Teague - Supreme Court of Texas

NO. 06-0389
CITY OF JACKSBORO, TEXAS
Petitioner
_ ._ _ - _ __-__ ---_- ---
PERRY TEAGm
R-.
_______.__ - _- -__ ---
IF PETITION FOR REVLEW G-D,
ORAL ARGUMENT REQUESTED
DAVID E. KELLEY
State Bar No. 24002395
2200 Hemphill StrPret
Fat Wd, Texas 761 10
(8 1 7) 922-0555 office
(8 17) 921-9740 facsimile
MICHAEL C. TRESIDDER
State Bar No. 2403 76 14
2200 Hemphill Street
Fort Wmfh, Texas 761 10
(817) 810-0100 offim
(817) 921-9740 hcshile

IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as weU as the mes and addresses of
all counsel:
PARTIES:
Respondent:
PERRY TEAGUE
Respondeat's Trid and Appellate Counsel;
DAVID E. KELLEY
State Bar No. 24002395
, , - , --- -. -- --. -- - .. -- -- -- - - ----- -- --- 220-_sbre&--
Fort Worth, Texas 761 10
(817) 922-0555 offiw
(817) 921-9740 facsimile
-. -
MICHAEL C. TRESXlDDER
State Bar No. 24037614
2200 Hempbill Street
Fort Worth, Tens 761 10
(81 7) 810-0100 office
(817) 921-9740 facsimile

Petitioner:
CITY OF JACKSBORO
Petitioner's Supreme Court Counsel:
KWT R. KUHN
State Bar No. 24002433
VIRGINIA K. HOELSCHER
State Bar No. 24041108
BROWN MCCARROLL,
L.L.P.
1 1 1 Congress Avenue, Suite 1400
Austin, Texas 78701
(5 f 2) 479-9746 office
(5 12) 479-1 101 facsimile
Petitioner's Trial and Court of Appd
ComseI:
BONNIE LEE GOLDSTEIN
BONNIE LEE GOLDSTEIN, P.C.
State Bar No. 08097975
P.O. Box 140940
Dallas, Texas 75214
(214) 321-3668 offi~
(2 14) 32 1 -8429 facsimile
DAVID SPILLER
SPILLER & S P r n
State Bar No. 18934950
P.O. Drawer 447
JmksBoro, Texas 76458
(940) 567-6644 office
(940) 567-3999 fawide

TABLE OF CONTENTS
D m OF PARTLES AND COUNSEL.. ..................................................................... u
TABLE OF CONTENTS ..................................................................................................... iv
'INDEX OF AUTHORITIES ............................................................................................... .vi
ISSUES PRESmmD ...............................*..................*...............................*........................ X
STATEMENT OF FACTS. .................................................................................................... 1
SUMMARY OF ARGUMENT.. ................................. . .............................................. .5
Tewgue's petition complied with the clear quimnents of
Section 2 14.00 12 of tfie Texas Lo& Government
Code ............................................................................................................... 7
The City and State's interpretation of Chapter 2 14 is at
odds with clear statutory hguage .................................... ,.1...,9
Previous holdings of this Court support Teague and the
opinion of the court of appeals .............................................. 12
City and State's arguments place form of pleadings over
their
substance ................................................................................ 15
City and State's proposed htqretation of Section
214.0012 would creak serious due
process concms.. .................................................................. 1 6
..

The opinion of the court of wppeals does not
abrogate the shtutmy appeal process for
a municipality's demotition order through the UDJ%
rather the court specikdy fails to d an evaluation
of this sepmte issue .............................................................. 17
Substantial evidence standard is not m issue as them
has never been an evdu&on of evidence
in this matter ....................................................... ,...,,.~..........,18
The City waived any alleged reqhent for a request
for writ of &&. ............................................................. .I9
11. Teagm is entitled to pursue a suit for iojlmctive and deckatmy
relief outside of the statutory scheme on the basis that the cily
ordinance and statutory fmmewurk are mcunstitutiaaal......................... ..*.20
Govemmd immunity is autoddly waived
in suits to enjoin violations of state or &ded
constitutional rights.. ............................................................. .2 1
Teague's claims for oo~~onal and dechtory
relief are properly brought under the UIDJA .......................... 22
Tmgue's constitutional d a b are not subject to any
of the mbints imposed by Chapter 214 of the Texas
Local Government Code ...................... . .......................... 23
Teague's has rsiised substantid complaints tholt the
city ordinance and underlying statutory scheme are
un-tutlonal. ...%
. ...................................................................
III. Ho1n80mer's due process rights vs. public
concerns ....................................................................................................... 29

CASES
INDEX OF AUTHORITIES
AircraJ& Diesel Egu@. Corp. v. Hirsch, 33 1 U.S. 752 (1947).. .................................... ..26
Board of Adjustment of Ci@ of Sarr Antonio v. Wdlie, 5 1 1 S.W.2d 59 1 (Tex.
App.-San Antonio 1974, writ rerd nr. e. )... ............................ . ........................... ..27
Camatu v. Ah, Court, 387 US. 523 (1967) ............................................................... 20,29
Central Puwer h Ligk Co. v. Sharp, 960 S.W.2d 617 (Tex 1997) .................................. 25
Cify ofh Purtev. B+Zd, 898 S.W= 288,291 (Tex. 1995) .................................... ,..,21
Cow@ of Cameron v. Brown, 80 S.W.38 549, 555 vex. 2002) ................................... u...15
Colainey v. Uniwrsi@ of TEWS &s., 806 S.W2d 277,284 (Tex. App.
-Fort Worth 1991, wit denied) ............................................................................... 21
Davis v. Zoning Board of Adjusment ofCi@ of La Porte,
865 S.W.2d 941 (Ta 1993) ,. ....12-14
................................ .......................................
Goiden Eagle Archery, Inc, v. Jmhon, 24 S.W.3d 362 (Tex. 2000) ............................... 27
In re Teague, 2006 WL 3021 23 vex. App.-Fort W d
Feb. 6,2006, orig. proceeding) .............................................................................. *..4
JB. Advertking Im. v. Sigrr Bd. QfAppeaIs of City of Carrollton, 883
S.W.2d 443 (Tex. App.-Eastland 1994, writdmied) ....................................... 7,27

Keyishim v . Board of Regents. 385 U.S. 589 (1967) .........................................................
Lewis v . Metropolitan Smingx & Loun ASSOC.. 550 S.W.2d 11 (Tex . 1977) ..................... 27
Mbrtimz v . City of El Pmo. 169 S.W.3d 4&8
(Te x. App.41 Piso 2005.pet.fiZe4 ........................................................ 14- 15
Nwsbaum v . City ofDallas. 948 S.W2d 305
(l%~A.pp.-Dalla~ 1996. no wrif) 13
............................................................................
Old Dearborn Bt. Co . v . Seagram-DistiIters Curp.,
299 U.S. 183 (1936) ................................................................................................ 17
Prostokv . Browning. 112 S.W.3d 876. 915
vex . App.-Dallas, 2003). rev 'd in part m other groundr ................................. 1 5
Smtt v . Board of Aaw-t. 405 S.W.2d 55. 56 (T ex. 1966) .............................. .13. 15- 16
State Bar v . Heard, 603 S.W.2d 829. 833 (Te x. 1980) ...................................................... 15
St . Luke 's EpiscopaI Hosp . v. &or3 952 S.W2d 503. 505 (Tex 199 7)
....................
17
10. 1 1
Teague v . City of Jachboro. 190 S.W.3d 81 3. 820
(Ta App.-Furt Worth 2006.pet . fled) ........................................................ 4 17
T m
Highway Comm 'n v . Texas Ass 'n of Steel Iwrgor fers. 372 S.W.Zd
525 (T ex. 1963) 21
.......................................................................................................
Tmzs Mum Pwer Agency v . Pub . Util . Cum 'n,
100 S.W.3d 510.51 5.17 (T ex. App.-Austin 2003,p
. denied) . 22

