City of Nassau Bay, Texas v. H. Ray Barrett, and 1438 Kingstree Lane, in Rem

ACCEPTED
01-15-00148-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/6/2015 3:55:12 PM
CHRISTOPHER PRINE
CLERK

NO. 01-15-00148-CV
______________________________________
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FIRST JUDICIAL DISTRICT HOUSTON, TEXAS
HOUSTON, TEXAS 5/6/2015 3:55:12 PM
CHRISTOPHER A. PRINE
______________________________________ Clerk

CITY OF NASSAU BAY, TEXAS,
Appellant,
v.

H. RAY BARRETT and 1438 KINGSTREE LANE
Appellees.
______________________________________
On Appeal from the 152nd Judicial District Court
of Harris County, Texas
Trial Court No. 2013-10661
______________________________________
APPELLANT CITY OF NASSAU BAY TEXAS’ BRIEF
______________________________________

CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS & AUGHTRY
William S. Helfand
State Bar No. 09388250
Attorney-in-Charge
Charles T. Jeremiah
State Bar No. 00784338
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 654-9630
Telecopier: (713) 658-2553
ATTORNEYS FOR APPELLANT
CITY OF NASSAU BAY, TEXAS

ORAL ARGUMENT REQUESTED
 CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made so the
judges of this court may evaluate possible disqualification or recusal.

A. Parties:

Appellant: City of Nassau Bay, Texas

Appellees: H. Ray Barrett and 1438 Kingstree Lane

B. Attorneys:

Appellant: William S. Helfand
Charles T. Jeremiah
Chamberlain, Hrdlicka, White,
Williams & Aughtry
1200 Smith Street, Suite 1400
Houston, Texas 77002

Appellee: Iain Simpson
Simpson, P.C.
1333 Heights Boulevard, Suite 102
Houston, Texas 77008

Jeffrey N. Todd
The Law Firm of Alton C. Todd
312 S. Friendswood Drive
Friendswood, Texas 77546
(Trial Counsel)

i
 STATEMENT REGARDING ORAL ARGUMENT

Appellant City of Nassau Bay, Texas believes that oral argument would be

beneficial and would assist this Court in deciding the case.

ii
 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ........................................................ i

STATEMENT REGARDING ORAL ARGUMENT .............................................. ii

TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .....................................................................................v

STATEMENT OF THE CASE ..................................................................................2
ISSUES PRESENTED...............................................................................................2
STATEMENT OF FACTS ........................................................................................3

SUMMARY OF THE ARGUMENT ........................................................................9

STANDARD OF REVIEW .....................................................................................10

ARGUMENTS AND AUTHORITIES ...................................................................11

I. The Trial Court lacks jurisdiction over Appellee’s Counterclaim
because Appellee did not timely appeal the decision of the Zoning
Board of Adjustment in accordance with the Texas Local Government
Code. ..............................................................................................................11

II. Appellant Failed to State and cannot state a viable claim of
deprivation of procedural or substantive due process and thus, the City
retains immunity from suit and the Court lacks jurisdiction. ........................15

A. Plaintiff was required to state a viable due process claim to
overcome Appellant’s governmental immunity. .................................15
B. Plaintiff has not identified a property interest, for which due
process, procedural or substantive, attaches, as fundamentally
necessary to present a viable claim. ....................................................16
C. Even if he had a property interest, Plaintiff has not stated a
viable procedural due process claim here, and the evidence,
including plaintiff’s own admissions, refutes any such claim. ...........17
D. Appellee failed to state a viable substantive due process claim,
and the evidence refutes any such claim. ............................................19

iii
III. Appellee failed to show a viable claim against the City because he
neither alleged nor showed competent proof that a municipal policy
was the moving force behind a constitutional deprivation. ...........................21

A. Governmental liability under 42 U.S.C. § 1983 cannot be based
on respondeat superior. .......................................................................22
B. The Evidence disproves the required element that a
policymaker promulgated an official policy which was the
moving force behind a deprivation of Appellee’s constitutional
rights. ...................................................................................................22
C. There is no unconstitutional policy of the City of Nassau Bay. .........24

CONCLUSION ........................................................................................................26

PRAYER ..................................................................................................................26
CERTIFICATE OF SERVICE ................................................................................ ix
CERTIFICATE OF COMPLIANCE .........................................................................x

APPENDIX ........................................................................................................Tab A

iv
 TABLE OF AUTHORITIES

Page(s)
CASES
Alfonso v. Skadden,
251 S.W.3d 52 (Tex. 2008).................................................................................11
Bass v. Parkwood Hosp,
180 F.3d 234 (5th Cir. 1999) ..............................................................................23
Board of Co. Com’rs of Bryan Co. v. Brown,
520 U.S. 397, 117 S.Ct. 1382 (1997)............................................................23, 24

City of Dallas v. Woodfield,
305 S.W.3d 412 (Tex. App. – Dallas 2010, no pet.) ..........................................10
City of Paris v. Abbott,
360 S.W.3d 567 (Tex.App. – Texarkana 2011, pet. denied) ..............................17
DePree v. Sanders,
588 F.3d 282 (5th Cir. 2009) ..............................................................................16
FM Properties Operating Co. v. City of Austin,
93 F.3d 167 (5th Cir. 1996) ................................................................................20

Garcia v. Kubosh,
377 S.W.3d 89 (Tex.App. – Houston [1st Dist.] 2012, no pet.) .............16, 19, 20

Guinn v. Bosque County,
58 S.W.3d 194 (Tex.App. – Waco 2001, pet. denied)........................................12

Harris County v. Sykes,
136 S.W.3d 635 (Tex. 2004) ..............................................................................11

