NUMBER 13-19-00062-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LARRY MARK POLSKY, ESQ., Appellant,
v.
SHERIFF OMAR LUCIO AND CAMERON COUNTY, Appellees.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Larry Mark Polsky, Esq. appeals from the denial of his application for a
sexually oriented business (SOB) permit. He contends that his application should have
been granted because the public beach within 1,500 feet of his property is not a “public
park” as the term is defined by appellee Cameron County’s SOB regulations. Polsky also
challenges the district court’s implied finding in the judgment that appellee Sheriff Omar
Lucio was not a proper party.
First, however, the parties dispute whether it was appropriate for the district court
to review the Cameron County Commissioners Court’s decision for an abuse of
discretion. Because we agree with Polsky that the substantial evidence rule is the correct
legal standard, we reverse and remand to the district court to consider Polsky’s appeal
under the appropriate standard of review.
I. BACKGROUND
Chapter 243 of the Texas Local Government Code delegates legislative authority
to local governments to regulate SOBs. TEX. GOV’T CODE ANN. § 243.003(a); Ex parte
Smalley, 156 S.W.3d 608, 610 (Tex. App.—Dallas 2004, pet. denied). Pursuant to its
authority to prohibit SOBs within a certain distance of a specified land use, see TEX. GOV’T
CODE ANN. § 243.006(a)(2), Cameron County promulgated, among others, a regulation
prohibiting SOBs within 1,500 feet of a “public park,” defined by the regulations as “any
tract of land dedicated for public use and accessible to the general public for recreational
purposes, including locations owned by non-profit organizations that provide educational
and recreational facilities but not including public roads, walkways, easements, and rights
of way.” Cameron County, Tex., Regulations for Sexually-Oriented Businesses Operating
within Unincorporated Areas of the County §§ V(gg), X(k)(4)(i) (Dec. 21, 2004) (County
SOB Regulations).
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Polsky purchased three lots in the unincorporated area of the County on South
Padre Island. It is undisputed that Polsky’s property is within 1,500 feet of a public beach
that crosses four privately owned lots and borders on the Gulf of Mexico. 1 In 2016, Polsky
filed an application with Sheriff Lucio to operate a topless bar on his property. See County
SOB Regulations § X(a) (requiring applications to be filed with the Cameron County
Sheriff).
The Cameron County Commissioners Court held a public hearing on Polsky’s
application after receiving objections from property owners and City of South Padre Island
officials. See County SOB Regulations § XIII. Based on the Commissioners Court’s
finding that “[t]he public beach, which is within 1,500 feet of Mr. Polsky’s property is a
public park, not owned by Cameron County but dedicated to public use by dedication and
implication and used for recreation, swimming, fishing, sunbathing and family uses since
time immemorial,” Sheriff Lucio denied the application. 2 Pursuant to the County’s SOB
Regulations, Polsky appealed that decision to the Commissioners Court. See County
SOB Regulations § XVI(b). After presiding over a contested evidentiary hearing between
1 Gulf Coast public beaches consist of the area from the line of mean low tide to the line of
vegetation. Severance v. Patterson, 370 S.W.3d 705, 714 (Tex. 2012) (citing TEX. NAT. RES. CODE ANN.
§ 61.001(8)). The area from mean low tide to mean high tide is known as the “wet beach” while the area
from mean high tide to the vegetation line is known as the “dry beach.” Id. The dry part of a public beach
can be State-owned but is often privately owned property on which a public easement has been established.
Id. at 715. Wet beaches, on the other hand, are owned by the State of Texas and “constitute[] public
property that is held in trust for the use and benefit of all the people.” Id. (quoting Lorino v. Crawford Packing
Co., 175 S.W.2d 410, 413 (Tex. 1943)).
2Although the County generally delegated authority to Sheriff Lucio to administer, investigate, and
approve or deny applications, in this case, because the Commissioners Court held a public hearing and
issued written findings, the sheriff was required “to enforce the Court’s conclusion.” See County SOB
Regulations § XIII(g).
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Polsky and Sherriff Lucio, the Commissioners Court upheld the denial of Polsky’s
application on the same ground. 3 See County SOB Regulations § XVI(d), (e).
Consistent with chapter 243, Polsky sought judicial review of that decision in
district court. See TEX. LOC. GOV’T CODE ANN. § 243.007(c). In their brief to the district
court, the appellees framed the issue before the court as whether the Commissioners
Court abused its discretion in finding that Polsky’s properties were within 1,500 feet of a
public park as defined by the County’s SOB regulation. During the final hearing, the district
court asked the parties to advise it on the correct standard of review, and the appellees
responded that the district court should review the Commissioners Court’s findings for an
“abuse of discretion, which means that we must have acted arbitrarily, without guiding
principles, or that we’ve otherwise violated the law or the regulation.” When the district
court expressed doubts about the Commissioners Court’s finding, the appellees again
pointed to the standard of review, saying that “because of the standard of review, we
might not agree, and clearly Mr. Polsky doesn’t, but there is no showing here that [the
Commissioners Court] acted fraudulently, collusively, or even arbitrarily.”
In announcing its decision in open court, the district court specifically referred to
the standard of review, saying the Commissioners Court decision did not constitute an
“abuse of discretion.” Likewise, in its judgment, the district court made a finding that that
“the proper standard of review of the decision of the Cameron County Commissioners
3 The initial decision to deny Polsky’s application also cited his failure to notify interested property
owners as required by the County’s SOB Regulations. See County SOB Regulation § X(q). This defect was
subsequently cured, and the Commissioners Court’s decision was based solely on the public park issue.
