                          In the
                     Court of Appeals
             Second Appellate District of Texas
                      at Fort Worth
                  ___________________________
                       No.  02-17-00185-CV
                  ___________________________

   THE CITY OF FORT WORTH AND DAVID COOKE, IN HIS OFFICIAL
CAPACITY AS FORT WORTH CITY MANAGER, Appellants/Cross-Appellees


                                  V.

STEPHANNIE LYNN RYLIE, TEXAS C&D AMUSEMENTS, INC.,  AND BRIAN
   AND LISA SCOTT D/B/A TSCA AND D/B/A RIVER BOTTOM PUB,
                   Appellees/Cross-Appellants



                On Appeal from the 17th District Court
                       Tarrant County, Texas
                   Trial Court No.  017-276483-15


                 Before Walker, Gabriel, and Kerr, JJ. 
                       Opinion by Justice Kerr
                                     OPINION

      The Texas constitution directs the Legislature to “pass laws prohibiting

lotteries.”  Tex.  Const.  art.  III, § 47(a).  As a consequence, the Legislature enacted

chapter 47 of the Texas Penal Code, which prohibits most forms of gambling in

Texas, including owning, manufacturing, transferring, and possessing “gambling

devices.”  See Tex.  Penal Code Ann. §§  47.01(4), .06 (West 2011). “ Gambling devices”

are

      any electronic, electromechanical, or mechanical contrivance . . .  that for
      a consideration affords the player an opportunity to obtain anything of
      value, the award of which is determined solely or partially by chance,
      even though accompanied by some skill, whether or not the prize is
      automatically paid by the contrivance. 

Id. § 47.01(4).  But so that Texans may experience such fun as maneuvering a

mechanical claw barely onto the ear of a coveted stuffed Pikachu only to helplessly

watch it drop, at the last moment, to rejoin its piled-up brethren, the penal code

expressly excludes from the definition of “gambling device”

      any electronic, electromechanical, or mechanical contrivance designed,
      made, and adapted solely for bona fide amusement purposes if the
      contrivance rewards the player exclusively with noncash merchandise
      prizes, toys, or novelties, or a representation of value redeemable for
      those items, that have a wholesale value available from a single play of
      the game or device of not more than 10 times the amount charged to
      play the game or device once or $5, whichever is less. 

Id. § 47.01(4)(B).  This exclusion is commonly known as the “fuzzy animal” exception. 

See Fifty Six (56) Gambling Devices v. State, No.  07-03-0132-CV, 2004 WL 635429, at

*2 (Tex.  App.—Amarillo 2004, no pet.) ( op.  on reh’g). 


                                          2
      Relying on this exception—the breadth of which goes well beyond offering

harmless amusement at Chuck E. Cheese’s®—Stephannie Lynn Rylie, Texas C&D

Amusements, Inc., and Brian and Lisa Scott d/b/a TSCA and d/b/a River Bottom

Pub (collectively, the Operators) own, buy, sell, lease, maintain, transport, store, and

exhibit electronic gaming machines commonly known as “eight-liners” at various Fort

Worth locations. 

      Unhappy about the less-than-wholesome clientele attracted to playing eight-

liners, the Fort Worth City Council passed two ordinances in late 2014 aimed at

regulating these machines and the businesses that house them.  In response, the

Operators sued the City of Fort Worth and its city manager, seeking to have the

ordinances declared invalid because (1) they are preempted by, or are in conflict with,

state law—in particular, the Texas Occupations Code and the Alcoholic Beverage

Code—and (2) they violate the Texas constitution’s substantive-due-course-of-law

provisions.  The City counterclaimed seeking to have the fuzzy-animal exception

declared unconstitutional. 

      After both sides moved for summary judgment, the trial court declared

portions of the ordinances invalid because they conflict with state law, but denied the

remaining requested relief.  Both the City and the Operators have appealed.  We will

affirm in part and reverse and render in part. 




                                           3
                                         I.
                                    Background1

      The Operators’ eight-liner machines resemble slot machines and operate solely

or at least predominately by chance.  To start things off, a player inserts cash into the

machine, and the machine records the corresponding number of credits.  After the

player chooses the number of credits he wants to play, the machine reduces the

credits accordingly.  The player then starts a random “spin” by pushing a button. 

Depending on the machine, either the spinning automatically stops or the player can

stop the spinning by pressing a button.  The player wins by matching electronic

symbols in one of eight (or more) lines on the screen—three horizonal, three vertical,

or two diagonal.  For each win, the machine records the number of credits won. 

      When a player has had enough, the machine dispenses tickets or coupons

corresponding to the number of credits the player has won, if any.  Depending on the

location, a player can redeem his tickets or coupons for a prize from a redemption

book,2 a prize from a redemption counter,3 or the right of replay.4


      1
       The facts of this case are largely undisputed.  The parties agreed to and signed a
“Statement of Undisputed Facts,” which each of them used to support their
summary-judgment motions and responses. 
      2
        A redemption book is a prize catalog that the Operators keep.  If the player
selects a prize from the book, the Operators deliver that prize to the location owner,
who then gives it to the player. 

      A redemption counter is an on-site display of prizes where a player can
      3

exchange tickets or coupons for a prize. 


                                           4
      According to the City, businesses that operate eight-liner machines “can have a

deleterious effect on both the existing businesses around them and the surrounding

residential areas adjacent to them, causing increased crime,” and “have objectionable

operational characteristics . . .  contributing to urban blight and downgrading the

quality of life in the adjacent area.”  In an effort to “minimize and to control these

adverse effects and thereby protect the health, safety, and welfare of the citizenry,” to

“protect citizens from increased crime,” to “deter the spread of urban blight,” and to

preserve “quality of life,” property values, and the “character of surrounding

neighborhoods,” the Fort Worth City Council passed two ordinances in October

2014: Ordinance No.  21499-10-2014 (the Zoning Ordinance) and Ordinance

No.  21500-10-2014 (the Licensing Ordinance). 

      Both ordinances regulate “amusement redemption machines” and “game

rooms” within the City’s limits.  A “game room,” as the ordinances define one, is “a

building, facility or other place where one or more amusement redemption machines

are present.”  With carve-outs not relevant here except to note that Chuck E.

Cheese’s- and Main Event-type businesses are unaffected, the ordinances define an

“amusement redemption machine” as

      any electronic, electromechanical, or mechanical contrivance, including
      sweepstakes machines, designed, made, and adapted solely for bona fide

      4
       The right of replay lets a player exchange credits won on a machine and play
the same machine or a different machine at the same location for the credit value of
his winnings.  The City and the Operators agree that this replay right is a prize. 


