George Alejos v. State , 433 S.W.3d 112 ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00109-CV
NO. 03-14-00139-CV
George Alejos, Appellant
v.
The State of Texas and VIA Metropolitan Transit Advanced Transportation District,
Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-13-004230, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
OPINION
These consolidated causes are both expedited appeals under chapter 1205 of the
Government Code, which creates a special proceeding whereby “issuers” of “public securities” can
obtain a declaratory judgment—also expedited—as to the legality or validity of such securities and
related official acts.1 In Cause Number 03-14-00109-CV (the “Judgment Appeal”), George Alejos
seeks to appeal a final judgment validating the issuance of approximately $33 million in sales tax
revenue-backed bonds by the appellee, VIA Metropolitan Transit Advanced Transportation
District (the District).2 In Cause Number 03-14-00139-CV (the “Bond Appeal”), Alejos appeals
a subsequent order conditioning his continued participation in the litigation on his posting of a
1
See Tex. Gov’t Code §§ 1205.001–.152; Hotze v. City of Houston, 339 S.W.3d 809,
814–15 (Tex. App.—Austin 2011, no pet.).
2
See Tex. Gov’t Code §§ 1205.065(a)(2) (directing trial court to render judgment),
.068(a)(2) (providing for appeal of trial court’s final judgment).
$3.6 million bond, the amount the district court found to represent any damage or cost that may
occur because of the delay caused by Alejos’s continued participation.3 For reasons we will explain
shortly, we will reverse the district court’s order that is the subject of the Bond Appeal and remand
for further proceedings on that issue. In the interim, the Judgment Appeal will remain pending.
THE ISSUES PRESENTED
The Legislature has instructed us that expedited appeals under chapter 1205 are to be
even more expedited than the panoply of other expedited appeals that Texas courts of appeals handle
nowadays,4 and thus we will cut to the chase of our analysis without crafting a comprehensive
explanation of the case’s underlying facts and procedural history, with which we can assume the
litigants and any other interested persons are familiar. We will similarly assume that any readers are
conversant with the basic procedural framework prescribed by chapter 1205 and the standards
that govern our review. However, we briefly note—because it eventually becomes relevant to our
analysis—that this litigation arises in the context of broader public policy disputes concerning the
use of public funds to finance the construction of transportation infrastructure in the San Antonio
area and, in particular, an ongoing initiative by the metropolitan transit authority serving that area,
the VIA Metropolitan Transit Authority, to plan and construct a “modern streetcar” system. The
legal dispute is essentially about whether VIA can lawfully tap sales-tax revenues raised by the
District—a separate governmental body formed by VIA with voter approval, and with an identical
3
See id. §§ 1205.068(a)(1) (allowing appeal of an order setting bond), .101 (allowing issuer
to seek bond from opposing party), .103 (amount of bond).
4
See id. § 1205.068(e) (providing that appeal “takes priority over” everything except writs of
habeas corpus and directing court to “render its final judgment order or judgment with the least
possible delay”).
2
governing board, that serves as a means of financing certain “advanced transportation” and “mobility
enhancement” projects through the imposition of an additional sales tax within the City of
San Antonio5—to construct “multi-modal” transportation “hubs” that may (or, according to
opponents, are intended to) someday serve as components of the streetcar system.
The key events framing the legal issues presented on appeal are these:
• The District resolved to issue approximately $33 million in bonds, backed by the sales tax
revenues it receives,6 to finance projects that included two multi-modal transportation hubs.
• Before issuing the bonds, the District was required to obtain legal approval (also described
as “preclearance”) from the Office of the Texas Attorney General.7 The Attorney General
declined to approve the bonds, asserting that such use of the sales-tax revenues raised by the
District would violate a binding commitment made by VIA at the time of the District’s
formation that those revenues would not be used to finance “light rail projects.”
• The District filed suit under chapter 1205 to obtain a judicial declaration validating the
legality of the bonds.8 The Attorney General answered and disputed the District’s claim.9
5
See generally Tex. Transp. Code §§ 451.701–.709 (“Advanced Transportation District”).
6
The District retains one-half of the sales-tax revenues to finance its own “advanced
transportation” and “mobility enhancement” projects, but must remit one-fourth to any
“participating” governmental units (here, solely the City of San Antonio) for use in their authorized
projects and retain the remaining one-fourth in an account for use as matching funds required for
obtaining state and federal grants in connection with authorized projects. See id. § 451.702(e). The
bonds here are to be secured by revenues from the District’s one-half share.
7
See Tex. Gov’t Code § 1202.003; Tex. Transp. Code § 451.355(b).
8
See Tex. Gov’t Code § 1205.021. There is no dispute that the District is an “issuer” of
“public securities” who can bring such an action. See id. § 1205.001(1)–(2) (defining both terms).
9
See id. § 1205.063(a) (describing Attorney General’s duties in public security declaratory
judgment actions).
3
• These parties proceeded to trial, which was concluded with a final judgment in the District’s
favor.10 The Attorney General’s Office ultimately agreed to the final judgment and expressly
waived “any right to appeal or otherwise seek relief from this final judgment.”
