Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed
January 12, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00051-CV


                      SECURE PROPERTIES, INC., Appellant

                                            V.

                            CITY OF HOUSTON, Appellee


                       On Appeal from the 189th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2010-13306


                  MEMORANDUM                         OPINION

      Appellant Secure Properties, Inc. (SPI) petitioned the district court for judicial
review of two orders issued by the City of Houston Building and Standards Commission.
The district court signed a judgment affirming the Commission’s decision, and SPI
appealed to this court. We affirm in part, and reverse and remand in part.

                                     BACKGROUND

      Under the Texas Local Government Code subchapter entitled ―Quasi-Judicial
Enforcement of Health and Safety Ordinances,‖ a municipality may provide for the
appointment of a Building and Standards Commission to hear and determine cases
concerning alleged violations of the municipality’s health and safety ordinances. See
TEX. LOC. GOV’T CODE ANN. §§ 54.031–.044 (West 2008 & Supp. 2011). The City of
Houston’s Building and Standards Commission conducts administrative hearings
pursuant to this authority. See generally Houston, Tex., Code of Ordinances ch. 10, art.
IX, §§ 10-341–360 (2011) (formerly §§ 10-391–410).

       SPI owns rental property consisting of two wood-framed buildings at 2308 and
2310 Winbern Street in Houston, Texas. On January 15, 2010, the City gave SPI written
notice that the Commission would hold a public hearing concerning alleged violations of
the Houston Code of Ordinances on the property on February 3, 2010. The notice
informed SPI that it could present evidence and witnesses concerning the alleged
violations at the hearing.

       SPI alleges that prior to the hearing, City officials gave SPI president Christopher
Hageney inconsistent information about whether the hearing should be postponed
pursuant to City policy. SPI does not argue that it received written or verbal confirmation
that the hearing was cancelled or rescheduled.

       Hageney appeared at the hearing on behalf of SPI, confirmed that he received
notice of the hearing, and requested a continuance. The Commission denied the request.
The City then presented photographs and testimony regarding the alleged violations.
Hageney did not cross-examine the City’s witness or introduce any evidence.

       The City recommended the following deadlines for remediation of the Building 1
violations: 10 days to obtain permits to secure the structure to specifications; 10 days to
obtain repair or demolition permits; and 30 days to repair or demolish the structure. The
City recommended the following deadlines for remediation of the Building 2 violations:
10 days to obtain repair permits; and 30 days to repair the structure.        In response,
Hageney informed the Commission that he needed at least 90 days to get bids from
contractors, obtain the permits, and complete the repair work on the two buildings.


                                            2
        In two separate orders, the Commission (1) found that notice was properly given;
(2) concluded that both Building 1 and 2 were in violation of numerous Code of
Ordinances provisions; (3) adopted the City’s recommendation for the repair or
demolition of Building 1; and (4) gave SPI 15 days to obtain repair permits and 60 days
to repair Building 2. The Commission informed Hageney: ―I think if you work with the
City on this . . . they can work and adjust the time sometimes when you’re showing good
effort.‖

        SPI petitioned the district court for judicial review of the Commission’s decision
on March 1, 2010. SPI invoked the district court’s inherent authority to review SPI’s
complaint that the Commission’s actions violated SPI’s constitutional rights, as well as
the district court’s authority to review the Commission’s findings for ―substantial
evidence‖ pursuant to section 54.039 of the Texas Local Government Code. See TEX.
LOC. GOV’T CODE ANN. § 54.039. Specifically, SPI claimed that the Commission’s
orders should be reversed because (1) the Commission’s denial of SPI’s request for a
continuance violated SPI’s procedural due process rights because ―SPI was notified [by
City officials] that the hearing would be reset‖; and (2) the Commission’s findings are not
―reasonably supported by substantial evidence considering the reliable and probative
evidence in the record as a whole.‖1

        The City filed a summary judgment motion, arguing that it was entitled to
judgment as a matter of law on SPI’s arguments. The district court granted summary
judgment in favor of the City, effectively affirming the Commission’s decision.

