Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph "Mike" Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch// City of Austin, Texas And Steve Adler, Mayor of the City of Austin, and the State of Texas v. City of Austin, Texas And Steve Adler, Mayor of the City of Austin//Cross-Appellees, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph "Mike" Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00812-CV

Appellants, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert, Joseph “Mike” Hebert,
Lindsay Redwine, Ras Redwine VI, and Tim Klitch // Cross-Appellants, City of Austin,
Texas; Steve Adler, Mayor of the City of Austin; and the State of Texas

v.

Appellees, City of Austin, Texas, and Steve Adler, Mayor of the City of Austin //
Cross-Appellees, Ahmad Zaatari, Marwa Zaatari, Jennifer Gibson Hebert,
Joseph “Mike” Hebert, Lindsay Redwine, Ras Redwine VI, and Tim Klitch

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-16-002620, THE HONORABLE TIM SULAK, JUDGE PRESIDING

DISSENTING OPINION

The majority opinion expands fundamental-rights jurisprudence to strike down

policy decisions properly left to Austin’s City Council under their zoning power. Its approach

leads to a misapplication of Retroactivity Clause precedent, creating tension with opinions of our

sister courts of appeals; disregards Texas and U.S. history; and is an atextual expansion of the

Assembly Clause. I respectfully dissent.

I. The Retroactivity Clause

The Texas Constitution provides that “[n]o bill of attainder, ex post facto law,

retroactive law, or any law impairing the obligation of contracts, shall be made.” Tex. Const.

art. I, § 16. The Property Owners’ retroactivity challenge to Section 25-2-950—the ban on

non-homestead short-term rentals that would go into effect in April 2022—is a facial
constitutional challenge instead of an as-applied one. They “cannot . . . assert that the [ordinance]

is unconstitutional ‘as applied’ because [it] has never been applied to anyone.” See Barshop v.

Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 626 (Tex. 1996). Therefore,

they “must establish that the [ordinance], by its terms, always operates unconstitutionally.” Id.

at 627. And we must interpret the ordinance “to avoid constitutional infirmities” under the

Retroactivity Clause. See id. at 629; see also Union Carbide Corp. v. Synatzke, 386 S.W.3d 278,

313, 317 (Tex. App.—Houston [1st Dist.] 2012) (en banc) (Bland, J., dissenting from retroactivity

reasoning) (“A court must not hold a legislative enactment to be unconstitutional unless it is

absolutely necessary to so hold. . . . If a statutory reading . . . springs constitutional doubt, and

another reasonable interpretation exists, then it is not the interpretation that the legislature

intended.”), rev’d, 438 S.W.3d 39 (Tex. 2014).

“‘Mere retroactivity is not sufficient to invalidate a statute. . . . Most statutes

operate to change existing conditions, and it is not every retroactive law that is

unconstitutional.’ . . . [N]ot all retroactive legislation is bad.” Robinson v. Crown Cork & Seal

Co., 335 S.W.3d 126, 139 (Tex. 2010) (quoting Texas Water Rights Comm’n v. Wright, 464

S.W.2d 642, 648 (Tex. 1971)).

In its entire history, the Supreme Court of Texas has held a law unconstitutionally

retroactive only four times. See Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 708 (Tex. 2014).

Those four instances involved amendments to statutes of limitations and a new choice-of-law

rule that extinguished a mature tort claim. Id. at 708 & n.34 (citing Robinson, 335 S.W.3d

at 148–49; Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4 (Tex. 1999); Wilson v. Work,

62 S.W.2d 490, 490–91 (Tex. 1933) (per curiam) (orig. proceeding); Mellinger v. City of Hous.,

3 S.W. 249, 254–55 (Tex. 1887)).

2
 Since 2014, the Court has addressed only two retroactivity challenges and has

upheld the challenged law both times. In one instance, the Court concluded that “a charter

school’s charter is not a vested property right to which the . . . prohibition on retrospective laws

appl[ies].” See Honors Acad., Inc. v. Texas Educ. Agency, 555 S.W.3d 54, 68 (Tex. 2018). In

the other, the Court concluded that “a statute authorizing property owners to petition [the

Supreme Court] directly to determine which county is owed the [ad valorem] taxes” imposed on

the owners by multiple counties was “not constitutionally retroactive.” See In re Occidental

Chem. Corp., 561 S.W.3d 146, 150, 162 (Tex. 2018) (orig. proceeding).

