FILED
`DALLAS COUNTY
`6/6/2019 3:32 PM
`FELICIA PITRE
`DISTRICT CLERK
`Kellie Juricek
`
`CAUSE NO. DC-19-07054
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`IN THE DISTRICT COURT
`
`14TH JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`
`
`
`CHRIS CARTER, ET AL.,
`
`
`
`Plaintiffs,
`
`
`VS.
`
`
`
`CITY OF DALLAS, ET AL.,
`
`Defendants.
`
`
`DEFENDANTS’ SUPPLEMENT TO THEIR PLEA TO THE JURISDICTION
`
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`
`
`NOW COME Defendants the City of Dallas (“City”) and the City Plan Commission (the
`
`“CPC”) (collectively “Defendants”) and file this supplement to their plea to the jurisdiction.
`
`I.
`
`OVERVIEW
`
`This is the fourth lawsuit attempting to block the City’s removal of City owned symbols of
`
`the Confederacy from City property. The three previous cases were dismissed for various reasons
`
`including the lack of jurisdiction.1 Many of Plaintiffs’ contentions have been directly rejected in
`
`the prior rulings in those related cases. Any “new” claim is without merit. Plaintiffs lack standing
`
`to assert the claims alleged and there is no applicable waiver of governmental (sovereign)
`
`immunity for the asserted claims. Plaintiffs have not and cannot allege a viable or valid cause of
`
`action within any granted statutory standing or waiver of governmental immunity.
`
`II.
`
`FACTUAL BACKGROUND
`
`
`
`The Court may take judicial notice that the Civil War ended over 150 years ago. On June
`
`17, 2015, a white supremacist entered a church in Charleston, South Carolina and shot and killed
`
`
`1 See Return Lee to Lee Park v. Rawlings, No. DC-18-05460 (14th Judicial District Court of Dallas County,
`Texas), Patterson v. Rawlings, 287 F. Supp. 3d 632 (N.D. Tex. 2018); Johnson v. Rawlings, No. 3:19-CV-
`0180-C (N.D. Tex.). Defendants request that the Court take judicial notice of the filings and proceedings
`in these three cases. Copies of the final judgments and orders are attached as Exhibits 26-28.
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 1 of 26
`
`

`

`nine people. The killer had previously wrapped himself in the Confederate battle flag. On July 7,
`
`2016, another individual using racial hatred as justification shot and killed five peace officers in
`
`Dallas, Texas. On August 12, 2017, in Charlottesville, Virginia, there was a demonstration by
`
`torch-wielding, Nazi-flag waving, and Confederate flag bearing individuals who circled around a
`
`statue of Robert E. Lee. Violence erupted that night and the following day, culminating in another
`
`hate filled individual driving a car into a crowd, killing one and injuring others.
`
`
`
`On August 24, 2017, the Mayor of the City of Dallas created the Mayor’s Task Force on
`
`Confederate Monuments. (Ex. 1). The Task Force was to consider whether to remove symbols
`
`of the Confederacy currently on City property and whether to rename streets and other public
`
`places named for Confederate figures. (Ex. 1).
`
`
`
`One of the Confederate symbols is a series of statues known as the Confederate Monument
`
`or Confederate Memorial located in Pioneer Cemetery Historic District, just across the street from
`
`Dallas City Hall.2 The Confederate Monument was originally installed in Old City Park in 1896
`
`and was moved to Pioneer Plaza in 1961. (Ex. 15). Because the Confederate Monument is located
`
`within a City-created historic district, any removal would first require that the City obtain a
`
`certificate of removal from the City’s Landmark Commission. (Dallas City Ordinance No. 24938,
`
`§ 1.4). The governing City ordinance provides that structures in a historic overlay district may
`
`only be removed for certain specified reasons. Dallas, Tex., City Code § 51A-4.501(h). One of
`
`the permitted reasons for removal is “[t]he structure is noncontributing to the historic overlay
`
`district because it is newer than the period of historic significance.” Id. § 4.501(h)(B)(iv).
`
`
`2 The monument consists of four statues in a circle and a center obelisk with another statue on top. The
`four lower statues are of Jefferson Davis, Robert E. Lee, “Stonewall” Jackson, and Albert Sidney Johnston
`and the center statue is a Confederate soldier. (Ex. 15).
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 2 of 26
`
`