        In four issues on appeal, SPI argues that (1) the district court’s judgment is
erroneous to the extent that it applied the wrong standard of review to SPI’s procedural
due process challenge; (2) the City failed to show entitlement to a ruling as a matter of
law that the Commission’s actions did not violate SPI’s procedural due process rights,
and the evidence conclusively establishes a procedural due process violation; (3) the

        1
          SPI listed additional grounds for challenging the legality of the Commission’s decision, but SPI
does not appeal the district court’s rejection of those arguments.

                                                    3
Commission’s factual findings regarding the ordinance violations are not supported by
substantial evidence; and (4) the procedural due process violation was not remedied by
the City’s offer in the district court to agree to a proposed judgment remanding the case
for a rehearing, because SPI was entitled to a de novo hearing.

                                        ANALYSIS

I.     Standards and Authority for Judicial Review of the Commission’s Decision

       The right to appeal the decision of an administrative body exists if (1) such right is
statutorily created, or (2) the complained-of action violates a person’s constitutional
rights. See Firemen’s & Policemen’s Civil Serv. Comm’n of City of Fort Worth v.
Kennedy, 514 S.W.2d 237, 239 (Tex. 1974) (―[A]n inherent right of appeal from an
administrative body created by an act silent on the question will be recognized only
where the administrative action complained of violates a constitutional provision.‖); see
also Smith v. Nelson, 53 S.W.3d 792, 795 (Tex. App.—Austin 2001, pet. denied)
(―[T]here is no automatic right to appeal an administrative decision that does not violate
the appealing party’s constitutional rights; such a right to appeal exists only if
legislatively granted.‖).

       Both types of judicial review are authorized in this case, and each involves a
separate inquiry governed by a separate standard of review. See TEX. LOC. GOV’T CODE
ANN. § 54.039 (authorizing appeal to district court for judicial review of Commission
decisions for a hearing under substantial evidence rule); Lewis v. Metro. Sav. & Loan
Ass’n, 550 S.W.2d 11, 15–16 (Tex. 1977) (holding that a reviewing court’s conclusion
that administrative body’s factual findings are supported by substantial evidence does not
preclude separate inquiry into whether the administrative body acted so arbitrarily as to
violate a party’s right to due process); Perkins v. City of San Antonio, 293 S.W.3d 650,
653 n.2 (Tex. App.—San Antonio 2009, no pet.) (―We note . . . that in addition to
reviewing whether substantial evidence supports the Board’s order, an arbitrary action of
an administrative agency cannot stand, including any action that deprives a party of due
process; therefore, the trial court also is permitted to consider whether the proceedings

                                             4
before the Board satisfied the requirements of due process.‖).

      To survive appeal, administrative proceedings must meet the federal and state
constitutional requirements of due process of law and the rudiments of fair play. See
Granek v. Tex. State Bd. of Med. Exam’rs, 172 S.W.3d 761, 772 (Tex. App.—Austin
2005, no pet.) (citing Tex. Health Facilities Comm’n v. Charter Med.—Dallas, Inc., 665
SW.2d 446, 454 (Tex. 1984)); Grace v. Structural Pest Control, 620 S.W.2d 157, 160
(Tex. Civ. App.—Waco 1981, writ ref’d n.r.e.). Administrative hearings are not required
to measure up to judicial standards, but even administrative hearings must not be so
arbitrary or inherently unfair that they deny the parties due process of law. City of
Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 250 (Tex. App.—Fort Worth 2007, pet.
denied) (citing City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 262 (Tex.
2001)); Grace, 620 S.W.2d at 160 (citing Lewis, 550 S.W.2d at 15–16).            A claim
regarding the deprivation of constitutional rights by an administrative proceeding
presents a question of law subject to de novo review on appeal. See Lee v. City of
Houston, No. 14-05-003366-CV, 2006 WL 2254401, at *3 (Tex. App.—Houston [14th
Dist.] Aug. 8, 2006, pet. denied) (citing Granek, 172 S.W.3d at 771–72).

