Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed 

January 12, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00051-CV

SECURE PROPERTIES, INC., Appellant

V.

CITY OF HOUSTON, Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 2010-13306

M E M O R A N D U M O P I N I O N

Appellant Secure Properties, Inc. (SPI) petitioned the district court for judicial 

review of two orders issued by the City of Houston Building and Standards Commission. 

The district court signed a judgment affirming the Commission’s decision, and SPI 

appealed to this court. We affirm in part, and reverse and remand in part.

BACKGROUND

Under the Texas Local Government Code subchapter entitled ―Quasi-Judicial 

Enforcement of Health and Safety Ordinances,‖ a municipality may provide for the 
2

appointment of a Building and Standards Commission to hear and determine cases 

concerning alleged violations of the municipality’s health and safety ordinances. See 

TEX. LOC. GOV’T CODE ANN. §§ 54.031–.044 (West 2008 & Supp. 2011). The City of 

Houston’s Building and Standards Commission conducts administrative hearings

pursuant to this authority. See generally Houston, Tex., Code of Ordinances ch. 10, art. 

IX, §§ 10-341–360 (2011) (formerly §§ 10-391–410). 

SPI owns rental property consisting of two wood-framed buildings at 2308 and 

2310 Winbern Street in Houston, Texas. On January 15, 2010, the City gave SPI written 

notice that the Commission would hold a public hearing concerning alleged violations of 

the Houston Code of Ordinances on the property on February 3, 2010. The notice 

informed SPI that it could present evidence and witnesses concerning the alleged 

violations at the hearing. 

SPI alleges that prior to the hearing, City officials gave SPI president Christopher 

Hageney inconsistent information about whether the hearing should be postponed

pursuant to City policy. SPI does not argue that it received written or verbal confirmation 

that the hearing was cancelled or rescheduled.

Hageney appeared at the hearing on behalf of SPI, confirmed that he received 

notice of the hearing, and requested a continuance. The Commission denied the request. 

The City then presented photographs and testimony regarding the alleged violations. 

Hageney did not cross-examine the City’s witness or introduce any evidence. 

The City recommended the following deadlines for remediation of the Building 1 

violations: 10 days to obtain permits to secure the structure to specifications; 10 days to 

obtain repair or demolition permits; and 30 days to repair or demolish the structure. The 

City recommended the following deadlines for remediation of the Building 2 violations: 

10 days to obtain repair permits; and 30 days to repair the structure. In response, 

Hageney informed the Commission that he needed at least 90 days to get bids from 

contractors, obtain the permits, and complete the repair work on the two buildings. 
3

In two separate orders, the Commission (1) found that notice was properly given; 

(2) concluded that both Building 1 and 2 were in violation of numerous Code of 

Ordinances provisions; (3) adopted the City’s recommendation for the repair or 

demolition of Building 1; and (4) gave SPI 15 days to obtain repair permits and 60 days 

to repair Building 2. The Commission informed Hageney: ―I think if you work with the 

City on this . . . they can work and adjust the time sometimes when you’re showing good 

effort.‖

SPI petitioned the district court for judicial review of the Commission’s decision

on March 1, 2010. SPI invoked the district court’s inherent authority to review SPI’s 

complaint that the Commission’s actions violated SPI’s constitutional rights, as well as 

the district court’s authority to review the Commission’s findings for ―substantial 

evidence‖ pursuant to section 54.039 of the Texas Local Government Code. See TEX.

LOC. GOV’T CODE ANN. § 54.039. Specifically, SPI claimed that the Commission’s 

orders should be reversed because (1) the Commission’s denial of SPI’s request for a 

continuance violated SPI’s procedural due process rights because ―SPI was notified [by 

City officials] that the hearing would be reset‖; and (2) the Commission’s findings are not 

―reasonably supported by substantial evidence considering the reliable and probative 

evidence in the record as a whole.‖

1

 

The City filed a summary judgment motion, arguing that it was entitled to 

judgment as a matter of law on SPI’s arguments. The district court granted summary 

judgment in favor of the City, effectively affirming the Commission’s decision.

