v.
Freedmen's Town Preservation Coalition
ACCEPTED 14-15-00138-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/26/2015 7:51:08 PM CHRISTOPHER PRINE CLERK
No. 14-15-00138-CV _______________________________________________ FILED IN 14th COURT OF APPEALS In the Court of Appeals for the HOUSTON, TEXAS Fourteenth District of Texas at Houston 3/26/2015 7:51:08 PM _______________________________________________CHRISTOPHER A. PRINE Clerk
CITY OF HOUSTON, Appellant V. FREEDMEN’S TOWN PRESERVATION COALITION, Appellee _______________________________________________
On Appeal from the 80th Judicial District Court Harris County, Texas Trial Court Case No. 2015-02771 ______________________________________________________________ MOTION FOR REHEARING AND TO RECONSIDER DISMISSAL OF APPEAL FOR MOOTNESS ______________________________________________________________ Donna L. Edmundson Kathleen Hopkins Alsina City Attorney Senior Assistant City Attorney State Bar No. 09977050 Judith L. Ramsey Mary E. (Mary Beth) Stevenson Chief, General Litigation Section Assistant City Attorney State Bar No. 24072366 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, Fourth Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) [email protected] [email protected]
Attorneys for Appellant
Table of Contents
Page Table of Contents......................................................................................... ii Index of Authorities .................................................................................... iv Statement Regarding Record ....................................................................... vi Issue on Rehearing ..................................................................................... vii I. Introduction ....................................................................................... 1 II. Background Facts ............................................................................... 3 III. Procedural History – Trial Court ......................................................... 5 IV. Procedural History – Court of Appeals................................................. 8 V. Argument and Authorities ................................................................... 8
A. The Court ruled on the motion to dismiss prematurely. ............... 8
B. The Coalition’s primary authority, Blackmon, is not controlling because it does not involve the effect of a stay on a nonsuit and it was not decided under current law. .................... 9
C. Klein v. Hernandez is also irrelevant because the nonsuit there was filed before the appeal of the plea to the jurisdiction. ............ 11
D. The Coalition should not be allowed to circumvent the automatic stay. ........................................................................ 12
E. The failure to enforce the Section 51.014(b) stay has resulted in a miscarriage of justice and prejudice to the City and the property owners in Freedmen’s Town. ...................................... 14 Freedmen’s Town, including the streets, are landmarks. (See Supp._CR____).2 The trial court has halted a governmental function by allowing an end run around the statute intended to guarantee that the trial court’s jurisdiction be determined before a lawsuit involving a governmental entity proceeds.
[*2]II. Background Facts
This is an appeal from an interlocutory order entered February 12, 2015, denying the City of Houston’s plea to the jurisdiction. On February 25, 2015, this Court granted the Coalition’s motion to dismiss the appeal for mootness. The City asks the Court to reconsider the dismissal and reinstate the appeal.
The underlying lawsuit sought to enjoin the City and its contractor, Conrad, from renovating water and sewer lines, drainage, and certain street surfaces in an area of Houston known as “Freedmen’s Town.” (CR____).3 The Coalition sued to prevent the City and Conrad from “removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks” from the streets where the infrastructure work is to be performed. (Id.).
[*3]The legislature established the Texas Historical Commission (THC) as the state agency with exclusive jurisdiction to designate state archeological landmarks under procedures set out in the “Antiquities Code.” Tex. Nat. Res. Code § 191.051(b)(2) (Antiquities Code); Bd. of Regents v. Walker Cnty. Historical Comm’n, 608 S.W.2d 252, 253 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ). Citizens may request the THC to make such a designation. Tex. Nat. Res. Code § 191.092(c). Structures on both public and private land may be nominated, but designation of a landmark on private land4 requires the written consent of the landowner. Tex. Nat. Res. Code § 191.094(b).
Although the Coalition alleges that Freedmen’s Town has been recognized in the National Register of Historic Places since 1984, it is undisputed the THC has never designated the bricks and streets or any land in Freedmen’s Town as a state archeological landmark.
The Coalition also alleges that since 2007 there have been discussions with the City about how to perform the street, water, and sewer repairs without disturbing the bricks. (CR___).5 However, the Coalition did not seek a designation of the streets and bricks as state archeological landmarks from the THC until after filing this lawsuit. (Supp. RR 42-43 (March 2, 2015 hearing))6. No such designation has been made by the THC, nor is there evidence that the Coalition sought a designation of all of Freedmen’s Town as a landmark.
[*4]More importantly, the Coalition neither alleged nor proved that the land was public land or that the private landowners consented to designate any structure on their land as a landmark, as required under the statute. Tex. Nat. Res. Code § 191.094. The landowners were not parties to this suit. Although several attempted to intervene, the Coalition opposed their intervention and the trial court denied their attempt. (1_RR_12). The trial court then entered an order finding all of Freedmen’s Town, as well as the streets, to be a state archeological landmark without any evidence establishing who owned the land or whether the landowners consented. (CR____.)7
III. Procedural History – Trial Court
On January 20, 2015, the Coalition applied for and received an ex parte temporary restraining order against the City, alleging that Freedmen’s Town has been designated as a “historical site” and that the Texas Antiquities Code prohibits “any alteration, removal or destruction of such structures without either (1) an approved contract by the THC or (2) an express permit granted by the THC.” (CR____).8 See Tex. Nat. Res. Code §§ 191.093 and 191.095 (“Antiquities Code”)). A hearing on the temporary injunction was initiated on February 12, 2015 and continued on March 2, 2015.
[*5]The City moved to deny the injunction and also filed a plea to the jurisdiction arguing that its immunity was not waived under Section 191.173(a) of the Antiquities Code. (CR____).9
On February 12, 2015, the trial court denied the City’s plea to the jurisdiction. (CR____10; 1_RR_30-31). The City filed a notice of interlocutory appeal pursuant to Texas Civil Practice and Remedies Code § 51.014(a)(8) and specifically invoked the automatic stay provisions of section 51.014(b) requiring a stay of all proceedings in the trial court. (CR____11; 1_RR_124, 128, 132). Rather than enforcing the mandatory stay, the trial court allowed the proceeding to continue. (1_RR_133).
After the City invoked the stay, the Coalition announced it would nonsuit the City. (1_RR_131). The City reasserted its right to the 51.014(b) automatic stay of all proceedings. (1_RR_132). The Court denied the stay, finding that it applied only to the City. (1_RR_132). The trial court proceeded with the injunction hearing and set it to resume at a later date against Conrad only. (1_RR_134).
[*6]On March 2, 2015, the trial court conducted a hearing on the temporary injunction, with Conrad as the only defendant. The trial court signed an order stating that Freedmen’s Town in its entirety, as well as the “brick paved streets,” constitute “state antiquities landmarks” under the Antiquities Code. (Supp._CR____).12 The court ordered that Conrad “and all those acting in concert with them, be and hereby are prohibited from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen’s Town Historic District.” (Supp._CR____).13
Conrad has filed its notice of interlocutory appeal in this court. (Supp._CR___).14
[*7]IV. Procedural History – Court of Appeals
On February 17, 2015, the Coalition filed an Amended Motion to Dismiss Appeal for Mootness, arguing that the City’s interlocutory appeal of its plea to the jurisdiction was moot because the City had been nonsuited at trial. The City’s response was due within ten days, by February 27, 2015. Tex.
R. App. P. 10.3(a).
The City responded to the amended motion to dismiss at approximately 4:45 p.m. on February 24, 2015. See Ex. A. The email notice from the electronic service provider shows that the Court “received” the response at approximately 8:00 a.m. on February 25, 2015. See Ex. B. However, the City received by email notice, with a time notation of 3:00 a.m., February 25, 2015, an order granting the motion to dismiss. See Ex. C. Therefore it appears that the Court ruled on the motion to dismiss without having received the City’s response.
V. Argument and Authorities
A. The Court ruled on the motion to dismiss prematurely.
Under Texas Rule of Appellate Procedure 10.3(a), an appellate court should not hear or determine a motion until 10 days after the motion was filed. The Coalition’s amended motion to dismiss, filed February 17, 2015, should not have been heard or determined before Friday, February 27, 2015. Therefore the City’s February 25, 2015 response was timely.[15]
[*8]Because the motion to dismiss the appeal was ruled on without consideration of the City’s response on the mootness issue, the City respectfully asks for rehearing. Tex. R. App. P. 49.1; Tex. R. App. P. 10.3(b).
B. The Coalition’s primary authority, Blackmon, is not controlling because it does not involve the effect of a stay on a nonsuit and it was not decided under current law.
In its opinion, the Court cites to the case relied on by Coalition, University of Texas Medical Branch v. Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). The Coalition cited this case to support its argument that a motion for nonsuit is effective even when made after the mandatory stay under section 51.014(b) of the Civil Practice and Remedies Code. However, Blackmon did not address the effect of the 51.014(b) stay on a nonsuit.
In Blackmon, the University of Texas challenged the nonsuit because it had requested costs and because the court of appeals had entered a judgment in its favor, which was withdrawn before the nonsuit was filed. Id. at 101.
[*9]Nothing in Blackmon indicates that either party invoked a stay under Section 51.014(b), and the Court did not address the effect of a stay on the nonsuit.
In addition, the 2003 amendments to Section 51.014(b) were not effective when the notice of appeal in Blackmon was filed. The notice of appeal was filed on March 20, 2003. See Ex. D, Court of Appeals docket sheet in Univ. of Tex. Med. Branch at Galveston v. the Estate of Darla Blackmon, No. 10-03-00093- CV, in the 10th Court of Appeals, from www.search.txcourts.gov.[16] The statute was amended to be effective for notices of appeal filed after September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 103, sec. 51.014, 2003 Tex. Gen. Laws 847, 849, 898.
The prior version of the statute did not mandate that all trial court proceedings be stayed. At the time Blackmon was appealed, only the commencement of the trial was stayed by the interlocutory appeal. Id. The parties were free to continue with pretrial proceedings.