      Additionally, any owner aggrieved by a Building and Standards Commission
decision may present a petition to a district court seeking judicial review of the
Commission’s findings under section 54.039 of the Texas Local Government Code. See
TEX. LOC. GOV’T CODE ANN. § 54.039(a). The district court ―may allow a writ of
certiorari directed to the commission panel to review the decision.‖ Id. § 54.039(b). The
district court’s judicial review under this provision ―shall be limited to a hearing under
the substantial evidence rule,‖ and the district court ―may reverse or affirm, in whole or
in part, or may modify‖ the Commission’s decision. Id. § 54.039(f). When conducting a
substantial evidence review, the reviewing court must affirm an administrative order
supported by any quantum of evidence greater than a scintilla. R.R. Comm’n of Tex. v.
Torch Operating Co., 912 S.W.2d 790, 792–93 (Tex. 1995).             Whether substantial
evidence supports the Commission’s decision is a question of law; therefore, we perform

                                            5
our substantial evidence review de novo without deference to the district court’s
conclusion on the same issue. See Lee, 2006 WL 2254401, at *2 (analyzing identical
―substantial evidence‖ judicial review provision applicable to municipality decisions
regarding dangerous structures, as authorized by Texas Local Government Code sections
214.001–.005 (citing Tex. Dep’t of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex.
App.—Houston [14th Dist.] 2002, no pet.))).2

         With these standards of review in mind, we address each of SPI’s issues out of
order.

II.      SPI’s Challenges to the District Court’s Judgment

         A.     Procedural Due Process

         SPI argues in Issue 2 that the district court erred in concluding that SPI’s
procedural due process rights were not violated. Specifically, SPI complains that (1) the
City failed to make any legal arguments regarding certain factors relevant to a procedural
due process analysis; and (2) the undisputed evidence establishes a procedural due
process violation.

         The City presented the district court with relevant authority and correctly
explained that ―[p]rocedural due process requires reasonable notice and the opportunity
to be heard at a meaningful time and in a meaningful manner.‖ See Univ. of Tex. Med.
Sch. v. Than, 901 S.W.2d 926, 930 (Tex. 1995). The City’s argument to the district court
was supported by the following undisputed facts: Hageney (1) received written notice, (2)
appeared at the hearing, and (3) had an actual opportunity to be heard, cross-examine
witnesses, and present evidence. The City concluded that SPI’s due process rights were
not violated because ―[t]he [r]ecord conclusively establishes that [SPI] received
         2
           This standard of review is not inconsistent with the de novo standard of review applicable to a
trial court’s conclusion that the movant is entitled to summary judgment ―as a matter of law.‖ See TEX.
R. CIV. P. 166a(c); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The parties do
not challenge and we do not review the propriety of the City’s use of summary judgment procedures to
resolve the exclusively legal questions that are raised in an appeal from an administrative hearing to a
district court. However, we note that the City conceded at oral argument that it since has abandoned the
use of summary judgment procedures to resolve such appeals.

                                                    6
reasonable notice of the hearing and an opportunity to be heard—at a meaningful time
and in a meaningful manner.‖

       SPI contends that the City’s argument is incomplete because ―[e]xactly what
constitutes due process in a given situation is measured by a flexible standard that
depends on the practical requirements of the circumstances.‖ SPI argues that the City
should have addressed this ―flexible standard‖ and analyzed the three factors relevant to
its application: (1) the private interest affected by the state action; (2) the risk of
erroneous deprivation of a constitutionally protected interest under the procedures used
and the likely benefit of any additional procedures; and (3) the government’s interest,
including the fiscal and administrative burdens, that additional or substitute procedural
requirements would entail. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976);
Than, 901 S.W.2d at 930. SPI complains that the City did not show entitlement to
judgment as a matter of law because the City failed to identify or present evidence
regarding these factors.