Hearts Bluff Game Ranch, Inc. v. State,
381 S.W.3d 468 (Tex. 2012) ..............................................................................16

Hidden Oaks, Ltd. v. City of Austin,
138 F.3d 1036 (5th Cir. 1998) ............................................................................16

Hoff v. Nueces County,
153 S.W.3d 45 (Tex. 2004).................................................................................10

v
Kaufman County v. Combs,
393 S.W.3d 336 (Tex.App. – Dallas 2012, pet. denied).....................................16

Lazarides v. Farris,
367 S.W.3d 788 (Tex.App. – Houston [14th Dist.] 2012, no pet.) ..............13, 14

Lee v. Whispering Oaks Home Owners’ Ass’n,
797 F.Supp.2d 740 (W.D. Tex. 2011) ................................................................20

Monell v. Dept. of Social Services,
436 U.S. 658, 98 S.Ct. 2018 (1978)..............................................................22, 23

Pembaur v. City of Cincinnati,
475 U.S. 469, 106 S.Ct. 1292 (1986)..................................................................22

Piotrowski v. City of Houston,
237 F.3d 567 (5th Cir. 2001) ..................................................................23, 24, 25
Robinson v. Friendswood,
890 F.Supp. 616 (S.D. Tex. 1995) ......................................................................14
Snyder v. Trepagnier,
142 F.3d 791 (5th Cir. 1998) ..............................................................................22
Spiller v. City of Texas City,
130 F.3d 162 (5th Cir. 1997) ........................................................................23, 24
Tex. Dep’t. of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ........................................................................10, 11
Texas Assoc. of Business v. Texas Air Control Board,
852 S.W.2d 440 (Tex. 1993) ........................................................................10, 11

Texas Dept. of Transportation v. A.P.I. Pipe and Supply,
397 S.W.3d 162 (Tex. 2013) ..............................................................................16
Texas DOT v. Jones,
8 S.W.3d 636 (Tex. 1999) (per curiam) .............................................................11
Tharling v. City of Port of Lavaca,
329 F.3d 422 (5th Cir. 2003) ..............................................................................23

vi
Tooke v. City of Mexia,
197 S.W.3d 325 (Tex. 2006) ..............................................................................15

Winn v. City of Irving,
770 S.W.2d 10 (Tex.App. – Dallas 1989, no writ) .............................................14

STATUTES
42 U.S.C. § 1983 ...............................................................................................passim

TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(8) ...............................................9, 10
TEXAS LOCAL GOVERNMENT CODE § 211.009 .........................................................14
TEXAS LOCAL GOVERNMENT CODE § 211.010.........................................................14
TEXAS LOCAL GOVERNMENT CODE § 211.011 ...............................................7, 13, 15

TEXAS LOCAL GOVERNMENT CODE § 211.012 ........................................................... 7

OTHER AUTHORITIES
United States Constitution .......................................................................................11

vii
 STATEMENT OF THE CASE

Nature of the case: Appellant, City of Nassau Bay, Texas (“the City”)
filed suit against Appellees under Chapter 211 of
the Texas Local Government Code to enforce its
Zoning Ordinance. Appellees filed a counterclaim
against Appellant, alleging violations of due
process. The City filed a plea to the jurisdiction
and alternative motion for summary judgment on
Appellees’ counterclaim.

Trial court: The Honorable Robert Schaffer, 152nd Judicial
District Court of Harris County, Texas.

Trial court’s disposition: The trial court conducted a hearing on February 6,
2015 on the City’s plea to the jurisdiction and
alternative motion for summary judgment and
entered an order denying the City’s plea and
motion.

ISSUES PRESENTED

1. The trial court erred in denying the City’s plea to the jurisdiction and motion
for summary judgment because the Appellees’ counterclaim is an untimely
and impermissible collateral attack on the determination of the City of
Nassau Bay Zoning Board of Adjustment.

2. The trial court erred in denying the City’s plea to the jurisdiction and motion
for summary judgment because, in light of the undisputed evidence, the
Appellees’ counterclaim fails to present a viable claim of constitutional
deprivation of due process sufficient to overcome governmental immunity.

3. The trial court erred in denying the City’s Plea to the Jurisdiction because
the allegations and evidence disprove that a City policy was the moving
force behind a constitutional deprivation and thus for this additional reason
there is no viable basis to overcome governmental immunity.

2
 STATEMENT OF FACTS

This case arises out of the Appellee’s essentially undisputed violation of the

Nassau Bay City Zoning Ordinance.

Since 1971, without exception, the City’s zoning ordinances have required

residential structures in the City to have a minimum seven (7) foot side setback

[C.R. 149-425; see, particularly, C.R. 353]. Moreover, for nearly forty-five years,

all City ordinances have consistently defined “non-conforming use.” Given that

these two controlling provisions have remained unchanged, notwithstanding other

amendments, the City refers to the different variations of the zoning ordinance

collectively as “the Ordinance” unless otherwise specified.

It has never been disputed in this case, and is indeed well established, that a

side setback requirement for property is rationally related to a legitimate

governmental interest, including, but not limited, to fire safety. Structures existing

prior to any setback requirement would, under the Ordinance, be “grandfathered”

in, with a phase-out requiring that structures that are at least 50% destroyed must

be brought into compliance in connection with any rebuilding. Of course,

structures that were built in contravention of existing codes, as are Barrett’s, are

illegal non-conforming structures.

In 1983, after Hurricane Alicia, Barrett constructed an open, detached trellis

on the west side of his house and installed a Jacuzzi style hot tub on decking [C.R.

3
64-72]. Appellant admits he obtained no permit or anything else in writing from

the City authorizing him to construct the trellis structure or install the hot tub [C.R.

