No. 02-17-00384-CV

In the Second District Court of Appeals

Fort Worth, Texas

THE CITY OF EL PASO, TEXAS,

Appellant,

v.

MAX GROSSMAN,

Appellee.

On Interlocutory Appeal from the 348th Judicial District Court of El Paso County, Texas

Cause No. 2017DCV2528 

REPLY BRIEF OF APPELLANT

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 listed 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 Paso, Texas 79901 

Telephone: (915) 533-4424 

Facsimile (915) 546-5360 

Wallace B. Jefferson

State Bar No. 00000019 

wjefferson@adjtlaw.com 

ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP

515 Congress Avenue, Suite 2350 

Austin, Texas 78701-3562 

Telephone: (512) 482-9300 

ATTORNEYS FOR APPELLANT

ORAL ARGUMENT REQUESTED

ACCEPTED

02-17-00384-cv

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

12/20/2017 10:43 AM

DEBRA SPISAK

CLERK

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 12/20/2017 10:43:16 AM DEBRA SPISAK Clerk
2

TABLE OF CONTENTS

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 191, 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 into 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 .............................................................................................. 18
3

INDEX OF AUTHORITIES

Page(s)

Cases

Atkins v. Carson,

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) ..............................................................................14
4

Statutes

TEX. NAT. RES. CODE ANN. § 191.094(b)..................................................................5

TEX. NAT. RES. CODE ANN. § 191.173.......................................................................9

TEX. NAT. RES. CODE ANN. § 191.0525(a) ....................................................9, 10, 13

Regulations

13 TEX. ADMIN. CODE § 29.4(25) ......................................................................12, 13

Other Authorities

Tex. Att’y Gen. LO-94-076 (1994)....................................................................11, 14
5

RESPONSE TO STATEMENT OF FACTS

The first few pages of Grossman’s Statement of Facts, an appeal to sympathy, 

have no bearing on the primary legal issue—the proper interpretation of Chapter 

191. Although the City disputes many of these allegations, it will address three 

specific 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. 

Appellee at viii, 3-4. But Chapter 191 only requires a city to give the Texas Historical 

Commission timely notice of plans to build on local public land. The 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 TEX. NAT. RES. CODE ANN. § 

191.094(b) (“No site may be designated on private land without the written consent 

of the landowner or landowners ...”). And because, as Grossman concedes, private 

owners seek to demolish their own buildings, the Commission has no injunctive 

power. 

Second, the City plans to build a Multi-Purpose Performing Arts and 

Entertainment Center in Downtown El Paso, as approved by more than 70 percent 
6

of El Paso voters in 2012. CR566, 596, 610. As Grossman notes, there is a bondvalidation 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 activities will 

occur in that facility; it will not be designed or built as an exclusively 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. CR12, 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 Parte 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

SUMMARY OF ARGUMENT

The Declaratory Judgment Act does not waive governmental immunity for 

Grossman’s claims. Grossman does not confront the Supreme 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, 621 (Tex. 2011) (per curiam). Instead, 

Grossman relies on an earlier opinion that did not answer the question presented 

here. 

The 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 applies 

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 because 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 the notice provision. Because notice is not required under these 

undisputed facts, there can be no waiver of governmental immunity.
8

ARGUMENT

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. 

The Supreme Court of Texas resolved the question in a later decision, Tex. 

Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). In Sefzik 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 621. The Court 

explained:

[T]he state may be a proper party to a declaratory judgment 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 applies to political subdivisions of the state. Cty. of El Paso 

v. Navar, 511 S.W.3d 624, 634 (Tex. App.—El Paso, 2015, no pet.); Bexar-Medina-
9

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, *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 violation 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 chapter. TEX.

NAT. RES. CODE ANN. § 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 

Commission. TEX. NAT. RES. CODE ANN. § 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 

demolish a building on land it owns. The City understands that obligation and will 

comply when that circumstance arises. But Grossman’s assertion about “breaking 

ground” concerns 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.