       Because SPI does not seek the imposition of additional or substitute procedures
contemplated by the Mathews/Than factors, the City had no need to address them in its
argument to the district court. See Mathews, 424 U.S. at 333, 349 (recipient of disability
benefits would have been provided with evidentiary hearing had he sought
reconsideration of administrative decision to terminate benefits, and due process did not
additionally require evidentiary hearing prior to that decision); Than, 901 S.W.2d at 932
(student was provided notice and opportunity to be heard prior to disciplinary dismissal,
but due process additionally required hearing officer to grant student’s request to be
present during presentation of evidence against him unless other circumstances justified
ex parte presentation of evidence). SPI does not challenge the sufficiency of the written
notice received by Hageney or argue that the Commission’s existing hearing procedures
actually prevented Hageney from having an opportunity to be heard, present evidence, or
cross-examine witnesses. Rather, SPI argues that the Commission’s denial of Hageney’s
request for a continuance—after he made it known to the Commission that he was

                                            7
unprepared because he ―was told [the hearing] would not go forward by the City’s
representatives‖—deprived SPI of its due process right to a meaningful opportunity to be
heard and ―to present its objections to the testimony of the City, present controverting
evidence, and cross examine witnesses.‖ We conclude that the City’s legal arguments to
the district court on this issue were sufficient.

        SPI also argues that the district court’s judgment is erroneous because the
evidence conclusively establishes that SPI suffered a procedural due process violation.3
Not every denial of a requested continuance constitutes an effective denial of a
constitutionally-guaranteed due process right. See State v. Crank, 666 S.W.2d 91, 94–95
(Tex. 1984) (concluding that under the circumstances, the administrative body’s denial of
continuance did not effectively deprive Crank of his ―due process rights to fair
representation‖).      ―There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process,‖ and such a determination depends
on the circumstances in each case. Id. (civil appeal from order of the state Board of
Dental Examiners revoking Crank’s license; applying rule to administrative body’s denial
of Crank’s request for continuance (citing Ungar v. Sarafite, 376 U.S. 575, 589 (1964))).
The circumstances in this case do not reveal a procedural due process violation.

        SPI president Hageney appeared at the hearing on behalf of SPI and requested
additional time to prepare:4


        3
          SPI also argues that, at a minimum, the uncontested summary judgment evidence ―raises a
genuine issue of material fact‖ regarding its asserted procedural due process violation. The issue of
whether the Commission violated SPI’s procedural due process rights is a legal question, not a factual
one. See Lee, 2006 WL 2254401, at *3 (citing Granek, 172 S.W.3d at 771–72). No other ―factual issue‖
exists because, as SPI points out, the City does not dispute SPI’s version of the events relevant to this
legal inquiry. We therefore reject this additional argument for reversing the district court’s judgment.
        4
           These excerpts are taken from a purported transcript of a recording taken at the administrative
hearing, which was attached as an exhibit to the City’s summary judgment motion. SPI does not
challenge the City’s characterization of this or any other exhibit to its motion as a true copy taken from
the certified record of the administrative hearing. The certified record of the administrative hearing does
not actually appear in the clerk’s record as a return on the trial court’s writ of certiorari. However, neither
party assigns error to this point. Therefore, for purposes of this appeal, we accept the record as true and
complete.

                                                      8
       I’ve been in communication with [the City] and I wasn’t prepared. I
was told to come down here and say that the repairs were on their way. So
I didn’t bring any photos or any evidence on my behalf. . . . [A]s soon as I
received that, I did start calling you. So I’m not — I just — I would like,
you know, as my right to have time to reset and to continue the repairs. I’m
an owner here trying to comply.
             *                           *                            *
      I did receive the certified notices[,] which is why I’m here.
             *                           *                            *
       What I’m saying is prior to receiving that notice, prior to receiving
the notice to come to [the] hearing, I didn’t realize I was under any
violation. I didn’t — I received a notice saying come to a hearing. I
immediately called, met an inspector. I understand that your process hasn’t
change[d]. I would be contacted[,] whether by certified mail or whatever.
And I would go out and meet an inspector. The inspector would say I want
these repairs done. And it happened on this property in 2005 when the
inspector signed off [without a hearing]. . . . So I would like the
opportunity — you have an owner here trying to comply. I’d like the
opportunity to continue to continue with what we’re doing. We only met
one week ago and already probably a significant portion or a third or half of
the repairs are done. I will have the rest of them done within the 90-day
period.
             *                           *                            *
        I have no photos and nothing to offer as evidence. And I would have
come — I would have taken a different tact [sic] as opposed to trying to
immediately comply with the recommendation. I received a notice to come
to this hearing. What is my understanding is normal is to receive a notice
that I’m in violation, to go meet the inspector and try to comply before you
go to [a] hearing. I haven’t been afforded that. I’m just asking that if —
can I continue to do the repairs?
             *                           *                            *
       I think there’s a difference in the way — in the manner in which I . .
. do the repairs after the hearing takes place. I’m never — I’ve been in real
estate and worked with this organization for many years under many
different directors. I’ve never been to [a] hearing and I’ve always — I have
been cited on things in the past and I have always complied and I’ve never
been to [a] hearing. I was not afforded that possibility under this scenario.
             *                           *                            *