The 2003 amendments added the current language:
(b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays the commencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a)(3), (5), or (8) also stays all other proceedings in the trial court pending resolution of that appeal.
[*10]Id. at 849 (emphasis added).
The notice of appeal in Blackmon was filed before the amendment to Section 51.014(b) took effect, and the issues related to the nonsuit in Blackmon were unrelated to the 51.014(b) stay. It is not controlling on the issue of whether a party may file a nonsuit after there has been a “stay of all other proceedings” under the current version of the statute.
C. Klein v. Hernandez is also irrelevant because the nonsuit there was filed before the appeal of the plea to the jurisdiction.
The Coalition also relied on Klein v. Hernandez, 315 S.W.3d 1, 4 (Tex. 2010). But Klein does not address the effect of the mandatory stay on a later nonsuit because the nonsuit in Klein was filed before the stay was in effect. Furthermore, the parties in Klein “apparently agree[d]” that “the nonsuit in the trial court ended the case against Baylor”—in contrast, the nonsuit here is without prejudice. The fact that the Coalition insists on continuing this case against the City’s contractor, which can perform this work only if the City can, demonstrates that the Coalition’s goal of stopping the City’s work on the project survives despite the nonsuit of the City as a party.
[*11]D. The Coalition should not be allowed to circumvent the automatic stay.
The Coalition thought it could circumvent the automatic stay provided by Section 51.014(b)—which it described as “trickery”—by nonsuiting the City. (1_RR_127). The Coalition’s counsel explained the ploy: “We can go against Conrad, we get the injunction and protect our client’s interest.” (1_RR_127). The trial court went along.
The result was an injunction entered ostensibly against only the City’s contractor, but which everyone knows impacts the City adversely, and without this Court ever deciding the fundamental legal issue of whether the trial court had jurisdiction over this matter at all. The automatic stay provision of Section 51.014(b) should avoid exactly this type of abuse. When a governmental entity is involved in a lawsuit, and the Court’s jurisdiction is challenged by a plea, that issue must be finally resolved before the case can proceed against any of the parties. Once an interlocutory appeal is filed, all other proceedings in the trial court, including the right to a nonsuit, come to a halt.
That is even more important in a case like this one where the other defendant is the City’s agent in performing a governmental function, and the facts that establish there is no waiver of the City’s immunity also establish the contractor’s defense, i.e., that there is no violation of the statute. And if the Coalition is ultimately unsuccessful against the contractor, the Coalition could at any time file another lawsuit asserting the same claims against the City. See, e.g., Oryx Capital Int’l v. Sage Apartments, LLC, 167 S.W.3d 432 (Tex. App.—San Antonio 2005, no pet.) (holding nonsuit filed after court-ordered stay was of no effect, and noting plaintiff had already refiled claims in another suit).
[*12]The First Court of Appeals considered a situation analogous to this one in City of Houston v. Swinerton, 233 S.W.3d 4, 8-9 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In Swinerton, the City appealed the denial of its plea to the jurisdiction concerning Swinerton’s quantum meruit claim. Id. at 6. Swinerton then amended its petition to omit the quantum meruit claim. Id. at 8. The City responded that if the plea was dismissed because of the amendment to the pleading, the builder could simply replead the claim after the appeal was dismissed. A ruling on the plea to the jurisdiction, by contrast, would result in a dismissal of that claim with prejudice. Id.; see Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). The nonsuit was not equivalent to the City obtaining a final ruling granting its plea. The court of appeals concluded that “the statutory stay in section 51.014 is analogous to the court-imposed stay in Oryx” and that Swinerton’s attempt to dismiss its claim without prejudice by amending its petition after the City had invoked the stay was “without force.” Swinerton, 233 S.W.3d at 9.
[*13]The question of the Court’s jurisdiction must be heard and ruled on before there are further proceedings in the trial court; that is the purpose of the mandatory stay provision of section 51.014(b). Tex. Civ. Prac. & Rem. Code § 51.014(b). The nonsuit to avoid the jurisdictional issue, filed after the stay, is without force. Swinterton, 233 S.W.3d at 9.
E. The failure to enforce the Section 51.014(b) stay has resulted in a miscarriage of justice and prejudice to the City and the property owners in Freedmen’s Town.
Allowing the Coalition to file a nonsuit in violation of the statutory stay and proceeding to a temporary injunction hearing against the contractor is only the beginning of the trial court’s error in this matter. Three others deserve particular note:
1. The trial court acted outside its jurisdiction—and admitted it.
The trial court acted outside its jurisdiction by declaring that:
Both Freedmen’s Town and the brick paved streets situated within the district constitute “state antiquities landmarks” as such term is defined by Tex. Admin. Code Title 13, Part 2 § 26.3(3) and used in Tex. Nat. Res. Code § 191.092(a). (Supp._CR____).17 The trial court admitted that the designation of a landmark was an administrative decision of the THC:
17 App. [1].
[*14]The court finds that while the evidence in this temporary injunction hearing has shown the site to be a, or to qualify as a state archeological landmark, that final determination appears to have to be made by the Texas Historical Commission. (Supp. RR 96:8-15)18. Nevertheless, the court signed the order designating Freedmen’s Town and the streets as a landmark. (Supp._CR____).19
The Texas Legislature has vested the THC with jurisdiction to designate sites and landmarks as “state archeological landmarks.” Tex. Nat. Res. Code §§ 191.051(b)(2) and 191.052; Walker Cnty. Historical Comm’n, 608 S.W.2d at 253. Citizens may sue to stop a violation or threatened violation of the statute. Tex. Nat. Res. Code § 191.173. That provision gives a trial court jurisdiction to protect already-designated state archeological landmarks, but it does not vest a trial court with jurisdiction to make the initial determination that a site is entitled to landmark status. As the trial court admitted, whether a site qualifies as a state archeological landmark is an administrative decision delegated by the legislature to the THC.
[*15]2. The trial court declared the entirety of Freedmen’s Town, and specifically the streets, a landmark without pleading or proof of ownership of the land.
Basic to designation of a landmark is determining whether the site is on public land or private land. The procedures and criteria for designating landmarks on publically-owned land fall under Tex. Nat. Res. Code § 191.092. The designation of landmarks on privately-owned land falls under Tex. Nat. Res. Code § 191.094. The requirements are different for each. Most significantly here, the designation of a landmark on private land, as is the entirety of Freedmen’s Town, requires “written consent of the landowner or landowners.” Tex. Nat. Res. Code § 191.094(b). The Coalition presented no evidence of whether the land in Freedmen’s Town, including the land under the streets, was publically or privately owned. There was no pleading or evidence the adjacent landowners gave written consent to designation of the streets as landmarks, much less to the entirety of their property in Freedmen’s Town. Without proof of the ownership of the land, no decision could be made on landmark status, even by the THC, the agency vested with jurisdiction to make that decision.
[*16]3. The trial court should not have proceeded in the absence of the City and the adjacent landowners.
Everyone recognizes the City is the real target of this dispute. The City contracted with Conrad to do the work, but it was the City’s work and Conrad operated under permits obtained by the City to carry out the City’s plan. Enjoining the City’s contractor stops the City from performing its work.
Moreover, the Coalition sought declarations regarding what permits from the THC were required to perform the work. Clearly the City had an interest in that issue—it is the City that must obtain the necessary permits from the state, not an outside contractor. The law requires that when declaratory relief is sought, as it was here, all parties interested in the dispute must be joined. Tex. Civ. Prac. & Rem. Code § 37.006.
The adjacent landowners should also have been allowed to intervene. (CR____20; 1_RR_12). The court’s order is intended to impact the rights of all persons as to Freedmen’s Town. (Supp._CR____).21 It is the landowners whose property rights are affected by a ruling that the streets in Freedmen’s Town are protected as landmarks, and it is the landowners (and homeowners) who are most seriously affected by the delay in repairs to their water, drainage, and sewer systems caused by the Coalition’s suit.
[*17]F. The trial court allowed the Coalition to make an end run around governmental immunity.
The Coalition asserts the same claims against Conrad, the City’s contractor and agent in this transaction, that it nonsuited as to the City. If this Court allows it, the Coalition and the trial court will have created a playbook for how to avoid challenges to a trial court’s jurisdiction in matters involving governmental entities and their contractors.
In performing governmental functions, such as the provision of water and sewer service, repairs to infrastructure, and street maintenance, the contractor acts as the city’s agent. See, e.g., Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 747 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (affirming granting of plea to the jurisdiction for law firm that acted as agent of government in collecting taxes). By nonsuiting the City but continuing to litigate the nonsuited claims against the City’s contractor, the Coalition is effectively continuing to litigate against the City.
In the same way, if the City has all the necessary permits to do the work in Freedmen’s Town, its contractor does too. The Antiquities Code does not require Conrad to have a permit separate from any permit the City is required to have.
[*18]The City’s interlocutory appeal of the denial of its plea to the jurisdiction centers on whether the City’s governmental immunity was waived because there were “violations or threatened violations” of the Antiquities Code. Tex. Nat. Res. Code § 191.173. Only in that circumstance is there a waiver of governmental immunity. Id. The same proof—that there are no “violations or threatened violations” of the Antiquities Code—is also Conrad’s defense to the Coalition’s claims. Therefore this Court’s ruling on the appeal of the plea to the jurisdiction is potentially dispositive of the Coalition’s suit against both the City and Conrad. The Coalition’s attempt to render the City’s appeal moot by a nonsuit against the City should be seen for what it is—a procedural ploy to deprive the City of its interlocutory appeal while at the same time stopping the City from making the necessary repairs under the contract with Conrad.