In four issues on appeal, SPI argues that (1) the district court’s judgment is 

erroneous to the extent that it applied the wrong standard of review to SPI’s procedural 

due process challenge; (2) the City failed to show entitlement to a ruling as a matter of 

law that the Commission’s actions did not violate SPI’s procedural due process rights, 

and the evidence conclusively establishes a procedural due process violation; (3) the 

 

1

SPI listed additional grounds for challenging the legality of the Commission’s decision, but SPI 

does not appeal the district court’s rejection of those arguments.
4

Commission’s factual findings regarding the ordinance violations are not supported by 

substantial evidence; and (4) the procedural due process violation was not remedied by

the City’s offer in the district court to agree to a proposed judgment remanding the case 

for a rehearing, because SPI was entitled to a de novo hearing. 

ANALYSIS

I. Standards and Authority for Judicial Review of the Commission’s Decision

The right to appeal the decision of an administrative body exists if (1) such right is 

statutorily created, or (2) the complained-of action violates a person’s constitutional 

rights. See Firemen’s & Policemen’s Civil Serv. Comm’n of City of Fort Worth v. 

Kennedy, 514 S.W.2d 237, 239 (Tex. 1974) (―[A]n inherent right of appeal from an 

administrative body created by an act silent on the question will be recognized only 

where the administrative action complained of violates a constitutional provision.‖); see 

also Smith v. Nelson, 53 S.W.3d 792, 795 (Tex. App.—Austin 2001, pet. denied) 

(―[T]here is no automatic right to appeal an administrative decision that does not violate 

the appealing party’s constitutional rights; such a right to appeal exists only if 

legislatively granted.‖). 

Both types of judicial review are authorized in this case, and each involves a 

separate inquiry governed by a separate standard of review. See TEX. LOC. GOV’T CODE 

ANN. § 54.039 (authorizing appeal to district court for judicial review of Commission

decisions for a hearing under substantial evidence rule); Lewis v. Metro. Sav. & Loan 

Ass’n, 550 S.W.2d 11, 15–16 (Tex. 1977) (holding that a reviewing court’s conclusion 

that administrative body’s factual findings are supported by substantial evidence does not 

preclude separate inquiry into whether the administrative body acted so arbitrarily as to 

violate a party’s right to due process); Perkins v. City of San Antonio, 293 S.W.3d 650, 

653 n.2 (Tex. App.—San Antonio 2009, no pet.) (―We note . . . that in addition to 

reviewing whether substantial evidence supports the Board’s order, an arbitrary action of 

an administrative agency cannot stand, including any action that deprives a party of due 

process; therefore, the trial court also is permitted to consider whether the proceedings 
5

before the Board satisfied the requirements of due process.‖).

To survive appeal, administrative proceedings must meet the federal and state 

constitutional requirements of due process of law and the rudiments of fair play. See 

Granek v. Tex. State Bd. of Med. Exam’rs, 172 S.W.3d 761, 772 (Tex. App.—Austin 

2005, no pet.) (citing Tex. Health Facilities Comm’n v. Charter Med.—Dallas, Inc., 665 

SW.2d 446, 454 (Tex. 1984)); Grace v. Structural Pest Control, 620 S.W.2d 157, 160

(Tex. Civ. App.—Waco 1981, writ ref’d n.r.e.). Administrative hearings are not required 

to measure up to judicial standards, but even administrative hearings must not be so 

arbitrary or inherently unfair that they deny the parties due process of law. City of 

Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 250 (Tex. App.—Fort Worth 2007, pet. 

denied) (citing City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 262 (Tex. 

2001)); Grace, 620 S.W.2d at 160 (citing Lewis, 550 S.W.2d at 15–16). A claim

regarding the deprivation of constitutional rights by an administrative proceeding 

presents a question of law subject to de novo review on appeal. See Lee v. City of 

Houston, No. 14-05-003366-CV, 2006 WL 2254401, at *3 (Tex. App.—Houston [14th 

Dist.] Aug. 8, 2006, pet. denied) (citing Granek, 172 S.W.3d at 771–72). 

