Philip Wayne Hindes and Melinda Hindes Eustace v. La Salle County, Texas The Honorable Joel Rodriguez Jr., in His Official Capacity as County Judge, La Salle County, Texas And the Honorable Raul Ayala, in His Official Capacity as County Commissioner, Precinct 4, La Salle County, Texas

Opinion

ACCEPTED 04-14-00651-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 10/12/2015 10:31:16 AM KEITH HOTTLE CLERK

NO. 04-14-00651-CV

FILED IN IN THE COURT OF APPEALS 4th COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICTSAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 10/12/2015 10:31:16 AM KEITH E. HOTTLE Clerk

PHILIP WAYNE HINDES AND MELINDA HINDES EUSTACE, Appellants, V.

LA SALLE COUNTY, TEXAS, HON. JOEL RODRIGUEZ, JR., IN HIS OFFICIAL CAPACITY AS COUNTY JUDGE, LA SALLE COUNTY, TEXAS AND HON. RAUL AYALA, IN HIS OFFICIAL CAPACITY AS COUNTY COMMISSIONER, PRECINCT 4, LA SALLE COUNTY, TEXAS, Appellees.

ON APPEAL FROM THE 81ST DISTRICT COURT, LA SALLE COUNTY, TEXAS HONORABLE DICK ALCALA PRESIDING CAUSE NO. 12-09-00179-CVL

APPELLANTS’ MOTION FOR REHEARING

THE RANGEL LAW FIRM, P.C. HOUSTON DUNN, PLLC Jorge C. Rangel Samuel V. Houston, III State Bar No. 16543500 State Bar No. 24041135 Jaime S. Rangel 4040 Broadway, Suite 440 State Bar No. 24033759 San Antonio, Texas 78209 615 N. Upper Broadway, Suite 2020 (210) 775-0882 – Telephone Corpus Christi, Texas 78401 (210) 826-0075 – Fax (361) 883-8500 – Telephone sam@hdappeals.com (361) 883-2611 – Fax UHL, FITZSIMONS, JEWETT & BURTON, PLLC Jorge.C.Rangel@rangellaw.com J. Byron “Trace” Burton, III jaime.rangel@rangellaw.com State Bar No. 24031776 Ezra A. Johnson State Bar No. 24065499 4040 Broadway, Suite 430 San Antonio, Texas 78209 (210) 829-1660 – Telephone (210) 829-1641 – Fax tburton@ufjblaw.com ejohnson@ufjblaw.com

ATTORNEYS FOR APPELLANTS TABLE OF CONTENTS Page TABLE OF CONTENTS .................................................................................. i TABLE OF AUTHORITIES ........................................................................... ii ARGUMENT.................................................................................................. 1 I. The Panel Must Address the Jurisdictional Conflict Between the District Court and the La Salle County Commissioners Court. .. 1 A. The panel does not reach the jurisdictional arguments because it too narrowly construes the Hindes’ pleadings. .......................................................................... 2 B. A claim challenging the La Salle County Defendants’ consideration of the Chapter 251 application is ripe. ........ 4 II. The Record Affirmatively Demonstrates That Injury Is Imminent. ................................................................................... 5 III. Conclusion and Prayer................................................................ 6 CERTIFICATE OF COMPLIANCE ................................................................ 9 CERTIFICATE OF SERVICE......................................................................... 9 TABLE OF AUTHORITIES

Page CASES Hindes v. La Salle Cnty., Tex., No. 04-14-00651-CV, 2015 WL 5037033 (Tex. App.—San Antonio Aug. 26, 2015, no pet. h.) (mem. op.) ......... 1, 4, 5 Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955) ....................................... 2 Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..... 2 Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000) .................... 4

STATUTES TEX. TRANSP. CODE § 251.053 ......................................................................... 2

ii TO THE HONORABLE FOURTH COURT OF APPEALS:

Appellants Philip Wayne Hindes and Melinda Hindes Eustace

(collectively “the Hindes”) respectfully present this motion for rehearing

requesting that the panel issue a new opinion and judgment reversing the trial

court’s order granting the La Salle County Defendants’ First Amended Plea to

the Jurisdiction.1

ARGUMENT

I. The Panel Must Address the Jurisdictional Conflict Between the District Court and the La Salle County Commissioners Court. In resolving an appeal, the panel must issue an opinion “that addresses

every issue raised and necessary to final disposition of the appeal.” TEX. R.

APP. P. 47.1. The panel concludes that it did not need to reach the Hindes’

jurisdictional arguments challenging the La Salle County Defendants’ ability

even to consider the Chapter 251 application. Hindes v. La Salle Cnty., Tex.,

No. 04-14-00651-CV, 2015 WL 5037033, at *4 (Tex. App.—San Antonio Aug.

