irving bond validation 5thdistrict putnam brief

8/7/2019 Irving Bond Validation 5thDistrict Putnam Brief

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No. 05-11-00036-CV

IN THE COURT OF APPEALSFOR THE FIFTH DISTRICT OF TEXAS

AT DALLAS

EX PARTE THE CITY OF IRVING,TEXAS

REPLY BRIEF OF APPELLANTSJOE PUTNAM AND

IRVING TAXPAYERS OPPOSED TO ILLEGAL ANDWASTEFUL USE OF TAX MONEY

JAMES B.HARRISState Bar No. 09065400

STEPHEN F.FINKState Bar No. 07013500SCOTT P.STOLLEY

State Bar No. 19284350RICHARD B.PHILLIPS,JR.State Bar No. 24032833

THOMPSON &KNIGHT LLPOne Arts Plaza

1722 Routh Street, Suite 1500Dallas, Texas 75201

Phone: (214) 969-1700Fax: (214) 969 1751


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TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Summary of the Arguments . . . . . . . . . . . . . . . . . . . . . . . . . .

Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. The Taxpayers are properly beforethe Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2. The trial courts judgment must bereversed because the EntertainmentCenter is not a hotel project. . . . . . . . . . . . . . . . . . .

A. This Courts decision in the previous appealunder the temporary injunction standard doesnot control its determination in this appeal. . . . . . . .

B. The Entertainment Center Project is not ahotel project just because it includes ahotel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. The district courts judgment mustbe reversed because the City is notentitled to the States portion of themixed-beverage tax. . . . . . . . . . . . . . . . . . . . . . . . .


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B. When read in context, the term govern-mental body does not include the State. . . . . . . . .

C. The City and Las Colinas Group disregardkey legislative history and structural supportfor the Taxpayers construction of section

2303.5055.. . . . . . . . . . . . . . . . . . . . . . . . . . . .

D. The Citys and Las Colinas Groups allegedaids to construction do not support theirinterpretation. . . . . . . . . . . . . . . . . . . . . . . . . .

4. The trial courts judgment must be reversed

because the parking tax and admission taxwere not properly levied. . . . . . . . . . . . . . . . . . . . . .

A. The Citys proposed interpretation of its charteris fatally flawed.. . . . . . . . . . . . . . . . . . . . . . . .

B. The City cannot avoid of the trial courts judgmentby belatedly levying the parking tax and admissiontax in accordance with the Citys charter . . . . . . . . .

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appendices


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INDEX OF AUTHORITIES

CASES

Brown v. De La Cruz,156 S.W.3d 560 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . .

Burks v. Yarbrough,

157 S.W.3d 876 (Tex. App.Houston [14th Dist.]2005, no pet) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C & H Nationwide, Inc. v. Thompson,903 S.W.2d 315 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . .

City of Bells v. Greater Texoma Util. Auth.,

790 S.W.2d 6 (Tex. App.Dallas 1990, writ denied) . . . . . . . .

Entergy Gulf States, Inc. v. Summers,282 S.W.3d 433 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . .

Farmers Cnty. Mut. Ins. Co. v. Romo,250 S.W.3d 527 (Tex. App.Austin 2008, no pet.) . . . . . . . . .

Hammond v. City of Dallas,712 S.W.2d 496 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . .

In re Doe,19 S.W.3d 346 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . .

Kasten v. Saint Gabion Performance Plastics Corp.,No. 09-834, 2011 WL 977061 (U.S. March 22, 2011) . . . . . . . . .

LTS Charter School, Inc. v. Palasota,293 S W 3d 830 (T A D ll 2009 fil d)


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Mid-Century Ins. Co. v. Tex. Workers' Compensation Commn,187 S.W.3d 754 (Tex. App.Austin 2006, no pet.) . . . . . . . . .

Moore v. Coffman,200 S.W. 374 (Tex. 1918) . . . . . . . . . . . . . . . . . . . . . . . . .

