Opinion issued January 22, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00767-CV
                            ———————————
                  GARRETT OPERATORS, INC., Appellant
                                         V.
                         CITY OF HOUSTON, Appellee


                    On Appeal from the 215th District Court
                             Harris County, Texas
                       Trial Court Case No. 2012-20088


                                  OPINION

      Appellant, Garrett Operators, Inc. [“Garrett”], filed a declaratory judgment

action against the City of Houston [“the City”] regarding the application and

interpretation of the City’s sign code as it pertains to a billboard Garrett owns and
operates. On appeal, Garrett contends the trial court erred in granting the City’s

motion for summary judgment and denying its own motion.

                                 BACKGROUND

      The underlying case was previously on appeal to this Court in connection

with a plea to the jurisdiction filed by the City. See Garrett Operators, Inc. v. City

of Houston, 360 S.W.3d 36 (Tex. App.—Houston [1st Dist.] 2011, pet. denied)

(“Garrett I”). The relevant facts set forth in that opinion provided as follows:

      Garrett Operators holds a lease on a small parcel of land located in
      Houston, Texas. The only significant structure on this parcel of land is
      an advertising billboard. George Thomas Cox is the sole owner of
      Garrett Operators.

      Cox met with Susan Luycx, division manager of the Houston Sign
      Administration, in January 2008 to discuss Cox’s plans to install an
      LED display on his billboard. According to Cox’s affidavit, Luycx
      informed Cox that it was “illegal in the City of Houston for sign
      owners to use an LED display on a sign.” Cox told Luycx that the
      Sign Code did not mention LED lighting, to which Luycx responded
      that “we are likely to change the sign code.”

      Subsequently, Garrett Operators’ counsel sent a letter to Luycx
      describing the proposed installation and asserting that the Sign Code
      does not require a permit for the installation. Luycx responded, stating
      that “although your client has yet to formalize his intentions with this
      office, and based solely on the information currently available to us,
      your client’s proposal contravenes and would be in direct violation of
      the City’s Sign Code.”

      On July 12, 2008, Garrett Operators attempted to install the LED
      display on his billboard. Before work began, however, Luycx
      appeared and issued a stop order on the work. The basis given for the
      stop order was “No permits on file. No permits on site. Permits are


                                          2
      required to change structure of sign. (L.E.D. boards were being
      added.)”

      On December 5, 2008, Garrett Operators and Cox filed suit against
      the City of Houston in a Harris County civil court at law. They
      asserted claims for inverse condemnation, declaratory judgment,
      violation of section 1983 of title 42 of the United States Code, and
      violation of their state constitutional due course of law rights. On
      December 10, 2008, the City of Houston enacted an ordinance that
      amended the Houston Sign Code to explicitly prohibit “off-premise
      electronic signs,” a category into which Garrett Operators’ sign falls.
      Plaintiffs subsequently amended their petition, including in their
      declaratory judgment action a claim that the 2008 amendments to the
      Sign Code did not apply to them.

      The City of Houston filed a plea to the jurisdiction arguing, among
      other things, the inverse condemnation claim was not ripe and that the
      other claims were outside the legislatively prescribed subject-matter
      jurisdiction of the court. The trial court granted the plea to the
      jurisdiction on each of Plaintiffs’ claims, dismissing the suit.

Id. at 39–40.

Garrett appealed. On May 12, 2011, this Court determined that Garrett’s inverse

condemnation claim was not ripe because Garrett had not obtained a final decision

from the Sign Administration as to whether, upon proper application for a permit,

an LED display could be installed on its billboard. Garrett I, 360 S.W.3d at 43.

Because Garrett’s inverse condemnation claim was dismissed for want of

jurisdiction, its remaining claims could not be “inherently intertwined” with the

dismissed claim and were outside the jurisdictional limits of the county court. Id.

at 44. We made “no determination in this holding on Garrett Operators’ claim in

its declaratory judgment action that it was not required to obtain a permit.” Id. at
                                         3
43 n.1. After this Court’s opinion issued, Garrett, in June 2011, finally applied for

a permit to change its tri-vision billboard system to an LED system, which it noted

was subject to and without waiving its position that no permit was required.

