Irving Bond Validation 5thDistrict CityBrief

8/7/2019 Irving Bond Validation 5thDistrict CityBrief

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No. 05-L1-00036-CV

IN THE COURT OF APPEALSFIFTH ruDICIAL DISTRICT OF TEXASDALLAS, TEXASEX PARTE: THE CITY OF IRVING, TEXAS

BRIEF OF APPELLEE THE CITY OF IRVINGCharles R. Anderson

State Bar No. 01170500Office of the City Attorney825 West Irving BoulevardIrving, Texas 75060972.721.254197 2.7 2t .2750 (facsimile)canders on @city ofiwing. org

Michael L. RaiffState Bar No. 00784803

Gibson, Dunn & Crutcher LLP2100 McKinney AvenueDallas, T){7520t-6912214.698.3350214.57 I .2927 (facsimile)MRai ff@gib s ondunn. c omRay HutchisonState Bar No. 10352000Thomas S. Leatherbury

State BarNo.12095275Robert R. Collins, III

State Bar No. 00792420Julie M. PartainState Bar No. 24032734Marc A. FullerState BarNo.240322L0Vrxsor{ & Errrs LLP

2001 Ross Ave., Suite 3700Dallas, Texas 7 5201-297 52r4.220.770021 4.999 .7 7 92 (facsimile)tleatherbury@vel aw. [email protected]

.A.ttorneys for Appellee The {Jty of lwingOrat Argument R equested


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TABLE OF CONTENTSIDEI\TITY OF PARTIES AND COUNSEL 111INDEX OF AUTHORITIES ......1vSTATEMENT OF THE CASE...STATEMENT REGARDING ORAL ARGUMENTISSUES PRESENTED....STATEMENT OF FACTS

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I. The City's Entertainment and Hotel ProjectII

II. The Proposed Bonds ............. ISUMMARY OF THE ARGUMENT....... IARGUMENT l1I. The Tax Revenues Pledged by the City Are Not Subject to BiennialAppropriation. 11

The Texas Legislature Has Made Clear that Biennial AppropriationIs Not Required for the Revenues at Issue in this Case T2The Revenues at Issue Are Not General Revenues. ................... 16The Attorney General Has Previously Approved Proposed BondsSecured by the Same Revenues, Without Suggesting that BiennialAppropriation Is Required. ...... 18

il. The City Is Entitled to the State Mixed-Beverage Revenues 20

ABC

A. The Plain Meaning of "Governmental Body" Includes the State. ..............20B. The Doctrines of Ejusdem Geners andNoscitur a Sociis Do Not

Require a Narrower Construction.C. The Legislative History Supports a Broad Interpretation of

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"Governmental Body." 26D The Overall Structure of Chapter 2303 Does Not Support Limiting"Governmental Body''to Local Governments Only. .................27

m. The Attorney General Has Waived Any Challenge to the Proposed Bonds. .........28IV. The Opposing Intervenors' Appeal Is Improper and Without Merit. .. 29

The Court Should Dismiss the Opposing Intervenors' Appealand Not Consider Their Appellate Issues.......The Court Has Already Rejected the Opposing Interyenors'Argument that the Entertainment and Hotel Project Is Not aQualifuing "Hotel Project" Under Chapter 351 of the TexasTax Code, and There Is No Reason to Reverse that Holding. .........32

C. The Ordinances Imposing the Ticket and Parking Taxes Were

30A.

B.

Properly Passed at a Special Meeting. 36CONCLUSION AND PRAYER .................40CERTIFICATE OF SERVICE 42

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IDENTITY OF PARTIES AND COUNSELAppellant/Defendant Trial and Appellate CounselThe Office of the Attorney General ofTexas

Appellants/DefendantsJoe PutnamIrving Taxpayers Opposed to Illegal andWasteful Use of Tax Money

David J. SchenckDeputy Attorney General for LegalCounselDavid C. MattaxDirector of Defense LitigationJennifer S. JacksonAssistant Attomey GeneralFinancial Litigation DivisionOffice of the Attorney General of TexasP.O. Box 12548Austin, TX787lI-25485t2.936.1342s12.936.0545 (fax)Trial and Appellate CounselJames B. HarrisScott P. StolleyRichard B. Phillips, Jr.Thompson & Knight LLPOne Arts Plazal722Routh Street, Suite 1500Dallas, TX7520l-25332r4.969.t700214.969.1751 (fax)

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Appellee/PlaintffCity of lrving, Texas

Other IntervenorsLas Colinas Group, LP

Trial and Appellate CounselMichael L. RaiffGibson, Dunn & Crutcher LLP2100 McKinney AvenueDallas, TX7520I-6912214.698.3350214.571.2927 (fax)E. Ray HutchisonThomas S. LeatherburyRobert R. Collins IIIJulie M. PartainMarc A. FullerVinson & Elkins LLP2001 Ross Avenue, Suite 3700Dallas, TX7520I214.220.7700214.999.7792 (fax)Charles R. Anderson, City AttorneyOffice of the City Auorney825 West Irving Blvd.Irving, TX 75060972.721.2541972.721.2750 (fax)

Frank L. BransonEric T. StahlLaw Offices of Frank L. Branson, P.C.4514 Cole Avenue, Suite 1800Dallas, TX75205214.522.02002t4.521.5485 (fax)

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B Concessionaire-Las Colinas, LLC

Greater Irving-Las Colinas Chamber ofCommerce

Dallas County Utility and ReclamationDistrict

Pro Se Intervenors

Mikel J. BowersBell Nunnally &, Martin LLP3232McKinney Avenue, Suite 1400Dallas, TX75204-2429214.740.1400214.740.1499 (fax)Robert D. MartinezCotton, Schmidt & Abbott, LLP550 Bailey Avenue, Suite 600Fort Worth,TX76I07817.338.4s00817.338.4599 (fax)John F. Boyle, Jr.Boyle & Lowry, L.L.P.4201 -Wingren, Suite 108Irving, TX75062-2763972.650-1700972.650.1 701 (direct dial)972.650.7105 (fax)Thomas BlakewellSteve BronnerJames W. CasselsCousins Properties Services LLCTeresa E. CrowGables ResidentialHines Las Colinas L and LPIrving Convention and Visitors BureauCarl KlinkeJacky KnoxClementine C. LearDanny OpitzNancy OptizMel RobinsonRobert N. StewartCarlton E. Turner, Ph.D., D.SC.Rob Witte

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INDEX OF AUTHORITIESCasesAlbertson's, Inc. v. Sinclair,

984 S.W.2d 958 (Tex. 1999)Buckholtz Indep. Sch. Dst. v. Glaser,

632 S.w.2d t46 (Tex. 1982)City of Bells v. Greater Texoma Util. Auth.,

790 S.W.2d 6 (Tex. App.-Dallas 1990, writ denied)City of Houston v. Clark,

197 S.W.3 d 314 (Tex.2006)Columbia Med. Ctr. Of Las Colinas, Inc. v. Hogue,271 S.w.3 d 238 (Tex. 2008)Doyle v. State,

148 S.W.3d 611 (Tex. App.-Austin, 2004, pet. denied)Estate of Pollackv. McMurrey,

858 S.IV.2d 388 (Tex. 1993)......Frst Am. Title Ins. Co. v. Combs,258 S.V/.3 d 627 (Tex. 2008)Friedman v. Am. Surety Co. of New York,1sl S.W.2d 570 (Tex. l94l)

Helena Chem. Co. v. Wilkins,47 S.W.3d 486 (Tex. 2001)

20

.......14

v

39

t423

......17

28

37

t7

General Chem. Corp v. De L Lastra,8s2 S.W.2d9l6 (Tex. 1993) ..............33

Humble Oil & Ref, Co. v. City of Georgetown,428 S.W.2d 405 (Tex. Civ. App.-Austin 1968, no writ) 37

In re Estate of Nash,220 S.w.3 d 9t4 (Tex. 2007) 23Lower Colorado River Auth. v. Cty of San Marcos,

523 S.w.2d64t (Tex. t97s) ..............391V


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Manon v. Lockhart,I 14 S.w.2d216 (Tex. 1938)

Monsanto Co. v. Cornerstones Mun. Util. Dist.,86s S.W.2d937 (Tex. 1993)

Office of Public Utility Counselv. Public Utlty Comm'n of Tex.,878 S.W.2d 598 (Tex. 1994)Ohnesorge v. Winfree Academy Charter School,328 S.W.3d654 (Tex. App.-Dallas 2010, no pet. h.)Putnam v. City of lrvng,No. 05- I 0 -01269 -CV, 20 | I WL 25947 8 (Tex. App.-Dall as, 2011 ) ......Smth Cnty. v. Thornton,726 S.W.2d 2 (Tex. 1986)Smith v. Wortham,

157 S.W. 740 (Tex.l9l3)Thomas v. State,91 S.W.2d 716 (Tex. Crim. App. 1935)United States v. Mescall,21s U.S. 26 (te0e)StatutesTpx. Ac. Cooe $ 41.052TBx. CoNST. art. Iil, $ 6TEX. ELEC. Cooe $ 251.001TBx. FrN. Coop $ 14.063TBx. FrN. CooB $ 16.010TBx. Gov'r CoDE $ 1205.021(2)Tpx. Gov'r CoDE $ 1205.042

22

t7

l834

39

24

2l2t2t39

passlm

..23

..24

..2tll,12,13

4

V

TBx. Gov'r CoDE $ 1205.063(a)(2) ....4


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TBx. Gov'r ConB $ 2009.002TBx. Gov'r CorB 2252.091TBx. Gov'r CoDE 2254.021(6)..........Tex. Gov'r CoDs $ 2303.002..............