`

`
`
`On September 6, 2017, the Dallas City Council passed a resolution concerning Confederate
`
`monuments, symbols, and names. Among other things, the resolution directed the Task Force to
`
`conduct public meetings, receive public input, and recommendations. (Exs. 2-4). The Task Force
`
`held several public meetings and formed recommendations. (Ex. 1). In addition to the Task Force,
`
`various City entities and the City Council held public meetings, received public comments, and
`
`was briefed on the recommendations. (Ex. 5-15). Plaintiffs spoke at several of these meeting.
`
`(Ex. 9, 12, 14)
`
`On February 13, 2019, the City Council held a public meeting and passed a resolution
`
`directing the City Manager to seek “all necessary approvals for the disassembly, removal, and
`
`transfer to storage” of the Confederate Monument. The same resolution authorized and directed
`
`the City manager to procure and enter into a contract for the removal. (Ex. 16-18).
`
`The City applied for the certificate of removal and requested that the Landmark
`
`Commission hear the matter on March 4, 2019. (Ex. 19).
`
`
`
`On March 4, 2019, the Landmark Commission heard the application. (Ex. 19-20). Plaintiff
`
`Pieroni had previously sent an email sharing her views to the Landmark Commission. (Ex. 22).
`
`Both Plaintiffs appeared and spoke at the hearing. (Ex. 23). The Landmark Commission granted
`
`the application. (Ex. 20).
`
`
`
`Pursuant to City Code, both Plaintiffs appealed the Landmark Commission’s decision to
`
`the CPC. (Ex. 21). A hearing was held on May 16, 2019 and the CPC affirmed the decision of the
`
`Landmark Commission. (Ex. 31). Plaintiffs filed this suit the following day.
`
`
`
`
`
`
`
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 3 of 26
`
`

`

`III.
`
`PLEA TO THE JURISDICTION
`
`A. Standards for a Plea to the Jurisdiction.
`
`
`
`The plaintiff has the burden to allege and prove facts affirmatively demonstrating that the
`
`trial court has subject-matter jurisdiction. See Tex. Ass'n of Business v. Tex. Air Control, 852
`
`S.W.2d 440, 446 (Tex. 1993). A plea to the jurisdiction contests a trial court’s subject-matter
`
`jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
`
`
`
`When a plea to the jurisdiction challenges the pleadings, the court determines whether the
`
`pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.
`
`Tex. Ass’n of Bus., 852 S.W.2d at 446. The pleadings are construed liberally in favor of the plaintiff
`
`and look to the pleader’s intent. Id. If the pleadings affirmatively negate the existence of
`
`jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an
`
`opportunity to amend. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
`
`
`
`If a plea to the jurisdiction challenges the existence of jurisdictional facts, the court
`
`considers the relevant evidence submitted by the parties when necessary to resolve the
`
`jurisdictional issues raised. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
`
`If the challenge implicates the merits of the plaintiff’s cause of action and the relevant evidence is
`
`undisputed or fails to raise a fact question regarding subject-matter jurisdiction, the trial court rules
`
`on the plea to the jurisdiction as a matter of law. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
`
`S.W.3d 217, 227-28 (Tex. 2004).
`
`B. The standards for standing.
`
`
`
`Standing is a necessary component of subject-matter jurisdiction. Patterson v. Planned
`
`Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998); Barshop v. Medina
`
`Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 626 (Tex. 1996). Under common
`
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 4 of 26
`
`