Texas Naf . hsme Consetvation Corn v . IT.Pary.
74 S.W.3d 849. 855 (T ex. 2002) ............................................................................. 22
Texas State Board of Pkarmacy v . Walgreen Tms Co., 520 S.W.2d
845 (T ex. App.-Austin 1975. writ rejued nr . e.) ............ . ........................*. 23-24
Timu Water Corn 'n v . LMq. 850 S.W.2d 183
(Tex.App.-Beaumont 1992. wif hied) ........... . ............................................... 22
Waco LSD . v . Gibson. 22 S.W.3d 849. 850 vex . 2000) .................. . ......................... 16
Yaks v . h4iZwuukee. 77 U.S. 497. 505 (1870) ................................................................... 20
U.S. CONST
S CONSTITUTION . STATWIF-8 AND RULES
. amend XIV. 8 1 ............................................................................................. 20
Tm . COMST . art . V. 8 8 ................... ,. .............................................................................. x
. Crv . mc . & Rm . CODB § 37.00418) .................................................... ... 22, 26
llx . LOC
. GWT CODE # 214.0012 et seq ..................................................................
passim

Nature of the Case:
Trial Court:
TriuZ Court Dispositiop~:
Parties in Cowt ofAppeals:
Court of Appals:
STATEMENT OF TEU?, CASE
This case involves the requisites necessary for a citizen
to appeal a municipal demolition order under Chapter
2 14 of the Texas Local Government Code.
Additionally, this case involves a citizen's ability,
independent of the staturn framework, to challenge
the constitutionality of the underlying city ordinance or
statute. FoIlowhg the issuance of a demolition order
for his home by the City, Teague filed a vefied
petition appealing the City's order under Chapter 214
and also challenging the comtitutidty of the city
ordinance and the statutory framework outside the
statutory process.
The Honorable John H. Fostel, 27 1"' Judicial District
Court, Jack County, Texas.
On January 26,2006, the trial court granted the Cify's
plea to the jurisdiction and dismissed Teague's lawsuit
for 1 a& of subject matter jurisdiction.
Plaintiff Perry Teague was Appellant. Defendant City
of Jacksboro was Appelfee.
Second Court of Appeds; Justices Livingston,
Dauphinof and Holman.
Disposition by Cowt of Appeals: In a published opinion authored by Justice Livingston
the court of appeals held that Respondent's vded
petition properly complied with Chapter 2 14 of the
Texas Local Government Code and therefore invoked
the tsial court's subject matter jurisdiction. Therefore,
the court of appeals reversed the trial court's judgment
and remanded the case for Mer proceedings.

ISSUES PRESENTED
Does Section 2 14.00 12(b) of the Texas Local Government Code
w-uire, as a jurisdictional prerequisite, that a party request a writ
of certiorari within thirty clays of their receipt of an order of a
dcipality?
No. Section 214.0012@) is clearly didonary on its face, and
not jurisdictional. The stam merely requires that a verified
petition be fled within thirty days. Writs of certiorari are wed
to ensure a complete record for widentimy purposes and have
nothing to do with a trial corn's jurisdiction.
Whether a party chdlenging a statute, ordinmce or municipal order
on constitutimd grounds who does not follow that same statutory
kework properly invokes the court's subject matter jurisdiction?
Yes. The mising of comthdional issues invokes the Wct
court's jurisdiction. TEX. CONST. art. V, 8 8; TEX. GOV'T CODE 5 24.008;
Tex CW. PMC. & RIM. CODE 5 37.004(a). Furthemore, a party need not
follow the very statute it is clouming is undtuEional in order to invoke
jwidictiofl.

STA'IXmNT OF THE FACTS
At the outset of its brief, Petitioner, the City of ~aclrsboro (herehfk referred to
as the "City 3
') states that the "relevant facts of this case are not really in dispute."
Petitiumr 's Brief at 1. To the contrary, there seem to be a fundamental disagreement
regding what constitutes the relevant facts in the current matter. ARer its initial
assertion, the City proceeds to inundate the Court with aver six (6) pages of evidentiary
assertions in a case which has never reached the evidentiary stage. In f'act, most of the
City's factual assertions are disputed and are based upon conclusion and speculation and
have never been offered under the Texas Rules of Evidence in any adversarial
proceeding. Respondent, Perry Teague (hereinafter referred to as "Teague") has as yet,
never had the oppodmity to object to, cross-examine, challenge or investigate the
veracity of any of the city's assertions. (CR at 4). In fact, Teague's extensive efforts in
this litigation are almost entirely focused on his effort to obtain the opportunity to
challenge and object to the one-sided allegations of the City. Teagw could easily provide
his own fbtual assertions regarding the status of his home (the property at issue), the
alleged illegal actions of the City and its agents, or any other number of unsubstantiated
allegations in response. However to do so only serves to &tract hm the true issues
before the Court.
The only relevant facts relate to the procedural histury of this matter and their
relation to jurisdictional issues. The relevant jurisdidd facts are as follows:

On or about December 13,2005, the City held a meeting of the city council. (CR at
22). On the agenda of the cily council was a public hearkg regarding the abatement of a
structure located at 704 N. Main Street, Jorcksboro, Jack County, Texas, which was
alleged to be substandard and dangerous. Id The property and st~cture located at 704 N.
Min S m JmIrsboro, Jack County, Tams are owned by Teague. Furthermore, Teague
lived otl the property in question and has declared said property as his horn- pursuant
to Texas law. (CR at 3).
During the meeting, a city official provided the city council with unsworn
statements alleging that the &u&m located at 704 N Main Street was in violation of
city ordin8nce(s). (CR at 34). In support of lhe city official's msworn statements,
utwerified documents were provided to the city council fm its review. (CR at 33). At no
time was the city official placed under oath regarding his presentation to the city council.
(CR at 4). Furthermore, Teague was not prwided with copies ofthe dammenfation
which the city council used in its dekmimkion of whelher to enter a demoIition order for
the structure on said property. Id. During the come of the meeting, Teague was not given
the qpdmity to cross-examine the unsworn witnesses, d his own witnf~~es, or to
present or defend his case in any meaningful way. Id. Afb the co~lclusiw of the
6%&ng," the Mayor signed Order No. D-04-05 ordering Teague to demolish Bis home or
that the City would do so within ihkty (30) days. (CR at 71).
Thereafter, Tape fled an Original Petition undApplic&n for Tmporaty

Restraining &&r on January 12,.2UU6 in the 27 l* Judicial DisErict Court of Jack County,
Texas. (CR at 2). As a part of his challenge, Teague sought to ov- Order No. DM-
05 for the reason tbat the City's conduct and its Order were illegal. (CR at 3-5,8).
Furthermore, Teague Wenged the mdedying st&& and ordinance stating that they
violated his state and f&d constiWond due process rim. Id. The trial court issued
a Temporary Restraining Order with a hearing scheduled to take pke on January 18,
2006 to determine whether to continue the Temporary Restraining Order into a
Temporary Iry'umfion. (CR at 1 1- 1 2).
On the date of said hearing, the City fled its Lh$edmt City of JaBsboro PZea to
the 3khdicti~q SpecicaI keptiom, Uri@+ml h e r to UrrginaI Perition ad Applicafion for Tmp~ary Restraining Or*, Com&rclahlfbr Wmngid Iym~on ad
Motion to DissoZve the Tempormy Restruining &&r. (CR at 19). It is important to note
that this pleading included as attachments dl docu~ents which would be presMlably
.filed in response to a district court's writ of certiorari.
Thereafter, on Jmuary 26,2006, the Hmdle John H. Fmtel, Judge of the 271'
Judicial District Court for Jack County, Texas signed an &&r grmtiug the City's plea to
the jurisdiction and dissohing the trial ootlrt's Tvary Restraining Order. (CR at
184-186). Contained within the Or&, the trial court specifically found and concluded
that pursuant to Section 2 14.00 12 of the Texas Local Government Code, a writ of
certiorari must be filed within 30 days of a municipality's £id decision. (CR at 184). In

addition, the Court fbmd that Teague had hiled to comply with this alleged stahtory
prerequis'i and as a result, an incurable jdsdictid defect existed which deprived the
court of jurisdiction. (CR at 185). The trial court Med to address Teague's c b that
the ordinance and statute were uncomtitutionsrl. Id.
From the trial court's ruling, Teague filed an appeal in addition to a petition fir
writ of injunction. Teague's request for a writ of injunction was granted by the court of
ap@s and the City was prohibited km acting on its order. In re Tea*, 22006 WL
302 123 (Tex. Amp.-Fort Worth Feb. 6,2006, orig. proceeding) (memo. ope).
Subsequently, the court of appeals reversed the trial court's decision hling that Teague
had complied with Ehe clear and unamb'ious language of Chapter 214 when he fled his
vded petition challenging the City's order as illegal and stating the grounds of the
illegality. Teague v. Ci@ of Jachhro, 190 S.W.3d 813,820 (Tex App.4ort Worth
2006, p& filed). Due to the fact that it sustained Teagus's first point of srrm under
Chapter 214, the court of appeals had no need to reach his decIamtory and injunctive
claims. Id.
On or about May 15,2006, the City filed its Petition 'r Revim with this Court.
ThereolRer, the State of Texas @~~ refmed to as the "State") filed an Arnictcs
Curine brief on the City's behalf. Subsequently, this Court requested Briefs on the Merits
from the parties. Teague hereby respectfully submits his Brief an the Merits.