                                           5
      amusement purposes, and that by operation of chance or a combination
      of skill affords the user, in addition[] to any right of replay, an
      opportunity to receive exclusively non-cash merchandise prizes, toys, or
      novelties, or a representation of a value redeemable for those items and
      is in compliance with Section 47.01(4)(b) of the Texas Penal Code [the
      fuzzy-animal exception]. 

The parties agree that the Operators’ machines are “amusement redemption

machines.” 

      Among other things, both ordinances place zoning restrictions on game rooms

that confine them to industrial-zoned areas; prohibit them from operating within

1,000 feet of a residential district, church, school, hospital, or another game room; and

limit the number of game rooms allowed on any lot or in any single building,

structure, or strip center.  And unless a game room is already licensed under the Texas

Alcoholic Beverage Code for the sale, purchase, possession, or consumption of

“alcoholic beverages” (as the code defines that term) the ordinances prohibit the sale,

etc.  of alcoholic beverages in such a location.  Particular to the Licensing Ordinance,

operators of game rooms and amusement-redemption machines must obtain a license

from the City.  That ordinance also imposes an inspection and license fee on game-

room operators; levies an occupation tax on each amusement-redemption machine;

allows the City to seal any amusement-redemption machine for which the occupation

tax or license fee has not been paid; and authorizes the City to charge a fee to unseal

the machine. 




                                           6
      Soon after the City Council passed the ordinances, the Operators sued the City

seeking a declaration that the Zoning and Licensing Ordinances (along with an

associated fee schedule, Ordinance No.  21631-02-2015, which was passed several

months later) are void because Texas Occupations Code chapter 2153—a statute

governing the licensing, taxing, and regulation of (among other things) skill or

pleasure coin-operated machines—preempts the ordinances completely or,

alternatively, preempts them to the extent that chapter 2153 and the ordinances

conflict.  See generally Tex.  Occ.  Code Ann. §§  2153.001–.453 (West 2012) (“Coin-

Operated Machines”).  The Operators also sought a declaration that the Texas

Alcoholic Beverage Code preempts the ordinances’ restrictions on the sale, purchase,

possession, and consumption of alcohol.  5 See Tex.  Alco.  Bev.  Code Ann. §  1.06 (West

2007) (“Code Exclusively Governs”), § 109.57 (West Supp.  2017) (“Application of

Code; Other Jurisdictions”).  The City counterclaimed seeking to have penal code

section 47.01(4)(B)—the fuzzy-animal exception—declared unconstitutional, arguing

that it violates article III, section 47 of the Texas constitution by allowing forbidden

“lotteries.”  See Tex.  Const.  art.  III, § 47; Tex.  Penal Code Ann. §  47.01(4)(B). 

      Both sides moved for summary judgment as a matter of law on their respective

declaratory-relief requests.  The trial court granted the Operators’ motion in part and

denied it in part.  In particular, the trial court determined that some of the ordinances’

      5
       The Operators also asserted claims for injunctive relief and regulatory takings,
which they later nonsuited. 


                                            7
zoning and sealing-fee provisions conflicted with and were preempted by occupations

code chapter 2153.  But the trial court denied the balance of the Operators’ motion,

including their claims that chapter 2153 completely preempts the ordinances, and that

the alcoholic-beverage code preempts the ordinances’ alcohol restrictions.  The trial

court also denied the City’s summary-judgment motion on its counterclaim. 

      While the case was pending in the trial court, the Texas Supreme Court issued

Patel v. Texas Department of Licensing & Regulation, in which the court set out the

elements for an as-applied challenge to an economic-regulation statute under the

Texas constitution’s substantive-due-course-of-law requirement.  See 469 S.W.3d 69,

87 (Tex.  2015); see also Tex.  Const.  art.  I, § 19.  Relying on Patel, the Operators

supplemented their petition to include an as-applied challenge to the ordinances,

alleging that they violate the Texas constitution’s substantive-due-course-of-law

provision and requesting a declaration that the ordinances are therefore invalid.  See

Tex.  Const.  art.  I, § 19.  After the Operators filed that supplement, the City

successfully moved for summary judgment on no-evidence grounds. 

      The parties tried their competing claims for attorney’s fees and costs to the

bench.  The trial court denied all attorney’s-fees claims, 6 rendered a final judgment

incorporating its summary-judgment rulings, and denied relief on the City’s

counterclaim.  In this latter regard, the trial court also found “as a matter of law” that

      6
        The parties agreed that they would each bear their own court costs.  Neither
side attacks the trial court’s decision not to award attorney’s fees. 


                                           8
penal code section 47.01(4)(B) is constitutional.  Both sides have appealed from this

judgment. 

                                    II. 
        The Operators’ Preemption Claims and the City’s Counterclaim

       As noted, the trial court partially granted and partially denied the Operators’

summary-judgment motion on their preemption claims and denied the City’s

counterclaim seeking to have the fuzzy-animal exception declared unconstitutional.  In

its posture as appellant, in two issues the City complains that the trial court erred by

partially granting the Operators’ motion and declaring that the occupation code’s

chapter 2153 partially preempts the ordinances.  In their own first two issues, as cross-

appellants, the Operators contend that the trial court erred by declaring that chapter

2153 does not completely preempt the ordinances and by determining that the alcoholic-

beverage code does not in any way preempt the ordinances’ alcohol restrictions.  The

Operators also argue that the trial court lacked subject-matter jurisdiction over the

City’s counterclaim because it did not present a justiciable controversy and thus that

the trial court erred by entering any substantive holding related to that counterclaim

rather than dismissing it for want of jurisdiction. 

A. Standards of review

       We review a declaratory judgment decided by summary judgment under the

same standards of review that govern summary judgments.  See Tex.  Civ.  Prac. &  Rem. 

Code Ann. §  37.010 (West 2015); Twin Creeks Golf Grp.,  L.P. v. Sunset Ridge Owners


                                            9
Ass’n, Inc., 537 S.W.3d 535, 539 (Tex.  App.—Austin 2017, no pet.);  Stanton v. Forum

Arlington Props.,  Ltd., No.  02-07-301-CV, 2009 WL 1099454, at *2 (Tex.  App.—Fort

Worth Apr. 23, 2009, no pet.) ( mem.  op.).  We review a summary judgment de novo. 

Travelers Ins.  Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.  2010).  In doing so, we consider

the evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not.  Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.  2009).  We

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.  2008).  A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential elements

of the claim.  See Tex.  R. Civ.  P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,

60 (Tex.  1986). 

