later filed a regular Uniform Declaratory Judgment Act (“UDJA”) claim asserting the rates were discriminatory. When the City informed the Church of the final judgment under the EDJA claim, the church filed a motion for new trial in the EDJA trial court (under Tex. R. Civ. P. 329). The City filed a plea to the jurisdiction asserting the trial court lost plenary power over the case.  The trial court denied the plea and granted the motion for new trial. The City appealed.

Chief Justice Rose held that due process does not require personal service in all circumstances, but any use of substituted notice in place of personal notice—e.g., notice by publication—must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Notice by publication is insufficient when the name, address and interest are known.  The EDJA empowers an issuer of public securities to seek an expedited declaratory judgment concerning “the legality and validity of each public security authorization relating to the public securities,” including, as relevant here, the legality and validity of “the imposition of a rate, fee, charge, or toll.” Tex. Gov’t Code § 1205.021(2)(E). Ordinarily, notice by publication satisfies due process as to the parties bound by an EDJA judgment because the EDJA permits only in rem declarations concerning property rights and is notice to the public. However, in this case, the church challenged the application under religious freedom grounds.  Due process, therefore, requires more than notice by publication. Because notice to the Churches was constitutionally insufficient, the resulting judgment was void and can be challenged at any time. Justice Trianna took a slightly different approach, using the text of the EDJA and holding that it does not conflict with Rule 329 (allowing a new trial for persons who did not receive notice) and Rule 329 extends the plenary power of the court for a certain period of time.  Since the Church met the time periods under Rule 329, it was within the trial court’s discretion to grant or deny the motion or new trial.

Justice Baker’s dissent holds that such an interpretation undermines the intent of the EDJA which is to quickly decide the issue then preclude future claims from any other person who challenges the rate and bond applications.   He asserts Rule 329 only applies when a defendant (not an interested person) does not appear after service by publication.

If you would like to read the various opinions, Chief Justice Rose’s concurring opinion is here, Justice Trianna’s concurring opinion is here, and Justice Baker’s dissent is here.

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


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.


City immune from claims it misapplied its own ordinances or procedures, but not for TOMA claims



Peter Schmitz, et al v. Town of Ponder, Texas, et al. 02-16-00114-CV, (Tex. App. – Fort Worth, May 10, 2018).

This is a substituted opinion. Summary of original opinion found here. This is an appeal from a final judgment against the Plaintiffs who attempted to force the Town to enforce its zoning laws against other property owners.

In 2014 the Denton County Cowboy Church (“Church”) purchased property zoned single family residential under the Town of Ponder’s zoning ordinance.  The Church’s property is adjacent to the Plaintiffs’ property. According to Ponder’s comprehensive plan, the Plaintiffs’ properties are designated for future low-density residential zoning. In 2015 the Church began construction of an arena. The Town issued a building permit for an open arena. Plaintiffs sued the Church and Town of Ponder, seeking injunctions prohibiting the Church from continuing construction. They also brought claims under §1983 for due process, takings, and equal protection violations. The Town and Church both filed pleas to the jurisdiction which the trial court granted. The Plaintiff appealed.

The Uniform Declaratory Judgment Act (“UDJA”) does not waive immunity of a governmental entity when no ordinance is being challenged. The City maintains immunity for claims seeking a declaration of the claimant’s statutory rights or over a claim that government actors have acted outside the law—ultra vires. However, the majority of the Plaintiff’s requested declarations would establish that the Town, not the individual committee or council members, violated or misapplied its own ordinances or procedures, rendering its actions arbitrary and unreasonable. The Town maintains immunity from such claims. The ordinances further did not waive the Town’s immunity by authorizing suit for enforcement.  With no UDJA claim, requests for permanent injunction are also not viable. Liability against a governmental unit for private-nuisance injuries arises only when governmental immunity is clearly and unambiguously waived, which is not the case here. However, immunity is waived under the Texas Open Meetings Act (“TOMA”) so the TOMA claims are remanded. The court stressed that the waiver of immunity under TOMA does not apply to the extent Plaintiffs seek more than injunctive relief or a declaration that the Town’s actions were voidable under TOMA only. Under Plaintiffs’ §1983 claims, a regulatory taking can occur when governmental action unreasonably interferes with a landowner’s use and enjoyment of his property. However, the Plaintiffs claims challenge the process in which the Town enforced its ordinances, not the substance of the enforcement. Plaintiffs have no protected property interest in the manner in which the Town enforced or failed to enforce its ordinances against the Church, rendering their claim under § 1983 not viable. And while the Town argued RLUIPA preempted their enforcement of certain matters of the ordinances, RLUIPA does not implicate jurisdiction so is not proper to raise in a plea. The court then analyzed the claims against the Church and ultimately held some claims survived and were remanded.

