NO. 01-15-00148-CV

______________________________________

IN THE COURT OF APPEALS

FIRST JUDICIAL DISTRICT

HOUSTON, TEXAS

______________________________________

 CITY OF NASSAU BAY, TEXAS, 

 Appellant, 

v. 

H. RAY BARRETT and 1438 KINGSTREE LANE

 Appellees. 

______________________________________

On Appeal from the 152nd Judicial District Court

of Harris County, Texas

Trial Court No. 2013-10661

______________________________________

APPELLANT CITY OF NASSAU BAY TEXAS’ REPLY BRIEF 

______________________________________

CHAMBERLAIN, HRDLICKA, WHITE, 

 WILLIAMS & AUGHTRY

William S. Helfand

State Bar No. 09388250

Attorney-in-Charge

Charles T. Jeremiah

State Bar No. 00784338

1200 Smith Street, Suite 1400

Houston, Texas 77002

Telephone: (713) 654-9630

Telecopier: (713) 658-2553 

ATTORNEYS FOR APPELLANT

CITY OF NASSAU BAY, TEXAS

ACCEPTED

01-15-00148-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/23/2015 3:09:14 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/23/2015 3:09:14 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS

TABLE OF CONTENTS........................................................................................... i

TABLE OF AUTHORITIES .................................................................................... ii

I. Overview of Appellees’ Reply ........................................................................1

II. Dispositive Material Facts Are Undisputed ....................................................2

III. Appellees’ Due Process Allegation is Specious..............................................3

IV. Straub Statement is not Competent Evidence .................................................6

V. Building Inspector Not Final Policy Maker ....................................................8

VI. Conclusion .....................................................................................................11

CERTIFICATE OF SERVICE ..................................................................................v

i
TABLE OF AUTHORITIES

Page(s)

Cases

Bass v. Parkwood Hosp.,

180 F.3d 234 (5th Cir. 1999) ................................................................8

Bennett v. City of Slidell,

728 F.2d 762 (5th Cir. 1984) ................................................................9

Campbell v. City of San Antonio,

43 F.3d 973 (5th Cir. 1995) ................................................................10

City of Houston v. Aspenwood Apartment Corp.,

1999 WL 681939 (Tex.App. – Houston [1st Dist.] 1999, 

pet. den.)..............................................................................................10

City of Houston v. Leach,

819 S.W.2d 185 (Tex.App. – Houston [14th Dist.] 1991 no 

pet.) .....................................................................................................10

City of Lubbock v. Corbin,

942 S.W.2d 14 (Tex.App. – Amarillo 1996, pet. den.)........................9

City of Paris v. Abbott,

360 S.W.3d 567 (Tex.App. – Texarkana 2011, pet. denied)................5

Cox v. City of Dallas,

2004 WL 2108253 (N.D. Tex. 2004) (unpublished)..........................10

Democracy Coalition v. City of Austin,

141 S.W.3d 282 (Tex.App. – Austin 2004, no pet.).............................8

DePree v. Sanders,

588 F.3d 282 (5th Cir. 2009) ................................................................4

ii
Dodge v. Durdin,

187 S.W.3d 523 (Tex.App. – Houston [1st Dist.] 2005, no 

pet.) .......................................................................................................7

K.D. Pool and Ven-Ken, Inc. v. Johnson County, Texas,

2002 WL 245973 (N.D Tex. 2002) (unpublished)...............................9

Lee v. Whispering Oaks Home Owners’ Ass’n,

797 F.Supp.2d 740 (W.D. Tex. 2011)..................................................6

Merritt v. Harris County,

775 S.W.2d 17 (Tex.App. – Houston [14th Dist.] 1989, 

pet. den.)................................................................................................8

Statutes

City Ordinance...........................................................................................1

City’s Zoning Ordinance.................................................................4, 8, 10

Policymakers act........................................................................................9

Texas Local Government Code § 211.......................................................6

Zoning Ordinance......................................................................................3

iii
Appellant, City of Nassau Bay, Texas (“the City”) replies to Appellees’ 

Response Brief. 