• Although chapter 1205-compliant notice was provided of their opportunity to do so, no
additional parties filed an answer before trial concluded, nor otherwise attempted to
participate directly in the proceedings before the district court signed the final judgment.11
• However, George Alejos, who falls within the mandatory class of “interested persons” who
are bound by the final judgment,12 timely filed a notice of appeal purporting to challenge
that judgment.13 As previously indicated, we docketed this appeal as Cause No. 03-14-
00109-CV, i.e., the Judgment Appeal.
• At the inception of its suit, the District had filed a motion invoking chapter 1205’s bond
requirement as to any “opposing party or intervenor” other than the Attorney General.14
After Alejos filed his notice of appeal, and while the district court still retained plenary
power over its judgment, the District filed a motion opposing what it characterized as an
intervention by Alejos without the required leave of court15 and, alternatively, a motion to
set bond as a condition for his continued participation in the litigation.
• In response to the District’s motion, Alejos insisted that he was not attempting to intervene
in the proceeding before the district court and that he was not required to do so in order to
appeal the judgment. He similarly contended that he was not subject to chapter 1205’s bond
requirement because it applied only to persons who had answered or intervened in the suit
prior to final judgment.
• Still within its plenary power, the district court held a telephonic hearing and signed an
Order Setting Bond disposing of the District’s motions. In its order, the court noted that
10
See id. § 1205.065(a) (directing trial court to determine each legal or factual question and
render final judgment).
11
See id. §§ 1205.041 (requiring notice to interested persons), .044 (effect of notice), .062
(providing that noticed person may become “named party” by answer or intervention).
12
See id. §§ 1205.041, .151(b) (judgment is binding against noticed persons).
13
See id. § 1205.068(a)(2) (allowing any party to action to appeal trial court’s judgment).
14
See id. §§ 1205.101–.105 (“Security for Issuer”).
15
See id. § 1205.062 (allowing “interested person” to become “named party” by either filing
answer on or before trial date or “intervening, with leave of court, after the trial date”).
4
Alejos had not filed a motion to intervene and that his counsel “both disavowed any
claim that Mr. Alejos is an intervenor and represented to the court that he would not file a
motion to intervene on behalf of Mr. Alejos.” “As neither a named party nor an intervenor,”
the district court continued, “Mr. Alejos and his counsel were not permitted to argue, make
objection, or present evidence regarding the motion before the Court.” However, the court
proceeded to grant the District’s motion to set bond, heard evidence from it on that issue, and
set a bond in the amount of $3.6 million as a condition on Alejos’s continued participation
in the litigation.16
• It is undisputed that Alejos did not post this bond by the statutory deadline eleven days
thereafter.17 Instead, he timely perfected an appeal from the district court’s order setting
bond,18 which we docketed as Cause No. 03-14-00139-CV, i.e., the Bond Appeal.
Alejos brings two issues on appeal, one addressed to each cause. In his first issue,
he urges us to reverse the district court’s Order Setting Bond based on asserted procedural
irregularities. In his second issue, Alejos challenges the district court’s final judgment on the merits.
In addition to contesting Alejos’s appellate issues, the District has moved to dismiss the Judgment
Appeal on two jurisdictional grounds: (1) Alejos is not among the “parties” whom the Legislature
has empowered to appeal the final judgment;19 and (2) Alejos has not complied with the Order
Setting Bond. Inasmuch as the District has questioned our jurisdiction, we should address its
motion first.
16
See id. §§ 1205.101 (allowing issuer to request bond), .103 (amount of bond).
17
See id. § 1205.104(a) (requiring court to dismiss unless bond filed “before 11th day after”
order setting bond amount).
18
See id. §§ 1205.068(a)(1) (allowing appeal of bond order), .105 (same).
19
See id. § 1205.068(a) (allowing “[a]ny party” to appeal).
5
“PARTY” STATUS
The parties agree that, as a threshold matter, Alejos has the right to bring his appeals
only if he satisfies section 1205.068 of chapter 1205, which states that “[a]ny party to an action
under this chapter may appeal to the appropriate court of appeals” “the judgment rendered by
the trial court,” an order setting bond, or an order of dismissal for failure to comply with an
order setting bond.20 The Legislature did not provide an explicit definition of “party” as used in
section 1205.068, and a clear-cut “ordinary” or “plain” meaning of that term is potentially elusive.21
As then-Justice Hecht recently observed in a different statutory context, “the meaning of ‘party’ in
the abstract” can conceivably range from persons who actually participate personally in litigation,
to those named in pleadings but who are never served nor appear, to non-participants who are not
even named but are deemed to be parties through the virtual-representation doctrine.22 But we are
to construe statutory language in context,23 and in doing so we observe that the Legislature uses
“party” elsewhere in chapter 1205 to describe several different categories of persons whom it views
as having an interest in proceedings under that chapter—indeed, virtually every type of “party”
Justice Hecht identified:
20
Id. (emphasis added); see id. §§ 1205.103–.104 (providing for amount of bond and
dismissal for failure to file bond amount).
21
See Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635
(Tex. 2010) (“We rely on the plain meaning of the text, unless a different meaning is supplied by
legislative definition or is apparent from context, or unless such a construction leads to absurd
results.”).