SUMMARY OF T'iiE ARGUMENT
The City fails to recognize a funthmed aspect of Teague's pl&gs which the
court of appeals acknowledged. Teague's pleadings request two distinctly different forms
of relief. First, as the court of appeals indicated his pleadqs appeal the decision of lhe
City to demolish his home pursuant to Chapter 214. Second, Teague's pleadings
challenge the wnstitutionali@ of the underlying ordinance and statute. The court of
appeals understood the dual nature of Teague's pleadings. Therefore, when it ruled that
Tague's fmt requested relief invoked the trial court's jurisdiction, it was not necessary
to address Teague's seam* constitutionaf claims. Either of Teague's requested forms
of relief, standing on their own, are sacient to invoke the triaI court's subject matter
jurisdiction.
Teague's h t claim was w challenge or appeal of the City's mder under the
statutory scheme. Both the CiV and the State misconstrue the statutmy jurisdictional
requirements contained in Chapter 214 of the Tern Local Government Code for
challenging municipal demolition orders. Specifidy, despite clear discretiomwy
language to the contrary, they claim that the statute has a mandatory requirement that a
litigant me a "f &tion for Writ of Momti." In actuality, a clear d g of the statute
indicates that in order to invoke the trial murt's jurisdiction, the litigant solely need to (1)
file a verified petition, (2) stating that the decision is illegal as well as the grounds of the
illegality, (3) within thirty days of their receipt of the municipality's order. The court of

appeals correctly detemhed that Teague's petition c d y complied with these
mpkments, thereby invoking the trial court's jurisdiction. Further, to foUow the
proposed statutory interpretation urged by the City and State would create serious state
and federal due pmcess concerns regarding the statutory scheme. Under their reasoning,
the term "may" would somehow impose an absolute requirement oa a litigant. Even more
absurd, is that the language at issue ref- to the discretionary powers codd upon the
trial murt and not any requirement of the litigant. Any such intqmtatim would render
the statute unconstitutionally void for vagueness under cunqts of due process and
funhental fairness.
Any attempt to chmckh the court of appeals opinion as a judicial
on of the stam appeal process or the substantid evidence standard of
review is simply without merit. Once again, this ignm the two separate aspects of
Teague's pleadings. The opinion of the court of appeals was reached upon a plain
teading of the face of Section 214.0012 of the Texas Locd Government Code and did not
involve the Uniform Decl- Judgment Act in any way as claimed by the City and
State. The court of appeals' &g only applied to Teap's requested relief under
Chapter 214. The court specifically stated it was nat addressing Teague's injunctive and
declaratory claims. This case involved a dismissal for lack of jurisdiction, prior to any
evaluation of evidence, the standard of review was never reached. Therefwe, the
substantial evidence standard of review is maddressed and unaffected by any proceeding

in this case, despite the State's claims to the contrary.
Even d g for the sake of argument that Teague's petition did not comply
with Chapter 214, the second pdm of his pIeadings invoke the trial court's jurisdiction.
Though the court of appeals determined that it was unnecessary to address the hue,
Tque's petition invoked the trial oourt9s subject matter jurisdiction to detemine the
mtitutidty of the municipal ordinances and the stahhwy scheme itself.
Sovereign immunity is automatically werived when a govemmentd entity, such as a
city, takes actions which viok a citizen's constitutional rights. A citizen is entitled to
putsue injunctive and declaratory relief to coned or prevent these wrongs, even absent
legislative waiver of immunity. Furthermore, it is not necessary for a person to comply
with the exhaustion of remedies doctrine or follow statutory procedm in order to
challenge the very comtihtidity of the itself. To require otherwise is illogical.
Either of Teague's ctaims far relief, stmding alone, confir jurisdiction upun the
trial court in this matter. Therefore, this Court should affb the decision of the court of
appeals and remand this matter back to the trial court for Mer proceedings.
ARGUMENT AND AUTHORITIES
oomolied with the clear mgimnents of Section 214.0012 of the
ent Code,
The iniw in* befare the Court is to debmine what steps are nw;essslty for a
citizen to properly appeal a demolition order of a city pursuant to Section 214.0012 of the
Texas L d Government Code. In their briefs, the City and State attempt to so stretch

the language of the statute beyond its common and ordinary meaning to pke additid
burdens upon a party challenging a rndcipdty's demoiition order.
There is a reason that the City avoids the discussion of black I&@ faw con^
statubry c d o n . Established law does not support any of their arguments. The City
wants the Court to ignore long-established tenants of statutory construction previously
embraced by this Court md d courts in this state.
The primary objective when construing a statute h to ascertain and give effect to
the Legishture's intent. Mdigwe v. h imz, 109 S.W.3d 74 1,745 (Tex. 2003). h
discerning that intent, courts begin with the 'blain and common meaning of the statute's
words." Id. When hene statutq I-ge is unambiguous, the courts must apply the
statute as written. RepublicBluPa Dallas, NA. v. Irmberkal, Im., 69 1 S.W.2d 605,607 (Tx.
1985).
Chapter 214 of the Texas L d
Govmment Code provides the authority and
procedures for a municipality to demolish substan- buildings. TEX. Loc. GOV'T CODE
#214.001 ebseq. SeCtion214.0012(mr)is~edysectionwhichprovi.d~the
jurisdictid prerequisites for obtahhg review of a municipal demolition order. More
specifically, the statute requires the challenging party to file 'Lin district court a v ded
petition." Id. at 8 2 14.00 12(a). The petition must be fled within 30 days after the hal
decision of the municipality is pemnally delivered or mailed to the owner, and must "set
forth that the decision is illegal," and "specifjting the grounds of the illegality." Id. No

other requirements exist. The court of appeals corpectty nrled that Teagm had satisfied
these mpkements.
In the case before the CourE, Teague rewived a copy of the W decision of the
City on December 17,2005. (CR at 69). On January 12,2006, Teague filed a verified
petition aweding Order No. D-0445 of the City of Jacksboro. (CR at 2). Teague's
verified petition was filed well within the 30 days required by the statute. Fdemore3
T-e's petition appealed the City's hoIition order on memus pmds including
the iflegality of the order (for lack of due process) as well as the uncomtitutiond
application of the mdkmce to his prom. (CR at 3-5,8). On this basis, the court of
appeals camdy determined that Teague had met the statutory mpimnents of Chapter
214 and thus properly invoked the trial. court's subject matter jurisdiction.
The City and State clh that the court of appeals judicially rewrote the apped
process created by the Legislature. Yet, it is the interpretation of the City and State which
wdd actually eradicate and render me^^ the clear and unambiguous language of
the Legislature. Both the City and State rely on sdm 21 4.00 12(b) for their assertion
that Teague must fie a ?Petion for Writ of Certiorari" in order to invoke the subject
matter jurisdiction of the trial court Tbis position dhdy conflicts with a clear reading
of the statute. It is not necessary to resort to rules of comhuctio~. or extrinsic aids, such
as legislative histaris, to constme a statute which is clear mcl unambiguous on its face.

