Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri v. City of San Antonio

Supreme Court of Texas

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No. 20-0725

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Patrick Von Dohlen, Brian Greco, Kevin Jason Khattar, Michael

Knuffke, and Daniel Petri,

Petitioners,

v.

City of San Antonio,

Respondent

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On Petition for Review from the

Court of Appeals for the Fourth District of Texas

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JUSTICE BLACKLOCK, joined by JUSTICE DEVINE, concurring in the

judgment.

I disagree with the Court’s opinion, which concludes that the

plaintiffs failed to state a claim under Chapter 2400 of the Government

Code. I ultimately agree, however, with the Court’s judgment, which

reverses the dismissal of plaintiffs’ claims and remands the case for

repleading. I therefore respectfully concur in the judgment.

The San Antonio city council voted in March 2019 to exclude

Chick-fil-A from the San Antonio airport because of Chick-fil-A’s

religious views on marriage and its support for religious organizations

whose beliefs about marriage differ from the city council’s. In response,

the Legislature enacted Chapter 2400 of the Government Code,

colloquially known as the “Save Chick-fil-A law,” which took effect on

September 1, 2019. The plaintiffs in this case immediately sued the City

of San Antonio, employing Chapter 2400 just as its supporters seem to

have intended—to “save Chick-fil-A,” at least at the San Antonio airport.

According to the Court, the plaintiffs cannot plead a violation of

Chapter 2400 by pointing to the city council’s vote to exclude Chick-fil-A.

The problem for the plaintiffs, as the Court sees it, is that Chapter 2400

did not go into effect until after the vote. All agree, of course, that the

vote itself cannot have violated a law that did not exist when the vote

was taken.1 The problem for the Court’s approach, as I see it, is that the

city council’s vote was not an isolated act of discrimination that had

come and gone by the time Chapter 2400 went into effect. Instead, the

vote established a forward-looking policy under which city staff were

directed to pursue the exclusion of Chick-fil-A from the airport’s

concessions contract. See Plaintiffs’ Original Pet. & Application for

Temp. Injunction ¶ 40.2 This unambiguous instruction from the city

council gave all involved—including the plaintiffs and the courts—

1Whether the city council’s vote violated the U.S. or Texas Constitution

is another matter, one that is not at issue here.

2 The petition alleges, “Councilmember Treviño then moved to approve

the agreement with Paradies Lagardère, but with an amendment [that] would

direct the City’s staff to work with Paradies Lagardère in replacing Chick fil A

with another vendor.” Plaintiffs’ Original Pet. & Application for Temp.

Injunction ¶ 40. The petition further alleges that the council approved the

agreement with the forward-looking amendment proposed by Treviño. Id.

¶ 47. The meeting minutes attached to the petition indicate that the council

did so. Id. Exh. 14.

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sufficient reason to believe the City would, after the effective date of

Chapter 2400, continue to carry out its announced policy of excluding

Chick-fil-A. Any acts in furtherance of that exclusionary goal would

surely qualify as a violation of Chapter 2400, which broadly prohibits

“any adverse action” against “any person” to “withhold, reduce, exclude,

terminate, or otherwise deny any . . . contract” based “wholly or partly”

on the person’s “contribution, donation, or other support provided to a

religious organization.” TEX. GOV’T CODE §§ 2400.001(1)(A), .002.

I agree with the Court that governmental immunity bars this

lawsuit unless the plaintiffs “actually allege[]” a violation of Chapter

2400. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636

(Tex. 2012). This means pleading facts that fully state a viable claim

under the statute creating the immunity-waiving right of action. Bare

recitation of statutory buzzwords is not enough. Thus, I agree that the

plaintiffs can “actually allege[]” a violation of Chapter 2400 only “by

pleading facts that state a claim thereunder.” Id. I disagree, however,

with the Court’s conclusion that the plaintiffs’ petition does not state an

actionable claim under Chapter 2400.

The Court is correct that the petition points to no particular

action by the City to pursue its exclusionary policy after the effective

date of Chapter 2400. But the absence of such an allegation does not

doom the petition. We typically do not require plaintiffs seeking

injunctions against unlawful government policies to plead facts

demonstrating that the policy has already been carried out. See In re

Abbott, 601 S.W.3d 802, 812 (Tex. 2020) (“A plaintiff does not need to be

arrested and prosecuted before suing to challenge the constitutionality

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of a criminal law.”). To the contrary, we require plaintiffs to plead not a

past act of enforcement under the challenged law but only that “there

exists a credible threat of prosecution thereunder.” Id. (emphasis added)

(quoting Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

This requirement flows from the nature of the injunctive relief available

in such cases. Courts cannot order the government not to do something

it has already done, but they can order it not to continue doing such

things in the future. It follows that plaintiffs seeking prospective

injunctions, as these plaintiffs do, must allege a credible threat of the

future enforcement they want enjoined.