      The Operators’ and the City’s preemption-related issues involve statutory

construction, which we also review de novo.  Crosstex Energy Servs.,  L.P. v. Pro Plus, Inc.,

430 S.W.3d 384, 389 (Tex.  2014). “ In construing statutes our primary objective is to

give effect to the Legislature’s intent.”  Tex.  Lottery Comm’n v. First State Bank of

DeQueen, 325 S.W.3d 628, 635 (Tex.  2010).  The best expression of legislative intent is

the plain meaning of a statute’s text.  Abutahoun v. Dow Chem.  Co., 463 S.W.3d 42,

46 (Tex.  2015). “ If the statute is clear and unambiguous, we must read the language

according to its common meaning ‘without resort to rules of construction or extrinsic

                                            10
aids.’”  Crosstex Energy Servs.,  430 S.W.3d at 389 (quoting State v. Shumake, 199 S.W.3d

279, 284 (Tex.  2006)).  We therefore initially limit our statutory review to the text’s

plain meaning as “the sole expression of legislative intent unless the Legislature has

supplied a different meaning by definition, a different meaning is apparent from the

context, or applying the plain meaning would lead to absurd results.”  Abutahoun,

463 S.W.3d at 46 (citations omitted). “[ W]hen interpreting a statute, ‘[t]he text is the

alpha and the omega of the interpretative process.’”  Bosque Disposal Sys.,  LLC v. Parker

Cty.  Appraisal Dist.,  No.  17-0146, 2018 WL 2372810, at *2 (Tex.  May 25, 2018)

(quoting BankDirect Capital Fin.,  LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 

2017)). 

B. The Occupations Code

      Chapter 2153’s stated purpose is “to provide comprehensive and uniform

statewide regulation of . . .  skill or pleasure coin-operated machines.”  Tex.  Occ.  Code

Ann. §  2153.001.  As they did below, the Operators claim in their first issue that this

language evinces the Legislature’s intent to exclusively regulate such machines, and

that based on complete-preemption principles, the City’s ordinances thus overstepped

what a municipality may do.  Although the trial court disagreed with the idea of

wholesale preemption, it did apply conflict-preemption principles to declare that

certain of the ordinance provisions conflict with and are therefore preempted by

chapter 2153. 



                                          11
      In their two issues, the City challenges the trial court’s partial summary

judgment in the Operators’ favor, arguing that chapter 2153 does not even partly

preempt the ordinances because chapter 2153 does not apply to the Operators’

machines at all.  7 The City’s position can be broken into four pieces: (1) the machines

are not “skill or pleasure coin-operated machines” under the occupations code; (2) the

eight-liner machines are lotteries, which the Texas constitution prohibits; (3) because

the Texas constitution prohibits lotteries, the fuzzy-animal exception in penal code

section 47.01(4)(B) is unconstitutional because it legalizes lotteries, and the Operators’

machines, which they operate under that section, are therefore illegal; and (4) even if

47.01(4)(B) is constitutional, the eight-liner machines do not fall within the fuzzy-

animal exception and are therefore gambling devices prohibited by the penal code.8

      We take up the City’s arguments first, addressing piece 1 separately, and then

addressing the remaining pieces together in subsection B.2.  We will then examine, in

subsections B.3 and B.4, the Operators’ argument challenging the trial court’s

jurisdiction over the City’s counterclaim and their complete-preemption argument. 




      7
       That is, instead of attacking the trial court’s discrete partial-preemption
findings, the City is going all in on chapter 2153. 
      8
        Despite the City’s protestations that the occupations code does not apply to
the Operators’ machines, the Licensing Ordinance states that the City’s occupation
tax levied on the machines is “specifically authorized by Texas Occupations Code
§ 2153.451.” 


                                           12
      1.  The Operators’ machines are “skill or pleasure coin-operated machines.” 

      The occupations code defines “skill or pleasure coin-operated machine” as

      any kind of coin-operated machine[9] that dispenses, or is used or is
      capable of being used to dispense or afford, amusement, skill, or
      pleasure or is operated for any purpose, other than for dispensing only
      merchandise, music, or service.  The term:

             (A) includes a marble machine, marble table machine, marble
             shooting machine, miniature racetrack machine, miniature football
             machine, miniature golf machine, miniature bowling machine,
             billiard or pool game, or machine or device that dispenses
             merchandise or commodities or plays music in connection with or
             in addition to dispensing skill or pleasure; and

             (B) does not include an amusement machine designed exclusively
             for a child. 

Id. § 2153.002(9). 

      The City argues that the Operators’ machines are not “skill or pleasure coin-

operated machines” because (1) they dispense tickets or coupons redeemable for

prizes, which section 2153.002’s plain language does not contemplate;10 (2) the

machines do not dispense merchandise or commodities; and (3) the machines are not



      9
        A “coin-operated machine” is “any kind of machine or device operated by or
with a coin or other United States currency, metal slug, token, electronic card, or
check, including a music or skill or pleasure coin-operated machine.”  Tex.  Occ.  Code
Ann. §  2153.002(1).  The City does not dispute that the Operators’ machines are
machines or devices “operated by or with a coin or other United States currency,
metal slug, token, electronic card, or check.”  Id.
      10
        The City also complains that such a construction would be “impermissibly
inconsistent with the Penal Code.”  But as we explain below, we need not determine
whether the Operators’ machines violate the penal code. 


                                              13
the type of machines the Legislature listed as examples of “skill or pleasure coin-

operated machines.” 

       The definition of “skill or pleasure coin-operated machines” is quite broad—

and certainly broad enough that we must disagree with the City’s position that the

Operators’ machines are not covered: they are coin-operated, they offer amusement

or pleasure, and they do not dispense only merchandise, music, or service.  See id.

Indeed, in their “Statement of Undisputed Facts,” the parties agreed that the

Operators’ machines are “amusement redemption machines” under the ordinances;

and as relevant to the City’s argument here, both ordinances define “amusement

redemption machines” as “any electronic, electromechanical, or mechanical

contrivance, including sweepstake machines, designed, made, and adapted solely for bona fide

amusement purposes.” [ Emphasis added.] 

       Furthermore, simply because the machines dispense tickets or coupons

redeemable for prizes rather than the prizes themselves does not remove the eight-

liners from the realm of “skill or pleasure coin-operated machines.”  The statute’s

definition does not exclude machines that dispense tickets or coupons, nor does the

definition affirmatively require that a machine dispense merchandise or commodities

to be considered a “skill or pleasure coin-operated machine.”  Rather, a “machine or

device that dispenses merchandise or commodities . . .  in connection with or in

addition to dispensing skill or pleasure” is simply one among several examples of

machines included in the term “skill or pleasure coin-operated machine.”  Id. The term

                                            14
“includes” is one of “enlargement and not of limitation or exclusive enumeration, and

use of the term[] does not create a presumption that components not expressed are

excluded.”  See Tex.  Gov’t Code Ann. §  311.005(13) (West 2013).  We hold that the

Operators’ machines are “skill or pleasure coin-operated machines” as defined by the

occupations code. 

