____________________ 

NO. 02-16-00114-CV 

____________________ 

IN THE COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH, TEXAS

____________________ 

Peter Schmitz, Sean Pollock and Larry & Becky LaDuke, 

Appellants

v. 

Denton County Cowboy Church and 

the Town of Ponder, Texas, 

Appellees

____________________

APPELLEE TOWN OF PONDER’S RESPONSE TO 

APPELLANTS’ MOTION FOR REHEARING 

____________________ 

On Appeal from the 431st Judicial District, Denton County, Texas; 

Trial Court Cause No. 15-06454-431, the Hon. Jonathan Bailey Presiding 

____________________ 

 Matthew C.G. Boyle 

 State Bar No. 24001776 

 4201 Wingren, Suite 108 

 Irving, Texas 75062-2763 

 (972)650-7100 Phone 

 (972)650-7105 Fax 

 mboyle@boyle-lowry.com 

ACCEPTED

02-16-00114-cv

SECOND COURT OF APPEALS

FORT WORTH, TEXAS

12/19/2017 10:39 AM

DEBRA SPISAK

CLERK

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 12/19/2017 10:39:25 AM DEBRA SPISAK Clerk
IDENTITY OF PARTIES AND COUNSEL 

PLAINTIFFS/APPELLANTS COUNSEL 

 

Peter Schmitz, Sean Pollock, and 

Larry & Becky LaDuke 

Robert E. Hager 

State Bar No. 08689500 

rhager@njdhs.com 

M. Shelby Pearcy 

State Bar No. 24067756 

spearcy@njdhs.com 

500 N. Akard 

Suite #1800 

Dallas, Texas 75201 

Telephone: (214) 965-9900 

Facsimile: (214) 965-0010 

Gregory J. Sawko 

State Bar No. 17692700 

gsawko@dentonlawyer.com 

1172 Bent Oaks Drive 

Denton, Texas 76210 

Telephone: (940) 382-4357 

Facsimile: (940) 591-0991 

DEFENDANTS/APPELLEES COUNSEL 

Town of Ponder, Texas Matthew C. G. Boyle 

State Bar No. 24001776 

mboyle@boyle-lowry.com 

Matthew L. Butler 

State Bar No. 24073984 

mbutler@boyle-lowry.com 

4201 Wingren, Suite 108 

Irving, Texas 75062 

Phone: 972-650-7100 

Fax: 972-650-7105 
Denton County Cowboy Church Lance Vanzant 

Texas Bar No. 24009736 

Lvanzant@hbwvlaw.com 

Dorwin L. Sargent, III 

Texas Bar No. 24088352 

dsargent@hbwvlaw.com 

512 W. Hickory, Suite 100 

P.O. Box 50149 

Denton, Texas 7620 l 

940-387-3518 - Tel. 

866-546-9247 – Fax 

 
1 

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, the Town of Ponder (“Ponder” or the “Town”), Appellee in 

the above entitled and numbered cause, and files this, its Response to Appellants’ 

Motion for Rehearing filed September 29, 2017 (the “Motion”). 

I. SUMMARY OF RESPONSE 

The Ponder Town Council’s rezoning of the Denton County Cowboy 

Church’s (the “Church”) property constituted a valid legislative action and Ponder’s 

governmental immunity has not been waived. Appellants have not and can never 

plead an applicable waiver of Ponder’s governmental immunity based on the 

pleadings and evidence in the record. Appellants seek rehearing based on their 

substantive challenge to Ponder’s rezoning of the Church’s property and a related 

claim that somehow Ponder violated the Open Meetings Act (Chapter 551 Texas 

Government Code). Appellants have failed to meet their burden to establish the 

Court’s jurisdiction and cannot do so now. Appellants’ live pleading is their Fourth 

Amended Petition and the trial court held an all-day evidentiary hearing on all 

matters raised in this appeal on December 30, 2015. Appellants still failed to meet 

its burden to plead an applicable waiver of Ponder’s immunity and the factual 

applicability of any claimed source of waiver. 

