                     REVISED, JANUARY 23, 2001

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 99-20686
                       _____________________



     SIMI INVESTMENT COMPANY INC


                                    Plaintiff - Appellee

          v.

     HARRIS COUNTY TEXAS


                                    Defendant - Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                         December 21, 2000

Before KING, Chief Judge, and REYNALDO G. GARZA and PARKER,
Circuit Judges.

KING, Chief Judge:

     Defendant-Appellant Harris County, Texas appeals the

district court’s judgment against the County, arguing that the

district court erred in holding that the County had

unconstitutionally interfered with the property rights of

Plaintiff-Appellee Simi Investment Company, Inc.   The district

court found that the County had unlawfully prevented Simi from
gaining access to the city street adjacent to its property in

contravention of Texas law.   Specifically, the district court

held that the County had abused its governmental power and

violated Simi’s substantive due process rights by inventing and

claiming ownership of a nonexistent five-foot by 3000-foot county

park, which blocked Simi’s lawful access to the street.   For the

following reasons, we AFFIRM the judgment of the district court,

including the grant of attorneys’ fees; however, we VACATE and

REMAND to determine the amount of those attorneys’ fees in a

manner consistent with this opinion.



              I. FACTUAL AND PROCEDURAL BACKGROUND

     This dispute centers around the real property (the “Simi

Property”) owned by Simi Investment Company, Inc. (“Simi”) which

is located in downtown Houston in close proximity to the Houston

Astrodome stadium.1   More specifically, the Simi Property is

     1
        We are guided through the curious history and
development of this particular strip of land by the stipulated
record of exhibits which was submitted by the parties and was
adopted by the district court as the entire record. On August
12, 1996, the district court entered a Conference Memorandum
which stated that the case would be resolved by analyzing the
documentary evidence submitted. On September 23, 1996, the
district court entered a second Conference Memorandum recording
that the parties had stipulated to exhibits 1 through 25 and that
the exhibits and other documents submitted would constitute the
whole record. On August 26, 1998, the district court allowed
Simi to supplement the record with documents not previously
turned over by the County. In addition, we rely on the
“Chronology” included as an addendum to the district court
opinion. See Simi Investment Co. Inc. v. Harris County, Tex., 13
F. Supp. 2d 603, 609-13 (S.D. Tex. 1998) (addendum to opinion).

                                 2
situated adjacent to Fannin Street at the intersection of

Interstate Loop 610 (“Loop 610") and Fannin Street.   Simi sought

from the City of Houston (“City”) access to Fannin Street from

the Simi Property, but was denied access by the City because

Harris County (the “County”) claimed an interest in an

intervening five-foot sliver of land that runs alongside this

property, separating it from Fannin Street.

     This land dispute finds its origin in the early 1960s when

the construction of the Astrodome led to increased development in

the area surrounding what is now the Simi Property.   Two of the

major investors in the area were Roy Hofheinz and R.E. Smith.

Hofheinz was a former Harris County judge and had been the chair

of the County’s governing board, the County Commissioners Court.

Hofheinz was also President of the Houston Sports Association

(the “HSA”), which leased the Astrodome from the County.

Hofheinz-Smith owned property north of the Simi Property site,

which was also located along the eastern side of Fannin Street.

As a result, Hofheinz-Smith and the HSA had control of much of

the property surrounding the Astrodome.

     In conjunction with building the Astrodome, the County

acquired rights-of-way for streets leading to the stadium.    In

1961, the County Commissioners Court requested the consent of the

City to acquire one of those rights-of-way by extending the




                                3
length of Fannin Street to Loop 610.     The City Council approved

the location and alignment of the proposed street, and the land

was purchased from the Trustees of the Hermann Hospital Estate

and conveyed to the County for this purpose.    The Hermann

Hospital Estate right-of-way consisted of a 20.67 acre tract of

land that was approximately 220 feet wide and 4100 feet in

length, running north-south alongside the Astrodome site.     This

north-south right-of-way was bounded on the west by the Astrodome

and surrounding grounds, and on the east by several privately

owned properties (including the Hofheinz-Smith property and what

is now the Simi Property).

     The deed granting the land to the County provided that the

property was being purchased with the intention of extending

Fannin Street “with such extension to run in a North-South

direction along the Eastern side of the Property described above,

with the remaining Western portion of said Property to be used

for street purposes or included in a park and stadium site lying

along the West side of said Property.”    Pursuant to this deed,

the County Commissioners Court issued an order on December 11,

1961, stating that “Harris County is to move back the existing

fences to the new right of way line.”2    Subsequently, Fannin

     2
        The district court found that “[a]fter exhaustive search
by the County and Simi, no later order of the Commissioners Court
was found that modified in any way the alignment of the Fannin
Street right of way described in the Hermann deed and the
commissioners order of December 11, 1961.” Presumably, the
original location of the fence denotes the proper right-of-way

                                4
Street was constructed as described in the deed on the eastern

side of the conveyed property, and fences were erected directly

abutting the Simi Property.

     The original maps accompanying the County’s acquisition of

the right-of-way and describing the location and alignment of

Fannin Street could not be found, and, thus are not a part of the

record.   The first site-specific document in the record is dated

October 16, 1961, and was created when engineers for the County

prepared a plat of the area depicting the land to be conveyed to

the County for the right-of-way.       The plat showed the granted

land directly abutting the Simi property line.       This plat,

however, was not a survey and did not include the exact location

of Fannin Street within the right-of-way.

     At some time after 1961, this plat was altered to include

the placement of Fannin Street and also, most relevant for this

case, a strip of land set off from the eastern side of Fannin

Street lying in between the street and the adjoining private

properties.   This five-foot by 3000-foot strip of land3 is the

county “park” now at issue.

     As drawn in the revised plat, the Fannin Street right-of-way

runs north-south, directly abutting the Hofheinz-Smith property.



line.
     3
        From our review of the record, the 3000-foot measure is
an apparent approximation that was adopted by the district court
and has been accepted by both parties.

