ACCEPTED 15-25-00111-CV FIFTEENTH COURT OF APPEALS Alexander J. Lindvall AUSTIN, TEXAS Assistant City Attorney 7/3/2025 12:57 PM Arlington City Attorney’s Office CHRISTOPHER A. PRINE Phone: 817-459-5357 alexander.lindvall@arlingtontx.gov CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS July 3, 2025 7/3/2025 12:57:31 PM CHRISTOPHER A. PRINE Christopher Prine Clerk Clerk, Texas Fifteenth Court of Appeals P.O. Box 12852 Austin, Texas 78711
Re: Appellee City of Arlington’s Response re: Jurisdiction Case Name: Pecos Housing Finance Corporation et al. v. City of Arlington Case No.: 15-25-00111-CV
Mr. Prine:
On June 25, this Court requested Appellants to identify and explain the basis for this Court’s jurisdiction over this appeal, and it further welcomed Appellees to file responses as well. On this issue, Appellee City of Arlington echoes and joins all the arguments made by Appellee City of Haltom City in Case No. 15-25-00112-CV but writes separately to emphasize a few points.
In their responses, the Defendant-Appellant Housing Finance Corporations (“Defendant HFCs”) argue this Court has jurisdiction for two main reasons.
First, the Defendant HFCs claim they are executive-branch State agencies. Pecos HFC Response Letter at 3‒4. This will likely come as a surprise to Governor Abbott, as housing finance corporations are created by local governments, Tex. Local Gov’t Code § 394.002(d), and “all the powers of the corporation are vested” not in the Governor or the executive branch but in a “board of directors . . . all of whom must be residents of the local government,” id. § 394.021(a). A corporate body that is created, controlled, named after, and governed by a local government sure doesn’t feel like an executive-branch State agency—and the Texas Supreme Court’s recent decision in Bumgardner v. Brazos River Auth., ___ S.W.3d ___, 2025 WL 1779081 (Tex. June 27, 2025), all but confirms that HFCs are not executive-branch State agencies.1
Tellingly, the Defendant HFCs’ offer only two sentences of argument on this point. Pecos HFC Response Letter at 4. The Defendant HFCs argue that they are “more akin to a state agency than a political subdivision” because there is “no limit to the geographic reach of [their]
1 If HFCs were State agencies, they would also be entitled to Eleventh Amendment sovereign immunity from suit, see Alden v. Maine, 527 U.S. 706 (1999), but the Defendant HFCs have never made this argument in any court because the Defendant HFCs do not actually believe they are State agencies.
1 operations.” Id. But this puts the cart way before the horse: whether there is geographic limit to these HFCs’ operations is precisely the legal question presented in these appeals. See id. at 2 (“According to Appellees, the Act limits Pecos and other HFCs to operating only within the boundaries of the local governments . . . Appellants assert that HFCs may operate outside the boundaries of their sponsoring governments . . .”). The Defendant HFCs cannot jump ahead, resolve the merits issue in their favor, and then use that conclusion to show that this Court has jurisdiction. This Court must determine its jurisdiction before reaching the merits, and there is no good reason to believe this Court has jurisdiction over nonprofit corporations that are created by local governments and governed by the residents of that local government.
Second, Pecos HFC argues this Court has jurisdiction because Appellees are asking this Court to declare the Texas HFC Act unconstitutional, Tex. Local Gov’t Code §§ 394.001 et seq. Pecos HFC Response Letter at 5. This is wrong in at least three respects. i. To the City of Arlington’s knowledge, Appellees have never sought to strike down the HFC Act. Rather, Appellees have simply argued that the Defendant HFCs’ interpretation of the HFC Act presents constitutional problems. The Defendant HFCs argue that the HFC Act allows them to tax exempt properties anywhere in the State. In response, Appellees argued that this interpretation would seem to conflict with Article VIII, § 11 of the Texas Constitution, which arguably limits local taxation to local jurisdictions. A passing argument that an opposing party’s reading of a statute presents constitutional problems is not enough to confer jurisdiction to this Court. ii. Appellees cannot possibly be asking for the Court to strike down the HFC Act as unconstitutional because the HFC Act was recently superseded by HB21 and isn’t even on the books anymore. Even if Appellees were challenging the constitutionality of the HFC Act, that issue is now indisputably moot because the Act was superseded by HB21. There is no statute left to strike down. iii. Appellee City of Arlington has not made any constitutional arguments or challenged any statute on constitutional grounds. Appellants do not seem to contest this, and they do not explain how this jurisdictional hook catches the City of Arlington. See Pecos HFC Response Letter at 5.