Chapter 2400 goes out of its way to incorporate this well-known

framework for pre-enforcement challenges to threatened government

action. In addition to outlawing “adverse action” on the basis of religion,

it also authorizes suits in response to a “threatened violation” of its

prohibition on adverse action. TEX. GOV’T CODE § 2400.003(a).

The petition credibly alleges that the exclusionary,

discriminatory effects of the city council’s vote would continue to be felt

after Chapter 2400 went into effect.3 True, the petition assumes that

3 The Court “presume[s] that the City would comply with Chapter 2400,

until the contrary is shown.” Ante at 18 (emphasis removed). But there is no

basis for making generous presumptions about the City’s reaction to Chapter

2400 when the City left no doubt that it continued to disagree with plaintiffs’

view that its continued exclusion of Chick-fil-A violated Chapter 2400.

According to the City’s brief in the court of appeals, filed April 22, 2020, “The

City of San Antonio does not believe that any statement or action taken on

March 21, 2019 would constitute a violation of Chapter 2400, even if the

statute had been in effect at that time.” Although I agree with the background

presumption that courts should assume the government will follow the law, I

do not agree with a presumption, unsupported by the record, that the City of

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City employees are busy following the city council’s instructions to

pursue, by contract, the exclusion of Chick-fil-A. But surely this is a

permissible assumption.4 The city council made its desires quite clear

and voted to give forward-looking direction to the city staff. The City—

not the plaintiffs—is the party in possession of information about how

the City is carrying out the city council’s instruction. The plaintiffs’ only

obligation is to plead facts establishing a credible threat the City will

San Antonio agreed with the plaintiffs’ view of the City’s obligations under

Chapter 2400. It quite obviously did not. If the City had come into court and

recanted its intention of excluding Chick-fil-A because of the enactment of

Chapter 2400, that would be a different matter. But every indication is that

the parties remained at odds about the City’s legal obligations under Chapter

2400 well after its enactment. Information outside the record indicates that it

was not until the Department of Justice intervened that the City was

compelled to adjust its position. See Letter from U.S. Dep’t of Just. to Att’y

Gen. Ken Paxton, Re: Complainant v. San Antonio International Airport (Sep.

10, 2020), https://www.texasattorneygeneral.gov/sites/default/files/images

/admin/2020/Press/Paxton%20Inf%20Res%20SAT%202019%200182%202009

09.pdf.

4 Information outside the pleadings indicates that, since the time the

petition was filed, (1) the federal government may have taken corrective action

against the City, (2) the City may have dropped its opposition to Chick-fil-A’s

presence at the airport in response to the federal government’s action, and

(3) Chick-fil-A may have dropped its desire to open a location at the airport.

These developments surely change the complexion of this lawsuit, and the

parties should have brought them to the Court’s attention because of their

potential ramifications for the Court’s jurisdiction over some or all of the

plaintiffs’ claims. Nevertheless, these intervening facts are not directly

relevant to the question at hand, which is whether the plaintiffs’ live pleading

triggers Chapter 2400’s waiver of immunity. To answer that question, we look

to the facts pleaded, without reference to later factual developments. However,

because of the many intervening factual developments potentially bearing on

the continued viability of plaintiffs’ claims, I agree with the Court’s decision to

remand the case for repleading.

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continue to carry out its announced policy. This petition easily clears

that hurdle.

If the City had adopted an ordinance permanently outlawing

Chick-fil-A at the airport because of its beliefs, we would not require a

plaintiff challenging the ordinance to plead facts demonstrating that the

City had already taken concrete steps toward carrying out its new

ordinance. Instead, we would require only the pleading of a credible

threat of future enforcement of the ordinance. I fail to see how this case

is any different. Of course, in this case the City announced its

exclusionary policy by contract, not by ordinance. But that makes no

difference. Modern governments often advance their preferred policies

by contract just as surely as by statute or ordinance. When those

policies violate the law, prospective protection in the courts should be

equally available no matter the caption on the offending government

document. Cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213

(1995) (holding that policies covering government contracting are

subject to equal-protection review).

Although I disagree with the Court’s opinion for the reasons

stated, I nevertheless concur in its judgment reversing the dismissal of

the plaintiffs’ claims and remanding the case for repleading.

James D. Blacklock

Justice

OPINION DELIVERED: April 1, 2022

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