St. Luke 's Episcopal Hap. V. Agbor, 952 S.W.2d 503,505 (Tex. 1997).
The statute at issue here actual& states that on the W g of the petition, the court
issue a writ of certiorari directed to the municipality to review the order of the
municipsrlity. TEX. LOC. W'T CODE 5 2 14.001 2(b). The City claims in its brief that
courts of appeal have varied in deEermining whether a district court's grant of certiorari is
disdmq or not. See City's Brief on the Merits at 19. This is, however, simply not
the case. Courts have consistently held that the power of the district court to issue a writ
of certiorari is discretianmy as stated in the statute. This same opinion is adopted by the
court of appeals in the case cited by the City as alleged evidence of the existence of a split
of authority. Hagood v. Ctty of Howton Zbrihzg Bd. of A@wfme~, 982 S.W.2d 17,18
(Tex. App.-Housh [I* WI1998, no writ) (explaining &ct court's gmt of writ of
dorari as discretionary). No such split of authority exists.
Both the City and State have improperly seized on this discretionary language and
argued that it imposes some additid jusisdictiond duties upon Teap. This d o n of
the statate is clearly discretionary and applies to . . the htrrct corn and certainly does not
impose mry additional duty upon Teague, as the litigant, as a jurisdictional perquisite.
m. LOC. @V'T CODE 5 214.00 12(b). Nothing contained in the statute states that a
request for ismace of writ ofcer&id nust be hcIuded in the Htion or that such a
request must be fled within 30 clays of the receipt of the municipal order. id. lt is also
important to note that the city ordhnce itself also only requites the filing of a v ded

petition to challenge the City's order md never menti- writs of certiomri in my way.
(CR at 62).
The term 'by" creates d i d q authority or grants permission or a power
upon the trial court. m. W'T CODE $3 1 1.01 6(1). This discretionary power mates no
condition precedent upon Teague. The term "must" would be necessary to impose such a
burden upon him. Id. at 83 1 1.0 1 q3). Indeed, the logical conolusion mwt be that, had it
been the Legislature's intent in enacting section 214.00 12 to require that the party
chdenging the underlying order rust request that the trial court issue a writ of certiorari
within a defied time limit as a jurisdictional prerequisite, it kad only to say that the
litrgant "shuil" or '*mwt" 1Eo so.
h stated earlier, it is not necessary to resort to exlrhic aids to determine the
intent of the Legislature when a statute is clear and unambiguous on its Ewe. St. Luke 's
Episcopal Hoq., 952 S.W.2d at 505. Yet, it is also important to note that none of the
LRgislathe history provided by the City states that a litigant should be required to request
a writ of dk within thirty days. OnIy that they initiate their action within that time
Erne. For the City to claim that the statute requires a request for writ of certiorari to be
filed within 30 days of the receipt of the municipat order simply flies in the b of all
rules ofstaMory oonstryction. In order .to follow the City's logic and masoning, one
would have to presume that the word %af' means 'bust" and 'bwt" means '%nay." It
is akin to a party pointing to etn apple and dlhg it an orange.

It is also helpful and itlskwtive to view how similar statutes and causes of action
have been interpreted by the courts. Chapter 21 1 of the Texas Lad Government Code
deals with the authority of locd zoning boards of adjustment. Section 21 1.01 1 of the
code atitfed "Judicial Review of Board Decision" uses substantially the same language
as that in Sectian 214.0012 entitled "Judicial Review." Just as 214.0012, the stat& states
that a person m y iile a vded petition with the met court stating be decision is
illegal and the grounds for the illegality. TM. LOC. GOV'T CODE 4 21 1 .O1 l(a).
Furthermore, on the presentation of the petition the court grant a writ of certiorari
d.kcted to the board. Id. at 521 1-01 l(c) (ernphii added). The one significant
difference in the two shtub, which is not relevat here, is that Section 21 1 "01 I@) only
pmvides for 10 days as oppod to 30 days to file the verified petition. Neither section,
however, contain a deadhe for the request of a writ of certid or requirement that said
quest be contained within the v ded petition.
This Court addressed a virtually identical scheme for judicial review and the role
of the writ of dd. In Davis v. Zoning Board ofAdjusdnoent of City of La Porte, this
Court considered whether there was any relationship between a writ of cdmari and
subject matter jurisdidm. 865 S.W.2d 94 I (Tex. 1993). This Court determined that
there was no relation. Id. at 942. Once a party timely fles their petition, the court has
subject matter jdction to determine the merits of the case. Id. The writ of certiorari
-12-

is merely the method by which the court m y conduct its dew. Id. The purpose of the
writ is to require the bod to forward to the court the record of the particuhr decision
being challenged. Id.
The failure to obtain a writ of certiorari eff& a litigant's ability to meet their
evidentky burden upon final trial, not their ability to establish jurisdiction. hfussbatnn v.
Ciry of MZm, 948 S.WJd 305 (Tdpp.-Dalhs 1996, rw writ) (party failed to request
writ of certiomi.or obtain adminiskative record, thus court presumed agency's order was
supported by substantial evidence).
In Davis, the Court further noted that, just as in the present matter, the statute did
not contain a specific time limit fox the request or issuance of lhe writ. Id. Therefore,
having timely fled their vded petition, the litigants were "entittgd to their day in
court.' Id. Citing Sm# v. Board of A@ecstment, 405 S. W.2d 55,56 (Tex. 1966). Even
though over two years had elapsed since &e case was filed and the landowners had not
attempted to have the writ issued until eleven days before trial, lhe Supreme Court ruled
that a granting of a plea to the jurisdiction was not proper. Id. at 94 1.
In the case before the Court, Teagw fled his request far issuance of a writ of
certiorari much sooner. Tque fled a request that the writ be issued only eight days after
his initial pledhg. (CR at 155). The statute before the Court in this case is the same in
all mmingfd and relevant aspects as those ons side red in Davis. They both provide for
judicial review by iihg a v&ed petition. They both are very specxc on the deadline

for that petition. They both provide Ehst the court issue a writ of d oari
upon the filing of the petition. Neither provides a deadbe for when that writ must be
issued or when my request for issuance must be filed. Ifthe legislature wanted to make a
t e s t for writ of certiorari mmWnys it could have simply included language to that
effect. The City attempts to distinguish the Davis case on irrelevant procedural facts.
The importance of the Davis opinion is not its procedural history, but its recognition of
the evidentkry and not jllrisdidoaal role ofwrits of certiorari. The Davis w e is an
excellent blueprint for how the Court shdd address the writ of certiorari issue in this
matter. A writ of domi has 'bndhing to do with the court's j~dictiofl." Hagood,
982 S.W.2d at1 8. It is merely the method by which a court conducts its review of the
underiring proceeding. Id.
The trial court and the Ci@ appeared to prhdy rely on dicta contained within the
opinion set forth in Mwtirraz v, Cily of El Paso to support the contention that a writ of
certiorari is necessmy for jurisdiction. 169 S. W.3d 488 (Tex. App.-El Paso 2005, pet.
flied); (CR at 179). The dicta within said opinion coniradicts the precedent established by
this Court set f& ma specifically above. In Martinez, the appellant was a pro se
litigant and was unfortunately unable to properly pmt issues or brief matters before the
corn Id at 490. The court ruled that she did not pmpwIy preserve error for review by
the court. Id. at 491. Her arguments did not cite to my cases which supported an
appellate argument. Id. This was the theis for the court's ruling. Atry subsequent dicta

included within the opinion is not applicable to the case before the Court. Furthem-
Martinez admdly filed her lawsuit before any municipal order was ever issued. Id. at
490. Still further, unlike Teague, Martinez never at any time requested a writ of
dOHVi. Id. at 492. K W r k does actdfy hold that a request far a writ of domi is a prerequisite to jurisdiction, Teague would rapedully disagree based on the prior
holdings of this Court.
C. Ciw and State's arments dace form of plea- ovw && sub-
The City's main contentiun appears to be that Teague's petition was not labeled as
a "T&ion fm Writ of Certiorari." There is no specific requirement contained within
Chapter 214 of the L d Government Code that the petition be bled a certain way, or
that some w d be used. Courts are to judge the cholracter of a pleading by its
substance rather than its form or caption, State Bar v. Heard, 603 S. W.2d 829,833 (Ta
1980). 'The true nature of a lawsuit is based ypon the &cts alleged in the petition, the
rights asserted, and the relief sought." htok v. Browning, 1 12 S. W.3d 876,9 15 (Tex.
&pa-Dallas, 2003), rev 'd in part on other grim&, 165 S.W.3d 336 (Tex. 2005). A
court must construe plea@ libdy in favor of the pHand look to the pleader's
intent. County of Cameron v. Brm, 80 S.W3d 549,555 (Tex. 2002).
In f&, this Court has previously held that "an injunction proceeding" filed against
a board of adjustment was "in effect an appeal (by writ of certiorari) fmn the action by
the board of djustment." Scott v. Bd. of A@M-, 405 S. W2d 55,56 vex. 1966).