22
Zanchi v. Lane, 408 S.W.3d 373, 381 (Tex. 2013) (Hecht, J., concurring).
23
See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d
619, 628 (Tex. 2011) (“We generally avoid construing individual provisions of a statute in isolation
from the statute as a whole.”).
6
• One “party” the Legislature identifies is the Attorney General, who generally must be served
personally with the petition24 and who “shall examine” the petition and “raise appropriate
defenses.”25
• Another category of “party” consists of a class whom the Legislature considers to be
“interested” in the validation petition and judgment. The Legislature has specified that a
suit under chapter 1205 is “a proceeding in rem”26—a phrase that would ordinarily denote
adjudication of the legal status of the securities themselves and not merely the personal rights
of specific parties before the court27—and a “class action binding on all persons who:
(A) reside in the territory of the issuer; (B) own property located within the boundaries of the
issuer; (C) are taxpayers of the issuer; or (D) have or claim a right, title, or interest in any
property or money to be affected by the public security authorization or the issuance of public
securities.”28 The Legislature terms this class of persons “interested parties” and requires
they be given notice by publication of the trial setting and the opportunity to be heard there.29
It has further provided that the effect of this notice, importantly, is that each class member
is deemed “a party to the action” and that the court is deemed to possess “jurisdiction
over each person to the same extent as if that person were individually named and personally
served in the action.”30 Such “parties” are likewise deemed to be bound by the final
judgment.31
24
See Tex. Gov’t Code § 1205.042.
25
Id. § 1205.063(a); see id. §§ 1205.063(b) (if Attorney General “does not question” the
securities, he may “state that belief” and, “on a finding by the court to that effect, be dismissed as
a party”), .101(a) (bond requirement made applicable to “any opposing party or intervenor, other than
the attorney general”).
26
Id. § 1205.023(1).
27
See Black’s Law Dictionary 864 (9th ed. 2009) (defining “in rem” as “involving or
determining the status of a thing, and therefore the rights of persons generally with respect to that
thing”).
28
Tex. Gov’t Code § 1205.023(2).
29
Id. §§ 1205.041 (notice), .043 (by publication).
30
Id. § 1205.044 (effect of notice by publication).
31
See id. § 1205.151(b)(4) (judgment is “binding and conclusive” against “any party to the
action, whether (A) named and served with the notice of the proceedings; or (B) described by
Section 1205.041(a)”).
7
• A third category of “parties” contemplated by the Legislature consists of class members
who opt to become “named parties.” A class member may “become a named party” either
by (1) filing an answer to the petition at or before the time set for trial in the notice; or
(2) “intervening, with leave of court, after the trial date.”32
• A final permutation in the Legislature’s use of “party” within chapter 1205 appears in
the provisions relating to the bond requirement, contained in subchapter E. The bond
requirement imposes conditions on the continued personal participation in the litigation of
“any opposing party or intervenor, other than the attorney general.”33 Subchapter E further
requires that notice and a motion to set bond be personally served on “the opposing party,
the intervenor, or the party’s attorney,”34 which would seem to confirm both that “party”
includes both “opposing parties” and intervenors and that an “opposing party” would not
include an “interested party” class member who has been entirely absent from the litigation.
The gravamen of the District’s dismissal motion is that the Legislature surely intended
“party” in the context of section 1205.068’s appeal right to mean only persons who personally
participate in the trial court proceedings—i.e., with respect to members of the class of “interested
parties,” only those who file answers or intervene so as to become “named parties”—and not class
members like Alejos who, while deemed a “party” under chapter 1205 in the sense of being bound
by the proceedings, have remained mere spectators through final judgment. The District first relies
on background decisional law, of which courts can presume the Legislature was aware in crafting
chapter 1205 and its statutory predecessors.35 The District emphasizes the general rule that an appeal
32
Id. § 1205.062.
33
Id. § 1205.101(a).
34
Id. § 1205.101(b).
35
See Shook v. Walden, 304 S.W.3d 910, 917 (Tex. App.—Austin 2010, no pet.) (“[W]e
assume that when enacting a statute, the legislature was aware of the background law and acted with
reference to it.”) (citing Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990)).
8
can be brought only by a named party to a suit.36 To the extent unnamed class members have been
permitted to appeal under Texas law, the District further suggests, that right has derived from some
unique injury to the particular member with respect to which the member preserved error before the
trial court, such as by timely objecting to a class settlement.37
Alejos counters that the District is attempting to read limitations into “party”
under section 1205.068 that the Legislature did not itself choose to include. He emphasizes that the
Legislature used “any party” to describe the class of potential appellants in section 1205.068,
not “named party” or “party” with some other qualification or limitation, but just “party.” This
phraseology, Alejos reasons, reflects unambiguous legislative intent to include any and all “parties”
under chapter 1205 in the class of potential appellants under section 1205.068, including all other
members of the class of “interested parties”—each of whom, again, the Legislature explicitly deems
“a party to the action”38—not just those who file answers or intervene so as to become “named
parties.”39 Further, while maintaining that chapter 1205 is sui generis, Alejos points out that Texas
virtual-representation concepts have sometimes been applied to allow unnamed parties to formally
enter the litigation for the first time on appeal in circumstances where the named party formerly
representing their interests settles or the interests otherwise diverge.40 What the Texas Supreme
36
See, e.g., Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965).
