State of Texas, Maxx Juusola, Tracy Martin, and Alan Crider v. City of Dallas, Kimberly Bizor Tolbert, in Her Official Capacity as the Interim City Manager for the City of Dallas and the State Fair of Texas

Opinion

ACCEPTED 15-25-00122-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 10/23/2025 7:28 PM Cause No. 15-25-00122-CV CHRISTOPHER A. PRINE CLERK FILED IN IN THE COURT OF APPEALS 15th COURT OF APPEALS AUSTIN, TEXAS FOR THE FIFTEENTH JUDICIAL DISTRICT 10/23/2025 7:28:17 PM AUSTIN, TEXAS CHRISTOPHER A. PRINE Clerk

STATE OF TEXAS, MAXX JUUSOLA, TRACY MARTIN, AND ALAN CRIDER Appellants,

v.

CITY OF DALLAS, KIMBERLY BIZOR TOLBERT, IN HER OFFICIAL CAPACITY AS THE INTERIM CITY MANAGER FOR THE CITY OF DALLAS, AND THE STATE FAIR OF TEXAS, Appellees.

BRIEF OF THE STATE OF TEXAS

KEN PAXTON ERNEST C. GARCIA Attorney General of Texas State Bar No. 07632400 CANON PARKER HILL BRENT WEBSTER State Bar No. 24140247 First Assistant Attorney General ALEXANDER COMSUDI State Bar No. 24087006 RALPH MOLINA Assistant Attorneys General Deputy First Assistant Attorney Administrative Law Division General Office of the Attorney General P.O. Box 12548, Capitol Station AUSTIN KINGHORN Austin, Texas 78711-2548 Deputy Attorney General for Civil Telephone: (512) 936-1838 Litigation ernest.garcia@oag.texas.gov canon.hill@oag.texas.gov ERNEST C. GARCIA alexander.comsudi@oag.texas.gov Chief, Administrative Law ATTORNEYS FOR STATE OF TEXAS Division IDENTITY OF PARTIES AND COUNSEL The following is a list of all the parties, names, and addresses of counsel:

Appellant: State of Texas

State’s Counsel: Ernest C. Garcia State Bar Number: 07632400 Assistant Attorney General Canon Parker Hill State Bar Number: 24140247 Assistant Attorney General Melissa Juarez State Bar No. 00784361 Assistant Attorney General Steven Ogle Assistant Attorney General Texas State Bar No. 24044477 Patrick Todd State Bar Number: 24106513 Assistant Attorney General Alexander Comsudi State Bar No. 24087006 Assistant Attorney General Keegan J. Howe State Bar No. 24143028 Assistant Attorney General Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711 Telephone: (512) 936-1838

Individual Appellants: Maxx Juusola, Tracy Martin, and Alan Crider

Individual

ii Appellants’ Counsel: Tony K. McDonald State Bar Number: 24083477 Connor Ellington State Bar Number: 24128592 The Law Offices of Tony McDonald 1308 Ranchers Legacy Trail Fort Worth, Texas 76126 tony@tonymcdonald.com connor@tonymcdonald.com

Appellees: City of Dallas and Kimberly Tolbert in her official capacity as Interim City Manager for the City of Dallas

Appellees’ Counsel: Jeffrey Tillotson State Bar Number: 20039200 Tillotson, Johnson & Pattin 1201 Nain Street, Suite 1300 Dallas, Texas 75202 jtillotson@tillotsonlaw.com

Appellee: State Fair of Texas

Appellee’s Counsel: James B. Harris State Bar Number: 09065400 Holland & Knight LLP 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Jim.harris@hklaw.com

iii GLOSSARY

State Fair of Texas (SFOT) Fair Park Contract (a lease agreement) The City of Dallas (City)

iv TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.................................................................. ii GLOSSARY ................................................................................................................... iv TABLE OF CONTENTS ................................................................................................ v INDEX OF AUTHORITIES ......................................................................................... vi STATEMENT OF THE CASE...................................................................................... xi REFERENCES TO THE PARTIES ............................................................................ xii REFERENCES TO THE RECORD............................................................................. xii STATEMENT REGARDING ORAL ARGUMENT ................................................... xiii ISSUE PRESENTED.................................................................................................. xiv STATEMENT OF FACTS ............................................................................................. 1 STANDARD OF REVIEW ............................................................................................. 5 SUMMARY OF THE ARGUMENT .............................................................................. 6 ARGUMENT .................................................................................................................. 7 CONCLUSION............................................................................................................. 47 PRAYER ....................................................................................................................... 48 CERTIFICATE OF COMPLIANCE ............................................................................ 50 CERTIFICATE OF SERVICE ..................................................................................... 51 APPENDIX................................................................................................................... 52

v INDEX OF AUTHORITIES Cases

Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex. 2015) ................................................................................. 23 Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex. 2002) ............................................................................. 5, 7 Bexar Appraisal Dist. v. Johnson, 691 S.W.3d 844, 847 (Tex. 2024) ....................................................................... 23, 46 BPX Operating Co. v. Strickhausen, 629 S.W.3d 189, 196 (Tex. 2021) ............................................................................. 27 Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295–96 (2001) .................................................................................... 30 Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) ............................................................................. 20 Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998) ................................................................................. 22 Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004)........................................................................ 43 City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 259 (Tex. 2018) ......................................................................... 5, 48 City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964) ............................................................................. 35 Cmty. Health Sys. Prof. Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017) ................................................................. 5, 6, 8, 47 Cockrell v. Tex. Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672, 675 (Tex. 1956)................................................... 32, 35 CPS Energy v. ERCOT, 671 S.W.3d 605, 626 n.170 (Tex. 2023) ................................................................... 30 Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014) ............................................................................. 20 Crowell v. Hous. Auth. of City of Dallas, 495 S.W.2d 887, 889 (Tex. 1973) ............................................................................. 36 ERCOT, Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021) ...................................................................... 9 Extraction Res., Inc. v. Freeman, 555 S.W.2d 156, 159 (Tex. App.—El Paso 1977, writ ref'd n.r.e.) .......................... 35 Fitzgerald v. State, 9 S.W. 150, 151–53 (Tex. 1888).......................................................................... 35, 37

vi Geary v. Two Bow Ranch Ltd. Partnership, No. 04-18-00610-CV, 2020 WL 354763, at *25 (Tex. App.—San Antonio Jan. 22, 2020, pet. denied) (mem. op.) ................................................................................... 32 Gill v. Hill, 688 S.W.3d 863, 871 (Tex. 2024) ............................................................................. 12 Goodstein v. Huffman, 222 S.W.2d 259, 260 (Tex. App.—Dallas 1949, writ ref'd) ..................................... 36 Hogan v. Zoanni, 627 S.W.3d 163, 169 (Tex. 2021) ............................................................................. 20 In re Kasschau, 11 S.W.3d 305, 312 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) ............. 37 In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 (Tex. 2004) ............................................................................. 36 In re State, 698 S.W.3d 904 (Tex. 2024) ....................................................................................... 4 Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 569 (Tex. 2014) ............................................................................. 24 Jim Olive Photography v. Univ. of Houston, 624 S.W.3d 764, 773 (Tex. 2021) ............................................................................. 33 Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 840–41 (Tex. 2010)........................................................................ 26 Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 48 (Tex. 2017) .................................................................. 32, 33 Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) ............................................................................. 19 Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 562 (Tex. 2015) ............................................................................. 26 Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) ................................................................................. 43 Philadelphia Indemnity Ins. Co. v. White, 490 S.W.3d 468, 475 (Tex. 2016) ............................................................................. 36 Phillips v. State, 161 S.W.3d 511, 514-515 (Tex. Crim. App. 2005) ................................................... 29 Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 511 (Tex. 2012) ....................................................................... 13, 14 Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) ............................................................................. 34 Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) ......................................................................... 5, 22 Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) ............................................................................. 23

vii Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997) ................................................................................. 30 Severance v. Patterson, 370 S.W.3d 705, 709 (Tex. 2012) ............................................................................. 33 Smith v. Estill, 87 Tex. 264, 271, 28 S.W. 801, 805 (1894) ............................................................... 27 Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) ............................................................................. 43 State v. Ross, 573 S.W.3d 817, 825 (Tex. Crim. App. 2019) .......................................................... 25 Tex. Dep't of Fam. & Protective Servs. v. Grassroots Leadership, Inc., 717 S.W.3d 854, 874 (Tex. 2025) ............................................................... 10, 11 Tussey v. State, 494 S.W.2d 866, 870 n. 3 (Tex. Crim. App. 1973) ................................................... 45 Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014) ................................................................................. 24 Weaver v. Head, 984 S.W.2d 744, 746 (Tex. App.—Texarkana 1999, no pet.) .................................. 44 Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) ............................................................................... 11 Statutes

Tex. Gov’t Code § 311.016(3) ....................................................................................... 15 Tex. Gov't Code §311.034............................................................................................. 13 Tex. Gov’t Code § 411.209............................................................................................ 31 Tex. Gov’t Code § 411.209(a) ........................................................................... 23, 26, 46 Tex. Gov't Code § 411.209(b)–(c), (g) ........................................................................... 26 Tex. Gov’t Code § 411.209(f) .................................................................................. 15, 18 Tex. Gov’t Code § 411.209(h) ....................................................................................... 21 Tex. Gov’t Code Section 411.209 (d) – (g).................................................................... 18 Tex. Nat. Res. Code § 34.011 ....................................................................................... 33 Tex. Nat. Res. Code § 51.011(b) .................................................................................. 34 Tex. Nat. Res. Code § 51.012 ....................................................................................... 33 Tex. Parks & Wild. Code § 12.008(a) .......................................................................... 33 Other Authorities

