From: Subject: Texas Judiciary Online - HTML Opinion Date: Sat, 18 Aug 2007 17:43:14 -0500 MIME-Version: 1.0 Content-Type: multipart/related; type="text/html"; boundary="----=_NextPart_000_0023_01C7E1BF.41269840" X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.3138 This is a multi-part message in MIME format. ------=_NextPart_000_0023_01C7E1BF.41269840 Content-Type: text/html; charset="Windows-1252" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=84602 Texas Judiciary Online - HTML Opinion
Send this document to a=20 colleague    Close=20 This Window


Opinion issued August = 2,=20 2007

















In = The

Court of=20 Appeals

For=20 The

First=20 District of Texas



NO. 01-04-00749-CV

__________


WEBWORLD=20 MARKETING GROUP, L.L.C., Appellant


V.


TOMMIE THOMAS, Appellee


On = Appeal=20 from the 215th District Court

Harris County, Texas

Trial Court=20 Cause No. 2001-38341



CONCURRING=20 AND DISSENTING OPINION ON THIRD MOTION FOR REHEARING AND DISSENT = FROM=20 DENIAL OF EN BANC RECONSIDERATION =


This is = the panel's=20 fourth opinion in this case and the first in favor of Sheriff = Tommy Thomas=20 ("the Sheriff"). Because the majority fails to address the serious = legal=20 issues involving the interpretation of the regulations governing a = sexually oriented business ("SOB") that are at the heart of this = case and=20 that are raised by the Sheriff's cross-points and each of his = motions for=20 rehearing, and, instead, it decides the case sua sponte = on=20 unassigned error, incorrectly justifying its arguments as=20 "jurisdictional," I dissent from the opinion on rehearing. I = concur solely=20 in the judgment affirming the judgment notwithstanding the verdict = (JNOV)=20 entered by the trial court in favor of the Sheriff. Because of the = importance of this case for the regulation of SOB's, I likewise = dissent=20 from the Court's denial of the Sheriff's motion for en banc=20 reconsideration.=20 (1) I would = affirm the=20 JNOV entered in favor of the Sheriff by the trial court for the = reasons=20 urged by the Sheriff in his cross-points on appeal and in each of = his=20 motions for rehearing.

DISSENT FROM=20 DENIAL OF EN BANC RECONSIDERATION


In response=20 to the Sheriff's third motion for rehearing and motion for en banc = reconsideration, the majority reverses itself sua sponte = on=20 grounds not raised by appellant Webworld Marketing Group, = L.L.C.=20 ("Webworld") in its appeal or by the Sheriff in his cross-points = on appeal=20 or in his Third Motion for Rehearing. The majority incorrectly = claims that=20 this case should have been decided under the "substantial = evidence"=20 standard used to review an administrative's agency's factual = findings on=20 appeal and that this is a jurisdictional issue it is permitted to = raise=20 sua sponte. See Webworld Marketing Group, = L.L.C. v.=20 Tommie Thomas, 01-04-00749-CV, slip op. at 10 (Tex. = App.--Houston=20 [1st Dist.] Aug. 2, 2007, no pet. h.) (op. on reh'g) (citing = City of=20 Dallas v. Furrh, 541 S.W.2d 271, 273 (Tex. Civ. = App.--Texarkana 1976,=20 writ ref'd n.r.e.), City of Dallas v. Stevens, 310 S.W.2d = 750,=20 755 (Tex. Civ. App.--Dallas 1958, writ ref'd n.r.e.), and = Thomas v.=20 Stanolind Oil & Gas Co., 198 S.W.2d 420,421 (Tex. 1946) = (stating=20 that "courts are not clothed with authority to set aside fact = findings=20 of an administrative agency made within the scope of its = statutory=20 powers [if] there is any substantial evidence affording reasonable = support=20 for such findings and the orders entered thereunder") (emphasis = added));=20 see=20 also Public Util. Comm'n v. AT&T Communications, 777 = S.W.2d 363,=20 365 (Tex. 1989) ("The reviewing appellate court is not to make = independent=20 findings of fact; the right to find facts rests with the = administrative=20 agency."). I disagree. =