      After the Texas Supreme Court denied petition for review in the county

court case, Garrett filed the present case in district court on April 4, 2012. It its

petition, Garrett claimed that any application of the 2008 amendments to him was a

violation of the Texas Constitution’s prohibition against retroactive laws under

Article I, section 16. Garrett also sought declarations that: (1) “the amendments to

the Sign Ordinance that were enacted after his claims had accrued and were

pending are invalid and unconstitutional as applied to Garrett[;]” (2) the pre-

amendment Sign code (a) did not prohibit LED lighting and (b) did not require a

permit from the Sign Administration to install LED lighting; and (3) section

245.002 of the Local Government Code also prohibited the City from applying the

amendments to the sign code retroactively.

      The City filed a motion for summary judgment contending, among other

things, (1) that Garrett’s constitutional claims were barred by limitations, (2) that

the pre-2008 Sign code required a permit, for which Garrett did not apply until

after filing suit, and that absent a request for a permit Garrett had no vested right to

install its LED technology, and (3) Garrett had no vested right under the Local

Government Code to prevent application of the 2008 amendments.


                                           4
      Garrett filed its own motion for summary judgment, seeking declarations (1)

that the a 2008 amendments were unconstitutional as applied to it, (2) that the pre-

amendment sign code permitted LED lights and their installation did not require a

permit, and (3) that section 245.002 of the Local Government Code required the

City to apply pre-amendment provisions to Garrett’s request to modify its

billboard.

      The trial court, without giving reasons, granted the City’s motion for

summary judgment and denied Garrett’s motion for summary judgment. This

appeal followed.

 PROPRIETY OF SUMMARY JUDGMENT FOR CITY AND DENIAL OF
             GARRETT’S SUMMARY JUDGMENT

      In its appeal, Garrett presents the following issues:

      1. Did the trial court err in granting the City’s Motion on the ground
         that Garrett’s claim under article I, section 16 of the Constitution
         was barred by the statute of limitations?

      2. Did the trial court err in denying Garrett’s Motion on its request for
         a declaration that application of the amended code to the upgrade
         to LEDs violated article I, section 16 of the Constitution?

      3. Did the trial court err in granting the City’s Motion and denying
         Garrett’s Motion regarding construction of the 2008 Sign code?

      4. Did the trial court err in granting the City’s Motion and denying
         Garrett’s Motion on Garrett’s claim that TEX. LOC. GOV’T CODE
         ANN. § 245.002 required the City to apply the 2008 Code to the
         upgrade?



                                          5
Standard of Review

       We review summary judgments de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A movant is entitled to traditional

summary judgment if (1) there are no genuine issues as to any material fact and (2)

the moving party is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c). To obtain traditional summary judgment on an opposing party’s claims,

the movant must conclusively negate at least one element of each of the claims or

conclusively establish each element of an affirmative defense. See Centeq Realty,

Inc.   v.     Siegler, 899   S.W.2d   195,    197    (Tex.   1995).    On    appeal,

when both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review the summary-

judgment evidence presented by both sides and determine all questions presented

and render the judgment the trial court should have rendered. FM Props. Operating

Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). If we determine that a fact

issue precludes summary judgment for either party, we remand the cause for trial.

See Univ. of Tex. Health Sci. Ctr. at Houston v. Big Train Carpet of El Campo,

Inc., 739 S.W.2d 792, 792 (Tex. 1987).

Limitations

       In its petition, Garrett sought a declaration “that the amendments to the Sign

Ordinance that were enacted after [its] claims had accrued and were pending are
                                          6
invalid and unconstitutional as applied to Garrett because such application violates

article I, section 16 of the Texas Constitution[,]”1 which prohibits the enactment of

retroactive laws.

      The City moved for summary judgment on this claim, arguing that it was

barred by limitations. The City argued that Garrett’s “as-applied” challenge to the

constitutionality of applying the amended statues was subject to the three-year

limitations period set forth in the Local Government Code regarding municipal

ordinances,2 and that Garrett’s lawsuit, which was filed over three months after the

three-year limitation period had expired, was untimely. The City also argued that

the tolling provision found in section 16.064 of the Civil Practices and Remedies

Code, which provides additional time for refiling a suit that is dismissed for lack of

jurisdiction, was not applicable.