      2.  Chapter 2153’s plain language does not exempt allegedly illegal or unconstitutional
      machines from regulation. 

      Chapter 2153 does not “authorize or permit the keeping, exhibition, operation,

display, or maintenance of a machine, device, or table prohibited by the constitution

of this state or the Penal Code.”  Tex.  Occ.  Code Ann. §  2153.003.  Claiming that this

language precludes applying chapter 2153 to illegal machines, that the Operators’

machines are unconstitutional lotteries, and that the fuzzy-animal exception was an

unlawful legislative attempt to do an end-run around that constitutional prohibition,

the City argues that preemption does not come into play at all.  11 The City further

argues that even if section 47.01(4)(B) is constitutional, the machines do not fall

within that fuzzy-animal exclusion and are therefore gambling devices prohibited by

the penal code. 

      Contrary to the City’s assertions, section 2153.003’s plain language does not

exempt machines from regulation simply because the constitution or the penal code

      11
        The City fails to explain how, if the State may not regulate an allegedly illegal
machine, the City itself may nevertheless validly impose and enforce a comprehensive
regulatory scheme on that same machine. 


                                            15
might prohibit them.  Section 2153.003—entitled “Construction of Chapter Consistent

With Other Law”—merely avoids any possible confusion about whether an

unconstitutional or illegal device becomes de facto legitimate if chapter 2153 regulates

it.  It plainly does not.  We can intuit this result from the following section—section

2153.004, entitled “Exempt Machines”—that lists the types of machines to which

chapter 2153 does not apply: stamp-vending machines; service coin-operated

machines; and, if subject to an occupation or gross-receipts tax, gas meters and

machines that vend food, confections, beverages, merchandise, and cigarettes.  Id.

§ 2153.004.  All statutorily defined machines other than those excepted under section

2153.004 can be regulated, and the exceptions do not include machines prohibited by

the Texas constitution or the penal code.  See id. If the Legislature intended to exclude

unconstitutional or illegal machines from regulation, it would and could have said so. 

      Because the machines are “skill or pleasure coin-operated machines” and

because sections 2153.003 and 2153.004 do not exclude unconstitutional or illegal skill

or pleasure coin-operated machines from regulation under chapter 2153, we need not

address the City’s remaining arguments against preemption.  That is, whether the

Operators’ machines are unconstitutional lotteries, whether penal code section

47.01(4)(B) is constitutional, or whether the machines come under section

47.01(4)(B)’s fuzzy-animal exception fall away from our analysis because these issues

are unnecessary to resolve the City’s argument against preemption.  See Tex.  R. App.  P.

47.1.  In fact, we cannot analyze these arguments because we may not render advisory

                                          16
opinions.  See Tex.  Ass’n of Bus.  v. Tex.  Air Control Bd.,  852 S.W.2d 440, 444 (Tex.  1993)

(stating that a Texas court lacks jurisdiction to issue an advisory opinion, “[t]he

distinctive feature” of which is that it “decides an abstract question of law without

binding the parties”); see also Rusk State Hosp.  v. Black, 392 S.W.3d 88, 95 (Tex.  2012)

(stating that “the Texas constitution does not afford courts jurisdiction to make

advisory decisions or issue advisory opinions”). 

       We therefore overrule the City’s two issues. 

       3.  The trial court lacked subject-matter jurisdiction over the City’s counterclaim concerning the
       fuzzy-animal exception’s purported unconstitutionality. 

       As noted, the City counterclaimed seeking to have section 47.01(4)(B) declared

unconstitutional, arguing that it violates the Texas constitution’s prohibition against

lotteries.  See Tex.  Const.  art.  III, § 47; Tex.  Penal Code Ann. §  47.01(4)(B).  Such a

declaration, in the City’s view, would “obviate the need” to evaluate the Operators’

preemption argument.12 The City moved for summary judgment on its counterclaim,

which the trial court denied because—as stated in the final judgment—it determined

as a matter of law that section 47.01(4)(B) does not violate article III, section 47 of the

Texas constitution.  13




        See immediately preceding footnote. 
       12



       The City does not challenge the trial court’s denying its summary-judgment
       13

motion on this claim or the denial of its counterclaim. 


                                                 17
       The Operators contend that because chapter 2153 applies to all nonexcluded

skill or pleasure coin-operated machines—legal or illegal, constitutional or

unconstitutional—the City’s counterclaim does not present a justiciable controversy. 

Contending that the trial court therefore lacked subject-matter jurisdiction over the

City’s counterclaim, the Operators urge us to render judgment dismissing that

counterclaim for want of jurisdiction rather than let stand any declaration about the

fuzzy-animal exception’s constitutionality. 

      Under the declaratory-judgments act, a person “whose rights, status, or other

legal relations are affected by a statute . . .  may have determined any question of

construction or validity arising under the . . .  statute . . .  and obtain a declaration of

rights, status, or other legal relations thereunder.”  Tex.  Civ.  Prac. &  Rem.  Code Ann. 

§ 37.004(a) (West 2015).  The act does not create or enlarge a trial court’s jurisdiction;

it is simply a procedural device for deciding cases that are within the court’s

jurisdiction.  Tex.  Dep’t of Transp.  v. Sefzik, 355 S.W.3d 618, 621–22 (Tex.  2011); see Tex. 

Ass’n of Bus.,  852 S.W.2d at 444 (stating that the declaratory-judgments act is “merely a

procedural device for deciding cases already within a court’s jurisdiction rather than a

legislative enlargement of a court’s power” that would permit rendering advisory

opinions, which both the Texas and federal constitutions prohibit). 

      Subject-matter jurisdiction requires that the party bringing the suit have

standing, that there be a live controversy between the parties, and that the case be

justiciable.  State Bar of Tex.  v. Gomez, 891 S.W.2d 243, 245 (Tex.  1994).  Accordingly, a

                                              18
declaratory-judgment action is within the trial court’s subject-matter jurisdiction when

a justiciable controversy exists about the rights and status of the parties before the

court for adjudication, and the declaration sought must actually resolve that

controversy.  Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163–64 (Tex.  2004).  A

“justiciable controversy” is a real and substantial controversy involving a genuine

conflict of tangible interests and not just a theoretical dispute.  Bonham State Bank v.

