Odutayo d/b/a Samaritan Park and Ride v City of Houston NO. 01-12-00132-CV (Tex. App. – Houston [1st Dist] April 18, 2013).
Odutayo leases parking spaces and golf carts to customers attending Reliant Stadium. In 2011 a golf cart driver was ticketed citing that the carts were “taxis” and were not registered or inspected. Odutayo brought equal protection challenges stating that Texas Transportation Code §§551.402 and 403 (stating that golf carts can only be used on limited public right-of-ways including roadways with 35 mph speed limits or under) were unconstitutionally applied to her and sought an injunction to allow her continued leasing. The trial court granted the City’s plea to the jurisdiction which Odutayo appeals. The Houston Court of Appeals for the First District affirmed.
The court held that to establish a selective enforcement claim, a plaintiff must show that she has been singled out for prosecution while others similarly situated and committing the same acts have not. However, it is not sufficient to show that the law has been enforced against some and not others but plaintiff must also show that the governmental entity has purposefully discriminated on the basis of some impermissible considerations. Since Odutayo did not allege any “purposeful” discrimination based on an impermissible consideration, she failed to state a claim and immunity applied. Further, Odutayo failed to plead what specific property right or liberty interest, if any, is involved, or what process is due to her, so immunity still applied.
With regards to the Uniform Declaratory Judgment Act (“UDJA”), since Odutayo did not properly plead any constitutional claims, no declaratory relief is permitted. Further, under Heinrich, since she did not sue the officials for ultra vires actions, only the City, the city remains immune. And since the underlying constitutional claims could not be brought, the trial court did not error by refusing to allow an amendment to add the officials in their official capacity.
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