The City attempts to distinguish the Scott case on the bmis that it involved issues of
standing, rather thanjurisdiction. This is a dkhctiotl without relevance. The importance
of the Smft opinion is that it is instructive and illustrative of how the Court has previously
construed pldhgs of pdes under similar cimmstances. Moreover, standing is
implicit in the concept of subject matter jurisdiction. Wm I. S.D. v. Gibson, 22 S.W.3d
849,850 (Tex 2000). Jurisdiction, therefore, was an inherent part of the Scott decision.
Next, the City attempts to charactah be Scu~ decision as a "jprudenW
artifact'' relying on fieeman v. City of Dallas. 242 F.3d 642,649 (5" Cir. 2001) (en
bmc). This is clearly a desperate effort on behalf of the City to try to discredit this
Court's well-reasoned previous decision that a suit for injunction may be considered, in
effect, an appeal by writ of ceded. The City would prefer to allow form to prevail
over substance. htmdngly enough, the Fte- opinim contains no reference to the
Scott opinion and relies heavily upon other cases decided within the same decade as Sm#.
Id. It is ckeau, upon even a cursory look at the Fmnsart opinion, that when the court
referred to "jurispulmtid dikts" it was referencing cases from the 1700's, not the
1960's. Id.
gerious due mows concetrxs.
As stated previously, to construe that Section 214.0012 requires, as a jurisdictional
prerequisite, that a party must file a request for writ of certiorari within a defined period
would be in direct contradiction to the statute itself. To so interpret the statute in
-16-

accordance with the contentions of the City and State would render it so vague, indefinite
and uncertain as to be in violation of the due process chum of the United States and
Texas Constitutions. The law is clear h t a statute is void for vagueness and a violation
of due grocess if men and women of common intelligence must guess at the meaning of
the statute. Old Peurborn DM. Co. v. Seagram-Distillers Corp., 299 U.S .I83 (1 936);
Keyishian v. Board of Regenbs, 3 85 U.S. 589 (1 967). Due process is violated when
persons of common inteIligence are compeUed to guess at a law's meaning and
applicability or when there is a substantial risk of miscalculation by those whose ads are
subject to regulation. XB. Advertising Inc. v. Sign Bd OfAppeab of City ofCmoIIturm,
883 S.W.2d 443,448 (Tex App.-Wand 1994, writ hied).
E. The opinion of the court of a d does not abro~ate the statuto~ nat)eaI
. .
ess for a dcipalitv's demolrtr on order throa the UDJA. rather the
samte - issue,
The State contends that the court of appeals has supphkd the statutory review
process for demolition orders through the use of the Uniform DecIaratory Judgment Act.
Once again, this fa& to understand the dual claims for relief made in Teague's pleadings.
W~th nothing more than a curmy look at the opinion of the court of appeals, it is clear
that it did not rely on the UDiA in any manner in reaching its decision. To the contrary,
the court specifidly held that Teague complied with the jurisdictional requirements of
section 214.0012, and as such it need not evaluate his UDJA coflstitutionall arguments.
Teap, 190 S.W.3d at 820-82 1. Therefote, my alleged fear of the substitution of the

UXlJA for the stahtory appeal process is simply unfounded.
F. Sb evi c erehasn ern
~aluation
of evidence in this math.
The State a h argues that the substantid evidence standard has somehow been
efkkd by the decision of the court of appeals. This claim, however, is entirely unripe as
neither the court of appeals nor the hid court has yet to reach this stage of the litigation.
The trial court emneously detmhed that it had no subject matter jurisdiction and
dismissed Teague's petition prior to evaluating any evidence or applying any eviddmy
standard. The court of appeals merely determined that Teague's petition had invoked
subject matter jurisdiction under Chapter 21 4 and remanded the case back to tbe trial
court fbr further proceeding under the substantial evidence staradslrd. The opinion does
not effect the application of this standard in my way,
Unfdmatefy, the City's appeal of this matter attempts to mkharactmh the true
nature of Teolgue's pleadings. In fact, T w's pleadings serve a dud purpose. On tfie
one hand, they serve as an apped under the statutq framework set hrth by the Teas
L d Government Code. In addition, Teagw brings codtutional chhs which, by
necessity, must operate outside ofthe statutory bework. As established later herein,
Tque has a right to challenge the cunstitutionafity of the ordinance and statutory scheme
outside of the c ohes of lhe statutory bmework itself. As the statute limits the review
of the City's order to the substantial evidence standard of review, Teague must seek a
refief outside ofthe statutmy proca to obtain a detedmtion of his cmutitutiioaal
-1 8-

assertions =garding the statutmy process itself. Therefa the district court in a case
such as Tiape's would wear two hats. First, the court would act as an appellate court
when revimhg the municipality's demolition order pursuant to Chapter 214 ofthe Texas
Local Government Code. When acting in this role, the disixict court must apply the
substantial evidence stsuzdd while reviewing the City's actions under Chapter 214. TBX.
LOCAZ, GOV'T CODE 82 14.00 12(f). With respect to Teague's oonstitutid claims
regding the underlying ordinance and statute, the district court is empowered to
approach said claims just as any other suit for injutlction or declaratory judgment.
G. The City waived my dwed quhment for a rea-uest for writ of domi,
If under a strained reading of the statute9 a quest for writ of certid is
jurisdictiooal, the City waived any such requirement. Upon d c e of the lawsuit in this
matter, the City fled its Defimht Cidy of JacRsboro Plea to the Jiwhdictiort, Specbl
ficepfiom, Original Amer to Ortgid Petition aid Applica fiora for Temprmy
Restraining Order, C~omterckirn for Wrow Iymcthn ad Motion to I%soh the
Tempormy Resfraining Order. This was an extensive which included the
attachment of numerous documents. Among these attachments were all of the CLwidenm"
and "docu~ents"which presumably would be the same documents which would be
submitted in a response to a writ of certiorari issued by the triaf court. Thus, the City
fled the '"return" as required by SBction 2 14.0012 without a writ of certiorari ht behg
granted and served on it. Effectively, the City waived service and the Chapter 214 issues

were joined for the brid court's consideration.
XI. T came i s e edto nuea t i d ide of !
-0 &
sch w c e md statutory mewark
yre mdtutiom&
Even if Teague's petition in the trial court Wed fo invoke jurisdiction under
Chapter 214, the court would still have subject matter jutisdiction in this case. Both the
federal and state constitutions guarantee due process of law. U.S. CONST. mend. XTV, 5
1; TEX. CONST. art. I, 8 f 9. The mere fit that a statute has been enacted d m not prevent
a party b m challenging the constitutionality of the statute. While cities have a
responsSity ta make sure that public nuisances andlor dangerow stmctum are hated,
this msponsib'ity does not excuse the povefnmeat from respecting the cdMiOnaf
ptedons afTotded its citizens. See e.g. Camara v. MWL Court, 387 U.S. 523 (1967).
Olrr federal constitution does not allow a city or municipality to demolish a stnrckrre
based upon its mere declaration h t said sEnrctute is a nuisance. Yates v. Mhvmks, 77
U.S. 497,505 (1 870). Surely it is well settled law that Teague's state md fedd due
process rig#& were implicated when the City sought to destroy his home. Teague raised
both f'ederal and state co-d claims in the district court. (CR at 8). Teague's
petition alleged that the City's actions, the underlying ordinance, and the mktying
statute were uncunsthtid and in violation of his due process rights thus invoking the
trial court's jurisdiction. (CR at 8); TEX. GOV'T CODE s24.008. Unforhmtely these
claims have yet to be addressed, and should be remanded back to the trial court for

k in . suits to rnlOlg4
violations of state or federal cm Wonat &hb,
The City takes ihe position that goverpmentd immunity proht'bits the Wet court
from exercising subject matter jurisdiction over Teague's claims. This view mistakenly
overlooks the constitutional nature of second part of Teague's petition. It is hue that a
city is generally immune for its govet~nmtd adom unless its immunity has been
waived by the Legislature. Civ of La Porte v. w eld, 898 S. W.2d 288,29 1 vex.
1995). The City's brief; however, fbils to acknowledged a well-established and long-
recognized exception to dm rule. Texas courts have consistently held h t citizens are
entitled to maintain suits for injunctive relief and declaratory judgment actions, without
the need for the specific waiver by the Legislature of governmental immunity, when
alleging that gove~amental entities have vioktgd their constitutional rights. See Dkector
of Dept. OfAgricultwe & Errvironment v. Printkg Idw. Ass 'n of Texas, 600 S.W.2d 264
(Tex. 1980) (no consent requid to sue for injunction to went violations of state
constitutional rights); Taus HigRwqy Comm 'n v. Texas Ass 'n of See1 Importers, 3 72
S.W.2d 525 (Tex. 1963) (no consent required to sue for declaratory judgment and
injmction to halt agency action); and Coecrdney v. University of T m @s., 806 S.W.2d
277,284 (Tex. &.-Fort Worth 1991, writ hie4 (teacher allowed to sue state without
consent to seek injunctions and rehutatment b ad upon cunstitutid claims).
In the case before the Court, Teague has also sought both dechtoq and
-21 -

