the City of Houston v. Freedmen's Town Preservation Coalition

Opinion

ACCEPTED

14-15-00138-CV

FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS

3/26/2015 7:51:08 PM

CHRISTOPHER PRINE

CLERK

No. 14-15-00138-CV

_______________________________________________

FILED IN

14th COURT OF APPEALS

In the Court of Appeals for the HOUSTON, TEXAS Fourteenth District of Texas at Houston 3/26/2015 7:51:08 PM _______________________________________________CHRISTOPHER A. PRINE Clerk

CITY OF HOUSTON,

Appellant

V.

FREEDMEN’S TOWN PRESERVATION COALITION, Appellee

_______________________________________________

On Appeal from the 80th Judicial District Court Harris County, Texas

Trial Court Case No. 2015-02771

______________________________________________________________

MOTION FOR REHEARING AND TO RECONSIDER DISMISSAL OF APPEAL FOR MOOTNESS

______________________________________________________________

Donna L. Edmundson Kathleen Hopkins Alsina City Attorney Senior Assistant City Attorney State Bar No. 09977050

Judith L. Ramsey Mary E. (Mary Beth) Stevenson Chief, General Litigation Section Assistant City Attorney State Bar No. 24072366

CITY OF HOUSTON LEGAL

DEPARTMENT

900 Bagby, Fourth Floor

Houston, Texas 77002

832.393.6491 (Telephone)

832.393.6259 (Facsimile)

kate.alsina@houstontx.gov marybeth.stevenson@houstontx.gov

Attorneys for Appellant

Table of Contents

Page

Table of Contents......................................................................................... ii

Index of Authorities .................................................................................... iv Statement Regarding Record ....................................................................... vi

Issue on Rehearing ..................................................................................... vii

I. Introduction ....................................................................................... 1 II. Background Facts ............................................................................... 3

III. Procedural History – Trial Court ......................................................... 5 IV. Procedural History – Court of Appeals................................................. 8 V. Argument and Authorities ................................................................... 8 A. The Court ruled on the motion to dismiss prematurely. ............... 8

B. The Coalition’s primary authority, Blackmon, is not controlling because it does not involve the effect of a stay on a nonsuit and it was not decided under current law. .................... 9

C. Klein v. Hernandez is also irrelevant because the nonsuit there was filed before the appeal of the plea to the jurisdiction. ............ 11

D. The Coalition should not be allowed to circumvent the automatic stay. ........................................................................ 12

E. The failure to enforce the Section 51.014(b) stay has resulted in a miscarriage of justice and prejudice to the City and the property owners in Freedmen’s Town. ...................................... 14

1. The trial court acted outside its jurisdiction—and admitted it. ..................................................................... 14

ii

2. The trial court declared the entirety of Freedmen’s Town, and specifically the streets, a landmark without pleading or proof of ownership of the land. ...................... 16

3. The trial court should not have proceeded in the absence of the City and the adjacent landowners. ............. 17 F. The trial court allowed the Coalition to make an end run around governmental immunity. .............................................. 18

G. A party’s right to file a nonsuit has exceptions. .......................... 19 Conclusion and Prayer ............................................................................... 26 Certificate of Compliance ........................................................................... 22

Certificate of Service .................................................................................. 28 Exhibits

Appendix

iii

Index of Authorities

Page(s)

Cases

Bd. of Regents v. Walker Cnty. Historical Comm’n, 608 S.W.2d 252 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ) ...................................................................................................4, 15

City of Houston v. Swinerton, 233 S.W.3d 4 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ....... 13, 14, 20

Dykes v. City of Houston, 406 S.W.2d 176 (Tex. 1966) ..................................................................... 4

Harris Cnty. v. Sykes, 136 S.W.3d 635 (Tex. 2004) ................................................................... 13

Hendrick Med. Ctr. v. Howell, 690 S.W.2d 42 (Tex. App.—Dallas 1985) (orig. proceeding).................... 20

In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding) ....................................... 20

Klein v. Hernandez, 315 S.W.3d 1 (Tex. 2010) ...................................................................... 11

Oryx Capital Int’l v. Sage Apartments, LLC, 167 S.W.3d 432 (Tex. App.—San Antonio 2005, no pet.)............. 13, 19, 20

Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736 (Tex. App.—Houston [1st Dist.] 2010, no pet.) .............. 18

Univ. of Tex. Med. Branch v. Blackmon, 195 S.W.3d 98 (Tex. 2006)....................................................................... 9

Statutes

Tex. Civ. Prac. & Rem. Code § 37.006 ........................................................ 17 Tex. Civ. Prac. & Rem. Code § 51.014 ........................................................ 14

iv

Tex. Nat. Res. Code § 191.051...................................................................... 4 Tex. Nat. Res. Code § 191.052.................................................................... 15 Tex. Nat. Res. Code § 191.092...................................................................... 4 Tex. Nat. Res. Code § 191.093...................................................................... 6

Tex. Nat. Res. Code § 191.094......................................................... 2, 4, 5, 16 Tex. Nat. Res. Code § 191.095...................................................................... 6

Tex. Nat. Res. Code § 191.173............................................................... 15, 19

Other Authorities Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 103, sec. 51.014, 2003 Tex. Gen. Laws 847 ......................................................................... 10, 11

Tex. R. App. P. 10.3 ............................................................................. 1, 8, 9 Tex. R. App. P. 49.1 ................................................................................ 1, 9 Tex. R. Civ. Evid. 201 ................................................................................ 10

v

Statement Regarding Record The clerk’s record has not been filed as of the date of this motion. In addition, the City has requested a supplemental clerk’s record and reporter’s record. The City will file an amended motion with full record cites as soon as they are available. In the meantime, a certified copy of each page referenced is included in the appendix.

vi

Issue on Rehearing

Whether this Court erred in dismissing this appeal on the basis of mootness when 1) the primary case relied on by the Appellees and cited by the Court does not involve the effect of a stay on a later nonsuit and was not decided under current law; 2) the nonsuit was strategic, for the purpose of circumventing the automatic stay under Section 51.014(b) of the Civil Practice and Remedies Code; 3) the nonsuit resulted in a miscarriage of justice and prejudice to the City and to the property owners in Freedman’s Town; and 4) the nonsuit was used to deprive the City of its interlocutory appeal on governmental immunity while at the same time effectively enjoining the City’s work through a temporary injunction against its contractor.

vii

TO THE HONORABLE COURT OF APPEALS:

Appellant, the City of Houston, respectfully asks this Court for a rehearing and to reconsider its order granting Appellee Freedmen’s Town Preservation Coalition’s Amended Motion to Dismiss Appeal for Mootness. Tex. R. App. P. 49.1; Tex. R. App. P. 10.3(b).

I. Introduction Section 51.014(b) of the Texas Civil Practice and Remedies Code was amended in 2003 to add the provision that for four types of orders subject to interlocutory appeal, “all other proceedings” are stayed pending resolution of the appeal. The stay applies to an appeal of an order granting or denying a governmental entity’s plea to the jurisdiction.

The stay specifically applies to “all other proceedings”—and this case is a perfect example of why “all other proceedings” must include an attempted nonsuit. In a case like this one, where a party seeks to enjoin a governmental function, the City is a necessary party. The City’s rights and the rights of its citizens—particularly of the private property owners involved—is at issue. The trial court entered an order purporting to designate all streets in Freedmen’s Town as “state archeological landmarks,” subject to protection by state law,

2

but without the presence of either the City or the affected landowners to defend their rights.1 The City is entitled to pursue its immunity defenses before the trial court reaches the merits. The automatic stay under Section 51.014(b) requires that the trial court allow the issues raised by the plea to be finally decided before litigation affecting a governmental entity proceeds. A situation like this one— where the City’s rights are effectively litigated without its presence—should never occur.

The nonsuit was intended to evade the stay of proceedings in the trial court pending this Court’s review of the trial court’s jurisdiction and to obtain broad relief beyond that necessary to Plaintiff’s claims against Conrad Construction Co., Ltd. The ploy has been successful. The trial court has allowed the Coalition to proceed against the City’s contractor, without the City, and has now entered a temporary injunction declaring that all of

1 It is of particular significance that the court declared the entirety of Freedmen’s Town to be a State Archeological Landmark, as well as the brick streets, without regard to the landowners. The Coalition failed to prove public ownership of the land (which is required under Texas Natural Resources Code section 191.092(a), the section they—and the trial court—cited in support of the temporary injunction). Freedmen’s Town is not public land. Written consent of the landowners is required for a landmark to be designated on private land. Tex. Nat. Res. Code § 191.094. The trial court entered its March 2, 2015 temporary injunction without evidence of or a finding concerning ownership or consent. (Supp._CR___ (App. 1)).

3

Freedmen’s Town, including the streets, are landmarks. (See Supp._CR____).2 The trial court has halted a governmental function by allowing an end run around the statute intended to guarantee that the trial court’s jurisdiction be determined before a lawsuit involving a governmental entity proceeds.

II. Background Facts This is an appeal from an interlocutory order entered February 12, 2015, denying the City of Houston’s plea to the jurisdiction. On February 25, 2015, this Court granted the Coalition’s motion to dismiss the appeal for mootness. The City asks the Court to reconsider the dismissal and reinstate the appeal.

The underlying lawsuit sought to enjoin the City and its contractor, Conrad, from renovating water and sewer lines, drainage, and certain street surfaces in an area of Houston known as “Freedmen’s Town.” (CR____).3 The Coalition sued to prevent the City and Conrad from “removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks” from the streets where the infrastructure work is to be performed. (Id.).

2 App. 1.

3 App. 2.

4

The legislature established the Texas Historical Commission (THC) as the state agency with exclusive jurisdiction to designate state archeological landmarks under procedures set out in the “Antiquities Code.” Tex. Nat. Res. Code § 191.051(b)(2) (Antiquities Code); Bd. of Regents v. Walker Cnty. Historical Comm’n, 608 S.W.2d 252, 253 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ). Citizens may request the THC to make such a designation. Tex. Nat. Res. Code § 191.092(c). Structures on both public and private land may be nominated, but designation of a landmark on private land4 requires the written consent of the landowner. Tex. Nat. Res. Code § 191.094(b).

Although the Coalition alleges that Freedmen’s Town has been recognized in the National Register of Historic Places since 1984, it is undisputed the THC has never designated the bricks and streets or any land in Freedmen’s Town as a state archeological landmark.

The Coalition also alleges that since 2007 there have been discussions with the City about how to perform the street, water, and sewer repairs without disturbing the bricks. (CR___).5 However, the Coalition did not seek a designation of the streets and bricks as state archeological landmarks from the

4 The presumption is that land under streets is owned to the centerline of the street by the adjoining lot owners. The City has an easement only. See Dykes v. City of Houston, 406 S.W.2d 176, 182 (Tex. 1966). 5 App. 2.

5

THC until after filing this lawsuit. (Supp. RR 42-43 (March 2, 2015 hearing))6. No such designation has been made by the THC, nor is there evidence that the Coalition sought a designation of all of Freedmen’s Town as a landmark.

More importantly, the Coalition neither alleged nor proved that the land was public land or that the private landowners consented to designate any structure on their land as a landmark, as required under the statute. Tex. Nat. Res. Code § 191.094. The landowners were not parties to this suit. Although several attempted to intervene, the Coalition opposed their intervention and the trial court denied their attempt. (1_RR_12). The trial court then entered an order finding all of Freedmen’s Town, as well as the streets, to be a state archeological landmark without any evidence establishing who owned the land or whether the landowners consented. (CR____.)7

III. Procedural History – Trial Court On January 20, 2015, the Coalition applied for and received an ex parte temporary restraining order against the City, alleging that Freedmen’s Town has been designated as a “historical site” and that the Texas Antiquities Code prohibits “any alteration, removal or destruction of such structures without

6 App. 10.

7 App. 1.

6

either (1) an approved contract by the THC or (2) an express permit granted by the THC.” (CR____).8 See Tex. Nat. Res. Code §§ 191.093 and 191.095 (“Antiquities Code”)). A hearing on the temporary injunction was initiated on February 12, 2015 and continued on March 2, 2015.

The City moved to deny the injunction and also filed a plea to the jurisdiction arguing that its immunity was not waived under Section 191.173(a) of the Antiquities Code. (CR____).9 On February 12, 2015, the trial court denied the City’s plea to the jurisdiction. (CR____10; 1_RR_30-31). The City filed a notice of interlocutory appeal pursuant to Texas Civil Practice and Remedies Code § 51.014(a)(8) and specifically invoked the automatic stay provisions of section 51.014(b) requiring a stay of all proceedings in the trial court. (CR____11; 1_RR_124, 128, 132). Rather than enforcing the mandatory stay, the trial court allowed the proceeding to continue. (1_RR_133).

After the City invoked the stay, the Coalition announced it would nonsuit the City. (1_RR_131). The City reasserted its right to the 51.014(b)

8 App. 3.

9 App. 5.

10 App. 6.

11 App. 7.

7

automatic stay of all proceedings. (1_RR_132). The Court denied the stay, finding that it applied only to the City. (1_RR_132). The trial court proceeded with the injunction hearing and set it to resume at a later date against Conrad only. (1_RR_134).

On March 2, 2015, the trial court conducted a hearing on the temporary injunction, with Conrad as the only defendant. The trial court signed an order stating that Freedmen’s Town in its entirety, as well as the “brick paved streets,” constitute “state antiquities landmarks” under the Antiquities Code. (Supp._CR____).12 The court ordered that Conrad “and all those acting in concert with them, be and hereby are prohibited from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen’s Town Historic District.” (Supp._CR____).13 Conrad has filed its notice of interlocutory appeal in this court.

(Supp._CR___).14

12 App. 1.

13 App. 1.

14 App. 8.

8

IV. Procedural History – Court of Appeals On February 17, 2015, the Coalition filed an Amended Motion to Dismiss Appeal for Mootness, arguing that the City’s interlocutory appeal of its plea to the jurisdiction was moot because the City had been nonsuited at trial. The City’s response was due within ten days, by February 27, 2015. Tex. R. App. P. 10.3(a).

The City responded to the amended motion to dismiss at approximately 4:45 p.m. on February 24, 2015. See Ex. A. The email notice from the electronic service provider shows that the Court “received” the response at approximately 8:00 a.m. on February 25, 2015. See Ex. B. However, the City received by email notice, with a time notation of 3:00 a.m., February 25, 2015, an order granting the motion to dismiss. See Ex. C. Therefore it appears that the Court ruled on the motion to dismiss without having received the City’s response.

V. Argument and Authorities A. The Court ruled on the motion to dismiss prematurely.

Under Texas Rule of Appellate Procedure 10.3(a), an appellate court should not hear or determine a motion until 10 days after the motion was filed. The Coalition’s amended motion to dismiss, filed February 17, 2015, should

9

not have been heard or determined before Friday, February 27, 2015. Therefore the City’s February 25, 2015 response was timely.15 Because the motion to dismiss the appeal was ruled on without consideration of the City’s response on the mootness issue, the City respectfully asks for rehearing. Tex. R. App. P. 49.1; Tex. R. App. P. 10.3(b).

B. The Coalition’s primary authority, Blackmon, is not controlling because it does not involve the effect of a stay on a nonsuit and it was not decided under current law.

In its opinion, the Court cites to the case relied on by Coalition, University of Texas Medical Branch v. Blackmon, 195 S.W.3d 98, 100 (Tex. 2006). The Coalition cited this case to support its argument that a motion for nonsuit is effective even when made after the mandatory stay under section 51.014(b) of the Civil Practice and Remedies Code. However, Blackmon did not address the effect of the 51.014(b) stay on a nonsuit.

In Blackmon, the University of Texas challenged the nonsuit because it had requested costs and because the court of appeals had entered a judgment in its favor, which was withdrawn before the nonsuit was filed. Id. at 101.

15 On February 20, 2015, the City filed a Motion to Stay under Texas Rule of Appellate Procedure 29.3. The City asked for an expedited ruling on the motion to stay. However, neither party requested expedited consideration of the Amended Motion to Dismiss.

10

Nothing in Blackmon indicates that either party invoked a stay under Section 51.014(b), and the Court did not address the effect of a stay on the nonsuit.

In addition, the 2003 amendments to Section 51.014(b) were not effective when the notice of appeal in Blackmon was filed. The notice of appeal was filed on March 20, 2003. See Ex. D, Court of Appeals docket sheet in Univ. of Tex. Med. Branch at Galveston v. the Estate of Darla Blackmon, No. 10-03-00093- CV, in the 10th Court of Appeals, from www.search.txcourts.gov.16 The statute was amended to be effective for notices of appeal filed after September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 103, sec. 51.014, 2003 Tex. Gen. Laws 847, 849, 898.

The prior version of the statute did not mandate that all trial court proceedings be stayed. At the time Blackmon was appealed, only the commencement of the trial was stayed by the interlocutory appeal. Id. The parties were free to continue with pretrial proceedings.

The 2003 amendments added the current language:

(b) An interlocutory appeal under Subsection (a), other than an appeal under Subsection (a)(4), stays the commencement of a trial in the trial court pending resolution of the appeal. An interlocutory appeal under Subsection (a)(3), (5), or (8) also stays all other proceedings in the trial court pending resolution of that appeal.

16 The City asks the Court to take judicial notice of the information in this docket sheet showing the date the notice of appeal was filed. Tex. R. Civ. Evid. 201.

11

Id. at 849 (emphasis added).

The notice of appeal in Blackmon was filed before the amendment to Section 51.014(b) took effect, and the issues related to the nonsuit in Blackmon were unrelated to the 51.014(b) stay. It is not controlling on the issue of whether a party may file a nonsuit after there has been a “stay of all other proceedings” under the current version of the statute.

C. Klein v. Hernandez is also irrelevant because the nonsuit there was filed before the appeal of the plea to the jurisdiction.

The Coalition also relied on Klein v. Hernandez, 315 S.W.3d 1, 4 (Tex.

2010). But Klein does not address the effect of the mandatory stay on a later nonsuit because the nonsuit in Klein was filed before the stay was in effect. Furthermore, the parties in Klein “apparently agree[d]” that “the nonsuit in the trial court ended the case against Baylor”—in contrast, the nonsuit here is without prejudice. The fact that the Coalition insists on continuing this case against the City’s contractor, which can perform this work only if the City can, demonstrates that the Coalition’s goal of stopping the City’s work on the project survives despite the nonsuit of the City as a party.

12

D. The Coalition should not be allowed to circumvent the automatic stay.

The Coalition thought it could circumvent the automatic stay provided by Section 51.014(b)—which it described as “trickery”—by nonsuiting the City. (1_RR_127). The Coalition’s counsel explained the ploy: “We can go against Conrad, we get the injunction and protect our client’s interest.” (1_RR_127). The trial court went along.

The result was an injunction entered ostensibly against only the City’s contractor, but which everyone knows impacts the City adversely, and without this Court ever deciding the fundamental legal issue of whether the trial court had jurisdiction over this matter at all. The automatic stay provision of Section 51.014(b) should avoid exactly this type of abuse. When a governmental entity is involved in a lawsuit, and the Court’s jurisdiction is challenged by a plea, that issue must be finally resolved before the case can proceed against any of the parties. Once an interlocutory appeal is filed, all other proceedings in the trial court, including the right to a nonsuit, come to a halt.

That is even more important in a case like this one where the other defendant is the City’s agent in performing a governmental function, and the facts that establish there is no waiver of the City’s immunity also establish the contractor’s defense, i.e., that there is no violation of the statute. And if the Coalition is ultimately unsuccessful against the contractor, the Coalition could

13

at any time file another lawsuit asserting the same claims against the City. See, e.g., Oryx Capital Int’l v. Sage Apartments, LLC, 167 S.W.3d 432 (Tex. App.—San Antonio 2005, no pet.) (holding nonsuit filed after court-ordered stay was of no effect, and noting plaintiff had already refiled claims in another suit).

The First Court of Appeals considered a situation analogous to this one in City of Houston v. Swinerton, 233 S.W.3d 4, 8-9 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In Swinerton, the City appealed the denial of its plea to the jurisdiction concerning Swinerton’s quantum meruit claim. Id. at 6. Swinerton then amended its petition to omit the quantum meruit claim. Id. at 8. The City responded that if the plea was dismissed because of the amendment to the pleading, the builder could simply replead the claim after the appeal was dismissed. A ruling on the plea to the jurisdiction, by contrast, would result in a dismissal of that claim with prejudice. Id.; see Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004). The nonsuit was not equivalent to the City obtaining a final ruling granting its plea. The court of appeals concluded that “the statutory stay in section 51.014 is analogous to the court-imposed stay in Oryx” and that Swinerton’s attempt to dismiss its claim without prejudice by amending its petition after the City had invoked the stay was “without force.” Swinerton, 233 S.W.3d at 9.

14

The question of the Court’s jurisdiction must be heard and ruled on before there are further proceedings in the trial court; that is the purpose of the mandatory stay provision of section 51.014(b). Tex. Civ. Prac. & Rem. Code § 51.014(b). The nonsuit to avoid the jurisdictional issue, filed after the stay, is without force. Swinterton, 233 S.W.3d at 9.

E. The failure to enforce the Section 51.014(b) stay has resulted in a miscarriage of justice and prejudice to the City and the property owners in Freedmen’s Town.

Allowing the Coalition to file a nonsuit in violation of the statutory stay and proceeding to a temporary injunction hearing against the contractor is only the beginning of the trial court’s error in this matter. Three others deserve particular note:

1. The trial court acted outside its jurisdiction—and admitted it.

The trial court acted outside its jurisdiction by declaring that:

Both Freedmen’s Town and the brick paved streets situated within the district constitute “state antiquities landmarks” as such term is defined by Tex. Admin. Code Title 13, Part 2 § 26.3(3) and used in Tex. Nat. Res. Code § 191.092(a).

