                                                                                                     ACCEPTED
                                                                                                  02-17-00384-cv
                                                                                     SECOND COURT OF APPEALS
                                                                                           FORT WORTH, TEXAS
                                                                                             12/20/2017 10:43 AM
                                                                                                  DEBRA SPISAK
                                                                                                          CLERK

                                   No. 02-17-00384-CV

                                                                               FILED IN
                                                                        2nd COURT OF APPEALS
                       In the Second District Court of Appeals           FORT WORTH, TEXAS
                                 Fort Worth, Texas                     12/20/2017 10:43:16 AM
                                                                             DEBRA SPISAK
                                                                                Clerk
                             THE CITY OF EL PASO, TEXAS,
                                     Appellant,

                                             v.

                                     MAX GROSSMAN,
                                       Appellee.


   On Interlocutory Appeal from the 348th Judicial District Court of El Paso County, Texas
                                 Cause No. 2017DCV2528



                              REPLY BRIEF OF APPELLANT


Sylvia B. Firth, City Attorney             Mark N. Osborn
FirthSB@elpasotexas.gov                    mark.osborn@kempsmith.com
Maria Guadalupe Martinez                   Shelly W. Rivas
Senior Assistant City Attorney             shelly.rivas@kempsmith.com
MartinezMG@elpasotexas.gov                 Kemp Smith LLP
Sergio M. Estrada                          221 N. Kansas, Suite 1700
Assistant City Attorney                    El Paso, Texas 79901
EstradaSM@elpasotexas.gov                  Telephone: (915) 533-4424
P.O. Box 1890                              Facsimile (915) 546-5360
El Paso, Texas 79950-1890
Telephone: (915) 212-0033                  Wallace B. Jefferson
Facsimile: (915) 212-0034                  State Bar No. 00000019
                                           wjefferson@adjtlaw.com
Additional counsel listed in signature     ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP
block                                      515 Congress Avenue, Suite 2350
                                           Austin, Texas 78701-3562
                                           Telephone: (512) 482-9300

                             ATTORNEYS FOR APPELLANT
                             ORAL ARGUMENT REQUESTED
                                               TABLE OF CONTENTS

Table of Contents ...................................................................................................... 2

Index of Authorities .................................................................................................. 3

Response to Statement of Facts ................................................................................ 5

Summary of Argument ............................................................................................. 7
Argument................................................................................................................... 8

         I. The Declaratory Judgment Act does not waive governmental
            immunity for Grossman’s claims. ............................................................ 8

         II. Because Grossman cannot show a violation or threatened violation
             of Chapter 191, it does not waive governmental immunity for
             Grossman’s claims.................................................................................... 9

                   A. Control of the property at issue is not relevant to determining
                      whether Chapter 191’s notice provision has been triggered. ......... 9
                             1. The property is privately-owned........................................ 10
                             2. The Commission has rejected Grossman’s
                                interpretation. ..................................................................... 10

                             3. The Attorney General has concluded that land destined
                                to be “public” in the future is not “public land.” ............... 11

                             4. “Control” cannot convert private property into public
                                land..................................................................................... 12
                   B. Equitable rights in the property also do not trigger Chapter
                      191’s notice provision. ................................................................. 13

Prayer ...................................................................................................................... 16
Certificate of Compliance ....................................................................................... 18

Certificate of Service .............................................................................................. 18




                                                               2
                                             INDEX OF AUTHORITIES


                                                                                                                    Page(s)

Cases
Atkins v. Carson,
   467 S.W.2d 495 (Tex. Civ. App.—San Antonio 1971, writ ref’d
   n.r.e.) ...................................................................................................................15

Bexar-Medina-Atascosa Ctys. Water Control and Improvement Dist.
   No. 1 v. Bandera Cty. River Auth. and Groundwater Dist.,
   No. 04-16-00536-CV, 2017 WL 4014703 (Tex. App.—San
   Antonio, Sept. 13, 2017, pet. filed (on other grounds)) (mem. op.) ..................... 8