injunctive relief to stop the City h violating his dtutional rights. Courts have
consistently held that the specif~c waiver of sovereign immunity is maxssary fbr this
type of suit. To rule othefwise would render such constitptional guarantees meaningless.
To extend a constitutional protection b a citizen, without extending to him the path to
enforce i& would h e the effect of providing no constitutional protection at dl.
under the UDJA,
The Uniform Declaratory Judgment Act allows a person who is affixkd by a
statute or municipal ordinance to have dekmhed any question of construction or validity
arising under the statute or ordhmce. TM. CIV. PRAC. & REM. CODE 8 37.004(a). Thus,
private pdes may seek decktory relief against state officials who allegedly act without
legal or statutory authority. Terns Nat. Resowce Co~tsewutiopa Comm. v. IT-Dacy, 74
S. W.3d 849,855 (Tex 2002). This is because suits to compel state officers to act within
their official capacity do not attempt to subject the state to monetmy liability. Id. These
types of declaratory actions do not implicate the sovereign immunity doctrine. Id. These
same principles apply to declaratory judgment actions brought against municipalities.
Texas Mm. PowerAgenqyv. Pub. U.2. Corn9& 100 S.W.3d 510,515-17
(Tex Am.-Austin 2003, pet dknied). Furthermore, when a party is challenging the
coflstitutiomlity of a statute or dhnce as in the present matter, the party is not re@
to abide by the provisions of the statute or ordinance being challenged. Texas Water
Corn 'n v. Lidey, 850 S.W.2d 183 (TexApp.-Beaumont 1992, writ den.). Themfare,

Tap's challenges to the d tutiodty of the City's odhmce and the statute do not
require h t he comply with either in order to invoke the trial court's subject matter
jurisdiction.
C.
.
m ' s mt~tut~onal claim are not subiBGf to . .
any of the fled
femB -=d& Chslater 2 14 of t h e =
The City wIso argues that the second portion of Teague's pleading regarding his
dtutiunal claims are not permitted because he has failed to exhaust his administrative
remedies. Once again, this assertion W d s the constitutional nature of Teague's
secondary c k .
Specifically, it is not newsmy for Teague to follow any statutary
hmewurk or exhaust any adddstrative remedies in order to seek a determination of the
constitutionality of the ordinance or the underlying statutory hmwak. The City fails to
mention longstmdiug exceptions to the exhawtion docwe.
The principal of the exhaustion of remedies is subject to exceptions such as (I)
where the exhaustion of remedies will cause irreparable injury, (2) where the remedies are
inadequate, and/or (3) when the quasi-judicid body's action is unconstitutional, beyond
its jurisdiction, ar cldy illegal. T- State Bmd of Pharmacy v. Walgreen Texas Co.,
520 S.W.2d 845,848 (Tex. App-Austin 1975, writ refiared n r.e.). In the case before the
Court, the City has acted in a quasi-judicial or administrative capacity. The Thus Sfate
Board case invohed facts which we substantidy similar to thw before the Court in
the present math. In Texas Sate Board, the plaintif% sued the agency under ihe
Uniform Declaratory Judgment Act and quested an injunction on the basis that the

underlying statutes were uncondntid. In Tam Stu& Board, the court comedy
reasoned that,
"[a]dmifiistrative agencies have no power to determine the codtutionality
of statutes. Accordingly, there is no sound reason for forcing a litigant
through the administrative process den in good faith he is advancing a
substantid complaint that the statute that he is charged witfi violating is
unconstitutional. The futility of reqddng the e ~ oof dmmtmt~ . . n 've
remedies in such cases is apparent. It is for this reason that exhaustion may
be excused wherein substantial comtitutiod questiofls are involved."
Id. Teague satisfies not one, but all three of the enumerated exceptions to the exhadon
of medies docbrine set forth hereinabove.
As the City p od out in its brief, the Legislature has moved the availability of
any and all injunctive relief under the statutory scheme of Chapter 214 of the Texas Local
Govermnmt Code. Therefore, no impediment exists which would prohibit the City frcm
executing their demolition order, thus rendering the statutory appeal process moot. TEX.
LOCAL GOV'T CODE §214.0012(e). Teague was compelled fo take actions outside of the
statute to protect the continued existence of his home and the continued existence of the
jurisdiction of the courts.
As stated earlier, Teague is also challenging ae dtutiodity of the underlying
ordinance and the statutory hework It is his position that both are uncdtuticml as
they violate his rights of due process both on their face and as applied. The City is in no
positim and has no authority to decide the cmtitutiodty of its own ordinances or of
state law in general. Clearly, it would be illogical to require Teague to follow the very

statutory framework and/or ordinance which he asserts is unc~titdod. Where a
quasi-judicial body's order is chdlenged in the trial court on the ground that the
underlying statute is tmconstitutiod, that body lacks the authority to decide that issue.
Central Power & Light Co. v. Shp, 960 S.W2d 617,618 vex. 1997). As in the present
case, this Court dealt with questions of jurisdiction in Cen&ul Power. The Court noted
that a proper motion for rehearing was genera@ a jurisdictional prerequisite for judicial
review of an agency's find order. Id. The plaintiff in Cenkal Power had MIed to assert
constitutional clorims in its motion for rehearing. Id. However, the Court, citing Texm
State Boardstated h t, 'Mere the agency is powerless to re- the emor claimed, there
is no sound reason fim forcing a litigant through the administrative ~ess." Id.
The City attempts to rely upon caselaw out of the Ninth Circuit as authority that
Teague's due process cIaims have somehow been waived. mis~Aia v. Pir, 60 F.3d 626
(gm Cir. 1995). This me, however, is easily distinguishable from the present case and is
particularly kt specific. In Mskchiu, the plaintiff was complaining that the agency
failed to follow me of its own rules, thereby denying his due process. Id. at 629. The
agency had previously determined that it did follow its own rules. Id. The plaintiff did
not exhaust his admhkhtive remedies but fled suit in court m h g the exact same
factual allegations. Id. Specifically, plain= claimed that the agency did not hUow its
own rules. Id. The plaintiff in Mhhchla never, as Teagm does here, challenge the
underlying rule itself or the statute authorizing it. Id. The court comedy reasoned that if

the issue is whether a d e was followed or not, it is an issue propfly determined by the
agency. Id. Thus, the plaintiff was required to exhaust his administrative medies. Id.
These cit?cumstmce clearly do not apply to Teague who has challenged the
coastitutionality of the underlying ordinance md statute.
Teolgue is relieved through the exceptions set forth hereinabove h m any
requirement that he follow the statute in order to make constitutid claims. As the
United States Supreme Court has held, the presence of oonstitutiond questions, coupled
with an inadequacy of pmcriid administrative relief and the threat of impending
irrepmble injwy has been held to excuse the exhaustion of medies before a g suit.
Abcrd & Diesel Epp. Corp. v. Hirschg 33 1 U.S. 752,773 (1 947). To require Teague
to follow the very statute which he challenges as tinconstitutional would defy logic and
offend traditional notions of fair play and justice.
Teague has utilized the statute which was clearly designed for parties seeking to
Challenge the comtitutiodty of a statute or ordinance. As set forth hereinabove, the
Uniform Declaratory Judgment Act allows a pmon who is a.£fd by a statute or
municipal odknce to have determined any question of coflslmction or validity arising
under tbe statute or ordinance. TEX. CIV. PRAC. & REM. CODE 5 3 7.004(a).
D. w s has raised subst@bd complaintsi the ci& ordinance a
m&rIyhg statuto~
scheme are lauw mtituti onal.
At its core, this case involves Tque's constitutional rights under the Texas and
United States Constitutions. Teague' s petition in this matter sought two purposes. First,