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Court is whether the Commissioners Court abused its discretion.” The judgment also
states that the court’s decision was “based on the evidence in the record, the argument
of counsel and consideration on an abuse of discretion standard of review.” Finally, the
judgment makes a finding that “the proper defendant is Cameron County.”
This appeal ensued.
II. SUBSTANTIAL EVIDENCE IS THE CORRECT STANDARD OF REVIEW
The parties disagree about the standard of review in this case. The County
maintains that the Commissioners Court’s decision should be reviewed for an abuse of
discretion while Polsky argues that the substantial evidence rule is the proper standard.
Contrary to the County’s position, when cities and counties undertake the
regulation of SOBs, they do so in an administrative capacity, and as such, the denial of
an SOB permit is reviewed under the substantial evidence rule. A.H.D. Hous., Inc. v. City
of Houston, 316 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2010, no pet.); City of
Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 249–50 (Tex. App.—Fort Worth 2007, pet.
denied); Webworld Mktg. Grp. v. Thomas, 249 S.W.3d 19, 24–25 (Tex. App.—Houston
[1st Dist.] 2007, no pet.); cf. Lindsay v. Sterling, 690 S.W.2d 560, 562–63 (Tex. 1985)
(holding that county’s denial of application for alcohol license was administrative in nature;
therefore, judicial review was subject to substantial evidence rule). Under this standard,
“an appellant bears the burden to prove that the findings, inferences, conclusions, and
decisions of the administrative agency are not supported by substantial evidence,”
defined as more than a scintilla, but less than a preponderance. Fox v. Medina, 848
S.W.2d 866, 871 (Tex. App.—Corpus Christi–Edinburg 1993, no writ) (citing Tex. Health
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Facilities Comm’n v. Charter Medical–Dall., 665 S.W.2d 446, 452–53 (Tex. 1984)). “The
true test is not whether the agency reached the correct conclusion, but whether some
reasonable basis exists in the record for the action taken by the agency.” City of El Paso
v. Pub. Util. Comm’n of Tex., 883 S.W.2d 179,185 (Tex. 1994). Whether an administrative
body’s findings, inferences, conclusions, and decision are supported by substantial
evidence is a question of law subject to de novo review. Tex. State Bd. of Dental Exam’rs
v. Brown, 281 S.W.3d 692, 701 (Tex. App.—Corpus Christi–Edinburg 2009, pet. denied)
(citing Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000)). In this
case, the trial court should have reviewed the evidentiary record to determine if
substantial evidence supported the Commissioners Court’s finding that the public beach
within 1,500 feet of Polsky’s property is a “public park” as that term is defined by the
County’s SOB regulations. See A.H.D. Hous., 316 S.W.3d at 217; Centerfolds, 232
S.W.3d at 249–50; Webworld, 249 S.W.3d at 24–25.
Generally, when a reviewing court applies the wrong legal standard, the judgment
should be reversed and the cause remanded to that court for further consideration under
the correct standard. Andrews County v. Sierra Club, 463 S.W.3d 867, 867 (Tex. 2015)
(per curiam); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 29 (Tex. 1993). The same holds
true when judicial review of an administrative decision is conducted under an incorrect
legal standard. Tex. Dep’t of Transp. v. Jones Bros. Dirt & Paving Contractors, Inc., 92
S.W.3d 477, 485 (Tex. 2002) (reversing court of appeals judgment and remanding to
district court for review of ALJ’s decision under correct legal standard). Accordingly,
without reaching the merits of the appeal, we reverse the district court’s judgment and
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remand the case to the district court to consider Polsky’s appeal under the correct legal
standard.
III. SHERIFF LUCIO IS A PROPER PARTY
Polsky also contends that the district court erred by dismissing Sheriff Lucio as an
improper party. 4 We agree.
“[A]ll persons who have or claim a direct interest in the object and subject matter
of the suit and whose interests will necessarily be affected by any judgment that may be
rendered therein, are not only proper parties, but are necessary and indispensable
parties.” Scott v. Graham, 292 S.W.2d 324, 327 (Tex. 1956). In this case, the County
designated “the Cameron County Sheriff, through his authorized agents, to investigate,
approve, deny, issue, attach conditions to, suspend and revoke Sexually-Oriented
Business Permits.” County SOB Regulations § II(a). Accordingly, Polsky submitted his
SOB application to Sheriff Lucio, and, after denying his application, Sheriff Lucio
appeared at the contested evidentiary hearing before Commissioners Court and
defended his denial of Polsky’s application. 5 See County SOB Regulations § XVI(d) (“At
the hearing at which the appeal is considered, the affected party and Sheriff shall have
the right to present evidence, call witnesses, and present arguments and authorities.”). In
4 Although there is no express language in the judgment dismissing Sheriff Lucio from the appeal,
both parties treat the district court’s finding that “the proper defendant is Cameron County” as an implied
dismissal of Sheriff Lucio.
5 Sheriff Lucio designated one of his deputies to represent him at the hearing.
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other words, as the adverse party in that proceeding, Sheriff Lucio necessarily has an
“interest in the subject matter and outcome of the suit.” 6 See id.
Moreover, from a procedural standpoint, the County’s regulatory scheme requires
that Sheriff Lucio remain a party until this case becomes final. For example, if this case
were remanded to Commissioners Court, Sheriff Lucio would resume his defense of
denying Polsky’s application. See County SOB Regulations § XVI(d). Therefore, the
district court erred by dismissing Sheriff Lucio as an improper party.
IV. CONCLUSION
The judgment is reversed, and the case is remanded to the district court.
GREGORY T. PERKES
Justice
Delivered and filed the 24th
day of September, 2020.
6 Indeed, as one of the commissioners acknowledged during the hearing, “[Polsky’s] argument is
against the Sheriff’s office.”
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