2l242426

Tpx. Gov'r CooE $ 311.011(a)TBx. Gov'r CoDp $ 311 .023(2)TBx. Gov'r CoDp $ 311 .026(a) ........TEx. Gov'r CoDE $ 33.030Tpx. Gov'r Conn $ 391.003.........TBx. Gov'r CoDE $ 401.011(g)Tpx. Gov'r Coon $ 436.053(b)Tex. Gov'r CooB $ 551.001(3)TBx. Gov'r Coos $ 559.001Tnx. Gov'r Coos 573.042....Tex. Gov'r CooE $ 614.003....Tsx. Gov'r Cors $ 659.002(c)Tex. Gov'r CooE $ 2303.502TBx. Gov'r CoDE $ 2303.504

Tsx. HuNr. RBsouncBs Coor $ 115.004TBx. Spsc. Drsrnrcr No Locar Laws CooB $ 8842.102(b)

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20aaJJt42t2t2l2t2t2t2t2t2l26

2t2t

TBx.TexCooB$ 111.104v1

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TBx. Tax Conp $ 151 .027(c)(7) ... ..,...,..,20Tex. TnaNsp. CooB $ 456.001(2) 2t

2t20

2536

39t2

TBx. Tnusp. Conp $ 458.001.TBx. Gov'r CooE $ 2303.5055 ..............passimTEx. Gov'r Coop $ 552.003(1XA)Tsx. Tnx CooB $ 151 .429(h)Tpx. Tx CooB $ 351.102Other AuthoritiesC.S.H.B. 2001,75'hLeg.,Reg. Sess., $ 7....IRVTNG, Tpx. CSaRTER, Art. IV, $ 17 .OpnIcs oF THE Texas Arronxpv Gsupnl, OreN Mpernqcs HaNoeooK, at 65(2008)Tex. Atty Gen. Op. H-716 (1975)

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oa

RECORD REFEREI'.{CESIn this brief, the following record citation forms will be used:

Clerk's Record (Vols. 1-6) will be cited as "[volume]CR.[page]."Reporter's Record will be cited as "lRR.[page]," when referencing the transcript ofthe trial on September 27,2010, and 3RR.[p&go]," when referencing the transcript ofthe trial on October 4,2010.The City's trial exhibits will be cited as "PX[number]."The Opposing Intervenors' trial exhibits will be cited as "DX[number]."

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STATEMENT OF THE CASEThis is the third appeal arising out of a bond validation suit brought by the City of

Irving (the "City") under the Expedited Declaratory Judgment Act in Chapter 1205 of theTexas Government Code (the "Act"). See TBx. Gov'T CoDE $ 1205, et seq. This appealis accelerated and takes priority over any other matter, other than writs of habeas co{pus,pending in the appellate court. Tpx. Gov'r Coos g 1205.068(e).

To fund the construction of a major Entertainment and Hotel Project, the Cityplans to issue three series of municipal bonds ("Proposed Bonds" or "Bonds"). OnSeptember 2, 2010, the City filed a Petition under the Act to validate the Bonds. l CRl .The City's Petition was ans'wered by the Off,rce of the Attorney General for the State ofTexas ("Attorney General"), which is a mandatory party to proceedings under the Act,and two opposing intervenors-Joe Putnam and the Irving Taxpayers Opposed to Illegaland Wasteful Use of Tax Money (collectively, "Opposing Intervenors"). Numerous otherintervenors appeared in support of the Petition.

In its Answer and during trial, the Attorney General repeatedly stated that it wasneutral in this case and did not take any position on the legality of the Proposed Bonds.During the first day of trial, the Attomey General identified only one issue for the trialcoutt's consideration, which it has now abandoned-whether the City has presentedevidence to establish that the Entertainment and Hotel Project qualified as a "hotelprojecf'under Section 351.102(b) of the Texas Tax Code. Before the trial resumed forthe second day, the Attorney General submitted a Trial Brief, in which it raised two newissues for the trial court's consideration-whether certain revenues pledged as security

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for the Bonds were subject to biennial appropriation by the Texas Legislature andwhether the City was entitled to receive the State's portion of mixed beverage taxrevenues. The Attorney General's Trial Brief stated, however, that it was not taking aposition on either issue. But when the City moved for final judgment, the AttorneyGeneral took the position that the Proposed Bonds could not be validated based on thesetwo issues. The trial court agreed with the City on both issues and entered FinalJudgment. The Attorney General filed this appeal.

In addition, the Opposing Intervenors, who were not parties when the FinalJudgment was signed, have also filed an appeal from the Final Judgment. Their appeal isimproper and should be dismissed. As the Court already held in the prior consolidatedappeals in this case, the Opposing Intervenors were properly dismissed from this casebecause they failed to post a $10 million bond ordered by the trial court as a prerequisiteof their continued participation in this case. See Putnam v. City of lrving, No. 05-10-0r269-Cv,2011 wL 259478 (Tex. App.-Dallas Jan. 27,2011, no pet. h.) (the "putnamappeal" of ooPutnam").

STATEMENT REGARDING ORAL ARGUMENTThe City believes oral argument is unnecessary. Time is of the essence inresolving this appeal. As the Court recognized in Putnam, "'the mere existence of the

suit acts as a temporary injunction"' against the issuance of the Proposed Bonds and thecompletion of this voter-approved project. Id. at *2 (quoting Buckholtz Indep. Sch. Dist.v. Glaser,632 S.W.2d 146, 149 (Tex. 1982)). The issues before the Court are discrete,limited, and purely legal in nature. Nevertheless, should the Court determine that oral

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argument would aid its decisional process, the City preserves its right to participate byrequesting oral argument on the cover of its brief, as required by Texas Rule of AppellateProcedure 39.7.

ISSUES PRESENTEDThe Attorney General challenges only two discrete provisions of the Final

Judgment entered by the trial court in favor of the City. Specifically, the AttorneyGeneral's appeal raises the following issues:

1. Did the trial court correctly hold that the City is entitled to the State ProjectTaxes and the City's portion of the mixed beverage tax for a period of tenyears, as expressly provided by statute, without the need for these revenues tobe re-appropriated by the Texas Legislature on a biennial basis?

2. Did the trial court correctly hold that the State is a "governmental body''underthe plain meaning of Section 2303.5055 of the Texas Government Code andthat the City is therefore authorized to receive the State's portion of the mixedbeverage tax?

In addition, the Opposing Intervenors have improperly attempted to participate inthis appeal, even though this Court has already held that they were properly dismissedfrom this case for failing to post the bond required under the Expedited DeclaratoryJudgment Act. The Court should disregard their arguments and dismiss them from thisappeal. If the Court does consider their arguments, then it will need to decide thefollowing two additional issues:

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1. Did this Court correctly hold in Putnam that the Entertainment and HotelProject is a "hotel project" within the meaning of Section 351.102(b) of the Texas TaxCode? 2. Did the trial court correctly hold that the City Council properly passed theordinances levying the Admission Tax and Parking Tax at a "special" meeting? If not,did this Court correctly hold in Putnam that any alleged violation will be cured when theCity Council votes to re-levy those taxes at a "regular" meeting?

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STATEMENT OF FACTSI. THN Crry'S ENTnnTAINMENT No Hornr, Pnopcr

The City of Irving is in the middle of a large, multi-phase project to build aconvention and entertainment destination in Las Colinas. The first phase of the projectincluded the construction of a new $135 million Convention Center. 1RR.100. Toenhance the new Convention Center and distinguish it from competing venues, the City isin the process of designing and planning an Entertainment and Hotel Project, which willbe built immediately adjacent to the Convention Center. 1RR.109. The Entertainmentand Hotel Project will be connected to the Convention Center by a pedestrian walkway,promoting easy access to and from each facility. 1RR.108-09, 133. The Entertainmentand Hotel Project will include various interrelated facilities, including a boutique hotel,performance hall, restaurants, open air plazas, outdoor stages, promenades, and parkingfacilities. lRR. 108-09.il. Tuo PnoposED BoNus

The City has already issued bonds and expended funds in the amount of $25million to pay for the initial design and planning of the Entertainment and Hotel Project,and the City is ready to move forward with construction. 1RR.97, 104-05. To financethis construction, the City intends to issue three series of bonds (Series 20104, 20108

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and 2010C)r in a total amount not to exceed $200 million in net proceeds. 1RR.121.These Bonds may be secured by pledges of various revenues, including:

o State Project Taxes. Once the Project is operating, the businesses withinthe Project will begin collecting stte sales and use tuxes and stte mixedbeverge tqxes. 1RR.130. Additionally, a stte hotel occupncy tux wiIIbe collected from the Project's boutique hotel. lRR.130. These taxes arelevied by the State and collected from within the Project. lRR.l30, 136.

. City Project Taxes. The City also levies its own one percent (I%) slesand use tax, and that tax will be collected from within the Project andpledged to the Bonds. IRR.136. Similarly, the City will pledge its portionof the mixed beverage tx. 1RR.136. As background, the State imposes al4o/o mixed beverage tax, but the State remits a portion of that tax(10.7143% of the I4o/o tax) to the City. 1RR.137. Thus, the City receivesfrom the State a portion of the state mixed beverage tax. lRR.l37.

o 7o/o City Hotel Occupancy Tax. The City also intends to pledge a city-wide 7o/o hotel occupancy tax it has levied on stays at hotels within the City(,,7o/o HOT").