G. A party’s right to file a nonsuit has exceptions.
The City recognizes that the general rule is that a party has a right to take a nonsuit, but that rule is not without exception. Other appellate courts have recognized that a nonsuit cannot be used to evade the effect of a mandatory stay. See Oryx, 167 S.W.3d at 438 (holding appellate court order staying “all further proceedings” prohibited trial court from giving effect to motion for nonsuit). In Oryx, the court held that a nonsuit taken after a court- ordered stay was void and of no effect. Oryx, 167 S.W.3d at 438. There, the appellate court ordered a stay similar to that in section 51.014(b), stating that “all further proceedings at the trial court level are STAYED pending resolution of this appeal or further order of this court.” Id. at 437. Nevertheless, just like the Coalition did here, the plaintiff nonsuited the case at the trial court and moved to dismiss Oryx’s appeal as moot. Id. The court of appeals held that “[b]ecause this court’s order prohibited the continuation of proceedings in the trial court until further notice from this court, the trial court had no authority to entertain Sage’s non-suit motion or enter the order of dismissal.” Id. at 438. An order in violation of a stay is without force. Swinerton, 233 S.W.3d at 9.
[*19]Similarly, the Texas Supreme Court has held that a nonsuit taken to avoid an unfavorable venue ruling is void. In re Team Rocket, L.P., 256 S.W.3d 257, 258-59 (Tex. 2008) (orig. proceeding). See also Hendrick Med. Ctr. v. Howell, 690 S.W.2d 42, 45-46 (Tex. App.—Dallas 1985) (orig. proceeding) (“Permitting a plaintiff to avoid being bound by a venue determination simply by nonsuiting and subsequently refiling the same cause of action against the same parties in a county other than that in which venue was determined to be proper would, in effect, circumvent the legislature’s intent that there be only one venue determination in a cause of action.”).
[*20]The nonsuit the Coalition announced after the City invoked the Section 51.014(b) stay of all proceedings, as well as all other proceedings in the trial court following the stay, should be held void and of no force. The nonsuit should not impede this Court proceeding to decide the City’s interlocutory appeal on jurisdiction.
Conclusion and Prayer
For all of the reasons stated, the City respectfully prays that this Court grant rehearing and deny the Coalition’s amended motion to dismiss this appeal and on final hearing, enforce the stay retroactively, and reverse and render judgment in favor of the City on its plea to the jurisdiction.
[*21]Respectfully submitted, DONNA L. EDMUNDSON City Attorney JUDITH L. RAMSEY Chief, General Litigation Section
By: /s/ Kathleen Hopkins Alsina Kathleen Hopkins Alsina Senior Assistant City Attorney SBN: 09977050 Mary E. (Mary Beth) Stevenson Assistant City Attorney State Bar No. 24072366 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby, 4th Floor Houston, Texas 77002 832.393.6491 (Telephone) 832.393.6259 (Facsimile) [email protected] [email protected] [email protected]
Attorneys for Appellant
Certificate of Compliance I certify that the foregoing was prepared in Microsoft Word 2010 Version 14.0 in Calisto MT 14 point font; the word-count function shows that, excluding those sections exempted under TRAP 9.4(i)(1), the motion contains 4,402 words. /s/ Kathleen Hopkins Alsina Kathleen Hopkins Alsina Certificate of Service
[*22]I hereby certify that on this 26th day of March, 2015, a true and correct copy of the foregoing has been served on counsel below via e-service: Benjamin L. Hall, III William Van Fleet The Hall Law Firm 530 Lovett Boulevard Houston, Texas 77006 [email protected] Attorney for Appellee /s/ Kathleen Hopkins Alsina Kathleen Hopkins Alsina Exhibits Ex. A Email notice confirming filing of motion Ex. B Email notice confirming receipt and acceptance of motion Ex. C Email notice of issuance of opinion and order Ex. D Docket sheet in U.T. Med. Branch v. Blackmon
[*23]Appendix App. [1] Order Granting Temporary Injunction (3/2/15) App. [2] Plaintiff’s Verified Second Amended Original Petition and Supplement (2/24/15) App. [3] Temporary Restraining Order (1/20/15) App. [4] City’s Motion to Deny Plaintiff’s Request for Injunctive Relief (2/6/15) App. 5 City’s Plea to the Jurisdiction (2/11/15) App. [6] Order Denying City’s Plea (2/12/15) App. 7 City’s Notice of Interlocutory Appeal (2/12/15) App. [8] Conrad’s Notice of Interlocutory Appeal (3/20/15) App. 9 Order Striking Petition in Intervention (2/12/15) App. 10 March 2, 2015 Hearing Transcript Excerpt, pp. 42-43 App. 11 March 2, 2015 Hearing Transcript Excerpt, p. 96 EXHIBIT A Holbrook, Bruce - LGL From: [email protected] Sent: Tuesday, February 24, 2015 4:46 PM To: Holbrook, Bruce - LGL Subject: eFileTexas.gov - Filing Submitted - 4268396 Filing Submitted Envelope Number: 4268396 The filing below has been submitted to the clerks office for review. Please allow up to 24 business hours for clerk office processing. Filing Details Court Courts of Appeals Date/Time Submitted: 2/24/2015 4:44:56 PM Filing Type: Response Activity Requested: EFileAndServe Filed By: Bruce Holbrook Fee Details This envelope is pending review and fees may change. Case Fee Information $0.00 Response $0.00 Total: $0.00 (The envelope still has pending filings and the fees are subject to change) Document Details Lead File: Response to Motion to Dismiss with Exhibits.pdf Lead File Page Count: 93 Contact your service provider with any questions Need Help? Help Visit: https://efiletexas.gov/contacts.htm Email: [email protected]
Please do not reply to this email. It was generated automatically by eFileTexas.gov EXHIBIT B Holbrook, Bruce - LGL From: [email protected] Sent: Wednesday, February 25, 2015 8:00 AM To: Holbrook, Bruce - LGL Subject: eFileTexas.gov – Filing Accepted - 4268396
Filing Accepted Envelope Number: 4268396 The filing below was reviewed and has been accepted by the clerks office. Be sure to click the link below to retrieve your file stamped copy of the document filed. Filing Details Court Courts of Appeals Case Number 14-15-00138-CV Case Style Date/Time Submitted 2/24/2015 4:44:56 PM Date/Time Accepted 2/25/2015 8:00:07 AM Accepted Comments Thanks for efiling Filing Type Response Activity Requested EFileAndServe Filed By Bruce Holbrook Document Details Lead File Response to Motion to Dismiss with Exhibits.pdf Lead File Page Count 93 https://efile.txcourts.gov/ViewDocuments.aspx?FID=ca71ba57-6118- File Stamped Copy 4c9c-b793-324afb11bfac This link is active for 35 days. Contact your service provider with any questions Need Help? Help Visit: https://efiletexas.gov/contacts.htm Email: [email protected]
Please do not reply to this email. It was generated automatically by eFileTexas.gov EXHIBIT C Alsina, Kate - LGL From: [email protected] Sent: Wednesday, February 25, 2015 3:00 AM To: Alsina, Kate - LGL Subject: Notice(s): 14-15-00138-CV Attachments: OPINION ISSD_AFFDIS_FILECOPY.pdf; JUDGMENT.pdf; OPINION.pdf
You have received notice(s) for the following case(s): 14-15-00138-CV TC #2015-02771 The City of Houston v. Freedmen's Town Preservation Coalition Files OPINION ISSD_AFFDIS_FILECOPY.pdf JUDGMENT.pdf OPINION.pdf Thank you, Christopher Prine, Clerk 14th Court of Appeals Do not reply to this message. If you have questions, please contact the Court at 713-274-2800.