73, 111]. In 1991, Appellant hired a contractor to enclose the hot tub in what was

essentially a “bath house” abutting his residence with a common roof. [C.R. 72, ln.

22-23, 75]. 1 Appellant’s bath house is, and was at the time of its initial

construction, affixed to the fence directly on the lot line. [C.R. 63, 117-128, 137-

138, 144-45]. In fact, after that construction, the roof of Appellant’s house

connected directly to his neighbor’s fence [C.R. 72, 74]. Appellant had the

contractor enclose “the west and the north and the south side with windows and a

wall” [C.R. 75] and thereby created an enclosure housing the hot tub and patio [Id].

Whatever may have existed before in the way of a deck or trellis, Appellee

admittedly gave it vertical structure, enclosed the walls, installed windows,

extended the roofline from the house and attached it to the neighbor’s fence, in

1991, over seven years after Hurricane Alicia.

The structure was, and is, in clear violation of the setback requirements of

the City’s Ordinance. Appellant admits that neither he nor his contractor obtained

a variance or any type of written permit, as required under the Ordinance, allowing

Appellant to build the unquestionably nonconforming structure, although

Appellant contends he understood he had the verbal assurance of his friend and
1
Appellee had stated “1992” although the one year difference is not material. There was
no door access to the house, no insulation and no air conditioning.

4
prior building official Andy Straub, that the extension of the roof to the fence line

was “all right.” [C.R. 76 ln. 6-13, 77-78]. Appellant falsely reported to Assistant

City Manager Mary Chambers that Mr. Staub had issued him a permit. [C.R. 134,

ln. 23-24]. Appellant later admitted that he did not obtain a permit. [C.R. 76,

111]. Consistent with Appellant’s admission, it is clear Appellant never sought,

and the City never issued, a required permit for the construction and Appellant also

never requested, and therefore the City never granted, the necessary variance from

the clear and unequivocal setback requirement under the Ordinance.

In fact, the then-current City Building Official learned of the violation when

Appellant dissembled the structure to remove a dead tree, removed deteriorated

lumber, the windows, and the hot tub, and brought in lumber to rebuild the

deteriorated structure, again on the lot line – in violation of the setback

requirement – all without a permit [C.R. 79, 81-88]. As the construction was being

done without a permit and in violation of the ordinance’s setback requirement, and

in his judgment that more than 50% of the building had been destroyed, the City

Building Official, Larry Boles, issued a stop work order [C.R. 109]. Appellant

complained about the Building Official’s issuance of the stop work order. 2 The

Building Official returned to Appellant’s residence with Assistant City Manager

Mary Chambers whose assessment was consistent with Boles’ [C.R. 130-31].

2
Appellant was at his other house on Lake Livingston at the time [C.R. 80].

5
Ms. Chambers observed the proximity of the structure directly on the fence line

and, upon finding no variance authorizing its construction, observed that it was an

illegal nonconforming structure [C.R. 133, 136]. In addition to the reasons for

issuing a stop work order the Building Official observed that a variance would be

required for the rebuilding [C.R. 568].

After conferring with City personnel, Appellant exercised his right to be

heard by the City’s Zoning Board of Adjustment. The Zoning Board of

Adjustment held a public hearing on the matter at which Appellant fully presented

his position [C.R. 91-93, 113-114, 426-27]. Appellant’s neighbor to the west also

appeared at the hearing and opposed Appellant’s request for a variance [C.R. 98-

99]. Appellant disputed that the structure (1) was an illegal nonconforming use;

and (2) that it was at least 50% destroyed, so as to require compliance with the

Code or a variance [C.R. Id, 113-116; 426-427]. 3 After hearing and considering

the matter, the Zoning Board of Adjustment denied Appellant a variance from the

Code and effectively upheld the building official’s stop work order. 4 Appellant

subsequently retained counsel and, following communications with the City

Attorney, and although not required by law, the Zoning Board of Adjustment

3
Either way, the structure was not permissible.
4
Appellant contends that the meeting ended with the Board stating “we believe Mr. Boles”
regarding the 50 percent estimate [C.R. 100-101]. To be sure the Board did not grant the
requested variance.

6
permitted Appellant to have a second hearing [C.R. 94]. Appellant again presented

his position, this time through his attorney. Once again, the Board denied

Appellant’s variance request and upheld the stop work order. It is undisputed

Appellant did not timely appeal the unequivocal and final actions by the

Zoning Board of Adjustment [C.R. 137, 426-27], thereby accepting the Board’s

determination and making it final under § 211.011(b) Texas Local Government

Code. 5

When Appellant refused to bring his structure into compliance even after he

had been denied a variance by the ZBA, the City brought this action to enforce the

Code through mechanisms provided for in the Texas Local Government Code.6

On April 18, 2013, Appellant responded to this enforcement action by filing a

counterclaim against the City and adding third-party claims against various City

officials who voted to deny him a variance and a few employees whom Appellee

apparently alleges were not complicit in or accepting of his noncompliance [C.R.

15-32]. Appellant alleged the Zoning Board of Adjustment’s decision not to

permit the construction/rebuilding of his clearly non-compliant bath house

amounted to a violation of his procedural and substantive due process rights, citing

generally the United States and Texas Constitutions [C.R. 26].
5
Since these events, Appellee sought a permit to construct a fence which the City granted
[C.R. 110].
6
See, Texas Local Government Code § 211.012. The structure remains attached to the
neighbor’s fence.
7
 Appellee’s counterclaim is an impermissible collateral attack on the ZBA’s

decision and the decision of the City’s Building Official. Indeed, Appellant does

not complain of any action by the Nassau Bay City Council [C.R. 112].