There is no record or evidence that Ponder acted in an arbitrary or capricious 

manner when the Ponder Town Council approved the Church’s request to rezone its 
2 

property. Appellants’ first and third issues in the Motion are founded on a baseless 

allegation that Ponder acted in an arbitrary or capricious manner in rezoning the 

Church’s property. The applicable standard for determining whether or not the 

Ponder Town Council acted in an arbitrary or capricious manner is whether or not 

reasonable minds could differ as to whether the zoning change has a substantial 

relationship to the public health, safety, and welfare. Based on the provisions of the 

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the Church’s 

efforts to expand its religious offerings as part of the requested zoning change, it is 

impossible to conclude that reasonable minds could not differ as to the merits of the 

zoning change. There is undisputed evidence in the record that the Church’s 

requested zoning change was supported by RLUIPA. Correspondingly, there is no 

evidence to support Appellants allegation that the zoning amendment was arbitrary 

and capricious. There is an available remedy for cases where a city council does 

indeed approve a zoning change in an arbitrary or capricious manner, but where 

reasonable minds can differ on whether such change has a substantial relationship to 

the public health, safety, and welfare, there is simply no waiver of governmental 

immunity. 

The bare allegations of an Open Meetings Act violation in Appellants’ Motion 

are also insufficient to establish a waiver of Ponder’s immunity. Furthermore, many 

such allegations are being raised for the first time on appeal. Appellants’ pleadings 
3 

do not allege sufficient facts to establish a waiver of Ponder’s immunity with regard 

to an Open Meetings Act violation. Furthermore, at the evidentiary hearing in the 

trial court, Appellants presented absolutely no evidence and made no argument that 

a violation of the Open Meetings Act had occurred as part of Ponder’s approval of 

the rezoning of the Church’s property. As such, the Trial Court did not err in granting 

Ponder’s plea to the jurisdiction. 

As to Appellants’ third issue in the Motion, Appellants failed to meet their 

burden to establish a waiver of Ponder’s immunity based on a claim pursuant to 42 

USC §1983 (“Section 1983”). Even with a generously liberal construction that 

Appellants’ pleadings include a regulatory takings claim, Appellants’ pleadings and 

the evidence in the record do not sufficiently support a viable takings claim. 

Appellants have no rights or entitlement to zoning of their Church neighbor’s 

property. Further, Appellants’ claim under Section 1983 is not ripe because 

Appellants failed to pursue the available State law remedies, which is a mandatory 

prerequisite to such a claim. Lastly, as to the actual property owned by Appellants, 

there is zero evidence in the record that Ponder’s approval of a zoning change on the 

Church’s property denied Appellants all economically viable use of their property. 

Accordingly, Appellants failed to meet their burden to establish the Court’s 

jurisdiction as to their claim under Section 1983. 
4 

II. ARGUMENT 

A. Appellants have not and cannot plead the factual applicability of a waiver 

of Ponder’s immunity 

Sovereign immunity from suit defeats a trial court's subject matter jurisdiction 

unless the state expressly consents to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 

636, 638 (Tex. 1999). The only waiver of immunity as to municipalities under the 

Declaratory Judgment Act is to determine the validity of an ordinance or franchise. 

Tex. Civ. Prac. & Rem. Code § 37.007(b); City of Dallas v. Turley, 316 S.W.3d 762, 

769-71 (Tex. App.—Dallas 2010, pet. denied). Section 154.58(B) of the Ponder 

Zoning Ordinance provides that the Ponder Zoning Ordinance can be amended by 

action of the Town Council. C.R. at 306. The Ponder Town Council approved the 

change in zoning for the Church’s property on August 24, 2015. C.R. at 264-66. 

Based on Section 154.58(B), the Town Council’s approval of the Church’s requested 

zoning change is tantamount to the adoption of an ordinance because said approval 

amended the Ponder Zoning Ordinance. Appellants allege that the zoning change for 

the Church’s property is invalid, but in order to establish the Court’s jurisdiction, 

Appellants still bear the burden to allege facts affirmatively demonstrating that the 

trial court has subject-matter jurisdiction. See Tex. Ass'n of Bus. v. Tex. Air Control 

Bd., 852 S.W.2d 440, 446 (Tex. 1993). For the waiver to be effective, a plaintiff must 

plead a constitutional or legislative waiver with facts that make the waiver 

applicable. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 
5 

(Tex. 2001) (the pleader must allege facts to demonstrate a valid constitutional 

claim); Tex. Ass’n of Bus, 852 S.W.2d at 446 (the pleader must allege facts that 

affirmatively demonstrate the court’s jurisdiction to hear the cause); See State v. 

Lueck, 290 S.W.3d 876, 884 (Tex. 2009) (holding a pleading cannot stand on bare 

allegations). 

