the City of Houston 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)
kate.alsina@houstontx.gov
marybeth.stevenson@houstontx.gov

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

1. The trial court acted outside its jurisdiction—and
admitted it. ..................................................................... 14

ii
 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. ...................... 16

3. The trial court should not have proceeded in the
absence of the City and the adjacent landowners. ............. 17
F. The trial court allowed the Coalition to make an end run
around governmental immunity. .............................................. 18

G. A party’s right to file a nonsuit has exceptions. .......................... 19

Conclusion and Prayer ............................................................................... 26

Certificate of Compliance ........................................................................... 22

Certificate of Service .................................................................................. 28
Exhibits

Appendix

iii
 Index of Authorities

Page(s)

Cases

Bd. of Regents v. Walker Cnty. Historical Comm’n,
608 S.W.2d 252 (Tex. Civ. App.—Houston [14th Dist.] 1980, no
writ) ...................................................................................................4, 15

City of Houston v. Swinerton,
233 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ....... 13, 14, 20

Dykes v. City of Houston,
406 S.W.2d 176 (Tex. 1966) ..................................................................... 4

Harris Cnty. v. Sykes,
136 S.W.3d 635 (Tex. 2004) ................................................................... 13

Hendrick Med. Ctr. v. Howell,
690 S.W.2d 42 (Tex. App.—Dallas 1985) (orig. proceeding).................... 20

In re Team Rocket, L.P.,
256 S.W.3d 257 (Tex. 2008) (orig. proceeding) ....................................... 20

Klein v. Hernandez,
315 S.W.3d 1 (Tex. 2010) ...................................................................... 11

Oryx Capital Int’l v. Sage Apartments, LLC,
167 S.W.3d 432 (Tex. App.—San Antonio 2005, no pet.)............. 13, 19, 20

Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P.,
333 S.W.3d 736 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .............. 18

Univ. of Tex. Med. Branch v. Blackmon,
195 S.W.3d 98 (Tex. 2006)....................................................................... 9

Statutes

Tex. Civ. Prac. & Rem. Code § 37.006 ........................................................ 17
Tex. Civ. Prac. & Rem. Code § 51.014 ........................................................ 14

iv
Tex. Nat. Res. Code § 191.051...................................................................... 4

Tex. Nat. Res. Code § 191.052.................................................................... 15

Tex. Nat. Res. Code § 191.092...................................................................... 4

Tex. Nat. Res. Code § 191.093...................................................................... 6

Tex. Nat. Res. Code § 191.094......................................................... 2, 4, 5, 16
Tex. Nat. Res. Code § 191.095...................................................................... 6

Tex. Nat. Res. Code § 191.173............................................................... 15, 19

Other Authorities
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 103, sec. 51.014, 2003
Tex. Gen. Laws 847 ......................................................................... 10, 11

Tex. R. App. P. 10.3 ............................................................................. 1, 8, 9

Tex. R. App. P. 49.1 ................................................................................ 1, 9

Tex. R. Civ. Evid. 201 ................................................................................ 10

v
 Statement Regarding Record

The clerk’s record has not been filed as of the date of this motion. In

addition, the City has requested a supplemental clerk’s record and reporter’s

record. The City will file an amended motion with full record cites as soon as

they are available. In the meantime, a certified copy of each page referenced is

included in the appendix.

vi
 Issue on Rehearing

Whether this Court erred in dismissing this appeal on
the basis of mootness when 1) the primary case relied
on by the Appellees and cited by the Court does not
involve the effect of a stay on a later nonsuit and was
not decided under current law; 2) the nonsuit was
strategic, for the purpose of circumventing the
automatic stay under Section 51.014(b) of the Civil
Practice and Remedies Code; 3) the nonsuit resulted
in a miscarriage of justice and prejudice to the City
and to the property owners in Freedman’s Town; and
4) the nonsuit was used to deprive the City of its
interlocutory appeal on governmental immunity while
at the same time effectively enjoining the City’s work
through a temporary injunction against its contractor.

vii
TO THE HONORABLE COURT OF APPEALS:

Appellant, the City of Houston, respectfully asks this Court for a

rehearing and to reconsider its order granting Appellee Freedmen’s Town

Preservation Coalition’s Amended Motion to Dismiss Appeal for Mootness.

Tex. R. App. P. 49.1; Tex. R. App. P. 10.3(b).

I. Introduction

Section 51.014(b) of the Texas Civil Practice and Remedies Code was

amended in 2003 to add the provision that for four types of orders subject to

interlocutory appeal, “all other proceedings” are stayed pending resolution of

the appeal. The stay applies to an appeal of an order granting or denying a

governmental entity’s plea to the jurisdiction.

The stay specifically applies to “all other proceedings”—and this case is

a perfect example of why “all other proceedings” must include an attempted

nonsuit. In a case like this one, where a party seeks to enjoin a governmental

function, the City is a necessary party. The City’s rights and the rights of its

citizens—particularly of the private property owners involved—is at issue. The

trial court entered an order purporting to designate all streets in Freedmen’s

Town as “state archeological landmarks,” subject to protection by state law,
but without the presence of either the City or the affected landowners to defend

their rights.1

The City is entitled to pursue its immunity defenses before the trial court

reaches the merits. The automatic stay under Section 51.014(b) requires that

the trial court allow the issues raised by the plea to be finally decided before

litigation affecting a governmental entity proceeds. A situation like this one—

where the City’s rights are effectively litigated without its presence—should

never occur.

The nonsuit was intended to evade the stay of proceedings in the trial

court pending this Court’s review of the trial court’s jurisdiction and to obtain

broad relief beyond that necessary to Plaintiff’s claims against Conrad

Construction Co., Ltd. The ploy has been successful. The trial court has

allowed the Coalition to proceed against the City’s contractor, without the

City, and has now entered a temporary injunction declaring that all of

1
It is of particular significance that the court declared the entirety of Freedmen’s Town to be
a State Archeological Landmark, as well as the brick streets, without regard to the
landowners. The Coalition failed to prove public ownership of the land (which is required
under Texas Natural Resources Code section 191.092(a), the section they—and the trial
court—cited in support of the temporary injunction). Freedmen’s Town is not public land.
Written consent of the landowners is required for a landmark to be designated on private
land. Tex. Nat. Res. Code § 191.094. The trial court entered its March 2, 2015 temporary
injunction without evidence of or a finding concerning ownership or consent.
(Supp._CR___ (App. 1)).

2
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.

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.).

2
App. 1.
3
App. 2.

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

4
The presumption is that land under streets is owned to the centerline of the street by the
adjoining lot owners. The City has an easement only. See Dykes v. City of Houston, 406
S.W.2d 176, 182 (Tex. 1966).
5
App. 2.

4
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.

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

6
App. 10.
7
App. 1.

5
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.

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)

8
App. 3.
9
App. 5.
10
App. 6.
11
App. 7.

6
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).

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

12
App. 1.
13
App. 1.
14
App. 8.

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

8
not have been heard or determined before Friday, February 27, 2015.

Therefore the City’s February 25, 2015 response was timely.15

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.

15
On February 20, 2015, the City filed a Motion to Stay under Texas Rule of Appellate
Procedure 29.3. The City asked for an expedited ruling on the motion to stay. However,
neither party requested expedited consideration of the Amended Motion to Dismiss.

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.

16
The City asks the Court to take judicial notice of the information in this docket sheet
showing the date the notice of appeal was filed. Tex. R. Civ. Evid. 201.

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

12
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).

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.

18
App. 11.
19
App. 1.

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

20
App. 9.
21
App. 1.

17
most seriously affected by the delay in repairs to their water, drainage, and

sewer systems caused by the Coalition’s suit.

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

18
require Conrad to have a permit separate from any permit the City is required

to have.

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

19
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.

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)
kate.alsina@houstontx.gov
marybeth.stevenson@houstontx.gov
judith.ramsey@houstontx.gov

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

22
 Certificate of Service

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
bhall@bhalllawfirm.com

Attorney for Appellee
/s/ Kathleen Hopkins Alsina
Kathleen Hopkins Alsina

23
 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

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: No-Reply@eFileTexas.gov
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

1
 Need Help? Help
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Email: support@eFileTexas.gov

Please do not reply to this email. It was generated automatically by eFileTexas.gov

2
EXHIBIT B
Holbrook, Bruce - LGL

From: No-Reply@eFileTexas.gov
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

1
 Need Help? Help
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Email: support@eFileTexas.gov

Please do not reply to this email. It was generated automatically by eFileTexas.gov

2
EXHIBIT C
Alsina, Kate - LGL

From: COA14NoticingService@txcourts.gov
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.

1
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.

2
 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

3
 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

4
 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 support@hcdistrictclerk.com
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

1
 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

2
 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.

3
 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.

4
 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

19. Pursuant to Tex. Natural Res. Code § 191.173(a), any citizen of the state

of Texas may file suit to restrain and enjoin any violation or threatened violation of §

191.001, et seq. Thus, the Coalition possesses a statutory cause of action to enforce

the provisions of the Texas Antiquities Code.

20. In addition, pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et

seq., the Coalition further seeks 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

5
 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

6
 VI.

INJUNCTIVE RELIEF

21. Pursuant to the express provisions of Tex. Natural Res. Code §

191.173(a), the Coalition seeks injunctive relief, both temporary and permanent,

prohibiting Conrad 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 without first following all the

procedures for and obtaining from the THC either a contract or permit expressly

permitting Conrad to do so.

22. Because the Coalition is statutorily entitled to injunctive relief pursuant to
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page7of11

Tex. Natural Res. Code § 191.173(a), it need not allege nor prove that irreparable harm

will occur in the event that Conrad's construction project in Freedmen's Town is not

immediately and permanently restrained and enjoined.

23. Even so, unless Conrad is immediately and permanently restrained and

enjoined from 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, the Coalition—indeed every citizen of Houston—will be irreparably harmed

because the religious, cultural and historic significance of the bricks, and the pattern in

which they were laid, will forever be lost and can never be restored. Accordingly, the

Coalition has no adequate remedy at law.

7
 VII.

ATTORNEYS FEES

24. Pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq., the

Coalition further requests that it have and recover from Conrad its reasonable and

necessary attorneys fees as found by the trier of fact incurred and to be incurred by the

Coalition through final trial on the merits, together with all post-trial matters relating to

the entry of a final judgment by this Court, and for all 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

WHEREFORE, PREMISES CONSIDERED, the Coalition respectfully requests that

Conrad be cited and required to appear and answer herein, and that the Coalition have
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page8of11

and recover the following relief:

(1) The order of this Court temporarily, and upon final trial, permanently

restraining and enjoining the City and Conrad 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 without first following all the procedures for and obtaining from

the THC either a contract or permit expressly permitting the City and 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,

8
 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

(5) The Coalition have its costs; and

(6) The Coalition have such other and further relief to which it may show itself to

be justly entitled.

9
 Respectfully submitted,

is/Benjamin L. Hall
Benjamin L. Hall Ill
Texas Bar No. 08743745
bhall@bhalllawfirm.com
William L. Van Fleet II
bvfleet©comcast.net
Texas Bar No. 20494750
The Hall Law Firm
530 Lovett Blvd.
Houston, TX 77006
(713) 942-9600 (Telephone)
(713) 942-9566 (Facsimile)

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page10of11

The undersigned certifies that a true and correct copy of the above and foregoing

document was forwarded to all counsel and/or pro se parties of record in accordance

with the Texas Rules of Civil Procedure on February 24, 2015.

is/Benjamin L. Hall
Benjamin L. Hall III

10
 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

Amended Petition and Application for Injunctive Relief and all the facts and assertions contained
in same are true and correct and within her personal knowledge.

GLAD S HOUSE

WORN TO AND SUBSCRIBED before me the undersigned authority on this A4 day
2015.

Notary Public, State of Texas

My commission expires:
{seal]
INNININemodiOaVaM

•‘ KATHERINE I. MCGIBBON j1
MY COMMISNON EXPIRES
July 24,2017
 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: 64384617 Total Pages: 11

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 support@hcdistrictclerk.com
 2/24/20155:46:14PM
ChrisDaniel-DistrictClerk
HarrisCounty
EnvelopeNo:4269683
By:CASARES,ALEXANDRO
Filed:2/24/20155:46:14PM

Affidavit of Catherine Roberts

Before me, the undersigned authority, appeared Mrs. Catherine Roberts and after
being sworn upon her oath, stated the following:

My name is Catherine Roberts. I am over the age of 21, have never been convicted of
any crime, and have personal knowledge of the facts stated herein and all such facts
are true and correct

I am presently serving as the Vice President of The Freedmen's Town Preservation
Coalition. The Coalition was formed in June 2014 with the mission of preserving
and protecting the historical properties and culture in Freedmen's Town, located in
the Fourth Ward of Houston, Texas. The Coalition's regular meetings are held on
Mondays where we discuss action items and receive reports on our progress of
preserving Freedmen's Town.

On September 21, 2014, a request for public information was forwarded to both The
Texas Historical Commission and The Texas Department of Transportation to obtain
information about all projects, funding and public meetings held to determine action
items relating to The Freedmen's Town. The FO/A sought records from January 1,
2006 to present After being initially stonewalled by these agencies (and receiving
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384618-Page1of1

no documents), we asked Judge Blackman to assist with obtaining the requested
documents. After Judge Blackman's assistance, we finally obtained documents from
both agencies. None of the documents contained any permits or contracts from The
Texas Historical Commission authorizing the City of Houston or The Conrad
Construction Co., Ltd to remove or repair the brick streets in Freedmen's Town. Our
task force, formed in 2007, was especially looking for such THC permits and
contracts pertaining to Freedmen's Town, especially any projects that could affect
the bricked streets located there. None was found. We have also requested proof of
such approvals from the City of Houston and none has been provided from the
Texas Historical Commission.