26, 2015, no pet. h.) (mem. op.). But jurisdiction was briefed at length by the

parties, and it should have been addressed in the opinion.

1 The appellees are referred to collectively as “the La Salle County Defendants” throughout this motion.

1 A. The panel does not reach the jurisdictional arguments because it too narrowly construes the Hindes’ pleadings. When a plaintiff’s pleadings are challenged in a plea to the jurisdiction,

which is what occurred in this appeal, the standard of review requires the

court of appeals to liberally construe the pleadings in the plaintiff’s favor and

look to his intent. Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). Despite this standard, the panel limits its analysis of the

Hindes’s pleadings. The resulting opinion does not recognize the different

factual bases for the claims against the La Salle County Defendants. In that

connection, the theory underlying the claims against the La Salle County

Defendants is primarily two-fold.

First, the La Salle County Defendants could not have accepted the

Chapter 251 application because it was deficient on its face. CR 302-03.

Namely, the Townsends’ application did not address the statutory element of

“necessity.” CR 303 (citing Phillips v. Naumann, 275 S.W.2d 464 (Tex. 1955);

TEX. TRANSP. CODE § 251.053). Indeed, the Hindes asserted that the

Townsends could never show the requisite statutory “necessity” because that

issue had already been judicially determined by summary judgment in the

Hindes’ favor. CR 303; see also CR 240.

Second, the La Salle County Defendants could not consider the

application in the first place. The La Salle County Defendants were prohibited

from doing so because the trial court had dominant, continuing jurisdiction

over disputes involving the Hindes Road. CR 303. Additionally, any attempt

2 by the commissioners court to make rulings with respect to the Hindes Road

would necessarily interfere with the trial court’s ongoing jurisdiction. CR 303.

Any resulting order contrary to the trial court’s orders would be an

impermissible collateral attack. CR 303. 2

To the extent that the Hindes challenged the commissioners court’s

ability to consider the application, the La Salle County Defendants sought

dismissal of that portion of the claim because it violated the separation of

powers doctrine. CR 323. In response, the Hindes asserted that the reliance

upon the separation of powers doctrine was misplaced because (1) district

courts are granted supervisory jurisdiction over commissioners courts; (2) a

commissioners court is not performing a legislative function when considering

a Chapter 251 application; and (3) principles of dominant jurisdiction do not

permit a commissioners court to interfere with a district court’s ongoing

jurisdiction. Br. of Appellants 11-16; Reply Br. of Appellants 2-5.

Despite extensive briefing by the parties, which is incorporated by

reference herein, the panel’s opinion does not address the parties’

jurisdictional arguments. As a result, the panel should grant the motion for

rehearing to address all issues presented by the appeal.

2 The Hindes also asserted that these actions by the La Salle County Defendants were ultra vires. CR 303.

3 B. A claim challenging the La Salle County Defendants’ consideration of the Chapter 251 application is ripe. The Court never reaches the second theory, concluding only that the

Hindes’s claims are not ripe because no final action had been taken on the

Chapter 251 application. Hindes, 2015 WL 5037033, at *3-4. But a claim

challenging the La Salle County Defendants’ ability even to consider the

application is factually distinct, and it is ripe.

A claim is ripe when an injury has occurred or is likely to occur. Waco

Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000). It is undisputed

that the La Salle County Defendants have accepted and considered the

application, even going so far as to declare a “public interest” in the road. CR

302-03, 357, 378-79, 398, 421-22. Not only do the Hindes assert that the La

Salle County Defendants lack the power to consider the application, but their

consideration and action on the application has caused direct injury to the

Hindes.

The La Salle County Defendants’ declaration of a public interest, which

is product of their consideration of the application, caused the Hindes to suffer

injury. This action lead the underlying plaintiffs, the Townsends, and their

agents and invitees to use the Hindes Road. See CR 253. The Townsends

reasoned that the commissioners court had declared the Hindes Road open to

the public. CR 246, 253, 398, 399, 401. To prevent any future trespass, the

Hindes successfully obtained injunctive relief to prevent the Townsends from

4 using the Hindes Road while the proceedings continued. CR 273. Thus, based

upon the foregoing, the Hindes’ claims are clearly ripe.

II. The Record Affirmatively Demonstrates That Injury Is Imminent. The panel should reconsider its conclusion that the Hindes failed to

show that future injury was imminent, i.e., that the La Salle County

Defendants were going to grant the Chapter 251 application. Hindes, 2015 WL

5037033, at *4. The opinion purports to list and discuss the Hindes’ evidence

demonstrating imminent injury. See id. In particular, the panel discounts clear

and unequivocal statements by the La Salle County Judge and Commissioner

Ayala that the Hindes Road is already a public road, and if not already a public

road, it should be declared open to the public. Id.; see also CR 401-02; 421.