* * * *
“When construing a statute, courts must be mindful that there is a presumption against finding a statutory provision to be jurisdictional,” and “that presumption may only be overcome ‘by clear legislative intent to the contrary.’” TJFA, L.P. v. Tex. Comm’n on Environmental Quality, 368 S.W.3d 727, 731‒32 (Tex. App.—Austin 2012) (quoting City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009)).
2 Here, Appellants have not overcome this presumption against jurisdiction. HFCs are not executive-branch State agencies, as they are created and governed by local governments and local residents who are not subject to statewide elections, and the Texas Supreme Court’s recent decision in Bumgardner v. Brazos River Auth., ___ S.W.3d ___, 2025 WL 1779081 (Tex. June 27, 2025), makes clear that HFCs are not executive-branch State agencies subject to this Court’s jurisdiction. This appeal, moreover, cannot possibly be challenging the constitutionality of the HFC Act, as the Defendant HFCs claim, because the HFC Act was recently superseded by HB21 and is no longer on the books.
Accordingly, because this Court is “duty-bound to determine, sua sponte, whether jurisdiction exists” before accepting this appeal, see Williams v. Davis, 628 S.W.3d 946, 952 (Tex. App.—Houston [14th Dist.] 2021), and Appellants have not overcome the presumption against jurisdiction, see TJFA, 368 S.W.3d at 731‒32, this Court should transfer the Defendant HFCs’ appeals to the Second Court of Appeals in Fort Worth, where they belong.
Sincerely,
Alexander J. Lindvall Assistant City Attorney City of Arlington Attorney’s Office
3 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.
Alexander Lindvall on behalf of Alexander Lindvall Bar No. 24139409 alexander.lindvall@arlingtontx.gov Envelope ID: 102754124 Filing Code Description: Response Filing Description: Appellee City of Arlington's Response Letter re: 15th COA's Jurisdiction Status as of 7/3/2025 1:05 PM CST
Associated Case Party: Pecos Housing Finance Corporation
Name BarNumber Email TimestampSubmitted Status
Jeffrey MTillotson jtillotson@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Kassi Yukevich kyukevich@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Amanda Reichek areichek@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
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ACCEPTED 15-25-00111-CV FIFTEENTH COURT OF APPEALS Alexander J. Lindvall AUSTIN, TEXAS Assistant City Attorney 7/3/2025 12:57 PM Arlington City Attorney’s Office CHRISTOPHER A. PRINE Phone: 817-459-5357 alexander.lindvall@arlingtontx.gov CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS July 3, 2025 7/3/2025 12:57:31 PM CHRISTOPHER A. PRINE Christopher Prine Clerk Clerk, Texas Fifteenth Court of Appeals P.O. Box 12852 Austin, Texas 78711
Re: Appellee City of Arlington’s Response re: Jurisdiction Case Name: Pecos Housing Finance Corporation et al. v. City of Arlington Case No.: 15-25-00111-CV
Mr. Prine:
On June 25, this Court requested Appellants to identify and explain the basis for this Court’s jurisdiction over this appeal, and it further welcomed Appellees to file responses as well. On this issue, Appellee City of Arlington echoes and joins all the arguments made by Appellee City of Haltom City in Case No. 15-25-00112-CV but writes separately to emphasize a few points.