All of our requests for public information to establish that the Texas Historical
Commission has either granted a "contract" to work on the streets in Freedmen's
Town or "permit" allowing for the bricked streets to be removed, altered or
rearranged have turned up no documents or authorizations from THC.

This concludes my affidavit.

Catherine Roberts

SWORN TO ON THIS AODAY OF J Y, 2015.

45,7X
otary Public

1‘ ".1%sIE L MON3BON
'Auk • {MISSON EXPIRES
aittiv *24,2017
 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: 64384618 Total Pages: 1

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 support@hcdistrictclerk.com
 2/25/2015 10:08:53 AM
Chris Daniel - District Clerk Harris County
Envelope No. 4273233
By: Arron Sonnier
Filed: 2/25/2015 10:08:53 AM

CAUSE No. 2015-02771

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

PLAINTIFFS' SUPPLEMENT TO 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"), Plaintiff herein, files this Supplement to Verified Second Amended Original
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page1of4

Petition and Application for Injunctive Relief complaining of Conrad Construction Co.,

Ltd. ("Conrad") and would respectfully show the Court the following:

1. Due to a typographical error, in subsection (1) of their claims for relief in

their Verified Second Amended Original Petition and Application for Injunctive Relief

filed on February 24, 2015, Plaintiffs requested that the Court temporarily and

permanently restrain both the City of Houston and Conrad Construction Co., Ltd.

("Conrad") from 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 without first following all the procedures for and obtaining from the THC either a

contract or permit expressly permitting the City and Conrad to do so.
 2. Plaintiffs, however, non-suited the City of Houston from this case in open

court on February 12, 2015, and did not and do not intend to seek any relief from or

against the City of Houston pursuant to their Verified Second Amended Original Petition

and Application for Injunctive Relief.

3. Accordingly, Plaintiffs file this Supplement to Verified Second Amended

Original Petition and Application for Injunctive Relief to delete all references to the City

of Houston in subsection (1) of the petition's claims for relief, so that subsection (1) shall

now state: "The order of this Court temporarily, and upon final trial, permanently

restraining and enjoining Conrad 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
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page2of4

geographical boundaries of Freedmen's Town 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."

WHEREFORE, PREMISES CONSIDERED, the Coalition respectfully requests that

Conrad be cited and required to appear and answer herein, and that the Coalition have

and recover the following relief:

(1) The order of this Court temporarily, and upon final trial, permanently

restraining and enjoining Conrad 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 ; own

2
 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

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;

(5) The Coalition have its costs; and

(6) The Coalition have such other and further relief to which it may show itself to

be justly entitled.

3
 Respectfully submitted,

/Sig ettiamitvE.
Benjamin L. Hall III
Texas Bar No. 08743745
bhall@bhalllawfirm.com
William L. Van Fleet II
bvfleet@comcast.net
Texas Bar No. 20494750
The Hall Law Firm
530 Lovett Blvd.
Houston, TX 77006
(713) 942-9600 (Telephone)
(713) 942-9566 (Facsimile)

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page4of4

The undersigned certifies that a true and correct copy of the above and foregoing

document was forwarded to all counsel and/or pro se parties of record in accordance

with the Texas Rules of Civil Procedure on February 25, 2015.

isiS efikuran,E. 5Cate
Benjamin L. Hall III

4
 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

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 support@hcdistrictclerk.com
APPENDIX 3
 3
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

less than 12 hours), and considering the express statutory authority
permitting Plaintiff to seek injunctive relief as requested, and the
fact that irreparable harm will occur if relief is not immediately
granted, the Court finds that Plaintiff's Request for an Immediate
Temporary Restraining Order has merit, is well-founded and
should in all things be GRANTED.

Further, the Court specifically finds that an ex parte
Temporary Restraining Order is needed given the shortness of time
before destructive efforts will commence. As alleged, if the
historic artifacts and structures are removed, altered, rearranged or
destroyed, their original historical integrity will be lost forever.
Further, the harm sought to be avoided will not be able to be
redressed because the threatened conduct will result in
irreplaceable loss of the protected historical structures. Where an
item or thing is irreplaceable, and the destruction of same is
imminent, irreparable harm is clearly established and the court so
finds. Further, the fact that The Historical Commission, the
RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imaging
 National Register of Histoiical Places and the City of Houston
have all recognized the significance of Freedmen's Town and its
unique characteristics, coupled with the clear indication in the law
to preserve and protect the history of this nation, state and city,
militate in favor of preserving these irreplaceable historical sites
until a hearing can be conducted on the legal rights of the
respective parties in this suit. The Court, therefore, concludes that
irreparable harm will result to the plaintiff and the historical
character of Freedmen's Town unless this temporary restraining
order is entered.

It is therefore ORDERED, ADJUDGED AND DECREED,
AND THE DEFENDANTS, THE CITY OF HOUSTON AND
CONRAD CONSTRUCTION CO., LTD, and all of their
employes, agents and officers, are enjoined and immediately
restrained from taking any of the following actions:
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:63899369-Page2of3

-Defendants, jointly and severally, are enjoined from removing,
altering, disturbing, damaging, covering or in any way rearranging
any of the bricks from any street, alley or avenue within the
geographic boundaries of Freedmen's Town;

-Defendants, jointly and severally, are enjoined from removing,
rearranging, altering, destroying, damaging, disturbing or covering
any of the streets, bricks, Yoruba pattern or structures paid for or
placed in Freedmen's Town by formerly enslaved men and
women; and

-Defendants, jointly and severally, are immediately enjoined from
taking any further action that will cause the removal, covering,
rearranging, disturbance or damaging of any of the bricks, pavers,
street coverings or other structures paid for by formerly enslaved
men and women within Freedmen's Town.
 Section 191.173(a) of the Texas Natural Resources Code
statutorily entitles Plaintiff to seek injunctive relief to prevent any
violation of Section 191.001, et seq. The Court sets a bond of
5000-co be paid by Plaintiff. This temporary restraining is
effective immediately upon signing by the court and shall continue
in force as provided by law but not later than the conclusion of the
temporary injunction hearing scheduled herein, whichever is
earlier.

A temporary injunction hearing is scheduled for the 3O day
of Oartt.,ck,r 3 , 2015, at I: 30 a.m./ in the
gam District Court.

Done this A 017:lay of January, 2015.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:63899369-Page3of3

Ancillary Judge
 ..... 6 ,

•
H A
/ 01
......

'.I. •
.1 .
. ...

0 i
.n

'..• a ...:
:. 1.-• ;
... 0 -.. i -.c' E
. cf.- -.•

"- ........ ..

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: 63899369 Total Pages: 3

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 support@hcdistrictclerk.com
APPENDIX 4
 2/6/2015 6:19:51 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4063468
By: ALEX CASARES
Filed: 2/6/2015 6:19:51 PM

CAUSE NO. 2015-02771
FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT
COALITION, PLAINTIFF, §
§
V. § HARRIS COUNTY, TEXAS
§
THE CITY OF HOUSTON AND CONRAD §
CONSTRUCTION CO., LTD, §
DEFENDANTS. § 80TH JUDICIAL DISTRICT

CITY OF HOUSTON’S MOTION TO DENY PLAINTIFF’S
REQUEST FOR INJUNCTIVE RELIEF AS A MATTER OF LAW

Defendant the City of Houston (“the City”) files this Motion to Deny Plaintiff’s Request

for Injunctive Relief as a Matter of Law as follows:

I. Summary

1. Plaintiff alleges a single ground for injunctive relief -- that the City cannot proceed with
Page 1 of 10

the Freedmen’s Town Brick Street Project “without a contract or permit from the Texas

Historical Commission” under the Texas Antiquities Code. Pl. Orig. Pet. at p. 2-3. The City
415203

does have a permit. Following the Court’s January 28 scheduling conference, counsel for the

City first learned that the Texas Historical Commission (“THC”) had, in fact, issued a permit.
For Official Governmental Use Only Do Not Disseminate to the Public

On September 12, 2014, The Commission issued “Freedmen’s Town Brick Streets, City of

Houston,” Archeological Permit No. 7021 to the City (“Permit No. 7021”). Permit No. 7021 is

attached hereto as Exhibit A-1

2. Although Permit No. 7021 speaks for itself and facially satisfies the requirement that the

City obtain “a permit” from the THC, Mark Wolf, Executive Director of the THC, confirms that

“Permit # 7021 is the only permit needed for work to proceed on the Freedmen’s Town Brick

Street Project.” See Exhibit A, Affidavit of Mark Wolfe, at ¶ 7. Finally, Permit No. 7021 is in a

form that Plaintiff’s counsel admits “complies with the law.” There being no question that the

1
 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

temporarily remove paving bricks, restore them and then use them to repave the streets in the

same or substantially the same manner and pattern as before. At the same time, the City will

make long-overdue infrastructure upgrades, including the replacement of inlets, the installation
415203

of new water mains, sanitary mains, storm pipe, fire hydrants and the relocation of water meters.
For Official Governmental Use Only Do Not Disseminate to the Public

The Freedmen’s Project will be overseen by an on-site archeologist approved by the THC.

5. On the same day the Freedmen’s Project began, Plaintiff applied for and received a

temporary restraining order arguing that Freedmen’s Town has been designated as a “historical

site” and, on the basis of such designation, 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.” Pl. Orig. Pet. at p.2 (citing TEX. NAT. RES. CODE §§

191.093 and 191.095)1. The City moved to dissolve this temporary restraining order on the basis

1
The Antiquities Code, in its entirety, is attached hereto as Exhibit B.

2
 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

respectfully requests that the Court issue its ruling on the temporary injunction at the earliest

possible date, but no later than February 16.

IV. Argument and Authority
415203

7. A temporary injunction is an extraordinary remedy that does not issue unless the party
For Official Governmental Use Only Do Not Disseminate to the Public

seeking relief pleads and proves three specific elements: (1) a cause of action, (2) a probable

right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. E.g.,

Intercont'l Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 891 (Tex.App.-Houston

[1st Dist.] 2011, no pet.). As a general proposition the grant or denial of a temporary injunction

rests within the sound discretion of the trial court. E.g., Placemaker, Inc. v. Greer, 654 S.W.2d

830, 832 (Tex.App.-Tyler 1983, writ dism'd). “However, the judicial discretion to grant a

temporary injunction does not extend to a case which presents a question of law only and in

which the facts are established and contrary to petitioners' right to prevail.” Id.

3
 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

Streets, 2 blocks south of west Dallas Street and 7 blocks west of Heiner Street.” Exhibit A at ¶

3. Mr. Wolfe further confirms that “Archeology Permit #7021 is the only permit needed for
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work to proceed on the Freedmen’s Town Brick Streets Project.” Exhibit A, at ¶7.

10. Further, at the January 26 hearing on the City’s Motion to Dissolve the Temporary
For Official Governmental Use Only Do Not Disseminate to the Public

Restraining Order, counsel for Plaintiff offered certain exhibits to the Court. Plaintiff’s Exhibits

Nos. 12-14 were “actual permits” issued by the THC. See certified copy of the transcript of the

January 26 hearing, attached hereto as Exhibit C, at 19:6-24. Plaintiff’s Exhibit No. 14 was a

THC Archeology Permit No. 6595, prepared for a survey of certain parking spaces in San

Marcos on the exact same form as Permit No. 7021. Permit No. 6595 is attached hereto as

Exhibit D.

11. Mr. Hall’s purpose in doing so was to demonstrate what a compliant permit looks like

and includes:

4
 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

Register of Historic Places. As a historic district, Freedmen’s Town is subject to Subsection C of

the Antiquities Code. Pursuant to that Code, if a “project is inside a designated historic district,”
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the “person primarily responsible for the project” must notify the THC. TEX. NAT. RES. CODE §§

191.0525(a) and (d). The THC then has the option to investigate and determine if further action
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is warranted. TEX. NAT. RES. CODE §§ 191.0525(a). There is no “permit or contract”

requirement under Section 191.0525, as Plaintiff has alleged, just “notice” to the THC. There is

no dispute that the City provided notice to the THC in advance of the Freedmen’s Project.

13. Plaintiff, however, seeks relief under subchapter D of the Antiquities 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

2
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.

5
 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,
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and locations nominated as having “historical, archeological, scientific or educational interest” as
Page

State Archeological Landmarks. Upon official designation by the THC, State Archeological

Landmarks are then entitled to protection under the Subchapter D, including the “permit or
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contract” protections in Sections 191.093 and 191.095. This interpretation is consistent with
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other portions Subchapter D, which set forth the nomination and designation process by which

sites, objects, buildings, artifacts, implements, and locations may become State Archeological

Landmarks. TEX. NAT. RES. CODE §§ 191.092(c)-(h).

15. Plaintiff, however, attempts to put the cart before the horse in believing 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

irrespective of whether the THC has designated them as State Archeological Landmarks.

6
 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

interest” rises to a level meriting legal protection. Stated another way, Plaintiff’s interpretation is

so wildly subjective that in the most if not all cases one would have no way to know whether a

permit or approved contract is required to proceed with work on a site, building, object or
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location of any age or note.
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18. Given the foregoing, it should come as no surprise that Texas case law and other requisite

authorities wholly agree with the City’s interpretation. In Texas Antiquities Committee v. Dallas

County Community College District, the Dallas Community College District filed suit for an

injunction against the Texas Antiquities Committee3 to set aside the Committee's order denying a

permit to demolish three buildings owned by the College District. 554 S.W.2d 924 (Tex.1977).

As here, the location at issue was listed on a National Register, but was not designated as a State

3
In 1995, the 74th Legislature abolished the Texas Antiquities Committee and made the Texas Historical
Commission the legal custodian of the Antiquities Code.

7
 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

Id. at 926.