1 If issued this year, these Bonds will be Series 20l1A,2OlIF., and 201lC.

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o Rent Payments. The City anticipates receiving rent payments from itstenant at the Project, the Las Colinas Partnership (or any successor orassigns). 1RR.141.o Parking Tax. The City has levied a tax of $3.00 on each motor vehicleparking in a parking facility of the Entertainment and Hotel Project.lRR.138-39;PX23. The tax is also levied on an additional 2400 parkingspaces adjacent to the Entertainment and Hotel Project, pursuant to aparking lease agreement with the owner of those parking spaces. lRR.l40;PX24.

o Admission Tax. The City has levied a l0% tax on the price of admissionto events held at the Entertainment and Hotel Project. lRR.140-41; PX25.

o 2o/o EV HOT. The City has levied an additional2o/o tax on the occupancyof a room in hotels located within the City ("ZyoEV HOT";.2 tnn.tZl.

UI. TrrB PnocEEDINGS Bpr,owThe Attorney General suggests in its Brief that the City was forced to seek judicial

validation of the Bonds because the Attorney General had reviewed them and concludedthat they contained incurable legal defects. See AG Br. at 3. This suggestion is2 The Parking Tax, Admission Tax, and 2% EV HOT were levied pursuant to Chapter 334 of the TexasLocal Government Code, commonly called the "Brimer Bill." As required by the Brimer Bill, the Cityheld an election in November 2007 (the "2007 Election) to obtain voter approval for these specialBrimer taxes. 1RR.95-96; PX9. The proposition passed overwhelmingly. Id. Following that election,the City Council levied the 2o/o HOT in 2008 and levied the Parking and Admission taxes on August 25,2070. See PX20; PX23: lRR. 129, 139, l4l.

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inaccurate and shameful. There is no evidence in the record to support any suchsuggestion. Indeed, as demonstrated below, the Attorney General originally stated in thetrial court that it had no objection to the Bonds. It was not until the eve of final judgmentthat the Attorney General first opposed the Bonds

The City filed its Petition on September 2,2010. lCRl. As required under theAct, the City served the Petition on the Attorney General, which is a mandatory party to aproceeding under the Expedited Declaratory Judgment Act. Tgx. Gov'T CODE $1205.042. Under the Act, the Attorney General was required to review the Petition.Tpx. Gov'T CoDE $ 1205.063(aX2). If, based on that review, the Attorney General"believefd] that...the public securities are...or will be invalid or unauthonzed'it wasrequired to say so in its Answer and raise all appropriate defenses to the relief requestedin the Petition. /d. Here, the Attorney General's Answer did not raise any defenses anddid not deny that the Bonds were valid and authorized. Instead, the Attorney Generaltook a neutral position:

The Attorney General nether dmits nor denes theallegations made by Petitioner The City of Irving, butrespectfully requests that this Honorable Court require theallegations of the Petition be properly proven. . . . .Upon proper proof being mde by Petitioner hercin of theallegations contained in the Petition, the Attorney Generalwill have no obiecton to the relief requested by Petitonerbeing granted by this Court[.]

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As required under the Act, the trial court called the case to trial on September 27,2010. 3CR485. At trial, the Attorney General repeatedly confirmed its neutral position.In his opening remarks to the trial court, counsel for the Attorney General stated:Well, with respect to the Attorney General's Office, ths is asituation where because of basically the somewhat novelargument that we haven't addressed before, ute're leglly nottking poston on the fundamentl ssue that's beenrsed, which s whether or not Secton 351 pples to thssituation.

Sometimes in these matters, people come to the AttorneyGeneral's Office for our approval of these bonds and then goto Court to get the positions validated. In other cases, such asthis one, they go directly to the Court and get the issuevalidated. So wth respect to the fundmentl legl sues, Isuppose the best poston for us to tlk about s that we'refund m e ntlly n e utral.Obviously, depending on what the final Resolution is andwhat the terms of any order are, we would have commentaryon the order to make sure it comports with the way we viewthings. On the fundmentl ssue bere the Court, we reneutral tody.

lRR.8 (emphasis added). Of course, the "fundamental issue" that the Attorney Generalrepeatedly referred to at trial is an issue that the Attorney General has not raised in thisappeal-whether the Entertainment and Hotel Project is a "hotel project" underChapter 351 of the Texas Tax Code. Id. According to the Attorney General, that issuerequired the presentation of evidence relating to the boutique hotel and its relationship tothe other facilities within the Project and, then, a legal determination regarding whethersuch a project qualif,red as a "hotel project" under Section 351.102(b) of the Texas TaxCode. 1RR.24. The Attorney General does not dispute that the City properly proved at

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trial that the Entertainment and Hotel Project is a "hotel project" under Section351.102(b) of the Texas Tax Code.3 The Attorney General did not otherwise present any

evidence, examine any witnesses, or make any argument in opposition to the Bondsduring the trial.

On October 1, 2010, the Attorney General submitted a Trial Brief, in which itasserted for the first time that, in addition to the "hotel project" issue, the trial courtwould need to determine whether the State's share of the mixed beverage taxes collectedwithin the Project may be paid to the City and whether all of the State Project Taxes aresubject to biennial appropriation by the Texas Legislature. 3CR.662-64. Significantly,even at this late date, the Attorney General stated in the Brief that it "t[ook] no position"on these issues. 3CR.662.

For the next two months, the proceedings focused on the City's motion for asecurity bond against the Opposing Intervenors. After conducting a hearing on thatmotion on October 4, 2010, the trial court ordered the Opposing Intervenors to post a510 million bond. See Putnam,2011 WL 259478 at*2. When the Opposing Intervenorsfailed to post the required bond, they were dismissed from the case. See id. TheOpposing Intervenors then appealed the trial court's order imposing the bond and itsorder dismissing them from the case. See d. The Court affirmed both orders onDecember 13, 2010. See Dec. 13, 2010 Op. in No. 05-10-01269-CV. The Court3 As discussed below, the "hotel project" issue was resolved by this Court in Putnam and has not beenraised by the Attorney General in this appeal. See Putnam,2017 WL259478 at*3-6.

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subsequently modified its opinion and denied the Opposing Intervenors' request forrehearing and reconsideration en banc. See Jan.27,20Il Op. in No. 05-10-012 69-CV.4

Two days later, the remaining parties in the case-the City and the AttorneyGeneral-filed separate motions for entry of final judgment. 6CR.126l (City's Motion);6CRl277-80 (AG's Motion). For the most part, the City and the Attorney Generalagreed on the appropriate relief. The Attorney General did not, for example, dispute thatthe Entertainment and Hotel Project was a qualifying "hotel project" under Section351.102(b)oftheTexasTaxCode. But,forthefirsttme,theAttorneyGeneraltooktheposition with the trial court that the City was not entitled to the State's portion of themixed beverage tax and that the State Project Taxes were subject to biennialappropriation by the Texas Legislature. Until then, as discussed above, the AttorneyGeneral had repeatedly stated that it was "neutral" regarding the Proposed Bonds and,specifically,Ihat it "t[ook] no position" on the mixed beverage and biennial appropriationissues.

After considering the City's and the Attorney General's arguments on these twoissues, the trial court agreed with the City and entered the City's proposed FinalJudgment. 6CR.I28l-87. On January 31,2011, at the request of the Attorney General,the trial court entered Findings of Fact and Conclusions of Law. 6CR.1313-15. The trialcourt held that the term o'governmental body" in Section 2303.5055(a) of the Texasa Unless otherwise stated, all references in this brief to the opinion by the Court in the prior consolidatedappeals in this case will be to the Jatuaryz7,2011 opinion, which modified and superseded theDecember 13, 2010 opinion. See Putnam, 20ll WL 259478.

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Govemment Code is unambiguous, noting that it "has been used repeatedly throughoutTexas' statutes" to refer both to local and state bodies. 6CR.l3l4. The trial court furtherheld that the Attorney General's proposed construction would conflict with the CodeConstruction Act, TBx. Gov'T CoDE $ 3l1.005(13), under which "including" is a term ofenlargement. Id. The trial court also held that legislative history and the generalstructure of Chapter 2303 of the Texas Government Code support the plain meaning ofthe term. 6CR.1314-15. In addition, the trial court held that none of the pledgedrevenues were subject to biennial appropriation. 6CR.1315.

SUMMARY OF THE ARGUMENT.When the Attorney General first appeared in this case, it took a "neutral" position

on the legality of the Proposed Bonds. The Attorney General told the trial court that itsonly objective was to ensure that the City put on evidence to establish that theEntertainment and Hotel Project qualified as a'ohotel project" under Section 351.102(b)of the Texas Tax Code. If the trial court determined that the City had met its burden, theAttorney General stated that it would have "no objection" to the relief requested by theCity in its Petition.

For whatever reason, the Attorney General now attempts to disavow its professedneutrality. Of course, the "hotel project" issue has already been resolved by this Court inthe City's favor. But the Attorney General now raises two separate, additional issues,taking the position that the trial court's Final Judgment should be modified to (1)condition the City's entitlement to the State Project Taxes and the City's portion of the

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mixed beverage tax on biennial appropriation by the Legislature and (2) deny the City theState's portion of the mixed beverage tax altogether.

