FILED

19-0689
1/4/2021 1:48 PM
tex-49369706
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK

No. 19-0689

In the Supreme Court of Texas

KATHLEEN POWELL & PAUL LUCCIA,

Petitioners,

v.

CITY OF HOUSTON, TEXAS,

Respondent.

AMICUS CURIAE BRIEF OF INSTITUTE FOR JUSTICE

IN SUPPORT OF PETITIONER

On Petition for Review from the

First Court of Appeals at Houston, Texas
Cause No. 01-18-00237-CV

Arif Panju (TX Bar No. 24070380)

INSTITUTE FOR JUSTICE
816 Congress Ave, Suite 960
Austin, TX 78701
Tel.: (512) 480-5936
Fax: (512) 480-5937
apanju@ij.org

Attorney for Amicus Curiae

Institute for Justice
 IDENTITY OF PARTIES, AMICUS, AND COUNSEL

The parties and their counsel are correctly identified in the

parties’ briefs. Amicus Curiae, the Institute for Justice, is represented

by the following counsel:

Arif Panju (TX Bar No. 24070380)

816 Congress Avenue, Suite 960
Austin, Texas 78701
Tel: (512) 480-5936
Fax: (512) 480-5936
Email: apanju@ij.org
 TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................... ii

IDENTITY AND INTEREST OF AMICUS CURIAE .............................. 1

STATEMENT OF FACTS .......................................................................... 2

SUMMARY OF ARGUMENT ................................................................... 2

ARGUMENT ............................................................................................... 4

I. Texas Has a Long History of Protecting Property Rights .......... 5

II. Houston is Incorrect that Spann v. Dallas is Obsolete and

Should be Discarded ................................................................... 13

PRAYER .................................................................................................... 20

CERTIFICATE OF COMPLIANCE ........................................................ 21

CERTIFICATE OF SERVICE.................................................................. 21

i
 INDEX OF AUTHORITIES

Page(s)

Crossman v. Galveston,
247 S.W. 810 (Tex. 1923)........................................................... 15, 16

Eggemeyer v. Eggemeyer,
554 S.W.2d 137 (Tex. 1977)........................................................... 7, 8

Ft. Worth Improvement Dist. No. 1 v. City of Ft. Worth,

158 S.W. 164 (Tex. 1913)................................................................. 12

Harris Cnty. Flood Control Dist. v. Kerr,

499 S.W.3d 793 (Tex. 2016)........................................................... 7, 8

Honors Acad., Inc. v. Tex. Educ. Agency,

555 S.W.3d 54 (Tex. 2018)................................................................. 7

Kelo v. City of New London,

545 U.S. 469 (2005) ................................................................. 1, 3, 10

KMS Retail Rowlett, LP v. City of Rowlett,

593 S.W.3d 175 (Tex. 2019)............................................................... 2

Lombardo v. Dallas,
73 S.W.2d 475 (Tex. 1934)......................................................... 10, 16

Mbogo v. Dallas,
No. 05-17-00879-CV, 2018 WL 3198398
(Tex. App.—Dallas June 29, 2018, pet. denied) ............................... 1

Morello v. Seaway Crude Pipeline Co., LLC,

585 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2018, pet. denied)... 2

Nat’l Solid Wastes Mgmt. Ass’n v. City of Dallas,

903 F. Supp. 2d 446 (N.D. Tex. 2012) ....................................... 19, 20

ii
Patel v. Tex. Dep’t of Licensing & Regul.,
469 S.W.3d 69 (Tex. 2015)............................................................. 6, 7

Penn Cent. Trans. Co. v. New York City,

438 U.S. 104 (1978) ..................................................................... 9, 10

Pool v. River Bend Ranch, LLC,

346 S.W.3d 853 (Tex. App.—Tyler 2011, pet. denied) ................... 19

Robinson v. Crown Cork & Seal Co.,

335 S.W.3d 126 (Tex. 2010)........................................... 17, 18, 19, 20

San Antonio v. Rubin,

42 F.2d 107 (5th Cir. 1930) ............................................................. 17

San Antonio v. Zogheib,

101 S.W.2d 539 (Tex. 1937)............................................................. 17

Severance v. Patterson,
370 S.W.3d 705 (Tex. 2012)......................................................... 5, 14

Spann v. Dallas,
235 S.W. 513 (Tex. 1921)......................................................... passim

Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., LLC,

363 S.W.3d 192 (Tex. 2012)............................................................. 11

Village of Euclid, Ohio v. Ambler Realty Co.,

272 U.S. 365 (1926) ....................................................... 13, 14, 16, 17

Zaatari v. Austin,
No. 03-17-00812-CV,
2019 WL 6336186
(Tex. App.—Austin Nov. 27, 2019, pet. denied) ....................... 18, 19

iii
Constitutional Provisions

Tex. Const. art. I, § 17 ...................................................................... 6, 7, 10

Tex. Const. art. I, § 17 (b) ................................................................... 10, 11

Tex. Const. art. I, § 19 ............................................................................ 6, 7

Codes, and Legislation

Private Real Property Rights Preservation Act

Tex. Gov’t Code §§ 2007.01 et seq. .............................................. 9, 10

Rules

Tex. R. App. P. 9.4(i)(1) ............................................................................ 21

Tex. R. App. P. 11 ....................................................................................... 2

Tex. R. App. P. 11(c) ................................................................................... 1

Other Authorities

David B. Brooks,
23 Tex. Prac. Municipal Law and Practice § 21.01 (2d ed. 2020) . 11

Mark W. Cordes,
The Fairness Dimension in Takings Jurisprudence,
20 Kan. J. L. & Pub. Pol’y 1 (2010) ................................................... 9

Steven J. Eagle,
Substantive Due Process and Regulatory Takings: A Reappraisal,
51 Ala. L. Rev. 977 (2000) ................................................................. 5

iv
George E. Grimes, Jr.,
Texas Private Real Property Rights Preservation Act: A Political
Solution to the Regulatory Takings Problem,
27 St. Mary’s L. J. 557 (1996) ........................................................... 9

Nicholas Laurent,
Condemnation of Private Property for Water Projects from the
Landowner’s Perspective,
Changing Face of Water Rights,
(State Bar of Texas 2017) .................................................................. 6

Roy W. McDonald,
Zoning Texas Cities—Constitutionality of Comprehensive City
Plan Ordinances,
5 Tex. L. Rev. 307 (1927) ................................................................. 15

Susan Abigail Schatzel,

Public Historic Preservation in Texas,
49 Tex. L. Rev. 267 (1971) ......................................................... 11, 12

Texas Eminent Domain, Proposition 11 (2009),

Ballotpedia
https://ballotpedia.org/Texas_Eminent_Domain,_Proposition_
11_ (2009) (last visited Dec. 24, 2020) ............................................ 10

v
 IDENTITY AND INTEREST OF AMICUS CURIAE1

Founded in 1991, the Institute for Justice (IJ) is a nonprofit,

public-interest legal center dedicated to defending the essential

foundations of a free society: private property rights, economic and

educational liberty, and the free exchange of ideas. As part of that

mission, IJ has litigated cases challenging the use of eminent domain to

seize an individual’s private property and give it to other private

parties. Among the cases that IJ has litigated are Kelo v. City of New

London, 545 U.S. 469 (2005), in which the Supreme Court infamously

held that the U.S. Constitution allows government to take private

property and give it to others for purposes of “economic development.”

IJ continues to litigate important statutory and constitutional

questions in property-rights cases around the country and here in

Texas, both as amicus and as counsel for property owners. Recently, IJ

litigated the case of Mbogo v. Dallas, No. 05-17-00879-CV, 2018 WL

3198398 (Tex. App.—Dallas June 29, 2018, pet. denied), a case

involving Dallas’ use of amortization to force a longtime business owner

1Pursuant to Rule 11(c) of the Texas Rules of Appellate Procedure, amicus confirms
that no person or entity other than amicus made a monetary contribution to the
preparation or filing of this brief.

1
from his property in downtown Dallas. IJ has also filed briefs as amicus

curiae in several Texas property-rights cases. See KMS Retail Rowlett,

LP v. City of Rowlett, 593 S.W.3d 175 (Tex. 2019); Morello v. Seaway

Crude Pipeline Co., LLC, 585 S.W.3d 1 (Tex. App.—Houston [1st Dist.]

2018, pet. denied). This case implicates the property rights guarantees

enshrined in the Texas Constitution.

TO THE HONORABLE SUPREME COURT OF TEXAS:

The Institute for Justice respectfully submits this amicus curiae

brief in support of Petitioners Kathleen Powell and Paul Luccia,

pursuant to Texas Rule of Appellate Procedure 11.