Never has the Court struck down a zoning or property-use law as

unconstitutionally retroactive, though Texas municipalities have been zoning and regulating

property for decades.

A. Section 25-2-950 (type-2 rentals) is not retroactive.

A statute is not retroactive merely because it is applied in a case arising from

conduct that existed before the statute’s enactment or if it “upsets expectations based in prior

law.” Mbogo v. City of Dall., No. 05-17-00879-CV, 2018 WL 3198398, at *4 (Tex. App.—

Dallas June 29, 2018, pet. denied) (mem. op.) (applying and quoting Landgraf v. USI Film

Prods., 511 U.S. 244, 269 (1994)). This is true particularly in the area of zoning regulations, for,

there, “strong policy arguments and a demonstrable public need” support municipalities’ “fair

and reasonable termination of nonconforming property uses.” Mbogo, 2018 WL 3198398, at *4

(quoting City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972)).

The majority opinion asserts that Section 25-2-950 “does not advance a zoning

interest because both short-term rentals and owner-occupied homes are residential in nature.” See

3
ante at 20. However, ordinances differentiating one type of residential property from another are

just as much exercises of the zoning power as are ordinances differentiating between residential

property and commercial property. See, e.g., Barr v. City of Sinton, 295 S.W.3d 287, 289–91,

296–308 (Tex. 2009) (addressing ordinance that differentiated solely within “residential area”

category and nevertheless treating it as zoning-related); Sheffield Dev. Co. v. City of Glenn

Heights, 140 S.W.3d 660, 674–81 (Tex. 2004) (treating ordinance that restricted number of

residences that could be built on undeveloped property as zoning ordinance even though it

applied only to residential property).

Section 25-2-950 is a zoning ordinance. It is found in the Code of Ordinances

chapter titled “Zoning.” See Austin, Tex., Code of Ordinances ch. 25-2. The majority opinion’s

conclusion that Section 25-2-950 is retroactive therefore creates tension with the Fifth Court of

Appeals’ opinion in Mbogo. In that case, when the City of Dallas rezoned a portion of Ross

Avenue to prohibit automobile-related businesses from operating there, the rezoning was not

“retroactive” even though an affected business owner, who would have to discontinue his chosen

business, had been operating his automobile-related business in the area since before the

rezoning. Mbogo, 2018 WL 3198398, at *1, *4. “The ordinance did not change any use in the

property thereby attaching a new legal consequence or upset any expectations based in prior law.

Rather, it prospectively altered a property owner’s future use of the property by setting a date by

which to come into compliance.” Id. at *4 (emphasis added).

So too here. But the majority opinion holds otherwise, leaping from the

fundamental right of property ownership to what it deems within the “fundamental privilege[s] of

property ownership”—“leas[ing] one’s property on a short-term basis.” See ante at 22. Surely the

Mbogo business owner’s use of his own property is no less important than a tenant’s use of a

4
short-term-rental owner’s property. But, by expanding the scope of fundamental property rights to

include a tenant’s use of a non-homestead property for a lease term of less than 30 days, the

majority opinion wields fundamental-rights jurisprudence in a way that cannot comport with

what the Fifth Court of Appeals held in Mbogo. And it finds no support in Texas Supreme Court

jurisprudence or that of this Court’s 127 year history.

