       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-17-00812-CV


          Appellants, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert,
       Joseph “Mike” Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch//
  Cross-Appellants, City of Austin, Texas; and Steve Adler, Mayor of The City of Austin,
                                  and the State of Texas
                                            v.

      Appellees, City of Austin, Texas; and Steve Adler, Mayor of The City of Austin//
        Cross-Appellees, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert,
        Joseph “Mike” Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch




                FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
        NO. D-1-GN-16-002620, THE HONORABLE TIM SULAK, JUDGE PRESIDING



                                          OPINION


               These cross-appeals arise from challenges to a municipal ordinance amending the

City of Austin’s regulation of short-term rental properties.       See Austin, Tex., Ordinance

No. 20160223-A.1 (Feb. 23, 2016) (codified in Austin City Code chapters 25-2 and 25-12).

Appellants Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph “Mike” Hebert,

Lindsay Redwine, Ras Redwine VI, and Tim Klitch (collectively, “Property Owners”) own

homes in the Austin area and sued the City and its mayor (collectively, “the City”), asserting that

certain provisions in the ordinance are unconstitutional. Specifically, the Property Owners

challenged the ordinance provision that bans short-term rentals of non-homestead properties, see

id. § 25-2-950, and the ordinance provision that controls conduct and types of assembly at short-
term rental properties, see id. § 25-2-795. The State intervened in the Property Owners’ suit to

contend that the ordinance’s ban on short-term rentals of non-homestead properties is

unconstitutional as a retroactive law and as an uncompensated taking of private property. The

Property Owners and the State appeal from the district court’s order granting the City’s no-

evidence motion for summary judgment and denying the Property Owners’ and the State’s

traditional motions for summary judgment. The City and the State also challenge the district

court’s orders excluding certain evidence from the summary-judgment record. On cross-appeal,

the City challenges the district court’s order overruling the City’s plea to the jurisdiction.

               The ordinance provision banning non-homestead short-term rentals significantly

affects property owners’ substantial interests in well-recognized property rights while, on the

record before us, serving a minimal, if any, public interest.           Therefore, the provision is

unconstitutionally retroactive, and we will reverse the district court’s judgment on this issue and

render judgment declaring the provision void. The ordinance provision restricting assembly

infringes on Texans’ fundamental right to assemble because it limits peaceable assembly on

private property. Therefore, because the City has not demonstrated that the provision is narrowly

tailored to serve a compelling state interest, the provision violates the Texas Constitution’s

guarantee to due course of law, and we will reverse the district court’s judgment on this issue and

render judgment declaring the provision void. We will affirm the remainder of the judgment and

remand the case to the district court for further proceedings consistent with this opinion.


                                            Background

               In the last decade, individuals have increasingly turned to short-term rentals—

typically, privately owned homes or apartments that are leased for a few days or weeks at a



                                                  2
time—for lodging while traveling.      See, e.g., Donald J. Kochan, The Sharing Stick in the

Property Rights Bundle, 86 U. Cin. L. Rev. 893, 894–95 (2018) (collecting sources). As short-

term rentals have become more common, local governments have looked for ways to balance the

rights of short-term rental property owners and tenants against the concerns of neighboring

properties. In 2012, the City adopted an ordinance to regulate Austinites’ ability to rent their

properties through amendments to the zoning and land-development chapters of its municipal

code. See Austin, Tex., Ordinance 20120802-122 (Aug. 2, 2012) (codified at Austin, Tex., Code

Chs. 25-2 and 25-12). That ordinance defined short-term rental use as “the rental of a residential

dwelling unit or accessory building, other than a unit or building associated with a group

residential use, on a temporary or transient basis.” Id. § 25-2-3(10). The 2012 ordinance also

required property owners to satisfy eligibility criteria and obtain a license before being allowed

to rent their property on a short-term basis. Id. §§ 25-2-788(B), 25-2-789(B).

               In 2016, after conducting several studies and holding hearings regarding short-

term rentals and their role in the community, the City adopted an ordinance amending its

regulations of short-term rentals. See Austin, Tex., Ordinance 20160223-A.1. As amended by

the 2016 ordinance, the City Code created three classes of short-term rentals:

   •   Type 1—single-family residence that is “owner-occupied or is associated with an owner-
       occupied principal residential unit,” Austin, Tex., Code § 25-2-788(A);

   •   Type 2—single-family residence that “is not owner-occupied and is not associated with
       an owner-occupied principal residential unit,” id. § 25-2-789(A); and

   •   Type 3—residence that is “part of a multi-family residential use,” id. § 25-2-790(A). 1




       1  The parties agree that, as a practical matter, type-1 status is determined based on
whether the owner claims the property as a homestead for tax purposes. See Austin, Tex., Code
§ 25-2-788.
                                                3
The ordinance immediately suspended the licensing of any new type-2 short-term rentals and

established April 1, 2022, as the termination date for all type-2 rentals. See id. § 25-2-950.

               The 2016 ordinance also imposed several restrictions on properties operated as

short-term rentals, including:

   •   banning all assemblies, including “a wedding, bachelor or bachelorette party, concert,
       sponsored event, or any similar group activity other than sleeping,” whether inside or
       outside, after 10:00 p.m.;

   •   banning outdoor assemblies of more than six adults at any time;

   •   prohibiting more than six unrelated adults or ten related adults from using the property at
       any time; and

   •   giving City officials authority to “enter, examine, and survey” the short-term rentals to
       ensure compliance with applicable provisions of Code.


See id. §§ 25-2-795(D)–(G), 25-12-213-1301.          Failure to comply with these provisions is

punishable by a fine of up to $2,000 and possible revocation of the operating license. See id.

§ 25-1-462.

               In response to the ordinance, the Property Owners sued the City for declaratory

and injunctive relief, alleging that section 25-2-795’s assembly and occupancy restrictions and

section 25-2-950’s ban on type-2 short-term rentals violate, facially and as applied, constitutional

rights to privacy, freedom of assembly and association, due course of law, equal protection, and

freedom from unwarranted searches. See Tex. Const. art. I, §§ 3 (equal protection), 9 (searches),

19 (due course of law), 27 (assembly); Texas State Emps. Union v. Texas Dep’t of Mental Health

& Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987) (individual privacy). 2 The Property

Owners also sought attorney fees. See Tex. Civ. Prac. & Rem. Code § 37.009. The State of

       2The Property Owners bring their privacy, assembly, and association claims within the
framework of the due-course-of-law and equal-protection clauses of the Texas Constitution.
                                                 4
Texas intervened in the Property Owners’ case, arguing that section 25-2-950’s termination of

type-2 operating licenses by 2022 is unconstitutional as a retroactive law and an uncompensated

taking of private property. See Tex. Const. art. I, §§ 16 (retroactive laws), 17 (takings).

               The Property Owners and the State moved for summary judgment on their

constitutional challenges to the ordinance, providing evidentiary exhibits in support of those

motions. 3 The City filed a plea to the jurisdiction and a no-evidence motion for summary

judgment. The State and the City each filed objections to certain aspects of the evidentiary

record. The district court denied the traditional motions for summary judgment, overruled the

City’s plea to the jurisdiction, granted the City’s motion for no-evidence summary judgment, and

sustained in part the State’s and the City’s respective evidentiary objections. The Property

Owners and the State appeal from the district court’s order denying their motions for summary

judgment and granting the City’s motion for summary judgment. The State also appeals from

the district court’s order sustaining the City’s evidentiary objections. The City cross-appeals

from the district court’s order overruling its plea to the jurisdiction and from the order sustaining

the State’s evidentiary challenges.


                                            Jurisdiction

               Because it implicates our authority to reach the merits of this dispute, we begin by

addressing the district court’s order overruling the City’s plea to the jurisdiction. See Crites v.

Collins, 284 S.W.3d 839, 840 (Tex. 2009) (noting that jurisdictional questions must be addressed

before merits). A trial court’s jurisdiction is a question of law we review de novo. Texas Dep’t

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “[I]f a plea to the jurisdiction


       3  The Property Owners’ motion for summary judgment did not include their request for
attorney fees.
                                                  5
challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the

parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to

do.” Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). “[I]n a

case in which the jurisdictional challenge implicates the merits of the plaintiffs’ cause of

action”—as is the case here—“and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists.” Id. “If the evidence creates a

fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact finder.” Id. at 227–28.

               The City’s plea to the jurisdiction challenges the State’s standing to intervene in

this dispute, the Property Owners’ standing to bring claims on behalf of tenants, and the ripeness

of the underlying claims. The plea also invokes governmental immunity, arguing that the

Property Owners and the State have not pleaded any claim for which the City’s immunity is

waived or otherwise inapplicable. We address these arguments in turn.

A. Standing

               The City contests the State’s standing to intervene in this matter and the Property

Owners’ standing to bring claims on behalf of their tenants. “Standing is implicit in the concept

of subject matter jurisdiction,” and is therefore properly challenged in a plea to the jurisdiction.

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). In general, to

establish standing to seek redress for injury, “a plaintiff must be personally aggrieved.”