19. In Board of Regents v. Walker County Historical Commission, the trial court issued a

temporary injunction preventing restoration work on Sam Houston’s Woodward home if and
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until a permit was issued by the THC. 608 S.W.2d 252 (Tex.Civ.App.—Houston [14th Dist.]
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1980, no writ). Appellants argued since the Woodward home was not designated as a State

Archeological Landmark, the THC not authorized nor required to issue a permit to appellants.

Id. at 253. Citing to Texas Antiquities Committee v. Dallas County Community College District,

the appellate court agreed and dissolved the temporary injunction. Id.

20. The City’s interpretation is further bolstered by the Texas Attorney General’s Office,

which, citing to the above cases, opined:

[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

8
 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

V. Prayer

For the foregoing reasons, Defendants request that the Court deny Plaintiff’s request for a
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temporary injunction as a matter of law.

Respectfully submitted,
For Official Governmental Use Only Do Not Disseminate to the Public

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
Brian Amis

9
 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)
darah.eckert@houstontx.gov
Attorneys for Defendant the City of Houston

Certificate of Service

I hereby certify that on this 6th day of February, 2015, a true and correct copy of the
Page 10 of 10

foregoing has been served on counsel below via e-service, email and/or facsimile.

Benjamin Hall, III
The Hall Law Firm
530 Lovett Boulevard
415203

Houston, Texas 77006
For Official Governmental Use Only Do Not Disseminate to the Public

_/s/ Darah Eckert ____________________
Darah Eckert

10
 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

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 support@hcdistrictclerk.com
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page1of4

EXHIBIT A
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page2of4
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page3of4
EXHIBIT A-1
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page4of4
 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: 64152037 Total Pages: 4

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 support@hcdistrictclerk.com
 NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 1 of 18

NATURAL RESOURCES CODE

TITLE 9. HERITAGE

CHAPTER 191. ANTIQUITIES CODE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 191.001. TITLE. This chapter may be cited as the
Antiquities Code of Texas.

Acts 1977, 65th Leg., p. 2683, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.002. DECLARATION OF PUBLIC POLICY. It is the public
policy and in the public interest of the State of Texas to locate,
protect, and preserve all sites, objects, buildings, pre-twentieth
century shipwrecks, and locations of historical, archeological,
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educational, or scientific interest, including but not limited to
prehistoric and historical American Indian or aboriginal campsites,
dwellings, and habitation sites, archeological sites of every
character, treasure imbedded in the earth, sunken or abandoned ships
and wrecks of the sea or any part of their contents, maps, records,
documents, books, artifacts, and implements of culture in any way
related to the inhabitants, pre-history, history, natural history,
government, or culture in, on, or under any of the land in the State
of Texas, including the tidelands, submerged land, and the bed of the
sea within the jurisdiction of the State of Texas.

Acts 1977, 65th Leg., p. 2683, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.003. DEFINITIONS. In this chapter:
(1) "Committee" means the Texas Historical Commission.
(2) "Landmark" means a state archeological landmark.
(3) "State agency" means a department, commission, board,
office, or other agency that is a part of state government and that
is created by the constitution or a statute of this state. The term

EXHIBIT B
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 NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 2 of 18

includes an institution of higher education as defined by Section
61.003, Texas Education Code.
(4) "Political subdivision" means a local governmental
entity created and operating under the laws of this state, including
a city, county, school district, or special district created under
Article III, Section 52(b)(1) or (2), or Article XVI, Section 59, of
the Texas Constitution.

Acts 1977, 65th Leg., p. 2683, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2001, ch. 364, Sec. 1,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 1, eff.
Sept. 1, 1987; Acts 1995, 74th Leg., ch. 109, Sec. 18, eff. Aug. 30,
1995.

Sec. 191.004. CERTAIN RECORDS NOT PUBLIC INFORMATION. (a)
Information specifying the location of any site or item declared to
be a state archeological landmark under Subchapter D of this chapter
is not public information.
(b) Information specifying the location or nature of an
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activity covered by a permit or an application for a permit under
this chapter is not public information.
(c) Information specifying details of a survey to locate state
archeological landmarks under this chapter is not public information.

Added by Acts 1981, 67th Leg., p. 959, ch. 365, Sec. 1, eff. June 10,
1981.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 191.021. COMPLIANCE WITH OPEN MEETINGS ACT AND
ADMINISTRATIVE PROCEDURE AND TEXAS REGISTER ACT. (a) Repealed by
Acts 1995, 74th Leg., ch. 109, Sec. 29, eff. Aug. 30, 1995.
(b) If an institution of higher education notifies the
committee in a timely manner (as established by the committee's
rules) that it protests the proposed designation of a building or
land under its control as a landmark, the matter becomes a contested
case under the provisions of Sections 12 through 20 of the
Administrative Procedure and Texas Register Act. In the conduct of
proceedings under the Administrative Procedure and Texas Register

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 NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 3 of 18

Act, both the hearing officer in his or her recommendations to the
committee and the committee in its determinations of findings of fact
and conclusions of law shall consider, in addition to such other
objective criteria as the committee may establish pursuant to
Section 191.091 of this chapter:
(1) that the primary mission of institutions of higher
education is the provision of educational services to the state's
citizens;
(2) that the authority for expenditure of the portion of
the state's resources allocated to institutions of higher education
for construction and repair purposes is entrusted to the governing
boards of institutions of higher education for the purpose of the
furtherance of the primary mission of the respective institutions of
higher education;
(3) whether the benefit to the state from landmark
designation outweighs the potential inflexibility of use that may be
a consequence of the designation; and
(4) whether the cost of remodeling and/or restoration that
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might be required under the permit procedures of the committee if the
building were designated as a landmark may be so substantially
greater than remodeling under procedures established by law for the
review of remodeling projects for higher education buildings not so
designated as to impair the proper use of funds designated by the
state for educational purposes at the institution.
(c) If an institution of higher education notifies the
committee in a timely manner (as established by the committee's
rules) that it protests the terms of a permit proposed to be granted
to an institution of higher education under this chapter, the matter
becomes a contested case under the provisions of Sections 12 through
20 of the Administrative Procedure and the Texas Register Act. The
hearing officer in his or her recommendations to the committee and
the committee in its determination of findings of fact and
conclusions of law shall consider:
(1) that the primary mission of institutions of higher
education is the provision of educational services to the state's
citizens;
(2) that the authority for expenditure of the portion of
the state's resources allocated to institutions of higher education

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 NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 4 of 18

for construction and repair purposes is entrusted to the governing
boards of institutions of higher education for the purpose of the
furtherance of the primary mission of the respective institutions of
higher education;
(3) whether the legislature has provided extra funds that
may be required to implement any proposed requirements;
(4) the effect of any proposed requirements on maintenance
costs;
(5) the effect of any proposed requirements on energy
costs; and
(6) the appropriateness of any proposed permit requirements
to the uses to which a public building has been or will be dedicated
by the governing board of the institution of higher education.
(d) Weighing the criteria set forth in Subsections (b) and (c)
of this section against the criteria it adopts pursuant to Section
191.092 of this chapter and such criteria as it may adopt with regard
to permit requirements, the committee shall designate a building or
land under the control of an institution of higher education as a
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landmark or include a requirement in a permit only if the record
before the committee establishes by clear and convincing evidence
that such designation or inclusion would be in the public interest.

Added by Acts 1983, 68th Leg., p. 2003, ch. 364, Sec. 6, eff. Sept.
1, 1983. Amended by Acts 1995, 74th Leg., ch. 109, Sec. 29, eff.
Aug. 30, 1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1182 (H.B. 3632), Sec. 5, eff.
June 19, 2009.

SUBCHAPTER C. POWERS AND DUTIES

Sec. 191.051. IN GENERAL. (a) The committee is the legal
custodian of all items described in this chapter that have been
recovered and retained by the State of Texas.
(b) The committee shall:
(1) maintain an inventory of the items recovered and
retained by the State of Texas, showing the description and
depository of them;

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(2) determine the site of and designate landmarks and
remove from the designation certain sites, as provided in Subchapter
D of this chapter;
(3) contract or otherwise provide for discovery operations
and scientific investigations under the provisions of Section
191.053 of this code;
(4) consider the requests for and issue the permits
provided for in Section 191.054 of this code;
(5) prepare and make available to the general public and
appropriate state agencies and political subdivisions information of
consumer interest describing the functions of the committee and the
procedures by which complaints are filed with and resolved by the
committee; and
(6) protect and preserve the archeological and historical
resources of Texas.

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2002, ch. 364, Sec. 5,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 4, eff.
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Sept. 1, 1987.

Sec. 191.052. RULES. The committee may promulgate rules and
require contract or permit conditions to reasonably effect the
purposes of this chapter.

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.0525. NOTICE REQUIRED. (a) Before breaking ground at
a project location on state or local public land, the person
primarily responsible for the project or the person's agent shall
notify the committee. The committee shall promptly determine
whether:
(1) a historically significant archeological site is likely
to be present at the project location;
(2) additional action, if any, is needed to protect the
site; and
(3) an archeological survey is necessary.

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(b) Except as provided by Subsection (c), the committee shall
make a determination not later than the 30th day after the date the
committee receives notice under Subsection (a). If the committee
fails to respond in the 30-day period, the person may proceed with
the project without further notice to the committee. If the
committee determines that an archeological survey is necessary at the
project location, the project may not commence until the
archeological survey is completed.
(c) The committee shall make a determination not later than the
15th day after the date the committee receives notice under
Subsection (a) for project locations regarding oil, gas, or other
mineral exploration, production, processing, marketing, refining, or
transportation facility or pipeline projects. If the committee fails
to respond in the 15-day period, the person may proceed with the
project without further notice to the committee. If the committee
determines that an archeological survey is necessary at the project
location, the project may not commence until the archeological survey
is completed.
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(d) A project for a county, municipality, or an entity created
under Section 52, Article III, or Section 59, Article XVI, Texas
Constitution, requires advance project review only if the project
affects a cumulative area larger than five acres or disturbs a
cumulative area of more than 5,000 cubic yards, whichever measure is
triggered first, or if the project is inside a designated historic
district or recorded archeological site.
(e) There exist categorical exclusions since many activities
conducted on nonfederal public land have little, if any, chance to
damage archeological sites, and therefore should not require
notification under this section. The following are categorical
exclusions at a minimum:
(1) water injection into existing oil and gas wells;
(2) upgrading of electrical transmission lines when there
will be no new disturbance of the existing easement;
(3) seismic exploration activity when there is no ground
penetration or disturbance;
(4) building and repairing fences that do not require
construction or modification of associated roads, fire breaks, or
previously disturbed ground;

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(5) road maintenance that does not involve widening or
lengthening the road;
(6) installation or replacement of meter taps;
(7) controlled burning of fields;
(8) animal grazing;
(9) plowing, if the techniques are similar to those used
previously;
(10) installation of monuments and sign posts unless within
the boundaries of designated historic districts;
(11) maintenance of existing trails;
(12) land sales and trades of land held by the permanent
school fund and permanent university fund;
(13) permanent school fund and permanent university fund
leases, easements, and permits, including mineral leases and pooling
agreements, in which the lessee, grantee, or permittee is
specifically required to comply with the provisions of this chapter;
(14) oil, gas, or other mineral exploration, production,
processing, marketing, refining, or transportation facility or
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pipeline project in an area where the project will cross state or
local public roads, rivers, and streams, unless they contain a
recorded archeological site or a designated state land tract in
Texas' submerged lands;
(15) maintenance, operation, replacement, or minor
modification of an existing oil, gas, or other mineral exploration,
production, processing, marketing, refining, or transportation
facility or pipeline; and
(16) any project for which a state permit application has
been made prior to promulgation of rules under this section.
(f) This section does not apply to any state agency or
political subdivision that has entered into a memorandum of
understanding for coordination with the committee.
(g)(1) If, during the course of a project or class of projects
that have complied with the notification requirements of this
section, a person encounters an archeological site, the person shall
abate activity on the project at the project location and shall
promptly notify the committee. Within two business days of
notification under this subsection, the committee shall determine
whether:

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(A) a historically significant archeological site is
likely to be present in the project area;
(B) additional action, if any, is needed to protect the
site; and
(C) an archeological investigation is necessary.
(2) If the committee fails to respond within two business
days, the person may proceed without further notice to the committee.
(h) The notification required by this section does not apply to
a response to a fire, spill, or other emergency associated with an
existing facility located on state or local public lands if the
emergency requires an immediate response.
(i) The committee by rule shall establish procedures to
implement this section.

Added by Acts 1995, 74th Leg., ch. 109, Sec. 19, eff. Aug. 30, 1995.
Amended by Acts 1997, 75th Leg., ch. 1070, Sec. 51, eff. Sept. 1,
1997.

Sec. 191.053. CONTRACT FOR DISCOVERY AND SCIENTIFIC
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INVESTIGATION. (a) The committee may contract with other state
agencies or political subdivisions and with qualified private
institutions, corporations, or individuals for the discovery and
scientific investigation of sunken or abandoned ships or wrecks of
the sea, or any part of the contents of them, or archeological
deposits or treasure imbedded in the earth.
(b) The contract shall:
(1) be on a form approved by the attorney general;
(2) specify the location, nature of the activity, and the
time period covered by the contract; and
(3) provide for the termination of any right in the
investigator or permittee under the contract on the violation of any
of the terms of the contract.
(c) The executed contract shall be recorded by the person,
firm, or corporation obtaining the contract in the office of the
county clerk in the county or counties in which the operations are to
be conducted prior to the commencement of the operation.
(d) Title to all objects recovered is retained by the State of
Texas unless and until it is released by the committee.

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 NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 9 of 18

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2006, ch. 364, Sec. 7,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 5, eff.
Sept. 1, 1987.

