                                                                                        ACCEPTED
                                                                                    04-14-00651-CV
                                                                        FOURTH COURT OF APPEALS
                                                                             SAN ANTONIO, TEXAS
                                                                             10/12/2015 10:31:16 AM
                                                                                     KEITH HOTTLE
                                                                                             CLERK

                             NO. 04-14-00651-CV

                                                                   FILED IN
                     IN THE COURT OF APPEALS     4th COURT OF APPEALS
                 FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS
                        SAN ANTONIO, TEXAS      10/12/2015 10:31:16 AM
                                                             KEITH E. HOTTLE
                                                                  Clerk

            PHILIP WAYNE HINDES AND MELINDA HINDES EUSTACE,
                                                     Appellants,
                                     V.

   LA SALLE COUNTY, TEXAS, HON. JOEL RODRIGUEZ, JR., IN HIS OFFICIAL
CAPACITY AS COUNTY JUDGE, LA SALLE COUNTY, TEXAS AND HON. RAUL AYALA,
           IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER,
                  PRECINCT 4, LA SALLE COUNTY, TEXAS,
                                                      Appellees.

     ON APPEAL FROM THE 81ST DISTRICT COURT, LA SALLE COUNTY, TEXAS
                  HONORABLE DICK ALCALA PRESIDING
                     CAUSE NO. 12-09-00179-CVL


              APPELLANTS’ MOTION FOR REHEARING

THE RANGEL LAW FIRM, P.C.                 HOUSTON DUNN, PLLC
Jorge C. Rangel                           Samuel V. Houston, III
State Bar No. 16543500                    State Bar No. 24041135
Jaime S. Rangel                           4040 Broadway, Suite 440
State Bar No. 24033759                    San Antonio, Texas 78209
615 N. Upper Broadway, Suite 2020         (210) 775-0882 – Telephone
Corpus Christi, Texas 78401               (210) 826-0075 – Fax
(361) 883-8500 – Telephone                sam@hdappeals.com
(361) 883-2611 – Fax                      UHL, FITZSIMONS, JEWETT & BURTON, PLLC
Jorge.C.Rangel@rangellaw.com              J. Byron “Trace” Burton, III
jaime.rangel@rangellaw.com                State Bar No. 24031776
                                          Ezra A. Johnson
                                          State Bar No. 24065499
                                          4040 Broadway, Suite 430
                                          San Antonio, Texas 78209
                                          (210) 829-1660 – Telephone
                                          (210) 829-1641 – Fax
                                          tburton@ufjblaw.com
                                          ejohnson@ufjblaw.com



                    ATTORNEYS FOR APPELLANTS
                                   TABLE OF CONTENTS
                                                                                              Page
TABLE OF CONTENTS .................................................................................. i
TABLE OF AUTHORITIES ........................................................................... ii
ARGUMENT.................................................................................................. 1
        I.      The Panel Must Address the Jurisdictional Conflict Between the
                District Court and the La Salle County Commissioners Court. .. 1
                A.      The panel does not reach the jurisdictional arguments
                        because it too narrowly construes the Hindes’
                        pleadings. .......................................................................... 2
                B.      A claim challenging the La Salle County Defendants’
                        consideration of the Chapter 251 application is ripe. ........ 4
        II.     The Record Affirmatively Demonstrates That Injury Is
                Imminent. ................................................................................... 5
        III.    Conclusion and Prayer................................................................ 6
CERTIFICATE OF COMPLIANCE ................................................................ 9
CERTIFICATE OF SERVICE......................................................................... 9
                               TABLE OF AUTHORITIES

                                                                                               Page
CASES
Hindes v. La Salle Cnty., Tex.,
 No. 04-14-00651-CV, 2015 WL 5037033
 (Tex. App.—San Antonio Aug. 26, 2015, no pet. h.) (mem. op.) ......... 1, 4, 5
Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955) ....................................... 2
Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..... 2
Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) .................... 4

STATUTES
TEX. TRANSP. CODE § 251.053 ......................................................................... 2




                                                  ii
TO THE HONORABLE FOURTH COURT OF APPEALS:

      Appellants Philip Wayne Hindes and Melinda Hindes Eustace

(collectively “the Hindes”) respectfully present this motion for rehearing

requesting that the panel issue a new opinion and judgment reversing the trial

court’s order granting the La Salle County Defendants’ First Amended Plea to

the Jurisdiction.1

                                    ARGUMENT

I.    The Panel Must Address the Jurisdictional Conflict Between
      the District Court and the La Salle County Commissioners
      Court.
      In resolving an appeal, the panel must issue an opinion “that addresses

every issue raised and necessary to final disposition of the appeal.” TEX. R.

APP. P. 47.1. The panel concludes that it did not need to reach the Hindes’

jurisdictional arguments challenging the La Salle County Defendants’ ability

even to consider the Chapter 251 application. Hindes v. La Salle Cnty., Tex.,

No. 04-14-00651-CV, 2015 WL 5037033, at *4 (Tex. App.—San Antonio Aug.