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008) (citing Nootsie, Ltd. v.

Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996)). In addition, “his alleged

injury must be concrete and particularized, actual or imminent, not hypothetical.” Id. at 304–05

(citing Raines v. Byrd, 521 U.S. 811, 819 (1997)); see Lujan v. Defenders of Wildlife, 504 U.S.

                                                  6
555, 560–561 (1992); Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001); Texas Ass’n of Bus.,

852 S.W.2d at 444. “A plaintiff does not lack standing simply because he cannot prevail on the

merits of his claim; he lacks standing because his claim of injury is too slight for a court to afford

redress.”   Inman, 252 S.W.3d at 305.          These common-law standards, however, are not

dispositive if the Legislature has conferred standing by statute. See In re Sullivan, 157 S.W.3d

911, 915 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding) (considering standing under

certain provisions of Texas Family Code); but see Grossman v. Wolfe, 578 S.W.3d 250, 257 n.4

(Tex. App.—Austin 2019, pet. denied) (noting that U.S. Supreme Court has rejected statutorily

created standing).

               The State’s standing to intervene in this matter is unambiguously conferred by the

Uniform Declaratory Judgment Act, which provides:


               In any proceeding that involves the validity of a municipal
               ordinance or franchise, the municipality must be made a party and
               is entitled to be heard, and if the statute, ordinance, or franchise is
               alleged to be unconstitutional, the attorney general of the state
               must also be served with a copy of the proceeding and is entitled to
               be heard.


Tex. Civ. Prac. & Rem. Code § 37.006(b). The Property Owners filed suit in 2016, raising a

constitutional challenge to the amendments enacted by ordinance 20160223-A.1. If they prevail,

the unconstitutional provisions will be declared void. The suit therefore “involves the validity of

a municipal ordinance” such that the State is “entitled to be heard” in this proceeding. Id.; see

Texas Ass’n of Bus. v. City of Austin, 565 S.W.3d 425, 433–34 (Tex. App.—Austin 2018, pet.

filed) (explaining State’s right to intervene in constitutional challenge to municipal ordinance).




                                                  7
               The City also contests the Property Owners’ right to raise constitutional claims on

behalf of their tenants. “Generally, courts must analyze the standing of each individual plaintiff

to bring each individual claim he or she alleges.”         Patel v. Texas Dep’t of Licensing &

Regulation, 469 S.W.3d 69, 77 (Tex. 2015) (citing Heckman v. Williamson County, 369 S.W.3d

137, 152 (Tex. 2012)). “However, ‘where there are multiple plaintiffs in a case who seek

injunctive or declaratory relief . . . the court need not analyze the standing of more than one

plaintiff—so long as [one] plaintiff has standing to pursue as much or more relief than any of the

other plaintiffs.’” Id. (quoting Heckman, 369 S.W.3d at 152 n.64). “The reasoning is fairly

simple: if one plaintiff prevails on the merits, the same prospective relief will issue regardless of

the standing of the other plaintiffs.” Id. (citations omitted). Here, at least one of the Property

Owners is both an operating licensee and a tenant of short-term rentals. That property owner

asks the court to enjoin enforcement of the ordinance and to declare it void in part due to

allegedly unconstitutional provisions restricting short-term tenants’ rights to association,

assembly, freedom of movement, and privacy. As a tenant, she herself “ha[s] suffered some

actual restriction” under the challenged provisions, and she seeks the greatest possible

prospective relief the court might afford. See id. She therefore has standing to pursue these

claims, and “we need not analyze the standing” of the remaining Property Owners with respect to

claims brought on behalf of short-term tenants. See id.




                                                 8
B. Ripeness

               The City contends that because parts of the ordinance do not take effect until 2022

and because—in the City’s view—the Property Owners have not yet suffered any concrete

injury, any challenge to the ordinance is not yet ripe. We disagree.

               Ripeness is a jurisdictional prerequisite to suit. Patterson v. Planned Parenthood,

971 S.W.2d 439, 442–43 (Tex. 1998).         A claim ripens upon the existence of “a real and

substantial controversy involving genuine conflict of tangible interests and not merely a

theoretical dispute.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995) (quoting

Bexar–Medina–Atascosa Ctys. Water Control & Improvement Dist. No. 1 v. Medina Lake Prot.

Ass’n, 640 S.W.2d 778, 779–80 (Tex. App.—San Antonio 1982, writ ref’d n.r.e)). Ripeness

requires “a live, non-abstract question of law that, if decided, would have a binding effect on the

parties.”   Heckman, 369 S.W.3d at 147 (citing Brown, 53 S.W.3d at 305).              Ripeness is

“peculiarly a question of timing.” Perry v. Del Rio, 66 S.W.3d 239, 249–51 (Tex. 2001)

(quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974)). A case is not ripe

if it involves “uncertain or contingent future events that may not occur as anticipated, or indeed

may not occur at all.” Patterson, 971 S.W.2d at 442 (quoting 13A Charles A. Wright et al.,

Federal Practice & Procedure § 3532, at 112 (2d ed. 1984)).

               This controversy is ripe for adjudication. The Property Owners raise a facial

challenge to an ordinance adopted in February of 2016.             Some provisions took effect

immediately, others were retroactively applied to certain license applications filed in 2015, and

others will take effect beginning April 1, 2022. It is undisputed that these provisions limit the

Property Owners’ rights with respect to their properties, including restricting the number of

tenants, the term of tenancy, and the permissible uses of the property during short-term rental

                                                9
tenancy. The ordinance is already in effect, so there is no risk that its impact “may not occur at

all.” Id. at 442. Facial challenges to ordinances are “ripe upon enactment because at that

moment the ‘permissible uses of the property [were] known to a reasonable degree of certainty.’”

Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 60 (Tex. 2006) (quoting Palazzolo v.

Rhode Island, 533 U.S. 606, 620 (2001)) (alteration in original).

               And while the City argues the Property Owners have not yet “suffered economic

harm” from the provision terminating type-2 operation in 2022, that fact would not forestall

adjudication of this dispute even assuming, for the sake of argument, it is an accurate

characterization of the circumstances. As a general matter, courts have long recognized that an

aggrieved plaintiff may seek redress “when a wrongful act causes some legal injury . . . even if

all resulting damages have not yet occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996) (citing

Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994); Quinn v. Press,

140 S.W.2d 438, 440 (Tex. 1940)). But more specifically, because the plaintiffs and intervenors

allege a facial abridgment of their most fundamental rights under the United States and Texas

Constitutions, the City’s alleged constitutional overreach itself is an injury from which the

Property Owners and the State seek relief. See Virginia v. American Booksellers Ass’n, 484 U.S.

383, 392–93 (1988) (finding jurisdiction over facial challenge where statute had not yet been

enforced and no injury in fact had yet occurred); City of Laredo v. Laredo Merchants Assoc., 550

S.W.3d 586, 590 (Tex. 2018) (allowing constitutional challenge to ordinance where suit filed

before effective date); Barshop v. Medina Cty. Underground Water Conservation Dist., 925

S.W.2d 618, 626–27 (Tex. 1996) (rejecting State’s argument that plaintiffs “must actually be

deprived of their property before they can maintain a [facial] challenge to this statute”). The

district court did not err in rejecting the City’s ripeness arguments.

                                                 10
C. Jurisdiction over the Subject Matter

                In its final challenge to jurisdiction, the City invokes its immunity from suit. To

overcome governmental immunity from suit and thereby establish jurisdiction over this case, the

Property Owners must plead a viable claim for which governmental immunity is waived or

otherwise inapplicable. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 475

(Tex. 2012). Governmental immunity does not shield the City from viable claims for relief from

unconstitutional acts. See General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591,

598 (Tex. 2001) (“[T]he doctrine does not shield the State from an action for compensation

under the takings clause.” (citations omitted)); Board of Trustees v. O’Rourke, 405 S.W.3d 228,

237 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Generally, governmental immunity does

not shield a governmental entity from a suit for declaratory relief based on alleged constitutional

violations.” (citations omitted)). Here, both the Property Owners and the State have raised

constitutional challenges to the City’s ordinance. As discussed in further detail in our analysis of

summary judgment, two of these claims are meritorious—and thus viable—challenges to the

constitutionality of the ordinance. Accordingly, the parties have successfully established the

district court’s jurisdiction over the controversy, and the court did not err in overruling the City’s

plea to the jurisdiction.

                We overrule the City’s jurisdictional issues.


                                       Evidentiary Rulings

                Before turning to the district court’s orders granting the City’s no-evidence

motion for summary judgment and denying the two traditional motions, we must determine

which evidence is properly before the court. See Fort Brown Villas III Condo. Ass’n, Inc. v.



                                                 11
Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (explaining importance of evidentiary rulings in

context of no-evidence summary judgment). The State and the City filed objections to evidence

offered on the cross-motions. The district court sustained these objections in part, and two

evidentiary exhibits remain at issue on appeal. The State appeals from the district court’s order

excluding sworn declarations obtained from several owners of short-term rentals in the Austin

area, and the City challenges the exclusion of thousands of pages documenting the legislative

history of the ordinance, which the district court excluded as unnecessarily voluminous. A

district court’s decision to exclude evidence is reviewed for abuse of discretion. Capital Metro.