Club Corp. of Am. v. Concerned Prop. Owners for April Sound,
   881 S.W.2d 620 (Tex. App.—Beaumont 1994, writ denied) .............................15

Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist.,
  52 S.W.3d 495 (Tex. App.—Dallas 2001, pet. denied) (en banc)................14, 15
Cty. of El Paso v. Navar,
   511 S.W.3d 624 (Tex. App.—El Paso, 2015, no pet.) ......................................... 8
Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs.
  Comm’n,
  452 S.W.3d 479 (Tex. App.—Austin 2014, pet. dism’d) ...................................12
Hydroscience Techs., Inc. v. Hydroscience, Inc.,
  401 S.W.3d 783 (Tex. App.—Dallas 2013, pet. denied)....................................15

Tarrant Appraisal Dist. v. Moore,
   845 S.W.2d 820 (Tex. 1993) ..............................................................................11
Tex. Dept. of Transp. v. Sefzik,
   355 S.W.3d 618 (Tex. 2011) (per curiam) .......................................................7, 8

Tex. Educ. Agency v. Leeper,
   893 S.W.2d 432 (Tex. 1994) ................................................................................ 8
Tex. Turnpike Co. v. Dallas Cty.,
   271 S.W.2d 400 (Tex. 1954) ..............................................................................14


                                                               3
Statutes
TEX. NAT. RES. CODE ANN. § 191.094(b) .................................................................. 5

TEX. NAT. RES. CODE ANN. § 191.173 ....................................................................... 9
TEX. NAT. RES. CODE ANN. § 191.0525(a) ....................................................9, 10, 13

Regulations

13 TEX. ADMIN. CODE § 29.4(25) ......................................................................12, 13
Other Authorities
Tex. Att’y Gen. LO-94-076 (1994)....................................................................11, 14




                                                     4
                        RESPONSE TO STATEMENT OF FACTS

      The first few pages of Grossman’s Statement of Facts, an appeal to sympathy,

have no bearing on the primary legal issue—the proper interpretation of Chapter

191. Although the City disputes many of these allegations, it will address three

specific fact issues here.

      First, Grossman frames this case as an attempt to save allegedly historically

significant buildings in Downtown El Paso from demolition under Chapter 191 of

the Texas Natural Resources Code, the “Antiquities Code.” CR10-12, 22; Br.

Appellee at viii, 3-4. But Chapter 191 only requires a city to give the Texas Historical

Commission timely notice of plans to build on local public land. The question here

is whether the City must notify the Commission when a private owner elects to

demolish a building. Even if the City were required to provide such notice, the

Commission does not have the power to designate a landmark and halt demolition

on private land without the owners’ consent. See TEX. NAT. RES. CODE ANN. §

191.094(b) (“No site may be designated on private land without the written consent

of the landowner or landowners …”). And because, as Grossman concedes, private

owners seek to demolish their own buildings, the Commission has no injunctive

power.

      Second, the City plans to build a Multi-Purpose Performing Arts and

Entertainment Center in Downtown El Paso, as approved by more than 70 percent



                                           5
of El Paso voters in 2012. CR566, 596, 610. As Grossman notes, there is a bond-

validation suit in Austin concerning the construction of the Center. Appellee at 1. In

that suit, the trial court affirmed that “[t]he City may lawfully expend proceeds

generated from the sale of the Bonds” to construct a “Multi-purpose Performing Arts

and Entertainment Facility located in Downtown El Paso….” 1 Many activities will

occur in that facility; it will not be designed or built as an exclusively sports venue

or arena.

       Third, despite Grossman’s predictions, none of the properties located within

the Center’s footprint have a historical designation or registration. CR12, 611, 632.

None enjoy any special protection from the Commission or under the Antiquities

Code. CR611.




1
 Final Judgment, No. D-1-GN-17-001888, Ex Parte City of El Paso, In the 250th Judicial District
Court of Travis County, Texas. That Final Judgment is at Appendix Tab 1 to the Brief of Appellant
City of El Paso, available at http://www.search.txcourts.gov/Case.aspx?cn=03-17-00566-
CV&coa=coa03.


