Summary
holding single reference to due process insufficient to assert due process challenge on appeal
Summary of this case from Goffney v. Houston I.S.D.Opinion
No. 14-05-00366-CV
Opinion filed August 8, 2006.
On Appeal from the 295th District Court, Harris County, Texas, Trial Court Cause No. 03-63480.
Affirmed.
Panel consists of Justices HUDSON, FOWLER, and SEYMORE.
MEMORANDUM OPINION
Appellant Susan C. Lee ("appellant") appeals from a judgment affirming an administrative order requiring her to make certain repairs to her property. She presents two issues for review: (1) whether the order denies her substantive and procedural due process rights; and (2) whether a reasonable basis exists for the order. We find no basis for overturning the order and accordingly affirm.
I. Factual Background
Appellant owns a residential property located in the Tall Timbers Section of River Oaks in Houston, Texas (the "property"). The property was first inspected by the City of Houston's Neighborhood Protection Division in July 2003, after the police responded to a call about a disturbance on the property. The inspector found the house vacant and unsecured, containing rubbish and garbage, and having several structural problems. The City inspected the house on a second occasion with appellant's counsel present.
On September 10, 2003, the City sent a Hearing Notice to appellant. The Notice informed appellant of a public hearing on the condition of the property at which "the City of Houston will present evidence regarding the condition of the structure(s) and/or property." The Notice expressly detailed a property owner's statutory responsibilities by directly quoting the relevant provisions of the Houston Code of Ordinances ("Code"), and indicating the Code provisions that the City believed appellant had violated. The Notice detailed ten different Code violations, from maintaining the building "free from rubbish and garbage," to more serious "Major Building Deficiencies" such as roof and ceiling problems and accessibility to vagrants.
The Notice also advised Appellant of the nature of the hearing, providing that
After all evidence and testimony has been presented, the hearing official has the full authority to issue orders for the abatement of violations of Sections 10-341 through 10-344, substandard buildings, or Section 10-361, dangerous buildings, and Section 10-411; or other sections of Chapter 10, Article IX of the Houston Code of Ordinances, the Comprehensive Urban Rehabilitation and Building Minimum Standards Code.
The hearing was held on October 21, 2003. At the hearing, the City's inspector detailed the specific building deficiencies on the property. He supported his testimony by introducing pictures of the property that he had taken during his inspections, which showed matters such as the unsecured entry and collapsing ceiling. Counsel for appellant cross-examined the inspector about the extent of the property inspection, but appellant did not dispute the City's evidence or put on any evidence regarding the property's condition.
At the conclusion of the evidence, the hearing official issued an Order finding that the structure on the property violated several Code provisions and was a "dangerous building" under section 10-361 of the Code, which constituted a hazard to the health, safety or welfare of citizens. The Order required appellant to secure the building to City specifications within 10 days; to obtain permits for the repair or demolition of the building within 30 days; and to conduct the repair or demolition within 60 days. The Order also provided that
The owner must immediately ensure that the building or structure will not be entered or utilized by vagrants, children, or other unauthorized persons until such time that the building or structure is repaired and occupied or demolished and a Certificate of Compliance issued showing compliance with all applicable Laws, Ordinances, and Codes of the City of Houston.
(emphasis added).
At the hearing, the hearing official expressly advised appellant that, because of the City's permitting process, it was possible that the repairs would not be limited to the conditions that resulted in the building being categorized as a "dangerous building" in the first case. The official stated:
When you go down to get your permit, if you-all choose that repair option, once an order is issued on this property and it's declared to be a dangerous building or it was a building that had been vacated or abandoned, the building permits and the law requires that a certificate of compliance be issued before that building can be deemed to be in compliance.
And when you go to get your permit to repair this building, if that's what you choose to do, the inspectors that do that permitting process are going to make sure that that building is brought into compliance with all the laws and ordinances of the City of Houston, including any of the building codes, electric codes, HVAC codes, or anything like that before that certificate of compliance is issued, which may mean that even though today the only thing that was brought to your attention was a — some roof problems, other problems, if they see those items, they're not going to issue a certificate of compliance for something that's not in compliance, which means that will end up having to get repaired also.
When asked, Appellant's counsel indicated that he did not have any questions about this practice, and did not otherwise object to the practice before the hearing official.
Appellant filed a Petition for Judicial Review of the Order in the trial court. Appellant thereafter requested and received an extension of an additional 60 days for compliance with the City's Order. The case was presented to the court, and the court affirmed the Order.