(Supp._CR____).17 The trial court admitted that the designation of a landmark was an administrative decision of the THC:

17 App. 1.

15

The court finds that while the evidence in this temporary injunction hearing has shown the site to be a, or to qualify as a state archeological landmark, that final determination appears to have to be made by the Texas Historical Commission.

(Supp. RR 96:8-15)18. Nevertheless, the court signed the order designating Freedmen’s Town and the streets as a landmark. (Supp._CR____).19 The Texas Legislature has vested the THC with jurisdiction to designate sites and landmarks as “state archeological landmarks.” Tex. Nat. Res. Code §§ 191.051(b)(2) and 191.052; Walker Cnty. Historical Comm’n, 608 S.W.2d at 253. Citizens may sue to stop a violation or threatened violation of the statute. Tex. Nat. Res. Code § 191.173. That provision gives a trial court jurisdiction to protect already-designated state archeological landmarks, but it does not vest a trial court with jurisdiction to make the initial determination that a site is entitled to landmark status. As the trial court admitted, whether a site qualifies as a state archeological landmark is an administrative decision delegated by the legislature to the THC.

18 App. 11.

19 App. 1.

16

2. The trial court declared the entirety of Freedmen’s Town, and specifically the streets, a landmark without pleading or proof of ownership of the land.

Basic to designation of a landmark is determining whether the site is on public land or private land. The procedures and criteria for designating landmarks on publically-owned land fall under Tex. Nat. Res. Code § 191.092. The designation of landmarks on privately-owned land falls under Tex. Nat. Res. Code § 191.094. The requirements are different for each. Most significantly here, the designation of a landmark on private land, as is the entirety of Freedmen’s Town, requires “written consent of the landowner or landowners.” Tex. Nat. Res. Code § 191.094(b). The Coalition presented no evidence of whether the land in Freedmen’s Town, including the land under the streets, was publically or privately owned. There was no pleading or evidence the adjacent landowners gave written consent to designation of the streets as landmarks, much less to the entirety of their property in Freedmen’s Town. Without proof of the ownership of the land, no decision could be made on landmark status, even by the THC, the agency vested with jurisdiction to make that decision.

17

3. The trial court should not have proceeded in the absence of the City and the adjacent landowners.

Everyone recognizes the City is the real target of this dispute. The City contracted with Conrad to do the work, but it was the City’s work and Conrad operated under permits obtained by the City to carry out the City’s plan. Enjoining the City’s contractor stops the City from performing its work.

Moreover, the Coalition sought declarations regarding what permits from the THC were required to perform the work. Clearly the City had an interest in that issue—it is the City that must obtain the necessary permits from the state, not an outside contractor. The law requires that when declaratory relief is sought, as it was here, all parties interested in the dispute must be joined. Tex. Civ. Prac. & Rem. Code § 37.006.

The adjacent landowners should also have been allowed to intervene.

(CR____20; 1_RR_12). The court’s order is intended to impact the rights of all persons as to Freedmen’s Town. (Supp._CR____).21 It is the landowners whose property rights are affected by a ruling that the streets in Freedmen’s Town are protected as landmarks, and it is the landowners (and homeowners) who are

20 App. 9.

21 App. 1.

18

most seriously affected by the delay in repairs to their water, drainage, and sewer systems caused by the Coalition’s suit.

F. The trial court allowed the Coalition to make an end run around governmental immunity.

The Coalition asserts the same claims against Conrad, the City’s contractor and agent in this transaction, that it nonsuited as to the City. If this Court allows it, the Coalition and the trial court will have created a playbook for how to avoid challenges to a trial court’s jurisdiction in matters involving governmental entities and their contractors.

In performing governmental functions, such as the provision of water and sewer service, repairs to infrastructure, and street maintenance, the contractor acts as the city’s agent. See, e.g., Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P., 333 S.W.3d 736, 747 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (affirming granting of plea to the jurisdiction for law firm that acted as agent of government in collecting taxes). By nonsuiting the City but continuing to litigate the nonsuited claims against the City’s contractor, the Coalition is effectively continuing to litigate against the City.

In the same way, if the City has all the necessary permits to do the work in Freedmen’s Town, its contractor does too. The Antiquities Code does not

19

require Conrad to have a permit separate from any permit the City is required to have.

The City’s interlocutory appeal of the denial of its plea to the jurisdiction centers on whether the City’s governmental immunity was waived because there were “violations or threatened violations” of the Antiquities Code. Tex. Nat. Res. Code § 191.173. Only in that circumstance is there a waiver of governmental immunity. Id. The same proof—that there are no “violations or threatened violations” of the Antiquities Code—is also Conrad’s defense to the Coalition’s claims. Therefore this Court’s ruling on the appeal of the plea to the jurisdiction is potentially dispositive of the Coalition’s suit against both the City and Conrad. The Coalition’s attempt to render the City’s appeal moot by a nonsuit against the City should be seen for what it is—a procedural ploy to deprive the City of its interlocutory appeal while at the same time stopping the City from making the necessary repairs under the contract with Conrad.

G. A party’s right to file a nonsuit has exceptions.

The City recognizes that the general rule is that a party has a right to take a nonsuit, but that rule is not without exception. Other appellate courts have recognized that a nonsuit cannot be used to evade the effect of a mandatory stay. See Oryx, 167 S.W.3d at 438 (holding appellate court order staying “all further proceedings” prohibited trial court from giving effect to

20

motion for nonsuit). In Oryx, the court held that a nonsuit taken after a court- ordered stay was void and of no effect. Oryx, 167 S.W.3d at 438. There, the appellate court ordered a stay similar to that in section 51.014(b), stating that “all further proceedings at the trial court level are STAYED pending resolution of this appeal or further order of this court.” Id. at 437. Nevertheless, just like the Coalition did here, the plaintiff nonsuited the case at the trial court and moved to dismiss Oryx’s appeal as moot. Id. The court of appeals held that “[b]ecause this court’s order prohibited the continuation of proceedings in the trial court until further notice from this court, the trial court had no authority to entertain Sage’s non-suit motion or enter the order of dismissal.” Id. at 438. An order in violation of a stay is without force. Swinerton, 233 S.W.3d at 9.

Similarly, the Texas Supreme Court has held that a nonsuit taken to avoid an unfavorable venue ruling is void. In re Team Rocket, L.P., 256 S.W.3d 257, 258-59 (Tex. 2008) (orig. proceeding). See also Hendrick Med. Ctr. v. Howell, 690 S.W.2d 42, 45-46 (Tex. App.—Dallas 1985) (orig. proceeding) (“Permitting a plaintiff to avoid being bound by a venue determination simply by nonsuiting and subsequently refiling the same cause of action against the same parties in a county other than that in which venue was determined to be proper would, in effect, circumvent the legislature’s intent that there be only one venue determination in a cause of action.”).

21

The nonsuit the Coalition announced after the City invoked the Section 51.014(b) stay of all proceedings, as well as all other proceedings in the trial court following the stay, should be held void and of no force. The nonsuit should not impede this Court proceeding to decide the City’s interlocutory appeal on jurisdiction.

Conclusion and Prayer

For all of the reasons stated, the City respectfully prays that this Court grant rehearing and deny the Coalition’s amended motion to dismiss this appeal and on final hearing, enforce the stay retroactively, and reverse and render judgment in favor of the City on its plea to the jurisdiction.

22

Respectfully submitted,

DONNA L. EDMUNDSON

City Attorney

JUDITH L. RAMSEY

Chief, General Litigation Section

By: /s/ Kathleen Hopkins Alsina Kathleen Hopkins Alsina

Senior Assistant City Attorney SBN: 09977050

Mary E. (Mary Beth) Stevenson Assistant City Attorney

State Bar No. 24072366

CITY OF HOUSTON LEGAL

DEPARTMENT

900 Bagby, 4th Floor

Houston, Texas 77002

832.393.6491 (Telephone)

832.393.6259 (Facsimile)

kate.alsina@houstontx.gov marybeth.stevenson@houstontx.gov judith.ramsey@houstontx.gov

Attorneys for Appellant

Certificate of Compliance

I certify that the foregoing was prepared in Microsoft Word 2010 Version 14.0 in Calisto MT 14 point font; the word-count function shows that, excluding those sections exempted under TRAP 9.4(i)(1), the motion contains 4,402 words.

/s/ Kathleen Hopkins Alsina Kathleen Hopkins Alsina

23

Certificate of Service

I hereby certify that on this 26th day of March, 2015, a true and correct copy of the foregoing has been served on counsel below via e-service:

Benjamin L. Hall, III William Van Fleet The Hall Law Firm 530 Lovett Boulevard Houston, Texas 77006 bhall@bhalllawfirm.com

Attorney for Appellee /s/ Kathleen Hopkins Alsina Kathleen Hopkins Alsina

Exhibits

Ex. A Email notice confirming filing of motion Ex. B Email notice confirming receipt and acceptance of motion Ex. C Email notice of issuance of opinion and order Ex. D Docket sheet in U.T. Med. Branch v. Blackmon

Appendix

App. 1 Order Granting Temporary Injunction (3/2/15)

App. 2 Plaintiff’s Verified Second Amended Original Petition and Supplement (2/24/15)

App. 3 Temporary Restraining Order (1/20/15)

App. 4 City’s Motion to Deny Plaintiff’s Request for Injunctive Relief (2/6/15)

App. 5 City’s Plea to the Jurisdiction (2/11/15) App. 6 Order Denying City’s Plea (2/12/15) App. 7 City’s Notice of Interlocutory Appeal (2/12/15)

App. 8 Conrad’s Notice of Interlocutory Appeal (3/20/15) App. 9 Order Striking Petition in Intervention (2/12/15)

App. 10 March 2, 2015 Hearing Transcript Excerpt, pp. 42-43 App. 11 March 2, 2015 Hearing Transcript Excerpt, p. 96

EXHIBIT A

Holbrook, Bruce - LGL

From: No-Reply@eFileTexas.gov Sent: Tuesday, February 24, 2015 4:46 PM To: Holbrook, Bruce - LGL Subject: eFileTexas.gov - Filing Submitted - 4268396

Filing Submitted

Envelope Number: 4268396

The filing below has been submitted to the clerks office for review. Please allow up to 24 business hours for clerk office processing.

Filing Details

Court Courts of Appeals Date/Time Submitted: 2/24/2015 4:44:56 PM Filing Type: Response Activity Requested: EFileAndServe Filed By: Bruce Holbrook

Fee Details

This envelope is pending review and fees may change. Case Fee Information $0.00 Response $0.00

Total: $0.00 (The envelope still has pending filings and the fees are subject to change)

Document Details

Lead File: Response to Motion to Dismiss with Exhibits.pdf Lead File Page Count: 93

Contact your service provider with any questions

Need Help? Help

Visit: https://efiletexas.gov/contacts.htm Email: support@eFileTexas.gov

Please do not reply to this email. It was generated automatically by eFileTexas.gov

EXHIBIT B

Holbrook, Bruce - LGL

From: No-Reply@eFileTexas.gov Sent: Wednesday, February 25, 2015 8:00 AM To: Holbrook, Bruce - LGL Subject: eFileTexas.gov – Filing Accepted - 4268396

Filing Accepted

Envelope Number: 4268396

The filing below was reviewed and has been accepted by the clerks office. Be sure to click the link below to retrieve your file stamped copy of the document filed.

Filing Details

Court Courts of Appeals Case Number 14-15-00138-CV Case Style Date/Time Submitted 2/24/2015 4:44:56 PM Date/Time Accepted 2/25/2015 8:00:07 AM Accepted Comments Thanks for efiling Filing Type Response Activity Requested EFileAndServe Filed By Bruce Holbrook

Document Details

Lead File Response to Motion to Dismiss with Exhibits.pdf Lead File Page Count 93 https://efile.txcourts.gov/ViewDocuments.aspx?FID=ca71ba57-6118-

File Stamped Copy 4c9c-b793-324afb11bfac This link is active for 35 days.

Contact your service provider with any questions

Need Help? Help

Visit: https://efiletexas.gov/contacts.htm Email: support@eFileTexas.gov

Please do not reply to this email. It was generated automatically by eFileTexas.gov

EXHIBIT C

Alsina, Kate - LGL

From: COA14NoticingService@txcourts.gov Sent: Wednesday, February 25, 2015 3:00 AM To: Alsina, Kate - LGL Subject: Notice(s): 14-15-00138-CV Attachments: OPINION ISSD_AFFDIS_FILECOPY.pdf; JUDGMENT.pdf; OPINION.pdf

You have received notice(s) for the following case(s):

14-15-00138-CV TC #2015-02771 The City of Houston v. Freedmen's Town Preservation Coalition

Files OPINION ISSD_AFFDIS_FILECOPY.pdf JUDGMENT.pdf OPINION.pdf

Thank you, Christopher Prine, Clerk 14th Court of Appeals

Do not reply to this message. If you have questions, please contact the Court at 713-274-2800.

EXHIBIT D

Case Detail Page 1 of 4

CASE;

DATE FILED: 03/20/2003

CASE TYPE: MISCELLANEOUS CIVIL

STYLE: THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON

V,: THE ESTATE OF DARLA BLACKMON. BY ITS BENEFICIARY SHEILA SHULTZ AND SHEILA SHULTZ INDIVIDUALLY

ORIS PROC: NO

TRANSFER FROM:

TRANSFER IN:

TRANSFER CASE:

TRANSFER TO:

TRANSFER OUT:

PUB SERVICE: WEST PUBLISHING

APPELLATE BRIEFS

DATE I EVENT TYPE I DESCRIPTION I DOCUMENT :NO BRIEFS.

CASE EVENTS

DATE I EVENT TYPE DESCRIPTION DISPOSITION I DOCUMENT

CASE FILE WAS

DESTROYED PER

02/11/2013 RETENTION

SCHEDULE

LETTER TO TRIAL

10/16/2012 COURT CLERK FOR RETURN OF RECORD

07/28/2006 CASE STORED MANDATE ISSUED BY

07/28/2006 SUPREME COURT.

DISMISSED-WANT

06/12/2006 ORDER ENTERED OF JURISDICTION

CASE FORWARDED

01/31/2006 TO HIGHER COURT

PETITION FOR

REVIEW FILED IN THE

09/08/2005 SUPREME COURT MOTION TO EXTEND

TIME TO FILE

07/29/2005 PETITION FOR REVIEW

hfip://www,search.lxcourts,gov/Case,aspx9cn=104)34)0093-CV&coa:=:coal()&p==l 2/19/2015 • Case Detail Page 2 of 4

DATE EVENT TYPE DESCRIPTION I DISPOSITION I DOCUMENT

RETENTION TIME

RETAIN CIVIL CASE

06/22/2005 CASE FILE WILL BE FOR 6 YEARS

RETAINED

JUDGMENT ENTERED

06/22/2005 BY THIS COURT

DISSENTING DISSENTING OPINION 06/22/2005 OPINION ISSUED OPINION [ HTML/13 KB j

06/22/2005 OPINION ISSUED AFFIRMED

MOTION TO DISMISS

MOTION OR WRIT

06/22/2005 FOR WANT OF DENIED

JURISDICTION

ORDER ENTERED

DISPOSING OF A MOTION OR WRIT 06/22/2005 PROCESS DENIED (CONSOLIDATE)

RESPONSE TO

05/27/2005 APPELLEE MOTION

RESPONSE TO

05/24/2005 APPELLANT MOTION

MOTION TO DISMISS

05/17/2005 FOR WANT OF APPELLEE JURISDICTION

JUDGMENT

04/27/2005 WITHDRAWN BY THIS COURT.

OPINION

04/27/2005 WITHDRAWN

DISSENTING

DISSENTING

04/27/2005 OPINION ISSUED OPINION ( HTML/18 K

04/27/2005 ORDER ENTERED

MOTION FOR

04/27/2005 REHEARING APPELLANT GRANTED

MOTION FOR

MOTION OR WRIT

03/29/2005 EXTENSION OF TIME APPELLANT GRANTED

TO FILE RESPONSE

RESPONSE TO

03/29/2005 APPELLANT MOTION

MOTION FOR

03/22/2005 EXTENSION OF TIME APPELLANT TO FILE RESPONSE

RESPONSE

REQUESTED TO

03/08/2005 MOTION FOR

REHEARING.

MOTION FOR

10/29/2004 APPELL EE REHEARING FILED

MOTION FOR ORAL DISMISSED AS 10/19/2004 APPELL EE ARGUMENT MOOT

RETENTION TIME

RETAIN CIVIL CASE

10/13/2004 CASE FILE WIl.L BE FOR 6 \'EARS

RETAINED

http://www,scarch.{xcourts.gov/Case.aspx"?'cn:=104)3-00093-CV&coa=coa10&p=l 2/19/2015 «(3ase Detail Page 3 of 4

DATE EVENT TYPE I DESCRIPTION DISPOSITION DOCUMENT

JUDGMENT ENTERED

10/13/2004 BY THIS COURT

MEMORANDUM REVERSED MEMORANDUM OPINION 10/13/2004 OPINION ISSUED RENDERED [ HTML/20 KB I

10/13/2004 SUBMITTED

CASE ADVANCED

09/22/2004 WITHOUT ORAL ARGUMENT

MOTION FOR ORAL MOTION OR WRIT 09/22/2004 APPELLEE ARGUMENT DENIED

09/15/2003 REPLY BRIEF FILED APPELLANT

MOTION FOR ORAL

08/27/2003 APPELLEE ARGUMENT

CASE READY TO BE

08/22/2003 SET

BRIEF FILED, ORAL

08/22/2003 ARGUMENT NOT APPELLEE REQUESTED

BRIEF RECEIVED, NOT

08/13/2003 APPELLEE FILED

MOTION FOR

FURTHER

EXTENSION OF TIME MOTION OR WRIT 07/16/2003 EXTENSIONS TO FILE BRIEF GRANTED DISFAVORED

DISPOSED

MOTION FOR

07/10/2003 EXTENSION OF TIME APPELLEE TO FILE BRIEF

BRIEF FILED, ORAL

POSTMARKED

07/03/2003 ARGUMENT TIMELY

REQUESTED

MOTION FOR NO FURTHER EXTENSION OF TIME EXTENSIONS OF MOTION OR WRIT 06/11/2003 TO FILE BRIEF TIME WILL BE GRANTED DISPOSED ENTERTAINED

MOTION FOR

06/06/2003 EXTENSION OF TIME APPELLANT TO FILE BRIEF

CASE ACCELERATED

05/21/2003 AND SET FOR SUBMISSION.

CLERK'S RECORD

05/21/2003 FILED

ACCELERATED

05/16/2003 APPEAL - FIRST NOTICE

REPORTER'S RECORD

05/12/2003 FILED

COURT REPORTER'S

MOTION OR WRIT

05/07/2003 REQUEST FOR COURT REPORTER GRANTED

ADDITIONAL TIME

COURT REPORTER'S

05/01/2003 REQUEST FOR COURT REPORTER.

ADDITIONAL TIME

10-03-00093-CV&coa=coal0&p=l 2/19/2015

•Case Detail Page 4 of 4

DATE EVENT TYPE DESCRIPTION I DISPOSITION I DOCUMENT

COURT REPORTER'S

MOTION OR WRIT

04/02/2003 REQUEST FOR COURT REPORTER GRANTED

ADDITIONAL TIME

COURT REPORTER'S

04/01/2003 REQUEST FOR 2OURT REPORTER ADDITIONAL TIME

DOCKETING

03/20/2003 STATEMENT FILED

NOTICE OF APPEAL

03/20/2003 FILED - CIVIL CASE

CALENDARS

SET DATE CALENDAR TYPE j REASON SET 02/11/2013 CASE STORED CASE DESTROYED

PARTIES

PARTY PARTYTYPE REPRESENTATIVE

APPELLANT

THE UNIVERSITY OF TEXAS MEDICAL APPELLANT HARRY DECKARD BRANCH AT GALVESTON

TEXAS, THE STATE OF CRIMINAL - STATE OF TEXAS SHULTZ, SHEILA APPELLEE STEPHEN A. KHOURY 8LACKMON, SARLA APPELLEE STEPHEN A. KHOURY

TRIAL COURT INFORMATION COURT: 52ND DISTRICT COURT

COUNTY: CORYELL

COURT JUDGE: HONORABLE PHILLIP H ZEIGLER

COURT CASE: COT-01-33769

COURT REPORTER:

PUNISHMENT:

http;//www.searchixcouris.gov/Case.aspx?cn=lO-03-00093-CV&coa=coalO&p::=I '19/201:

APPENDIX 1

FILED

Chris Daniel

District Clerk

MAR 0 2 2015

Time:

CAUSE No. 2015-02771 Harris County, Texas By

FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION AND CATHERINE

ROBERTS

HARRIS COUNTY, TEXAS

VS.

CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT

ORDER GRANTING TEMPORARY INJUNCTION On February 12, 2015, came on for hearing the Application for Injunctive Relief filed by Freedmen's Town Preservation Coalition (the "Coalition") and Catherine

Roberts ("Roberts"), Plaintiffs herein. At the outset of the hearing, the Court struck the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page1of6

attempted intervention in this case filed by Robin Street Square Townhome Association, Crosby Street Square Townhome Association and Valda Bush. The Court further denied Defendant City of Houston's Plea to the Jurisdiction.

During the presentation of Plaintiffs' evidence, Defendant City of Houston advised the Court that it had filed an interlocutory appeal of the Court's denial of the City's Plea to the Jurisdiction and insisted that the injunction hearing must immediately be halted pending resolution of such interlocutory appeal. As is their right, Plaintiffs announced in open court and on the record that they were non-suiting their claims against the City. Because the City's Plea to the Jurisdiction and its interlocutory appeal did not affect Plaintiffs' claims and causes of action against Defendant Conrad Construction Co., Ltd. ("Conrad"), Conrad remains as the sole defendant in this cause.