Beadle, 907 S.W.2d 465, 467 (Tex.  1995); Trinity Universal Ins.  Co. v. Sweatt, 978 S.W.2d

267, 270 (Tex.  App.—Fort Worth 1998, no pet.) ( stating that a justiciable controversy

is a “real controversy between the parties that will be actually determined by the

judicial declaration sought”).  Without a justiciable controversy, a trial court must

dismiss a case for lack of subject-matter jurisdiction.  Transp.  Ins.  Co. v. W.H. Cleaners,

Inc., 372 S.W.3d 223, 227 (Tex.  App.—Dallas 2012, no pet.). 

      As we have determined, we need not reach the issue of section 47.01(4)(B)’s

constitutionality in order to resolve the preemption issue.  We thus agree with the

Operators that the City’s counterclaim does not present a justiciable controversy. 

Here, the fuzzy-animal exception’s constitutionality is merely a theoretical dispute,

and no existing dispute between the parties will be resolved by the declaration the City

seeks.  In other words, because chapter 2153 (and the City’s ordinances) apply to the

Operators’ machines regardless of whether they are illegal or unconstitutional, section

47.01(4)(B)’s constitutionality is irrelevant here.  The trial court therefore lacked

subject-matter jurisdiction over the City’s declaratory-judgment counterclaim. 

                                           19
      We now turn to the Operators’ preemption-related issues involving the

occupations code. 

      4.  The Occupations Code does not completely preempt the ordinances. 

      The Operators argued in their summary-judgment motion that because chapter

2153’s stated purpose is “to provide comprehensive and uniform statewide regulation

of music and skill or pleasure coin-operated machines,” chapter 2153 completely

preempts the City’s ordinances.  Tex.  Occ.  Code Ann. §  2153.001.  The trial court

disagreed, finding that because section 2153.001 “does not preempt local regulation

‘with unmistakable clarity,’” the ordinances were not completely preempted.  In their

first issue, the Operators argue that the trial court erred by denying them summary

judgment on their complete-preemption claim. 

      The City of Fort Worth is a home-rule city, deriving its power from article XI,

section 5 of the Texas constitution.  See Tex.  Const.  art.  XI, § 5; S. Crushed Concrete,

LLC v. City of Houston, 398 S.W.3d 676, 678 (Tex.  2013).  As a home-rule city, the City

has the full power of self-government and looks to the Legislature not for grants of

power, but only for limits on its powers.  See S. Crushed Concrete, 398 S.W.3d at 678;

Dallas Merch. ’s and Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 

1993).  But a home-rule city cannot enact an ordinance containing a provision

inconsistent with Texas’s constitution or general laws.  See Tex.  Const.  art.  XI, § 5(a)

(mandating that no city ordinance “shall contain any provision inconsistent with the

Constitution of the State, or of the general laws enacted by the Legislature of this

                                              20
State”); see also BCCA Appeal Grp.,  Inc. v. City of Houston, 496 S.W.3d 1, 7 (Tex.  2016);

Dallas Merch. ’s, 852 S.W.2d at 490–91.  A home-rule city ordinance is unenforceable to

the extent that it is inconsistent with a state statute preempting that particular subject

matter.  BCCA Appeal Grp.,  496 S.W.3d at 7; Dallas Merch. ’s, 852 S.W.2d at 491. 

       The Legislature may preempt a subject matter normally within a home-rule

city’s broad powers only if it does so with “unmistakable clarity.”  S. Crushed Concrete,

398 S.W.3d at 678; Dallas Merch. ’s, 852 S.W.2d at 491.  Simply because the Legislature

has enacted a law addressing some particular topic does not automatically result in

complete preemption.  City of Richardson v. Responsible Dog Owners of Tex.,  794 S.W.2d 17,

19 (Tex.  1990) (“[T]he mere fact that the legislature has enacted a law addressing a

subject does not mean that the subject matter is completely preempted.”);  City of

Brookside Vill.  v. Comeau, 633 S.W.2d 790, 796 (Tex.),  cert.  denied, 459 U.S. 1087 (1982)

(stating that “[t]he entry of the state into a field of legislation . . .  does not

automatically preempt that field from city regulation”).  But local regulation is

“acceptable” if it is “ancillary to and in harmony with the general scope and purpose

of the state enactment.”  Brookside Vill.,  633 S.W.2d at 796. “ Absent an express

limitation, if the general law and local regulation can coexist peacefully without

stepping on each other’s toes, both will be given effect or the latter will be invalid only

to the extent of any inconsistency.”  City of Laredo v. Laredo Merchs.  Ass’n, 550 S.W.3d

586, 593 (Tex.  2018) (citing City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex.  1927) (“Of

course, a general law and a city ordinance will not be held repugnant to each other if

                                            21
any other reasonable construction leaving both in effect can be reached. . . . [ B]oth

will be enforced if that be possible under any reasonable construction . . . .”)).  We

look to see whether the Legislature expressed its preemptive intent through clear and

unmistakable statutory language.  See BCCA Appeal Grp.,  496 S.W.3d at 8. 

      The Operators assert that the section 2153.001 phrase “comprehensive and

uniform statewide regulation” indicates a legislative intent to completely preempt any

local regulation of coin-operated machines.  As support, the Operators point to the

Legislature’s “elaborate mechanism” through which the state comptroller has broad

regulatory authority to enforce the chapter’s provisions over skill or pleasure coin-

operated machines.  See generally Tex.  Occ.  Code Ann. §§  2153.051–.058, .301–.307,

.351–.362.  It is true that chapter 2153 includes extensive record-keeping requirements,

business regulations, and licensing and registration requirements related to coin-

operated machines, see generally id. §§ 2153.151–.258, and imposes an occupation tax

“on each coin-operated machine that an owner exhibits[14] or displays, or permits to

be exhibited or displayed in this state,” id. § 2153.401.  The chapter also expressly

permits some local regulation of coin-operated machines: counties and municipalities


      14
        Chapter 2153 does not explain what it means to “exhibit” a machine, but in
this context it seems to be an archaic way of saying “display for the purpose of
obtaining players.”  See, e.g., Choppell v. State, 27 Tex.  Ct.  App.  310, 313–14, 11 S.W.
411, 412 (1889) (holding that a craps game did not fall within the statute outlawing
keeping or exhibiting a “gaming table or bank,” and noting that one element is that
the gaming table or bank “must be exhibited,—that is, displayed for the purpose of
obtaining betters”). 