The tolling provision, section 16.064, provides:

      (a) The period between the date of filing an action in a trial court and
          the date of a second filing of the same action in a different court

1
      “No bill of attainder, ex post facto law, retroactive law, or any law impairing the
      obligation of contracts, shall be made.” TEX. CONST. art. I, § 16.
2
      (a) A governmental act or proceeding of a municipality is conclusively presumed,
      as of the date it occurred, to be valid and to have occurred in accordance with all
      applicable statues and ordinances if:
             (1) the third anniversary of the effective date of the act or proceeding has
             expired, and
             (2) a lawsuit to annul or invalidate the act or proceeding has not been filed
             on or before that third anniversary.
      TEX. LOC. GOV’T CODE ANN. § 51.003(a) (Vernon 2008).
                                           7
         suspends the running of the applicable statute of limitations for the
         period if:

             (1) because of lack of jurisdiction in the trial court where the
                 action was first filed, the action is dismissed or the judgment
                 is set aside or annulled in a direct proceeding; and

             (2) not later than the 60th day after the date the dismissal or
                 other disposition becomes final, the action is commenced in
                 a court of proper jurisdiction.

      (b) This section does not apply if the adverse party has shown in
          abatement that the first filing was made with intentional disregard
          of proper jurisdiction.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.064 (Vernon 2008).

      On appeal, the City contends that the tolling provision does not apply for

three reasons: (1) because Garrett did not file suit within 60 days of the final

disposition of the county court suit; (2) because Garrett’s request for declaratory

judgment regarding its constitutional claim was not a second filing “of the same

action in a different court;” and (3) because Garrett “intentionally disregarded” the

proper jurisdiction of the county court.

      Refiling within 60 days of dismissal

      Regarding the first issue, the City did not argue in its motion for summary

judgment that the tolling statute was inapplicable because of Garrett’s failing to

file suit within 60 days of the final disposition of the county court suit. We cannot

affirm a summary judgment on any ground not raised in the motion. See Stiles v.



                                           8
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[A] summary judgment

cannot be affirmed on grounds not expressly set out in the motion or response.”).

      Same Action

      The City also argued, both in its summary judgment and on appeal, that the

tolling statute was inapplicable because the present suit was not the “same action”

as the suit filed in county court because it added the constitutional claims, which

were not in the county court lawsuit.

      This Court, however, has considered and rejected this argument. In Winston

v. Am. Med. Int’l, Inc., 930 S.W.2d 945, 955 (Tex. App.—Houston [1st Dist.]

1996, writ denied), the defendant argued that “the only causes of action that

[could] be saved [by the statute] are the ones asserted in [the previous suit],” and

that “the ‘same action’ language of 16.064(a) limits what plaintiffs can file in [the

second suit] to exactly what was filed in [the previous suit].” Id. This Court held

that section 16.064 should be construed with section 16.068, which permits

amended or supplemental pleading to relate back to the date of the original filing,

“so as to achieve the clear purpose of the statutes, which is to toll limitations for a

certain period when a case is dismissed for lack of jurisdiction and to allow adding

to a petition additional theories of liability or defenses after the lawsuit has been

filed if those new theories or defenses are not wholly based on a new, distinct, or

different transaction or occurrence.” Id. Here, Garrett’s new constitutional claims


                                          9
are not based on a new, distinct, or different transaction or occurrence” because all

of the claims arise out of its efforts to modify the billboard and the City’s efforts to

keep it from doing so.

      The City argues that “[n]o other case has followed Winston on this point.”

We note, however, Winston has not been overruled by this Court, or distinguished

by another Court on these grounds, and we decline to do so now.

      Intentional Disregard of County Court Jurisdiction

      The City also argued at trial and on appeal that section 16.064 did not apply

because Garrett “intentionally disregarded the proper jurisdiction of the county

court.” Specifically, the City argues that, “Garrett sought damages for those claims

of $5 million and $69 million, respectively, ‘well outside the county court’s

[$100,000] jurisdictional limits.’”