                                     9
               I was under the understanding that was what was going to happen or
        else I would have taken photos and have bids and been able to tell you that
        I can complete these repairs within this period of time. I — I don’t have
        any information.5

The Commission voted to deny SPI’s request for a continuance.

        During SPI’s appeal to the district court, SPI proffered for the first time an
affidavit by Hageney, in which he states that a City official told Hageney that the hearing
should not have been scheduled because ―the City has a policy of not scheduling hearings
with property owners who are attempting to comply with violations.‖6 Hageney states
that the official informed Hageney that if he met with inspectors and had the repairs
underway, the scheduled hearing would be ―postponed‖ for 60 days. Hageney followed
these instructions. He attended a meeting with City officials on the day of the hearing,
where he learned that the City intended to go forward with the hearing because the file
contained no notation that the hearing should be postponed ―according to the agreement
between SPI and the City.‖ After that meeting, a City inspector told Hageney, ―[D]on’t
worry, we will take care of this.‖ An hour or two later, the official who originally
discussed the City’s policy with Hageney told him that she noted that the hearing ―should
be postponed‖ in an email, and instructed Hageney to ask for additional time ―to instigate
repairs.‖ In response, the City informed Hageney that it planned to ―recommend‖ an
additional 60 days for SPI ―to instigate repairs.‖                Hageney characterizes the City’s
decision to ―go forward with the hearing‖ as a violation of its asserted promise to

        5
          When the Commission noted that it had the option to give SPI a 90-day compliance period at the
end of the hearing, Hageney explained why this solution was not a sufficient alternative to a continuance:
―The difference would be that I would have to get a different set of permits if we go through with this
hearing. . . . [I would have to get an] occupancy permit[,] which would require me to bring the entire
property up to code as opposed to repairing the damages that they have.‖
        6
           The parties dispute on appeal whether the district court’s review of SPI’s procedural due process
complaint was limited to the record developed at the administrative level, or if the parties could adduce
new evidence for the first time on appeal to the district court. SPI complains that the City failed to
preserve this issue because it failed to object to Hageney’s affidavit in the district court. We do not
decide either issue because we can affirm the district court’s judgment by assuming without deciding that
the district court properly could have considered the newly adduced evidence. See TEX. R. APP. P. 47.1
(―The court of appeals must hand down a written opinion . . . that addresses every issue raised and
necessary to final disposition of the appeal.‖).

                                                    10
―postpone‖ the hearing or ―recommend‖ an additional time for repairs.

        We do not agree that these circumstances indicate that the Commission’s denial of
SPI’s motion for continuance was arbitrary, an abuse of discretion, or an effective denial
of SPI’s due process right to an opportunity to be heard at a meaningful time and in a
meaningful manner. See Crank, 666 S.W.2d at 94–95. SPI unequivocally admits that it
had notice of the hearing, and it does not contend that any City officials ever confirmed
that the hearing was postponed according to ―policy‖ in response to SPI’s remedial
actions.     The fact that SPI met with City officials to discuss the status of the
postponement on the day of the hearing, as well as the fact that SPI actually attended the
hearing and requested additional time, belies SPI’s implied contention that it relied on the
City’s assurances and believed the hearing to be effectively postponed before the date of
the hearing. That SPI chose to attend the hearing empty-handed because it assumed its
request for continuance would be granted does not affect our analysis. Cf. Ezeoke v.
Tracy, 349 S.W.3d 679, 687 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (―A lawyer
who gambles by requesting a continuance and then leaving the country before the request
has been ruled on reasonably can anticipate adverse consequences.‖). Accordingly, we
do not agree with SPI that the evidence establishes a procedural due process violation.