In their responses, the Defendant-Appellant Housing Finance Corporations (“Defendant HFCs”) argue this Court has jurisdiction for two main reasons.
First, the Defendant HFCs claim they are executive-branch State agencies. Pecos HFC Response Letter at 3‒4. This will likely come as a surprise to Governor Abbott, as housing finance corporations are created by local governments, Tex. Local Gov’t Code § 394.002(d), and “all the powers of the corporation are vested” not in the Governor or the executive branch but in a “board of directors . . . all of whom must be residents of the local government,” id. § 394.021(a). A corporate body that is created, controlled, named after, and governed by a local government sure doesn’t feel like an executive-branch State agency—and the Texas Supreme Court’s recent decision in Bumgardner v. Brazos River Auth., ___ S.W.3d ___, 2025 WL 1779081 (Tex. June 27, 2025), all but confirms that HFCs are not executive-branch State agencies.1
Tellingly, the Defendant HFCs’ offer only two sentences of argument on this point. Pecos HFC Response Letter at 4. The Defendant HFCs argue that they are “more akin to a state agency than a political subdivision” because there is “no limit to the geographic reach of [their]
1 If HFCs were State agencies, they would also be entitled to Eleventh Amendment sovereign immunity from suit, see Alden v. Maine, 527 U.S. 706 (1999), but the Defendant HFCs have never made this argument in any court because the Defendant HFCs do not actually believe they are State agencies.
1 operations.” Id. But this puts the cart way before the horse: whether there is geographic limit to these HFCs’ operations is precisely the legal question presented in these appeals. See id. at 2 (“According to Appellees, the Act limits Pecos and other HFCs to operating only within the boundaries of the local governments . . . Appellants assert that HFCs may operate outside the boundaries of their sponsoring governments . . .”). The Defendant HFCs cannot jump ahead, resolve the merits issue in their favor, and then use that conclusion to show that this Court has jurisdiction. This Court must determine its jurisdiction before reaching the merits, and there is no good reason to believe this Court has jurisdiction over nonprofit corporations that are created by local governments and governed by the residents of that local government.
Second, Pecos HFC argues this Court has jurisdiction because Appellees are asking this Court to declare the Texas HFC Act unconstitutional, Tex. Local Gov’t Code §§ 394.001 et seq. Pecos HFC Response Letter at 5. This is wrong in at least three respects. i. To the City of Arlington’s knowledge, Appellees have never sought to strike down the HFC Act. Rather, Appellees have simply argued that the Defendant HFCs’ interpretation of the HFC Act presents constitutional problems. The Defendant HFCs argue that the HFC Act allows them to tax exempt properties anywhere in the State. In response, Appellees argued that this interpretation would seem to conflict with Article VIII, § 11 of the Texas Constitution, which arguably limits local taxation to local jurisdictions. A passing argument that an opposing party’s reading of a statute presents constitutional problems is not enough to confer jurisdiction to this Court. ii. Appellees cannot possibly be asking for the Court to strike down the HFC Act as unconstitutional because the HFC Act was recently superseded by HB21 and isn’t even on the books anymore. Even if Appellees were challenging the constitutionality of the HFC Act, that issue is now indisputably moot because the Act was superseded by HB21. There is no statute left to strike down. iii. Appellee City of Arlington has not made any constitutional arguments or challenged any statute on constitutional grounds. Appellants do not seem to contest this, and they do not explain how this jurisdictional hook catches the City of Arlington. See Pecos HFC Response Letter at 5.
* * * *
“When construing a statute, courts must be mindful that there is a presumption against finding a statutory provision to be jurisdictional,” and “that presumption may only be overcome ‘by clear legislative intent to the contrary.’” TJFA, L.P. v. Tex. Comm’n on Environmental Quality, 368 S.W.3d 727, 731‒32 (Tex. App.—Austin 2012) (quoting City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009)).