B. Even if retroactive, Section 25-2-950 (type-2 rentals) is not unconstitutionally
retroactive, under Robinson.

Even if Section 25-2-950 is retroactive, it is not unconstitutionally so. Retroactive

laws may still be constitutional under the Robinson three-factor test. See 335 S.W.3d at 145–50.

Under that test, a retroactive law is unconstitutionally retroactive only so long as three factors

weigh against the challenged law: (1) “the nature and strength of the public interest served by the

statute as evidenced by the Legislature’s factual findings,” (2) “the nature of the prior right

impaired by the statute,” and (3) “the extent of the impairment.” Id. at 145.

1. Section 25-2-950 serves a strong public interest.

Zoning is a sufficiently strong public interest under the Retroactivity Clause:

“strong policy arguments and a demonstrable public need” support “the fair and reasonable

termination of nonconforming property uses,” and “[m]unicipal zoning ordinances requiring the

termination of nonconforming uses under reasonable conditions are within the scope of the

police power.” Benners, 485 S.W.2d at 778, cited in Mbogo, 2018 WL 3198398, at *6; accord

Caruthers v. Board of Adjustment of the City of Bunker Hill Vill., 290 S.W.2d 340, 350 (Tex.

App.—Galveston 1956, no writ). “[T]he supreme court has not overruled Benners, and . . . we

are bound to follow supreme court precedent.” Mbogo, 2018 WL 3198398, at *6.

5
 More broadly, efforts to “safeguard the public safety and welfare” are sufficiently

strong public interests under the Retroactivity Clause. See Barshop, 925 S.W.2d at 634; Texas

State Teachers Ass’n v. State, 711 S.W.2d 421, 424 (Tex. App.—Austin 1986, writ ref’d n.r.e.).

In addition to zoning, public-welfare interests as varied as property-tax relief and testing teacher

competence are sufficiently strong public interests under the Clause. See White Deer Indep. Sch.

Dist. v. Martin, No. 07-18-00193-CV, 2019 WL 5850378, at *7 (Tex. App.—Amarillo Nov. 5,

2019, no pet. h.) (op., designated for publication); Texas State Teachers Ass’n, 711 S.W.2d at

422, 424–25.

The City of Austin’s stated interests in enacting Section 25-2-950 are within

the wide zone of strong public interests. The City says that short-term rentals are particularly

susceptible to over-occupancy, which affects “fire safety” and “overwhelm[s] existing wastewater

systems,” and to tenants’ “dump[ing] trash in the neighborhood”; “engag[ing] in public

urination” and public intoxication; and “open drug use.” The City also heard complaints about

illegal parking, “noise, loud music, vulgarity, and other negative impacts of having a ‘party

house’” environment at short-term rentals.

The majority opinion faults the City for issuing notices of violation “to licensed

short-term rentals only ten times.” Ante at 20. Why is ten not enough? The majority opinion

questions whether the ordinance is necessary to respond to ten notices of violation, “[b]ut the

necessity and appropriateness of legislation are generally not matters the judiciary is able to

assess.” Robinson, 335 S.W.3d at 146. We need not determine whether the law is “the only, the

best, or even a good way” to achieve the stated public interest. See id. If the public interest is

sufficiently strong, we need go no further—the “nature and strength of the public interest” is

enough under Robinson. See id. at 145. Section 25-2-950 rests on strong, public-welfare interests.

6
 2. The right that Section 25-2-950 impairs is narrow.

The strength of a municipality’s zoning interest is mirrored by the weakness of

property owners’ rights in zoning-burdened property: “an individual has no protected property

interest in the continued use of his property for a particular purpose just because such use has

commenced or a zoning classification has been made.” Mbogo, 2018 WL 3198398, at *5 (citing

Benners, 485 S.W.2d at 778); accord City of La Marque v. Braskey, 216 S.W.3d 861, 863 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied) (also citing Benners). The majority opinion’s

distinction between using property and leasing it is, for these purposes, of no material difference.