If you would like to read this opinion click here. Panel consists of Justice Gabriel and Justice Pittman. Memorandum Opinion by Justice Gabriel. The attorneys listed for the Plaintiffs are Gregory Sawko and Robert E. Hager.  The attorneys listed for the Town are Matthew Butler and John F. Boyle Jr.

Neither appraisal district nor religious organization established entitlement to MSJ on tax exemption question regarding elderly housing, so full case remanded says 1st Court of Appeals


National Church Residences of Alief, TX v. Harris County Appraisal District, 01-15-00900-CV (Tex. App- Houston [ 1st Dist.] August 9, 2016)

This is a tax exemption case where the First District Court of Appeals reversed the trial court’s order denying a religious organization’s exemption from taxation because it helped senior citizens with their housing as part of a federally-subsidized housing program.

This is a 28-page opinion, so the summary is a bit long.  National Church Residences of Alief (“NCR”) is a non-profit 501(c)(3) which owns a 62-unit apartment complex. NCR obtained financing from the Department of Housing and Urban Development (“HUD”) to develop the Property into low-income rental housing for either elderly or disabled persons.  Pursuant to the program, a tenant would pay a portion of the monthly rent, calculated under HUD’s formulas depending on the tenant’s income, and HUD would pay the remainder. NCR had a published eviction policy, providing that, if a tenant fails to pay his non-subsidized portion of the rent they could be evicted. NCR applied for an ad valorem exemption from taxation.  HCAD took the position that NCR was not providing its residents with housing or other services without regard to the residents’ ability to pay because tenants were required to pay some rent and security deposits. NCR filed suit in district court, seeking judicial review of HCAD’s denial of its request for a property-tax exemption.  The trial court granted HCAD’s motion for summary judgment, denied NCR’s summary judgment and NCR appealed.

Texas Tax Code §11.18(d)(3) states an entity is entitled to property tax exemptions if it was “providing support without regard to the beneficiaries’ ability to pay to . . . elderly persons.” NCR also claimed that it was entitled to an exemption under §11.18(d)(13) because it was “providing permanent housing and related social, health care, and educational facilities for persons who are 62 years of age or older without regard to the residents’ ability to pay.” Id. § 11.18(d)(13). NCR asserted the requirements tenants make some level of payment is not their policy, but is instead HUD requirements, and that NCR must follow these requirements before it can permit a resident to rent an apartment. NCR asserted no resident pays the full market value rent out of his or her own funds. Instead, the amount that each resident pays is determined by a HUD formula.  HCAD asserts NCR charged security deposits and partial rent making it ineligible for the exemption. The Court of Appeals utilized various statutory constructions principles in applying the Tax Code to NCR’s situation. The court held a resident’s ability to pay the deposit and other obligations is not the focus of the NCR policies, but are instead, HUD regulations. The HUD handbook makes clear that the significance of the security deposit is to protect the landlord from any costs, resulting from a tenant’s breach of the lease. The security deposit remains in a separate interest-bearing account until the tenancy ends. Should the resident comply with the lease, the security deposit is refunded. Further, the eviction policy must be viewed in light of other resolutions of NCR, including the one which held it would assist any tenant who could not pay with other forms of assistance. As a result, the court held HCAD did not show as a matter of law that NCR should be denied the exemption. However, after a long analysis of NCR’s summary judgment, the court concluded the evidence is insufficient to demonstrate it was entitled to the exemption. In other words, both parties were not entitled to summary judgment so the case is remanded for trial.

If you would like to read this opinion click here. The Panel: Justice Higley, Justice Bland, and Justice Massengale. Justice Higley delivered the opinion of the court.  Attorneys for the Appellant are Tanya Nicole Garrison, Donald. T Keller Jr., and Misty Gasiorowski. Attorneys for the Appellee are Denis Potvin, and Eric C. Farrar.

Policy against preaching Christian beliefs in class is not evidence of religious discrimination says Austin Court of Appeals

Dr. James Jones v. Angelo State University, 03-14-00112-CV (Tex. App. – Austin, December 18, 2015).

This is a religious discrimination/failure-to-accommodate in employment dispute where the Austin Court of Appeals affirmed in part and reversed in part the granting of the summary judgment filed by Angelo State University (“University)”.

Jones was an associate professor in the Computer Science Department. Under Jones’ contract, he could be reappointed or “not non-reappointed” at the end of each school year. Jones identifies himself as “an active evangelical Christian” and maintains that “it is his religious practice to identify himself as an evangelical Christian and to share his faith with others.” Jones would engage in this practice by making a religious statement to his students at the beginning of the first class of the semester and at the end of the last class of the semester.   This resulted in a written complaint from a student in 2006 because of which Jones was counseled. After, the University documented a decline in performance by Jones and an increase in complaints and poor student evaluations. Jones was not reappointed for the 2009-2010 school year. He sued. The University filed several dispositive motions which ultimately dismissed all of Jones’ claims. Jones appealed the summary judgment order dismissing only his religious discrimination/failure-to-accommodate claims.

