                                                                                       ACCEPTED
                                                                                   04-15-00733-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              5/13/2016 2:00:58 PM
                                                                                    KEITH HOTTLE
                                                                                            CLERK

                         NO. 04-15-00733-CV
                     FOURTH COURT OF APPEALS
                        SAN ANTONIO, TEXAS              FILED IN
                                                  4th COURT OF APPEALS
__________________________________________________________________
                                                   SAN ANTONIO, TEXAS
                                                          05/13/16 2:00:58 PM
     THE CITY OF HELOTES, TOM SCHOOLCRAFT, IN HIS CAPACITY   AS
                                                    KEITH E. HOTTLE
       MAYOR OF HELOTES, RICK SCHRODER, IN HIS CAPACITY Clerk
                                                         AS
  HELOTES CITY ADMINISTRATOR, AND ERNEST CRUZ, IN HIS CAPACITY AS
    HEAD OF THE HELOTES DEVELOPMENT SERVICES DEPARTMENT,
                                       Appellants,

                                     v.

            THE TEXAS ASSOCIATION OF BUILDERS AND THE
            GREATER SAN ANTONIO BUILDERS ASSOCIATION,
                                         Appellees.
__________________________________________________________________

       On Appeal from the 407th Judicial District Court, Bexar County, Texas
  Trial Court Case No. 2014-CI-07817, The Honorable Karen H. Pozza, Presiding
__________________________________________________________________

                      APPELLEES’ RESPONSE TO
                APPELLANTS’ MOTION TO ABATE APPEAL
__________________________________________________________________

                                   SARA MURRAY
                                   smurray@langleybanack.com
                                   State Bar No. 14729400
                                   PAUL A. FLETCHER
                                   pfletcher@langleybanack.com
                                   State Bar No. 00795980
                                   LANGLEY & BANACK, INC.
                                   745 East Mulberry, Suite 900
                                   San Antonio, TX 78212-3166
                                   Telephone: (210) 736-6600
                                   Facsimile: (210) 735-6889

                                   ATTORNEYS FOR APPELLEES
                                   TEXAS ASSOCIATION OF BUILDERS AND
                                   GREATER SAN ANTONIO BUILDERS
                                   ASSOCIATION
TO THE HONORABLE FOURTH COURT OF APPEALS:

       Pursuant to the Court’s May 2, 2016, order, Appellees the Texas Association of

Builders (“TAB”) and the Greater San Antonio Builders Association (“GSABA”) file this

Response to Appellants’ Motion to Abate Appeal, showing the Court:

                                  I. INTRODUCTION

       1.     On April 29, 2016, Appellants filed their Motion to Abate Appeal

(“Motion”), asking the Court to abate the above-referenced appeal pending disposition

of Cause No. 15-0106, Town of Lakewood Village v. Bizios (“Bizios”), currently under

submission on petition for review in the Supreme Court of Texas.

       2.     Appellants believe that abatement is necessary because the above-

referenced appeal and Bizios both involve, in part, “questions regarding the ability of a

general law municipality to enforce its building codes and regulations within its

extraterritorial jurisdiction (‘ETJ’).” Motion at ¶ 1; see also Motion at ¶ 2. Appellants

further believe that the Supreme Court’s ruling in Bizios will “control the major issue

facing the parties in this appeal.” Motion at ¶ 2. According to Appellants, the requested

abatement will also prevent this Court from having to “expend its time and resources by

hearing arguments and issuing three separate rulings” in the three appeals that the City

of Helotes has filed in this Court, which rulings Appellants believe “may end up

conflicting with the ruling in” Bizios and perhaps cause unspecified “‘needless uncertainty

and confusion.’” Motion ¶ 4.

       3.     Because TAB and GSABA did not agree to the Motion when Appellants’
counsel asked to confer, the Court has given TAB and GSABA an opportunity to

respond before ruling on the Motion. TAB and GSABA appreciate the Court’s concern

about whether an abatement of this appeal would be appropriate, and they acknowledge

that the Supreme Court’s disposition of Bizios could possibly affect some issues raised

in the present appeal. TAB and GSABA, however, did not agree to the Motion for the

following reasons, which they respectfully ask the Court to consider:

                                      II. ANALYSIS

       A.     Key procedural differences distinguish Bizios from this appeal.

       4.     Bizios is procedurally very different from the present appeal. Bizios, for

instance, is an interlocutory appeal of a trial court’s order granting the Town of

Lakewood Village temporary injunctive relief to stop construction of Bizios’s house in

the Town’s ETJ because Bizios did not obtain a Town building permit and pay the

Town’s applicable permit fees. The standard of review in Bizios is abuse of discretion.

See, e.g., Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Davis v. Huey, 571

S.W.2d 859, 861-62 (Tex. 1978); Galindo v. Border Fed. Credit Union, No. 04-08-00676-CV,

2009 WL 700836, at *1 (Tex. App.—San Antonio Mar. 18, 2009, no pet.) (mem. op.)

(citing Davis). On interlocutory appeal of a temporary injunction, moreover, the main

issue is whether the trial court abused its discretion by granting temporary injunctive

relief to preserve the status quo pending trial on the merits. See, e.g., Butnaru, 84 S.W.3d

at 204; Davis, 571 S.W.2d at 861-62; Galindo, 2009 WL 700836, at *1. The Supreme


                                             2
Court should only consider whether the trial court properly exercised its discretion, and

should not reach the underlying merits of the Town’s claim for injunctive relief. See, e.g.,

Butnaru, 84 S.W.3d at 204; Davis, 571 S.W.2d at 861-62; Lightning Oil Co. v. Anadarko

E&P Onshore, LLC, No. 04-14-00152-CV, 2014 WL 5463956, at *2 (Tex. App.—San

Antonio Oct. 29, 2014, pet. denied) (mem. op.).

       5.       In contrast to Bizios, the present appeal is from a final judgment on the

merits of TAB and GSABA’s claims for declaratory and injunctive relief seeking to stop

the City’s illegal and unconstitutional enforcement of certain Helotes building regulation

ordinances in its ETJ. CR1-12, 17-26. The de novo standard of review applies in the

present appeal of cross-motions for summary judgment. Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Martinez v. State Office of Risk Mgmt., No. 04-14-

00558-CV, 2016 WL 548115, at *4 (Tex. App.—San Antonio Feb. 10, 2016, no pet.)

(mem. op.).