37
See City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754–56
(Tex. 2003) (citing Devlin v. Scardelletti, 536 U.S. 1, 8–11 (2002)).
38
See Tex. Gov’t Code § 1205.044.
39
See id. § 1205.062.
40
See, e.g., In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718, 723–29 (Tex. 2006); Motor
Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, 1 S.W.3d 108, 110–11 (Tex. 1999).
9
Court has termed the “most important consideration” in this analysis, Alejos observes, “is whether
the appellant is bound by the judgment,”41 and that is certainly true for him here.42 In short,
Alejos suggests that if virtual representation concepts are relevant to our construction of “party” in
section 1205.068, they confirm that the notion of an “interested party” class member being allowed
to personally participate in the litigation for the first time on appeal is hardly unknown to Texas law
or beyond the conceivable intent of the Legislature.
In reply, the District posits that even if “party” under section 1205.068 would
otherwise unambiguously include class member “parties” like Alejos who did not participate
personally in the trial court proceedings, the sheer number of individuals who could be potential
appellants under this construction reveal it to be an “absurd result” that the Legislature could not
have intended.43 With respect to the bonds it seeks to issue here, the District observes, the class of
“interested parties” (and potential appellants) would include over one million San Antonio residents
and property owners,44 not to mention anyone else who pays sales taxes to the District (e.g., the many
out-of-town visitors to the Alamo or Sea World who make purchases there45). The District urges that
construing the “parties” who can appeal under section 1205.068 to include anyone (and, conceivably,
41
City of San Benito, 109 S.W.3d at 755.
42
See Tex. Gov’t Code § 1205.151(b)(4)(B) (binding noticed parties).
43
See Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011) (declining
to interpret statute in manner that would lead to absurd results) (citing City of Rockwall v. Hughes,
246 S.W.3d 621, 625–26 (Tex. 2008) (“[W]e construe the statute’s words according to their plain
and common meaning . . . unless such a construction leads to absurd results.”)).
44
See Tex. Gov’t Code § 1205.023(2)(A) (“reside in the territory of the issuer”), (B) (“own
property located within the boundaries of the issuer”).
45
See id. § 1205.023(2)(C) (“taxpayers of the issuer”).
10
everyone) in this vast class, even those who had never previously participated personally in the
litigation, would subvert a fundamental public policy long recognized as underlying chapter 1205
as a whole—to “quickly and efficiently” resolve controversies regarding the legal validity of public
securities and related official acts,46 controversies whose mere existence are tantamount to temporary
injunctions barring such securities’ issuance.47 In addition to urging that this potential perceived
parade-of-horribles demonstrates an “absurd result,” the District suggests that “party” may be
ambiguous and that we should construe it in line with these recognized legislative policy goals.48
Alejos responds that the District is instead inviting us to second-guess the legislative policy decisions
reflected in the unambiguous statutory text.
We agree with Alejos for at least three related reasons. The first—and most
critical—is the unambiguous statutory text.49 As Alejos emphasizes, the Legislature quite plainly
allowed “any party to an action under this chapter” to appeal under section 1205.068—not just
“named parties” who participate personally in the trial-level proceedings—and elsewhere it
unequivocally stated that each member of the “interested party” class, however multitudinous that
46
See, e.g., Hotze, 339 S.W.3d at 814 (citing Rio Grande Valley Sugar Growers, Inc.
v. Attorney Gen. of Tex., 670 S.W.2d 399, 401 (Tex. App.—Austin 1984, writ ref’d n.r.e.)).
47
See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 149 (Tex. 1982). In this
respect, as succinctly observed by Chief Justice Pope (evidently quoting the Glaser trial judge, the
late Don Humble), the statute was intended “to stop ‘the age old practice allowing one disgruntled
taxpayer to stop the entire bond issue by simply filing suit.’” Id.; see generally Glaser v. Buckholts
Indep. Sch. Dist., 625 S.W.2d 419 (Tex. Civ. App.—Austin 1981), rev’d, 632 S.W.2d 146.
48
Cf. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 442–43 (acknowledging that
legislative history may inform statute’s meaning, but declining to consider legislative history where
statute at issue was unambiguous).
49
See DeQueen, 325 S.W.3d at 638–39 (relying solely on statutory text and declining to
consider canons of construction in interpreting statute where statute at issue was unambiguous).