1 RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging

The Court thereafter recessed the hearing until February 16, 2015, in order to give Conrad sufficient time to retain counsel to represent it in this case.

On February 16, 2015, by agreement of the parties the Court continued the temporary restraining order previously entered herein and recessed the temporary injunction hearing until March 2, 2015.

On March 2, 2015, the Court continued hearing the evidence presented by Plaintiffs and Conrad. The Court, having heard the evidence presented and having heard and considered the arguments of the respective counsel for Plaintiffs and Conrad, is of the opinion and so finds that:

1. Freedmen's Town, including all of its bricked streets, are located in a district

located in the Fourth Ward of the City of Houston, Harris County, Texas, which was ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page2of6

founded and settled by emancipated slaves following the conclusion of the American Civil War.

2. Over a century ago, the black residents of Freedmen's Town themselves paid for and/or contributed funds to provide bricks to pave over the then-dirt travel ways that are now streets located inside the district.

3. These street bricks were laid with religious, cultural and historically peculiar characteristics dating back to African origins, including cultural, religious and historical traditions of the west African tribe of the Yoruba [indigenous to modern Nigeria and western Benin]. The bricked streets include deliberate efforts to arrange the bricks in a "crossroads pattern" used by freed slaves in Texas to ward off evil spirits and to promote well-being and honesty in the community.

4. In 1984, the Texas Historical Commission (the "THC") nominated Freedmen's Town to the federal government to be placed on the National Register of Historic Places as an "Historic District." That nomination was approved the same year, and Freedmen's Town has been a designated national Historic District for over thirty years.

5. In 1992, the Houston City Council passed a resolution designating Freedmen's Town as an Historic District.

6. Freedmen's Town constitutes a "designated historic district" as that term is defined in Tex. Admin. Code Title 13, Part 2, § 26.3(22).

7. The brick paved streets within Freedmen's Town constitute "structures" as that

term is defined in Tex. Admin. Code Title 13, § 26.3(66).

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page3of6

8. The brick paved streets within Freedmen's Town further constitute structures of historical, cultural and religious interest pursuant to Tex. Natural Res. Code Ann. § 191.092(b) because they (a) were significantly associated with an event that symbolizes an important principle or ideal, (b) represent a distinctive architectural type and have value as examples of a period, style, or construction technique, and (c) are important as part of the heritage of a religious organization, ethnic group, or local society.

9. Both Freedmen's Town and the brick paved streets situated within the district constitute "state antiquities landmarks" as such term is defined by Tex. Admin. Code Title 13, Part 2, § 26.3(63) and used in Tex. Natural Res. Code Ann. § 191.092(a).

10. Pursuant to a construction contract by and between the City and Conrad to repair or replace water and sewer lines underneath the streets, avenues and alleys lying

within Freedmen's Town, the City and Conrad intend to remove, alter, damage, destroy, salvage, or excavate the bricks which pave the streets of Freedmen's Town.

11. Pursuant to the provisions of Tex. Natural Res. Code Ann. §§ 191.093 and 191.131, Conrad is required to obtain and/or have in its possession the appropriate permit(s) from the THC in order to remove, alter, damage, destroy, salvage, or excavate the brick paved streets situated within Freedmen's Town, but Conrad does not possess all required permits.

12. As citizens of the state of Texas, the Coalition, its members, and Roberts have standing to seek and obtain injunctive relief prohibiting Conrad or any other contractor from any violation or threatened violation of the Texas Antiquities Code

pursuant to Tex. Natural Res. Code Ann. § 173(a).

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page4of6

13. Because Plaintiffs seek injunctive relief expressly granted by Tex. Natural Res. Code Ann. § 173(a), they need not either allege or prove that they will suffer irreparable harm if Conrad is not restrained and enjoined as requested in Plaintiffs'

Application.

14. Alternatively, if the bricks paving the streets of Freedmen's Town are removed, damaged, excavated or altered in any way, their unique religious, cultural and historical significance will be irretrievably lost, and Plaintiffs thus have no adequate remedy at law. Also, at the commencement of the temporary injunction hearing, Conrad and the City stipulated on the record that Plaintiffs would sustain immediate and irreparable harm if an injunction were not granted as requested by Plaintiffs 15. Unless restrained and enjoined from doing so, Conrad will remove, alter, damage, destroy, salvage, or excavate the brick paved streets situated within Freedmen's Town without an appropriate permit from the THC in violation of Tex.

Natural Res. Code Ann. §§ 191.093 and 191.131, and Plaintiffs will suffer irreparable harm as previously stipulated by the parties.

Based upon the foregoing findings, and pursuant to the Court's express grant of the power to restrain and enjoin any violation or threatened violation of the Texas Antiquities Code pursuant to Tex. Natural Res. Code Ann. § 173(a), the Court is of the opinion that Plaintiffs' Application for Injunctive Relief should be GRANTED.

It is therefore ORDERED that Conrad Construction Co., Ltd., its agents,

employees, servants and representatives, and all those acting in concert with them, be ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page5of6

and hereby are prohibited from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town Historic District from the date of this Order until judgment is entered upon final trial upon the merits of this case.

Plaintiffs are ORDERED to post a bond in conformance with the law in the amount of $5,000, which is already posted to support the prior TRO .

Trial of this cause is set to commence on the ( PA day of , 2015 at

SIGNED thi%day of March, 2015 at ( -PO 0 g.m.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64469295-Page6of6

6 PRESIDING JUDGE

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this March 26, 2015

Certified Document Number: 64469295 Total Pages: 6

U'A4 (0.az Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 2

2/24/2015 5:46:14 PM

Chris Daniel - District Clerk Harris County Envelope No. 4269683

By: ALEX CASARES

Filed: 2/24/2015 5:46:14 PM

CAUSE No. 2015-02771

FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION, CATHERINE

ROBERTS AND GLADYS HOUSE

HARRIS COUNTY, TEXAS

VS.

CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT

PLAINTIFF'S VERIFIED SECOND AMENDED ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF

To THE HONORABLE DISTRICT JUDGE:

Freedmen's Town Preservation Coalition and Catherine Roberts (collectively the

"Coalition"), and Gladys House, Individually, Plaintiffs herein, file this Verified Second ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page1of11

Amended Original Petition and Application for Injunctive Relief complaining of Conrad Construction Co., Ltd. ("Conrad") and would respectfully show the Court the following:

I.

DISCOVERY PLAN

Plaintiffs intend for discovery to be conducted pursuant to Tex.R.Civ.Pro.

190.3, Level 2.

II.

PARTIES

2. The Coalition is an unincorporated association all of whose members are residents and citizens of Houston, Harris County, Texas. Roberts is a member of the Coalition and is also a resident and citizen of Houston, Harris County, Texas. House is

a member of the Coalition and is also a Texas citizen who lives in Freedmen's Town located in Fourth ward, Houston, Texas.

3. Conrad is a limited partnership organized and existing under the laws of the state of Texas which has already been served with citation and appeared herein and, thus, no further service is required upon Conrad.

III.

JURISDICTION AND VENUE

4. Pursuant to Tex. Natural Res. Code Ann. § 191.173(a), this Court possesses jurisdiction to enjoin the threatened illegal actions sought to be undertaken by Conrad as hereafter more fully described.

5. Pursuant to Tex. Natural Res. Code Ann. § 191.173(b), venue is proper in ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page2of11

this Court because all of the threatened illegal actions described below are intended to be taken in Harris County, Texas.

IV.

FACTUAL ALLEGATIONS

6. This case centers upon the preservation of a unique historical site located in the City of Houston, Texas—specifically the protection and preservation of historically, religiously and culturally significant brick streets paid for and laid by freed slaves and their descendants over a century ago in the historic district of Freedmen's Town, a section of Houston's Fourth Ward.

7. As the name implies, Freedmen's Town was founded and settled by slaves freed by President Lincoln's 1863 Emancipation Proclamation, enforced by the

Thirteenth Amendment to the United States Constitution, at the conclusion of the Civil War.

8. Originally, Freedmen's Town's streets were merely dirt roads, subject to frequent flooding in Houston's frequent rainy seasons and producing muddy pools conducive to mosquito breeding and the spread of malaria and other diseases. The residents of Freedmen's Town thus repeatedly petitioned the City to pave their streets to rid these pestilences, but were always rebuffed.

9. Thus, over 100 years ago Freedmen's Town's residents took matters into their own hands. Using their own hard-earned savings, and—to borrow the famous Churchillian phrase—their own blood, sweat, toil and tears, the residents of Freedmen's

town not only paid for bricks—at the rate of a dollar per brick—but laid the bricks ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page3of11

themselves.

10. These street bricks were not laid haphazardly, but in the religious tradition and culture of the west African tribe of the Yoruba [indigenous to modern Nigeria and western Benin]. More specifically, the bricks were laid, in accordance with Yoruba religious culture and tradition, to bless the streets and their intersections from the destructive interference from, and the influence of, evil spirits.

11. In 1984, the Texas Historical Commission (the "THC") itself nominated Freedmen's Town to the federal government to be placed on the National Register of Historic Places as an "Historic District." That nomination was approved the same year, and Freedmen's Town has been a designated national Historic District for over thirty years.

12. In 1992, the Houston City Council followed suit and passed a resolution designating Freedmen's Town as an Historic District.

13. In 2007, the City of Houston (the "City") considered digging up those bricks to replace the water and sewer lines beneath the streets. But Rep. Sheila Jackson Lee and then-mayor Bill White entered into an agreement pursuant to which the City received $500,000 in federal grant funds to study utilizing trenchless technology to replace the lines without disturbing the historic bricks—an alternative which the City had utilized in 1986 to repair and replace water and sewer lines in the wealthy subdivision of River Oaks without destroying or otherwise disturbing that area's streets and walkways.

14. By 2014, however, the City inexplicably abandoned its 2007 agreement ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page4of11

and, using a combination of federal and city funds, let a contract to Conrad to tear up Freedmen's Town's brick streets in order to replace the water and sewer lines. This decision led to confrontations between Conrad's workers and demonstrators preventing progress on this project. More such demonstrations and confrontations will likely follow any resumption of the project.

15. Freedmen's Town and its constituent components, including its brick paved streets, constitute sites, objects, buildings, artifacts, implements, and/or locations of historical, archeological, scientific, religious or educational interest. Accordingly, pursuant to Tex. Natural Res. Code § 191.092(a) and (b), the bricks and streets in Freedmen's Town constitute state archeological landmarks.

16. Pursuant to Tex. Natural Res. Code § 191.093, landmarks "may not be removed, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the [THC]."

17. Moreover, under Tex. Natural Res. Code § 191.131(b), "[n]o person, firm, or corporation may conduct an operation on any landmark without first obtaining a permit and having the permit in his or its possession at the site of the operation, or conduct the operation in violation of the provisions of the permit."

18. Although the construction contract between the City and Conrad explicitly requires the bricks in the subject streets to be removed, excavated and likely altered or destroyed, in whole or in part, neither the City nor Conrad have ever obtained either a

contract with or an appropriate permit from the THC to do so.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page5of11

V.

CAUSES OF ACTION

19. Pursuant to Tex. Natural Res. Code § 191.173(a), any citizen of the state of Texas may file suit to restrain and enjoin any violation or threatened violation of § 191.001, et seq. Thus, the Coalition possesses a statutory cause of action to enforce the provisions of the Texas Antiquities Code.

20. In addition, pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq., the Coalition further seeks the judgment of this Court declaring that (a) Conrad is required to obtain and keep in its possession at all times an appropriate permit from the THC expressly permitting it to perform any construction work which would remove, alter, damage, destroy, salvage or excavate any bricks from any of the streets, alleys and

avenues located within the geographical boundaries of Freedmen's Town, and (b)

Conrad has not obtained such a permit from the THC.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page6of11

VI.

INJUNCTIVE RELIEF

21. Pursuant to the express provisions of Tex. Natural Res. Code § 191.173(a), the Coalition seeks injunctive relief, both temporary and permanent, prohibiting Conrad from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town Historic District without first following all the procedures for and obtaining from the THC either a contract or permit expressly permitting Conrad to do so.

22. Because the Coalition is statutorily entitled to injunctive relief pursuant to ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page7of11

Tex. Natural Res. Code § 191.173(a), it need not allege nor prove that irreparable harm will occur in the event that Conrad's construction project in Freedmen's Town is not immediately and permanently restrained and enjoined.

23. Even so, unless Conrad is immediately and permanently restrained and enjoined from removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town Historic District, the Coalition—indeed every citizen of Houston—will be irreparably harmed because the religious, cultural and historic significance of the bricks, and the pattern in which they were laid, will forever be lost and can never be restored. Accordingly, the Coalition has no adequate remedy at law.

VII.

ATTORNEYS FEES

24. Pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 37.001 et seq., the Coalition further requests that it have and recover from Conrad its reasonable and necessary attorneys fees as found by the trier of fact incurred and to be incurred by the Coalition through final trial on the merits, together with all post-trial matters relating to the entry of a final judgment by this Court, and for all reasonable and necessary attorneys fees in the event that Conrad should unsuccessfully appeal any adverse judgment to a court of appeals and/or to the Texas Supreme Court WHEREFORE, PREMISES CONSIDERED, the Coalition respectfully requests that

Conrad be cited and required to appear and answer herein, and that the Coalition have ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page8of11

and recover the following relief:

(1) The order of this Court temporarily, and upon final trial, permanently restraining and enjoining the City and Conrad from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town Historic District without first following all the procedures for and obtaining from the THC either a contract or permit expressly permitting the City and Conrad to do so;

(2) The judgment of this Court declaring that (a) Conrad is required to obtain and keep in its possession at all times an appropriate permit from the THC expressly permitting it to perform any construction work which would remove,

alter, damage, destroy, salvage or excavate any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town, and (b) Conrad has not obtained such a permit from the THC;

(3) The Coalition have and recover from Conrad its reasonable and necessary attorneys fees through the trial and any post-trial matters relating to the entry of a final judgment herein, together with reasonable and necessary attorneys fees in the event that Conrad should unsuccessfully appeal any adverse judgment to a court of appeals and/or to the Texas Supreme Court;

(4) The Coalition have and recover from Conrad post-judgment interest on all

attorneys fees awarded to the Coalition at the highest rate allowed by law;

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page9of11

(5) The Coalition have its costs; and (6) The Coalition have such other and further relief to which it may show itself to be justly entitled.

Respectfully submitted,

is/Benjamin L. Hall

Benjamin L. Hall Ill

Texas Bar No. 08743745

bhall@bhalllawfirm.com

William L. Van Fleet II

bvfleet©comcast.net

Texas Bar No. 20494750

The Hall Law Firm

530 Lovett Blvd.

Houston, TX 77006

(713) 942-9600 (Telephone)

(713) 942-9566 (Facsimile)

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page10of11

The undersigned certifies that a true and correct copy of the above and foregoing document was forwarded to all counsel and/or pro se parties of record in accordance with the Texas Rules of Civil Procedure on February 24, 2015.

is/Benjamin L. Hall

Benjamin L. Hall III

CAUSE No. 2015-02771

FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION , CATHERINE ROBERTS AND GLADYS HOUSE

VS. HARRIS COUNTY, TEXAS

CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT

VERIFICATION

STATE OF TEXAS

COUNTY OF HARRIS

Before me, the undersigned authority, personally appeared Gladys House whose identity is known to me, and after being duly sworn stated upon her oath that the foregoing Second ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384617-Page11of11

Amended Petition and Application for Injunctive Relief and all the facts and assertions contained in same are true and correct and within her personal knowledge.

GLAD S HOUSE

WORN TO AND SUBSCRIBED before me the undersigned authority on this A4 day 2015.

Notary Public, State of Texas

My commission expires:

{seal]

INNININemodiOaVaM

•‘ KATHERINE I. MCGIBBON j1 MY COMMISNON EXPIRES

July 24,2017

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this March 26, 2015

Certified Document Number: 64384617 Total Pages: 11

U'A4 (0.az Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

2/24/20155:46:14PM

ChrisDaniel-DistrictClerk HarrisCounty

EnvelopeNo:4269683

By:CASARES,ALEXANDRO

Filed:2/24/20155:46:14PM

Affidavit of Catherine Roberts

Before me, the undersigned authority, appeared Mrs. Catherine Roberts and after being sworn upon her oath, stated the following:

My name is Catherine Roberts. I am over the age of 21, have never been convicted of any crime, and have personal knowledge of the facts stated herein and all such facts are true and correct

I am presently serving as the Vice President of The Freedmen's Town Preservation Coalition. The Coalition was formed in June 2014 with the mission of preserving and protecting the historical properties and culture in Freedmen's Town, located in the Fourth Ward of Houston, Texas. The Coalition's regular meetings are held on Mondays where we discuss action items and receive reports on our progress of preserving Freedmen's Town.

On September 21, 2014, a request for public information was forwarded to both The Texas Historical Commission and The Texas Department of Transportation to obtain information about all projects, funding and public meetings held to determine action items relating to The Freedmen's Town. The FO/A sought records from January 1, 2006 to present After being initially stonewalled by these agencies (and receiving ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64384618-Page1of1

no documents), we asked Judge Blackman to assist with obtaining the requested documents. After Judge Blackman's assistance, we finally obtained documents from both agencies. None of the documents contained any permits or contracts from The Texas Historical Commission authorizing the City of Houston or The Conrad Construction Co., Ltd to remove or repair the brick streets in Freedmen's Town. Our task force, formed in 2007, was especially looking for such THC permits and contracts pertaining to Freedmen's Town, especially any projects that could affect the bricked streets located there. None was found. We have also requested proof of such approvals from the City of Houston and none has been provided from the Texas Historical Commission.

All of our requests for public information to establish that the Texas Historical Commission has either granted a "contract" to work on the streets in Freedmen's Town or "permit" allowing for the bricked streets to be removed, altered or rearranged have turned up no documents or authorizations from THC.

This concludes my affidavit.

Catherine Roberts

SWORN TO ON THIS AODAY OF J Y, 2015.

45,7X

otary Public

1‘ ".1%sIE L MON3BON

'Auk • {MISSON EXPIRES aittiv *24,2017

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this March 26, 2015

Certified Document Number: 64384618 Total Pages: 1

U'A4 (0.az Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

2/25/2015 10:08:53 AM

Chris Daniel - District Clerk Harris County Envelope No. 4273233

By: Arron Sonnier

Filed: 2/25/2015 10:08:53 AM

CAUSE No. 2015-02771

FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION AND CATHERINE

ROBERTS

HARRIS COUNTY, TEXAS

VS.

CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT

PLAINTIFFS' SUPPLEMENT TO VERIFIED SECOND AMENDED ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF

To THE HONORABLE DISTRICT JUDGE:

Freedmen's Town Preservation Coalition and Catherine Roberts (collectively the

"Coalition"), Plaintiff herein, files this Supplement to Verified Second Amended Original ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page1of4

Petition and Application for Injunctive Relief complaining of Conrad Construction Co., Ltd. ("Conrad") and would respectfully show the Court the following:

1. Due to a typographical error, in subsection (1) of their claims for relief in their Verified Second Amended Original Petition and Application for Injunctive Relief filed on February 24, 2015, Plaintiffs requested that the Court temporarily and permanently restrain both the City of Houston and Conrad Construction Co., Ltd.

("Conrad") from removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's Town Historic District without first following all the procedures for and obtaining from the THC either a contract or permit expressly permitting the City and Conrad to do so.

2. Plaintiffs, however, non-suited the City of Houston from this case in open court on February 12, 2015, and did not and do not intend to seek any relief from or against the City of Houston pursuant to their Verified Second Amended Original Petition and Application for Injunctive Relief.

3. Accordingly, Plaintiffs file this Supplement to Verified Second Amended Original Petition and Application for Injunctive Relief to delete all references to the City of Houston in subsection (1) of the petition's claims for relief, so that subsection (1) shall now state: "The order of this Court temporarily, and upon final trial, permanently restraining and enjoining Conrad from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or

excavating any bricks from any of the streets, alleys and avenues located within the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page2of4

geographical boundaries of Freedmen's Town Historic District without first following all the procedures for and obtaining from the THC either a contract or permit expressly permitting Conrad to do so."

WHEREFORE, PREMISES CONSIDERED, the Coalition respectfully requests that Conrad be cited and required to appear and answer herein, and that the Coalition have and recover the following relief:

(1) The order of this Court temporarily, and upon final trial, permanently restraining and enjoining Conrad from in any manner, directly or indirectly, removing, altering, damaging, destroying, covering, salvaging, rearranging, disturbing or excavating any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's ; own

Historic District without first following all the procedures for and obtaining from the THC either a contract or permit expressly permitting Conrad to do so;

(2) The judgment of this Court declaring that (a) Conrad is required to obtain and keep in its possession at all times an appropriate permit from the THC expressly permitting it to perform any construction work which would remove, alter, damage, destroy, salvage or excavate any bricks from any of the streets, alleys and avenues located within the geographical boundaries of Freedmen's own, and (b) Conrad has not obtained such a permit from the THC;

(3) The Coalition have and recover from Conrad its reasonable and necessary

attorneys fees through the trial and any post-trial matters relating to the entry ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page3of4

of a final judgment herein, together with reasonable and necessary attorneys fees in the event that Conrad should unsuccessfully appeal any adverse judgment to a court of appeals and/or to the Texas Supreme Court;

(4) The Coalition have and recover from Conrad post-judgment interest on all attorneys fees awarded to the Coalition at the highest rate allowed by law;

(5) The Coalition have its costs; and (6) The Coalition have such other and further relief to which it may show itself to be justly entitled.

Respectfully submitted,

/Sig ettiamitvE.