Act of May 18, 2021, 87th Leg., R.S., ch. 203, §§ 1–2, sec. 411.172, 2021 Tex. Gen. Laws 447, 447–48 (adding Government Code subsection 411.172(i) and section 411.1735) .................................................................................................................. 24

viii Act of May 2, 2019, 86th Leg., R.S., ch. 39, §§ 1–3, secs. 30.05, 30.06, 30.07, 2019 Tex. Gen. Laws 82, 82–85 (adding new defenses to Penal Code sections 30.05, 30.06, and 30.07) ...................................................................................................... 25 Act of May 20, 2021, 87th Leg., R.S., ch. 481, §§ 1–5, secs. 30.05, 30.07, 46.02, 46.035, 46.15, 2021 Tex. Gen. Laws 968, 968–70 (amending holstering requirements under Penal Code sections 30.05(f), 30.07(f), 46.02(a)(1), 46.035, 46.15(b)) .................................................................................................................... 25 Act of May 21, 2019, 86th Leg., R.S., ch. 784, § 1, sec. 411.209, 2019 Tex. Gen. Laws 2229, 2229–30 (amending Government Code section 411.209) ........................ 26, 45 Act of May 23, 2005, 79th Leg., R.S., ch. 486, § 1, sec. 411.172, 2005 Tex. Gen. Laws 1347, 1347 (adding Government Code subsections 411.172(g) and 411.172(h)) ... 24 Act of May 23, 2007, 80th Leg., R.S., ch. 693, § 1, sec. 46.02, 2007 Tex. Gen. Laws 1318, 1318 (narrowing the scope of unlawful possession under Penal Code subsection 46.02(a)) .................................................................................................. 24 Act of May 23, 2015, 84th Leg., R.S., ch. 593, § 1, sec. 411.209, 2015 Tex. Gen. Laws 2000, 2000–01 (adding Government Code section 411.209) ................................... 26 Act of May 24, 2007, 80th Leg., ch. 1214, § 1, sec. 46.15, 2007 Tex. Gen. Laws 4100, 4100–01 (narrowing the scope of Penal Code subsection 46.15(a)) ........................ 24 Act of May 25, 2007, 80th Leg., ch. 1222, § 6, sec. 46.15, 2007 Tex. Gen. Laws 4117, 4118–19 (narrowing the scope of Penal Code subsection 46.15(a)) ........................ 24 Act of May 25, 2011, 82d Leg., R.S., ch. 679, § 1, sec. 46.02, 2011 Tex. Gen. Laws 1640, 1640–41 (narrowing the scope of unlawful possession under Penal Code subsection 46.02(a)) .................................................................................................. 25 Act of May 26, 2017, 85th Leg., R.S., ch. 1143, §§ 8–9, secs. 30.06, 30.07, 2017 Tex. Gen. Laws 4355, 4357 (adding Penal Code subsections 30.06(f) and 30.07(g)) ..... 25 Act of May 28, 2021, 87th Leg., R.S., ch. 1008, §§ 3–6, secs. 2155.1025, 30.06, 30.07, 2021 Tex. Gen. Laws 2679, 2679–80 (adding new defenses to Penal Code sections 30.05, 30.06, 30.07, Occupations Code section 2155.1025) ..................................... 25 Act of May 29, 2015, 84th Leg., R.S., ch. 437, §§ 16–28, 47, secs. 411, 46.035, 2015 Tex. Gen. Laws 1706, 1710–14, 1719 (amending Government Code chapter 411, subchapter H, and amending the predecessor to Penal Code section 46.035) ...... 25 Act of May 31, 2003, 78th Leg., R.S. ch. 1178, §§ 1-2, sec. 30.05, 2003 Tex. Gen. Laws 3364, 3364 (narrowing the scope of firearm-related trespass through Penal Code subsections 30.05(f) and 30.06(e)) .................................................................. 24 Act of May 31, 2015, 84th Leg., R.S., ch. 438, § 1, sec. 411.2031, 2015 Tex. Gen. Laws 1723, 1723–24 (adding Government Code subsection 411.2031, which allowed licensed, concealed carry in public and private institutions of higher education) ................................................................................................................. 25 S. RSCH. CTR., BILL ANALYSIS, Tex. S.B. 273, 84th Leg., R.S. (2015) ......................... 26 Tex. Att’y Gen. Op. No. KP-0108, (2016) at *1 ........................................................... 44 Rules

ix Tex. R. App. P. 29.3 ....................................................................................................... 4 Tex. R. App. P. 33.1(a)(2)(A) ........................................................................................ 40 Tex. R. App. P. 44.1 ..................................................................................................... 43 Tex. R. Civ. P. 166a(c).................................................................................................. 22 Tex. R. Evid. 201(b) ..................................................................................................... 12 Tex. R. Evid. 201(c)(2).................................................................................................. 11 Tex. R. Evid. 401 .......................................................................................................... 42

x STATEMENT OF THE CASE Nature of the case: The State of Texas, along with individual Plaintiffs Maxx Juusola, Tracy Martin, and Alan Crider, filed suit against the City of Dallas; Kimberly Bizor Tolbert, in her official capacity as the Interim City Manager for the City of Dallas; and the State Fair of Texas concerning the State Fair’s policy of excluding Texans lawfully carrying handguns from Fair Park. C.R. 271. Plaintiffs sought civil penalties, injunctive relief, and declaratory relief, with the State specifically pleading a claim under Texas Government Code section 411.209.

Trial Court: 298th Judicial District Court, Dallas County The Honorable Emily G. Tobolowsky

Disposition: The 298th District Court: (1) denied the Plaintiffs’ Motion for Summary Judgment; (2) granted the City of Dallas’s and Kimberly Bizor Tolbert’s Motion for Traditional and No-Evidence Summary Judgment, dismissing the Plaintiffs’ claims against the City and Tolbert with prejudice; (3) granted the State Fair of Texas’s Traditional and No- Evidence Motion for Summary Judgment, dismissing the Plaintiffs’ claims against the State Fair with prejudice; (4) sustained the State Fair’s evidentiary objections; and (5) extended equally to the State Fair the court’s ruling on the City Defendants’ Objections and Motion to Strike Plaintiffs’ Summary Judgment Evidence. C.R. 937-942. xi REFERENCES TO THE PARTIES Appellant: State of Texas, AND Maxx Juusola, Tracy Martin, and Alan Crider

Appellee: City of Dallas and Kimberly Tolbert in her official capacity as Interim City Manager for the City of Dallas, AND State Fair of Texas

REFERENCES TO THE RECORD The Clerk’s Record will be referenced as: C.R. [Bates page]. The Reporter’s Record will be referenced as: R.R. Vol. 1, [PDF page]: [line of transcript].

xii STATEMENT REGARDING ORAL ARGUMENT Oral argument should not be permitted, as it will not be helpful to

the Court. However, should this Court grant oral argument, Appellant

requests to be allowed to participate.

xiii ISSUE PRESENTED Texas Government Code section 411.209 prohibits the City of

Dallas from taking any action that states or implies that a license holder

who is carrying a handgun is prohibited from entering or remaining on a

premises or other place owned or leased by the City. In 2024, the State

Fair of Texas enacted a total ban of handguns from Fair Park, which it

leases from the City. As the City failed to restrain its lessee, was the

State entitled to summary judgment against the City and the State Fair

under section 411.209?

xiv STATEMENT OF FACTS

The 277 acres known as Fair Park, at 1200 2nd Ave. / 3809 Grand

Avenue, Dallas, Texas, is owned by Defendant-Appellee City of Dallas

and managed by Fair Park First, a domestic nonprofit corporation. There

are numerous public, city-owned buildings within Fair Park. C.R. 516,

540. In addition, there are various parking lots or parking areas, as well

as an esplanade, a 700-foot-long reflecting pool with fountains, public

sidewalks, and walkways within Fair Park. C.R. 540.

On May 21, 2003, the City of Dallas (in part through the office of

the City Manager) entered into a Fair Park Contract to lease Fair Park

to the Defendant-Appellee nonprofit corporation State Fair of Texas

(“SFOT”). C.R. 693, 607, 700, 723. SFOT operates the annual State Fair

of Texas exposition at Fair Park, which is open to the public for

attendance during the months of September and October of each year,

under the terms of its Fair Park Contract (a lease agreement) with the

City of Dallas. C.R. 518 at ¶1.09, 520-521 at ¶¶3.01 and 4.01, 525 at

¶6.07. Prior to 2024, the SFOT had permitted persons licensed to carry

handguns to enter Fair Park and attend the annual fair. C.R. 373.

STATE OF TEXAS’S BRIEF Page 1 of 52 Cause No. 15-25-00122-CV On August 8, 2024, the Office of the Attorney General began

receiving complaints, both oral and written, from Texans who were

licensed to carry handguns under Chapter 411 of the Texas Government

Code regarding an announced policy of the State Fair of Texas for the

2024 Fair. The policy prohibited license holders carrying handguns from

entering or remaining on the premises of Fair Park, which is owned by

the City of Dallas (“City”) and leased to the State Fair of Texas. The

complaints asserted that, through this policy, the City and SFOT were in

violation of Texas Government Code section 411.209.

The Attorney General initiated an investigation of the complaints

it received, and during this process noted that the State Fair of Texas,

within the frequently asked questions (FAQs) page on its website,

responded “No” to the question “Can Someone with a License to Carry

(LTC) bring their firearm to the Fair?” See Appendix 1 (SFOT Webpage).

On August 13, 2024, the Attorney General gave written notice to the chief

administrative officer of the City under Texas Government Code

section 411.209(f), which notice included a description of the violation of

section 411.209, stated the amount of the proposed penalty for the first

violation, and gave the City 15 days from receipt of the notice to cure the

STATE OF TEXAS’S BRIEF Page 2 of 52 Cause No. 15-25-00122-CV violation and thereby avoid the penalty. The Attorney General also

provided this notice to SFOT.

On August 28, 2024, the City provided its written response,

wherein the City asserted it had not violated Texas Government Code

section 411.209 and that any further inquiries from the Attorney General

should be directed to SFOT. The City and SFOT did not cure the violation

to avoid civil penalties.

Procedural History

On August 29, 2024, Plaintiff-Appellant, the State of Texas, filed

its Original Verified Petition in the 298th Judicial District Court of

Dallas County against the City; Kimberly Bizor Tolbert, in her official

capacity as the Interim City Manager for the City of Dallas; 1 and the

State Fair of Texas; in which the State asserted four claims against the

defendants and sought injunctive relief. On September 6, 2024,

Individual Plaintiffs Maxx Juusola, Tracy Martin, and Alan Crider joined

the State in the filing of the Plaintiffs’ First Amended Verified Petition.

1 Kimberly Bizor Tolbert has since been appointed Dallas City Manager as of January 22, 2025, after

being named Interim City Manager in May 2024. See Office of the City Manager, https://dallascityhall.com/government/citymanager/pages/City-Manager.aspx (last visited October 16, 2025.

STATE OF TEXAS’S BRIEF Page 3 of 52 Cause No. 15-25-00122-CV On September 19, 2024, the district court heard the Plaintiffs’

application for temporary injunctive relief and denied injunctive relief

against the Defendants.2 Following this, the Plaintiffs filed the operative

Third Amended Verified Petition on November 7, 2024. The parties filed

cross-motions for summary judgment and various responses. On

February 14, 2025, the District Court heard oral argument regarding the

cross-motions. On June 24, 2025, the district court issued several orders

concerning the cross-motions, issuing rulings therein (1) denying the

Plaintiffs’ Motion for Summary Judgment; (2) granting the City

Defendants’ Motion for Traditional and No-Evidence Summary

Judgment, dismissing Plaintiffs’ claims with prejudice against the City

Defendants; (3) granting SFOT’s Traditional and No-Evidence Motion for

Summary Judgment, dismissing with prejudice all of Plaintiffs’ claims

against SFOT; (4) sustaining evidentiary objections SFOT made in its

Motion; and (5) extending equally to SFOT the court’s ruling on the City-

Defendants’ Objections and Motion to Strike Plaintiffs’ Summary

2 Following this denial, on September 20, 2024, the State filed its Emergency Motion for Relief

Pending Appeal in this Court seeking temporary injunctive relief under Texas Rule of Appellate Procedure 29.3. On September 24, 2024, this Court denied the State’s request. Following this denial, on September 25, 2024, the State filed its Petition for Writ of Mandamus in the Supreme Court. The Supreme Court ultimately denied the State mandamus relief. See In re State, 698 S.W.3d 904 (Tex. 2024).