11
class might be, is deemed “a party to the action.” When construing statutes, we presume that the
Legislature chose its language with care, with each word included (or omitted) purposefully,50 and
we can only conclude from the Legislature’s chosen language in chapter 1205 that it intended to
include each member of the “interested party” class among the “parties” who may bring appeals
under section 1205.068. In this regard, we note that the First Court of Appeals—apparently the only
court to have addressed such an issue previously—reached the same conclusion, albeit in a slightly
different procedural context.51 The appellant, who was among the class of “interested parties” but
had not participated personally in the proceedings before the trial court, sought to bring a restricted
appeal to challenge the trial court judgment, arguing in part that he was constitutionally entitled to
the restricted-appeal remedy because the expedited appeal under chapter 1205 was available solely
to “named parties.”52 In rejecting that contention, the First Court determined that, despite not
having participated personally at trial, the appellant had been eligible to bring the accelerated appeal
authorized by chapter 1205, and had failed to do so. Its reasoning was similar to our own:
[The appellant’s] argument is contrary to [chapter 1205’s] plain language, which
expressly makes taxpayers (like [the appellant]), to whom the required publication
notice is given, class members in these actions; expressly makes them parties to the
action after the required notice is given, so that the court “has jurisdiction over each
person to the same extent as if that person were individually named and personally
served in the action”; and renders judgments in these actions binding and conclusive
on these individuals, whether or not they were actually named in the proceeding.
50
In re M.N., 262 S.W.3d 799, 802 (Tex. 2008) (noting presumption that “Legislature
included each word in the statute for a purpose” and that “the words not included were purposefully
omitted”).
51
See Narmah v. Waller Indep. Sch. Dist., 257 S.W.3d 267, 275 (Tex. App.—Houston
[1st Dist.] 2008, no pet.).
52
See id.
12
Although parties to whom the required publication notice is given may answer
or intervene, they do not have to do so for the above effects to occur. Finally,
[chapter 1205] allows “[a]ny party to an action under this chapter” to appeal the
judgment—and, as we have explained above, “a party” includes a statutory class
member to whom the required notice was given, even if that person was not
individually named, did not answer, or did not intervene. [The appellant] was thus
eligible to have taken an accelerated appeal from the final judgment under the
authority of section 1205.068.53
Second, we cannot conclude that this construction of “party” under section 1205.068
effects the sort of “absurd result” that would belie the legislative intent otherwise reflected in
the statute’s unambiguous words. As Alejos suggests, the “absurd results” concept is not an open
invitation for courts to second-guess legislative policy decisions in the guise of “construing” statutes,
but a check against blindly narrow and out-of-context readings of statutory language that the
Legislature could not possibly have meant.54 For example, we recently applied the concept in
concluding that the Legislature could not possibly have intended a prohibition against expenditures
of public funds for “political purposes” to mean “political” in the sense of relating to government
or the conduct of government, as that would amount to a mandate that state agencies cease
all activity.55 That is not the sort of situation we have here. Instead, the Legislature’s inclusion of
“interested party” class members in the “parties” who may appeal under section 1205.068, regardless
of whether they become “named parties” during the trial-level proceedings, is consistent with a
53
Id. (internal citations omitted).
54
See T.C.R. v. Bell Cnty. Dist. Attorney’s Office, 305 S.W.3d 661, 671–72
(Tex. App.—Austin 2009, no pet.) (declining to “second-guess” Legislature’s policy judgment under
“absurd-results” principle); see also J. Woodfin Jones, The Absurd-Results Principle of Statutory
Construction in Texas, 15 Rev. Litig. 81 (1996) (discussing history of this principle).
55
See Texans Uniting for Freedom & Reform v. Saenz, 319 S.W.3d 914, 923–29
(Tex. App.—Austin 2010, pet. denied).
13
determined policy choice between two alternative sets of litigation incentives for those class
members who are inclined to take an active role in opposing the issuer’s petition:56 (1) allowing
those class members to remain “on the sidelines” so long as they perceive their interests are
adequately represented by parties participating personally in the proceedings (i.e., the Attorney
General or a named party), with the option of entering the fray, including bringing an appeal, if
and when those parties cease to do so (which is the consequence of our construction); versus
(2) requiring each class member inclined to active participation to become a named party or
risk foregoing any right to seek appellate relief in the event the Attorney General or some
other named party eventually elects not to pursue such relief (which is the consequence of
the District’s construction). The Legislature could well have concluded that the former approach,
which encourages reliance on virtual representation instead of incentivizing prophylactic personal
participation, is a preferable means of advancing chapter 1205’s overarching goals of “quickly and
efficiently” resolving the litigation and related legal uncertainties. It is not an “absurd result.”
Finally, construing chapter 1205 as a whole, we find confirmation that the Legislature
opted to address the potential drawbacks of creating large classes of potential litigants through a
means other than limiting the range of “parties” who can file answers, intervene, or appeal—the
bond requirement imposed in subchapter E.57 And, as we explain below, we conclude that Alejos
is subject to this requirement to the same extent as if he had become a “named party” prior to
final judgment.
56
Which, we would observe, would rarely include, e.g., the entire population of San Antonio
and its visitors who spend money there. However, we acknowledge that a particularly controversial
bond issue in a locality could potentially attract a considerable crowd of active opponents.
57
See Tex. Gov’t Code §§ 1205.101–.105 (provisions of subchapter E).