      When, as here, an adverse party has moved for relief under the “intentional

disregard” provision, the nonmovant must show that it did not intentionally

disregard proper jurisdiction when filing the case. In re United Servs. Auto. Ass’n,

307 S.W.3d 299, 313 (Tex. 2010). Because the non-movant has this information,

he bears the burden of producing it. Id. The plaintiff must present some evidence

on the issue, similar to that imposed on a non-movant who receives a no-evidence

summary judgment.        See Brown v. Shores, 77 S.W.3d 884, 889 (Tex. 2002)

(Brister, J., concurring) (holding that when defendant moves for summary


                                          10
judgment based on lack of plaintiff’s diligence in obtaining service of process,

plaintiff must present some evidence to explain delay, thereby shifting burden back

to the defendant to defeat as matter of law).       If the plaintiff presents some

evidence, the burden shifts back to defendant to show why that explanation is

insufficient as a matter of law. Id.

      The City’s motion for summary judgment argued that limitations applied,

and the tolling statute did not, because Garrett intentionally disregarded the proper

jurisdiction of the county court by including claims that exceeded the jurisdictional

amount in controversy allowed by that court. Thus, we examine the summary

judgment record to determine whether Garrett presented some evidence on the

issue of intentional disregard.

      In its response to the City’s motion for summary judgment, Garrett showed

that its constitutional claim, with its damages in excess of the jurisdictional

maximum, was included in the county court case because it was “inherently

intertwined” with its inverse condemnation claim, a claim over which the Harris

County Civil Court at Law has exclusive jurisdiction.        See Occidental Chem.

Corp., v. ETC NGL Transport, LLC., 425 S.W.3d 354, 360 (Tex. App.—Houston

[1st Dist.] 2011, pet. dism’d) (stating legislature intended to confer exclusive

jurisdiction over statutory and inverse condemnation proceedings involving

damages for taking of property); TEX. GOV’T CODE ANN. § 25.1032(c) (Vernon


                                         11
Supp. 2014). Garrett, relying on Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d

451 (Tex. App.—Houston [14th Dist.] 2002, no pet.), added his declaratory

judgment claims to his inverse condemnation claims in county court. In Taub, the

court stated:

      In summary, the history of [the government code section granting
      jurisdiction to county courts in Harris County] indicates an intent to
      direct more cases to the Harris County Civil Courts at Law, thereby
      alleviating the backlog in the district courts. Consistent with this
      intent, we conclude the Harris County Civil Courts at Law have
      jurisdiction, but not exclusive jurisdiction, over a landowner’s
      claims, regardless of the amount in controversy, when those claims
      are inherently intertwined in an eminent domain proceeding. Thus,
      requiring all eminent domain proceedings to be heard in the Harris
      County Civil Courts at Law need not result in separate litigation of the
      condemnor’s and the property owner’s claims.

****
    We hold a county civil court at law in Harris County has exclusive
    jurisdiction over Aquila’s eminent domain proceedings. We further
    hold a county civil court at law has jurisdiction to hear trespass-
    related claims such as those raised by Taub in the present case,
    regardless of the amount in controversy, but its jurisdiction does not
    preclude the district court from hearing such claims.

93 S.W.3d at 458, 464.

      Having shown in its response a reason for Garrett’s inclusion of the claims

appended to its inverse condemnation claim, the burden is thus on the City to

negate that reason as a matter of law. The City, citing In re United Services,

argues that “while the tolling statute protects plaintiffs who mistakenly file suit in a

forum that lacks jurisdiction, it does not apply to a strategic decision to seek relief


                                          12
from such a court—which is what happened here.” See In re United Servs., 307

S.W.3d at 313.