                                               6
                              SUMMARY OF ARGUMENT

        The Declaratory Judgment Act does not waive governmental immunity for

Grossman’s claims. Grossman does not confront the Supreme Court’s holding in

Sefzik that “the UDJA does not waive the state’s sovereign immunity when the

plaintiff seeks a declaration of his or her rights under a statute or other law.” Tex.

Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011) (per curiam). Instead,

Grossman relies on an earlier opinion that did not answer the question presented

here.

        The Antiquities Code also does not waive immunity for Grossman’s claims.

The only part of the Code implicated in this suit is its notice provision. It applies

only to public land—that is, land the City owns. In this case, Grossman admits that

the buildings at issue are privately owned. Grossman thus argues:

        •     the notice provision also applies to land “controlled” by the City;

        •     the City “controls” the land because it has contracts with the private
              owners to purchase it; and

        •     therefore, the City must provide the Commission notice before private
              owners demolish their buildings.
        A fundamental flaw in Grossman’s logic cannot be overcome: “control” does

not trigger the notice provision. Because notice is not required under these

undisputed facts, there can be no waiver of governmental immunity.




                                           7
                                      ARGUMENT

I.    The Declaratory Judgment Act does not waive governmental immunity
      for Grossman’s claims.

      Grossman’s argument for jurisdiction over his declaratory-judgment claims

rests solely on Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994). But

Leeper did not decide the issue here. None of the governmental entities in Leeper

raised the issue of governmental immunity under the Declaratory Judgment Act

when the plaintiff is not challenging the validity of a statute. Id. at 440.

      The Supreme Court of Texas resolved the question in a later decision, Tex.

Dept. of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011). In Sefzik the Court held

“the UDJA does not waive the state’s sovereign immunity when the plaintiff seeks

a declaration of his or her rights under a statute or other law.” Id. at 621. The Court

explained:

      [T]he state may be a proper party to a declaratory judgment action that
      challenges the validity of a statute.… But Sefzik is not challenging the
      validity of a statute; instead he is challenging TxDOT’s actions under
      it, and he does not direct us to any provision of the UDJA that expressly
      waives immunity for his claim.

Id. at 622. Although the City’s Brief cited Sefzik, Grossman has yet to confront it.

Compare Br. of Appellant at 9 with Brief of Appellee at 34-35.

      Grossman also fails to discuss two subsequent court of appeals decisions

confirming that Sefzik applies to political subdivisions of the state. Cty. of El Paso

v. Navar, 511 S.W.3d 624, 634 (Tex. App.—El Paso, 2015, no pet.); Bexar-Medina-


                                           8
Atascosa Ctys. Water Control and Improvement Dist. No. 1 v. Bandera Cty. River

Auth. and Groundwater Dist., No. 04-16-00536-CV, 2017 WL 4014703, *2 (Tex.

App.—San Antonio, Sept. 13, 2017, pet. filed (on other grounds)) (mem. op.).

      Grossman’s causes of action under the UDJA should be dismissed for lack of

subject matter jurisdiction.

II.   Because Grossman cannot show a violation or threatened violation of
      Chapter 191, it does not waive governmental immunity for Grossman’s
      claims.

      Chapter 191’s waiver of governmental immunity permits injunctive relief

only when there has been a violation or a threatened violation of that chapter. TEX.

NAT. RES. CODE ANN. § 191.173 (West 2011). To establish a violation or a

threatened violation, Grossman must show that the City, before “breaking ground at

a project location on state or local public land” failed to notify the Historical

Commission. TEX. NAT. RES. CODE ANN. § 191.0525(a) (West 2011). Without a

violation or threatened violation of Chapter 191, as a matter of law, there can be no

waiver of governmental immunity.

      A.     Control of the property at issue is not relevant to determining
             whether Chapter 191’s notice provision has been triggered.