       6.       Moreover, as the following chart illustrates, the issues raised by Petitioner

in Bizios differ from those raised by Appellants in the present appeal:

 Petitioner in Bizios                             Appellants in the Present Appeal
 (Petitioner’s Brief on the Merits at xiii)       (Appellants’ Brief at vi -vii)
 “Whether the Town has, and all Texas
 municipalities have, the statutory
 authority to apply subdivision rules for
 development to its ETJ.” (emphasis
 supplied)



                                              3
Petitioner in Bizios                             Appellants in the Present Appeal
(Petitioner’s Brief on the Merits at xiii)       (Appellants’ Brief at vi -vii)
                                                 “Whether a general law municipality is
                                                 prohibited by the Texas Local
                                                 Government Code from enforcing any of
                                                 its building codes and regulations within its
                                                 extraterritorial jurisdiction.” (emphasis
                                                 supplied)
“Whether the respondent has vested
rights to a 1995 plat.”
                                                 “Whether TEX. LOC. GOV’T CODE ANN.
                                                 § 51.003 bars the filing of this lawsuit
                                                 more than 20 years after the original
                                                 ordinance was enacted by the City of
                                                 Helotes.”
                                                 “Whether Appellees proved the necessary
                                                 facts under TEX. CIV. PRAC. & REM.
                                                 CODE § 37 [sic] for an award of attorneys’
                                                 fees and whether the trial court erred in
                                                 granting the award of those fees.”
                                                 “Whether the Interlocal Agreement
                                                 between the City of Helotes and Bexar
                                                 County provides additional authority, and
                                                 a valid framework, for the enforcement of
                                                 building codes in the ETJ.”
                                                 “Whether the fees for building permits
                                                 and inspections charged by the City
                                                 amounted to an unconstitutional
                                                 occupation tax.”
“Whether the trial court properly granted
the Town’s request for temporary
injunction when the evidence showed the
Town had a probable right to relief.”




                                             4
 Petitioner in Bizios                              Appellants in the Present Appeal
 (Petitioner’s Brief on the Merits at xiii)        (Appellants’ Brief at vi -vii)
                                                   “Whether the City of Helotes was
                                                   properly enjoined from enforcing its
                                                   building codes in the ETJ.”
                                                   “Whether the trial court erred in declaring
                                                   Ordinance 83, §§ 1-3, 11-5-1992,
                                                   Ordinance 402, § 2, 5-14-2009, Ordinance
                                                   503A, 4-25-2013, and Ordinance 541 § 1,
                                                   9-25-2014 void and unenforceable.”

       7.       While the first issue in Bizios might appear to be similar to the first issue in

the present appeal, the terms “subdivision rules” and “building codes and regulations”

address distinct matters that are treated differently in the Texas Local Government Code.

As set out more fully in TAB and GSABA’s Appellees’ Brief in this Court, and in

GSABA’s amicus brief in Bizios, “building codes and regulations” are not “rules governing

plats and subdivisions of land” within the meaning of TEX. LOC. GOV’T CODE §§

212.002 and 212.003. For the Court’s convenience, a true and correct copy of the

amicus brief that GSABA filed in Bizios (without Appendix) is attached hereto as Ex. 1.

       8.       When the Supreme Court does rule in Bizios, moreover, that opinion will

not address any of the following issues raised in the present appeal:

       (a)      Appellants’ claims that they have the requisite statutory authority to do

what they did in the City’s ETJ pursuant to TEX. LOC. GOV’T CODE § 51.003;

       (b)      Appellants’ claims that they have the requisite authority to do what they did

in the City’s ETJ pursuant to the City’s 2014 Interlocal Agreement with Bexar County;

                                               5
       (c)       the validity of any Helotes building regulation ordinance, whether due to

the City’s lack of authority to enact—or its failure to comply with the procedural

requirements for enacting—the ordinance at issue;

       (d)       the propriety of any injunction against the City;

       (e)       that portion of the trial court’s judgment finding that the building permit

fees charged by Helotes—whether inside the City’s corporate limits or in its

ETJ—constitute an unconstitutional occupation tax on the building industry; and

       (f)       the trial court’s decision that awarding TAB and GSABA their reasonable

and necessary attorney’s on the facts of this case was reasonable and just.

       B.        Bizios may not provide any definitive answers for this appeal.

       9.        The Supreme Court’s opinion in Bizios will not necessarily provide a

definitive answer regarding any issue raised in the present appeal.

       10.       Despite the fact that the Supreme Court has granted review, the question

of whether the Supreme Court has conflicts jurisdiction to decide Bizios was still an issue

during oral argument, and one outcome that remains possible in Bizios is dismissal of the

petition for lack of subject matter jurisdiction. If the Supreme Court finds that it does

have jurisdiction, there is still no assurance that it will reach the statutory authority issue

raised by the present appeal. For instance, the Supreme Court could decide Bizios, if at

all, on Mr. Bizios’s vested rights argument—an issue that is not raised in the present

appeal at all.


                                               6
       11.    Even if the Supreme Court were to address the statutory authority issue,

though, there is still no assurance that ruling would apply to this particular case, which

challenges the validity of certain Helotes ordinances and the constitutionality of others.

Since a municipality can only act pursuant to its ordinances, the issue in any case

involving the validity or constitutionality of a particular municipality’s ordinance(s) is

necessarily narrow and case-specific—addressing the language of the particular

ordinance(s) at issue, the procedures used to adopt the ordinance(s), and the conduct of

the municipality pursuant to the ordinance(s). An opinion in Bizios, if any, will not

necessarily address the validity or constitutionality of the Helotes ordinances at issue in

the present appeal. Instead, the Bizios opinion, if any, will probably address the propriety

vel non of the trial court’s temporary injunction, and given the interlocutory nature of the

appeal, will almost certainly involve a remand for further proceedings.

       C.     Bizios could be decided before this appeal is submitted.

       12.    Even without an abatement, Bizios could be decided before the present

appeal is submitted, since Bizios was submitted more than two months ago on March 8,

2016, and the present appeal will not be submitted until June 21, 2016. For this reason,

moving forward with this appeal—at least to and including oral argument and

submission—makes sense. If, for some reason, Bizios is not decided prior to submission

in the present case, the parties are under a continuing duty to notify the Court of any

new developments in the law governing the issues on appeal and should promptly do so


                                             7
if the Supreme Court’s decision in Bizios affects the present appeal.

                                        III. PRAYER

      For all these reasons, TAB and GSABA respectfully ask the Court to deny

Appellants’ Motion to Abate Appeal, proceed with the scheduled June 21, 2016,

submission on oral argument, and affirm the trial court’s judgment in all respects.

Further, TAB and GSABA ask the Court to grant them all other legal and equitable relief

to which they may be justly entitled.