Ohnesorge v. Winfree Academy Charter School,328 S.W.3d 654 (Tex. App.Dallas 2010, no pet.) . . . . . . . . . .

Putnam v. City of Irving,No. 05-10-01269-CV, 2011 WL 259478(Tex. App.Dallas Jan. 27, 2011, pet. filed) . . . . . . . . . . . . .

Smith Cnty. v. Thornton,726 S.W.2d 2 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . .

Vosburg v. McCrary,77 Tex. 568, 14 S.W. 195 (1890) . . . . . . . . . . . . . . . . . . . . .

Welch v. McLean,

191 S.W.3d 147 (Tex. App.--Fort Worth 2005, no pet.) . . . . . . .

STATUTES

IRVING TEX.,CHARTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TEX.GOV'T CODE ANN. 1205.021(Vernon 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



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TEX

.G

OV'T

CODE

ANN

. 2303.502(Vernon 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


TEX.GOV'T CODE ANN. 2303.504

(Vernon 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .




RULE

TEX.R.EVID. 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


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SUMMARY OF THE ARGUMENTS

The Citys proposed development, to be built with public mone

performance hall project or a restaurant project or an entertainment

with only twelve hotel rooms designed to sleep 32 (3 RR 83), it is

project. And if it is not a hotel project, it is not entitled to receive unde

section 351.102(c) the approximately $141 million in State taxes that t

pledged to repayment of the bonds to be issued to finance constructi

the final judgment would allow.

Even if the Entertainment Center were a hotel project, it wou

qualify for a refund of the States share of the mixed-beverage taxes i

The record here does not show that any hotel project has ever receive

of the States share of the mixed-beverage tax under Government C

2303.5055. That fact is consistent with the Comptrollers longstandi

that section 2303.5055 does not provide statutory authority to refund

from general revenue. It is also well supported by the words that su

phrase governmental body in section 2303.5055, by the st

Government Code chapter 2303, and by the legislative history for t


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Finally, before City taxes can be used to repay the bonds, they

levied in accordance with the Citys charter. Here a parking tax and

tax were adopted at a special meeting of the city council, not a regular

the charter requires. Because the final judgment validates and pr

illegality, the judgment must be set aside.

ARGUMENTS

1. The Taxpayers are properly before the Court.

Although this Court has already denied the Citys motion to d

City insists that the Taxpayers should not be parties to this appeal. (C

29-32.) The Citys only new argument is that the Taxpayers delayed

petition for review in the Supreme Court. (Id. at 31.) But the Taxpayer

and received only a two-week extension. The petition for review w

March 28 and is under consideration by the Supreme Court. Mo

Taxpayers asked for the short extension because of a long-planned f

and the City did not oppose the motion. Therefore, the City should

heard to complain about it. The rest of the Citys arguments were rai

motion to dismiss, and have already been rejected. Because the Taxp


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provides. TEX. GOVT CODE ANN. 1205.068, 1205.104(b), 1205.1

2000).

2. The trial courts judgment must be reversed because theEntertainment Center is not a hotel project.

A. This Courts decision in the previous appeal under the tempinjunction standard does not control its determination in thi

The Taxpayers have argued that a decision reviewing the d

temporary injunction does not decide the case on the merits b

standards of appellate review are different. (Taxpayers Br. at 9.) The

response is to claim (without citing any authority) that this situ

exception because the trial was complete when the district court ente

judgment.1 (Citys Br. at 33.) But the Bond Validation Act require

about imposing a security bond to be decided under a temporary

standard whatever the status of the trial proceedings. TEX.GOVT CO

1205.102 (Vernon 2000).

