City of El Paso v. Max Grossman, 02-17-00384-CV

Background

Plaintiff Grossman seeks to stop demolition of downtown El Paso buildings, invoking the Texas Antiquities Code (Chapter 191) and requesting declaratory and injunctive relief.
The City plans a downtown Multi-Purpose Performing Arts and Entertainment Center approved by voters; some private owners have contracts to sell properties within the project footprint to the City.
Grossman alleges the City must notify the Texas Historical Commission before demolition under Chapter 191; the City contends the threatened demolitions are by private owners on private land.
The Texas Historical Commission has informed the City that Chapter 191 notice is required only for ‘‘breaking ground on public property’’ and has not acted or claimed a notice violation here.
The City argues sovereign immunity bars Grossman’s UDJA claims under Texas Supreme Court precedent, and that Chapter 191’s notice requirement applies only to land actually owned by a state or political subdivision, not land merely controlled or subject to purchase contracts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Declaratory Judgment Act (UDJA) waives governmental immunity for Grossman’s claims	Grossman relies on Leeper to argue UDJA provides jurisdiction to adjudicate his statutory-rights claims	City argues Sefzik controls: UDJA does not waive sovereign immunity for claims seeking declarations of rights under a statute rather than challenging a statute’s validity	Court should apply Sefzik and dismiss UDJA claims for lack of subject-matter jurisdiction
Whether Chapter 191’s notice requirement applies to properties "controlled" by the City (e.g., under contracts to purchase)	Grossman contends "control" or purchase contracts convert private land into "public land" triggering notice	City contends Chapter 191 is triggered only by projects on land owned by the state or political subdivisions; mere control or contracts do not convert private land to public land	Court should hold Chapter 191 applies only to land owned by the governmental entity; no notice obligation here
Whether administrative rule language ("owned or controlled") expands Chapter 191 to non-owned land	Grossman cites 13 Tex. Admin. Code §29.4(25) to argue "owned or controlled" covers contract-controlled land	City argues administrative rules cannot override or expand the statute’s plain terms; the rule’s "owned or controlled" phrase applies only to non-federal public lands (i.e., owned public lands) and cannot create new statutory obligations	Court should defer to the statute’s plain language and reject expansion by rule
Whether the City’s contingent purchase contracts give it equitable ownership sufficient to trigger Chapter 191	Grossman argues equitable rights from contracts create an "owner" status under the statute	City responds the contracts create, at most, contingent/expectancy interests; equitable title arises only upon full performance/payment, which has not occurred	Court should hold City lacks equitable or legal title now; Chapter 191 not triggered

Key Cases Cited

Tex. Dept. of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011) (UDJA does not waive sovereign immunity for claims seeking declarations of statutory rights)
Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994) (UDJA jurisdictional analysis in a different procedural posture)
Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820 (Tex. 1993) (administrative construction of statutes merits serious consideration if reasonable)
Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist., 52 S.W.3d 495 (Tex. App.—Dallas 2001) (discussion of what constitutes ownership/equitable interests)
Tex. Turnpike Co. v. Dallas Cty., 271 S.W.2d 400 (Tex. 1954) (contract purchaser’s interest described as contingent until full performance)
Atkins v. Carson, 467 S.W.2d 495 (Tex. Civ. App.—San Antonio 1971) (equitable title arises upon full performance under contract)