                                          Respectfully submitted,

                                          LANGLEY & BANACK, INC.
                                          745 East Mulberry, Suite 900
                                          San Antonio, TX 78212-3166
                                          Telephone: (210) 736-6600
                                          Facsimile: (210) 735-6889

                                          By:   /s/ Sara Murray
                                                SARA MURRAY
                                                smurray@langleybanack.com
                                                State Bar No. 14729400
                                                PAUL A. FLETCHER
                                                pfletcher@langleybanack.com
                                                State Bar No. 00795980

                                          ATTORNEYS FOR APPELLEES
                                          THE TEXAS ASSOCIATION OF BUILDERS
                                          AND THE GREATER SAN ANTONIO
                                          BUILDERS ASSOCIATION




                                            8
                                      CERTIFICATE OF SERVICE

      The undersigned attorney hereby certifies that on May 13, 2016, a true and correct
copy of the foregoing Appellees’ Response to Appellants’ Motion to Abate Appeal was
served via the Court’s electronic-filing system, properly addressed to:

R. Gaines Griffin
DAVIDSON TROILO REAM & GARZA, P.C.
601 NW Loop 410, Suite 100
San Antonio, TX 78216

ATTORNEYS FOR APPELLANTS

                                                    /s/Sara Murray
                                                      Sara Murray

W:\lbclient\00168\0001\L1117774.WPD




                                                9
EXHIBIT 1
                           No. 15-0106
__________________________________________________________________

                              IN THE
                      SUPREME COURT OF TEXAS
__________________________________________________________________

                   TOWN OF LAKEWOOD VILLAGE,
                                 Petitioner,

                                v.

                           HARRY BIZIOS,
                                    Respondent.
__________________________________________________________________

                     On Petition for Review from the
                Second Court of Appeals, Fort Worth, Texas
                          No. 02-14-00143-CV
__________________________________________________________________

                      BRIEF OF AMICUS CURIAE
          THE GREATER SAN ANTONIO BUILDERS ASSOCIATION
              IN SUPPORT OF RESPONDENT HARRY BIZIOS
__________________________________________________________________


                              SARA MURRAY
                              smurray@langleybanack.com
                              State Bar No. 14729400
                              PAUL A. FLETCHER
                              pfletcher@langleybanack.com
                              State Bar No. 00795980
                              LANGLEY & BANACK, INC.
                              745 East Mulberry, Suite 900
                              San Antonio, TX 78212-3166
                              Telephone: (210) 736-6600
                              Facsimile: (210) 735-6889

                              ATTORNEYS FOR AMICUS CURIAE
                              THE GREATER SAN ANTONIO
                              BUILDERS ASSOCIATION
                                             TABLE OF CONTENTS

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Issue Presented by Amicus Curiae . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

         TEX. LOC. GOV’T CODE §§ 212.002 and 212.003 do not authorize the
         Town to extend its building regulation ordinances to its extraterritorial
         jurisdiction because those ordinances are not “rules governing plat and
         subdivisions of land,” as required by the statutes.

I.       Statement of Amicus Curiae’s Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.      Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III.     Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         A.        The Town Must Have Express Statutory Authority to Act Inside Its
                   Corporate Limits or in Its ETJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         B.        Sections 212.002 and 212.003 Do Not Provide the Necessary
                   Statutory Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

                   1.       Sections 212.002 and 212.003 apply to “rules governing plats
                            and subdivisions of land,”not to building regulations, building
                            codes, or their attendant fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

                   2.       The Town’s briefing conflates and confuses subdivision and
                            platting regulation with building regulation, ignoring clear
                            legislative distinctions between the two . . . . . . . . . . . . . . . . . . . 7

                   3.       Milestone Potranco does not support the Town’s position . . . . . 11

                   4.       The Town’s misreading of Sections 212.002 and 212.003
                            conflicts with the legislative design of TEX. LOC. GOV’T
                            CODE ch. 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                   5.       The Town fails to mention the legislative history of Section
                            212.003, which undermines the Town’s position. . . . . . . . . . . 14


                                                              ii
                   6.        The Town’s public policy arguments, and those of some
                             amici supporting the Town, do not and cannot supply the
                             necessary statutory authority where there is none . . . . . . . . . . 16

IV.      Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Appendix




                                                               iii
                                        INDEX OF AUTHORITIES

CASES

Anderson v. City of San Antonio,
123 Tex. 163, 67 S.W.2d 1036 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Brenham v. Brenham Water Co.,
67 Tex. 542, 4 S. W. 143 (1887) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

City of Arlington v. Lillard,
116 Tex. 446, 294 S.W. 829 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

City of Lubbock v. Phillips Petroleum Co.,
41 S.W.3d 149 (Tex. App.—Amarillo 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 2

City of Lucas v. N. Tex. Mun. Water Dist.,
724 S.W.2d 811 (Tex. App.—Dallas 1986, writ ref’d n.r.e.)
(supplemental opinion on motion for rehearing) . . . . . . . . . . . . . . . . . . . . . . . . . 12-15

City of Northlake v. E. Justin Joint Venture,
873 S.W.2d 413 (Tex. App.—Fort Worth 1994, writ denied) . . . . . . . . . . . . . . . . . . 3

City of W. Lake Hills v. Westwood Legal Def. Fund,
598 S.W.2d 681 (Tex. Civ. App.—Waco 1980, no writ) . . . . . . . . . . . . . . . . . . . . . 2, 3

City of Weslaco v. Carpenter,
694 S.W.2d 601 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.) . . . . . . . . . . 13-15

Ex parte Ernest,
138 Tex. Crim. 441, 136 S.W.2d 595 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ex parte Levinson,
160 Tex. Crim. 606, 274 S.W.2d 76 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Levy v. City of Plano, No. 05-97-00061-CV, 2001 WL 1382520
(Tex. App.—Dallas Nov. 8, 2001)(not designated for publication) . . . . . . . . . . . . . 13

Milestone Potranco Dev., Ltd. v. City of San Antonio,
298 S.W.3d 242 (Tex. App.—San Antonio 2009, pet. denied) . . . . . . . . . . . . . . . ii, 11

                                                         iv
Tex. Commerce Bank, NA v. Grizzle,
96 S.W.3d 240 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tex. Dep’t of Transp. v. City of Sunset Valley,
146 S.W.3d 637 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Union Carbide Corp. v. Synatzske,
438 S.W.3d 39 (Tex. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


STATUTES

TEX. LOC. GOV’T CODE ch. 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, 12

TEX. LOC. GOV’T CODE ch. 212, subch. A
(Regulation of Subdivisions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6, 12-14