                                   5
However, once past the southern boundary of the Hofheinz-Smith

property line, the right-of-way is shown to make a ninety-degree

turn west for five feet, and then it continues south to the 610

Loop.    The result is the creation of a five-foot strip of land

that separates all of the property south of the Hofheinz-Smith

property from Fannin Street, but leaves the Hofheinz-Smith

property directly abutting the Fannin Street right-of-way.      No

description or reason is apparent for this offset, nor why the

offset begins just south of the Hofheinz-Smith property.4    This

plat also includes the words “location questionable” drawn to

indicate the uncertain location of Fannin Street.    There is no

revised date on the altered plat.     The County contends that this

plat depicts the correct location of all relevant boundaries,

with Fannin Street running north-south within the original right-

of-way and a thin county park on the east side also running

parallel to Fannin Street.

     From this uncertain beginning, the County’s “park” has

withstood several legal and administrative challenges to its

existence and control.    First, in 1964, Texaco, Inc. requested

access to Fannin Street from property it owned on the corner of

Fannin and the 610 Loop.    This request was submitted to the

County Commissioner and was then forwarded to the County


     4
        The result of the offset is that the Hofheinz-Smith
properties are granted full access to Fannin Street, but all
properties south of the Hofheinz-Smith land are denied access.

                                  6
Engineer.   For an unknown reason, the County Engineer sought

approval from Hofheinz, as President of the HSA.    Hofheinz stated

that the HSA was unalterably opposed to the access because the

strip of land east of Fannin was included in the original HSA

lease of land for the Astrodome site and, therefore, was under

HSA’s control.   This assertion was factually erroneous because

HSA was never granted control of the land.    However, Hofheinz’s

objection led the County to deny Texaco access to Fannin Street.

     Similarly, in 1969, property owners sought a mandatory

injunction against the County, requesting that the fence abutting

their properties be removed to grant access to Fannin Street.     A

take-nothing judgment was affirmed by a Texas court of appeals,

which denied the property owners access across the County’s land.

See Lovett v. County of Harris, 462 S.W.2d 405, 408 (Tex. Civ.

App.—Houston [1st Dist.] 1970, writ ref’d n.r.e).   The court

found that the erection of the fence was not an unconstitutional

taking under Texas law because the intervening strip of land

separating the property owners from Fannin Street had not been

dedicated for street purposes.   See id.5

     Most recently, in 1984, Sterling B. McCall, Jr., the owner

of McCall Toyota, requested that he be allowed to keep a driveway

that had been built on his property which provided the property

with ingress and egress onto Fannin Street.   This request was

     5
        The reasoning of the Lovett decision will be discussed
in detail infra.

                                 7
denied by the County Commissioners Court, and McCall was required

to fence in the driveway to block access to Fannin Street.

     The area designated as a park has also been subject to

encumbrances that over its history have helped define its status

and ownership.    In 1974, Entex, a gas company, constructed a gas

line running north-south along the east side of Fannin Street.

This gas line was buried inside the land now claimed as a park.

The district court found that “[n]o Commissioner’s Court Order or

other document can be found to show the County authorized an

easement in the ‘park’ to Entex.”     In 1978, the City of Houston

approved a plan and constructed an eight-inch water line that

crossed the park.   Again, the district court found no

Commissioners Court order authorizing the easement across the

park for the water line.   Finally, in 1993, the Metropolitan

Transit Authority of Harris County (“METRO”) approved

construction of a sidewalk on the park property, running

alongside the Simi Property.   No approval was sought from the

County for an easement.

     Control of Fannin Street, itself, was ceded from the County

to the City of Houston in 1974.   In that year, the County removed

Fannin Street from its road logs.

     From 1981 to 1984, Simi began acquiring property along

Fannin Street.6   In 1994, Simi submitted to the City a request

     6
        Simi owns Lots 1, 2, 3, and 4 in Block 68; Lots 1, 2, 3,
4, 5, and 6 in Block 69; Lots 1, 5, and 6 in Block 70 in Knight’s

                                  8
for driveway access from its property to Fannin Street.      Richard

Scott, the Technical Director/City Engineer of the Department of

Public Works and Engineering for the City, responded that the

City “would be in a position to process [the] application, and

likely approve it,” but for the fact that the County has claimed

an interest in the strip of land.     Simi then applied to the

County for access.    This request was denied based on the

assertion that the County owned parkland located between Fannin

Street and the Simi Property.

     Simi sued the County in state court.     Simi sought damages

and injunctive relief pursuant to Article 1, Section 17 of the

Texas Constitution and the Fifth and Fourteenth Amendments to the

United States Constitution.    In addition, Simi sought a

declaration that its land directly abutted the right-of-way of

Fannin Street.   The County removed the suit to federal court.

Simi filed a motion to remand, stating that its federal takings

claim was not ripe.    The district court did not rule on this

motion for remand.    In federal court, Simi added a 42 U.S.C.

§ 19837 substantive due process claim, alleging that the County’s


Main Street Addition.
     7
         42 U.S.C. § 1983 reads in relevant part:

     Every person who, under color of any statute, ordinance,
     regulation, custom, or usage, of any State or Territory or
     the District of Columbia, subjects, or causes to be
     subjected, any citizen of the United States or other person
     within the jurisdiction thereof to the deprivation of any
     rights, privileges, or immunities secured by the

                                  9
denial of access to an adjoining right-of-way arbitrarily and

capriciously denied Simi a property interest established under

Texas law.

     The district court held two conferences during which the

parties were required to submit all relevant documents and

exhibits and to stipulate to the agreed facts.   Both parties then

moved for partial summary judgment based on this established

record.8

     On August 26, 1998, the district court issued an

Interlocutory Judgment and an Opinion on Judgment solely on the

issue of the existence of the park.   The district court reserved

deciding the issue of damages or attorneys’ fees.   The court

found in its Interlocutory Judgment that: (1) “Harris County had

never established a park”; (2) “Harris County had no interest in



     Constitution and laws, shall be liable to the party injured
     in an action at law, suit in equity, or other proper
     proceeding for redress . . . .