Benjamin L. Hall III

Texas Bar No. 08743745

bhall@bhalllawfirm.com

William L. Van Fleet II

bvfleet@comcast.net

Texas Bar No. 20494750

The Hall Law Firm

530 Lovett Blvd.

Houston, TX 77006

(713) 942-9600 (Telephone)

(713) 942-9566 (Facsimile)

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64389889-Page4of4

The undersigned certifies that a true and correct copy of the above and foregoing document was forwarded to all counsel and/or pro se parties of record in accordance with the Texas Rules of Civil Procedure on February 25, 2015.

isiS efikuran,E. 5Cate

Benjamin L. Hall III

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this March 26, 2015

Certified Document Number: 64389889 Total Pages: 4

U'A4 (0.az Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 3

le-

Cause No. 42(0t5 0 211 6-r 191

Freedmen's Town Preservation Coalition In the rijudicial C IA District Court, Harris

County, Texas

v.

The City of Houston and Conrad Construction FILEDChris Daniel Co., Ltd

District Clerk

JAN 2 0 2015

Time:

Harris County, Texas

Temporary Restraining Ordemy Deputy

Pending before the Court is Plaintiff's Verified Original Petition and Request for Immediate Injunctive Relief. After considering the allegations in the verified petition, along with the attached exhibits, and given the urgency of the relief requested, (given that the complained of conduct is scheduled to commence in ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:63899369-Page1of3

less than 12 hours), and considering the express statutory authority permitting Plaintiff to seek injunctive relief as requested, and the fact that irreparable harm will occur if relief is not immediately granted, the Court finds that Plaintiff's Request for an Immediate Temporary Restraining Order has merit, is well-founded and should in all things be GRANTED.

Further, the Court specifically finds that an ex parte Temporary Restraining Order is needed given the shortness of time before destructive efforts will commence. As alleged, if the historic artifacts and structures are removed, altered, rearranged or destroyed, their original historical integrity will be lost forever.

Further, the harm sought to be avoided will not be able to be redressed because the threatened conduct will result in irreplaceable loss of the protected historical structures. Where an item or thing is irreplaceable, and the destruction of same is imminent, irreparable harm is clearly established and the court so finds. Further, the fact that The Historical Commission, the RECORDER'S MEMORANDUM

This instrument is of poor quality at the time of imaging

National Register of Histoiical Places and the City of Houston have all recognized the significance of Freedmen's Town and its unique characteristics, coupled with the clear indication in the law to preserve and protect the history of this nation, state and city, militate in favor of preserving these irreplaceable historical sites until a hearing can be conducted on the legal rights of the respective parties in this suit. The Court, therefore, concludes that irreparable harm will result to the plaintiff and the historical character of Freedmen's Town unless this temporary restraining order is entered.

It is therefore ORDERED, ADJUDGED AND DECREED, AND THE DEFENDANTS, THE CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD, and all of their employes, agents and officers, are enjoined and immediately restrained from taking any of the following actions:

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:63899369-Page2of3

-Defendants, jointly and severally, are enjoined from removing, altering, disturbing, damaging, covering or in any way rearranging any of the bricks from any street, alley or avenue within the geographic boundaries of Freedmen's Town;

-Defendants, jointly and severally, are enjoined from removing, rearranging, altering, destroying, damaging, disturbing or covering any of the streets, bricks, Yoruba pattern or structures paid for or placed in Freedmen's Town by formerly enslaved men and women; and

-Defendants, jointly and severally, are immediately enjoined from taking any further action that will cause the removal, covering, rearranging, disturbance or damaging of any of the bricks, pavers, street coverings or other structures paid for by formerly enslaved men and women within Freedmen's Town.

Section 191.173(a) of the Texas Natural Resources Code statutorily entitles Plaintiff to seek injunctive relief to prevent any violation of Section 191.001, et seq. The Court sets a bond of 5000-co be paid by Plaintiff. This temporary restraining is effective immediately upon signing by the court and shall continue in force as provided by law but not later than the conclusion of the temporary injunction hearing scheduled herein, whichever is earlier.

A temporary injunction hearing is scheduled for the 3O day of Oartt.,ck,r 3 , 2015, at I: 30 a.m./ in the gam District Court.

Done this A 017:lay of January, 2015.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:63899369-Page3of3

Ancillary Judge

..... 6 ,

•

H A

/ 01

......

'.I. •

.1 .

. ...

0 i

.n

'..• a ...:

:. 1.-• ;

... 0 -.. i -.c' E . cf.- -.•

"- ........ ..

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 63899369 Total Pages: 3

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 4

2/6/2015 6:19:51 PM

Chris Daniel - District Clerk Harris County Envelope No. 4063468

By: ALEX CASARES

Filed: 2/6/2015 6:19:51 PM

CAUSE NO. 2015-02771

FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT COALITION, PLAINTIFF, § §

V. § HARRIS COUNTY, TEXAS §

THE CITY OF HOUSTON AND CONRAD § CONSTRUCTION CO., LTD, § DEFENDANTS. § 80TH JUDICIAL DISTRICT

CITY OF HOUSTON’S MOTION TO DENY PLAINTIFF’S REQUEST FOR INJUNCTIVE RELIEF AS A MATTER OF LAW

Defendant the City of Houston (“the City”) files this Motion to Deny Plaintiff’s Request for Injunctive Relief as a Matter of Law as follows:

I. Summary

1. Plaintiff alleges a single ground for injunctive relief -- that the City cannot proceed with Page 1 of 10

the Freedmen’s Town Brick Street Project “without a contract or permit from the Texas

Historical Commission” under the Texas Antiquities Code. Pl. Orig. Pet. at p. 2-3. The City 415203

does have a permit. Following the Court’s January 28 scheduling conference, counsel for the

City first learned that the Texas Historical Commission (“THC”) had, in fact, issued a permit.

For Official Governmental Use Only Do Not Disseminate to the Public

On September 12, 2014, The Commission issued “Freedmen’s Town Brick Streets, City of Houston,” Archeological Permit No. 7021 to the City (“Permit No. 7021”). Permit No. 7021 is attached hereto as Exhibit A-1 2. Although Permit No. 7021 speaks for itself and facially satisfies the requirement that the City obtain “a permit” from the THC, Mark Wolf, Executive Director of the THC, confirms that “Permit # 7021 is the only permit needed for work to proceed on the Freedmen’s Town Brick Street Project.” See Exhibit A, Affidavit of Mark Wolfe, at ¶ 7. Finally, Permit No. 7021 is in a form that Plaintiff’s counsel admits “complies with the law.” There being no question that the

City has a “permit from the [THC],” Plaintiff’s request for a temporary injunction, its sole claim in this litigation, should be denied as a matter of law.

3. As independent and alternative grounds, Plaintiff’s request should be denied because (1)

the City was not required to secure an permit or approved contract from the THC for the Freedmen’s Project because Freedmen’s Town has not been designated as a “State Archeological Landmark” and therefore not subject to the permit or contract requirement, and (2) Plaintiff lacks standing to seek injunctive relief under the Code.

II. Background

4. On January 20, 2015, the City of Houston’s Public Works Division began lawful work for the renovation of brick streets in Freedmen’s Town (the “Freedmen’s Project”), as approved

by the Houston City Council and the THC. The City’s renovation plan includes measures to Page 2 of 10

temporarily remove paving bricks, restore them and then use them to repave the streets in the same or substantially the same manner and pattern as before. At the same time, the City will

make long-overdue infrastructure upgrades, including the replacement of inlets, the installation 415203

of new water mains, sanitary mains, storm pipe, fire hydrants and the relocation of water meters.

For Official Governmental Use Only Do Not Disseminate to the Public

The Freedmen’s Project will be overseen by an on-site archeologist approved by the THC.

5. On the same day the Freedmen’s Project began, Plaintiff applied for and received a temporary restraining order arguing that Freedmen’s Town has been designated as a “historical site” and, on the basis of such designation, the Texas Antiquities Code prohibits, “any alteration, removal or destruction of such structures without either (1) an approved contract by the THC or (2) an express permit granted by the THC.” Pl. Orig. Pet. at p.2 (citing TEX. NAT. RES. CODE §§ 191.093 and 191.095)1. The City moved to dissolve this temporary restraining order on the basis

1

The Antiquities Code, in its entirety, is attached hereto as Exhibit B.

that it had complied with the requirements of the Antiquities Code, but this request was denied.

The issue of the temporary injunction is now pending before the Court.

III. Potential Cost of Delay to the Public 6. The City’s contractor was on its first morning of work on the Freedmen’s Project when work was stopped by Plaintiff’s temporary restraining order. The contractor has mobilized considerable resources to the Freedmen’s Project and those resources stand ready and willing to resume work. Time is of the essence as further delay could result in termination of the Freedmen’s Town contract. Should the contract be terminated, the City and its taxpayers could be liable to the contractor for certain costs and expenses estimated to be $100,000. In addition, the Freedmen’s Town contract would have to be rebid. The City estimates that the rebid contract

price would be in excess of $2,000,000 above the current contract price. The City therefore Page 3 of 10

respectfully requests that the Court issue its ruling on the temporary injunction at the earliest possible date, but no later than February 16.

IV. Argument and Authority 415203

7. A temporary injunction is an extraordinary remedy that does not issue unless the party For Official Governmental Use Only Do Not Disseminate to the Public

seeking relief pleads and proves three specific elements: (1) a cause of action, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. E.g., Intercont'l Terminals Co., LLC v. Vopak N. Am., Inc., 354 S.W.3d 887, 891 (Tex.App.-Houston [1st Dist.] 2011, no pet.). As a general proposition the grant or denial of a temporary injunction rests within the sound discretion of the trial court. E.g., Placemaker, Inc. v. Greer, 654 S.W.2d 830, 832 (Tex.App.-Tyler 1983, writ dism'd). “However, the judicial discretion to grant a temporary injunction does not extend to a case which presents a question of law only and in which the facts are established and contrary to petitioners' right to prevail.” Id.

A. The THC issued Freedmen’s Town Brick Streets, Archeological Permit No. 7021 to the City on September 12, 2014

8. The named permittee on Permit No. 7021 is the “City of Houston” and the title is “Freedmen’s Town Brick Streets, City of Houston.” Exhibit A-1, at p. 1. The Permit was issued by Pat Mercado-Allinger on behalf of the THC. Id. Ms. Mercado-Allinger is employed by the THC and part of her job duties is to sign off on permits such as Permit No. 7021. See Exhibit A, at ¶ 2. Permit No. 7021 expires on September 12, 2024. Exhibit A-1, at p.1.

9. With the permit in hand, Plaintiff has no legal grounds to insist on the continued delay of the Freedmen’s Project. However, lest there be any doubt, Mark Wolfe, Executive Director of the THC, confirms that, “Archeology Permit #7021 is granted for monitoring to be performed on a potential or designated landmark or other public land known as Freedmen’s Town Brick

Streets, City of Houston, located in Harris County at the Intersection of Wilson and Andrews Page 4 of 10

Streets, 2 blocks south of west Dallas Street and 7 blocks west of Heiner Street.” Exhibit A at ¶

3. Mr. Wolfe further confirms that “Archeology Permit #7021 is the only permit needed for 415203

work to proceed on the Freedmen’s Town Brick Streets Project.” Exhibit A, at ¶7.

10. Further, at the January 26 hearing on the City’s Motion to Dissolve the Temporary For Official Governmental Use Only Do Not Disseminate to the Public

Restraining Order, counsel for Plaintiff offered certain exhibits to the Court. Plaintiff’s Exhibits Nos. 12-14 were “actual permits” issued by the THC. See certified copy of the transcript of the January 26 hearing, attached hereto as Exhibit C, at 19:6-24. Plaintiff’s Exhibit No. 14 was a THC Archeology Permit No. 6595, prepared for a survey of certain parking spaces in San Marcos on the exact same form as Permit No. 7021. Permit No. 6595 is attached hereto as Exhibit D.

11. Mr. Hall’s purpose in doing so was to demonstrate what a compliant permit looks like and includes:

And finally, Your Honor, I brought to you another permit, Tab 14. Again, that complies with the law. It indicates who owns and controls the same, where it’s to be performed, sponsored by the principal investigator, when the permit takes effect, when it’s going to expire, precisely what the statute says the permit must contain.

Exhibit C, at 19:17-23. Based on the foregoing, there can be no doubt that the City has a permit from the THC for the Freedmen’s Project. Consequently, Plaintiff’s request for a temporary injunction should be denied.

B. The City was not required under the Antiquities Code2 to secure a permit or approved contract before proceeding with the Freedmen’s Project

12. Even more fundamentally, however, the City could but was not (and in the future will not be) required to obtain a permit from the THC for infrastructure and other public works projects in Freedmen’s Town. The Antiquities Code provides for tiered layers of protection for historical

buildings and sites. Freedmen’s Town is designated as a Historic District in the National Page 5 of 10

Register of Historic Places. As a historic district, Freedmen’s Town is subject to Subsection C of

the Antiquities Code. Pursuant to that Code, if a “project is inside a designated historic district,”

415203

the “person primarily responsible for the project” must notify the THC. TEX. NAT. RES. CODE §§

191.0525(a) and (d). The THC then has the option to investigate and determine if further action For Official Governmental Use Only Do Not Disseminate to the Public

is warranted. TEX. NAT. RES. CODE §§ 191.0525(a). There is no “permit or contract”

requirement under Section 191.0525, as Plaintiff has alleged, just “notice” to the THC. There is no dispute that the City provided notice to the THC in advance of the Freedmen’s Project.

13. Plaintiff, however, seeks relief under subchapter D of the Antiquities Code, which affords higher levels of protection to “State Archeological Landmarks.” Pl. Orig. Pet. at p.2. The THC is empowered by Subchapter D to designate “objects, buildings, artifacts, implements, and

2

As discussed infra, the City did secure an archeology permit for the Freedmen’s Project. However, that permit was not required or sought to comply with the protections set forth in Sections 191.093 or 191.095 of the Code. Rather, it was sought out of an abundance of caution based on historical references in the project documents.

locations of historical, archeological, scientific, or educational interest” as “State Archeological Landmarks.” TEX. NAT. RES. CODE §§ 191.092(a). Designated State Archeological Landmarks “may not be removed, altered, damaged, destroyed, salvaged or excavated without a contract or permit from the [THC].” TEX. NAT. RES. CODE §§ 191.093.

14. The parties assign different interpretations to the forgoing language in 191.092(a), which reads, in relevant part:

Sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest . . . are state archeological landmarks and are eligible for designation.

TEX. NAT. RES. CODE §§ 191.092(a). The difference in interpretation stems from the phrase “are state archeological landmarks and are eligible for designation.” The City interprets 191.092(a)

as conferring jurisdiction on the THC to designate sites, objects, buildings, artifacts, implements, of 10

and locations nominated as having “historical, archeological, scientific or educational interest” as Page

State Archeological Landmarks. Upon official designation by the THC, State Archeological

Landmarks are then entitled to protection under the Subchapter D, including the “permit or 415203

contract” protections in Sections 191.093 and 191.095. This interpretation is consistent with For Official Governmental Use Only Do Not Disseminate to the Public

other portions Subchapter D, which set forth the nomination and designation process by which sites, objects, buildings, artifacts, implements, and locations may become State Archeological Landmarks. TEX. NAT. RES. CODE §§ 191.092(c)-(h).

15. Plaintiff, however, attempts to put the cart before the horse in believing that unspecified sites, objects, buildings, artifacts, implements, and locations are, simply by their inherent nature, State Archeological Landmarks and subject to heightened protections under Subchapter D irrespective of whether the THC has designated them as State Archeological Landmarks.

16. In determining the meaning of a statute, a court must consider the entire act, its nature and object, and the consequences that would follow from each construction. E.g., Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991). Interpretations of statutes which would produce absurd results are to be avoided. Id.

17. Under the City’s interpretation, one wishing to “remove, alter, damage, destroy, salvaged or excavate” any “site, object, building, artifact, implement, or location” that might (or might not) be of “historical, archeological, scientific or educational interest” need only to check and see if the THC has made a State Archeological Landmark designation to know if he or she needs to obtain a permit or approved contract from the THC prior to commencing work. Under Plaintiff’s interpretation, the question is impossibly vague, as no person or entity has made an official

determination as to whether the alleged “historical, archeological, scientific or educational Page 7 of 10

interest” rises to a level meriting legal protection. Stated another way, Plaintiff’s interpretation is so wildly subjective that in the most if not all cases one would have no way to know whether a

permit or approved contract is required to proceed with work on a site, building, object or 415203

location of any age or note.

For Official Governmental Use Only Do Not Disseminate to the Public

18. Given the foregoing, it should come as no surprise that Texas case law and other requisite authorities wholly agree with the City’s interpretation. In Texas Antiquities Committee v. Dallas County Community College District, the Dallas Community College District filed suit for an injunction against the Texas Antiquities Committee3 to set aside the Committee's order denying a permit to demolish three buildings owned by the College District. 554 S.W.2d 924 (Tex.1977).

As here, the location at issue was listed on a National Register, but was not designated as a State

3

In 1995, the 74th Legislature abolished the Texas Antiquities Committee and made the Texas Historical Commission the legal custodian of the Antiquities Code.

Archeological Landmark under the Antiquities Code. At the time, the relevant portion of the Antiquities Code was substantively the same as the current version:

All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest . . . are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas.

Vernon's Ann.Texas Civ.St. Art. 6145-9 (repealed). Adopting the City’s interpretation, the Texas Supreme Court described the Committee’s authority under the Antiquities Code as follows:

The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the Committee authority over buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated the buildings as State Archeological Landmarks, the College District does not need the Committee's permission before demolishing the buildings.

Page 8 of 10

Id. at 926.

19. In Board of Regents v. Walker County Historical Commission, the trial court issued a

temporary injunction preventing restoration work on Sam Houston’s Woodward home if and 415203

until a permit was issued by the THC. 608 S.W.2d 252 (Tex.Civ.App.—Houston [14th Dist.]

For Official Governmental Use Only Do Not Disseminate to the Public

1980, no writ). Appellants argued since the Woodward home was not designated as a State Archeological Landmark, the THC not authorized nor required to issue a permit to appellants.

Id. at 253. Citing to Texas Antiquities Committee v. Dallas County Community College District, the appellate court agreed and dissolved the temporary injunction. Id.

20. The City’s interpretation is further bolstered by the Texas Attorney General’s Office, which, citing to the above cases, opined:

[T]he Antiquities Committee has no jurisdiction over buildings which it has not designated as state archeological landmarks, and its permission is therefore not needed before such a building is altered . . . it is the only reasonable construction of the Antiquities Code provisions. One can hardly be expected to know that a

particular item is a ‘landmark,’ and is therefore subject to the permit requirement, until the Antiquities Committee formally designates it as such.

Op. Tex. Att’y Gen. No. MW-378 (1981). Freedman’s Town has not been designated as a State Archeological Landmark. Ex. B, at ¶ 9. In accordance with Texas case law and the rules of statutory construction, as a matter of law the City was not required to get a permit from the THC prior to commencing work on the Freedmen’s Project.

C. Plaintiff lacks standing to seek injunctive relief 21. Plaintiff represents itself as an “unincorporated association of citizens located in Houston, Texas.” Pl. Orig. Pet. at p. 1. Plaintiffs assert standing under Section 191.173(a) of the Antiquities Code. Id. at p. 2. That section confers standing to “a Citizen of the State of Texas.”

TEX. NAT. RES. CODE §§ 191.173(a). By its own pleading, Plaintiff is not a “citizen,” it is an

“unincorporated association.” Accordingly, it lacks standing under the Antiquities Code.

Page 9 of 10

V. Prayer

For the foregoing reasons, Defendants request that the Court deny Plaintiff’s request for a 415203

temporary injunction as a matter of law.

Respectfully submitted,

For Official Governmental Use Only Do Not Disseminate to the Public

DONNA L. EDMUNDSON

City Attorney

JUDITH L. RAMSEY

Chief, General Litigation Section

/s/ Darah Eckert

Darah Eckert

Senior Assistant City Attorney SBN 24007141

Lisa A. Ketai

Senior Assistant City Attorney SBN 11362400

Brian Amis

Senior Assistant City Attorney SBN 24040424

CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street

Houston, Texas 77002

832.393.6348 (telephone)

832.393.6259 (facsimile)

darah.eckert@houstontx.gov Attorneys for Defendant the City of Houston

Certificate of Service

I hereby certify that on this 6th day of February, 2015, a true and correct copy of the Page 10 of 10

foregoing has been served on counsel below via e-service, email and/or facsimile.

Benjamin Hall, III

The Hall Law Firm

530 Lovett Boulevard

415203

Houston, Texas 77006

For Official Governmental Use Only Do Not Disseminate to the Public

_/s/ Darah Eckert ____________________ Darah Eckert

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64152036 Total Pages: 10

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page1of4

EXHIBIT A

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page2of4

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page3of4 EXHIBIT A-1

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152037-Page4of4

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64152037 Total Pages: 4

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 1 of 18

NATURAL RESOURCES CODE

TITLE 9. HERITAGE

CHAPTER 191. ANTIQUITIES CODE SUBCHAPTER A. GENERAL PROVISIONS

Sec. 191.001. TITLE. This chapter may be cited as the Antiquities Code of Texas.

Acts 1977, 65th Leg., p. 2683, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.002. DECLARATION OF PUBLIC POLICY. It is the public policy and in the public interest of the State of Texas to locate, protect, and preserve all sites, objects, buildings, pre-twentieth century shipwrecks, and locations of historical, archeological, ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page1of18

educational, or scientific interest, including but not limited to prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites, archeological sites of every character, treasure imbedded in the earth, sunken or abandoned ships and wrecks of the sea or any part of their contents, maps, records, documents, books, artifacts, and implements of culture in any way related to the inhabitants, pre-history, history, natural history, government, or culture in, on, or under any of the land in the State of Texas, including the tidelands, submerged land, and the bed of the sea within the jurisdiction of the State of Texas.