        We overrule SPI’s Issue 2.7

        B.       Substantial Evidence

        SPI argues in Issue 3 that substantial evidence does not support the Commission’s
findings that SPI’s property was in violation of certain Code of Ordinances provisions.


        7
           SPI argues in Issue 1 that the district court erred ―to the extent that‖ it relied on the ―substantial
evidence rule‖ as the applicable standard of review for its procedural due process argument. Nothing in
the record indicates that the district court applied an incorrect standard; the City’s motion does not urge
and the district court’s order does not recite an incorrect standard. Additionally, because we can affirm
the district court’s conclusion by applying the correct standards in our de novo review of SPI’s challenges
to the Commission’s decision, we also overrule Issue 1. SPI argues in Issue 4 that the City’s offer to
agree to a proposed judgment remanding the case for a rehearing did not remedy the asserted procedural
due process violation. Because we conclude that no procedural due process violation occurred, we also
overrule Issue 4.

                                                       11
       Texas recognizes a range of standards for reviewing administrative findings: (1)
pure trial de novo; (2) pure substantial evidence; and (3) substantial evidence de novo.
Perkins, 293 S.W.3d at 653. We review the Commission’s decision under the pure
substantial evidence rule, which authorizes the reviewing court to consider only the
factual record made before the administrative body and determine if its findings are
reasonably supported by substantial evidence. See TEX. LOC. GOV’T CODE ANN. §
54.039(f); Perkins, 293 S.W.3d at 653.

       ―Substantial evidence review resembles legal sufficiency review.‖ See Dozier v.
Tex. Emp’t Comm’n, 41 S.W.3d 304, 309 (Tex. App.—Houston [14th Dist.] 2001, no
pet.). ―Substantial evidence‖ is defined as evidence amounting to more than a mere
scintilla. Tex. Health Facilities Comm’n, 665 S.W.2d at 452 (citing Alamo Express, Inc.
v. Union City Transfer, 309 S.W.2d 815, 823 (1958)).                 Under substantial evidence
review, the evidence in the record actually may preponderate against the decision of the
agency and nonetheless amount to substantial evidence. Id. (citing Lewis, 550 S.W.2d at
13). ―The true test is not whether the agency reached the correct conclusion, but whether
some reasonable basis exists in the record for the action taken by the agency.‖ Id. at
452–53 (citing Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex. 1966)).                    Administrative
findings, inferences, conclusions, and decisions are presumed to be supported by
substantial evidence, and the burden is on the appellant to prove otherwise. Id. at 453;
Tex. Alcoholic Beverage Comm’n v. Mini, Inc., 832 S.W.2d 147, 150 (Tex. App.—
Houston [14th Dist.] 1992, writ denied).

       The Commission found that Building 1 was in violation of the terms of the City of
Houston’s Code of Ordinances Section 10-361(a)(3), (a)(11), and (b)(2), as well as
Section 10-343(b)(4), (c)(9), and (e)(3).8 These subsections concern buildings that are
not weathertight and waterproof; secured from unauthorized entry to the extent that
vagrants, uninvited persons, or children could enter; free of holes that constitute health or

       8
          The Commission also found that Building 1 was in violation of Section 10-343(c)(4), but SPI
does not challenge that finding on appeal.