TEX. LOC. GOV’T CODE ch. 212, subch. B
(Regulation of Property Development) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12-14

TEX. LOC. GOV’T CODE ch. 214, subch. G
(Building and Rehabilitation Codes) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

TEX. LOC. GOV’T CODE § 212.002 . . . . . . . . . . . . . . . . . . . . . . . ii, viii, 1-4, 6-8, 11-14

TEX. LOC. GOV’T CODE § 212.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, viii, 1-4, 6-16

TEX. LOC. GOV’T CODE § 212.003(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

TEX. LOC. GOV’T CODE § 212.003(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. LOC. GOV’T CODE § 212.004(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. LOC. GOV’T CODE § 212.004(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. LOC. GOV’T CODE § 212.043(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13

TEX. LOC. GOV’T CODE § 212.049 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

TEX. LOC. GOV’T CODE §§ 214.211-214.219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                                                          v
TEX. REV. CIV. STAT. art. 970a,
repealed by Acts 1987, 70th Leg., ch. 149, § 49(1), eff. Sept. 1, 1987 . . . . . . . . . . . . . 15



ORDINANCES

Castroville, Tex., CODE OF ORDINANCES
ch. 100, § 100-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Castroville, Tex., CODE OF ORDINANCES
ch. 22, § 22-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Castroville, Tex., CODE OF ORDINANCES
ch. 22, §§ 22-2, 22-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Leon Valley, Tex., CODE OF ORDINANCES
ch. 10, § 10.02.004(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Leon Valley, Tex., CODE OF ORDINANCES
ch. 3, § 3.02.055(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

San Antonio, Tex., CODE OF ORDINANCES
ch. 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. I, § 35-102(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. I, § 35-102(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. I, § 35.104(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. IV, § 35-401(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. IV, § 35-430(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


                                                                 vi
San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. V, § 35-523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

San Antonio, Tex., CODE OF ORDINANCES
ch. 35, art. V, § 35-523(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Shavano Park, Tex., CODE OF ORDINANCES
ch. 28, § 28-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Shavano Park, Tex., CODE OF ORDINANCES
ch. 6, § 6-39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Town of Lakewood Village, Tex.,
Ordinance 10-01 (Building Ordinance)(Jan. 14, 2010) . . . . . . . . . . . . . . . . . . . . . . 6, 9

Town of Lakewood Village, Tex.,
Ordinance 15-04 (Residential Code Ordinance)(May 14, 2015) . . . . . . . . . . . . . . . 6, 9

Town of Lakewood Village, Tex.,
Ordinance 14-13 (Subdivision Ordinance)(Nov. 13, 2014) . . . . . . . . . . . . . . . . . . . . 9

Town of Lakewood Village, Tex.,
Ordinance 14-13 § 10.1 (Subdivision Ordinance)(Nov. 13, 2014) . . . . . . . . . . . . . . . 4

Town of Lakewood Village, Tex.,
Ordinance 15-09 § 1 (Consolidated Fee Ordinance)(July 9, 2015) . . . . . . . . . . . . . 6, 9


RULES

TEX. R. APP. P. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


MISCELLANEOUS

1 DILLON, MUNICIPAL CORPS. § 237 (5th ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3


                                                               vii
Building code, BLACK’S LAW DICTIONARY (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . 6

Plat, BLACK’S LAW DICTIONARY (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Subdivision, AMERICAN HERITAGE DICTIONARY (2d ed. 1982) . . . . . . . . . . . . . . . 4, 5

Subdivision, BLACK’S LAW DICTIONARY (6th ed. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 5

Tex. H.B. 13, 58th Leg., R.S. (1963)(Enrolled Version) . . . . . . . . . . . . . . . . . . . . . . 15

Tex. H.B. 13, 58th Leg., R.S. (1963)(Introduced Version) . . . . . . . . . . . . . . . . . . . . 15

Tex. H.B. 3187, 71st Leg., R.S. (1989)(Introduced Version) . . . . . . . . . . . . . . . . . . 14




                          ISSUE PRESENTED BY AMICUS CURIAE

              TEX. LOC. GOV’T CODE §§ 212.002 and 212.003 do not authorize
       the Town to extend its building regulation ordinances to its extraterritorial
       jurisdiction because those ordinances are not “rules governing plat and
       subdivisions of land,” as required by the statutes.




                                                 viii
TO THE HONORABLE SUPREME COURT OF TEXAS:

      Pursuant to TEX. R. APP. P. 11, the Greater San Antonio Builders Association

(“GSABA”) files this Amicus Curiae Brief in Support of Respondent Harry Bizios and

respectfully shows the Court:

                  I. STATEMENT OF AMICUS CURIAE’S INTEREST

      GSABA is a not-for-profit trade association established to represent builders,

developers, remodelers, and affiliated industry members in the greater San Antonio area

for the purpose of benefitting and promoting home ownership. Along with twenty-

seven other local home builders associations, GSABA is a member of the Texas

Association of Builders, which is an affiliate of the National Association of Home

Builders. GSABA is paying the fees and expenses incurred in preparing this Amicus

Curiae Brief.

                         II. SUMMARY OF THE ARGUMENT

      The Town of Lakewood Village (“Town”), a type-A general-law municipality,

must have express statutory authority to act within its corporate limits or in its

extraterritorial jurisdiction (“ETJ”). The Town lacks the necessary statutory authority

to extend its building regulation ordinances to its ETJ. Contrary to its arguments in this

Court, the Town cannot find such authority in TEX. LOC. GOV’T CODE §§ 212.002

(“Section 212.002”) and 212.003 (“Section 212.003”) because the Town’s building

regulation ordinances are not “rules governing plats and subdivisions of land,” as
required by those statutes. In an effort to fit its building regulation ordinances into

Sections 212.002 and 212.003, the Town confuses and conflates subdivision and platting

regulation with building regulation, ignoring the clear legislative distinctions between the

two. The Town does not address the legislative history of Section 212.003, which shows

that the Legislature has at least twice refused to grant municipalities the very express

statutory authority that the Town now claims it already has. The Town’s public policy

arguments, and those of some amici supporting the Town, do not and cannot supply the

requisite statutory authority where there is none.

                                    III. ARGUMENT

       A.     The Town Must Have Express Statutory Authority to Act
              Inside Its Corporate Limits or in Its ETJ.

       General-law municipalities like the Town are “political subdivisions created by the

State and, as such, possess those powers and privileges that the State expressly confers

upon them.” Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004).

Express statutory authority is also necessary for all municipalities—both home-rule and

general law—to act outside their corporate limits in their ETJs. City of W. Lake Hills v.