STATEMENT OF FACTS

The Institute for Justice is in agreement with the statements of

facts as provided by Petitioners in both Petitioners’ Brief on the Merits

and Petitioners’ Reply.

SUMMARY OF ARGUMENT

This state takes property rights seriously. The Texas Constitution

and Texas statutes reflect as much. And time and again, this state’s

judiciary and voters have taken steps to insulate Texas from federal

decisions and policies that are in tension with this state’s long-held

2
respect for private property ownership. Upon attaining statehood, Texas

designed its state constitution to expressly provide greater protections

for property rights than the federal constitution. And when Texans

sense that lax federal property-rights policies are creeping into its state,

they react. In the last twenty years alone, Texas has enacted sweeping

property rights reform at the legislative level in response to its concern

about regulatory takings and it has amended its state constitution to

cabin the U.S. Supreme Court’s expansive reading of the “public use”

requirement of the federal takings clause in Kelo.

Texas’ respect for property rights reflects its understanding that

property rights are natural rights. As such, property rights are not

automatically subordinate to the will of city councilmembers seeking to

exercise the police power to regulate property use. That is because, as

the courts in Texas have repeatedly recognized, the right to use

property is inseparable from the right to own it, and thus the

government’s ability to regulate use is inherently limited. The courts,

when applying the Texas Constitution in the context of property rights,

have cemented this conceptual understanding into Texas law. In fact,

the case law recognizes that this theory of property rights—that

3
property owners are free to use property so long as their use is not

harmful—predates modern constitutional law altogether.

Respondent, the City of Houston (“Houston”), wants this Court to

ignore all of this. Specifically, Houston argues that a line of decisions by

the U.S. Supreme Court applying the federal constitution have fatally

undermined an unbroken line of property-rights doctrine developed

under the Texas constitution. Because Houston’s argument is incorrect,

and because Texas has historically provided substantial safeguards for

property rights that exceed that of the federal courts, the decision of the

Court of Appeals below should be reversed and judgment entered in

favor of Petitioners.

ARGUMENT

The Texas courts and the Texas Legislature have repeatedly

acknowledged the importance of property rights protections for all

Texans. Section One below provides a brief discussion of Texas’

historical protection of private property rights, from its time as an

independent nation through the present day. And Section Two below

will address a specific line of cases—starting with Spann v. Dallas—

that has shaped much of this state’s doctrinal approach to property

4
rights over the last century (and from which Houston asks this court to

depart in this case).

I. TEXAS HAS A LONG HISTORY OF PROTECTING PROPERTY

RIGHTS.

This Court has long acknowledged that private property rights are

“ages-old . . . rights that are protected by law.” Severance v. Patterson,

370 S.W.3d 705, 709 (Tex. 2012). Indeed, these “ages-old” rights have

been conceptually embedded in Anglo-American and Texas law for

centuries. As this Court in Patterson explained, “[p]rivate property

ownership pre-existed the Republic of Texas and the constitutions of

both the United States and Texas.” Id.

That is because the modern conception of property rights—in

America and Texas—finds its origin “in the entitlement to property and

liberty that the colonists regarded as historic ‘rights of Englishmen.’”

Steven J. Eagle, Substantive Due Process and Regulatory Takings: A

Reappraisal, 51 Ala. L. Rev. 977, 990 (2000). The Framers, influenced

by John Locke, understood that there was no “clear distinction between

property and liberty,” and thus, “[b]y the late eighteenth century,

‘Lockean’ ideas of government and revolution were accepted everywhere

in America,” id. at 990-91, including, of course, Texas.

5
 Accordingly, “[i]n 1791, some fifty-four years before Texas became

a state, the United States Constitution was amended to include the

Fifth Amendment,” to expressly preclude the government from taking

property, unless it is for a public use and upon payment of just

compensation. Nicholas Laurent, Condemnation of Private Property for

Water Projects from the Landowner’s Perspective, 11.I Changing Face of

Water Rights (State Bar of Texas 2017). But in 1876, Texas articulated

more expansive protections for property rights when it “adopted its own

Constitution and its own protection of property rights: ‘No person’s

property shall be taken, damaged, or destroyed for or applied to public

use without adequate compensation being made[.]’” Id. (quoting Tex.

