County must sue AG, not individual concealed handgun license holder, in dispute over courthouse sign says 1st District Court of Appeals

Quote

 

Terry Holcomb, Sr. v. Waller County, 01-16-01005-CV, (Tex. App. – Houston [1st Dist.], March 15, 2018)

This is a concealed handgun/courthouse civil suit where the First District Court of Appeals reversed a declaratory judgment for the County.

The Waller County Courthouse houses civil and criminal courts as well as County offices. Outside, the County has a sign, pursuant to Penal Code §30.06, indicating it is a criminal violation for a concealed handgun license holder to enter the Courthouse carrying a concealed handgun.  Holcomb, a license holder, followed the procedure in Tex. Gov’t Code §411.209(a), to put the County on notice he believed the sign was used improperly since it prohibited carrying a handgun in all areas of the courthouse, not just areas accessible to the courts. In response Waller County sued Holcomb seeking a declaratory judgment his interpretation of the statute was incorrect. The trial court denied Holcomb’s plea to the jurisdiction and granted the County’s requested relief. Holcomb appealed.

Holcomb’s letter to Waller County providing notice of an ostensible violation of §411.209(a) is the basis for the County’s suit against him. As a matter of law, however, writing a letter to a political subdivision to complain about perceived unlawful action does not create subject-matter jurisdiction. Holcomb had a statutory right to notify the County of his contention. Even in the absence of a statute, he had a constitutional right to complain. Holcomb’s letter therefore does not constitute a redressable wrong. Further, no harm has befallen the County due simply to the letter. Since the Texas Attorney General has the exclusive right to seek enforcement, any legal dispute over the lawfulness of the County’s signage would be between the County and the Attorney General, not Holcomb. Waller County effectively sought and obtained a declaratory judgment in its favor as to its disagreement with the Attorney General without making him a party. Because only the Attorney General has the authority to decide whether a suit for violation of §411.209(a) is warranted, he was a necessary party and the judgment rendered in his absence was an impermissible advisory opinion. Finally, since the County utilized the suit to impact Holcomb’s statutory and constitutional right to complain about perceived unlawful action, it’s actions entitled Holcomb to attorney’s fees under the Citizens Participation Act. The declaratory judgment of the trial court is reversed, and the case is remanded for the sole purpose of awarding Holcomb attorney’s fees.

Justice Jennings concurred regarding the lack of subject-matter jurisdiction for the County to sue Waller. However, he dissented as to the remand, noting that if no jurisdiction exists, the trial court could not grant the motion to dismiss under the CPA. It would be improper for the trial court to award attorney’s fees in such a case.

If you would like to read this opinion click here. Justice Jennings concurring and dissenting opinion can be found here. Panel: Justice Jennings, Justice Bland and Justice Brown. The attorney listed for Holcomb is Thomas Edwin Walker. The attorney’s listed for the County are Elizabeth Dorsey
Sean Whittmore.

Austin Court of Appeals holds parts of Texas Highway Beautification Act unconstitutional

Quote

 

Auspro enterprises, LP v. Texas Department of Transportation,03-14-00375-CV (Tex. App— Austin , August 26,2016)

In this case the Austin Court of Appeals held unconstitutional part of the Texas Highway Beautification Act (“Act”) in light of the U.S. Supreme Court’s decision last term in Reed v Town of Gilbert.  It is a twenty-nine-page opinion.

Auspro Enterprises, LP, placed a sign supporting Ron Paul’s 2012 presidential campaign on its property on State Highway 71 West in Bee Cave, Texas.  Texas Department of Transportation (“TxDOT”) sent a letter to Auspro explaining that its sign was “illegal” because all outdoor signs must be permitted and, although there is a specific exemption under Department rules for political signs, the exemption only allows political signs to be displayed 90 days before and 10 days after an election. After Auspro failed to remove the sign, the Department brought an enforcement action for injunctive relief and civil penalties. In response, Auspro asserted that the Act and TxDOT’s implementing rules violate, both facially and as applied, Auspro’s right to free speech under the U.S. and Texas constitutions.  The trial court found for TxDOT and Auspro appealed.