`

`law, a plaintiff must demonstrate that he “possesses an interest in a conflict distinct from that of
`
`the general public, such that the defendant’s actions have caused the plaintiff some particular
`
`injury.” Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex. 2001); see also Hunt v. Bass, 664 S.W.2d
`
`323, 324 (Tex. 1984) (standing consists of some interest peculiar to the person as an individual
`
`and not as a member of the general public). Common law standing requires that a plaintiff personally
`
`suffer a concrete and particularized, actual or imminent, and not hypothetical injury. Heckman v.
`
`Williamson County, 369 S.W.3d 137, 155 (Tex. 2012). The claimed injury must be fairly traceable to the
`
`defendant’s alleged conduct and plaintiff’s claimed injury will likely be redressed by the requested relief.
`
`Id.
`
`
`
`The legislature may exempt litigants from the common law injury requirement, making the
`
`statute itself the proper analytical framework to determine standing. Everett v. TK-Taito, L.L.C.,
`
`178 S.W.3d 844, 850 (Tex. App.—Fort Worth 2005, no pet.). For statutory standing to apply, the
`
`plaintiff must allege and show how he has been injured or wronged within the parameters of the
`
`statutory language. Id. at 851. For statutory standing, “the statute itself serves as the proper
`
`framework of a standing analysis” that “begins and ends with the statute itself.” Id.; Marauder
`
`Corp. v. Beall, 301 S.W.3d 817, 820 (Tex. App.—Dallas 2009, no pet.).
`
`C. Standards for governmental immunity.
`
`
`
`Absent waiver by the legislature, sovereign or governmental immunity generally deprives
`
`courts of subject-matter jurisdiction over suits against governmental entities or officers or
`
`employees acting within their official capacity. See City of El Paso v. Heinrich, 284 S.W.3d 366,
`
`369–76 (Tex. 2009); Miranda, 133 S.W.3d at 224. For the waiver to be effective, a plaintiff must
`
`plead and establish a constitutional or legislative waiver with facts that make the waiver applicable.
`
`See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 599 (Tex. 2001); Tex. Ass’n
`
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 5 of 26
`
`

`

`of Bus., 852 S.W.2d at 446. For there to be a waiver of governmental immunity, the plaintiff must
`
`plead a valid claim. See Kaufman Cnty. v. Combs, 393 S.W.3d 336, 345 (Tex. App.―Dallas 2012,
`
`pet. denied).
`
`IV.
`
`PLAINTIFFS LACK STANDING
`
`A. Plaintiffs lack standing to complain about any free speech deprivation.
`
`
`
`Plaintiffs have failed to allege and cannot establish an injury in fact sufficient to establish
`
`individual or common law standing. Plaintiffs do not allege that they own any interest in the
`
`Confederate Monument. To the contrary, it is City-owned property situated on City property.
`
`(E.g. Ex. 15). Plaintiffs’ pleadings allege no connection whatsoever between Plaintiffs and the
`
`Confederate Monument. Except for vague and conclusory allegations, Plaintiffs’ pleading does
`
`not allege any type of harm, damage, or injury.
`
`
`
`Plaintiffs assert they have standing because “this is a facial constitutional challenge to the
`
`City Resolution.” (Pls. First Am. Pet. at 3 [¶ 10]). Elsewhere they assert a First Amendment Claim
`
`based on the September 6, 2017 City Council’s resolution. (Pls. First Am. Pet. at 29-31 [¶¶ 86-
`
`88]). That resolution did not direct the removal of the Confederate Monument. (See Exs. 2-4).
`
`Even assuming that they complain about the resolution and other actions authorizing the removal
`
`of the Confederate Monument, Plaintiffs make no allegation as to how the removal or any other
`
`action has infringed on Plaintiffs’ First Amendment rights. They do not even allege that they have
`
`ever visited the Confederate Monument. Plaintiffs do not allege that they have been prevented or
`
`restricted from exercising their right of free speech.
`
`
`
`To the contrary, Plaintiffs have appeared at and spoken at City Council, Landmark
`
`Commission, and CPC meetings. (Ex. 9, 12, 14, 20, 31). Ms. Pieroni has sent an email to the
`
`Landmark Commission expressing her opposition to the removal. (Ex. 22). Mr. Carter has
`
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 6 of 26
`
`