EXHIBIT D Case Detail Page 1 of 4
CASE; DATE FILED: 03/20/2003 CASE TYPE: MISCELLANEOUS CIVIL STYLE: THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON V,: THE ESTATE OF DARLA BLACKMON. BY ITS BENEFICIARY SHEILA SHULTZ AND SHEILA SHULTZ INDIVIDUALLY ORIS PROC: NO TRANSFER FROM: TRANSFER IN: TRANSFER CASE: TRANSFER TO: TRANSFER OUT: PUB SERVICE: WEST PUBLISHING APPELLATE BRIEFS DATE I EVENT TYPE I DESCRIPTION I DOCUMENT :NO BRIEFS. CASE EVENTS DATE I EVENT TYPE DESCRIPTION DISPOSITION I DOCUMENT CASE FILE WAS DESTROYED PER 02/11/2013 RETENTION SCHEDULE LETTER TO TRIAL 10/16/2012 COURT CLERK FOR RETURN OF RECORD 07/28/2006 CASE STORED MANDATE ISSUED BY 07/28/2006 SUPREME COURT. DISMISSED-WANT 06/12/2006 ORDER ENTERED OF JURISDICTION CASE FORWARDED 01/31/2006 TO HIGHER COURT PETITION FOR REVIEW FILED IN THE 09/08/2005 SUPREME COURT MOTION TO EXTEND TIME TO FILE 07/29/2005 PETITION FOR REVIEW hfip://www,search.lxcourts,gov/Case,aspx9cn=104)34)0093-CV&coa:=:coal()&p==l 2/19/2015 • Case Detail Page 2 of 4 DATE EVENT TYPE DESCRIPTION I DISPOSITION I DOCUMENT RETENTION TIME RETAIN CIVIL CASE 06/22/2005 CASE FILE WILL BE FOR 6 YEARS RETAINED JUDGMENT ENTERED 06/22/2005 BY THIS COURT DISSENTING DISSENTING OPINION 06/22/2005 OPINION ISSUED OPINION [ HTML/13 KB j 06/22/2005 OPINION ISSUED AFFIRMED MOTION TO DISMISS MOTION OR WRIT 06/22/2005 FOR WANT OF DENIED JURISDICTION ORDER ENTERED DISPOSING OF A MOTION OR WRIT 06/22/2005 PROCESS DENIED (CONSOLIDATE) RESPONSE TO 05/27/2005 APPELLEE MOTION RESPONSE TO 05/24/2005 APPELLANT MOTION MOTION TO DISMISS 05/17/2005 FOR WANT OF APPELLEE JURISDICTION JUDGMENT 04/27/2005 WITHDRAWN BY THIS COURT. OPINION 04/27/2005 WITHDRAWN DISSENTING DISSENTING 04/27/2005 OPINION ISSUED OPINION ( HTML/18 K 04/27/2005 ORDER ENTERED MOTION FOR 04/27/2005 REHEARING APPELLANT GRANTED MOTION FOR MOTION OR WRIT 03/29/2005 EXTENSION OF TIME APPELLANT GRANTED TO FILE RESPONSE RESPONSE TO 03/29/2005 APPELLANT MOTION MOTION FOR 03/22/2005 EXTENSION OF TIME APPELLANT TO FILE RESPONSE RESPONSE REQUESTED TO 03/08/2005 MOTION FOR REHEARING. MOTION FOR 10/29/2004 APPELL EE REHEARING FILED MOTION FOR ORAL DISMISSED AS 10/19/2004 APPELL EE ARGUMENT MOOT RETENTION TIME RETAIN CIVIL CASE 10/13/2004 CASE FILE WIl.L BE FOR 6 \'EARS RETAINED http://www,scarch.{xcourts.gov/Case.aspx"?'cn:=104)3-00093-CV&coa=coa10&p=l 2/19/2015 «(3ase Detail Page 3 of 4 DATE EVENT TYPE I DESCRIPTION DISPOSITION DOCUMENT JUDGMENT ENTERED 10/13/2004 BY THIS COURT MEMORANDUM REVERSED MEMORANDUM OPINION 10/13/2004 OPINION ISSUED RENDERED [ HTML/20 KB I 10/13/2004 SUBMITTED CASE ADVANCED 09/22/2004 WITHOUT ORAL ARGUMENT MOTION FOR ORAL MOTION OR WRIT 09/22/2004 APPELLEE ARGUMENT DENIED 09/15/2003 REPLY BRIEF FILED APPELLANT MOTION FOR ORAL 08/27/2003 APPELLEE ARGUMENT CASE READY TO BE 08/22/2003 SET BRIEF FILED, ORAL 08/22/2003 ARGUMENT NOT APPELLEE REQUESTED BRIEF RECEIVED, NOT 08/13/2003 APPELLEE FILED MOTION FOR FURTHER EXTENSION OF TIME MOTION OR WRIT 07/16/2003 EXTENSIONS TO FILE BRIEF GRANTED DISFAVORED DISPOSED MOTION FOR 07/10/2003 EXTENSION OF TIME APPELLEE TO FILE BRIEF BRIEF FILED, ORAL POSTMARKED 07/03/2003 ARGUMENT TIMELY REQUESTED MOTION FOR NO FURTHER EXTENSION OF TIME EXTENSIONS OF MOTION OR WRIT 06/11/2003 TO FILE BRIEF TIME WILL BE GRANTED DISPOSED ENTERTAINED MOTION FOR 06/06/2003 EXTENSION OF TIME APPELLANT TO FILE BRIEF CASE ACCELERATED 05/21/2003 AND SET FOR SUBMISSION. CLERK'S RECORD 05/21/2003 FILED ACCELERATED 05/16/2003 APPEAL - FIRST NOTICE REPORTER'S RECORD 05/12/2003 FILED COURT REPORTER'S MOTION OR WRIT 05/07/2003 REQUEST FOR COURT REPORTER GRANTED ADDITIONAL TIME COURT REPORTER'S 05/01/2003 REQUEST FOR COURT REPORTER. ADDITIONAL TIME 10-03-00093-CV&coa=coal0&p=l 2/19/2015 •Case Detail Page 4 of 4 DATE EVENT TYPE DESCRIPTION I DISPOSITION I DOCUMENT COURT REPORTER'S MOTION OR WRIT 04/02/2003 REQUEST FOR COURT REPORTER GRANTED ADDITIONAL TIME COURT REPORTER'S 04/01/2003 REQUEST FOR 2OURT REPORTER ADDITIONAL TIME DOCKETING 03/20/2003 STATEMENT FILED NOTICE OF APPEAL 03/20/2003 FILED - CIVIL CASE CALENDARS SET DATE CALENDAR TYPE j REASON SET 02/11/2013 CASE STORED CASE DESTROYED PARTIES PARTY PARTYTYPE REPRESENTATIVE APPELLANT THE UNIVERSITY OF TEXAS MEDICAL APPELLANT HARRY DECKARD BRANCH AT GALVESTON TEXAS, THE STATE OF CRIMINAL - STATE OF TEXAS SHULTZ, SHEILA APPELLEE STEPHEN A. KHOURY 8LACKMON, SARLA APPELLEE STEPHEN A. KHOURY TRIAL COURT INFORMATION COURT: 52ND DISTRICT COURT COUNTY: CORYELL COURT JUDGE: HONORABLE PHILLIP H ZEIGLER COURT CASE: COT-01-33769 COURT REPORTER: PUNISHMENT: http;//www.searchixcouris.gov/Case.aspx?cn=lO-03-00093-CV&coa=coalO&p::=I '19/201: APPENDIX 1 FILED Chris Daniel District Clerk MAR 0 2 2015 Time: CAUSE No. 2015-02771 Harris County, Texas By FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION AND CATHERINE ROBERTS HARRIS COUNTY, TEXAS VS. CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT ORDER GRANTING TEMPORARY INJUNCTION On February 12, 2015, came on for hearing the Application for Injunctive Relief filed by Freedmen's Town Preservation Coalition (the "Coalition") and Catherine Roberts ("Roberts"), Plaintiffs herein. At the outset of the hearing, the Court struck the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page1of6 attempted intervention in this case filed by Robin Street Square Townhome Association, Crosby Street Square Townhome Association and Valda Bush. The Court further denied Defendant City of Houston's Plea to the Jurisdiction. During the presentation of Plaintiffs' evidence, Defendant City of Houston advised the Court that it had filed an interlocutory appeal of the Court's denial of the City's Plea to the Jurisdiction and insisted that the injunction hearing must immediately be halted pending resolution of such interlocutory appeal. As is their right, Plaintiffs announced in open court and on the record that they were non-suiting their claims against the City. Because the City's Plea to the Jurisdiction and its interlocutory appeal did not affect Plaintiffs' claims and causes of action against Defendant Conrad Construction Co., Ltd. ("Conrad"), Conrad remains as the sole defendant in this cause. [1] RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging The Court thereafter recessed the hearing until February 16, 2015, in order to give Conrad sufficient time to retain counsel to represent it in this case. On February 16, 2015, by agreement of the parties the Court continued the temporary restraining order previously entered herein and recessed the temporary injunction hearing until March 2, 2015. On March 2, 2015, the Court continued hearing the evidence presented by Plaintiffs and Conrad. The Court, having heard the evidence presented and having heard and considered the arguments of the respective counsel for Plaintiffs and Conrad, is of the opinion and so finds that: 1. Freedmen's Town, including all of its bricked streets, are located in a district located in the Fourth Ward of the City of Houston, Harris County, Texas, which was ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page2of6 founded and settled by emancipated slaves following the conclusion of the American Civil War. [2]. Over a century ago, the black residents of Freedmen's Town themselves paid for and/or contributed funds to provide bricks to pave over the then-dirt travel ways that are now streets located inside the district. [3]. These street bricks were laid with religious, cultural and historically peculiar characteristics dating back to African origins, including cultural, religious and historical traditions of the west African tribe of the Yoruba [indigenous to modern Nigeria and western Benin]. The bricked streets include deliberate efforts to arrange the bricks in a "crossroads pattern" used by freed slaves in Texas to ward off evil spirits and to promote well-being and honesty in the community.
4. In 1984, the Texas Historical Commission (the "THC") nominated Freedmen's
Town to the federal government to be placed on the National Register of Historic Places as an "Historic District." That nomination was approved the same year, and Freedmen's
Town has been a designated national Historic District for over thirty years.
5. In 1992, the Houston City Council passed a resolution designating Freedmen's
Town as an Historic District.
6. Freedmen's Town constitutes a "designated historic district" as that term is defined in Tex. Admin. Code Title 13, Part 2, § 26.3(22).
7. The brick paved streets within Freedmen's Town constitute "structures" as that
term is defined in Tex. Admin. Code Title 13, § 26.3(66). ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page3of6
8. The brick paved streets within Freedmen's Town further constitute structures of historical, cultural and religious interest pursuant to Tex. Natural Res. Code Ann. § 191.092(b) because they (a) were significantly associated with an event that symbolizes an important principle or ideal, (b) represent a distinctive architectural type and have value as examples of a period, style, or construction technique, and (c) are important as part of the heritage of a religious organization, ethnic group, or local society. 9. Both Freedmen's Town and the brick paved streets situated within the district constitute "state antiquities landmarks" as such term is defined by Tex. Admin. Code Title 13, Part 2, § 26.3(63) and used in Tex. Natural Res. Code Ann. § 191.092(a). 10. Pursuant to a construction contract by and between the City and Conrad to repair or replace water and sewer lines underneath the streets, avenues and alleys lying within Freedmen's Town, the City and Conrad intend to remove, alter, damage, destroy, salvage, or excavate the bricks which pave the streets of Freedmen's Town.
11. Pursuant to the provisions of Tex. Natural Res. Code Ann. §§ 191.093 and 191.131, Conrad is required to obtain and/or have in its possession the appropriate permit(s) from the THC in order to remove, alter, damage, destroy, salvage, or excavate the brick paved streets situated within Freedmen's Town, but Conrad does not possess all required permits.