Transp. Auth v. Central of Tenn. Ry. & Nav. Co., 114 S.W.3d 573, 583 (Tex. App.—Austin

2003, pet. denied). “A trial court abuses its discretion if it acts without reference to any guiding

rules and principles.” Id. (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985)).

A. Exclusion of State’s Affidavits

                The district court excluded several sworn declarations the State had obtained from

owners of short-term rentals, accepting the City’s argument that the declarations are irrelevant

and that the names of the declarants were not timely disclosed by the State. We agree with the

State that the district court abused its discretion in sustaining the objection.

                To begin with, this evidence is relevant. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” Tex. R. Evid. 401. Relevant evidence must be

admitted unless admission is otherwise prohibited by state or federal law. Id. R. 402. The

disputed declarations include, for example, evidence of how long short-term rentals have existed

in Austin, what makes them profitable, where they are located, how often they are occupied, and

                                                  12
the financial impact the owners anticipate from the ordinance. This information is critical to

“determining the action”—that is, determining whether the ordinance violates any constitutional

rights—and is therefore relevant.

               This relevant evidence was not rendered inadmissible by the State’s allegedly

untimely disclosure of the names of the declarants. “A party must respond to written discovery

in writing within the time provided by court order or these rules.” Tex. R. Civ. P. 193.1. “When

responding to written discovery, a party must make a complete response, based on all

information reasonably available to the responding party or its attorney at the time the response

is made.” Id. “If a party learns that the party’s response to written discovery was incomplete or

incorrect when made, or, although complete and correct when made, is no longer complete and

correct, the party must amend or supplement the response . . . .” Id. R. 193.5. “A party who fails

to make, amend, or supplement a discovery response in a timely manner may not introduce in

evidence the material or information that was not timely disclosed . . . unless the court finds that:

(1) there was good cause for the failure to timely make, amend, or supplement the discovery

response; or (2) the failure to timely make, amend, or supplement the discovery response will not

unfairly surprise or unfairly prejudice the other parties.” Id. R. 193.6.

               Under the circumstances of this case, the State timely disclosed its intent to rely

on testimony from these owners. In mid-March 2017, before the close of discovery, the State

explained in its response to the City’s request for disclosure that “individuals who currently hold,

or were previously granted, Short-Term Rental (STR) permits by [the City], and the individuals

who testified at any public hearing on short-term rental regulations” were persons who had

knowledge of facts relevant to its case.       See id. R. 194.2(e) (authorizing party to request

disclosure of names “of persons having knowledge of relevant facts”). When the State made this

                                                 13
general disclosure, the City had recently—mid-February—provided discovery responses listing

the names of all the short-term rental licensees, but the State had not yet had time to identify

from that list the specific witnesses that it intended to rely on and the evidence those witnesses

would provide. The State’s response to the City’s request was therefore complete “based on all

information reasonably available to [the State] or its attorney at the time the response [wa]s

made.” Id. R. 193.1.

               Once the State identified its witnesses and the evidence those witnesses would

provide, it disclosed that information to the City in a supplemental disclosure. See id. R.

193.5(a) (requiring responding party to amend or supplement incomplete or incorrect discovery

responses “reasonably promptly”).      This supplementation occurred in mid-May 2017; three

months after the State had received the evidentiary information from the City and approximately

six months before the hearing at which the declarations were offered as evidence. As such, the

State’s supplementation was reasonably prompt. See id.; see also id. R. 193.5(b) (amended or

supplemental responses made less than 30 days before trial are presumed to not be reasonably

prompt). Thus, the district court abused its discretion in sustaining the City’s objection and

excluding the declarations of Carole Price, Cary Reynolds, Pete Gilcrease, Gregory Cribbs,

Rachel Nation, and Travis Sommerville.          See Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992) (noting that failure to analyze or apply law correctly constitutes abuse of discretion).

               We sustain the State’s evidentiary issue.

B. Exclusion of City’s Legislative History

               The City complains of the district court’s exclusion of its proffered legislative

history, which the State had argued was “too voluminous” to be useful. We find it unnecessary

to decide whether the exclusion was erroneous, as we may take judicial notice of this history.

                                                 14
“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is

generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and

readily determined from sources whose accuracy cannot reasonably be question.” Tex. R. Evid.

201. The City offers this history primarily as evidence of its need to address public concerns

regarding the presence of short-term rentals in certain parts of Austin. Setting aside the question

of whether the hearing testimony and other legislative history accurately characterize the impact

of short-term rentals, the fact that these concerns were previously raised by residents and other

stakeholders is a matter of municipal record and “is not subject to reasonable dispute.” Id. We

therefore will incorporate the aspects of this history that the City relies on in our analysis of the

merits of this dispute.


                                       Summary Judgment

               The district court granted the City’s no-evidence motion for summary judgment

and denied the traditional motions filed by the Property Owners and the State. “When . . . parties

move for summary judgment on overlapping issues and the trial court grants one motion and

denies the other[s], we consider the summary-judgment evidence presented by both sides and

determine all questions presented.” Texas Ass’n of Acupuncture & Oriental Med. v. Texas Bd. of

Chiropractic Exam’rs, 524 S.W.3d 734, 738 (citing Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005)). “If we determine that the trial court erred, we render the

judgment the trial court should have rendered.” Id. We make this determination de novo. Id.

               The State and the Property Owners filed traditional motions for summary

judgment on their claims regarding the constitutionality of the ordinance. The City filed a cross-

motion for summary judgment challenging those constitutionality claims on no-evidence



                                                 15
grounds. “Summary judgment is proper when the summary-judgment evidence shows that there

are no disputed issues of material fact and that the movant is entitled to judgment as a matter of

law.” Texas Ass’n of Acupuncture, 524 S.W.3d at 738 (citing Tex. R. Civ. P. 166a(c)). “A

movant seeking traditional summary judgment on its own cause of action has the initial burden

of establishing its entitlement to judgment as a matter of law by conclusively establishing each

element of its cause of action.” Id. (citing Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d

894, 905 (Tex. App.—Austin 2010, no pet.)). “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.” Id. (citing Lakey v.

Taylor, 435 S.W.3d 309, 316 (Tex. App.—Austin 2014, no pet.)).

               A party may move for no-evidence summary judgment when, “[a]fter adequate

time for discovery[,] . . . there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial.” Tex. R. Civ. P.

166a(i). “The motion must state the elements as to which there is no evidence.” Id. “The court

must grant the motion unless the respondent produces summary judgment evidence raising a

genuine issue of material fact.” Id. When reviewing a no-evidence summary judgment, we

“review the evidence presented by the motion and response in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence favorable to that

party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing Mack Trucks,

Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006)).




                                               16
A. The State’s Retroactivity Claim

               The State argues that section 25-2-950 of the Austin City Code, which terminates

all type-2 rentals by 2022, is unconstitutionally retroactive. We agree.

               The Texas Constitution prohibits the creation of retroactive laws.          See Tex.

Const., art. I, § 16 (“No bill of attainder, ex post facto law, retroactive law, or any law impairing

the obligation of contracts, shall be made.”). The prohibition against retroactive laws has two

fundamental objectives: “[I]t protects the people’s reasonable, settled expectations”—i.e., “the

rules should not change after the game has been played”—and it “protects against abuses of

legislative power.” Robinson v. Crown Cork & Seal Co., Inc., 335 S.W.3d 126, 139 (Tex. 2010)

(citing Landgraf v. USI Film Prods., 511 U.S. 244, 265–266 (1994)).

               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) (citing Robinson, 335 S.W.3d at 138).

“A retroactive statute is one which gives preenactment conduct a different legal effect from that

which it would have had without the passage of the statute.” Union Carbide Corp. v. Synatzske,

438 S.W.3d 39, 60 (Tex. 2014) (quoting Charles B. Hochman, The Supreme Court and the

Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 692 (1960)). The State

contends that the ordinance provision terminating all type-2 operating licenses is retroactive

because it “tak[es] away th[e] fundamental and settled property right” to lease one’s real estate

under the most desirable terms. The City disagrees with the State’s characterization of the

ordinance’s effect, but it does not dispute that the ordinance is retroactive. We agree that section

25-2-950 operates to eliminate well-established and settled property rights that existed before the

ordinance’s adoption. See Robinson, 335 S.W.3d at 139 (noting that “[m]ost statutes operate to

change existing conditions”); Hochman, 73 Harv. L. Rev. at 692.