The Austin Court of Appeals performed an analysis of the Reed case and determined it “refined its framework for analyzing ‘content based’ regulations of speech” and holding, “[a] law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus.” This framework marks a significant departure from the content-  neutrality analysis used by the Texas Supreme Court.

The government regulation of speech addressed in Reed was a sign ordinance that banned the display of outdoor signs in any part of the Town of Gilbert, Arizona without a permit. The ordinance included exemptions from the permit requirement for 23 different categories of signs including political speech signs and ideological signs. The Supreme Court, explained that a law can be content based in either of two ways: (1) by distinguishing speech by the topic discussed; and (2) where the government’s purpose or justification for enacting the law depends on the underlying “idea or message expressed.”  “Both are distinctions drawn based on the message a speaker conveys, and, therefore, are  subject to strict scrutiny.”

Born from a mid-1960s initiative to clean up the nation’s roads, the federal Highway Beautification Act of 1965 requires states to regulate “outdoor advertising” “in areas adjacent to the Interstate System” or risk losing ten percent of their federal highway funding. The Texas Legislature passed the Texas Highway Beautification Act in 1972 to comply with the federal act’s mandate.  Analyzing the Act’s exemptions, the court held the Act was content based. Several of the exemptions are the same as those analyzed in Reed. The Act is therefore subject to a strict scrutiny analysis. To survive such an analysis TxDOT has to demonstrate that the Act’s differentiation between types of signs furthers a compelling governmental interest and it is narrowly tailored to that end. The Department acknowledges that it cannot do this and the court agreed. Additionally, TxDOT’s adopted rules regarding the exemptions likewise cannot withstand the holding in Reed. Finally, the court analyzed the problematic portions of the Act and invoke the Texas severability statute found in the Code Construction Act.  Essentially the court found Subchapters B and C unconstitutional and carved out the remaining sections of the Act as being untouched by the opinion.

If you would like to read this opinion click here. The Panel includes Chief Justice Rose, Justice Pemberton, and Justice Field. Chief Justice Rose delivered the opinion of the court. Attorney for Auspro is listed as Ms. Meredith B. Parenti.  The attorneys listed for TxDOT are Mr. Matthew H. Frederick and Mr. Douglas D. Geyser.

City’s billboard registration fee determined to be unconstitutional tax

Quote

Reagan National Advertising of Austin, Inc. d/b/a Reagan National Advertising v. City of Austin, Texas; and Marc A. Ott, being sued in his Official Capacity 03-15-00370-CV (Tex. App.- Austin, June 15, 2016)

This is a case to determine whether a billboard registration fee was a unconstitutional tax. The court held the fee was an fact a tax and unconstitutional.

Reagon owns and operates various billboards subject to the City’s registration requirements. The City raised the registration fee from $110 per year to $200 per year but had no studies or surveys to support the increase. Afterwards, several City employees conducted surveys and determined the costs could be covered in a range from $140 per year to $352, although Reagan had an expert opinion noting the proper costs should be closer to $42 per year. Reagon sued in federal court. However, the federal judge determined that since the fee actually qualified as a “tax” the federal court lacked jurisdiction to rule on a state tax under the Tax Injunction Act. After the federal judge dismissed the case, Reagon sued in state court. After a bench trial the trial court dismissed Reagon’s claims and Reagon appealed.

The first issue addressed was whether Reagon was precluded by the statute of limitations to bring suit. The Court of Appeals held under Tex. Civ. Prac. & Rem. Code Sec. 16.064 Reagon filed suit 60 days after the federal judgment “became final.” While the federal court signed the judgment in 2011, the City’s motion for new trial extended the deadline to determine finality. Once the motion for new trial was denied, the judgment became final 30 days afterwards, which then started the 60 day deadline (i.e 90 days after motion for new trial is denied). Therefore the limitations is tolled. Next the court determined that since the federal judge had to make a determination as a matter of law that the registration fee was a tax in order to determine jurisdiction, that issue was fully and vigorously litigated in federal court. Therefore, the state court is precluded by res judicata from reconsidering that issue. And since no statute authorizes such a tax, the tax is unconstitutional.