12. As citizens of the state of Texas, the Coalition, its members, and Roberts have standing to seek and obtain injunctive relief prohibiting Conrad or any other contractor from any violation or threatened violation of the Texas Antiquities Code
pursuant to Tex. Natural Res. Code Ann. § 173(a). ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page4of6
13. Because Plaintiffs seek injunctive relief expressly granted by Tex. Natural Res. Code Ann. § 173(a), they need not either allege or prove that they will suffer irreparable harm if Conrad is not restrained and enjoined as requested in Plaintiffs' Application. 14. Alternatively, if the bricks paving the streets of Freedmen's Town are removed, damaged, excavated or altered in any way, their unique religious, cultural and historical significance will be irretrievably lost, and Plaintiffs thus have no adequate remedy at law. Also, at the commencement of the temporary injunction hearing, Conrad and the City stipulated on the record that Plaintiffs would sustain immediate and irreparable harm if an injunction were not granted as requested by Plaintiffs 15. Unless restrained and enjoined from doing so, Conrad will remove, alter, damage, destroy, salvage, or excavate the brick paved streets situated within Freedmen's Town without an appropriate permit from the THC in violation of Tex.
Natural Res. Code Ann. §§ 191.093 and 191.131, and Plaintiffs will suffer irreparable harm as previously stipulated by the parties.
Based upon the foregoing findings, and pursuant to the Court's express grant of the power to restrain and enjoin any violation or threatened violation of the Texas
Antiquities Code pursuant to Tex. Natural Res. Code Ann. § 173(a), the Court is of the opinion that Plaintiffs' Application for Injunctive Relief should be GRANTED.
It is therefore ORDERED that Conrad Construction Co., Ltd., its agents, employees, servants and representatives, and all those acting in concert with them, be ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page5of6
and hereby are prohibited from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town Historic District from the date of this Order until judgment is entered upon final trial upon the merits of this case. Plaintiffs are ORDERED to post a bond in conformance with the law in the amount of $5,000, which is already posted to support the prior TRO . Trial of this cause is set to commence on the ( PA day of , 2015 at SIGNED thi%day of March, 2015 at ( -PO 0 g.m. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page6of6 6 PRESIDING JUDGE I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this March 26, 2015 Certified Document Number: 64469295 Total Pages: 6 U'A4 (0.az Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail [email protected] APPENDIX 2 2/24/2015 5:46:14 PM Chris Daniel - District Clerk Harris County Envelope No. 4269683 By: ALEX CASARES Filed: 2/24/2015 5:46:14 PM CAUSE No. 2015-02771 FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION, CATHERINE ROBERTS AND GLADYS HOUSE HARRIS COUNTY, TEXAS VS. CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT PLAINTIFF'S VERIFIED SECOND AMENDED ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF To THE HONORABLE DISTRICT JUDGE: Freedmen's Town Preservation Coalition and Catherine Roberts (collectively the "Coalition"), and Gladys House, Individually, Plaintiffs herein, file this Verified Second ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page1of11 Amended Original Petition and Application for Injunctive Relief complaining of Conrad Construction Co., Ltd. ("Conrad") and would respectfully show the Court the following: I. DISCOVERY PLAN Plaintiffs intend for discovery to be conducted pursuant to Tex.R.Civ.Pro. 190.3, Level 2. II. PARTIES 2. The Coalition is an unincorporated association all of whose members are residents and citizens of Houston, Harris County, Texas. Roberts is a member of the Coalition and is also a resident and citizen of Houston, Harris County, Texas. House is a member of the Coalition and is also a Texas citizen who lives in Freedmen's Town located in Fourth ward, Houston, Texas.
3. Conrad is a limited partnership organized and existing under the laws of the state of Texas which has already been served with citation and appeared herein and, thus, no further service is required upon Conrad.
III.
JURISDICTION AND VENUE
4. Pursuant to Tex. Natural Res. Code Ann. § 191.173(a), this Court possesses jurisdiction to enjoin the threatened illegal actions sought to be undertaken by Conrad as hereafter more fully described.
5. Pursuant to Tex. Natural Res. Code Ann. § 191.173(b), venue is proper in ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page2of11
this Court because all of the threatened illegal actions described below are intended to be taken in Harris County, Texas. IV. FACTUAL ALLEGATIONS 6. This case centers upon the preservation of a unique historical site located in the City of Houston, Texas—specifically the protection and preservation of historically, religiously and culturally significant brick streets paid for and laid by freed slaves and their descendants over a century ago in the historic district of Freedmen's Town, a section of Houston's Fourth Ward. 7. As the name implies, Freedmen's Town was founded and settled by slaves freed by President Lincoln's 1863 Emancipation Proclamation, enforced by the Thirteenth Amendment to the United States Constitution, at the conclusion of the Civil
War.
8. Originally, Freedmen's Town's streets were merely dirt roads, subject to frequent flooding in Houston's frequent rainy seasons and producing muddy pools
conducive to mosquito breeding and the spread of malaria and other diseases. The residents of Freedmen's Town thus repeatedly petitioned the City to pave their streets to rid these pestilences, but were always rebuffed.
9. Thus, over 100 years ago Freedmen's Town's residents took matters into their own hands. Using their own hard-earned savings, and—to borrow the famous
Churchillian phrase—their own blood, sweat, toil and tears, the residents of Freedmen's
town not only paid for bricks—at the rate of a dollar per brick—but laid the bricks ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page3of11
themselves. 10. These street bricks were not laid haphazardly, but in the religious tradition and culture of the west African tribe of the Yoruba [indigenous to modern Nigeria and western Benin]. More specifically, the bricks were laid, in accordance with Yoruba religious culture and tradition, to bless the streets and their intersections from the destructive interference from, and the influence of, evil spirits. 11. In 1984, the Texas Historical Commission (the "THC") itself nominated Freedmen's Town to the federal government to be placed on the National Register of Historic Places as an "Historic District." That nomination was approved the same year, and Freedmen's Town has been a designated national Historic District for over thirty years.
12. In 1992, the Houston City Council followed suit and passed a resolution designating Freedmen's Town as an Historic District.
13. In 2007, the City of Houston (the "City") considered digging up those bricks to replace the water and sewer lines beneath the streets. But Rep. Sheila
Jackson Lee and then-mayor Bill White entered into an agreement pursuant to which the City received $500,000 in federal grant funds to study utilizing trenchless technology to replace the lines without disturbing the historic bricks—an alternative which the City had utilized in 1986 to repair and replace water and sewer lines in the wealthy subdivision of River Oaks without destroying or otherwise disturbing that area's streets and walkways.
14. By 2014, however, the City inexplicably abandoned its 2007 agreement ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page4of11
and, using a combination of federal and city funds, let a contract to Conrad to tear up Freedmen's Town's brick streets in order to replace the water and sewer lines. This decision led to confrontations between Conrad's workers and demonstrators preventing progress on this project. More such demonstrations and confrontations will likely follow any resumption of the project. [15]. Freedmen's Town and its constituent components, including its brick paved streets, constitute sites, objects, buildings, artifacts, implements, and/or locations of historical, archeological, scientific, religious or educational interest. Accordingly, pursuant to Tex. Natural Res. Code § 191.092(a) and (b), the bricks and streets in Freedmen's Town constitute state archeological landmarks.
16. Pursuant to Tex. Natural Res. Code § 191.093, landmarks "may not be removed, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the [THC]."
17. Moreover, under Tex. Natural Res. Code § 191.131(b), "[n]o person, firm, or corporation may conduct an operation on any landmark without first obtaining a
permit and having the permit in his or its possession at the site of the operation, or conduct the operation in violation of the provisions of the permit."
18. Although the construction contract between the City and Conrad explicitly
requires the bricks in the subject streets to be removed, excavated and likely altered or destroyed, in whole or in part, neither the City nor Conrad have ever obtained either a
contract with or an appropriate permit from the THC to do so. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page5of11
V. CAUSES OF ACTION avenues located within the geographical boundaries of Freedmen's Town, and (b)
Conrad has not obtained such a permit from the THC. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page6of11
VI.
INJUNCTIVE RELIEF
VII.
ATTORNEYS FEES alter, damage, destroy, salvage or excavate any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town, and (b) Conrad has not obtained such a permit from the THC;
(3) The Coalition have and recover from Conrad its reasonable and necessary attorneys fees through the trial and any post-trial matters relating to the entry of a final judgment herein, together with reasonable and necessary attorneys fees in the event that Conrad should unsuccessfully appeal any adverse judgment to a court of appeals and/or to the Texas Supreme Court;
(4) The Coalition have and recover from Conrad post-judgment interest on all
attorneys fees awarded to the Coalition at the highest rate allowed by law; ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page9of11 Respectfully submitted, CAUSE No. 2015-02771
FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION , CATHERINE ROBERTS AND GLADYS HOUSE
VS. HARRIS COUNTY, TEXAS
CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT
VERIFICATION
STATE OF TEXAS
COUNTY OF HARRIS
Before me, the undersigned authority, personally appeared Gladys House whose identity is known to me, and after being duly sworn stated upon her oath that the foregoing Second ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page11of11 Historic District without first following all the procedures for and obtaining from the THC either a contract or permit expressly permitting Conrad to do so;
(2) The judgment of this Court declaring that (a) Conrad is required to obtain and keep in its possession at all times an appropriate permit from the THC
expressly permitting it to perform any construction work which would remove, alter, damage, destroy, salvage or excavate any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's own, and (b) Conrad has not obtained such a permit from the THC;
(3) The Coalition have and recover from Conrad its reasonable and necessary
attorneys fees through the trial and any post-trial matters relating to the entry ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page3of4 Respectfully submitted, I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this March 26, 2015
Certified Document Number: 64389889 Total Pages: 4 le- Cause No. 42(0t5 0 211 6-r 191 Freedmen's Town Preservation Coalition In the rijudicial C IA District Court, Harris County, Texas v. The City of Houston and Conrad Construction FILEDChris Daniel Co., Ltd District Clerk
JAN 2 0 2015 Time: Harris County, Texas Temporary Restraining Ordemy Deputy
Pending before the Court is Plaintiff's Verified Original Petition and Request for Immediate Injunctive Relief. After considering the allegations in the verified petition, along with the attached exhibits, and given the urgency of the relief requested, (given that the complained of conduct is scheduled to commence in ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:63899369-Page1of3 City has a “permit from the [THC],” Plaintiff’s request for a temporary injunction, its sole claim in this litigation, should be denied as a matter of law.