42 U.S.C. § 1983 (1994).
     8
        The County raises a preliminary challenge to the entry
of summary judgment based on this stipulated record. We find no
merit in this challenge as it is well established that a district
court may enter summary judgment after providing notice and
instructing the parties to submit all relevant evidence. See
Celotex v. Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts
are widely acknowledged to possess the power to enter summary
judgments sua sponte, so long as the losing party was on notice
that she had to come forward with all of her evidence.”). In
conference, the district court asked the parties to submit all
relevant documents and exhibits. It was from this evidentiary
basis that the district court decided to grant the request for
partial summary judgment. We find no error in these actions.

                               10
an intervening 5-foot by 3,000-foot strip east of Fannin Street

and west of [the Simi Property] making illegal its interference

with the owners’ relation to the City of Houston and Fannin

Street”; (3) “Harris County had ceded to the [C]ity of Houston

all of its right, title, and interest in the eastern-most 100

feet of land conveyed to it by the Hermann Estate”; and (4)

“[t]he City of Houston’s Fannin Street right of way abuts

directly and fully the west boundary of [the Simi Property].”



     After the Interlocutory Judgment, two hearings were held on

damages and attorneys’ fees.   In addition, Simi introduced

supplemental evidence into the record involving the County’s

reasons for denying property owners access to Fannin Street.    The

district court issued a Final Judgment on April 21, 1999,

incorporating the Interlocutory Judgment and adding that the

County was liable for $823,540 in damages, $367,000 in attorneys’

fees, and $116,994.32 in expenses.   On May 13, 1999, the district

court issued Supplemental Findings that: (1) the County

arbitrarily interfered with Simi’s property rights; (2) the

interference had no relation to a legitimate governmental

interest; (3) the interference was an abuse of governmental

power; (4) the County persisted in defending its claim to the

park in bad faith and used the litigation to vex and oppress




                                11
Simi; and (5) the County deliberately violated Simi’s rights

under the United States Constitution.9

     The County timely appeals.



                       II. STANDARD OF REVIEW

     We review a grant of summary judgment10 de novo, applying

the same criteria used by the district court in the first

instance.    See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th

Cir. 1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.

1994).    Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

     9
        The County challenges these Supplemental Findings as not
supported by the evidence. We disagree. From the extensive
exhibits and documentary evidence submitted by both parties, the
district court could well establish a basis for liability. In
short, without proof that a county park ever existed, the
County’s justification for interfering with Simi’s access to
Fannin Street fails, and becomes an arbitrary and capricious act.
We, therefore, find no error in a damages award based on that
liability, and find no error in the Supplemental Findings based
on the district court’s review of the evidence.
     10
        The County appeals the Final Judgment issued on April
21, 1999. While not designated as such, we interpret this Final
Judgment as a final decision on summary judgment resolving all
issues in favor of Simi. Simi had initially moved for partial
summary judgment requesting a declaration that the County was
interfering with its property. The County cross-moved for
summary judgment on this issue. The district court’s
Interlocutory Judgment resolved the partial summary judgment
motion in Simi’s favor. In its Final Judgment, the district
court incorporated the Interlocutory Judgment into its order and
resolved all outstanding issues.

                                  12
is entitled to judgment as a matter of law.”    FED. R. CIV. P.

56(c);    see also Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).



                  III. SUBJECT MATTER JURISDICTION

     We exercise plenary review of a district court’s subject

matter jurisdiction.    See Rutherford v. Harris County, Tex., 197

F.3d 173, 189-90 (5th Cir. 1999); Taylor-Callahan-Colman Counties

v. Dole, 948 F.2d 953, 956 (5th Cir. 1991).

     As a threshold matter, the County argues that the district

court lacked federal subject matter jurisdiction to decide the

case.    We find that the district court had subject matter

jurisdiction by reason of Simi’s § 1983 substantive due process

claim.

     In its Opinion on Judgment, the district court provided

three grounds for its jurisdiction.    First, the court found that

“[t]he facts pleaded state claims under the Texas Constitution to

which no accommodative delay is due. . . .    Whatever the eventual

fate of Simi’s claim for compensation, Simi is entitled to use

this court’s authority to correct the county’s continuing non-

possessory interference with its land.”    See Simi, 13 F. Supp. 2d

603, 605 (S.D. Tex. 1998) (citations omitted).    Second, the

district court found that Simi had stated claims against the

County under the Fourteenth Amendment, the Civil Rights Act of


                                 13
1866, and 42 U.S.C. § 1983.     See id.   As these claims are ripe

without exhaustion of state remedies, the court found proper

jurisdiction.     Finally, the district court held that Simi is

entitled to seek declaratory relief under both Texas and federal

law.    See id.

       The County correctly argues that the state law claims,

standing alone, do not provide federal jurisdiction.     Further, we

agree that Declaratory Judgment Act claims, without another basis

for jurisdiction, cannot support the district court’s

jurisdiction.     See Lawson v. Callahan, 111 F.3d 403, 405 (5th

Cir. 1997) (“[I]t is well settled that [the Declaratory Judgment

Act] does not confer subject matter jurisdiction on a federal

court where none otherwise exists.”).     The County thus contends

that the only potential federal claim available to Simi is a

“takings” claim under the Fifth and Fourteenth Amendments, and

that Simi has conceded that such a claim is not ripe for

review.11   While we agree that the takings claim is not ripe for

review, this argument does not dispose of Simi’s suit because the

§ 1983 substantive due process claim was properly before the

district court.

       In order to unpack the jurisdictional basis for the district

court’s holding, we revisit our recent decision in John Corp. v.

       11
        As stated, Simi opposed removal to federal court on the
grounds that a ripe federal takings question was not presented
for adjudication. See Williamson County Regional Planning Comm’n
v. Hamilton Bank, 473 U.S. 172, 199 (1985).

                                  14
City of Houston, 214 F.3d 573, 582 (5th Cir. 2000), in which we

held that substantive due process claims alleging deprivations of

property are not necessarily subsumed under the Takings Clause.