`

`spoken
`
`to
`
`the
`
`media
`
`about
`
`his
`
`efforts.3
`
`
`
` See
`
`
`
`https://www.dallasnews.com/opinion/commentary/2019/05/20/dallas-vows-not-remove-
`
`confederate-war-memorial-14-days-case-reaches-courtroom. The City’s actions regarding the
`
`Confederate Monument have not restricted or limited Plaintiffs’ free speech rights in any way.
`
`Plaintiffs have not alleged any concrete and particularized or actual or imminent injury that has
`
`occurred or will occur to them because of City actions concerning Confederate symbols. As the
`
`court in Williams v. Parker, 843 F.3d 617, 622, 623 (5th Cir. 2016) found, “bare assertions” or
`
`“unadorned contentions” of violations of First Amendments rights are insufficient to confer
`
`standing.
`
`In Patterson, a different set of plaintiffs also complained that the City’s removal of
`
`Confederate symbols impacted their First Amendment rights. Judge Fitzwater, presiding,
`
`concluded they lacked standing. The holding applies with equal force to Plaintiffs’ claim:
`
`In this case, however, plaintiffs have not alleged that Patterson has been deprived
`of any First Amendment freedom for any period of time. Plaintiffs contend that
`Patterson holds the political viewpoint that “the men who fought for the
`Confederacy in the Civil War deserve our respect.” Id. at 9. But they do not allege
`that the City has ever taken any action that would prevent Patterson from expressing
`this political view. They have at most alleged that Patterson shares the political
`viewpoint communicated to the general public by the Confederate monuments.
`This allegation, however, does not explain how the removal of Confederate
`monuments from City-owned property prevents Patterson from expressing his
`political viewpoint. See, e.g., Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1049
`(2d Cir. 1988) (noting that “the Government’s action in this case [(removing a
`sculpture from a federal plaza)] is limited to an exercise of discretion with respect
`to the display of its own property” and that “nothing GSA has done here encroaches
`in any way on Serra’s or any other individual’s right to communicate.”). Plaintiffs
`have failed to cite any case in which a plaintiff’s agreement with the message
`conveyed by someone else’s speech—here, the City’s—transforms that speech into
`the plaintiff’s speech for First Amendment standing purposes. Accordingly, the
`court concludes that plaintiffs have failed to plausibly allege that the City’s removal
`
`
`3 After filing this lawsuit, Mr. Carter also appeared unannounced at a City councilmember’s home in an attempt to
`speak about the issue.
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 7 of 26
`
`

`

`of the Lee Statue and forthcoming removal of other Confederate monuments
`infringes Patterson’s First Amendment free speech rights.
`
`Patterson, 287 F. Supp. 3d at 641-42. Also see McMahon v. Fenves, 323 F.Supp.3d 874, 879-881
`
`(W.D. Tex. 2018) (holding removal of an inanimate object conveying shared ideological interest
`
`insufficient for standing); Brewer v. Nirenberg, No. SA:17-CV-837-DAE (W.D. Tex. Sept. 17,
`
`2018) (attached as Ex. 25 at 8-10) (plaintiffs suffered no injury in fact from removal of Confederate
`
`symbols). Like the plaintiffs in those cases, Plaintiffs have not suffered any injury or harm and,
`
`therefore, lack standing.
`
`Additionally, Plaintiffs do not plead how their alleged injuries are different or distinct from
`
`the general public. In another lawsuit involving the removal of Confederate monuments from
`
`government property, the Sixth Court of Appeals of Texas held that the plaintiffs in that suit did
`
`not plead or prove a particularized injury distinct from the general public sufficient to confer
`
`standing under Texas law. See Bray v. Fenves, No. 06-15-00075-CV, 2016 WL 3083539, *5-8
`
`(Tex. App.—Texarkana Mar. 24, 2016, pet. denied); see also Moore v. Bryant, 853 F.3d 245, 249-
`
`51 (5th Cir. 2017) (holding plaintiff lacked standing to complain about the presence of the
`
`Confederate battle flag as part of the state flag of Mississippi); Callan v. Fischer, No.3:16-CV-
`
`734-TBR, 2017 WL 4273106, *4 (W.D. Ky. Sept. 26, 2017) (holding plaintiff’s complaint about
`
`removal of a Confederate monument was no more than a generalized grievance and failed to confer
`
`standing); Gardner v. Mutz, 360 F. Supp. 3d 1269, 1276 (M.D. Fla. 2019) (same). Plaintiffs have
`
`not alleged and cannot establish any injury distinct from the general public and, therefore, lack
`
`standing to complain about the removal of any Confederate symbol.
`
`Finally, no First Amendment rights of anyone are implicated. The Supreme Court has held
`
`that “the placement of a permanent monument in a public park is best viewed as a form of
`
`government speech and is therefore not subject to scrutiny under the Free Speech Clause.”
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 8 of 26
`
`