26, 2015, no pet. h.) (mem. op.). But jurisdiction was briefed at length by the

parties, and it should have been addressed in the opinion.




1
 The appellees are referred to collectively as “the La Salle County Defendants” throughout
this motion.

                                            1
      A.    The panel does not reach the jurisdictional arguments
            because it too narrowly construes the Hindes’ pleadings.
      When a plaintiff’s pleadings are challenged in a plea to the jurisdiction,

which is what occurred in this appeal, the standard of review requires the

court of appeals to liberally construe the pleadings in the plaintiff’s favor and

look to his intent. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). Despite this standard, the panel limits its analysis of the

Hindes’s pleadings. The resulting opinion does not recognize the different

factual bases for the claims against the La Salle County Defendants. In that

connection, the theory underlying the claims against the La Salle County

Defendants is primarily two-fold.

      First, the La Salle County Defendants could not have accepted the

Chapter 251 application because it was deficient on its face. CR 302-03.

Namely, the Townsends’ application did not address the statutory element of

“necessity.” CR 303 (citing Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955);

TEX. TRANSP. CODE § 251.053). Indeed, the Hindes asserted that the

Townsends could never show the requisite statutory “necessity” because that

issue had already been judicially determined by summary judgment in the

Hindes’ favor. CR 303; see also CR 240.

      Second, the La Salle County Defendants could not consider the

application in the first place. The La Salle County Defendants were prohibited

from doing so because the trial court had dominant, continuing jurisdiction

over disputes involving the Hindes Road. CR 303. Additionally, any attempt


                                       2
by the commissioners court to make rulings with respect to the Hindes Road

would necessarily interfere with the trial court’s ongoing jurisdiction. CR 303.

Any resulting order contrary to the trial court’s orders would be an

impermissible collateral attack. CR 303. 2

      To the extent that the Hindes challenged the commissioners court’s

ability to consider the application, the La Salle County Defendants sought

dismissal of that portion of the claim because it violated the separation of

powers doctrine. CR 323. In response, the Hindes asserted that the reliance

upon the separation of powers doctrine was misplaced because (1) district

courts are granted supervisory jurisdiction over commissioners courts; (2) a

commissioners court is not performing a legislative function when considering

a Chapter 251 application; and (3) principles of dominant jurisdiction do not

permit a commissioners court to interfere with a district court’s ongoing

jurisdiction. Br. of Appellants 11-16; Reply Br. of Appellants 2-5.

      Despite extensive briefing by the parties, which is incorporated by

reference herein, the panel’s opinion does not address the parties’

jurisdictional arguments. As a result, the panel should grant the motion for

rehearing to address all issues presented by the appeal.




2
 The Hindes also asserted that these actions by the La Salle County Defendants were ultra
vires. CR 303.


                                           3
      B.    A claim challenging the La Salle County Defendants’
            consideration of the Chapter 251 application is ripe.
      The Court never reaches the second theory, concluding only that the

Hindes’s claims are not ripe because no final action had been taken on the

Chapter 251 application. Hindes, 2015 WL 5037033, at *3-4. But a claim

challenging the La Salle County Defendants’ ability even to consider the

application is factually distinct, and it is ripe.

      A claim is ripe when an injury has occurred or is likely to occur. Waco

Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000). It is undisputed

that the La Salle County Defendants have accepted and considered the

application, even going so far as to declare a “public interest” in the road. CR

302-03, 357, 378-79, 398, 421-22. Not only do the Hindes assert that the La

Salle County Defendants lack the power to consider the application, but their

consideration and action on the application has caused direct injury to the

Hindes.

      The La Salle County Defendants’ declaration of a public interest, which

is product of their consideration of the application, caused the Hindes to suffer

injury. This action lead the underlying plaintiffs, the Townsends, and their

agents and invitees to use the Hindes Road. See CR 253. The Townsends

reasoned that the commissioners court had declared the Hindes Road open to

the public. CR 246, 253, 398, 399, 401. To prevent any future trespass, the

Hindes successfully obtained injunctive relief to prevent the Townsends from




                                         4
using the Hindes Road while the proceedings continued. CR 273. Thus, based

upon the foregoing, the Hindes’ claims are clearly ripe.

II.   The Record Affirmatively Demonstrates That Injury Is
      Imminent.
      The panel should reconsider its conclusion that the Hindes failed to

show that future injury was imminent, i.e., that the La Salle County

Defendants were going to grant the Chapter 251 application. Hindes, 2015 WL

5037033, at *4. The opinion purports to list and discuss the Hindes’ evidence

demonstrating imminent injury. See id. In particular, the panel discounts clear

and unequivocal statements by the La Salle County Judge and Commissioner

Ayala that the Hindes Road is already a public road, and if not already a public

road, it should be declared open to the public. Id.; see also CR 401-02; 421.