14
In a final rejoinder, the District suggests that our construction of section 1205.068
would confer jurisdiction on this Court beyond the constitutional limitations on judicial power
reflected in standing doctrine. Standing under the Texas Constitution requires “a concrete injury to
the plaintiff and a real controversy between the parties that will be resolved by the court,”58 and
among other components of these requirements is an injury that is particularized, not merely
common to the “general public.”59 In these ways and others, standing requirements serve to maintain
the proper separation of governmental powers both by preventing courts from issuing advisory
opinions and, with regard to challenges to governmental action in particular, by preventing judicial
incursions into abstract or generalized public policy disputes that are properly resolved in the other
branches.60 They also “reflect in many ways the rule that neither citizens nor taxpayers can appear
in court simply to insist that the government and its officials adhere to the requirements of law . . .
because ‘[g]overnments cannot operate if every citizen who concludes that a public official has
abused his discretion is granted the right to come into court and bring such official’s public acts
under judicial review.’”61
58
Heckman v. Williamson Cnty., 369 S.W.3d 137, 154 (Tex. 2012) (citing DaimlerChrysler
Corp. v. Inman, 252 S.W.3d 299, 304, 307 (Tex. 2008); Neeley v. West Orange-Cove Consol. Indep.
Sch. Dist., 176 S.W.3d 746, 774 (Tex. 2005); Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001)).
59
See Heckman, 369 S.W.3d at 154–55.
60
Bacon v. Texas Historical Comm’n, 411 S.W.3d 161, 174 (Tex. App.—Austin 2013,
no pet.) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 576–78 (1992); Texas Ass’n of
Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).
61
Id. at 174–75 (quoting Andrade v. Venable, 372 S.W.3d 134, 136–37 (Tex. 2012) (quoting
Andrade v. NAACP of Austin, 345 S.W.3d 1, 7 (Tex. 2011)); see Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547, 555 (Tex. 2000).
15
The District questions whether Alejos would possess any particularized injury from
the district court’s judgment when he has not participated personally in the proceedings below
or preserved any error unique to himself. Without such participation, the District suggests, Alejos
possesses merely the same interest shared in common with over one million of his fellow
San Antonio residents (and still more fellow payers of the sales taxes that fund the District). Nor,
the District suggests, could Alejos come within the exception to the particularized injury requirement
permitting “taxpayers” to sue to enjoin allegedly illegal governmental expenditures—i.e., “taxpayer
standing”62—because the expenditures at issue here are funded by the sales taxes the District
receives. As the District observes, the Texas Supreme Court has held that one’s status as a payer of
sales taxes is an interest insufficient to give rise to taxpayer standing.63 At bottom, the District asks
us to classify Alejos as merely an outspoken political opponent of VIA’s streetcar initiative and the
District’s bond issue,64 but not one possessing an interest sufficient to invoke the jurisdiction of
the judiciary to resolve these disputes. Alejos’s complaints instead belong in the other governmental
branches, the District suggests.
Alejos responds that he possesses a justiciable interest in his appeal because
chapter 1205 binds him (like other “interested party” class members) to the district court’s
62
See Williams v. Lara, 52 S.W.3d 171, 179 (Tex. 2001) (“Taxpayers in Texas have standing
to enjoin the illegal expenditure of public funds, and need not demonstrate a particularized injury.”)
(citing Bland, 34 S.W.3d at 556).
63
Id. at 179–80 (holding that “paying sales tax does not confer taxpayer standing”).
64
In this regard, the District emphasizes that Alejos, a San Antonio civic leader, has been
quite prominent in political and public-relations efforts to oppose the District’s bond issue and VIA’s
streetcar initiative, further insinuating that his attempted appeal is merely a stratagem in that broader
policy conflict.
16
judgment.65 But this assertion merely begs the question as to whether Alejos possesses any
constitutionally cognizable interest in the subject matter of the judgment, and it is the existence of
such an interest that the District disputes. But if the District is correct that Alejos for these reasons
lacks standing to prosecute his appeal, the same would also have been true of his participation in the
trial court proceedings, and it would also imply more broadly that chapter 1205’s range of “parties”
who can participate personally in bond-validation litigation, whether at the trial or appellate levels,
will frequently encompass persons lacking constitutional standing to litigate the dispute in court,
potentially conferring jurisdiction on the courts beyond our constitutional limitations.66 But we do
not understand the District to be making this sort of broader challenge to chapter 1205 here; to the
contrary, it argues that Alejos, despite the District’s view that he lacks standing, should nonetheless
have answered or intervened in the trial-level proceedings. In short, the substance of the District’s
arguments regarding Alejos’s standing ultimately go not to the proper construction of “parties”
who may personally participate in litigation under chapter 1205, but to whether constitutional
standing requirements independently bar him from bringing an appeal that section 1205.068
otherwise authorizes.
We need not decide this question of Alejos’s constitutional standing, let alone any
broader implications of the District’s argument, because the Legislature has imposed a separate
65
See Tex. Gov’t Code § 1205.151(b)(4).
66
See Finance Comm’n v. Norwood, 418 S.W.3d 566, 582 n.83 (Tex. 2013) (noting that
Legislature cannot enlarge courts’ constitutional jurisdiction by statute) (citing In re Allcat Claims
Serv., L.P., 356 S.W.3d 455, 462 (Tex. 2011)). Nor would the class-action features of chapter 1205
necessarily resolve such a problem. See Heckman, 369 S.W.3d at 150–51.
17
statutory limitation on our jurisdiction that we should consider first67—chapter 1205’s bond
requirement.