STATE OF TEXAS’S BRIEF Page 4 of 52 Cause No. 15-25-00122-CV Judgment Evidence. C.R. 937-942. However, the trial court’s orders did

not specify the exact grounds for granting such relief. It is from these

orders that the State has taken the instant appeal.

STANDARD OF REVIEW

“When both parties move for summary judgment and one motion is

granted and one denied, the appellate court should determine all

questions presented and render the judgment that the trial court should

have rendered.” Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex.

2002). “On cross-motions for summary judgment, each party bears the

burden of establishing that it is entitled to judgment as a matter of law.”

City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 259 (Tex.

2018). “[Courts] review a trial court's order granting summary judgment

de novo, taking ‘as true all evidence favorable to the nonmovant,’ and

‘indulg[ing] every reasonable inference and resolv[ing] any doubts in the

nonmovant's favor.’” Cmty. Health Sys. Prof. Servs. Corp. v. Hansen, 525

S.W.3d 671, 680 (Tex. 2017) (quoting Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). Where, as here, a trial court

does not specify the grounds on which it granted the motion for summary

STATE OF TEXAS’S BRIEF Page 5 of 52 Cause No. 15-25-00122-CV judgment, courts must affirm if any of the grounds asserted in the motion

are meritorious. Hansen, 525 S.W.3d at 680.

SUMMARY OF THE ARGUMENT

It is the public policy of this state that Texans who are licensed to

carry handguns under the Texas Government Code may do so on public

property unless prohibited by other law. This case concerns whether the

City can circumvent that public policy through its lease to SFOT, a

private entity.

The State is entitled to summary judgment against the City and

SFOT concerning the State’s claim under Texas Government Code

section 411.209, and this Court should reverse the judgment of the trial

court and render judgment for the State. Contrary to the City’s

arguments at the trial court, the State’s claim is neither moot nor barred

by the City’s governmental immunity, of which the State pled a valid

waiver. Further, the competent summary judgment evidence

conclusively establishes that the City violated section 411.209 through

its implied ratification of SFOT’s exclusionary policy as well as the City’s

unlawful grant of authority through the Fair Park Contract. For the

reasons discussed below, this Court should reverse.

STATE OF TEXAS’S BRIEF Page 6 of 52 Cause No. 15-25-00122-CV ARGUMENT

The State is entitled to judgment as a matter of law concerning its

claim under Texas Government Code section 411.209, and thus this

Court should reverse the judgment of the trial court and render judgment

for the State. “When both parties move for summary judgment and one

motion is granted and one denied, the appellate court should determine

all questions presented and render the judgment that the trial court

should have rendered.” Argonaut Ins. Co., 87 S.W.3d at 529. As the

competent summary judgment evidence establishes not only that the

trial court had jurisdiction over the State’s claim but further that the

Defendants violated Texas Government Code section 411.209, the Court

should reverse the order of the trial court and render judgment for the

State on its claim under that section.

I. The trial court had subject matter jurisdiction over the State’s claim under Texas Government Code section 411.209. During the summary judgment proceedings, the City advanced two

jurisdictional arguments relevant to the State’s claim under section

411.209: (1) that the State’s claim was moot as the policy at issue only

concerned the 2024 Fair; and (2) the State failed to comply with statutory

STATE OF TEXAS’S BRIEF Page 7 of 52 Cause No. 15-25-00122-CV prerequisites under section 411.209, and thus the City’s governmental

immunity precluded the State’s claim. C.R. 315, 319. Because the orders

of the trial court do not state the grounds upon which the trial court

granted summary judgment for the Defendants and denied the same to

the Plaintiffs, it is necessary to demonstrate that the trial court had

subject matter jurisdiction over the State’s claim under section 411.209

and, further, that the State had authority to bring its claim under section

411.209. See Hansen, 525 S.W.3d at 680 (Where a trial court does not

specify the grounds on which it granted the motion for summary

judgment, courts must affirm if any of the grounds asserted in the motion

are meritorious.). To the extent the trial court’s orders are premised on

an incorrect jurisdictional determination, this Court should reverse the

orders of the trial court and render a judgment consistent with a

determination that the trial court had subject matter jurisdiction.

a. The State’s claim was not moot.

The City, as a matter of law, is not entitled to judgment on mootness

grounds against the State’s section 411.209 claim. The City previously

asserted that the Plaintiffs’ claims generally were mooted when the 2024

Fair ended and the exclusionary policy at issue along with it. C.R. 315.

STATE OF TEXAS’S BRIEF Page 8 of 52 Cause No. 15-25-00122-CV For the reasons discussed below, this argument was incorrect because

the State’s claim was not moot, and it remains a justiciable controversy.

“The mootness doctrine—a constitutional limitation founded in the

separation of powers between the governmental branches—prohibits

courts from issuing advisory opinions.” ERCOT, Inc. v. Panda Power

Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 634 (Tex. 2021).

In Grassroots Leadership, Inc., the Supreme Court provides its mootness

analysis framework:

Assessing mootness generally proceeds in two steps. First, we ask if the case is moot on its face—that is, has the live controversy come to an end. See [Travelers Ins. Co v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010)]. If the answer is yes, we then ask if any “exception” to mootness applies. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). Given that the Constitution requires a live dispute between genuinely adverse parties, see Joachim, 315 S.W.3d at 865, this second step does not mean that the court may adjudicate a case lacking those features. It instead means that some cases that are moot on their face actually remain live—such as when collateral consequences flow from the resolution of a seemingly moot dispute, see, e.g., Carrillo v. State, 480 S.W.2d 612, 616–18 (Tex. 1972), or when circumstances causing the injury, despite having ended, are likely to recur as between the same parties yet evade review because the injury is of short duration, see, e.g., Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999) (applying the capable-of-repetition exception).

STATE OF TEXAS’S BRIEF Page 9 of 52 Cause No. 15-25-00122-CV Tex. Dep't of Fam. & Protective Servs. v. Grassroots Leadership, Inc., 717

S.W.3d 854, 874 (Tex. 2025). As will be shown below, the parties still have

concrete interests in the outcome of the litigation, and it cannot be said

that the State’s claim is moot.

First, there remains a live controversy between the parties

concerning the State’s claim against the City for civil penalties under

section 411.209(b). C.R. 861. While it is no longer possible for a court to

grant injunctive relief concerning the 2024 Fair, the State’s claim for civil

penalties survives, and the State has a concrete interest in a

determination of the City’s liability. See Grassroots Leadership, Inc., 717

S.W.3d at 877 (“. . . the issue that animated a lawsuit may become moot,

but if a statute entitles a litigant to fees based on the merit of the claim,

what seems like a moot case may remain live.”). Therefore, the State’s

claim is not moot.

Second, while the issue of SFOT’s exclusionary policy and the City’s

implicit ratification could possibly appear facially moot, the issue would

qualify as one that is capable of repetition, yet evading review. See id. at

883. To invoke the “capable of repetition, yet evading review” exception,

a plaintiff must prove that “(1) the challenged action was too short in STATE OF TEXAS’S BRIEF Page 10 of 52 Cause No. 15-25-00122-CV duration to be litigated fully before the action ceased or expired; and (2)

a reasonable expectation exists that the same complaining party will be

subjected to the same action again.” Id. at 884 (quoting Williams v. Lara,

52 S.W.3d 171, 184 (Tex. 2001)). Considering the first prong of the

exception, SFOT’s offending policy was too short in duration to be

litigated fully before the action ceased or expired as the 2024 Fair ran

from September 27, 2024, to October 20, 2024. C.R. 312. Given that it

took until November 20, 2024, for all the parties to submit their cross-

motions for summary judgment, this controversy could not have been

fully litigated within the duration of the 2024 Fair. Concerning the

second prong, the City has taken the consistent position that the Fair

Park Contract provided for a valid conveyance of the authority upon

which SFOT has relied. Thus, the State has had a reasonable expectation

that SFOT would continue its exclusionary policies into the future, which

now has been confirmed by the continuation of SFOT’s policy for the 2025

Fair.3 See Williams, 52 S.W.3d at 184 (stating a reasonable expectation

3 As the case at bar has been pending since August 29, 2024, two Fairs have come to pass during this

time. In the time since the district court made its rulings on the cross-motions for summary judgment, the State Fair has reaffirmed its exclusionary policy for the 2025 Fair. See Appendix 1. To the extent as is necessary to demonstrate this Court’s jurisdiction over this appeal and the lack of mootness regarding the State’s claim, pursuant to Texas Rule of Evidence 201(c)(2), the State requests that the Court take judicial notice of the State Fair’s policy for the 2025 Fair. “An appellate court may take

STATE OF TEXAS’S BRIEF Page 11 of 52 Cause No. 15-25-00122-CV exists that the same complaining party will be subjected to the same

action again). For these reasons, if the State’s claim appears facially

moot, the “capable of repetition, yet evading review” exception would be

applicable.

For all the reasons discussed above, the State’s claim remains a

justiciable controversy, and the Court should reverse the trial court’s

orders to the extent they are predicated on a determination that the

State’s claim was moot.

b. The State fulfilled all statutory prerequisites.

The State met all statutory prerequisites to suit provided by Texas

Government Code section 411.209. To the extent the trial court’s orders

were based on the City’s arguments that the State failed to satisfy

statutory prerequisites under section 411.209, and that the State’s claim,

therefore, was barred by the City’s governmental immunity, such a

determination would constitute reversible error. While the City argued

that the State failed to fulfill statutory prerequisites, these arguments do

judicial notice of a relevant fact that is either generally known within the trial court's territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Gill v. Hill, 688 S.W.3d 863, 871 (Tex. 2024) (emphasis added); see Tex. R. Evid. 201(b). The State Fair’s continuation of its exclusionary policy for the 2025 Fair is a fact that can be readily determined from a source whose accuracy cannot reasonably be questioned – namely, the State Fair’s own website where it published its original exclusionary policy for the 2024 Fair.

STATE OF TEXAS’S BRIEF Page 12 of 52 Cause No. 15-25-00122-CV not reflect the Legislature’s intent in section 411.209. For the reasons

discussed below, this Court should reverse the trial court’s orders to the

extent those orders are based on a determination that the State failed to

satisfy statutory prerequisites and that, therefore, its claim was barred.

i. The State has met all statutory prerequisites. Texas Government Code section 311.034 provides, inter alia,

“[s]tatutory prerequisites to a suit, including the provision of notice, are

jurisdictional requirements in all suits against a governmental entity.”