Const. art. I, § 17) (emphasis added). This added language—which

expands protection to instances in which property is “damaged or

destroyed”—is significant. And it is one of several clear examples that

the Texas Constitution was meant to provide enhanced protection for

property rights from its very inception.2 Whereas the federal Takings

2 That the Texas Constitution provides greater protection for individual rights than
its federal counterpart is true not only of the Takings Clause in Article I, Section 17,
but also the Due Course of Law Clause in Article I, Section 19. See Patel v. Tex.
Dep’t of Licensing & Regul., 469 S.W.3d 69, 87 (Tex. 2015) (“Section 19’s substantive
due course provisions undoubtedly were intended to bear at least some burden for
6
Clause refers only to the “taking” of property, the Texas clause goes

further, expressly precluding not only takings, but “damaging” or

“destroying” as well. This was intended to be—and still is—a

meaningful distinction that establishes the Texas Constitution as

providing greater protections for property rights than the federal

constitution. See, e.g., Harris Cnty. Flood Control Dist. v. Kerr, 499

S.W.3d 793, 813 (Tex. 2016) (Lehrmann, J., concurring) (“These

[takings] provisions are aimed squarely at the federal courts’ deferential

approach to the public-use requirement. . . . [T]he Texas Legislature has

opted to give greater protection to individual property rights[.]”).

And the Texas Constitution’s Takings Clause is not the only

constitutional protection of property rights. The Due Course of Law

clause has also been understood to protect property rights. See, e.g.,

Honors Acad., Inc. v. Tex. Educ. Agency, 555 S.W.3d 54 (Tex. 2018).

Such vast protections reflect the Texas courts’ historical understanding

that “[t]he protection of one’s right to own property is said to be one of

the most important purposes of government.” Eggemeyer v. Eggemeyer,

protecting individual rights that the United States Supreme Court determined were
not protected by the federal Constitution.”).
7
554 S.W.2d 137, 140 (Tex. 1977) (citations omitted). That is because, as

the Court in Eggemeyer explained, “[t]hat right has been described as

fundamental, natural, inherent, inalienable, not derived from the

legislature,” and, once again, “as preexisting even constitutions.” Id.

Hence, property rights have been afforded substantial protection under

the Texas Constitution—protections which have, in turn, been jealously

guarded by the courts of this state from the beginning and have been

consistently reaffirmed to the present day. Kerr, 499 S.W.3d at 804

(“This Court has repeatedly, recently, and unanimously recognized that

strong judicial protection for individual property rights is essential to

‘freedom itself.’ . . . [Property rights] are, we reaffirm today,

‘fundamental, natural, inherent, inalienable, and not derived from the

legislature’ and ‘preexist even constitutions.’”) (citations omitted)

(emphasis added).

This recognition of the fundamental nature of property rights thus

persists to the modern era. And in recent years, Texans have harnessed

not just the courts and their state constitution to reaffirm their

commitment to property rights, but the legislature as well. In the

1990s, for example, Texans mobilized to address a growing national

8
discomfort with the increasing reluctance of courts—state and federal—

to protect property rights from regulatory overreach. So in 1995, the

Texas Legislature passed the Private Real Property Rights Preservation

Act. Tex. Gov’t Code, §§ 2007.01 et seq. The Act has been heralded “as

possibly the strongest state takings law in the nation.” George E.

Grimes, Jr., Texas Private Real Property Rights Preservation Act: A

Political Solution to the Regulatory Takings Problem, 27 St. Mary’s L. J.