`

`Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009). The Court reasoned that “[w]hen a
`
`government entity arranges for the construction of a monument, it does so because it wishes to
`
`convey some thought or instill some feeling in those who see the structure.” Id. at 470. Indeed,
`
`“[g]overnments have long used monuments to speak to the public.” Id. Further, a government
`
`entity “is entitled to say what it wishes” and “select the views that it wants to express.” Id. at 467-
`
`468. “Therefore, the removal of the [M]onument [] is a form of government speech and is exempt
`
`from First Amendment scrutiny.” Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573,
`
`994 (E.D. La. 2016), aff’d, 678 F. App’x 250 (5th Cir. 2017).
`
`Whether a city installs or removes a monument, it is exercising its government speech. The
`
`Defendants’ actions are not limiting the First Amendment rights of Plaintiffs or anyone else. See
`
`Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239 (2015) (symbols on
`
`license plates were government speech and state was entitled to refuse and could not be forced to
`
`include Confederate battle flag on its license plates); Gardner, 360 F. Supp. 3d at 1276 (planned
`
`removal of Confederate monument was government speech and First Amendment claim was
`
`dismissed because plaintiff lacked a legally protected interest in that speech); United Veterans
`
`Memorial and Patriots Ass’n of City of New Rochelle v. City of New Rochelle, 72 F. Supp. 3d 468
`
`(S.D. N.Y. 2014) (city decision to remove Gadsden flag from city flagpole was government speech
`
`and did not implicate the First Amendment); Dawson v. City of Grand Haven, No. 329154, 2016
`
`WL 7611556 (Mich. Ct. App. Dec. 29, 2016) (per curiam) (city decision to prohibit previously
`
`allowed display of cross on city monument was government speech and removal did not implicate
`
`the First Amendment).
`
`Under both a facial and factual challenge, Plaintiffs lack standing based on any claimed
`
`right of free speech.
`
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 9 of 26
`
`

`

`B. Plaintiffs lack standing to complain about any purported violation of the Texas
`Antiquities Code.
`
`Plaintiffs assert the removal of the Confederate Monument will violate the Texas
`
`Antiquities Code. Initially, Plaintiffs do not allege and cannot establish a particular injury, an
`
`injury distinct from that of the general public, or a concrete and particularized, actual or imminent, and
`
`not hypothetical injury. Williams, 52 S.W.3d at 178-79; Heckman, 369 S.W.3d at 155. They cannot
`
`establish constitutional or common law standing for a purported violation of the Texas Antiquities Code.
`
`The Texas Antiquities Code provides that a Texas citizen may seek injunctive relief to
`
`enjoin threatened violations of the Antiquities Code. Tex. Nat. Res. Code, § 191.173(a). However,
`
`Plaintiffs have not alleged and cannot establish any violation within the parameters of the statutory
`
`grant of standing in Section 191.173(a) of the Texas Natural Resources Code. As Plaintiffs’
`
`pleadings acknowledge, the Court has already heard and rejected an identical claim brought in
`
`another case by the same counsel. (See Pl.’s Pet. at 18 (note 5)). In Return Lee to Lee Park, the
`
`plaintiffs also alleged that any removal of the Confederate Monument without a permit from the
`
`Texas Historical Commission would violate the Antiquities Code. The Court concluded Plaintiffs
`
`lacked standing as well as granting summary judgment against the claim. The assertion is equally
`
`without merit in this case.
`
`Plaintiffs repeat that the Confederate Monument is protected as a State Archeological
`
`Landmark. (Pl.’s Org. Pet. at 18-19, 32, 39). However, to qualify as a State Archeological
`
`Landmark, two steps are required. First, the site, object, or building must be listed on the National
`
`Register of Historic Places. Id. § 191.092(g); see also Tex. Atty Gen. Op. JM-958 (Sept. 28, 1988)
`
`(“Before the committee may designate a structure or building as a state historical landmark, it must
`
`be listed on the National Register of Historic Places.”). Second, the Texas Historical Commission
`
`(formerly named the Texas Antiquities Committee) must designate the site, object, or building as
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 10 of 26
`
`