      Chapter 191’s notice requirement is triggered only when the City plans to

demolish a building on land it owns. The City understands that obligation and will

comply when that circumstance arises. But Grossman’s assertion about “breaking

ground” concerns demolition of land by private owners of their private land.


                                         9
Grossman concedes this. CR16-17 (asserting that the City is requiring the sellers to

demolish the property).

             1.      The property is privately-owned.

      Chapter 191 provides, “[b]efore breaking ground at a project location on state

or local public land, the person primarily responsible for the project or the person’s

agent shall notify the committee.” TEX. NAT. RES. CODE ANN. § 191.0525(a). The

only alleged “breaking ground” concerns the demolition of buildings on private

property by their private owners; hence there is no “breaking ground” planned or

occurring on “state or local public land.” Id. The City has no notice obligation under

Chapter 191.

             2.      The Commission has rejected Grossman’s interpretation.

      With regard to this project, the Texas Historical Commission has itself

observed that notice is only required “before breaking ground on public property.”

RR4 at 5 (Ex. 1); see also CR657 (same letter). The Commission has advised the

City that no action is currently necessary under Chapter 191 because “[w]e realize

that the subject property has not been acquired by the city and that the facility has

not been designed yet.…” Id. Further, Grossman has “invited the Commission to

intervene” in his legal proceedings, but it has declined that invitation. CR9, n.1. As

the Commission’s actions show, there is no threatened violation of the Chapter 191

notice obligation.



                                         10
      The Commission’s interpretation is entitled to deference. “Construction of a

statute by the administrative agency charged with its enforcement is entitled to

serious consideration, so long as the construction is reasonable and does not

contradict the plain language of the statute.” Tarrant Appraisal Dist. v. Moore, 845

S.W.2d 820, 823 (Tex. 1993).

             3.     The Attorney General has concluded that land destined to be
                    “public” in the future is not “public land.”

      This interpretation of Chapter 191 has been confirmed by the Texas Attorney

General. Tex. Att’y Gen. LO-94-076 (1994) (Appendix to Br. Appellant, Tab 2). In

that letter opinion, the Attorney General determined that the Antiquities Code does

not permit the Commission to treat land destined in the future to become public land

as the equivalent of public land. “There is currently no provision in the Antiquities

Code for treating nonpublic land as public land, or for taking into account the fact

that such land may become public land in the future.” Id. at 3. Even land dedicated

to become public land does not become subject to the Antiquities Code until it is

owned by the state or its political subdivision:

      For the reasons stated above, we conclude that the only public land in
      a municipal utility district is that land belonging to the district (or the
      state or some other political subdivision). Therefore, land dedicated to
      streets and utility lines is subject to the Antiquities Code as public land
      only if it belongs to the municipal utility district.

Id. Even though the private property owners have entered into contracts to sell their

property to the City, the property here is not public land under Chapter 191. It will


                                          11
not become public land until the City has purchased the property and is the owner

holding legal title.

                4.     “Control” cannot convert private property into public land.

       Relying on an Administrative Code provision, Grossman asserts that the

property is public land under Chapter 191 because the City allegedly controls the

land through its contracts to purchase the property. Br. Appellee at 18 (citing 13 TEX.

ADMIN. CODE § 29.4(25)). Grossman’s argument is flawed for several reasons.

       First,    the   Antiquities   Code   supersedes   administrative   rules.   The

Commission’s administrative rules must comport with the Antiquities Code and may

not exceed the scope of powers expressly granted or necessarily implied by that

statute. See Harlingen Family Dentistry, P.C. v. Tex. Health & Human Servs.

Comm’n, 452 S.W.3d 479, 482 (Tex. App.—Austin 2014, pet. dism’d). Because

“public land” under Chapter 191 is limited to land owned by the state or one of its

political subdivisions, the Commission’s rules cannot expand the authority of the

Commission to include authority over land that is not owned by the City, even if it

were arguably controlled by the City.