Sec. 191.054. PERMIT FOR SURVEY AND DISCOVERY, EXCAVATION,
RESTORATION, DEMOLITION, OR STUDY. (a) The committee may issue a
permit to other state agencies or political subdivisions or to
qualified private institutions, companies, or individuals for the
survey and discovery, excavation, demolition, or restoration of, or
the conduct of scientific or educational studies at, in, or on
landmarks, or for the discovery of eligible landmarks on public land
if it is the opinion of the committee that the permit is in the best
interest of the State of Texas.
(b) Restoration shall be defined as any rehabilitation of a
landmark excepting normal maintenance or alterations to nonpublic
interior spaces.
(c) The permit shall:
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(1) be on a form approved by the attorney general;
(2) specify the location, nature of the activity, and the
time period covered by the permit; and
(3) provide for the termination of any right in the
investigator or permittee under the permit on the violation of any of
the terms of the permit.

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2006, ch. 364, Sec. 7,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 6, eff.
Sept. 1, 1987.

Sec. 191.055. SUPERVISION. All scientific investigations or
recovery operations conducted under the contract provisions in
Section 191.053 of this code and all operations conducted under
permits or contracts set out in Section 191.054 of this code must be
carried out:
(1) under the general supervision of the committee;
(2) in accordance with reasonable rules adopted by the
committee; and

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(3) in such manner that the maximum amount of historic,
scientific, archeological, and educational information may be
recovered and preserved in addition to the physical recovery of
items.

Acts 1977, 65th Leg., p. 2686, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2002, ch. 364, Sec. 7,
eff. Sept. 1, 1983.

Sec. 191.056. ACCEPTANCE OF GIFTS. The committee may accept
gifts, grants, devises, or bequests of money, securities, or property
to be used in the pursuance of its activities and the performance of
its duties.

Acts 1977, 65th Leg., p. 2686, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2006, ch. 364, Sec. 7,
eff. Sept. 1, 1983.
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Sec. 191.057. SURVEY, EXCAVATION, OR RESTORATION FOR PRIVATE
PARTIES. The committee may survey, excavate, or restore antiquities
for private parties under rules promulgated by the committee. All
real and administrative costs incurred in the survey, excavation, or
restoration shall be paid by the private party.

Acts 1977, 65th Leg., p. 2686, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 7, eff. Sept.
1, 1987.

Sec. 191.058. CURATION OF ARTIFACTS. (a) As far as is
consistent with the public policy of this chapter, the committee, on
a majority vote, may arrange or contract with other state agencies or
political subdivisions, and qualified private institutions,
corporations, or individuals, for public display of artifacts and
other items in its custody through permanent exhibits established in
the locality or region in which the artifacts were discovered or
recovered. The committee, on a majority vote, may also arrange or
contract with these same persons and groups for portable or mobile
displays.

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(b) The committee is the legal custodian of the items described
in this chapter and shall adopt appropriate rules, terms, and
conditions to assure appropriate security, qualification of
personnel, insurance, facilities for preservation, restoration, and
display of the items loaned under the contracts.
(c) Arrangements for curation of artifacts, data, and other
materials recovered under Texas Antiquities Committee permits are
specified in the body of the permit. Should a state agency or
political subdivision lack the facilities or for any reason be unable
to curate or provide responsible storage for such artifacts, data, or
other materials, the Texas Antiquities Committee will arrange for
curation at a suitable institution. The Texas Antiquities Committee
may by rule assess costs for the curation.
(d) The committee may contract with a qualified institution for
the institution to serve as a repository for artifacts and other
items in the custody of the committee. The Corpus Christi Museum of
Science and History is the repository for marine artifacts. The
committee may contract with other qualified institutions to serve as
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additional repositories for marine artifacts. The committee may
authorize an archeological repository to loan artifacts and other
items curated by the repository to a qualified institution for public
display. The Corpus Christi Museum of Science and History:
(1) does not own the artifacts for which it serves as a
repository; and
(2) shall make available for loan to a qualified
institution for display the marine artifacts for which it serves as a
repository.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1983, 68th Leg., p. 2008, ch. 364, Sec. 8,
eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 8, eff.
Sept. 1, 1987; Acts 1997, 75th Leg., ch. 797, Sec. 1, 2, eff. June
17, 1997.

Sec. 191.059. COMPLAINTS. (a) The committee shall keep an
information file about each complaint filed with the committee.
(b) If a written complaint is filed with the committee, the
committee, at least as frequently as quarterly and until final

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disposition of the complaint, shall notify the parties to the
complaint of the status of the complaint.

Added by Acts 1983, 68th Leg., p. 2009, ch. 364, Sec. 9, eff. Sept.
1, 1983.

SUBCHAPTER D. STATE ARCHEOLOGICAL LANDMARKS

Sec. 191.091. SHIPS, WRECKS OF THE SEA, AND TREASURE IMBEDDED
IN EARTH. Sunken or abandoned pre-twentieth century ships and wrecks
of the sea, and any part or the contents of them, and all treasure
imbedded in the earth, located in, on, or under the surface of land
belonging to the State of Texas, including its tidelands, submerged
land, and the beds of its rivers and the sea within jurisdiction of
the State of Texas, are declared to be state archeological landmarks
and are eligible for designation.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 9, eff. Sept.
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1, 1987.

Sec. 191.092. OTHER SITES, ARTIFACTS, OR ARTICLES. (a) Sites,
objects, buildings, artifacts, implements, and locations of
historical, archeological, scientific, or educational interest,
including those pertaining to prehistoric and historical American
Indians or aboriginal campsites, dwellings, and habitation sites,
their artifacts and implements of culture, as well as archeological
sites of every character that are located in, on, or under the
surface of any land belonging to the State of Texas or to any county,
city, or political subdivision of the state are state archeological
landmarks and are eligible for designation.
(b) For the purposes of this section, a structure or a building
has historical interest if the structure or building:
(1) was the site of an event that has significance in the
history of the United States or the State of Texas;
(2) was significantly associated with the life of a famous
person;
(3) was significantly associated with an event that
symbolizes an important principle or ideal;

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(4) represents a distinctive architectural type and has
value as an example of a period, style, or construction technique;
or
(5) is important as part of the heritage of a religious
organization, ethnic group, or local society.
(c) An individual or a private group that desires to nominate a
building or site owned by a political subdivision as a state
archeological landmark must give notice of the nomination at the
individual's or group's own expense in a newspaper of general
circulation published in the city, town, or county in which the
building or site is located. If no newspaper of general circulation
is published in the city, town, or county, the notice must be
published in a newspaper of general circulation published in an
adjoining or neighboring county that is circulated in the county of
the applicant's residence. The notice must:
(1) be printed in 12-point boldface type;
(2) include the exact location of the building or site;
and
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(3) include the name of the group or individual nominating
the building or site.
(d) An original copy of the notice and an affidavit of
publication signed by the newspaper's publisher must be submitted to
the commission with the application for nomination.
(e) The commission may not consider for designation as a state
archeological landmark a building or site owned by a political
subdivision unless the notice and affidavit required by Subsection
(d) are attached to the application.
(f) Before the committee may designate a structure or building
as a state archeological landmark, the structure or building must be
listed on the National Register of Historic Places.
(g) The committee shall adopt rules establishing criteria for
the designation of a structure or building as a state archeological
landmark.
(h) The committee shall consider any and all fiscal impact on
local political subdivisions before any structure or building owned
by a local political subdivision may be designated as a state
archeological landmark.

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Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1981, 67th Leg., p. 193, ch. 90, Sec. 1, eff.
Aug. 31, 1981; Acts 1987, 70th Leg., ch. 948, Sec. 10, eff. Sept. 1,
1987; Acts 1995, 74th Leg., ch. 109, Sec. 20, eff. Aug. 30, 1995.

Sec. 191.093. PREREQUISITES TO REMOVAL, ALTERING, DAMAGING,
DESTROYING, SALVAGING, OR EXCAVATING CERTAIN LANDMARKS. Landmarks
under Section 191.091 or 191.092 of this code 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.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1981, 67th Leg., p. 193, ch. 90, Sec. 2, eff.
Aug. 31, 1981; Acts 1987, 70th Leg., ch. 948, Sec. 11, eff. Sept. 1,
1987.

Sec. 191.094. DESIGNATING A LANDMARK ON PRIVATE LAND. (a) Any
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site located on private land which is determined by majority vote of
the committee to be of sufficient archeological, scientific, or
historical significance to scientific study, interest, or public
representation of the aboriginal or historical past of Texas may be
designated a state archeological landmark by the committee.
(b) No site may be designated on private land without the
written consent of the landowner or landowners in recordable form
sufficiently describing the site so that it may be located on the
ground.
(c) On designation, the consent of the landowner shall be
recorded in the deed records of the county in which the land is
located.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.095. PERMIT FOR LANDMARK ON PRIVATE LAND. All sites
or items of archeological, scientific, or historical interest located
on private land in the State of Texas in areas designated as
landmarks, as provided in Section 191.094 of this code, and landmarks

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under Section 191.092 of this code, may not be taken, altered,
damaged, destroyed, salvaged, or excavated without a permit from the
committee or in violation of the terms of the permit.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.096. MARKING LANDMARK ON PRIVATE LAND. Any site on
private land which is designated a landmark shall be marked by at
least one marker bearing the words "State Archeological Landmark".

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 12, eff. Sept.
1, 1987.

Sec. 191.097. REMOVING DESIGNATION AS LANDMARK. (a) Any
landmark on public or private land may be determined by majority vote
of the committee to be of no further historical, archeological,
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educational, or scientific value, or not of sufficient value to
warrant its further classification as a landmark, and on this
determination may be removed from the designation as a landmark.
(b) On removal of the designation on private land which was
designated by instrument of record, the committee shall execute and
record in the deed records of the county in which the site is located
an instrument setting out the determination and releasing the site
from the provisions of this chapter.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 13, eff. Sept.
1, 1987.

Sec. 191.098. NOTIFICATION OF ALTERATION OR DEMOLITION OF
POSSIBLE LANDMARK. (a) A state agency may not alter, renovate, or
demolish a building possessed by the state that was constructed at
least 50 years before the alteration, renovation, or demolition and
that has not been designated a landmark by the committee, without
notifying the committee of the proposed alteration, renovation, or
demolition not later than the 60th day before the day on which the
agency begins the alteration, renovation, or demolition.

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(b) After receipt of the notice the committee may waive the
waiting period; however, if the committee institutes proceedings to
determine whether the building is a state archeological landmark
under Section 191.092 of this code not later than the 60th day after
the day on which the notice is received by the committee, the agency
must obtain a permit from the committee before beginning an
alteration, renovation, or demolition of the building during the time
that the committee's proceedings are pending.
(c) Should the committee fail to provide a substantive response
within 60 days to a request for a review of project plans,
application for permit, draft report review, or other business
required under the Antiquities Code, the applicant may proceed
without further reference to the committee.

Added by Acts 1983, 68th Leg., p. 2009, ch. 364, Sec. 10, eff. Sept.
1, 1983. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 14, eff.
Sept. 1, 1987.
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SUBCHAPTER E. PROHIBITIONS

Sec. 191.131. CONTRACT OR PERMIT REQUIREMENT. (a) No person,
firm, or corporation may conduct a salvage or recovery operation
without first obtaining a contract.
(b) 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 site of the operation, or conduct the
operation in violation of the provisions of the permit.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.132. DAMAGE OR DESTRUCTION. (a) No person may
intentionally and knowingly deface American Indian or aboriginal
paintings, hieroglyphics, or other marks or carvings on rock or
elsewhere that pertain to early American Indian or aboriginal
habitation of the country.
(b) A person who is not the owner shall not wilfully injure,
disfigure, remove, or destroy a historical structure, monument,
marker, medallion, or artifact without lawful authority.

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Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.133. ENTRY WITHOUT CONSENT. No person who is not the
owner, and does not have the consent of the owner, proprietor,
lessee, or person in charge, may enter or attempt to enter on the
enclosed land of another and intentionally injure, disfigure, remove,
excavate, damage, take, dig into, or destroy any historical
structure, monument, marker, medallion, or artifact, or any
prehistoric or historic archeological site, American Indian or
aboriginal campsite, artifact, burial, ruin, or other archeological
remains located in, on, or under any private land within the State of
Texas.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.
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SUBCHAPTER F. ENFORCEMENT

Sec. 191.171. CRIMINAL PENALTY. (a) A person violating any of
the provisions of this chapter is guilty of a misdemeanor, and on
conviction shall be punished by a fine of not less than $50 and not
more than $1,000, by confinement in jail for not more than 30 days,
or by both.
(b) Each day of continued violation of any provision of this
chapter constitutes a separate offense for which the offender may be
punished.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.172. CIVIL ACTION BY ATTORNEY GENERAL. (a) In
addition to, and without limiting the other powers of the attorney
general, and without altering or waiving any criminal penalty
provided in this chapter, the attorney general may bring an action in
the name of the State of Texas in any court of competent jurisdiction
for restraining orders and injunctive relief to restrain and enjoin

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violations or threatened violations of this chapter, and for the
return of items taken in violation of the provisions of this chapter.
(b) Venue for an action instituted by the attorney general lies
either in Travis County or in the county in which the activity sought
to be restrained is alleged to be taking place or from which the
items were taken.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.173. CIVIL ACTION BY CITIZEN. (a) A citizen of the
State of Texas may bring an action in any court of competent
jurisdiction for restraining orders and injunctive relief to restrain
and enjoin violations or threatened violations of this chapter, and
for the return of items taken in violation of the provisions of this
chapter.
(b) Venue of an action by a citizen lies in the county in which
the activity sought to be restrained is alleged to be taking place or
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from which the items were taken.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977.

Sec. 191.174. ASSISTANCE FROM STATE AGENCIES, POLITICAL
SUBDIVISIONS, AND LAW ENFORCEMENT OFFICERS. (a) The chief
administrative officers of all state agencies and political
subdivisions are directed to cooperate and assist the committee and
the attorney general in carrying out the intent of this chapter.
(b) All state and local law enforcement agencies and officers
are directed to assist in enforcing the provisions and carrying out
the intent of this chapter.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1,
1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 15, eff. Sept.
1, 1987.