II. Analysis
Appellant's complaints on appeal focus on the City's requirement of a certificate of compliance showing that the property is in compliance with all laws and ordinances. Appellant argues that the City's practice of requiring a certificate of compliance will have the effect of requiring appellant to make repairs for which appellant was never given notice or a hearing. Appellant argues that this practice (1) violates rights of substantive and procedural due process; and (2) creates an order that lacks a reasonable basis in the record. We disagree and accordingly overrule appellant's two issues.
A. Standard of Review
Judicial review of the City's Order occurs under the substantial evidence rule. See TEX. LOC. GOV'T CODE § 214.0012(f). A court applying the substantial evidence rule may not substitute its judgment for that of the agency. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (per curiam). The issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action. Id. Courts must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them. Id. In fact, an administrative decision may be sustained even if the evidence preponderates against it. Id. Whether substantial evidence supports the City's Order is a question of law. Accordingly, we review the trial court's determination that substantial evidence exists de novo. See Tex. Dep't of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex.App.-Houston [14th Dist.] 2002, no pet.).
Claims regarding deprivation of constitutional rights by agency proceedings also present questions of law subject to de novo review. Granek v. Tex. State Bd. of Med. Exam'rs, 172 S.W.3d 761, 771B72 (Tex.App.-Austin 2005, no pet.); see also Tex. Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 454 (Tex. 1984) ("when a denial of due process has resulted in the prejudice of substantial rights of a litigant," agency's action is arbitrary and capricious even if supported by substantial evidence).
B. The City's Order does not violate appellant's rights of substantive and procedural due process.
1. Preservation of Error
In her first issue, appellant argues that the Order violates her constitutional rights of substantive and procedural due process. Appellant has not preserved error as to these arguments because she failed to present them to the trial court. Appellant did not plead or argue that the Order violated either the Texas or U.S. Constitution. She failed to cite either the Texas or U.S. Constitution, or to cite any authority for the proposition that her constitutional rights had been violated. Appellant instead focused her briefing efforts on the argument that the hearing official's order was too broad because it lacked a basis in the evidence.
Texas Rule of Appellate Procedure 33.1 requires that a party present the complaint to the trial court in a manner that states "the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context." Tex.R.App.P. 33.1(a)(1). Courts, including this one, have held that a party must present due process arguments to the trial court in order to pursue them on appeal. See, e.g., In re L.M.I. and J.A.I., 119 S.W.3d 707, 710B11 (Tex. 2003); Ratsavong v. Menevilay, 176 S.W.3d 661, 671 (Tex.App.-El Paso 2005, pet. denied) (due process arguments waived when they were not brought to the trial court's attention); Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 404B05 (Tex.App.-Houston [14th Dist.] 2004, no pet.); McDonald II v. State, 693 S.W.2d 660, 661 (Tex.App.-Dallas 1985, no writ).
Here, appellant did not present any arguments to the trial court that made the court aware that appellant was raising a due process challenge. Appellant made only one passing mention of due process, apparently to buttress her argument that the order was not supported by the evidence. In one sentence of her Response to Defendant's Motion for Judgment, without citing any authority, appellant states that "[t]o order Ms. Lee to repair conditions not identified by the City of Houston by bootstrapping them with the meager few identified denies Ms. Lee's fundamental and constitutional right of due process." This solitary and passing mention of due process — without any specific citation to case law — was insufficient to alert the trial court or the opposing party that appellant was asserting a constitutional complaint.
A passing reference to a constitutional right, made without any authority or development, does not raise a constitutional claim under Rule 33.1. In In re L.M.I., the Texas Supreme Court rejected a due process challenge mentioned only in passing. The court stated:
[W]e conclude that [petitioner] failed to preserve this issue in the trial court. His answer and counterpetition . . . cite no constitutional authority, and he did not raise the issue in any post-judgment motion. In fact, the only reference to the constitution in the entire record appears when [petitioner's] attorney, in arguing for a continuance, explained that she had only recently been hired after petitioner's coworkers told him that the termination was "probably not constitutional and not right."
