Grossman v. City of El Paso

Decision Date10 November 2021
Docket Number08-19-00272-CV
Citation642 S.W.3d 85
Parties Max GROSSMAN, Appellant/Cross-Appellee, v. CITY OF EL PASO, Appellee/Cross-Appellant.
CourtTexas Court of Appeals

ATTORNEYS FOR APPELLANT/CROSS-APPELLEE: Lisa Hobbs, Kuhn Hobbs PLLC, 3307 Northland Dr. Ste. 310, Austin, TX 78731-4969, Carlos E. Cardenas, Attorney and Counselor at Law, 717 E. San Antonio, Third Floor - Toltec Building, El Paso, TX 79901.

ATTORNEY FOR APPELLEE/CROSS-APPELLANT: Mark N. Osborn, Kemp Smith LLP, 221 N. Kansas, Suite 1700, El Paso, TX 79901.

Before Rodriguez, C.J., Palafox, and Alley, JJ.


GINA M. PALAFOX, Justice By enacting the Antiquities Code of Texas (the Code), Chapter 191 of the Texas Natural Resources Act, the Legislature declared it the public policy of the State of Texas, and in its public interest, to locate, protect, and preserve, "all sites, objects, buildings, pre-twentieth century shipwrecks, and locations of historical, archeological, educational, or scientific interest," within the jurisdiction of the State.1 And, such preservation interest extends to "prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites," or objects related thereto, which are located in, on, or under any land in the State.2 To effectuate this policy and state interest, the Code further provides that citizens of Texas may bring an action for injunctive relief to enjoin violations or threatened violations of provisions of the chapter.3

This case concerns such an action brought in the context of a plan by the City of El Paso to build a multipurpose facility in a downtown neighborhood, on city-owned land.4 Appellant Max Grossman, a Texas resident and associate professor of art and architectural history at the University of Texas-El Paso, alleges the City is violating or threatening to violate provisions of the Code with regard to the archeological survey planned for the downtown project. Based on newly published research drawn from historic letters archived in Spain, Grossman learned of a Mescalero Apache peace camp existing, during the late 1700s, in the same area as the site now planned for the facility. By his live pleading, Grossman asserts the survey—in its current form—fails to properly account for the State's interest in locating, preserving, and protecting the archeological remains and resources of the newly identified peace camp. Seeking temporary injunctive relief to preserve the status quo and prevent a violation (or threatened violation) of the Code, Grossman alleges the City is obligated not to commence the project—including demolition of any currently existing buildings—until a valid archeological survey is completed. Without such relief, Grossman asserts the remains and resources of the historic peace camp will be lost forever. Because the City does not dispute the existence or location of the peace camp, or that the survey currently does not account for its existence, Grossman asserts the trial court abused its discretion in denying his application for a temporary injunction pending trial on the merits.

Opposing this claim, the City asserts several arguments. First, the City questions the need for any survey revisions arguing the research design and scope of work do recognize the potential for locating Native American artifacts in general. Second, the City argues that the Texas Historical Commission—as the supervising agency over the permit—requested no changes to the survey after Grossman himself informed the agency of the breakthrough discovery. Third, on legal grounds, the City asserts that Grossman's claim is barred by governmental immunity, or res judicata, or both. And, based on prior litigation involving the financing of the project, the City further asserts the claim will be dismissed due to a permanent injunction against the filing of any suits. Lastly, on equitable grounds, the City questions Grossman's motive, claiming he is principally interested in preserving the buildings of the construction footprint, not the potential remains of the historic peace camp.

Following an evidentiary hearing, the trial court denied the City's plea to the jurisdiction and Grossman's application for a temporary injunction. On interlocutory cross-appeal, the parties challenge both of those rulings. Because we conclude the primary objective of the Antiquities Code is to effectuate the State's interest in preserving archeological sites and objects—including historic American Indian campsites or dwellings—we affirm the denial of the plea to the jurisdiction. And because we further find the evidence established a right to preserve the status quo of the subject matter of the suit pending a trial on the merits, we reverse the trial court's order denying Grossman's request for a temporary injunction and remand the cause to the trial court with instructions that it grant the temporary injunction.