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 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: 64152038 Total Pages: 18

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 support@hcdistrictclerk.com
 1

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
6

7

8

9

10
*************************************************
11
JANUARY 26, 2015
12
*************************************************
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page1of24

13

14

15

16

17 On the 26th day of January, 2015, the

18 following proceedings came on to be heard in the

19 above-entitled and -numbered cause before the

20 Honorable Alexandra Smoots-Hogan, Judge Presiding,

21 held in Houston, Harris County, Texas.

22 Proceedings reported by Certified Shorthand

23 Reporter and Machine Shorthand/Computer-Aided

24 Transcription.

25 EXHIBIT C
DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 2

1

2 A P P E A R A N C E S

3

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
11

12 FOR THE DEFENDANT:
Ms. Darah Eckert, SBN 24007141
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13 Mr. Brian Amis, SBN 24040424
Ms. Lisa A. Ketai, SBN 11362400
14 CITY OF HOUSTON LEGAL DEPARTMENT
900 Bagby Street
15 Houston, Texas 77002
Telephone: 832-393-6348
16 Facsimile: 832-393-6259

17

18

19

20

21

22

23

24

25

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 3

1 P R O C E E D I N G S

2 THE COURT: We are on the record in

3 Cause Number 2015-02771, Freedmen's Town Preservation

4 Coalition versus City of Houston, et al., and

5 appearance for the record, Counsel.

6 MR. HALL: Your Honor, Benjamin Hall

7 and Bill Van Fleet on behalf of Freedmen's Town

8 Preservation Coalition.

9 MS. ECKERT: Darah Eckert, Lisa Ketai,

10 and Brian Amis on behalf of the City of Houston.

11 THE COURT: All right. What's going on

12 today? It's your motion to dissolve, so --
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13 MS. ECKERT: Yes, ma'am. Permission to

14 approach, or do you --

15 THE COURT: Yeah.

16 MS. ECKERT: -- just want us to handle

17 it from here?

18 THE COURT: I don't care. Either way.

19 You can handle it from there. That's fine.

20 MS. ECKERT: Okay. That's fine.

21 We're here today to discuss a TRO that

22 was entered ex parte on -- last Tuesday. We would've

23 liked to have been there, and since we wouldn't --

24 since we weren't invited, we're here today to

25 dissolve the TR -- to ask the Court to dissolve the

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 4

1 TRO. We believe the TRO has some deficiencies, one

2 being that it's void on its face because it doesn't

3 state the time that it was entered. The petition has

4 the time the petition was filed, but the TRO --

5 there's no time on the TRO, and Rule 680 of the Texas

6 Rules of Civil Procedure -- that voids the TRO.

7 And then the TRO is based on incorrect

8 facts of law and -- statement of facts and law, the

9 first being that the TRO is -- the TRO proposes that

10 the City has -- does not have the requisite

11 permission from the Texas Historical Commission to

12 start and complete the brick renovation project for
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13 Freedmen's Town. We understand and agree that it

14 is -- that Freedmen's Town is designated as a

15 historical district. We agree with Plaintiffs on

16 that. But it does not have additional designations,

17 which would heighten the scrutiny for the City's

18 project. This Freedmen's Town is not a -- designated

19 as a State architectural landmark. It's not a --

20 designated as a traditional cultural property. It

21 doesn't have those specific designations.

22 I've -- checked today, was on the phone

23 with Linda Henderson with the Texas Historical

24 Commission. I have confirmed that -- that this area

25 is designated as a historical district only, and

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 5

1 because it's designated as a historical district

2 only, the City has to provide notice, and it has done

3 that. It has -- the THC has been involved with our

4 project. The public has been involved with our

5 project. Mayor has someone on staff, Keith Wade, who

6 has been dealing with the stakeholders, the

7 coalition -- the members of the coalition about the

8 project.

9 On December 15, THC visited Houston,

10 from Austin, and they looked at the process that we

11 were using to remove and clean the bricks. Linda

12 Henderson was the representative from THC that came
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13 down that day. She made some comments. On

14 December 22nd she gave the approval for the City for

15 the process that we are using to remove the bricks --

16 clean the bricks before completing the work in

17 Freedmen's Town and then putting them back in.

18 She said "Okay. Subject to a couple of

19 comments, this is approved and you're good to go,"

20 and we have those approvals from THC.

21 The work that we're doing in Freedmen's

22 Town -- the City is tasked with providing for the

23 health, the safety and welfare of its citizens. We

24 need to go in and clean up the infrastructure. We

25 need to install new water -- sewer lines, sewer

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 6

1 mains, water mains, fire hydrants.

2 All of this work needs to be done in

3 this area, so we need to remove the bricks, clean

4 them, store them. We're going to have an

5 architecture -- an archaeologist on-site. They've

6 coordinated the with the Texas Historical Commission.

7 They're going to be on-site every day that we're

8 doing this project. There is -- the bricks -- when

9 the bricks are being worked on and they're being

10 removed, the archaeologists are going to be on-site,

11 and they're going to supervise all of this work.

12 THE COURT: Let me ask you a
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page6of24

13 question --

14 MS. ECKERT: Yes, ma'am.

15 THE COURT: -- because this came up

16 before. Number one, are they going to be marking the

17 bricks so that we know where they go when they're

18 supposed to go back?

19 MS. ECKERT: I don't believe they're

20 going to be mak -- marking the bricks.

21 THE COURT: Uh-huh. All right.

22 Question Number 2: As far as what I saw and -- what

23 I've seen and what's been handed me today that I've

24 had a little bit of time to go over --

25 MS. ECKERT: Sure.

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 7

1 THE COURT: What I saw previously was

2 there's supposed to be a formal permit from the

3 Historical Commission before work begins. Correct?

4 MS. ECKERT: No.

5 THE COURT: Oh.

6 MS. ECKERT: That's incorrect.

7 THE COURT: Okay. Enlighten me on this

8 one.

9 MS. ECKERT: We have approval from the

10 Texas Historical Commission. The -- the permit

11 that -- Section 191 of the Texas Natural Resource

12 Code --
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page7of24

13 THE COURT: Uh-huh.

14 MS. ECKERT: That section applies to

15 properties and buildings that are designated as State

16 Archaeological Landmarks. Freedmen's Town does not

17 have that designation.

18 THE COURT: I thought it was part of --

19 yeah.

20 MS. ECKERT: It's in a historical

21 district. It does not have the SAL designation. And

22 I confirmed that today with Linda from the THC.

23 THE COURT: Okay.

24 MS. ECKERT: So that's a heightened

25 scrutiny. Those properties that have that

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 8

1 designation do have a heightened scrutiny for work

2 being done on them. Freedmen's Town does not have

3 that designation. Because it is designated as a

4 historical district, there are notice provisions.

5 There's notice to THC that must be given. There's

6 coordination with THC that must be done.

7 We have done that. They've been

8 involved in the process. We have -- and I've

9 attached to my motion to withdraw -- there are -- the

10 THC approvals are part of the field notes, and there

11 are -- there's -- for the brick removal, which is

12 Plan Submittal 47(b), and the -- the permission is
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13 signed by Linda Henderson, and it notes that the site

14 visit was on December 15th, and then her approval --

15 the THC's approval is given on December 22nd, and

16 that's for the brick removal and then for the brick

17 cleaning. We have also attached some of the -- the

18 contract documents.

19 THE COURT: Uh-huh.

20 MS. ECKERT: The contract documents

21 stipulate that the archaeologists are to be on-site.

22 If they come across any part of the old trolley lanes

23 or anything that needs to stop work, they are going

24 to stop work. The -- the contract says we are going

25 to call THC, we're going to call the Houston Heritage

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 9

1 Society. We're going to get these people involved.

2 There's going to be oversight of this project.

3 THE COURT: I guess I'm a little

4 concerned as to why there was going to be oversight,

5 but then it seems like work just started when there

6 was just a breakdown in communication, from what I

7 understood. Sounded like a breakdown in

8 communication.

9 MS. ECKERT: There has not been any

10 breakdown in communication. Work was slate -- we

11 got -- we got permission from the THC. Kevin Wade

12 with the mayor's office deals and communicates on a
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page9of24

13 routine basis with the coalition, and we are under

14 a -- we have contractual obligations at this point,

15 and we need to get -- we need to do the renovation

16 work on the infrastructure. We need to get these

17 water and sewer lines -- we need to start getting

18 this work done for the neighborhood.

19 THE COURT: All right. Let me ask you

20 another question.

21 MS. ECKERT: Yes, ma'am.

22 THE COURT: I signed this last week.

23 Your true hearing on the merits is actually scheduled

24 for Friday --

25 MS. ECKERT: I understand that.

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 10

1 THE COURT: -- of this week at 1:30, so

2 we're talking about a four-day differential on this.

3 MS. ECKERT: I understand.

4 THE COURT: It's almost akin to kind of

5 getting a second bite at the apple. I --

6 notwithstanding the whole time issue, which --

7 generally in those cases I end up signing an amended

8 TRO with the time on it that does exactly the same

9 thing. So I'm -- I'm -- I find it curious that we're

10 back here making arguments that, ostensibly, you'll

11 make again on Friday at 1:30. I'm trying to figure

12 out where the -- the harm is here in waiting until --
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page10of24

13 and I'm not your home court. This might be a really,

14 really intelligent discussion if I were the 80th

15 District Court --

16 MS. ECKERT: Sure.

17 THE COURT: -- where your case is

18 actually pending.

19 MS. ECKERT: Sure.

20 THE COURT: But I'm just ancillary,

21 so --

22 MS. ECKERT: I understand.

23 THE COURT: -- I'm a little confused as

24 to why we're back here with -- when you've got four

25 more days.

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 11

1 MS. ECKERT: Okay. It's a great

2 question. Because what's out there right now in the

3 public and in front of the public eye is that we're

4 acting in violation of the law, and we're not. And

5 so we're simply -- we -- we have all the requisite

6 permissions and felt -- we feel very strongly that we

7 needed to get that out there, that we're not -- we're

8 not acting in violation -- we're not violating the

9 Texas --

10 THE COURT: Right. I'm not in the

11 business of PR games and media games. I'm really

12 not. I'm in the business of --
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page11of24

13 MS. ECKERT: I understand.

14 THE COURT: -- of how all this law

15 stuff works. Technically, all of these arguments --

16 right, wrong or indifferent, technically, should go

17 to your home court instead of with me. I'm not

18 hearing --

19 MS. ECKERT: Well --

20 THE COURT: Outside of the time -- I --

21 I, maybe, grant you that.

22 MS. ECKERT: Okay. So now we're going

23 to walk in on Friday, and I'm sure Mr. Hall is going

24 to say, "Well, we already have a TRO against the

25 City, Judge. You know, here -- our arguments are so

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 12

1 strong that ancillary court already granted a TRO."

2 And our -- our position is it shouldn't

3 have been granted because it's not factually or

4 legally sound. It's not based on correct facts and

5 the correct interpretation of the law. We have the

6 requisite THC approval to move forward on this

7 project, and if you read the Plaintiff's Original

8 Petition, it says we don't, and we do.

9 THE COURT: Okay. I'm still not

10 hearing any reason why we couldn't have dealt with

11 this in your home court on Friday, in four days, like

12 we already discussed, but okay.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page12of24

13 Response.

14 MR. HALL: Thank you, Your Honor. And,

15 Judge, we filed a verified petition, and the Court

16 granted it just moments after the City of Houston had

17 already started taking up the bricks. My worthy

18 opponent -- opposing counsel is simply wrong on the

19 law. The City of Houston has made a number of

20 fundamental blunders -- legal blunders that are

21 clearly set forth in the law.

22 Let me start initially with my -- with

23 the City's argument they didn't need a permit.

24 That's simply wrong, and in fact, we included in the

25 binder for the Court several pieces of law that

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 13

1 answer that question. First, Exhibit 1 clearly

2 recognizes the entire Freedmen's Town as a

3 historic -- historically designated site by -- and it

4 is on the National Register of Historic Places.

5 That's no longer in contest.

6 Exhibit 2 shows that landmarks -- and

7 that's a key term, Your Honor, "landmarks." -- are

8 the sole property of the State of Texas and may not

9 be removed, altered, damaged, destroyed, salvaged, or

10 excavated without a contract with or permit from the

11 committee. The City has neither a contract from nor

12 a permit from the committee.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page13of24

13 So what is the committee? If you turn

14 to the next page under that same tab, the committee

15 is defined. It's the Texas Historical Commission.

16 So now we know they need a contract with or a permit

17 from the THC. But then there's also the definition

18 of "landmark." "Landmark" means a State

19 Archaeological Landmark.

20 So what's the definition of a State

21 Arc -- Archaeological Landmark? Under Tab 3, we

22 brought that for you because that defines what is a

23 State Archaeological Landmark.

24 The City's lawyer just simply is wrong

25 on the law when she says this is not designated as a

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 14

1 State Archaeological Landmark, and quite honestly,

2 she attributes that to a telephone call with Linda

3 Henderson. Linda Henderson is not the THC.

4 We actually brought the identity of all

5 of the commissioners of the THC, none of which is

6 Linda Henderson. And it's kind of frightening to

7 believe that the City's lawyers would rely upon that

8 telephone call with a non-commissioner and no

9 official action of the commission, but they did.

10 The City is going to find out on

11 Friday, we believe, that they have an even more

12 fundamental problem, and that is that the very bid
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page14of24

13 they let is invalid and void. The entire project has

14 to stop because they didn't follow the law.