I. Overview of Appellees’ Reply

In their Response, Appellees urge a myopic and piecemeal analysis which 

distorts both the factual background and the applicable law in this case. As set 

forth in the City’s opening brief, when Appellee refused to remove his 

unquestionably noncompliant structure, the City filed this action. Appellee filed a 

counterclaim against the City alleging, solely, a deprivation of his right to due 

process. In the Record Review, however, Appellee received far more process than 

the Constitution requires.

Appellees could have, but decided not to, appeal the decision of the Zoning 

Board of Adjustment, that uphold the Building Official’s determination and denied 

Appellee a variance. Nevertheless, Appellees continue to claim through this 

impermissible collateral attack that the building official simply “got it wrong” in 

finding that Appellees’ structure was not permitted by City Ordinance, originally 

or reconstructed. Appellees’ allegations, even if true, do not present a 

constitutional claim and, as discussed in the City’s opening brief, because 

Appellees did not file the statutorily required appeal, the trial court simply had no 

jurisdiction to review the decision, even if it was illegal.

1
Instead of analyzing whether the building official and/or Zoning Board of 

Adjustment made the correct decision, the only issues properly before the Trial 

Court are whether (1) Appellee was deprived of his right to due process; and (2) 

whether an unconstitutional City policy was the moving force behind such a

deprivation.

In their response brief, Appellees urge this Court to, in effect, mandate that 

the City of Nassau Bay allow what is now, and always has been, an unquestionably 

illegal nonconforming condition that violates, in addition to Appellant’s code, 

health and safety provisions of virtually every residential building code in this 

state. In other words, Appellees ask the Court to force the City to accept 

Appellees’ admitted violation of the Code and except him from an otherwise 

appropriate and fully constitutional restriction.

II. Dispositive Material Facts Are Undisputed

It is undisputed that, long prior to Appellee Barrett’s construction of his bath 

house, the City enacted a zoning ordinance which contained a minimum seven foot 

side setback [C.R. 353]. For accessory structures, the setback is three feet. [C.R. 

339]. It is undisputed Appellee Barrett’s structure has zero setback.1 These setback 

requirements were in effect before Appellees’ structure was built and have been 

ever since. In 1992 Appellee Barrett fixed his structure to the fence running along 

1 Hence, it makes no difference whether the structure was an “accessory.” It undisputedly 

violated the City’s setback requirement either way.

2

 
the property line, bringing his residential structure in hazardous proximity to his 

neighbor’s and in undisputed violation of both setback requirements.2

 To be sure, 

Appellees next door neighbor has firmly objected to the attachment of the structure 

to his fence. [C.R. 98-99].

Appellee Barrett’s structure was not merely a nonconforming structure, it 

was an illegal nonconforming structure, and illegal at the time it was constructed; 

it wasn’t “grandfathered” in. Without a variance, which Appellee Barrett concedes 

he never obtained, Barrett has no right to maintain a structure which violates the 

City’s building Code, even if it was one hundred percent intact. The Building 

Inspector had no power to grant variances from the Zoning Ordinance, by the 

terms of the Ordinance or otherwise. Notably, Barrett does not claim the setback 

requirement which his structure undisputedly violates is unconstitutional, only that 

the City should not be permitted to enforce it against him. 

III. Appellees’ Due Process Allegation is Specious

In their attempt to persuade the Court, Appellees mislead the Court on a 

simple issue of law. A constitutional claim cannot rest on a Building Official’s 

ability to articulate the nuances of his job, or even his understanding. To support 

their position, Appellees attack Mr. Boles or attempt to make him look 

2 Notably, the enclosure occurred nearly ten years after Hurricane Alicia, demonstrating 

the misleading nature of Appellees’ argument that the Hurricane “affected the City’s 

permitting process.”

3

 
incompetent because he didn’t answer hypothetical questions about the building 

code to their satisfaction or take his comments out of context. But undoubtedly, 

these questions are simply not material. The City’s Zoning Ordinance is in the 

record. [C.R. 149-425]. Mr. Boles’ articulation of its requirements or procedures 

does not supersede the black letter of the document and nothing changes 

Appellees’ inarguable noncompliance.