`

`a State Archeological Landmark. Tex. Antiquities Comm. v. Dallas Comm’n Coll. Dist., 554 S.W.
`
`2d 924, 926 (Tex. 1977) (no permit needed for buildings not designated as a State Archeological
`
`Landmark); Bd. of Regents v. Walker Cnty. Historical Comm’n, 608 S.W.2d 252, 253 (Tex. Civ.
`
`App.—Houston [14th Dist.] 1980, no writ).4
`
`
`
`Plaintiffs do not allege and cannot establish that the Confederate Monument is listed on the
`
`National Register of Historic Places and has been designated as a State Archeological Landmark
`
`by the Texas Historical Commission. (See Ex. 29). There can be no plausible or valid claim of a
`
`violation of the Texas Natural Resources Code. As a matter of law, no possible claim is possible
`
`within the parameters of the statutory standing. Therefore, Plaintiffs lack standing. Also see
`
`Bacon, 411 S.W.3d at 178-182 (concluding plaintiff lacked standing to complain about the
`
`historical accuracy of a historical marker).5 Plaintiffs have not alleged and cannot establish a
`
`violation within the parameters of the statutory grant of standing in Section 191.173(a) of the Texas
`
`Natural Resources Code.
`
`C. Plaintiffs lack standing to assert a claim under Tex. Gov’t Code § 2166.5011.
`
`
`
`Plaintiffs assert that removal of the Confederate Monument will violate Section 2166.5011
`
`of the Texas Government Code. (Pl.’s Pet. at 20). As with their other claims, Plaintiffs do not
`
`allege and cannot establish a particular injury, an injury distinct from that of the general public, or
`
`
`4 See also Tex. Atty Gen. Op. MW-378 at 3 (Oct. 22, 1981) (“the Antiquities Committee has no jurisdiction
`over buildings which it has not designated as state archeological landmarks”); Tex. Atty Gen. Op. JM-104,
`at 1 (Dec. 29, 1983) (stating the Commission’s jurisdiction is limited to “properties designated as state
`archaeological landmarks”).
`
` 5
`
` In their pleadings, Plaintiffs reference Texas Attorney General Opinion H-620. (Pl.’s Pet, at 4, 19). Just
`like the plaintiffs in Return Lee to Lee Park, Plaintiffs fail to note that H-620 was overruled by the supreme
`court in Texas Antiquities Commission v. Dallas Community College District, 554 S.W. 2d at 927-31. The
`Texas Attorney General regards H-620 as overruled. (Ex. 14).
`
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 11 of 26
`
`