                                                 17
                But not all retroactive laws are unconstitutional. Robinson, 335 S.W.3d at 139.

(“Mere retroactivity is not sufficient to invalidate a statute.”).        To determine whether a

retroactive law violates the Texas Constitution’s prohibition against retroactive laws, we must

consider three factors in light of the prohibition’s objectives of protecting settled expectations

and of preventing legislative abuses: (1) “the nature and strength of the public interest served by

the statute as evidenced by the Legislature’s factual findings;” (2) “the nature of the prior right

impaired by the statute;” and (3) “the extent of the impairment.” Id. at 145. This three-part test

acknowledges the heavy presumption against retroactive laws by requiring a compelling public

interest to overcome the presumption. Tenet, 445 S.W.3d at 707 (citing Robinson, 335 S.W.3d at

145). But it also appropriately encompasses the notion that “statutes are not to be set aside

lightly.” Id.

                We begin by considering the first Robinson factor, “the nature and strength of the

public interest served by the statute as evidenced by the Legislature’s factual findings,” to

determine if there is a compelling public interest. Robinson, 335 S.W.3d at 145; see Tenet,

445 S.W.3d at 707. Here, as was the case regarding the statute deemed unconstitutionally

retroactive in Robinson, the City made no findings to justify the ordinance’s ban on type-2

rentals. Based on the legislative record before us and the other facts relevant to determining the

reasons for the City’s actions, see Robinson, 335 S.W.3d at 145 (considering entire legislative

record and additional related information in applying its three-prong test), the City’s purported

public interest for banning type-2 rentals is slight. The City contends that it enacted short-term

rental regulations to address the following public-interest issues relating to short-term rentals:




                                                 18
   •   Public-health concerns about over-occupancy affecting the sewage system and creating
       fire hazards and about “bad actor” tenants who dump trash in the neighborhood and
       urinate in public;

   •   public-safety concerns regarding strangers to neighborhoods, public intoxication, and
       open drug use;

   •   general-welfare concerns about noise, loud music, vulgarity, and illegal parking; and

   •   the negative impact on historic Austin neighborhoods, specifically concerns of residents
       that that short-term rentals alter a neighborhood’s quality of life and affect housing
       affordability.


The City does not explain which of these public-interest issues supports a ban on type-2 short-

term rentals, and notably, there is nothing in the record before us to show that any of these stated

concerns is specific or limited to type-2 short-term rentals. Type-2 short-term rentals are simply

single-family residences that are not owner-occupied or associated with an owner-occupied

principal residential unit—i.e., they are not designated as the owner’s homestead for tax

purposes. See Austin, Tex., Code § 25-2-789(A).

               More importantly, nothing in the record supports a conclusion that a ban on type-

2 rentals would resolve or prevent the stated concerns. In fact, many of the concerns cited by the

City are the types of problems that can be and already are prohibited by state law or by City

ordinances banning such practices. See Tex. Penal Code §§ 42.01 (disorderly conduct), 49.02

(public intoxication); Austin, Tex., Code §§ 9-2-1–9-2-65 (noise ordinance), 9-4-15 (prohibiting

public urination and defecation), 10-5-42–10-5-45 (littering ordinance), 12-5-1–12-2-44 (parking

ordinance). Relatedly, nothing in the record shows that these issues have been problems with or

specific to short-term rentals in the past. To the contrary, the record shows that, in the four years

preceding the adoption of the ordinance, the City did not issue a single citation to a licensed

short-term rental owner or guest for violating the City’s noise, trash, or parking ordinances. And

                                                 19
during this same four-year period, the City issued notices of violations—not citations—to

licensed short-term rentals only ten times: seven for alleged overoccupancy, two for failure to

remove trash receptacles from the curb in a timely manner, one for debris in the yard, and none

for noise or parking issues. And the City has not initiated a single proceeding to remove a

property owner’s short-term rental license in response to complaints about parties. Further, the

record shows that short-term rentals do not receive a disproportionate number of complaints

from neighbors.     In fact, as the City acknowledges, “short-term rental properties have

significantly fewer 311 calls and significantly fewer 911 calls than other single-family

properties.”

               We also note that a ban on type-2 short-term rentals does not advance a zoning

interest because both short-term rentals and owner-occupied homes are residential in nature. See

Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 291 (Tex. 2018) (declining to

interpret “residential” as prohibiting short-term rentals). And, in fact, the City treats short-term

rentals as residential for purposes of its own laws. See Austin, Tex., Code § 25-2-4(B).

               In sum, based on the record before us, we conclude that the purported public

interest served by the ordinance’s ban on type-2 short-term rentals cannot be considered

compelling. The City did not make express findings as to the ordinance. Nothing in the record

before us suggests that the City’s reasons for banning type-2 rentals address concerns that are

particular to type-2 rentals or that the ban itself would actually resolve any purported concerns.

See Tenet, 445 S.W.3d at 707 (holding that retroactive provision of legislation that “was a

comprehensive overhaul of Texas medical malpractice law” served compelling public interest);

Synatzske, 438 S.W.3d at 58 (holding that retroactive legislation aimed at resolving asbestos-

related litigation crisis and supported by legislative fact findings served compelling public

                                                20
interest); Robinson, 335 S.W.3d at 143–44 (holding that retroactive legislation ostensibly enacted

for sole benefit of one entity and not supported by legislative fact findings did not serve

compelling public interest).

               But even if we were to determine that the City’s ban on type-2 rentals advances a

compelling interest, our consideration of the remaining Robinson factors, which require that we

balance the purpose against the nature of the prior right and the extent to which the statute

impairs that right, would still require us to conclude that the ban is unconstitutionally retroactive.

See Robinson, 335 S.W.3d at 147–48. Regarding the nature of the prior right, we consider not

whether the impaired right was “vested,” but the extent to which that right was “settled.” 4 Id. at

142–43, 147, 149. In Robinson, for example, the Court held that the plaintiffs had a settled

expectation that the Legislature would not extinguish their already filed common-law personal

injury suit. Id. at 147–49. By contrast, the supreme court held in Synatzke that plaintiffs

asserting a statutory cause of action after the Legislature altered certain aspects of that statute

had no settled expectation in the previous version of the statute because “the Legislature may

repeal a statute and immediately eliminate any right or remedy that the statute previously

granted.” .

               Private property ownership is a fundamental right. Hearts Bluff, 381 S.W.3d at

476 (citing Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012)). “The right of property is the

right to use and enjoy, or dispose of the same, in a lawful manner and for a lawful purpose.” Id.;

see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–36 (1982) (noting that


       4  Ignoring recent precedent from our high court, the City incorrectly engages in a vested-
rights analysis to determine whether the ordinance is unconstitutionally retroactive. See
Robinson, 335 S.W.3d at 143 (“What constitutes an impairment of vested rights is too much in
the eye of the beholder to serve as a test for unconstitutional retroactivity.”).
                                                 21
property owners have “rights to possess, use and dispose of” their property). The ability to lease

property is a fundamental privilege of property ownership. See Terrace v. Thompson, 263 U.S.

197, 17–18 (1923) (noting that “essential attributes of property” include “the right to use, lease

and dispose of it for lawful purposes”); Calcasieu Lumber Co. v. Harris, 13 S.W. 453, 454 (Tex.

1890) (“The ownership of land, when the estate is a fee, carries with it the right to use the land in

any manner not hurtful to others; and the right to lease it to others, and therefore derive profit, is

an incident of such ownership.”); see also Ross, Thomas, Metaphor and Paradox, 23 Ga. L. Rev.

1053, 1056 (1989) (noting that “rights to sell, lease, give, and possess” property “are the sticks

which together constitute” the metaphorical bundle). Granted, the right to lease property for a

profit can be subject to restriction or regulation under certain circumstances, see Loretto,

458 U.S. at 436 (noting in physical-takings case that “deprivation of the right to use and obtain a

profit from company is not, in every case, independently sufficient to establish a taking”);

Severance, 370 S.W.3d at 709–10 (noting few limitations on property rights), but the right to

lease is nevertheless plainly an established one, see Tenet, 445 S.W.3d at 708 (analyzing whether

claim was established).

               And as for the specific right at issue here—i.e., to lease one’s property on a short-

term basis—the City acknowledges that Austinites have long exercised their right to lease their

property by housing short-term tenants. In fact, the City admits, and the record establishes, that

short-term rentals are an “established practice” and a “historically . . . allowable use.” The

record also shows that property owners, including some of the appellants here, who rented their

individual properties as type-2 short-term rentals before the City’s adoption of the provision

eliminating those types of rentals did so after investing significant time and money into the



                                                 22
property for that purpose. The record also shows that the City’s ban on type-2 short-term rentals

will result in a loss of income for the property owners.

                  Accordingly, based on the record before us and the nature of real property rights,

we conclude that owners of type-2 rental properties have a settled interest in their right to lease

their property short term.

                  The City emphasizes that the ban does not go into effect until 2022, suggesting

that the grace period would allow property owners to adjust their investment strategy to prepare

for the discontinuance of type-2 short-term rentals. See Tenet, 445 S.W.3d at 708–09 (discussing

grace period afforded by retroactive legislation); City of Tyler v. Likes, 962 S.W.2d 489, 502

(Tex. 1997) (determining that applying immunity provisions of Texas Tort Claims Act was not

unconstitutionally retroactive when the plaintiff had two months to sue before it became

effective). But the issue here is not about property owners’ right to use their property in a certain

way—it is about owners of type-2 short-term rentals retaining their well-settled right to lease

their property.