Moreover, in the previous appeal this Court did not decide w

Code section 351.102(b) requires that the City show that there is a hot

not simply a hotel, to qualify for the refund of certain state taxes


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decision assumed, without discussion, that so long as there was a h

size in the project, section 351.102(b) was satisfied provided that all

hotel components were described in that section and were within 1,0

hotel or a convention center facility. Putnam v. City of Irving, No. 05-10

2011 WL 259478 at *5-6 (Tex. App.Dallas Jan. 27, 2011, pet. filed).

found those conditions either satisfied or not disproved. Id. But the

have consistently argued that the presence of a hotel does not necessa

the existence of a hotel project, at least in the context of Tax Code ch

The City also ignores a key distinction between the two appeals

Taxpayers attempted to meet the temporary injunction standard

imposition of the bond, they bore the burden of proof. Putnam, 2011

at *5 (noting that the Taxpayers had not put on evidence to support o

contentions). But with respect to the final judgment, it is the City tha

burden of proof. TEX.GOVT CODE ANN. 1205.021 (Vernon 2000) (not

City is the plaintiff). That difference in the burden of proof is further

this Court to revisit the ruling on hotel project.

B. The Entertainment Center Project is not a hotel project jusit includes a hotel


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City appears to assume that the Entertainment Center is a hotel proj

because it includes a hotel. (Citys Br. at 34.) The Taxpayers earlier Di

example alone disproves that argument as a matter of grammar an

usage. (Taxpayers Br. at 12-13.)

Sidestepping once again grammar and ordinary usage, the City co

any hotel at a development, no matter how small, creates a hot

relying on the statements of Senator Harris in a post-enactment lette

for litigation. (Citys Br. at 34.) That approach is fruitless for at least tw

First, Senator Harris after-the-fact statements about the inte

amendments in S.B. 1247 are not legislative history and provide little g

to what the legislature collectively intended. Entergy Gulf States, Inc.

282 S.W.3d 433, 443-44 (Tex. 2009) (citing In re Doe, 19 S.W.3d 346 (

Brown v. De La Cruz, 156 S.W.3d 560, 568 n.45 (Tex. 2004); In re Doe

346, 352 (Tex. 2000); C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 31

1994) (Hecht, J., concurring and dissenting) (citations omitted); L

School, Inc. v. Palasota, 293 S.W.3d 830, 836 (Tex. App.Dallas 2009,

Welch v. McLean, 191 S.W.3d 147, 169-70 (Tex. App.Fort Worth 200


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March 2, 2009, the development agreement between the City and the

Group made no mention of hotel rooms. (DX 3.) Therefore, S.B. 124

have contemplated a hotel that the Las Colinas Group was not co

required to build. Moreover, as introduced by Senator Harris, S.B.

only one change to Tax Code section 351.102. (App. Tab P at 5.) It w

changed the definition of central municipality to include cit

population of more than 325,000. (Id.) That change would not have a

City of Irving. (PX 3.) S.B. 1247 remained unchanged when it was repo

the Senate Economic Development Committee, which Senator Har

(App. Tab P. at 4, 6.)

The changes to section 351.102 on which the City relies were all ad

1247 in the House, under the sponsorship of Representative Paula Pei

Tab P at 3.) Nothing in the legislative history of S.B. 1247 in the Hous

any of Senator Harris comments in his letter. (App. Tab O.) S.B

modified by the House and returned to the Senate on the second-to

the Session. (App. Tab P at 1.) It did not return to the Senate

Development Committee. (Id.) The full Senate concurred in


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Harris says, those changes should have been included in the version h

that was approved by his Senate committee. They were not. Becau

Harris was not involved with the House amendments, he is in no

describe from personal knowledge the intent of the amendments

although Senator Harris now claims that S.B. 1247 was specifically i

benefit Irving, he had nothing to do with the amendments that the

were intended to benefit it, and the published legislative history

disclose the intended purpose of amendments adopted by t

Undisclosed intent cannot be treated as controlling legislative history.