In analyzing the amendment which added this language to section

311.034, the Texas Supreme Court stated, “[t]his amendment evinces the

Legislature’s intent that all statutory prerequisites are now

jurisdictional requirements as to governmental entities and are properly

asserted in a plea to the jurisdiction.” Prairie View A & M Univ. v.

Chatha, 381 S.W.3d 500, 511 (Tex. 2012). The opinion provides a

framework for determining when a statute provides statutory,

jurisdictional prerequisite:

The term “statutory prerequisite” has three components. First, it is of obvious mention that in order to fall within the ambit of section 311.034, a prerequisite must be found in the relevant statutory language. See [Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 542 (Tex.2010)] (recognizing that although the

STATE OF TEXAS’S BRIEF Page 13 of 52 Cause No. 15-25-00122-CV statute called for pre-suit notice, it also provided that formal notice is not required when the government has obtained timely actual notice, and thus because the government had actual notice, the failure to provide formal notice did not act as a statutory prerequisite to suit). Second, the prerequisite must be a requirement. And finally, the term “pre” indicates the requirement must be met before the lawsuit is filed. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex. 2011) (holding that post-suit notice requirement was not jurisdictional, even in light of section 311.034, because post- suit notice is not a “prerequisite” to suit). Thus, according to the plain language of section 311.034, the term “statutory prerequisite” refers to statutory provisions that are mandatory and must be accomplished prior to filing suit. Id. at 511–12. For the reasons discussed below, the State met all

statutory prerequisites mandated by section 411.209, and this Court

should reverse the trial court’s orders to the extent those orders are

inconsistent with that fact.

The State met the required statutory prerequisites required of the

Attorney General by Texas Government Code section 411.209(f).

Subsection (f) provides the applicable conditions precedent relevant to

the Attorney General:

(f) Before a suit may be brought against a state agency or a political subdivision of the state for a violation of Subsection (a), the attorney general must investigate the complaint to determine whether legal action is warranted. If legal action is warranted, the attorney general must give the chief administrative officer of the agency or political subdivision charged with the violation a written notice that:

STATE OF TEXAS’S BRIEF Page 14 of 52 Cause No. 15-25-00122-CV (1) describes the violation; (2) states the amount of the proposed penalty for the violation; and (3) gives the agency or political subdivision 15 days from receipt of the notice to cure the violation to avoid the penalty, unless the agency or political subdivision was found liable by a court for previously violating Subsection (a).

Tex. Gov’t Code § 411.209(f) (emphases added). “Must” creates or

recognizes a condition precedent. Tex. Gov’t Code § 311.016(3). “Must”

appears twice in subsection (f): first, it indicates the Attorney General is

required to investigate complaints it receives; and second, it indicates the

Attorney General must provide notice to the agency or subdivision in

compliance with the subsection before a cause of action under section

411.209 may be filed.

The Attorney General met these two explicit conditions precedent

prior to bringing suit against the City. In 2024, the Attorney General

received multiple verbal and written complaints from residents or

persons licensed to carry a handgun alleging violations of section 411.209

by the City and/or the State Fair at Fair Park. C.R. 275-276 at ¶¶ 5.1 and

5.2. The written complaints provided the Attorney General with notice

that described the Fair Park location and links to the State Fair’s

STATE OF TEXAS’S BRIEF Page 15 of 52 Cause No. 15-25-00122-CV webpage regarding the published prohibitive policy, showing that the

City of Dallas was in violation of section 411.209(a). C.R. 92-96, 466-468,

480-481, 499-500. The assigned investigator also received complaints

from staff within the office of the Attorney General. C.R. 276 at ¶ 5.2. The

Attorney General investigated those complaints, as required by

subsection (f). C.R. 276 at ¶ 5.3 . The Attorney General already knew that

the City of Dallas owned or leased Fair Park. C.R. 437, 440. The

investigator reviewed the complaints and attached photos, reviewed the

State Fair of Texas webpages, and believed that the City of Dallas was

communicating, stating, or implying that license holders were prohibited

from entering or remaining on Fair Park premises (which are owned or

leased by the City of Dallas) in violation of section 411.209(a). C.R. 276

at ¶ 5.3, 458-459, 472. The Attorney General concluded legal action was

warranted and on August 13, 2024, sent the administrative head of the

City written notice of the violation in compliance with subsection

411.209(f). C.R. 104. Fifteen days later, on August 28, 2024, through the

city attorney, the City responded in writing asserting there was no

411.209 violation. C.R. 124. Thereafter, the Attorney General, pursuant

to 411.209 subsection (g), initiated the instant litigation. C.R. 14

STATE OF TEXAS’S BRIEF Page 16 of 52 Cause No. 15-25-00122-CV (Plaintiffs’ Original Verified Pet.). The Attorney General thus complied

with the required conditions precedent as imposed upon him by the

Legislature in subsections (f) and (g), and thus the State has a cause of

action against the City. The City’s arguments are erroneous for the

reasons discussed below.

ii. Texas Government Code section 411.209 never qualifies only certain complaints as “actionable.” In its Motion for summary judgment, the City argued that “the

Attorney General had no authority to file this suit, and this Court has no

jurisdiction to hear it.” C.R. 320. Based on its construction of section

411.209, the City argued that the Attorney General could only investigate

“actionable” complaints if these requirements were met:

(1) ‘Written notice’ from an individual Texan to the City of the alleged Section 411.209 (a) Violation, then (2) three-business-day cure period for the City, then (3) That individual filing complaint with the Attorney General, which ‘must include evidence of the Violation and copy of the written notice provided to the [City],’ then (4) An investigation by the Attorney General ‘determin[ing] whether legal action is warranted,’ then (5) Written notice from the Attorney General to the City, then (6) 15—day cure period, then and only then (7) The Attorney General may file suit.

STATE OF TEXAS’S BRIEF Page 17 of 52 Cause No. 15-25-00122-CV See C.R. 319 (City’s Motion for Summary Judgment) referring to Tex.

Gov’t Code Section 411.209 (d) – (g) (emphasis removed). The City

asserted that failure to comply with these steps was a jurisdictional

defect.

Implicit within this argument is the assertion that the Attorney

General only accrues a valid cause of action when he receives a written

“actionable complaint” from a complaining citizen who has properly

availed himself of Texas Government Code section 411.209(d). The City

essentially argued that alleged defects in a citizen complainant’s

compliance with the statute foreclosed the Attorney General’s authority

to bring a suit under section 411.209, which ultimately went to the

jurisdiction of the trial court. However, for the reasons discussed below,

the City’s arguments are not borne out in the text of section 411.209.

As discussed above, and contrary to the City’s argument, section

411.209(f) mandates that the Attorney General investigate “the

complaint” before filing suit but does not qualify what complaints the

Attorney General may investigate. The only prerequisite provided under

subsection (d) is what a Texas resident or license holder must follow prior

to submitting a written complaint to the Attorney General. This provision

STATE OF TEXAS’S BRIEF Page 18 of 52 Cause No. 15-25-00122-CV does nothing to limit the Attorney General’s authority to investigate an

oral complaint from a resident or license holder nor does it limit the

Attorney General’s authority to investigate complaints received from

staff within the Office of the Attorney General. It is subsections (f) and

(g) that address the Attorney General’s role in bringing suit for violations

of subsection (a). Neither subsection (f) nor (g) limits the authority of the

Attorney General to bring suit for written complaints that residents and

license holders submit in compliance with subsection (d). Subsections (f)

and (g) merely require that the Attorney General investigate a complaint,

give 15 days’ written notice and time to cure, and determine if legal action

is warranted. That is all. As the Supreme Court has noted, a court’s

“objective in construing a statute is to give effect to the Legislature's

intent, which requires it to first look to the statute's plain language.”

Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). “If that

language is unambiguous, [courts] interpret the statute according to its

plain meaning.” Id. This language is quite clear in these simple

requirements. However, the City creates a complexity, arguing that the

Legislature imposed a dichotomy, sub silentio, between “actionable”

written complaints. This is a qualification not found in subsection (f),

STATE OF TEXAS’S BRIEF Page 19 of 52 Cause No. 15-25-00122-CV which apparently the City defines by subsection (d), and the complaints

the Attorney General received that predicated this case. Ultimately, the

Legislature had every opportunity to restrict the complaints the Attorney

General could investigate to bring a claim, and it chose not to do so. See

Hogan v. Zoanni, 627 S.W.3d 163, 169 (Tex. 2021) (“Moreover, we

‘presume the Legislature chose statutory language deliberately and

purposefully,’” citing Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430

S.W.3d 384, 390 (Tex. 2014), and that it likewise excluded language

deliberately and purposefully, citing Cameron v. Terrell & Garrett, Inc.,

618 S.W.2d 535, 540 (Tex. 1981).”). Thus, the City’s construction was

fundamentally extratextual and should have been rejected by the trial

court.

As the Attorney General properly fulfilled all statutory

prerequisites section 411.209 required, a valid cause of action accrued

under that section. To the extent the trial court’s orders were based on a

determination that it lacked jurisdiction for the State’s failure to comply

with statutory prerequisites, this Court should reverse and render

judgment consistent with the Court having subject matter jurisdiction

over the State’s claim.

STATE OF TEXAS’S BRIEF Page 20 of 52 Cause No. 15-25-00122-CV c. The State pleaded a waiver of the City’s governmental immunity. As the State complied with all statutory prerequisites, the State

pleaded an adequate waiver of the City’s governmental immunity under

Texas Government Code section 411.209(h). The State brought its section

411.209 claim against the City, a political subdivision of this state, for

the City’s violation of subsection (a) of that section. C.R. 275-280 at ¶ 5.1–

5.13 (Plaintiffs’ Third Amended Petition). Subsection (h) provides that

“sovereign immunity to suit is waived and abolished to the extent of

liability created by this section.” Tex. Gov’t Code § 411.209(h). For the

reasons discussed above responding to the City’s argument about section

411.209’s statutory prerequisites, the State did plead a valid waiver of

the City’s immunity. To the extent the trial court’s orders were premised

on a determination that the trial court lacked subject matter jurisdiction,

either due to mootness or the City’s sovereign immunity, or both, such a

determination was reversible error that this Court should reverse and

render judgment consistent with the trial court having subject matter

jurisdiction over the State’s claim.

STATE OF TEXAS’S BRIEF Page 21 of 52 Cause No. 15-25-00122-CV II. The Court should reverse and render summary judgment for the State.