                  We now turn to the third Robinson factor, which directs us to consider the extent

of the ordinance’s impairment to these settled rights. See Robinson, 335 S.W.3d at 145. The

effect of the ordinance on the property right at issue here is clear—the City’s ordinance

eliminates the right to rent property short term if the property owner does not occupy the

property. The elimination of a right plainly has a significant impact on that right. See id. at 148

(concluding that statute that extinguished plaintiff’s claim in Texas had a “significant[]

impact[]”).

                  Because the record before us shows that the ordinance serves a minimal, if any,

public interest while having a significant impact on property owners’ substantial interest in a

                                                  23
well-recognized property right, we hold that section 25-2-950’s elimination of type-2 short-term

rentals is unconstitutionally retroactive. See id. at 150; see also Texas Rice Land Partners, Ltd.

v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 204 (Tex. 2012) (noting that

preservation of property rights is “one of the most important purposes”—in fact, “[t]he great and

chief end”—of government). Accordingly, we affirm the State’s first issue on appeal. And

having determined that section 25-2-950 is unconstitutionally retroactive, we need not address

the State’s and the Property Owners’ remaining constitutional challenges to that same section.

See Tex. R. App. P. 47.1 (requiring appellate court to hand down “opinion that is as brief as

practicable but that addresses every issue raised and necessary to final disposition of the

appeal”).

B.     Property Owner’s Assembly Clause Claim

               The Property Owners assert that section 25-2-795 of the Austin City Code, which

bans types of conduct and assembly at short-term rental properties, violates the Texas

Constitution’s due-course-of-law provision. See Tex. Const. art. I, § 19 (due course of law);

Austin, Tex., Code § 25-2-795 (forbidding property owner or tenant from using short-term rental

for assemblies of any kind between 10pm and 7am and for outside assemblies of more than six

adults between 7am and 10pm; and banning more than six unrelated adults (or ten related adults)

from being present on the property at any time). The Texas Constitution provides: “No citizen of

this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19.

Similarly, the federal due-process clause provides: “No state shall make or enforce any law

which shall abridge the privileges or immunities of the citizens of the United States; nor shall

any State deprive any person of life, liberty, or property, without due process of law . . . .” U.S.

                                                24
Const. amend. XIV, § 1. While the Texas Constitution is textually different in that it refers to

“due course” rather than “due process,” Texas courts regard these terms as without substantive

distinction unless and until a party demonstrates otherwise. See University of Tex. Med. Sch. at

Hous. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (citing Mellinger v. City of Houston, 3 S.W.

249, 252–53 (Tex. 1887)). Under federal and state guarantees of due process, the government

may not infringe certain “fundamental” liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno

v. Flores, 507 U.S. 292, 301–02 (1993). The Property Owners contend that section 25-2-795 is

subject to this strict-scrutiny review because it infringes on and limits short-term rental tenants’

fundamental, constitutionally secured rights to freedom of assembly, association, movement, and

privacy. See id. We conclude that section 25-2-795 fails to pass muster under strict-scrutiny

review for violation of the Property Owners’ freedom of assembly. 5

       1.    The “Assembly” Clause

                Both the U.S. and Texas constitutions contain assembly clauses as follows,

respectively:


                Congress shall make no law respecting an establishment of
                religion, or prohibiting the free exercise thereof; or abridging the
                freedom of speech, or of the press; or the right of the people
                peaceably to assemble, and to petition the Government for a
                redress of grievances.


U.S. Const. amend. I.




       5     We therefore do not address the Property Owners’ remaining challenges to this
provision.
                                                25
               The citizens shall have the right, in a peaceable manner, to
               assemble together for their common good; and apply to those
               invested with the powers of government for redress of grievances
               or other purposes, by petition, address or remonstrance.


Tex. Const. art. 1, § 27. The Texas assembly clause differs from its federal counterpart in that it

includes a “common good” requirement. The First Congress of 1789 considered including a

requirement that the assembly be for “the” or “their” “common good”—e.g., James Madison

offered “The people shall not be restrained from peaceably assembling and consulting for their

common good.”—but it ultimately rejected such text. See John D. Inazu, Liberty’s Refuge: The

Forgotten Freedom of Assembly 22 (2012) (citing The Complete Bill of Rights: The Drafts,

Debates, Sources, and Origins 140 (Neil H. Cogan ed., 1997)).

       2. History of the Federal Assembly Clause

               In the nineteenth century, the United States Supreme Court concluded that the

First Amendment did not protect the right to assemble unless “the purpose of the assembly was

to petition the government for a redress of grievances.” Presser v. Illinois, 116 U.S. 252, 267

(1886) (relying on dicta in United States v. Cruikshank, 92 U.S. 542 (1875)). Presser is the only

Supreme Court opinion that has limited the right of assembly in this way, and commentators

suggest that the limitation was the result of a judicial misreading of the text of the First

Amendment’s assembly language. See Inazu, at 22. Otherwise, the right to assemble featured

prominently in the Supreme Court’s First Amendment jurisprudence.            For example, in his

concurrence in Whitney v. California, Justice Brandeis treated free speech and assembly rights as

coequal for the purposes of First Amendment analysis:


               Those who won our independence . . . believed that freedom to
               think as you will and to speak as you think are means

                                                26
               indispensable to the discovery and spread of political truth; that
               without free speech and assembly discussion would be futile; that
               with them, discussion affords ordinarily adequate protection
               against the dissemination of noxious doctrine; that the greatest
               menace to freedom is an inert people; that public discussion is a
               political duty; and that this should be a fundamental principle of
               the American government.


274 U.S. 357, 375 (1927) (Brandeis, J., concurring). Soon thereafter, the Assembly Clause was

incorporated against the states via the Due Process Clause of the Fourteenth Amendment. De

Jonge v. Oregon, 299 U.S. 353, 364 (1937). And in more than one hundred subsequent opinions,

the Court continued to recognize the assembly clause as a right related to, but nonetheless

independent from, free speech. See Inazu, 26, 50 (“The Court had linked these two freedoms

[speech and assembly] only once before; after Whitney, the nexus occurs in more than one

hundred of its opinions.”); see, e.g., Thomas v. Collins, 323 U.S. 516, 530 (1945) (“It was not by

accident or coincidence that the rights to freedom in speech and press were coupled in a single

guaranty with the rights of the people peaceably to assemble and to petition for redress of

grievances. All these, though not identical, are inseparable. They are cognate rights, and

therefore are united in the First Article’s assurance.” (citation omitted)).

               Commentators have indicated that the federal right to assemble has since fallen to

the wayside.    In the 1950s, the Supreme Court introduced an atextual right of the First

Amendment, the “freedom of association.” Nicholas S. Brod, Rethinking a Reinvigorated Right

to Assemble 63 Duke L. J. 155, 159 (2013) (citing e.g., American Commc’ns Ass’n v. Douds,

339 U.S. 382, 409 (1950)). At first, the “freedom of association” only sporadically replaced the

right to assemble. See id. at 159 (comparing Douds, 339 U.S. at 400 (“In essence, the problem is

one of weighing the probable effects of the statute upon the free exercise of the right of speech


                                                  27
and assembly . . . .”), with Douds, 339 U.S. at 409 (“[T]he effect of the statute in proscribing

beliefs—like its effect in restraining speech or freedom of association—must be carefully

weighed by the courts . . . .”)). But eventually the right to association generally displaced the

right to assemble. Id. (noting that Supreme Court has identified as “indispensable liberties” the

rights of “speech, press, [[and] association”) (quoting NAACP v. Alabama ex rel. Patterson,

357 U.S. 449, 461 (1958)). And, for better or worse, both assembly and association came to be

treated by the Supreme Court as secondary rights enabling speech rather than coequal rights

independent of speech. See id. (citing NAACP, 357 U.S. at 460 (“Effective advocacy of both

public and private points of view, particularly controversial ones, is undeniably enhanced by

group association, as this Court has more than once recognized by remarking upon the close

nexus between the freedoms of speech and assembly.”)).

              Nevertheless, the United States Supreme Court case law continued to affirm the

independence and importance of the federal right to assemble. In Coates v. City of Cincinnati,

the high court considered an ordinance making it a criminal offense for “three or more persons to

assemble” on sidewalks “in a manner annoying to persons passing by.” 402 U.S. 611 (1971).

The Supreme Court held that the word “annoying” is unconstitutionally vague and that “[t]he

ordinance also violates the constitutional right of free assembly and association” because “[o]ur

decisions establish that mere public intolerance or animosity cannot be the basis for abridgement

of these constitutional freedoms.” Id. at 615. In support of its holding, the Supreme Court

quoted a municipal court decision striking down a similar ordinance:


              “Under the [ordinance provisions], arrests and prosecutions, as in
              the present instance, would have been effective as against Edmund
              Pendleton, Peyton Randolph, Richard Henry Lee, George Wythe,
              Patrick Henry, Thomas Jefferson, George Washington and others

                                               28
               for loitering and congregating in front of Raleigh Tavern on Duke
               of Gloucester Street in Williamsburg, Virginia, at any time during
               the summer of 1774 to the great annoyance of Governor Dunsmore
               and his colonial constables.”