As this is precisely the issue raised by the County, we find John

Corp. to be dispositive as to the question of jurisdiction.

       John Corp. recognized that “[i]ndividuals may look to

several constitutional provisions for protection against state

action that results in a deprivation of their property.”       Id. at

577.    One of those provisions is the substantive due process

component of the Fourteenth Amendment which guarantees that

individuals shall not be deprived of their property without due

process of law.    See U.S. CONST. amend. XIV, § 1; see also John

Corp., 214 F.3d at 577 (“Substantive due process, by barring

certain government actions regardless of the fairness of the

procedures used to implement them, [] serves to prevent

governmental power from being used for purposes of oppression.”

(alterations in original) (citations and internal quotation marks

omitted)).    Another provision is the Takings Clause of the Fifth

Amendment.    See U.S. CONST. amend. V; see also John Corp., 214

F.3d at 577; Samaad v. City of Dallas, 940 F.2d 925, 933 (5th

Cir. 1991) (“The Takings Clause of the Fifth Amendment directs

that ‘private property [shall not] be taken for public use,

without just compensation.’    The Supreme Court has held that the

clause applies to the states through the Fourteenth Amendment.”

(citations omitted)).    In the instant case, once Simi had its

                                 15
case removed to federal court, it explicitly pled a due process

claim, recognizing that it did not have a takings claim.12

     Nevertheless, the County argues that we must decide this

case under the Takings Clause because “[w]here a particular

Amendment ‘provides an explicit textual source of constitutional

protection’ against a particular sort of government behavior,

‘that Amendment, not the more generalized notion of ‘substantive

due process,’ must be the guide for analyzing these claims.”

Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v.

Connor, 490 U.S. 386, 395 (1989)).   Again, John Corp. controls

our analysis.   We take no issue with the principle inherent in

the Supreme Court’s Albright/Graham analysis; however, in the

instant case, we find a takings analysis does not exhaust Simi’s

constitutional claims.   John Corp. found that under

Albright/Graham, a more explicit provision does not necessarily

preempt due process protections, and that substantive due process

claims can survive a related takings argument:

     This does not mean, however, that the applicability of the
     more explicit provision pre-empts due process protections.

     12
         Simi’s precise claim is that the County arbitrarily
interfered with its property rights, not that the County sought
to acquire or regulate the use of the property. Simi argues that
in the forty-year history of this strip of land, the County never
tried to “take” the Simi Property in a constitutionally
significant sense, but rather abused its power to frustrate
Simi’s rightful use of that land. Similarly, the County did not
seek to condemn Simi’s right of access to the property in an
inverse condemnation action. The County has simply wrongfully
interfered with Simi’s right of access for no legitimate public
purpose.

                                16
     See [County of Sacramento v.] Lewis, 523 U.S. 833, 842-44
     (1998); [United States v.] James Daniel Good Real Property,
     510 U.S. 43, 49 (1993) (“We have rejected the view that the
     applicability of one constitutional amendment pre-empts the
     guarantees of another.”). Moreover, it is clear that a
     particular action may implicate more than one constitutional
     protection. See Soldal [v. Cook County, Ill.], 506 U.S. 56,
     70 (1992) (“Certain wrongs affect more than a single right
     and, accordingly, can implicate more than one of the
     Constitution’s commands. Where such multiple violations are
     alleged, we are not in the habit of identifying as a
     preliminary matter the claim’s ‘dominant’ character.
     Rather, we examine each constitutional provision in turn.”).
     Thus, simply because an explicit provision applies does not
     mean that that provision makes inapplicable all substantive
     due process protections. See Albright, 510 U.S. at 288
     (Souter, J., concurring) (suggesting that due process is
     reserved for “otherwise homeless substantial claims”).

John Corp., 214 F.3d at 582.13   Our limited holding in John Corp.

is similarly limited here; we find only that when a state

interferes with property interests, a substantive due process

claim may survive a takings analysis and, therefore, provide

jurisdiction for a federal court.

     As alleged, there exists illegitimate governmental conduct

that has deprived Simi of its property rights for the benefit of

private interests.   Because Simi submitted sufficient evidence to


     13
          The recognition that the Takings Clause does not
subsume all substantive due process claims does not end the
ripeness inquiry. There also must be a final decision from which
to appeal. As we stated in John Corp., “a careful analysis must
be undertaken” to determine if there has been a final decision,
the lack of which would render the claim not ripe. Id. at 584
(“If the Court considered the claim to be a due process, rather
than a takings claim, the absence of a final decision still made
that claim unripe.”). As the County’s decision to claim
ownership of the park has been final for over forty years, and
was in 1994 the justification for denying Simi access to Fannin
Street, we are persuaded that a final decision has been made.

                                 17
support its § 1983 substantive due process claim based on an

allegedly arbitrary and unlawful attempt to interfere with

private property rights, we reject the County’s argument that the

district court did not have federal subject matter jurisdiction.



                  IV.   SUBSTANTIVE DUE PROCESS

     The determination that the district court had jurisdiction

to decide the federal question of substantive due process,

however, does not resolve the merits of Simi’s claim.    Our review

of the County’s actions must be measured against the deferential

“rational basis” test that governs substantive due process.    See

FM Prop. Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th

Cir. 1996) (“[G]overnment action comports with substantive due

process if the action is rationally related to a legitimate

governmental interest.”).   “Whether this ‘rational relation’ in

fact exists is a question of law that we review de novo.”     Hidden

Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998).

     “A violation of substantive due process, for example, occurs

only when the government deprives someone of liberty or property;

or, to use the current jargon, only when the government works a

deprivation of a constitutionally protected interest.”    Brennan

v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988) (internal

quotation marks and citations omitted); see also DeBlasio v.

Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d Cir. 1995) (“[I]n



                                18
the context of land use regulation, that is, in situations where

the governmental decision in question impinges upon a landowner’s

use and enjoyment of property, a land-owning plaintiff states a

substantive due process claim where he or she alleges that the

decision limiting the intended land use was arbitrary or

capricious.”).