15 But here, the definition of a State

16 Archaeological Landmark, under -- 191.092(a) says

17 "sites, objects, buildings, artifacts, implements,

18 and locations of historical, archaeological,

19 scientific, or educational interests," and then I'm

20 going to skip down to where it says "as well as

21 archaeological sites of every character that are

22 located in, on, and under the surface of any land

23 belonging to the state of Texas or to any county,

24 city, or political subdivision of the state or State

25 archaeological landmarks and are eligible for

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 15

1 designation." That is as expansive a definition of

2 "State Archaeological Landmark" as you can have.

3 Again, the City is simply wrong by relying upon a

4 telephone call as opposed to referring to the law.

5 Next, Tab 4. Here, under Section

6 191.131 -- again, in a separate part of the law, the

7 State Legislature says "No person" -- and I'm at "b,"

8 Your Honor. -- "No person, firm, or corporation may

9 conduct an operation on any landmark without first

10 obtaining a permit and having the permit in his or

11 its possession at the -- at the site of the operation

12 or conduct the operation in violation of the
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page15of24

13 provisions of the permit."

14 The City's lawyer just admitted they

15 don't have a permit. They got a telephone call.

16 They got an inspection. The project cannot go

17 forward. The law says it cannot even proceed.

18 Then, Your Honor -- and I'm sorry to

19 tire the Court, because if -- when I made the

20 representation to the Court in my petition -- and now

21 that's being challenged. At least I'd like to quiet

22 any anxiety the Court has about my representation

23 that they -- that they did not have a permit.

24 Luckily, the City's lawyer admits they don't have it.

25 Then, Your Honor, the question is:

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 16

1 Well, what does a permit have to include? So we have

2 provided the Court with Section one -- which is under

3 Tab 5 -- 191.054, a permit for survey and discovery,

4 excavation, restoration, demolition, or study.

5 Subpart "b" says, "Restoration shall be

6 defined as any rehabilitation of a landmark,

7 excepting normal maintenance or alterations to

8 non-public interior spaces." And this is what the

9 permit shall include, this is mandatory: The permit

10 shall be on the form approved by the attorney

11 general. It shall specify the location, nature of

12 the activity and the time period covered by the
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page16of24

13 permit, and it shall provide for the termination of

14 any right in the investigator or permittee under the

15 permit. Those are mandated by law.

16 The City of Houston has none of that.

17 It's a legal blunder that -- they should never have

18 engaged this project without having that permit.

19 Next, Your Honor -- so what's the

20 consequence if they fail to have the permit? Under

21 Tab 6, the failure to seek a permit, "Public owners,"

22 which the City is, "project sponsors, project

23 architects, and professional ... shall not perform

24 work on a historic building or structure that is

25 designated as a landmark." We've already dealt with

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 17

1 the definition of "landmark." So the City was not

2 even supposed to proceed with any work, let alone our

3 having to rush over here to get a TRO to stop them

4 from doing their unlawful conduct.

5 Next. To make sure that the Court and

6 the City knows what has to be in the permit, Tab 7, a

7 separate part of the law, again reiterates the permit

8 shall include -- Subsection (b) -- the terms and

9 condition, the period -- the permit period, and the

10 permit expiration as well as whether it's

11 transferable. That's what the law says the permit

12 has to include. That's why the City attorney jumps
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page17of24

13 up today and tells you, "Oh, Judge, we didn't have to

14 have a permit," because she knows the City doesn't

15 have one, and, therefore, they cannot do the work.

16 Then next is Tab 8. Tab 8 specifically

17 identifies the types of permits the THC can give,

18 preservation permit, rehabilitation, restoration,

19 reconstruction, architectural, investigation permit.

20 They have none. So, Judge, I then included the

21 actual forms that show, under Tab 9, what the permit

22 looks like, from an application, permit completion,

23 as well as the law that sets forth those guidelines.

24 Now, the -- the actual smoking gun is

25 Tab 10. We called Linda Henderson. We asked Linda

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 18

1 Henderson, on an open records request, "Give us the

2 City's permits." She wrote us back this e-mail --

3 and this will be in evidence on Friday. "I created

4 that site form specifically for this project, hoping

5 that it would help thing -- things clear, but it is

6 the only time I've used it." "It is the only time

7 I've used it, and I created it."

8 Judge, the statute says the -- the

9 attorney general has to approve the permit form, not

10 Ms. Linda Henderson, and that's all the City has.

11 Next, the City, in its response --

12 before they found out that somebody needed to read
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page18of24

13 the law, they said, "This is our authorization,"

14 under Tab 11, but, Judge, you can see that this is a

15 site visit form, not a permit. Up at the top -- this

16 is the document Linda Henderson created. It does not

17 specify the time period covered, the permittee, the

18 time of expiration, the non-transferability of the

19 permit. All of those requirements that the law says

20 has to be in the permit are not here.

21 Linda Henderson may have been somebody,

22 individually, who wanted to create something, but she

23 didn't comply with the law, and in the City's

24 response they actually said they relied upon this to

25 show compliance with THC guidelines. Well, you just

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 19

1 don't get to do it that way. You have to comply with

2 the law. And, Your Honor, as you know, it pains me,

3 as a former City attorney, to have to challenge the

4 fact that the City's lawyers failed to do their job

5 here. They just did.

6 Under Tab 12 -- so the Court then says,

7 "Well, Mr. Hall, can you show me a permit issued by

8 the THC?" Yes, ma'am, we can. Your Honor, under

9 Tab 12 is an actual permit, Permit Number 494, issued

10 by THC -- the Tarrant County Courthouse; under

11 Tab 13, another permit issued by the THC for

12 rehabilitation in Jefferson County Courthouse, and
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page19of24

13 this permit -- both of these comply with the law. We

14 have the name of the project, the term of the permit,

15 when it expires, the lack of transferability as well

16 as the permittee identified on the permit.

17 And finally, Your Honor, I brought you

18 another permit, Tab 14. Again, that complies with

19 the law. It indicates who owns and controls the

20 same, where it's to be performed, sponsored by the

21 principal investigator, when the permit takes effect,

22 when it's going to expire, precisely what the statute

23 says the permit must contain.

24 So then, finally, we get to your TRO,

25 and the City crafts an argument that says, "Judge, it

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 20

1 doesn't have a time." And I think that the Court

2 should put 10:00 o'clock. I think you signed the

3 order at 10:00 o'clock. But it does include a time.

4 It says, in the last paragraph -- and I highlighted

5 it. -- "This temporary restraining order is effective

6 immediately upon signing by the Court and shall

7 continue in force," et cetera.

8 So the Court indicates that it's

9 effective immediately upon signing. But if they want

10 a time, which I think -- so the City appears to want

11 to have a time here. If the Court were to, on this

12 same order, just simply say "at" -- where it says
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page20of24

13 "Done this 20th day of January, 2015" -- "at

14 10:00 o'clock" -- I believe the Court was signing the

15 order at 10:00 o'clock because we delivered it

16 immediately over to the site at 11:00 o'clock.

17 That's when it was served on the other side.

18 That, Your Honor, addresses the issues

19 in terms of the law. They don't have a permit.

20 Quite honestly, on Friday we're going to prove what

21 the consequence of that is, and it's a $5 million hit

22 to the City because the City of Houston did this

23 project wrong. There -- the Court is right. Four

24 days will transpire. There's no harm to anyone. The

25 TRO should not be dissolved.

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 21

1 MS. ECKERT: Brief response, Your

2 Honor?

3 THE COURT: Sure.

4 MS. ECKERT: Okay. So Mr. Hall has

5 read a bunch of Section 191 and a bunch of it that

6 doesn't apply to this project because what he hasn't

7 said is that Freedmen's Town has been designated as a

8 State Archaeological Landmark, and he hasn't said

9 that because it hasn't, which means that

10 Section 191.052(5), "Notice Required" -- that is the

11 section of 191 that applies to this project. "Before

12 breaking ground at a project location on State or
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page21of24

13 local public land, person primarily responsible for

14 the project or the person's agent shall notify the

15 committee," the committee being THC, and we did that.

16 With regard to the approvals -- we

17 have -- you can call it permission, you can call it a

18 permit, but we do have THC's permission to go forward

19 with this project. The documents that we have

20 submitted to the Court say "Project may proceed based

21 on protocols and specifications." And that was for

22 the brick cleaning. For the brick removal, "Project

23 may proceed based on protocols, specifications, and

24 conditions." Linda Henderson made some comments,

25 gave us some additional things to follow. This is

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 22

1 permission to go forward with these projects, and we

2 do have the requisite permission.

3 And for the rest of 191 that Mr. Hall

4 has talked about -- that doesn't apply because this

5 site is only designated as -- as a historical

6 district. It's not -- there's no designation as a

7 State Archaeological Landmark, and that is a very

8 important distinction to make.

9 THE COURT: All right. Like I said, I

10 read this stuff before I came out here. Frankly,

11 Counsel, I just disagree with you. I think that

12 the -- Code Sections 9 -- 191, the initial sections,
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page22of24

13 make it pretty clear that it's kind of a broad brush

14 that we paint to look at landmarks, and in fact, a

15 portion that Mr. Hall didn't read but I did, which

16 says they have to be eligible for designation as

17 well, clearly -- and then defines what it means to be

18 eligible for designation and very clearly says is an

19 important part of heritage. You know, does it have

20 some distinct archaeological value? Clearly, the

21 fact that it's already been designated before shows

22 that it would probably come under this purview.

23 Regardless, my burden is very low, as

24 we're still at TRO stage, which is why I cautioned

25 you as to why you wouldn't wait to make this litany

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 23

1 of arguments in front of the TV cameras on Friday in

2 Judge Weiman's court instead of coming here, because,

3 frankly, I think they passed the bar when I signed it

4 last Tuesday. They passed the very minimal bar to

5 get me to still be okay with it today, which gets you

6 to Friday in your home court, Judge Weiman, at 1:30.

7 The only thing that I may be willing to do, just for

8 the sake of completion, is sign an amended TRO

9 that -- where I would change absolutely no language

10 on here and only give you a time in addition to the

11 date, and that's about all I'm willing to do. So --

12 MS. ECKERT: Okay.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page23of24

13 MR. HALL: Thank you, Your Honor.

14 THE COURT: With that, we're adjourned.

15 MR. HALL: Thank you, Your Honor.

16 THE COURT: Thanks.

17 MR. HALL: With your permission -- is

18 that the copy of the order?

19 THE COURT: Yeah. If you have one,

20 hand it up. I'll sign it right now.

21 (Court adjourned.)

22

23

24

25

DONNA KING HAMMER, CSR
164TH OFFICIAL REPORTER
(713) 368-6256
 24

1 THE STATE OF TEXAS )
)
2 COUNTY OF HARRIS )

3

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.
9

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.
12
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page24of24

13 I further certify that the total cost for
the preparation of this Reporter's Record is
14 $_____________ and was paid/will be paid by
___________________.
15

16 WITNESS MY OFFICIAL HAND this, the 3rd day
of February, 2015.
17

18

19
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

24

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

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 support@hcdistrictclerk.com
 State of Texas
TEXAS ANTIQUITIES COMMITTEE
ARCHEOLOGY PERMIT * 6595

This permit is issued by the Texas Historical Commission, hereafter referred to as the Commission,
represented herein by and through its duly authorized and empowered representatives. The
Commission, under authority of the Texas Natural Resources Code, Title 9, Chapter 191, and subject to
the conditions hereinafter set forth, grants this permit for:
Intensive Survey
To be performed on a potential or designated landmark or other public land known as:
Title: Cape Road Parking (City of San Marcos ROW Only)
County: Hays
Location: Approximately 15 to 20 parking spaces situated adjacent to Cape Road
approximately 30.5 to 40.0 meters (m) (100.0 to 131.2 feet) to the east of the San
Marcos River in San Marcos, Hays County, Texas.
Owned or Controlled by: (hereafter known as the Permittee):
City of San Marcos
630 East Hopkins
San Marcos, TX 78666
Sponsored by (hereafter known as the• Spoijsor_-_
David Mulkey, Jr.
1550 Timothy Road, Suite 201
Athens, GA 30606
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152040-Page1of2

The Principal Investigator/investigation Firm representing the Owner or Sponsor is:
Jennifer Cochran
Horizon Environmental Services, Inc.
1507 South IH 35
Austin, TX 78741 __
This permit is to be in effect for a period of:
5 Years and 0 Months

end Will Expire on:
07/18/2018
During the preservation, analysis, and preparation of a final repo/1 or until further notice by the
Commission, artifacts, field notes, and other data gathered during the investigation will be kept
temporarily at:
Horizon Environmental Services, Inc.
Upon completion of the final permit report, the same artifacts, field notes, and other data will be placed
in a permanent curatorial repository at:
Texas Archeological Research Lab.
Scope of Work under this permit shall consist of:
Conduct intensive cultural resource survey of approximately 15-20 parking spaces located within the City
of San Marcos Public ROW adjacent to Cape Road also to the east of the San Marcos River in San Marcos,
Hays County, Texas. For details, see scope of work submitted with permit application.

