### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00118
- CV

John Seago , Appellant

v. City of Austin and Jes ú s Garza , in his Official Capacity as City Manager of the City of Austin , Appellee s

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNT Y NO. D-1- GN -20-002897, THE HONORABLE TIM SULAK , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
In September 2019, the City of Austin approved a budget for its upcoming fiscal year that allocated $150,000 to fund entities “ providing or facilitati ng logistical and support
services for Austin r esidents seeking abortion care. ” John Seago sued the City of Austin and its City Manager 1 alleging that “ providing taxpayer money to abortion

- assistance organizations ”

wa s inconsistent with an d violate d Article s 4512.1 a nd 4512.2 of the Texas Revised Civil Statutes; Seago contended that these laws were never repealed by the Legislature and remained enforceable despite Roe v. Wade , 410 U.S. 113 (1973). The City responded that the statutes

w ere unconstitution al un der Roe

. The City file d a plea to the jurisdiction, and the parties fi led

1 Because th e C ity M anager i s s ue d only in h is offi cial capacity, we w ill refer to him and the City of Austin collectively as “ the City. ” When the suit was filed, Spencer Cronk was the C ity M an ager. We take judicial notice , that on February 15, 2023, Cronk was fired and Jes ús Garza was appointed interim City Manager. W e have sub stituted G arza au tomatically under Texas Rule of Ap pellate Procedure 7.2(a).2 cross - motions for summary judgment

. Seago appeals fro m the trial court ’ s February 11, 20 21 order de nying his motion for summary judgment and granting the appelle e s ’ plea to th e jur isdiction and motion for sum mary judgment with out specif ying a bas is. We will reverse the cause and remand for further p roceedings.
A f ter the parties filed their brief s in this appeal , the United States Su preme Court overrul ed Roe in D obbs v. Jacks on Wo men ’ s Health Org. , 142 S. Ct. 2228, 2284 (2022) . We asked the parties for supplemental briefing on the effect of Dobbs on this cause and this appeal.
The City contends that, because the United States Supreme Court changed the law relied on by the partie s, t his Cour t should reverse and remand for the parties to develop their arguments in light of the Dobbs opinion

. S e ago argues that Dobbs did not moot this case or appeal because he seeks attorney ’ s fees.
We will follow the example of th e Texas Supreme Co urt , wh ich rem anded a similar case asserting that t he City ’ s allocation of funds challenged here violated the same unrepealed state law. See Zimmerman v. City of Austin , No. 21

- 0262, 2022 WL 17998212, at *1 (Tex. Dec. 30, 2022)

. T he Tex as Supreme Court c onclude d that because the lower courts relied

on Roe before it was ov erruled, “ the best approach is to vacate the lower courts ’ judgments and remand the case to the trial court to address in the first instance the effect of this change in the
law

— and the e f fect o f any intervening factual developments

— on Zimmerman ’ s claims. ” Id.
at *2. 2 Because the part ies ’ arguments in this ca use rested on the applicability of Roe , t he trial
court ’ s judgment on the cross

- moti ons for summary judgment s imi larly rested on th ose arguments. C f. McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 342 (Tex. 1993)

2 T he Texas Supreme C ourt vacated the judgment under Texas Rule of Appellate Procedure 6 0.2(f), a rule not available to inter mediate appellate cou rts

.3 (summary j udgment rest s on grounds raised in motion). Because t he judgment appealed rested on precedent that was changed whi le the case was on appeal , a revers al and remand in the interest of justice is appropriate

. See Boyles v. Kerr , 855 S.W.2d 593, 603 (Tex. 1993) ; Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826, 830 (Tex. 1990) ; Browning Oil Co. v. Luecke , 38 S.W.3d 625, 649 (Tex. App.

— Au stin 2000 , pet. de nied )

. I n the interest of justice, w e reverse the judgment and remand for f urther proceedings. See Te x. R. App. P. 43.2 (d), 43.3 ; cf. Zimmerman , 2022 WL 17998212, at *1

.

__________________________________________ Darlen e Byrne, Chi ef Justice

Before Chief Justice Byrne, Justices T riana and Kelly
Reversed and Remanded
Filed: February 28, 2023