Appellant’s complaint is with Building Official Larry Bole’s determination of 50%

destruction of the prior non-conforming structure and the Board’s refusal to agree

with his own assessment that it was only 26% destroyed. 7 Again, through its

Zoning Board of Adjustment, the City has provided a due process mechanism for

disputing the building official’s determination. Appellant actually exercised his

right to challenge the determination and he was fully heard on the issue twice and,

despite Texas law authorizing him to do so, he chose to appeal no further, thus

being deemed, as a matter of law, to have accepted the ZBA’s decision and the

reasons therefore. As a matter of law, Appellee cannot now collaterally challenge

the determination of the Building Official and Board through a lawsuit, even one

alleging constitutional violations.

Before discovery, the City and Third-Party Defendants filed a plea to the

jurisdiction asserting that the trial court has no jurisdiction over any of claims

asserted against the Third-Party Defendants and no jurisdiction over Appellee’s

state law claims against the City based on governmental immunity. On October

18, 2013, the trial court granted the plea to the jurisdiction dismissing all of
7
In his Counterclaim, Appellant alleges 26% [C.R. 24] and in his testimony 22% [C.R.
90].

8
Appellant’s claims against the individual third-party Defendants and all state law

claims against the City [C.R. 33]. Although appealable, at least in part, under §

51.014(a)(8) Tex. Civ. Prac. Rem. Code, Appellee did not appeal that ruling. After

Appellee, the City Building Official, and Assistant City Manager, all provided

deposition testimony, the City filed its plea to the jurisdiction and alternative

motion for summary judgment on the remaining counterclaim [C.R. 44-428]. The

trial court denied that plea and motion, and the City timely noticed this appeal of

the trial court’s ruling [C.R. 629; 634-35].

SUMMARY OF THE ARGUMENT

The trial court erred in denying the City’s Plea to the Jurisdiction because, as

a matter of law (1) Appellee’s counterclaim is an untimely and impermissible

collateral attack on the determination of the City of Nassau Bay Zoning Board of

Adjustment which has become final; (2) Appellee’s counterclaim fails to present a

viable claim of constitutional deprivation of due process sufficient to overcome

governmental immunity and; (3) since the doctrine of respondeat superior does not

apply to claims of constitutional violations against governmental entities, such as

the City, Appellee’s counterclaim fails to present an actionable claim against the

City in light of the attribution requirements necessary to assert a claim of

Specifically, Plaintiff admittedly never appealed the conclusive

determination of the Zoning Board of Adjustment and this Court does not have

9
jurisdiction to hear Plaintiff’s untimely collateral challenge to that determination in

this action. Moreover, Appellee’s counterclaim fails, even if it had evidentiary

support, to present the elements of a viable procedural or substantive due process

claim against the City and thus, under clear Texas law, governmental immunity has

not been waived and this Court lacks jurisdiction. Finally, the competent evidence

before the Court disproves any deprivation of due process by the Appellant and

further establishes the City’s governmental immunity and the Court’s lack of

subject matter jurisdiction over the Appellee’s Counterclaim. Accordingly, the

trial court erred when it failed to dismiss Appellee’s suit with prejudice.

STANDARD OF REVIEW

This Court has jurisdiction to review an interlocutory order denying a plea to

the jurisdiction by a governmental unit. TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8). "Whether a court has subject matter jurisdiction is a legal question

that is reviewed de novo." City of Dallas v. Woodfield, 305 S.W.3d 412, 415 (Tex.

App. – Dallas 2010, no pet.); Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex.

2004). Similarly, whether uncontroverted evidence of jurisdictional facts

demonstrates subject-matter jurisdiction is also a question of law. Tex. Dep’t. of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). "Subject matter

jurisdiction is never presumed and cannot be waived." Texas Assoc. of Business v.

Texas Air Control Board, 852 S.W.2d 440, 443-44 (Tex. 1993). It is essential to

10
the power of a tribunal to decide a case and, without it, a court cannot render a

valid judgment. Id. A court’s lack of subject matter jurisdiction is an issue that

cannot be waived and can be raised at any time. Alfonso v. Skadden, 251 S.W.3d

52, 55 (Tex. 2008).

The complainant has the burden to plead facts affirmatively showing the trial

court has subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife, 133 S.W.3d at

226. A plea to the jurisdiction seeks dismissal of a case for lack of subject matter

jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

Governmental “immunity from suit defeats a trial court’s subject matter

jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Texas DOT

v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam). Appellee’s allegations in

this case failed to establish the District Court’s jurisdiction and the evidence

disproved any jurisdiction.

ARGUMENTS AND AUTHORITIES

I. The Trial Court lacks jurisdiction over Appellee’s Counterclaim
because Appellee did not timely appeal the decision of the Zoning Board
of Adjustment in accordance with the Texas Local Government Code.

Although couched as an alleged violation of his constitutional right to due

process under the United States Constitution, Appellee’s counterclaim is,

inescapably, a collateral challenge to the now final determination(s) of the City’s

Zoning Board of Adjustment upholding the determination of the Building Official,

11
and denying Appellee a variance for his non-conforming structure. Indeed, the

fundamental premise of the counterclaim is that the Board, and Building Official

before it, “got it wrong,” because Appellee contends his friend, a building official

from many years earlier, had orally and personally blessed the structure at some

point during its non-conforming existence,8 and that the Building Official

overestimated the level of deterioration to the structure. Appellee’s claims that the

Building Official and Zoning Board wrongly decided the stop work order issue and

denied a variance are his counterclaim.