Webworld=20 did not ask the trial court to review and set aside the = Sheriff's=20 factual findings from the administrative proceedings regarding = Webworld's=20 application for a SOB permit ("SOBP"). Webworld filed suit seeking = a=20 declaratory judgment interpreting the law in its favor. It asked = the trial=20 court to hold that its application "met all required criteria" for = an SOBP=20 and to order the Sheriff to issue the permit. The Sheriff = responded that=20 he was not required to issue the permit because Webworld did not = satisfy=20 the legal criteria for issuance of a permit. The facts were = essentially=20 undisputed. What was disputed was whether the legal criteria for = issuance=20 of a permit were satisfied under a correct interpretation of the = county=20 ordinances regulating SOB's, given the facts of the = case.

The trial=20 court "error" the majority addresses--the failure to use a = "substantial=20 evidence" standard of review to review the Sheriff's factual = findings--was=20 not raised by any party at any point in this case. Rather, = Webworld, the=20 appellant, complained on appeal that the trial court erred in = entering=20 JNOV in its favor because, it contended, the evidence was legally = and=20 factually sufficient to support the verdict. The Sheriff = maintained, in=20 his objections to the charge, in his motion for JNOV, and in his=20 cross-points on appeal, that the trial court's charge improperly = required=20 the jury to make legal determinations and that the evidence, when = viewed=20 under a legally correct interpretation of the law, did not support = the=20 jury's findings that Webworld satisfied the regulatory = requirements for an=20 SOBP. Therefore, the Sheriff argued that the trial judge = correctly, if=20 belatedly, took the case away from the jury and correctly entered = a=20 directed verdict in his own favor.

The=20 majority ignores both Webworld's legal and factual sufficiency = claims and=20 the Sheriff's cross-points and, instead, crafts its own standard = of legal=20 and factual sufficiency of the evidence for this jury trial from = the legal=20 standard of review of administrative agency findings, justifying = its=20 addressing this issue on the ground that it is a jurisdictional = issue. The=20 trial court clearly had subject matter jurisdiction to entertain=20 Webworld's declaratory judgment suit, and it clearly had = jurisdiction to=20 submit the factual questions in the case to the jury. It even had = subject=20 matter jurisdiction to submit the legal questions in the case to = the jury=20 (although the Sheriff complained that it did so erroneously). = Thus, the=20 "error" the majority addresses--both parties' and the trial = court's=20 purported failure to use the correct standard to review the = Sheriff's=20 administrative fact findings--is merely unassigned = error.

The law is=20 clear that the Texas rules of civil and appellate procedure = require a=20 party to apprise a trial court of its error before that error can = become=20 the basis for reversal of a judgment. In the Matter of = C.O.S.,=20 988 S.W.2d 760, 764-65 (Tex. 1999); see Tex. R. App. P. = 33.1.=20 Unlike criminal cases, there is no "fundamental error" in purely = civil,=20 non-quasi-criminal, cases, like this one, that cannot be forfeited = by=20 inaction unless the record shows that the court lacked = jurisdiction or the=20 public interest as declared in statutes or the Texas Constitution = is=20 "directly and adversely affected." In the Matter of = C.O.S., 988=20 S.W.3d at 765; see also In the Interest of B.L.D. and = B.R.D., 113=20 S.W.3d 340 (Tex. 2003) (discussing preservation of error and = fundamental=20 error in context of termination of parental rights). In all other = cases,=20 including this one, it is error for an appellate court to decide = an appeal=20 on the basis of unassigned error, or error that has not been = preserved in=20 accordance with the rules of civil and appellate procedure because = "[a]=20 point of error not preserved is not before the appellate court for = review." Allright v. Pearson, 735 S.W.2d 240, 241 (Tex. = 1987)=20 (per curiam); American Gen. Fire & Cas. Co. v. = Weinberg, 639=20 S.W.2d 688, 688 (Tex. 1982); see also Western Steel Co. v.=20 Altenburg, 206 S.W.3d 121, 124 (Tex. 2006) (absent = fundamental error,=20 appellate court should refrain from deciding cases on legal errors = not=20 assigned by parties).

