# Austin v. City of Lubbock

> Court of Appeals of Texas · April 30, 1981 · 618 S.W.2d 552

URL: https://www.frixlaw.com/law-library/cases/9647937

## Case

- **Full name:** R. A. AUSTIN and Wife, Yvonne Austin, Appellants, v. CITY OF LUBBOCK, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** April 30, 1981
- **Citations:** 618 S.W.2d 552; 1981 Tex. App. LEXIS 3606
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Countiss
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by City of Lubbock v. Austin, 25 Tex. Sup. Ct. J. 167 (1982).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9647937

## Opinion text

ON MOTION FOR REHEARING
In its motion for rehearing, the City states it is not contending that its eminent domain power is absolutely superior to its zoning power — only that it is superior under the facts of this ease. Whether the argument is advanced as a general proposition or a specific one, we still do not agree with the City’s contention. Our holding as set out in our original opinion finds support in the recent Texas Supreme Court decision in City of Pharr v. Tippitt, 616 S.W.2d 173 (1981). The City of Pharr case concerned a city’s power to rezone an area. In analyzing the zoning power of a city, however, the Supreme Court made several statements pertinent to this case:
First: A comprehensive zoning ordinance is law that binds the municipal legislative body itself.... The duty to obey the existing law forbids municipal actions that disregard not only the pre-es-tablished zoning ordinance, but also long-range master plans and maps that have been adopted by ordinance. ...
The adoption of a comprehensive zoning ordinance does not, however, exhaust the city’s powers to amend the ordinance as long as the action is not arbitrary, capricious and unreasonable. Id. at 393.
Our holding is in accordance with that view. The City is bound by its zoning ordinance and cannot disregard it when exercising its eminent domain power. The City is not, however, absolutely forbidden to exercise its eminent domain power in derogation of its zoning ordinance. It is forbidden to do so only if the exercise thereof is arbitrary and unreasonable. The jury so found in this case.
The City contends, however, that the jury’s finding that the City abused its discretion is immaterial because abuse of discretion is a question of law. We agree that abuse of discretion is usually a question of law. However, as we observed in our original opinion, under the submission used in this case abuse of discretion was defined for the jury as arbitrary, unreasonable or capricious action. We are concerned here with the factual elements of arbitrary and unreasonable action and the jury had to find those factual elements in order to answer the issue as it did. Absent a proper challenge to the issue in this court, it stands as a finding that the City acted arbitrarily and unreasonably.
Having concluded that the foregoing and other arguments presented by the City in its motion for rehearing do not justify the alteration of our original opinion, the motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647937. Public record. Not legal advice.