Additionally, any owner aggrieved by a Building and Standards Commission 

decision may present a petition to a district court seeking judicial review of the 

Commission’s findings under section 54.039 of the Texas Local Government Code. See 

TEX. LOC. GOV’T CODE ANN. § 54.039(a). The district court ―may allow a writ of 

certiorari directed to the commission panel to review the decision.‖ Id. § 54.039(b). The 

district court’s judicial review under this provision ―shall be limited to a hearing under 

the substantial evidence rule,‖ and the district court ―may reverse or affirm, in whole or 

in part, or may modify‖ the Commission’s decision. Id. § 54.039(f). When conducting a 

substantial evidence review, the reviewing court must affirm an administrative order 

supported by any quantum of evidence greater than a scintilla. R.R. Comm’n of Tex. v. 

Torch Operating Co., 912 S.W.2d 790, 792–93 (Tex. 1995). Whether substantial 

evidence supports the Commission’s decision is a question of law; therefore, we perform 
6

our substantial evidence review de novo without deference to the district court’s 

conclusion on the same issue. See Lee, 2006 WL 2254401, at *2 (analyzing identical 

―substantial evidence‖ judicial review provision applicable to municipality decisions 

regarding dangerous structures, as authorized by Texas Local Government Code sections 

214.001–.005 (citing Tex. Dep’t of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex. 

App.—Houston [14th Dist.] 2002, no pet.))).

2

With these standards of review in mind, we address each of SPI’s issues out of 

order.

II. SPI’s Challenges to the District Court’s Judgment

A. Procedural Due Process

SPI argues in Issue 2 that the district court erred in concluding that SPI’s 

procedural due process rights were not violated. Specifically, SPI complains that (1) the 

City failed to make any legal arguments regarding certain factors relevant to a procedural 

due process analysis; and (2) the undisputed evidence establishes a procedural due 

process violation. 

The City presented the district court with relevant authority and correctly 

explained that ―[p]rocedural due process requires reasonable notice and the opportunity 

to be heard at a meaningful time and in a meaningful manner.‖ See Univ. of Tex. Med. 

Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995). The City’s argument to the district court 

was supported by the following undisputed facts: Hageney (1) received written notice, (2) 

appeared at the hearing, and (3) had an actual opportunity to be heard, cross-examine 

witnesses, and present evidence. The City concluded that SPI’s due process rights were 

not violated because ―[t]he [r]ecord conclusively establishes that [SPI] received 

 

2 This standard of review is not inconsistent with the de novo standard of review applicable to a 

trial court’s conclusion that the movant is entitled to summary judgment ―as a matter of law.‖ See TEX.

R. CIV. P. 166a(c); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The parties do 

not challenge and we do not review the propriety of the City’s use of summary judgment procedures to 

resolve the exclusively legal questions that are raised in an appeal from an administrative hearing to a 

district court. However, we note that the City conceded at oral argument that it since has abandoned the 

use of summary judgment procedures to resolve such appeals.
7

reasonable notice of the hearing and an opportunity to be heard—at a meaningful time 

and in a meaningful manner.‖ 

SPI contends that the City’s argument is incomplete because ―[e]xactly what 

constitutes due process in a given situation is measured by a flexible standard that 

depends on the practical requirements of the circumstances.‖ SPI argues that the City 

should have addressed this ―flexible standard‖ and analyzed the three factors relevant to 

its application: (1) the private interest affected by the state action; (2) the risk of 

erroneous deprivation of a constitutionally protected interest under the procedures used 

and the likely benefit of any additional procedures; and (3) the government’s interest, 

including the fiscal and administrative burdens, that additional or substitute procedural 

requirements would entail. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976); 

Than, 901 S.W.2d at 930. SPI complains that the City did not show entitlement to 

judgment as a matter of law because the City failed to identify or present evidence 

regarding these factors. 