In this=20 case, the panel had two choices. Either it could reverse the trial = court's=20 judgment on the basis of legal and factual sufficiency of the = evidence to=20 support the jury verdict--the error alleged by = Webworld--distinguishing=20 the Sheriff's cross-points as without merit, or it could affirm = the trial=20 court's judgment on the ground that JNOV was justified because the = Sheriff's cross-points established that the case had proceeded to = a jury=20 trial under an incorrect charge that required the jury to = interpret and=20 then apply the law and, under a correct construction of the law, = the=20 Sheriff is not required to issue an SOBP to Webworld. See = Trinity=20 Universal Ins. Co. v. Ponsford Bros., 423 S.W.2d 571, 575 = (Tex.=20 1968); City of Houston v. Savely, 708 S.W.2d 879, 883 = (Tex.=20 App.--Houston [1st Dist.] 1986, no writ) (question of whether city = complied with statutory provisions was question of construction = for court=20 that should not have been submitted to jury and should have been=20 disregarded); Cain v. Tennessee-Louisiana Oil Co., 382 = S.W.2d=20 794, 799 (Tex. Civ. App.--Tyler 1964), aff'd, 400 S.W.2d = 318=20 (Tex. 1966) (issue that involves construction of legal instrument = or that=20 calls for determination of question of law should not be submitted = to jury=20 for their determination).

The=20 majority's first three opinions decided the case in favor of = Webworld on=20 the ground that the evidence was legally and factually sufficient = to=20 support the verdict. In each case, however, the opinion reversed = the JNOV=20 in favor of the Sheriff without addressing his cross-points, = leading to=20 each of his motions for rehearing and his motion for en banc = review. The=20 majority's fourth opinion introduces a point of error raised by no = one--namely, that the trial court erred by failing to review the = Sheriff's=20 administrative findings under a substantial evidence standard--but = it=20 still fails to address the issues raised by the Sheriff's = cross-points and=20 by his motions for rehearing and en banc reconsideration, which = are=20 necessary to final disposition of this appeal. Thus the opinion=20 contravenes Texas Rule of Appellate Procedure 47.1's mandate that = the=20 court of appeals hand down a written opinion "that addresses every = issue=20 raised and necessary to final disposition of the appeal."=20 (2) Tex. R. = App. P.=20 47.1.

Because I=20 do not agree that the panel has authority to decide this case in = favor of=20 the Sheriff on unassigned error, and because the majority opinion = does not=20 address the correct interpretation of the City's ordinances = regulating=20 SOB's--the central issue raised by Webworld's suit for a = declaratory=20 judgment and by the Sheriff's cross-points, motions for rehearing, = and=20 motion for en banc reconsideration, and because the resolution of = this=20 legal issue is important to the county's exercise of its power to = regulate=20 SOB's, I re-urge my previous dissent on the merits of this case.=20

SHERIFF'S=20 CROSS-POINTS BROUGHT FORWARD ON APPEAL

The = Sheriff argues=20 in his Third Motion for Rehearing and Motion for En Banc = Reconsideration=20 that the majority did not properly consider his cross-points in=20 overturning the JNOV rendered in his favor in its March 22, 2007 = opinion=20 and remanding the case to the trial court to enter judgment in = accordance=20 with the = verdict in = favor of=20 appellant, Webworld. The majority expressly states in its current = opinion=20 in response to that motion and the motion for en banc = reconsideration that=20 it remains unnecessary for it to reach the Sheriff's cross-points. = As I=20 stated in my March 22, 2007 dissent, I agree with the Sheriff. I,=20 therefore, re-urge that dissenting opinion, as set forth = below.

