The Conservation Society of San Antonio and Lewis Vetter v. University of Texas at San Antonio and City of San Antonio
Opinion
ACCEPTED 15-25-00043-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 5/15/2025 11:59 PM CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS PO Box 377 Ph.210.622.0323 5/15/2025 11:59:17 PM 13940 Benton City Rd. Fax. 210.622.4021A. PRINE CHRISTOPHER Von Ormy, Texas 78073 www.mdv-law.com info@mdv-law.com Clerk
May 15, 2025
Via E-file Christopher A. Prine Clerk, Fifteenth Court of Appeals P.O. Box 12852 Austin, TX 78711
Re: No. 15-25-00043-CV, The Conservation Society of San Antonio & Lewis Vetter v. University of Texas at San Antonio & The City of San Antonio; In the Fifteenth Court of Appeals of Texas.
Dear Mr. Prine:
Response to May 13, 2025 Letters from Appellees UTSA and the City of San Antinio
On May 13, 2025, counsels for the University of Texas at San Antonio (UTSA) and the City of San Antinio (The City), Appellees in the above referenced case, each sent letters to this Appellate Court addressing the Motion for Emergency Relief and Petition for Writ of Injunction, filed by undersigned counsel for The Conservation Society of San Antonio and Lewis Vetter, Appellants herein. The letter from counsel for UTSA is more detailed, whereas the letter from counsel for The City “concurs” with that from UTSA. This letter responds more directly to the UTSA letter but this response applies to The City’s letter as well.
Appellees both suggest that this Court deny Appellants’ Motion for Emergency Relief before Appellees file a response, but should they need to respond, they be allowed until May 20, 2025, to file such response.
Appellants seek emergency relief from this Court during the pendency of an appeal to prevent the demolition of the Texas State Exhibits Pavilion originally constructed for HemisFair ’68. 1 The building has been designated a Texas Antiquities Landmark [TAL] by the Texas Historical Commission and placed on the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966. The building is the sole example of brutalist architecture in downtown San Antonio. 2 The land on which the Texas State Exhibits Pavilion was built was transferred from the City of San Antonio to the State of Texas by a deed providing title would revert to The City if covenants regarding its use were violated. After HemisFair ’68 ended, the Texas Pavilion housed the Institute of Texan Cultures museum until recently.
The letter filed on behalf of UTSA presents essentially three arguments opposing Appellants’ Motion for Emergency Relief. First, UTSA argues that Appellants should have acted sooner to stop the demolition of the Texas Pavillion. Second, UTSA argues that the presence of asbestos in the building prevents enjoining the demolition. Finally, UTSA argues that the trial court properly granted a plea to the jurisdiction based on governmental immunity. None of these arguments defeat the principle that an appellate court may issue all writs necessary to protect its own jurisdiction. Where, as in the case at bar, demolition of the historic building at issue would moot the underlying appeal, causing this appellate court to lose jurisdiction. Therefore, injunctive relief is proper.
Their argument regarding delay and asbestos UTSA’s May 13, 2025 letter states: “Appellants-Plaintiffs did not file suit for more than three months after UTSA obtained its permit and began its demolition project, waiting until April 9, 2025 to do so. At that time, the demolition was already well underway.
And further states:
Because the building is old and had not ever been modernized, it was asbestosridden . Thus, the demolition project was in a sensitive asbestos- remediation phase when Plaintiffs finally got around to asking the trial court for an “emergency” TRO. Because the previously-encapsulated asbestos was exposed to the environment, it would have been irresponsible and unwarranted to enjoin the
1 HemisFair '68 was a World's Fair held in San Antonio, Texas, from April 6 to October 6, 1968. It was the first World's Fair in the Southwestern United States and the only one held in Texas. The fair celebrated San Antonio's 250th anniversary and the cultural heritage of the city and its Latin American neighbors. It is generally credited with beginning the modern era of San Antonio’s national and international prominence. 2 Brutalist architecture is a style known for its bold, raw, and often stark aesthetic. It emerged in the mid-20th century, particularly in the post-war era, and is characterized by the use of exposed concrete, minimalist design, and geometric forms. Brutalism emphasizes functionality and the honesty of materials, often showcasing the structural elements of the building rather than hiding them with decorative details. Texas State Exhibits Pavilion design is an inverted pyramid, paying homage to San Antonio’s indigenous heritage and its connection to Mesoamerica.
project. That remains true today. UTSA cannot abruptly stop what it had started in January pursuant to a December 2024 THC demolition permit without also pivoting to significant and expensive asbestos containment measures.
There is no evidence in the record as to when demolition or asbestos remediation started and its effect on demolition procedures. There is no evidence in the record as to when Appellants learned that demolition had started. Appellants’ Motion for Emergency Relief and Petition for Writ of Injunction states that:
10. On or about April 9, 2025, upon seeing that demolition had begun, Appellants attempted to seek out a Temporary Restraining Order with all Appellees well represented, and the Bexar County District Court stated a judge was unavailable to hear the matter and instructed the parties to return on April 10, 2025.
These are not the relevant questions. The relevant question is whether demolition of this historic building would render the appeal moot and deprive this Appellate Court of jurisdiction over this appeal. If so, injunctive relief should be granted pending resolution of the issue before this Appellate Court.
Their argument that granting plea to the jurisdiction was correct UTSA’s May 13, 2025 letter states: Instead of issuing a knee-jerk TRO or Temporary Injunction, on April 14, 2025, the trial court granted UTSA’s and the City of San Antonio’s pleas to the jurisdiction, dismissing Plaintiffs’ claims as barred by sovereign and governmental immunity. That ruling was correct. Appellants’ lawsuit is based on the citizensuit provision of the Texas Antiquities Code. See Tex. Nat. Res. Code § 191.173. But as the Third Court has held, that provision does not waive sovereign immunity. Grossman v. Wolfe, 578 S.W.3d 250, 261 (Tex. App.—Austin 2019, pet. denied) (citing Bacon v. Tex. Historical Comm’n, 411 S.W.3d 161, 177 (Tex. App.—Austin 2013, no pet.)).
A more recent Texas appellate case, Grossman v. City of El Paso, p, 106 (Tex. App.—El Paso 2021, pet. dism’d), was discussed at the hearing on the Plea to the Jurisdiction. In contrast to the earlier Third Court opinion cited in UTSA’s letter of May 13, 2025, Grossman v. City of El Paso held that injunctive relief to restrain and enjoin violations of the Antiquities Code is authorized against public entities, such as UTSA and the City of San Antonio.
Through enactment of the Code, the Legislature created a statutory framework designed to ensure the discovery and preservation of cultural, educational, scientific, or historic assets in accordance with the public policy and public interest of the State. See Tex. Nat. Res. Code Ann. § 191.002. The Legislature
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