                                          22
can (1) impose an occupation tax on coin-operated machines as long as the tax rate

does not exceed one-fourth of the rate that section 2153.401 imposes; (2) restrict the

exhibition of coin-operated amusement machines within 300 feet of a church, school,

or hospital; and (3) seal a coin-operated machine if a county or municipal occupation

tax is not paid, and charge up to a $5 fee to release the sealed machine.  Id.

§§ 2153.451–.453. 

      As noted, home-rule cities like Fort Worth have the full power of self-

government and look to the Legislature only for limits on that power.  See Dallas

Merch. ’s, 852 S.W.2d at 490–91.  And any limitation exists only when the statute speaks

with “unmistakable clarity.”  Id. at 491.  Here, the only limitations that chapter

2153 places on municipalities relate to occupation-tax rates, zoning, and release-fee

amounts.15 The Operators do not cite, nor have we found, any cases in which a Texas

court has construed the phrase “comprehensive and uniform statewide regulation” (or

similar language) to indicate, with unmistakable clarity, the Legislature’s intent to

preempt an entire subject matter. 

      Indeed, had the Legislature intended the State to exclusively regulate coin-

operated machines, it could easily have said so, as it has done in other areas.  See, e.g.,

Tex.  Alco.  Bev.  Code Ann. §  109.57(b) (“It is the intent of the legislature that this

code shall exclusively govern the regulation of alcoholic beverages in this state, and that

      15
        The trial court granted summary judgment on the Operators’ claims that parts
of the ordinances conflicted with chapter 2153’s zoning and release-fee limitations. 


                                            23
except as permitted by this code, a governmental entity of this state may not

discriminate against a business holding a license or permit under this code.” ( emphasis

added));16 Tex.  Loc.  Gov’t Code Ann. §  143.1115(a) (West 2008) (“This section

provides the exclusive procedure for determining whether a fire fighter or police officer is

sufficiently physically or mentally fit to continue the person’s duties or assignment.” 

(emphasis added)); Dallas Merch’s, 852 S.W.2d at 491–92 (“The Legislature’s intent is

clearly expressed in section 109.57(b) of the TABC—the regulation of alcoholic

beverages is exclusively governed by the provisions of the TABC unless otherwise

provided.  Section 109.57 clearly preempts an ordinance of a home-rule city that

regulates where alcoholic beverages are sold under most circumstances.” ( citation and

footnote omitted)); Tyra v. City of Houston, 822 S.W.2d 626, 628 (Tex.  1991) (“By

providing in [section 143.1115(a)] the ‘exclusive procedure for determining whether a

fire fighter or police officer is sufficiently physically or mentally fit to continue the

person’s duties or assignment,’ the legislature has withdrawn the City’s authority to

create its own procedures for that purpose.”). 

       Similarly, the Legislature could have used other sorts of “express preemption”

language establishing its intent to occupy a particular field.  See, e.g., Tex.  Nat.  Res. 

Code Ann. §  81.0523(c) (West Supp.  2017) (stating that subject to limited exceptions,


       As we make clear in the next section of this opinion, the alcoholic-beverage
       16

code completely preempts local regulation in a way that the occupations code does
not. 


                                            24
“[t]he authority of a municipality or other political subdivision to regulate an oil and

gas operation is expressly preempted” (emphasis added)).  Or the Legislature could have

said that chapter 2153 “supersedes” local regulation of coin-operated machines.  See id.

§ 133.085(c) (West 2011) (“The provisions of this Act supersede any other municipal

ordinance or county regulation that seeks to accomplish the same ends as set out

herein.” ( emphasis added)). 

      Or, in yet another variation on how to signal complete preemption, the

Legislature could have stated that cities are “prohibited” from passing any ordinances

regulating coin-operated machines.  See Tex.  Health & Safety Code Ann. §  361.0961(a)

(West 2016) (prohibiting local governments from adopting certain ordinances, rules,

or regulations related to waste management); Laredo Merchs.,  550 S.W.3d at 593 (“In

this case, the legislative intent in the Act to preempt local law is clear. [ Section

361.0961(a)] states that ‘[a] local government or other political subdivision may not

adopt’ certain ordinances.”);  cf.  Tex.  Health & Safety Code Ann. §  382.113(b) (West

2016) (“An ordinance enacted by a municipality must be consistent with [the Texas

Clean Air Act] and the [TCEQ]’s rules and orders and may not make unlawful a

condition or act approved or authorized under this chapter or the commission’s rules

or orders.” ( emphasis added)); S. Crushed Concrete, 398 S.W.3d at 679 (holding that

section 382.113(b)’s plain language demonstrated the legislature’s clear intent to

preempt ordinances that make unlawful an “act approved or authorized under . . .  the

[TCEQ]’s . . .  orders”). 

                                          25
      But in enacting chapter 2153 of the occupations code, the Legislature did not

use any of these signals, instead coming up with a “purpose” description that is

unique to section 2153.001.  Without more to guide us, we therefore conclude and

hold that chapter 2153’s stated purpose “to provide comprehensive and uniform

statewide regulation of music and skill or pleasure coin-operated machines” does not

indicate the Legislature’s clear and unmistakable intent to wholly preempt local

regulation of such machines.  We overrule the Operators’ first issue. 

C. The Alcoholic-Beverage Code

      In their second issue, the Operators complain that the trial court erred by not

agreeing that the alcoholic-beverage code preempts two ordinance provisions

prohibiting the sale, possession, purchase, and consumption of alcohol in game

rooms.  The trial court denied the Operators summary judgment because the

ordinances “do not impose additional restrictions on a premises required to have a

license under TABC §§ 1.06, 109.57.” 

      The alcoholic-beverage code provides that “[u]nless otherwise specifically

provided by the terms of this code, the manufacture, sale, distribution, transportation,

and possession of alcoholic beverages shall be governed exclusively by the provisions

of this code.”  Tex.  Alco.  Bev.  Code Ann. §  1.06.  Section 109.57 states that the

alcoholic-beverage code exclusively governs a city’s ability to regulate alcoholic

beverages except as the code permits.  See id. § 109.57(b) (“It is the intent of the

legislature that this code shall exclusively govern the regulation of alcoholic beverages

                                           26
in this state, and that except as permitted by this code, a governmental entity of this

state may not discriminate against a business holding a license or permit under this

code.”);  accord Dallas Merch. ’s, 852 S.W.2d at 492 (“Section 109.57 clearly preempts an

ordinance of a home-rule city that regulates where alcoholic beverages are sold under

most circumstances.  Accordingly, we hold that to the extent of any conflict, the

TABC preempts the Ordinance.” ( footnote omitted)).  The Operators argue that these

code provisions “clearly preempt” the City’s alcoholic-beverage ordinances. 