       Second, the administrative rule only applies to “non-federal public lands.” 13

TEX. ADMIN. CODE § 29.4(25) (“Public lands–means non-federal public lands that

are owned or controlled by the State of Texas or any of its political

subdivisions….”). Under the rule, the phrase “owned or controlled” modifies the



                                            12
preceding noun phrase “non-federal public lands.” Id. Thus, whatever “owned or

controlled” means, it applies only to “non-federal public lands,” which under

Chapter 191 is limited solely to land that is owned, in this instance, by the City. 2 See

TEX. NAT. RES. CODE ANN. § 191.0525(a). If the title to land is not presently held by

the City, as title to the property is not, then the modifying words of the Rule “owned

or controlled” have no application to the land. In other words, the administrative rule

neither applies here, nor does it trump the plain language of Chapter 191.

       Because it is not a basis for the Chapter 191’s notice requirement, “control”

is not relevant. The fact that the private property owners have entered into contracts

to sell their property to the City does not convert their property into is “local public

land.” The only relevant fact is undisputed—the City does not own the property.

Because “public land” as used in Chapter 191 refers solely to land that the City owns,

there cannot be a violation or threatened violation of Chapter 191.

       B.     Equitable rights in the property also do not trigger Chapter 191’s
              notice provision.

       Grossman argues in the alternative that the City’s purchase contracts with

private owners gives it equitable rights in the property that trigger the notice

provision. Br. Appellee at 24-27. This is wrong for the same reasons Grossman’s




2
 “Owned or controlled” is perhaps intended to make clear that land that is owned by one political
entity, but controlled by another, is public land.


                                               13
argument about control is wrong. Chapter 191’s notice provision is triggered only if

the City owns the property. Nothing in that statute mentions “equitable” rights. As

outlined in the Texas Attorney General opinion, the Antiquities Code does not treat

nonpublic land as public land, even if it may later become public land. Tex. Att’y

Gen. LO-94-076 (1994) at 3. Land must be owned by the City before Chapter 191

applies.

      Additionally, Grossman’s primary authority does not support his argument.

Grossman relies on a court of appeals’ interpretation of the term “owner,” as used in

the Tax Code. Br. Appellee at 25 (citing Comerica Acceptance Corp. v. Dallas Cent.

Appraisal Dist., 52 S.W.3d 495, 497 (Tex. App.—Dallas 2001, pet. denied) (en

banc)). In that case, the court held that a lienholder did not have an equitable interest

sufficient to qualify as an owner. 52 S.W.3d at 497. And here the City’s relationship

to the properties is far less involved than the lienholder in Comerica. The City does

not hold a lien interest; it is only a potential buyer of the properties under contingent

contracts for sale.

      A buyer under a contract of sale has at “most a right to become the owner of

the legal title under certain conditions. Its interest in the property is not a vested

interest, [but] purely contingent.” Tex. Turnpike Co. v. Dallas Cty., 271 S.W.2d 400,

478 (Tex. 1954). Thus, the City holds at most a contingent interest in the property,

not equitable title as Grossman asserts.


                                           14
       Grossman also asserts that a purchaser can obtain an equitable right to

property before the purchase price has been paid. Br. Appellee at 26 (citing Atkins

v. Carson, 467 S.W.2d 495, 500 (Tex. Civ. App.—San Antonio 1971, writ ref’d

n.r.e.)). But that decision recognized that a purchaser obtains equitable title only

when he has “fully performed under the contract.” 467 S.W.2d at 500. “Only after

the purchase price has been paid and the purchaser has acquired equitable title may

he bring an action” against the seller to obtain title to the property. Id.at 501. Other

courts have recognized that, only after the purchase price has been paid does a

purchaser have the “present right to compel legal title.” Hydroscience Techs., Inc. v.

Hydroscience, Inc., 401 S.W.3d 783, 801 (Tex. App.—Dallas 2013, pet. denied).

