Concurring and Dissenting Opinion Filed December 28, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00456-CV 

RETURN LEE TO LEE PARK, ET AL., Appellants 

V. 

MIKE RAWLINGS, ET AL., Appellees 

On Appeal from the 14th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-18-05460 

CONCURRING AND DISSENTING OPINION 

Before Justices Myers, Whitehill, and Pedersen, III 

Concurring and Dissenting Opinion by Justice Whitehill 

I concur in the majority opinion except for its part III (A) regarding 

appellants’ standing to assert their Antiquities Code claims. I similarly dissent from 

the Court’s judgment. I write separately for three reasons: 

One, the majority opinion improperly conflates its merits based conclusion 

that appellants cannot meet the statutory elements for relief under the Antiquities 

Code with whether the legislature granted them standing to assert their statutory 

interpretation claim for judicial determination in the first instance. 
 –2– 

Two, the majority opinion is substantively wrong on that statutory 

construction issue because it misses contrary statutory text. 

Three, the majority opinion’s disposition and resulting judgment leave intact 

a legally impossible trial court judgment. 

I. Antiquities Code Standing 

Whether a party has standing to assert a claim is, with rare exception not 

present here, distinct from whether that claim has substantive merit.1

 The distinction 

is fundamental and critical. Dismissal for lack of standing ordinarily does not decide 

the claim on its substantive merit. Thus, that decision does not have res judicata or 

collateral estoppel effects on the claim’s merits. But a summary judgment claim 

dismissal is merits based and has those preclusive effects. Accordingly, these 

procedures are not interchangeable. Otherwise, every summary judgment, Rule 91a 

dismissal, or other merits based claim dismissal would simultaneously be a nonmerits decision that the claimant lacked standing to assert the claim in the first place. 

In this case, appellants sought to prevent appellees from removing the 

Confederate Monument without first obtaining Texas Historical Commission 

 1

 The majority opinion at footnote five cites a string of cases for the premise that a plea to the jurisdiction 

may require the consideration of evidence. See, e.g., Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 226–27 (Tex. 2004). That premise, although correct where jurisdictional facts are disputed, does not 

apply here where the standing facts are undisputed. The only relevant standing fact under § 191.173 is that 

the plaintiff is a Texas citizen. Because appellants’ Texas citizenship is not disputed, the majority opinion’s 

cases do not apply in this instance. 
 –3– 

approval to do so.2

 Appellants’ theory was straightforward based on three statutes 

in the Texas Antiquities Code, which is part of the Texas Natural Resources Code: 

One, the Monument is a landmark as defined by § 191.092(a); 

Two, § 191.093 prohibits the removal of § 191.092(a) landmarks without 

prior Historical Commission approval; and 

Three, § 191.173 grants Texas citizens the right to sue to enforce the 

Antiquities Code, including §§ 191.092(a) and 191.093, by suing to enjoin an 

unlawful removal or to force the return of an illegally removed object. TEX. NAT.

RES. CODE §§ 191.092(a), 191.093, 191.173. 

Here, it is undisputed that (i) appellants are Texas citizens and (ii) appellees 

did not obtain prior Historical Commission approval before voting to remove the 

Monument. Therefore, the remaining contested issue was whether the Monument is 

a § 191.092(a) landmark. Deciding that question required the trial court, and this 

Court, to interpret § 191.092(a)’s plain text. That is, whether the Monument is a 

landmark entitled to § 191.093 protection is a substantive merits, statutory 

construction question of the type that is daily bread for courts to decide. (This 

dissent addresses those merits in the next section.) 

Furthermore, it follows from § 191.173’s plain text that the legislature gave 

appellants, as Texas citizens, statutory standing to sue appellees based on appellants’ 

 2

 Although this discussion addresses only the Confederate Monument, the same analysis applies to the 

Lee Statue. 
 –4– 

claim that the Monument is a protected landmark. Stated differently, the legislature 

granted appellants the § 191.173 statutory standing right to ask the courts to decide 

whether §§ 191.092(a) and 191.093 protect the Monument as a landmark. Nothing 

in the statutory text hints otherwise. 

Accepting the majority opinion’s premise as correct would result in a 

summary judgment dismissing a negligence claim for lack of proximate cause 

evidence also acting as a simultaneous dismissal for lack of standing to assert the 

negligence claim in the first place. 

Thus, as a matter of law the trial court erred to the extent it dismissed 

appellants’ Antiquities Code claims for lack of standing; we should correct that error 

and decide that issue on the merits in the context of appellees’ summary judgment 

motion. 

II. Antiquities Code Summary Judgment 

The trial court reversibly erred to the extent it ruled as a matter of law that the 

Monument is not entitled to § 191.093 protection because the Historical Commission 

had not previously designated the Monument as a landmark. That would be error 

because §§ 191.092(a) and 191.093 don’t require prior landmark designation to 

qualify for protection of this object on public land. 