Neither of these objections convinced the trial court, and they should not convincethis Court, either. It is inconceivable that the Legislature intended for these tax revenuesto be subject to biennial appropriation, given that the statutes provide that the City isentitled to the tax revenues for period of ten yersr so that it can pledge them assecurity for bonds. A pledge of a ten-year revenue stream would be meaningless andineffective as security if the revenues were subject to the whims of the Legislature andGovernor every two years. Rather, the statutes clearly treat these specific tax revenuesdifferently from general revenues held by the State for any purpose. Unlike generalrevenues, these specific tax revenues are held by the State for the benefit of the City-inessence, a trust. This is how the State Comptroller administers these revenues, withoutbiennial appropriation from the Texas Legislature, and it is also consistent with theAttorney General's approval of other cities' bond issuances. Indeed, the AttorneyGeneral has repeatedly approved other cities' "hotel project" bonds, secured by the sametax revenues, without ever suggesting that these pledges ae subject to biennialappropriation.

The Attorney General's attempt to deny the City the State's portion of the mixedbeverage taxes collected in the Project area is also without legal basis. Section2303.5055 of the Texas Government Code states that any "govefimental body" mayprovide such a rebate. The plain meaning of the term "governmental body" includes bothlocal and state governmental bodies, and the Attorney General's attempt to limit the term

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to "local" govemmental bodies is inconsistent with this plain meaning. Even if the termwere ambiguous, the Attorney General's misplaced reliance on the doctrines of ejusdemgeneris and noscitur a socis, its selective reading of legislative history, and itsmisleading description of the'ostructure" of Chapter 2303 should all be rejected.

And that should end this appeal. There is no reason for the Court to consider theadditional arguments of the Opposing Intervenors. They have been dismissed from thiscase, and this Court has upheld that dismissal. Moreover, their arguments here are of noconsequence. The Court flatly rejected the Opposing Intervenors' argument that the"hotel project" is a sham and not areal "hotel project" under Section 351.102(b) of theTexas Tax Code in the prior consolidated appeal, and there has been no additionalevidence presented and no change in law that would justify a departure from that holdingMoreover, their argument that the entire Final Judgment must be reversed and vacatedbecause of a potential procedural violation by the City Council in formally levying twovoter-approved taxes at a "special" meeting instead of a "regular" meeting is alsoinconsistent with this Court's prior holding. First, there was no procedural violation; theordinances levying these taxes were properly passed at a "special" meeting. But even ifthe Opposing Intervenors are coffect on this point of order, the Court has alreadycorrectly held that any alleged violation can easily be remedied by re-levying the voter-approved taxes at alater "regular" meeting.

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ARGUMENTI Tnn Tnx Rnvrnuns Pr,nucnD By rnn Crry AnB Nor Sunncr ro BrnNNrnr,AppnopnrarroN.

The Attorney General argues that the City's entitlement to several of the pledgedtax revenues is subject to biennial appropriation by the Texas Legislature. The AttorneyGeneral bases this argument on Article VIII, Section 6 of the Texas Constitution, whichprovides as follows:

No money shall be drawn from the Treasury but in pursuanceof specific appropriations made by law; nor shall arryappropriation of money be made for longer term thn twoyears.

Tex. CoNST. art. V[I, $ 6 (emphasis added). This is a new position for the AttorneyGeneral. The Attorney General has historically approved bonds secured by many of thesame tax revenues, without any requirement that the funds be re-appropriated on abiennial basis or requiring a statement in the bond documents that such funds are subjectto biennial appropriation. Indeed, the economic development statutes on which the Cityrelies here for its pledge would make no sense if re-appropriation were required everytwo years, as the statutes expressly provide that the revenues may be pledgedfor a perodof ten yeurs. Moreover, any suggestion that these revenues are akin to general revenues,which are deposited in the State's general fund for unspecified purposes, is inaccurate.The tax revenues at issue here are specifically monitored and separately accounted forfrom the moment of their collection, so that they may be paid according to the applicableprovisions of the Tax Code and Government Code. In effect, the Legislature has

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provided that, to the extent these earmarked funds are ever held by the State, they areheld in trust for the benefit of the City.

The Texas Legislature Has Made Clear that Biennial AppropriationIs Not Required for the Revenues at Issue in this Case.The biennial appropriation requirement set forth in Article VIII, Section 6 is not

absolute. Rather, it is subject to other provisions of the Constitution. Tex. Atty Gen. OpH-716 (1975). In 1987, Texas voters amended the Constitution by adopting Article III,Section 52-a, which provides:

Notwthstnding ny other provson of ths consttution, thelegislature may provide for the creation of programs and themaking of loans and grants of public money...for the publicpulposes of development and diversification of the economyof the state, the elimination of unemployrnent orunderemployment...or the development or expansion oftransportation or commerce in the state....

This provision permits the Legislature to carve out exceptions to Article VIII, Section 6,by establishing an economic development program in which it grants powers to state andlocal governmental bodies that may be inconsistent with the requirement of biennialappropriation.

The adoption of Section 151.429(h) of the Tax Code, Section 2303.5055 of theGovernment Code, and the amendment to Section 351.102(c) of the Tax Code, clearlyreflect the Legislature's intent to enact such an economic development program for hotelprojects. In fact, Chapter 2303 of the Government Code is titled "ECONOMICDEVELOPMENT PROGRAMS INVOLVING BOTH STATE AND LOCAL

A.

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itself to be enacting these statutes pursuant to Section 52-a, it would not have providedfor a ten-year ppropriton of revenues in support of these economic developmentprograms.

Indeed, the Attorney General's reading of these statutes could render certainprovisions of them unconstitutional and meaningless. See City of Houston v. Clark, 197S.W.3d 314, 320 (Tex. 2006) ("When faced with multiple constructions of a statute, wemust interpret the statutory language in a manner that renders it constitutional if it ispossible to do so."); Columbia Med. Ctr. Of Las Colinas, Inc. v. Hogue,271 S.W.3d238,256 (Tex. 2008) (court must "avoid[] any construction that would render a provisionmeaningless"); Tex. Gov'T Coon $ 311.026(a) (providing that one statutory provisionshould not be interpreted to render another meaningless). For example, if the programscreated under these statutes are not economic development programs under Section 52-a,then certain of their key provisions could be unconstitutional. Prior to 1987, whenSection 52-a was enacted, the Texas Constitution prohibited any grant of public funds toa private entity. See Tpx. CoNsr. art. III $ 52-b. Section 52-a cawes out an exception tothis rule, but only for economic development programs. Here, for example, Section151.429(h) of the Texas Tax Code provides that "the owner of a qualified hotel project"shall receive the applicable tax revenues-whether the owner is a city or a private entity.While the City will be the owner of this particular "qualified hotel project," privateentities can be entitled to public refunds under Section I5I.429(h), as a Section 52-aexception to the general prohibition against providing public funds to a private entity.

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But, under the Attorney General's reading of Section 52-a, such an affangement could berendered unconstitutional, even though it is clearly anticipated by the statute.

Moreover, the statutes do not just appropriate the revenues for a period of tenyears, they expressly permit these ten-year revenue streams to be pledged to therepa)ment of bonds. See Tex. Tx CooE $ 351.102(c) (a municipality is entitled toreceive funds under Section I51.429(h) of the Texas Tax Code and Section 2303.5055 ofthe Government Code and pledge those funds for the payment of bonds). According tothe Attorney General's proposed construction, however, such a pledge would beunconstitutional. See AG Br. at 16. In addition, the Attorney General's interpretationwould render pledges under these statutes meaningless and ineffective as security for thebonds, if their parment were subject to re-appropriation by the Legislature every twoyears. A city does not "pledge" revenues it does not know it will receive. Bond marketsdemand certainty regarding which revenues will be "pledged," not just the expressedhope of the bond issuers that funds might be available to repay the obligations. Thiswould fundamentally undermine the purpose of the statutes-to create economic

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development programs and projects-by undermining municipalities' ability to rely onbond financing to fund those programs and projects.6

B. The Revenues at Issue Are Not General Revenues.The Attorney General's argument on this point also mischaracterizes the revenues

at issue here, suggesting incorrectly that they are treated no differently from generalrevenues. In fact, the funds at issue in this case are reserved by statute for expenditure onqualifying development projects, not for general purposes. For example, under Section351.102(c) of the Tax Code, not only is the City "enttled to receive" the tax revenuesgenerated from within its hotel project, but it is specifically entitled to "pledge [those]funds for the payment of [bonds] obligations." Administratively, the State recognizesthat these specific tax revenues are treated differently from general revenues. Indeed, inadministering the "refunds" provided for under Section 351.102(c) and Section151.429(h) of the Texas Tax Code, the State Comptroller ensures that the tax revenuesare properly accounted for from the moment of ther collecton, so that they may berefunded to the project's owner as provided under the statutes. For example, taxpayerswithin the project are required by the State Comptroller to fiIl out a form that will be used

6 In addition, the requirement of a bierrial appropriation would lead to strange results. For example, if atransaction commences and is ready to close in the first quarter of an even-numbered year and isdependent on the state taxes as a part of the security, the transaction would have to be put on hold throughthe first eight months of the following odd-numbered year before it could be determined that theLegislature would appropriate the money for the two following years and that the Governor would notveto it. Similarly, if the transaction is ready to close in the fourth month of an odd-numbered year, onlyone month would be left for the Legislature to act and the Governor to sign it. The Legislature couldnever have intended such a result.

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"for the purposes of montorng the recept of certn Sales and (Jse taxes nd HotelOccupncy txes to whch the City s enttled to receve n ccordnce wth theprovsons of Sectons 351.102(c) nd 151.429(h) of the Texas Tx Code." SeeAppendix Tab A (emphasis added).7 Similarly, the State Comptroller's website suggeststhat the City's portion of the mixed beverage tax is not deposited as general revenues intothe General Revenue Fund:

By law, all mixed beverage and private club permit holdersremit to the State Comptroller a l4o/o gross receipts tax ontheir mixed beverage sales each month. Following the end ofeach calendar quarter, 10.71430/o of the tax paid is allocatedto the county where each business is located. For any businesslocated within an incorporated city, another 10.7143o/o of thetax paid is allocated to the city where it is Iocated. Theremaining tax s distributed to the Stte's Generl RevenueFund.

https://ourcpa.cpa.state.tx.us/allocation/MixBevjsp (last visited March 12, 20ll); seeAppendix Tab 8.8

Accordingly, even to the extent that these funds may be transmitted to the StateTreasurer for some temporary period, the funds are only being held for the benefit of theCity, and the State treats them that way. Such a arrangement does not run afoul of theTexas Constitution. There is a commonsense distinction between funds paid to the Statet The City respectfully requests that the Court take judicial notice of this Comptroller forrn. See Jones v.City of Stephenville,96 S.W.2d 574, 576 (Tex. App.-Eastland 1995, no writ) (court could take judicialnotice of agency handbook).8 The City respectfully requests that the Court take judicial notice of this publicly-available informationappearing on the Comptroller's website. See Oliphant Fin. L.L.C. v. Hill,310 S.W.3d 76, 76 n.2 (Tex.App.-El Paso 2010, pet. filed).

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for the State's general benefit and those that are specifically held by the State for thebenefit of another.e And Article VIII, Section 6 of the Constitution only applies to theformer. See Fredman v. Am. Surety Co. of New York, l5l S.W.2d 570,578-80 (Tex.I94l) (holding that Unemployment Compensation Act "fund is not the property of theState as such, and never goes into the State Treasury''); Manion v. Lockhart, lI4 S.W.2d216,218 (Tex. 1938) (funds paid to State Treasurer by estate administrator not subject toappropriation because intent was for the State to hold funds as trustee or custodian); seealso Tex. Atty Gen. Op. H-138 (finding that both Friedman and Manion involved moneywhich was held by the treasurer for possible or ultimate distribution to an identifiablegroup ofpeople).

The Attorney General Has Previously Approved Proposed BondsSecured by the Same Revenues, Without Suggesting that BiennialAppropriation Is Required.In addition to being at odds with the clear purpose and intent of the statutes

permitting the City to pledge these revenues for a period of ten years, the AttorneyGeneral's position is at odds with its own prior opinions. The City of Irving is not thefirst municipality to propose bonds for a hotel project under Chapter 351 of the Tax

e Indeed, the Legislature has enacted specific provisions in the Government Code and the Tax Code thatmore specifically direct that particular tax collections should be held for pwposes other than to augmentthe state's general fund. See TBx. Gov'T Coon 2303.504. The Tax Code itself contains dozens ofprovisions for a "refund" of taxes under specified conditions. SeeTBx. TAX CoDE $ 111.104. TheAttorney General's position on biennial appropriation would unnecessarily force such specific "Taxrefund" statutes into conflict with the general "tax collection" statutes. See Helena Chem. Co. v. Wilkins,47 S.W.3d 486, 493 (Tex. 2001) (noting fundamental rule that statutes should be interpretedharmoniously).

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Code. In fact, during the last ten years, the cities of Houston, San Antonio, and Dallashave all issued bonds secured by the many of the same revenues as the State ProjectTaxes.to The Attorney General reviewed and approved these bonds, under the sameprocess it describes in its Brief. See AG Br. at l-3. The Attorney General did not takethe position that the tax revenues were subject to appropriation.

Indeed, the Attorney General opinions approving these other cities' bondsexpressly state that the bonds have been issued "in accordance with law" and are "validand binding." Under Section 1371.057(b) of the Texas Government Code, the AttorneyGeneral must consider constitutional provisions in its review of proposed bonds. TheAttorney General's current position is in direct opposition to the opinions it previouslyissued for bonds containing a pledge of the same revenues at issue here. Significantly,those bonds contained no language in the bond documents limiting the pledge of theserevenues or stating that they are "subject to appropriation." Moreover, the Comptrollerhas been paying these revenues to the other cities without any additional appropriation.If the Attorney General's new position were accepted as law, it could adversely affectthese bonds in the market and compromise the State's credibility.

t0 Highlighted excerpts of the relevant bond documents and the Attomey General's opinions approvingthe bonds are attached in the Appendix as follows: City of Houston (Tabs C-l and C-2); San Antonio(Tabs D-l andD-2); and Dallas (Tabs E-l and E-2). The City respectfully requests that the Court takejudicial notice of these public documents. See Office of Public Utility Counsel v. Public Utility Comm'nof Tex., 878 S.W.2d 598, 600 (Tex. 1994) (holding that a court may take judicial notice of agency orderfor first time on appeal).

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In short, whatever caused the Attorney General's change in position, it should berejected as bad law and bad policy.II. Tnp crrv Is ENTTTLED To rHE sTATa Mrxro-Brcvrnacn RnvaNuns.

The Attorney General's argument that the City may not receive the State's portionof the mixed beverage tax presents an issue of pure statutory interpretation. Theprovision at issue, Section 2303.5055 of the Texas Government Code, allows for any"governmentl body" to "rebate, refund, or pay'' such revenues to the owner of aqualified hotel project (here, the City). The question, therefore, is whether the State andits agencies (such as the Comptroller) are "govemmental bodies." They clearly are. Theterm "governmental body" has a plain meaning, which includes both state and localgovernment entities. In the trial court, the Attorney General argued that the doctrine ofejusdem generis may justify a departure from this plain meaning. 3CR.663. Now, onappeal, the Attorney General makes additional arguments based on its selective readingof the legislative history and the "structure" of Chapter 2303 of the Texas GovernmentCode. As discussed below, none of these arguments requires this Court to ignore theplain meaning of the term "governmental body."

A. The Plain Meaning of '6Governmental Body" Includes the State.As the Texas Supreme Court has recognized, statutory interpretation begins with

the plain language of the statute:In construing a statute, our objective is to determine and give effect to theLegislature's intent. V/e accomplish that pu{pose, first, by looking to the statute'splain and common meaning.

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Albertson's, fnc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999) (per curiam) (citationsomitted). Similarly, the Legislature has instructed courts to construe words and phrases"according to the rules of grammar and common usage." TBx. Gov't Con $311.011(a). Here, the common meaning and usage of the term "governmental body'' isclear, and it includes both state and local govemment entities. Under Texas law, thisends the inquiry. Because the State and its agencies are clearly "governmental bodies,"Section 2303.5055 applies to them.

Indeed, a review of Texas statutes, including the Tax Code and the GovernmentCode, demonstrates that the term "governmental body'' is not understood by theLegislature to be inherently limited to local or state entities. For example, Section552.003(1)(A) of the Texas Government Code defines "governmental body'' to includeboth "(i) a board, commission, department, committee, institution, agency, or office thatis within or is created by the executive or legislative branch of state government and, thatis directed by one or more elected or appointed memb ers" and "(iii) a munciplgoverning body in the state." Tpx. Gov't CooE $ 552.003(1XA) (emphasis added).And the Texas Tax Code incorporates that definition of o'governmental body." TEX. TAxCoon $ 151.027(c)(7). Similarly, in other state legislation, the term "governmental

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instructed courts on how to interpret such language, directing that the terms "'includes'and 'including' are terms of enlargement and not of limitation or exclusive enumeration,and use of the terms does not create a presumption that components not expressed areexcluded." TEX. Gov't ConB $ 311.005(13). The Attorney General's interpretationwould violate this mandate, as the three enumerated examples would exhaust the universeof "governmental bodies," and the term "including" would be transformed frorn one ofenlargement to one of limitation.

Moreover, any reliance on doctrines of statutory construction like ejusdem generisand nosctur a sociis would also be inappropriate. These doctrines are often used tonarrow a general term based on other terms that appear in the same statutory provision.The doctrines have no application here, however, because they are "reseryed for languagethat is ambiguous or obscure." Doyle v. Stte,148 S.W.3d 611, 614 (Tex. App.-Austin,2004, pet. denied). For example, in Doyle, the Austin Court of Appeals rejected the useof ejusdem geners and noscitur a sociis to limit a term, "tamper," which the court foundto be unambiguous. Id. at 614-15. The court held that the better interpretive approachwas to "look to the comon meaning" of the term, noting that the term was used broadlythroughout Texas statutes. Id. at 615; see In re Estate of Nash,220 S.W.3 d 914, 917(Tex. 2007) ("If a statute is clear and unambiguous, we apply its words according to theircommon meaning without resort to rules of construction or extrinsic aids."); see alsoThomas v. Stte,91 S.W.2d 716,723 (Tex. Crim. App. 1935) (recognizing that ejusdemgeners must yield to "the stronger and better rule" that laws "be construed according tothe plain import of the language in which it is written") Similarly, "governmental body"

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is unambiguous and, as discussed above, used broadly in Texas statutes. Accordingly,there is no basis for applying ejusdem generis or noscitur a socs to infer a narrowermearung.