Id. (quoting City of Toledo v. Sims, 169 N.E.2d 516, 520 (Toledo Mun. Ct. 1960)).

               In Richmond Newspapers, Inc. v. Virginia, the Supreme Court noted that “[f]rom

the outset, the right of assembly was regarded not only as an independent right but also as a

catalyst to augment the free exercise of the other First Amendment Rights with which it was

deliberately linked by the draftsmen.” 448 U.S. 555, 577 (1980). The Court also noted that the

First Congress debated whether there was a “need separately to assert the right of assembly

because it was subsumed in freedom of speech,” but that the motion to strike “assembly” was

defeated. Id. at n.13. The Supreme Court quoted Mr. Page of Virginia as asserting during the

debate:

               [A]t times “such rights have been opposed,” and that “people have
               . . . been prevented from assembling together on their lawful
               occasions”:

               “[T]herefore it is well to guard against such stretches of authority,
               by inserting the privilege in the declaration of rights. If the people
               could be deprived of the power of assembling under any pretext
               whatsoever, they might be deprived of every other privilege
               contained in the clause.”


Id. (quoting 1 Annals of Cong. 731 (1789)). Thus, notwithstanding some outside commentary,

the U.S. Supreme Court’s case law supports a vibrant and historically grounded constitutional

right to assemble.




                                                29
       3. Texas’s Right to Assemble

               In Texas, so far, the right to assemble has received little attention. The few cases

that involve assembly claims under Texas’s constitution recognize the existence and importance

of the right; however, as far as we have found, none address the scope of the right to assemble.

See, e.g., City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex. 1995) (holding that there is

no private right of action for damages arising under free speech and assembly sections of Texas

Constitution because “anything done in violation of [Texas’s bill of rights] is void”); Bell v. Hill,

74 S.W.2d 113, 119–20 (Tex. 1934) (recognizing that citizens’ right to form political

associations is protected by the U.S. Constitution’s First Amendment and by Texas

Constitution’s assembly clause); Faulk v. State, 608 S.W.2d 625, 630–31 (Tex. Crim. App.

1980) (holding that Texas’s riot statute did not violate right to assemble because it prohibited

participation in “unlawful” assembly); Ferguson v. State, 610 S.W.2d 468, 470 (Tex. Crim. App.

1979) (holding that Texas riot statute did not violate right to assemble because right is limited to

“peaceable assembly”); Young v. State, 776 S.W.2d 673, 679 (Tex. App.—Amarillo 1989, no

pet.) (noting that state’s ability to prohibit assemblies “must be limited in nature, be strictly

construed, and must concern only assemblies . . . which, beyond cavil, threaten public peace and

well being,” and holding that Texas’s organized-crime statute did not violate right to assemble

because that right protects “the right of association for peaceful purpose” and organized-crime

statute prohibits conduct that harms or disrupts the common good).

               Possibly accounting for the lack of assembly-clause cases in Texas, the Texas

Supreme Court has adopted the judicially created “right of association” as a right that is

“instrumental to the First Amendment’s free speech, assembly, and petition guarantees.”

Osterberg v. Peca, 12 S.W.3d 31, 46 (Tex. 2000). But, in contrast to the U.S. Supreme Court,

                                                 30
the Texas Supreme Court has never limited the application of Texas’s assembly clause to

situations where the purpose of the assembly was to petition the government for a redress of

grievances. See Presser, 116 U.S. at 267. Nor has the Texas Supreme Court expressly held, or

even considered whether, the judicially created “right of association” has subsumed the text of

Texas’s assembly clause, as some commentators have indicated has occurred with the federal

assembly clause. We therefore rely on the plain text of the Texas Constitution to conclude that

its assembly clause is not limited to protecting only petition-related assemblies and the judicially

created “right of association” does not subsume the Texas Constitution’s assembly clause in its

entirety.

               Our conclusion is also supported by significant textual differences in the two

assembly clauses. First, the Texas Constitution grants an affirmative right to its citizens: “The

citizens shall have the right . . . .” Tex. Const. art. I, § 27. The federal constitution, on the other

hand, is prohibitive: “Congress shall make no law . . . .” U.S. Const. amend. I. Further, unlike

the First Amendment’s grouping of rights regarding religion, speech, the press, assembly, and

petition, see id., the Texas Constitution separates these and other rights across several sections in

its Bill of Rights. See Tex. Const. art. I, §§ 1–34 (“Bill of Rights”). And while the grammatical

structure of the First Amendment arguably tethers the right to assemble to the right to petition,

Texas’s assembly clause plainly creates two distinct rights by using a semicolon to separate the

right to assemble from the right to petition: “The citizens shall have the right, in a peaceable

manner, to assemble together for their common good; and apply to those invested with the

powers of government for redress of grievances or other purposes, by petition, address or

remonstrance.” Tex. Const. art. I, § 27; see U.S. Const. amend. I (prohibiting the abridgment of

“the right of the people peaceably to assemble, and to petition the Government for a redress of

                                                  31
grievances”); Cruikshank, 92 U.S. at 552 (concluding that First Amendment protected “‘the right

of the people to assemble and to petition the government for a redress of grievances’”

(misquoting U.S. Const. amend. I)); Jason Mazzone, Freedom’s Associations, 77 Wash. L. Rev.

639, 713 (2002) (arguing that grammatical structure of First Amendment means that assembly

right can be exercised only insofar as it is used to petition the government); cf. Inazu, at 23

(criticizing Mazzone and arguing “the comma preceding the phrase ‘and to petition’ is residual

from the earlier text that had described the ‘right of the people peaceably to assemble and consult

for their common good, and to petition the government for a redress of grievances’”).

               But what rights does the Texas assembly clause grant? Using the common and

ordinary meaning of the text of the clause, it affirmatively grants the right to “meet together” or

“to congregate” for “their” “shared or joint” “welfare or benefit.” American Heritage Dictionary

of the English Language 107, 372, 757 (5th ed. 2011) (defining “assemble,” “common,” and

“good” respectively); Assemble, The Compact Edition of the Oxford English Dictionary (1994)

(establishing that since at least the fourteenth century, “assemble” has meant “to come together

into one place or company, to gather together, congregate, meet”); see Assembly, The Compact

Edition of the Oxford English Dictionary (establishing that since at least the sixteenth century,

“assembly” has included “gathering of persons for purposes of social entertainment”); see also

Bouillion, 896 S.W.2d at 148 (“To interpret [the Texas] Constitution, we give effect to its plain

language. We presume the language of the Constitution was carefully selected, and we interpret

words as they are generally understood.”). The use of “their” versus “the” to modify “common

good” implies that the assembly must be for the common good of the citizens who assemble

rather than the common good of the state. See American Heritage Dictionary at 1803–04



                                                32
(defining “the” and “their” respectively); Inazu, at 22–23. 6 In other words, under the plain

language of the Texas Constitution, citizens have the right to physically congregate, in a

peaceable manner, for their shared welfare or benefit.

               We must also determine whether the right granted in the Texas assembly clause is

fundamental. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that due-process

clause “provides heightened protection against government interference with certain fundamental

rights and liberty interests”); Reno, 507 U.S. at 301–02 (noting that U.S. Constitution’s

substantive due-process guarantee “forbids the government to infringe certain ‘fundamental’

liberty interests at all, no matter what process is provided, unless the infringement is narrowly

tailored to serve a compelling state interest”). The Due Process Clause “specially protects those

fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history

and tradition,’” Washington, 521 U.S. 720–21 (citing Moore v. East Cleveland, 431 U.S. 494,

503 (1977), and Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)), and “implicit in the concept

of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,”

Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937); Spring Branch I.S.D. v. Stamos, 695

S.W.3d 556, 560 (Tex. 1985) (“Fundamental rights have their genesis in the express and implied

protections of personal liberty recognized in federal and state constitutions.”).


