No. 02
- 17
- 00384
- CV

In the Second District Court of Appeals Fort Worth , Texas

T HE C ITY OF E L P ASO , T EXAS , Appellant,

v. M AX G ROSSMAN , Appellee.

On Interlocutory Appeal from the 348th Judicial District Court of El Paso County, Texas Cause No. 2017DCV2528

R EPLY B RIEF OF A PPELLANT

Sylvia B. Firth, City Attorney FirthSB @elpasotexas.gov Maria Guadalupe Martinez Senior Assistant City Attorney MartinezMG@elpasotexas.gov Sergio M

. Estrada Assistant City Attorney EstradaSM@elpasotexas.gov P.O. Box 1890 El Paso, Texas 79950-1890 Telephone: (915) 212-0033 Facsimile: (915) 212-0034 Additional counsel li sted in signature block Mark N. Osborn mark.osborn@kempsmith.com Shelly W. Rivas shelly.rivas@kempsmith.com Kemp Smith LLP 221 N. Kansas, Suite 1700 El Pas o, Texas 79901 Telephone: (915) 533-4424 Facsimile (915) 546-5360
Wallace B. Jefferson State Bar No. 00000019 wjefferson@adjtlaw.com A LEXANDER D UBOSE J EFFERSON & T OWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 A TTORNEYS FOR A PPELLANT O RAL A RGUMENT R EQUESTED ACCEPTED 02-17-00384-cv SECOND COURT OF APPEALS

FORT WORTH, TEXAS 12/20/2017 10:43 AM DEBRA SPISAK CLERK2 T ABLE OF C ONTENTS Table of Contents

................................ ................................ ................................ ...... 2 Index of Authorities

................................ ................................ ................................ .. 3 Response to Statement of Facts

................................ ................................ ................ 5 Summary of Argument

................................ ................................ ............................. 7 Argument

................................ ................................ ................................ ................... 8 I. The Declaratory Judgment Act does not waive governmental immunity for Grossman’s claims.

................................ ............................ 8 II. Because Grossman cannot show a violation or threatened violation of Chapter 19 1, it does not waive governmental immunity for Grossman’s claims.

................................ ................................ ................... 9 A. Control of the property at issue is not relevant to determining whether Chapter 191’s notice provision has been triggered.

......... 9 1. The property is privately

- owned.

................................ ....... 10 2. The Commission has rejected Grossman’s interpretation.

................................ ................................ ..... 10 3. The Attorney General has concluded that land destined to be “public” in the future is not “public land.”

............... 11 4. “Control” cannot convert private property i nto public land.

................................ ................................ .................... 12 B. Equitable rights in the property also do not trigger Chapter 191’s notice provision.

................................ ................................ . 13 Prayer

................................ ................................ ................................ ...................... 16 Certificate of Compliance

................................ ................................ ....................... 18 Certificate of Service

................................ ................................ .............................. 183 I NDEX OF A UTHORITIES
Page(s) Cases Atkins v. Car son , 467 S.W.2d 495 (Tex. Civ. App.

— San Antonio 1971, writ ref’d n.r.e.)

................................ ................................ ................................ ................... 15 Bexar

- Medina

- Atascosa Ctys. Water Control and Improvement Dist. No. 1 v. Bandera Cty. River Auth. and Groundwater Dist. , No. 04

- 16

- 00536

- CV, 2017 WL 4014703 (Tex. App.

— San Antonio, Sept. 13, 2017, pet. filed (on other grounds)) (mem. op.)

..................... 8 Club Corp. of Am. v. Concerned Prop. Owners for April Sound , 881 S.W.2d 620 (Tex. App.

— Beaumont 1994, writ denied)

............................. 15 Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist. , 52 S.W.3d 495 (Tex. App.

— Dallas 2001, pet. denied) (en banc)

................ 14 , 15 Cty. of El Paso v. Navar , 511 S.W.3d 624 (Tex. App.

— El Paso, 2015, no pet.)

................................ ......... 8 Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs. Comm’n , 452 S.W.3d 479 (Tex. App.

— Austin 2014, pet. dism’d)

................................ ... 12 Hydroscience Techs., Inc. v. Hydroscience, Inc. , 401 S.W.3d 783 (Tex. App.

