Supreme Court of Texas
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No. 20-0725
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Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael
Knuffke, and Daniel Petri,
Petitioners,
v.
City of San Antonio,
Respondent
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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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JUSTICE BLACKLOCK, joined by JUSTICE DEVINE, concurring in the
judgment.
I disagree with the Court’s opinion, which concludes that the
plaintiffs failed to state a claim under Chapter 2400 of the Government
Code. I ultimately agree, however, with the Court’s judgment, which
reverses the dismissal of plaintiffs’ claims and remands the case for
repleading. I therefore respectfully concur in the judgment.
The San Antonio city council voted in March 2019 to exclude
Chick-fil-A from the San Antonio airport because of Chick-fil-A’s
religious views on marriage and its support for religious organizations
whose beliefs about marriage differ from the city council’s. In response,
the Legislature enacted Chapter 2400 of the Government Code,
colloquially known as the “Save Chick-fil-A law,” which took effect on
September 1, 2019. The plaintiffs in this case immediately sued the City
of San Antonio, employing Chapter 2400 just as its supporters seem to
have intended—to “save Chick-fil-A,” at least at the San Antonio airport.
According to the Court, the plaintiffs cannot plead a violation of
Chapter 2400 by pointing to the city council’s vote to exclude Chick-fil-A.
The problem for the plaintiffs, as the Court sees it, is that Chapter 2400
did not go into effect until after the vote. All agree, of course, that the
vote itself cannot have violated a law that did not exist when the vote
was taken.1 The problem for the Court’s approach, as I see it, is that the
city council’s vote was not an isolated act of discrimination that had
come and gone by the time Chapter 2400 went into effect. Instead, the
vote established a forward-looking policy under which city staff were
directed to pursue the exclusion of Chick-fil-A from the airport’s
concessions contract. See Plaintiffs’ Original Pet. & Application for
Temp. Injunction ¶ 40.2 This unambiguous instruction from the city
council gave all involved—including the plaintiffs and the courts—
1Whether the city council’s vote violated the U.S. or Texas Constitution
is another matter, one that is not at issue here.
2 The petition alleges, “Councilmember Treviño then moved to approve
the agreement with Paradies Lagardère, but with an amendment [that] would
direct the City’s staff to work with Paradies Lagardère in replacing Chick fil A
with another vendor.” Plaintiffs’ Original Pet. & Application for Temp.
Injunction ¶ 40. The petition further alleges that the council approved the
agreement with the forward-looking amendment proposed by Treviño. Id.
¶ 47. The meeting minutes attached to the petition indicate that the council
did so. Id. Exh. 14.
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sufficient reason to believe the City would, after the effective date of
Chapter 2400, continue to carry out its announced policy of excluding
Chick-fil-A. Any acts in furtherance of that exclusionary goal would
surely qualify as a violation of Chapter 2400, which broadly prohibits
“any adverse action” against “any person” to “withhold, reduce, exclude,
terminate, or otherwise deny any . . . contract” based “wholly or partly”
on the person’s “contribution, donation, or other support provided to a
religious organization.” TEX. GOV’T CODE §§ 2400.001(1)(A), .002.
I agree with the Court that governmental immunity bars this
lawsuit unless the plaintiffs “actually allege[]” a violation of Chapter
2400. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636
(Tex. 2012). This means pleading facts that fully state a viable claim
under the statute creating the immunity-waiving right of action. Bare
recitation of statutory buzzwords is not enough. Thus, I agree that the
plaintiffs can “actually allege[]” a violation of Chapter 2400 only “by
pleading facts that state a claim thereunder.” Id. I disagree, however,
with the Court’s conclusion that the plaintiffs’ petition does not state an
actionable claim under Chapter 2400.
The Court is correct that the petition points to no particular
action by the City to pursue its exclusionary policy after the effective
date of Chapter 2400. But the absence of such an allegation does not
doom the petition. We typically do not require plaintiffs seeking
injunctions against unlawful government policies to plead facts
demonstrating that the policy has already been carried out. See In re
Abbott, 601 S.W.3d 802, 812 (Tex. 2020) (“A plaintiff does not need to be
arrested and prosecuted before suing to challenge the constitutionality
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of a criminal law.”). To the contrary, we require plaintiffs to plead not a
past act of enforcement under the challenged law but only that “there
exists a credible threat of prosecution thereunder.” Id. (emphasis added)
(quoting Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
This requirement flows from the nature of the injunctive relief available
in such cases. Courts cannot order the government not to do something
it has already done, but they can order it not to continue doing such
things in the future. It follows that plaintiffs seeking prospective
injunctions, as these plaintiffs do, must allege a credible threat of the
future enforcement they want enjoined.
Chapter 2400 goes out of its way to incorporate this well-known
framework for pre-enforcement challenges to threatened government
action. In addition to outlawing “adverse action” on the basis of religion,
it also authorizes suits in response to a “threatened violation” of its
prohibition on adverse action. TEX. GOV’T CODE § 2400.003(a).
The petition credibly alleges that the exclusionary,
discriminatory effects of the city council’s vote would continue to be felt
after Chapter 2400 went into effect.3 True, the petition assumes that
3 The Court “presume[s] that the City would comply with Chapter 2400,
until the contrary is shown.” Ante at 18 (emphasis removed). But there is no
basis for making generous presumptions about the City’s reaction to Chapter
2400 when the City left no doubt that it continued to disagree with plaintiffs’
view that its continued exclusion of Chick-fil-A violated Chapter 2400.
According to the City’s brief in the court of appeals, filed April 22, 2020, “The
City of San Antonio does not believe that any statement or action taken on
March 21, 2019 would constitute a violation of Chapter 2400, even if the
statute had been in effect at that time.” Although I agree with the background
presumption that courts should assume the government will follow the law, I
do not agree with a presumption, unsupported by the record, that the City of
4
City employees are busy following the city council’s instructions to
pursue, by contract, the exclusion of Chick-fil-A. But surely this is a
permissible assumption.4 The city council made its desires quite clear
and voted to give forward-looking direction to the city staff. The City—
not the plaintiffs—is the party in possession of information about how
the City is carrying out the city council’s instruction. The plaintiffs’ only
obligation is to plead facts establishing a credible threat the City will
San Antonio agreed with the plaintiffs’ view of the City’s obligations under
Chapter 2400. It quite obviously did not. If the City had come into court and
recanted its intention of excluding Chick-fil-A because of the enactment of
Chapter 2400, that would be a different matter. But every indication is that
the parties remained at odds about the City’s legal obligations under Chapter
2400 well after its enactment. Information outside the record indicates that it
was not until the Department of Justice intervened that the City was
compelled to adjust its position. See Letter from U.S. Dep’t of Just. to Att’y
Gen. Ken Paxton, Re: Complainant v. San Antonio International Airport (Sep.
10, 2020), https://www.texasattorneygeneral.gov/sites/default/files/images
/admin/2020/Press/Paxton%20Inf%20Res%20SAT%202019%200182%202009
09.pdf.
4 Information outside the pleadings indicates that, since the time the
petition was filed, (1) the federal government may have taken corrective action
against the City, (2) the City may have dropped its opposition to Chick-fil-A’s
presence at the airport in response to the federal government’s action, and
(3) Chick-fil-A may have dropped its desire to open a location at the airport.
These developments surely change the complexion of this lawsuit, and the
parties should have brought them to the Court’s attention because of their
potential ramifications for the Court’s jurisdiction over some or all of the
plaintiffs’ claims. Nevertheless, these intervening facts are not directly
relevant to the question at hand, which is whether the plaintiffs’ live pleading
triggers Chapter 2400’s waiver of immunity. To answer that question, we look
to the facts pleaded, without reference to later factual developments. However,
because of the many intervening factual developments potentially bearing on
the continued viability of plaintiffs’ claims, I agree with the Court’s decision to
remand the case for repleading.
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continue to carry out its announced policy. This petition easily clears
that hurdle.
If the City had adopted an ordinance permanently outlawing
Chick-fil-A at the airport because of its beliefs, we would not require a
plaintiff challenging the ordinance to plead facts demonstrating that the
City had already taken concrete steps toward carrying out its new
ordinance. Instead, we would require only the pleading of a credible
threat of future enforcement of the ordinance. I fail to see how this case
is any different. Of course, in this case the City announced its
exclusionary policy by contract, not by ordinance. But that makes no
difference. Modern governments often advance their preferred policies
by contract just as surely as by statute or ordinance. When those
policies violate the law, prospective protection in the courts should be
equally available no matter the caption on the offending government
document. Cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213
(1995) (holding that policies covering government contracting are
subject to equal-protection review).
Although I disagree with the Court’s opinion for the reasons
stated, I nevertheless concur in its judgment reversing the dismissal of
the plaintiffs’ claims and remanding the case for repleading.
James D. Blacklock
Justice
OPINION DELIVERED: April 1, 2022
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