Affirmed as Modified and Opinion filed December 17, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00283-CV

                     THE CITY OF ANAHUAC, Appellant
                                         V.
                         C. WAYNE MORRIS, Appellee

                    On Appeal from the 344th District Court
                          Chambers County, Texas
                       Trial Court Cause No. CV28119

                                   OPINION

      In this appeal from a declaratory judgment, we are asked to consider two
questions: (1) whether the trial court rendered an impermissible advisory opinion,
and (2) whether the trial court erred by using the law of preemption to invalidate
language from a city ordinance. We conclude that the trial court did not render an
advisory opinion, as there is a justiciable controversy presented in the case. We
further conclude that the trial court correctly applied the law of preemption, as the
city ordinance directly conflicts with an act of the state legislature. Because the
declaratory judgment is too broad, however, we modify the trial court’s judgment
and affirm it as modified.

                                      BACKGROUND

       The City of Anahuac adopted an ordinance that regulates the placement of
both mobile homes and manufactured homes.1 The full text of the ordinance
provides as follows:

       It shall be unlawful to locate or relocate any mobile home or
       manufactured home that does not meet Zone 3 or better specifications
       within the city limits. It shall be unlawful for any person to locate or
       relocate any manufactured home or mobile home complying with
       Zone 3 or better specifications within the city limits unless he or she
       holds a valid permit issued by the city in the name of that person for
       the specific location or relocation proposed.
Anahuac, Tex., Code of Ordinances § 152.15 (2013). Although the reference to
“Zone 3” is not defined in the City’s code of ordinances, the parties agree that the
reference pertains to the “Zone III” construction standards established by the
federal government and adopted by the state for regulation of manufactured homes.
These standards set the minimum requirements for manufactured homes situated in
areas classified as being in Wind Zone III. See 24 C.F.R. § 3280.305 (2013).

       In 2013, C. Wayne Morris transported a manufactured home into the City
and placed it on his property without a permit, in violation of the City’s ordinance.
The City informed Morris of the violation and requested that he immediately cease
all efforts to install the manufactured home. Morris sought the necessary permit,
which the City initially indicated it would grant. However, the City later

       1
         The terms “mobile home” and “manufactured home” generally refer to structures of the
same type, except that a mobile home is a structure constructed before June 15, 1976, whereas a
manufactured home is a structure constructed on or after that date. This distinction is codified in
both the state and local authorities involved in this case. See Tex. Occ. Code § 1201.003 (2012);
Anahuac, Tex., Code of Ordinances § 152.01 (2013).

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determined that there were unspecified deficiencies, which Morris was unable to
cure. Accordingly, the City did not issue Morris a permit.

      Morris sued the City, seeking a declaration that the ordinance is preempted.
Morris then moved for summary judgment. Although Morris cited to a federal act
pertaining to manufactured homes, including a federal preemption provision, his
motion proceeded primarily on the state law that implemented the federal act.
Morris argued that the City could not demand that his manufactured home meet
Zone III standards because the City was situated in Chambers County, which is
designated under state law as being in Wind Zone II, rather than Wind Zone III.
Morris also argued that even if the City could demand stricter standards, his
manufactured home fell within the scope of a grandfather clause, and thus, the City
could not enforce its ordinance against him.

      In response, the City asserted that Morris had not demonstrated that there
was a justiciable controversy because nothing in the record affirmatively
established either the standard under which his manufactured home was
constructed or the age of his manufactured home. The City also argued that the
trial court should deny Morris’s motion because the ordinance was a valid exercise
of the City’s police powers, and nothing in the state law prohibited the City from
regulating the types of manufactured homes allowed within its limits.

      The trial court ruled in favor of Morris and rendered a declaratory judgment
that stated as follows: “It is therefore ordered and declared that the language ‘Zone
3 or better specifications’ of [the ordinance] is invalid, illegal, and
unconstitutional.” The City timely appealed.




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                                    STANDING

      In its first issue, the City argues that the trial court rendered an
impermissible advisory opinion because no justiciable controversy was ever
presented in the case. We understand the City’s complaint to be that the trial court
lacked subject-matter jurisdiction over Morris’s suit because Morris did not
establish his standing to challenge the City’s ordinance. See Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (explaining that Texas
courts lack the jurisdiction to issue advisory opinions, and that advisory opinions
occur in cases brought by parties without standing).

      Standing is a constitutional prerequisite to maintaining suit in either federal
or state court. See Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Generally,
unless standing is conferred by statute, “a plaintiff must demonstrate that he or she
possesses an interest in a conflict distinct from that of the general public, such that
the defendant’s actions have caused the plaintiff some particular injury.” Id. The
issue of standing focuses on whether a party has a sufficient relationship with the
lawsuit so as to have a justiciable interest in its outcome. See Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). The general test for standing
requires (1) that there be a real controversy between the parties, and (2) that the
controversy will actually be determined by the judicial declaration sought. See
Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015). We review questions of
standing de novo. Id.