Because SPI does not seek the imposition of additional or substitute procedures 

contemplated by the Mathews/Than factors, the City had no need to address them in its 

argument to the district court. See Mathews, 424 U.S. at 333, 349 (recipient of disability 

benefits would have been provided with evidentiary hearing had he sought 

reconsideration of administrative decision to terminate benefits, and due process did not 

additionally require evidentiary hearing prior to that decision); Than, 901 S.W.2d at 932 

(student was provided notice and opportunity to be heard prior to disciplinary dismissal, 

but due process additionally required hearing officer to grant student’s request to be 

present during presentation of evidence against him unless other circumstances justified 

ex parte presentation of evidence). SPI does not challenge the sufficiency of the written 

notice received by Hageney or argue that the Commission’s existing hearing procedures 

actually prevented Hageney from having an opportunity to be heard, present evidence, or 

cross-examine witnesses. Rather, SPI argues that the Commission’s denial of Hageney’s 

request for a continuance—after he made it known to the Commission that he was 
8

unprepared because he ―was told [the hearing] would not go forward by the City’s 

representatives‖—deprived SPI of its due process right to a meaningful opportunity to be 

heard and ―to present its objections to the testimony of the City, present controverting 

evidence, and cross examine witnesses.‖ We conclude that the City’s legal arguments to 

the district court on this issue were sufficient.

SPI also argues that the district court’s judgment is erroneous because the 

evidence conclusively establishes that SPI suffered a procedural due process violation.3 

Not every denial of a requested continuance constitutes an effective denial of a 

constitutionally-guaranteed due process right. See State v. Crank, 666 S.W.2d 91, 94–95 

(Tex. 1984) (concluding that under the circumstances, the administrative body’s denial of 

continuance did not effectively deprive Crank of his ―due process rights to fair 

representation‖). ―There are no mechanical tests for deciding when a denial of a 

continuance is so arbitrary as to violate due process,‖ and such a determination depends 

on the circumstances in each case. Id. (civil appeal from order of the state Board of 

Dental Examiners revoking Crank’s license; applying rule to administrative body’s denial 

of Crank’s request for continuance (citing Ungar v. Sarafite, 376 U.S. 575, 589 (1964))). 

The circumstances in this case do not reveal a procedural due process violation. 

SPI president Hageney appeared at the hearing on behalf of SPI and requested 

additional time to prepare:

4

 

3

SPI also argues that, at a minimum, the uncontested summary judgment evidence ―raises a 

genuine issue of material fact‖ regarding its asserted procedural due process violation. The issue of 

whether the Commission violated SPI’s procedural due process rights is a legal question, not a factual 

one. See Lee, 2006 WL 2254401, at *3 (citing Granek, 172 S.W.3d at 771–72). No other ―factual issue‖ 

exists because, as SPI points out, the City does not dispute SPI’s version of the events relevant to this 

legal inquiry. We therefore reject this additional argument for reversing the district court’s judgment. 

4 These excerpts are taken from a purported transcript of a recording taken at the administrative 

hearing, which was attached as an exhibit to the City’s summary judgment motion. SPI does not 

challenge the City’s characterization of this or any other exhibit to its motion as a true copy taken from 

the certified record of the administrative hearing. The certified record of the administrative hearing does 

not actually appear in the clerk’s record as a return on the trial court’s writ of certiorari. However, neither 

party assigns error to this point. Therefore, for purposes of this appeal, we accept the record as true and 

complete.
9

I’ve been in communication with [the City] and I wasn’t prepared. I 

was told to come down here and say that the repairs were on their way. So 

I didn’t bring any photos or any evidence on my behalf. . . . [A]s soon as I 

received that, I did start calling you. So I’m not — I just — I would like, 

you know, as my right to have time to reset and to continue the repairs. I’m 

an owner here trying to comply.

* * * 

I did receive the certified notices[,] which is why I’m here. 

* * * 

What I’m saying is prior to receiving that notice, prior to receiving 

the notice to come to [the] hearing, I didn’t realize I was under any 

violation. I didn’t — I received a notice saying come to a hearing. I 

immediately called, met an inspector. I understand that your process hasn’t 

change[d]. I would be contacted[,] whether by certified mail or whatever. 