At this time, the parties agree the City's planned project is located on public land and therefore subject to permit requirements set forth by the Antiquities Code of Texas. For context, we begin with a description of the project and the statutory framework governing the permit process. Following that description, we then turn to the factual and procedural background of the parties’ dispute.

A. The Project and its Location

To start, the City of El Paso adopted an ordinance for an election asking voters to authorize the issuance of bonds to finance several proposed projects within the city, including a multipurpose performing arts and entertainment center ("the MPC" or "the arena").5 Based on the election held November 6, 2012, voters approved the issuance of bonds to finance the City's proposed projects. The City later identified a downtown site for the MPC and earmarked $180 million for that project. The City planned to construct the facility within an 11.6-acre tract of land roughly covering four city blocks. Those blocks are part of a city neighborhood now known as "Duranguito," but otherwise known in prior years as the "Union Plaza."

The area of Duranguito is bounded by Paisano Drive to the south, Santa Fe Street to the east, the convention center to the north, and the Union Depot to the west. It holds historic prominence as an original neighborhood of El Paso, or birthplace of the community. As a First Ward of the city, the Anson Mills Plat of 1859 named the streets of Duranguito for the stagecoach routes frequented by visitors and residents. San Francisco and San Antonio streets reflect East-West travel; while the streets of Santa Fe and Chihuahua account for the North-South route. Currently, the neighborhood is occupied by a mix of buildings—both business and residential—along with parking lots, streets, and alleyways. The City has acquired ownership of all properties needed to accommodate construction of the new project. It plans to demolish existing structures standing within the project's footprint.

B. The Statutory Framework of the Antiquities Code
1. The state's preservation interest

To effectuate the state's declared public policy, the Texas Historical Commission ("the THC") is charged with protecting and preserving the archeological and historical resources of Texas. See TEX. NAT. RES. CODE ANN. §§ 191.051(b)(6) (general powers and duties); 191.003(1) ("Committee" defined as the "Texas Historical Commission"); 191.051(a) and (b) (the THC serves as "the legal custodian of all items described in this chapter that have been recovered and retained by the State of Texas"). Subchapter C of the Code details the powers and duties of the THC. See generally id. §§ 191.051 -.059. Among prescribed duties, the THC determines the site and designation of state archeological landmarks; enters into contracts providing for discovery operations and scientific investigations; and considers requests for, and issues permits for, survey and discovery, excavation, restoration, demolition or study of sites and landmarks. See id. § 191.051(b)(2), (3) and (4) ; see also id. §§ 191.003(2) (defining "Landmark"); 191.053 (contract provisions); 191.054 (permit provisions); 191.052 (providing the THC may promulgate rules and otherwise require permit conditions).

2. Requirements imposed on historically significant archeological sites

To effectuate THC supervision of protected state resources, the Code and rules adopted by the THC impose requirements on parties regarding certain projects. See id. §§ 191.0525-191.058; see also 13 TEX. ADMIN. CODE §§ 26.7(d)(1)-(4) (THC review of construction plans), 26.13-.18 (archeological permits). Before breaking ground at a project on public land , the person primarily responsible for the project or the person's agent must notify the THC. See TEX. NAT. RES. CODE ANN. § 191.0525(a). As relevant here, projects for a municipality require advance review "only if the project affects a cumulative area larger than five acres or disturbs a cumulative area of more than 5,000 cubic yards, whichever measure is triggered first, or if the project is inside a designated historic district or recorded archeological site." Id. § 191.0525(d).

Upon receiving notice of such a project, except in circumstances not applicable here, section 191.0525 provides that the THC shall promptly determine: (1) whether a historically significant archeological site is likely to be present at the project location; (2) whether additional action, if any, is needed to protect the site; and (3) whether an archeological survey is necessary. Id. § 191.0525(a)(1)-(3). When the THC determines a survey is necessary, section 191.0525 further provides, "the project may not commence until the archeological survey is completed." Id. § 191.0525(b).

If the THC determines that a survey is in the best interest of the State of Texas, the agency is empowered to issue a permit to other state agencies, political subdivisions, or certain qualified persons or entities to accomplish the required investigation. See id. § 191.054(a). The permit...

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