Mere execution of an agreement between parties conveys neither equitable nor legal

title. Club Corp. of Am. v. Concerned Prop. Owners for April Sound, 881 S.W.2d

620 (Tex. App.—Beaumont 1994, writ denied).

       The anticipated sales here have not occurred, and the private property owners

have not been paid. The City has neither legal nor equitable title, nor even an

equitable right to acquire legal title to the property, and therefore is not an owner.

Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist., 52 S.W.3d 495, 497

(Tex. App.—Dallas 2001, pet. denied) (An owner of property means a “person or

entity holding legal title to the property, or holding an equitable right to obtain legal

title to the property.”).


                                           15
      Because Grossman’s pleadings establish that there is no threatened demolition

on public property—property owned by the City—there is no violation or threatened

violation of Chapter 191. There is no waiver of governmental immunity and the trial

court lacked jurisdiction over Grossman’s claims.

                                      PRAYER

      The City prays that the Court reverse the trial court’s denial of the City’s plea

to the jurisdiction and render judgment that Grossman’s suit be dismissed.




                                         16
                                  Respectfully submitted,

                                  /s/Mark N. Osborn
Sylvia B. Firth, City Attorney    Mark N. Osborn
FirthSB@elpasotexas.gov           mark.osborn@kempsmith.com
Maria Guadalupe Martinez          Shelly W. Rivas
Senior Assistant City Attorney    shelly.rivas@kempsmith.com
MartinezMG@elpasotexas.gov        Kemp Smith LLP
Sergio M. Estrada                 221 N. Kansas, Suite 1700
Assistant City Attorney           El Paso, Texas 79901
EstradaSM@elpasotexas.gov         Telephone: (915) 533-4424
P.O. Box 1890                     Facsimile (915) 546-5360
El Paso, Texas 79950-1890
Telephone: (915) 212-0033         Wallace B. Jefferson
Facsimile: (915) 212-0034         State Bar No. 00000019
                                  wjefferson@adjtlaw.com
                                  ALEXANDER DUBOSE
                                  JEFFERSON & TOWNSEND LLP
                                  515 Congress Avenue, Suite 2350
                                  Austin, Texas 78701-3562
                                  Telephone: (512) 482-9300
                                  Facsimile: (512) 482-9303

                                  Robert B. Dubose
                                  State Bar No. 00787396
                                  rdubose@adjtlaw.com
                                  ALEXANDER DUBOSE
                                  JEFFERSON & TOWNSEND LLP
                                  1844 Harvard Street
                                  Houston, Texas 77008
                                  Telephone: (713) 523-2358
                                  Facsimile: (713) 522-4553

                        ATTORNEYS FOR APPELLANT




                                  17
                           CERTIFICATE OF COMPLIANCE

      Based on a word count run in Microsoft Word 2016, this brief contains 2,658

words, excluding the portions of the brief exempt from the word count under Texas

Rule of Appellate Procedure 9.4(i)(1).

                                               /s/Mark N. Osborn
                                               Mark N. Osborn


                             CERTIFICATE OF SERVICE

      On December 20, 2017, I electronically filed this Reply Brief of Appellant

with the Clerk of Court using the eFile.TXCourts.gov electronic filing system which

will send notification of such filing to the following:

 Lisa Bowlin Hobbs                          Harriet O’Neill
 KUHN HOBBS PLLC                            LAW OFFICE OF HARRIET O’NEILL, PC
 3307 Northland Drive, Suite 310            919 Congress Avenue, Suite 1400
 Austin, Texas 78731                        Austin, Texas 78701
 Lisa@KuhnHobbs.com                         HONeill@harrietoneilllaw.com

 Karlene Poll                               Francis S. Ainsa, Jr.
 KUHN HOBBS PLLC                            AINSA HUTSON HESTER & CREWS LLP
 2310 Rutland Street                        5809 Acacia Circle
 Houston, Texas 77008                       El Paso, Texas 79912
 Karlene@KuhnHobbs.com                      fain@acaciapark.com


                                               /s/Mark N. Osborn
                                               Mark N. Osborn




                                          18
