Posted by: Patricia Salkin | October 21, 2012

TX Appeals Court Holds Criminal Nature of Ordinance Restricting The Number of Animals Kept by Property Owner Prevented Review by Civil Court

Wild Rose Rescue is an animal rescue and adoption organization that operates within the City of Whitehouse, Texas.  Whitehouse enacted an ordinance that restricts the number of animals kept by a property owner, unless the owner fits into an exception, such as through being a shelter or veterinarian.  Wild Rose challenged this ordinance on numerous grounds.  Whitehouse objected to the trial court’s jurisdiction, asserting that since the ordinance is penal in nature, the ordinance must be challenged in a criminal court.  The trial court dismissed the action in favor of Whitehouse, and Wild Rose appealed on three grounds.  The Court of Appeals of Texas Affirmed.

First, Wild Rose asserted that the trial court had jurisdiction to consider the declaratory judgment and injunction claims, and, thus, erred when it granted Whitehouse’s plea for jurisdiction – finding it lacked subject matter jurisdiction.  Under Texas law, a civil court cannot entertain a case challenging a criminal statute unless there would be an “irreparable injury to the party’s vested property rights.”

Wild Rose challenged the court’s finding of no jurisdiction in two parts.  First, Wild Rose asserted that the trial court had jurisdiction because the ordinance has a civil component.  Although this may have been true, the court stated that it could still be criminal in nature, preventing jurisdiction.  In review of the claim, the court provided that penal ordinances are those that address harms to the public at large and impose a sanction in response to a violation.  The court found the ordinance is penal in nature because it was authorizes fines and is designed to protect the public health, safety and welfare of the community.

Next, the court addressed Wild Rose’s claim that jurisdiction was conferred due to the irreparable harm to Wild Rose’s vested interests.  Wild Rose asserted that it had a vested interest in the animals on site.  However, the court stated that Wild Rose was concerned with the wrong interest – since the challenged ordinance is a land use regulation, the pertinent interest was Wild Rose’s land use.  The court found Wild Rose did not have a vested interest, because “[p] roperty owners do not acquire a constitutionally protected vested right in property uses once commenced or in zoning classifications once made.”  In addition, even if a vested interest was present, the claim would have failed because the assertion of an irreparable injury was not ripe for adjudication.  Wild Rose claimed the irreparable injury resulted from the lack of an ability to challenge the ordinance once charged with a violation.  However, the court found Wild Rose would have an adequate remedy at law because it could challenge the constitutionality of the ordinance during the criminal proceeding.  The court also considered various exceptions as to whether there was an adequate remedy at law, but found that none conferred jurisdiction on the trial court.

Next, the court addressed Wild Rose’s challenge to the erroneous exclusion of evidence relevant to jurisdiction.  The record indicated that Wild Rose stated it had relevant evidence but failed to proffer or seek the admission of this evidence.  The court held Wild Rose could not challenge the erroneous exclusion of evidence where it failed to first seek to admit the evidence.

For its third issue on appeal, Wild Rose asserted that it should have been permitted to amend its complaint to establish jurisdiction prior to the dismissal of the action.  The court stated that where the plaintiff’s pleading affirmatively negates jurisdiction, the trial court is not obligated to allow an amendment to cure jurisdiction.  The court overruled Wild Rose’s challenge, finding their pleadings negated jurisdiction and that no additional facts cured this defect.

Wild Rose Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211 (Ct. Ap. Tx., July 11, 2012).

The opinion can be accessed here.


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