3. As independent and alternative grounds, Plaintiff’s request should be denied because (1)
the City was not required to secure an permit or approved contract from the THC for the Freedmen’s Project because Freedmen’s Town has not been designated as a “State Archeological
Landmark” and therefore not subject to the permit or contract requirement, and (2) Plaintiff lacks standing to seek injunctive relief under the Code.
II. Background
4. On January 20, 2015, the City of Houston’s Public Works Division began lawful work for the renovation of brick streets in Freedmen’s Town (the “Freedmen’s Project”), as approved by the Houston City Council and the THC. The City’s renovation plan includes measures to Page 2 of 10 The Antiquities Code, in its entirety, is attached hereto as Exhibit B.
that it had complied with the requirements of the Antiquities Code, but this request was denied.
The issue of the temporary injunction is now pending before the Court.
III. Potential Cost of Delay to the Public
6. The City’s contractor was on its first morning of work on the Freedmen’s Project when work was stopped by Plaintiff’s temporary restraining order. The contractor has mobilized considerable resources to the Freedmen’s Project and those resources stand ready and willing to
resume work. Time is of the essence as further delay could result in termination of the Freedmen’s Town contract. Should the contract be terminated, the City and its taxpayers could
be liable to the contractor for certain costs and expenses estimated to be $100,000. In addition, the Freedmen’s Town contract would have to be rebid. The City estimates that the rebid contract price would be in excess of $2,000,000 above the current contract price. The City therefore Page 3 of 10 A. The THC issued Freedmen’s Town Brick Streets, Archeological Permit No. 7021 to the City on September 12, 2014
8. The named permittee on Permit No. 7021 is the “City of Houston” and the title is
“Freedmen’s Town Brick Streets, City of Houston.” Exhibit A-1, at p. 1. The Permit was issued
by Pat Mercado-Allinger on behalf of the THC. Id. Ms. Mercado-Allinger is employed by the THC and part of her job duties is to sign off on permits such as Permit No. 7021. See Exhibit A, at ¶ 2. Permit No. 7021 expires on September 12, 2024. Exhibit A-1, at p.1.
9. With the permit in hand, Plaintiff has no legal grounds to insist on the continued delay of the Freedmen’s Project. However, lest there be any doubt, Mark Wolfe, Executive Director of the THC, confirms that, “Archeology Permit #7021 is granted for monitoring to be performed on a potential or designated landmark or other public land known as Freedmen’s Town Brick
Streets, City of Houston, located in Harris County at the Intersection of Wilson and Andrews Page 4 of 10 And finally, Your Honor, I brought to you another permit, Tab 14. Again, that complies with the law. It indicates who owns and controls the same, where it’s to be performed, sponsored by the principal investigator, when the permit takes effect, when it’s going to expire, precisely what the statute says the permit must contain.
Exhibit C, at 19:17-23. Based on the foregoing, there can be no doubt that the City has a permit from the THC for the Freedmen’s Project. Consequently, Plaintiff’s request for a temporary injunction should be denied.
B. The City was not required under the Antiquities Code2 to secure a permit or approved contract before proceeding with the Freedmen’s Project
12. Even more fundamentally, however, the City could but was not (and in the future will not be) required to obtain a permit from the THC for infrastructure and other public works projects in Freedmen’s Town. The Antiquities Code provides for tiered layers of protection for historical buildings and sites. Freedmen’s Town is designated as a Historic District in the National Page 5 of 10 As discussed infra, the City did secure an archeology permit for the Freedmen’s Project. However, that permit was not required or sought to comply with the protections set forth in Sections 191.093 or 191.095 of the Code. Rather, it was sought out of an abundance of caution based on historical references in the project documents.
locations of historical, archeological, scientific, or educational interest” as “State Archeological
Landmarks.” TEX. NAT. RES. CODE §§ 191.092(a). Designated State Archeological Landmarks
“may not be removed, altered, damaged, destroyed, salvaged or excavated without a contract or permit from the [THC].” TEX. NAT. RES. CODE §§ 191.093.
14. The parties assign different interpretations to the forgoing language in 191.092(a), which reads, in relevant part:
Sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest . . . are state archeological landmarks and are eligible for designation.
TEX. NAT. RES. CODE §§ 191.092(a). The difference in interpretation stems from the phrase “are state archeological landmarks and are eligible for designation.” The City interprets 191.092(a) as conferring jurisdiction on the THC to designate sites, objects, buildings, artifacts, implements, of 10 16. In determining the meaning of a statute, a court must consider the entire act, its nature and object, and the consequences that would follow from each construction. E.g., Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991). Interpretations of statutes which would produce absurd results are to be avoided. Id.
17. Under the City’s interpretation, one wishing to “remove, alter, damage, destroy, salvaged or excavate” any “site, object, building, artifact, implement, or location” that might (or might not) be of “historical, archeological, scientific or educational interest” need only to check and see if the THC has made a State Archeological Landmark designation to know if he or she needs to obtain a permit or approved contract from the THC prior to commencing work. Under Plaintiff’s interpretation, the question is impossibly vague, as no person or entity has made an official determination as to whether the alleged “historical, archeological, scientific or educational Page 7 of 10 In 1995, the 74th Legislature abolished the Texas Antiquities Committee and made the Texas Historical Commission the legal custodian of the Antiquities Code.
Archeological Landmark under the Antiquities Code. At the time, the relevant portion of the Antiquities Code was substantively the same as the current version:
All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest . . . are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas.
Vernon's Ann.Texas Civ.St. Art. 6145-9 (repealed). Adopting the City’s interpretation, the Texas Supreme Court described the Committee’s authority under the Antiquities Code as follows:
The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the Committee authority over buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated the buildings as State Archeological Landmarks, the College District does not need the Committee's permission before demolishing the buildings. Page 8 of 10 particular item is a ‘landmark,’ and is therefore subject to the permit requirement, until the Antiquities Committee formally designates it as such.
Op. Tex. Att’y Gen. No. MW-378 (1981). Freedman’s Town has not been designated as a State
Archeological Landmark. Ex. B, at ¶ 9. In accordance with Texas case law and the rules of statutory construction, as a matter of law the City was not required to get a permit from the THC prior to commencing work on the Freedmen’s Project.
C. Plaintiff lacks standing to seek injunctive relief
21. Plaintiff represents itself as an “unincorporated association of citizens located in Houston, Texas.” Pl. Orig. Pet. at p. 1. Plaintiffs assert standing under Section 191.173(a) of the Antiquities Code. Id. at p. 2. That section confers standing to “a Citizen of the State of Texas.”
TEX. NAT. RES. CODE §§ 191.173(a). By its own pleading, Plaintiff is not a “citizen,” it is an
“unincorporated association.” Accordingly, it lacks standing under the Antiquities Code. Page 9 of 10 Senior Assistant City Attorney SBN 24040424 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street Houston, Texas 77002 832.393.6348 (telephone) 832.393.6259 (facsimile) [email protected] Attorneys for Defendant the City of Houston I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this February 12, 2015
Certified Document Number: 64152036 Total Pages: 10 1 CAUSE NUMBER 2015-02771
2 FREEDMEN'S TOWN : IN THE DISTRICT COURT PRESERVATION COALITION : 3 : v. : HARRIS COUNTY, TEXAS 4 : THE CITY OF HOUSTON AND : 5 CONRAD CONSTRUCTION CO., : LTD. : 80th JUDICIAL DISTRICT
************************************************* JANUARY 26, 2015 ************************************************* ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page1of24
2 A P P E A R A N C E S 4 FOR THE PLAINTIFF: Mr. Benjamin Hall, III, SBN 08743745 5 THE HALL LAW FIRM 530 Lovett Boulevard 6 Houston, Texas 77006 Telephone: 713-942-9600 7 Facsimile: 713-942-9566
8 Mr. William L. Van Fleet, SBN 20494750 Attorney at Law 9 9225 Katy Freeway, Suite 250 Houston, Texas 77024 10 Telephone: 713-224-9400 Facsimile: 713-224-0609 12 FOR THE DEFENDANT: Ms. Darah Eckert, SBN 24007141 ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page2of24
P R O C E E D I N G S
THE COURT: We are on the record in Cause Number 2015-02771, Freedmen's Town Preservation Coalition versus City of Houston, et al., and appearance for the record, Counsel.
MR. HALL: Your Honor, Benjamin Hall and Bill Van Fleet on behalf of Freedmen's Town Preservation Coalition.
MS. ECKERT: Darah Eckert, Lisa Ketai, and Brian Amis on behalf of the City of Houston.
THE COURT: All right. What's going on today? It's your motion to dissolve, so -- ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page3of24 TRO. We believe the TRO has some deficiencies, one being that it's void on its face because it doesn't state the time that it was entered. The petition has the time the petition was filed, but the TRO -- there's no time on the TRO, and Rule 680 of the Texas Rules of Civil Procedure -- that voids the TRO.
And then the TRO is based on incorrect facts of law and -- statement of facts and law, the first being that the TRO is -- the TRO proposes that the City has -- does not have the requisite permission from the Texas Historical Commission to start and complete the brick renovation project for ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page4of24 because it's designated as a historical district only, the City has to provide notice, and it has done that. It has -- the THC has been involved with our project. The public has been involved with our project. Mayor has someone on staff, Keith Wade, who has been dealing with the stakeholders, the coalition -- the members of the coalition about the project.
On December 15, THC visited Houston, from Austin, and they looked at the process that we were using to remove and clean the bricks. Linda Henderson was the representative from THC that came ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page5of24 mains, water mains, fire hydrants.