An owner’s lease of his or her property is a use of the property, and the tenant is leasing the

property so he or she can use it. In fact, the Assembly Clause portion of the majority opinion

bears this out when it considers the tenant-affecting ordinance to be “[t]he regulation of property

use.” See ante at 41 (“The regulation of property use is not, in and of itself, a compelling interest.”).

But even if the two uses are distinct, it is possible to interpret Section 25-2-950 as

constitutional under this factor. Under Section 25-2-950 property owners may still lease their

property. They must simply lease it for 30 days or more or make it their homestead. Therefore,

the right that Section 25-2-950 impairs is narrow.

3. Section 25-2-950 only lightly impairs the short-term-rental right because
of the grace period until 2022.

“[I]mpairment of . . . a right may be lessened when a statute affords a plaintiff a

grace period,” Tenet Hospitals, 445 S.W.3d at 708, “or a reasonable time to protect his

investment,” Mbogo, 2018 WL 3198398, at *7. The Fifth Court of Appeals resolved this third

factor against unconstitutionality because, though the business owner “did not believe that he

7
could get a fair price” in selling his business, “despite never listing his property on the market,”

that did not equate to an “abus[e of] legislative power” by the city. Id. (emphasis in original).

In contrast here, the majority opinion relies simply on “a loss of income for the

property owners.” See ante at 23. Though no doubt important, loss of income is not enough

under Robinson. Loss of investment is the touchstone. See Mbogo, 2018 WL 3198398, at *7;

Village of Tiki Island v. Ronquille, 463 S.W.3d 562, 587 (Tex. App.—Houston [1st Dist.] 2015,

no pet.) (lack of “avenue for recoupment” of “existing investment” was relevant). There is no

showing that the Property Owners cannot recoup their investments in their rental properties

before April 2022. Also, even shorter grace periods than three years have been sufficient

elsewhere. See Tenet Hosps., 445 S.W.3d at 708. Time allowed to mitigate investment loss

makes any impairment “slight.” See White Deer Indep. Sch. Dist., 2019 WL 5850378, at *8. Just

because the property owners are not making as much profit as they could with unfettered rights

to short-term rentals does not mean their property right has been unconstitutionally impaired.

In sum, under Robinson, Section 25-2-950 is not a retroactive law, and, even if it

were, it is constitutional under the three-factor test.

II. The Assembly Clause

I also disagree with the majority opinion’s holding that Section 25-2-795—the

ordinance establishing certain occupancy limits for short-term rentals—must withstand

heightened due-process scrutiny, instead of simply rational-basis review. It purports to reach this

holding based on the Assembly Clause in the Texas Bill of Rights, which says: “The citizens

shall have the right, in a peaceable manner, to assemble together for their common good; and

8
apply to those invested with the powers of government for redress of grievances or other

purposes, by petition, address or remonstrance.” Tex. Const. art. I, § 27.

A. The text-informing history of the Assembly Clause

The majority opinion formulates the rights granted by the Assembly Clause by

importing dictionary definitions of “assemble,” “common,” and “good.” It uses those definitions

to conclude that the Assembly Clause protects citizens’ “right to physically congregate, in a

peaceable manner, for their shared welfare or benefit.” Ante at 33.

“When identifying fundamental rights, . . . an exacting historical and textual

analysis” is required. In re J.W.T., 872 S.W.2d 189, 211 (Tex. 1994) (Cornyn, J., dissenting

from denial of reh’g) (emphasis added). And when we seek to understand constitutional history,

“it is important to get that history right before engaging in the complex and separate task of

judging how such insights might or might not be applied to contemporary legal problems.” Saul

Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and the

Original Meanings of the Rights of Assembly and Speech, 84 Fordham L. Rev. 915, 934 (2015).