And I would go out and meet an inspector. The inspector would say I want 

these repairs done. And it happened on this property in 2005 when the 

inspector signed off [without a hearing]. . . . So I would like the 

opportunity — you have an owner here trying to comply. I’d like the 

opportunity to continue to continue with what we’re doing. We only met 

one week ago and already probably a significant portion or a third or half of 

the repairs are done. I will have the rest of them done within the 90-day 

period.

* * * 

I have no photos and nothing to offer as evidence. And I would have 

come — I would have taken a different tact [sic] as opposed to trying to 

immediately comply with the recommendation. I received a notice to come 

to this hearing. What is my understanding is normal is to receive a notice 

that I’m in violation, to go meet the inspector and try to comply before you 

go to [a] hearing. I haven’t been afforded that. I’m just asking that if —

can I continue to do the repairs? 

* * * 

I think there’s a difference in the way — in the manner in which I . . 

. do the repairs after the hearing takes place. I’m never — I’ve been in real 

estate and worked with this organization for many years under many 

different directors. I’ve never been to [a] hearing and I’ve always — I have 

been cited on things in the past and I have always complied and I’ve never 

been to [a] hearing. I was not afforded that possibility under this scenario. 

* * * 
10

I was under the understanding that was what was going to happen or 

else I would have taken photos and have bids and been able to tell you that 

I can complete these repairs within this period of time. I — I don’t have 

any information.5

The Commission voted to deny SPI’s request for a continuance.

During SPI’s appeal to the district court, SPI proffered for the first time an 

affidavit by Hageney, in which he states that a City official told Hageney that the hearing 

should not have been scheduled because ―the City has a policy of not scheduling hearings 

with property owners who are attempting to comply with violations.‖6 Hageney states 

that the official informed Hageney that if he met with inspectors and had the repairs 

underway, the scheduled hearing would be ―postponed‖ for 60 days. Hageney followed 

these instructions. He attended a meeting with City officials on the day of the hearing, 

where he learned that the City intended to go forward with the hearing because the file 

contained no notation that the hearing should be postponed ―according to the agreement 

between SPI and the City.‖ After that meeting, a City inspector told Hageney, ―[D]on’t 

worry, we will take care of this.‖ An hour or two later, the official who originally 

discussed the City’s policy with Hageney told him that she noted that the hearing ―should 

be postponed‖ in an email, and instructed Hageney to ask for additional time ―to instigate 

repairs.‖ In response, the City informed Hageney that it planned to ―recommend‖ an 

additional 60 days for SPI ―to instigate repairs.‖ Hageney characterizes the City’s 

decision to ―go forward with the hearing‖ as a violation of its asserted promise to 

 

5 When the Commission noted that it had the option to give SPI a 90-day compliance period at the 

end of the hearing, Hageney explained why this solution was not a sufficient alternative to a continuance: 

―The difference would be that I would have to get a different set of permits if we go through with this 

hearing. . . . [I would have to get an] occupancy permit[,] which would require me to bring the entire 

property up to code as opposed to repairing the damages that they have.‖ 

6 The parties dispute on appeal whether the district court’s review of SPI’s procedural due process 

complaint was limited to the record developed at the administrative level, or if the parties could adduce 

new evidence for the first time on appeal to the district court. SPI complains that the City failed to 

preserve this issue because it failed to object to Hageney’s affidavit in the district court. We do not 

decide either issue because we can affirm the district court’s judgment by assuming without deciding that 

the district court properly could have considered the newly adduced evidence. See TEX. R. APP. P. 47.1 

(―The court of appeals must hand down a written opinion . . . that addresses every issue raised and 

necessary to final disposition of the appeal.‖). 
11

―postpone‖ the hearing or ―recommend‖ an additional time for repairs. 