All of this work needs to be done in this area, so we need to remove the bricks, clean them, store them. We're going to have an architecture -- an archaeologist on-site. They've coordinated the with the Texas Historical Commission. They're going to be on-site every day that we're doing this project. There is -- the bricks -- when the bricks are being worked on and they're being removed, the archaeologists are going to be on-site, and they're going to supervise all of this work.
THE COURT: Let me ask you a ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page6of24 THE COURT: What I saw previously was there's supposed to be a formal permit from the Historical Commission before work begins. Correct?
MS. ECKERT: No.
THE COURT: Oh.
MS. ECKERT: That's incorrect.
THE COURT: Okay. Enlighten me on this one.
MS. ECKERT: We have approval from the Texas Historical Commission. The -- the permit that -- Section 191 of the Texas Natural Resource Code -- ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page7of24 designation do have a heightened scrutiny for work being done on them. Freedmen's Town does not have that designation. Because it is designated as a historical district, there are notice provisions. There's notice to THC that must be given. There's coordination with THC that must be done.
We have done that. They've been involved in the process. We have -- and I've attached to my motion to withdraw -- there are -- the THC approvals are part of the field notes, and there are -- there's -- for the brick removal, which is Plan Submittal 47(b), and the -- the permission is ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page8of24 Society. We're going to get these people involved. There's going to be oversight of this project.
THE COURT: I guess I'm a little concerned as to why there was going to be oversight, but then it seems like work just started when there was just a breakdown in communication, from what I understood. Sounded like a breakdown in communication.
MS. ECKERT: There has not been any breakdown in communication. Work was slate -- we got -- we got permission from the THC. Kevin Wade with the mayor's office deals and communicates on a ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page9of24 THE COURT: -- of this week at 1:30, so we're talking about a four-day differential on this.
MS. ECKERT: I understand.
THE COURT: It's almost akin to kind of getting a second bite at the apple. I -- notwithstanding the whole time issue, which -- generally in those cases I end up signing an amended TRO with the time on it that does exactly the same thing. So I'm -- I'm -- I find it curious that we're back here making arguments that, ostensibly, you'll make again on Friday at 1:30. I'm trying to figure out where the -- the harm is here in waiting until -- ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page10of24 MS. ECKERT: Okay. It's a great question. Because what's out there right now in the public and in front of the public eye is that we're acting in violation of the law, and we're not. And so we're simply -- we -- we have all the requisite permissions and felt -- we feel very strongly that we needed to get that out there, that we're not -- we're not acting in violation -- we're not violating the Texas --
THE COURT: Right. I'm not in the business of PR games and media games. I'm really not. I'm in the business of -- ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page11of24 strong that ancillary court already granted a TRO."
And our -- our position is it shouldn't have been granted because it's not factually or legally sound. It's not based on correct facts and the correct interpretation of the law. We have the requisite THC approval to move forward on this project, and if you read the Plaintiff's Original Petition, it says we don't, and we do.
THE COURT: Okay. I'm still not hearing any reason why we couldn't have dealt with this in your home court on Friday, in four days, like we already discussed, but okay. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page12of24 answer that question. First, Exhibit 1 clearly recognizes the entire Freedmen's Town as a historic -- historically designated site by -- and it is on the National Register of Historic Places. That's no longer in contest.
Exhibit 2 shows that landmarks -- and that's a key term, Your Honor, "landmarks." -- are the sole property of the State of Texas and may not be removed, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the committee. The City has neither a contract from nor a permit from the committee. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page13of24 State Archaeological Landmark, and quite honestly, she attributes that to a telephone call with Linda Henderson. Linda Henderson is not the THC.
We actually brought the identity of all of the commissioners of the THC, none of which is Linda Henderson. And it's kind of frightening to believe that the City's lawyers would rely upon that telephone call with a non-commissioner and no official action of the commission, but they did.
The City is going to find out on Friday, we believe, that they have an even more fundamental problem, and that is that the very bid ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page14of24 designation." That is as expansive a definition of "State Archaeological Landmark" as you can have. Again, the City is simply wrong by relying upon a telephone call as opposed to referring to the law.
Next, Tab 4. Here, under Section 191.131 -- again, in a separate part of the law, the State Legislature says "No person" -- and I'm at "b," Your Honor. -- "No person, firm, or corporation may conduct an operation on any landmark without first obtaining a permit and having the permit in his or its possession at the -- at the site of the operation or conduct the operation in violation of the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page15of24 Well, what does a permit have to include? So we have provided the Court with Section one -- which is under Tab 5 -- 191.054, a permit for survey and discovery, excavation, restoration, demolition, or study.
Subpart "b" says, "Restoration shall be defined as any rehabilitation of a landmark, excepting normal maintenance or alterations to non-public interior spaces." And this is what the permit shall include, this is mandatory: The permit shall be on the form approved by the attorney general. It shall specify the location, nature of the activity and the time period covered by the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page16of24 the definition of "landmark." So the City was not even supposed to proceed with any work, let alone our having to rush over here to get a TRO to stop them from doing their unlawful conduct.
Next. To make sure that the Court and the City knows what has to be in the permit, Tab 7, a separate part of the law, again reiterates the permit shall include -- Subsection (b) -- the terms and condition, the period -- the permit period, and the permit expiration as well as whether it's transferable. That's what the law says the permit has to include. That's why the City attorney jumps ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page17of24 Henderson, on an open records request, "Give us the City's permits." She wrote us back this e-mail -- and this will be in evidence on Friday. "I created that site form specifically for this project, hoping that it would help thing -- things clear, but it is the only time I've used it." "It is the only time I've used it, and I created it."
Judge, the statute says the -- the attorney general has to approve the permit form, not Ms. Linda Henderson, and that's all the City has.
Next, the City, in its response -- before they found out that somebody needed to read ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page18of24 don't get to do it that way. You have to comply with the law. And, Your Honor, as you know, it pains me, as a former City attorney, to have to challenge the fact that the City's lawyers failed to do their job here. They just did.
Under Tab 12 -- so the Court then says, "Well, Mr. Hall, can you show me a permit issued by the THC?" Yes, ma'am, we can. Your Honor, under Tab 12 is an actual permit, Permit Number 494, issued by THC -- the Tarrant County Courthouse; under Tab 13, another permit issued by the THC for rehabilitation in Jefferson County Courthouse, and ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page19of24 doesn't have a time." And I think that the Court should put 10:00 o'clock. I think you signed the order at 10:00 o'clock. But it does include a time. It says, in the last paragraph -- and I highlighted it. -- "This temporary restraining order is effective immediately upon signing by the Court and shall continue in force," et cetera.
So the Court indicates that it's effective immediately upon signing. But if they want a time, which I think -- so the City appears to want to have a time here. If the Court were to, on this same order, just simply say "at" -- where it says ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page20of24 MS. ECKERT: Brief response, Your Honor?
THE COURT: Sure.
MS. ECKERT: Okay. So Mr. Hall has read a bunch of Section 191 and a bunch of it that doesn't apply to this project because what he hasn't said is that Freedmen's Town has been designated as a State Archaeological Landmark, and he hasn't said that because it hasn't, which means that Section 191.052(5), "Notice Required" -- that is the section of 191 that applies to this project. "Before breaking ground at a project location on State or ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page21of24 permission to go forward with these projects, and we do have the requisite permission.
And for the rest of 191 that Mr. Hall has talked about -- that doesn't apply because this site is only designated as -- as a historical district. It's not -- there's no designation as a State Archaeological Landmark, and that is a very important distinction to make.
THE COURT: All right. Like I said, I read this stuff before I came out here. Frankly, Counsel, I just disagree with you. I think that the -- Code Sections 9 -- 191, the initial sections, ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page22of24 of arguments in front of the TV cameras on Friday in Judge Weiman's court instead of coming here, because, frankly, I think they passed the bar when I signed it last Tuesday. They passed the very minimal bar to get me to still be okay with it today, which gets you to Friday in your home court, Judge Weiman, at 1:30. The only thing that I may be willing to do, just for the sake of completion, is sign an amended TRO that -- where I would change absolutely no language on here and only give you a time in addition to the date, and that's about all I'm willing to do. So --
MS. ECKERT: Okay. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page23of24 1 THE STATE OF TEXAS ) ) 2 COUNTY OF HARRIS ) 4 I, Donna King Hammer, Official Court Reporter in and for the 164th Judicial District Court 5 of Harris County, Texas, do hereby certify that the above and foregoing contains a true and correct 6 transcription of all portions of evidence and other proceedings requested in writing by counsel for the 7 parties to be included in this volume of the Reporter's Record in the above-styled and -numbered 8 cause, all of which occurred in open court or in chambers and were reported by me.
[*24]10 I further certify that this Reporter's Record of the proceedings truly and correctly 11 reflects the exhibits, if any, admitted by the respective parties.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page24of24 16 WITNESS MY OFFICIAL HAND this, the 3rd day of February, 2015.
Donna King Hammer _______________________________ DONNA KING HAMMER, CSR 6273 20 Expiration Date: 12/31/16 Official Court Reporter 21 164th Judicial District Court Harris County, Texas 22 201 Caroline, 12th Floor Houston, Texas 77002 23 (713) 368-6256
[*25]DONNA KING HAMMER, CSR 164TH OFFICIAL REPORTER (713) 368-6256
I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this February 12, 2015
Certified Document Number: 64152039 Total Pages: 24 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this February 12, 2015
Certified Document Number: 64152041 Total Pages: 1
II. The pleadings and jurisdictional facts conclusively prove that the Court lacks subject matter jurisdiction.
A. Section 191.173(a) of the Natural Resources Code provides a limited waiver of governmental immunity.
In its First Amended Original Petition and Application for Injunctive Relief
(“Amended Petition”), filed on February 6, 2015, the Plaintiff alleges that the City violated Section 191.093 of the Natural Resources Code by failing to obtain a contract
or permit from the Texas Historical Commission permitting “tampering, removal or destruction” of the bricks in Freedman’s Town, which they allege to be a “state archeological landmark.” (Amended Petition, ¶ 17). Although the City has demonstrated it possesses an archeological permit from the Texas Antiquities
Committee (“TAC”) for the project,1 the Plaintiff alleges that “a mere archeological ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page3of11 See Exhibit A, Affidavit of Mark Wolfe.