The Taxpayers do not dispute that ifthe project were a hotel pr

funding under section 351.102(b) might be proper. Instead, the

argument focuses on the threshold issue whether the proje

characterized as a hotel project at all. The Taxpayers argument is

plain usage. Because hotel is the adjective that modifies project,

can be a hotel project only if the hotel is the defining character


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project. (Taxpayers Br. at 11-12.)3

The Courts recent decision in Ohnesorge v. Winfree Academy Cha

328 S.W.3d 654 (Tex. App.Dallas 2010, no pet.) directly su

Taxpayers argument based on grammar and ordinary usage. The Cit

that if the Taxpayers truly thought Ohnesorge controlled this case, t

have cited it in their motion for rehearing in the previous appeal. (C

35.) The Taxpayers did. (Motion for Rehearing at 15.) The City also

the analysis in Ohnesorge is limited solely to its facts. (Citys Br. at 35-3

words, the City suggests that because this case does not involve a cha

claiming to be a public school district, Ohnesorge provides no guidan

Taxpayers rely on Ohnesorge for principles of statutory construction, a

has made no effort to explain why those principles do not apply here.

3. The district courts judgment must be reversed because tnot entitled to the States portion of the mixed-beverage tax

A. Section 2303.5055 of the Government Code has never been to authorize a refund of the States share of the mixed-bever

The Comptroller has consistently taken the position that Govern

section 2303.5055 does not authorize the refund of the States share of


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and it was most recently reaffirmed at a hearing before the House

Means Committee on Monday, April 4, 2011. The House Ways

Committee was considering a bill sponsored by a state representa

district includes a portion of Irving.4 Among the changes included in

a revision of the term governmental body in section 2303.5055 to

State. In other words, one purpose of the bill was to change the law t

Citys position in this appeal. A lobbyist for the City told the commit

proposed amendment would not change existing law. A committee m

called on a representative of the Comptrollers Office, who was p

resource person, to respond. That representative said the proposed a

would change the law, making the States share of the mixed-be

available for refund for the first time. 5

That Section 2303.5055 in its present form does not authorize th

4 The bill is authored by Rafael Anchia of District 103. A map of Dboundaries is attached at Appendix Tab Q. The text and current statusH.B. 3341 can be found at Texas Legislature Online (http://www.capius) by searching for H.B. 3341 in the Regular Session of the 82nd Legis

5 The audio recording of this hearing is available at Texas Legislat(http://www.capitol.state.tx.us), by clicking on the link for House vid


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the States share of the mixed beverage tax is also demonstrated b

offerings of Houston, San Antonio, and Dallas for their bona fide hot

under Tax Code section 351.102(b). Although those bond offerings are

the record, they were included by the City as an appendix to its brie

them includes a pledge of the States share of the mixed-bevera

repayment, although in one case, the local share of the mixed-beve

pledged for repayment.7 Therefore, there is no evidence that any hote

Texas has ever received a refund of the States share of the mixed-beve

With this background in mind, it is not surprising that Senator H

is at best equivocal about the Citys entitlement to the States share of

beverage tax. That letter does say that Senator Harris thought the Ci

6 The City also chose to be very selective in what it included. The Thave attached relevant and material sections of the bond offerings left City. For instance, this Court may be interested in what a bona fide hotelooks like, so renderings that are part of the bond offerings are includeAppendix Tabs R, S, T, and U. The full bond files comprise several hunpages each and are available at http://www.emma.msrb.org. The bonbe found by entering the proper CUSIP into the Muni Search box. Tare as follows: (1) for the Houston project: 44237N, (2) for the San Antoproject: 796245; (3) for the Dallas project: 235417.


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would be eligible for all refunds of state taxes covered by 2303.

Government Code including mixed beverage taxes. (PX 22.) But it

explicitly that the States share of the mixed-beverage tax is in fact

Section 2303.5055. (Id.)

To remedy that omission, the City represents that section 230

amended in 2009 to allow municipalities to receive the States por

mixed-beverage tax, and that Senator Harris intended the amendm

that result. (Citys Br. at 26-27) But section 2303.5055 was not amended i

GOVT CODE ANN. 2303.5055 historical note (Vernon 2008) (notin

statute was added in 1995 and has never been amended). In particula

makes no reference to any changes to section 2303.5055. (App. Tab P

there was no amendment to section 2303.5055, Senator Harris coul

intended any result. Therefore, the Citys reliance on Senator Harris

intent is inexplicable.