557, 560 (1996) (citation omitted). Among other things, the Act “allows a

property owner whose property is diminished in value at least twenty-

five percent by government regulation to sue the government entity

that issued the regulation[.]” Id. Significantly, this legislation once

again had the effect of affording greater protections to Texans than the

federal courts would have provided, as a similar claim in federal court

would generally require a property owner to show as much as a 90

percent diminution in value. See Mark W. Cordes, The Fairness

Dimension in Takings Jurisprudence, 20 Kan. J. L. & Pub. Pol’y 1, 16-

17 (2010) (“[D]iminution in value must substantially exceed fifty

percent before any serious consideration is given of a Penn Central

taking, and should be closer to ninety percent.”) (citing Penn Central

9
Trans. Co. v. New York City, 438 U.S. 104 (1978)) (additional citations

omitted).3

But that is not all. Just as the state legislature took action to

wrangle the problem of regulatory takings in the 1990s, the people of

Texas rallied in the 2000s to amend their state constitution in response

to the U.S. Supreme Court’s controversial decision in Kelo v. City of

New London, 545 U.S. 469 (2005). In 2009, four years after the ruling in

Kelo, Texas amended article I, section 17 of the Texas Constitution to

explicitly prohibit the taking, damaging, or destroying of property for

the benefit of anyone but the government or public. Texans voted,

overwhelmingly,4 to make it explicitly clear that a “public use” does “not

include the taking of property . . . for transfer to a private entity for the

primary purpose of economic development or enhancement of tax

3 Many of the federal cases that Houston argues have sweeping significance here—
Penn Central in particular—are the very reason why Texas and other states enacted
reforms like the Private Real Property Rights Preservation Act. See Resp. Br. 18
n.26, 49 (arguing that Penn Central “has put to final rest” the idea that Spann
remains good law on the grounds that “[i]f there ever was one, Penn Central has
eliminated any potential conflict [with Spann]” and has also “effectively overrule[d]
language in Lombardo.”)

4The people passed the amendment by 81% in favor to 19% opposed. See Texas
Eminent Domain, Proposition 11 (2009), Ballotpedia, https://ballotpedia.org/
Texas_Eminent_Domain,_Proposition_11_(2009) (last visited Dec. 24, 2020).

10
revenues.” Tex. Const. art. I, § 17 (b). Thus, yet again, Texans

deliberately took action to distinguish Texas law from a line of federal

and state cases that were inconsistent with its historical conception of,

and respect for, property rights. See, e.g., Tex. Rice Land Partners, Ltd.

v. Denbury Green Pipeline-Tex., LLC, 363 S.W.3d 192, 204 (Tex. 2012)

(“[F]reedom itself . . . demand[s] strong protections for individual

property rights. . . . While neighboring states impose fewer restrictions .

. . the Texas Legislature enacted a regime more protective of

landowners.”).

Today, these state-level protections continue to reflect Texans’

long-held views of property rights and support the understanding that

“[t]he regulation of land use by Texas cities was not one of the original,

primary functions” of government that the Framers envisioned. David

B. Brooks, 23 Tex. Prac. Municipal Law and Practice § 21.01 (2d ed.

2020). Indeed, it is precisely “[b]ecause of th[is] strong tradition of

extensive private ownership rights in Texas” that it was presumed for

decades that “regulation of private property through the police power

for historic preservation is rare and might be more difficult in Texas

11
than elsewhere.” Susan Abigail Schatzel, Public Historic Preservation in

Texas, 49 Tex. L. Rev. 267, 272-73 (1971).

Instead, property law in Texas has always been informed by a

natural-rights based understanding of property use that weighs private

ownership over central-planning goals. Ft. Worth Improvement Dist. No.

1 v. City of Ft. Worth, 158 S.W. 164, 169 (Tex. 1913) (rejecting a

construction that would “pervert . . . the rights of the citizen as those

rights stood at the common law . . . and make it an authority for

invasion of [a] private right under the pretext of the public good.”). As

this Court explained in its seminal ruling in Spann v. Dallas, 235 S.W.

513, 515 (Tex. 1921), given the nature and origin of property rights as

natural rights, they are not subordinate to the state’s police power:

All grants of power are to be interpreted in the light of the

maxims of Magna Charta and the Common Law as
transmuted into the Bill of Rights. . . . To secure their property
was one of the great ends for which men entered into society.
The right to acquire and own property, and to deal with it and
use it as the owner chooses, so long as the use harms nobody,
is a natural right. It does not owe its origin to constitutions.
It existed before them. It is a part of the citizen’s natural
liberty—an expression of his freedom, guaranteed as inviolate
by every American Bill of Rights.

Spann, 235 S.W. at 356.

12
 This historical understanding—rooted in Western philosophy,

grounded in Anglo-American common law, and backed by centuries of

both legal precedent and modern statutory law—is precisely what

Houston wants this Court to discard here. And in its place, Houston

asks this Court to substitute a school of thought foreign to the authors

of the Texas Constitution and one that the judiciary and citizenry of

Texas have repeatedly repudiated, both in court and at the ballot box.

As the following section illustrates, however, Houston’s argument—that

Spann and its progeny are doctrinally obsolete—is incorrect.

II. HOUSTON IS INCORRECT THAT SPANN V. DALLAS IS

OBSOLETE AND SHOULD BE DISCARDED.