By this section of the Code, the legislature waived the state’s immunity from suit only in the limited circumstances defined, i.e., when there is a violation or a threatened violation of the Code.
However, “mere reference to [a statute] does not establish the state’s consent to be sued and thus is not enough to confer jurisdiction on the trial court.” Miller, 51
S.W.3d at 587. The trial court must consider the particular facts of the case to determine if the case comes within the scope of the limited waiver of governmental immunity. Id.
B. The facts do not establish a violation or threatened violation of the Code. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page4of11 determine if further action is warranted. Id. § 191.0525(a). There is no “permit or contract” requirement as Plaintiff has alleged; the only requirement is “notice” to the THC. There is no dispute that the City provided notice to the THC in advance of the Freedmen’s Town Project.
Plaintiff, however, seeks relief under subchapter D of the Code, which affords higher levels of protection to “State Archeological Landmarks.” (Pl. Orig. Pet. at p.
2). The THC is empowered by Subchapter D to designate “objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest” as “State Archeological Landmarks.” Tex. Nat. Res. Code
§ 191.092(a). Designated State Archeological Landmarks “may not be removed, ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page5of11 in Harris County at the Intersection of Wilson and Andrews Streets, 2 blocks south of West Dallas Street and 7 blocks west of Heiner Street.” (Ex. A at ¶ 3). Mr. Wolfe confirmed that “Archeology Permit #7021 is the only permit needed for work to proceed on the Freedmen’s Town Brick Streets Project.” (Ex. A at ¶ 7).
Because Freedman’s Town is not designated as a State Archeological
Landmark, it does not fall under the permit or contract requirements of Section
191.093. There have been no “violations or threatened violations” of the Code to establish a basis for this Court’s jurisdiction under the limited waiver of immunity in the Code.
The City has submitted Mr. Wolfe’s affidavit and Archeology Permit #7021.
This evidence meets the City’s burden to challenge the alleged a waiver of ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page6of11 Tex. Nat. Res. Code § 191.092(a). The Plaintiff interprets Section 191.092(a) to mean
that unspecified “sites, objects, buildings, artifacts, implements, and locations” are, simply by their inherent nature, State Archeological Landmarks and subject to
heightened protections under Subchapter D. The Plaintiff ignores the last phrase of the statute, which states that these sites, objects, buildings etc. “are eligible for designation.”
The Plaintiff’s interpretation of section 191.092(a) is incorrect. Under the Plaintiff’s interpretation, a site can be considered a State Archeological Landmark without the THC ever formally making that designation under Section 191.092(c).
Not only does this ignore the plain language of the statute that the areas are “eligible
for designation,” but it also renders the statute so vague it could not be enforced. ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page7of11 an injunction against the Texas Antiquities Committee2 to set aside the Committee’s order denying a permit to demolish three buildings owned by the College District. As here, the location was listed on a National Register, but was not designated as a State
Archeological Landmark under the Code. At the time, the relevant portion of the Code was substantively the same as the current version:
All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest … are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas.
Vernon’s Ann. Tex. Civ. St. Art. 6145-9 (repealed). The Texas Supreme Court described the Committee’s authority under the Code as follows:
The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page8of11 In 1995, the 74th Legislature abolished the Texas Antiquities Committee and made the Texas Historical Commission the legal custodian of the Antiquities Code.
issue such a permit. Id. at 253. Citing to Texas Antiquities Committee, the appellate court agreed and dissolved the temporary injunction. Id. These cases confirm that a site must be officially designated as a State Archeological Landmark by the THC
under Section 191.092 before it falls under the permit or contract requirements of Section 191.093. This case law is consistent with Mr. Wolfe’s testimony that the City was not required to obtain a permit or contract to perform work on the streets.
The Texas Attorney General’s Office has also interpreted the statute:
[T]he Antiquities Committee has no jurisdiction over buildings which it has not designated as state archeological landmarks, and its permission is therefore not needed before such a building is altered … it is the only reasonable construction of the Antiquities Code provisions. One can hardly be expected to know that a particular item is a ‘landmark,’ and is therefore subject to the permit requirement, until the Antiquities ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page9of11 or its possession at the site of the operation, or conduct the operation in violation of the provisions of the permit.
Tex. Nat. Res. Code § 191.131(b).
Because the evidence establishes conclusively that no permit was required under the Code for the work on Freedman’s Town, Plaintiff’s allegations under
Section 191.131(b) also fail to establish a basis for jurisdiction.
E. Conclusion
The jurisdictional facts establish that the Plaintiff’s allegations do not fall under the limited waiver of immunity from suit in Section 191.173 of the Code. Therefore
there is no waiver of the City’s immunity from suit, this Court does not have ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page10of11 Respectfully submitted, DONNA L. EDMUNDSON City Attorney JUDITH L. RAMSEY Chief, General Litigation Section
/s/ Darah Eckert Darah Eckert Senior Assistant City Attorney SBN 24007141 Lisa A. Ketai Senior Assistant City Attorney SBN 11362400 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street Houston, Texas 77002 832.393.6348 (telephone) 832.393.6259 (facsimile) [email protected] ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page11of11 I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this February 12, 2015
Certified Document Number: 64209313 Total Pages: 11 ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64215960-Page1of1
I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this February 12, 2015
Certified Document Number: 64215960 Total Pages: 1 Local Rule Notice of and Assignment of Related Case in Appeals
As required by the Local Rules Relating to Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that the following related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals: I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this March 26, 2015
Certified Document Number: 64726010 Total Pages: 3 1 CAUSE NO. 2015-02771 3 FREEDMEN'S TOWN § IN THE DISTRICT COURT OF PRESERVATION COALITION, § 4 Plaintiffs § § 5 § VS. § HARRIS COUNTY, T E X A S 6 § § 7 § THE CITY OF HOUSTON, § 8 Defendant § 80TH JUDICIAL DISTRICT
14 Plaintiff's Motion for Temporary Injunction March 2, 2015 Town?
[*42]A. Yes.
Q. Are you trying to oppose any efforts of people to get fresh water or updated sanitary sewer lines in that area?
A. Oh, no. Contrary. I work very hard to promote upgrading and that.
Q. Mr. Plessala asked a question of Ms. Wagner just a
few moments ago about any applications to designate the Wilson and Andrews streets as national landmarks. Did you hear that series of questions?
A. Yes, I did.
Q. You have knowledge about that, don't you?
A. Yes, I do.
Q. Let me show you what has been identified as Plaintiff's Exhibit 43. Do you recognize that document?
A. Yes, I do.
Q. Would you tell the Court what that document is?
A. This is a state antiquities landmark nomination form for the brick paved Andrews and Wilson streets and part of Robin Street in Freedmen's Town National Registered Historic District.
Q. Would you tell the Court what date this nomination form was created?
[*43]A. It was applied for January 29th of 2015.
Q. And is this application presently pending before the Texas Historical Commission for the Wilson and Andrews streets?
A. Yes, it is.
MR. HALL: Your Honor, plaintiffs would move into evidence Plaintiff's Exhibit 43.
MR. PLESSALA: I don't have that, may I approach and look, Your Honor?
THE COURT: Yes, if you would tender it, please.
MR. PLESSALA: No objection, Your Honor.
THE COURT: It's admitted.
MR. HALL: Thank you. Q. (BY MR. HALL) Ms. Roberts, please -- Mrs. Roberts, please tell the Court what is the purpose of this nomination form?
A. The purpose is to call attention to some portion of the historic -- National Historic District that is eligible, has been eligible for this landmark status.
Q. Now, we've told the Court we believe that these streets are eligible for a designation as landmarks. Is this one of the processes by which we can get in a normal designation?
A. Yes, it is.
Q. But that's not our only basis for contending that
[*98]THE STATE OF TEXAS
COUNTY OF HARRIS 1 REPORTER'S RECORD
2 VOLUME 2 OF 2 VOLUMES
3 CAUSE NO. 2015-02771
4 FREEDMEN'S TOWN PRESERVATION§ IN THE DISTRICT COURT OF 5 COALITION, et al § § 6 VS. § HARRIS COUNTY, TEXAS § THE CITY OF HOUSTON, et al § 80TH JUDICIAL DISTRICT historic district in the National Register of Historic Places and therefore it's subject to section C of the Antiquities Code Texas National Resource Code, section 191.0525. If the project is inside a designated historic district which it is then the Texas Historical Commission is responsible for the project.
The court finds that the road in question, the brick road is a structure. The court finds that while the evidence in this temporary injunction hearing has shown the site to be a, or to qualify as a state archeological landmark, that final determination appears to have to be made by the Texas Historical Commission. However this court finds at a minimum the plaintiff has met its burden of proving that the site is at least eligible to be designated as a state archeological landmark. And therefore, there are permits that are required under the Natural Resource Code including section 191.131 for the demolition or destruction of a historical landmark.
The court finds that the plaintiff has met its burden of demonstrating that it has met all the requirements necessary to be entitled to a temporary injunction. Having demonstrated that they do have a viable and valid cause of action, that they have demonstrated their probable right to relief sought and that if the temporary injunction is not granted that there
[*107]THE STATE OF TEXAS COUNTY OF HARRIS
I, LaVearn Ivey, Deputy Court Reporter in and for the 80th District Court of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and -numbered cause, all of which occurred in open court or in chambers and were reported by me.
I further certify that the total cost for the preparation of this Reporter's Record is $768.00 and was paid by City of Houston.