To read the opinion click here. Panel consists of Chief Justice Rose, Justice Pemberton and Justice Field. Justice Field issued the Memorandum Opinion. Attorney for Marc A. Ott, being sued in his Official Capacity is Ms. Patricia L. Link. Attorneys for Reagan National Advertising of Austin, Inc. d/b/a Reagan National Advertising are Ms. Elizabeth Von Kreisler, Mr. B. Russell Horton and Ms. Taline Manassian. Attorneys for the City of Austin are Mr. Henry Gray Laird III and Ms. Patricia L. Link.

U.S. Supreme Court holds sign code noting permit exceptions for political signs, temporary signs, and ideological signs is unconstitional

Quote

Reed v Town of Gilbert, 13-502 (U.S. June 18, 2015).

This is a sign code case in which the U.S. Supreme Court invalidated the Town’s code as being content based and could not survive strict scrutiny.

The Town of Gilbert (“Town”) has a sign code which prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs, including “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs,” defined as signs directing the public to a church or other “qualifying event”  but could only be up for 12 hours.  Good News Community Church (“Church”) held service in different locations, but would put up signs noting the church, time of service, and location. The signs would stay up for just over 24 hours.  The Town issued citations and the Church brought suit in response. The trial court and court of appeals held the signs were content neutral and denied the Church’s relief.

Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Based on this definition, the three categories at issue here are all content based as it is the subject matter of the message conveyed which triggers the different regulations. Providing a comparative example, the court noted “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.” Courts are to consider the facial neutrality prior to analyzing the justifications for any distinctions. Once designated as content-based, the offered reasons for the Town’s ordinance (aesthetics and traffic safety) are “hopelessly underinclusive” and therefore fail under strict scrutiny.

Justice Alito’s concurring opinion lists a large variety of areas still open to cities in order to perform content neutral regulations including structure, on vs off-premise, electronic v fixed, etc. Justice Breyer’s concurring opinion simply discussed why using strict scrutiny can be a problem sometimes, but is justified. Justice Kagan’s concurring opinion on the judgment essentially notes that because of the automatic application of strict scrutiny (which he disagrees with), many sign ordinances across the nation will probably be struck down. However, for this case, he thought the judgment was proper.

[Comment: See Tex. Loc. Gov’t Code Ann. § 216.903 (West 2003) – prohibiting regulations of political signs by cities and the implications of this opinion on the statute].

If you would like to read these opinions click here. THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, ALITO, and SOTOMAYOR, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY and SOTOMAYOR, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. KAGAN, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined

Changing tri-display billboard to LED billboard is a reconstruction and not merely a change in “electrical wiring or devices” so required a permit

Garrett Operators, Inc. v. City of Houston, 01-13-00767-CV (Tex. App. – Houston [1st Dist.], January 22, 2015)

Garrett Operators, Inc. (“Garrett”) filed a declaratory judgment action against the City of Houston (“the City”) regarding the application and interpretation of the City’s Sign Code as it pertains to Garrett’s LED lighted billboard.  The complexity of the case turns on the fact Garrett previously sued and his claims were dismissed as not yet ripe for his failure to get approval to change his Billboard to LEDs. After his claims became ripe (i.e. he received a final decision from the administrative sign body), he sued the City, but the City’s Sign Code had been amended. Garrett claimed that any application of the 2008 amendments to him was a violation of the Texas Constitution’s prohibition against retroactive laws.  The parties submitted opposing summary judgments to the trial court, which granted the City’s motion and denied Garrett’s.