Id. at 710. Applying Rule 33.1, the court held that "it was not apparent from the context that [petitioner] was attempting to raise a due process challenge." Id. at 711; see also Webb v. Webb, 451 U.S. 493, 496B97 (1981) (holding that constitutional error was waived, even though petitioner repeatedly used the phrase "full faith and credit," because petitioner did not cite to the U.S. Constitution or to any cases relying on the Full Faith and Credit Clause of the U.S. Constitution); Gleason v. Isbell, No. 14-03-00166-CV, 2004 WL 1205784, at *3 (Tex.App. Houston [14th Dist.] June 3, 2004, pet. denied) (mem. op.) (holding that the mere mention that "this provision does not pass constitutional muster" without citing authority or including further argument waives the issue on appeal.).
Appellant's single passing reference to due process failed to alert the trial court to the presence and exact nature of a constitutional claim. Accordingly, error was not preserved under Rule 33.1.
2. Due Process
Appellant's due process rights were not violated in any event. Appellant complains that her due process rights were violated because the City failed to provide her with notice and a hearing on every repair she may eventually have to make in order to obtain a certificate of compliance. She maintains that this practice violates the notice and hearing provisions of the Houston Code of Ordinances, § 10-347 and § 10-364, and deprives her of due process. We disagree.
Appellant's complaint on appeal appears to be primarily about the alleged denial of procedural due process rights. However, because she mentions and cites authority relevant to substantive due process, we will evaluate the practice on that ground as well.
The City adhered to procedural safeguards in this case. Appellant received a formal Hearing Notice from the City. The Notice apprised her of ten particular Code violations that were discovered by City inspectors and required correction. The Notice also informed her that the City would hold a hearing on these violations, that she would have the opportunity to be represented by counsel and present witnesses and evidence, and that the hearing official would have authority to require compliance with all Code provisions regulating substandard and dangerous buildings.
The City held the Hearing as provided by the Notice. Appellant did not personally appear, but she was represented by counsel. The City presented its witnesses and evidence. Appellant cross-examined the City's witnesses and had an opportunity to present evidence, which she declined. The hearing official worked with appellant's counsel to determine how much time appellant would need to comply with the Order. The hearing official also informed appellant's counsel of the possibility of eventually having to make additional repairs to her property due to the necessity of obtaining a certificate of compliance under the Order. Appellant's counsel indicated that he did not have any questions about this procedure, and did not otherwise object to it.
These procedures satisfy the requirements of procedural due process. As courts have noted in similar cases, procedural due process for administrative proceedings requires no more than "notice, a proper hearing, and an impartial trier of fact." Nash v. City of Lubbock, 888 S.W.2d 557, 561, 562 (Tex.App.-Amarillo 1994, no writ) (holding procedural due process satisfied in property demolition case because "the basics of due process were complied with when [plaintiffs] were given notices of all hearings, afforded the opportunity to be present and heard, and the order was issued by an impartial commission"); see also Chocolate Bayou Water Co. Sand Supply v. Tex. Natural Res. Conservation Comm'n, 124 S.W.3d 844, 850 (Tex.App.-Austin 2003, pet. denied) (holding due process satisfied when notice apprises parties of pendency of an action and gives parties an opportunity to present objections); Cedar Crest # 10, Inc. v. City of Dallas, 754 S.W.2d 351, 352 (Tex.App.-Eastland 1988, writ denied) (holding procedural due process satisfied in property demolition case when "the control is reasonable and the actions otherwise accord procedural fairness").
The fact that appellant may eventually be required to make additional repairs that were not specifically discussed in the notice or at the hearing does not impact our analysis. Due process does not require that appellant be informed of every particular repair that may eventually need to be made to bring her structure into compliance with published city codes. As required by the Houston Code of Ordinances, Appellant was given notice of both the conditions of the structure that violated minimum building standards, and the conditions that resulted in her building being classified as a dangerous building. See Houston Code of Ordinances §§ 10-347, 10-364. Appellant has accordingly been provided notice and an opportunity to be heard on the conditions that formed the basis for the Order requiring repairs and an ultimate showing of compliance with all codes. Appellant's procedural due process claim lacks merit.
Appellant argues that she will be required to make additional repairs of which she was not notified, specifically that she is required "to install, remove, alter, repair, replace or remodel any electrical system or equipment." Our review of the Order and the record on appeal do not reveal support for this claim. At this point, her claim is hypothetical and her injury nonexistent because she has not yet been required to do anything. Even assuming that appellant is required to make such repairs, however, we hold that her constitutional rights have not been violated in light of the notice and procedures that the City has provided to her.