— Dallas 2013, pet. denied)

................................ .... 15 Tarrant Appraisal Dist. v. Moore , 845 S.W.2d 820 (Tex. 1993)

................................ ................................ .............. 11 Tex. Dept. of Transp. v. Sefzik , 355 S.W.3d 618 (Tex. 2011) (per curiam)

................................ ....................... 7 , 8 Tex. Educ. Agency v. Leeper , 893 S.W.2d 432 (Tex. 1994)

................................ ................................ ................ 8 Tex. Turnpike Co. v. Dallas Cty. , 271 S.W.2d 400 (Tex. 1954)

................................ ................................ .............. 144 Statutes T EX
. N AT
. R ES
. C ODE A NN . § 191.094(b)

................................ ................................ .. 5 T EX
. N AT
. R ES
. C ODE A NN . § 191.173

................................ ................................ ....... 9 T EX
. N AT
. R ES
. C ODE A NN
. § 191.0525(a)

................................ .................... 9 , 10 , 13 Regulations 13 T EX
. A DMIN
. C ODE § 29.4(25)

................................ ................................ ...... 12 , 13 Other Authorities Tex. Att’y Gen. LO

- 94

- 076 (1994)

................................ ................................ .... 11 , 145 R ESPONSE TO S TATEMEN T OF F ACTS The first few pages of Grossman’s Statement of Facts , an appeal to sympathy, have no bea ring on the primary legal issue

— the proper interpretation of Cha pter 191. Although the City disputes many of these allegations, it will address three specifi c fact issues here. First, Grossman frames this case as an attempt to save allegedly historically significant buildings in Downtown El Paso from demolition under Chapter 191 of the Texas Natural Resources Code, the “ Antiquities Code.” CR10

- 12, 22 ; Br. App ellee at viii, 3

- 4. But Chapter 191 only requires a city t o give the Texas Historical Commission timely notice of plans to build on local public land. Th e question here is whether the City must notify the Commission when a private owner elects to demolish a building

. Even if the City were required to provide such notice, the Commission does not have the power to designate a landmark and halt demolition on private land without the owners’ consent

. See T EX
. N AT
. R ES
. C ODE A NN . § 191.094(b) ( “No site may be de signated on private land without the written consent of the landowner or landowners ...” ). And because, as Grossman concedes , private

owners seek to demolish the ir own buildings, the Commission has no injunctive
power . Second, the City plans to build a Mult i

- Purpose Performing Arts and Entertainment Center in Downtown El Paso, as approved by more than 70 percent6 of El Paso voters in 2012

. CR566, 596, 610. As Grossman notes, there is a bond

validation suit in Austin concerning the construction of the Center. Appellee at 1. In that suit, the trial court affirmed that “[t]he City may lawfully expend proceeds generated from the sale of the Bonds” to construct a “Multi

- purpose Performing Arts and Entertainment Facility located in Downtown El Paso... .” 1 Many activiti es will occur in that facility; it will not be designed or built as an exclusive ly sports venue

or arena. Third, despite Grossman’s predictions, none of the properties located within the Center’s footprint have a historical designation or registration. CR 12, 611, 632. None enjoy any special protection from the Commission or under the Antiquities Code. CR611.

1 Final Judgment, No. D

- 1

- GN

- 17

- 001888, Ex P arte City of El Paso, In the 250th Judicial District Court of Travis County, Texas. That Final Judgment is at Appendix Tab 1 to the Brief of Appellant City of El Paso, available at http://www.search.txcourts.gov/Case.aspx?cn=03

- 17

- 00566

- CV&coa=coa03

.7 S UMMARY OF A RGUMENT The Declaratory Judgment Act does not waive governmental immunity for Grossman’s claims. Grossman does not confront the Suprem e Court’s holding in Sefzik that “the UDJA does not waive the state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights under a statute or other law.” Tex. Dept. of Transp. v. Sefzik , 355 S.W.3d 618, 62 1 (Tex. 2011) (per curiam )

. Instead, Grossman relies on an earlier opinio n that did not answer the question presented
here

. T he Antiquities Code also does not waive immunity for Grossman’s claims. The only part of the Code implicated in this suit is its notice provision . It appli es only to public land

— that is, land the City owns

. In this case, Grossman admits that the buildings at issue are privately owned . Grossman thus argues:

• the notice provision also applies to land “controlled” by the City;

• the City “controls” the land becau se it has contracts with the private owners to purchase it; and

• therefore, the City must provide the Commission notice before private owners demolish their buildings. A fundamental flaw in Grossman’s logic cannot be overcome: “control” does not trigger t he notice provision. Because notice is not required under these undisputed facts , there can be no waiver of governmental immunity.8 A RGUMENT I. The Declaratory Judgment Act does not waive governmental immunity for Grossman’s claims. Grossman’s argument for jurisdiction over his declaratory