Historically, Texas is not the only state whose constitution has a bill of rights like

that of the U.S. Constitution. And Texas’s Assembly Clause is not the only one to limit its state

constitutional right of assembly to the purpose of furthering the “common good.” Such language

was common in many of the early state constitutions. Similar language can be found in the

constitutions of Pennsylvania (1776), Vermont (1777), North Carolina (1776), Massachusetts

(1780), and New Hampshire (1783). See id. at 931–32. Although individuals are the holders of

the right to assemble, its exercise is framed as a civic enterprise. Id. at 932. Hence, there is a

9
historical difference between the right to gather to “inflame passions” and the right to gather to

“promote reasoned discourse.” See id.

It is also important to note that a limitation of the right to assemble to matters

involving “the common good” was initially included in the U.S. Constitution’s Bill of Rights.

See John D. Inazu, The Forgotten Freedom of Assembly, 84 Tulane L. Rev. 565, 571–72 (2010).

During House debates, there was much discussion over whether the right to assemble should be

limited to matters involving “the common good.” As one representative told another, if he

“supposed that the people had a right to consult for the common good” but “could not consult

unless they met for the purpose,” he was in fact “contend[ing] for nothing.” Id. at 572 (quoting

1 Annals of Cong. 760–61 (Joseph Gales ed., 1834)). In other words, though there was concern

that the state would interpret the “common good” limitation to oppress minority or dissenting

political viewpoints, none disputed that the right of assembly was focused on promoting

open, civic discourse and deliberations on matters of public welfare. See Cornell, “To Assemble

Together for Their Common Good”: History, Ethnography, and the Original Meanings of the

Rights of Assembly and Speech, supra at 932 & n.154. While the language limiting the right to

assemble was initially retained by both the House and the Senate, it ultimately was removed

before passage. Inazu, The Forgotten Freedom of Assembly, supra at 573 (citing S. Journal,

1st Cong., 77 (Sept. 9, 1789)).

The Texas Constitution was established in 1876 with this wealth of history to

draw upon. It did not recognize an unfettered right to assemble for whatever purpose and in

whatever manner at whatever time of day, as the majority opinion suggests. It instead limited

that right to assemble in two important ways: it must be peaceable, and it must be for the

citizens’ common good. The majority opinion distinguishes “their common good” from “the

10
common good” but ignores that the assembly right is granted to “citizens” rather than to

“people” more broadly. Compare Tex. Const. art. I, § 27 (assembly right for “citizens”), with id.

§§ 9 (protecting “people” from unreasonable searches and seizures), 34 (granting “[t]he people”

certain rights to hunt, fish, and harvest wildlife). The drafters’ specific use of “citizens” implies

a link to public discourse that using “people” does not.1

Historically and textually, the Assembly Clause assures Texans the fundamental

right to peaceably gather for purposes of meaningful civic discourse without fear of retribution.

The Clause goes hand in hand with freedom of speech; it ensures that those who speak may have

an audience. This is why, as the majority opinion recognizes, the Supreme Court of the United

States regularly addresses speech and assembly jointly. See Inazu, The Forgotten Freedom of

Assembly, supra at 597.

The City of Austin has passed limitations on certain short-term rentals that on

their face have nothing to do with assembling for the common good to participate in civic

discourse. The City believes it has evidence to support that short-term rentals give rise to

non-peaceable assemblies disconnected from citizens’ common good. The City’s restrictions,

then, are assembly-neutral zoning regulations that have a rational basis. To reach a contrary

1
The majority opinion’s response on this point—that only “citizens” are granted
the Texas Assembly Clause’s rights—introduces another problem. See ante at 35 n.7. The
majority opinion’s position must be that the “citizens” protected by the Texas Constitution are
unlimited—citizens of Texas; of Oklahoma; of Virginia, like Messrs. Jefferson and Henry in the
majority opinion’s hypothetical, see ante at 39; etc. For if only Texans are clothed with the
Texas Constitution’s assembly rights, then Section 25-2-795 is not unconstitutional in every
respect as is required to sustain a facial constitutional challenge. The City of Austin could still
constitutionally apply the ordinance to short-term rentals made to non-holders of Texas assembly
rights—non-Texans. In this way, the majority opinion’s holding reaches beyond what its
reasoning supports: either it invalidates Section 25-2-795 even for people who have not been
shown to be holders of Texas assembly rights, or it atextually conflates the constitution’s use of
the distinct terms “citizens” and “people,” despite the drafters’ considered choice to use the two
different terms.