      The City contends that there is no evidence of the wind zone rating or age of
Morris’s manufactured home. Without such evidence, the City argues that there is
no justiciable controversy that would authorize the trial court to invalidate the
City’s ordinance.



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      In the affidavit attached to his motion, Morris testified that his manufactured
home was constructed in 1996. He also testified that the City denied his permit
application because his manufactured home violated the ordinance. Although
Morris did not affirmatively explain the nature of the violation, the only reasonable
inference that can be made is that his manufactured home did not comply with the
ordinance’s requirement of meeting “Zone 3 or better specifications.”

      The City’s refusal to issue a permit has resulted in a particular injury to
Morris. Without the permit, Morris cannot complete the installation of his
manufactured home. The City’s enforcement of the ordinance has accordingly
created a justiciable controversy, and Morris’s suit seeks to resolve that
controversy by asking whether the ordinance is enforceable. We conclude that
Morris had standing to bring his suit and the trial court had subject-matter
jurisdiction to render a non-advisory judgment that was binding on the parties. Cf.
Limon v. State, 947 S.W.2d 620, 624 (Tex. App.—Austin 1997, no pet.) (bar
owners had standing to challenge a bond requirement for obtaining a liquor license
after a state commission denied their applications for failing to post the bond).

                                  PREEMPTION

      In its second issue, the City argues that the trial court erred by granting
Morris’s declaratory judgment. The City contends that its ordinance is valid and
that Morris failed to establish that the ordinance was preempted by state law.

      We review declaratory judgments rendered by summary judgment under the
same standards that govern summary judgments generally. See Hourani v. Katzen,
305 S.W.3d 239, 248 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). The
trial court’s grant of a summary judgment is reviewed de novo. See Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). With a traditional
motion for summary judgment, the movant has the initial burden of showing that
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there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law. See Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. &
Tumor Ins. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). Once the
movant produces sufficient evidence conclusively establishing his right to
summary judgment, the burden shifts to the nonmovant to present any issues or
evidence that would preclude a summary judgment. See Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). We consider all of the evidence in the
light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts in the nonmovant’s favor. See Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      Morris’s preemption argument relies on section 1201.256 of the Texas
Occupations Code, and particularly subsection (c) of that statute, which provides as
follows: “A manufactured home constructed before September 1, 1997, may be
installed in a Wind Zone I or II county without restriction.” Because he presented
uncontroverted evidence that his manufactured home was constructed in 1996,
Morris argues that this statute allows him to move his manufactured home into the
City, which is located in a Wind Zone II county, regardless of the standards upon
which the manufactured home was constructed.

      The City disputes Morris’s reading of the statute. Emphasizing the
permissive understanding of the word “may,” the City argues that the statute
merely empowers a municipality to allow manufactured homes of a certain age and
quality into its jurisdiction, if the municipality so desires. In its view, the City still
has the authority to regulate manufactured homes covered by the statute if the
regulation is a valid exercise of its police power.

      We resolve questions of statutory interpretation de novo. See F.F.P.
Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Our

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primary objective when interpreting a statute is to ascertain and give effect to the
legislature’s intent. Id. Where the statutory text is clear, we presume that the words
chosen are the surest guide to legislative intent. See Presidio Indep. Sch. Dist. v.
Scott, 309 S.W.3d 927, 930 (Tex. 2010). Thus, we construe the statute according to
its plain and common meaning, unless the legislature’s contrary intention is
apparent from the context or such a construction would lead to absurd results. See
City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008); CHCA W.
Houston, L.P. v. Priester, 324 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.]
2010, no pet.).

      The meaning of subsection (c) is best understood when examined alongside
the subsections that immediately precede it. See City of Austin v. Sw. Bell
Telephone Co., 92 S.W.3d 434, 442 (Tex. 2002) (stating that statutory provisions
should be considered in relation to the act as a whole, rather than in isolation).
Subsections (a) through (c) of the statute provide as follows:

      (a) Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston,
      Jefferson, Kenedy, Kleberg, Matagorda, Nueces, Orange, Refugio,
      San Patricio, and Willacy counties are in Wind Zone II. All other
      counties are in Wind Zone I.
      (b) To be installed in a Wind Zone II county, a manufactured home
      constructed on or after September 1, 1997, must meet the Wind Zone
      II standards adopted by the United States Department of Housing and
      Urban Development.
      (c) A manufactured home constructed before September 1, 1997, may
      be installed in a Wind Zone I or II county without restriction.

Tex. Occ. Code § 1201.256 (2012).