Although appellant does not expressly argue that the Order is unconstitutional because it is vague, she does complain that the Order fails to specify exactly which repairs she needs to make and that she will have to submit to another inspection by the City. Appellant has made no showing that this aspect of the City's process presents a constitutional problem, and we do not believe that it does. A "statute is void for vagueness [only] if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the enactment." McDonald, 693 S.W.2d at 661, 662 (holding that a nuisance ordinance was not impermissibly vague). The applicable ordinances in this case are published, and "[t]hose residing in or having business dealings with a city are presumed to know its ordinances." Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 634 (Tex.App.-Houston [14th Dist.] 1997, pet. denied).
Any claim for substantive due process also fails. Substantive due process claims require a showing of (1) a protectable interest in property (2) that is deprived through arbitrary and capricious government action. See City of Lubbock v. Corbin, 942 S.W.2d 14, 21 (Tex.App.-Amarillo 1996, writ denied). Appellant has not identified a constitutionally protectable property right of which she has been deprived. In this case, the Order simply requires that appellant make a series of repairs to her property. Merely issuing an order that property is substandard and must be repaired or demolished does not, without more, deprive a landowner of a property interest giving rise to a substantive due process claim. See Corbin, 942 S.W.2d at 21.
It is axiomatic that a municipality, as an arm of the State, has the constitutional authority to protect the health, safety and welfare of its citizens by regulating nuisance properties. Freeman v. City of Dallas, 242 F.3d 642, 652 (5th Cir.), cert. denied, 534 U.S. 817 (2001). Interpreting the due process guarantees of the U.S. Constitution, the Fifth Circuit explained:
[T]he public interest demands that all dangerous conditions be prevented or abated. Regulation of nuisance properties is at the heart of the municipal police power. It is eminently reasonable for a city to prescribe minimum property maintenance standards to protect the public and to maintain adjacent land values. . . .
The ordinance falls well within the City's police power and thus within a sphere that courts have traditionally been reluctant to invade.
Id. at 652B53 (citations omitted). As relevant here, the procedures followed by the City of Houston in enforcing the Houston ordinance are within the City's police power. The City can reasonably insist that a building be brought into compliance with its municipal codes prior to certifying that a landowner has completed a mandatory repair process.
Courts have repeatedly upheld Texas municipal nuisance regulations and building standards against constitutional challenge. See Freeman v. City of Dallas, 186 F.3d 601, 607 (5th Cir. 1999); MacKenzie v. City of San Marcos, No. SA03CA0250, 2005 WL 492619, at *8 (W.D. Tex. March 2, 2005); Patel v. City of Everman, No. 4:99CV982BE, 2001 WL 11074, at *4 (N.D. Tex. Jan. 3, 2001), aff'd, 275 F.3d 46 (5th Cir. 2001), cert. denied, 535 U.S. 954 (2002).
C. A reasonable basis for the hearing official's decision exists.
In her second issue, Appellant claims that the Order lacks a reasonable basis because it may require her to make repairs on conditions that were not proved by evidence at the hearing. This issue is virtually a restatement of appellants' due process claim, which we do not find any more persuasive stated as a substantial evidence challenge.
When conducting a substantial evidence review, a court must affirm an administrative order supported by any quantum of evidence greater than a scintilla. R.R. Comm'n of Tex. v. Torch Operating Co., 912 S.W.2d 790, 792B93 (Tex. 1995). In this case, ample evidence supports the City's Order. The City inspector testified regarding his inspections and offered photographs to support the conclusion that the property both violated minimum building standards and qualified as a dangerous building. Although appellant cross-examined the inspector, she did not offer any evidence that contradicted his findings. The evidence accordingly demonstrates a reasonable basis for the City's Order.
A reasonable basis for the Order exists even though appellant may have to repair some conditions that were not discussed at the hearing. The evidence that the City introduced, and the findings that the hearing official made, support the Order's requirement that appellant secure and repair the property, and then obtain a certificate of compliance showing that the property complies with municipal codes. See, e.g., Walnut Villa Apartments, L.L.C. v. City of Garland, No. 05-02-00005-CV, 2003 WL 42409, at *2B3 (Tex.App.-Dallas Jan. 7, 2003, pet. denied) (mem. op.) (rejecting substantial evidence challenge on basis of broad order that required demolition of all buildings even though only some buildings had been inspected).
Because there is an evidentiary basis for the Order in the record, we overrule appellant's second issue.
III. Conclusion
For the foregoing reasons, we overrule appellant's issues and affirm the trial court's judgment.