Chapter 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.” TEX. NAT. RES. CODE ANN. § 191.0525(a). The

only alleged “breaking ground” concerns the demolition of buildings on private 

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 Commission has rejected Grossman’s interpretation.

With regard to this project, the Texas Historical Commission has itself 

observed that notice is only required “before breaking ground on public property.”

RR4 at 5 (Ex. 1); see also CR657 (same letter). The Commission 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 Commission to 

intervene” in his legal proceedings, but it has declined that invitation. CR9, 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 deference. “Construction of a 

statute by the administrative agency charged with its enforcement 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 subject 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 other 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, the property here is not public land under Chapter 191. It will 
12

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 public 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 TEX.

ADMIN. CODE § 29.4(25)). Grossman’s argument is flawed for several reasons. 

First, the Antiquities Code supersedes administrative rules. The 

Commission’s administrative rules must comport with the Antiquities Code and may 

not exceed the scope of powers expressly 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 state 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 owned by the City, even if it 

were arguably controlled by the City. 

Second, the administrative rule only applies to “non-federal public lands.” 13 

TEX. ADMIN. CODE § 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 controlled” modifies the 
13

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 City.2 See

TEX. NAT. RES. CODE ANN. § 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 administrative 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 

to sell their property to the City does not convert their property into is “local public 

land.” The only relevant fact is undisputed—the City does not own the property. 

Because “public land” as used in Chapter 191 refers solely to land that the City owns, 

there cannot be a violation or threatened violation of Chapter 191. 

B. Equitable 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 equitable rights in the property that trigger the notice 

provision. Br. Appellee at 24-27. This is wrong for the same reasons 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 become public land. Tex. Att’y 

Gen. LO-94-076 (1994) at 3. Land must be owned 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 term “owner,” as used in 

the Tax Code. Br. Appellee at 25 (citing Comerica Acceptance 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 did 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 sale 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 holds 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. “Only 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, only after the purchase price has been paid does a 

purchaser have the “present 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 conveys neither equitable nor legal 

title. Club Corp. of Am. v. Concerned 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. The City has neither legal nor equitable title, nor 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 title 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 threatened 

violation of Chapter 191. There is no waiver of governmental immunity and the trial 

court lacked jurisdiction over Grossman’s claims. 

PRAYER

The City prays that the Court reverse the trial court’s denial of the City’s plea 

to the jurisdiction and render judgment 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) 212-0034

/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 Paso, Texas 79901

Telephone: (915) 533-4424

Facsimile (915) 546-5360

Wallace B. Jefferson

State Bar No. 00000019

wjefferson@adjtlaw.com

ALEXANDER DUBOSE

JEFFERSON & TOWNSEND LLP

515 Congress Avenue, Suite 2350

Austin, Texas 78701-3562

Telephone: (512) 482-9300

Facsimile: (512) 482-9303

Robert B. Dubose

State Bar No. 00787396

rdubose@adjtlaw.com

ALEXANDER DUBOSE

JEFFERSON & TOWNSEND LLP

1844 Harvard Street

Houston, Texas 77008

Telephone: (713) 523-2358

Facsimile: (713) 522-4553

ATTORNEYS FOR APPELLANT
18

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2016, 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

CERTIFICATE OF SERVICE

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 Hobbs

KUHN HOBBS PLLC

3307 Northland Drive, Suite 310

Austin, Texas 78731

Lisa@KuhnHobbs.com

Karlene Poll

KUHN HOBBS PLLC

2310 Rutland Street

Houston, Texas 77008

Karlene@KuhnHobbs.com

Harriet O’Neill

LAW OFFICE OF HARRIET O’NEILL, PC

919 Congress Avenue, Suite 1400

Austin, Texas 78701

HONeill@harrietoneilllaw.com

Francis S. Ainsa, Jr.

AINSA HUTSON HESTER & CREWS LLP

5809 Acacia Circle

El Paso, Texas 79912

fain@acaciapark.com

/s/Mark N. Osborn

Mark N. Osborn