he sought to appeal the City's demolition order pursuant to the statutory scheme. Second,
Teague challenged the deprivation of his state and federal constitutional rights of due
process. More specficdly, he claimed that boti~ the ordinance and statute were
unconstitutional because they failed to adequately protect his due pmess rights.
A fair trial before an impartial tribunal is a basic requirement of due process.
GoZh Eagle Archery, Inc. v. Jackson, 24 S.W.3d 3 62 (Tex 2000). Although rules
qplicable to courts of law need not be strictly followed, administrative proceedings still
must meet the minimum requirements of due process. Lewis v. Metropoiitm Savings &
h n Assoc., 550 S.W.2d 1 I (Tex 1977). A fair opporhdty for the parties to p m their
. .
respective cases is essential to an dmmtdve he* comporting with due process.
Id. The right to cross-examination is a vital element in the fair djudication of disputed
facts. JB. Advertising, Inc., 883 S. W.2d at 443. The right to cross-examine adverse
witnesses and to exmine and rebut all evidence is not cmhed to court trials, but a h
. .
applies to admmshtive hearings. Richardson v. Civ ofPrn&m, 5 13 S.WJd 1 (Tex.
1974); see also Board of A@wtment ofthe City of Smr Antonio v. Willie, 5 1 1 S. W.2d 59 1
(TaCiv&p.Sau Antonio f 974, writ ref d nr-e.). C ow have held that a party is
entitled to the opportunity to cross-examine witnesses in matters as midl as the removal
of billboa&, much less the demolition of a person's home. J B. Advertising, Inc., $83
S.W.2d at 449.
The violation of Teague's due process rights with regard to his home and property

and his ability to respond to, dispute and defend his property from the underlying
allegations of the City are mind to the second aspect of his pleadings. Specacdly,
Teague has yet to receive my evidentiary h e w in order to present his case or rebut the
allegations of the City. (CR at 4). As of this date, no competent sworn testimony has
been presented upon which a dekdmtiian may be made that Teague's home vioh the
law. Id. Teague has not had the opportunity to conduct discovery. Id. Teague was not
given the opportunity to cross-examine the mworn and only wihess who appeared
before the city council meeting fillowing which the ciq council issued its demolition
order. Id. No rules of evidence have been followed, nor anything resembling a '% trial
before an impartial tribunal" has been conducted. Id.
The effect of these denials of due pees has dmed the City to act as litigant,
judge, jury and executioner in this matter. More specifically, it was the City which
chimed that Tmgue's home violated the law. It was th~ City which '"investigated'" its
crwa claims. It was the City which evaluated the mmvorn purported "evidence" which it
developed. It was the City which determined the validity of its own claims. It was the
City that ultimately dekmhed that Teaguess home viokd the law. It was the City that
denied him the right to any semblance of a fair adjudicative hearing. Finally, it was the
City which ordered his home be d-ed
Teague has challenged the coflstitutidty of these actions and the
constitutionality of the ordinance and statute under which the City acted. Teague claims

that the ordinance ad statute faiI to adquate1y ptect his state and fed& due process
rights. In doing so, he has adequately invoked the trial court's jurisdiction.
III. owner's due -process right5 vs. public concerns,
Though Teague acknowledges that urban blight is a problem for major cities in
Texas, the opinion of the court of appeals does nothing to e m municipalities' ability to
issue demolition orders for substandard structures. Although a ci@ should be dowed to
exercise its porn to regulate health and saf', those powers should not be exercised
without constiMid limits. Ccnvrara, 387 U.S. at 523. In the current ma-, dl the City
need have done was to allow the trial court to review its decision under the lenient
substantial evidence standard. The City chose, however, to attempt to expand the burdens
placed on homeowners challenging their decision. Protracted expengive litigation, in
matters such as this, cmly results when a municipality attempts to ckcmvent the United
States and Tams Constitutions to deny a citizen their day in court. Indeed the City has
umewssdy expended kcid and human resources in an effort to continue to act as
Iitipt, judge, jury and exewtimer. One must not fail to recognize that the costs of such
prdmcted litigation are much more taxing upon the individual citizen who seeks to
defend his constitutional rights, than by the government attempting to deprive them.
PRAYER
For these reasons, Teague prays that the City's Petition fw Reviav be denied, and
in the altmative, if the Petition for Rev& is granted, Teague requests oral argument.

Respectfully submitted,
mLAw OFFICE OF
DAVID E. m y
2200 Hemphill street
Fort Worth, Texas 761 10
(8 1 m555 Telephone
(81
By:
THELAw~CEOF
M?- C. TR~~IDDER
2200 Hemphill Street
Fort Worth, Texas 76110
(817) 810-0100 Telephone
State Bar No. 24037614
ATTORNEYS FOR A]PPELI;AMT

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and kgoing Perry
cowel listed below by certified mail
KURT H. KUHN
State Bar No. 24002433
VIRGINIA R. HOELSCHER
State Bar No. 2404 1 108
BROWN MCCARROLL,
L.L.P.
1 1 1 Congress Avenue, Suite 1400
Austin, Texas 78701
(512) 479-9746 office
(512) 479-1101 facsimile
BONNIE LEE GOLDSTEIN
BONNIE LEE GOLDSTEIN, P.C.
State Bar No. 08097975
P.O. Box 140940
Ddas, Texas 752 14
(214) 321-3668 office
(2 14) 321-8429 himile
DAVID SPLLER
SPIUER & S PIU~
St& Bar No. 18934950
P.O. Drawer 447
Jacksboro, Texas 76458
(940) 567-6644 office
(940) 567-3999 fbcsimile

TAB 1: Tm. WT CODE $311.016.
APPENDIX
TAB 2: ~I~.GOV'TCODE§ 211.011.
TAB 3: City of J & b Ordhm &15-02 8151.24(A) (CR at 62).
TAB 4: m. CIV. PMC. & REM. CODE 6 37.004(a).

: d dtclsion of
1 Sunday, the
Ind LC folkgr
therehre, I n' award filed
, 1
Zg%$
d for cornputhod
con~ed :&en v. sm
wrt to dm-
lppeal oftun-
CODE CONSTRUC~OAI ACT
cb. 311
Q 311.016
bmely. Pt"wk Y. Humble (App. 3 DIst t9961
933 s.W.2d 341. Time * 1019)
Didt court was q u i d to render decision
, nightclub's appeal of denial of application
beer and wint retailer's on-premises license
and after-hours permit in district cwrt by elcventb
day after appeaI was Ued, where tenth day
was kgd holiday. Garza v. Texas Aleohdic
Beverage Com'n (App 8 Dist. 2000) 83 S.W.3d
16 1. Intoxicating Uqwfs 75(8)
g 31 1.015. Reference to a ~eria
If a statute refers to a series of numbers or letters, the first and last numbers
- - - - - - - -
0, letters are included. ,
Acts 1985, 69th Leg., ch. 479, § 1, eff. Sept. I, 1985.
HIstdd and Statutory Notes
prior Laws:
Acts 1967,bOth Leg, p. 1036. ch 4554 1.
Vernon's Ann.Civ.St. m. 5429b-2,s 2.05.
Statutes -205.
Wesdaw Topic No. 36 1 .
CJ.S. Statutes § 306.
and Prectlce ~
Charlton, 6 Tex Pmc. Series 9 1.4, Go-cdon
of the Penal Code,
Chdton, b T ~L Prac. Series Apg. A, Appmdix
A. Current Pend CodE.
Research Referem
Charhn, 6 Ttx. Pm. Series App. B, Appen-
dix B. Former Penal Code.
The $Ilowing constructions apply unless the conk in +hi& the word or
phrase appears necessarily requires a diEerent constnaction or unless a differ-
ent construction is ekpressly provided by statute:
(1) "day" creates discretionary authority or grants pekission or a power.
(2) "ShU' imposes a duty.
(3) "Must" creates or recognizes a condition precedent.
(4) "Is entitled to" creates or recognizes a right.
(5) "May not" imposes a prohibition and is synonymous with "shall not"
(6) "Is not entitled to" negates a right.
(7) "Is not required to" negates a duty or condition precedent.
Addd by Acts 1997,75th Leg., ch. 220, § 1, eff. May 23, 1997.
Statrrks -194.
Westlaw Topic No. 361.
CJ-S. Stamis 1 306,321,329.