Acts 1977, 65th Leg., p. 2683, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.003. DEFINITIONS. In this chapter:

(1) "Committee" means the Texas Historical Commission.

(2) "Landmark" means a state archeological landmark.

(3) "State agency" means a department, commission, board, office, or other agency that is a part of state government and that is created by the constitution or a statute of this state. The term

EXHIBIT B

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 2 of 18

includes an institution of higher education as defined by Section 61.003, Texas Education Code.

(4) "Political subdivision" means a local governmental entity created and operating under the laws of this state, including a city, county, school district, or special district created under Article III, Section 52(b)(1) or (2), or Article XVI, Section 59, of the Texas Constitution.

Acts 1977, 65th Leg., p. 2683, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2001, ch. 364, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 1, eff.

Sept. 1, 1987; Acts 1995, 74th Leg., ch. 109, Sec. 18, eff. Aug. 30, 1995.

Sec. 191.004. CERTAIN RECORDS NOT PUBLIC INFORMATION. (a)

Information specifying the location of any site or item declared to be a state archeological landmark under Subchapter D of this chapter is not public information.

(b) Information specifying the location or nature of an ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page2of18

activity covered by a permit or an application for a permit under this chapter is not public information.

(c) Information specifying details of a survey to locate state archeological landmarks under this chapter is not public information.

Added by Acts 1981, 67th Leg., p. 959, ch. 365, Sec. 1, eff. June 10, 1981.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 191.021. COMPLIANCE WITH OPEN MEETINGS ACT AND ADMINISTRATIVE PROCEDURE AND TEXAS REGISTER ACT. (a) Repealed by Acts 1995, 74th Leg., ch. 109, Sec. 29, eff. Aug. 30, 1995.

(b) If an institution of higher education notifies the committee in a timely manner (as established by the committee's rules) that it protests the proposed designation of a building or land under its control as a landmark, the matter becomes a contested case under the provisions of Sections 12 through 20 of the Administrative Procedure and Texas Register Act. In the conduct of proceedings under the Administrative Procedure and Texas Register

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 3 of 18

Act, both the hearing officer in his or her recommendations to the committee and the committee in its determinations of findings of fact and conclusions of law shall consider, in addition to such other objective criteria as the committee may establish pursuant to Section 191.091 of this chapter:

(1) that the primary mission of institutions of higher education is the provision of educational services to the state's citizens;

(2) that the authority for expenditure of the portion of the state's resources allocated to institutions of higher education for construction and repair purposes is entrusted to the governing boards of institutions of higher education for the purpose of the furtherance of the primary mission of the respective institutions of higher education;

(3) whether the benefit to the state from landmark designation outweighs the potential inflexibility of use that may be a consequence of the designation; and (4) whether the cost of remodeling and/or restoration that ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page3of18

might be required under the permit procedures of the committee if the building were designated as a landmark may be so substantially greater than remodeling under procedures established by law for the review of remodeling projects for higher education buildings not so designated as to impair the proper use of funds designated by the state for educational purposes at the institution.

(c) If an institution of higher education notifies the committee in a timely manner (as established by the committee's rules) that it protests the terms of a permit proposed to be granted to an institution of higher education under this chapter, the matter becomes a contested case under the provisions of Sections 12 through 20 of the Administrative Procedure and the Texas Register Act. The hearing officer in his or her recommendations to the committee and the committee in its determination of findings of fact and conclusions of law shall consider:

(1) that the primary mission of institutions of higher education is the provision of educational services to the state's citizens;

(2) that the authority for expenditure of the portion of the state's resources allocated to institutions of higher education

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 4 of 18

for construction and repair purposes is entrusted to the governing boards of institutions of higher education for the purpose of the furtherance of the primary mission of the respective institutions of higher education;

(3) whether the legislature has provided extra funds that may be required to implement any proposed requirements;

(4) the effect of any proposed requirements on maintenance costs;

(5) the effect of any proposed requirements on energy costs; and

(6) the appropriateness of any proposed permit requirements to the uses to which a public building has been or will be dedicated by the governing board of the institution of higher education.

(d) Weighing the criteria set forth in Subsections (b) and (c)

of this section against the criteria it adopts pursuant to Section 191.092 of this chapter and such criteria as it may adopt with regard to permit requirements, the committee shall designate a building or land under the control of an institution of higher education as a ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page4of18

landmark or include a requirement in a permit only if the record before the committee establishes by clear and convincing evidence that such designation or inclusion would be in the public interest.

Added by Acts 1983, 68th Leg., p. 2003, ch. 364, Sec. 6, eff. Sept.

1, 1983. Amended by Acts 1995, 74th Leg., ch. 109, Sec. 29, eff.

Aug. 30, 1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 1182 (H.B. 3632), Sec. 5, eff.

June 19, 2009.

SUBCHAPTER C. POWERS AND DUTIES

Sec. 191.051. IN GENERAL. (a) The committee is the legal custodian of all items described in this chapter that have been recovered and retained by the State of Texas.

(b) The committee shall:

(1) maintain an inventory of the items recovered and retained by the State of Texas, showing the description and depository of them;

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 5 of 18

(2) determine the site of and designate landmarks and remove from the designation certain sites, as provided in Subchapter D of this chapter;

(3) contract or otherwise provide for discovery operations and scientific investigations under the provisions of Section 191.053 of this code;

(4) consider the requests for and issue the permits provided for in Section 191.054 of this code;

(5) prepare and make available to the general public and appropriate state agencies and political subdivisions information of consumer interest describing the functions of the committee and the procedures by which complaints are filed with and resolved by the committee; and

(6) protect and preserve the archeological and historical resources of Texas.

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2002, ch. 364, Sec. 5, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 4, eff.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page5of18

Sept. 1, 1987.

Sec. 191.052. RULES. The committee may promulgate rules and require contract or permit conditions to reasonably effect the purposes of this chapter.

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.0525. NOTICE REQUIRED. (a) Before breaking ground at a project location on state or local public land, the person primarily responsible for the project or the person's agent shall notify the committee. The committee shall promptly determine whether:

(1) a historically significant archeological site is likely to be present at the project location;

(2) additional action, if any, is needed to protect the site; and

(3) an archeological survey is necessary.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 6 of 18

(b) Except as provided by Subsection (c), the committee shall make a determination not later than the 30th day after the date the committee receives notice under Subsection (a). If the committee fails to respond in the 30-day period, the person may proceed with the project without further notice to the committee. If the committee determines that an archeological survey is necessary at the project location, the project may not commence until the archeological survey is completed.

(c) The committee shall make a determination not later than the 15th day after the date the committee receives notice under Subsection (a) for project locations regarding oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline projects. If the committee fails to respond in the 15-day period, the person may proceed with the project without further notice to the committee. If the committee determines that an archeological survey is necessary at the project location, the project may not commence until the archeological survey is completed.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page6of18

(d) A project for a county, municipality, or an entity created under Section 52, Article III, or Section 59, Article XVI, Texas Constitution, requires advance project review only if the project affects a cumulative area larger than five acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is triggered first, or if the project is inside a designated historic district or recorded archeological site.

(e) There exist categorical exclusions since many activities conducted on nonfederal public land have little, if any, chance to damage archeological sites, and therefore should not require notification under this section. The following are categorical exclusions at a minimum:

(1) water injection into existing oil and gas wells;

(2) upgrading of electrical transmission lines when there will be no new disturbance of the existing easement;

(3) seismic exploration activity when there is no ground penetration or disturbance;

(4) building and repairing fences that do not require construction or modification of associated roads, fire breaks, or previously disturbed ground;

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 7 of 18

(5) road maintenance that does not involve widening or lengthening the road;

(6) installation or replacement of meter taps;

(7) controlled burning of fields;

(8) animal grazing;

(9) plowing, if the techniques are similar to those used previously;

(10) installation of monuments and sign posts unless within the boundaries of designated historic districts;

(11) maintenance of existing trails;

(12) land sales and trades of land held by the permanent school fund and permanent university fund;

(13) permanent school fund and permanent university fund leases, easements, and permits, including mineral leases and pooling agreements, in which the lessee, grantee, or permittee is specifically required to comply with the provisions of this chapter;

(14) oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page7of18

pipeline project in an area where the project will cross state or local public roads, rivers, and streams, unless they contain a recorded archeological site or a designated state land tract in Texas' submerged lands;

(15) maintenance, operation, replacement, or minor modification of an existing oil, gas, or other mineral exploration, production, processing, marketing, refining, or transportation facility or pipeline; and (16) any project for which a state permit application has been made prior to promulgation of rules under this section.

(f) This section does not apply to any state agency or political subdivision that has entered into a memorandum of understanding for coordination with the committee.

(g)(1) If, during the course of a project or class of projects that have complied with the notification requirements of this section, a person encounters an archeological site, the person shall abate activity on the project at the project location and shall promptly notify the committee. Within two business days of notification under this subsection, the committee shall determine whether:

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 8 of 18

(A) a historically significant archeological site is likely to be present in the project area;

(B) additional action, if any, is needed to protect the site; and

(C) an archeological investigation is necessary.

(2) If the committee fails to respond within two business days, the person may proceed without further notice to the committee.

(h) The notification required by this section does not apply to a response to a fire, spill, or other emergency associated with an existing facility located on state or local public lands if the emergency requires an immediate response.

(i) The committee by rule shall establish procedures to implement this section.

Added by Acts 1995, 74th Leg., ch. 109, Sec. 19, eff. Aug. 30, 1995.

Amended by Acts 1997, 75th Leg., ch. 1070, Sec. 51, eff. Sept. 1, 1997.

Sec. 191.053. CONTRACT FOR DISCOVERY AND SCIENTIFIC ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page8of18

INVESTIGATION. (a) The committee may contract with other state agencies or political subdivisions and with qualified private institutions, corporations, or individuals for the discovery and scientific investigation of sunken or abandoned ships or wrecks of the sea, or any part of the contents of them, or archeological deposits or treasure imbedded in the earth.

(b) The contract shall:

(1) be on a form approved by the attorney general;

(2) specify the location, nature of the activity, and the time period covered by the contract; and (3) provide for the termination of any right in the investigator or permittee under the contract on the violation of any of the terms of the contract.

(c) The executed contract shall be recorded by the person, firm, or corporation obtaining the contract in the office of the county clerk in the county or counties in which the operations are to be conducted prior to the commencement of the operation.

(d) Title to all objects recovered is retained by the State of Texas unless and until it is released by the committee.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 9 of 18

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2006, ch. 364, Sec. 7, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 5, eff.

Sept. 1, 1987.

Sec. 191.054. PERMIT FOR SURVEY AND DISCOVERY, EXCAVATION, RESTORATION, DEMOLITION, OR STUDY. (a) The committee may issue a permit to other state agencies or political subdivisions or to qualified private institutions, companies, or individuals for the survey and discovery, excavation, demolition, or restoration of, or the conduct of scientific or educational studies at, in, or on landmarks, or for the discovery of eligible landmarks on public land if it is the opinion of the committee that the permit is in the best interest of the State of Texas.

(b) Restoration shall be defined as any rehabilitation of a landmark excepting normal maintenance or alterations to nonpublic interior spaces.

(c) The permit shall:

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page9of18

(1) be on a form approved by the attorney general;

(2) specify the location, nature of the activity, and the time period covered by the permit; and (3) provide for the termination of any right in the investigator or permittee under the permit on the violation of any of the terms of the permit.

Acts 1977, 65th Leg., p. 2685, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2006, ch. 364, Sec. 7, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 6, eff.

Sept. 1, 1987.

Sec. 191.055. SUPERVISION. All scientific investigations or recovery operations conducted under the contract provisions in Section 191.053 of this code and all operations conducted under permits or contracts set out in Section 191.054 of this code must be carried out:

(1) under the general supervision of the committee;

(2) in accordance with reasonable rules adopted by the committee; and

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 10 of 18

(3) in such manner that the maximum amount of historic, scientific, archeological, and educational information may be recovered and preserved in addition to the physical recovery of items.

Acts 1977, 65th Leg., p. 2686, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2002, ch. 364, Sec. 7, eff. Sept. 1, 1983.

Sec. 191.056. ACCEPTANCE OF GIFTS. The committee may accept gifts, grants, devises, or bequests of money, securities, or property to be used in the pursuance of its activities and the performance of its duties.

Acts 1977, 65th Leg., p. 2686, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2006, ch. 364, Sec. 7, eff. Sept. 1, 1983.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page10of18

Sec. 191.057. SURVEY, EXCAVATION, OR RESTORATION FOR PRIVATE PARTIES. The committee may survey, excavate, or restore antiquities for private parties under rules promulgated by the committee. All real and administrative costs incurred in the survey, excavation, or restoration shall be paid by the private party.

Acts 1977, 65th Leg., p. 2686, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 7, eff. Sept.

1, 1987.

Sec. 191.058. CURATION OF ARTIFACTS. (a) As far as is consistent with the public policy of this chapter, the committee, on a majority vote, may arrange or contract with other state agencies or political subdivisions, and qualified private institutions, corporations, or individuals, for public display of artifacts and other items in its custody through permanent exhibits established in the locality or region in which the artifacts were discovered or recovered. The committee, on a majority vote, may also arrange or contract with these same persons and groups for portable or mobile displays.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 11 of 18

(b) The committee is the legal custodian of the items described in this chapter and shall adopt appropriate rules, terms, and conditions to assure appropriate security, qualification of personnel, insurance, facilities for preservation, restoration, and display of the items loaned under the contracts.

(c) Arrangements for curation of artifacts, data, and other materials recovered under Texas Antiquities Committee permits are specified in the body of the permit. Should a state agency or political subdivision lack the facilities or for any reason be unable to curate or provide responsible storage for such artifacts, data, or other materials, the Texas Antiquities Committee will arrange for curation at a suitable institution. The Texas Antiquities Committee may by rule assess costs for the curation.

(d) The committee may contract with a qualified institution for the institution to serve as a repository for artifacts and other items in the custody of the committee. The Corpus Christi Museum of Science and History is the repository for marine artifacts. The committee may contract with other qualified institutions to serve as ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page11of18

additional repositories for marine artifacts. The committee may authorize an archeological repository to loan artifacts and other items curated by the repository to a qualified institution for public display. The Corpus Christi Museum of Science and History:

(1) does not own the artifacts for which it serves as a repository; and

(2) shall make available for loan to a qualified institution for display the marine artifacts for which it serves as a repository.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1983, 68th Leg., p. 2008, ch. 364, Sec. 8, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 948, Sec. 8, eff.

Sept. 1, 1987; Acts 1997, 75th Leg., ch. 797, Sec. 1, 2, eff. June 17, 1997.

Sec. 191.059. COMPLAINTS. (a) The committee shall keep an information file about each complaint filed with the committee.

(b) If a written complaint is filed with the committee, the committee, at least as frequently as quarterly and until final

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 12 of 18

disposition of the complaint, shall notify the parties to the complaint of the status of the complaint.

Added by Acts 1983, 68th Leg., p. 2009, ch. 364, Sec. 9, eff. Sept.

1, 1983.

SUBCHAPTER D. STATE ARCHEOLOGICAL LANDMARKS

Sec. 191.091. SHIPS, WRECKS OF THE SEA, AND TREASURE IMBEDDED IN EARTH. Sunken or abandoned pre-twentieth century ships and wrecks of the sea, and any part or the contents of them, and all treasure imbedded in the earth, located in, on, or under the surface of land belonging to the State of Texas, including its tidelands, submerged land, and the beds of its rivers and the sea within jurisdiction of the State of Texas, are declared to be state archeological landmarks and are eligible for designation.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 9, eff. Sept.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page12of18

1, 1987.

Sec. 191.092. OTHER SITES, ARTIFACTS, OR ARTICLES. (a) Sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest, including those pertaining to prehistoric and historical American Indians or aboriginal campsites, dwellings, and habitation sites, their artifacts and implements of culture, as well as archeological sites of every character that are located in, on, or under the surface of any land belonging to the State of Texas or to any county, city, or political subdivision of the state are state archeological landmarks and are eligible for designation.

(b) For the purposes of this section, a structure or a building has historical interest if the structure or building:

(1) was the site of an event that has significance in the history of the United States or the State of Texas;

(2) was significantly associated with the life of a famous person;

(3) was significantly associated with an event that symbolizes an important principle or ideal;

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 13 of 18

(4) represents a distinctive architectural type and has value as an example of a period, style, or construction technique;

or

(5) is important as part of the heritage of a religious organization, ethnic group, or local society.

(c) An individual or a private group that desires to nominate a building or site owned by a political subdivision as a state archeological landmark must give notice of the nomination at the individual's or group's own expense in a newspaper of general circulation published in the city, town, or county in which the building or site is located. If no newspaper of general circulation is published in the city, town, or county, the notice must be published in a newspaper of general circulation published in an adjoining or neighboring county that is circulated in the county of the applicant's residence. The notice must:

(1) be printed in 12-point boldface type;

(2) include the exact location of the building or site;

and

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page13of18

(3) include the name of the group or individual nominating the building or site.

(d) An original copy of the notice and an affidavit of publication signed by the newspaper's publisher must be submitted to the commission with the application for nomination.

(e) The commission may not consider for designation as a state archeological landmark a building or site owned by a political subdivision unless the notice and affidavit required by Subsection (d) are attached to the application.

(f) Before the committee may designate a structure or building as a state archeological landmark, the structure or building must be listed on the National Register of Historic Places.

(g) The committee shall adopt rules establishing criteria for the designation of a structure or building as a state archeological landmark.

(h) The committee shall consider any and all fiscal impact on local political subdivisions before any structure or building owned by a local political subdivision may be designated as a state archeological landmark.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 14 of 18

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 193, ch. 90, Sec. 1, eff.

Aug. 31, 1981; Acts 1987, 70th Leg., ch. 948, Sec. 10, eff. Sept. 1, 1987; Acts 1995, 74th Leg., ch. 109, Sec. 20, eff. Aug. 30, 1995.

Sec. 191.093. PREREQUISITES TO REMOVAL, ALTERING, DAMAGING, DESTROYING, SALVAGING, OR EXCAVATING CERTAIN LANDMARKS. Landmarks under Section 191.091 or 191.092 of this code are the sole property of the State of Texas and may not be removed, altered, damaged, destroyed, salvaged, or excavated without a contract with or permit from the committee.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1981, 67th Leg., p. 193, ch. 90, Sec. 2, eff.

Aug. 31, 1981; Acts 1987, 70th Leg., ch. 948, Sec. 11, eff. Sept. 1, 1987.

Sec. 191.094. DESIGNATING A LANDMARK ON PRIVATE LAND. (a) Any ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page14of18

site located on private land which is determined by majority vote of the committee to be of sufficient archeological, scientific, or historical significance to scientific study, interest, or public representation of the aboriginal or historical past of Texas may be designated a state archeological landmark by the committee.

(b) No site may be designated on private land without the written consent of the landowner or landowners in recordable form sufficiently describing the site so that it may be located on the ground.

(c) On designation, the consent of the landowner shall be recorded in the deed records of the county in which the land is located.

Acts 1977, 65th Leg., p. 2687, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.095. PERMIT FOR LANDMARK ON PRIVATE LAND. All sites or items of archeological, scientific, or historical interest located on private land in the State of Texas in areas designated as landmarks, as provided in Section 191.094 of this code, and landmarks

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 15 of 18

under Section 191.092 of this code, may not be taken, altered, damaged, destroyed, salvaged, or excavated without a permit from the committee or in violation of the terms of the permit.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.096. MARKING LANDMARK ON PRIVATE LAND. Any site on private land which is designated a landmark shall be marked by at least one marker bearing the words "State Archeological Landmark".

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 12, eff. Sept.

1, 1987.

Sec. 191.097. REMOVING DESIGNATION AS LANDMARK. (a) Any landmark on public or private land may be determined by majority vote of the committee to be of no further historical, archeological, ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page15of18

educational, or scientific value, or not of sufficient value to warrant its further classification as a landmark, and on this determination may be removed from the designation as a landmark.

(b) On removal of the designation on private land which was designated by instrument of record, the committee shall execute and record in the deed records of the county in which the site is located an instrument setting out the determination and releasing the site from the provisions of this chapter.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 13, eff. Sept.

1, 1987.

Sec. 191.098. NOTIFICATION OF ALTERATION OR DEMOLITION OF POSSIBLE LANDMARK. (a) A state agency may not alter, renovate, or demolish a building possessed by the state that was constructed at least 50 years before the alteration, renovation, or demolition and that has not been designated a landmark by the committee, without notifying the committee of the proposed alteration, renovation, or demolition not later than the 60th day before the day on which the agency begins the alteration, renovation, or demolition.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 16 of 18

(b) After receipt of the notice the committee may waive the waiting period; however, if the committee institutes proceedings to determine whether the building is a state archeological landmark under Section 191.092 of this code not later than the 60th day after the day on which the notice is received by the committee, the agency must obtain a permit from the committee before beginning an alteration, renovation, or demolition of the building during the time that the committee's proceedings are pending.

(c) Should the committee fail to provide a substantive response within 60 days to a request for a review of project plans, application for permit, draft report review, or other business required under the Antiquities Code, the applicant may proceed without further reference to the committee.

Added by Acts 1983, 68th Leg., p. 2009, ch. 364, Sec. 10, eff. Sept.

1, 1983. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 14, eff.

Sept. 1, 1987.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page16of18

SUBCHAPTER E. PROHIBITIONS

Sec. 191.131. CONTRACT OR PERMIT REQUIREMENT. (a) No person, firm, or corporation may conduct a salvage or recovery operation without first obtaining a contract.

(b) No person, firm, or corporation may conduct an operation on any landmark without first obtaining a permit and having the permit in his or its possession at the site of the operation, or conduct the operation in violation of the provisions of the permit.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.132. DAMAGE OR DESTRUCTION. (a) No person may intentionally and knowingly deface American Indian or aboriginal paintings, hieroglyphics, or other marks or carvings on rock or elsewhere that pertain to early American Indian or aboriginal habitation of the country.

