Alicia Wilson Kuykendall v. City of San Antonio Individually and on Behalf of the City of San Antonio Dangerous Structure Determination Board , 2012 Tex. App. LEXIS 818 ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ALICIA WILSON KUYKENDALL, §
Appellant, §
No. 08-10-00208-CV
v. §
Appeal from the
§
CITY OF SAN ANTONIO, 150th Judicial District Court
INDIVDUALLY AND ON BEHALF OF §
THE CITY OF SAN ANTONIO of Bexar County, Texas
DANGEROUS STRUCTURE §
DETERMINATION BOARD, (TC# 2009C118878)
§
Appellees.
§
OPINION
Ms. Alicia Kuykendall appeals the district court’s judgment affirming the San Antonio
Dangerous Structure Determination Board’s decision ordering two buildings to be demolished.
She raises three issues for this Court’s review. Issues One and Three challenge the notice
procedures related to the condemnation proceedings on due process grounds. In Issue Two,
Ms. Kuykendall asserts that the demolition order entered by the administrative body below is
erroneous because she was not provided proper notice of the proceedings. Finding no reversible
error, we affirm.
BACKGROUND
Alicia Kuykendall owns two buildings known as 307 and 309 Cactus Street in San
Antonio Texas. She resides in Austin, Texas. In April of 2009, the City of San Antonio received
a complaint that there were problems with 307 and 309 Cactus Street, and sent an investigator to
inspect and record the condition of the buildings. Finding the buildings badly deteriorated, the
investigator recommended the properties to the San Antonio Dangerous Structure Determination
Board (“DSDB”). On October 12, 2009, the DSDB held a public hearing to determine whether
the buildings should be demolished. With evidence provided by the city’s investigator in hand,
the DSDB determined the buildings constituted public nuisances and ordered that they be
demolished.
Ms. Kuykendall appealed the DSDB’s decision by filing a verified petition in the 150th
Judicial District Court in Bexar County on November 20, 2009. In her amended verified
petition, Ms. Kuykendall alleged that the demolition order was subject to reversal on the basis
that DSDB failed to notify her of the hearing violating her right to due process of law. She
argued that she was not provided pre-hearing notice, was unable to attend the hearing, and did
not become aware of the board’s decision until approximately two weeks after the hearing.
According to the original petition, the DSDB sent notice of the hearing to
Ms. Kuykendall’s residential address by first class, certified mail, return receipt requested, on
October 2, 2009, approximately ten days prior to the hearing. When the postal service attempted
delivery on October 3, 2009, Ms. Kuykendall was not at her residence to receive the delivery.
According to the original petition, the postal service made another unsuccessful delivery attempt
on October 22, 2009. There is no explanation in the record for the delay between the first and
second delivery attempts. The pre-hearing notices were deposited in Ms. Kuykendall’s mail box,
without her signature of receipt on October 28, 2009.
On October 21, 2009, after the hearing, the DSDB sent documentation of the board’s
decision, as well as the demolition orders, by first class, certified mail, return receipt requested to
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Ms. Kuykendall’s residential address. On October 22, 2009, Ms. Kuykendall visited the Cactus
Street properties in person and discovered that the board had posted notice of the hearing on the
premises at 309 Cactus. When she returned home, Ms. Kuykendall received a letter, sent
certified mail, return receipt requested, notifying her of the demolition orders. The sequence of
events was summarized in the amended petition as follows:
October 2, 2009 - Public Hearing set for October 12, 2009 and Pre-Hearing
Notice Mailed;
October 12, 2009 - Public Hearing Held Without [Ms. Kuykendall’s ] Presence;
October 22, 2009 - Demolition Orders Issued and Mailed;
October 23, 2009 - [Ms. Kuykendall] Receives and Signs for Demolition Orders; and
October 28, 2009 - [Ms. Kuykendall] Receives the Pre-Hearing Notice.
In its response to the petition, the City noted that Ms. Kuykendall’s arguments were not
directed toward the substantive contents of the notice, but to the timeliness of its receipt.
According to the response, in addition to the chain of events contained in Ms. Kuykendall’s
pleadings, the City also attempted to notify the property owner by: filing notice in the Bexar
County Clerk property records; publishing the notice in a newspaper of general circulation in San
Antonio; and posting notice of the hearing in San Antonio’s City Hall, as well as on the City’s
website.
On April 13, 2010, the district court heard additional argument. By written order entered
June 11, 2010, the district court affirmed the DSDB’s decision, but stayed enforcement of the
order for fourteen days to permit Ms. Kuykendall time to perfect her appeal. Ms. Kuykendall
filed a motion for new trial on June 23, 2010. For the first time, Ms. Kuykendall challenged the
composition of the DSDB as a violation of her due process rights. According to the motion, by
requiring that the board be comprised of city employees, the statute creating the body violated
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the due process clause of the federal constitution and created a conflict of interest. The trial
court denied the motion by written order on June 25, 2010. This appeal follows.