Although he makes conclusory allegations of a constitutional deprivation,

Appellee doesn’t actually identify any denial of procedural or substantive due

process; because, as discussed further below, he can’t. Instead, Appellee claims

that, after notice and two hearings – the essence of due process – the Zoning Board

came to the “wrong” conclusion about whether he should be permitted to

construct/rebuild the bathhouse attached to his neighbor’s fence in violation of the

City Ordinance requirements. Having deliberately chosen not to appeal that

decision as Texas law allowed, Appellee cannot now challenge it collaterally in

this suit.

8
Appellee offered an unsworn incompetent “hearsay” statement from the witness to which
Appellant objected. Guinn v. Bosque County, 58 S.W.3d 194 (Tex.App. – Waco 2001,
pet. denied).
12
 Because Appellee failed to exhaust his administrative remedies under the

Texas Local Government Code, the District Court has no jurisdiction to consider

his untimely challenge. As a matter of fact, Appellant acknowledged that he never

appealed. Indeed, as he acknowledged and admitted in his own counterclaim

pleadings the Board of Adjustment’s decisions of which he now complains

occurred in June and September 2012, many months before he asserted the

Counterclaim in April 2013[C.R. 25 (Counterclaim ¶¶ 29, 32)].

As a matter of law, a party challenging the propriety of an order of a

building official and, upon proper appeal, a Board of Adjustment’s decision, must

comply with the procedures prescribed by the Texas Local Government Code:

The aggrieved person may appeal the decision of the board of
adjustment by filing, within ten days of the board’s decision, a
verified petition in a district court, county court, or county court at law
stating that the board’s decision is “illegal in whole or in part.”

Lazarides v. Farris, 367 S.W.3d 788, 798 (Tex.App. – Houston [14th Dist.] 2012,

no pet.) (emphasis in original). See, Texas Local Government Code § 211.011(b).

“Administrative remedies available under section 211 of the Local Government

Code generally must be exhausted before a party may seek judicial review of a

determination made by an administrative official.” Id, citing, City of San Antonio

v. El Dorado Amusement Co., 195 S.W.3d 238, 250 (Tex.App. – San Antonio

2006, pet. denied) (“Because El Dorado did not exhaust its administrative

remedies, the trial court lacked jurisdiction to determine the propriety of the
13
adjustment board’s denial of the non-conforming use permit.”). Winn v. City of

Irving, 770 S.W.2d 10, 11 (Tex.App. – Dallas 1989, no writ) (“It is settled that the

administrative remedies provided by Local Government Code section 211.009-

.010…must be exhausted before matters may be brought before the courts.”).

When an individual fails to comply with the requirements of a governing

statute, a court is deprived of jurisdiction to decide the dispute. See, Winn, citing,

Larry Koch, Inc. v. Tex. Natural Res. Conservation Comm’n, 52 S.W.3d 833, 839

(Tex.App. – Austin 2001, pet. denied). See also, Robinson v. Friendswood, 890

F.Supp. 616, 622 (S.D. Tex. 1995) (1983 claim requires exhaustion of state

administrative remedies). In Lazarides, the plaintiff failed to timely or properly

appeal the building official’s decision. Accordingly, the Fourteenth Court of

Appeals held that the trial court erred by not dismissing the claims, other than ultra

vires claims, for lack of subject matter jurisdiction.

Again, it is undisputed that Appellee never appealed the Board’s decision,

not within ten days; not ever. Instead, Appellee now attempts, clearly

impermissibly, to collaterally attack the now final and non-appealable decisions

through his counterclaim. As the Lazarides court explained, a court simply, but

clearly, lacks jurisdiction to consider Appellee’s claim regarding the Board’s

decision of the predicate decisions of the Building Official, which the Board

adopted, or the manner in which they made those decisions.

14
 Indeed, permitting an individual to accept the determination of a Zoning

Board, allow it to become final and non-appealable, and only then make an

untimely challenge when enforcement of the earlier decision becomes necessary

would render the legislative intent of § 211.011(b) of the Texas Local

Government Code completely meaningless and would render the statutory

provision wholly ineffective. Appellee’s admitted failure to timely challenge the

determination of the Zoning Board of Adjustment and Building Official, a failure

to exhaust remedies available under the Code to challenge the decision,

unquestionably deprives the District Court of jurisdiction to now consider that

challenge as a counterclaim to the enforcement proceeding. The claim is barred by

the Code, and in light of the failure to meet the Code’s prerequisites, cannot

surpass the City’s immunity.

II. Appellant Failed to State and cannot state a viable claim of deprivation
of procedural or substantive due process and thus, the City retains
immunity from suit and the Court lacks jurisdiction.

A. Plaintiff was required to state a viable due process claim to overcome
Appellant’s governmental immunity.

Even if, arguendo, Appellant had exhausted his administrative remedies, his

counterclaim fails based on governmental immunity. Cf., Tooke v. City of Mexia,

197 S.W.3d 325, 331 (Tex. 2006). While a City can be potentially sued for

violation of the due process clause of the United States or Texas Constitutions,

simply asserting a violation is not enough. Rather, in order to overcome
15
governmental immunity from suit, a plaintiff must plead and prove a valid due

process claim. See, Garcia v. Kubosh, 377 S.W.3d 89, 98-100 (Tex.App. –

Houston [1st Dist.] 2012, no pet.) (Harris County retained immunity from suit

where plaintiff failed to plead valid due process claim); Kaufman County v.

Combs, 393 S.W.3d 336, 344-45 (Tex.App. – Dallas 2012, pet. denied); Cf. Texas

Dept. of Transportation v. A.P.I. Pipe and Supply, 397 S.W.3d 162, 166 (Tex.

2013) (Court should grant plea to the jurisdiction based on immunity where

plaintiff cannot establish viable constitutional claim); Hearts Bluff Game Ranch,

Inc. v. State, 381 S.W.3d 468 (Tex. 2012). Hence, absent a pled and demonstrably

valid or viable due process claim, the Appellant’s immunity remains intact, and the

District Court lacks jurisdiction.