11
conclusion could lead to a challenge to every statute or ordinance regulating conduct that

involves people “assembling” together, including trespass and anti-camping statutes. Instead,

such enactments should be susceptible to assembly challenge only as enactments targeting

non-“common good,” non-peaceable assemblies.

The majority opinion also does not give due weight to the phrase “in a peaceable

manner” in its analysis. As the Court of Criminal Appeals recognized, the Assembly Clause

“specifically limits its protection to ‘peaceable assembly.’” Ferguson v. State, 610 S.W.2d 468,

470 (Tex. Crim. App. 1979).2 This matters because the City relies on evidence of (i) short-term

rentals’ harms to “public health, public safety, the general welfare, and preservation of historic

neighborhoods” and (ii) “concerns . . . about short-term rental properties that were poorly

maintained, that had code violations, and that generated police and fire reports.” The City says

that it uncovered evidence of over-occupancy in short-term rentals, which affects “fire safety”

and “overwhelm[s] existing wastewater systems.” It heard complaints about short-term tenants’

“dump[ing] trash in the neighborhood”; “engag[ing] in public urination”; public intoxication;

and “open drug use, including at one rental next door to a home with a five-year old child.”

It heard complaints about illegal parking, “noise, loud music, vulgarity, and other negative

impacts of having a ‘party house’” environment. And even when City code personnel have cited

short-term tenants for misconduct, the misconduct often continues because “[s]ome short-term

2
Inazu, whom the majority opinion relies on, recognizes the peaceableness limitation.
He describes the First Amendment “text handed down to us” as “convey[ing] a broad notion of
assembly in two ways. First, it does not limit the purposes of assembly to the common good,
thereby implicitly allowing assembly for purposes that might be antithetical to that good
(although constraining assembly to peaceable means).” See John D. Inazu, The Forgotten
Freedom of Assembly, 84 Tulane L. Rev. 565, 576 (2010).

12
rental operators completely ignore the concerns of neighbors, and do not regulate tenant

misconduct.”

All this and more may bear on an inquiry into peaceable assembly for

citizens’ common good. But the majority opinion never undertakes such an inquiry, despite

the plain constitutional text. Instead, it sets up the strawman that the City’s concerns are

limited to “reduc[ing] the likelihood that short-term rentals would serve as raucous ‘party

houses’ . . .and . . . reduc[ing] possible strain on neighborhood infrastructure,” overlooking the

City’s other public-health and public-safety concerns. See ante at 40. In doing so, it considers

Section 25-2-795 to be mere “regulation of property use.” See ante at 41.

Analyzing peaceableness requires a broader view. The concept’s role in Texas

jurisprudence suggests why. The Court of Criminal Appeals once struck down as unconstitutional

a statute proscribing “any collection of more than two picketers either within fifty feet of any

entrance to picketed premises or within fifty feet of each other” in part because the statute failed

to consider “the peacefulness of the group, the lack of obstruction to the flow of traffic, or the

level of noise, if any, generated by the picketers.” Olvera v. State, 806 S.W.2d 546, 552 (Tex.

Crim. App. 1991); cf. De Jonge v. Oregon, 299 U.S. 353, 365 (1937) (“[C]onsistently with the

Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime.”).

Relatedly, driving while intoxicated is “a breach of the peace,” for purposes of a warrantless

arrest. See Banda v. State, 317 S.W.3d 903, 912 n.4 (Tex. App.—Houston [14th Dist.] 2010,

no pet.). And so is “curs[ing] and creat[ing] a disturbance” when a peace officer is investigating

a complaint. See Johnson v. State, 481 S.W.2d 864, 865–66 (Tex. Crim. App. 1972).