As discussed in the preceding section, Texas’ modern property law

jurisprudence is animated by centuries-old common law precedent and

legal philosophy. That understanding of property rights, as a natural

right that pre-exists and transcends modern constitutional recognition,

informed the Texas Supreme Court’s reasoning in its decision in Spann.

Houston argues that Spann has been long-since “discredited,” see

Respondents’ Br. 18 n.26, apparently because it was decided “before the

U.S. Supreme Court decided Village of Euclid, Ohio v. Ambler Realty

Co., 272 U.S. 365 (1926), which held zoning constitutional.” Id. at 21. To

13
accept such an argument would be to accept the notion that the U.S.

Supreme Court, in deciding a question of federal law, can overrule a

decision of this Court on a question of state law. The Supreme Court, of

course, cannot do that. Nevertheless, Houston suggests, adopting

Petitioners’ reading of Spann—indeed, even affording Spann any

credence at all—would be “simply a misreading of existing law.” Id. at

21.

But Spann is far from a jurisprudential dead letter. To begin,

Spann was not silently overruled by the U.S. Supreme Court in 1926.5

Spann has been cited repeatedly, by this Court and others, for nearly a

century, including several times in the last decade—a situation that

would be highly unusual if the case had been overruled sub silentio

almost a century ago. Nor has Spann been gradually eroded or

“discredited” to the point of convenient obsolescence as Houston

5 Houston’s preoccupation with Euclid is curious. Even to the extent Euclid is in

tension with cases like Spann and others, it is nevertheless a decision interpreting
the Fourteenth Amendment to the federal constitution. As Petitioners rightly point
out in their reply, the holding in Euclid has no bearing on the meaning of the Texas
constitution, which, as described in the preceding section, has been expressly
designed to afford greater protections for property rights than its federal
counterpart. In any event, even if this case did implicate federal law, state-specific
understandings of property rights would still drive the analysis. That is because
“[t]he ‘law of real property is, under the federal Constitution, left to the individual
States to develop and administer.” Severance, 370 S.W.3d at 713.

14
suggests here.6 To the contrary, the reason why courts continue to cite

Spann is because the core holding in that case—that property rights

matter and cannot be arbitrarily infringed upon—is still the law in

Texas.

The Texas Supreme Court first reaffirmed its commitment to

Spann just two years after it was decided, in Crossman v. Galveston,

247 S.W. 810 (Tex. 1923). In Crossman, a city ordinance classified all

dilapidated buildings as nuisances, thus enabling the city to condemn

any dilapidated property, even if it posed no actual threat to public

health and safety. Invoking Spann, the Court voided the ordinance as

an unconstitutional grant of the police power. Specifically, the Court

remarked that expanding the definition of nuisance to include buildings

that do not “endanger life or health [among other public concerns]”

6It is worth noting that Spann has been attacked by central-planning advocates, on
virtually identical grounds, almost since the moment it was decided. In 1927, a
mere six years after the Spann decision, one commentator introduced the
argument—echoed here by Houston nearly a hundred years later—that Spann had
been already undermined by subsequent holdings. See Roy W. McDonald, Zoning
Texas Cities—Constitutionality of Comprehensive City Plan Ordinances, 5 Tex. L.
Rev. 307, 311-12 ,315 (1927) (arguing that “[t]he most recent Texas citation of the
Spann Case indicates a growing doubt of the broad doctrines that have been
assumed from that holding” and advocating for Spann to be cabined to its facts so
that “the planning and development of the cities of this state [may] become a
rational program of progress instead of a helter-skelter scramble.”). Houston’s
arguments here come from this same century-old playbook and should be rejected.
15
reflects a patently unconstitutional exercise. Id. at 812 (citing Spann).

And it specifically relied on Spann in explaining that the government

cannot declare property a nuisance based on “mere unsightliness” alone.

Id.

A decade later, this Court applied Spann once again—in the first

of many post-Euclid decisions. In Lombardo v. Dallas, 73 S.W.2d 475,

478 (Tex. 1934), this Court considered an ordinance that operated to

prohibit the construction of a gasoline filling station in a residential

area. Though the Court did not conclude that the ordinance was

improper in light of Spann, it nevertheless reaffirmed Spann’s import

as a limitation on the police power to regulate property. Id. at 481. This

is evident because this Court actually applied the Spann analysis in its

decision. If Houston were correct—that is, if Euclid overruled or

abrogated Spann—Lombardo would have been the perfect opportunity

for this Court to just say so. Except it did not do that. Instead, this

Court analyzed the issue under Spann’s framework and ultimately

distinguished the law before it from the ordinance in Spann. Obviously,

this analysis would not have been necessary if this Court thought that

16
Spann had not survived the U.S. Supreme Court’s decision in Euclid six

years earlier.