`

`a concrete and particularized, actual or imminent, and not hypothetical injury. Williams, 52 S.W.3d at
`
`178-79; Heckman, 369 S.W.3d at 155. They cannot establish constitutional or common law standing.
`
`
`
`Additionally, nothing in the statute grants statutory standing to others to seek enforcement
`
`of the statute. However, even if such a grant existed, Plaintiffs would lack standing because the
`
`grant would not apply to matters outside the reach of the statute. The statute defines a protected
`
`monument or memorial as an object “located on state property.” Tex. Gov’t Code § 2166.5011(a,
`
`b). The Confederate Monument is located on City property, not State property. Any contention
`
`that Section 2166.5011 applies to the Confederate Monument is frivolous.
`
`D. Plaintiffs lack standing to complain about a claimed violation of the Texas Open
`Meetings Act.
`
`Plaintiffs assert vague and conclusory claims that the City and the Landmark Commission
`
`
`
`
`violated the Texas Open Meetings Act (“TOMA”). (See Pls. Pet. at 1, 12, 21, 31-32). While
`
`TOMA does provide a limited grant of statutory standing, Plaintiffs do not allege a violation of
`
`TOMA but rather assert purported violations of the City’s and the Landmark Commission’s rules
`
`of procedure. Plaintiffs have not alleged and cannot establish that they were wronged or injured
`
`within the parameters of TOMA’s statutory grant of standing.
`
`
`
`“An interested person” may seek by mandamus or injunctive relief “to stop, prevent, or
`
`reverse a violation or threatened violation of this chapter by members of a governmental body.”
`
`Tex. Gov’t Code § 551.142. TOMA provides that “a governmental body shall give written notice
`
`of the date, hour, place, and subject of each meeting held by the government body.” Tex. Gov’t
`
`Code § 551.041. Generally, a notice is to be posted at least seventy-two hours before the scheduled
`
`time of the meeting. Tex. Gov’t Code § 551.043. If the facts of the content of a notice are
`
`undisputed, the adequacy of the notice is a question of law. Friends of Canyon Lake, Inc. v.
`
`Guadalupe–Blanco River Auth., 96 S.W.3d 519, 529 (Tex. App.—Austin 2002, pet. denied). A
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 12 of 26
`
`

`

`notice is adequate as long as it is sufficiently descriptive to alert a reader that a particular subject
`
`will be addressed. Id. at 531.
`
`
`
`Plaintiffs do not complain that the notices given for the hearings before the Landmark
`
`Commission, the CPC, or the City Council were not adequate or timely or otherwise failed to
`
`comply with TOMA’s requirements. The evidence establishes compliance. (Exs. 15, 19, 21).
`
`Instead of complaining about a TOMA violation, Plaintiffs complain that the City’s application
`
`for the certificate of removal was incomplete and that the hearing before the Landmark
`
`Commission was scheduled contrary to the instructions given to the public on the City’s website.
`
`(Pls. Pet. at 8-11, 31). Plaintiffs do not complain about a violation of TOMA and no statutory
`
`standing is granted to complain about the Landmark Commission’s claimed failure to follow its
`
`rules.
`
`
`
`Additionally, the Dallas court of appeals has concluded that a person who attended an open
`
`meeting and had the opportunity to participate in a meeting that was improperly noticed lacks
`
`standing to complain about a TOMA violation. Dallas Indep. Sch. Dist. v. Peters, No. 05–14–
`
`00759–CV, 2015 WL 8732420, *9-10 (Tex. App.—Dallas Dec. 14, 2016, no pet.). Both Plaintiffs
`
`attended and spoke at the Landmark Commission hearing and the CPC hearing.6 (Exs. 20, 31).
`
`Under Peters, the Open Meetings Act does not confer standing on either Plaintiff.
`
`
`
`In the section concerning TOMA, Plaintiffs make conclusory references to ultra vires
`
`claims. (Pl.’s Pet. at 32). It is unclear if Plaintiffs are attempting to assert an ultra vires claim but
`
`if they are, it is without merit. Ultra vires claims cannot be asserted against the City or the CPC.
`
`Heinrich, 284 S.W.3d at 372-73, 380. Standing is still required to assert an ultra vires claim. See
`
`Tex. Dep't of Pub. Safety v. Salazar, 304 S.W.3d 896, 905-906 (Tex. App.—Austin 2009, no pet.)
`
`
`6 A representative for plaintiff Pieroni spoke on her behalf at the CPC hearing.
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 13 of 26
`
`