Furthermore, the Attorney General's proposed application of ejusdem generisviolates a fundamental limitation on the doctrine by having one of the enumeratedexamples - "political subdivision" - wholly supplant the general term "governmentalbody," rendering the legislature's chosen term, o'governmental body," superfluous. See,e.g., Smith v. Wortltam, 157 S.W. 740,742 (Tex. 1913) (doctrine "has no applicationwhere the specific words exhaust the class of objects referred to"); see (lnted States v.Mescall,2l5 U.S. 26,31-32 (1909) ("Whilst [the doctrine of ejusdem generisl is aimed topreserve a meaning for the particular words, it is not intended to render meaningless thegeneral words."). Even if specific examples suggest some limit to the scope of a generalterm, the general term must still be given a meaning that is broader than the enumeratedexamples. Any construction that would make the general term co-extensive with thespecific examples would improperly read the general term out of the statute. Smith,157 S.V/. at742.

But that is exactly what the Attorney General suggests, as its interpretation wouldleave no room for any o'governmental bodies" that are not one of the enumeratedexamples, including "political subdivisions." In Texas, the universe of governmentalentities can be divided into either "the state" or "political subdivisions of the state." See,e.g., TEx. Gov'r Cotp 2252.091; id. 5 2254.021(6). Thus, according to the AttorneyGeneral's construction, there are no "governmental bodies" that are not also "political

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subdivisions" of the State. The Attorney General's and Opposing Intervenors' briefsunderscore this point, as they note that "political subdivision" includes bodies such asschool districts, utility districts, and transit authorities. See AG Br. at}l; Opp. Int. Br. at29. Such a construction would erroneously supplant the general term o'governmentalbody'' with one of the specific examples - "political subdivision" - that was only used bythe legislature to illustrate the general term.

C. The Legislative History Supports ^ Broad Interpretation ofttGovernmental Body.t,Because "governmental body" is unambiguous, the Court need not consider

legislative history to interpret it. Nevertheless, the Attorney General's argument reliesheavily on legislative history. But the Attorney General's account is a selective one, anda more exhaustive review of the legislative history relating to Section 2303.5055 of theTexas Government Code provides no basis for departing from the plain meaning of"governmental body." For example, in 1997, the Senate attempted to amend Section2303.5055 by limiting the "eligible taxes" that could be recovered under the statute. Inplace of the current language, which refers generally to "mixed beverage taxes," theSenate amendment would have further limited the term to "mixed beverage taxes payableto a count) or municipality under Section 183.051." C.S.H.B. 200l,75thLeg., Reg.Sess., $ 7 (available at www.legis.state.tx.us/tlodocs/75R/bi1ltexlhtmVHB0200lS.htm)(underlined phrase proposed as an amendment). If the statute were already limited too'local" govemmental bodies, there would have been no need for the Senate to proposethis amendment. Moreover, the statute was successfully amended in 2009. The author of

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that legislation, Senator Chris Harris, has explained that he intended the amendment toallow municipalities like Irving to recover the State's portion of mixed beverage taxesSee PX22. A narrow interpretation of "governmental body'' is inconsistent with SenatorHarris' s explanation and amendment.

D The Overall Structure of Chapter 2303 Does lrlot Support LimitingttGovernmental Body" to Local Governments Only.Similarly, the Attorney General's attempt to rely on the purported "structure" of

Chapter 2303 also fails to justify a departure from the plain meaning of the term"governmental body." Indeed, a comparison of Section 2303.5055 with the otherprovisions within Chapter 2303 demonstrates that Section 2303.5055 should not belimited to "local" govemmental bodies. Chapter 2303 as a whole deals with "EnterpriseZones." The Legislature has made clear that the provisions of Chapter 2303 are intendedto provide both state and local incentives to encourage investment in such areas. TBx.Gov't Conp $ 2303.002 (chapter "provides incentives by state and local government toinduce private investment in those areas by removing unnecessary governmentalregulatory barriers to economic growth and to provide tax incentives and economicdevelopment program benef,rts"). Accordingly, it should be presumed that the provisionswithin Chapter 2303 encompass both state and local incentives, unless expressly limited.ln fact, the sections of the existing statute that immediately precede Section2303.5055 show that the Legislature knew how to limit the scope of a provision to eithero'state" or "local" govemmental bodies if that was its intent. Sections 2303.502 and2303.503, for example, are expressly timited to "state agencies." Section 2303.504 is

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expressly limited to "state tax refunds and credits." In turn, Section 2303.505 isexpressly limited to "local sales and use tax refunds." Yet, Section 2303.5055 containsno express limitation to either local or state bodies. The absence of any expresslimitation is difficult to explain if the Legislature had intended to limit the provision tolocal governments only.

The contrast between Section 2303.5055 and Section 2303.505 goes fuither. Bothsections are structured similarly, allowing appropriate governmental bodies to enter intoagreements to refund taxes in order to encourage development. Yet, when it comes toidentifying the appropriate governmental bodies, Section 2303.5055 and Section2303.505 are markedly different. Instead of using the generic term "governmental body,"Section 2303.505 repeatedly uses the specific term "goveming body of a municipality orcounty." Similarly, instead of generically referring to "taxes," Section 2303.505repeatedly specifies that it applies to "local sales and use taxes." If the Legislature hadintended Section 2303.5055 to be similarly limited, it could have easily said so throughclear language like the language that Section 2303.505 employs. Yet, the Legislaturechose different, broader language, and its choice should be viewed as intentional.III. TrrN ATTORNEY GnNBnar, Has WnrvED ANY Crr,Ir,r,nNGE To THE PRoPoSEI)

BoNns.Ultimately, the Court need not consider the merits of the Attorney General's

arguments. By failing to raise the biennial appropriation and "governmental body"objections in its ansrwer and expressly taking a "neutral position" during trial, theAttorney General has waived those issues on appeal. As discussed above, the Attorney

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have "no objection" to the Proposed Bonds if thetrial court found that the allegations in the Petition had been properly proven. 3CR.487.During trial, it reiterated its "fundamentally neutral" position. 1RR.8. Even when itbelatedly brought these two issues to the trial court's attention, the Attorney Generalstated that it "t[ook] no position" on them. 3CR.662. It was not until the eve of finaljudgment that the Attorney General first opposed the Bonds. By not timely assertingthese issues at the trial court, the Attorney General has waived the right to contest themon appeal. See, e.g., TEx. R. App. P. 33.1 (requiring parties to raise timely theircomplaints to the trial court); In the Interest of J.P.,296 S.W.3d 830, 837 (Tex. App.-Fort Worth 2009, no pet. h) ("because the [Attorney General] did not plead mistake as anaffirmative defense, and because the issue was not tried by consent, the [AttorneyGeneral] has waived its mistake defense on appeal"); Texas DOT v. Pate, 170 S.W.3d840, 850 (Tex. App-Texarkana 2005,pet. denied).IV. Tnn OpposING INTERVENoRS' Appn,1 Is InnpnopnR AND Wrrnour MnRrr.

The Opposing Intervenors' attempt to continue to participate in this proceeding isclearly improper, and the Court should dismiss their appeal. Since the Court firstaffirmed the trial court's dismissal of them for failing to post the required bond, theOpposing Intervenors have attempted to delay that appeal as long as possible, on thedubious theory that their delay in that appeal somehow entitles them to participate in thisone. They are wrong, and their attempt to flout the Expedited Declaratory JudgmentAct's bond requirement should be rejected.

Even if the Court allows them to participate in this appeal, their arguments should29

not change the outcome. The Opposing Intervenors raise only three issues. One of those


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issues-whether the City is entitled to the State's portion of the mixed beverage tax-hasalready been raised by the Attomey General and is addressed above. And the remainingtwo issues raised by the Opposing Intervenors in this appeal have already been rejectedby this Court. In the Putnam appeal, the Court held that the Entertainment and HotelProject r's a "hotel project" within the meaning of Section 351.102(b). The Court alsoheld that, even if the City Council violated the City Charter by levying the Admission andParking Taxes at a "special" meeting as opposed to a "regular" meeting, such a violationcan be easily cured by simply re-levying the taxes at a future o'regular" meeting. This isexactly what the City plans to do.

A. The Court Should Dismiss the Opposing Intervenors' Appeat and NotConsider Their Appeltate fssues.The Opposing Intervenors' appeal should be dismissed and their arguments

disregarded because they do not have standing to contest the trial court's FinalJudgment.r3 The Opposing Intervenors were dismissed from the trial-court proceedingsprior to the entry of Final Judgment for failing to post the bond ordered by the trial courtpursuant to Section 1205.104 of the Texas Government Code. This Court has affrrmedthe trial court's bond order and the trial court's dismissal of the Opposing Intervenors.See Dec. 13, 2010 Opinion in No. 05-10-01269-CV. The Court has also denied theOpposing Intervenors' motion for rehearing and en banc reconsideration. See lan. 27,t3 The City moved to dismiss the Opposing Intervenors' appeal. The City incorporates herein its motionand reply in support of the motion. The Court denied that motion on February 10, 2011.

30

2011 Order in No. 05-10-01269-CV. Rather than expeditiously seek review by the Texas


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Supreme Court, the Opposing Intervenors have yet to f,rle any Petition for Review.Indeed, they recently obtained an extension of their deadline for doing so. This delay is atransparent attempt to make an end-run around the bond requirement of the ExpeditedDeclaratory Judgment Act by continuing to participate in the case without posting therequired bond. As a result, the Court should disregard the Opposing Intervenors'arguments in this appeal.