ANALYSIS
We begin with a brief overview of the law related to an appeal from an administrative
agency. Chapter 54 of the Texas Local Government Code provides municipalities with the
general authority to enforce rules, ordinances, and police regulations enacted by their governing
bodies. See TEX.LOC.GOV’T CODE ANN. § 54.001(a)(West 2008). In addition, Chapter 214 of
the Code provides municipalities with specific authority to pass substantive ordinances
regulating the identification, repair, and demolition of substandard buildings. See
TEX.LOC.GOV’T CODE ANN. § 214.001(a)(West Supp. 2011). Chapter 214 contains minimal
procedural standards for administrative proceedings related to the enforcement of those
standards, as well as the procedures for judicial review. See TEX.LOC.GOV’T CODE ANN.
§§ 214.001, 214.0012 (West 2008). In short, Chapter 54 provides the framework for notice and
hearing for municipal ordinance violations, while Chapter 214, in relevant part, outlines the
procedures following an administrative determination that a building is substandard. See
TEX.LOC.GOV’T CODE ANN. §§ 54.001, 54.035; TEX.LOC.GOV’T CODE ANN. § 214.001 et seq.
The City of San Antonio has enacted ordinances pursuant to its authority under Chapters
54 and 214, in Chapter Six, Article VIII of its Code of Ordinances. SAN ANTONIO, TEX., REV.
ORDINANCES ch. 6, art. VIII, §§ 6-158, 159, and 163(2008). The DSDB, created by Section 6-
158, is vested with the City’s authority under Texas Government Code Section 214.001. See
SAN ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII, § 6-158. A property owner may appeal a
DSDB decision on the basis that the board’s decision was illegal by filing a verified petition in
the district court. SAN ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII, § 6-173(a) (1997).
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The appeal is by writ of certiorari, and is limited to a hearing under the substantial evidence rule.
TEX.LOC.GOV’T CODE ANN. § 214.0012; SAN ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII,
§ 6-173(c).
In a pure substantial evidence review, the administrative action is presumed to be valid
and supported by substantial evidence. See Perkins v. City of San Antonio, 293 S.W.3d 650, 654
(Tex.App.--San Antonio 2009, no pet.); Nussbaum v. City of Dallas, 948 S.W.2d 305, 308
(Tex.App.--Dallas 1996, no writ). In the district court, it is the petitioner’s burden to
demonstrate the illegality of the administrative decision. Office of Pub. Utility Counsel v. Pub.
Utility Comm’n of Tex., 895 S.W.2d 712, 714 (Tex.App.--Austin 1993), rev. on other grounds
by, 878 S.W.2d 598 (Tex. 1994). Similarly, on appeal from the district court, it is the appellant’s
burden to show error. Id. at 714. This burden includes presenting a complete record, including
the record produced during the administrative proceedings. Id. Absent such a record, the
reviewing court must presume that the agency’s order was valid and supported by substantial
evidence. See Nussbaum, 948 S.W.2d at 308.
As stated above, Ms. Kuykendall’s appeal does not include a challenge that the evidence
before the board was insufficient to support its decision. Indeed, the appellate record in this case
does not include the record produced in the administrative hearing.1 Therefore, a substantial
1
During oral argument Appellant’s counsel indicated that the DSDB record had been filed, pursuant to an order
granting a motion to supplement entered by this Court. We are unaware of any such motion or order. According to
our records (including information forwarded from the Fourth Court of Appeals):
(1) By letter dated April 18, 2011, Appellant’s counsel sent a digital copy of the DSDB record in the
form of a compact disc (CD). Counsel requested that the digital copy, “be filed in the 8th Court of
Appeals.”
(2) This Court responded to counsel’s request by letter dated April 21, 2011, returning the CD, and
instructing counsel to make arrangements “with the District Clerk or Court Reporter to have it
prepared in a supplemental record and filed with this Court.” We received no response.
(3) On May 5, 2011, this Court received and filed the City of San Antonio’s objection to Appellant’s “LATE
ATTEMPT TO SUPPLEMENT THE RECORD.”
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evidence review of the merits of the administrative decision in this case could have but one
result; the DSDB’s decision and district court’s order would be affirmed as Ms. Kuykendall
cannot demonstrate the decision was unsupported. See Nussbaum, 948 S.W.2d at 308. Instead,
Ms. Kuykendall argues that the composition of the DSDB violates her due process right to have
her case decided by an impartial fact finder. She contends that the DSDB did not comply with
the notice requirements under San Antonio’s ordinances, or as required by state law. Finally, she
argues that the DSDB’s notice requirement violates notions of due process under the state and
federal constitutions.
