Concurring and Dissenting Opini on Filed December 28, 2020 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00456-CV RETURN LEE TO LEE P ARK, 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) re garding appellants’ standing to assert the ir Antiquities Code claims. I similarly dissent from the Court’s judgment. I write sep arately for three reasons: One, the majority opinion improperly conflates its merits based conclusion that appellants cannot meet the statutory elements for relief u nder the Antiquities Code with whether the legislature granted them standing to asse rt their statutory interpretation claim for judicial determination in the first in stance.–2– Two, the majority opinion is substantively wrong on that statut ory construction issue because it mi sses contrary statutory text. Three, the majority opinion’s disposition and resulting judgmen t leave intact a legally impossible trial court judgment. I. Antiquities Code Standing Whether a party has standing to assert a claim is, with rare ex ception not present here, distinct from whether that claim has substantive merit. 1 The distinction is fundamental and critical. Dismissal for lack of standing or dinarily does not decide the claim on its substantive merit. Thus, that decision does n ot have res judicata or collateral estoppel effects on th e claim’s merits. But a summa ry judgment claim dismissal is merits based and has those preclusive effects. Ac cordingly, these procedures are not interchangeab le. Otherwise, every summary j udgment, Rule 91a dismissal, or other merits based claim dismissal would simultan eously 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 remov ing the Confederate Monument without first obtaining Texas Historical C ommission

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 fact s are undisputed. The only r elevant standing fact under § 191.173 is that the plaintiff is a Texas citizen. Because appellants’ Texas ci tizenship is not disputed , the majority opinion’s cases do not apply in this instance.–3– approval to do so. 2 Appellants’ theory was straight forward based on three statute s in the Texas Antiquities Code, whi ch is part of the Texas Natur al Resources Code: One, the Monument is a landmar k as defined by § 191.092(a); Two, § 191.093 prohibits the remova l of § 191.092(a) landmarks without prior Historical Commission approval; and Three, § 191.173 grants Texas c itizens the right to sue to enfo rce 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. T EX

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. C ODE §§ 191.092(a), 191. 093, 191.173. Here, it is undisputed that (i) appellants are Texas citizens a nd (ii) appellees did not obtain prior Historical Commission approval before voti ng to remove the Monument. Therefore, the remaini ng contested issue was whether the Monument is a § 191.092(a) landmark. Deciding that question required the t rial court, and this Court, to interpret § 191.092(a) ’s plain text. That is, whethe r the Monument is a landmark entitled to § 191.093 protection is a substantive meri ts, statutory construction question of the type that is daily bread for court s to decide. (This dissent addresses those mer its in the next section.) Furthermore, it follows from § 191.173’s plain text that the le gislature gave appellants, as Texas citizens, statutory standing to sue appell ees based on appellants’

2 Although this discussion addresses only the Confederate Monume nt, the same analysis applies to the Lee Statue.–4– claim that the Monument is a protected landmark. Stated differ ently, the legislature granted appellants the § 191.173 statutory standing right to as k the courts to decide whether §§ 191.092(a) and 191.093 protect the Monument as a lan dmark. Nothing in the statutory text hints otherwise. Accepting the majority opinion’s premise as correct would resul t in a summary judgment dismissing a neg ligence claim for lack of prox imate cause evidence also acting as a simultaneous dismissal for lack of st anding 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 sh ould 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 ma tter of law that the Monument is not entitled to § 191.093 protection because the Hi storical 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 t his object on public land. To start, § 191.093 provides pr otection 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, o r excavated without a contract w ith or permit from the committee.–5– N AT

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. C ODE § 191.093. Note that the only prerequisite for protection und er this statute is that the object be a landmark: there is no requireme nt 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 protec tion and provides that landmarks may be designated as such: (a) Sites, objects, buildings, artifacts, implements, and loca tions of historical, archeological, scien tific, or educational interest, . . . that are located in, on, or under the surface of any land belonging to t he State of Texas or to any county, city, or political subdivision of th e state are state archeological landmarks a nd 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 in terest. Therefore, it is a § 191.092(a) landmark. Appellees, however, argued that the Monument must be formally d esignated 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 fail s, and the trial court erred in accepting it, because the statutory text imposes no such “prior designation” prerequis ite on this Monument located on public la nd. 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 destructio n? The answer is found in §§ 191.094 and 1 91.095. 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 ar cheological, scientific, or his torical significance to scientific study, interest, or public represent ation of the aboriginal or historical past of Texas may be designated a stat e archeological landmark by the committee. (b) No site may be designated on private land without the writ ten consent of the landowner or la ndowners in recordable form suffi ciently describing the site so that it may be located on the ground. (c) On designation, the consent of the landowner shall be reco rded 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 requ ired to protect landmarks on private land—but that such prior designation is no t 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 designat ed as landmarks, as provided in Section 191.094 of this code, and lan dmarks under Section 191.092 of this code , may not be taken, altered, damaged, destroyed, salvaged, or excavat ed without a permit from the com mittee or in violation of the terms of the permit. Id . § 191.095. This statute’s plain text distinguishes between l andmarks on private land that must be designated as landmarks before the needed per mit to alter, et seq.–7– applies; but no such prior designation is required for landmark s on public land before the protective permit must be obtained. Reading the Antiquities Code, and particularly §§ 191.091–191.0 95, together—as we must—means that the trial court erred as a matte r of law to the extent it ruled that appellants lost on the merits because ther e was no prior landmark designation of the Monument, whi ch 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 dismi ssal 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 tr ial court determined that appellants lack standing, it lacked the power to rule on the me rits. 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 th e 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 a ffirming 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 p olicy. That is not the Court’s job nor mine. Rather, I write to address le gal errors in the majority opinion. However, the legal sta ndard 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 publi c concern. The supreme court should take this opportun ity to provide its guidance on t hese issues.

190456DF.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE