ACCEPTED 15-24-00082-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/9/2025 7:15 PM Court of Appeals Number: 15-24-00082-CV CHRISTOPHER A. PRINE _________________ CLERK FILED IN 15th COURT OF APPEALS IN THE COURT OF APPEALS FOR AUSTIN, TEXAS 1/9/2025 7:15:45 PM THE FIFTEENTH JUDICIAL DISTRICT OF TEXAS CHRISTOPHER A. PRINE __________________ Clerk
COURTENAY PARIS, in Her Personal Capacity, and in Her Official Capacity as Chairperson on behalf of Decriminalize Elgin, a Nonprofit, Unincorporated Political Action Committee,
Appellant, v.
THE STATE OF TEXAS; and,
THE CITY OF ELGIN, TEXAS, ET AL.;*
Appellees ____________________
REPLY BRIEF OF APPELLANT ____________________
RICHARD GLADDEN State Bar No. 07991330 1204 West University Dr., Ste. 307 Denton, Texas 76201 940/323-9300 (Voice) 940/539-0093 (Fax) richscot1@hotmail.com (email) ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
January 9, 2025
* The remaining official-capacity Appellees on this appeal are stated on the following page. THERESA Y. MCSHAN, Mayor of Elgin; SUE BRASHAR, Mayor Pro Tem of Elgin; JOY CASNOVSKY, ARTHUR GIBSON III, YALECIA LOVE, CHUCK SWAIN, MATTHEW CALLAHAN, ALL RODRIGUEZ, and FOREST LEE DENNIS, Members of the City Council of Elgin; THOMAS MATTIS, City Manager of Elgin; and CHRIS NOBLE, Chief of Police of Elgin; in their Official Capacities;
Appellees ___________________ TABLE OF CONTENTS Page
Table of Contents…………………………………….……………… i
Index of Authorities………………………………………………...... ii
Introduction………………………………………………………….. 1
Appellate Jurisdiction………………………………………………... 1
I. Appellant’s Reply Argument:
a) The District Court Erred by Granting Plaintiff’s Motion to Strike Defendant-Intervenor’s Petition in Intervention without First Determining Whether it had Jurisdiction over Plaintiff’s Original Petition. ………………………………... 3
b) The District Court Erred When Granting the Motion for a Consent Decree and Final Judgment Jointly filed by Plaintiff and Defendant City of Elgin, without First Determining Whether it had Jurisdiction over Plaintiff’s Original Petition. …………………………………………… 7
c) The District Court Did Not Have Jurisdiction over Plaintiff’s Original Petition. ………………………………………….. 9
d) The District Court Erred When Granting Plaintiff’s Motion to Strike Defendant-Intervenor’s Petition in Intervention. …………………………………………………... 11
Prayer………………………………………………………………… 11
Certificate of Compliance……………………………………………. 12
Certificate of Service………………………………………………… 12
i INDEX OF AUTHORITIES Cases: Page
Benalcazar v. Genoa Township, 1 F.4th 421 (6th Cir. 2021)…………. 8
Highlands Ins. Co. v. Lumbermen’s Mut. Cas. Co., 794 S.W.2d 600 (Tex.App.–Austin 1990, no pet.). ………………………………… 3
In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718 (Tex. 2006)…….. 3
Kenneth D. Eichner, P.C. v. Dominguez, 623 S.W.3d 358 (Tex. 2021) (per curiam). ………………………………………………... 2
Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). ……………………………………………………. 7, 8-9
State v. Naylor, 466 S.W.3d 783 (Tex. 2015)……………………….. 3
Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993). ……………………………………………………. 2
Texas Right to Life v. Van Stean, No. 23-0468, 2024 WL 4863170 (Tex. Nov. 22, 2024) (per curiam). …………………………………. 3, 4, 6, 7
Thiagarajan v. Tadepalli, 430 S.W.3d 589, 596 n. 3 (Tex. App. – Houston [14th Dist.] 2014). ……………………………………….. 2
Thomas v. Long, 207 S.W.3d 334 (Tex. 2006)………………………. 4, 5, 6
Zeifman v. Michels, 229 S.W.3d 460 (Tex.App.–Austin 2007, no pet.). ……………………………………………………………… 3
ii Page
Statutes, Codes, Rules, and Constitutional Provisions:
Section 370.003, Texas Local Government Code……………............ 9
Rule 12(b)(1), Federal Rules of Civil Procedure…………………….. 8
Rule 12(b)(6), Federal Rules of Civil Procedure…………………… 8
Rule 9.4, Texas Rules of Appellate Procedure………………………. 12
Rule 9.5, Texas Rules of Appellate Procedure………………………. 13
Rule 60, Texas Rules of Civil Procedure……………………………. 3
Article IV, § 22, Texas Constitution (1876)…………………………. 10, 11
*****
iii ____________________
TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES
OF THE COURT OF APPEALS FOR THE FIFTEENTH DISTRICT OF TEXAS:
INTRODUCTION
This reply brief is filed in response to two Appellee Briefs, one filed by the
Texas Attorney General on behalf of “the State of Texas,” and another by Appellee
City of Elgin (along with its employee/officials) which was the Defendant in the
District Court. In the interest of brevity, and to avoid redundancy, in this reply
brief Appellant/Defendant-Intervenor has framed her responsive arguments to
those raised by the Attorney General in his brief. Nonetheless, unless otherwise
directed by the Court of Appeals, Appellant/Defendant-Intervenor, through
incorporation by reference of her argument in this reply brief as well as her
opening brief, intends to assert the same arguments found in each of her briefs as
they would apply to the contentions raised by Appellee/Defendant City of Elgin
(and its employee/officials).
APPELLATE JURISDICTION
Notwithstanding the contention of the Attorney General of Texas that “this
this Court does not have appellate jurisdiction to consider [Appellant’s/Defendant-
1 Intervenor’s] arguments regarding Texas’s standing and capacity,”1 the Court of
Appeals has plenary jurisdiction over this appeal. First, it is well-settled that a
person who intervenes before the trial court signs a final judgment becomes a party
to that judgment, and when a trial court strikes the petition, the intervenor qualifies
as a party who may appeal the subsequent final judgment into which the order
striking the intervention has merged, because that judgment is binding on the
intervenor. Kenneth D. Eichner, P.C. v. Dominguez, 623 S.W.3d 358, 362 (Tex.
2021) (per curiam).
Second, Texas appellate courts are “obligated” to address the existence of a
trial court’s “subject matter jurisdiction,” sua sponte if necessary, “regardless of
whether the parties challenged it” in the trial court. Thiagarajan v. Tadepalli, 430
S.W.3d 589, 596 n. 3 (Tex. App. – Houston [14th Dist.] 2014), citing Texas Ass’n
of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993) (“we first
consider the matter of the trial court’s jurisdiction, as well as our own
specifically”). As discussed in greater detail below, the Attorney General’s
argument places the “carriage” (whether the District Court erred when striking
Defendant-Intervenor’s petition in intervention) before the “horse” (whether the
District Court had subject matter jurisdiction over the Attorney General’s original
petition in the first instance).
1 Brief of Appellee Attorney General of Texas, filed “on behalf of” the “State of Texas,” 1 (hereinafter “Plaintiff Attorney General’s Brief”) (filed Dec. 20, 2024). 2 I.
REPLY ARGUMENT
a) The District Court Erred by Granting Plaintiff’s Motion to Strike Defendant-
Intervenor’s Petition in Intervention without First Determining Whether it
had Jurisdiction over Plaintiff’s Original Petition.
In Texas Right to Life v. Van Stean, No. 23-0468, 2024 WL 4863170 (Tex.
Nov. 22, 2024) (per curiam) the Supreme Court recently clarified the analytical
demarcation between “jurisdictional” issues that must be resolved first by trial
courts, and other issues (or objections) more properly classified as “merits” issues
that may not be considered or decided by trial courts without first resolving
jurisdictional issues. Ibid. As Defendant-Intervenor previously discussed in her
opening brief on this appeal2 (and indeed as she contended in the District Court),3
intervention is an “equitable” doctrine.4 Thus, whether a third-party has a right to
intervene under Rule 60 of the Texas Rules of Civil Procedure may be considered
only after a Court has first been satisfied it has subject matter jurisdiction over a
plaintiff’s claims, because the former inquiry involves “equitable” (or in this
2 Appellant’s Brief, 17 (filed Oct. 21, 2024). 3 Defendant-Intervenor’s Motion to Abate Ruling on Plaintiff’s Motion to Strike Defendant- Intervenors’ Petition in Intervention, Clerk’s Record (“CR”), 134 (filed June 3, 2024). 4 State v. Naylor, 466 S.W.3d 783, 791 (Tex. 2015) (“To be sure, the right of intervention is ultimately rooted in equity”); citing Zeifman v. Michels, 229 S.W.3d 460, 464 (Tex.App.–Austin 2007, no pet.), and Highlands Ins. Co. v. Lumbermen’s Mut. Cas. Co., 794 S.W.2d 600, 601 (Tex.App.–Austin 1990, no pet.) (“[T]he right [to intervene] exists as a part of our State’s equity jurisprudence.”). 3 context, “merits”) considerations that are distinct from whether, in the first
instance, a plaintiff has properly invoked the trial court’s jurisdiction.
In the same way that a trial court’s order resolving a motion under the Texas
Citizens Participation Act (“TCPA”) constitutes an impermissible, non-
jurisdictional “ruling on the merits,” Texas Right to Life v. Van Stean, supra, 2024
WL 4863170, at *4; the order of the District Court in the instant case addressing
the Attorney General’s motion to strike Defendant-Intervenor’s petition in
intervention constituted an impermissible “merits” determination. This is so
because the District Court had not first resolved the jurisdictional issues raised by
Defendant-Intervenor.
In reliance on Thomas v. Long, 207 S.W.3d 334 (Tex. 2006), the Attorney
General asserts the District Court “held a hearing on [Defendant-Intervenor’s] plea
to jurisdiction,”5 and that the District Court therefore actually did “implicitly”
consider and deny Defendant-Intervenor’s plea to jurisdiction before ruling on “the
merits” of the Attorney General’s motion to strike the petition in intervention. For
three reasons Thomas v. Long, supra, does not support the Attorney General’s
“implicit ruling” contention.
5 Plaintiff Attorney General’s Brief, 6. 4 First, while the Attorney General contends as a factual matter that the
District Court “held a hearing on [Defendant-Intervenor’s] plea to jurisdiction,”6
the record flatly establishes the contrary. Although both Defendant-Intervenor’s
plea to jurisdiction and the Attorney General’s motion to strike were scheduled to
be heard at the same hearing on May 29, 2024; over Defendant-Intervenor’s
objection, and at the Attorney General’s behest, the District Court heard the motion
to strike first, and at the conclusion of the hearing the District Court clearly stated
on the record: “I have not heard the plea to jurisdiction. I’ll put that off to a later
date.”7
Second, because there is no evidence in the record that the District Court at
any time considered Defendant-Intervenor’s plea to jurisdiction, the present case is
distinguishable from the Supreme Court’s decision in Thomas v. Long, supra. In
Thomas v. Long, the Supreme Court ruled that a trial court’s ruling on a motion for
summary judgment, when a responsive jurisdictional challenge had been raised in
a pleading opposing summary judgment, “implicitly” constituted a denial of a plea
to jurisdiction by the trial court that satisfied the jurisdictional prerequisite for an
interlocutory appeal. That is not the procedural posture of the instant case.
6 Plaintiff Attorney General’s Brief, 6. 7 CR, 67. 5 Unlike the summary judgment motion considered and resolved by the trial
court in Thomas v. Long, the Defendant-Intervenor’s response in opposition to the
Attorney General’s motion to strike, in the present case, nowhere included a
challenge to the District Court’s subject matter jurisdiction. See, Defendant-
Intervenor’s Response in Opposition to Plaintiff’s Motion to Strike Petition in
Intervention, CR, 101.
Third, to the extent the Supreme Court’s decision in Thomas v. Long could
be interpreted to categorically hold that anytime a trial court which “rules on the
merits of an issue without explicitly rejecting an asserted jurisdictional attack has
implicitly denied the jurisdictional challenge,” id., 207 S.W.3d at 339-340, the
Supreme Court’s decision in Thomas v. Long has been abrogated by its subsequent
decision in Texas Right to Life v. Van Stean, supra.
Under a categorical and uncritical application of the “implicit-denial-of
jurisdictional-challenges” rationale, which is asserted by the Attorney General
here,8 the Supreme Court in Texas Right to Life v. Van Stean would have ruled the
Court of Appeals “implicitly” reversed the trial court’s denial of a plea to
jurisdiction when it skipped over the jurisdictional issues and “instead affirmed the
trial court’s order,” on the “merits,” which had ruled that “the TCPA d[id] not
apply to the plaintiff’s claims.” Texas Right to Life v. Van Stean, supra, 2024 WL
8 Plaintiff Attorney General’s Brief, 22-23. 6 4863170, at *2. In short, the District Court erred by granting the Attorney
General’s motion to strike without first determining whether it had jurisdiction
over the Plaintiff Attorney General’s original petition.
b) The District Court Erred When Granting the Motion for a Consent Decree
and Final Judgment Jointly filed by Plaintiff and Defendant City of Elgin,
without First Determining Whether it had Jurisdiction over Plaintiff’s
Original Petition.
The District Court’s order and final judgment that granted the consent decree
requested by the Attorney General and Defendant City of Elgin is obviously a
“merits” ruling by the District Court, and not a “jurisdictional” one, under the
analysis required under Texas Right to Life v. Van Stean, supra. Whether
Defendant-Intervenor remained a party at the time the District Court granted the
consent decree (after her pleadings were stricken) is irrelevant because, as
previously stated by Defendant-Intervenor,9 a Texas trial court, like all federal trial
courts, is “more than a ‘recorder of contracts’ from whom parties can purchase
injunctions,”10 and “a consent decree must spring from and serve to resolve a
dispute within the court’s subject-matter jurisdiction.”11 The “spring” in question
temporally focuses on the point in time a suit is filed, and not afterwards.
9 Appellant’s Brief, 19-20. 10 Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland, 478 U.S. 501, 529 (1986). 11 Ibid. 7 The Attorney General next contends the District Court had standing under
the Texas Constitution on the basis of a U.S. Court of Appeals decision,
Benalcazar v. Genoa Township, 1 F.4th 421 (6th Cir. 2021). In Benalcazar, the
Federal Court of Appeals for the Sixth Circuit ruled a U.S. District Court retains
authority under the Federal Rules of Civil Procedure to grant a consent decree even
if a plaintiff’s original complaint would not have survived a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”). Id.,
1 F.4th at 425. However, the decision in Benalcazar does not support the Attorney
General’s contention that his original petition establishes “constitutional” standing.
First of all, under the federal “notice” system of pleading, Rule 12(b)(6)
does not permit dismissal of a plaintiff’s complaint unless a complaint fails to
“plausibly” state “a claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). In contrast, Rule 12(b)(1) of the Federal Rules of Civil Procedure, not
Rule 12(b)(6), governs whether a federal plaintiff’s complaint must be dismissed
due to “a lack of subject matter jurisdiction.” Fed. R.Civ.P. 12(b)(1). Apart from
the Sixth Circuit’s regrettable failure to distinguish between the procedural
grounds for dismissal under these two non-constitutional federal procedural rules,
the Attorney General in the present case predictably omits to mention in its brief a
significant point: Even the Court in Benalcazar acknowledged that, as a federal
constitutional matter, and in harmony with the Supreme Court’s decision in Local
8 Number 93, Int’l Assoc. of Firefighters v. City of Cleveland, supra, 478 U.S. at
529, a “consent decree must spring from and serve to resolve a dispute within the
court’s subject matter jurisdiction.” Id., 1 F. 4th at 425.
c) The District Court Did Not Have Jurisdiction over Plaintiff’s Original
Petition.
As Defendant-Intervenor has previously discussed in her opening brief two
constitutional obstacles would have prevented the District Court from exercising
jurisdiction over the Attorney General’s original petition (had the District Court
considered them). These issues arise not only from the failure and inability of the
“State of Texas” to allege it has been (or imminently will be) “harmed” by the
“non-enforcement” of the citizen initiative by the Defendant City of Elgin,12 but
also from the lack of any statutory law that explicitly delegates capacity to the
Texas Attorney General to file suit, on behalf of “the State of Texas,” as a means
to enforce § 370.003 of the Texas Local Government Code (“Section 370.003” or
“§ 370.003”).13 No such statutory delegation accompanies §370.003.
The Defendant-Intervenor does not question the right of “the State of Texas”
to enforce laws enacted by the Texas Legislature when the State’s interests have
been “harmed.” However, it is wholly another matter to contend, as does the
Attorney General, that HE is the “the State of Texas,” or that he is vested, under
12 Appellant’s Brief, 20-25. 13 Appellant’s Brief, 26-39. 9 Article IV, § 22 of the Texas Constitution (“Article IV, § 22”), with unbounded
authority to file a civil suit in a state District Court, no matter the subject matter in
dispute. And it is wholly another matter to contend, as does the Attorney General,
that he is vested with unbounded authority to file a civil suit in a state District
Court regardless of whether the Texas Legislature has expressly assigned such a
“duty” to him, and regardless of whether the duty legislatively assigned is
“mandatory” or discretionary.”