The court first addressed whether the tolling provision of Tex. Civ. Prac. &  Rem. Code § 16.064 (Vernon 2008) for the refiling of the same suit within 60 days applies. The court held that §16.064 should be construed with §16.068, which permits amended or supplemental pleading to relate back to the date of the original filing. Here, Garrett’s claims are not based on a different transaction or occurrence but the same set of circumstances. The City was unable to establish the “intentional disregard” doctrine for county court jurisdiction since the inverse condemnation claims in the original suit were not inherently intertwined. [Comment: essentially the court held the transactions were the same, but the claims were not inherently intertwined.] As a result, the tolling applied and Garrett did not miss the statute of limitations. The retroactive law argument required the court to analyze whether Garrett was required to obtain a permit for “changing” the sign to LEDs or whether a permit was not required under the code because he was merely changing the “ornamental features, electrical wiring or devices, or display.” After examining Garrett’s own evidence, the court determined this type of extensive change to the sign goes beyond merely changing the “electrical wiring and devices.”  As a result, the proposed conversion from a tri-display billboard to a LED-display billboard was not merely a change to the “electrical wiring and devices,” but was a reconstruction or alteration requiring a permit. And since he had not vested right to change the sign without a permit under the prior law, the retroactivity argument is not applicable. Additionally, since no permit application was filed until 2011, the Chapter 245 “vested rights” argument is also not applicable. As a result, the trial court properly granted the City’s summary judgment motion.

If you would like to read this opinion click here. Panel: Chief Justice Radack, Justice Bland and Justice Huddle. Opinion by Chief Justice Radack. The attorneys listed for Garrett Operations, Inc. are Richard L. Rothfelder  and Sydney N. Floyd. The attorneys listed for the City of Houston are John B. Wallace and Hope E. Hammill-Reh.

City could not use zoning regulation to deny sign registration says Austin Court of Appeals

National Media Corporation and Anchor Equities, Ltd. v. City of Austin, 03-12-00188-CV (Tex. App. – Austin, August 27, 2014).

This is a board of adjustment case involving a sign permit. The Austin Court of Appeals reversed the granting of the City’s summary judgment motion and remanded.

The court does not go into much factual detail and only references facts relating to the analysis.   This makes the analysis difficult to apply to other situations, however, some use of the opinion is possible. National Media Corporation and Anchor Equities (“Plaintiffs”) contend the City’s zoning code regarding “abandonment of non-conforming use” was improperly used to deny a sign registration permit and the Board of Adjustment abused its discretion when it affirmed the denial. The trial court granted the City’s summary judgment motion and the Plaintiffs appealed.

The court noted that an entity acts arbitrary and capriciously when it acts in a way or enforces regulations that do not give a party the ability to “know what is expected of them in the administrative process.”  Based on the City’s previous history of using the sections and the wording of the various codes (which the court does not provide) the panel simply states the Plaintiffs could not have known or expected the City to use that zoning provision to deny the sign registration application.  In other words, the panel thought the City’s use of that section (whatever it was) was a stretch to try and apply. The court then stated that under statutory construction principles, the code sections are not related to each other or have the same general purpose so should not be interpreted together. The zoning regulations and the sign ordinance were not designed to interconnect. The sign regulations are specific in nature designed to regulate signs and their usage/placement while the zoning regulation being argued is general and makes no reference to signs. As a result, the specific controls over the general and the more recent controls over the older. The City applied the wrong ordinance and the City and Board abused its discretion in denying the application. The summary judgment is reversed and the case is remanded.

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Puryear and Justice Goodwin.  Memorandum Opinion by Justice Puryear. The attorneys listed for the appellants are Mr. Kurt H. Kuhn, Mr. Eric B. Storm, and Ms. Lisa Bowlin Hobbs.  The attorney listed for the City is Ms. Chris Edwards.