(b) A person who is not the owner shall not wilfully injure, disfigure, remove, or destroy a historical structure, monument, marker, medallion, or artifact without lawful authority.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 17 of 18

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.133. ENTRY WITHOUT CONSENT. No person who is not the owner, and does not have the consent of the owner, proprietor, lessee, or person in charge, may enter or attempt to enter on the enclosed land of another and intentionally injure, disfigure, remove, excavate, damage, take, dig into, or destroy any historical structure, monument, marker, medallion, or artifact, or any prehistoric or historic archeological site, American Indian or aboriginal campsite, artifact, burial, ruin, or other archeological remains located in, on, or under any private land within the State of Texas.

Acts 1977, 65th Leg., p. 2688, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page17of18

SUBCHAPTER F. ENFORCEMENT

Sec. 191.171. CRIMINAL PENALTY. (a) A person violating any of the provisions of this chapter is guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than $50 and not more than $1,000, by confinement in jail for not more than 30 days, or by both.

(b) Each day of continued violation of any provision of this chapter constitutes a separate offense for which the offender may be punished.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.172. CIVIL ACTION BY ATTORNEY GENERAL. (a) In addition to, and without limiting the other powers of the attorney general, and without altering or waiving any criminal penalty provided in this chapter, the attorney general may bring an action in the name of the State of Texas in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

NATURAL RESOURCES CODE CHAPTER 191. ANTIQUITIES CODE Page 18 of 18

violations or threatened violations of this chapter, and for the return of items taken in violation of the provisions of this chapter.

(b) Venue for an action instituted by the attorney general lies either in Travis County or in the county in which the activity sought to be restrained is alleged to be taking place or from which the items were taken.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.173. CIVIL ACTION BY CITIZEN. (a) A citizen of the State of Texas may bring an action in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter, and for the return of items taken in violation of the provisions of this chapter.

(b) Venue of an action by a citizen lies in the county in which the activity sought to be restrained is alleged to be taking place or ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152038-Page18of18

from which the items were taken.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977.

Sec. 191.174. ASSISTANCE FROM STATE AGENCIES, POLITICAL SUBDIVISIONS, AND LAW ENFORCEMENT OFFICERS. (a) The chief administrative officers of all state agencies and political subdivisions are directed to cooperate and assist the committee and the attorney general in carrying out the intent of this chapter.

(b) All state and local law enforcement agencies and officers are directed to assist in enforcing the provisions and carrying out the intent of this chapter.

Acts 1977, 65th Leg., p. 2689, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 1987, 70th Leg., ch. 948, Sec. 15, eff. Sept.

1, 1987.

http://www.statutes.legis.state.tx.us/Docs/NR/htm/NR.191.htm 2/6/2015

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64152038 Total Pages: 18

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

1 CAUSE NUMBER 2015-02771

2 FREEDMEN'S TOWN : IN THE DISTRICT COURT PRESERVATION COALITION :

3 :

v. : HARRIS COUNTY, TEXAS 4 :

THE CITY OF HOUSTON AND :

5 CONRAD CONSTRUCTION CO., :

LTD. : 80th JUDICIAL DISTRICT

6

7

8

9

10

*************************************************

11

JANUARY 26, 2015

12

************************************************* ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page1of24

13

14

15

16

17 On the 26th day of January, 2015, the 18 following proceedings came on to be heard in the 19 above-entitled and -numbered cause before the 20 Honorable Alexandra Smoots-Hogan, Judge Presiding, 21 held in Houston, Harris County, Texas.

22 Proceedings reported by Certified Shorthand 23 Reporter and Machine Shorthand/Computer-Aided 24 Transcription.

25 EXHIBIT C DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

2 A P P E A R A N C E S

3

4 FOR THE PLAINTIFF:

Mr. Benjamin Hall, III, SBN 08743745 5 THE HALL LAW FIRM 530 Lovett Boulevard

6 Houston, Texas 77006 Telephone: 713-942-9600

7 Facsimile: 713-942-9566

8 Mr. William L. Van Fleet, SBN 20494750 Attorney at Law

9 9225 Katy Freeway, Suite 250 Houston, Texas 77024

10 Telephone: 713-224-9400 Facsimile: 713-224-0609

11

12 FOR THE DEFENDANT:

Ms. Darah Eckert, SBN 24007141 ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page2of24

13 Mr. Brian Amis, SBN 24040424 Ms. Lisa A. Ketai, SBN 11362400 14 CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street

15 Houston, Texas 77002 Telephone: 832-393-6348

16 Facsimile: 832-393-6259

17

18

19

20

21

22

23

24

25

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 P R O C E E D I N G S 2 THE COURT: We are on the record in 3 Cause Number 2015-02771, Freedmen's Town Preservation 4 Coalition versus City of Houston, et al., and 5 appearance for the record, Counsel.

6 MR. HALL: Your Honor, Benjamin Hall 7 and Bill Van Fleet on behalf of Freedmen's Town 8 Preservation Coalition.

9 MS. ECKERT: Darah Eckert, Lisa Ketai, 10 and Brian Amis on behalf of the City of Houston.

11 THE COURT: All right. What's going on

12 today? It's your motion to dissolve, so --

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page3of24

13 MS. ECKERT: Yes, ma'am. Permission to 14 approach, or do you --

15 THE COURT: Yeah.

16 MS. ECKERT: -- just want us to handle 17 it from here?

18 THE COURT: I don't care. Either way.

19 You can handle it from there. That's fine.

20 MS. ECKERT: Okay. That's fine.

21 We're here today to discuss a TRO that 22 was entered ex parte on -- last Tuesday. We would've 23 liked to have been there, and since we wouldn't --

24 since we weren't invited, we're here today to 25 dissolve the TR -- to ask the Court to dissolve the

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 TRO. We believe the TRO has some deficiencies, one 2 being that it's void on its face because it doesn't 3 state the time that it was entered. The petition has 4 the time the petition was filed, but the TRO --

5 there's no time on the TRO, and Rule 680 of the Texas 6 Rules of Civil Procedure -- that voids the TRO.

7 And then the TRO is based on incorrect 8 facts of law and -- statement of facts and law, the 9 first being that the TRO is -- the TRO proposes that 10 the City has -- does not have the requisite 11 permission from the Texas Historical Commission to

12 start and complete the brick renovation project for ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page4of24

13 Freedmen's Town. We understand and agree that it 14 is -- that Freedmen's Town is designated as a 15 historical district. We agree with Plaintiffs on 16 that. But it does not have additional designations, 17 which would heighten the scrutiny for the City's 18 project. This Freedmen's Town is not a -- designated 19 as a State architectural landmark. It's not a --

20 designated as a traditional cultural property. It 21 doesn't have those specific designations.

22 I've -- checked today, was on the phone 23 with Linda Henderson with the Texas Historical 24 Commission. I have confirmed that -- that this area 25 is designated as a historical district only, and

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 because it's designated as a historical district 2 only, the City has to provide notice, and it has done 3 that. It has -- the THC has been involved with our 4 project. The public has been involved with our 5 project. Mayor has someone on staff, Keith Wade, who 6 has been dealing with the stakeholders, the 7 coalition -- the members of the coalition about the 8 project.

9 On December 15, THC visited Houston, 10 from Austin, and they looked at the process that we 11 were using to remove and clean the bricks. Linda

12 Henderson was the representative from THC that came ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page5of24

13 down that day. She made some comments. On 14 December 22nd she gave the approval for the City for 15 the process that we are using to remove the bricks --

16 clean the bricks before completing the work in 17 Freedmen's Town and then putting them back in.

18 She said "Okay. Subject to a couple of 19 comments, this is approved and you're good to go,"

20 and we have those approvals from THC.

21 The work that we're doing in Freedmen's 22 Town -- the City is tasked with providing for the 23 health, the safety and welfare of its citizens. We 24 need to go in and clean up the infrastructure. We 25 need to install new water -- sewer lines, sewer

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 mains, water mains, fire hydrants.

2 All of this work needs to be done in 3 this area, so we need to remove the bricks, clean 4 them, store them. We're going to have an 5 architecture -- an archaeologist on-site. They've 6 coordinated the with the Texas Historical Commission.

7 They're going to be on-site every day that we're 8 doing this project. There is -- the bricks -- when 9 the bricks are being worked on and they're being 10 removed, the archaeologists are going to be on-site, 11 and they're going to supervise all of this work.

12 THE COURT: Let me ask you a ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page6of24

13 question --

14 MS. ECKERT: Yes, ma'am.

15 THE COURT: -- because this came up 16 before. Number one, are they going to be marking the 17 bricks so that we know where they go when they're 18 supposed to go back?

19 MS. ECKERT: I don't believe they're 20 going to be mak -- marking the bricks.

21 THE COURT: Uh-huh. All right.

22 Question Number 2: As far as what I saw and -- what 23 I've seen and what's been handed me today that I've 24 had a little bit of time to go over --

25 MS. ECKERT: Sure.

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 THE COURT: What I saw previously was 2 there's supposed to be a formal permit from the 3 Historical Commission before work begins. Correct?

4 MS. ECKERT: No.

5 THE COURT: Oh.

6 MS. ECKERT: That's incorrect.

7 THE COURT: Okay. Enlighten me on this 8 one.

9 MS. ECKERT: We have approval from the 10 Texas Historical Commission. The -- the permit 11 that -- Section 191 of the Texas Natural Resource

12 Code --

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page7of24

13 THE COURT: Uh-huh.

14 MS. ECKERT: That section applies to 15 properties and buildings that are designated as State 16 Archaeological Landmarks. Freedmen's Town does not 17 have that designation.

18 THE COURT: I thought it was part of --

19 yeah.

20 MS. ECKERT: It's in a historical 21 district. It does not have the SAL designation. And 22 I confirmed that today with Linda from the THC.

23 THE COURT: Okay.

24 MS. ECKERT: So that's a heightened 25 scrutiny. Those properties that have that

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 designation do have a heightened scrutiny for work 2 being done on them. Freedmen's Town does not have 3 that designation. Because it is designated as a 4 historical district, there are notice provisions.

5 There's notice to THC that must be given. There's 6 coordination with THC that must be done.

7 We have done that. They've been 8 involved in the process. We have -- and I've 9 attached to my motion to withdraw -- there are -- the 10 THC approvals are part of the field notes, and there 11 are -- there's -- for the brick removal, which is

12 Plan Submittal 47(b), and the -- the permission is ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page8of24

13 signed by Linda Henderson, and it notes that the site 14 visit was on December 15th, and then her approval --

15 the THC's approval is given on December 22nd, and 16 that's for the brick removal and then for the brick 17 cleaning. We have also attached some of the -- the 18 contract documents.

19 THE COURT: Uh-huh.

20 MS. ECKERT: The contract documents 21 stipulate that the archaeologists are to be on-site.

22 If they come across any part of the old trolley lanes 23 or anything that needs to stop work, they are going 24 to stop work. The -- the contract says we are going 25 to call THC, we're going to call the Houston Heritage

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 Society. We're going to get these people involved.

2 There's going to be oversight of this project.

3 THE COURT: I guess I'm a little 4 concerned as to why there was going to be oversight, 5 but then it seems like work just started when there 6 was just a breakdown in communication, from what I 7 understood. Sounded like a breakdown in 8 communication.

9 MS. ECKERT: There has not been any 10 breakdown in communication. Work was slate -- we 11 got -- we got permission from the THC. Kevin Wade

12 with the mayor's office deals and communicates on a ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page9of24

13 routine basis with the coalition, and we are under 14 a -- we have contractual obligations at this point, 15 and we need to get -- we need to do the renovation 16 work on the infrastructure. We need to get these 17 water and sewer lines -- we need to start getting 18 this work done for the neighborhood.

19 THE COURT: All right. Let me ask you 20 another question.

21 MS. ECKERT: Yes, ma'am.

22 THE COURT: I signed this last week.

23 Your true hearing on the merits is actually scheduled 24 for Friday --

25 MS. ECKERT: I understand that.

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 THE COURT: -- of this week at 1:30, so 2 we're talking about a four-day differential on this.

3 MS. ECKERT: I understand.

4 THE COURT: It's almost akin to kind of 5 getting a second bite at the apple. I --

6 notwithstanding the whole time issue, which --

7 generally in those cases I end up signing an amended 8 TRO with the time on it that does exactly the same 9 thing. So I'm -- I'm -- I find it curious that we're 10 back here making arguments that, ostensibly, you'll 11 make again on Friday at 1:30. I'm trying to figure

12 out where the -- the harm is here in waiting until --

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page10of24

13 and I'm not your home court. This might be a really, 14 really intelligent discussion if I were the 80th 15 District Court --

16 MS. ECKERT: Sure.

17 THE COURT: -- where your case is 18 actually pending.

19 MS. ECKERT: Sure.

20 THE COURT: But I'm just ancillary, 21 so --

22 MS. ECKERT: I understand.

23 THE COURT: -- I'm a little confused as 24 to why we're back here with -- when you've got four 25 more days.

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 MS. ECKERT: Okay. It's a great 2 question. Because what's out there right now in the 3 public and in front of the public eye is that we're 4 acting in violation of the law, and we're not. And 5 so we're simply -- we -- we have all the requisite 6 permissions and felt -- we feel very strongly that we 7 needed to get that out there, that we're not -- we're 8 not acting in violation -- we're not violating the 9 Texas --

10 THE COURT: Right. I'm not in the 11 business of PR games and media games. I'm really

12 not. I'm in the business of --

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page11of24

13 MS. ECKERT: I understand.

14 THE COURT: -- of how all this law 15 stuff works. Technically, all of these arguments --

16 right, wrong or indifferent, technically, should go 17 to your home court instead of with me. I'm not 18 hearing --

19 MS. ECKERT: Well --

20 THE COURT: Outside of the time -- I --

21 I, maybe, grant you that.

22 MS. ECKERT: Okay. So now we're going 23 to walk in on Friday, and I'm sure Mr. Hall is going 24 to say, "Well, we already have a TRO against the 25 City, Judge. You know, here -- our arguments are so

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 strong that ancillary court already granted a TRO."

2 And our -- our position is it shouldn't 3 have been granted because it's not factually or 4 legally sound. It's not based on correct facts and 5 the correct interpretation of the law. We have the 6 requisite THC approval to move forward on this 7 project, and if you read the Plaintiff's Original 8 Petition, it says we don't, and we do.

9 THE COURT: Okay. I'm still not 10 hearing any reason why we couldn't have dealt with 11 this in your home court on Friday, in four days, like

12 we already discussed, but okay.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page12of24

13 Response.

14 MR. HALL: Thank you, Your Honor. And, 15 Judge, we filed a verified petition, and the Court 16 granted it just moments after the City of Houston had 17 already started taking up the bricks. My worthy 18 opponent -- opposing counsel is simply wrong on the 19 law. The City of Houston has made a number of 20 fundamental blunders -- legal blunders that are 21 clearly set forth in the law.

22 Let me start initially with my -- with 23 the City's argument they didn't need a permit.

24 That's simply wrong, and in fact, we included in the 25 binder for the Court several pieces of law that

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 answer that question. First, Exhibit 1 clearly 2 recognizes the entire Freedmen's Town as a 3 historic -- historically designated site by -- and it 4 is on the National Register of Historic Places.

5 That's no longer in contest.

6 Exhibit 2 shows that landmarks -- and 7 that's a key term, Your Honor, "landmarks." -- are 8 the sole property of the State of Texas and may not 9 be removed, altered, damaged, destroyed, salvaged, or 10 excavated without a contract with or permit from the 11 committee. The City has neither a contract from nor

12 a permit from the committee.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page13of24

13 So what is the committee? If you turn 14 to the next page under that same tab, the committee 15 is defined. It's the Texas Historical Commission.

16 So now we know they need a contract with or a permit 17 from the THC. But then there's also the definition 18 of "landmark." "Landmark" means a State 19 Archaeological Landmark.

20 So what's the definition of a State 21 Arc -- Archaeological Landmark? Under Tab 3, we 22 brought that for you because that defines what is a 23 State Archaeological Landmark.

24 The City's lawyer just simply is wrong 25 on the law when she says this is not designated as a

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 State Archaeological Landmark, and quite honestly, 2 she attributes that to a telephone call with Linda 3 Henderson. Linda Henderson is not the THC.

4 We actually brought the identity of all 5 of the commissioners of the THC, none of which is 6 Linda Henderson. And it's kind of frightening to 7 believe that the City's lawyers would rely upon that 8 telephone call with a non-commissioner and no 9 official action of the commission, but they did.

10 The City is going to find out on 11 Friday, we believe, that they have an even more

12 fundamental problem, and that is that the very bid ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page14of24

13 they let is invalid and void. The entire project has 14 to stop because they didn't follow the law.

15 But here, the definition of a State 16 Archaeological Landmark, under -- 191.092(a) says 17 "sites, objects, buildings, artifacts, implements, 18 and locations of historical, archaeological, 19 scientific, or educational interests," and then I'm 20 going to skip down to where it says "as well as 21 archaeological sites of every character that are 22 located in, on, and under the surface of any land 23 belonging to the state of Texas or to any county, 24 city, or political subdivision of the state or State 25 archaeological landmarks and are eligible for

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 designation." That is as expansive a definition of 2 "State Archaeological Landmark" as you can have.

3 Again, the City is simply wrong by relying upon a 4 telephone call as opposed to referring to the law.

5 Next, Tab 4. Here, under Section 6 191.131 -- again, in a separate part of the law, the 7 State Legislature says "No person" -- and I'm at "b,"

8 Your Honor. -- "No person, firm, or corporation may 9 conduct an operation on any landmark without first 10 obtaining a permit and having the permit in his or 11 its possession at the -- at the site of the operation

12 or conduct the operation in violation of the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page15of24

13 provisions of the permit."

14 The City's lawyer just admitted they 15 don't have a permit. They got a telephone call.

16 They got an inspection. The project cannot go 17 forward. The law says it cannot even proceed.

18 Then, Your Honor -- and I'm sorry to 19 tire the Court, because if -- when I made the 20 representation to the Court in my petition -- and now 21 that's being challenged. At least I'd like to quiet 22 any anxiety the Court has about my representation 23 that they -- that they did not have a permit.

24 Luckily, the City's lawyer admits they don't have it.

25 Then, Your Honor, the question is:

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 Well, what does a permit have to include? So we have 2 provided the Court with Section one -- which is under 3 Tab 5 -- 191.054, a permit for survey and discovery, 4 excavation, restoration, demolition, or study.

5 Subpart "b" says, "Restoration shall be 6 defined as any rehabilitation of a landmark, 7 excepting normal maintenance or alterations to 8 non-public interior spaces." And this is what the 9 permit shall include, this is mandatory: The permit 10 shall be on the form approved by the attorney 11 general. It shall specify the location, nature of

12 the activity and the time period covered by the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page16of24

13 permit, and it shall provide for the termination of 14 any right in the investigator or permittee under the 15 permit. Those are mandated by law.

16 The City of Houston has none of that.

17 It's a legal blunder that -- they should never have 18 engaged this project without having that permit.

19 Next, Your Honor -- so what's the 20 consequence if they fail to have the permit? Under 21 Tab 6, the failure to seek a permit, "Public owners,"

22 which the City is, "project sponsors, project 23 architects, and professional ... shall not perform 24 work on a historic building or structure that is 25 designated as a landmark." We've already dealt with

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 the definition of "landmark." So the City was not 2 even supposed to proceed with any work, let alone our 3 having to rush over here to get a TRO to stop them 4 from doing their unlawful conduct.

5 Next. To make sure that the Court and 6 the City knows what has to be in the permit, Tab 7, a 7 separate part of the law, again reiterates the permit 8 shall include -- Subsection (b) -- the terms and 9 condition, the period -- the permit period, and the 10 permit expiration as well as whether it's 11 transferable. That's what the law says the permit

12 has to include. That's why the City attorney jumps ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page17of24

13 up today and tells you, "Oh, Judge, we didn't have to 14 have a permit," because she knows the City doesn't 15 have one, and, therefore, they cannot do the work.

16 Then next is Tab 8. Tab 8 specifically 17 identifies the types of permits the THC can give, 18 preservation permit, rehabilitation, restoration, 19 reconstruction, architectural, investigation permit.

20 They have none. So, Judge, I then included the 21 actual forms that show, under Tab 9, what the permit 22 looks like, from an application, permit completion, 23 as well as the law that sets forth those guidelines.

24 Now, the -- the actual smoking gun is 25 Tab 10. We called Linda Henderson. We asked Linda

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 Henderson, on an open records request, "Give us the 2 City's permits." She wrote us back this e-mail --

3 and this will be in evidence on Friday. "I created 4 that site form specifically for this project, hoping 5 that it would help thing -- things clear, but it is 6 the only time I've used it." "It is the only time 7 I've used it, and I created it."

8 Judge, the statute says the -- the 9 attorney general has to approve the permit form, not 10 Ms. Linda Henderson, and that's all the City has.

11 Next, the City, in its response --

12 before they found out that somebody needed to read ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page18of24

13 the law, they said, "This is our authorization,"

14 under Tab 11, but, Judge, you can see that this is a 15 site visit form, not a permit. Up at the top -- this 16 is the document Linda Henderson created. It does not 17 specify the time period covered, the permittee, the 18 time of expiration, the non-transferability of the 19 permit. All of those requirements that the law says 20 has to be in the permit are not here.

21 Linda Henderson may have been somebody, 22 individually, who wanted to create something, but she 23 didn't comply with the law, and in the City's 24 response they actually said they relied upon this to 25 show compliance with THC guidelines. Well, you just

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 don't get to do it that way. You have to comply with 2 the law. And, Your Honor, as you know, it pains me, 3 as a former City attorney, to have to challenge the 4 fact that the City's lawyers failed to do their job 5 here. They just did.