      Substantive due process analysis is appropriate only in

cases in which government arbitrarily abuses its power to deprive

individuals of constitutionally protected rights.       Therefore,

recognizing that reliance on substantive due process must be

taken with the “utmost care,” Collins v. City of Harker Heights,

503 U.S. 115, 125 (1992), we emphasize the particularly odd

factual situation in this case, and the length and degree of

governmental abuse and, thus, limit our holding to the type of

blatant governmental interference with property rights that is

now before us.



                 A. The Constitutional Right at Issue

     To prevail on a substantive due process claim, Simi must

first establish that it held a constitutionally protected

property right to which the Fourteenth Amendment’s due process

protection applies.    See Spuler v. Pickar, 958 F.2d 103, 106 (5th

Cir. 1992) (citing Baker v. McCollan, 443 U.S. 137, 146-47

(1979)); see also Hidden Oaks, 138 F.3d at 1046 (“In order to

assert a violation of this amendment, one must at least

                                  19
demonstrate the deprivation of a protected property interest

established through some independent source such as state law.”

(internal quotation marks and citations omitted)).   The nature of

the property interest therefore must be determined by Texas law.

See Spuler, 958 F.2d at 106; see also Hidden Oaks, 138 F.3d at

1046 (“Under this analysis, the hallmark of property . . . is an

individual entitlement grounded in state law, which cannot be

removed except for cause.” (internal quotation marks and

citations omitted)).

     Under Texas law, this first issue is resolved in Simi’s

favor.   “It is the settled rule in this state that an abutting

property owner possesses an easement of access which is a

property right; that this easement is not limited to a right of

access to the system of public roads; and that diminishment in

the value of property resulting from a loss of access constitutes

damage.”   State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (internal

quotation marks omitted) (quoting DuPuy v. City of Waco, 396

S.W.2d 103, 108 (Tex. 1965)); see also City of Beaumont v. Marks,

443 S.W.2d 253, 255 (Tex. 1969) (“It is well settled that

abutting property owners . . . have certain property rights in

existing streets and highways in addition to their right in

common with the general public to use them.   Generally, the most

important of these private rights is the access to and from the

highway or street.”); State v. Meyer, 403 S.W.2d 366, 370 (Tex.

1966); Lethu Inc. v. City of Houston, 23 S.W.3d 482, 485 (Tex.

                                20
App.—Houston [1st Dist.] 2000, no pet.); State v. Northborough

Ctr., Inc., 987 S.W.2d 187, 190 (Tex. App.—Houston [14th Dist.]

1999, pet. denied).   As the district court found, “Simi’s western

boundary is the same as the Hermann-Fannin-County-City eastern

boundary; they abut by definition.”   Therefore, if Simi is

correct in its assertion that no park exists or has ever existed,

its property unquestionably abuts the Fannin Street right-of-way,

and the County’s interference with this access is a violation of

Texas law.14

     14
        The County’s interference with Simi’s property right of
access to the abutting street also provides reason for rejecting
another of the County’s procedural arguments – namely that the
statute of limitations bars Simi’s claim. Under Texas law,
“limitations is not a defense to an action to abate a continuing
nuisance.” Stein v. Highland Park Indep. Sch. Dist., 540 S.W.2d
551, 554 (Tex. Civ. App.—Texarkana 1976, writ ref’d n.r.e.); City
of Dallas v. Early, 281 S.W. 883 (Tex. Civ. App.—Dallas 1926,
writ dism’d). We agree with the district court that Simi has
alleged a continuing nuisance, asking for abatement and damages
of its denial of access to an abutting street. “A continuing
nuisance is a condition of such character that it may continue
indefinitely.” Jamail v. Stoneledge Condo. Owners Ass’n, 970
S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.) (citing 66
C.J.S. NUISANCE § 4 (1950)). “A private nuisance is a
nontrespassory invasion of another’s interest in the private use
and enjoyment of land.” Id. (citing RESTATEMENT (SECOND) OF TORTS
§ 821D). In the instant case, the denial of access unreasonably
interferes with the rights of property owners. It is therefore a
private, continuing nuisance under Texas law, which precludes the
statute of limitations defense asserted by the County.
     The district court did recognize, however, that “limitations
may bar the recovery of damages that accrued more than two years
before suit”. Simi, 13 F. Supp. 2d at 606; see also Stein, 540
S.W.2d at 554 (“[A]ppellant [would not] be barred from recovery
of damages for injuries suffered during the two years immediately
prior to filing of her suit.”). From our review of the record,
it appears that the district court limited its determination of
damages to damage occurring within this time period. In the
October 29, 1999, hearing on damages, the district court made

                                21
             B. The Substantive Due Process Violation

     Satisfied that the County’s blockage of access implicates a

constitutionally protected property right, we must ask next

whether this denial is rationally related to a legitimate

governmental interest.    See FM Prop., 93 F.3d at 174.    “The

question is only whether a rational relationship exists between

the [policy] and a conceivable legitimate objective.      If the

question is at least debatable, there is no substantive due

process violation.”   Id. (alteration in original) (citations

omitted).   Even under this low threshold, we are unpersuaded that

a rational basis exists to justify the County’s interference with

Simi’s property rights.

      In brief, it is apparent from the record that the County

cannot demonstrate that a five-foot park ever existed in between

Fannin Street and the Simi Property.      Further, we can ascertain

no rational reason for the County to deny abutting owners access

to the street when the City of Houston now has complete

jurisdiction over Fannin Street.      Most troubling, however, the

record reflects what the district court found to be an

illegitimate plan to benefit the private interests of Hofheinz-

Smith whose properties were financially benefitted by the denial

of access to the other properties abutting Fannin Street.      As


reference to a four-year time-frame for damages. As the original
suit was filed in 1996, the 1999 determination of a four-year
time period fits well within the statutory time limit for
recovering damages.

                                 22
will be discussed in detail below, the evidence demonstrates that

the County acted arbitrarily in inventing a park and, thus, acted

without a rational basis in depriving Simi of a constitutionally

protected interest.