We do not agree that these circumstances indicate that the Commission’s denial of 

SPI’s motion for continuance was arbitrary, an abuse of discretion, or an effective denial 

of SPI’s due process right to an opportunity to be heard at a meaningful time and in a 

meaningful manner. See Crank, 666 S.W.2d at 94–95. SPI unequivocally admits that it 

had notice of the hearing, and it does not contend that any City officials ever confirmed 

that the hearing was postponed according to ―policy‖ in response to SPI’s remedial 

actions. The fact that SPI met with City officials to discuss the status of the 

postponement on the day of the hearing, as well as the fact that SPI actually attended the 

hearing and requested additional time, belies SPI’s implied contention that it relied on the 

City’s assurances and believed the hearing to be effectively postponed before the date of 

the hearing. That SPI chose to attend the hearing empty-handed because it assumed its 

request for continuance would be granted does not affect our analysis. Cf. Ezeoke v. 

Tracy, 349 S.W.3d 679, 687 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (―A lawyer 

who gambles by requesting a continuance and then leaving the country before the request 

has been ruled on reasonably can anticipate adverse consequences.‖). Accordingly, we 

do not agree with SPI that the evidence establishes a procedural due process violation. 

We overrule SPI’s Issue 2.7 

B. Substantial Evidence

SPI argues in Issue 3 that substantial evidence does not support the Commission’s 

findings that SPI’s property was in violation of certain Code of Ordinances provisions.

 

7

SPI argues in Issue 1 that the district court erred ―to the extent that‖ it relied on the ―substantial 

evidence rule‖ as the applicable standard of review for its procedural due process argument. Nothing in 

the record indicates that the district court applied an incorrect standard; the City’s motion does not urge 

and the district court’s order does not recite an incorrect standard. Additionally, because we can affirm 

the district court’s conclusion by applying the correct standards in our de novo review of SPI’s challenges 

to the Commission’s decision, we also overrule Issue 1. SPI argues in Issue 4 that the City’s offer to 

agree to a proposed judgment remanding the case for a rehearing did not remedy the asserted procedural 

due process violation. Because we conclude that no procedural due process violation occurred, we also 

overrule Issue 4.
12

Texas recognizes a range of standards for reviewing administrative findings: (1) 

pure trial de novo; (2) pure substantial evidence; and (3) substantial evidence de novo. 

Perkins, 293 S.W.3d at 653. We review the Commission’s decision under the pure 

substantial evidence rule, which authorizes the reviewing court to consider only the 

factual record made before the administrative body and determine if its findings are 

reasonably supported by substantial evidence. See TEX. LOC. GOV’T CODE ANN. §

54.039(f); Perkins, 293 S.W.3d at 653. 

―Substantial evidence review resembles legal sufficiency review.‖ See Dozier v. 

Tex. Emp’t Comm’n, 41 S.W.3d 304, 309 (Tex. App.—Houston [14th Dist.] 2001, no 

pet.). ―Substantial evidence‖ is defined as evidence amounting to more than a mere 

scintilla. Tex. Health Facilities Comm’n, 665 S.W.2d at 452 (citing Alamo Express, Inc. 

v. Union City Transfer, 309 S.W.2d 815, 823 (1958)). Under substantial evidence 

review, the evidence in the record actually may preponderate against the decision of the 

agency and nonetheless amount to substantial evidence. Id. (citing Lewis, 550 S.W.2d at

13). ―The true test is not whether the agency reached the correct conclusion, but whether 

some reasonable basis exists in the record for the action taken by the agency.‖ Id. at 

452–53 (citing Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)). Administrative 

findings, inferences, conclusions, and decisions are presumed to be supported by 

substantial evidence, and the burden is on the appellant to prove otherwise. Id. at 453; 

Tex. Alcoholic Beverage Comm’n v. Mini, Inc., 832 S.W.2d 147, 150 (Tex. App.—

Houston [14th Dist.] 1992, writ denied).

The Commission found that Building 1 was in violation of the terms of the City of 

Houston’s Code of Ordinances Section 10-361(a)(3), (a)(11), and (b)(2), as well as 

Section 10-343(b)(4), (c)(9), and (e)(3).8 These subsections concern buildings that are 

not weathertight and waterproof; secured from unauthorized entry to the extent that 

vagrants, uninvited persons, or children could enter; free of holes that constitute health or 

 

8 The Commission also found that Building 1 was in violation of Section 10-343(c)(4), but SPI 

does not challenge that finding on appeal.
13

safety hazards or that would allow insects and other pests to gain access to the extent 

constituting a present hazard to health or safety; or free of interior rubbish and garbage. 