       6  The dissent argues that the Assembly Clause’s use of the word “citizen” limits the right
to matters of public discourse. See post at 11. But the word “citizen,” as it is used in this clause
and in thirteen other clauses of the Texas Constitution, simply describes the class of persons to
whom the right applies; it does not delineate the substantive scope of the right itself. See Tex.
Const. art I, §§ 19 (due course of law), 20 (outlawry), 23 (right to bear arms), 25 (quartering of
soldiers), 27 (assembly and petition); art. 3, §§ 6–7 (qualifications for senators and
representatives), 49-b (veterans’ land board); art. 4, § 4 (qualifications for governor); art. 5, §§ 1-
a (state commission on judicial conduct), 2, 7 (qualifications for judiciary); art. 5, § 2 (voter
qualification); art. 9, § 9 (hospital districts); American Heritage Dictionary at 339 (defining
“citizen” as “person owing loyalty to and entitled . . . to the protection of a state or nation”).
                                                  33
               The Texas Constitution’s Bill of Rights, as discussed above, expressly recognizes

and protects the right of assembly. It also provides, “To guard against transgressions of the high

powers herein delegated, we declare that everything in this ‘Bill of Rights’ is excepted out of the

general powers of government, and shall forever remain inviolate, and all laws contrary

thereto . . . shall be void.” Tex. Const. art. I, § 29. Relying on section 29, the Texas Supreme

Court has held:


               The privileges guaranteed by the Bill of Rights, however, cannot
               be destroyed by legislation under the guise of police control.
               Wherever the Constitution makes a declaration of political
               privileges or rights or powers to be exercised by the people or the
               individual, it is placed beyond legislative control or interference, as
               much so as if the instrument had expressly declared that the
               individual citizen should not be deprived of those powers,
               privileges, and rights: and the Legislature is powerless to deprive
               him of those powers and privileges.


Bell, 74 S.W.2d at 120 (holding that First Amendment and Texas’s assembly clause protect right

to form political associations); cf. Douds, 339 U.S. at 399 (“The high place in which the right to

speak, think, and assemble as you will was held by the Framers of the Bill of Rights and is held

today by those who value liberty both as a means and an end indicates the solicitude with which

we must view any assertion of personal freedoms.”). Similarly, the Texas Supreme court has

held that other rights found in the Texas Bill of Rights are fundamental rights for purposes of

constitutional analysis. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371,

375 (Tex. 1998) (orig. proceeding) (“Freedom of association for the purpose of advancing ideas

and airing grievances is a fundamental liberty guaranteed by the First Amendment.”) (citing

NAACP, 357 U.S. at 460); Stamos, 695 S.W.2d at 560 (noting that “right to free speech [and]

free exercise of religion . . . have long been recognized as fundamental rights under our state and

                                                 34
federal constitutions”).   And the United States Supreme Court has explicitly described the

peaceable right to assemble, along with other First Amendment rights, as a fundamental right:


               The very purpose of a Bill of Rights was to withdraw certain
               subjects from the vicissitudes of political controversy, to place
               them beyond the reach of majorities and officials and to establish
               them as legal principles to be applied by the courts. One’s right to
               life, liberty, and property, to free speech, a free press, freedom of
               worship and assembly, and other fundamental rights may not be
               submitted to vote; they depend on the outcome of no elections.


West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added); see De

Jonge, 299 U.S. at 364 (“The right of peaceable assembly is a right cognate to those of free

speech and free press and is equally fundamental.”); Whitney, 274 U.S. at 375–76 (J. Brandeis,

concurring) (“But, although the rights of free speech and assembly are fundamental, they are not

in their nature absolute. Their exercise is subject to restriction, if the particular restriction

proposed is required in order to protect the state from destruction or from serious injury,

political, economic or moral.”).

               Based on its prominence in the Texas Bill of Rights, its history in the founding of

our country, and its early, and still valid, treatment by the U.S. Supreme Court, we hold that the

right to assemble granted by the Texas Constitution is a fundamental right. 7


       7   The dissent suggests that we have overstepped our role as an intermediate court “by
declaring a fundamental right to congregate without fully analyzing peaceableness or the
advocacy of a matter of public welfare.” See post at 16. But the fact that we have rejected the
dissent’s view that the Texas Assembly Clause is limited to advocacy of a matter of public
welfare does not mean that we have not taken that argument into account—to the contrary, we
address the matter at length. And we note that even if Texas’ assembly clause is so limited, the
City’s ordinance bans assemblies without regard to their content or purpose. We likewise
acknowledge that non-peaceable assemblies are not protected by the Assembly Clause, but the
City’s short-term rental ordinance forbids assemblies whether peaceable or not. Finally, the
dissent states that we should leave the determination of fundamental rights to Texas’s high courts
                                                35
       4.   Texas’s Right to Assemble and the City of Austin’s Ordinances

               What is at stake, then, is the authority of the City, through its ordinances, to

prohibit or restrict the peaceable assembly of citizens on private property with respect to the

purpose, time, and number of people. The Property Owners here argue that review of the alleged

violation of their fundamental right to assemble by Austin’s City Code must be examined under

strict scrutiny. We agree.

               Section 25-2-795 of Austin’s short-term rental regulations provides that:


               (B)     Unless a stricter limit applies, not more than two adults per
               bedroom plus two additional adults may be present in a short-term
               rental between 10:00 p.m. and 7:00 a.m.

               (C)     A short-term rental is presumed to have two bedrooms,
               except as otherwise determined through an inspection approved by
               the director.

               (D)     A licensee or guest may not use or allow another to use a
               short-term rental for an assembly between 10:00 p.m. and 7:00
               a.m.

               (E)     A licensee or guest may not use or allow another to use a
               short-term rental for an outside assembly of more than six adults
               between 7:00 a.m. and 10:00 p.m.

               (F)     For purposes of this section, an assembly includes a
               wedding, bachelor or bachelorette party, concert, sponsored event,
               or any similar group activity other than sleeping. 8

because doing so is “a novel and big step into [a] weighty area.” Post at 16. But our duty as a
court requires us to address those matters that are properly before us, including the identification
and protection of fundamental constitutional rights. See Tex. R. App. P. 47.1 (requiring
appellate courts to “hand down a written opinion that . . . addresses every issue raised and
necessary to final disposition”); Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015) (“The
identification and protection of fundamental rights is an enduring part of the judicial duty to
interpret the Constitution.”).
       8   Because the word “including” is a term of enlargement and not of limitation or
exclusive enumeration, the ordinance applies to assemblies other than “wedding, bachelor or
bachelorette party, concert, sponsored event, or any similar group activity.” See Republic Ins.
                                                36
                 (G)    A short-term rental use may not be used by more than:

                        (1) ten adults at one time, unless a stricter limit applies; or
                        (2) six unrelated adults.


Austin, Tex., Code, § 25-2-795 (emphases added). This section plainly restricts the right to

assemble and does so without regard to the peaceableness or content of the assembly—as

emphasized above, the word “assembly” is used to describe what is being banned or severely

restricted temporally, quantitatively, and qualitatively. Even if it the ordinance did not expressly

use the word “assembly,” section 25-2-795 represents a significant abridgment of the

fundamental right to peaceably assemble—i.e., to get together or congregate peacefully. It

forbids owners (i.e., “licensees” in the ordinance) and tenants from gathering outdoors with more

than six persons, at any time of day, even if the property is licensed for occupancy of six or

more. And it prohibits use by two or more persons for any activity “other than sleeping” after

10:00 p.m. Id.

                 Moreover, in contrast to traditional cases that invoke the right to assemble on

public property, here the right concerns the freedom to assemble with the permission of the

owner on private property, implicating both property and privacy rights. 9 Cf. Members of City


Co. v. Silverton Elevators Inc., 493 S.W.2d 748, 752 (Tex. 1973) (reasoning that it is a “well
settled rule that the words ‘include,’ ‘including,’ and ‘shall include’ are generally employed as
terms of enlargement rather than limitation or restriction”).
       9   Because we conclude that section 25-2-795 violates the constitutional right to
assemble, we do not reach the challenges based on the constitutional rights of association,
movement, and privacy. But here privacy rights are implicated in our right-of-assembly analysis.
The Texas Constitution “guarantee[s] the sanctity of the individual’s home and person against
unreasonable intrusion.” Texas State Emps. Union, 746 S.W.2d at 205; see Tex. Const., art. I.
§§ 9 (prohibiting unreasonable searches and seizures), 25 (prohibiting quartering of soldiers in
houses). State and federal courts have consistently held that the right to privacy within the home
extends to temporary lodging, including hotels, motels, and boarding houses. See, e.g.,
                                                  37
Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 811 (1984) (“So here, the validity

of the esthetic interest in the elimination of signs on public property is not compromised by

failing to extend the ban to private property. The private citizen’s interest in controlling the use

of his own property justifies the disparate treatment.”); Stanley v. Georgia, 394 U.S. 557, 565

(1969) (“Whatever may be the justifications for other statutes regulating obscenity, we do not

think they reach into the privacy of one’s own home. If the First Amendment means anything, it

means that a State has no business telling a man, sitting alone in his own house, what books he

may read or what films he may watch.”); Texas State Emps. Union, 746 S.W.2d at 205 (“While

the Texas Constitution contains no express guarantee of a right of privacy, it contains several

provisions similar to those in the United States Constitution that have been recognized as

implicitly creating protected ‘zones of privacy.’”); Koppolow Dev. Inc. v. City of San Antonio,

399 S.W.3d 532, 535 (Tex. 2013) (“One of the most important purposes of our government is to

protect private property rights.”); Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921) (“To

secure their property was one of the great ends for which men entered into society. The right to