2 Here, Appellants have not overcome this presumption against jurisdiction. HFCs are not executive-branch State agencies, as they are created and governed by local governments and local residents who are not subject to statewide elections, and the Texas Supreme Court’s recent decision in Bumgardner v. Brazos River Auth., ___ S.W.3d ___, 2025 WL 1779081 (Tex. June 27, 2025), makes clear that HFCs are not executive-branch State agencies subject to this Court’s jurisdiction. This appeal, moreover, cannot possibly be challenging the constitutionality of the HFC Act, as the Defendant HFCs claim, because the HFC Act was recently superseded by HB21 and is no longer on the books.
Accordingly, because this Court is “duty-bound to determine, sua sponte, whether jurisdiction exists” before accepting this appeal, see Williams v. Davis, 628 S.W.3d 946, 952 (Tex. App.—Houston [14th Dist.] 2021), and Appellants have not overcome the presumption against jurisdiction, see TJFA, 368 S.W.3d at 731‒32, this Court should transfer the Defendant HFCs’ appeals to the Second Court of Appeals in Fort Worth, where they belong.
Sincerely,
Alexander J. Lindvall Assistant City Attorney City of Arlington Attorney’s Office
3 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.
Alexander Lindvall on behalf of Alexander Lindvall Bar No. 24139409 alexander.lindvall@arlingtontx.gov Envelope ID: 102754124 Filing Code Description: Response Filing Description: Appellee City of Arlington's Response Letter re: 15th COA's Jurisdiction Status as of 7/3/2025 1:05 PM CST
Associated Case Party: Pecos Housing Finance Corporation
Name BarNumber Email TimestampSubmitted Status
Jeffrey MTillotson jtillotson@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Kassi Yukevich kyukevich@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Amanda Reichek areichek@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Blake W.Stribling bstribling@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT
Daniel J.Lecavalier dlecavalier@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT
Associated Case Party: City of Arlington, Texas
Name BarNumber Email TimestampSubmitted Status
Nena Chima-Tetteh nena.chima-tetteh@arlingtontx.gov 7/3/2025 12:57:31 PM SENT
Joseph N.Nguyen joseph.nguyen@arlingtontx.gov 7/3/2025 12:57:31 PM SENT
Jonathan Moss jonathan.moss@arlingtontx.gov 7/3/2025 12:57:31 PM SENT
Alexander J.Lindvall alexander.lindvall@arlingtontx.gov 7/3/2025 12:57:31 PM SENT
Galen Gatten galen.gatten@arlingtontx.gov 7/3/2025 12:57:31 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Kim Decker kdecker@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT
Rachel Feltner rfeltner@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT
Christopher Schluter cschluter@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT
TJP Service tillotsonjohnsonpatton@gmail.com 7/3/2025 12:57:31 PM SENT
Julie Whitson jwhitson@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT 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.
Alexander Lindvall on behalf of Alexander Lindvall Bar No. 24139409 alexander.lindvall@arlingtontx.gov Envelope ID: 102754124 Filing Code Description: Response Filing Description: Appellee City of Arlington's Response Letter re: 15th COA's Jurisdiction Status as of 7/3/2025 1:05 PM CST
Case Contacts
Julie Whitson jwhitson@chasnoffstribling.com 7/3/2025 12:57:31 PM SENT
Sean Wallace swallace@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Devlin Browne dbrowne@tillotsonlaw.com 7/3/2025 12:57:31 PM SENT
Associated Case Party: City of Fort Worth, Texas
Name BarNumber Email TimestampSubmitted Status
Stephen Cumbie stephen.cumbie@fortworthtexas.gov 7/3/2025 12:57:31 PM SENT
Christopher Mosley chris.mosley@fortworthtexas.gov 7/3/2025 12:57:31 PM SENT
Olyn Poole olyn.poole@fortworthtexas.gov 7/3/2025 12:57:31 PM SENT