Dohlen v. City of San Antonio, No. 20-0725, __S.W.3D__ (Tex. April 1, 2022)
Overview. In this case, the Texas Supreme Court addresses, for the first time, Chapter 2400 of the Texas Government Code, being the “Save Chick-fil-A Law” (or more formally: Prohibited Adverse Actions by Government – Protection of Membership In and Support to Religious Organizations). As discussed below, Chapter 2400 provides an express waiver of governmental immunity for government action that is in violation of Chapter 2400, including action to deny any government benefit based on a person’s affiliation with a religious organization.
Dohlen v. City of San Antonio. In March 2019, and after certain San Antonio City Council persons made reference to Chick-fil-A’s support of anti-LGBTQ religious organizations, the City Council voted to ban Chick-fil-A from the San Antonio airport. In June 2019, Chapter 2400 of the Texas Government Code was signed into law, with an effective date of September 1, 2019. A few days after Chapter 2400 became effective, several individuals who complained that they would be unable to enjoy Chick-fil-A at the San Antonio airport, filed suit against the City of San Antonio (“City”) pursuant to Chapter 2400. The City sought a dismissal based on governmental immunity and lack of standing. The trial court denied the City’s request. The City appealed that decision to the court of appeals which found that the City was immune from the suit. The claimants petitioned that ruling to the Texas Supreme Court, which essentially found that claimants allegations at the trial court level were insufficient to invoke a waiver of immunity contained in Chapter 2400; however, claimants should be afforded an opportunity to replead at the trial court level to allege sufficient facts.
Chapter 2400 of the Texas Government Code. Chapter 2400 consists of 6 individual statutes: Tex. Gov’t Code §§ 2400.001, .0015, .002, .003, .004 and .005.
Adverse Action Prohibited. Chapter 2400 prohibits a governmental entity from taking “any adverse action against any person based wholly or partly on the person’s membership in, affiliation with, or contribution, donation, or other support provided to a religious organization.” Id. at § 2400.002 (emphasis added). The term “adverse action” is defined as any action taken by a governmental entity to:
- withhold, reduce, exclude, terminate, or otherwise deny any grant, contract, subcontract, cooperative agreement, loan, scholarship, license, registration, accreditation, employment, or other similar status from or to a person;
- withhold, reduce, exclude, terminate, or otherwise deny any benefit provided under a benefit program from or to a person;
- alter in any way the tax treatment of, cause any tax, penalty, or payment assessment against, or deny, delay, or revoke a tax exemption of a person;
- disallow a tax deduction for any charitable contribution made to or by a person;
- deny admission to, equal treatment in, or eligibility for a degree from an educational program or institution to a person; or
- withhold, reduce, exclude, terminate, or otherwise deny access to a property, educational institution, speech forum, or charitable fund-raising campaign from or to a person.
Id. at § 2400.001(1)-(1)(F).
Governmental Entity. The term “governmental entity” is defined to include (A) the State of Texas; (B) a board, commission, council, department, or other agency in the executive branch of state government, including an institution of higher education; (C) the legislature or a legislative agency; (D) a state judicial agency or the State Bar of Texas; (E) a political subdivision of Texas, including a county, municipality, or special district or authority; or (F) “an officer, employee, or agent of an entity described by Paragraphs (A)-(E).” Id. at § 2400.001(3)-(3)(F).
Religious Organization. Section 2400.001(4) defines “religious organization” by reference to “religious organization” as defined in Section 110.011(b) of the Texas Civil Practices and Remedies Code. That statute defines “religious organization” as (1) an organization whose “primary purpose and function are religious, it is a religious school organized primarily for religious and educational purposes, or it is a religious charity organized primarily for religious and charitable purposes; and (2) it does not engage in activities that would disqualify it from tax exempt status under Section 501(c)(3), Internal Revenue Code of 1986, as it existed on August 30, 1999.” Tex. Civ. Prac. & Rem. Code § 110.011(b)-(b)(2).
Relief Available. Pursuant to Section 2400.003, “[a] person may assert an actual or threatened violation of Section 2400.002 as a claim or defense in a judicial or administrative proceeding and obtain: (1) injunctive relief; (2) declaratory relief; and (3) court costs and reasonable attorney’s fees.” Tex. Gov’t Code §§ 2400.003.
Immunity Waived. Governmental immunity protects the State’s political subdivisions, including its cities, against suits and legal liability. Hillman v. Nueces County, 579 S.W.3d 354, 357 (Tex. 2019). Governmental immunity bars suit against a city, for example, unless the state legislature has clearly and unambiguously waived the city’s immunity. See Chambers–Liberty Cntys. Navigation Dist. v. State, 575 S.W.3d 339, 344 (Tex. 2019); Tooke v. City of Mexia, 197 S.W.3d 325, 330 (Tex. 2006). Pursuant to the clear and unambiguous language of Chapter 2400—and as asserted by the claimants in the case of Dohlen v. City of San Antonio—“[a] person who alleges a violation of Section 2400.002 may sue the governmental entity for the relief provided under Section 2400.003. Sovereign or governmental immunity, as applicable, is waived and abolished to the extent of liability for that relief.” § Id. at § 2400.004 (emphasis added).
Insights. The Texas Supreme Court gave the hungry claimants in Dohlen an opportunity to replead at the trial court level, their allegations of waiver of immunity by the City of San Antonio pursuant to Chapter 2400. Those claimants may end up going hungry because there was no governmental action taken after Chapter 2400 became effective (i.e., the decision to ban Chick-fil-A occurred months before Chapter 2400 became effective), and the claimants failed to point to any specific “adverse action” that the City took on or after the effective date of Chapter 2400. Absent a “credible threat” to violate Chapter 2400, the courts and the law will assume that the City will comply with its prescriptions. Time, additional–and likely creative–pleading, and additional due process of Texas law will tell.
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