      Under the plain language of these provisions, subsection (a) establishes
which counties in Texas are designated as being in Wind Zone II, and subsections
(b) and (c) regulate the types of manufactured homes that may be installed in such

                                          7
counties. The regulations in the latter two subsections are divided according to the
age of the manufactured home at issue. If the manufactured home was constructed
on or after September 1, 1997, then it must meet the minimum standards of Wind
Zone II to be installed in a Wind Zone II county. If, however, the manufactured
home was constructed before September 1, 1997, then it can be installed in a Wind
Zone II county “without restriction.” To give effect to this difference between the
two subsections, the phrase “without restriction” must be interpreted to mean that a
manufactured home constructed before September 1, 1997, is not required to have
been constructed according to a specific wind zone standard.

      There is no textual support in the statute for the City’s opposing argument
that the City retains the power to prohibit any manufactured home on the basis of
its construction standard, irrespective of age. Had the legislature intended to give
the City such broad regulatory authority, it could have done so expressly, much
like it has done in the case of mobile homes. In Section 1201.008, for instance, the
legislature plainly provided: “A municipality may prohibit the installation of a
mobile home for use as a dwelling in the municipality.” The legislature did not
give municipalities similar powers over manufactured homes, and we must
presume that the different treatment was intended to be deliberate.

      As a Type A general-law municipality, the City has the authority to adopt
any ordinance “that is necessary for the government, interest, welfare, or good
order of the municipality,” provided that the ordinance is “not inconsistent with
state law.” See Tex. Loc. Gov’t Code § 51.012 (2008). Here, the City’s ordinance
is inconsistent with Section 1201.256(c), which effectively functions as a
grandfather clause. The City cannot, in harmony with that provision, prohibit the
installation of all manufactured homes that fail to meet a certain construction
standard when the legislature has already determined that manufactured homes of a

                                         8
certain age, such as Morris’s, may be installed in Chambers County without regard
to their construction standard. Cf. Scurlock v. City of Lynn Haven, 858 F.2d 1521,
1525 (11th Cir. 1988) (city ordinance imposing a strict construction standard on
manufactured homes was preempted by a federal law that imposed a less stringent
standard).

      The City nevertheless argues that its ordinance is entitled to a presumption
of validity, which Morris has allegedly failed to overcome. The City bases this
argument on three cases showing that a municipality may, pursuant to its police
powers, impose regulations on manufactured homes that pertain to aesthetics and
the preservation of property values. See Schanzenbach v. Town of Opal, 706 F.3d
1269, 1275 (10th Cir. 2013) (upholding city ordinance in Wyoming banning the
installation of manufactured homes older than ten years at the time of the permit
application); Tex. Manufactured Hous. Ass’n v. City of Nederland, 101 F.3d 1095,
1100 (5th Cir. 1996) (upholding city ordinance in Texas prohibiting the placement
of “trailer coaches” on any city lot except in a “duly authorized trailer park”); City
of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982) (upholding city
ordinances in Texas regulating mobile home parks and the use of mobile homes
outside of a mobile home park). But in each of the three cases, the court
determined that there was no conflict between the local ordinance and an
applicable federal or state law.

      Here, however, there is a direct conflict between the City’s ordinance and
Section 1201.256(c). Even if the ordinance were adopted to protect the aesthetics
and property values of the community, the City’s use of its police powers cannot
supplant or take supremacy over a contrary act of the state legislature. See, e.g., S.
Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678–79 (Tex. 2013)
(city ordinance prohibiting a concrete crushing facility within 1,500 feet of a

                                          9
school was preempted by a state law setting the minimum distance at 1,320 feet);
see also City of Brookside Village, 633 S.W.2d at 792, 796 (showing that whether
an ordinance is a valid exercise of a municipality’s police power is a separate
question from whether the ordinance is preempted by state law).

      We conclude that Morris carried his burden of showing that the City’s
ordinance is preempted as to his manufactured home. Because the City raised no
issues or evidence that would defeat Morris’s preemption theory, Morris is entitled
to judgment as a matter of law.

      The trial court’s declaratory judgment is overbroad, however. Morris
challenged the ordinance on the basis that he owned an older model manufactured
home, which was covered by the grandfather clause in Section 1201.256(c). He did
not argue that his manufactured home was constructed on or after September 1,
1997, and built according to Wind Zone II standards, which would implicate
Section 1201.256(b). The declaratory judgment does not acknowledge this
distinction. Because the issue in this case is whether the ordinance conflicts with
Section 1201.256(c), the declaratory judgment is too broad and should be limited
accordingly. Therefore, we modify the trial court’s judgment to state that the City’s
ordinance is preempted and unenforceable as to a manufactured home constructed
before September 1, 1997. See Tex. R. App. P. 43.2(b).

                                  CONCLUSION

      The trial court’s declaratory judgment is affirmed as so modified.


                                       /s/    Tracy Christopher
                                              Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.

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