Minnesota v. Olson, 495 U.S. 91, 96–97 (l990) (holding that overnight guest had expectation of
privacy); Stoner v. California, 376 U.S. 483, 490 (1964) (concluding that “a guest in a hotel
room is entitled to constitutional protection against unreasonable searches and seizures”); State v.
Rendon, 477 S.W.3d 805. 810–11 (Tex. Crim. App. 2015) (noting that Fourth Amendment
protections against warrantless searches extend to “other dwelling place, including apartment”);
Luna v. State, 268 S. W.3d 594, 603 (Tex. Crim. App. 2008) (“An ‘overnight guest’ has a
legitimate expectation of privacy in his host’s home.”). Included in the right to privacy is the
right to be free from “government action that is intrusive or invasive.” City of Sherman v. Henry,
928 S. W.2d 464. 468 (Tex. 1996). A violation of this privacy interest turns not on the conduct
undertaken by the individual, but on whether the “government impermissibly intruded on [his]
right to be let alone,” as the Property Owners allege here. Id. As the city concedes, enforcement
of section 25-2-795 requires visual monitoring by the City or its agents of private activities to
detect whether the property owners or tenants are violating the restrictions on how many people
are in a bedroom or whether there is a prohibited assembly. See Austin. Tex., Code § 25-2-792
(requiring City to notify neighbors in writing of short-term rental’s operation and to provide
contact information to report any violations).
                                                38
acquire and own property, and to deal with it and use it as the owner chooses, so long as the use

harms nobody, is a natural right. It does not owe its origin to constitutions. It existed before

them. It is a part of the citizen’s natural liberty—an expression of his freedom, guaranteed as

inviolate by every American Bill of Rights.”).

               Surely the right to assemble is just as strong, if not stronger, when it is exercised

on private property with the permission of the owner, thereby creating a nexus with property and

privacy rights. Cf. Jones v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (“First Amendment

protections, furthermore, are especially strong where an individual engages in speech activity

from his or her own private property.” (citing City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994)).

But if Thomas Jefferson, Patrick Henry, and other revolutionary patriots had lived in this modern

day and chosen a short-term rental instead of the Raleigh Tavern—as they may well have given

the nature of modern society—to assemble and discuss concepts of freedom and liberty, the City

of Austin’s ordinance would impose burdensome and significant restrictions on their abilities to

do so. The City of Austin’s restriction of this fundamental right to physically congregate on

private property, in a peaceable manner, for the citizens’ shared welfare or benefit requires strict

scrutiny.   See Washington, 521 U.S. at 720 (explaining that due-process clause “provides

heightened protection against government interference with certain fundamental rights and

liberty interests”); Reno, 507 U.S. at 301–02 (same); cf. Barnette, 319 U.S. at 639 (“The right of

a State to regulate, for example, a public utility may well include, so far as the due process test is

concerned, power to impose all of the restrictions which a legislature may have a ‘rational basis’

for adopting. But freedoms of speech and of press, of assembly, and of worship may not be

infringed on such slender grounds.”); De Jonge, 299 U.S. at 365 (“If the persons assembling

have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the

                                                 39
public peace and order, they may be prosecuted for their conspiracy or other violation of valid

laws. But it is a different matter when the State, instead of prosecuting them for such offenses,

seizes upon mere participation in a peaceable assembly and a lawful public discussion as the

basis for a criminal charge.”).

               We do not suggest that the City of Austin is powerless to regulate short-term

rentals or to address the possible negative effects of short-term rentals—in fact, it already does so

with various nuisance ordinances.        See, e.g., Austin, Tex., Code §§ 9-2-1–9-2-65 (noise

ordinance), 9-4-15 (prohibiting public urination and defecation), 10-5-42–10-5-45 (littering

ordinance), 12-5-1–12-2-44 (parking ordinance); see also Tex. Penal Code §§ 42.01 (disorderly

conduct), 49.02 (public intoxication). But here the City has not identified a compelling interest

that might justify section 25-2-795’s restrictions on the right to peaceably assemble on private

property.   See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 71 (1981) (“[W]hen the

government intrudes on one of the liberties protected by the Due Process Clause of the

Fourteenth Amendment, ‘this Court must examine carefully the importance of the governmental

interests advanced and the extent to which they are served by the challenged regulation.’”

(quoting Moore, 431 U.S. at 499)). The City’s stated concerns in enacting this section were to

reduce the likelihood that short-term rentals would serve as raucous “party houses” in otherwise

quiet neighborhoods and to reduce possible strain on neighborhood infrastructure. These are

certainly valid concerns, but compelling interests in the constitutional sense are limited to

“‘interests of the highest order.’” Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d

338, 353 (2d Cir. 2007) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 546 (1993)). These interests may include, for example, reduction of crime, protection

of the physical and psychological well-being of minors, parental rights, protection of elections,

                                                 40
and tax collection. See, e.g., Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 763–64

(1994) (public safety and order); Burson v. Freeman, 504 U.S. 191, 198–99 (1992) (integrity of

elections); Ginsberg v. New York, 390 U.S. 629, 639–640 (1968) (protecting minors). Further,

the City must show a compelling interest in imposing the burden on the right to assemble in the

particular case at hand, not a compelling interest in general. See Westchester Day Sch., 504 F.3d

at 353 (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432

(2006)).

               The regulation of property use is not, in and of itself, a compelling interest. See

Barr v. City of Sinton, 295 S.W.3d 287, 305 (Tex. 2009). As the Texas Supreme Court has

explained, “Although the government’s interest in the public welfare in general, and in

preserving a common character of land areas and use in particular, is certainly legitimate when

properly motivated and appropriately directed . . . courts and litigants must focus on real and

serious burdens to neighboring properties” when determining whether a compelling interest is at

issue. Id. at 305–07; see Bell, 74 S.W.2d at 545 (noting that “police or governmental powers

may be exerted where the object of legislation is within the police power,” but “the privileges

guaranteed by the Bill of Rights . . . cannot be destroyed by legislation under the guise of police

control”). We must “not assume that zoning codes inherently serve a compelling interest, or that

every incremental gain to city revenue (in commercial zones), or incremental reduction of traffic

(in residential zones), is compelling.” Barr, 295 S.W.3d at 307. Here, the City has not provided

any evidence of a serious burden on neighboring properties sufficient to justify section 25-2-

795’s encroachment on owners’ and their tenants’ fundamental right to assemble on private

property.



                                                41
               Additionally, the City’s restrictions on the right to assemble would still fail strict

scrutiny because the ordinance is not narrowly tailored and can be achieved by less intrusive,

more reasonable means, such as enforcement of the already-existing ordinances regulating noise,

parking, building codes, and disorderly conduct that we discuss above in our analysis of the

State’s retroactivity claim. See Reno, 507 U.S. at 302 (substantive due process “forbids the

government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is

provided, unless the infringement is narrowly tailored to serve a compelling state interest”).

               In sum, we hold that section 25-2-795 infringes on short-term rental owners’ and

their tenants’ constitutionally secured right to assembly because it limits assembly on private

property without regard to the peacefulness of or reasons for the assembly. And because the

infringement of the fundamental right to assemble is not narrowly tailored to serve a compelling

government interest, it violates the Texas Constitution’s guarantee to due course of law. See id.

Accordingly, it was error for the district court to grant the City’s no-evidence motion for

summary judgment and to deny the Property Owners’ motion for summary judgment on the

Property Owners’ constitutional challenge to this provision.

C. Unreasonable Search and Seizure

               The Property Owners contend that another provision of the short-term rental

ordinance place owners and tenants of short-term rentals at risk of unconstitutional search and

seizure.   Specifically, they challenge the provision that added short-term rentals to the

enumerated list of types of property that officials must inspect “to ensure compliance with this

chapter and other applicable laws.” Austin, Tex., Code § 25-12-213(1301). That provision,

however, was modified to allow the licensee or occupant to deny the inspector’s entry and to

seek pre-search administrative review. See Austin, Tex., Ordinance No. 20171012-SPEC001

                                                42
(Oct. 12, 2017). Thus, although the parties have not briefed this Court on the repeal of the more

onerous inspection provisions, we take judicial notice of the ordinance repealing this section and

conclude this claim is now moot. See Tex. R. Evid. 204 (allowing judicial notice of municipal

law); Trulock v. City of Duncanville, 277 S.W.3d 920, 929 (Tex. App.—Dallas 2009, no pet.)

(dismissing case as moot where challenged provisions of ordinance had been repealed).


                                            Conclusion

               Because Austin City Code sections 25-2-795 (restricting assembly) and 25-2-950

(banning type-2 rentals) are unconstitutional, we reverse that part of the district court’s judgment

granting the City’s no-evidence motion for summary judgment and denying the Property

Owners’ and the State’s motions for summary judgment. We render judgment declaring sections

25-2-795 and 25-2-950 of the City Code void. We affirm the remainder of the judgment and

remand the case to the district court for further proceedings consistent with this opinion.



                                              __________________________________________
                                              Jeff Rose, Chief Justice


Before Chief Justice Rose, Justices Goodwin and Kelly
 Concurring and Dissenting Opinion by Justice Kelly

Affirmed in Part; Reversed and Rendered in Part; Remanded

Filed: November 27, 2019




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