B. When read in context, the term governmental body does nthe State.

The City and the Las Colinas Group argue that the words go

body unambiguously include the State (Citys Br at 21-22; LCGs


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different things. (Taxpayers Br. at 21-25.) Instead, the correct ques

meaning of section 2303.5055 as a whole. In other words, what do

governmental body mean in the context of the statute in which they

As Justice Scalia demonstrated in a recent opinion, the conte

greatly to meaning. In Kasten v. Saint Gabion Performance Plastics Co

834, 2011 WL 977061 (U.S. March 22, 2011), the issue was whether

filed any complaint includes an oral complaint. The plaintiff argue

complaint unambiguously includes every type of complaint. As Ju

observed, in dissent, although the words any bank standing alone

unambiguously comprehensive, the phrase to cash a check in any

not refer to a riverbank, or even a bloodbank. Id. at *14. In contex

ordinarily unrestrictive any does not expand the meaning of the w

to include something other than a financial institution.

Likewise here, the words governmental body standing alone

unambiguously comprehensive to that ordinary citizen invoked by

statute book in one hand and a dictionary in the other who suppose

the meaning of a statute by looking up each word in it independently


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conclude, as have the Taxpayers, that in the context of section

governmental body must be limited to local entities and not the Stat

C. The City and Las Colinas Group disregard key legislative hstructural support for the Taxpayers construction of section

The Taxpayers identified multiple reasons that governmenta

section 2303.5055 does not include the State. (Taxpayers Br. at 21-31

addresses (and attempts to explain away) some of those reasons. (City

28.) But the City ignores four of the Taxpayers arguments. The only

conclusion to draw from this omission is that the City cannot r

proposed construction with the arguments.

The City fails to address or respond to the following points:

Government Code section 2303.5055 was enacted in the same Code section 151.429(h). The Citys construction of Governsection 2303.5055 would render Tax Code section 151.429(h) because both statutes would address the States portion of saand hotel occupancy taxes. (Taxpayers Br. at 25-26.)

The bill analyses for the bill that enacted section 2303.5055 emphasize that the bill would permit local taxing entities to rhotel occupancy tax, local sales and use tax, local mixed beveralocal ad valorem taxes. (Id. at 27 (the bill analyses are incluTaxpayers appendix at Tabs J, K, L, and M).)


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The Austin Court of Appeals decision in Farmers County MutuCompany v. Romo, 250 S.W.3d 527 (Tex. App.Austin 200

supports the Taxpayers interpretation of section 2303.5055. (IdThe case does not appear in either the Citys or Los Colinas Groof authorities. (Citys Br. at iv; LCGs Br. at iii.)

D. The Citys and Las Colinas Groups alleged aids to construcsupport their interpretation.

The City and Las Colinas Group offer their own arguments

legislative history and the structure of chapter 2303, but these cont

unavailing. None of the Citys or Las Colinas Groups points sup

argument that governmental body must include the State.

Both the City and Las Colinas Group rely on a failed attempt

section 2303.5055 (Citys Br. at 26; LCGs Br. at 22.) This argument fa

reasons. First, the Texas Supreme Court has repeatedly held that

legislation is of no help in ascertaining legislative intent. E.g., Entergy

Inc. v. Summers, 282 S.W.3d 433, 442-43 (Tex. 2009). Second, the fa

proposed amendment was removed from the bill is equally consiste

Taxpayers interpretation. If, as the City suggests, the 75th Legislatu

to limit section 2303.5055 to local taxing entities, the proposed amen

have been abandoned simply because the Legislature conclude


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Government Code chapter 2303 in arguing that the structure sup

interpretation. They assert that because 2303.505 is explicitly limit

taxes, and other sections 2303.502, 2303.503 and 2303.504 are explic

to state entities or taxes, the inclusion of local entities in section

without mentioning the State, means that section 2303.5055 include

(Citys Br. at 27-28; LCGs Br. at 17-20.)