Westwood Legal Def. Fund, 598 S.W.2d 681, 686 (Tex. Civ. App.—Waco 1980, no writ);

Ex parte Ernest, 138 Tex. Crim. 441, 445, 136 S.W.2d 595, 597 (1939) (general law city’s

powers are “limited to its boundaries unless the Legislature expressly grants it extra-

territorial powers”); see also City of Lubbock v. Phillips Petroleum Co., 41 S.W.3d 149, 159

(Tex. App.—Amarillo 2000, no pet.)(stating, as to home-rule City of Lubbock, that “it

                                             2
is the general rule that a city may only exercise its powers within its corporate limits

unless its authority is expressly extended”).

       All acts taken by a municipality “‘beyond the scope of the powers granted are

void.’” Anderson v. City of San Antonio, 123 Tex. 163, 166-67, 67 S.W.2d 1036, 1037 (1934)

(quoting 1 DILLON, MUNICIPAL CORPS. § 237 (5th ed.)); see also City of Northlake v. E.

Justin Joint Venture, 873 S.W.2d 413, 418 (Tex. App.—Fort Worth 1994, writ denied)

(ordinance that exceeded statutory authority was void). “‘Neither the [municipal]

corporation nor its officers can do any act, or make any contract, or incur any liability,

not authorized [by the charter or statute by which it is created], or by some legislative act

applicable thereto.’” Anderson, 123 Tex. at 166-67, 67 S.W.2d at 1037 (quoting 1 DILLON,

MUNICIPAL CORPS. § 237 (5th ed.)); see also City of Northlake, 873 S.W.2d at 418-19.

While the law presumes a city ordinance to be reasonable and valid, “‘any fair, reasonable

doubt as to the existence and possession of’” a particular power claimed by a city “‘will

be resolved against’” the city, and “‘the power denied to it.’” City of Arlington v. Lillard,

116 Tex. 446, 452-53, 294 S.W. 829, 831 (1927) (quoting Brenham v. Brenham Water Co.,

67 Tex. 542, 4 S. W. 143 (1887)); see also City of W. Lake Hills, 598 S.W.2d at 683.

       B.     Sections 212.002 and 212.003 Do Not Provide the Necessary
              Statutory Authority.

              1.     Sections 212.002 and 212.003 apply to “rules governing
                     plats and subdivisions of land,” not to building
                     regulations, building codes, or their attendant fees.

       Section 212.003 allows a municipality to extend to its ETJ the sorts of “rules

                                             3
governing plats and subdivisions of land” authorized by Section 212.002. Section

212.002, in turn, provides: “After a public hearing on the matter, the governing body of

a municipality may adopt rules governing plats and subdivisions of land within the

municipality’s jurisdiction to promote the health, safety, morals, or general welfare of the

municipality and the safe, orderly, and healthful development of the municipality.”

Sections 212.002 and 212.003 are part of TEX. LOC. GOV’T CODE ch. 212, subch. A

(Regulation of Subdivisions), and both statutes specifically and unambiguously apply to

“rules governing plats and subdivisions of land”—not to just any ordinance that might

arguably “promote the health, safety, morals, or general welfare of the municipality and

the safe, orderly, and healthful development of the municipality.”

       The Town’s Subdivision Ordinance (Ordinance 14-13) does not define either

“subdivision” or “plat,” but it does provide that “[t]erms which are used in [the]

Ordinance and are not specifically defined shall be given their ordinary meaning, unless

the context requires or suggests otherwise.”         Town of Lakewood Village, Tex.,

Ordinance 14-13 (Subdivision Ordinance) § 10.1 (Nov. 13, 2014) (Appendix 1 hereto).

When given their ordinary meanings, both “subdivision” and “plat” refer to divisions of

land, not to buildings, construction of buildings, or building regulations. The AMERICAN

HERITAGE DICTIONARY (2d ed. 1982), for instance, defines the noun “subdivision” as

the “act or process of subdividing,” a “subdivided part,” or an “area composed of

subdivided lots.” The verb “subdivide” means “to divide a part or parts into smaller


                                             4
parts,” “to divide into a number of parts, esp. to divide (land) into lots,” and “to form

subdivisions.” Id.       Similarly, BLACK’S LAW DICTIONARY (6th ed. 1990) defines

“subdivision” as the “[d]ivision into smaller parts of the same thing or subject-matter.

The division of a lot, tract, or parcel of land into two or more lots, tracts, parcels or

other divisions of land for sale or development.” And BLACK’S defines “plat” as a “map

of a specific land area such as a town, section, or subdivision showing the location and

boundaries of individual parcels of land subdivided into lots, with streets, alleys,

easements, etc., usually drawn to a scale.” In the present case, the final plat for the

subdivision in which Mr. Bizios’s property is located was approved by the Town of Little

Elm and Denton County in 1999 (CR 109).

       For purposes of chapter 212, subchapter A—and with few exceptions not relevant

here—a plat is required when the “owner of a tract of land located within the limits or

in the extraterritorial jurisdiction of a municipality . . . divides [a] tract [into] two or more

parts [1] to lay out a subdivision of the tract, including an addition to a municipality, [2]

to lay out suburban, building, or other lots, or [3] to lay out streets, alleys, squares, parks,

or other parts of the tract intended to be dedicated to public use or for the use of

purchasers or owners of lots fronting on or adjacent to the streets, alleys, squares, parks,

or other parts.” TEX. LOC. GOV’T CODE § 212.004(a). In order to be recorded, the

required plat must: (1) “describe the subdivision by metes and bounds”; (2) “locate the

subdivision with respect to a corner of the survey or tract or an original corner of the


                                               5
original survey of which it is a part”; and (3) “state the dimensions of the subdivision and

of each street, alley, square, park, or other part of the tract intended to be dedicated to

public use or for the use of purchasers or owners of lots fronting on or adjacent to the

street, alley, square, park, or other part.” Id. § 212.004(b). As with the ordinary

meanings of “plat” and “subdivision,” those terms as used in chapter 212, subchapter

A clearly refer to the division of tracts of land and, in the case of “subdivision,” to the

laying out of lots, streets, alleys, squares, or parks, or what is sometimes referred to as

“horizontal” construction.