      In the case of In re United Services, the plaintiff, Brite, sued his employer

for discrimination in the county court at law. Id. at 304. Brite asserted in his

petition that his damages exceeded the court’s statutory minimum, but he did not

plead that his damages were below the statutory maximum.              Id. at 305. His

employer filed a plea to the jurisdiction, contending that his damage claims

exceeded the court’s statutory maximum. Id. Brite amended his petition to seek

$1.6 million in damages, and then was awarded damages in excess of $650,000.

Id. The supreme court reversed the county court’s judgment because the amount in

controversy at the time Brite filed suit was above the statutory maximum of the

county court. Id. Brite then refiled his suit in district court, relying on the tolling

statute in section 16.064. Id. Noting that Brite’s county court petition did not

allege that the damages sought were within the jurisdiction limits of the court, and

that Brite had never contended that he was unaware of or confused about the

county court’s jurisdictional limits, the supreme court concluded that Brite’s

county court petition was filed with “intentional disregard” for the county court’s

jurisdiction. Id. at 312.

      The present case, while quite similar to In re United Services, has one

important distinguishing feature—a claim for inverse condemnation, which had to


                                          13
be filed in the county court at law. The City contends, nonetheless, that Garrett

cannot rely on Taub for appending its declaratory claims to its condemnation claim

because Taub is dicta. Regardless of whether Taub is dicta, it is certainly some

authority from the appellate court in which the county court lies supporting

Garrett’s belief that its declaratory claims could be brought in county court along

with its inverse condemnation claim.

      The City also argues that “Garrett argues only that its request for declaratory

relief was ‘inherently intertwined’ with its ‘takings’ claim, the same unsuccessful

argument it raised in Garrett I.” The City, however, misinterprets this Court’s

holding in Garrett I.     This Court did not hold that claims exceeding the

jurisdictional limit of the county court could not be appended to a related inverse

condemnation claim. Instead, we held only that Garrett’s inverse condemnation

claim was not ripe at that time. 360 S.W.3d at 43. We went on to hold that

“because the trial court properly dismissed Garrett Operators’ inverse

condemnation claim for lack of subject-matter jurisdiction, the county court at

law’s jurisdiction could not be invoked over the remaining claims by being

‘inherently intertwined’ with the inverse condemnation claim.”           Id. at 44.

However, until the county court dismissed the inverse condemnation claim, which

this Court then affirmed, Garrett had no way to know that there was nothing left

for its declaratory claims to be intertwined with. This case does not present the


                                         14
same blatant disregard for the district court’s jurisdictional limits as was presented

in In re United Services. A reliance on case law, even if dicta, is not the kind of

“tactical decision” that will preclude application of the tolling statute.

      Conclusion Regarding Limitations

      Because the City did not prove each element of its limitations affirmative

defense, the trial court could not have granted summary judgment in its favor on

Garrett’s request for a declaration that applying the amended statutes violated

Article I, section 16 of the Texas Constitution on limitations grounds.

Construction of 2008 Sign Code

      In its petition, Garrett requested a declaration that application of the

amended code to the upgrade to LEDs violated the prohibition against retroactive

laws found in Article I, section 16 of the Texas Constitution.               Garrett also

requested the trial court to declare that “prior to December 30, 2008, the Code did

not prohibit LED lighting on its Sign,” and that before the amendments to the sign

code, “a sign permit was not required to upgrade an electronic sign to one with

LED display.”

      The City contended in its motion for summary judgment, and in its response

to Garrett’s motion for summary judgment, that because Garrett had not applied to

the Sign Administration for a permit to convert its sign to LED before the

December 2008 amendments, it had “no vested property right to sustain its as


                                           15
applied challenge to the December 10, 2008 sign code amendment.”              Garrett

responded that no such permit was required under the pre-amendment sign code,

and that by obtaining an electrical permit, it had complied with all applicable

provisions of the sign code.

      Garrett contends that the trial court erred in denying its requested declaration

regarding prohibited retroactive laws. Garrett also argues that the trial court erred

in granting the City’s motion and denying his motion regarding construction of the

2008, pre-amendment sign code. Both issues require this Court to determine

whether the pre-amendment code required Garrett to obtain a permit from the Sign

Administration before altering its billboard to accommodate LED lights.