Chapter 1205's bond requirements are structured to assure that intervenors postthe required bond before they can further delay the case through an appeal of the finaljudgment. For example, section 1205.101(a) requires the City to request a bond "fb]eforethe entry of final judgment." Sections 1205.101 and 1205.103 explain that the purpose ofthe bond is to protect the City from the damages or costs that may occur "because of thedelay caused by the continued participation of the opposing party or intervenor. . . ." AndSection 1205.068 provides that only parties to the action can appeal the trial court's f,rnaljudgment. If the Opposing Intervenors are allowed to participate in the appeal of the finaljudgment without posting the required bond, the entire structure of Chapter 1205's bondrequirement would be meaningless. Moreover, this Court's decision in Putnarn wouldalso be meaningless. In affirming the trial court's dismissal order, the Court in Putnamexpressly rejected the Opposing Intervenors' argument that they should be allowed toremain in the case to contest the City's proposed Final Judgment. See Putnam,20ll WL259478 at *8. ("The Taxpayers also argue that the trial court could have waited until

31

after the final judgment to dismiss their intervention. The statute . . . does not support the


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Taxpayers' argument.").B. The Court Has Already Rejected the Opposing Intervenors' Argument

that the Entertainment and Hotel Project Is Not a Qualifying 66HotelProject" Under Chapter 351 of the Texas Tax Code, and There Is l{oReason to Reverse that Holding.The Opposing Intervenors' primary argument in this appeal is the same argument

they lost in the Putnam appeal. There, they argued that the Entertainment and HotelProject was not a "hotel project" under Section 351.102(b) of the Texas Tax Code. Thegist of their argument was that the boutique hotel was not the "flagship venture" of theEntertainment and Hotel Project and, as a result, the Project was not a hotel projectwithin the "ordinary meaning" of the term. ,See Appellants' Brief in No. 05-10-01269-CV at p. 16. They argued that Section 351.102(b) of the Texas Tax Code requires a"hotel projecf' to be "a project in which a hotel is the deJning component, that is theflagship." Appellants' Reply Brief in No. 05- rc-01269-CV at 10 (emphasis in original).

The Court rejected this argument in Putnam. It agreed with the City that theboutique hotel was clearly a "hotel," as that term is defined in the Tax Code. Putnam,2011 WL 259478 at*4. Moreover, it noted that Section 351.102(b) listed examples ofthe types of other facilities that could be included within the "hotel project": "'conventioncenter entertainment-related facilities, restaurants, shops, and parking facilities within1,000 feet of the hotel or convention center facility. "' Id. at *5 (quoting Tnx. Tex ConB$ 351 .102(b)). As the Court pointed out, these were precisely the types of facilities thatare to be included in the Entertainment and Hotel Project. Id. at *6. And with regard to

32

the relationship between the EC Hotel and the other facilities in the Entertainment and


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Hotel Project, the Court rejected the Opposing Intervenors' attempts to engraft onto thestatute a requirement that the hotel be the "defining" feature of the "hotel project." Id. at{


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Senator Chris Harris, has explained that these amendments were specifically intended tobenef,rt the City by ensuring that its Entertainment and Hotel Project fell within thepurview of the statute. As Senator Harris recently stated:

The Cty of Irvng nd ther entertunment and hotel venueproject were specfically ntended to be covered by the sttutorychnges we made to Chpter 351.PX22 (emphasis added). Specifically, "S.8. 1247 Il added language referencing"conventon center entertqnment-relted faciltes, resturants . . . to further ensurethat the City of Irving's entertainment and hotel venue project and related facilities withinthe convention center expansion would be covered by Chapter 351." 1d. (emphasisadded); see also 3RR.65-67. According to Senator Harris, the intent of theseamendments was "to account for the uniqueness of the Irving project by ensuring that allfacilities, such as restaurants, concessions, parking services, etc. would be includedwithin the applicable state tax refunds." Id. In fact, these amendments were the result ofa successful lobbying effort by the City. 1RR.146. In light of Senator Harris'sstatements regarding the purpose of his own bill, the Opposing Intervenors' argumentthat the City's Entertainment and Hotel Project is not covered by the recently amendedChapter 351 puts them at odds with the bill's own author.

In addition, the Opposing Intervenors' argument puts them at odds with thestatutory language of Section 351.102(b), which expressly states that a "hotel project"includes, in addition to the hotel, "any facilities ancillary to the hotel, includingconvention center entertainment-related facilities, restaurants, shops, and parking

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facilities within 1,000 feet of the hotel or convention center facility." Of course,


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convention centers can accommodate thousands of people for a single conference orevent. Almost by definition, therefore, any "convention center entertainment-relatedfacility'' would not derive a majority of its revenue from the guests of a single hotel. It isalso difficult to imagine that there would be many retail "shops" outside (but within1,000 feet) of the hotel building that would derive a majority of their revenues from hotelguests. And even for "restaurants" within the hotel, it is entirely conceivable that theymight derive a majority of their revenues from diners who were not also hotel guests.Under the Opposing Intervenors' argument, however, none of these facilities would becould be part of a "hotel project," even though Section 351.102(b) specifically lists themas examples of "facilities ancillary to the hotel."

Finally, there is also no basis for the Opposing Intervenors to argue that thisCourt's decision in Ohnesorge v. Winfree Academy Charter School, 328 S.W.3 d 654(Tex. App.-Dallas 2010, no pet. h.), changes this analysis or requires the Court toreverse its prior holding that the Entertainment and Hotel Project is a "hotel project"under Section 351.102(b) of the Texas Tax Code. If the Opposing Intervenors thoughtthat Ohnesgorge required reconsideration of the Court's prior holding on this issue, theycould have said so in their motion for rehearing and en banc reconsideration, which wasf,rled more than a month after Ohnesorge was decided. But they did not, and for goodreason. Ohnesorge did not involve the interpretation of the term "hotel project" or anyprovision of the Texas Tax Code. Rather, the case involved the question of whether asingle charter school constituted a "school district" under the Texas Whistleblower Act.

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Id. at 657. Moreover, the logic of Ohnesorge also fails to support the Opposing


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Intervenors' argument here. In essence, Oltnesorge held that a single, stand-alone school,without more, is not a "school dstrict." The Opposing Intervenors do not (and cannot)contend that the City is building a single, stand-alone hotel, without more. Rather, theycontend just the opposite-that the City is building too much "project" and not enough"hotel." In other words, whereas Ohnesorge involved a school, but not a district, here itis undisputed that the City is building both a hotel and a project. The OpposingIntervenors' only real contention is that it is too much "project" and not enough "hotel."But the Opposing Intervenors have already lost that argument, and nothing in Ohnesorgeshould change the Court's analysis.

C. The Ordinances Imposing the Ticket and Parking Taxes WereProperly Passed at a Special Meeting.As they did in the Putnam appeal, the Opposing Intervenors also argue that the

ticket and parking taxes are void because they were not adopted at a "regular" meeting.They are wrong on this point. But even if they are right, it cannot be grounds forinvalidating the Proposed Bonds in their entirety. Rather, as this Court noted in Putnam,the City can resolve any procedural issue by simply re-voting to levy the taxes (whichhave already been approved by City voters) at the appropriate type of meeting. Out of anabundance of caution, the City currently plans to do just that at a future City Councilmeeting.

1. The Prkng nd Tcket Txes were vuldly pssed t "spec|"meeting.Contrary to the Opposing Intervenors' argument, the $3 parking tax and l0o/o

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ticket tax-approved by the City Council at a special meeting on August 25,2010-,were


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properly levied in compliance with the City's charter.la With regard to the passage ofordinances at City Council meetings, the City's charter specifically provides:

No ordinance, unless it be declared an emergency measure,shall ever be passed at a clled meeting, but may be passed atany regular meeting of the council unless otherwise provided.All resolutions or orders may be passed at any regularmeeting or may be passed ut ny specl or called meetingcalled for that purpose.IRvrNG, Tgx. CUARTER, art. IV, $ 17 (emphasis added). These two sentences, readtogether, mean that (1) all ordinances, resolutions and orders may be passed at anyregular meeting; (2) all ordinances, resolutions and orders may be passed at any specialmeeting; and (3) only emergency ordinances may be passed at called meetings, whichmust be called specifically for the purpose of such emergency action. The secondsentence is not superfluous, but simply modifies and expands upon the first, making clearthat ordinances, resolutions, and orders may be passed at special meetings or calledmeetings, if called for the purpose of such action.

The Opposing Intervenors assert that an "ordinance" is different from an "order"and argue, therefore, that no ordinances may be passed at special meetings. Thisargument, however, is contradicted by the plain meaning of the word "ordinance" as wellas by the City's long-standing interpretation of this provision.

First, as the Opposing Intervenors argue, the Court should look "first and foremost'o Both of these taxes were approved by City voters inthe 2007 Election. pX9

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to the plain meaning of the words used." Opp. Int. Br. at 36 (quoting First Am. Title Ins.


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Co. v. Combs,258 S.W.3d627,631 (Tex. 2008)). Using this approach, it is clear that"order" is simply another word for "ordinance." ,See MERRIAM-WEBSTER'S CoLtEcIetBDIcrloNaRY 816 (10th ed. 2000) (defining o'ordinance" as, among other things, an"order"); WsssrBR's THnn NEw INTBRNauoNAL DrcuoNeRy 1588 (1986) (same).And the charter makes sense only if "order" and "ordinance" are considered to beslmon)mous, as the City Council does not pass 'oorders" at all.ls See 1RR.233.Therefore, the plain meaning of the words "order" and "ordinance" makes clear thatordinances may be passed at regular, called, nd speciar meetings.