B. Plaintiff has not identified a property interest, for which due process,
procedural or substantive, attaches, as fundamentally necessary to
present a viable claim.

“The threshold requirement of any due process claim is the government’s

deprivation of a plaintiff’s liberty or property interest.” DePree v. Sanders, 588

F.3d 282, 290 (5th Cir. 2009). Without such an interest, no right to due process

accrues. Id. “Under this analysis, the ‘hallmark of property…is an individual

entitlement grounded in state law, which cannot be removed except for cause.’”

Hidden Oaks, Ltd. v. City of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998) (quoting

Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148 (1982)).

16
 Appellant submitted as evidence City Ordinances enacted from 1971 to the

present requiring a residential minimum three-foot side setback [C.R. 149-425]. It

is beyond reasonable dispute that Appellee’s structure does not conform to this

requirement and did not conform when it was constructed. Irrespective of whether

the Building Official and Assistant City Manager’s further observation that it was

at least fifty percent deteriorated, Appellee has never been entitled to attach his

bath house to the neighbor’s fence so he has no property right or interest in the

nonconforming structure. Accordingly, since Appellee cannot show a property

interest to which right of due process attaches, he fails to state a viable claim and

the City’s immunity remains intact.

C. Even if he had a property interest, Plaintiff has not stated a viable
procedural due process claim here, and the evidence, including
plaintiff’s own admissions, refutes any such claim.

Having been given notice of two hearings and having admitted he was heard

at both, Appellee didn’t explain how his right to procedural due process could have

conceivably been violated. “[A] plaintiff alleging a procedural due process claim

must establish that he was deprived of notice and an opportunity to be heard with

respect to a decision affecting his property rights.” City of Paris v. Abbott, 360

S.W.3d 567, 582 (Tex.App. – Texarkana 2011, pet. denied). Assuming, arguendo,

Appellee has a property interest which entitled him to due process, a contention, or

even proof, that the Building Official or Zoning Board of Adjustment reached the

17
wrong conclusion, as Appellee makes here, does not state a claim for procedural

due process. Appellee does not deny, and the evidence amply established, that he

was heard, indeed repeatedly, on the issues in question.

In fact, in his Counterclaim, Appellee describes (1) a June 4, 2012 letter he

wrote to the Zoning Board of Adjustment members;9 (2) a June 14, 2012 hearing

before the Zoning Board of Adjustment at which he made “strenuous arguments

and offerings of evidence;”10 (3) a June 19, 2012 letter from his attorney to the

Zoning Board of Adjustment and other City officials further contesting the

decision;11 and (4) a [second] September 13, 2012 hearing before the Zoning Board

of Adjustment, where he again argued that the stop work order was improper;12

and (5) a post-hearing letter setting out “his entire side of this controversy.” 13

By his own admissions and his presence at two hearings it is indisputable

that Appellee was notified of his right to contest the decision and seek a variance.

He availed himself of the mechanism offered by the Zoning Board of Adjustment

to hear and consider his petition. Appellee admits in his Counterclaim that he had

9
Appellee contends that in the letter, he “carefully explained” the disputed facts, and
attached his evidence [C.R. 24 (Counterclaim, ¶ 27)].
10
[C.R. 24 (Counterclaim ¶ 29); C.R. 89, 91-94, 113-116, 426-27].
11
[C.R. 25 (Counterclaim ¶ 30)]
12
[C.R. 25 (Counterclaim ¶ 32)]
13
[C.R. 25-26 (Counterclaim ¶ 33)]

18
at least two opportunities to be fully heard and that he was heard. To be sure,

Appellee does not contend he was denied the right to be heard on the issuance of a

stop work order or denial of a variance, 14 including the Building Official’s

determination that the structure in question was at least fifty percent (50%)

destroyed, and whether Appellee should nevertheless be granted a variance to

deviate from the setback requirement. However fervently Appellee disagrees with

the decision, by his own admission he was given ample opportunity – far more

than constitutionally required – to be heard. Accordingly, he has no viable

procedural due process claim and the City remains immune from suit.

Moreover, Appellee’s testimony and admissions confirm his pled and

judicially admitted allegations – that he articulated his concerns and was given two

hearings before the Zoning Board wherein he fully presented his contention that

the structure was conforming and not more than fifty percent destroyed [C.R. 91-

93, 113-114, 426-27], further disproving any viable procedural due process claim.

D. Appellee failed to state a viable substantive due process claim, and
the evidence refutes any such claim.

“The United States Supreme Court has abandoned the sweeping protection

of economic rights through substantive due process.” Garcia, at 99. “To state a

substantive due process claim, a plaintiff must show that the government’s

14
Whether described as a review of a stop work order, or consideration of a variance is
immaterial as the Board admittedly heard all of Appellee’s contentions and resolved all
issues against him.
19
deprivation of a property interest was arbitrary or not reasonable related to a

legitimate governmental interest.” Garcia, citing, Williams v. Tex. Tech Univ.

Health Sci. Ctr., 6 F.3d 290, 294 (5th Cir. 1993). Zoning decisions are to be

reviewed by the same constitutional standards employed to review statutes enacted

by state legislatures. Lee v. Whispering Oaks Home Owners’ Ass’n, 797 F.Supp.2d

740, 750 (W.D. Tex. 2011). Even where review is properly sought, the only

question which the courts may consider is “whether the action of the zoning

commission is arbitrary and capricious, having no substantial relation to the

general welfare.” Id, at 751. Rational basis review is “extremely deferential.” Id.