      Law Regarding Retroactivity

      A retroactive law is one that extends to matters that occurred in the

past. Tenet Hosps., Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014); Robinson v.

Crown Cork & Seal Co., 335 S.W.3d 126, 138 (Tex. 2010) (“A retrospective law

literally means a law which looks backwards, or on things that are past; or if it be

taken to be the same as retroactive, it means to act on things that are past.”

(quoting DeCordova v. City of Galveston, 4 Tex. 470, 475–76 (1849)); Subaru of

Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); see

also Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S. Ct. 1483, 1499




                                         16
(1994) (determining for purposes of retroactivity “whether the new provision

attaches new legal consequences to events completed before its enactment.”).

      But not all retroactive statutes are unconstitutional. Robinson, 335 S.W.3d at

138. Robinson established a three-part test for examining whether retroactive laws

are constitutional: “the nature and strength of the public interest served by the

statute as evidenced by the Legislature’s factual findings; the nature of the prior

right impaired by the statute; and the extent of the impairment.” Id. at 145.

      Analysis

      The City argued, both in the motions and on appeal, that applying the

amendments to Garrett does not create an unconstitutionally retroactive law

because Garrett does not have any vested right to convert his billboard to LED

without a permit. See id. (requiring court to examine “prior right impaired by the

statute” to determine whether retroactive law is constitutional). Specifically, it is

the City’s position that, absent an application to the Sign Administration, which

Garrett admittedly did not submit until 2011, Garrett had no “vested interest.”

Garrett responds, however, that no such application was required. Thus, we turn to

the language of the relevant sign code provisions to determine whether a permit

was required.

      When issues involve the interpretation of a statute itself, we apply a de

novo standard of review. MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 500


                                          17
(Tex. 2010) (stating that issue of statutory construction is legal question that we

review de novo); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.

1989) (holding statutory construction is a question of law).

      In construing a statute, our main objective is to ascertain and give effect to

the intent of the Legislature. When interpreting a statute, we “consider the entire

act, its nature and object, and the consequences that would follow from each

construction.” Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991); see

also TEX. GOV’T CODE ANN. § 311.023 (Vernon 2013). We must “reject

interpretations of a statute that defeat the purpose of the legislation so long as

another reasonable interpretation exists.” Nootsie, Ltd. v. Williamson Cnty.

Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996). When a statute is clear and

unambiguous, we need not resort to rules of construction or extrinsic evidence to

construe it. Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). Instead,

we may determine the intent of the Legislature from the plain and ordinary

meaning of the words used within the statute. See id.

      The City relies on section 4605(a) of the 2008 sign code, located in the

“Sign Permits and Fees” portion of the code, which provides:

      (a) Permit Required. No person shall erect, reconstruct, alter,
          relocate or use a sign within the sign code application area without
          first having secured a written permit from the Sign Administration




                                         18
         to do so, subject to the exceptions set forth in Section 4605(b).3 It
         is an affirmative defense to prosecution under this subsection if a
         sign is excepted from having a permit under Section 4605(b).

Houston, Tex., Building Code Ch. 46, § 4605(a) (emphasis added).4

      The City contends that Garrett’s plan was to “reconstruct” or “alter” its

billboard, thus, pursuant to §4506(a), Garrett was required to obtain a “written

permit from the Sign Administration to do so.” See Houston, Tex., Building Code

Ch. 46, § 4605(a).

      Garrett, in contrast, relies on section 4608(j) of the 2008 sign code, located

in the “Miscellaneous Sign Provisions” portion of the code, which provides:

      (j) Change of Ornamental Features, Electrical Wiring or
      Advertising Display. No sign permit is required for the change of
      any of the ornamental features, electrical wiring or devices, or the
      advertising display of a sign previously permitted. This provision
      shall not apply to spectacular signs with respect to advertising display,
      nor shall it release a person from complying with all other applicable
      permitting requirements of the City; including those of the
      Construction Code.