The State is entitled to summary judgment on the issue of whether

the City and SFOT violated Texas Government Code section 411.209. To

prevail on a traditional motion for summary judgment, the movant must

“show that no genuine issue of material fact exists and that it is entitled

to judgment as a matter of law.” See Provident Life, 128 S.W.3d at 216

(citations omitted); Tex. R. Civ. P. 166a(c). An issue is conclusively

established “if reasonable minds could not differ about the conclusion to

be drawn from the facts in the record.” Childs v. Haussecker, 974 S.W.2d

31, 44 (Tex. 1998). Based on the competent summary judgment evidence,

there is no genuine issue of material fact that the Defendants violated

section 411.209, and thus the State is entitled to summary judgment on

its claim.

a. The City violated section 411.209. The State is entitled to summary judgment on the issue of the City’s

liability under section 411.209 because the City has violated that law

through its ratification of SFOT’s exclusionary policy.

STATE OF TEXAS’S BRIEF Page 22 of 52 Cause No. 15-25-00122-CV i. Section 411.209 applies to the City and Fair Park. The City is a political subdivision covered by section 411.209;

therefore, section 411.209 applies to the City and its property. Section

411.209(a) makes clear that the statute applies to “a state agency or a

political subdivision of the state.” Tex. Gov’t Code § 411.209(a). Cities are

political subdivisions of the State. Reata Constr. Corp. v. City of Dallas,

197 S.W.3d 371, 374 (Tex. 2006). Therefore, section 411.209 applies to

the City. Subsection (a) further specifies that its protections apply to

“premises or other place owned or leased by the governmental entity.” Tex.

Gov’t Code § 411.209(a) (emphases added). Statutory interpretation must

follow the plain, contemporaneous meaning of the law’s language. Bexar

Appraisal Dist. v. Johnson, 691 S.W.3d 844, 847 (Tex. 2024). If the

statute is clear and unambiguous, courts must read the language

according to its common meaning without resort to rules of construction

or extrinsic aids. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 46 (Tex.

2015). Therefore, section 411.209 applies to property that the City owns.

Furthermore, subsection (a) includes no caveats to its application

pertaining to property that the governmental entity leases to a third

party. “We do not read words into a statute to make it what we consider

STATE OF TEXAS’S BRIEF Page 23 of 52 Cause No. 15-25-00122-CV to be more reasonable, rather we may do so only to prevent an absurd

result.” Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014).

As the Texas Supreme Court noted in its decision in Jaster v. Comet II

Constr., Inc., “[t]he bar for reworking the words our Legislature passed

into law is high, and should be. The absurdity safety valve is reserved for

truly exceptional cases, and mere oddity does not equal absurdity.” Jaster

v. Comet II Constr., Inc., 438 S.W.3d 556, 569 (Tex. 2014) (quoting Combs

v. Health Care Serv. Corp., 401 S.W.3d 623, 630 (Tex. 2013) (internal

quotations omitted). Section 411.209’s application to government

properties leased to private entities is not an exceptional case and, in fact,

fits comfortably into the Legislature’s continued commitment to the

expansion of protections toward Texans who seek to lawfully bear arms,

licensed or otherwise. 4 Thus, the plain language of subsection (a)

4 Since the 1997 passage of Penal Code section 30.06 specifying the narrow grounds on which licensed

possession of a concealed firearm constitutes trespass, the years that followed have seen a steady expansion of eligibility for licensure. Act of May 23, 2005, 79th Leg., R.S., ch. 486, § 1, sec. 411.172, 2005 Tex. Gen. Laws 1347, 1347 (adding Government Code subsections 411.172(g) and 411.172(h)); Act of May 18, 2021, 87th Leg., R.S., ch. 203, §§ 1–2, sec. 411.172, 2021 Tex. Gen. Laws 447, 447–48 (adding Government Code subsection 411.172(i) and section 411.1735), while the Penal Code’s geographic restrictions on lawful possession shrank, see, e.g., Act of May 31, 2003, 78th Leg., R.S. ch. 1178, §§ 1-2, sec. 30.05, 2003 Tex. Gen. Laws 3364, 3364 (narrowing the scope of firearm-related trespass through Penal Code subsections 30.05(f) and 30.06(e)); Act of May 23, 2007, 80th Leg., R.S., ch. 693, § 1, sec. 46.02, 2007 Tex. Gen. Laws 1318, 1318 (narrowing the scope of unlawful possession under Penal Code subsection 46.02(a)); Act of May 24, 2007, 80th Leg., ch. 1214, § 1, sec. 46.15, 2007 Tex. Gen. Laws 4100, 4100–01 (narrowing the scope of Penal Code subsection 46.15(a)); Act of May 25, 2007, 80th Leg., ch. 1222, § 6, sec. 46.15, 2007 Tex. Gen. Laws 4117, 4118–19 (narrowing the scope of Penal Code subsection 46.15(a)); Act of May 25, 2011, 82d Leg., R.S., ch. 679, § 1, sec. 46.02, 2011 Tex. Gen. Laws 1640, 1640–41 (narrowing the scope of unlawful possession under Penal Code

STATE OF TEXAS’S BRIEF Page 24 of 52 Cause No. 15-25-00122-CV necessitates the application of it to all premises owned by a governmental

entity, including those leased to a third-party. Based on the plain

language of subsection (a), section 411.209 applies to Fair Park, as it is

owned by the City. See C.R. 102, 380.

ii. The City may not take any action that states or implies a license holder carrying a handgun is prohibited from Fair Park. As section 411.209 applies to the City and Fair Park, the City may

not take any action that states or implies that a license holder who is

carrying a handgun under the authority of subchapter H, Chapter 411 of

the Government Code is prohibited from entering or remaining on the

premises of Fair Park except for specific portions of Fair Park where

license holders are prohibited from carrying a handgun by section 46.03,

Penal Code, or other law. Key then to determining whether the City has

subsection 46.02(a)); Act of May 31, 2015, 84th Leg., R.S., ch. 438, § 1, sec. 411.2031, 2015 Tex. Gen. Laws 1723, 1723–24 (adding Government Code subsection 411.2031, which allowed licensed, concealed carry in public and private institutions of higher education); Act of May 26, 2017, 85th Leg., R.S., ch. 1143, §§ 8–9, secs. 30.06, 30.07, 2017 Tex. Gen. Laws 4355, 4357 (adding Penal Code subsections 30.06(f) and 30.07(g)); Act of May 2, 2019, 86th Leg., R.S., ch. 39, §§ 1–3, secs. 30.05, 30.06, 30.07, 2019 Tex. Gen. Laws 82, 82–85 (adding new defenses to Penal Code sections 30.05, 30.06, and 30.07); Act of May 28, 2021, 87th Leg., R.S., ch. 1008, §§ 3–6, secs. 2155.1025, 30.06, 30.07, 2021 Tex. Gen. Laws 2679, 2679–80 (adding new defenses to Penal Code sections 30.05, 30.06, 30.07, Occupations Code section 2155.1025). The Legislature also expanded the means by which license holders could lawfully carry firearms. See Act of May 29, 2015, 84th Leg., R.S., ch. 437, §§ 16–28, 47, secs. 411, 46.035, 2015 Tex. Gen. Laws 1706, 1710–14, 1719 (amending Government Code chapter 411, subchapter H, and amending the predecessor to Penal Code section 46.035); Act of May 20, 2021, 87th Leg., R.S., ch. 481, §§ 1–5, secs. 30.05, 30.07, 46.02, 46.035, 46.15, 2021 Tex. Gen. Laws 968, 968–70 (amending holstering requirements under Penal Code sections 30.05(f), 30.07(f), 46.02(a)(1), 46.035, 46.15(b)); see also, e.g., State v. Ross, 573 S.W.3d 817, 825 (Tex. Crim. App. 2019).

STATE OF TEXAS’S BRIEF Page 25 of 52 Cause No. 15-25-00122-CV acted in violation of section 411.209 is the meaning of the word “any” in

that section.

In 2019, the Legislature amended section 411.209 to broaden its

scope and liability due to recalcitrant political subdivisions throughout

the state. 5 Integral to these amendments was the inclusion of the word

“any” in section 411.209. Courts have recognized that the word “‘any’ has

an expansive meaning.” Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d

553, 562 (Tex. 2015). Indeed, “Texas courts defining ‘any’ have generally

interpreted it to mean ‘every,’” which aligns with “[t]he more

conventional grammatical meaning of the term.” Kirby Lake Dev., Ltd. v.

Clear Lake City Water Auth., 320 S.W.3d 829, 840–41 (Tex. 2010). When

considering these authorities, it is apparent that the City is liable for any

action it takes that even only implies that a license holder carrying a

5 Certain political subdivisions attempted to restrict the breadth of Texans’ firearm rights. See S. RSCH.

CTR., BILL ANALYSIS, Tex. S.B. 273, 84th Leg., R.S. (2015) (discussing “uncooperative governments [that] post signs to ban Texas citizens from carrying where it is legal”). The Legislature responded by prohibiting political subdivisions from frustrating the democratic premium placed on licensed possession, Act of May 23, 2015, 84th Leg., R.S., ch. 593, § 1, sec. 411.209, 2015 Tex. Gen. Laws 2000, 2000–01 (adding Government Code section 411.209)—resulting in categorical prohibition on “any action” that “states or implies” otherwise and subjecting violators to daily civil penalties, mandamus, and other equitable relief. Act of May 21, 2019, 86th Leg., R.S., ch. 784, § 1, sec. 411.209, 2019 Tex. Gen. Laws 2229, 2229–30 (amending Government Code section 411.209). To be sure, “any action[] includ[es] . . . the provision of notice . . . that a license holder who is carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises or other place owned . . . by the governmental entity,” so long as license holders are not “prohibited from carrying . . . by section 46.03, Penal Code, or other law.” Tex. Gov’t Code § 411.209(a). Notably, a political subdivision that transgresses this command—either expressly or by implication—is subject to daily civil penalties, mandamus, and other equitable relief. Id. § 411.209(b)–(c), (g).

STATE OF TEXAS’S BRIEF Page 26 of 52 Cause No. 15-25-00122-CV handgun is prohibited from entering or remaining on the premises of Fair

Park. As discussed below, the City has violated this broad prohibition.

iii. The City has taken action through its implicit ratification of SFOT’s policy. As noted above, the City’s legal position is that the City has not

“acted” in any way such that it could be liable under section 411.209; and

rather, that only SFOT, its lessee, has “acted.” See C.R. 757, 138. This is

not accurate. The City has implicitly acted to exclude license holders

carrying handguns from Fair Park through its tacit ratification of SFOT’s

exclusionary policy. “Ratification is the adoption or confirmation by a

person with knowledge of all material facts of a prior act which did not

then legally bind him and which he had the right to repudiate.” BPX

Operating Co. v. Strickhausen, 629 S.W.3d 189, 196 (Tex. 2021)

(quotations omitted). “[W]hether one party has ratified changes to a

contract is also a matter of intent.” Id. (citing Smith v. Estill, 87 Tex. 264,

271, 28 S.W. 801, 805 (1894) (“To constitute a ratification, it must appear

that the acts relied upon were done with a full knowledge of all the facts,

and with intent to adopt the unauthorized act in question.”)).