       By contrast, the Town’s building regulation ordinances—specifically, its Building

Ordinance (Ordinance 10-01), its Residential Code Ordinance (Ordinance 15-04), and

section 1 of its Consolidated Fee Ordinance (Ordinance 15-09)—address building

permits, building codes, and the construction of buildings, or what is sometimes referred

to as “vertical” construction, not plats or subdivisions of land. See Appendix 2, Appendix

3, and Appendix 4 hereto, respectively. BLACK’S LAW DICTIONARY defines “building

code” as “laws, ordinances, or government regulations concerning fitness for habitation

setting forth standards and requirements for the construction, maintenance, operation,

occupancy, use or appearance of buildings, premises, and dwelling units.” Nothing in

that definition remotely suggests the sort of “rules governing plats and subdivisions of

land” to which Sections 212.002 and 212.003 apply.

       Notably, the construction of buildings is part of the definition of “development”


                                             6
in TEX. LOC. GOV’T CODE ch. 212, subch. B (Regulation of Property Development):

       “Development” means the new construction or the enlargement of any
       exterior dimension of any building, structure, or improvement.

TEX. LOC. GOV’T CODE § 212.043(1). Sections 212.002 and 212.003 are not part of

subchapter B, though, and neither of those two statutes says anything at all—and

certainly nothing express or specific, or even clearly implied—about a municipality’s

authority to enforce its building regulation ordinances or building codes in its ETJ. The

words “building code,” “building regulations,” “building permits,” “building permit

fees,” “building inspection,” and the like do not appear anywhere in either statute.

       Reading those words into Sections 212.002 and 212.003 under the guise of

statutory interpretation, as the Town and some amici invite the Court to do, would be

impermissible judicial legislation. Ex parte Levinson, 160 Tex. Crim. 606, 608, 274 S.W.2d

76, 78 (1955) (“[I]n construing a statute or in seeking to ascertain legislative intent in

enacting a statute, the courts must not enter the field of legislation and write, re-write,

change, or add to a law.”). Courts must “take statutes as [they] find them, presuming the

Legislature included words that it intended to include and omitted words it intended to

omit.” Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014). Courts “do not

read words into a statute to make it what [they] consider more reasonable.” Id.

             2.     The Town’s briefing conflates and confuses subdivision
                    and platting regulation with building regulation,
                    ignoring clear legislative distinctions between the two.

      The Town’s arguments regarding Sections 212.002 and 212.003 conflate and

                                            7
confuse subdivision and platting regulation with building regulation, ignoring the clear

legislative distinctions between the two. See, e.g., Petitioner’s Brief on the Merits at 10 (citing

Sections 212.002 and 212.003 and arguing Texas municipalities have “statutory authority

to apply, by ordinance, their subdivision rules regarding development, including platting,

building standards and permitting, in their ETJ”); 17 (arguing that Sections 212.002 and

212.003 authorize municipalities to extend not only their subdivision and platting rules

to the ETJ, but also their building codes and attendant permitting and inspection

processes); 18 n.3 (listing general law municipalities that have purportedly “extended

their subdivision/building regulations to their ETJ”); 25 (arguing that courts have

“uniformly held that subdivision rules governing development, including building codes,

can be applied” in the ETJ); 31 (arguing that the Town validly “extended its subdivision

rules, including building codes, to the ETJ”); see also Petitioner’s Reply Brief on the Merits at

10-11 (citing Sections 212.002 and 212.003 but then arguing that these and other statutes

“provide clear authority for the Town to extend and enforce its building codes in its

ETJ”); 12 (arguing that Sections 212.002 and 212.003 authorize municipalities to “adopt

rules governing plats and subdivisions of land—including building codes . . . and extend

those rules to the ETJ”); 13 (arguing that Sections 212.002 and 212.003 give the Town

“authority to regulate development—including extension and enforcement of its building

codes in the ETJ”); 14 (arguing that Sections 212.002 and 212.003 provide the Town

with “authority to extend and enforce its building codes to the ETJ”).


                                                8
       The Town knows that building regulations and building codes are not “rules

governing plats and subdivisions of land,” as evidenced inter alia by the fact that the

Town has separate ordinances for building regulation and subdivision and platting

regulation. Compare Building Ordinance (Ordinance 10-01) (Appendix 2 hereto) and

Residential Code Ordinance (Ordinance 15-04) (Appendix 3 hereto) with Subdivision

Ordinance (Ordinance 14-13) (Appendix 1 hereto). Even the fees associated with plat

reviews and building inspections are different from one another. See Consolidated Fee

Ordinance (Ordinance 15-09) (Appendix 4 hereto). In fact, nearly all of the general law

municipalities listed in the Town’s brief at FN 3 have codified their building regulation

ordinances separately from their subdivision and platting ordinances. Unlike the Town

and contrary to the Town’s analysis, though, almost all of those cities have extended only

their subdivision and platting ordinances—not their building regulation ordinances—to

their ETJs pursuant to Section 212.003. See Petitioner’s Brief on the Merits at 18 n.3.

       Although the Town has not provided copies of the cited ordinances for the

Court’s review, GSABA has included a few of the referenced ordinances from the San

Antonio area in Appendix 5 hereto, solely for purposes of illustration. Leon Valley, for

instance, has codified its building regulations in Chapter 3 of its Code of Ordinances,

and has not extended its building permit requirement to its ETJ (§ 3.02.055(a) (“No

building or accessory building shall hereafter be erected or constructed within the corporate

limits of the city, and no existing building or accessory building within the corporate limits shall


                                                 9
hereafter be structurally altered or addition added thereto, unless a building permit has

first been issued.” (emphasis supplied)). By contrast, Leon Valley has codified its

subdivision regulations in Chapter 10 of its Code of Ordinances, and has extended its

subdivision regulations to its extraterritorial jurisdiction (§ 10.02.004(a) (“The provisions

of this article shall be applicable in the City of Leon Valley (‘city’) and its extraterritorial

jurisdiction.”)).

       The same is true for the City of Shavano Park, which has codified its building

regulations in Chapter 6 of its Code of Ordinances, but has not extended its building

permit requirement to its ETJ. (§ 6-39). Shavano Park, however, has codified its

subdivision regulations in Chapter 28 of its Code of Ordinances and has extended those

regulations to its ETJ (§ 28-3).

       The City of Castroville, too, has codified its building regulations in Chapter 22

of its Code of Ordinances (Buildings and Building Regulations) and has not extended its

building permit requirement to its ETJ (§§ 22-2, 22-27)(a) made applicable only within

the city limits; see also § 22-29, providing for a fine or criminal penalty, which under TEX.

LOC. GOV’T CODE § 212.003(b) cannot apply to the city’s ETJ). Castroville, though, has

codified its subdivision and platting ordinances in Chapter 100 of its Code of

Ordinances (Subdivisions) and has extended them to the city’s ETJ pursuant to Section

212.003 (§ 100-1).




                                              10
              3.     Milestone Potranco does not support the Town’s
                     position.