“[T]he Court may ask whether there was a conceivable factual basis for the

specific decision made and nothing more.” Id, citing, Mahone v. Addicks Utility

Dist. of Harris County, 836 F.2d 921, 934 (5th Cir. 1988). In other words, the court

can hypothesize a rational basis, even if the plaintiff pleads facts demonstrating

that the action was also motivated by animus. Id, at 752. 15 See also, FM Properties

Operating Co. v. City of Austin, 93 F.3d 167 (5th Cir. 1996). Appellant is unaware

of any Court ever finding a residential side setback requirement to not be rationally

related to the general welfare and believes there are none.

15
Indeed, as Appellee acknowledged, “[s]ubstantive due process standards are violated only
by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental
authority.” [C.R. 461, citing, Natale v. Town of Ridgefield, 170 F.3d 258, 262 (2nd Cir.
1999)].
20
 Here, Appellant did nothing more than make a conclusory assertion of a

substantive due process violation. Appellee did not and could not realistically

allege that the City’s ordinance lacked a rational basis – he simply disagrees with

the building official and Zoning Board of Adjustment’s conclusions. Obviously,

this falls far short of stating a viable substantive due process claim, even if the

Building Official, Assistant City Manager and Zoning Board of Adjustment were

all wrong, incompetent or misguided. There was never any evidence before the

District Court that the Zoning Board’s decision was arbitrary and capricious,

lacking any possible rational basis. The Court erred in denying the plea.

III. Appellee failed to show a viable claim against the City because he
neither alleged nor showed competent proof that a municipal policy was
the moving force behind a constitutional deprivation.

Even if he had stated a viable constitutional claim, generally, Appellee’s

claim against the City is not viable because it fails the attribution requirement.

More specifically, Appellee failed to identify any City policy which was the

demonstrable moving force behind the constitutional deprivation he alleges.

Without such a showing, there can be no viable 42 U.S.C. § 1983 due process

claim against the City, the City retained its immunity from suit and the District

Court lacked jurisdiction over the claim.

21
 A. Governmental liability under 42 U.S.C. § 1983 cannot be based on
respondeat superior.

First and foremost, as there has been no deprivation of constitutional rights

by any city actor, there can be no claim against Appellant under 42 U.S.C. § 1983.

However, even if there were such a deprivation, the City cannot be held liable

under Appellee’s allegations, even if true. A governmental body “cannot be held

liable under § 1983 on a respondeat superior theory.” Monell v. Dept. of Social

Services, 436 U.S. 658, 691, 98 S.Ct. 2018 (1978). Under § 1983, a governmental

entity, like the City, may only be held liable for those acts for which it is actually

responsible. Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292,

1298 (1986). The Supreme Court has recognized very narrow circumstances in

which a city may be held liable for the conduct of its employees, even if such

conduct is unconstitutional. Monell, 436 U.S. at 694, 98 S.Ct. 2037-38 (1978);

Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998). As Appellee’s allegations

against the City could only be premised on a misplaced theory of respondeat

superior here, they are not viable and should have been dismissed.

B. The Evidence disproves the required element that a policymaker
promulgated an official policy which was the moving force behind a
deprivation of Appellee’s constitutional rights.

A claim of a constitutional violation against a governmental entity may not

be based on the theory of respondeat superior but, rather, requires proof of

unconstitutional action of the governmental entity’s lawfully defined policymaker.
22
Cf., Board of Co. Com’rs of Bryan Co. v. Brown, 520 U.S. 397,, 117 S.Ct. 1382,

(1997). “For a City to be liable under § 1983, there must be (1) a policymaker;16

(2) an official policy; and (3) a violation of constitutional rights whose ‘moving

force’ is the policy or custom.” Monell, 436 U.S. 658 at 694; Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001). As a matter of law all “…three

elements ‘are necessary to distinguish government employees from those that can

be fairly identified as actions of the government itself.’” Piotrowski, 237 F.3d at

578. Furthermore, “[t]he existence of official policymaking authority is a question

of law to be decided by the court.” Tharling v. City of Port of Lavaca, 329 F.3d

422, 430-31 (5th Cir. 2003). In order to support a claim, the description of the

alleged policy or custom and its relationship to the underlying constitutional

violation, moreover, cannot be conclusory; it must be factually specific. Spiller v.

City of Texas City, 130 F.3d 162, 167 (5th Cir. 1997).

As the Piotrwoski Court specifically discussed, “this is no opaque

requirement” and “[m]istakes in analyzing section 1983 [governmental] liability

cases frequently begin with a failure to separate the three attribution principles and

to consider each in light of relevant case law.” Piotrowski, 237 F.3d at 578-79.

Therefore, to hold a City liable under § 1983, a plaintiff must demonstrate a

16
“The burden is on [p]laintiffs to establish the identity of the final policymaker on the part
of the local government unit.” Bass v. Parkwood Hosp, 180 F.3d 234, 244 (5th Cir.
1999).
23
policy-making governmental official has knowledge of an alleged unconstitutional

custom. Pineda, 291 F.3d at 330. However, “it is not enough for a § 1983 plaintiff

merely to identify conduct properly attributable to the [governmental entity].

The plaintiff must also demonstrate that, through its deliberate conduct, the

[governmental entity] was the moving force behind the injury alleged.” Board of

Co. Com’rs of Bryan Co., 520 U.S. 404, 117 S.Ct. 1388. “[T]here must be a direct

causal link between the [City] policy and the constitutional deprivation.”

Piotrowski, 237 F.3d at 579. It is crucial that the requirements of governmental

culpability and governmental causation “not be diluted, for ‘[w]here a court fails to

adhere to rigorous requirements of culpability and causation, [governmental]

liability collapses into respondeat superior liability.” Id. (quoting Snyder, 142

F.3d at 791). Therefore, to be actionable, the custom or policy at issue must also

be the moving force of the constitutional violation, or a cause in fact of a specific

constitutional deprivation. Spiller, 130 F.3d at 167.