The Texas Supreme Court then considered Spann once again,

several years later, in San Antonio v. Zogheib, 101 S.W.2d 539 (Tex.

1937). In Zogheib, the Texas Supreme Court distinguished Spann to

conclude, rather unremarkably, that city commissioners could deny a

filling-station permit if the station’s presence would adversely affect the

health and safety of the city. In issuing its ruling, the Court adopted the

Fifth Circuit’s rationale that a city could use the police power to

regulate the streets “in the interest of the public welfare.” Zogheib, 101

S.W.2d at 541 (quoting San Antonio v. Rubin, 42 F.2d 107, 108 (5th Cir.

1930)). Once again, however, the court made the point to clarify that its

decision “[was] not in conflict” with Spann. Id. Thus, the Fifth Circuit’s

consideration of Spann—and its explanation that its holding did not

violate the principles for which Spann stands—further establishes

Spann’s continued vitality in the years following the U.S. Supreme

Court’s decision in Euclid.

That vitality still holds today. In 2010, this Court relied heavily on

Spann in its decision in Robinson v. Crown Cork & Seal Co., 335 S.W.3d

17
126 (Tex. 2010). In Robinson, this Court explained that determining

whether a law is impermissibly retroactive depends on whether it is a

“valid exercise of the police power by the Legislature to safeguard the

public safety and welfare.” Id. at 134. This Court ultimately invalidated

the statute, with two justices citing Spann’s police-power discussion as

a key resource for weighing the private right against the government’s

asserted planning interests:

Appropriately weighty principles guide our course. . . . [First,]

there must exist a societal peril that makes collective action
imperative: “The police power is founded in public necessity,
and only public necessity can justify its
exercise.” . . . [Second], while police power naturally operates
to abridge private rights, our Constitution, being inclined to
freedom, requires that such encroachments be as slight as
possible: “Private rights are never to be sacrificed to a greater
extent than necessary.”

Robinson, 335 S.W.3d at 162-63 (Willett, J., concurring) (quoting

Spann, 235 S.W. at 515). By relying on Spann, the Court signaled that

Spann is not just good law; it is the intellectual foundation for

reconciling property rights and the police power in Texas.

Spann remains authoritative at the intermediate appellate level

as well of course. Just last year, in Zaatari v. Austin, No. 03-17-00812-

18
CV, 2019 WL 6336186 (Tex. App.—Austin Nov. 27, 2019, pet. filed),7 the

Third Court of Appeals considered an ordinance that permitted the City

of Austin to single out property owners with short-term rentals and

impose various restrictions. In holding that the City of Austin’s

ordinance violated the Texas Constitution, in light of this Court’s 2010

decision in Robinson, the court relied in part on the natural-rights

analysis from Spann:

The right to acquire and own property, and to deal with it and
use it as the owner chooses, so long as the use harms nobody,
is a natural right. It does not owe its origin to constitutions.
It existed before them. It is a part of the citizen’s natural
liberty—an expression of his freedom, guaranteed as inviolate
by every American Bill of Rights.

Zaatari, 2018 WL 6336186 at *16 (quoting Spann, 235 S.W. at 515); see

also Pool v. River Bend Ranch, LLC, 346 S.W.3d 853, 860 (Tex. App.—

Tyler 2011, pet. denied) (applying Spann’s acknowledgement that a

property owner may use property “as the owner chooses, so long as the

use harms nobody,” to uphold an injunction that prevented a nuisance

ATV park from operating).8

7A petition for review from the Third Court of Appeals’ decision in Zaatari, Case
No. 20-0470, is pending before this Court.

8Spann has been recognized as good law in federal court as well. In Nat’l Solid
Wastes Mgmt. Ass’n v. Dallas, waste hauler franchisees argued before a district
19
 Ultimately, Houston’s argument that Spann has been overruled or

undermined—simply because it is old and is inconsistent with federal

precedent—is little more than a self-serving and ahistorical ipse dixit.

This Court should treat it as such.

PRAYER

The judgment of the Court of Appeals should be reversed.

RESPECTFULLY SUBMITTED this 4th day of January, 2021.

