ACCEPTED

05-17-00879-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

3/27/2018 8:32 AM

LISA MATZ

CLERK

No. 05-17-00879-CV

In the Court of Appeals 5th COURT FILED IN

OF APPEALS

for the Fifth District of Texas3/27/2018 8:32:02 AM

DALLAS, TEXAS

LISA MATZ

Clerk HINGA MBOGO, HINGA AUTOMOTIVE CO., d/b/a HINGA AUTO REPAIR,

and 3516 ROSS AVENUE, DALLAS, TEXAS, in rem,

Appellants,

v.

CITY OF DALLAS, et al.,

Appellees.

PRAECIPE TO OPENING BRIEF OF APPELLANTS

In their initial brief, Appellants mistakenly cite to the dissent in City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 823 (1984). See Appellants’ Br. 30-31. Although that citation is to the dissent in that case, the principle for which it was cited—that aesthetics is not a compelling government interest—has been routinely recognized by courts across the country, as is indicated in Appellants’ brief.

We have corrected pages 30 and 31 of the Opening Brief, and hereby attach them as Attachment A to this praecipe and request that the Clerk of the Court

1 replace pages 30 and 31 of the Opening Brief of Appellants, filed on August 28, 2017, with the attached pages. RESPECTFULLY SUBMITTED this 27th day of March, 2018.

By: /s/Arif Panju

Arif Panju (TX Bar No. 24070380) Robert Gall (TX Bar No. 24101009)

INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE

816 Congress Ave. Suite 960 816 Congress Ave., Suite 960

Austin, TX 78701 Austin, TX 78701

Tel: (512) 480-5936 Tel: (512) 480-5936

Fax: (512) 480-5937 Fax: (512) 480-5937

Email: [email protected] Email: [email protected]

William R. Maurer Ari Bargil

(WA Bar No. 25451)* (FL Bar No. 71454)*

INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE

600 University Street, Suite 1730 2 South Biscayne Blvd., Suite 3180

Seattle, WA 98101 Miami, FL 33131

Tel: (206) 957-1300 Tel: (305) 721-1600

Fax: (206) 957-1301 Fax: (305) 721-1601

Email: [email protected] Email: [email protected]

*Admitted Pro Hac Vice

Counsel for Appellants

2

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 27, 2018, a true and correct copy of the foregoing PRAECIPE TO OPENING BRIEF OF APPELLANTS was filed with the Clerk of Court and served in compliance with Tex. R. App. P. 9.5(b)(1) via the courts electronic filing manager on the following counsel of record:

AMY I. MESSER

Texas State Bar No. 00790705

BARBARA ROSENBERG

Texas State Bar No. 17267700

MELISSA A. MILES

Texas State Bar No. 90001277

KRISTEN MONKHOUSE

Texas State Bar No. 24092853

7DN Dallas City Hall

1500 Marilla Street

Dallas, Texas 75201

Telephone: 214-670-3519

Fax: 214-670-0622

Email: [email protected];

[email protected]; [email protected];

[email protected]

Counsel for Appellees

/s/ Arif Panju .

Arif Panju (TX Bar No. 24070380)

INSTITUTE FOR JUSTICE

Counsel for Appellants

3 ATTACHMENT A

a. The Nature of the Public Interest

In Robinson, the Texas Supreme Court held that the government’s interest in a retroactive law is “evidenced by the Legislature’s factual findings.” Id.at 145. The City made no factual findings in the original ordinance that made auto-related uses illegal in 2005. The ordinance that the City alleges Hinga violated, Ordinance No. 29099, does contain “factual findings,” but these findings only pertain to the fact that the City gave notice and held hearings on the ordinance. Thus, there are no factual findings that discuss the City’s interest here. This alone is sufficient to reverse the district court here.

Nonetheless, one Texas appellate court has held that, regardless of Robinson’s holding, it is appropriate to examine the government’s fact finding to determine whether the government possesses a compelling interest in a retroactive law. Tex. Educ. Agency v. American YouthWorks, Inc., 496 S.W.3d 244, 264 n. 111 (Tex. App.—Austin 2016, pet. filed) (stating that legislative history and other additional facts may be considered in determining whether the government has a compelling interest). What legislative history does exist regarding these ordinances undisputedly demonstrates that the City drove auto related businesses from Ross Avenue to create “urban character” and “upgrade the aesthetic quality of the area” through redevelopment. Promoting aesthetics or physical appearance is not a compelling governmental interest. Neighborhood Enters., Inc. v. City of St. Louis,

30 644 F.3d 728, 738 (8th Cir. 2011); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1267 (11th Cir. 2005); XXL of Ohio, Inc. v. City of Broadview Heights, 341 F.Supp.2d 765, 789-90 (N.D. Ohio 2004); Whitton v. City of Gladstone, 832 F.Supp. 1329, 1335 (W.D. Mo. 1993).

But there is not just an absence of a compelling justification here. The people of this state have also clearly stated that they do not consider violating the property rights of one private party to benefit another private party to be legitimate. In 2009, the people amended article I, § 17 of the Texas Constitution to explicitly prohibit the taking, damaging, or destroying of private property for anyone but the government or the public. The 2009 amendments specifically stated as well that “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 revenues.” Tex. Const. art. I, § 17 (b). This provision started as a legislatively- referred constitutional amendment that passed out of both houses of the Texas Legislature with only one “nay” vote. H.J.R. No. 14 (Tex. 2009). The people passed the amendment by 81% in favor to 19% opposed. See https://ballotpedia.org/Texas_Eminent_Domain,_Proposition_11_(2009).

Thus, not only is promoting aesthetics is not a compelling governmental interest, but Texans have affirmatively (and overwhelmingly) restricted the ability

31