The Sheriff=20 argues that, as a matter of law, Webworld failed to comply with = the=20 applicable regulations for obtaining a Class I SOBP for 22562 = Interstate=20 I-45 North in response to its March 16, 2001 application and, = therefore,=20 he, as Sheriff, had no duty to issue the permit. The Sheriff = contends that=20 this Court should have considered his no-evidence objections not = on the=20 basis of whether there was sufficient evidence to support the = jury's=20 answers to the questions in the jury charge--to which he had = objected at=20 trial--but on the basis of the proper application of the law to = the facts.=20

Relevant=20 Regulations

The=20 applicable regulations are "The Regulations for Sexually Oriented=20 Businesses in the Unincorporated Area of Harris County, Texas and=20 Application for a CLASS I Permit" adopted August 6, 1996. Harris = County,=20 TX., Ordinance 83-1812 (Aug. 6, 1996) (hereinafter referred to as = "Harris=20 County Regulations"). A Class I sexually oriented business = enterprise is=20 "a commercial enterprise the primary business of which is the = offering of=20 a service or the selling, renting or exhibiting of devices or any = other=20 items intended to provide sexual stimulation or sexual = gratification to=20 the customer" that "conduct[s] business regularly at a specific = location."=20

As the=20 Sheriff points out, section VIII(a) of the Harris County = Regulations=20 requires that "[t]o obtain a Class I . . . SOBP, a complete = application=20 shall be filed with the Sheriff," in the form provided by the = Sheriff,=20 whose contents are specified for a Class I SOBP in sections = VIII(b) and=20 (e). Section XII(e)(2) of the regulations states that "[t]he SOBP = shall be=20 denied upon the finding by the Sheriff of any of the following = facts,"=20 including a finding that "the enterprise does not meet all the=20 requirements of these regulations" or a finding that "[t]he = applicant has=20 knowingly made a misleading statement of a material fact by = omitting or=20 falsifying information in the application for the SOBP." =

Section=20 VIII(b)(2) requires that an applicant for a Class I SOBP provide, = in=20 relevant part:

(2) A=20 general description of the enterprise, which shall include the = address of=20 the enterprise and the services and products which will be=20 offered.

(i) A Class=20 I SOBP shall be valid only for the address provided in the=20 application.



Section=20 VIII(e) requires that an applicant for a Class I SOBP also = provide, in=20 relevant part:

(4) A=20 certification that the proposed enterprise will be = located:


(i) a=20 minimum of one thousand five hundred (1,500) feet from any child = care=20 facility, school, dwelling, hospital, public building, public = park, or=20 church or place of religious worship;



. = . .=20 .



(iv) This=20 subsection shall apply only to property uses in existence at that = location=20 at least thirty (30) days prior to the date of = application.


Preservation=20 of Error

The Sheriff=20 pled, inter alia, that Webworld had knowingly made a = misleading=20 statement of material fact by providing an incorrect address for = the SOBP=20 it sought on its March 19, 2001 application and by falsely = certifying that=20 the SOB was a minimum of 1,500 feet from a dwelling, namely the = residence=20 over the Melvins' parrot shop, for whose use as dwelling permits = had been=20 sought and plans developed, and where the Melvins had stayed from = time to=20 time.

The jury=20 was asked (1) whether Webworld's proposed enterprise was located a = minimum=20 of 1,500 feet from "any dwelling in existence at that location at = least=20 (30) days prior to Webworld's application dated March 19, 2001" = when=20 "residence" was defined as "personal presence at some place of = abode . . .=20 ."; (2) whether Webworld "knowingly made a misleading statement of = material fact by omitting or falsifying information" in its March = 19, 2001=20 application for an SOB; (3) whether the Sheriff "arbitrarily" = denied=20 Webworld's March 19, 2001 application; and (4) "whether the = Sheriff acted=20 in good faith in denying Webworld's March 19, 2001=20 application."