As discussed in the City’s opening brief, Appellee Barrett had no property 

right or interest in a nonconforming structure; no one does. Appellee fails to 

demonstrate any such interest as would be critical to the assertion of a due process 

claim. See, DePree v. Sanders, 588 F.3d 282, 290 (5th Cir. 2009). Accordingly, 

Appellees’ due process claim fails at the outset.

Nor does the contention that Boles changed Appellees request for an appeal 

to the Zoning Board of Adjustment. Soon after Larry Boles and Mary Chambers 

examined the structure, and before Appellee Barrett had even returned from his 

lake house, Boles and Chambers discovered Appellee had never obtained a 

variance from the City and Appellee admittedly could not produce one. When 

Chambers and Boles realized Appellee was required to have a variance for his 

clearly illegal nonconforming structure, Boles assisted Appellee by broadening the 

scope of Barrett’s request for review. Importantly, this change to the form in no 

way limited Appellees’ ability to present his position to the Zoning Board of 

4
Adjustment. But, even if, arguendo, it did those were issues Barrett was required 

to raise to the Board and, if not resolved to his satisfaction, on approval in 

accordance with the statute. 

Moreover, it remains undisputed that Appellee Barrett had notice of the 

hearing, was heard twice, offered all the documents, testimony and argument he 

wished and was fully heard. Appellee Barrett admitted unequivocally that, 

irrespective of what Boles wrote on the form, in the first hearing Barrett challenged 

both the Building Official’s determination (the stop work order), and he sought a 

variance and that the Zoning Board considered and denied both requests. [C.R. 

426-27; see also, C.R. 91-93, 113-114]. Damning to his argument are both the law 

and Barrett’s knowledge that his only remedy to challenge the Board’s decision 

was to timely file suit, which he admittedly failed to do. [C.R. 426-27].

Appellee Barrett was given two hearings and he was permitted to argue the 

stop work order was invalid, that he didn’t need a variance, and that he should be 

granted a variance. Having been permitted the opportunity to make, and have 

actually made such points and has them heard and considered, any due process 

requirement was clearly satisfied. City of Paris v. Abbott, 360 S.W.3d 567, 582 

(Tex.App. – Texarkana 2011, pet. denied). After this, thorough hearing, Appellee 

Barrett could have, but chose not to, appeal the City’s discussion to uphold the stop 

work order to a District Court within ten days under the mandatory statutory 

5
mechanism for resolving his dispute. Appellee Barrett could have argued the stop 

work order was invalid and that a variance should have been granted. He 

admittedly chose not to address any of these issues further, Barrett accepted the 

decision, until the City chose to enforce it. [C.R. 137, 426-27].

Equally, there is no deprivation of substantive due process. Such claims are 

reviewed under a rational basis analysis. Under such an analysis “[t]he Court may 

ask whether there was a conceivable factual basis for the specific decision made 

and nothing more.” Lee v. Whispering Oaks Home Owners’ Ass’n, 797 F.Supp.2d 

740, 750 (W.D. Tex. 2011). Undisputedly, the evidence is this case demonstrates a 

building official received a complaint, found no permit for the job, and issued a 

stop work order because no variance had ever been issued for a structure in clear 

violation of City Code. These circumstances inescapably demonstrate a rational 

basis for City’s enforcement of its unquestionably constitutional zoning 

requirements. Importantly, however, if Appellees disagree with the City, they 

were statutorily required to address that under the mechanism provided under 

Texas Local Government Code § 211.