Texas statutory laws, including those codified in the Texas Government
Code, disclose that when the Texas Legislature desires the Attorney General to file
a civil suit in a District Court to enforce Texas’ statutory laws it knows how to do
so. Indeed, Texas statutory laws are replete with provisions whereby the
Legislature has expressly provided, with regard to certain limited subject matters,
that “[t]he attorney general may bring any action necessary to enforce this
chapter.”14 The point is that the Attorney General in this case has not cited (and he
cannot cite) a single statutory provision or “law” that has authorized him to bring
the present suit as required by Article IV, § 22.
The Attorney General also contends that his “lack of capacity” to bring the
present civil suit in a District Court on behalf of “the State of Texas” under Article
14 E.g., Tex. Gov’t Code, § 808.102 (“The attorney general may bring any action necessary to enforce this chapter.”); Tex. Gov’t Code, § 2270.0253 (same); see also, Tex. Health & Safety Code § 161.706 (same). 10 IV, § 22 is not of constitutional dimension. In support of this argument the
Attorney General invokes a doctrine which provides, generally, that in the non-
constitutional context a lack of “capacity” is not treated as an issue of “standing.”15
In the non-constitutional context this may generally be true. However, when a
constitutional provision, such as Article IV, § 22, expressly limits the “capacity” of
the Attorney General to file a civil suit in a District Court, the Attorney General’s
constitutional “incapacity” necessarily deprives the Attorney General of
“constitutional” standing.
d) The District Court Erred When Granting Plaintiff’s Motion to Strike
Defendant-Intervenor’s Petition in Intervention.
The Defendant-Intervenor has thoroughly explained the reasons why and
how the District Court erred when granting the Attorney General’s motion to strike
“on the merits” her petition in intervention. For this reason, Defendant-Intervenor
sees no purpose for reiterating that discussion in this reply brief, as she believes no
additional response is necessary to refute the Attorney General’s contentions under
this issue.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellant prays the
District Court’s final judgment in this case will be reversed, and that this case will
15 Plaintiff Attorney General’s Brief, 33. 11 be remanded for further proceedings consistent with the applicable law provided
by her in her briefs on this appeal.
Respectfully submitted,
/s/Richard Gladden State Bar No. 07991330 Law Office of Richard Gladden 1204 West University Dr., Ste. 307 Denton, Texas 76201 940/323-9300 (Voice) 940/539-0093 (Fax) richscot1@hotmail.com (email) Attorney for Appellant
CERTIFICATE OF COMPLIANCE
This is to certify that, pursuant to Rule 9.4(i)(3) of the Texas Rules of
Appellate Procedure, this brief was computer-generated; that it contains less than
2,462 words (including the items excepted by Tex.R.App.P. 9.4(i)(1)); and that it
therefore complies with the 7,500 word limitation stated in Rule 9.4(i)(2)(C) of the
Texas Rules of Appellate Procedure.
/s/Richard Gladden
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document was
served on both the Attorney of Record for Appellee the State of Texas, Corey A.
Scanlon, Assistant Solicitor General of Texas; and on the Attorney of Record for
Appellee City of Elgin, Texas, and the official-capacity Appellees associated with
12 the City of Elgin, Gabrielle Smith; by use of the electronic service provider
available at, and in accordance with, www.efiletexas.gov, and Rule 9.5 of the
Texas Rules of Appellate Procedure, on this 9th day of January, 2025.
13 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Richard Gladden Bar No. 07991330 richscot1@hotmail.com Envelope ID: 96061271 Filing Code Description: Brief Requesting Oral Argument Filing Description: Appellant's Reply Brief Status as of 1/10/2025 7:09 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Nancy Villarreal nancy.villarreal@oag.texas.gov 1/9/2025 7:15:45 PM SENT
Richard SGladden richscot1@hotmail.com 1/9/2025 7:15:45 PM SENT
Cory Scanlon cory.scanlon@oag.texas.gov 1/9/2025 7:15:45 PM SENT
Gabrielle Smith gsmith@lglawfirm.com 1/9/2025 7:15:45 PM SENT
Jose E.de la Fuente jdelafuente@lglawfirm.com 1/9/2025 7:15:45 PM SENT
James F.Parker jparker@lglawfirm.com 1/9/2025 7:15:45 PM SENT