     The dispositive question in this case is whether or not

there ever was a park.   The district court found that the County

had never established a park.   We agree.

     First, the County has failed to provide any official

documentation of the existence of a park.    None of the five

surveys included in the record shows any sign of a county park.

The 1978 survey prepared by R.A. Peyton & Associates for the City

of Houston shows an eight-inch water main crossing Fannin Street

without reference to an intervening county park.    The 1988 survey

prepared for the Holly Hall Home for the Retired, located north

of the Simi Property does not show a park.    The 1991 survey

prepared by the South Texas Surveying Associates Inc. shows

Simi’s property directly abutting Fannin Street.    The 1993 survey

prepared by PGAL Engineering for METRO in order to install a

sidewalk on the strip makes no mention of a county park.

Finally, in 1996, Karen Rose Engineering & Surveying completed a

survey that shows the east line of the Fannin Street right-of-way

and the Simi property line to be the same.    All of the above

surveys were signed and sealed by registered professional

surveyors.



                                23
     These surveys also support Simi’s claim that the Fannin

Street right-of-way has always abutted the eastern properties,

including the Simi Property.    The district court found that the

Hermann Hospital Estate deed determined the proper boundaries of

the right-of-way.     The deed provided that the Fannin right-of-way

would run along the east side of the Astrodome property with “the

remaining western portion of said Property to be used for street

purposes or included in a park and stadium site lying along the

West side of said Property.”    Under this deed, no parkland was

reserved on the east of Fannin Street, and the right-of-way

apparently was intended to extend to Simi’s property line.    No

County Commissioners order changed this initial understanding of

the right-of-way.15    In fact, this understanding was confirmed

when the County moved back the fences to the existing property

line abutting what is now Simi’s property.

     In contrast, the sole descriptive evidence presented by the

County was the altered version of the 1961 unsigned and

unofficial plat.    The altered version of the plat is of limited

persuasive authority because it provides no information about the

purpose or date of the alteration, and includes the language

     15
         As the district court recognized, “A county can act only
through an official ‘commissioners court order’ to alter a
thoroughfare.” Simi, 13 F. Supp. 2d at 607 (citing TEX. TRANSP.
CODE ANN. § 251.051(b)(2) (1996), which states in relevant part:
“A unanimous vote of the commissioners court is required . . . to
alter a public road, except to shorten it end to end.”). The
County has not provided any subsequent Commissioners Court order
suggesting that the Fannin Street right-of-way was ever altered.

                                  24
“location questionable” to denote the uncertain placement of

Fannin Street.   Without some justification for why a five-foot

setoff was created just south of the Hofheinz-Smith land,

conveniently blocking all of the other property owners, we are

compelled to find that this plat cannot carry the burden of

establishing the County’s park.

     The County also relies on Lovett v. County of Harris, a

Texas Court of Civil Appeals case that decided an earlier dispute

about this strip of land.   See 462 S.W.2d 405 (Tex. Civ.

App.—Houston [1st Dist.] 1970, writ ref’d n.r.e.).   As a

procedural matter, we find that the County has waived this issue

for purposes of res judicata as it inexplicably failed to raise

this argument until six months after the district court’s

Interlocutory Judgment and three years after the initial




                                  25
complaint.16   However, as the case provides a discussion about

the disputed land, we address its reasoning.

     Lovett involved a suit by landowners whose property

overlapped some of the current Simi Property.   These landowners

sought a mandatory injunction against the County to remove a six-

foot chain-link fence, which ran along the property line and

separated the Fannin Street right-of-way and their properties.

See id. at 406.   The court denied the request for an injunction

finding that: (1) Fannin Street did not abut the landowners’

property; (2) a 16.6 foot strip of land intervened between Fannin

Street and the landowners’ property; (3) neither the deed nor the

City of Houston had dedicated the 16.6 feet of land as being used

     16
         Nevertheless, the County contends that res judicata bars
Simi’s claim because this prior state court judgment supports the
County’s ownership of the strip of land. Again, we need not
reach the merits of this claim, because the County failed to
raise this issue as an affirmative defense.
     “Res judicata is an affirmative defense which is considered
waived if not specifically pleaded in the answer or in an amended
answer permitted under FED. R. CIV. P. 15(a).” Banc One Capital
Partners Corp. v. Kneipper, 67 F.3d 1187, 1199 (5th Cir. 1995);
Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)
(“[R]es judicata, and hence collateral estoppel, is an
affirmative defense which if not pled is considered waived.”).
District courts, of course, have discretion to allow late
amendments “when no prejudice would result to the other party,
and the ends of justice so require.” See Mozingo, 752 F.2d at
172. Our review is under an abuse of discretion standard. See
Morgan Guar. Trust Co. v. Blum, 649 F.2d 342, 345-46 (5th Cir.
Unit B July 1981).
     In the instant case, the County did not raise the defense
until three years after the original suit was filed and more than
six months after the district court resolved the liability issues
in its Interlocutory Judgment. We find that the district court
did not abuse its discretion in denying the County’s res judicata
defense.

                                 26
for street purposes; and (4) there was no taking of land under

Article I, Section 17 of the Texas Constitution.    See id. at 406-

07.

      This holding, while seemingly supportive of the County’s

claim, fails to carry the argument.    First, we note that the

Lovett court affirmed the lower court’s decision which, as the

Lovett court noted, did not include any findings of fact or

conclusions of law.17    Second and more important for our

purposes, no showing was made that any county park existed, or

even that the County argued that a park existed on the land.      All

that Lovett proves is that, as of 1970, the County held ownership

to the eastern part of Fannin Street, a conclusion with which all

parties agree.    Third, the Lovett decision supports the

contention that the Fannin Street right-of-way (if not the

street) extended to the boundary of the Simi Property.       As this

is where the disputed fence was placed, it is apparent the county

land abuts the Simi Property.    Finally, the state law takings



      17
           The Lovett court stated:

      The appellants, as movants in the trial court, had the
      burden of proof. No findings of fact or conclusions of law
      were requested or made, so we cannot say that the trial
      judge necessarily held with respect to all of these matters
      as the points of error assert that he did. His decision may
      well have been based, in part, on the appellants’ failure to
      sustain their burden of proof as to some of their
      allegations.