THE BOND REQUIREMENT
Chapter 1205’s bond provisions—subchapter E—state that an issuer may file,
“[b]efore the entry of final judgment,” a motion seeking an order “that any opposing party or
intervenor, other than the attorney general,” be dismissed unless that person posts a bond payable
to the issuer in the event the issuer ultimately prevails to cover “any damage or cost that may occur
because of the delay caused by the continued participation of the opposing party or intervenor.”68
Upon receipt of such a motion, the court shall issue an order, which shall be personally served on
the “opposing party or intervenor” with a copy of the motion, requiring the “opposing party or
intervenor” to appear at a time specified by the court (which must be at least five and not more than
ten days hence) and “show cause why the motion should not be granted.”69 The court “shall grant”
the motion “unless, at the hearing on the motion, the opposing party or intervenor establishes that
the person is entitled to a temporary injunction against the issuance of the public securities.”70 If the
court grants the motion, it must also set the bond “in an amount determined by the court to be
sufficient to cover any damage or cost, including an anticipated increase in interest rates or in a
67
See VanDevender v. Woods, 222 S.W.3d 430, 432 (Tex. 2007) (“Judicial restraint cautions
that when a case may be decided on a non-constitutional ground, we should rest our decision on that
ground and not wade into ancillary constitutional questions.”).
68
Tex. Gov’t Code § 1205.101(a).
69
Id. § 1205.101(b).
70
Id. § 1205.102.
18
construction or financing cost, that may occur because of the delay caused by the continued
participation of the opposing party or intervenor . . . if the issuer finally prevails and obtains
substantially the judgment requested in its petition.”71 Thereafter, “[t]he court shall dismiss an
opposing party or intervenor who does not file a required bond before the 11th day after the date of
the entry of the order setting the amount of the bond,”72 and “[n]o court has further jurisdiction over
any action to the extent that action involves any issue that was or could have been raised in the action
under this chapter,” subject to a limitation not applicable here.73
Although the district court issued a February 25, 2014 “Order Setting Bond” in
purported compliance with these requirements, and it is undisputed that Alejos did not comply with
the order within ten days thereafter—and still has not complied—the district court did not proceed
to dismiss Alejos, evidently in the view that this would interfere with our jurisdiction over Alejos’s
earlier Judgment Appeal. But Alejos’s noncompliance with the bond order potentially implicates
our jurisdiction nonetheless, inasmuch as the Legislature has also provided in subchapter E that
(subject to an exception not applicable here) “no court has further jurisdiction over any action
to the extent it involves an issue that was or could have been raised in the action under this
chapter” if the “opposing party or intervenor” fails to comply within ten days after the date of the
court’s order setting bond.74 Further, while Alejos has appealed the district court’s bond order, the
71
Id. § 1205.103(b).
72
Id. § 1205.104(a).
73
Id. § 1205.104(c).
74
Id. § 1205.105(c); see Hotze, 339 S.W.3d at 820 (in reliance on section 1205.105(c),
dismissing appeals under chapter 1205 for failure to post bond within ten days of trial court’s order
setting bond).
19
Legislature—consistent with its overarching intent to expedite proceedings under chapter 1205—has
provided that such appeals do not change the operation and effect of the original ten-day deadline
for posting bond unless (1) we render judgment modifying the district court’s order setting bond, in
which case the ten-day deadline for Alejos to post bond would run from the date of the modified
order;75 or (2) we reverse the order setting bond outright.76 Consequently, unless we grant Alejos
one of these forms of relief in regard to the Bond Appeal, we must immediately dismiss his
Judgment Appeal for want of jurisdiction.77
In his Bond Appeal, Alejos complains of two sets of asserted procedural irregularities
underlying the Order Setting Bond. The first boils down to a contention that Alejos is not subject
to the bond requirement because he did not participate personally in the litigation until after
final judgment. In Hotze v. City of Houston, we rejected the notion that a bond ordered under
chapter 1205 is intended to protect the issuer only through trial, holding that the “security-bond
provisions apply to both trial and appellate proceedings.”78 We reasoned that while issuers are
required to file a motion to file a security bond prior to entry of final judgment, “nothing in
[chapter 1205] suggests that the security bond is applicable only before trial,” and that the chapter
implied the contrary in tying the bond amount to “whether the issuer ‘finally prevails,’ which
75
See Glaser, 632 S.W.2d at 150–51 (“We construe ‘the appropriate order’ to mean
the trial court’s bond order unless it is modified or reversed on appeal. If the bond order is modified
. . . then contestants have 10 days from that order as the ‘appropriate order’ to post the required bond
or suffer dismissal.”).
76
See id.
77
See Hotze, 339 S.W.3d at 820.
78
Id. at 816.
20
suggests that the bond is intended to be effective through appeal.”79 We further observed that if a
required bond is not timely filed, chapter 1205 mandated that “‘no court’ has further jurisdiction over
any issue that could have been raised in the suit,”a phrase that “would be superfluous at best and
meaningless at worst” if the bond requirement did not apply to any post-trial matters.80 Alejos urges
that Hotze is distinguishable because the litigants there had become “named parties” prior to final
judgment and before perfecting their appeal,81 whereas he did not participate personally in the
litigation until filing his notice of appeal. He further insists that chapter 1205 does not contemplate
that the bond requirements will be applied to persons who were not “named parties” in the trial court.