According to the opinion, these statements do not demonstrate

imminent injury, in part, because statements by individual commissioners do

not necessarily show how the entire court will vote. Hindes, 2015 WL

5037033, at *4 & n.4. The panel also notes that the County had authorized an

attorney to procure a title insurance policy on the Hindes Road. Id. at *4. But

the panel’s review of the record is incomplete.

The opinion fails to include and address other important facts

demonstrating that the application will be granted. The opinion does not

mention other actions that were taken by the commissioners court as a

collective body as well as other affirmative actions taken under County

5 authority. In particular, the commissioners court voted twice to declare a

“public interest” in the Hindes Road. CR 367, 379; see also CR 398-99. The

transcript from the commissioners court meeting, which reveals a motion and

unanimous vote, confirms the inevitable:

[T]he Court enters this Clarifying Order, to clarify its January 14, 2013, decision and Order. The Court then found, and now finds, that a “public interest” exists in the road . . ., which is sometimes referred to as the North County Road, and a portion of it, is sometimes referred to as the Hindes Road. CR 379 (emphasis added). With respect to the title policy discussed above, that

too was authorized by the commissioners court as a whole. CR 360; RR 9.

Finally, County employees were directed to change road signs to identify the

road in question as the “Hindes Road.” CR 405.

Had the panel considered the totality of the evidence brought forth by

the Hindes, it should have concluded that future injury is imminent. The

record reflects that the application will be granted. There is no mystery as to

what the future holds. Accordingly, the motion for rehearing should be

granted.

III. Conclusion and Prayer.

The panel should reconsider its opinion and judgment affirming the trial

court’s order. In doing so, the panel should broadly construe the Hindes’

pleadings and directly address the jurisdictional arguments discussed in the

parties’ briefs. Further, the panel should reconsider all of the evidence

6 establishing actual and imminent injury. Ultimately, the Hindes should be

permitted to move forward on their claims in the trial court.

WHEREFORE, PREMISES CONSIDERED, Appellants Philip Wayne

Hindes and Melinda Hindes Eustace respectfully pray that the panel grant this

motion for rehearing, withdraw the opinion and judgment of August 26, 2015,

issue a new opinion and judgment reversing the trial court’s order granting the

La Salle County Defendant’s First Amended Plea to the Jurisdiction, remand

the case to the trial court for further proceedings, and grant other and further

relief to which they may be justly and equitably entitled, including an

opportunity to replead their claims.

7 Respectfully submitted,

/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III State Bar No. 24041135 HOUSTON DUNN, PLLC 4040 Broadway, Suite 440 San Antonio, Texas 78209 Telephone: (210) 775-0882 Fax: (210) 826-0075 sam@hdappeals.com

Jorge C. Rangel State Bar No. 16543500 Jaime S. Rangel State Bar No. 24033759 THE RANGEL LAW FIRM, P.C. 615 N. Upper Broadway, Suite 2020 Corpus Christi, Texas 78401 (361) 883-8500 – Telephone (361) 883-2611 – Fax Jorge.C.Rangel@rangellaw.com jaime.rangel@rangellaw.com

J. Byron “Trace” Burton, III State Bar No. 24031776 Ezra A. Johnson State Bar No. 24065499 UHL, FITZSIMONS, JEWETT & BURTON, PLLC 4040 Broadway, Suite 430 San Antonio, Texas 78209 (210) 829-1660 – Telephone (210) 829-1641 – Fax tburton@ufjblaw.com ejohnson@ufjblaw.com

ATTORNEYS FOR APPELLANTS

8 CERTIFICATE OF COMPLIANCE

In accordance with Texas Rule of Appellate Procedure 9.4, the undersigned certifies that the foregoing computer-generated motion for rehearing contains 1,490 words.

/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served in accordance with the Texas Rules of Appellate Procedure on the 12th day of October, 2015, to the following:

Christopher S. Johns Via email/eservice JOHNS MARRS ELLIS & HODGE LLP 805 West 10th Street, Suite 400 Austin, Texas 78701 cjohns@jmehlaw.com

Michael Shaunessy Via email/eservice Christopher J. Oddo MCGINNIS LOCHRIDGE, LLP 600 Congress Avenue, Suite 2100 Austin, Texas 78701 mshaunessy@mcginnislaw.com

Dan Miller Via email/eservice MCELROY, SULLIVAN, MILLER, WEBER & OLMSTEAD, LLP P.O. Box 12127 Austin, Texas 78711 dmiller@msmtx.com