      According to the opinion, these statements do not demonstrate

imminent injury, in part, because statements by individual commissioners do

not necessarily show how the entire court will vote. Hindes, 2015 WL

5037033, at *4 & n.4. The panel also notes that the County had authorized an

attorney to procure a title insurance policy on the Hindes Road. Id. at *4. But

the panel’s review of the record is incomplete.

      The opinion fails to include and address other important facts

demonstrating that the application will be granted. The opinion does not

mention other actions that were taken by the commissioners court as a

collective body as well as other affirmative actions taken under County



                                       5
authority. In particular, the commissioners court voted twice to declare a

“public interest” in the Hindes Road. CR 367, 379; see also CR 398-99. The

transcript from the commissioners court meeting, which reveals a motion and

unanimous vote, confirms the inevitable:

      [T]he Court enters this Clarifying Order, to clarify its January 14,
      2013, decision and Order. The Court then found, and now
      finds, that a “public interest” exists in the road . . ., which
      is sometimes referred to as the North County Road, and a portion
      of it, is sometimes referred to as the Hindes Road.
CR 379 (emphasis added). With respect to the title policy discussed above, that

too was authorized by the commissioners court as a whole. CR 360; RR 9.

Finally, County employees were directed to change road signs to identify the

road in question as the “Hindes Road.” CR 405.

      Had the panel considered the totality of the evidence brought forth by

the Hindes, it should have concluded that future injury is imminent. The

record reflects that the application will be granted. There is no mystery as to

what the future holds. Accordingly, the motion for rehearing should be

granted.

III. Conclusion and Prayer.

      The panel should reconsider its opinion and judgment affirming the trial

court’s order. In doing so, the panel should broadly construe the Hindes’

pleadings and directly address the jurisdictional arguments discussed in the

parties’ briefs. Further, the panel should reconsider all of the evidence




                                       6
establishing actual and imminent injury. Ultimately, the Hindes should be

permitted to move forward on their claims in the trial court.

      WHEREFORE, PREMISES CONSIDERED, Appellants Philip Wayne

Hindes and Melinda Hindes Eustace respectfully pray that the panel grant this

motion for rehearing, withdraw the opinion and judgment of August 26, 2015,

issue a new opinion and judgment reversing the trial court’s order granting the

La Salle County Defendant’s First Amended Plea to the Jurisdiction, remand

the case to the trial court for further proceedings, and grant other and further

relief to which they may be justly and equitably entitled, including an

opportunity to replead their claims.




                                       7
Respectfully submitted,

/s/ Samuel V. Houston, III
SAMUEL V. HOUSTON, III
State Bar No. 24041135
HOUSTON DUNN, PLLC
4040 Broadway, Suite 440
San Antonio, Texas 78209
Telephone: (210) 775-0882
Fax: (210) 826-0075
sam@hdappeals.com

Jorge C. Rangel
State Bar No. 16543500
Jaime S. Rangel
State Bar No. 24033759
THE RANGEL LAW FIRM, P.C.
615 N. Upper Broadway, Suite 2020
Corpus Christi, Texas 78401
(361) 883-8500 – Telephone
(361) 883-2611 – Fax
Jorge.C.Rangel@rangellaw.com
jaime.rangel@rangellaw.com

J. Byron “Trace” Burton, III
State Bar No. 24031776
Ezra A. Johnson
State Bar No. 24065499
UHL, FITZSIMONS, JEWETT &
BURTON, PLLC
4040 Broadway, Suite 430
San Antonio, Texas 78209
(210) 829-1660 – Telephone
(210) 829-1641 – Fax
tburton@ufjblaw.com
ejohnson@ufjblaw.com

ATTORNEYS FOR APPELLANTS




8
                   CERTIFICATE OF COMPLIANCE

     In accordance with Texas Rule of Appellate Procedure 9.4, the
undersigned certifies that the foregoing computer-generated motion for
rehearing contains 1,490 words.

                                          /s/ Samuel V. Houston, III
                                          SAMUEL V. HOUSTON, III


                      CERTIFICATE OF SERVICE
      This is to certify that a true and correct copy of the foregoing document
has been served in accordance with the Texas Rules of Appellate Procedure on
the 12th day of October, 2015, to the following:

Christopher S. Johns                       Via email/eservice
JOHNS MARRS ELLIS & HODGE LLP
805 West 10th Street, Suite 400
Austin, Texas 78701
cjohns@jmehlaw.com

Michael Shaunessy                          Via email/eservice
Christopher J. Oddo
MCGINNIS LOCHRIDGE, LLP
600 Congress Avenue, Suite 2100
Austin, Texas 78701
mshaunessy@mcginnislaw.com

Dan Miller                          Via email/eservice
MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP
P.O. Box 12127
Austin, Texas 78711
dmiller@msmtx.com




                                          /s/ Samuel V. Houston, III
                                          SAMUEL V. HOUSTON, III



                                      9
