                                                                                                ACCEPTED
                                                                                            05-17-00879-CV
                                                                                  FIFTH COURT OF APPEALS
                                                                                            DALLAS, TEXAS
                                                                                          3/27/2018 8:32 AM
                                                                                                 LISA MATZ
                                                                                                     CLERK

                                  No. 05-17-00879-CV

                          In the Court of Appeals 5th COURT FILED IN
                                                                 OF APPEALS

                      for the Fifth District of Texas3/27/2018 8:32:02 AM
                                                        DALLAS, TEXAS


                                                                         LISA MATZ
                                                                           Clerk


HINGA MBOGO, HINGA AUTOMOTIVE CO., d/b/a HINGA AUTO REPAIR,
        and 3516 ROSS AVENUE, DALLAS, TEXAS, in rem,

                                   Appellants,

                                             v.

                               CITY OF DALLAS, et al.,

                                   Appellees.


                 PRAECIPE TO OPENING BRIEF OF APPELLANTS



         In their initial brief, Appellants mistakenly cite to the dissent in City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 823 (1984). See Appellants’ Br.

30-31. Although that citation is to the dissent in that case, the principle for which

it was cited—that aesthetics is not a compelling government interest—has been

routinely recognized by courts across the country, as is indicated in Appellants’

brief.

         We have corrected pages 30 and 31 of the Opening Brief, and hereby attach

them as Attachment A to this praecipe and request that the Clerk of the Court

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replace pages 30 and 31 of the Opening Brief of Appellants, filed on August 28,

2017, with the attached pages.


RESPECTFULLY SUBMITTED this 27th day of March, 2018.

     By: /s/Arif Panju
       Arif Panju (TX Bar No. 24070380)        Robert Gall (TX Bar No. 24101009)
       INSTITUTE FOR JUSTICE                   INSTITUTE FOR JUSTICE
       816 Congress Ave. Suite 960             816 Congress Ave., Suite 960
       Austin, TX 78701                        Austin, TX 78701
       Tel: (512) 480-5936                     Tel: (512) 480-5936
       Fax: (512) 480-5937                     Fax: (512) 480-5937
       Email: apanju@ij.org                    Email: bgall@ij.org

        William R. Maurer                      Ari Bargil
        (WA Bar No. 25451)*                    (FL Bar No. 71454)*
        INSTITUTE FOR JUSTICE                  INSTITUTE FOR JUSTICE
        600 University Street, Suite 1730      2 South Biscayne Blvd., Suite 3180
        Seattle, WA 98101                      Miami, FL 33131
        Tel: (206) 957-1300                    Tel: (305) 721-1600
        Fax: (206) 957-1301                    Fax: (305) 721-1601
        Email: wmaurer@ij.org                  Email: abargil@ij.org

        *Admitted Pro Hac Vice

        Counsel for Appellants




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                         CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that on March 27, 2018, a true and correct copy of

the foregoing PRAECIPE   TO   OPENING BRIEF   OF   APPELLANTS was filed with the

Clerk of Court and served in compliance with Tex. R. App. P. 9.5(b)(1) via

the courts electronic filing manager on the following counsel of record:


      AMY I. MESSER
      Texas State Bar No. 00790705

      BARBARA ROSENBERG
      Texas State Bar No. 17267700

      MELISSA A. MILES
      Texas State Bar No. 90001277

      KRISTEN MONKHOUSE
      Texas State Bar No. 24092853

      7DN Dallas City Hall
      1500 Marilla Street
      Dallas, Texas 75201
      Telephone: 214-670-3519
      Fax: 214-670-0622
      Email: amy.messer@dallascityhall.com;
      barbara.rosenberg@dallascityhall.com; melissa.miles@dallascityhall.com;
      kristen.monkhouse@dallascityhall.com

      Counsel for Appellees

                                     /s/ Arif Panju                 .
                                     Arif Panju (TX Bar No. 24070380)
                                     INSTITUTE FOR JUSTICE

                                     Counsel for Appellants


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ATTACHMENT A
             a.     The Nature of the Public Interest

      In Robinson, the Texas Supreme Court held that the government’s interest in

a retroactive law is “evidenced by the Legislature’s factual findings.” Id.at 145.

The City made no factual findings in the original ordinance that made auto-related

uses illegal in 2005. The ordinance that the City alleges Hinga violated, Ordinance

No. 29099, does contain “factual findings,” but these findings only pertain to the

fact that the City gave notice and held hearings on the ordinance. Thus, there are

no factual findings that discuss the City’s interest here. This alone is sufficient to

reverse the district court here.

      Nonetheless, one Texas appellate court has held that, regardless of

Robinson’s holding, it is appropriate to examine the government’s fact finding to

determine whether the government possesses a compelling interest in a retroactive

law. Tex. Educ. Agency v. American YouthWorks, Inc., 496 S.W.3d 244, 264 n. 111

(Tex. App.—Austin 2016, pet. filed) (stating that legislative history and other

additional facts may be considered in determining whether the government has a

compelling interest). What legislative history does exist regarding these ordinances

undisputedly demonstrates that the City drove auto related businesses from Ross

Avenue to create “urban character” and “upgrade the aesthetic quality of the area”

through redevelopment. Promoting aesthetics or physical appearance is not a

compelling governmental interest. Neighborhood Enters., Inc. v. City of St. Louis,


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644 F.3d 728, 738 (8th Cir. 2011); Solantic, LLC v. City of Neptune Beach, 410

F.3d 1250, 1267 (11th Cir. 2005); XXL of Ohio, Inc. v. City of Broadview Heights,

341 F.Supp.2d 765, 789-90 (N.D. Ohio 2004); Whitton v. City of Gladstone, 832

F.Supp. 1329, 1335 (W.D. Mo. 1993).

      But there is not just an absence of a compelling justification here. The

people of this state have also clearly stated that they do not consider violating the

property rights of one private party to benefit another private party to be legitimate.

In 2009, the people amended article I, § 17 of the Texas Constitution to explicitly

prohibit the taking, damaging, or destroying of private property for anyone but the

government or the public. The 2009 amendments specifically stated as well that

“public use” does “not include the taking of property … for transfer to a private

entity for the primary purpose of economic development or enhancement of tax

revenues.” Tex. Const. art. I, § 17 (b). This provision started as a legislatively-

referred constitutional amendment that passed out of both houses of the Texas

Legislature with only one “nay” vote. H.J.R. No. 14 (Tex. 2009). The people

passed the amendment by 81% in favor to 19% opposed. See

https://ballotpedia.org/Texas_Eminent_Domain,_Proposition_11_(2009).

      Thus, not only is promoting aesthetics is not a compelling governmental

interest, but Texans have affirmatively (and overwhelmingly) restricted the ability




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