STATE OF TEXAS’S BRIEF Page 27 of 52 Cause No. 15-25-00122-CV When considering the record, the City’s leasehold provision of

authority to SFOT provides the basis of SFOT’s exclusionary policy. The

City entered into the Fair Park Contract with SFOT, granting SFOT

certain property rights over Fair Park. C.R. 522. The Fair Park Contract

is silent regarding license holders carrying handguns on the premises of

Fair Park, but it does contain a provision stating that it shall be

construed according to the laws of Texas. C.R. 535. Before it began selling

tickets for the 2024 Fair, SFOT previously permitted license holders

carrying handguns to enter and remain on the premises of Fair Park.

C.R. 373. Then, in the run up to the 2024 State Fair, SFOT began relying

on the same Fair Park Contract as the basis for effectuating its ban of all

handguns at Fair Park. C.R. 338. It is the City’s position that SFOT may

legally effectuate its policy as the lessee of Fair Park. C.R. 103.

The City has never attempted to clarify with SFOT that the Fair

Park Contract does not allow it to institute its ban at issue. Instead, the

City maintains that its lessee has acted completely within the terms of

the Fair Park Contract. C.R. 390 (“SFOT occupies and controls the Fair

Park grounds and decides who is admitted into or prohibited from

entering Fair Park. In other words, during the Fair Operations Period,

STATE OF TEXAS’S BRIEF Page 28 of 52 Cause No. 15-25-00122-CV SFOT – not the City – controls who is allowed entry into Fair Park and

what they can bring with them.”). As the City has affirmed SFOT’s ability

to exclude license holders carrying handguns from Fair Park and has

refused to take action to restrain SFOT, it is clear that the City has

ratified SFOT’s construction of the Fair Park Contract and SFOT’s

understanding of the rights the City conveyed to it.

As discussed above, subsection 411.209(a)’s broad liability for the

City can be triggered by any action taken by the City that states or

implies that license holders carrying handguns may be excluded from

Fair Park where not otherwise required by law. Through the City’s

implicit ratification, the City has taken an action that implies that license

holders carrying handguns under the authority of the Texas Government

Code are prohibited from entering or remaining on the premises of City

property, thus violating section 411.209. To conclude otherwise would

create an indifferent-lessor exception to the Government Code’s broad

mandate, cf., e.g., Phillips v. State, 161 S.W.3d 511, 514-515 (Tex. Crim.

App. 2005) (rejecting claim that “any bar owner [could] thwart any

undercover operation . . . merely by posting a ‘no trespassing by persons

under 21’ sign” where doing so would render associated statutory

STATE OF TEXAS’S BRIEF Page 29 of 52 Cause No. 15-25-00122-CV provisions superfluous), and would frustrate the general principle that

the government cannot shield itself from liability by enlisting a private

party to act as its instrument or agent, cf., e.g., CPS Energy v. ERCOT,

671 S.W.3d 605, 626 n.170 (Tex. 2023); Republican Party of Tex. v. Dietz,

940 S.W.2d 86, 91 (Tex. 1997); Brentwood Acad. v. Tennessee Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 295–96 (2001) (discussing fair

attribution through “overt or covert” encouragement, delegations of

“public functions,” or where “government is ‘entwined in [the

intermediary’s] management or control’”).

Therefore, the City has acted to exclude license holders carrying

handguns in Fair Park in contravention of section 411.209, effectively

circumventing the public policy established by the Legislature in that

statute. The State is thus entitled to summary judgment on the issue of

the City’s liability under section 411.209.

iv. The City has also taken action through the Fair Park Contract. Aside from the City’s implied ratification of SFOT’s ban, the City

has also acted by implication to exclude license holders carrying

handguns from Fair Park through its unlawful grant of authority to

prohibit license holders carrying guns through the Fair Park Contract.

STATE OF TEXAS’S BRIEF Page 30 of 52 Cause No. 15-25-00122-CV As established above, the City may not take any action that states

or implies that license holders carrying handguns are excluded from Fair

Park. Tex. Gov’t Code § 411.209. Yet, even so, the City has explicitly or

implicitly acted through its provision of leasehold rights to SFOT to the

extent SFOT is relying on the Fair Park Contract to enact its policy. The

City entered into the Fair Park Contract with SFOT, granting SFOT

certain property rights over Fair Park. See C.R. 522 at “5.01 Use by the

State Fair.” Now, in turn, SFOT is unlawfully relying on the Fair Park

Contract as the basis for effectuating its ban of all handguns at Fair Park,

contrary to section 411.209. C.R. 338.

SFOT’s attempt to evade the requirements of section 411.209 and

to exclude license holders carrying handguns from Fair Park, something

the City is forbidden from doing under section 411.209, has no legally

supportable basis. SFOT may not exclude license holders carrying

handguns from Fair Park because SFOT’s rights as a lessee under the

Fair Park Contract are limited by the same statutory constraints placed

on the City by section 411.209. The City, SFOT’s lessor, could not grant

greater rights to SFOT than the rights the City itself held. Because the

STATE OF TEXAS’S BRIEF Page 31 of 52 Cause No. 15-25-00122-CV City had no right to exclude license holders, it had no such rights to

convey to SFOT.

Under Texas property law, a deed can pass no greater estate than

that owned by the grantor. Cockrell v. Tex. Gulf Sulphur Co., 157 Tex.

10, 299 S.W.2d 672, 675 (Tex. 1956). In addition, a lease cannot grant a

lessee a greater estate or right than is owned by the lessor. Geary v. Two

Bow Ranch Ltd. Partnership, No. 04-18-00610-CV, 2020 WL 354763, at

*25 (Tex. App.—San Antonio Jan. 22, 2020, pet. denied) (mem. op.). The

City was prohibited from excluding license holders carrying handguns

under section 411.209. The City’s estate and rights did not include the

right to prohibit or exclude under this section, so the City lacked those

rights to convey to SFOT. SFOT’s claim that its rights are broader than

those of its lessor and include the right to prohibit or exclude fails to

recognize that the Fair Park Contract could not have conveyed such

rights.

A property owner's rights are often described as a bundle of rights,

or a bundle of sticks. Lightning Oil Co. v. Anadarko E&P Onshore, LLC,

520 S.W.3d 39, 48 (Tex. 2017). “And ‘an owner of realty has the right to

exclude all others from the use of the property, one of the most essential

STATE OF TEXAS’S BRIEF Page 32 of 52 Cause No. 15-25-00122-CV sticks in the bundle of rights that are commonly characterized as

property.’” Id. (quoting Severance v. Patterson, 370 S.W.3d 705, 709 (Tex.

2012) (quoting Dolan v. City of Tigard, 512 U.S. 374, 384, 393 (1994)).

But the right to exclude is both dictated and circumscribed by the scope

of an owner's rights in the property, Lightning Oil Co., 520 S.W.3d at 49,

and by applicable state law. “[P]roperty does not refer to a thing but

rather to the rights between a person and a thing.” Lightning Oil Co., 520

S.W.3d at 49 (quoting Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d

377, 382–83 (Tex. 2012)); Jim Olive Photography v. Univ. of Houston, 624

S.W.3d 764, 773 (Tex. 2021). The Texas Supreme Court recognizes these

limitations in many areas:

Limitations on property rights may be by consent of the owner, state condemnation with payment of just compensation, appropriate government action under its police power (such as addressing nuisances), sufficient proof of use by persons other than the owner that creates an estoppel-based right to continuing use (easements) or pre-existing limitations in the rights of real property owners that have existed “since time immemorial. . . .”

Severance, 370 S.W.3d at 710. 6

6 The Texas Legislature has enacted various statutes governing the leasing and application of

government land to entities in specific circumstances. Generally, the School Land Board and Land Commissioner hold the authority necessary to manage the lease of public-school land, but this authority is subject to restrictions and limitations imposed by the Texas Constitution and state laws. See Tex. Nat. Res. Code § 51.012. Similarly, other government entities like the Texas Parks and Wildlife Department and the Texas Department of Criminal Justice are granted land leases under specific circumstances. See Tex. Parks & Wild. Code § 12.008(a), Tex. Nat. Res. Code § 34.011. Another

STATE OF TEXAS’S BRIEF Page 33 of 52 Cause No. 15-25-00122-CV Here, the limitation on the City’s right to prohibit or exclude

circumscribes the estate the City possesses and can convey. Thus, SFOT

can only take the rights that the City possesses and can convey.

The Legislature has circumscribed the City’s rights over its

property through section 411.209. Initially, “[a] home rule city derives its

power not from the Legislature but from Article XI, Section 5 of the Texas

Constitution . . . .[I]t is necessary to look to the acts of the legislature not

for grants of power to such cities but only for limitations on their powers.”

Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (quoting Lower

Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex.

1975)) (internal citations omitted). “While a home rule city thus has all

the powers of the state not inconsistent with the Constitution, the

general laws, or the city's charter, Tex. Const. art. XI, § 5, these broad

powers may be limited by statute when the Legislature's intention to do

so appears with unmistakable clarity.” Proctor, 972 S.W.2d at 733 (citing,

e.g., Dallas Merchant's and Concessionaire's Ass’n v. City of Dallas, 852

S.W.2d 489, 490–491 (Tex. 1993); City of Sweetwater v. Geron, 380 S.W.2d

common restriction involves leasing land within 2,500 feet of a military base, which requires the Land Commissioner or a designee to consult with military authorities to ensure the lease does not adversely affect the base's mission. See Tex. Nat. Res. Code § 51.011(b).

STATE OF TEXAS’S BRIEF Page 34 of 52 Cause No. 15-25-00122-CV 550, 552 (Tex. 1964). The legislature retains ultimate authority over the

policies governing leases of public lands. See Fitzgerald v. State, 9 S.W.

150, 151–53 (Tex. 1888). Section 411.209 sets out the Legislature’s intent

with “unmistakable clarity” to restrict the property rights of political

subdivisions, which includes municipalities like the City, to the extent it

concerns the rights of those licensed to carry.7 Under section 411.209, the

City does not have the right to exclude license holders carrying handguns

from its property generally. Consequently, the City cannot convey such a

right to its lessee, SFOT, and any attempt to convey such a right would

be unlawful and void. See Extraction Res., Inc. v. Freeman, 555 S.W.2d

156, 159 (Tex. App.—El Paso 1977, writ ref'd n.r.e.) (“It is elementary

that one cannot convey what he does not own.”) (subsequently citing

Cockrell v. Texas Gulf Sulfur Co., 157 Tex. 10, 299 S.W.2d 672 (1956)). 8

Furthermore, the Supreme Court has recognized that parties

cannot circumvent public policy established by the Legislature

concerning restrictions on property usage. In Philadelphia Indemnity

Ins. Co. v. White, the Court affirmed that the Legislature has the power

7 See supra note 5 and accompanying text. 8 “We take it that no authority need be cited for the proposition that a deed can pass no greater estate

than that owned by the grantor. Likewise it is fundamental that a warranty deed will pass all of the estate owned by the grantor at the time of the conveyance unless there are reservations or exceptions which reduce the estate conveyed.” Cockrell, 157 Tex. 10, 299 S.W.2d at 672.