      The Zoning Ordinance and the Licensing Ordinance both prohibit the “sale,

purchase, possession, or consumption of any alcoholic beverages as defined by the

Texas Alcoholic Beverage Code” in game rooms “unless the premises is licensed

under the provisions of said code for the sale, purchase, or possession of alcoholic

beverages. ”17 But the alcoholic-beverage code permits cities to regulate alcoholic-


      17
        Specifically, the Zoning Ordinance provides that “[t]he sale, purchase,
possession[,] or consumption of any alcoholic beverages as defined by the Texas
Alcoholic Beverage Code shall not be permitted unless the premises is licensed under
the provisions of said code for the sale, purchase, or possession of alcoholic
beverages.”  Similarly, the Licensing Ordinance states,

      A licensee hereunder shall not permit any of the following activities
      within the licensed premises:

             (a) The sale, purchase, possession[,] or consumption of any
             alcoholic beverages as defined by the Texas Alcoholic Beverage
             Code unless the premises is licensed under the provisions of said
             code for the sale, purchase, or possession of alcoholic beverages;

             ....


                                          27
beverage sales only in limited circumstances.  See, e.g., Tex.  Alco.  Bev.  Code Ann. 

§ 109.31 (West 2007) (allowing cities to prohibit liquor sales in residential areas),

§ 109.32 (West 2007) (allowing cities to prohibit beer sales in residential areas and to

regulate beer sales and “prescribe the hours when it may be sold, except the

city . . .  may not permit the sale of beer when its sale is prohibited by th[e] code”),

§ 109.33 (West 2007) (permitting a city to prohibit alcoholic-beverage sales within

certain distances from schools, churches, and hospitals); § 109.331 (West Supp.  2017)

(permitting a city to prohibit alcoholic-beverage sales within certain distances from

day-care centers and child-care facilities). 

       As with sales-related regulations, the code allows cities to regulate the

possession and consumption of alcoholic beverages only in narrow circumstances as

well.  See id. §§ 109.35, .36 (West Supp.  2017).  Section 109.35 permits a city to prohibit

open-container possession and public consumption of alcoholic beverages in “central

business districts.”  See id. § 109.35(a).  But within a “central business district,” a city

may not “prohibit the possession of an open container or the consumption of

alcoholic beverages in motor vehicles, buildings not owned or controlled by the

municipality, residential structures, or licensed premises located in the area of

prohibition.”  Id. § 109.35(c).  And “[i]n accordance with Section 1.06, [section 109.35]

does not authorize municipal regulation of the possession of an open container or the

public consumption of alcoholic beverages except as expressly provided by this

section [109.35].”  Id. § 109.35(c)(1).  A city may also prohibit “the possession of an

                                               28
open container or the consumption of an alcoholic beverage on a public street, public

alley, or public sidewalk within 1,000 feet of the property line of a homeless shelter

that is not located in a central business district or a substance abuse treatment center

that is not located in a central business district.”  Id. § 109.36(b). 

       Pointing to a different part of the alcoholic-beverage code—section 61.01—the

City maintains that the ordinances’ alcoholic-beverage provisions do not conflict with

the code but merely reinforce it by prohibiting alcohol sales in places not licensed

under the code.  See id. § 61.01 (West 2007) (“No person may . . .  distribute or sell

[beer], or possess it for the purpose of sale without having first obtained an

appropriate license or permit as provided in this code.”);  Dallas Merch. ’s, 852 S.W.2d at

492, 494 (holding that the code preempted a home-rule city ordinance regulating

where alcoholic beverages could be sold to the extent the ordinance conflicted with

the code); Brookside Vill.,  633 S.W.2d at 796 (“[L]ocal regulation, ancillary to and in

harmony with the general scope and purpose of state enactment, is acceptable.”).  We

disagree with the City’s characterization. 

       Section 61.01 addresses only beer sales and possessing beer for the purpose of

sale.  But the ordinances here cover all alcoholic beverages as defined by the code,18

not just beer, and regulate not only alcohol sales, but its purchase, consumption, and

        The alcoholic-beverage code defines “alcoholic beverage” as “alcohol, or any
       18

beverage containing more than one-half of one percent of alcohol by volume, which
is capable of use for beverage purposes, either alone or when diluted.”  Tex.  Alco.  Bev. 
Code Ann. §  1.04(1) (West Supp.  2017). 


                                             29
possession.  The alcoholic-beverage code makes clear that unless it specifically

provides otherwise, the code’s dominion over alcoholic beverages is exclusive.  See

Tex.  Alco.  Bev.  Code Ann. §§  1.06, 109.57(b).  The City’s ordinances attempt to

prohibit the sale, purchase, possession, and consumption of alcoholic beverages in

ways that are beyond the limited local regulation of alcoholic beverages that the code

allows.19 We thus hold that section 1, § 4.305(C)(6)(e) of the Zoning Ordinance and

section 1, § 20-120(a) of the Licensing Ordinance conflict with, and are therefore

preempted by, the alcoholic-beverage code.  We sustain the Operators’ second issue. 

                                     III. 
             The Operators’ Substantive-Due-Course-of-Law Claim

      The Operators sought a declaration that the ordinances are void because they

violate the substantive-due-course-of-law protections of article I, section 19 of the

Texas constitution.  See Tex.  Const.  art.  I, § 19.  In this regard, the Operators alleged

that, as applied to them, the ordinances’ actual, real-world effect is not rationally

related to the ordinances’ interests or, alternatively, is so burdensome as to be




      19
          As we noted, the alcoholic-beverage code allows cities to regulate beer sales. 
See id. § 109.32(a)(2).  And, as the City points out, the code prohibits a person without
the appropriate license or permit from selling beer or possessing it for the purpose of
sale.  See id. § 61.01.  Because the City chose to regulate not just beer, but “alcoholic
beverages as defined by the Texas Alcoholic Beverage Code,” which includes far more
than beer, we decline to sua sponte carve out any exception allowing the ordinances
to apply only to beer sales and possession for sale because doing so would be
rewriting the City’s ordinances, which is not our place. 


                                          30
oppressive.  See Patel, 469 S.W.3d at 87.  20 Without stating the grounds on which it

relied, the trial court granted the City’s no-evidence summary-judgment motion on

this issue, which the Operators21 challenge in their third issue. 

       The Texas constitution provides that “[n]o citizen of this State shall be

deprived of life, liberty, property, privileges or immunities . . .  except by the due

course of the law of the land.”  Tex.  Const.  art.  I, § 19; see Univ.  of Tex.  Med.  Sch.  at

Houston v. Than, 901 S.W.2d 926, 929 (Tex.  1995) (stating that there is no meaningful

distinction between “due process” and “due course of law”).  But before any

substantive- or procedural-due-process rights attach, a party must have a liberty or

property interest that is entitled to constitutional protection.  Honors Acad.,  Inc. v. Tex. 