Houston, Tex., Building Code Ch. 46, § 4608(j) (since amended) (emphasis

added). Garrett argues that no sign permit was required for it to change the


3
      Section 4605(b) enumerates several exceptions for on-premises signs, none of
      which are applicable here because Garrett’s sign is an off-premises sign. Houston,
      Tex., Building Code Ch. 46, § 4605(b) (since amended).
4
     Accessed      through     the     City     of    Houston’s       website    at,
     http://edocs.publicworks.houstontx.gov/documents/divisions/planning/enforcemen
     t/signcode20110902.pdf.

                                          19
“electrical wiring or devices” of its sign. Thus, we must decide whether Garrett’s

plans for the sign were to reconstruct or alter it, or were merely changes to its

electrical wiring and devices.

      According to Garrett’s summary judgment evidence “the Sign is a steel-

constructed, 61-foot-high, 34-feet-wide, dual-faced, electronic (and metal halide

light for nighttime view) tri-vision sign with moving parts and mechanisms” that

“contain[ed] 204 moving slats to display six different messages in sequence.”

According to its motion, “Garrett made the decision to upgrade the advertising

display to LEDs, the state-of-the-art lighting.”    Garrett’s subcontractor, Laser

Electric, applied for and obtained a commercial permit to perform the electrical

work required for the conversion to LED, but Garrett did not apply for a permit

from the Sign Administration, contending it did not have to do so.

      After the electrical wiring changes were done in May 2008, the City stopped

Garrett from completing its conversion because it had not obtained a permit from

the Sign Administration to do so.

      Garrett’s summary judgment evidence describes the planned upgrade to

complete the conversion to LEDs as follows:

      The sign already moved and changed messages. It contains 204
      moving slats to display six different messages in sequence. Thus, an
      upgrade to LED technology merely simplifies the change process,
      allowing messages to be changed remotely by computer, instead of by
      physically altering the slats. The upgrade does not involve removing
      or replacing the sign cabinet, removing or replacing the poles,
                                        20
      changing the size of the sign, altering its height, or modifying any
      structural components of the sign whatsoever. The upgrade results in
      no change in the shape or location and creates no new encroachment.

The City’s evidence, however, included a document by the Division Manager of

the Sign Administration, in which she described the proposed upgrade as follows:

      What your client is proposing is to totally remove the three existing
      faces of the sign, not for maintenance operations or for changing the
      letters, symbols, or other matters (i.e., not to merely change the
      advertising copy), but rather to reconstruct the existing sign by
      installing a new LED sign cabinet to create essentially a new sign.
      Your continued reference to your client’s expenditure of $250,000 to
      implement these changes on its face belies your argument that such
      extensive reconstruction falls under Section 4608(j). Therefore,
      although your client has yet to formalize his intentions with this
      office, and based solely on the information currently available to us,
      your client’s proposal contravenes and would be in direct violation of
      the City’s Sign Code.

While both sides disagree about whether the proposed changes require a permit

from the Sign Administration, the parties essentially agree on the details of the

proposed upgrade. The upgrade, as described, would require the rewiring of the

electrical portions of the sign, but also would require the removal of the rotating

slats, which would then be replaced by LED panels that could be controlled and

changed by computer.

      We agree with the City that this type of extensive change to the sign is more

than simply changing the “electrical wiring and devices” of the sign. Indeed, the

summary judgment evidence shows that the electrical wiring component of the

project had been completed when the City issued a stop order, and that that more
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work was necessary to complete the project, i.e., the removal of the rotating slats

and the installation of the LED boards. The removal of the rotating slats and

replacement of them with a completely different technology would result in a sign

with a remarkably different looking and functioning display.

      If we were to accept Garrett’s position that it was merely changing the

“electrical wiring and devices” of the sign, the exception in section 4612(b) would

threaten to “swallow the rule” requiring permits for reconstructing and altering

signs found is section 4506(a), for it is hard to imagine any extensive renovation to

a sign that would not also involve changes to the electrical wiring.

      If we were to interpret the exception in section 4612(b) as broadly as Garrett

encourages us to, the permit requirement in section 4506(a) would become largely

meaningless. Statutory language should not be read as pointless if it is reasonably

susceptible of another construction. Franka v. Velasquez, 332 S.W.3d 367, 393

(Tex. 2011).