STATE OF TEXAS’S BRIEF Page 35 of 52 Cause No. 15-25-00122-CV to create laws that limit, expand, or modify lease agreements,

particularly when such limitations serve public policy and align with

constitutional principles. See Philadelphia Indemnity Ins. Co. v. White,

490 S.W.3d 468, 475 (Tex. 2016). The Court noted that where the

Property Code imposes specific limitations in the leasehold-repair

context—restrictions rooted in public policy—it prevents parties from

creating lease terms that circumvent the statute. Id. This reflects a

broader judicial consensus that contractual freedoms are not absolute

and can be constrained by legislative action to ensure compliance with

statutory and public policy mandates. The Court’s decision aligns with

similar rulings affirming the supremacy of public policy in contracting

contexts. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129 (Tex.

2004) (recognizing that parties may contract freely as long as the

agreement does not violate the law or public policy); see also Crowell v.

Hous. Auth. of City of Dallas, 495 S.W.2d 887, 889 (Tex. 1973)

(invalidating a lease clause on public policy grounds because it purported

to release the Dallas Housing Authority from liability for negligence in

the performance of its duty of public service); Goodstein v. Huffman, 222

S.W.2d 259, 260 (Tex. App.—Dallas 1949, writ ref'd) (acknowledging the

STATE OF TEXAS’S BRIEF Page 36 of 52 Cause No. 15-25-00122-CV right of parties to contract regarding property, provided the contract does

not contravene public policy and is not illegal); In re Kasschau, 11 S.W.3d

305, 312 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (holding

that “a contract to do a thing which cannot be performed without

violation of the law” violates public policy and is void). The right to create

and provide terms governing the leasing of public lands is a power over

public policy provided to the Legislature. Fitzgerald, 9 S.W. 150 (Tex.

1888).

To the extent the Fair Park Contract is construed to provide a basis

for SFOT’s exclusion of license holders carrying handguns in Fair Park,

the City has implicitly acted to exclude license holders from public

property. The Fair Park Contract contains a provision stating that it was

made subject to all applicable state laws and would be governed by and

construed according to the laws of Texas. C.R. 535 at 18.01. However, the

City has never attempted to clarify with SFOT that the Fair Park

Contract does not allow it to institute its ban at issue. Instead, the City

maintains that its lessee acts completely within the terms of the Fair

Park Contract. C.R. 103 (“SFOT runs the Fair at Fair Park pursuant to

a written lease and contract agreement.”). Subsection 411.209(a)’s broad

STATE OF TEXAS’S BRIEF Page 37 of 52 Cause No. 15-25-00122-CV liability for the City can be triggered by any action taken by the City that

states or implies that license holders carrying handguns may be excluded

from City property where not otherwise required by law.

The City’s lease is the explicit or implicit authorization and

antecedent to SFOT’s exclusion of license holders carrying handguns in

Fair Park, where license holders are plainly afforded the right to carry

and enter under subsection (a). Without the Fair Park Contract, through

which the City acted to convey some of its rights in Fair Park, SFOT could

not effectuate its ban, and license-holding Texans would be free to

lawfully carry their handguns in Fair Park. Therefore, the City has acted

to exclude license holders carrying handguns in Fair Park in

contravention of section 411.209, effectively circumventing the public

policy established by the Legislature in that statute.

The City, further, has continued to act by maintaining its lease

agreement with SFOT even after the State notified the City that license

holders carrying handguns were being excluded from Fair Park in

violation of section 411.209. The City acts by allowing the Fair Park

Contract, the City’s lease agreement with SFOT, to remain in effect

notwithstanding the continued practice through to the 2025 State Fair of

STATE OF TEXAS’S BRIEF Page 38 of 52 Cause No. 15-25-00122-CV excluding license holders carrying handguns. Allowing the lease

agreement with SFOT to continue in the face of blatant, express

exclusion in SFOT’s website, at the very least, is an act by the City that

implies licensed Texans are banned from Fair Park. And the City’s

insistence that its lessee acts completely within the terms of the Fair

Park Contract is a further act that implies licensed Texans with

handguns are excluded from City-owned Fair Park. C.R. 103 (“SFOT runs

the Fair at Fair Park pursuant to a written lease and contract

agreement.”).

v. The trial court abused its discretion in excluding competent summary judgment evidence. That the City has acted in implicitly ratifying SFOT’s construction

of the Fair Park Contract is clear when considering the City’s previous

conduct concerning SFOT’s other problematic policies. This case is not

the first time the State has been involved in litigation regarding firearms

policies covering Fair Park. Attached to the Plaintiff’s Motion was

competent summary judgment evidence concerning the State’s previous

litigation involving SFOT’s systematic exclusion of armed off-duty peace

officers from the premises of Fair Park in violation of Texas Law. C.R.

STATE OF TEXAS’S BRIEF Page 39 of 52 Cause No. 15-25-00122-CV 454-460, 466-468, 480. Relevant to this case was the City’s then-response

in the form of correspondence with the Attorney General. C.R. 440. The

City objected on relevance grounds to this evidence both at the hearing

as well in the City Defendants’ Objections and Motion to Strike Plaintiffs’

Summary Judgment Evidence, objections to which SFOT joined. R.R.

36:11-14, 37:4-10; C.R. 813-815. The trial court sustained the Defendants’

various objections to this evidence. 9 For the reasons discussed below, the

City’s 2023 correspondence was admissible evidence relevant to

demonstrating the City’s actual ability to influence SFOT, and the trial

court abused its discretion by excluding the evidence.

1. The evidence at issue is relevant. Prior to the instant litigation, the Attorney General had received a

written complaint from a Texas peace officer that on October 8, 2022, he

had been prohibited or restricted from carrying a weapon while off duty

into the 2022 State Fair event held at Fair Park, contrary to Tex. Code

9 The trial court previously sustained objections made to the evidence at issue during the temporary

injunction phase of the litigation. C.R. 814, 938. The City globally renewed its objections in the City Defendants’ Objections and Motion to Strike Plaintiffs’ Summary Judgment Evidence. C.R. 813-815. It is not apparent from the face of the record that the trial court signed an order granting the City Defendants’ Objections and Motion to Strike. However, the trial court did sustain SFOT’s evidentiary objections and did extend any ruling it made on the City’s objections equally to SFOT. C.R. 938. Thus, it is apparent from the face of the record that the trial court sustained the Defendants’ various objections to the evidence at issue. See Tex. R. App. P. 33.1(a)(2)(A).

STATE OF TEXAS’S BRIEF Page 40 of 52 Cause No. 15-25-00122-CV Crim. Proc. art. 2.1305 (which, effective Jan. 1, 2025, is now known as

Tex. Code Crim. Proc. art. 2A.052). The Attorney General sent a letter to

the City of Dallas on February 8, 2023, seeking cooperation and

compliance with Texas laws concerning a peace officer’s authority to

carry a weapon in an establishment serving the public or place to which

the general public is regularly, normally, or customarily invited. C.R.

437-438; see also C.R. 434-435. The City of Dallas then provided a copy

of such letter to its lessee the State Fair of Texas. C.R. 442-443. On

February 21, 2023, the City of Dallas sent a responsive letter to the

Attorney General and also provided the Attorney General with a letter

from SFOT. C.R. 440. The City of Dallas expressed its commitment to

comply with Texas laws concerning a peace officer’s authority to carry a

weapon into Fair Park, and because the State Fair of Texas operated the

state fair event, the City of Dallas had also secured from SFOT, its

tenant, a letter making the same commitment to comply with Texas law.

C.R. 440, 442-443.

The City’s correspondence is evidence relevant to demonstrating

the actual control the City exercises over SFOT when it is not instead

exercising tactical indifference to its lessee’s action under the Fair Park

STATE OF TEXAS’S BRIEF Page 41 of 52 Cause No. 15-25-00122-CV Contract. “Evidence is relevant if: (a) it has any tendency to make a fact

more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” Tex. R. Evid. 401. The

central issue of this litigation is whether the City has taken any action

that states or implies that a license holder carrying a handgun may not

enter or remain on the premises of Fair Park. Throughout the course of

this litigation, the City has maintained that it has not taken any action,

and further that it cannot influence or restrain SFOT regarding its policy.

C.R. 750. However, the fact that the City has previously exercised its

influence to restrain SFOT’s actions taken under the aegis of the Fair

Park Contract makes it far more probable that the City has instead acted

through its implicit ratification of SFOT’s construction of the Fair Park

Contract. Evidence of the City’s previous conduct regarding its lessee

illuminates the City’s conspicuous choice in this case to allow SFOT to

continue its exclusionary policy, which goes to the City’s ultimate liability

under section 411.209.

2. The trial court abused its discretion.

Although courts review the rendition of summary judgments de

novo, courts review a trial court's decision to exclude summary judgment

STATE OF TEXAS’S BRIEF Page 42 of 52 Cause No. 15-25-00122-CV evidence for an abuse of discretion. Starwood Mgmt., LLC v. Swaim, 530

S.W.3d 673, 678 (Tex. 2017). A trial court abuses its discretion if its ruling

is arbitrary or unreasonable or without reference to any guiding rules

and principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

To warrant reversal, the appellant must show that the trial court's

erroneous admission or exclusion of evidence was harmful—that it was

calculated to cause and probably did cause the rendition of an improper

judgment. Tex. R. App. P. 44.1; Owens–Corning Fiberglas Corp. v.

Malone, 972 S.W.2d 35, 43 (Tex. 1998).

When considering the excluded evidence at issue, the City’s 2023

response concerning SFOT, the trial court abused its discretion in

sustaining the various objections to it. The evidence goes directly to the

City’s implicit ratification of SFOT’s construction of the Fair Park

Contract and the City’s deliberate allowance of SFOT’s exclusionary

policy. As the evidence at issue is relevant to establishing the City’s

ultimate liability under section 411.209 and serves to disprove the City’s

contention that it lacked any ability to influence its lessee, the trial

court’s exclusion of the evidence was harmful and probably did cause the

rendition of an improper judgment. Thus, this Court should reverse the

STATE OF TEXAS’S BRIEF Page 43 of 52 Cause No. 15-25-00122-CV trial court’s order and consider the fact of the City’s previous actions of

influencing SFOT to comply with state gun laws in light of the City’s

current position that it cannot do so.

vi. The Court should not rely on the Attorney General’s previous opinion, KP-0108. To the extent the trial court relied on a now-withdrawn opinion of

the Attorney General, KP-0108, such reliance was reversible error, and

this Court should not rely on KP-0108. During the summary judgment

proceedings, the City advocated a construction of section 411.209

premised entirely on the logic advanced in KP-0108, which posited “[a]s

long as the state agency or political subdivision leasing the property to

the nonprofit entity has no control over the decision to post such notice,

the state agency or political subdivision lessor would not be the entity

responsible for the posting and would therefore not be subject to a civil

penalty under section 411.209.” Tex. Att’y Gen. Op. No. KP-0108, (2016)

at *1.