To start, § 191.093 provides protection for “landmarks”: 

Landmarks under Section 191.091 or 191.092 of this code are the sole 

property of the State of Texas and may not be removed, altered,

damaged, destroyed, salvaged, or excavated without a contract with or 

permit from the committee. 
 –5– 

NAT. RES. CODE § 191.093. Note that the only prerequisite for protection under this 

statute is that the object be a landmark: there is no requirement that the object be 

previously designated a landmark. Simply meeting the statutory “landmark” 

definition in either §§ 191.019 or 191.092 is enough. 

Next, § 191.092(a) defines what is a landmark subject to protection and 

provides that landmarks may be designated as such: 

(a) Sites, objects, buildings, artifacts, implements, and locations of 

historical, archeological, scientific, or educational interest, . . . that are 

located in, on, or under the surface of any land belonging to the State 

of Texas or to any county, city, or political subdivision of the state are 

state archeological landmarks and are eligible for designation.

Id. § 191.092(a). The Monument is beyond peradventure an object on public land. 

And appellees don’t dispute that the Monument has historical interest. Therefore, it 

is a § 191.092(a) landmark. 

Appellees, however, argued that the Monument must be formally designated 

a landmark before § 191.093 protects it. Appellants countered that objects of 

historical interest, like the Monument, are protected landmarks regardless of whether 

they have been designated as such. 

As a matter of statutory construction, appellees’ argument fails, and the trial 

court erred in accepting it, because the statutory text imposes no such “prior 

designation” prerequisite on this Monument located on public land. It is for the 

legislature to impose that prerequisite if it wants to, but we cannot do that. 
 –6– 

So, why does § 191.092(a), like its analog in § 191.091, refer to designating 

landmarks as such unless that is to impose a prior designation requirement to protect 

them from destruction? The answer is found in §§ 191.094 and 191.095. 

Section 191.094 provides for designating protected landmarks on private 

property: 

DESIGNATING A LANDMARK ON PRIVATE LAND. (a) Any site 

located on private land which is determined by majority vote of the 

committee to be of sufficient archeological, scientific, or historical 

significance to scientific study, interest, or public representation of the 

aboriginal or historical past of Texas may be designated a state 

archeological landmark by the committee. 

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

consent of the landowner or landowners in recordable form sufficiently 

describing the site so that it may be located on the ground. 

(c) On designation, the consent of the landowner shall be recorded in 

the deed records of the county in which the land is located. 

Id. § 191.094. 

Section 191.095 further shows that landmark designation is required to protect 

landmarks on private land—but that such prior designation is not required to protect 

them on public land, like Dallas’s Pioneer Park: 

All sites or items of archeological, scientific, or historical interest 

located on private land in the State of Texas in areas designated as 

landmarks, as provided in Section 191.094 of this code, and landmarks 

under Section 191.092 of this code, may not be taken, altered, damaged, 

destroyed, salvaged, or excavated without a permit from the committee 

or in violation of the terms of the permit. 

Id. § 191.095. This statute’s plain text distinguishes between landmarks on private 

land that must be designated as landmarks before the needed permit to alter, et seq. 
 –7– 

applies; but no such prior designation is required for landmarks on public land before 

the protective permit must be obtained. 

Reading the Antiquities Code, and particularly §§ 191.091–191.095, 

together—as we must—means that the trial court erred as a matter of law to the 

extent it ruled that appellants lost on the merits because there was no prior landmark 

designation of the Monument, which is located on public land. This Court should 

correct such an error. 

III. Faulty Judgments 

We don’t know if the trial court’s Antiquities Code claim dismissal was for 

lack of standing or on the merits. The trial court’s judgment doesn’t say which. But 

it had to be one or the other; it could not be both. If the trial court determined that 

appellants lack standing, it lacked the power to rule on the merits. On the other hand, 

the trial court had to determine that appellants have standing if it granted appellees’ 

summary judgment motion. Thus, the two different outcomes are incompatible. The 

trial court had to pick one or the other. As mentioned in the beginning of this dissent, 

the problem is not trivial or merely academic. The distinction has real world 

consequences. 

The majority opinion compounds the problem by ignoring it and affirming the 

trial court judgment as written. The majority opinion needs to pick a path and follow 

it. I dissent because it doesn’t do that. 
 –8– 

IV. Conclusion 

I express no opinion on whether removing the Monument is good policy. That 

is not the Court’s job nor mine. Rather, I write to address legal errors in the majority 

opinion. However, the legal standard for citizen challenges to governmental 

decisions regarding the removal, destruction, or alteration of historical sites, 

artifacts, and objects is a matter of current and growing public concern. The supreme 

court should take this opportunity to provide its guidance on these issues. 

190456DF.P05 

/Bill Whitehill/ 

BILL WHITEHILL 

JUSTICE