C. There is no unconstitutional policy of the City of Nassau Bay.

Here Appellee has made conclusory allegations of policy and nothing more.

To be sure, he has failed to identify any specific unconstitutional City policy or

custom. Conclusory assertions of a municipal policy fail to state a viable claim.

See Fernandez-Montes, 987 F.2d 278, 284 (5th Cir. 1993); Spiller, 130 F.3d at 167.

24
 Moreover, Appellee has failed to allege any facts showing any

unconstitutional City policy, pattern or practice and his allegations are confined to

what he contends occurred in relation to his own reconstruction of a bath house.

Appellee has neither alleged nor demonstrated that a City policy was the moving

force behind an alleged constitutional deprivation. Because Appellee did not even

provide the type of vague allegations described within Pineda, failed to allege the

existence of an unconstitutional policy, attribute it to the City or show that it was

the moving force behind a constitutional violation, his claim under 42 U.S.C. §

1983 is not viable and does not pierce the City’s immunity from suit. Given

Appellee’s failure to identify any City policy which was the moving force behind

the alleged violation of his due process rights, his claims should have been

dismissed for this additional reason. Piotrowski, 237 F.3d at 578.

The City’s policymaker in terms of zoning laws is the City Council. Again,

Appellee does not complain of any action of the City Council [C.R. 112]. While

he may disagree with the Building Official’s determination, and review by the

Zoning Board of Adjustment, Appellee failed to show that any municipal policy

was the moving force behind his alleged injury. Accordingly, in the absence of

this critical element of attribution, Appellant’s immunity remains intact.

25
 Any one of these grounds constituted a basis for dismissal in light of the lack

of jurisdiction the District Court had over this case. The Court erred by denying

the City’s plea to the jurisdiction on Appellee’s Counterclaim.

CONCLUSION

Appellee failed to timely appeal the decisions of the Building Official and

Zoning Board of Adjustment, and failed to exhaust administrative remedies and the

District Court does not have jurisdiction to consider Appellee’s collateral attack on

the decisions he did not timely challenge. Regardless, Appellant has failed to state

or adduce proof of a viable claim for the deprivation of procedural or substantive

due process and, in fact, the evidence refutes any such claim. Finally, Appellee

fails to establish a claim against the City because the allegations and evidence do

not demonstrate that a City policy was the moving force behind an intentional

deprivation of Appellee’s rights. Accordingly, the City’s governmental immunity

has not been waived, and the trial court lacked jurisdiction and should have granted

the City’s plea.

PRAYER

The City of Nassau Bay, Texas prays that this Court reverse the trial court’s

denial of its Plea to the Jurisdiction, and render that the Appellee’s Counterclaim

be dismissed for lack of subject matter jurisdiction, and for general relief.

26
 Respectfully submitted,

/s/ William S. Helfand
William S. Helfand
Attorney-in-Charge
SBOT No. 09388250
bill.helfand@chamberlainlaw.com
Charles T. Jeremiah
SBOT No. 00784338
Charles.jeremiah@chamberlainlaw.com
ATTORNEYS FOR APPELLANT

OF COUNSEL:

CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS & AUGHTRY
1200 Smith Street, Suite 1400
Houston, Texas 77002-4401
(713) 654-9630
(713) 658-2553 (Fax)

viii
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief has been
served via CM/ECF System and/or by CD and certified mail, return receipt
requested, on this 6th day of May 2015, to:

Iain Gordon Simpson
Simpson, P.C.
1333 Heights Blvd, Ste 102
Houston, Texas 77088
Email: iain@simpsonpc.com

Jeffrey N. Todd
The Law Firm of Alton C. Todd
312 S. Friendswood Drive
Friendswood, Texas 77546
Email: Jeff@actlaw.com

/s/William S. Helfand

ix
 CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the typeface and word-count
requirements set forth in the Texas Rules of Appellate Procedure. This brief has
been prepared, using Microsoft Word, in 14-point Times New Roman font for the
text and 12-point Times New Roman font for any footnotes. This Motion contains
5,981 words, as determined by the word count feature of the word processing
program used to prepare this document, excluding those portions of the notice
exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ William S. Helfand
1877971.2

x
APPENDIX

TAB A

xi
 . ·P-J . 21212015 4:59:15 PM
f11f5Jlf Chris Daniel - District Clerk
Harris County
:;> v:Jufll{ Envelope No: 3991no
By: SMITH, SALENE
Flied: 2/2/2015 4:59:15 PM
CAUSE NO. 2013-10661

CTIY OF NASSAU BAY, TEXAS § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § HARRIS ~UN1Y, TEXAS
§
~
H. RAY BARRETT, and 1438
KINGSTREE LANE, in rem

Defendants.
§
§
§
§
a
1~ICIAL DISTRICT .

o~
ORDER
o~
~ .

On this day, the Court having considered C~~r-Defendant City of N!Js.5au Bay,
~IJ@j . .
Texas Plea to the Jurisdication and Alternative ~on for Summary Judgment, Counter-

Plaintiffi!' response, and considered the a~le authorities, is of the opinion that the
Third Party Defendants' motion shou~gENIED. ·

It is THEREFORE ORDE~~~Counter-Defendant's Plea to the Jurisdiction is

DENIED in its entirety. ~ .

It is FURTHER O~, that Counter-Defendant's Motion for Summary

Judgment is DENIED~·
Signed this A U day of FER 0 6 2015 , 2015.

·~ I; /Jjb
(} tJ. nJv
fa JUD~L
~