As noted by the City in its brief, the argument Ms. Kuykendall presents in Issue One has
already been addressed by the Court of Appeals for the Fourth District of Texas, in San
Antonio.2 See Slavin v. City of San Antonio, 330 S.W.3d 670 (Tex.App.--San Antonio 2010, no
pet.). In Slavin, our sister court was asked whether an administrative decision was a per se
violation of a property owner’s due process rights because the body was comprised of city
employees, rather than “impartial citizens.” See Slavin, 330 S.W.3d at 672. As is the case
before us in this instance, the record in Slavin, did not indicate that such an argument was made
to the administrative body, and as in this case, there was no indication that the body acted in an
arbitrary manner. Id. at 672-73. We see no reason to depart from the San Antonio Court of
Appeals’ prior determination of this argument based on the record before us, and Ms.
(4) Appellant responded to the City’s objection, in writing, filed in this Court on May 27, 2011. According to
the response, Appellant’s counsel did not recognize the need for a supplemental record until the City noted
the omission in its appellee’s brief.
As of the date of submission, there is no record that Appellant filed a motion to supplement the appellate record.
Additionally, there has been no response to this Court’s April 21, 2011 letter instructing Appellant’s counsel to
make arrangements to supplement the record and there is no record of an order granting or denying a request to
supplement. No record of the DSDB proceedings has been filed in this Court.
2
This case was transferred from the Fourth Court of Appeals to this Court pursuant to a docket equalization order
entered by the Texas Supreme Court. See TEX.GOV’T CODE ANN. § 73.001 (West 2005). We have applied
precedent of the Fourth Court of Appeals. See TEX.R.APP.P. 41.3.
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Kuykendall has made no attempt to distinguish the facts or analysis presented in Slavin from the
instant case. Issue One is overruled. See TEX.R.APP.P. 41.3.
In Issue Two, Ms. Kuykendall contends that the DSDB’s decision was invalid because
the board failed to comply with state and local notice requirements. Her argument does not
challenge the contents of the notices sent to her residence, rather it focuses on the timeliness of
their receipt. As the San Antonio Court of Appeals noted in Perkins, although the district court’s
review of the administrative decision is confined to a substantial evidence review, the court is not
prohibited from considering whether the proceedings before the administrative body complied
with concepts of due process, including notice. See Perkins, 293 S.W.3d at 654 n.2. By
affirming the demolition order in this case, the district court implicitly concluded that
Ms. Kuykendall had been notified of the proceedings in accordance with the law, and was not
denied due process. Given the absence of a record of the DSDB proceedings in this case,
Ms. Kuykendall’s argument can only be considered in light of the competing verified petitions
filed in the district court and the applicable statutory provisions in the Texas Labor Code, and
San Antonio’s Code of Ordinances. We turn first to the state statutes.
Local Government Code Section 54.035 requires that notice of proceedings for the
enforcement of municipal ordinances must be given:
(1) by personal delivery, by certified mail with return receipt requested, or by
delivery by the United States Postal Service using signature confirmation
service, to the record owners of the affected property . . . and;
(2) to all unknown owners, by posting a copy of the notice on the front door of each
improvement situated on the affected property or as close to the front door as
practicable.
TEX.LOC.GOV’T CODE ANN. § 54.035(a)(West Supp. 2011).
The notice must be posted “and either personally delivered or mailed on or before the
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10th day before the date of the hearing . . . .” TEX.LOC.GOV’T CODE ANN. § 54.035(b). The
statute further provides that a municipality “may” file notice of the proceedings in the property
records in the county in which the property is located, TEX.LOC.GOV’T CODE ANN. § 54.035(c),
and states that when the municipality “mails a notice in accordance with this section . . . the
validity of the notice is not affected, and the notice is considered delivered.” TEX.LOC.GOV’T
CODE ANN. § 54.035(f).
There is no dispute that the DSDB used the mail to send, by certified mail, return receipt
requested, notice that a hearing was scheduled on October 2, 2009, to Ms. Kuykendall.
Ms. Kuykendall does not allege that the notice was mailed less than ten days prior to the hearing.
She also concedes that the post office attempted to deliver the notice to her residential address on
October 3, 2009. Her argument is limited to the fact that because she did not receive the notice
until October 22, 2009, it was ineffective and in violation of the statutory requirements. We are
not persuaded by this argument. There is nothing in the language of the relevant sections of the
Local Government Code to indicate that receipt by the property owner is required, and we are
unaware of Texas case law that has imposed such a requirement.3 As such, there is no basis in
this record to overrule the district court’s conclusion that the DSDB’s notice complied with state
law, and Issue Two is overruled as to that argument.