       The Town cannot squeeze its building regulation ordinances into the “plats and

subdivisions of land” language of Sections 212.002 and 212.003 by analogizing to the San

Antonio Tree Preservation ordinance at issue in Milestone Potranco Dev., Ltd. v. City of San

Antonio, 298 S.W.3d 242, 246-47 (Tex. App.—San Antonio 2009, pet. denied). See

Petitioner’s Brief on the Merits at xi-xii, 28-29. The Tree Preservation ordinance at issue in

Milestone Potranco is nothing like the Town’s building regulation ordinances. Rather, the

Tree Preservation ordinance is part of Article V, § 35-523 of San Antonio’s Unified

Development Code (2006) (“UDC”), codified in Chapter 35 of the San Antonio Code.

Id. at 245. Appendix 6 hereto. UDC art. V sets forth subdivision regulations, and the

purpose of Article V is to “consolidate the substantive standard relating to the issuance

of permits for zoning and subdivision approval in order to provide clarity and certainty in

the development approval process.” UDC § 35-102(b), (d) (emphasis supplied).

       That purpose is consistent with the Fourth Court of Appeals’ conclusion that the

Tree Preservation ordinance was “a rule ‘governing plats and subdivisions of land’”

within the meaning of Section 212.002, and could thus be applied in San Antonio’s ETJ

pursuant to Section 212.003. Milestone Potranco, 298 S.W.3d at 244, 249 (quoting Section

212.002). Further, the UDC itself expressly makes its subdivision regulations, including

the Tree Preservation ordinance, applicable both within the city limits and in San

Antonio’s ETJ. UDC § 35-523(a)(1)(A); see also UDC §§ 35.104(c), 35-430(a)(1).

                                             11
       By contrast, the UDC provision addressing building permit requirements—which

appears in Article IV, Division 1 (General Procedural Requirements), not in Article V,

Division 4 (Subdivisions)—is expressly limited to buildings or structures located “within

the city limits” of San Antonio. UDC § 35-401(c). See Appendix 6 hereto.

              4.     The Town’s misreading of Sections 212.002 and 212.003
                     conflicts with the legislative design of TEX. LOC. GOV’T
                     CODE ch. 212.

       The Town’s misreading of Sections 212.002 and 212.003 conflicts with TEX. LOC.

GOV’T CODE § 212.049, which the 70th Legislature enacted in 1987 to state that TEX.

LOC. GOV’T CODE ch. 212, subch. B—of which Section 212.049 is a part—“does not

authorize the municipality to require municipal building permits or otherwise enforce the

municipality’s building code in its extraterritorial jurisdiction.” By placing this provision

in subchapter B (Regulation of Property Development), the Legislature underscored the

fact that requiring building permits and enforcing building codes in a municipality’s ETJ

are matters pertaining to the Regulation of Property Development, not to the Regulation

of Subdivisions, which are instead addressed in subchapter A, including its Sections

212.002 and 212.003.

       For similar reasons, the Town’s heavy reliance on City of Lucas v. North Texas

Municipal Water District, 724 S.W.2d 811, 823-24 (Tex. App.—Dallas 1986, writ ref’d

n.r.e.) (supplemental opinion on motion for rehearing) is misplaced. See Petitioner’s Brief

on the Merits passim; Petitioner’s Reply Brief on the Merits passim. After Lucas was decided in


                                              12
1986, the Legislature made clear that matters pertaining to the Regulation of Property

Development—including the impermissibility of requiring building permits and

enforcing building codes in a city’s ETJ—are distinct from matters pertaining to the

Regulation of Subdivisions. Compare TEX. LOC. GOV’T CODE ch. 212, subch. B

(Regulation of Property Development); TEX. LOC. GOV’T CODE §§ 212.043, 212.049 with

TEX. LOC. GOV’T CODE ch. 212, subch. A (Regulation of Subdivisions); TEX. LOC.

GOV’T CODE §§ 212.002, 212.003. Also, in adding TEX. LOC. GOV’T CODE ch. 214,

subch. G (Building and Rehabilitation Codes) (TEX. LOC. GOV’T CODE §§ 214.211-

214.219) in 2001, the Legislature did not include any language authorizing the extension

of building regulations to the ETJ, or add any language about building regulations to

either Section 212.002 or 212.003, which govern “plats and subdivisions of land.”

       Appropriately, when faced with the statutory framework that has existed since

shortly after Lucas, the same Dallas court that wrote Lucas concluded in 2001 that a “city

is statutorily prohibited from regulating land use and construction on property in its ETJ;

a city may apply only its subdivision ordinances to such property.” Levy v. City of Plano,

No. 05-97-00061-CV, 2001 WL 1382520, at *4 (Tex. App.—Dallas Nov. 8, 2001) (not

designated for publication) (citing TEX. LOC. GOV’T CODE § 212.003(a)).

       City of Weslaco v. Carpenter, 694 S.W.2d 601 (Tex. App.—Corpus Christi 1985, writ

ref’d n.r.e.) does not support the Town’s position, either. See Petitioner’s Brief on the Merits

passim; Petitioner’s Reply Brief on the Merits passim. City of Weslaco involved the subdivision


                                              13
of land into 128 rental lot spaces and a site plan for mobile homes or recreational

vehicles, not the construction of buildings or residences. 694 S.W.2d at 602. And like

Lucas, City of Weslaco was decided under a statutory scheme that has long since been

amended and clarified by TEX. LOC. GOV’T CODE ch. 212, subchs. A and B, and that

clearly distinguishes subdivision and platting from property development, including the

construction of buildings. See 694 S.W.2d at 602.

               5.      The Town fails to mention the legislative history of
                       Section 212.003, which undermines the Town’s position.

       The Town cannot change the “rules governing plats and subdivisions of land”

language of Sections 212.002 and 212.003 to “building regulations” language by arguing

about the legislative history of TEX. LOC. GOV’T CODE ch. 212, subch. B, which does

not even include Sections 212.002 and 212.003. See, e.g., Petitioner’s Reply Brief on the Merits

at 17-20. The Town, moreover, fails to address the legislative history of Section 212.003,

which shows that the Legislature has at least twice declined to enact statutory

amendments the would have provided the express authority that the Town erroneously

claims it already has.

       In 1989, for instance, the Legislature considered a proposed amendment to

Section 212.003, which sought to replace the statute’s language with the following:

“ordinances adopted under Section 212.002 and other municipal ordinances relating to fire

safety, the construction of buildings or other structures or improvements, or access to public roads.”