6 Under Tab 12 -- so the Court then says, 7 "Well, Mr. Hall, can you show me a permit issued by 8 the THC?" Yes, ma'am, we can. Your Honor, under 9 Tab 12 is an actual permit, Permit Number 494, issued 10 by THC -- the Tarrant County Courthouse; under 11 Tab 13, another permit issued by the THC for

12 rehabilitation in Jefferson County Courthouse, and ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page19of24

13 this permit -- both of these comply with the law. We 14 have the name of the project, the term of the permit, 15 when it expires, the lack of transferability as well 16 as the permittee identified on the permit.

17 And finally, Your Honor, I brought you 18 another permit, Tab 14. Again, that complies with 19 the law. It indicates who owns and controls the 20 same, where it's to be performed, sponsored by the 21 principal investigator, when the permit takes effect, 22 when it's going to expire, precisely what the statute 23 says the permit must contain.

24 So then, finally, we get to your TRO, 25 and the City crafts an argument that says, "Judge, it

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 doesn't have a time." And I think that the Court 2 should put 10:00 o'clock. I think you signed the 3 order at 10:00 o'clock. But it does include a time.

4 It says, in the last paragraph -- and I highlighted 5 it. -- "This temporary restraining order is effective 6 immediately upon signing by the Court and shall 7 continue in force," et cetera.

8 So the Court indicates that it's 9 effective immediately upon signing. But if they want 10 a time, which I think -- so the City appears to want 11 to have a time here. If the Court were to, on this

12 same order, just simply say "at" -- where it says ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page20of24

13 "Done this 20th day of January, 2015" -- "at 14 10:00 o'clock" -- I believe the Court was signing the 15 order at 10:00 o'clock because we delivered it 16 immediately over to the site at 11:00 o'clock.

17 That's when it was served on the other side.

18 That, Your Honor, addresses the issues 19 in terms of the law. They don't have a permit.

20 Quite honestly, on Friday we're going to prove what 21 the consequence of that is, and it's a $5 million hit 22 to the City because the City of Houston did this 23 project wrong. There -- the Court is right. Four 24 days will transpire. There's no harm to anyone. The 25 TRO should not be dissolved.

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 MS. ECKERT: Brief response, Your 2 Honor?

3 THE COURT: Sure.

4 MS. ECKERT: Okay. So Mr. Hall has 5 read a bunch of Section 191 and a bunch of it that 6 doesn't apply to this project because what he hasn't 7 said is that Freedmen's Town has been designated as a 8 State Archaeological Landmark, and he hasn't said 9 that because it hasn't, which means that 10 Section 191.052(5), "Notice Required" -- that is the 11 section of 191 that applies to this project. "Before

12 breaking ground at a project location on State or ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page21of24

13 local public land, person primarily responsible for 14 the project or the person's agent shall notify the 15 committee," the committee being THC, and we did that.

16 With regard to the approvals -- we 17 have -- you can call it permission, you can call it a 18 permit, but we do have THC's permission to go forward 19 with this project. The documents that we have 20 submitted to the Court say "Project may proceed based 21 on protocols and specifications." And that was for 22 the brick cleaning. For the brick removal, "Project 23 may proceed based on protocols, specifications, and 24 conditions." Linda Henderson made some comments, 25 gave us some additional things to follow. This is

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 permission to go forward with these projects, and we 2 do have the requisite permission.

3 And for the rest of 191 that Mr. Hall 4 has talked about -- that doesn't apply because this 5 site is only designated as -- as a historical 6 district. It's not -- there's no designation as a 7 State Archaeological Landmark, and that is a very 8 important distinction to make.

9 THE COURT: All right. Like I said, I 10 read this stuff before I came out here. Frankly, 11 Counsel, I just disagree with you. I think that

12 the -- Code Sections 9 -- 191, the initial sections, ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page22of24

13 make it pretty clear that it's kind of a broad brush 14 that we paint to look at landmarks, and in fact, a 15 portion that Mr. Hall didn't read but I did, which 16 says they have to be eligible for designation as 17 well, clearly -- and then defines what it means to be 18 eligible for designation and very clearly says is an 19 important part of heritage. You know, does it have 20 some distinct archaeological value? Clearly, the 21 fact that it's already been designated before shows 22 that it would probably come under this purview.

23 Regardless, my burden is very low, as 24 we're still at TRO stage, which is why I cautioned 25 you as to why you wouldn't wait to make this litany

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

1 of arguments in front of the TV cameras on Friday in 2 Judge Weiman's court instead of coming here, because, 3 frankly, I think they passed the bar when I signed it 4 last Tuesday. They passed the very minimal bar to 5 get me to still be okay with it today, which gets you 6 to Friday in your home court, Judge Weiman, at 1:30.

7 The only thing that I may be willing to do, just for 8 the sake of completion, is sign an amended TRO 9 that -- where I would change absolutely no language 10 on here and only give you a time in addition to the 11 date, and that's about all I'm willing to do. So --

12 MS. ECKERT: Okay.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page23of24

13 MR. HALL: Thank you, Your Honor.

14 THE COURT: With that, we're adjourned.

15 MR. HALL: Thank you, Your Honor.

16 THE COURT: Thanks.

17 MR. HALL: With your permission -- is 18 that the copy of the order?

19 THE COURT: Yeah. If you have one, 20 hand it up. I'll sign it right now.

21 (Court adjourned.)

22

23

24

25

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

24

1 THE STATE OF TEXAS )

)

2 COUNTY OF HARRIS )

3

4 I, Donna King Hammer, Official Court Reporter in and for the 164th Judicial District Court 5 of Harris County, Texas, do hereby certify that the above and foregoing contains a true and correct 6 transcription of all portions of evidence and other proceedings requested in writing by counsel for the 7 parties to be included in this volume of the Reporter's Record in the above-styled and -numbered 8 cause, all of which occurred in open court or in chambers and were reported by me.

9

10 I further certify that this Reporter's Record of the proceedings truly and correctly 11 reflects the exhibits, if any, admitted by the respective parties.

12

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152039-Page24of24

13 I further certify that the total cost for the preparation of this Reporter's Record is 14 $_____________ and was paid/will be paid by ___________________.

15

16 WITNESS MY OFFICIAL HAND this, the 3rd day of February, 2015.

17

18

19

Donna King Hammer

_______________________________

DONNA KING HAMMER, CSR 6273 20 Expiration Date: 12/31/16 Official Court Reporter

21 164th Judicial District Court Harris County, Texas

22 201 Caroline, 12th Floor Houston, Texas 77002

23 (713) 368-6256

24

25

DONNA KING HAMMER, CSR

164TH OFFICIAL REPORTER

(713) 368-6256

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64152039 Total Pages: 24

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

State of Texas

TEXAS ANTIQUITIES COMMITTEE ARCHEOLOGY PERMIT * 6595

This permit is issued by the Texas Historical Commission, hereafter referred to as the Commission, represented herein by and through its duly authorized and empowered representatives. The Commission, under authority of the Texas Natural Resources Code, Title 9, Chapter 191, and subject to the conditions hereinafter set forth, grants this permit for:

Intensive Survey

To be performed on a potential or designated landmark or other public land known as:

Title: Cape Road Parking (City of San Marcos ROW Only)

County: Hays

Location: Approximately 15 to 20 parking spaces situated adjacent to Cape Road approximately 30.5 to 40.0 meters (m) (100.0 to 131.2 feet) to the east of the San Marcos River in San Marcos, Hays County, Texas.

Owned or Controlled by: (hereafter known as the Permittee):

City of San Marcos

630 East Hopkins

San Marcos, TX 78666

Sponsored by (hereafter known as the• Spoijsor_-_ David Mulkey, Jr.

1550 Timothy Road, Suite 201 Athens, GA 30606

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152040-Page1of2

The Principal Investigator/investigation Firm representing the Owner or Sponsor is:

Jennifer Cochran

Horizon Environmental Services, Inc.

1507 South IH 35

Austin, TX 78741 __ This permit is to be in effect for a period of:

5 Years and 0 Months

end Will Expire on:

07/18/2018

During the preservation, analysis, and preparation of a final repo/1 or until further notice by the Commission, artifacts, field notes, and other data gathered during the investigation will be kept temporarily at:

Horizon Environmental Services, Inc.

Upon completion of the final permit report, the same artifacts, field notes, and other data will be placed in a permanent curatorial repository at:

Texas Archeological Research Lab.

Scope of Work under this permit shall consist of:

Conduct intensive cultural resource survey of approximately 15-20 parking spaces located within the City of San Marcos Public ROW adjacent to Cape Road also to the east of the San Marcos River in San Marcos, Hays County, Texas. For details, see scope of work submitted with permit application.

EXHIBIT D

ARCHEOLOGY PERMIT it 6595 This permit is granted on the following terms and conditions:

1) This project must be carried out in such a manner thai the maximum amount of historic, scientific, archeologicai, and educational information will be recovered and preserved and must include the scientific, techniques for recovery, recording, preservation and analysis commonly used in archeologicsl investigations. Ail survey level investigations must follow the state suivey standards and the THC survey requirements established with the projects sponsor(s).

2) The Principal investigator/Investigation Firm, serving for the Owner/Permittee and/or the Project Sponsor, is responsible for insuring that specimens, samples, artifacts, materials and records that are collected as a result of this permit are appropriately cleaned, and cataloged for curation. These tasks will be accomplished at no charge to the Commission, and all specimens, artifacts, materials, samples, and original field notes, maps, drawings, and photographs resulting from the in vestigations remain the property of the State of Texas, or its political subdivision, and must be curated at a certified repository. Verification of curation by the repository is also required, and duplicate copies of any requested records shall be furnished to the Commission before any permit will be considered complete.

3) The Principal Investigator/Investigation Firm serving for the Owner/Permittee, and/or the Project Sponsor is responsible for the publication of results of the investigations in a thorough technical report containing relevant descriptions, maps, documents, drawings, and photographs. A draft copy of the report must be submitted to the Commission for review and approval. Any changes to the draft report requested by the Commission must be made or addressed in the report, or under separate written response to the Commission. Once a draft has been approved by the Commission, one (1) printed, unbound copy of the final report containing at least one map with the plotted location of any and all sites recorded and two copies of the report in tagged PDF format on an archival quality CD or DVD shall be furnished to the commission. One copy must include the plotted location of any and all sites recorded and the other should not include the site location data. A paper copy and an electronic copy of the completed Abstracts in Texas Contract Archeology Summary Form must also be submitted with the final report to the Commission. (Printed copies of forms are available from the Commission or also online at www. the. state, tx. us.)

4} If the Owner/Permittee, Project Sponsor or Principal Investigator/Investigation Firm fails to comply with any of the Commission's Rules of Practice and Procedure or with any of the specific terms of this permit, or fails to properly conduct or complete this project within the allotted time, the permit will fall into default status. A notification of Default status shall be sent to the Principal Investigator/Investigation Firm, and the Principal Investigator will not be eligible to be issued any new pemiits until such time that the conditions of this permit are complete or, if applicable, extended,

5) The Owner/Peimittee, Project Sponsor, and Principal Investigator/Investigation Firm, in the conduct of the activities hereby authorizes, must comply with all laws, ordinances and regulations of the State of Texas and of its political subdivisions including, but not limited to, the Antiquities Code of Texas: they must conduct the investigation in sucli a marmot as to afford protection to the rights of any and alt lessees or easement holders or other persons having an interest in the property and they must return the property to its original condition insofar as ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64152040-Page2of2

possible, to leave it in a state which will nut create hazard to life nor contribute to the deterioration of the site or adjacent lands by natural 'orces.

6) Any duly authorized and empowered representative of the Commission may, at any time, visit the site to inspect the fieidwork as well as the field mcords, materials, and specimens being recovered.

7) For reasons of site security associated with historical resources, the Project Sponsor (if not the Owner/Permittee), Principal investigator.

Owner, and investigation Firm shall not issue any press releases, or divulge to the news media, cither directly or indirectly, information regarding the specific location of, or other information thai might endanger those resources, oi their associated artifacts without first consulting with the Commission, and the State agency or political subdivision of the State thai owns or controls the land where the resource lias been discovered.

S) This permit may not be assigned by the Principal Investigator/Investigation Finn, Owner/Permittee, or Project Sponsor in whole, or in part fo any other individual, organization, or corporation not specifically mentioned in this permit without the written consent of the Commission.

9) Hold Harmless: The Owner/Permittee hereby expressly releases the State and agrees that Owner/Permittee will hold harmless, indemnify, and defend (including reasonable attorney's fees and cost of litigation) the Stale, its officers, agents, and employees in their official and/or individual capacities from every liability, loss, or claim for damages to persons orpropcrty, direct or indirect of whatsoever nature arising out of, or in any way connected with, sny of the activities covered under this permit. The provisions of this paragraph are solely for the benefit of the State and the Texas Historical Commission and are not intended fo create or grant anyrights,contractual or otherwise, to any other person or entity.

10) Addendum: The Owner/Permittee, Project Sponsor and Principal Investigator/Investigation Firm must abide by any addenda hereto attached.

Upon 8 finding that it is in the best interest of the State, this pet mil is issued on 07/18/2013.

Put Mercado-Aflinger, for the Texas Historical Commission

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64152040 Total Pages: 2

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

2/6/20156:19:51PM

ChrisDaniel-DistrictClerk HarrisCounty

EnvelopeNo:4063468

By:CASARES,ALEXANDRO

Filed:2/6/20156:19:51PM CAUSE NO. 2015-02771

FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT COALITION, PLAINTIFF, § §

V. § HARRIS COUNTY, TEXAS §

THE CITY OF HOUSTON AND CONRAD § CONSTRUCTION CO., LTD, § DEFENDANTS. § 80TH JUDICIAL DISTRICT

ORDER

Came for hearing Defendant the City of Houston’s Motion to Deny Plaintiff’s Request for Injunctive Relief as a Matter of Law. After considering the Motion, the Response, if any, the argument of counsel, and the paper in the Court’s file, the Court hereby FINDS that As a matter of law, Plaintiff cannot meet its burden to prove a probability of success on the merits. The Court therefore

DENIES Plaintiff’s request for a temporary injunction.

For Official Governmental Use Only - Do Not Disseminate to the Public: 64152041 - Page 1 of 1

Signed this ______ day of ________________, 2015

_________________________________

Judge Presiding

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64152041 Total Pages: 1

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 5

2/11/2015 5:29:24 PM

Chris Daniel - District Clerk Harris County Envelope No. 4117401

By: Arron Sonnier

Filed: 2/11/2015 5:29:24 PM

CAUSE NO. 2015-02771

FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT COALITION, PLAINTIFF, § §

V. § HARRIS COUNTY, TEXAS §

THE CITY OF HOUSTON AND CONRAD § CONSTRUCTION CO., LTD, § DEFENDANTS. § 80TH JUDICIAL DISTRICT

CITY OF HOUSTON’S PLEA TO THE JURISDICTION Defendant the City of Houston (“the City”) files this Plea to the Jurisdiction because the Plaintiffs have failed to establish a basis for waiver of the City’s

governmental immunity and therefore this Court does not have jurisdiction to ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page1of11

proceed.

I. The City is immune from suit unless its governmental immunity is waived.

Sovereign or governmental immunity deprives a trial court of subject matter jurisdiction for lawsuits in which a governmental unit has been sued unless the state consents to suit. See Texas Dep’t of Wildlife v. Miranda, 133 S.W.3d 217, 225-27 (Tex.

2004). Sovereign immunity is properly asserted in a plea to the jurisdiction. Id. at 225.

The trial court must determine whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed. Id. Absent a clear and unambiguous legislative waiver, governmental immunity protects municipalities from suit and liability in the performance of their governmental

functions. Tooke v. City of Mexia, 197 S.W.3d 325, 343-44 (Tex. 2006); City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007).

A plaintiff has the burden to affirmatively plead waiver of governmental immunity and failure to do so deprives the trial court of subject-matter jurisdiction.

Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 586-87 (Tex. 2001). A plaintiff does not meet this burden simply by referring to a statute which contains a limited waiver of immunity from suit. Miller, 51 S.W.3d at 587. Rather, a plaintiff must allege facts that fit within the limited waiver of immunity provided by a statute. Id. Whether the plaintiff has

met this burden is a question of law. Miranda, 133 S.W.3d at 226-27.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page2of11

When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, the court must consider relevant evidence submitted by the parties. See id. at 227. The standard of review for a jurisdictional plea based on evidence “generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228. Under this standard, the court credits evidence favoring the nonmovant and draws all reasonable inferences in the nonmovant's favor. See id. The defendant must assert the absence of subject-matter jurisdiction and present conclusive proof that the trial court lacks subject-matter jurisdiction. Id. If the defendant discharges this burden, the plaintiff must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or the plea will be sustained. Id.

II. The pleadings and jurisdictional facts conclusively prove that the Court lacks subject matter jurisdiction.

A. Section 191.173(a) of the Natural Resources Code provides a limited waiver of governmental immunity.

In its First Amended Original Petition and Application for Injunctive Relief (“Amended Petition”), filed on February 6, 2015, the Plaintiff alleges that the City violated Section 191.093 of the Natural Resources Code by failing to obtain a contract or permit from the Texas Historical Commission permitting “tampering, removal or destruction” of the bricks in Freedman’s Town, which they allege to be a “state archeological landmark.” (Amended Petition, ¶ 17). Although the City has demonstrated it possesses an archeological permit from the Texas Antiquities

Committee (“TAC”) for the project,1 the Plaintiff alleges that “a mere archeological ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page3of11

permit” is insufficient to remove, rehabilitate or repair “a state archeological landmark.” Id.

The Plaintiff bases this suit, and the Court’s jurisdiction on section 191.173(a)

of the Natural Resources Code (“Code” or “Antiquities Code”), which states as follows:

A citizen of the State of Texas may bring an action in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter, and for the return of items taken in violation of the provisions of this chapter.

Tex. Nat. Res. Code § 191.173 (emphasis added).

1

See Exhibit A, Affidavit of Mark Wolfe.

By this section of the Code, the legislature waived the state’s immunity from suit only in the limited circumstances defined, i.e., when there is a violation or a threatened violation of the Code.

However, “mere reference to [a statute] does not establish the state’s consent to be sued and thus is not enough to confer jurisdiction on the trial court.” Miller, 51 S.W.3d at 587. The trial court must consider the particular facts of the case to determine if the case comes within the scope of the limited waiver of governmental immunity. Id.

B. The facts do not establish a violation or threatened violation of the Code.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page4of11

The pleadings and jurisdictional facts here do not demonstrate that the City has violated or threatened to violate the Texas Natural Resources Code. Therefore the facts alleged do not fall within the limited waiver of governmental immunity granted under Section 191.173. Because the facts do not demonstrate “violations or threatened violations” of the Code, the Plaintiffs cannot demonstrate waiver of the City’s immunity.

The Code provides for tiered layers of protection for historical buildings and sites. Freedmen’s Town is designated as a Historic District in the National Register of Historic Places. As a historic district, Freedmen’s Town is subject to Subsection C of the Code. Pursuant to Subsection C, if a “project is inside a designated historic district,” the “person primarily responsible for the project” must notify the THC. Tex.

Nat. Res. Code §§ 191.0525(a), (d). The THC then has the option to investigate and

determine if further action is warranted. Id. § 191.0525(a). There is no “permit or contract” requirement as Plaintiff has alleged; the only requirement is “notice” to the THC. There is no dispute that the City provided notice to the THC in advance of the Freedmen’s Town Project.

Plaintiff, however, seeks relief under subchapter D of the Code, which affords higher levels of protection to “State Archeological Landmarks.” (Pl. Orig. Pet. at p.

2). The THC is empowered by Subchapter D to designate “objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest” as “State Archeological Landmarks.” Tex. Nat. Res. Code

§ 191.092(a). Designated State Archeological Landmarks “may not be removed, ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page5of11

altered, damaged, destroyed, salvaged or excavated without a contract or permit from the [THC].” Id. § 191.093.

In its Motion to Deny Plaintiff’s Request for Injunctive Relief, the City submitted the affidavit of Mark Wolfe, Executive Director of the THC. (See Ex. A).

Mr. Wolfe testified that he thoroughly searched the records of the THC and determined “that the Freedman’s Town in Houston is designated as a Historical District. However, it is not designated as a State Archeological Landmark nor is there a pending application to designate Freedmen’s Town in Houston as a State Archeological Landmark.” (Ex. A at ¶ 9). He further testified that on September 12, 2014, the City obtained Archeology Permit #7021. “Archeology Permit #7021 is granted for monitoring to be performed on a potential or designated landmark or other public land known as Freedmen’s Town Brick Streets, City of Houston, located

in Harris County at the Intersection of Wilson and Andrews Streets, 2 blocks south of West Dallas Street and 7 blocks west of Heiner Street.” (Ex. A at ¶ 3). Mr. Wolfe confirmed that “Archeology Permit #7021 is the only permit needed for work to proceed on the Freedmen’s Town Brick Streets Project.” (Ex. A at ¶ 7).

Because Freedman’s Town is not designated as a State Archeological Landmark, it does not fall under the permit or contract requirements of Section 191.093. There have been no “violations or threatened violations” of the Code to establish a basis for this Court’s jurisdiction under the limited waiver of immunity in the Code.

The City has submitted Mr. Wolfe’s affidavit and Archeology Permit #7021.

This evidence meets the City’s burden to challenge the alleged a waiver of ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page6of11

governmental immunity. It is the Plaintiff’s burden to present evidence sufficient to raise a material issue of fact regarding jurisdiction. Miranda, 133 S.W.3d at 228.