But the structure actually supports the Taxpayers. Section 2303.50

both state and local regulation. TEX.GOVT CODE ANN. 2303.501 (Ve

Then, sections 2303.502, 2303.503, and 2303.504 all address the

2303.502 (addressing state agency rules); id. 2303.503 (addre

preferences); id. 2303.504 (addressing state tax refunds). Sections 23

2303.506 address local entities. Id. 2303.505 (addressing local sales a

refunds); id. 506 (addressing reduction or elimination of local fees

Sandwiching section 2303.5055 between sections 505 and 506 logical

and, in fact, should compel an interpretation that it, too, appl

local entities.

4. The trial courts judgment must be reversed because the pd d i i t t l l i d


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admission tax were passed at a special meeting. (Citys Br. at 37.) B

claims that this is permissible under the charter. (Id. at 37-38.)

argument is that an order is the same thing as an ordinance and

permits orders to be passed at special meetings. (Id.) The charter state

resolutions or orders may be passed at any regular meeting or may b

any special or called meeting called for that purpose. IRVING,TEX.CH

IV, 17 (attached as App. Tab N to the Taxpayers Brief). But

arguments in support of this interpretation cannot withstand scrutiny

First, the Citys interpretation violates the fundamental rule of c

that when drafters use two different words, they are intended to hav

meanings. See, e.g., Hammond v. City of Dallas, 712 S.W.2d 496, 498

(holding that in construing a city charter, the court must consider e

phrase, and expression as if each had been deliberately chosen and

purpose); Putnam v. City of Irving, No. 05-10-01269-CV, 2011 WL 2

(Tex. App.Dallas Jan. 27, 2011, pet. filed) ([C]onstruing o

ordinances to mean the same thing would render meaningless the

word order in article IV, section 17 of the Citys charter.).


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declared an emergency measure, shall ever be passed at a called m

may be passed at any regular meeting of the council unless otherwise

IRVING,TEX.CHARTER,art. IV, 17. This sentence categorically bars t

of ordinances at called meetings unless the ordinance is an emergency

But this bar would be rendered meaningless by the next sentence in th

the City is correct, because the next sentence permits all orders to b

called meetings. Id.

Third, the Citys interpretation is internally inconsistent. To avo

one of the sentences meaningless, the City claims that the two sentenc

mean that all ordinances, orders, and resolutions can be passed at eit

meetings or special meetings, but only emergency measures can be

called meetings. (Citys Br. at 37.) But that interpretation ignores

language of the last sentence, which states that all orders may b

any special or called meeting. Therefore, if order and ordinance mea

thing, then even nonemergency ordinances could be passed at called m

Fourth, the City incorrectly claims (without any citation to auth

the City Council does not pass orders at all. (Citys Br. at 38.) Thi


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functions. See Vosburg v. McCrary, 77 Tex. 568, 14 S.W. 195, 196 (1890)

the city councils adjudicative function to resolve election contests

Coffman, 200 S.W. 374, 375 (Tex. 1918) (describing a city councils a

function to direct that an election be held).

Finally, it is of no moment that the City has acted on it

interpretation in the past. (Citys Br. at 38.) Section 17 is not ambiguou

Court need not give any weight to the Citys alleged prior construc

section. Cf. Mid-Century Ins. Co. v. Tex. Workers Compensation Commn,

754, 758 (Tex. App.Austin 2006, no pet.) (noting that an adm

agencys interpretation of a statute is not entitled to any defere

interpretation contradicts the statutes plain language).

B. The City cannot avoid reversal of the trial courts judbelatedly levying the parking tax and admission tax in with the Citys charter.