We disagree.
As previously explained, subchapter E’s bond requirements play an essential role in
ensuring that chapter 1205 as a whole achieves its intended purposes. As we concluded in Hotze,
the Legislature intended these requirements to operate at both the trial and appellate levels. While
Alejos is correct in observing that Hotze itself involved litigants who had become “named parties”
in the trial-level proceedings, our logic would extend equally to any litigants who, like Alejos,
choose to enter the fray for the first time on appeal. But even more significantly, there is additional
textual support for this conclusion in subchapter E that we did not have occasion to address in Hotze.
Contrary to what Alejos suggests, the Legislature in subchapter E made the bond
requirements applicable not to “named parties”—i.e., members of the class of “interested parties”
79
Id. (quoting, with added emphasis, Tex. Gov’t Code § 1205.103(b)).
80
Id. (quoting Tex. Gov’t Code § 1205.105(c)).
81
See id. at 813.
21
who file an answer prior to the trial date or intervene before the final judgment82—but used a
different phrase: “opposing party or intervenor.” We presume that the Legislature intended the
same exactitude in using “opposing party” in subchapter E as it did in its other uses of “party” in
chapter 1205, so its use of “opposing” party here, as opposed to “named” party, is potentially
significant.83 As we have previously observed, subchapter E’s requirement that an “opposing party”
or its attorney be served personally with notice of the bond hearing84 would imply that an “opposing
party” must be an “interested party” class member who has begun to participate personally in
the litigation. As for how a class member must participate in order to become an “opposing party,”
the most obvious answer would be any procedural means through which the member could
litigate against the issuer’s petition under chapter 1205. We have concluded there are three—filing
an answer before the trial date, intervening prior to final judgment, or filing an appeal. While the
first two methods would make the member a “named party” under chapter 1205, the Legislature
made all “opposing parties” subject to the bond requirement, and this would include appellants, in
our view. In short, Alejos is subject to subchapter E’s bond requirement to the same extent as if he
had become a named party.85
82
See Tex. Gov’t Code § 1205.062.
83
See In re M.N., 262 S.W.3d at 802 (noting presumption that “Legislature included each
word in the statute for a purpose”).
84
See Tex. Gov’t Code § 1205.101(b).
85
Alejos also suggests that the District failed to invoke the bond requirement by filing its
motion “[b]efore final judgment.” See id. § 1205.101(a). To the contrary, as previously noted,
the District filed a motion at the inception of its case to set bond against any “opposing party
or intervenor.” In reply, Alejos insists that this motion did not survive the district court’s final
judgment and that the District must rely solely upon the post-judgment motion regarding bond
22
Alejos’s second set of asserted procedural irregularities are that the district court
did not afford him the opportunity for notice and a hearing that subchapter E requires. Alejos is
correct—in fact, in its Order Setting Bond, the district court acknowledges that “Mr. Alejos and his
counsel were not permitted to argue, make objection, or present evidence regarding the motion”
seeking to set bond against him.86 As the Order also reflects, this was a product of understandable
confusion regarding Alejos’s “party” status. Nonetheless, having concluded that Alejos is a “party”
entitled to appeal and who is subject to subchapter E’s bond requirements to the same extent as
“named parties,” we are compelled to agree with Alejos that he was entitled to the notice and hearing
procedures that subchapter E requires before setting a bond. As such, the Order Setting Bond must
be reversed. To this extent, we sustain his first issue.
The District does not seriously dispute that the Order Setting Bond was, in these
respects, procedurally flawed, but urges us to proceed to the merits of Alejos’s Judgment Appeal
nonetheless and affirm the final judgment. We conclude we should not do so, as the Legislature has
conditioned our jurisdiction to reach those merits on Alejos’s compliance with subchapter E’s
bond requirement,87 and that issue has yet to be resolved. Unless and until our jurisdiction over
the Judgment Appeal is firmly established, we should not “jump ahead” to the merits of that
appeal—especially where the merits involve quite significant and complex questions regarding the
that responded to Alejos’s notice of appeal. We conclude that the District’s original motion was
sufficient to preserve its right to bond under subchapter E.
86
Cf. id. §§ 1205.101(b) (court must order opposing party to appear and show cause why
motion should not be granted), .102 (standard for granting bond motion), .103 (determination of
bond amount).
87
Id. § 1205.105(c) (providing that “no court has further jurisdiction over any action” if bond
is not timely posted).
23
District’s legal authority relative to its taxpayers—lest we exceed our proper role within the
constitutional separation of powers.
CONCLUSION
In the Bond Appeal, we reverse the Order Setting Bond and remand that issue to the
district court for a new bond hearing. Consistent with the statutory goals of chapter 1205, we request
that the parties and the district court conduct a hearing as soon as possible in compliance with
chapter 1205 and immediately forward any further order of the district court to this Court. In the
meantime, the Judgment Appeal and the District’s motion to dismiss will remain pending.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
03-14-00109-CV Remains pending
03-14-00139-CV Reversed and Remanded
Filed: April 2, 2014
24