A duly adopted zoning approval is presumed to be valid and the burden is on 

the party seeking to prevent its enforcement to prove that the ordinance is arbitrary 

or unreasonable in that it bears no substantial relationship to the health, safety, 

morals or general welfare of the community. City of Pharr v. Tippitt, 616 S.W.2d 

173, 176 (Tex. 1981). “If reasonable minds may differ as to whether or not a 

particular zoning ordinance has a substantial relationship to the public health, safety, 

morals or general welfare, no clear abuse of discretion is shown and the ordinance 

must stand as a valid exercise of the city's police power.” Id. (quoting Hunt v. City 

of San Antonio, 462 S.W.2d 536, 539 (Tex.1971)). 

Within the context of this case, the requested zoning amendment implicated 

RLUIPA because the Property in question is used for religious exercise as part of the 

Church’s religious activities. Under RLUIPA, “[n]o government shall impose or 

implement a land use regulation in a manner that imposes a substantial burden on 

the religious exercise of a person, including a religious assembly or institution, 

unless the government demonstrates that imposition of the burden on that person, 
6 

assembly, or institution (A) is in furtherance of a compelling governmental interest; 

and (B) is the least restrictive means of furthering that compelling governmental 

interest.” 42 U.S.C.A. § 2000cc (West).1 The judiciary is ill-suited to opine on 

theological matters, and should avoid doing so. Merced v. Kasson, 577 F.3d 578, 590 

(5th Cir. 2009) (citing Employment Division, Department of Human Resources v. 

Smith, 494 U.S. 872, 887 (1990) (“Repeatedly and in many different contexts, we 

have warned that courts must not presume to determine the place of a particular 

belief in a religion or the plausibility of a religious claim.”)). 

The evidence is undisputed that the Church intends to the use Property for 

religious exercise. See 2 R.R. at 230-41. At the December 30, 2015, hearing in the 

trial court, the Church’s Pastor Jeff Tackett testified that the requested zoning change 

was motivated by Pastor Tackett’s sincere religious convictions and that without the 

zoning approval, the exercise of those religious beliefs would be substantially 

burdened. See 2 R.R. 240-241. In order for Appellants to prevail on their claim of 

spot zoning, they must prove that the Town’s decision to rezone the Property was 

arbitrary or unreasonable and that no reasonable minds could differ as to whether the 

amended zoning ordinance has a substantial relationship to the public health, safety, 

 

1

 An analysis under the Texas Religious Freedom and Restoration Act mirrors the Federal standard, 

using this four-part test: (1) whether the government's regulations burden the plaintiff's free 

exercise of religion; (2) whether the burden is substantial; (3) whether the regulations further a 

compelling governmental interest; and (4) whether the regulations are the least restrictive means 

of furthering that interest. See Barr v. City of Sinton, 295 S.W.3d 287, 299 (Tex. 2009)
7 

morals or general welfare. Given Pastor Tackett’s testimony it is impossible for 

Appellants to ever plead sufficient facts that demonstrate Ponder’s Town Council 

acted arbitrarily when there is a federal mandate that requires the Town not to burden 

the Church’s religious exercise. Consequently, Appellants have not pled a viable spot 

zoning claim because they can never plea the factual applicability of a waiver of 

Ponder’s immunity. For these reasons, Ponder’s immunity from suit is not waived. 

B. Appellants bare allegations of an Open Meetings Act violation fails to 

provide the factual applicability of a waiver of Ponder’s immunity 

In their Motion, Appellants argue for the first time that Ponder’s “Town 

Council deliberated in closed session without notice and decided by voting or polling 

in closed session to approve the [zoning] request.” Regarding an alleged Open 

Meetings violation, Appellants’ Fourth Amended Petition simply seeks a declaration 

that the “Town of Ponder’s zoning change regarding the Property was procured in 

whole or in part through violations of the Texas Open Meetings Act[.]” C.R. at 234. 

Appellants pled no facts to support such a claim. C.R. at 222 – 393. Similarly, at the 

evidentiary hearing on Ponder’s plea to the jurisdiction, Appellants failed to submit 

any evidence that would support a claim under the Open Meetings Act. 

Despite Appellants’ assertion to the contrary, sufficient notice of the executive 

session was posted on the August 24, 2015, agenda. See 4 R.R. Exhibit 5 (“The City 

Council reserves the right to adjourn into executive session at any time during the 

course of this meeting to discuss any of the matters listed above, as authorized by 
8 

Texas Government Code Section 551.071 (Consultation with Attorney)”). The Open 

Meetings Act specifically permits the Ponder Town Council to convene in a closeddoor session for private consultation with its attorney “when the governmental body 

seeks the advice of its attorney about...pending or contemplated litigation[.]” Tex. 

Gov’t. Code § 552.071. A pleading that simply alleges Ponder’s Town Council 

convened in executive session is not a valid waiver of Ponder’s immunity. 