IV. Straub Statement is not Competent Evidence

In light, particularly, damning controlling statutes and jurisprudence 

Appellees’ reliance on the purported statement of Andy Staub is both irrelevant 

and unavailing. First and foremost, Andy Straub’s statement doesn’t bear on any 

6
material issue before the Court: whether Appellee was deprived of due process or 

whether such a deprivation is attributable to the City. However, Straub’s statement 

is plainly and undisputedly incompetent information. Remarkably, while 

conceding the Straub statement is neither sworn nor testimony, Appellees

nonetheless rely heavily, though misguided, on this incompetent statement in their 

Response. Indeed, in light of Appellees’ acknowledgement Straub’s statement is 

not admissible, Appellees’ reliance would surprising except when the Court 

observes that Appellees have absolutely no competent evidence to support their 

claims. The City timely and firmly objected to Straub’s statement being offered as 

summary judgment evidence. [C.R. 619, 624]. Regardless, objections to the 

substance of this document are not waived on appeal. See, Dodge v. Durdin, 187 

S.W.3d 523, 532 (Tex.App. – Houston [1st Dist.] 2005, no pet.).

Because Appellees now attempt to exploit the absence of a written ruling on 

the City’s admittedly proper objection, the City moves this Court separately and 

contemporaneously, in the interest of justice, to permit leave supplement the record 

with the transcript of the hearing on the plea to the jurisdiction where the Judge 

Schaffer’s implicit, if not express ruling – finding that the Straub statement is not

competent admissible evidence, is clear.

Indeed, the statement itself contains no assertion that it is sworn, contains 

hearsay and conclusory assertions such as the obviously false assertion that 

7
Appellee’s structure “complied with all codes and ordinances at the time” which is

indeed, an objectionable conclusion of law.

V. Building Inspector Not Final Policy Maker

Appellees also bore the burden of demonstrating a City policy was the 

moving force behind the deprivation, here their contention that the building 

inspector was the final policymaking authority. See, e.g., Bass v. Parkwood Hosp., 

180 F.3d 234, 244 (5th Cir. 1999).3

 “The identification of policymaking officials is 

a question of state law which may include valid local ordinances and regulations. 

It is not a question of federal law and it is not a question of fact.” Merritt v. Harris 

County, 775 S.W.2d 17, 24 (Tex.App. – Houston [14th Dist.] 1989, pet. den.) 

(citations omitted). The citizens of Nassau Bay have not empowered their 

Building Inspector to formulate policy on behalf of the City. In fact, he is not even 

the final decision maker. The City’s Zoning Ordinance embodies the City’s 

policies on zoning, the building official’s duties, and permitting. “The authority to 

make municipal policy is the authority to make final policy without any constraints 

on the official’s discretionary decisions.” Id. Although the Building Inspector 

makes decisions, they are not final, nor do they amount to policymaking. 

3 “The ‘official policy’ requirement was intended to distinguish acts of the municipality

from acts of employees of the municipality, and thereby make clear that municipal 

liability is limited to action for which the municipality is actually responsible.” 

Democracy Coalition v. City of Austin, 141 S.W.3d 282, 289 (Tex.App. – Austin 2004, 

no pet.) (emphasis in original) (citation omitted).

8

 
For attribution, “[l]iability must rest on official policy, meaning the city 

government’s policy and not the policy of an individual official.” Bennett v. City 

of Slidell, 728 F.2d 762, 769 (5th Cir. 1984). Of course, policymaking authority “is 

more than discretion and it is far more than the final say so...” Id. “City 

policymakers not only govern conduct; they decide the goals for a particular city 

function and devise the means of achieving those goals. Policymakers act in place 

of the governing body in the areas of their responsibility.” Id.

In Bennett, as in this case, the building inspector’s job was to execute or 

administer the city policy, established by the city council in its building code. Id, 

at 769-770. His decisions were appealable to the board of zoning adjustments. 

Although his decisions were discretionary and ministerial, this didn’t amount to 

policymaking authority within the meaning of the law. Accordingly, the Fifth 

Circuit Court of Appeals unequivocally held that the building inspector was not a 

policymaker whose acts could subject the City to liability. Indeed, there appears to 

be no reported case where the either the Fifth Circuit Court of Appeals or any 

Texas Court has ever held that a building inspector was a final policymaker for 

purposes of attribution under the Monell analysis. See also, City of Lubbock v. 