The Sheriff=20 objected that jury questions 1, 3, and 4 improperly applied the = law, there=20 was no evidence to support the submission of the questions to the = jury,=20 and the questions would lead to inconsistent answers. = Additionally, the=20 Sheriff specifically argued that question 1 was "incorrect because = it=20 doesn't explain that a dwelling also includes intended or planned = use of=20 property" and that questions 3 and 4 were not supported by the = pleadings.=20 In short, the Sheriff complained that the jury charge got the law = wrong in=20 a case where the jury was being improperly asked to construe the=20 applicable ordinances and apply the legal and factual criteria for = issuance of an SOBP. The trial court overruled each of the = Sheriff's=20 objections. The Sheriff also requested an instructed verdict at = the=20 conclusion of the case, which was likewise overruled. Finally, in = his=20 motion for JNOV, the Sheriff urged, "[T]here is no evidence that = the=20 Sheriff arbitrarily denied Webworld's permit or acted in bad faith = in=20 light of the fact that the Melvins had indicated in 1996 that they = would=20 use the property as a residence." The trial court granted the = motion for=20 JNOV.

The Sheriff=20 argues on appeal that the trial court properly took the case away = from the=20 jury after the verdict because, having been given an erroneous = charge over=20 counsel's objections, the jury responded with erroneous answers. = The=20 Sheriff contends he preserved error, and he urges us to apply the = law the=20 jury should have applied and the trial court ultimately did apply. = I agree=20 with the Sheriff's position.

Texas Rule=20 of Civil Procedure 324(c) provides:

When=20 judgment is rendered non obstante verdicto or notwithstanding the = findings=20 of a jury on one or more questions, the appellee may bring forward = by=20 cross-point contained in his brief filed in the Court of Appeals = any=20 ground which would have vitiated the verdict or would have = prevented an=20 affirmance of the judgment had one been rendered by the trial = court in=20 harmony with the verdict, including although not limited to the = ground=20 that one or more of the jury's findings have insufficient support = in the=20 evidence or are against the overwhelming preponderance of the = evidence as=20 a matter of fact . . . .



The failure=20 to bring forward by cross-points such grounds as would vitiate the = verdict=20 shall be deemed a waiver thereof . . . .


Tex. R.=20 Civ. P. 324(c); accord Tex. R. App. P. = 38.2(b).

The Sheriff=20 objected to the charge, moved for an instructed verdict, and moved = for=20 judgment notwithstanding the verdict. He then brought forth by=20 cross-points his grounds for vitiating the verdict, namely the = legal=20 insufficiency of the evidence and the factual insufficiency of the = evidence to support the jury's answers to questions 1, 3, and 4. I = would=20 hold that the Sheriff preserved his legal sufficiency issues. = See=20 Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991) (legal = sufficiency=20 challenge may be preserved by objection to charge and motion for=20 instructed verdict). Therefore, I would address the Sheriff's = argument=20 that the evidence was legally insufficient to prove that he had a = duty to=20 issue an SOB to Webworld.