C. Appellants failed to allege a viable takings claim

Appellants allege that “Defendant Town of Ponder violated Plaintiffs’ 

Constitutional rights under Section 42 U.S.C. 1983.” C.R. at 240. Yet, Appellants 

have only broadly alleged, without any supporting authority or facts, that the Town 

violated their property rights and procedural and substantive due process rights. See 

C.R. at 242-44. In reality, the only right that Appellants are truly asserting is that 

they have the right to the continued non-use of the Church’s property and the 

enforcement of the Town’s own ordinances. Appellants simply do not have an 

entitlement in the zoning of their neighbor’s property and have no property interest 

in the enforcement of the Town’s ordinances. See Summer v. Bd. of Adjustments of 

the City of Spring Valley Village, No. 01-14-00888-CV, 2015 WL 6163066, at *10-

11 (Tex. App. – Houston [1st Dist] Oct. 20, 2015, no pet. history) ( “[t]here is simply 

no protected property interest in having a zoning ordinance enforced against one's 

neighbors.”). 
9 

Furthermore, Appellants’ Section 1983 claim is not ripe because they have not 

pursued all State law remedies. For a section 1983 takings claim to be ripe, the 

property owner must first show that he has unsuccessfully sought compensation for 

the taking under Article I, section 17 of the Texas Constitution. See Town of Flower 

Mound v. Stafford Estates Ltd. P'ship, 71 S.W.3d 18, 48–49 (Tex. App.—Fort Worth 

2002), aff'd, 135 S.W.3d 620 (Tex. 2004). While the two claims may be brought 

simultaneously, Appellants have not pled a viable regulatory takings claim. 

Plaintiff’s Fourth Amended Petition does not contain any factual allegations that 

would support a takings claim. C.R. at 235-44. 

A compensable regulatory taking may occur when a governmental agency 

imposes restrictions that either (1) deny landowners of all economically viable use 

of their property, or (2) unreasonably interfere with landowners' rights to use and 

enjoy their property. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 

1998). In determining whether the government has unreasonably interfered with an 

owner’s right to use and enjoy property requires a consideration of two factors: the 

economic impact of the regulation and the extent to which the regulation interferes 

with distinct investment-backed expectations. Id.

Appellants’ pleadings do not allege that Ponder’s adoption of the zoning 

ordinance denied them of all economically viable use of their property or 

unreasonably interfered with their rights to use and enjoy their property. Appellants’ 
10 

bare allegations that they lost quiet use of their property or that their property values 

diminished are insufficient regulatory takings allegations. Because Appellants failed 

to plead a viable regulatory takings claim, the Trial Court did not err in granting 

Ponder’s plea to the jurisdiction. 

III. PRAYER

 For each and all of the foregoing reasons, Ponder asks this Court to deny 

Appellants’ Motion for Rehearing and retain its opinion affirming the Trial Court’s 

order granting Ponder’s Plea to the Jurisdiction and dismissing all of Appellants’ 

claims with prejudice. 

 Respectfully submitted, 

 BOYLE & LOWRY, L.L.P. 

 /s/ Matthew L. Butler 

 Matthew C.G. Boyle 

 State Bar No. 24001776 

 mboyle@boyle-lowry.com 

 Matthew L. Butler 

 State Bar No. 24073984 

 mbutler@boyle-lowry.com 

 4201 Wingren, Suite 108 

 Irving, Texas 75062 

 (972)650-7100 Phone 

 (972)650-7105 Fax 

ATTORNEYS FOR APPELLEE 

TOWN OF PONDER 
11 

CERTIFICATE OF SERVICE

 This will certify that a true and correct copy of the foregoing Response Brief 

has been sent to the following parties via electronic service on the 19th day of 

December, 2017.

Robert E. Hager 

rhager@njdhs.com 

500 N. Akard 

Suite #1800 

Dallas, Texas 75201 

Telephone: (214) 965-9900 

Facsimile: (214) 965-0010 

Gregory J. Sawko 

gsawko@dentonlawyer.com 

1172 Bent Oaks Drive 

Denton, Texas 76210 

Telephone: (940) 382-4357 

Facsimile: (940) 591-0991 

Lance Vanzant 

Lvanzant@hbwvlaw.com 

Dorwin L. Sargent, III 

dsargent@hbwvlaw.com 

512 W. Hickory, Suite 100 

P.O. Box 50149 

Denton, Texas 7620l 

940-387-3518 - Tel. 

866-546-9247 – Fax 

 /s/ Matthew L. Butler 

 Matthew L. Butler