Tex. H.B. 3187, 71st Leg., R.S. (1989) (Introduced Version) (emphasis supplied). In the

                                                 14
end, the Legislature rejected the “ordinances . . . relating to . . . the construction of

buildings or other structure or improvements” language and did not otherwise authorize

municipalities to extend such ordinances to their ETJs. See Appendix 7 hereto; see also

TEX. LOC. GOV’T CODE § 212.003.

       The legislative history of TEX. REV. CIV. STAT. art. 970a (the predecessor to

Section 212.003 and cited in Lucas and City of Weslaco) does not support the Town’s

analysis either. In 1963, the Legislature passed House Bill 13, enacting the Municipal

Annexation Act, which established the extraterritorial jurisdiction of cities and towns and

authorized the exercise of certain limited powers within the ETJs. As introduced, House

Bill 13 read in relevant part:

       Sec. 2(a)        The governing body of any city or town may, by ordinance,
       extend to all of the extraterritorial jurisdiction defined under the authority
       of Section 1(f) of this Act, the application of one or more of such city or
       town’s ordinances relating to: health; sanitation; subdivision development;
       zoning; building construction, including but not limited to building, plumbing and
       electrical standards and regulations.

Tex. H.B. 13, 58th Leg., R.S. (1963) (Introduced Version)(emphasis supplied). However,

the municipal authority granted by the enrolled version, which became law, was much

narrower. As enacted, the statute read in relevant part:

       Section 4. Extension of Subdivision Ordinance Within the Extraterritorial
       Jurisdiction. The governing body of any city may extend by ordinance to
       all of the area under its extraterritorial jurisdiction the application of the
       city’s ordinance establishing rules and regulations governing plats and the
       subdivision of land . . . .

Tex. H.B. 13, 58th Leg., R.S. (1963) (Enrolled Version). The Enrolled Version did not


                                              15
contain the proposed language about “building construction, including but not limited

to building, plumbing and electrical standards and regulations.” See Appendix 8 hereto;

see also TEX. LOC. GOV’T CODE § 212.003.

             6.     The Town’s public policy arguments, and those of some
                    amici supporting the Town, do not and cannot supply
                    the necessary statutory authority where there is none.

      As this Court has made clear, the public policies of Texas are reflected in its

statutes, which are the province of the Legislature. Tex. Commerce Bank, NA v. Grizzle,

96 S.W.3d 240, 250 (Tex. 2002). Because it lacks the necessary statutory authority to

enforce its building regulation ordinances in its ETJ, the Town cannot just take it upon

itself to enforce those ordinances in its ETJ anyway, based upon some perceived public

policy or professed concern that residences in the ETJ might not otherwise be safely

constructed. As this brief confirms, the law is that the Town cannot enforce its building

regulation ordinances in its ETJ without express statutory authority to do so, and no

such authority exists. The law is not that the Town cannot enforce its building regulation

ordinances in its ETJ without express statutory authority to do so unless it can come up

with some excuse for ignoring the law.

      Without the requisite statutory authority, the Town’s policy arguments, and those

of some amici supporting the Town, are irrelevant to any of the issues pending before

this Court. While policy arguments might be of interest to the Legislature, at least twice

the Legislature has rejected proposed amendments that would have granted

municipalities the very express statutory authority that the Town now claims it already

                                           16
has, but which it actually does not have at all. Having failed to convince the Legislature

to change the law, the Town and its supporters are now trying to convince courts that

municipalities already have all the statutory authority they need to enforce their building

regulation ordinances in their ETJs.

      Of particular concern to GSABA are the amicus briefs filed by various

municipalities and the Texas Municipal League purporting to present extra-record

anecdotal information based on hearsay, rumor, surmise, and innuendo. Without any

legal analysis, these amicus briefs essentially argue that only by extending their building

regulation ordinances to their ETJs (which is in derogation of existing Texas law) will

general law municipalities be able to protect citizens buying homes in the ETJs from

home builders who, absent such municipal regulation, cannot be trusted to construct safe

housing. These arguments are offensive to home builders and the home-building

industry, especially since they have no basis in law or fact. The municipalities’ feigned

concern for citizens in the ETJs also rings hollow when these same municipalities

generally provide no municipal services at all to those same citizens.

      TML’s allegations about houses that supposedly burned down in the Town’s ETJ

are neither based on the record in this case, nor connected to any conduct at issue in this

case. Likewise, TML’s speculation about the alleged reinspection rate in the City of

Helotes’ ETJ is unconnected to the record or conduct at issue in this case. The Court

should not consider amicus briefs that have no support in the record, or in law or fact.



                                            17
                                        IV. PRAYER

      For these reasons, GSABA respectfully asks the Court to affirm the Second Court

of Appeals’ judgment in all respects.


                                          Respectfully submitted,

                                          LANGLEY & BANACK, INC.
                                          745 East Mulberry, Suite 900
                                          San Antonio, TX 78212-3166
                                          Telephone: (210) 736-6600
                                          Facsimile: (210) 735-6889

                                          By:    /s/ Sara Murray
                                                 SARA MURRAY
                                                 smurray@langleybanack.com
                                                 State Bar No. 14729400
                                                 PAUL A. FLETCHER
                                                 pfletcher@langleybanack.com
                                                 State Bar No. 00795980

                                          COUNSEL FOR AMICUS CURIAE
                                          THE GREATER SAN ANTONIO
                                          BUILDERS ASSOCIATION




                          CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(1),(3), I hereby certify that this brief was
prepared in Garamond 14-point font, using Word Perfect X4, and according to the
program’s word-count function, the parts of the brief that must be counted contain
4,363 words.

                                                 /s/Sara Murray
                                                   Sara Murray



                                            18
                                      CERTIFICATE OF SERVICE

       The undersigned attorney hereby certifies that on April 28, 2016, a true and
correct copy of the foregoing Brief of Amicus Curiae the Greater San Antonio Builder’s
Association in Support of Respondent Harry Bizios was served via the Court’s
electronic-filing system, properly addressed to:

Wm. Andrew Messer
Brenda N. McDonald
Brett Gardner
MESSER, ROCKEFELLER & FORT, PLLC
6351 Preston Road, Suite 350
Frisco, TX 5034
COUNSEL FOR PETITIONER

Arthur J. Anderson
WINSTEAD PC
500 Winstead Building
2728 North Harwood Street
Dallas, TX 75201
COUNSEL FOR RESPONDENT

David F. Johnson
WINSTEAD PC
777 Main Street, Suite 1100
Fort Worth, TX 76102
COUNSEL FOR RESPONDENT



                                                     /s/Sara Murray
                                                       Sara Murray


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