Loud noise. Obstructing infrastructure. Flouting law enforcement. Public

disturbances. Threats to public safety. All these may make an assembly non-peaceable and have

13
nothing to do with civic discourse. And the City believes that it has evidence of short-term

rentals causing all these. To determine whether the City is right, we should examine what ties

all these examples together as breaches of the peace disconnected from the common good.

The majority opinion eschews a full peaceableness or “common good” analysis, however,

sidestepping what the plain constitutional text requires.

B. Texas courts conceive of fundamental rights much more narrowly.

The majority opinion is also out of step with Texas “fundamental right”

precedent. When litigants plead constitutional violations of allegedly fundamental rights, Texas

courts are typically more circumspect than the majority opinion is in defining the scope of the

right at issue. By not giving due weight to the concepts of peaceableness and citizens’ common

good in its holding that “the right to assemble granted by the Texas Constitution is a fundamental

right,” thereby requiring strict scrutiny, the majority opinion sweeps too broadly. See ante at 35.

It has no limiting principle. The effect of the majority opinion’s view is that any

regulation affecting any activity, anywhere in Texas, is subject to strict-scrutiny review so long

as more than one person is involved. This view will have exactly the kind of far-reaching effects

that the Retroactivity Clause would have had if the Supreme Court had not prevented it from

being interpreted overly literally. Cf. Robinson, 335 S.W.3d at 138–39 (quoting Texas Water

Rights Comm’n, 464 S.W.2d at 648).

Consider how the majority opinion’s sweeping approach might undermine other

common-sense results. When a student’s parent challenged a statute prohibiting students from

participating in extracurricular activities, no matter where they take place, unless the student

maintained a 70% grade average, the Supreme Court of Texas considered the right at issue to

14
be “the right to participate in extracurricular activities.” See Spring Branch I.S.D. v. Stamos,

695 S.W.2d 556, 557–60 (Tex. 1985). But what if the Court, like the majority opinion here,

couched the right more generally as the right “to get together or congregate”? That would

encompass extracurricular activities on campus or elsewhere. The Supreme Court then would

have analyzed the parent’s challenge under heightened scrutiny. Instead, it disposed of the

challenge on rational-basis review. See id.

Elsewhere, this Court upheld a Travis County park rule restricting access to a park

known for nude sunbathing to people over 18 years old. See Central Tex. Nudists v. County of

Travis, No. 03-00-00024-CV, 2000 WL 1784344, at *1, *4, *8 (Tex. App.—Austin Dec. 7,

2000, pet. denied) (not designated for publication). Nudist parents who wanted to bring their

children to the park challenged the rule, but this Court held that the rule did not infringe on any

fundamental right and did not “affect the ability of the [parents] or other naturist parents to

associate with their children, but regulate[d] only where such associations may occur.” See id. at

*3–4, *6. The parents could not congregate with their children anywhere they pleased. But,

here, the majority opinion seems to say that assembly rights are fundamental no matter where

they are exercised.3

3
The majority opinion relegates to a footnote the “privacy rights [that] are implicated in
[its] right-of-assembly analysis.” See ante at 37 n.9. The majority opinion does not divine a
difference between federal and state privacy rights and relies on opinions from the Supreme
Court of the United States. See id. But the footnote fails to consider the similar ordinance upheld
in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). There, the ordinance

restricted land use to one-family dwellings excluding lodging houses, boarding
houses, fraternity houses, or multiple-dwelling houses. The word “family” as
used in the ordinance means, “(o)ne or more persons related by blood, adoption,
or marriage, living and cooking together as a single housekeeping unit, exclusive
of household servants. A number of persons but not exceeding two (2) living and
15
 The majority opinion is inconsistent with “fundamental right” precedent because

it couches the right at issue far more broadly than Texas courts traditionally would.