We are left to consider the applicable sections of San Antonio’s Code of Ordinances. At
the center of Ms. Kuykendall’s argument is her interpretation of Section 6-162, titled, “Notice of
Hearing.” SAN ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII, § 6-162 (1997). According to
sub-paragraph (a), the code compliance officer is responsible for locating the property owner and
preparing the pre-hearing notice. SAN ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII, § 6-
3
Indeed, Section 54.035(f) indicates that the validity of the notice is not affected and considered delivered if the
notice is not claimed. TEX.LOC.GOV'T CODE ANN. §54.035(f).
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162(a). The notice must inform the property owner that hearing before the DSDB has been
scheduled, and note the date and time of that hearing. SAN ANTONIO, TEX., REV. ORDINANCES
ch. 6, art. VIII, § 6-166(a)(2002). The subsection concludes by specifying that the date of the
hearing cannot be less than five, or more than sixty days, after “receipt” of the notice. See SAN
ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII, § 6-166(a).
According to Ms. Kuykendall, because the hearing was held on October 12, and she did
not receive notice of the hearing until October 22, the City’s notice failed to meet the five-to-
sixty day requirement. In response, the DSDB argues that in cases where notice is sent via the
United States Postal Service, rather than by personal delivery “receipt” under Section 6-166(a),
refers to the date the notice is posted, not the date it is delivered. In essence, this is a question of
statutory construction, subject to de novo review. See Milestone Potranco Dev., Ltd. v. City of
San Antonio, 298 S.W.3d 242, 243 (Tex.App.--San Antonio 2009, pet. denied). When
construing a statute, our primary goal is to determine, and give effect to the enacting body’s
intent. Id. To do so we use the plain meaning of the statute’s language, unless to do so would
cause an absurdity, because a contrary intention is apparent from the context. Id. In this
instance, the exception controls.
It is reasonable to interpret Section 6-166(a) as contemplating the following chain of
events: (1) the DSDB designates a certain date and time to conduct a hearing regarding a certain
property; (2) the code compliance officer prepares a notice for the property owner stating that a
hearing has been scheduled, and noting the date and time; and (3) the notice is transmitted, by
mail, personal delivery, or posting to the property owner. See SAN ANTONIO, TEX., REV.
ORDINANCES ch. 6, art. VIII, § 6-162(b); SAN ANTONIO, TEX., REV. ORDINANCES ch. 6, art. VIII,
§ 6-166(a). It is reasonable, therefore, to conclude that the five-to-sixty day limit refers to the
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date of transmission, rather than the date the notice is actually delivered to, or received by the
property owner. Were we to conclude otherwise the board would be unable to schedule
hearings, and the compliance officer would be unable to include the required information in the
notice because the five-to-sixty days could not be ascertained until after the owner received the
notice. Because Ms. Kuykendall’s interpretation frustrates the purpose of the provision, and
leads to an absurd result, we disagree with her argument. The notice was transmitted in
accordance with the ordinance, and the trial court’s implicit finding was not in error.
Accordingly, we overrule the remainder of Issue Two.
In Issue Three, Ms. Kuykendall raises a global challenge under the state and federal
constitutions, arguing that the “notice statute” contained in Chapter 214 of the Local Government
Code violates her right to due process. As a preliminary matter, we note that Ms. Kuykendall’s
argument in support of Issue Three is limited to approximately one double spaced page of her
appellate brief. The argument contains three citations; first, a general citation to the United
States Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902,
47 L. Ed. 2d 18 (1976), followed by a citation to the service of process standard in Texas Rule of
Civil Procedure 106, and finally a statement that “Chapter 214, Tex. Loc. Gov. Code
contemplates lack of notice . . . as notice.” The brief then concludes that state law, “essentially
turns due process on its head.” The Texas Rules of Appellate Procedure require an appellant’s
brief to contain, “a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX.R.APP.P. 38.1(i). While we question whether
Ms. Kuykendall’s discussion of Issue Three satisfies this standard, we will nonetheless briefly
address the issue in the interests of justice.
As discussed in our analysis of Issue Two, Ms. Kuykendall’s argument against the
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DSDB’s decision was based on her assertion that she did not receive notice of the hearing. In
our overview of the applicable statutes, we noted that Chapter 54 of the Local Government Code
prescribes the manner in which a municipality shall notify an individual that they are in violation
of an ordinance. See TEX.LOC.GOV’T CODE ANN. § 54.035 et. seq. Because Chapter 214 does
not apply in a manner that would have affected Ms. Kuykendall’s receipt of the pre-hearing
notice, there is no basis for a due process violation. Accordingly, Issue Three is overruled.
CONCLUSION
Having overruled all of Appellant’s issues, we affirm the district court’s judgment.
February 1, 2012
CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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