Recognizing the weakness of its proposed interpretation, the City

that it can and will place the ordinances on a future agenda and re-a

in order to remove any suggestion that the original levying of th

approved taxes was improper. (Citys Br. at 40.) This might have


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judgment expressly declares that the Citys Ordinances levying the P

and the Admission Tax have been duly and validly enacted by the Ci

and the City is authorized to enforce the collection thereof pursua

ordinances and in accordance with their terms. (6 CR 1284 (attach

Tab A to the Taxpayers Brief).) Because the trial court erred in val

August 25 ordinances, the judgment must be reversed.

The City presents no authority for its argument that passing new

can somehow rectify the trial courts error in validating the

ordinances. The open meetings act cases cited by the City are inapposi

the cases involved an appeal of a judgment purporting to declare the

action valid. Instead, the cases stand for the proposition that action

violation of the open meetings act do not preclude the same action

taken in the future, if the action then complies with the open meeti

Smith Cnty. v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986); Lower Colorado Ri

City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975); Burks v. Yarbrough,

876, 883 (Tex. App.Houston [14th Dist.] 2005, no pet); City of Bell

Texoma Util. Auth., 790 S.W.2d 6, 11 (Tex. App.Dallas 1990, w


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retrospectively to validate the prior invalid action. 523 S.W.2d at 6

action could be valid only prospectively after it was taken in complian

open meetings act.

The Taxpayers do not deny that the City may re-adopt the ordi

regular meeting. But because the City did not do so before the jud

signed, the City would have to seek a new judgment validatin

ordinances. Any future action cannot retrospectively validate the

ordinances. And because those ordinances were specifically valida

judgment, the ordinances must stand or fall on their own merits.

The City also argues that chapter 1205 permits the City to seek

validating proposed ordinances. (Citys Br. at 40.) But that p

immaterial here, because the City did not obtain such a judgment. Th

does not purport to validate any proposed ordinances regarding the p

or the ticket tax. It validates only the ordinances purportedly adopted

25.

Finally, this Court should not affirm the judgment based on

future action by the City Council. The City has provided no eviden


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ordinances would be adopted. The City should not be able to obtain v

these ordinances until they have actually been adopted in accordan

Citys charter.

CONCLUSION

At the end of the day, reasonable people can disagree about w

Entertainment Center is a good idea. Some may think it is unwise, b

does not prevent cities from doing unwise things. It does prohibit

doing illegal things. And when a city is proposing to do someth

Courts must step in regardless of how well intentioned the public pro

from a municipal development standpoint.

Here, pledging State taxes to refund the citys bonds where

statutory authority to do so is illegal. Likewise, pledging local taxes th

been properly imposed is illegal. The Taxpayers ask that the Court app

find certain taxes are not legally available, and reverse the judgment

the bonds. The Taxpayers further request general relief.


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Respectfully submitted,

THOMPSON &KNIGHT LLP

By: _______________________James B. HarrisState Bar No. 09065400

Stephen C. FinkState Bar No. 07013500

Scott P. StolleyState Bar No. 1928450

Richard B. Phillips, Jr.State Bar No. 24032833

One Arts Plaza1722 Routh Street, Suite 1500Dallas, Texas 75201-2533Phone: (214) 969-1700

Fax: (214) 969-1751

Counsel for AppellantsJoe Putnam andIrving Taxpayers Opposed toand Wasteful Use of Tax Mo


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CERTIFICATE OF SERVICE

On April 11, 2011, a copy of this brief was served on the followingcertified mail, return receipt requested:

Michael L. RaiffGibson Dunn & Crutcher, LLP2100 McKinney AvenueDallas, Texas 75201

COUNSEL FOR THE CITY OF IRVING

David J. SchenckDeputy Attorney General foCounselP.O. Box 12548

Austin, Texas 78711-2548

COUNSEL FOR THE ATTORNEYOF TEXAS,PUBLIC FINANCE D

E. Ray HutchisonVINSON &ELKINS LLP2001 Ross Avenue, Suite 3700Dallas, Texas 75201

COUNSEL FOR THE CITY OF IRVING

_____________________________Richard B. Phillips, Jr.

504915 000008 DALLAS 2728419.1


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irving bond validation 5thdistrict putnam brief

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