See Houston, Tex., Code of Ordinances ch. 10, art. IX, §§ 10-361, 10-343 (2002) (current 

versions at §§ 10-371, 10-363). The Commission found that Building 2 was in violation 

of the terms of the City of Houston’s Code of Ordinances Section 10-343(c)(1), (c)(4), 

and (c)(9). These subsections concern buildings that are not protected on the exterior 

from decay; weatherproof and watertight; or free of holes that constitute health or safety 

hazards. See id. § 10-343 (2002) (current version at § 10-363).

9

 SPI challenges each of 

these findings under the substantial evidence rule. 

With respect to Building 1, City inspector Cherie Strong testified to her 

observations based on her inspection of the property the morning of the hearing:

The structure . . . was vacant and open with partially boarded 

windows and doors. A few of the windows[,] the boards had been removed 

and there were — the pane was broken — the window pane was broken in 

the windows rendering the property not weathertight or waterproof and also 

rendering it open to the elements.

The exterior of the structure is deteriorating — deteriorating where 

the wall studs are starting to — or being exposed to the elements of nature. 

The structure is — the property is posted no trespassing so I wasn’t able to 

get onto the property and get any interior shots.

* * *

 

9

Section 10-361(a)(3) and (a)(11) define a structure as a dangerous building if the ―[r]oofs or 

walls . . . are not weathertight or waterproof‖ or if it has ―been left unsecured from unauthorized entry to 

the extent that [it] may be entered by vagrants or other uninvited persons as a place of harborage or could 

be entered by children.‖ Houston, Tex., Code of Ordinances ch. 10, art. IX, § 10-361(a)(3), (a)(11) 

(2002). Section 10-361(b)(2) states that a building that ―is boarded up, fenced or otherwise secured in 

any manner‖ nonetheless constitutes a dangerous building if ―[t]he building’s roof, walls or floor contains 

holes that would allow insects, ectoparasites, rodents or other pests to gain access to the building for 

harborage to the extent constituting a present hazard to health or safety.‖ Id. § 10-361(b)(2). Sections 10-

343(b)(4), (c)(1), (c)(4), (c)(9), and (e)(3) require owners to ―[k]eep the doors and windows of a vacant 

building . . . securely closed to prevent unauthorized entry‖; ―[p]rotect the exterior surfaces of a building 

reasonably subject to decay by application of a protective covering, coating or other preservative‖; 

―[m]aintain a building intended for human occupancy . . . in a weatherproof and watertight condition‖; 

―[r]epair holes, cracks, breaks and loose surface materials that are health or safety hazards in or on floors, 

walls, ceilings, porches, steps and balconies‖; and ―[m]aintain the interior of a vacant building . . . free 

from rubbish and garbage.‖ Id. § 10-343(b)(4), (c)(1), (c)(4), (c)(9), (e)(3).
14

You could see where the exterior of the property is starting to mold 

and it has mildew on it where the asbestos is starting to decay. . . . You can 

see there where the exterior is deteriorated. You got [sic] broken windows, 

open windows, where it’s been partially boarded. More open windows 

which are allowing for the elements of nature to enter into the structure. 

Second floor, more open windows there were at one time partially 

boarded. . . . [T]he exterior . . . is deteriorating and exposing the wall studs.

* * *

This morning when I went out to the property, the property had . . . 

been boarded a little bit — secured a little bit better with boards placed over 

the windows that were open or broken. As far as the repairing to the 

exterior of the other property, it has not been done.

With respect to Building 2, Strong testified to her observations based on her 

inspection of the property the morning of the hearing:

[T]he property is occupied. It’s an occupied multi-dwelling and the 

property is posted no trespassing so I wasn’t able to get onto the property to 

get any interior shots. But the exterior of the property is starting to 

deteriorate where the — you could see there’s possibly termite damage 

done to the exterior of the property where the walls — the exterior wall 

covering has deteriorated[,] exposing the wall studs to the elements of 

nature and it was all around the property — all around the building.