Legal=20 Sufficiency of the Evidence to Support the = Verdict

Standard=20 of Review

A = "no=20 evidence," or legal insufficiency, point of error is a question of = law=20 that challenges the legal sufficiency of the evidence to support a = particular fact finding. County of El Paso v. Dorado, 180 = S.W.3d=20 854, 862 (Tex. App.--El Paso 2006, pet. denied). Because "no = evidence"=20 points are questions of law, they are reviewed de novo. = State=20 Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d = 322, 327=20 (Tex. 2003). In conducting a legal-sufficiency review, "we must = view the=20 evidence in a light that tends to support the finding of disputed = fact and=20 disregard all evidence and inferences to the contrary." = Wal-Mart=20 Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). = However,=20 "[t]he final test for legal sufficiency must always be whether the = evidence at trial would enable reasonable and fair-minded people = to reach=20 the verdict under review. . . . [L]egal-sufficiency = review=20 in the proper light must credit favorable evidence if reasonable = jurors=20 could, and disregard contrary evidence unless reasonable jurors = could=20 not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. = 2005).=20 Thus, a no-evidence challenge will be sustained when "'(a) there = is a=20 complete absence of evidence of a vital fact, (b) the court is = barred by=20 rules of law or of evidence from giving weight to the only = evidence=20 offered to prove a vital fact, (c) the evidence offered to prove a = vital=20 fact is no more than a mere scintilla, or (d) the evidence = conclusively=20 establishes the opposite of the vital fact.'" King Ranch, Inc. = v.=20 Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell = Dow=20 Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).=20

Webworld's=20 Compliance with Applicable Regulations

On May 15,=20 2001, Webworld received a letter from the Sheriff denying its SOBP = because=20 (1) the SOB was within 1,500 feet of a dwelling; (2) Webworld had=20 knowingly made a misleading statement by providing an incorrect = address=20 for the SOB; and (3) Webworld had knowingly made a misleading = statement=20 because the proposed building would not fit in the lot area. =

Webworld=20 had to prove that it complied with all applicable regulations to = prevail=20 in the trial court on its demand that the Sheriff be ordered to = issue a=20 Class I permit for an SOB at 22562 Interstate I-45 North in = response to=20 its March 19, 2001 application. See Harris County = Regulations =A7=A7=20 XII(a), (e)(2). Therefore, I would inquire whether the evidence=20 established Webworld's compliance with the applicable Harris = County=20 Regulations cited by the Sheriff as grounds for denial of the=20 SOBP.

Address

Section=20 VIII(b)(2)(I) of the county regulations provides, "A Class I SOBP = shall be=20 valid only for the address provided in the application." It is = undisputed=20 that both Webworld's original March 16, 2001 application and its = amended=20 April 25, 2001 application certified the address for which the = permit was=20 sought as "22562 Interstate I-45 N."=20 Subsequently, Webworld obtained an address for the enterprise,=20 22565 Interstate North. On = June 19,=20 2001, Webworld wrote the Sheriff acknowledging that the address = was wrong=20 on its SOB application, and it advised the Sheriff of the new = address.=20 However, it did not file an amended application for an SOBP for = 22565=20 Interstate I-45 North.

I = would=20 hold that Webworld failed to comply with the regulatory = requirement that=20 it list a correct address in its SOBP application and that the = Sheriff had=20 no duty to issue a permit for construction of an SOB at an = admittedly=20 incorrect address. Webworld filed no application for an SOBP = listing the=20 correct address. For this reason alone, I would sustain the JNOV. = To hold=20 otherwise, in my view, is to impose an extra-statutory--and indeed = contra-statutory--burden of due diligence on the Sheriff to = ascertain the=20 correct address for which an SOBP is sought and to issue the = permit if an=20 SOB at that address would satisfy county regulations. I = do not=20 believe the Harris County Regulations impose such a duty on the = Sheriff; I=20 believe its plain language imposes a duty of strict compliance on = the=20 applicant for an SOBP.

Location Within=20 1,500 Feet of a "Residence"

Section=20 VIII(e)(4) of the regulations provides that an applicant for a = Class I=20 SOBP must provide a certification that the proposed enterprise = will be=20 located "a minimum of one thousand five hundred (1,500) feet from = any=20 child care facility, school, dwelling, hospital, public building, = public=20 park, or church or place of religious worship." Section VIII(e)(4) = also=20 provides, however, that "[t]his subsection shall apply only to = property=20 uses in existence at that location at least thirty (30) days prior = to the=20 date of application." Section III(o) provides that a "dwelling" is = "a=20 house, duplex, apartment, townhouse, condominium, mobile home or = any other=20 building used as a residence." (Emphasis = added).