C. Neither of Texas’s high courts have taken the novel step that the majority
opinion takes today.

Finally, the majority opinion oversteps our Court’s role as an intermediate court

by declaring a fundamental right to congregate without fully analyzing peaceableness or the

advocacy of a matter of public welfare. We should instead leave this function to our state’s two

high courts.

Declaring rights fundamental, and thus beyond ordinary democratic

give-and-take, is a weighty matter. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2604–06

(2015) (holding that federal Due Process and Equal Protection Clauses forbid denying

fundamental right to marry to same-sex couples and noting that that holding places right “beyond

the reach of majorities and officials”). Declaring fundamental the right to congregate, without

any real qualification, is a novel and big step into this weighty area because “[e]conomic

regulations, including zoning decisions, have traditionally been afforded only rational relation

scrutiny.” Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex. 1998).4

cooking together as a single housekeeping unit though not related by blood,
adoption, or marriage shall be deemed to constitute a family.”

Id. at 2. The Court upheld the ordinance, holding that the suit “involve[d] no ‘fundamental’ right
guaranteed by the Constitution, such as . . . the right of association . . . or any rights of privacy.”
Id. at 7 (internal citations omitted). The majority opinion’s footnote does not attempt to distinguish
Village of Belle Terre.
4
The majority opinion considers Section 25-2-795 to be a zoning ordinance because, in
holding Section 25-2-795 unconstitutional, it relies on authority instructing that “[w]e must ‘not
assume that zoning codes inherently serve a compelling interest, or that every incremental gain
to city revenue (in commercial zones), or incremental reduction of traffic (in residential zones),
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 The majority opinion recognizes that neither the Supreme Court of Texas nor the

Court of Criminal Appeals of Texas has declared an unbounded right to congregate to be

fundamental. As noted above, the Court of Criminal Appeals considers the Assembly Clause to

be “specifically limit[ed] . . . to ‘peaceable assembly.’” Ferguson, 610 S.W.2d at 470. And

history provides the important context that peaceable assemblies are only protected to the extent

they implicate the common good, whether advocating majority or minority viewpoints.

Because the high courts have not yet taken this step, we should refrain from

doing so. Cf. Ex parte Morales, 212 S.W.3d 483, 490–93 (Tex. App.—Austin 2006, pet. ref’d)

(refusing to declare “adult consensual sexual activity” to be fundamental right); In re Living

Ctrs. of Am., Inc., 10 S.W.3d 1, 6 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding

[mand. denied]) (refusing to declare “the fair administration of justice” to be fundamental right).

We should refrain even more because the two interpretations of assembly rights advanced by the

majority opinion—that “the purposes of assembly” are not limited “to the common good” or to

“petitioning the government”—have not “been readily acknowledged in legal and political

discourse.” See Inazu, The Forgotten Freedom of Assembly, supra at 576–77. Indeed, the

majority opinion’s view is called into question by hundreds of years of historical and legal

precedent.

For these reasons, I dissent from the majority opinion regarding due process. I

would review Section 25-2-795 under the rational-basis test because it is a zoning law supported

is compelling.” See ante at 41 (quoting Barr v. City of Sinton, 295 S.W.3d 287, 307 (Tex.
2009)). Barr involved the fundamental right of free exercise of religion, which is not at issue
here. See 295 S.W.3d at 305–06. The majority opinion does not explain how Section 25-2-795
can be a zoning ordinance while Section 25-2-950 “does not advance a zoning interest.” Compare
ante at 20 (no zoning interest), with ante at 41 (zoning).

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by the City of Austin’s inherent police powers, is supported by a lengthy record, and does not

impinge upon any citizen’s right to peaceably assemble to advocate for the common good.

I would affirm the trial court’s grant of the City’s no-evidence motion for

summary judgment.

__________________________________________
Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Goodwin and Kelly

Filed: November 27, 2019

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