John Seago v. City of Austin and Spencer Cronk, in His Official Capacity as City Manager of the City of Austin ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00118-CV
John Seago, Appellant
v.
City of Austin and Jesús Garza, in his Official Capacity as City Manager of the City of
Austin, Appellees
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-002897, THE HONORABLE TIM SULAK, JUDGE PRESIDING
MEMORANDUM OPINION
In September 2019, the City of Austin approved a budget for its upcoming fiscal
year that allocated $150,000 to fund entities “providing or facilitating logistical and support
services for Austin residents seeking abortion care.” John Seago sued the City of Austin and its
City Manager 1 alleging that “providing taxpayer money to abortion-assistance organizations”
was inconsistent with and violated Articles 4512.1 and 4512.2 of the Texas Revised Civil
Statutes; Seago contended that these laws were never repealed by the Legislature and remained
enforceable despite Roe v. Wade, 410 U.S. 113 (1973). The City responded that the statutes
were unconstitutional under Roe. The City filed a plea to the jurisdiction, and the parties filed
1 Because the City Manager is sued only in his official capacity, we will refer to him and
the City of Austin collectively as “the City.” When the suit was filed, Spencer Cronk was the
City Manager. We take judicial notice, that on February 15, 2023, Cronk was fired and Jesús
Garza was appointed interim City Manager. We have substituted Garza automatically under
Texas Rule of Appellate Procedure 7.2(a).
cross-motions for summary judgment. Seago appeals from the trial court’s February 11, 2021
order denying his motion for summary judgment and granting the appellees’ plea to the
jurisdiction and motion for summary judgment without specifying a basis. We will reverse the
cause and remand for further proceedings.
After the parties filed their briefs in this appeal, the United States Supreme Court
overruled Roe in Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2284 (2022). We
asked the parties for supplemental briefing on the effect of Dobbs on this cause and this appeal.
The City contends that, because the United States Supreme Court changed the law relied on by
the parties, this Court should reverse and remand for the parties to develop their arguments in
light of the Dobbs opinion. Seago argues that Dobbs did not moot this case or appeal because he
seeks attorney’s fees.
We will follow the example of the Texas Supreme Court, which remanded a
similar case asserting that the City’s allocation of funds challenged here violated the same
unrepealed state law. See Zimmerman v. City of Austin, No. 21-0262, 2022 WL 17998212, at *1
(Tex. Dec. 30, 2022). The Texas Supreme Court concluded that because the lower courts relied
on Roe before it was overruled, “the best approach is to vacate the lower courts’ judgments and
remand the case to the trial court to address in the first instance the effect of this change in the
law—and the effect of any intervening factual developments—on Zimmerman’s claims.” Id.
at *2. 2 Because the parties’ arguments in this cause rested on the applicability of Roe, the trial
court’s judgment on the cross-motions for summary judgment similarly rested on those
arguments. Cf. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993)
2 The Texas Supreme Court vacated the judgment under Texas Rule of Appellate
Procedure 60.2(f), a rule not available to intermediate appellate courts.
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(summary judgment rests on grounds raised in motion). Because the judgment appealed rested
on precedent that was changed while the case was on appeal, a reversal and remand in the
interest of justice is appropriate. See Boyles v. Kerr, 855 S.W.2d 593, 603 (Tex. 1993); Murray
v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Browning Oil Co. v. Luecke,
38 S.W.3d 625, 649 (Tex. App.—Austin 2000, pet. denied).
In the interest of justice, we reverse the judgment and remand for further
proceedings. See Tex. R. App. P. 43.2(d), 43.3; cf. Zimmerman, 2022 WL 17998212, at *1.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Kelly
Reversed and Remanded
Filed: February 28, 2023
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