EXHIBIT D
 ARCHEOLOGY PERMIT it 6595
This permit is granted on the following terms and conditions:
1) This project must be carried out in such a manner thai the maximum amount of historic, scientific, archeologicai, and educational
information will be recovered and preserved and must include the scientific, techniques for recovery, recording, preservation and analysis
commonly used in archeologicsl investigations. Ail survey level investigations must follow the state suivey standards and the THC survey
requirements established with the projects sponsor(s).
2) The Principal investigator/Investigation Firm, serving for the Owner/Permittee and/or the Project Sponsor, is responsible for insuring that
specimens, samples, artifacts, materials and records that are collected as a result of this permit are appropriately cleaned, and cataloged
for curation. These tasks will be accomplished at no charge to the Commission, and all specimens, artifacts, materials, samples, and
original field notes, maps, drawings, and photographs resulting from the in vestigations remain the property of the State of Texas, or its
political subdivision, and must be curated at a certified repository. Verification of curation by the repository is also required, and duplicate
copies of any requested records shall be furnished to the Commission before any permit will be considered complete.
3) The Principal Investigator/Investigation Firm serving for the Owner/Permittee, and/or the Project Sponsor is responsible for the
publication of results of the investigations in a thorough technical report containing relevant descriptions, maps, documents, drawings, and
photographs. A draft copy of the report must be submitted to the Commission for review and approval. Any changes to the draft report
requested by the Commission must be made or addressed in the report, or under separate written response to the Commission. Once a
draft has been approved by the Commission, one (1) printed, unbound copy of the final report containing at least one map with the plotted
location of any and all sites recorded and two copies of the report in tagged PDF format on an archival quality CD or DVD shall be furnished
to the commission. One copy must include the plotted location of any and all sites recorded and the other should not include the site
location data. A paper copy and an electronic copy of the completed Abstracts in Texas Contract Archeology Summary Form must also be
submitted with the final report to the Commission. (Printed copies of forms are available from the Commission or also online at
www. the. state, tx. us.)
4} If the Owner/Permittee, Project Sponsor or Principal Investigator/Investigation Firm fails to comply with any of the Commission's Rules of
Practice and Procedure or with any of the specific terms of this permit, or fails to properly conduct or complete this project within the allotted
time, the permit will fall into default status. A notification of Default status shall be sent to the Principal Investigator/Investigation Firm, and
the Principal Investigator will not be eligible to be issued any new pemiits until such time that the conditions of this permit are complete or, if
applicable, extended,
5) The Owner/Peimittee, Project Sponsor, and Principal Investigator/Investigation Firm, in the conduct of the activities hereby authorizes,
must comply with all laws, ordinances and regulations of the State of Texas and of its political subdivisions including, but not limited to, the
Antiquities Code of Texas: they must conduct the investigation in sucli a marmot as to afford protection to the rights of any and alt lessees
or easement holders or other persons having an interest in the property and they must return the property to its original condition insofar as
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152040-Page2of2

possible, to leave it in a state which will nut create hazard to life nor contribute to the deterioration of the site or adjacent lands by natural
'orces.
6) Any duly authorized and empowered representative of the Commission may, at any time, visit the site to inspect the fieidwork as well as
the field mcords, materials, and specimens being recovered.
7) For reasons of site security associated with historical resources, the Project Sponsor (if not the Owner/Permittee), Principal investigator.
Owner, and investigation Firm shall not issue any press releases, or divulge to the news media, cither directly or indirectly, information
regarding the specific location of, or other information thai might endanger those resources, oi their associated artifacts without first
consulting with the Commission, and the State agency or political subdivision of the State thai owns or controls the land where the resource
lias been discovered.
S) This permit may not be assigned by the Principal Investigator/Investigation Finn, Owner/Permittee, or Project Sponsor in whole, or in part
fo any other individual, organization, or corporation not specifically mentioned in this permit without the written consent of the Commission.
9) Hold Harmless: The Owner/Permittee hereby expressly releases the State and agrees that Owner/Permittee will hold harmless,
indemnify, and defend (including reasonable attorney's fees and cost of litigation) the Stale, its officers, agents, and employees in their
official and/or individual capacities from every liability, loss, or claim for damages to persons orpropcrty, direct or indirect of whatsoever
nature arising out of, or in any way connected with, sny of the activities covered under this permit. The provisions of this paragraph are
solely for the benefit of the State and the Texas Historical Commission and are not intended fo create or grant anyrights,contractual or
otherwise, to any other person or entity.
10) Addendum: The Owner/Permittee, Project Sponsor and Principal Investigator/Investigation Firm must abide by any addenda hereto
attached.

Upon 8 finding that it is in the best interest of the State, this pet mil is issued on 07/18/2013.

Put Mercado-Aflinger, for the
Texas Historical Commission
 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: 64152040 Total Pages: 2

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 support@hcdistrictclerk.com
 2/6/20156:19:51PM
ChrisDaniel-DistrictClerk
HarrisCounty
EnvelopeNo:4063468
By:CASARES,ALEXANDRO
Filed:2/6/20156:19:51PM
CAUSE NO. 2015-02771
FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT
COALITION, PLAINTIFF, §
§
V. § HARRIS COUNTY, TEXAS
§
THE CITY OF HOUSTON AND CONRAD §
CONSTRUCTION CO., LTD, §
DEFENDANTS. § 80TH JUDICIAL DISTRICT

ORDER

Came for hearing Defendant the City of Houston’s Motion to Deny Plaintiff’s Request

for Injunctive Relief as a Matter of Law. After considering the Motion, the Response, if any, the

argument of counsel, and the paper in the Court’s file, the Court hereby FINDS that

As a matter of law, Plaintiff cannot meet its burden to prove a probability of success on

the merits. The Court therefore

DENIES Plaintiff’s request for a temporary injunction.
For Official Governmental Use Only - Do Not Disseminate to the Public: 64152041 - Page 1 of 1

Signed this ______ day of ________________, 2015

_________________________________
Judge Presiding

1
 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

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 support@hcdistrictclerk.com
APPENDIX 5
 2/11/2015 5:29:24 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4117401
By: Arron Sonnier
Filed: 2/11/2015 5:29:24 PM

CAUSE NO. 2015-02771
FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT
COALITION, PLAINTIFF, §
§
V. § HARRIS COUNTY, TEXAS
§
THE CITY OF HOUSTON AND CONRAD §
CONSTRUCTION CO., LTD, §
DEFENDANTS. § 80TH JUDICIAL DISTRICT

CITY OF HOUSTON’S PLEA TO THE JURISDICTION

Defendant the City of Houston (“the City”) files this Plea to the Jurisdiction

because the Plaintiffs have failed to establish a basis for waiver of the City’s

governmental immunity and therefore this Court does not have jurisdiction to
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page1of11

proceed.

I. The City is immune from suit unless its governmental immunity is waived.

Sovereign or governmental immunity deprives a trial court of subject matter

jurisdiction for lawsuits in which a governmental unit has been sued unless the state

consents to suit. See Texas Dep’t of Wildlife v. Miranda, 133 S.W.3d 217, 225-27 (Tex.

2004). Sovereign immunity is properly asserted in a plea to the jurisdiction. Id. at 225.

The trial court must determine whether it has the constitutional or statutory

authority to decide the case before allowing the litigation to proceed. Id. Absent a

clear and unambiguous legislative waiver, governmental immunity protects

municipalities from suit and liability in the performance of their governmental
 functions. Tooke v. City of Mexia, 197 S.W.3d 325, 343-44 (Tex. 2006); City of Galveston

v. State, 217 S.W.3d 466, 469 (Tex. 2007).

A plaintiff has the burden to affirmatively plead waiver of governmental

immunity and failure to do so deprives the trial court of subject-matter jurisdiction.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Tex. Dep’t of Criminal

Justice v. Miller, 51 S.W.3d 583, 586-87 (Tex. 2001). A plaintiff does not meet this

burden simply by referring to a statute which contains a limited waiver of immunity

from suit. Miller, 51 S.W.3d at 587. Rather, a plaintiff must allege facts that fit within

the limited waiver of immunity provided by a statute. Id. Whether the plaintiff has

met this burden is a question of law. Miranda, 133 S.W.3d at 226-27.
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page2of11

When, as here, a plea to the jurisdiction challenges the existence of

jurisdictional facts, the court must consider relevant evidence submitted by the

parties. See id. at 227. The standard of review for a jurisdictional plea based on

evidence “generally mirrors that of a summary judgment under Texas Rule of Civil

Procedure 166a(c).” Id. at 228. Under this standard, the court credits evidence

favoring the nonmovant and draws all reasonable inferences in the nonmovant's

favor. See id. The defendant must assert the absence of subject-matter jurisdiction and

present conclusive proof that the trial court lacks subject-matter jurisdiction. Id. If the

defendant discharges this burden, the plaintiff must present evidence sufficient to raise

a material issue of fact regarding jurisdiction, or the plea will be sustained. Id.

2
 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

permit” is insufficient to remove, rehabilitate or repair “a state archeological

landmark.” Id.

The Plaintiff bases this suit, and the Court’s jurisdiction on section 191.173(a)

of the Natural Resources Code (“Code” or “Antiquities Code”), which states as

follows:

A citizen of the State of Texas may bring an action in any court of
competent jurisdiction for restraining orders and injunctive relief to
restrain and enjoin violations or threatened violations of this chapter, and
for the return of items taken in violation of the provisions of this chapter.

Tex. Nat. Res. Code § 191.173 (emphasis added).

1
See Exhibit A, Affidavit of Mark Wolfe.

3
 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

The pleadings and jurisdictional facts here do not demonstrate that the City has

violated or threatened to violate the Texas Natural Resources Code. Therefore the

facts alleged do not fall within the limited waiver of governmental immunity granted

under Section 191.173. Because the facts do not demonstrate “violations or

threatened violations” of the Code, the Plaintiffs cannot demonstrate waiver of the

City’s immunity.

The Code provides for tiered layers of protection for historical buildings and

sites. Freedmen’s Town is designated as a Historic District in the National Register of

Historic Places. As a historic district, Freedmen’s Town is subject to Subsection C of

the Code. Pursuant to Subsection C, if a “project is inside a designated historic

district,” the “person primarily responsible for the project” must notify the THC. Tex.

Nat. Res. Code §§ 191.0525(a), (d). The THC then has the option to investigate and

4
 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

altered, damaged, destroyed, salvaged or excavated without a contract or permit from

the [THC].” Id. § 191.093.

In its Motion to Deny Plaintiff’s Request for Injunctive Relief, the City

submitted the affidavit of Mark Wolfe, Executive Director of the THC. (See Ex. A).

Mr. Wolfe testified that he thoroughly searched the records of the THC and

determined “that the Freedman’s Town in Houston is designated as a Historical

District. However, it is not designated as a State Archeological Landmark nor is there

a pending application to designate Freedmen’s Town in Houston as a State

Archeological Landmark.” (Ex. A at ¶ 9). He further testified that on September 12,

2014, the City obtained Archeology Permit #7021. “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

5
 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

governmental immunity. It is the Plaintiff’s burden to present evidence sufficient to

raise a material issue of fact regarding jurisdiction. Miranda, 133 S.W.3d at 228.

C. The Plaintiff misinterprets Section 191.092(a).

The Plaintiff’s assertion that the City has violated the Code by failing to obtain

a permit or contract is based on its misinterpretation of Section 191.092(a). Plaintiff

claims the definition of “state archeological landmark” under Section 191.092(a) of

the Code encompasses Freedman’s Town. Section 191.092(a) provides that:

Sites, objects, buildings, artifacts, implements, and locations of
historical, archeological, scientific, or educational interest … are state
archeological landmarks and are eligible for designation.

6
 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

Under Plaintiff’s interpretation, it would be impossible to know whether a permit or

approved contract under Section 191.093 is required to proceed with work on a site

because there would be not necessarily be a formal designation of a site as a State

Archeological Landmark. 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. See, 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.

In Texas Antiquities Committee v. Dallas County Community College District, the

Texas Supreme Court considered the meaning of the prior version of the statute. 554

S.W.2d 924 (Tex. 1977). There, the Dallas Community College District filed suit for

7
 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

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.

Id. at 926 (emphasis added).

Similarly, in Board of Regents v. Walker County Historical Commission, the

Fourteenth Court of Appeals reviewed a temporary injunction preventing restoration

work on Sam Houston’s Woodward home until a permit was issued by the THC. 608

S.W.2d 252 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ). The Board of

Regents argued that the Woodward home was not designated as a State

Archeological Landmark, and therefore the THC was not authorized or required to
2
In 1995, the 74th Legislature abolished the Texas Antiquities Committee and made the Texas
Historical Commission the legal custodian of the Antiquities Code.

8
 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

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 and does not fall under Subchapter D of the

Natural Resources Code. (Ex. A at ¶ 9). Therefore the City was not required to get a

permit from the THC prior to commencing work and did not violate Section 191.093

of the Code.

D. Because no permit is required for the work on Freedman’s Town,
Section 191.131(b) does not apply.

Plaintiff also asserts a violation of Section 191.131(b) of the Code. This section

states that:

No person, firm, or corporation may conduct an operation on any
landmark without first obtaining a permit and having the permit in his

9
 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

jurisdiction over the Plaintiff’s claims, and the Court should grant the City’s Plea to

the Jurisdiction and dismiss this case in its entirety.

10
 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)
darah.eckert@houstontx.gov
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page11of11

Attorneys for Defendant The City of Houston

Certificate of Service

I hereby certify that on this 11th day of February, 2015, a true and correct copy
of the foregoing has been served on counsel below via e-service.

Benjamin L. Hall, III
The Hall Law Firm
530 Lovett Boulevard
Houston, Texas 77006
bhall@bhalllawfirm.com

/s/ Darah Eckert
Darah Eckert

11
 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

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 support@hcdistrictclerk.com
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page1of6

EXHIBIT A
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page2of6
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page3of6
EXHIBIT A-1
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page4of6
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page5of6
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page6of6
 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: 64209314 Total Pages: 6

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 support@hcdistrictclerk.com
 2/11/20155:29:24PM
ChrisDaniel-DistrictClerk
HarrisCounty
EnvelopeNo:4117401
By:SONNIER,ARRONW
Filed:2/11/20155:29:24PM
CAUSE NO. 2015-02771
FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT
COALITION, PLAINTIFF, §
§
V. § HARRIS COUNTY, TEXAS
§
THE CITY OF HOUSTON AND CONRAD §
CONSTRUCTION CO., LTD, §
DEFENDANTS. § 80TH JUDICIAL DISTRICT

ORDER OF DISMISSAL

ON THIS DAY the Court considered Defendant City of Houston’s Plea to the

Jurisdiction. The Court is of the opinion that the Plea is meritorious and should be

GRANTED. IT IS THEREFORE ORDERED

That the Defendant’s Plea to the Jurisdiction is GRANTED and this case is
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209315-Page1of1

dismissed in its entirety as to the City of Houston.

