                                                                                                ACCEPTED
                                                                                            04-14-00781-CV
                                                                                FOURTH COURT OF APPEALS
                                                                                     SAN ANTONIO, TEXAS
                                                                                       6/24/2015 1:28:47 PM
                                                                                             KEITH HOTTLE
                                                                                                     CLERK




June 24, 2015                                                             FILED IN
                                                                   4th COURT OF APPEALS
                                                                    SAN ANTONIO, TEXAS
                                                                   06/24/2015 1:28:47 PM
                                                                       KEITH E. HOTTLE
The Honorable Fourth Court of Appeals                                       Clerk
Cadena-Reeves Justice Center
300 Dolorosa, Suite 3200
San Antonio, Texas 78205-3037

             SUBMITTED THROUGH E-FILING.

      RE: City of Shavano Park v. ARD MOR, Inc., No. 04-14-00781-CV;
          Texas Municipal League and Texas City Attorneys Association Letter
          of Amici Curiae in Support of the Respondent, City of Shavano Park


To the Honorable Court:

The Texas Municipal League (TML) is a non-profit association of over 1,100
incorporated cities. TML provides legislative, legal, and educational services to its
members. The Texas City Attorneys Association (TCAA), an affiliate of TML, is
an organization of over 500 attorneys who represent Texas cities and city officials
in the performance of their duties. Believing that the issue before this Court is of
great significance to all Texas cities, and specifically to those that are experiencing
renewed development, TML and TCAA respectfully submit this letter of amici
curiae in the above-referenced cause.1

The amici adopts the facts as stated in the Appellant’s brief on the merits.

Amici’s position, as is that of the City of Shavano Park, is that the trial court erred
in denying the City’s plea to the jurisdiction. Appellees have no standing to assert
a claim against the City, and there was no waiver of the City’s governmental
immunity.



1
  The author of this letter is a salaried employee of TML who has received no fee for the
preparation of the letter.
The restrictive covenants that Appellees are attempting to enforce are private
agreements between Lockhill and other landowners, such as the Appellees. The
City, however, is not a party to that restrictive covenant agreement, and could not
enforce the covenants. While the covenants make reference to city ordinances, this
was a choice made by the drafters of the agreements and has nothing to do with
any action by the City. The City did not apply the ordinances to the parties.
Furthermore, the Development Agreement between the City and Lockhill does not
give Lockhill the right to build a gas station. That right existed before the
Development Agreement with the city. Lockhill’s plan to build a gas station is
allegedly a violation of the restrictive covenants on the property, but the basis for
Appellees’ claim against the City is a purely private and separate agreement that
the City has no part in.

It would set an unfortunate precedent for third parties to be allowed to bring a
claim against the City on the tenuous grounds that a private agreement makes
mention of city ordinances or regulations. The city ordinances are only referenced
in the restrictive covenants between the parties. There is no meaningful connection
to the City, and no basis for suit, when the City is not a party to the restrictive
covenants and there is no City action. Also, the City has no way of preventing
third parties from referring to city ordinances in their private agreements. It would
be unfair for city taxpayers to bear the burden of unforeseeable, and frankly
unpreventable, legal conflicts.

The City also did not waive its governmental immunity under the Uniform
Declaratory Judgment Act. Immunity can be waived solely by the Texas
Legislature. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 409 (Tex. 1997),
superseded by statute on other grounds, TEX. GOV’T CODE §§ 2260.001 et seq., as
recognized in General Servs. Comm’n v. Little-Tex. Insulation Co., 39 S.W.3d 591
(Tex. 2001)(“[I]t is the Legislature’s sole province to waive or abrogate sovereign
immunity.”)

Why is it so important that a waiver of immunity be under the purview of the
Legislature? Certainty. Cities are formed for the purpose of managing the needs
of people who live and work in close quarters. Texas cities provide basic services,
including land use regulations, to protect their citizens and foster a better city
environment. Some cities, based on the demands of their citizens, enact very
stringent and complex regulations, while others do not.

Governmental immunity allows cities to perform these functions that benefit
citizens, free from the constant threat of defending lawsuits and paying judgments.
TNRCC v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). It is the need for certainty
that has led courts in Texas to long recognize that a waiver of governmental
immunity “must be clear and unambiguous.” Tooke v. City of Mexia, 197 S.W.3d
325, 333, n.2 (Tex. 2006) (TEX. GOV’T CODE § 311.034 (“In order to preserve the
legislature’s interest in managing state fiscal matters through the appropriations
process, a statute shall not be construed as a waiver of sovereign immunity unless
the waiver is effected by clear and unambiguous language.”).

The UDJA waives a City’s immunity when an ordinance is invalid. This was not
the case here—the ordinance passed by the City of Shavano Park was proper under
section 43.028 of the Texas Local Government Code and the Texas Constitution.
Therefore, Appellees do not have standing to bring a claim under the UDJA.

Each city needs certainty in knowing when it may be subjected to litigation or a
contractual relationship. Allowing a city to be contractually obligated to a private
party through no action of its own – only mention of city ordinances in restrictive
covenants – destroys this certainty for all cities. TML and TCAA as amici curiae,
respectfully submit this letter and request this Court to grant Appellant’s plea to the
jurisdiction and dismiss this case.


Respectfully Submitted,

/s/ Laura Mueller
Laura Mueller
Assistant General Counsel
Texas Municipal League
1821 Rutherford Lane, Suite 400
Austin, Texas 78754-5128
(512) 231-7400
(512) 231-7490 facsimile
laura@tml.org
State Bar No. 24046076
Attorney for Amici Curiae
Texas Municipal League
Texas City Attorneys Association
                       CERTIFICATE OF COMPLIANCE

In compliance with Rule 9.4 of the Texas Rules of Appellate Procedure, this is to
certify that this Brief of Amici Curiae contains 1,148 words and has been prepared
in a conventional typeface of 14-point font in the text.

/s/ Laura Mueller
Laura Mueller


                           CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this letter has been served upon the
below named individuals on June 24, 2015, as required.

Jay K. Farwell
Cokinos Bosien & Young
10999 West IH10, Suite 800
San Antonio, Texas 78230
210.293.8733 fax
jfarwell@cbylaw.com

Karen L. Landinger
Cokinos Bosien & Young
10999 West IH10, Suite 800
San Antonio, Texas 78230
210.293.8733 fax
klandinger@cbylaw.com

David L. Earl
EARL & ASSOCIATES, P.C.
Pyramid Building
601 NW Loop 410, Suite 390
San Antonio, Texas 78216
210.222.9100 fax
dearl@earl-law.com

John C. Chunn
Attorney At Law
P.O. Box 396
Hondo, Texas 78861
john@johnchunnlaw.com

Luke H. Beshara
Pulman Cappuccio Pullen Benson & Jones, LLP
2161 NW Military, Suite 400
San Antonio, Texas 78213
lbeshara@pulmanlaw.com

Patrick C. Bernal
Elizabeth M. Provencio
DENTON NAVARRO ROCHA BERNAL HYDE & ZECH
A Professional Corporation
2517 N. Main Avenue
San Antonio, Texas 78212
(210) 227-3243 (Office)
(210) 225-4481 (Fax)
patrick.bernal@rampage-sa.com
elizabeth.provencio@rampage-sa.com

/s/ Laura Mueller
Laura Mueller