While Attorney General's opinions can be persuasive, they are not

binding on the courts. Weaver v. Head, 984 S.W.2d 744, 746 (Tex. App.—

Texarkana 1999, no pet.) (citing Ex parte Schroeter, 958 S.W.2d 811, 813

STATE OF TEXAS’S BRIEF Page 44 of 52 Cause No. 15-25-00122-CV (Tex.Crim.App.1997); Tussey v. State, 494 S.W.2d 866, 870 n. 3 (Tex.

Crim. App. 1973)). KP-0108 was withdrawn as an official opinion of the

Office of the Attorney General following two members of the Texas

Legislature asking the Attorney General to consider the issues

underlying this case. C.R. 783-784. The Attorney General’s decision to

withdraw was based on the previously unforeseen developments and the

specific factual circumstances of the 2024 State Fair along with SFOT’s

inappropriate reliance on the outdated statement of law contained within

KP-0108. C.R. 129, 516, 783-784. The Attorney General’s withdrawal of

KP-018 was well founded. Specifically, KP-0108, issued in 2016, assessed

section 411.209 before the Legislature substantially amended it in 2019,

going as far as to forbid “any action” that “states or implies” exclusion

and going as far as to subject violators to daily civil penalties, mandamus,

and other equitable relief. Act of May 21, 2019, 86th Leg., R.S., ch. 784,

§ 1, sec. 411.209, 2019 Tex. Gen. Laws 2229, 2229–30 (amending

Government Code section 411.209). Prudently, the OAG withdrew KP-

0108, which prevented further confusion while OAG and the judiciary

conducted analyses of the law and any applicable changes to the law and

statutory scheme.

STATE OF TEXAS’S BRIEF Page 45 of 52 Cause No. 15-25-00122-CV To the extent the City continues to rely on the logic of KP-0108,

when, considering the actual text of section 411.209, it is clear that the

arms-length qualification that KP-0108 reads into that section is

extratextual, such logic should be rejected by this Court. The text of

section 411.209 does not qualify its application to merely “premises . . .

owned . . . by the governmental entity” only so long as the governmental

entity does not lease the premises to a private entity. Tex. Gov’t Code §

411.209(a) (cleaned up). Statutory interpretation must follow the plain,

contemporaneous meaning of the law’s language. Bexar Appraisal Dist.

v. Johnson, 691 S.W.3d 844, 847 (Tex. 2024). As discussed above, section

411.209 applies to all premises owned by the governmental entity. Thus,

to the extent the Court might interpret section 411.209 based on KP-

0108, which has been withdrawn, the Court should focus on the plain

language within section 411.209. For these reasons, the Court should

reject KP-0108’s logic and extratextual construction of section 411.209.

vii. The State is entitled to summary judgment against the City. As it has been shown that the City has “acted” within the meaning

of Texas Government Code section 411.209 to exclude license holders

lawfully carrying handguns from public property, the State is entitled to

STATE OF TEXAS’S BRIEF Page 46 of 52 Cause No. 15-25-00122-CV summary judgment against the City. The Court should reverse the orders

of the trial court and render summary judgment for the State on the issue

of whether the City violated section 411.209.

CONCLUSION As it has been shown above that the trial court had subject matter

jurisdiction, the State pled a waiver of the City’s sovereign immunity,

and the State is entitled to summary judgment against the City, this

Court should reverse the orders of the trial court and render summary

judgment for the State. As there are no meritorious theories that were

presented to the trial court upon which it could base its orders, this Court

should reverse those orders. See Hansen, 525 S.W.3d at 680 (When the

trial court's order does not specify the grounds for its summary judgment,

courts must affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are

meritorious.).

Furthermore, it has been shown that the State is entitled to

summary judgment against the City on its claim under Texas

Government Code section 411.209, to the mutual exclusion of the City’s

and SFOT’s respective motions. See City of Richardson, 539 S.W.3d at

STATE OF TEXAS’S BRIEF Page 47 of 52 Cause No. 15-25-00122-CV 259 (“On cross-motions for summary judgment, each party bears the

burden of establishing that it is entitled to judgment as a matter of law.”).

Therefore, this Court should reverse the orders of the trial court and

render summary judgment for the State against the City. Furthermore,

the Court should issue a permanent injunction restraining the

Defendants from further violating the statutory rights of license holders

through their exclusionary practices.

PRAYER For the foregoing reasons, appellant the State of Texas respectfully

requests that the Court reverse the judgment below and render judgment

here for the State of Texas.

Date: October 23, 2025

Respectfully submitted,

KEN PAXTON Attorney General of Texas

BRENT WEBSTER First Assistant Attorney General

RALPH MOLINA Deputy First Assistant Attorney General

STATE OF TEXAS’S BRIEF Page 48 of 52 Cause No. 15-25-00122-CV AUSTIN KINGHORN Deputy Attorney General for Civil Litigation

ERNEST C. GARCIA Chief, Administrative Law Division

/s/Canon Hill CANON PARKER HILL State Bar Number: 24140247 Assistant Attorney General ERNEST C. GARCIA State Bar No. 07632400 Assistant Attorney General ALEXANDER COMSUDI State Bar No. 24087006 Assistant Attorney General Administrative Law Division P.O. Box 12548, Capitol Station Austin, Texas 78711 Telephone: (512) 936-1838 Facsimile: (512) 320-0167 canon.hill@oag.texas.gov ernest.garcia@oag.texas.gov alexander.comsudi@oag.texas.gov

STATE OF TEXAS’S BRIEF Page 49 of 52 Cause No. 15-25-00122-CV CERTIFICATE OF COMPLIANCE I certify that this brief complies with Texas Rule of Appellate Procedure 9.4(i)(3), and the word count of this document is 10,944 words including all portions that are not exempted by the rule. The word processing software used to prepare this filing and calculate the word count of the document is Microsoft Word.

/s/Canon Hill CANON PARKER HILL Assistant Attorney General

STATE OF TEXAS’S BRIEF Page 50 of 52 Cause No. 15-25-00122-CV CERTIFICATE OF SERVICE I hereby certify that on October 23, 2025, a true and correct copy of the above and forgoing document has been served to the following party of record via electronic service and/or electronic mail:

Jeffrey Tillotson via e-service to: jtillotson@tillotsonlaw.com Tillotson, Johnson & Patton 1201 Main Street, Suite 1300 Dallas, Texas 75202 Counsel for City of Dallas and Kimberly Tolbert

Jim Harris via e-service to: jim.harris@hklaw.com Holland & Knight One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201-2532 Counsel for State Fair of Texas

Tony K. McDonald via e-service to: Tony@tonymcdonald.com State Bar No. 24083477 Connor Ellington via e-service to: connor@tonymcdonald.com State Bar No. 24128592 The Law Offices of Tony McDonald 1308 Ranchers Legacy Trail Fort Worth, TX 76126 Counsel for Individual Plaintiffs

/s/Canon Hill CANON PARKER HILL Assistant Attorney General

STATE OF TEXAS’S BRIEF Page 51 of 52 Cause No. 15-25-00122-CV Appendix 1 SFOT Webpage

STATE OF TEXAS’S BRIEF Page 52 of 52 Cause No. 15-25-00122-CV APPENDIX 1
          

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Paul Pruneda on behalf of Canon Hill Bar No. 24140247 paul.pruneda@oag.texas.gov Envelope ID: 107237868 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: 2025 10 23 States Brief on the Merits Status as of 10/24/2025 7:07 AM CST

Associated Case Party: City of Dallas

Name BarNumber Email TimestampSubmitted Status

Joseph AIrrobali airrobali@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

Nathaniel Buchheit nbuchheit@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

Megan Coker mcoker@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

Anne Johnson ajohnson@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

Jeffrey Tillotson 20039200 jtillotson@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

Associated Case Party: State Fair of Texas

Name BarNumber Email TimestampSubmitted Status

Bryan Neal 788106 Bryan.Neal@hklaw.com 10/23/2025 7:28:17 PM SENT

James Harris 9065400 jim.harris@hklaw.com 10/23/2025 7:28:17 PM SENT

Sherri Rodgers sherri.rodgers@hklaw.com 10/23/2025 7:28:17 PM SENT

Robert B.Smith Robert@Smith-Firm.com 10/23/2025 7:28:17 PM SENT

Associated Case Party: State of Texas

Name BarNumber Email TimestampSubmitted Status

Melissa Juarez melissa.juarez@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Ernest Garcia ernest.garcia@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Catherine Hughes catherine.hughes@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Paul Pruneda paul.pruneda@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Meridith Fischer Meridith.Fischer@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Steven Ogle Steven.Ogle@oag.texas.gov 10/23/2025 7:28:17 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.

Paul Pruneda on behalf of Canon Hill Bar No. 24140247 paul.pruneda@oag.texas.gov Envelope ID: 107237868 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: 2025 10 23 States Brief on the Merits Status as of 10/24/2025 7:07 AM CST

Associated Case Party: State of Texas

Steven Ogle Steven.Ogle@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Holly Dudrick holly.dudrick@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Canon ParkerHill canon.hill@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Kira Lytle klytle@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

TJP Service tillotsonjohnsonpatton@gmail.com 10/23/2025 7:28:17 PM SENT

William Cole William.Cole@oag.texas.gov 10/23/2025 7:28:17 PM SENT

William Peterson William.Peterson@oag.texas.gov 10/23/2025 7:28:17 PM SENT

Bryan Neal bryan.neal@hklaw.com 10/23/2025 7:28:17 PM SENT

Tony McDonald Tony@tonymcdonald.com 10/23/2025 7:28:17 PM SENT

Devlin Browne dbrowne@tillotsonlaw.com 10/23/2025 7:28:17 PM SENT

Associated Case Party: AlanCrider

Name BarNumber Email TimestampSubmitted Status

Connor Ellington connor@tonymcdonald.com 10/23/2025 7:28:17 PM SENT

Associated Case Party: MaxxJuusola

Name BarNumber Email TimestampSubmitted Status

Connor Ellington connor@tonymcdonald.com 10/23/2025 7:28:17 PM SENT

Associated Case Party: TracyMartin 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.

Paul Pruneda on behalf of Canon Hill Bar No. 24140247 paul.pruneda@oag.texas.gov Envelope ID: 107237868 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: 2025 10 23 States Brief on the Merits Status as of 10/24/2025 7:07 AM CST

Associated Case Party: TracyMartin

Name BarNumber Email TimestampSubmitted Status

Connor Ellington connor@tonymcdonald.com 10/23/2025 7:28:17 PM SENT