Webworld=20 certified that the proposed enterprise would be located a minimum = of 1,500=20 feet "from any child care facility, school, dwelling, hospital, = public=20 building, public park, or church or place of religious worship." = Since=20 this requirement applies only to property uses in existence at = least 30=20 days prior to the date of application, and since the Melvins had = obtained=20 a permit to develop the space over their parrot shop for a = dwelling in=20 1996, had used the space as a dwelling from time to time, and had=20 commenced plans for the development of the property as a dwelling = more=20 than 30 days before Webworld applied for a SOBP, Webworld's = certification=20 that the enterprise would be located a minimum of 1,500 feet from = a=20 dwelling necessarily implied that it did not consider the Melvins' = activities sufficient to constitute the "use" of the property as a = dwelling.

The Sheriff=20 argues that, because the word "use" is not defined in the = regulations, the=20 ordinary meaning of the word should be applied. See Monsanto = Co. v.=20 Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. = 1993). He=20 further argues that the term "use" is broad and means to "put or = bring=20 into action or service; to employ for or apply to a given = purpose."=20 Mount Pleasant I.S.D. v. Lindburg, 766 S.W.2d 208, 211 = (Tex.=20 1980); see also U.S. Steel Corp. v. Fiberglass Specialties, = Inc.,=20 638 S.W.2d 950, 954 (Tex. App.--Tyler 1982, no writ). Therefore, = he argues=20 that the term extends to a property owner's present activities to = develop=20 a property for a planned or intended use, including the Melvins' = seeking=20 permits and developing plans for using the space over their parrot = shop as=20 a residence. He also contends, as he did below, that the = instruction to=20 Jury Question 1 was improper because it did not instruct the jury = to=20 consider that a dwelling includes activities undertaken pursuant = to an=20 intended or planned use of property. Webworld responds that the = Melvins'=20 intent to create a dwelling is not an element of the = Ordinance=20 and is thus irrelevant to the inquiry of whether the parrot shop = was a=20 dwelling whose use as a residence was in existence at least 30 = days before=20 the date of the SOB application.

I = agree=20 with the Sheriff that the prohibition against issuing a permit for = an SOB=20 within 1,500 feet of property used for certain specified purposes = that are=20 "in existence at that location at least thirty (30) days prior to = the date=20 of application" applies not only to fully realized uses of the = property=20 but also to property whose plans for an intended use are "in = existence" at=20 least 30 days prior to the date of the application for an SOB. = Otherwise,=20 as the Sheriff points out, the County could be required to issue a = permit=20 for an SOB within 1,500 feet of a school that had been in = construction for=20 two years but that was not complete 30 days prior to the date of=20 application.

However, I=20 would hold that there must be objective proof of the intended = ultimate use=20 of the property for a purpose specified in section VIII(e)(4) of = the=20 Harris County Regulations and objective proof that, at least 30 = days prior=20 to the date of the application for an SOBP, activities were = underway to=20 prepare the location for the intended ultimate use. In other = words, there=20 must be objective proof that an intended use of the property was = actually=20 "in existence" for a given purpose 30 days before the SOBP was = sought and=20 that a putative intended use is not a mere pretext for denial of a = SOBP.=20 The requirement that the use be "in existence" 30 days prior to = the=20 application for an SOBP seems clearly to have been intended to = preclude=20 the use of a pretext to deny an SOBP, but there is nothing in the = language=20 or the purpose of the regulation to suggest that the Commissioners = intended that a use "in existence" must be a fully realized use, = and,=20 indeed, any such construction of the term would lead to the absurd = results=20 posited by the Sheriff.

The=20 evidence is undisputed that the Melvins applied for a permit = expressing=20 their written intention to construct their residence and business = in the=20 building in 1996 and that they employed active means towards that = intent=20 by constructing plans for the building and by residing over the = parrot=20 shop from time to time. Webworld, not the Sheriff, had the burden = of proof=20 that the SOBP it sought complied with all regulations. I would = hold that=20 Webworld failed to bear its burden of proof that the application = it sought=20 was not within 1,500 feet of a residence whose use was in = existence 30=20 days prior to Webworld's application and that Webworld therefore, = failed=20 to satisfy the requirements for obtaining the Class I SOBP it=20 sought.