Around the headers and the window sills around the windows are 

starting to deteriorate where apparently there is termite damage which 

would render the property not weather tight or waterproof.

* * *

[There is] more deterioration of the exterior of the property and you 

can see where it’s possible termite damage there. . . . [Y]ou see the 

deterioration of the exterior of the covering on the wall, exposing the wall 

studs to the elements of nature. . . . [Y]ou can tell that there’s termite 

damage on the property that’s been done to the exterior walls. And around 

the windows you can see is there where it’s deteriorated, where the sill is 

deteriorated, and the headers are starting to deteriorate . . . rending it not 

weather tight and weatherproof. 

[There is] more deterioration where the exterior is basically 

nonexistent, exposing the wall studs. Deterioration around the window and 

above the gable there is some deterioration above the gable that has been 
15

partially repaired but not completely repaired.10

The City also introduced a number of photographs of the property showing exterior 

damage to the buildings. The electronic date stamp on these photos ranges from July 

2004 to January 2010. When asked whether the photographs ―represent those structures,‖ 

Strong answered, ―Yes, sir, they do.‖

The Commission inquired whether SPI had done any repairs to the buildings, and 

Hageney answered:

One of the pictures will show the roof was — will indicate we 

replaced the roof at a cost of about $12,000. . . . [W]e secured the front 

building — no. Some. You saw some HardiPlank put up there. Yeah. 

Some of the HardiPlank. But the front building has been the issue because 

it’s vacant and it’s been boarded. And what will happen is, for whatever 

reason, people take the boards off.

* * *

But there’s some — there’s some deterioration on the exterior.

* * *

[Y]ou can see where we replaced the roofs on both of them and 

replaced the facia. We haven’t gone around — but down below on the 

right-hand side you can see where we replaced some HardiPlank.

* * *

That’s an old photo. That’s been repaired. That would have been 

one from before. All that’s been repaired.11 So the exterior does have 

some places where the siding is off, the windows are in disrepair, and some 

of that trim around the windows needs to be replaced as we discussed. 

We conclude that the record from the hearing contains more than a scintilla of 

evidence that Building 1 was not weathertight and waterproof; secured from unauthorized 

entry to the extent that vagrants, uninvited persons, or children could enter; or free of 

holes that constitute health or safety hazards or that would allow insects and other pests 

 

10 The transcript indicates that a video of Strong’s inspection may have been played for the 

Commission as Strong narrates. The City did not include the video in its summary judgment evidence 

and does not argue that we could view it if it had been included in the record on appeal.

11 The record does not indicate which photo Hageney was discussing.
16

to gain access to the extent constituting a present hazard to health or safety. See id. § 10-

361(a)(3), (a)(11), (b)(2); id. § 10-343(b)(4), (c)(9); see also Tex. Health Facilities 

Comm’n, 665 S.W.2d at 452. We also conclude that the record from the hearing contains 

more than a scintilla of evidence that Building 2 was not protected on the exterior from 

decay; weatherproof or watertight; or free of holes that constitute health or safety 

hazards. See Houston, Tex., Code of Ordinances ch. 10, art. IX, § 10-343(c)(1), (c)(4), 

(c)(9) (2002); see also Tex. Health Facilities Comm’n, 665 S.W.2d at 452. However, the 

Commission heard no evidence regarding whether SPI had kept the interior of Building 1

―free from rubbish and garbage‖ pursuant to Section 10-343(e)(3). See Houston, Tex., 

Code of Ordinances ch. 10, art. IX, § 10-343(e)(3) (2002). We sustain SPI’s Issue 3 to 

that extent and overrule Issue 3 in all other respects.

CONCLUSION

We reverse the district court’s summary judgment on the issue of whether

substantial evidence supports the City of Houston Building and Standards Commission’s 

finding that SPI failed to keep the interior of Building 1 ―free from rubbish and garbage‖ 

pursuant to Houston Code of Ordinances section 10-343(e)(3); we remand that issue to 

the district court for proceedings consistent with this opinion. We affirm the district

court’s summary judgment in all other respects.

_

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Boyce, and McCally.