Educ.  Agency, No.  16-0519, 2018 WL 1975025, at *4 (Tex.  Apr. 27, 2018); Klumb v.

Houston Mun.  Emps.  Pension Sys.,  458 S.W.3d 1, 15 (Tex.  2015). “ A constitutionally

protected right must be a vested right, which is ‘something more than a mere

expectancy based upon an anticipated continuance of an existing law.’”  Klumb,




       20
         As the proponent of an as-applied challenge to an economic-regulation
statute under article I, section 19’s substantive-due-course-of-law protections, the
Operators would have to prove that either (1) the ordinances’ purposes could not
arguably be rationally related to a legitimate governmental interest, or (2) when
considered as a whole, the ordinances’ actual, real-world effect as applied to them
could not arguably be rationally related to, or is so burdensome as to be oppressive in
light of, the governmental interest.  See Patel, 469 S.W.3d at 87. 

        Because Texas C&D Amusements nonsuited its substantive-due-course-of-
       21

law claim, it is not one of the “Operators” in this final issue. 

                                            31
458 S.W.3d at 15 (quoting City of Dallas v. Trammell, 101 S.W.2d 1009, 1014 (Tex. 

1937)). 

      In its summary-judgment motion, the City asserted that a plaintiff bringing a

substantive-due-course-of-law claim must prove that he has a constitutionally

protected liberty or property interest, and alleged that there was no evidence that the

Operators have any constitutionally protected right.  On appeal, the Operators agree

that “the City is certainly correct that a plaintiff must show the existence of a

‘constitutionally-protected right’ in order to assert a claim for deprivation of that

right.”  The Operators concede, moreover, that they have no vested property right.22

      But, the Operators argue, under Patel a vested property right is unnecessary to

challenge oppressive economic regulation.  For the first time, in their reply brief, the

Operators contend that the constitutionally protected right in this case is an

economic-liberty interest—the right to work and to earn a living.  See, e.g., Patel,

469 S.W.3d at 110, 123 (Willett, J. concurring) (observing that the majority

“recognizes that Texans possess a basic liberty under Article I, Section 19 to earn a

living” and describing the economic-liberty interest before the court as an

“[o]ccupational freedom, the right to earn a living as one chooses”). 



      22
         At the summary-judgment hearing, the Operators’ attorney admitted on the
record that their summary-judgment evidence did not prove that they had a vested
property right.  On appeal, the Operators state that they are not asserting a property
right as to their substantive-due-course-of-law claim. 


                                          32
      In their pleadings before the trial court the Operators did not allege any

constitutionally protected right.  Cf.  id. at 74 (“The Threaders alleged that the

cosmetology    statutes   and   administrative   rules   issued   pursuant   to   those

statutes . . .  violated their constitutional right ‘to earn an honest living in the

occupation of one’s choice free from unreasonable governmental interference.’”).  Nor

did they claim a liberty interest, much less the right to work and to earn a living, in

response to the City’s summary-judgment motion, which explicitly alleged the lack of

any constitutionally protected right as a no-evidence ground.  The Operators argued

only that a vested property right was not required under Patel. 

      Because the Operators did not raise the liberty-interest argument in the trial

court, we cannot consider the issue on appeal as grounds for reversal.  See Tex.  R. Civ. 

P. 166a(c) (“Issues not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal as grounds for reversal.”); 

Holloway v. Tex.  Elec.  Util.  Constr.,  Ltd., 282 S.W.3d 207, 211 n.1 (Tex.  App.—Tyler

2009, no pet.) (“‘ Written motion, answer, or other response,’ as applied to traditional

motions for summary judgment, applies equally to no evidence motions for summary

judgment.” ( citing LaRue v. Chief Oil & Gas, L.L.C., 167 S.W.3d 866, 876 (Tex. 

App.—Fort Worth 2005, no pet.)));  Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d

636, 647 (Tex.  App.—Amarillo 2002, pet.  denied) (applying rule 166a(c) to no-

evidence motions for summary judgment).  Moreover, because the Operators did not

raise their liberty-interest argument on appeal until their reply brief, we cannot

                                           33
consider it.  See Stovall & Assocs.,  P.C. v. Hibbs Fin.  Ctr.,  Ltd., 409 S.W.3d 790, 803 (Tex. 

App.—Dallas 2013, no pet.) ( stating, “[t]hat [appellant] could have but did not make

such an argument in its opening brief does not allow it to do so for the first time in its

reply brief,” and thus holding that issue was waived and not properly before appellate

court); City of The Colony v. N. Tex.  Mun.  Water Dist.,  272 S.W.3d 699, 754 n.16 (Tex. 

App.—Fort Worth 2008, pet.  dism’d) (concluding that issue raised for the first time in

a reply brief is not preserved for appeal).  Accordingly, we overrule the Operators’

third issue without addressing whether the ordinances’ actual, real-world effect is not

rationally related to those ordinances’ interests or is not so burdensome as to be

oppressive.  See Tex.  R. App.  P. 47.1; Patel, 469 S.W.3d at 87; cf.  Mbogo v. City of Dallas,

No.  05-17-00879-CV, 2018 WL 3198398, at *8 (Tex.  App.—Dallas June 29, 2018, pet. 

filed) (mem.  op.) (“ Hinga has failed to establish he has a vested property interest

entitled to due process.  Having reached this conclusion, we need not consider

whether the City’s ordinances were rationally related to a legitimate government

interest or when considered as whole, whether the ordinances were so burdensome as

to be oppressive.”).  We overrule the Operators’ third issue. 

                                          IV. 
                                       Conclusion

       Having concluded that the trial court lacked jurisdiction over the City’s

declaratory-judgment counterclaim, we reverse the portion of the judgment denying

the City’s declaratory-judgment counterclaim and render judgment dismissing it for


                                            34
want of jurisdiction.  Having sustained the Operator’s second issue, we reverse the

portion of the judgment denying the Operators’ alcoholic-beverage-code preemption

claim and render judgment declaring that the Texas Alcoholic Beverage Code

preempts section 1, § 4.305(C)(6)(e) of the Zoning Ordinance and section 1, § 20-

120(a) of the Licensing Ordinance.  Having overruled the Operators’ remaining issues

and each of the City’s issues, we affirm the rest of the trial court’s judgment. 




                                                       /s/ Elizabeth Kerr
                                                       Elizabeth Kerr
                                                       Justice

Delivered: October 4, 2018




                                            35