An employer commits an unlawful employment practice if, because of the employee’s religion, the employer “fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment.” Tex. Lab. Code §21.051(1). Additionally, §21.108 provides that an employer engages in religious discrimination if it fails to make reasonable accommodations for the religious observances of its employees. The University moved for summary judgment on Jones’s discriminatory discharge claim noting Jones could not provide any direct proof of discriminatory intent and could not establish a prima facie case of disparate treatment.  The University asserted any policy requirement that Jones not make religious preaching in class was not directed at his religion but on his practice of teaching. The court agreed the evidence did not substantiate discriminatory intent based on Jones’ religious beliefs. Additionally, Jones did not present any evidence a member outside his protected class was treated more favorably (i.e. that the University hired a non-Christian). The trial court properly granted summary judgment on the discrimination claim. However, that did not address the failure-to-accommodate claim. The court sidestepped the issue a bid by holding the summary judgment motion did not actually challenge the failure-to-accommodate claim the way it was written. And since a court cannot grant a motion for summary judgment on a ground not raised in the motion, it was error to dismiss such claim. [Comment: the court noted in dicta that while the request to stop preaching in class was not evidence of discriminatory intent, it could be viewed as a failure-to-accommodate.]

If you would like to read this opinion click here. Chief Justice Rose, Justice Goodwin and Justice Field.  Memorandum Opinion by Justice Field.  The attorney for Jones is listed as Mr. Frank Gilstrap.  The attorneys for the University are listed as Mr. David C. Mattax, Ms. Erika M. Kane and Mr. Daniel C. Perkins.

Religious freedom plaintiffs’ claims are moot after ISD altered policy says Beaumont Court of Appeals.

Kountze Independent School District v. Coti Matthews, 09-13-00251-CV (Tex. App. — Beaumont, May 8, 2014).

This is a religious freedom case brought to the court of appeals as an interlocutory appeal from the denial of a plea to the jurisdiction.  The parents of several cheerleaders (“Parents”) brought suit after the school prohibited the cheerleaders from including religious-theme messages on the run-through banners. The trial court denied Kountze Independent School District’s (“KISD”) plea to the jurisdiction and granted, in part, the Parent’s motion for summary judgment. The KISD appealed.

The cheerleaders would normally create run-through banners which the team would run through and destroy as it entered the field. In 2012 the squad decided to include biblical messages to provide a positive message of encouragement for the team and fans. Afterwards, the superintendent received a complaint from the Freedom from Religion Foundation complaining about the practice, which promptly resulted in the ban.  The Parents asserted the “ban on banners” violated Chapter 106 (discrimination in governmental programs) and Chapter 110 (TxRFRA). While going through the factual background the court, in a foot note, held that due to the procedural history of the case and evidence presented, the Parents could not maintain a clam for any damages, including nominal. Only prospective relief is permissible.

KISD asserts the Parents’ claims are moot because after the lawsuit was filed, the KISD board initiated legislative proceedings to examine the issue and obtain community information resulting in the passage of a resolution holding the ban on religious banners is not required under the law as long as the messages are displaying fleeting expressions of community sentiment, even if the source is of a religious nature. Under Texas Supreme Court precedent, a challenge to a policy or official action can become moot if the statute, policy, or action is repealed or fundamentally altered. After a lengthy examination of this precedent, the court held the new resolution addressed the Parents’ concerns and rendered the challenge moot. The court determined the alleged wrongful acts are not likely to be repetitious and no collateral consequences are apparent. As a result, the trial court erred in denying the plea. However, under the Uniform Declaratory Judgment Act, the Parents may still be entitled to attorney’s fees since their actions resulted in the new Resolution. The claim of attorney’s fees was therefore remanded.

If you would like to read this opinion click here. Panel: Chief Justice McKeithen, Justice Kreger, and Justice Horton. Memorandum opinion by Justice Kreger. The main attorneys listed for the Parents are Prerak Shah, David W. Starnes, and James Ho.  The main attorneys listed for KISD are Joshua Alan Skinner and Tom Brandt.  A listing of all attorneys and amici can be found on the docket page of the case here.

Legislative prayer at city council meetings has historical support, ceremonial purpose and is permissible says U.S. Supreme Court.

Town of Greece v. Galloway, 12-696 (U.S. May 5, 2014)

This is a First Amendment/Establishment Clause case where citizens challenged the Town’s use of a particular prayer at council meetings. The trial court dismissed the claims, but the 2nd Circuit reversed. The U.S. Supreme Court reversed the 2nd Circuit and upheld the dismissal by the trial court.