      Conclusion Regarding Construction of Sign Code

      Therefore, we conclude that the proposed conversion from a tri-display

billboard to a LED-display billboard was not merely a change to the “electrical

wiring and devices,” but was a reconstruction or alteration of the billboard

requiring a permit from the Sign Administration. Because Garrett was required to,

but had not requested a permit from the Sign Administration at the time it filed


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suit, it had no vested interest in converting its sign to LED without a permit.

Because Garrett had no vested interest in converting its sign without a permit, the

amendments to the Sign Code are not unconstitutionally retroactive when applied

to it. Thus, the trial court properly granted summary judgment on Garrett’s claims

based on the unconstitutional retroactive application of a change in the law.

Section 245 of Texas Local Government Code

      In its motion for summary judgment, Garrett also sought a declaration that

“Section 245.002 of the Local Government Code requires the City to apply the

provisions of the sign code as it existed prior to December 10, 2008, to Garrett’s

upgrade to LED lighting[.]”

      Applicable Law

      Chapter 245 of the code is entitled “Issuance of Local Permits,” and it has

been called the “Vested Rights Act.” See Md. Manor Assocs. v. City of Houston,

816 F.Supp.2d 394, 409 (S.D. Tex. 2011). “Chapter 245 of the [Texas Local

Government] Code recognizes a developer’s vested rights and requires a regulatory

agency to consider approval or disapproval of an application for a permit, such as a

subdivision plat, based on regulations and ordinances in effect at the time the

original application is filed.” Milestone Potranco Dev., Ltd. v. City of San Antonio,

298 S.W.3d 242, 248 (Tex. App.—San Antonio 2009, pet. denied). “The effect of

vested rights under Chapter 245 of the Local Government Code is to ‘freeze’ the


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land use regulations as they existed at the time the first permit application was filed

through completion of the ‘project;’ in other words, a project with vested rights is

not subject to intervening regulations or changes after the vesting date.” City of

San Antonio, 383 S.W.3d at 245.

      Section 245.002(a) of the Local Government Code provides:

      (a) Each regulatory agency shall consider the approval, disapproval, or
          conditional approval of an application for a permit solely on the
          basis of any order, regulations, ordinances, rules, expiration dates,
          or other properly adopted requirements in effect at the time:

                (1) the original application for the permit is filed for review
                    for any purpose, including review for administrative
                    completeness; or
                (2) a plan for development of real property or plat
                    application is filed with a regulatory agency.

      (a-1) Rights to which a permit applicant is entitled under this chapter
      accrue on the filing of an original application or plan for development
      or plat application that gives the regulatory agency fair notice of the
      project and the nature of the permit sought. An application or plan is
      considered filed on the date the applicant delivers the application or
      plan to the regulatory agency or deposits the application of plan with
      the United States Postal Services by certified mail addressed to the
      regulatory agency. A certified mail receipt obtained by the applicant
      at the time of deposit is prima facia evidence of the date the
      application or plan was deposited with the United States Postal
      Service.

TEX. LOC. GOV’T CODE ANN. § 245.002(a), (a-1) (Vernon 2005) (emphasis

added).




                                          24
      Analysis

      The City contends that section 245.002(a) is not applicable because Garrett

did not file its original application for a permit until 2011, well after the sign code

was amended.      Garrett responds that “[t]he required electrical permit for the

upgrade project was requested (and granted) while the 2008 Code was in effect.”

We have already held that, even under the pre-amendment sign code, Garrett was

required to obtain a permit from the Sign Code Administration before upgrading its

sign to LED technology, and that Garrett did not do that until 2011. The denial of

the permit complained of by Garrett is the denial of a permit by the Sign Code

Administration, thus its application for an electrical permit from a different City

department has no effect in “freezing” the Sign Code Administration’s application

of the amended ordinances.

      Conclusion Regarding Section 245 of Local Government Code

      Under section 245.002(a), Garrett’s rights were not vested until he filed his

application for a permit with the Sign Code Administration in 2011. Thus, the trial

court properly denied Garrett’s motion and granted the City’s motion on this

ground.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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