City’s Fight Over River Ordinances Continues

New Braunsfels v STOP, NO. 03-12-00528-CV, Third Court of Appeals (February 21, 2013)

This is an opinion which essentially denied the City’s Plea to the Jurisdiction.   The City had a collection of ordinances designed to limit or eliminate the “over consumption” of alcohol on the rivers which flows through City limits. The ordinances also limited several activities tied to tubing such as the restriction of the use of food or beverages on the river.  The City was sued by several businesses that did business by providing goods or services to patrons of the river. The City filed a Plea to the Jurisdiction asserting the business owners had not properly asserted standing based on their pleadings.  The trial court denied the Plea. The City took an interlocutory appeal.

The Court of Appeals for the Third District held that the business owners had standing to challenge the ordinance. The court seemed a little over focused on the fact the City did not present evidence to rebut the pleadings but relied solely on the facts as plead. This is probably done to limit the applicability of the case so as to not interfere with other cases where ordinances are challenged.

The Plaintiffs allege that they have retail businesses located on or near the Comal and Guadalupe rivers that sold to river-bound customers large quantities of food and beverage products. The court held that as a result, they have standing to challenge the ordinances. The court then addressed a particular plaintiff, Mr. Williams, who did not establish any such connection to river activities.  The Court held that the denial of the Plea as to Williams should be reversed, but the defects are ones which could be cured by properly repleading.

The practical points to take away from this case are the all too familiar catch-22 elements.  The City was in the uncomfortable position of having to decide whether to include evidence in the Plea or not. Evidence should only be included if it can dispute a factual assertion. However, by submitting evidence, the City could create a fact issue which would result in the denial of the Plea. If the City relies solely on the pleadings it must take the factual assertions as true.  The guessing game on this strategic point is simply a roll of the dice. Unfortunately, in this case, the City crapped out.

If you would like to read the opinion, please click here.