I ' LAND USE REGULllrnOT
I
Title 7
.-P-
of~tbfWDfGahbU~1
a at. 17 1W.H 414, rwiew denied.
dPh&g-m
I
? - . .- -. :--- - ---.-I-
a,, ? . ; :?:
.*, L-.
1
i
! LAm, USE BEGUMTION
g 211.Oll
Title 7
~~&d*dtybrrilW'qpealtothebOBlSdbyh~itaa
: inepector d d
taeir raqyt Por a bdding per- requ& for an iutmpmbtlan of the ordfnance.
. m&andtbua,8MttypmdsatoutfndtgW'CXI- Fin&erv,Md~stmentofCItgof~tera
n s a o e ~ ~ ~ d ~ t o rCreek~sgeIApp.1 t o M Di3t2QOl)66S.WM~
j of~b@itonmat~time; home m u w a . Z o n h g h d P ~ . ~
; ~ o w I d m t e x b d ~ t h s ~ d f m
a I 211.011.' Judicial Review of B od Decision
440.1 I
(a1 h y of the fobwing persona may present to a dhW court, county court, or cwntg
i court at hw a vdhd etfon stattng th& the dedsion of the board of adjustment is ilkgal in
i ~WorInpsrtmd~the~oftheWe~:
I
1 (1) apemonqgrhed byade&ionofthe~t_
(2) or
(3) an o*, depwhm4 llod, or bureau of the mulid-.
i M B ~
1
~ ~ ~ ~ O 1 l ~ ~ - ~ ~ ~ ~ ~ o ~ y ~ U u ~ a ~ u I e
1 (el Onthe~CationoithepWon,
thecotrrrtmaygmtamitofcerkkddfreetedtu
] t h a ~ t o m i e w t h e b a d s Thewrit~indic&thetinwbgwhich ~
the
j board's mhrn must be nude and mmed on the *her's attorney, whkh mud be afk 10
dapimdmaybeexbdedbyLemurL Grant5ngofthewrft~not~the
--
i ontbedRMonMdnnpp*~wapp~aMd~mtlcetath*bOvdtheeourtmay
I ~ t a ~ * i f d a e ~ I s & ~
?X Jttr. 8d Zoning XIIl B 'w., Divkiml ~ef- Id) The board'^ return mnst be ver&d and must wmhdy state my pdnent. grnd
ma~4aetsthtdmwtb~dadtbe~~appea~ T h e ~ £ a n o t
I to~tbeoriginaldoeumentsonOn~tbeboard~tmaywkzrnceftifiedorsworn
a o p g e s o f ~ ~ m ~ o f ~ d o c m n ~ ~ ~ b y E h e w r I t .
(el If If athe hearing the cPlrrt detmnbm tRgt khw is nemmry for the proper
~ o f ~ m a t t a r , ~ m a p t a k e ~ c e o r ~ a * t o t a k
dfFeeted ~ ~ ~ r e p o r t ~ e v i d e n c e t o ~ ~ w i t
andcmch&mdIaftr. Therafeme'srepart~apartofthepceed@sonwfiich
HistoriealOonndatlonwaamt~tombb- themwtUm&itsde&iom
kmdtohmtD-Blshains
.
C B T H s ~ m a g ~ m ~ i ~ e m i n ~ o r ~ t h e d ~
appdfd C ~ ~ ~ n o t b e d ~ t h e ~ u n l e
b o a r d a c t e d * ~ ~ i n W ~ o r d ~ i
( g l T B e & m a y n o t ~ a ~ ~ ~ o f r e v i e w ~ a ~ o f a b o a r
u l j m b m t ~ ~ c ~ m ~ d m e m b e r r r o f t h e ~ ~ o f t h e m ~
W211.009(g)Wia+toa*ofeMof@wtWh&eontain
membersafthegovemhglmdyof a-.
hblssl,lOthLeg.,eh.149,~ I,&&pLl,W. AmendadbgAd~lWRWthL8g,Eh.~18,dK
-1,1981; ~18QQ,~fs81eh.698, O l,aAag.80,1999*
llhtmfcal and hWmy Nok
le88wstion
AEtaIsBQ,7BthLeg,eh.gaBb*&,
' ~kedU~~ermntywnrt,oreOrrnky
~ a t l d f b r ~ o f ~ .

h y utw, litnhdtkr: or mta~gagce ~r ecod jointly-or stwemIly aggrieved by
decision o FtRt City Ccwil may pmcnr s pritiofi ru a diwk~ court, duly veri tie&,
slAhg fmh ihrt &e dceisim u ilfcg~l? in uhdc nr iir p;vb and specifying [he
grounds uf t4s ilkglity. Thc pctitbn musr k pi- to the wun wirhib thirty
130) qhnriar days altw dae date rr copy uT ifml dwisim of the Gry Cuuncji is;
miled by firs$ chs mail, r&A& f~mml receipt qwstd, to 311 pmym ~ct tr.kuin
k required ro be xnt. as set forth herein- The kis'in OF the Ciay Council
shall lxmw Amf as ts such oma, !Em%loldf:r or -gee qw%i tile
expimion of mob such 30 catendar &y pcriwd udes orhewise a~lo~t'd h y lm~.
If no appeals sri e n fknm tk d&bioe af ttrc CFty Cmil within Ibe requ id
he b&Jm aF& City Council shd, in dl thim he "n"! and binding The
Cjt)r Cuun~il sM1 not atmain a momidemlion afdre fiml ordwmctt.>l an mstian
of &he city"
Tfie Cily Cc~nrkl~ .au its dixreriun. q y contime wwMe a mrlncr fw twnsidomiicm
X k City C~tsmit fiti&
_.
.( I)
the avrm of ihc prapr~~y, Iimhldcr or m m p p has made rcsswmb l t
iffurn to ob~xn inCurnxiliun and ttri.id~ce fils k bring but - 4 e4.h * 1 1:GS '
xldiriunul time 10 ~ecure ta6d h~fiwnl;st'HJn; and
ae pnzrpny k sewwd From un hwfid enre: 2nd .
m deitiy in the precdjnp will niJl p;6.* a t&c@l danjwr trr* Lilt geFt~mi
health. rnrdty and wc!f'we nT ihe ccttisenb.
.*
Citj- s~fTrau>- rques ii wnrinuancz ctr a t&ing id 2 mafia. and the Ci;>- C.jlusr.; !
nnaj continue :u tabit mauipr. wlrw deem& z4 b~- T&L~~SW t-lnd when deb: il I I ~ C
prot'c:difi& wit 1 not psc 3 t hrc3: w dmw IG t hr - saxmi fredih; sair:?!: md r:
of the citizens.

(a) A person iabmtsd ua&r a dm& will, writha con&* ~r OWP
&k~%Ig a mhr& or whew Ww; UP &w lad &%ions
am a$wd by Q statute, munici9rr;l D ~ ~ c&ract, w oi , fT@m&e q have
rfekmhed my cpes@~c of ewmtiorp ~ n vddi^tJI
? atkin# utedw the imtmme&,
atatuh. ~din@= &ntra& .of hmchh a d obtain a d&at*ation ~f .
rights, ritahts, or ather I@ da&dm thereunder.
Ibl A #mWW may be mwed. el&r &&W or &er there has heen a
kaah.
M u ~ v. n -ma&, 47 Tw. Sull. PI, d, 266. 2003r. Whew the oil wniwinj- hiled to porEiEi-
2004 Ter;. LGW 108 r Wb. 3. !&lMt. 7'r.erpccrs- pate in .the field lvle p d i n e and did uot
tq.t~--title s tntute ma-lacl tlr Ilundowne~ri' lsrii~g a suit br jurlickhl review of Gie TexnS
sibstnntbe righis iir die boundary dispute,nntl Railtboild Ca~ntniariofl's final arder, the oil cornthe
prevniliug pu~v mlild 110t J~~IIL~~XI under ~ ndid y nut nsse1-t jurisdiction to chi11Lnge the
the 'km Decln~'&~~?; Jutlpmenb .Act to IF- talirlity or the dowd field rulw under Tex.
rover atmmcy's fens. Tho TPxi~e Slrpwrnc Cnu1.t Civ. Prnc. & k~n. Code Ann. 5 37.004 OF thp
diwppmw itE statement tn the enntlmy, al- Llniform De~1ikk'ntoi~ Judgments kt.
hit dicta, in B~vainmrl c Stnt~. 12 S.W.:kl R Eutmf Mar9 im. CC~, a, kw Wwkw'
Ilk% 1W9t and contlmj. rltriaitms nT ihr Trxw cortsp, CanUn3t. 80 5.W.M 269,2002 Tex. Prpp.
courts of nppcv~L~.
RWD QiZ & Gay Ca. u. hhi?md Cnmlts'it # ankion cwripi. 1vzw rtl~thdriwd tO $ring n direct
m. 2003 Tex, ilpg. LPXlY li9t.t thug. 14. suit hr d~cbli~to~y reIIef ta Ire l~imburs4d for
Was Annotated Ci\d Ptwtiw 8; Ihn~etli~s C'cxlr
LICKIS 44&4 i June 21.20021. Workers' eeni~u-