                                                 12
safety hazards or that would allow insects and other pests to gain access to the extent
constituting a present hazard to health or safety; or free of interior rubbish and garbage.
See Houston, Tex., Code of Ordinances ch. 10, art. IX, §§ 10-361, 10-343 (2002) (current
versions at §§ 10-371, 10-363). The Commission found that Building 2 was in violation
of the terms of the City of Houston’s Code of Ordinances Section 10-343(c)(1), (c)(4),
and (c)(9). These subsections concern buildings that are not protected on the exterior
from decay; weatherproof and watertight; or free of holes that constitute health or safety
hazards. See id. § 10-343 (2002) (current version at § 10-363).9 SPI challenges each of
these findings under the substantial evidence rule.

        With respect to Building 1, City inspector Cherie Strong testified to her
observations based on her inspection of the property the morning of the hearing:

               The structure . . . was vacant and open with partially boarded
        windows and doors. A few of the windows[,] the boards had been removed
        and there were — the pane was broken — the window pane was broken in
        the windows rendering the property not weathertight or waterproof and also
        rendering it open to the elements.
               The exterior of the structure is deteriorating — deteriorating where
        the wall studs are starting to — or being exposed to the elements of nature.
        The structure is — the property is posted no trespassing so I wasn’t able to
        get onto the property and get any interior shots.

                         *                                 *                                 *

        9
            Section 10-361(a)(3) and (a)(11) define a structure as a dangerous building if the ―[r]oofs or
walls . . . are not weathertight or waterproof‖ or if it has ―been left unsecured from unauthorized entry to
the extent that [it] may be entered by vagrants or other uninvited persons as a place of harborage or could
be entered by children.‖ Houston, Tex., Code of Ordinances ch. 10, art. IX, § 10-361(a)(3), (a)(11)
(2002). Section 10-361(b)(2) states that a building that ―is boarded up, fenced or otherwise secured in
any manner‖ nonetheless constitutes a dangerous building if ―[t]he building’s roof, walls or floor contains
holes that would allow insects, ectoparasites, rodents or other pests to gain access to the building for
harborage to the extent constituting a present hazard to health or safety.‖ Id. § 10-361(b)(2). Sections 10-
343(b)(4), (c)(1), (c)(4), (c)(9), and (e)(3) require owners to ―[k]eep the doors and windows of a vacant
building . . . securely closed to prevent unauthorized entry‖; ―[p]rotect the exterior surfaces of a building
reasonably subject to decay by application of a protective covering, coating or other preservative‖;
―[m]aintain a building intended for human occupancy . . . in a weatherproof and watertight condition‖;
―[r]epair holes, cracks, breaks and loose surface materials that are health or safety hazards in or on floors,
walls, ceilings, porches, steps and balconies‖; and ―[m]aintain the interior of a vacant building . . . free
from rubbish and garbage.‖ Id. § 10-343(b)(4), (c)(1), (c)(4), (c)(9), (e)(3).

                                                     13
              You could see where the exterior of the property is starting to mold
      and it has mildew on it where the asbestos is starting to decay. . . . You can
      see there where the exterior is deteriorated. You got [sic] broken windows,
      open windows, where it’s been partially boarded. More open windows
      which are allowing for the elements of nature to enter into the structure.

            Second floor, more open windows there were at one time partially
      boarded. . . . [T]he exterior . . . is deteriorating and exposing the wall studs.

                    *                             *                            *

             This morning when I went out to the property, the property had . . .
      been boarded a little bit — secured a little bit better with boards placed over
      the windows that were open or broken. As far as the repairing to the
      exterior of the other property, it has not been done.

      With respect to Building 2, Strong testified to her observations based on her
inspection of the property the morning of the hearing:

             [T]he property is occupied. It’s an occupied multi-dwelling and the
      property is posted no trespassing so I wasn’t able to get onto the property to
      get any interior shots. But the exterior of the property is starting to
      deteriorate where the — you could see there’s possibly termite damage
      done to the exterior of the property where the walls — the exterior wall
      covering has deteriorated[,] exposing the wall studs to the elements of
      nature and it was all around the property — all around the building.
              Around the headers and the window sills around the windows are
      starting to deteriorate where apparently there is termite damage which
      would render the property not weather tight or waterproof.
                    *                             *                            *
             [There is] more deterioration of the exterior of the property and you
      can see where it’s possible termite damage there. . . . [Y]ou see the
      deterioration of the exterior of the covering on the wall, exposing the wall
      studs to the elements of nature. . . . [Y]ou can tell that there’s termite
      damage on the property that’s been done to the exterior walls. And around
      the windows you can see is there where it’s deteriorated, where the sill is
      deteriorated, and the headers are starting to deteriorate . . . rending it not
      weather tight and weatherproof.
            [There is] more deterioration where the exterior is basically
      nonexistent, exposing the wall studs. Deterioration around the window and
      above the gable there is some deterioration above the gable that has been


                                             14
       partially repaired but not completely repaired.10

The City also introduced a number of photographs of the property showing exterior
damage to the buildings. The electronic date stamp on these photos ranges from July
2004 to January 2010. When asked whether the photographs ―represent those structures,‖
Strong answered, ―Yes, sir, they do.‖

       The Commission inquired whether SPI had done any repairs to the buildings, and
Hageney answered:

              One of the pictures will show the roof was — will indicate we
       replaced the roof at a cost of about $12,000. . . . [W]e secured the front
       building — no. Some. You saw some HardiPlank put up there. Yeah.
       Some of the HardiPlank. But the front building has been the issue because
       it’s vacant and it’s been boarded. And what will happen is, for whatever
       reason, people take the boards off.
                        *                        *                             *
                 But there’s some — there’s some deterioration on the exterior.

                         *                              *                          *
              [Y]ou can see where we replaced the roofs on both of them and
       replaced the facia. We haven’t gone around — but down below on the
       right-hand side you can see where we replaced some HardiPlank.

                         *                              *                          *
               That’s an old photo. That’s been repaired. That would have been
       one from before. All that’s been repaired.11 So the exterior does have
       some places where the siding is off, the windows are in disrepair, and some
       of that trim around the windows needs to be replaced as we discussed.

       We conclude that the record from the hearing contains more than a scintilla of
evidence that Building 1 was not weathertight and waterproof; secured from unauthorized
entry to the extent that vagrants, uninvited persons, or children could enter; or free of
holes that constitute health or safety hazards or that would allow insects and other pests

       10
          The transcript indicates that a video of Strong’s inspection may have been played for the
Commission as Strong narrates. The City did not include the video in its summary judgment evidence
and does not argue that we could view it if it had been included in the record on appeal.
       11
            The record does not indicate which photo Hageney was discussing.

                                                   15
to gain access to the extent constituting a present hazard to health or safety. See id. § 10-
361(a)(3), (a)(11), (b)(2); id. § 10-343(b)(4), (c)(9); see also Tex. Health Facilities
Comm’n, 665 S.W.2d at 452. We also conclude that the record from the hearing contains
more than a scintilla of evidence that Building 2 was not protected on the exterior from
decay; weatherproof or watertight; or free of holes that constitute health or safety
hazards. See Houston, Tex., Code of Ordinances ch. 10, art. IX, § 10-343(c)(1), (c)(4),
(c)(9) (2002); see also Tex. Health Facilities Comm’n, 665 S.W.2d at 452. However, the
Commission heard no evidence regarding whether SPI had kept the interior of Building 1
―free from rubbish and garbage‖ pursuant to Section 10-343(e)(3). See Houston, Tex.,
Code of Ordinances ch. 10, art. IX, § 10-343(e)(3) (2002). We sustain SPI’s Issue 3 to
that extent and overrule Issue 3 in all other respects.

                                        CONCLUSION

       We reverse the district court’s summary judgment on the issue of whether
substantial evidence supports the City of Houston Building and Standards Commission’s
finding that SPI failed to keep the interior of Building 1 ―free from rubbish and garbage‖
pursuant to Houston Code of Ordinances section 10-343(e)(3); we remand that issue to
the district court for proceedings consistent with this opinion. We affirm the district
court’s summary judgment in all other respects.



                                                   _
                                           /s/     Sharon McCally
                                                   Justice



Panel consists of Justices Brown, Boyce, and McCally.




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