Because I=20 would hold that Webworld failed to comply with the Harris County=20 Regulations both by listing an incorrect address in its March 19, = 2001=20 SOBP application and by falsely certifying that the proposed = enterprise=20 would not be located within 1,500 feet of property whose planned = use as a=20 dwelling had been in existence for at least 30 days prior to the = date of=20 the application, I would also hold that the Sheriff had no duty to = issue=20 the SOBP and, indeed, was required to deny it. See Harris = County=20 Regulations =A7=A7 XII(e)(2),(3). Therefore, I would not reach the = Sheriff's=20 third cross-point, i.e., whether the proposed enterprise = would=20 fit on the property for which the permit was sought.








Conclusion

I = would=20 affirm the judgment of the trial court. =






Evelyn V.=20 Keyes

Justice


Panel=20 consists of Justices Nuchia, Keyes, and Hanks.

Justice=20 Keyes, concurring and dissenting.=20

1. See Tex. R.=20 App. P. 41.2 (providing, "En banc consideration of a case is not = favored=20 and should not be ordered unless necessary to secure or maintain=20 uniformity of the court's decisions or unless extraordinary = circumstances=20 require en banc consideration"). This Court = previously denied en banc reconsideration on May 11, 2007. =

2. "The court = of=20 appeals must hand down a written opinion that is as brief = as=20 practicable but that addresses every issue raised and necessary to = final=20 disposition of the appeal." Tex. R. App. P. 47.1 (emphasis=20 added).

------=_NextPart_000_0023_01C7E1BF.41269840 Content-Type: image/gif Content-Transfer-Encoding: base64 Content-Location: http://www.1stcoa.courts.state.tx.us/resource/opinions/images/icoEMail.gif R0lGODlhFAAPAKIAAAAAgIAAAP///8DAwICAgAAAAAAAAAAAACwAAAAAFAAPAAADNCi63P4wykaq vba4Mrr/ndaITxAM5JI2JrotQCwr7jjVDCnPAq7eKwEHRAwWjshkcsJsShIAOw== ------=_NextPart_000_0023_01C7E1BF.41269840 Content-Type: text/css; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Content-Location: http://www.1stcoa.courts.state.tx.us/resource/includes/oca.css .TitleBlue { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .TitleBlueCenter { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: center } .TitleMaroon { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: maroon; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleWhite { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TitleBlack { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .NavWhite { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: white; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.NavWhite:hover { TEXT-DECORATION: underline } .BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } A.BreadCrumbs { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.BreadCrumbs:hover { COLOR: blue } .TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: black; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif } .TextJustify { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = black; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: justify } A.TextNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-DECORATION: underline } A.TextNormal:hover { FONT-WEIGHT: bold } .TextSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow } .TextSmallBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = #000099; FONT-FAMILY: Arial Narrow } .TextSmallJust { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; FONT-FAMILY: = Arial Narrow; TEXT-ALIGN: justify } A.TextSmall { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmallJust { COLOR: #000099; TEXT-DECORATION: underline } A.TextSmall:hover { FONT-WEIGHT: bold } A.TextSmallJust:hover { FONT-WEIGHT: bold } .TextSmallWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: = white; FONT-FAMILY: Arial Narrow } .TextWhite { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: white; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif } A.TextWhite { =09 } A.TextWhite:hover { FONT-WEIGHT: bold } .LinksSite { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow; TEXT-DECORATION: none } A.LinksSite { =09 } A.LinksSite:hover { FONT-WEIGHT: bold } .TextNotify { FONT-WEIGHT: normal; FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0023_01C7E1BF.41269840--