Lovett, 462 S.W.2d at 407.

                                  27
holding is irrelevant to our analysis involving the existence of

a substantive due process violation.

     Even accepting the factual findings of the Lovett court, the

issue left open is what happened to the 16.6 foot strip once the

County yielded jurisdiction over Fannin Street to the City of

Houston in 1974.   It is undisputed that Fannin Street was ceded

to the City, but there is no record that in doing so, the County

retained an interest in a remaining five-foot strip of land.

Once the City of Houston took responsibility for the street and

the accompanying traffic and maintenance responsibilities, we are

hard pressed to find a reason for the County’s retention of five

feet out of the original 16.6 feet of land.

     Furthermore, the County’s claim that a park has always

existed is belied by the fact that the park has not been treated

as such by the County.   City gas lines, water lines, and a

sidewalk were all constructed on the park without receiving

proper authorization or an easement from the County.   As the

district court found in its “Chronology”:

     The County and Simi Investment agree that the County cannot
     sell or otherwise encumber its park land unless the
     encumbrance is approved by Commissioners Court Order with
     public notice under a state statute. The County and Simi
     Investment agree that no Commissioners Court Order can be
     found authorizing Entex, Houston, or METRO to construct
     facilities on the property and further, that there is no
     evidence that the County complied with the statutory notice
     requirements to convey an interest in this property to
     Entex, the City, or METRO.




                                28
Simi, 13 F. Supp. 2d at 611-12.    Further, owners of other

properties along Fannin Street have developed their land in a

manner that demonstrates that no park exists.     For example, the

owners of the Holly Hall tract north of the Simi Property along

Fannin Street developed their property with a twenty-five foot

setback from the street, pursuant to local ordinance.     This

twenty-five foot setback would not have been necessary if a five-

foot park intervened between the street and the property.

     From the foregoing, we agree with the district court that

“Harris County has no interest in an intervening 5-foot by 3,000-

foot strip east of Fannin Street and west of Knight’s Main Street

Addition [the Simi Property] and Holly Hall property, making

illegal its interference with the owners’ relation to the City of

Houston and Fannin Street. . . . [and] Harris County has ceded to

the city of Houston all of its right, title, and interest in the

eastern-most 100 feet of land conveyed to it by the Hermann

Estate.”   Simi, 13 F. Supp. 2d at 612.

     Measured against the rational basis test, a nonexistent park

used by County officials to interfere with private property

interests is clearly arbitrary, capricious, and violative of due

process.   “While the ‘rational basis’ standard is the least

demanding test used by the courts to uphold [governmental]

action, it is not ‘toothless.’”     Berger v. City of Mayfield

Heights, 154 F.3d 621, 625 (6th Cir. 1998) (quoting Mathews v.

Lucas, 427 U.S. 495, 510 (1976)).      More damaging to the County’s

                                  29
argument, the only basis in the record to explain the County’s

interference with access appears to be that - as the district

court recognized - this impediment would benefit the privately

held Hofheinz-Smith properties and the HSA.

     The record clearly suggests that creation of a park worked

to enhance the value of the Hofheinz-Smith properties.18   As the

district court found, “interestingly, that ridiculously narrow

park limits the access of only those property owners who would

compete with the Hofheinz-Smith interests.”   Simi, 13 F. Supp. 2d

at 607.   Proof of this influence began in 1964 when the County

denied Texaco the right of access to Fannin Street on the basis

of Hofheinz’s objection.   Furthermore, we note that the original

     18
        Two letters included in the record from County officials
support the understanding that the County had interfered with the
private property owners to benefit Hofheinz-Smith and the HSA. A
March 14, 1985 letter from Richard Doss, County Engineer for the
County, to El Franco Lee, Commissioner, stated in relevant part,

     [T]he lots . . . were denied access to Fannin Street to
     prevent the establishment of businesses that could
     conceivably compete with the stadium operation. Surely,
     before any permission were granted the Houston Sports
     Association should be consulted.

Similarly, an August 20, 1991 letter from Ricardo Rivero,
Technical Assistant, to County Engineer Terry A. Anderson
reiterated this understanding, “[T]he lots and streets in Knights
Main Street Addition [the Simi Property] were denied access to
Fannin Street to prevent the establishment of businesses which
conceivably would compete with the operation of the Dome
stadium.” While we recognize that these letters are not binding
on the County, they are probative, supporting the district
court’s Supplemental Finding that “[t]he [County’s] interference
had no relation to a legitimate governmental responsibility of
the county whether characterized as public health, safety, or
general welfare.”

                                30
request to gain access to the street was denied not because of

the County’s own claim to the land or an assertion of a park, but

because of Hofheinz’s erroneous assertion that HSA owned the

strip of land.

       That the County acted to benefit solely private interests

does not necessarily demonstrate a substantive due process

violation.    For substantive due process purposes, “the true

purpose of the [policy], (i.e., the actual purpose that may have

motivated its proponents, assuming this can be known) is

irrelevant for rational basis analysis.”    FM Prop., 93 F.3d at

174.    However, the County failed to put forth any alternative

rational basis for the continued interference with private

property rights.19   Certainly in 1994, twenty years after the

County had ceded control over Fannin Street to the City of

       19
        We note that a second letter from Richard Doss to El
Franco Lee on November 14, 1985, provides a mixed private/public
reason for the denial of access, and comes the closest to proving
a legitimate reason for the denial of access. In that letter,
Doss discusses the fence that abuts the Simi Property: “The fence
was erected to minimize interruption to traffic on Fannin en
route to the stadium and to prevent business competition with the
stadium.” While the latter purpose is clearly illegitimate
(benefitting purely private interests), the former could offer
the requisite “rational” justification for impeding access. The
flaw, however, is that this letter only addresses the fence
abutting the Simi Property, and makes no mention of an
intervening county park. As all parties have conceded that the
County once owned the eastern property up to the Simi property
line, this letter does little to demonstrate that a park existed
and, in fact, seems to support Simi’s theory that the right-of-
way has always abutted its property. The question we cannot
answer is what legitimate interest the County had in maintaining
that fence more than a decade after it had ceded control of the
Fannin Street right-of-way to the City of Houston.