SIGNED THIS ____ DAY OF February, 2015

____________________________
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 February 12, 2015

Certified Document Number: 64209315 Total Pages: 1

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 support@hcdistrictclerk.com
APPENDIX 6
 CAUSE No. 2015-02771
P3)),'0
FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT
COALITION, PLAINTIFF,

V. HARRIS COUNTY, TEXAS

THE CITY OF HOUSTON AND CONRAD §
CONSTRUCTION CO., LTD,
DEFENDANTS. 80TH JUDICIAL DISTRICT

ON THIS DAY the Court considered Defendant City of Houston's Plea to the

Jurisdiction. T • " ' _ ••• " I I • •

GAD. IT IS THEREFORE ORDERED
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64215960-Page1of1

That the Defendant's Plea to the Jurisdiction is COED an€14.11'

Z •

SIGNED THIS I" DAY OF February, 2015

FILED
Chris Daniel
District Clerk

FEB 12 2015
Time: 11 4.9
Harris County, Texas
By
Deputy

RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of Imaging
 ..... 6 ,

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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

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 support@hcdistrictclerk.com
APPENDIX 7
 CAUSE NO. 2015-02771
FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT
COALITION, PLAINTIFF, §
§
V. § HARRIS COUNTY, TEXAS
§
THE CITY OF HOUSTON AND CONRAD §
CONSTRUCTION CO., LTD, §
DEFENDANTS. § 80TH JUDICIAL DISTRICT

Notice of Interlocutory Appeal

Pursuant to Texas Rule of Appellate Procedure 25.1, Defendant files this

Notice of Appeal.

1. Defendant The City of Houston desires to appeal the denial of its plea to

the jurisdiction in this cause.

2. The district court signed the Denial of Plea to Jurisdiction denying the

plea on February 12, 2015. A copy of the Order is attached.

3. This appeal is taken to the First or Fourteenth Court of Appeals at

Houston, Texas.

4. Defendant has not previously filed a related appeal or original

proceeding in either the First or Fourteenth Court of Appeals.

3. This is an accelerated interlocutory appeal under Tex. Civ. Prac. &

Rem. Code § 51.014(a)(8); it is not a parental-termination or child-

protection case.

4. This appeal stays all proceedings in the trial court pending resolution of

the appeal. Tex. Civ. Prac. & Rem. Code § 51.014(b).
 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)
darah.eckert@houstontx.gov

Attorneys for Defendant The City of Houston

Certificate of Service

I hereby certify that on this 12th day of February, 2015, a true and correct copy
of the foregoing has been served on counsel below via e-service.

Benjamin L. Hall, III
The Hall Law Firm
530 Lovett Boulevard
Houston, Texas 77006
bhall@bhalllawfirm.com

/s/ Darah Eckert
Darah Eckert

2
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

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 support@hcdistrictclerk.com
APPENDIX 8
 3/20/2015 3:06:58 PM
Chris Daniel - District Clerk Harris County
Envelope No. 4584342
By: Duane Gilmore
Filed: 3/20/2015 3:06:58 PM

CAUSE NO. 2015-02771

FREEDMEN'S TOWN PRESERVATION § IN THE DISTRICT COURT OF
COALITION, Plaintiff §
§
v. § HARRIS COUNTY, T E XA S
§
THE CITY OF HOUSTON and §
CONRAD CONSTRUCTION CO., LTD., §
Defendants. § 80th JUDICIAL DISTRICT

DEFENDANT'S NOTICE OF APPEAL
(INTERLOCUTORY)

Defendant, Conrad Construction Co., Ltd., files its Notice of Appeal from the Trial

Court's (1) Order Granting Temporary Injunction (signed, March 2, 2015), and (2) Order

Denying Motion to Dissolve (signed, March 20, 2015). This appeal is interlocutory pursuant to

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4) (Vernon 2012). Conrad intends to appeal said
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64726010-Page1of3

orders to either the First or Fourteenth Court of Appeals. Conrad gives notice a related appeal

was previously filed in the Fourteenth Court of Appeals per the attached statement.

SIGNED and FILED this 20th day of March, 2015.

Respectfully submitted,

ANDREWS MYERS, P.C.

By: /s/ Robert A. Plessala
Robert Plessala
State Bar No. 16069200
rplessala@andrewsmyers.com
3900 Essex Lane, Suite 800
Houston, Texas 77027
(713) 850-4200 (telephone)
713-850-4211 (fax)

ATTORNEYS FOR DEFENDANT
CONRAD CONSTRUCTION CO., LTD.
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was forwarded to
all counsel of record in accordance with the Texas Rules of Civil Procedure on this the 20th day
of March, 2015.

VIA EMAIL - BHALL@BHALLLAWFIRM.COM
Benjamin Hall
The Hall Law Firm
530 Lovett Boulevard
Houston, TX 77006
Attorney for Plaintiff

Via Email — darah.eckert@houstontx.gov
Darah Eckert
Sr. Asst. City Attorney
900 Bagby Street
Houston, TX 77002
Attorney for City of Houston

Via First Class Mail
Christopher A. Prine
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64726010-Page2of3

Clerk, First Court of Appeals
First Court of Appeals
301 Fannin Street
Houston, TX 77002

Via First Class Mail
Christopher A. Prine
Clerk, Fourteenth Court of Appeals
Fourteenth Court of Appeals
301 Fannin Street
Houston, TX 77002

/s/ Robert A. Plessala
Robert A. Plessala

2
 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:

Caption: City of Houston v. Freedman's Town Preservation Coalition

Appeal Case No: 14-15-00138-CV; Fourteenth Court of Appeals

Trial Court No: 2015-02771; 80th District Court, Harris County, Texas

ANDREWS MYERS, P.C.

By: /s/ Robert A. Plessala
Robert Plessala
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64726010-Page3of3

State Bar No. 16069200
rplessala@andrewsmyers.com
3900 Essex Lane, Suite 800
Houston, Texas 77027
(713) 850-4200 (telephone)
713-850-4211 (fax)

ATTORNEYS FOR DEFENDANT
CONRAD CONSTRUCTION CO., LTD.

4839-4067-1266
3782.1

3
 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

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 support@hcdistrictclerk.com
APPENDIX 9
 P. \
CAUSE No. 2015-02771 STPLX
FREEDMEN'S TOWN PRESERVATION § IN THE DISTRICT COURT
COALITION AND CATHERINE ROBERTS§

VS. HARRIS COUNTY, TEXAS

CITY OF HOUSTON AND CONRAD
CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT

ORDER STRIKING PETITION IN INTERVENTION

Pending before the Court is the Motion to Strike Intervention filed by Plaintiffs

Freedmen's Town Preservation Coalition and Catherine Roberts, and the Court is of the

opinion that the Motion should be GRANTED.

It is therefore ORDERED that the Petition in Intervention filed on February 10, 2015
ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64215959-Page1of1

by Robin Street Square Townhome Association, Crosby Street Square Townhome

Association and Valda Bush is hereby in all things STRICKEN from this cause.

SIGNED the l
al
'lf‘of February, 2015.

dro.ihimmommonomm.....
PRESIDING J\ DGE

FILED
Chris Daniel
District Clerk

FEB 12 2015
Time: 11
Harris County, Texas
By
Deputy

RECORDER'S MEMORANDUM
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at the time of imaging
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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: 64215959 Total Pages: 1

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 support@hcdistrictclerk.com
APPENDIX 10
 1

1 CAUSE NO. 2015-02771

2

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

9

10

11

12

13

14 Plaintiff's Motion
for Temporary Injunction
15 March 2, 2015

16

17

18

19

20

21

22
Michelle Tucker
23 Official Court Reporter
80th District Court
24 Harris County, Texas

25
Proceedings reported by: Machine Shorthand
 42

1 Town?

2 A. Yes.

3 Q. Are you trying to oppose any efforts of people to

4 get fresh water or updated sanitary sewer lines in

5 that area?

6 A. Oh, no. Contrary. I work very hard to promote

7 upgrading and that.

8 Q. Mr. Plessala asked a question of Ms. Wagner just a

9 few moments ago about any applications to designate

10 the Wilson and Andrews streets as national landmarks.

11 Did you hear that series of questions?

12 A. Yes, I did.

13 Q. You have knowledge about that, don't you?

14 A. Yes, I do.

15 Q. Let me show you what has been identified as

16 Plaintiff's Exhibit 43. Do you recognize that

17 document?

18 A. Yes, I do.

19 Q. Would you tell the Court what that document is?

20 A. This is a state antiquities landmark nomination

21 form for the brick paved Andrews and Wilson streets

22 and part of Robin Street in Freedmen's Town National

23 Registered Historic District.

24 Q. Would you tell the Court what date this nomination

25 form was created?
 43

1 A. It was applied for January 29th of 2015.

2 Q. And is this application presently pending before

3 the Texas Historical Commission for the Wilson and

4 Andrews streets?

5 A. Yes, it is.

6 MR. HALL: Your Honor, plaintiffs would move into

7 evidence Plaintiff's Exhibit 43.

8 MR. PLESSALA: I don't have that, may I approach

9 and look, Your Honor?

10 THE COURT: Yes, if you would tender it, please.

11 MR. PLESSALA: No objection, Your Honor.

12 THE COURT: It's admitted.

13 MR. HALL: Thank you.

14 Q. (BY MR. HALL) Ms. Roberts, please -- Mrs.

15 Roberts, please tell the Court what is the purpose of

16 this nomination form?

17 A. The purpose is to call attention to some portion

18 of the historic -- National Historic District that is

19 eligible, has been eligible for this landmark status.

20 Q. Now, we've told the Court we believe that these

21 streets are eligible for a designation as landmarks.

22 Is this one of the processes by which we can get in a

23 normal designation?

24 A. Yes, it is.

25 Q. But that's not our only basis for contending that
 98

1 THE STATE OF TEXAS

2 COUNTY OF HARRIS

3

4 I, Michelle Tucker, Official Court Reporter in

5 and for the 80th District Court of Harris County, State

6 of Texas, do hereby certify that the above and foregoing

7 contains a true and correct transcription of all

8 portions of evidence and other proceedings requested in

9 writing by counsel for the parties to be included in

10 this volume of the Reporter's Record in the above-styled

11 and -numbered cause, all of which occurred in open court

12 or in chambers and were reported by me.

13 I further certify that this reporter's record of

14 the proceedings truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

16 WITNESS MY OFFICIAL HAND this the 6th day of

17 March, 2015.

18 /s/ Michelle Tucker
MICHELLE TUCKER
19 Official Court Reporter
80th District Court
20 201 Caroline, Rm. 915
Houston, Texas 77002
21 713-368-6090
Texas CSR No. 2827
22 Expiration date: 12-31-16

23

24

25
APPENDIX 11
 1

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
§
7 THE CITY OF HOUSTON, et al § 80TH JUDICIAL DISTRICT

8

9 ******************************************************

10 MOTION FOR TEMPORARY INJUNCTION

11 AFTERNOON SESSION

12 ******************************************************

13

14 On the 2nd day of March, 2015, the

15 following proceedings came on to be heard in the

16 above- entitled and numbered cause before the

17 HONORABLE LARRY WEIMAN, Judge Presiding of the 80th

18 District Court of Houston, Harris County, Texas.

19 Proceedings reported by stenographic

20 method.

21

22 LaVEARN IVEY

23 DEPUTY OFFICIAL COURT REPORTER

24 80TH DISTRICT COURT

25 HARRIS COUNTY, TEXAS
 96

1 historic district in the National Register of Historic

2 Places and therefore it's subject to section C of the

3 Antiquities Code Texas National Resource Code, section

4 191.0525. If the project is inside a designated historic

5 district which it is then the Texas Historical Commission

6 is responsible for the project.

7 The court finds that the road in question, the

8 brick road is a structure. The court finds that while the

9 evidence in this temporary injunction hearing has shown

10 the site to be a, or to qualify as a state archeological

11 landmark, that final determination appears to have to be

12 made by the Texas Historical Commission. However this

13 court finds at a minimum the plaintiff has met its burden

14 of proving that the site is at least eligible to be

15 designated as a state archeological landmark. And

16 therefore, there are permits that are required under the

17 Natural Resource Code including section 191.131 for the

18 demolition or destruction of a historical landmark.

19 The court finds that the plaintiff has met its

20 burden of demonstrating that it has met all the

21 requirements necessary to be entitled to a temporary

22 injunction. Having demonstrated that they do have a

23 viable and valid cause of action, that they have

24 demonstrated their probable right to relief sought and

25 that if the temporary injunction is not granted that there
 107

1 THE STATE OF TEXAS

2 COUNTY OF HARRIS

3 I, LaVearn Ivey, Deputy Court Reporter

4 in and for the 80th District Court of Harris County,

5 State of Texas, do hereby certify that the above and

6 foregoing contains a true and correct transcription of

7 all portions of evidence and other proceedings

8 requested in writing by counsel for the parties to be

9 included in this volume of the Reporter's Record in

10 the above-styled and -numbered cause, all of which

11 occurred in open court or in chambers and were

12 reported by me.

13 I further certify that the total cost for the

14 preparation of this Reporter's Record is $768.00 and was

15 paid by City of Houston.

16

17 WITNESS MY OFFICIAL HAND this the 5th day

18 of March, 2015.

19 /s/ LaVearn Ivey _
LaVEARN IVEY, Texas CSR No. 822
20 Expiration date: 12-31-16
Court Reporter
21 80th District Court
Harris County, Texas
22 8831 Bedworth Ln.
Houston, Texas 77088
23 (281) 820.0805

24

25