- judgment claims rests solely on Texas Education Agency v. Leeper , 893 S.W.2d 432 (Tex. 1994). But Leeper did not decide the issue here . None of the governmental entities in Leeper raised the issue of governmental immunity under the Declaratory Judgment Act when the plaintiff is not challenging the validity of a statute. Id. at 440.
T he Supreme Court of Texas resolve d the question in a later decision, Tex. Dept. of Transp

. v. Sefzik , 355 S.W.3d 618, 620 (Tex. 2011). In Sefz ik the Court held “the UDJA does not waive the state’s sovereign immunity when the plaintiff seeks a declaration of his or her rights under a statute or other law.” Id. at 62 1 . The Court explained: [T]he state may be a proper party to a declaratory judgmen t action that challenges the validity of a statute.... But Sefzik is not challenging the validity of a statute; instead he is challenging TxDOT’s actions under it, and he does not direct us to any provision of the UDJA that expressly waives immunity for his claim. Id. at 622. Although the City’s Brief cited Sefzik , Grossman has yet to confront it

. Compare Br. of Appellant at 9 with Brief of Appellee at 34

- 35. Grossman also fails to discuss two subsequent court of appeals decisions confirming that Sefzik appl ies to political subdivisions of the state. C ty. of El Paso
v. Navar , 511 S.W.3d 624, 634 (Tex. App.

— El Paso, 2015, no pet.); Bexar

- Medina

-9 Atascosa C tys. Water Control and Improvement Dist. No. 1 v. Bandera Cty. River Auth. and Groundwater Dist. , No. 04

- 16

- 00536

- CV, 2017 WL 4014703, *2 (Tex. App.

— San Antonio, Sept. 13, 2017, pet. filed (on other grounds) ) (mem. op. ). Grossman’s causes of action under the UDJA should be dismissed for lack of subject matter jurisdiction.
II. Because Grossman cannot show a viola tion or threatened violation of Chapter 191, it does not waive governmental immunity for Grossman’s claims. Chapter 191’s waiver of governmental immunity permits injunctive relief only when there has been a violation or a threatened violation of that chapt er . T EX
. N AT
. R ES
. C ODE A NN . § 191.173 (West 2011). To establish a violation or a threatened violation, Grossman must show that the City, before “breaking ground at a project location on state or local public land” failed to notify the Historical Commissio n. T EX
. N AT
. R ES
. C ODE A NN
. § 191.0525(a) (West 2011). Without a violation or threatened violation of Chapter 191, as a matter of law, there can be no waiver of governmental immunity. A. Control of the property at issue is not relevant to determining whether Chapter 191’s notice provision has been triggered. Chapter 191’s notice requirement is triggered only when the City plans to demolis h a building on land it owns

. The City understands that obligation and will comply when that circumstance arises

. But Grossm an’s assertion about “breaking ground” concern s demolition of land by private owners of their private land.10 Grossman concedes this

. CR16

- 17 (asserting that the City is requiring the sellers to demolish the property)

. 1. The property is privately
- owned. Chapt er 191 provides , “[b]efore breaking ground at a project location on state or local public land, the person primarily responsible for the project or the person’s agent shall notify the committee.” T EX
. N AT
. R ES
. C ODE A NN . § 191.0525(a). The only alleged “br eaking ground” concerns the demolition of buildings on pri vate property by their private owners ; hence there is no “breaking ground” planned or occurring on “state or local public land.” Id

. The City has no notice obligation under Chapter 191

. 2. The Commiss ion has rejected Grossman’s interpretation. With regard to this project, t he Texas Historical Commission has itself observed that notice is only required “before bre aking ground on public property.”
RR 4 at 5 (Ex. 1) ; see also CR 657 (same letter)

. The Commi ssion has advised the City that no action is currently necessary under Chapter 191 because “ [w] e realize that the subject property has not been acquired by the city and that the facility has not been designed yet

. ...” Id . Further , Grossman has “invited the C ommission to intervene” in his legal proceedings , but it has declined that invit ation. CR 9, n.1 . As the Commission’s actions show, there is no threatened violation of the Chapter 191 notice obligation.11 The Commission’s interpretation is entitled to deferen ce . “Construction of a statute by the administrative agency charged with its enf orcement is entitled to
serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.” Tarrant Appraisal Dist. v. Moore , 845 S.W.2d 820, 823 (Tex. 1993). 3. The Attorney General has concluded that land destined to be “public” in the future is not “public land.” This interpretation of Chapter 191 has been confirmed by the Texas Attorney General. Tex. Att’y Gen. LO