Billboard company can sue for inverse condemnation even though it failed to exhaust admin remedies

City of Grapevine and Grapevine Board of Adjustment v. CBS Outdoor, Inc., 02-12-00040-CV (Tex. App. – Fort Worth, September 19, 2013).

The City of Grapevine and its Board of Adjustment appealed the order denying its plea to the jurisdiction relating to an appeal from a BOA decision on an outside advertising billboard. After the Second Court of Appeals originally reversed the denial in an earlier opinion, CBS requested a rehearing and rehearing en banc. The court denied both requests, but withdrew the prior opinion and issued this one.

The State of Texas condemned property along Highway 114 for an expansion. The CBS billboard support pole was not located on the condemned property, but aerially encroached over the property so the State included CBS in the condemnation suit. The billboard was non-conforming and grandfathered, but therefore could not be altered, remodeled, etc. without losing its grandfather status under City regulations. The City denied CBS’ request to shift the sign out of the encroachment but CBS did it anyway asserting it was merely performing maintenance. The City ordered CBS to remove the sign and CBS filed for a variance with the BOA which denied the request.   CBS appealed to district court but also brought requests for injunctive relief, inverse condemnation, constitutional challenges and a variety of other claims. The trial court denied the City’s plea to the jurisdiction as to all claims.

The court first went through an analysis of whether CBS timely appealed since it appealed the variance denial, not the denial of the shifting of the sign. The City asserted the shifting decision had to be appealed since it informed CBS it could not alter the sign without losing grandfathered status. The prior opinion agreed with the City’s characterization and was a point of contention in CBS’ motion for rehearing. The court clarified its holding that when the City denied the request to shift the sign, it did not say “we deny your request to shift the sign” it said “you cannot move, alter, or adjust the sign.”  Failing to appeal that decision, with is broader terms and determinations, CBS is now prevented from filing another request in an attempt to revive the lapsed deadline. Further, since the trial court lacks jurisdiction for judicial review of the BOA order (denying shifting) it also lacks jurisdiction for injunctive relief.

However, the court held since the appeal from the BOA could not have mooted an inverse condemnation claim it did not have to be exhausted before filing such a claim. [Personally, I think that’s contrary to the spirit of the Supreme Court’s holding in Dallas v Stewart, even though the court tried to distinguish it]. Further, even though the State condemned the property, its regulations would have allowed the sign to be shifted and it was the City’s regulations which prevented shifting.  The court next went through a flip-flop analysis but ultimately held the trial court lacked jurisdiction over CBS’ due process claims.  CBS’ claim for declaratory relief is nothing more than a recast of its appeal from the BOA, which is barred.  Finally, the City retains immunity from a claim for attorney’s fees. In the end, the court sustained the denial of the inverse condemnation claim (and remanded for trial) and dismissed all other claims.

If you would like to read this opinion click here.

City not liable for forcing removal of billboard on City property says 12th Court of Appeals.

 

Lamar Advantage Outdoor Company, L.P. v. The City of Tyler, NO. 12-12-00257-CV (Tex. App. – Tyler, May 22, 2013).

This is a billboard case where Lamar sought compensation for the required removal of a billboard pursuant to Tex. Loc. Gov’t Code Chapter 216.  The trial court dismissed Lamar’s claims in an order on the City’s plea to the jurisdiction and summary judgment motion and Lamar appealed.

Lamar owned a billboard on private property within City limits under a ten year land lease.  The City purchased the property from the original land owner and when the lease ran out, the City, as the new owner, demanded the billboard’s removal. Lamar removed the billboard but sought compensation for the sign’s value.  The City argued that Chapter 216 was designed for a situation where the City amends a regulation or ordinance requiring the removal of a lawfully placed billboard and must therefore compensate the billboard owner for its value.  Here, the City had no such regulation and was nothing more than a new property owner who desired the removal after the land lease had expired. The Twelfth Court of Appeals agreed. Since no regulatory removal was present, no jurisdiction under Chapter 216 existed.

If you would like to read this opinion click here.