The Supreme Court began by noting legislative prayer, while religious in nature, has long been compatible with the Establishment Clause. The Town of Greece, NY, would invite local clergymen to deliver invocations at meetings. The informal selection was always limited to unpaid volunteers. The Town at no point excluded or denied an opportunity to a would-be prayer giver. However, from 1999 to 2007, nearly all of the prayer givers ended up being of the Christian faith. The Plaintiffs sued under the Establishment Clause, did not seek an end to the prayer sessions but only that the sessions be limited to “inclusive and ecumenical” prayers referencing only a “generic God.”  The trial court granted summary judgment, the 2nd Circuit reversed, and the Supremes’ granted certiorari.

The Court went through some history of the Establishment Clause noting the First Congress had legislative prayers and that they considered such a benign acknowledgment of religion’s role in society, not a specific endorsement of religion.  The historical use of legislative prayer supports its presence in legislative procedures.  However, any such practice must fit within the traditions followed in Congress in order to be upheld. The prayer need not be generic or nonsectarian.  However, some restrictions do apply. “The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites law­makers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threatened damnation or preach conversion, such does not serve the purpose or history of legislative prayer.”  The Town’s legislative prayers were open to all prayer givers and remained within the confines of permissible prayer. The fact the majority of prayer givers were Christian only demonstrates the level of its presence in the community, not an endorsement. So long as the Town remains non-discriminatory, it is not required to search beyond its borders for other religious prayer givers in an effort to achieve religious balancing.

If you would like to read this opinion click here. The majority, plurality, concurrence, and dissent, bounce back and forth between sections of the opinion.  However, in the end it was a 5-4 decision with Justices Kennedy, Roberts, Alito, Scalia, and Thomas making up the majority upholding legislative prayer and Justices Breyer, Kagan, Ginsburg, and Sotomayor making up the dissent. A list of attorneys and amici can be found on the docket entry listed here.


Federal employee can potentially wear sword to work as religious symbol says 5th Circuit.

Tagore v. United States of America No. 12-20214 (5th Cir. November 13, 2013).

This is a religious freedom case which, even though the case deals with federal agency compliance, the analysis is helpful for local government RLUIPA and TxRFRA land use matters.

Plaintiff Tagore (“Tagore”) was refused permission to wear a kirpan (a Sikh ceremonial sword) with a blade long enough to be considered a “dangerous weapon” under federal law inside the federal building where she worked for the Internal Revenue Service (“IRS”). Tagore sued the United States and various federal agencies and employees, alleging violations of her religious rights. The trial court granted the defendants’ summary judgment and Tagore appealed. The 5th Circuit reversed and remanded her for further development of evidence concerning the government’s compelling interest in enforcing against this plaintiff (and yes the opinion actually underlined the emphasis).

In April 2005, Tagore participated in an Amrit Sanskar ceremony, pursuant to which she was formally initiated into the Sikh faith. Following the ceremony, Tagore began wearing the five articles of the Sikh faith, including an approximately 9- inch sword. Her supervisor advised she needed to seek a security waiver. She provided a letter from the Sikh Coalition noting the sword as a mandatory article of faith. The IRS convened a working group to try and resolve the conflict and went to some surprising lengths for accommodation; however, none were satisfactory to Tagore. Tagore did reduce the blade length to 3.5 inches in length, but it still violated security regulations. Ultimately, Tagore was terminated. She sued but the trial court ruled against her on cross-motions for summary judgment and she appealed.

On appeal, Tagore asserts that her evidence creates a genuine issue of material fact concerning the sincerity of her religious practice. The sincerity of a plaintiff’s belief in a particular religious practice is an essential part of the plaintiff’s prima facie case. The 5th Circuit held that the “sincerity” in espousing that practice is largely a matter of individual credibility.  As a result, she provided sufficient evidence to create a fact question on her sincerity.  Further, while protecting federal buildings is a compelling interest, the law requires government to explain how applying the statutory burden “to the person” whose sincere exercise of religion is being seriously impaired furthers the compelling governmental interest. The evidence established that regulations could be excepted and had in the past to allow for Kirpans in other federal buildings, so the matter needed to be remanded for consideration of Tagore’s specific circumstances.  The Title VII analysis centered on the fact that other agencies control security regulations, not the IRS (so it could not be deemed legally responsible) and the IRS proved its affirmative defense that it could not accommodate her without undue hardship. Costly accommodations would place the religious practitioner in a more favorable position, at the employer’s expense, than her coworkers. Further, more than de minimus adjustments could require coworkers unfairly to perform extra work to accommodate the plaintiff.  As a result, the trial court did not error in dismissing the Title VII claims.  So, the religious freedom RFRA claims were remanded and the Title VII claims were dismissed.

If you would like to read this opinion click here.