- 94

- 076 (1994) ( Appendix to Br. Appellant , Tab 2 ) . In that letter opinion, the Attorney General determined that the Antiquities Code does not permit the Commission to treat land destined in the future to become public land

as the equivalent of public land. “There is currently no provision in the Antiquities Code for treating nonpublic land as public land, or for taking into account the fact that such land may become public land in the future.” Id. at 3 . Even land dedicated to become public land does not become sub ject to the Antiquities Code until it is owned by the state or its political subdivision: For the reasons stated above, we conclude that the only public land in a municipal utility district is that land belonging to the district (or the state or some othe r political subdivision). Therefore, land dedicated to streets and utility lines is subject to the Antiquities Code as public land only if it belongs to the municipal utility district. Id. Even though the private property owners have entered into contracts to sell their property to the City, t he property here is not public land under Chapter 191 . It will12 not become public land until the City has purchased the property and is the owner holding legal title. 4. “Control” cannot convert private property into publ ic land. Relying on an Administrative Code provision, Grossman asserts that the property is public land under Chapter 191 because the City allegedly controls the land through its contracts to purchase the property. Br. Appellee at 18 (citing 13 T EX
. A DMIN
. C ODE § 29.4(25)). Grossman’s argument is flawed for several reasons. First, the Antiquities Code supersedes administrative rules. T he Commission’s administrative rules must comport with the Antiquities Code and may not exceed the scope of powers expressl y granted or necessarily implied by that
statute. See Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs.
Comm’n , 452 S.W.3d 479, 482 (Tex. App.

— Austin 2014, pet. dism’d). Because “public land” under Chapter 191 is limited to land owned by the s tate or one of its political subdivisions, the Commission’s rules cannot expand the authority of the Commission to include authority over land that is not owne d by the City, even if it were arguably controlled by the City. Second, the administrative rule only applies to “non

- federal public lands.” 13
T EX
. A DMIN
. C ODE § 29.4(25) (“Public lands

– means non - federal public lands that are owned or controlled by the State of Texas or any of its political subdivisions....”). Under the rule, the phrase “owned or contr olled” modif ies the13 preceding noun phrase “non

- federal public lands.” Id

. Thus, whatever “owned or controlled” means, it applies only to “non

- federal public lands , ” which under Chapter 191 is limited solely to land that is owned, in this instance, by the C ity. 2 See
T EX
. N AT
. R ES
. C ODE A NN
. § 191.0525(a). If the title to land is not presently held by the City, as title to the property is not, then the modifying words of the Rule “owned or controlled” have no application to the land. In other words, the admin istrative rule neither applies here, nor does it trump the plain language of Chapter 191

. Because it is not a basis for the Chapter 191’s notice requirement, “ control ” is not relevant . The fact that the private property owners have entered into contracts
t o sell their property to the City does not convert their property into is “local public land

. ” The only relevant fact is undisputed

— t he City does not own the property.
Because “public land ” as used in Chapter 191 refers solely to land that the City owns , t here cannot be a violation or threatened violation of Chapter 191

. B. E quitable rights in the property also do not trigger Chapter 191’s notice provision. Grossman argues in the alternative that the City’s purchase contracts with private owners gives it equi table rights in the property that trigger the notice provision. Br. Appellee at 24

- 27. This is wrong for the same reason s Grossman’s

2 “Owned or controlled” is perhaps intended to make clear that land that is owned by one political entity, but controlled by another, is public land.14 argument about control is wrong. Chapter 191’s notice provision is triggered only if the City owns the property. Nothing in that statute mentions “equitable” rights . As outlined in the Texas Attorney General opinion , the Antiquities Code does not treat nonpublic land as public land, even if it may later be come public land. Tex. Att’y
Gen. LO

- 94

- 076 (1994) at 3 . Land must be ow ned by the City before Chapter 191 applies

. Additionally, Grossman’s primary authority does not support his argument. Grossman relies on a court of appeals’ interpretation of the te rm “owner, ” as used in the Tax Code. Br. Appellee at 25 (citing Comerica A cceptance Corp. v. Dallas Cent. Appraisal Dist. , 52 S.W.3d 495, 497 (Tex. App.

— Dallas 2001, pet. denied) (en banc) )

. In that case, the court held that a lienholder d id not have an equitable interest sufficient to qualify as an owner. 52 S.W.3d at 497. And here the City’s relationship
to the properties is far less involved than the lienholder in Comerica

. The City does
not hold a lien interest ; it is only a potential buyer of the properties under contingent contracts for sale.
A buyer under a contract of sa le has at “most a right to become the owner of the legal title under certain conditions. Its interest in the property is not a vested interest, [ but ] purely contingent.” Tex

. Turnpike Co. v. Dallas Cty. , 271 S.W.2d 400, 478 (Tex. 1954). Thus , the City hold s at most a contingent interest in the property , not equitable title as Grossman asserts

.15 Grossman also asserts that a purchaser can obtain an equitable right to property before the purchase price has been paid. Br. Appellee at 26 (citing Atkins
v. Carson , 467 S.W.2d 495, 500 (Tex. Civ. App.