Corbin, 942 S.W.2d 14, 20 (Tex.App. – Amarillo 1996, pet. den.) (Building Code 

Inspector, whose decisions were appealable to the Building Board of Appeals, was 

not final policymaker); K.D. Pool and Ven-Ken, Inc. v. Johnson County, Texas, 

9
2002 WL 245973 at *5 (N.D Tex. 2002) (unpublished) (Director of County Public 

Works Department as a matter of law was not a final policymaker for the county); 

City of Houston v. Aspenwood Apartment Corp., 1999 WL 681939 at *9 (Tex.App. 

– Houston [1st Dist.] 1999, pet. den.) (building official not final policymaker).

Indeed, “[t]o infer the existence of a city policy from the isolated misconduct 

of a single, low level officer and then to hold the city liable on the basis of that 

policy would amount to permitting precisely the theory of strict respondeat 

superior liability rejected in Monell.” City of Houston v. Leach, 819 S.W.2d 185, 

200 (Tex.App. – Houston [14th Dist.] 1991 no pet.), citing, City of Oklahoma City 

v. Tuttle, 471 U.S. 808, 831, 105 S.Ct. 2427, 2440 (1985). “[L]iability does not 

attach merely because a city employed a tortfeasor.” Cox v. City of Dallas, 2004 

WL 2108253 (N.D. Tex. 2004) (unpublished), citing, Monell at 694, and Campbell 

v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995).

Nowhere did the City vest the building official with the power to formulate 

City policy. The City has enacted its zoning and permitting policies through an 

Ordinance passed by the City Council.4

 Further, as authorized by the State of 

Texas, the City of Nassau Bay has elected to form a Zoning Board of Adjustment 

which can review and reverse the Building Official’s decisions. The City’s Zoning 

Ordinance makes clear, the “Building official” is “charged with the administration 

4 Appellees did not complain of any action by the Nassau Bay City Council [C.R. 112].

10

 
and the enforcement of the zoning ordinances and building code of the City of 

Nassau Bay, Texas.” [C.R. 398]. 

Indeed, Appellees own argument undermines his contention. Appellees 

throughout their brief claim that “Boles exceeded his authority,” and acted 

“arbitrarily,” and was not “empowered to evaluate what constituted 50 percent of 

the value.” [Response, p. 33]. He did not establish City policy, and according to 

Plaintiff he did not even carry out City policy as set forth in the Ordinance. A 

finding that the building inspector was a final policymaking authority of the City 

would be contrary to the record and would flout the letter and spirit of Monell.

VI. Conclusion

Clearly, Appellees failed to establish a deprivation of their right to due 

process. Even if they were deprived of due process, there is no basis for attribution 

to the City of Nassau Bay, as there is no showing that City policy was the moving 

force behind any such deprivation. Accordingly, City of Nassau Bay, Texas prays 

that this Court reverse the trial court’s denial of its Plea to the Jurisdiction, and 

render that the Appellee’s Counterclaim be dismissed for lack of subject matter 

jurisdiction, and for general relief.

11
Respectfully submitted, 

/s/ William S. Helfand

William S. Helfand

Attorney-in-Charge 

SBOT No. 09388250

bill.helfand@chamberlainlaw.com

Charles T. Jeremiah

SBOT No. 00784338

Charles.jeremiah@chamberlainlaw.com

ATTORNEYS FOR APPELLANT

OF COUNSEL:

CHAMBERLAIN, HRDLICKA, WHITE,

WILLIAMS & AUGHTRY

1200 Smith Street, Suite 1400

Houston, Texas 77002-4401

(713) 654-9630

(713) 658-2553 (Fax)

iv
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief has been 

served via CM/ECF System and/or by CD and certified mail, return receipt 

requested, on this 23rd day of July 2015, to:

Iain Gordon Simpson 

Simpson, P.C. 

1333 Heights Blvd, Ste 102 

Houston, Texas 77088 

Email: iain@simpsonpc.com

Jeffrey N. Todd 

The Law Firm of Alton C. Todd 

312 S. Friendswood Drive 

Friendswood, Texas 77546 

Email: Jeff@actlaw.com

/s/ William S. Helfand

1949618.2

130083.000001

v