INSTITUTE FOR JUSTICE

By: /s/ Arif Panju

Arif Panju (TX Bar No. 24070380)
816 Congress Avenue, Suite 960

court that a Flow Control Ordinance unconstitutionally impaired their vested

rights. The court applied the Texas Supreme Court’s rule from Robinson (applying
Spann) that a city cannot impair vested rights unless it acted in proper accordance
with its police power. Nat’l Solid Wastes Mgmt. Ass’n v. Dallas, 903 F. Supp. 2d 446,
459 (N.D. Tex. 2012). And in determining what constitutes a proper exercise of
police power, the court cited Spann as controlling authority:

An unreasonable exercise of the police power occurs when . . . “[a] law []

assumes to be a police regulation but deprives the citizen of the use of
his property under the pretense of preserving the public health, safety,
comfort or welfare, when it is manifest that such is not the real object
and purpose of the regulation[.]

Id. at 460 (quoting Spann, 235 S.W. at 515). Applying Spann, the court voided the
ordinance because it operated not for a valid public purpose, as the city contended,
but rather to “raise revenue to advance [the city’s] economic and proprietary
interests at the expense of the Franchisees’ rights.” Nat’l Solid Wastes Mgmt. Ass’n,
903 F. Supp. 2d at 460.

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 Austin, Texas 78701
Tel.: (512) 480-5936
Fax: (512) 480-5936
Email: apanju@ij.org

Attorney for Amicus Curiae,

Institute for Justice

CERTIFICATE OF COMPLIANCE

This brief contains 4,058 words, excluding the portions of the brief

exempted by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure.

/s/ Arif Panju

Arif Panju

CERTIFICATE OF SERVICE

I certify that on this 4th day of January, 2021, I caused a true and

correct copy of the foregoing Amicus Curiae Brief of the Institute for

Justice in Support of Petitioner to be served electronically to the

following counsel via the ProDoc eFiling 2 electronic filing system:

Matthew J. Festa
South Texas College of Law Houston
1303 San Jacinto Street
Houston, Texas 77002
Tel.: (713) 206-0398
Email: mfesta@stcl.edu
Counsel for Petitioner

21
Ronald C. Lewis
City Attorney
Suzanne R. Chauvin
Chief, General Litigation Section
Collyn A. Peddie
Brian Amis
City of Houston Legal Department
900 Bagby Street, 4th Floor
Houston, Texas 77002
Tel.: (832) 393-6463
Fax: (832) 393-6259
Email: collyn.peddie@houstontx.gov
brian.amis@houstontx.gov
Counsel for Respondent

Robert Henneke Ken Paxton

Shelby Sterling Kyle D. Hawkins
Chance Weldon Lanora C. Pettit
Texas Public Policy Foundation Bethany C. Spare
901 Congress Avenue Office of the Attorney General
Austin, Texas 78701 P.O. Box 12548 (MC 059)
Tel.: (512) 472-2700 Austin, Texas 78711
Fax: (512) 472-2728 Tel.: (512) 936-1700
Email: rhenneke@texaspolicy.com Fax: (512) 474-2697
Counsel for Amicus Curiae Texas Email: Bethany.Spare@oag.texas.gov
Public Policy Foundation Counsel for Amicus Curiae the State
of Texas

Sara C. Bronin Mikael A. Garcia

5510 Community Drive
Houston, Texas 77005
Tel.: (860) 840-1408
Email: sara.bronin@gmail.com
Texas Freedom Caucus
P.O. Box 806
Austin, Texas 78767
Tel.: (512) 228-6862
Email: mgarcia@freedomfortexas.com

22
Counsel for Amicus Curiae Historic Counsel for Amicus Curiae Texas
Preservation Organizations and Freedom Caucus
Legal Scholars

/s/ Arif Panju

Arif Panju

23
 Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below:

Arif Panju on behalf of Arif Panju

Bar No. 24070380
apanju@ij.org
Envelope ID: 49369706
Status as of 1/4/2021 1:52 PM CST

Associated Case Party: City of Houston, Texas

Name BarNumber Email TimestampSubmitted Status

Collyn Ann Peddie 15707300 Collyn.peddie@houstontx.gov 1/4/2021 1:48:21 PM SENT

Associated Case Party: Kathleen Powell

Name BarNumber Email TimestampSubmitted Status

Matthew Festa 24036558 mfesta@stcl.edu 1/4/2021 1:48:21 PM SENT