— San Antonio 1971, writ ref’ d n.r.e.) ) . But that decision recognized that a purchaser obtains equitable title only when he has “fully performed under the contract.” 467 S.W.2d at 500. “ O nly after the purchase price has been paid and the purchaser has acquired equitable title may he bring an action” against the seller to obtain title to the property. Id. at 501. Other courts have recognized that, o nly after the purchase price has been paid does a purchaser have the “presen t right to compel legal title.” Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 801 (Tex. App.

— Dallas 2013, pet. denied). Mere execution of an agreement between parties convey s neither equitable n or legal title. Club Corp. of Am. v. Concer ned Prop. Owners for April Sound , 881 S.W.2d 620 (Tex. App.

— Beaumont 1994, writ denied). The anticipated sales here have not occurred , and the private property owners have not been paid. T he City has neither legal n or equitable title, n or even an equitable right to acquire legal title to the property , and therefore is not an owner. Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist. , 52 S.W.3d 495, 497 (Tex. App.

— Dallas 2001, pet. denied) ( An owner of property means a “person or entity holding legal t itle to the property, or holding an equitable right to obtain legal title to the property.”)

.16 Because Grossman’s pleadings establish that there is no threatened demolition on public property

— property owned by the City

— there is no violation or threat ened

v iolation of Chapter 191. T here is no waiver of governmental immunity and the trial
court lacked jurisd iction over Grossman’s claims.
P RAYER The City prays that the Court reverse the trial court’s denial of the City’s plea to the jurisdiction and render ju dgment that Grossman’s suit be dismissed.17 Respectfully submitted,
Sylvia B. Firth, City Attorney FirthSB@elpasotexas.gov Maria Guadalupe Martinez Senior Assistant City Attorney MartinezMG@elpasotexas.gov Sergio M. Estrada Assistant City Attorney EstradaSM@elpasotexas.gov P.O. Box 1890 El Paso, Texas 79950

- 1890 Telephone: (915) 212

- 0033 Facsimile: (915) 212

- 0 034 /s/ Mark N. Osborn Mark N. Osborn mark.osborn@kempsmith.com Shelly W. Rivas shelly.rivas@kempsmith.com Kemp Smith LLP 221 N. Kansas, Suite 1700 El Pas o, Texas 79901 Telephone: (915) 533

- 4424 Facsimile (915) 546

- 5360 Wallace B. Jefferson State Bar No. 00000019 wjefferson@adjtlaw.com A LEXANDER D UBOSE J EFFERSON & T OWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701

- 3562 Telephone: (512) 482

- 93 00 Facsimile: (512) 482

- 9303 Robert B. Dubose State Bar No. 00787396 rdubose@adjtlaw.com A LEXANDER D UBOSE J EFFERSON & T OWNSEND LLP 1844 Harvard Street Houston, Texas 77008 Telephone: (713) 523

- 2358 Facsimile: (713) 522

- 4553 A TTORNEYS FOR A PPELLANT18 C E RTIFICATE OF C OMPLIANCE Based on a word count run in Microsoft Word 201 6 , this brief contains 2,658 words, excluding the portions of the brief exempt from the word count under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Mark N. Osborn Mark N. Osborn

C ERTIFICATE OF S ERVICE On December 20 , 2017, I electronically filed this Reply Brief of Appellant with the Clerk of Court using the eFile.TXCourts.gov electronic filing system which will send notification of such filing to the following :

Lisa Bowlin Hobb s K UHN H OBBS PLLC 3307 Northland Drive, Suite 310 Austin, Texas 78731 Lisa@KuhnHobbs.com Karlene Poll K UHN H OBBS PLLC 2310 Rutland Street Houston, Texas 77008 Karlene@KuhnHobbs.com Harriet O’Neill L AW O FFICE O F H ARRIET O’ N EILL , PC 919 Congress Avenue, Su ite 1400 Austin, Texas 78701 HONeill@harrietoneilllaw.com Francis S. Ainsa, Jr. A INSA H UTSON H ESTER & C REWS LLP 5809 Acacia Circle El Paso, Texas 79912 fain@acaciapark.com

/s/Mark N. Osborn Mark N. Osborn