`

`(declining to reach the validity of an ultra vires claim because plaintiffs lacked standing). Plaintiffs
`
`have not alleged any basis by which they have standing to assert ultra vires claims.
`
`E. Plaintiffs lack standing to appeal the CPC’s decision.
`
`
`
`Plaintiffs seek to appeal the CPC’s decision affirming the Landmark’s Commission’s
`
`decision to grant an application for removal. (Pl.’s Pet. at 17, 25-29). However, Plaintiffs do not
`
`allege and cannot establish a particular injury, an injury distinct from that of the general public, or
`
`a concrete and particularized, actual or imminent, and not hypothetical injury. Williams, 52 S.W.3d at
`
`178-79; Heckman, 369 S.W.3d at 155. They cannot establish constitutional or common law standing to
`
`complain about the CPC’s decision.
`
`
`
`Plaintiffs attempt to rely on a City Code provision that states an appeal of a CPC decision is to the
`
`state district court under a substantial evidence rule review. Dallas, Tex. City Code 51A-4.501(p). (Pl.’s
`
`Pet. at 17, 25). The City of Dallas does not have the authority to grant or deny standing. That authority
`
`rests with the courts and the Texas legislature. There is no statutory grant of standing. Plaintiffs lack
`
`standing to seek review of a decision that has not caused them an injury in fact.
`
`F. Plaintiffs lack standing to assert an anti-SLAPP claim.
`
`
`
`Plaintiffs assert that the City and the Landmark Commission somehow violated the Texas
`
`Citizen Participation Act (“TCPA”) found in Chapter 27 of the Texas Civil Practice and Remedies
`
`Code. (Pl.’s Pet. at 22-25, 33-34). Not only do Plaintiffs misstate and misapply the TCPA, they
`
`have failed to allege any standing by which they could assert a TCPA motion. Their contention is
`
`frivolous.
`
`The TCPA provides that “[i]f a legal action is based on, relates to, or is in response to a
`
`party's exercise of the right of free speech, right to petition, or right of association, that party may
`
`file a motion to dismiss the legal action.” Tex. Civ. Prac. & Rem. Code § 27.003(a). A legal action
`
`is defined as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any
`Defendants’ Supplement to Plea to the Jurisdiction
`
`
`
`Page 14 of 26
`
`

`

`other judicial pleading or filing that requests legal or equitable relief.” Id. at § 27.001(6). While
`
`Plaintiffs reference “anti-SLAPP”, they ignore that the acronym stands for anti-Strategic Lawsuits
`
`Against Public Participation. There is no lawsuit except the one filed by Plaintiffs; therefore, it is
`
`unclear what “legal action” Plaintiffs seek to dismiss. Defendants have not filed “a lawsuit, cause
`
`of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing.”
`
`Neither the Landmark Commission hearing nor the CPC hearing constitute “legal actions” within
`
`the meaning of the TCPA. In addition, the City’s and the CPC’s conduct do not constitute “legal
`
`actions.” Further, Plaintiffs do not allege that any conduct by the City or the Landmark
`
`Commission was in response to Plaintiffs’ exercise of their right to free speech, to associate, or to
`
`petition. The City’s and Landmark Commission’s conduct was to seek and grant a certificate of
`
`removal of City-owned property from a City park through a City-created process before a City-
`
`created board. Plaintiffs were not “a party” to any of those matters and the City’s and Landmark
`
`Commission’s conduct had nothing to do with Plaintiffs. To the extent that the TCPA creates
`
`statutory standing to file a motion to dismiss, Plaintiffs do not fit within the statute’s grant of
`
`standing.
`
`G. Plaintiffs cannot establish taxpayer standing.
`
`
`
`Plaintiff Pieroni makes the conclusory alleges that she is a property taxpaying resident of
`
`the City of Dallas and has standing as a taxpayer because of the events described in the original
`
`petition will result in the expenditure of taxpayer dollars without proper aut