                                 31
Houston, there was no rational basis for blocking access to the

street.    Once jurisdiction shifted to the City, whatever

interests in maintaining traffic control or other governmental

responsibilities that could be hypothesized to justify

interference with access to Fannin Street disappear.    Without a

park and without a rational basis for impeding access, the

County’s arguments fail to survive even a rational basis review.

     We, therefore, affirm the district court’s findings that the

County acted arbitrarily and without a legitimate governmental

purpose.    We hold that the invention of a park solely to deny

private property holders lawful access to an abutting street is

an abuse of governmental power, which on this peculiar factual

foundation rises to the level of a substantive due process

violation.    Having successfully pled a deprivation of a

constitutional right under § 1983, Simi is entitled to the relief

granted by the district court.



                         V. ATTORNEYS’ FEES

     It is undisputed that attorneys’ fees are provided under 42

U.S.C. § 1988 for litigants who successfully bring § 1983 claims.

See 42 U.S.C. § 1988 (“[T]he court, in its discretion, may allow

the prevailing party . . . a reasonable attorney’s fee as part of

the costs.”).    “We review a district court’s award of attorneys’

fees for abuse of discretion, and its factual findings relating



                                 32
to the award of attorneys’ fees for clear error.”    Freiler v.

Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 348 (5th Cir.

1999).    Having found that Simi has proven a successful § 1983

claim predicated on substantive due process, we agree that Simi

is entitled to receive attorneys’ fees.20

     However, we find that the district court abused its

discretion in awarding attorneys’ fees based on legal work not

provided in furtherance of Simi’s § 1983 claim.    While the record

does not permit us to determine precisely what factors were

controlling in the court’s determination of the fee, our reading

of the record leads us to be concerned that Simi’s state court

legal fees which preceded its amended § 1983 suit21 were included

in the calculation.

     This court has held that attorneys’ fees resulting from

state court litigation that does not seek to enforce federal

constitutional rights, but which does precede a successful § 1983

suit, are not attorneys’ fees contemplated by § 1988.    See

Brantley v. Surles, 804 F.2d 321, 325 (5th Cir. 1986).     This

conclusion necessarily follows from the purpose of § 1988, which

is to enforce § 1983 or other federal civil rights statutes.      Of

     20
        It is apparent from the record that, in considering the
award, the district court explained its reasons for the award and
complied with the requirements of Johnson v. Georgia Highway
Express, 488 F.2d 714, 717-19 (1974). Our sole concern is the
timetable used to judge the attorneys’ fees.
     21
        As stated, Simi’s § 1983 claim was first raised in its
November 18, 1996, first amended complaint.

                                 33
course, where a state proceeding is a necessary preliminary

action to the enforcement of a federal claim, these attorneys’

fees may be available in some circumstances, subject to the

discretion of the district court.    See Redd v. Lambert, 674 F.2d

1032, 1037 (5th Cir. 1982); see also Barrow v. Falck, 977 F.2d

1100, 1104 (7th Cir. 1992) (“Section 1988 permits a court to

shift to defendant only those legal fees incurred in proceedings

to enforce a few listed federal statutes.   When proceedings in

state courts or agencies are part of the enforcement of § 1983,

then time reasonably devoted to them is compensable.” (citing New

York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 71 (1980))).

     Simi brought its initial suit in state court and did not

allege a § 1983 violation.   Without a demonstration that this

state suit was part of the enforcement of the § 1983 claim, legal

fees relating to that litigation cannot be recovered under

§ 1988.   Following Brantley, we find that the state suit was not

a part of the enforcement of § 1983, and therefore, attorneys’

fees relating to the state action are not recoverable.   See

Brantley, 804 F.2d at 325.

     We are also concerned that the district court may have based

its award on a record that includes billing reports of Simi’s

counsel dating back to 1990, well before the state and federal

lawsuits were initiated.   These records, and the district judge’s

assertion at the hearing on attorneys’ fees that counsel had

worked on the case for six years, compels us to find that the

                                34
district court may have awarded an incorrect amount of attorneys’

fees.     Further, the district court apparently calculated the

attorneys’ fees with interest based on a time frame that may have

included the state court proceedings.     Because we find that the

district court abused its discretion in considering attorneys’

fees not related to the § 1983 action, we vacate the original

award and remand it for reconsideration.

     Having prevailed on appeal, Simi is entitled to legal fees

for the appeal.     On remand, we also ask the district court to

decide on a reasonable fee.22



                            VI. CONCLUSION

     For the above stated reasons, we AFFIRM the judgment of the

district court in all respects, except for the award of



     22
        We find no merit in the County’s argument that the
district court exceeded its authority in awarding expert witness
fees. We review awards of expert fees under an abuse of
discretion standard. See Holmes v. Cessna Aircraft Co., 11 F.3d
63, 64 (5th Cir. 1994). The district court found in its
Supplemental Findings that “the county persisted in defending its
wrongful interference claim in bad faith; long after title
questions had been clearly answered from the county’s own
records, it used this litigation to vex and oppress Simi.” Under
Alyeska Pipeline Service Co. v. Wilderness Society, courts may
award expert fees in excess of the statutory limitations when
“the losing party has ‘acted in bad faith, vexatiously, wantonly,
or for oppressive reasons.’” 421 U.S. 240, 258-59 (1975); see
also United States ex rel Wallace v. Flintco Inc., 143 F.3d 955,
972 n.14 (5th Cir. 1998). The district court found that the
County acted vexatiously and oppressively, and from the record,
we cannot conclude that such a finding was an abuse of
discretion. We therefore affirm the award of expert fees.

                                  35
attorneys’ fees, which we VACATE and REMAND for further

consideration consistent with this opinion.




                               36
