Appeals court tosses lawsuit that challenged New Braunfels “can ban”
A state appeals court’s rejection of the lawsuit challenging New Braunfels’ river tourism rules banning disposable containers and large coolers has city officials weighing how to resume enforcement of the controversial codes for the first time in three years.
The Third Court of Appeals opinion issued Thursday overturned a summary judgment granted in 2014 by state District Judge Don Burgess in favor of river businesses and other opponents of the so-called “can ban” and the prohibition on coolers larger than 16 quarts.
The need to curb litter by tubers motivated city council to pass the large cooler ban in 2007, and voter approval in 2011 led to the ban on disposable containers on the Comal and Guadalupe rivers inside the city limits. Violators faced a fine of up to $500.
Acting on a city appeal, the three-judge appellate panel concluded the lawsuit plaintiffs lacked legal standing to challenge a penal code. Burgess therefore did not have subject-matter jurisdiction over the dispute, its 29-page opinion stated.
Jim Ewbank, the plaintiffs’ lawyer, couldn’t be reached Monday to provide his reaction to the ruling or to say if his clients plan to appeal.
The appellate court had previously rejected the city’s argument that Burgess lacked jurisdiction and the change was called overdue by the city’s outside counsel, attorney Mick McKamie.
“The (river) outfitters and other plaintiffs simply do not have standing to challenge this legislation, as we have stated from day one,” he said Monday. “Without standing, the civil courts have no jurisdiction to review the ordinances.”
McKamie was slated to brief City Council members Monday night on the ruling, which the Third Court is expected to make final in coming weeks. He noted the city also previously prevailed against legal challenges to city bans on volume drinking devices and “jello shots” on the river.
“Now all of the city’s river rule ordinances have been upheld by the courts,” McKamie said.
Mayor Barron Casteel said he hoped a workable solution can be found to avoid additional litigation.
“I think we should have the stakeholders working in advance of that final (court) decision to come up with a plan on how to move forward when we have a final order,” he said. “We’re going to have to have everyone working together to make it functional and achieve its goals.”
In reversing its decision on the city’s jurisdictional claim, the Third Court cited a Texas Supreme Court ruling in the decades-old case of State v. Morales, involving enforcement of a law that criminalized private sexual relations between consenting adults of the same sex.
The appellate opinion also said the plaintiffs’ civil challenge to the penal code claims were brought “under color of a long recognized exception that permits equitable relief where a penal enactment is unconstitutional and said to threaten irreparable injury to vested property rights” and also argued that ”an adverse economic impact on a business constitutes harm to a vested property right.”
Although the plaintiffs had evidence they’d lost business and suffered economically due to the city rules, the court found no harm occurred to a vested property right, noting, “The evidence was undisputed that the ordinances do not prohibit... appellees from operating their businesses, including selling disposable containers or renting coolers.”