C. The Plaintiff misinterprets Section 191.092(a).

The Plaintiff’s assertion that the City has violated the Code by failing to obtain a permit or contract is based on its misinterpretation of Section 191.092(a). Plaintiff claims the definition of “state archeological landmark” under Section 191.092(a) of the Code encompasses Freedman’s Town. Section 191.092(a) provides that:

Sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest … are state archeological landmarks and are eligible for designation.

Tex. Nat. Res. Code § 191.092(a). The Plaintiff interprets Section 191.092(a) to mean that unspecified “sites, objects, buildings, artifacts, implements, and locations” are, simply by their inherent nature, State Archeological Landmarks and subject to heightened protections under Subchapter D. The Plaintiff ignores the last phrase of the statute, which states that these sites, objects, buildings etc. “are eligible for designation.”

The Plaintiff’s interpretation of section 191.092(a) is incorrect. Under the Plaintiff’s interpretation, a site can be considered a State Archeological Landmark without the THC ever formally making that designation under Section 191.092(c).

Not only does this ignore the plain language of the statute that the areas are “eligible

for designation,” but it also renders the statute so vague it could not be enforced.

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page7of11

Under Plaintiff’s interpretation, it would be impossible to know whether a permit or approved contract under Section 191.093 is required to proceed with work on a site because there would be not necessarily be a formal designation of a site as a State Archeological Landmark. In determining the meaning of a statute, a court must consider the entire act, its nature and object, and the consequences that would follow from each construction. See, e.g., Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991). Interpretations of statutes which would produce absurd results are to be avoided. Id.

In Texas Antiquities Committee v. Dallas County Community College District, the Texas Supreme Court considered the meaning of the prior version of the statute. 554 S.W.2d 924 (Tex. 1977). There, the Dallas Community College District filed suit for

an injunction against the Texas Antiquities Committee2 to set aside the Committee’s order denying a permit to demolish three buildings owned by the College District. As here, the location was listed on a National Register, but was not designated as a State Archeological Landmark under the Code. At the time, the relevant portion of the Code was substantively the same as the current version:

All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest … are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas.

Vernon’s Ann. Tex. Civ. St. Art. 6145-9 (repealed). The Texas Supreme Court described the Committee’s authority under the Code as follows:

The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page8of11

Committee authority over buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated the buildings as State Archeological Landmarks, the College District does not need the Committee’s permission before demolishing the buildings.

Id. at 926 (emphasis added).

Similarly, in Board of Regents v. Walker County Historical Commission, the Fourteenth Court of Appeals reviewed a temporary injunction preventing restoration work on Sam Houston’s Woodward home until a permit was issued by the THC. 608 S.W.2d 252 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ). The Board of Regents argued that the Woodward home was not designated as a State

Archeological Landmark, and therefore the THC was not authorized or required to

2

In 1995, the 74th Legislature abolished the Texas Antiquities Committee and made the Texas Historical Commission the legal custodian of the Antiquities Code.

issue such a permit. Id. at 253. Citing to Texas Antiquities Committee, the appellate court agreed and dissolved the temporary injunction. Id. These cases confirm that a site must be officially designated as a State Archeological Landmark by the THC under Section 191.092 before it falls under the permit or contract requirements of Section 191.093. This case law is consistent with Mr. Wolfe’s testimony that the City was not required to obtain a permit or contract to perform work on the streets.

The Texas Attorney General’s Office has also interpreted the statute:

[T]he Antiquities Committee has no jurisdiction over buildings which it has not designated as state archeological landmarks, and its permission is therefore not needed before such a building is altered … it is the only reasonable construction of the Antiquities Code provisions. One can hardly be expected to know that a particular item is a ‘landmark,’ and is therefore subject to the permit requirement, until the Antiquities ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page9of11

Committee formally designates it as such.

Op. Tex. Att’y Gen. No. MW-378 (1981). Freedman’s Town has not been designated as a State Archeological Landmark and does not fall under Subchapter D of the Natural Resources Code. (Ex. A at ¶ 9). Therefore the City was not required to get a permit from the THC prior to commencing work and did not violate Section 191.093 of the Code.

D. Because no permit is required for the work on Freedman’s Town, Section 191.131(b) does not apply.

Plaintiff also asserts a violation of Section 191.131(b) of the Code. This section states that:

No person, firm, or corporation may conduct an operation on any landmark without first obtaining a permit and having the permit in his

or its possession at the site of the operation, or conduct the operation in violation of the provisions of the permit.

Tex. Nat. Res. Code § 191.131(b).

Because the evidence establishes conclusively that no permit was required under the Code for the work on Freedman’s Town, Plaintiff’s allegations under Section 191.131(b) also fail to establish a basis for jurisdiction.

E. Conclusion

The jurisdictional facts establish that the Plaintiff’s allegations do not fall under the limited waiver of immunity from suit in Section 191.173 of the Code. Therefore

there is no waiver of the City’s immunity from suit, this Court does not have ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page10of11

jurisdiction over the Plaintiff’s claims, and the Court should grant the City’s Plea to the Jurisdiction and dismiss this case in its entirety.

Respectfully submitted,

DONNA L. EDMUNDSON

City Attorney

JUDITH L. RAMSEY

Chief, General Litigation Section

/s/ Darah Eckert

Darah Eckert

Senior Assistant City Attorney SBN 24007141

Lisa A. Ketai

Senior Assistant City Attorney SBN 11362400

CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street

Houston, Texas 77002

832.393.6348 (telephone)

832.393.6259 (facsimile)

darah.eckert@houstontx.gov ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209313-Page11of11

Attorneys for Defendant The City of Houston

Certificate of Service

I hereby certify that on this 11th day of February, 2015, a true and correct copy of the foregoing has been served on counsel below via e-service.

Benjamin L. Hall, III

The Hall Law Firm

530 Lovett Boulevard

Houston, Texas 77006

bhall@bhalllawfirm.com

/s/ Darah Eckert

Darah Eckert

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64209313 Total Pages: 11

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page1of6

EXHIBIT A

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page2of6

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page3of6 EXHIBIT A-1

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page4of6

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page5of6

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209314-Page6of6

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64209314 Total Pages: 6

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

2/11/20155:29:24PM

ChrisDaniel-DistrictClerk HarrisCounty

EnvelopeNo:4117401

By:SONNIER,ARRONW

Filed:2/11/20155:29:24PM CAUSE NO. 2015-02771

FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT COALITION, PLAINTIFF, § §

V. § HARRIS COUNTY, TEXAS §

THE CITY OF HOUSTON AND CONRAD § CONSTRUCTION CO., LTD, § DEFENDANTS. § 80TH JUDICIAL DISTRICT

ORDER OF DISMISSAL

ON THIS DAY the Court considered Defendant City of Houston’s Plea to the Jurisdiction. The Court is of the opinion that the Plea is meritorious and should be GRANTED. IT IS THEREFORE ORDERED

That the Defendant’s Plea to the Jurisdiction is GRANTED and this case is ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64209315-Page1of1

dismissed in its entirety as to the City of Houston.

SIGNED THIS ____ DAY OF February, 2015

____________________________

PRESIDING JUDGE

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64209315 Total Pages: 1

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 6

CAUSE No. 2015-02771

P3)),'0

FREEDMEN'S TOWN PRESERVATION IN THE DISTRICT COURT COALITION, PLAINTIFF,

V. HARRIS COUNTY, TEXAS

THE CITY OF HOUSTON AND CONRAD § CONSTRUCTION CO., LTD,

DEFENDANTS. 80TH JUDICIAL DISTRICT

ON THIS DAY the Court considered Defendant City of Houston's Plea to the Jurisdiction. T • " ' _ ••• " I I • •

GAD. IT IS THEREFORE ORDERED ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64215960-Page1of1

That the Defendant's Plea to the Jurisdiction is COED an€14.11'

Z •

SIGNED THIS I" DAY OF February, 2015

FILED

Chris Daniel

District Clerk

FEB 12 2015

Time: 11 4.9 Harris County, Texas

By

Deputy

RECORDER'S MEMORANDUM

This instrument is of poor quality at the time of Imaging

..... 6 ,

•

H A

/ 01

......

'.I. •

.1 .

. ...

0 i

.n

'..• a ...:

:. 1.-• ;

... 0 -.. i -.c' E . cf.- -.•

"- ........ ..

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64215960 Total Pages: 1

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 7

CAUSE NO. 2015-02771

FREEDMEN’S TOWN PRESERVATION § IN THE DISTRICT COURT COALITION, PLAINTIFF, § §

V. § HARRIS COUNTY, TEXAS §

THE CITY OF HOUSTON AND CONRAD § CONSTRUCTION CO., LTD, § DEFENDANTS. § 80TH JUDICIAL DISTRICT

Notice of Interlocutory Appeal Pursuant to Texas Rule of Appellate Procedure 25.1, Defendant files this Notice of Appeal.

1. Defendant The City of Houston desires to appeal the denial of its plea to the jurisdiction in this cause.

2. The district court signed the Denial of Plea to Jurisdiction denying the plea on February 12, 2015. A copy of the Order is attached.

3. This appeal is taken to the First or Fourteenth Court of Appeals at Houston, Texas.

4. Defendant has not previously filed a related appeal or original proceeding in either the First or Fourteenth Court of Appeals.

3. This is an accelerated interlocutory appeal under Tex. Civ. Prac. & Rem. Code § 51.014(a)(8); it is not a parental-termination or child-

protection case.

4. This appeal stays all proceedings in the trial court pending resolution of the appeal. Tex. Civ. Prac. & Rem. Code § 51.014(b).

Respectfully submitted,

DONNA L. EDMUNDSON

City Attorney

JUDITH L. RAMSEY

Chief, General Litigation Section

/s/ Darah Eckert

Darah Eckert

Senior Assistant City Attorney SBN 24007141

Lisa A. Ketai

Senior Assistant City Attorney SBN 11362400

CITY OF HOUSTON LEGAL DEPARTMENT 900 Bagby Street

Houston, Texas 77002

832.393.6348 (telephone)

832.393.6259 (facsimile)

darah.eckert@houstontx.gov

Attorneys for Defendant The City of Houston

Certificate of Service

I hereby certify that on this 12th day of February, 2015, a true and correct copy of the foregoing has been served on counsel below via e-service.

Benjamin L. Hall, III The Hall Law Firm 530 Lovett Boulevard Houston, Texas 77006 bhall@bhalllawfirm.com

/s/ Darah Eckert

Darah Eckert

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64215960-Page1of1

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64215960 Total Pages: 1

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 8

3/20/2015 3:06:58 PM

Chris Daniel - District Clerk Harris County Envelope No. 4584342

By: Duane Gilmore

Filed: 3/20/2015 3:06:58 PM

CAUSE NO. 2015-02771

FREEDMEN'S TOWN PRESERVATION § IN THE DISTRICT COURT OF COALITION, Plaintiff § §

v. § HARRIS COUNTY, T E XA S §

THE CITY OF HOUSTON and § CONRAD CONSTRUCTION CO., LTD., § Defendants. § 80th JUDICIAL DISTRICT

DEFENDANT'S NOTICE OF APPEAL (INTERLOCUTORY)

Defendant, Conrad Construction Co., Ltd., files its Notice of Appeal from the Trial Court's (1) Order Granting Temporary Injunction (signed, March 2, 2015), and (2) Order Denying Motion to Dissolve (signed, March 20, 2015). This appeal is interlocutory pursuant to

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(4) (Vernon 2012). Conrad intends to appeal said ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64726010-Page1of3

orders to either the First or Fourteenth Court of Appeals. Conrad gives notice a related appeal was previously filed in the Fourteenth Court of Appeals per the attached statement.

SIGNED and FILED this 20th day of March, 2015.

Respectfully submitted,

ANDREWS MYERS, P.C.

By: /s/ Robert A. Plessala Robert Plessala

State Bar No. 16069200

rplessala@andrewsmyers.com 3900 Essex Lane, Suite 800 Houston, Texas 77027

(713) 850-4200 (telephone)

713-850-4211 (fax)

ATTORNEYS FOR DEFENDANT

CONRAD CONSTRUCTION CO., LTD.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure on this the 20th day of March, 2015.

VIA EMAIL - BHALL@BHALLLAWFIRM.COM Benjamin Hall

The Hall Law Firm

530 Lovett Boulevard

Houston, TX 77006

Attorney for Plaintiff

Via Email — darah.eckert@houstontx.gov Darah Eckert

Sr. Asst. City Attorney

900 Bagby Street

Houston, TX 77002

Attorney for City of Houston

Via First Class Mail

Christopher A. Prine

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64726010-Page2of3

Clerk, First Court of Appeals First Court of Appeals

301 Fannin Street

Houston, TX 77002

Via First Class Mail

Christopher A. Prine

Clerk, Fourteenth Court of Appeals Fourteenth Court of Appeals 301 Fannin Street

Houston, TX 77002

/s/ Robert A. Plessala

Robert A. Plessala

Local Rule Notice of and Assignment of Related Case in Appeals

As required by the Local Rules Relating to Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that the following related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals:

Caption: City of Houston v. Freedman's Town Preservation Coalition Appeal Case No: 14-15-00138-CV; Fourteenth Court of Appeals Trial Court No: 2015-02771; 80th District Court, Harris County, Texas

ANDREWS MYERS, P.C.

By: /s/ Robert A. Plessala Robert Plessala

ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64726010-Page3of3

State Bar No. 16069200

rplessala@andrewsmyers.com 3900 Essex Lane, Suite 800 Houston, Texas 77027

(713) 850-4200 (telephone)

713-850-4211 (fax)

ATTORNEYS FOR DEFENDANT

CONRAD CONSTRUCTION CO., LTD.

4839-4067-1266

3782.1

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this March 26, 2015

Certified Document Number: 64726010 Total Pages: 3

U'A4 (0.az Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 9

P. \

CAUSE No. 2015-02771 STPLX FREEDMEN'S TOWN PRESERVATION § IN THE DISTRICT COURT COALITION AND CATHERINE ROBERTS§

VS. HARRIS COUNTY, TEXAS

CITY OF HOUSTON AND CONRAD CONSTRUCTION CO., LTD. 80TH JUDICIAL DISTRICT

ORDER STRIKING PETITION IN INTERVENTION Pending before the Court is the Motion to Strike Intervention filed by Plaintiffs Freedmen's Town Preservation Coalition and Catherine Roberts, and the Court is of the opinion that the Motion should be GRANTED.

It is therefore ORDERED that the Petition in Intervention filed on February 10, 2015 ForOfficialGovernmentalUseOnly-DoNotDisseminatetothePublic:64215959-Page1of1

by Robin Street Square Townhome Association, Crosby Street Square Townhome Association and Valda Bush is hereby in all things STRICKEN from this cause.

SIGNED the l al

'lf‘of February, 2015.

dro.ihimmommonomm.....

PRESIDING J\ DGE

FILED

Chris Daniel

District Clerk

FEB 12 2015

Time: 11 Harris County, Texas

By

Deputy

RECORDER'S MEMORANDUM

This instrument is of poor quality at the time of imaging

..... 6 ,

•

H A

/ 01

......

'.I. •

.1 .

. ...

0 i

.n

'..• a ...:

:. 1.-• ;

... 0 -.. i -.c' E . cf.- -.•

"- ........ ..

I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.

Witness my official hand and seal of office this February 12, 2015

Certified Document Number: 64215959 Total Pages: 1

Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

APPENDIX 10

1

1 CAUSE NO. 2015-02771 2

3 FREEDMEN'S TOWN § IN THE DISTRICT COURT OF PRESERVATION COALITION, § 4 Plaintiffs § §

5 § VS. § HARRIS COUNTY, T E X A S 6 § §

7 § THE CITY OF HOUSTON, § 8 Defendant § 80TH JUDICIAL DISTRICT

9 10 11 12 13

14 Plaintiff's Motion for Temporary Injunction

15 March 2, 2015

16 17 18 19 20 21

22 Michelle Tucker

23 Official Court Reporter 80th District Court

24 Harris County, Texas

25 Proceedings reported by: Machine Shorthand

42

1 Town? 2 A. Yes. 3 Q. Are you trying to oppose any efforts of people to 4 get fresh water or updated sanitary sewer lines in 5 that area? 6 A. Oh, no. Contrary. I work very hard to promote 7 upgrading and that. 8 Q. Mr. Plessala asked a question of Ms. Wagner just a 9 few moments ago about any applications to designate 10 the Wilson and Andrews streets as national landmarks. 11 Did you hear that series of questions? 12 A. Yes, I did. 13 Q. You have knowledge about that, don't you? 14 A. Yes, I do. 15 Q. Let me show you what has been identified as 16 Plaintiff's Exhibit 43. Do you recognize that 17 document? 18 A. Yes, I do. 19 Q. Would you tell the Court what that document is? 20 A. This is a state antiquities landmark nomination 21 form for the brick paved Andrews and Wilson streets 22 and part of Robin Street in Freedmen's Town National 23 Registered Historic District. 24 Q. Would you tell the Court what date this nomination 25 form was created?

43

1 A. It was applied for January 29th of 2015. 2 Q. And is this application presently pending before 3 the Texas Historical Commission for the Wilson and 4 Andrews streets? 5 A. Yes, it is. 6 MR. HALL: Your Honor, plaintiffs would move into 7 evidence Plaintiff's Exhibit 43. 8 MR. PLESSALA: I don't have that, may I approach 9 and look, Your Honor? 10 THE COURT: Yes, if you would tender it, please. 11 MR. PLESSALA: No objection, Your Honor. 12 THE COURT: It's admitted. 13 MR. HALL: Thank you. 14 Q. (BY MR. HALL) Ms. Roberts, please -- Mrs. 15 Roberts, please tell the Court what is the purpose of 16 this nomination form? 17 A. The purpose is to call attention to some portion 18 of the historic -- National Historic District that is 19 eligible, has been eligible for this landmark status. 20 Q. Now, we've told the Court we believe that these 21 streets are eligible for a designation as landmarks. 22 Is this one of the processes by which we can get in a 23 normal designation? 24 A. Yes, it is. 25 Q. But that's not our only basis for contending that

98

1 THE STATE OF TEXAS 2 COUNTY OF HARRIS 3 4 I, Michelle Tucker, Official Court Reporter in 5 and for the 80th District Court of Harris County, State 6 of Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all 8 portions of evidence and other proceedings requested in 9 writing by counsel for the parties to be included in 10 this volume of the Reporter's Record in the above-styled 11 and -numbered cause, all of which occurred in open court 12 or in chambers and were reported by me. 13 I further certify that this reporter's record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 WITNESS MY OFFICIAL HAND this the 6th day of 17 March, 2015.

18 /s/ Michelle Tucker MICHELLE TUCKER

19 Official Court Reporter 80th District Court

20 201 Caroline, Rm. 915 Houston, Texas 77002

21 713-368-6090 Texas CSR No. 2827

22 Expiration date: 12-31-16

APPENDIX 11

1

1 REPORTER'S RECORD 2 VOLUME 2 OF 2 VOLUMES 3 CAUSE NO. 2015-02771

4 FREEDMEN'S TOWN PRESERVATION§ IN THE DISTRICT COURT OF 5 COALITION, et al § §

6 VS. § HARRIS COUNTY, TEXAS §

7 THE CITY OF HOUSTON, et al § 80TH JUDICIAL DISTRICT

8 9 ******************************************************

10 MOTION FOR TEMPORARY INJUNCTION 11 AFTERNOON SESSION 12 ****************************************************** 13 14 On the 2nd day of March, 2015, the 15 following proceedings came on to be heard in the 16 above- entitled and numbered cause before the 17 HONORABLE LARRY WEIMAN, Judge Presiding of the 80th 18 District Court of Houston, Harris County, Texas. 19 Proceedings reported by stenographic 20 method. 21 22 LaVEARN IVEY 23 DEPUTY OFFICIAL COURT REPORTER 24 80TH DISTRICT COURT 25 HARRIS COUNTY, TEXAS

96

1 historic district in the National Register of Historic 2 Places and therefore it's subject to section C of the 3 Antiquities Code Texas National Resource Code, section 4 191.0525. If the project is inside a designated historic 5 district which it is then the Texas Historical Commission 6 is responsible for the project. 7 The court finds that the road in question, the 8 brick road is a structure. The court finds that while the 9 evidence in this temporary injunction hearing has shown 10 the site to be a, or to qualify as a state archeological 11 landmark, that final determination appears to have to be 12 made by the Texas Historical Commission. However this 13 court finds at a minimum the plaintiff has met its burden 14 of proving that the site is at least eligible to be 15 designated as a state archeological landmark. And 16 therefore, there are permits that are required under the 17 Natural Resource Code including section 191.131 for the 18 demolition or destruction of a historical landmark. 19 The court finds that the plaintiff has met its 20 burden of demonstrating that it has met all the 21 requirements necessary to be entitled to a temporary 22 injunction. Having demonstrated that they do have a 23 viable and valid cause of action, that they have 24 demonstrated their probable right to relief sought and 25 that if the temporary injunction is not granted that there

107

1 THE STATE OF TEXAS 2 COUNTY OF HARRIS 3 I, LaVearn Ivey, Deputy Court Reporter 4 in and for the 80th District Court of Harris County, 5 State of Texas, do hereby certify that the above and 6 foregoing contains a true and correct transcription of 7 all portions of evidence and other proceedings 8 requested in writing by counsel for the parties to be 9 included in this volume of the Reporter's Record in 10 the above-styled and -numbered cause, all of which 11 occurred in open court or in chambers and were 12 reported by me. 13 I further certify that the total cost for the 14 preparation of this Reporter's Record is $768.00 and was 15 paid by City of Houston. 16 17 WITNESS MY OFFICIAL HAND this the 5th day 18 of March, 2015.

19 /s/ LaVearn Ivey _ LaVEARN IVEY, Texas CSR No. 822 20 Expiration date: 12-31-16 Court Reporter

21 80th District Court Harris County, Texas

22 8831 Bedworth Ln.

Houston, Texas 77088

23 (281) 820.0805