Second, the City's reading of the charter is supported by the City Council's long-standing interpretation of Article IV, SectionlT. See Humbte Oit & Ref. Co. v. City ofGeorgetown,42S S.W.2d 405,409 (Tex. Civ. App.-Austin 1968, no writ) (in construingan ordinance, the court relied, in part, on the way the city had interpreted and applied thatordinance in practice). As City Attorney Charles Anderson testified at the trial, the City'scharter identifies three types of meetings: (1) regular meetings, which are placed on theCity's calendar; (2) called meetings, for which notice is posted two hours in advance; and(3) special meetings, for which notice is posted 72 hours in advance but which do notappear on the City's calendar. 1RR.229. Anderson made clear that the City's chartertt City Attorney Charles Anderson testified that'l think order is a term which, in light of municipalregulation, would also mean ordinance. So I would say it is an order. The City Counil basically actsthrough a resolution or ordinance. An order, I think, would be somewhat of a shorthand form of anordinance." Id.

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876, 883 (Tex. App.-Houston [4th Dist.] 2005, no pet.); Cty of Bells v. Greater


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Texoma UtL. Auth.,790 S.W.2d 6, 11 (Tex. App.-Dallas 1990, writ denied). See alsoOFTIcB oF THE Tpxas ArroRNBy GENERAL, OPEN MEsrrNcs HANDBOOK, at 65 (2008).Here, the City's ability to address these issues at a subsequent meeting is underscored bythe plain text of the Act, which allows cities to obtain judicial validation of proposedpublic security authorizations such as the levying of taxes to be used as security forbonds. TBx. Gov'r Coop $ 1205.021(2).

Here, if the Court concludes that the taxes must be levied at a regular meeting,then it should simply modify the Final Judgment to provide that the ParHng Tax andAdmission Tax will be duly and validly enacted by the City Counsel upon the passing ofa City Ordinance levying those taxes at a regular meeting. See Tnx. R. App. P. 43.2(b)(providing that the court of appeal may "modify the trial court's judgment and affirm it asmodified'). Indeed, while the City believes that its tax ordinances were properly adopted,it can and will place the ordinances on a future agenda and re-adopt them in order toremove any suggestion that the original levying of these voter-approved taxes wasimproper.

CONCLUSION AND PRAYERFor the foregoing reasons, the City of Irving prays that this Court affirm the trial

court's Final Judgment in its entirety. The City further prays that the Court grant suchother and further relief to which it may be justly entitled.

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Respectfully submitted,


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Charles R. AndersonState Bar No. 01170500Office of the City Attorney

825 West Irving BoulevardIrving, Texas 75060972.721.254197 2.7 2 I .27 50 (facsimile)c anders on @city ofrwin g. org

LMichael L. Raiff

State Bar No. 00784803Gibson, Dunn & Crutcher LLP2100 McKinney AvenueDallas, TX7520l-69122t4.698.33s021 4. 57 I .2927 (facsimile)[email protected] Hutchison

State Bar No. 10352000Thomas S. LeatherburyState Bar No. 12095275

Robert R. Collins, IIIState Bar No. 00792420Julie M. PartainState Bar No.24032734Marc A. FullerState Bar No.24032210

VTNSoN & ErrrNs LLP2001 Ross Ave., Suite 3700Dallas, Texas 7 5201-297 5214.220.770021 4.999 .7 7 92 (facsimile)[email protected]@velaw. [email protected]

Attorneys for Cty of lrvng

(

4t

CERTIFICATE OF SERVICE


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I hereby certify that a true and correct copy of Brief of Appellee City of Irving hasbeen served on the following on this 21't day of March, 20lI:James B. HarrisRichard B. Phillips, Jr.TnolpsoN & KNrcur LLpOne Arts Plazal722Routh Street, Suite 1500Dallas, Texas 7 5201-2533TeI 214-969-1700Fax: 214-969-1751Attorneys for Joe Putnam and IrvingTaxpayers Opposed to Illegal andWasteful Use of Tax MoneyDavid J. SchenckP.O. Box 12548Austin, TX787llTel: (512) 936-1342Fax: (512) 936-0545Attorneys for the Attorney General

Mikel J. BowersBNII NtrxrNeI-rY & MARTTN LLP3232 McKinney Avenue, Suite 1400Dallas, TX75204TeI: (214) 740-1400Fax: (214) 740-1499Attorneys for B Concessionaire-Las Colinas, LLC

Frank L. BransonEric T. StahlLAw OpT.ICES oF FRANK L. BneNsoN, P.C4514 Cole Avenue, Suite 1800Dallas, TX75205Tel (214) 522-0200Fax: (214) 521-5485Attorneys for Las Colinas Group, LP

Robert D.MafnezCorroN ScHunr & Aeeorr, LLp550 Bailey Avenue, Suite 600Fort V/orth,TX76l07Tel: (817) 338-4500Fax: (817) 338-4599Attorneys for Greater lrving-LasColinas Chamber of CommerceJohn F. Boyle, Jr.Boyls & Lowny, L.L.P.4201Winsren, Suite 108Irving, TX75062Tel (972) 650-1701Fax: (972) 650-7105Attorneys for Dallas County Utitity andReclamation District

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SAMPLE DOCUMENT


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AGREEMENT FOR DISCLOSURE OF CONFIDENTIALtAX INFORMATIONThis agreement is entered into between the City of , Texas (hereinafter the"City") andherein. (hereinafter the "taxpayer") for the purposes indicated

I, (title), the duly authorized agent ofa vendor doing business at the premises of the convention

center hotel (the "Hotel"), Known generally as the " Hotel", located adj acentto the Convention Center in City,-

County, Texas, do herebystipulate and agree as follows

I hereby authorize the Texas Comptroller's Office to release and disclose any andall Sales and Use tax information and/or Hotel Occupancy tax information relating to theoperation of the above referenced taxpayer's business at this location to the City ofTexas. I understand and agree that this release will be made by theComptroller's Office to the City on an ongoing basis beginning on the commencementdate of the Hotel's initial occupancy. This agreement waives any and all rights withrespect to the parties regarding the confidentiality of tax information under Sections1 1 1.006, I5I.027 , Tax Code, or other state law.

The City agrees that it will use the tax information disclosed by the Comptroller pursuantto this Agreement solely and exclusively for the purposes of monitoring the receipt ofcertain Sales and Use taxes and Hotel Occupancy taxes to which the City is entitled toreceive in accordance with the provisions of Sections 3 5 1 . 1 02(c) and l5I .429(h) of theTexas Tax Code.

This Agreement is entered into in- City,-

County, Texas and Texas Lawwill apply to its interpretation and enforcement.SIGNED AND AGREED TO on this day the

-day of 2008.

Name, Director of FinanceOn behalf of the City, Texas(the "City'')

On behalf of the "Taxpayet"

3121l20tL https ://ou rcpa.cpa.state,. us/a I locatio.ffi Wi r:,e*w #{z%tet* ffi*ut *r nrffi ffi r* { Saaset? fl#t?hs Twxe firnpts*ll:r *.fl {}rrfuc *,**r*acs{sTexas Taxes

Mixed Beverage Allocation Historical


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SummaryBy law, all mixed beverage and private chrb permit holders remit to the Ste Conpfoller a I4o/ogross recets tax on their mixed beverage sales each month" Following the end of each calendarquarter, 10.7143% ofthe tax paid is allocated to the county where each business is located. Forany brsiness located within an incorporated city, another 10.7143% ofthe tax paid is allocated tothe city where it is located. The remaining tax is disrbuted to the State's General Revenue Fund.Those quarter allocation payments to the cities and counties are summarized in the MixedBeverage Tax Allocation Histories. The payments are listed according to the month in which theywere distrbuted and totaled for each calendar year. Mixed Beverage Tax allocation amounts aredependent upon the timing and accuracy oftaxpayers' returns and payments, but generarepresent taxes remitted to the Corrpfollefs office dwing the calendar quarter innnediatepreceding the month the allocation is disrbuted.City or County Summaries# CtV # County

Cityor CountyName

See also, the allocation historical surunaries for local sales tax.

Statewide Summaries

Get Statewide SummaryIfyou have questions about the Mixed Beverage Allocation Historical Sunrnary inforrnatior pleasecontact us by email at tax. allo cationlD cn a. state. tx.us.

texas.gov $ Statewide Search from the Texas State Library | State Link Policy I Texas Honreland

All CountiesState Relenue

ou rcpa. cpa. state.tx. us/.../M ixBev.jspSec urity

u2

312U201L https://ourcpa.cpa.state.h,us/allocatio...Susan Combs, Texas Comptroller r Window on State Governrnent Contact UsPrivacy and Security Policy I Accessibility Policy I t-int< Policy I euntic Infornration Act { Compactwith Texans


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ourcpa, cpa,state,tx. us/..,/M ixBev.jsp 212


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Srrt o TrxsMay 7,2001

Ofrrct o THE ATToRhEr GsruEnerJoHrv ContYl'


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THIS lS TO CERTIFY that the City of Houston, Texas (the "lssuer"),has submitted to me City of Houton,-lexas. Convention & Entertainmentacilities Department Hotel Occupancv_lax and Special Revenue Bonds.Series 20018 (the "Bonds") in the aggregate principal amount of5326,204,593.75 for approval. The Bonds, issued as a Current lnterestBond, numbered AGB-1 in the principal amount of $206,295,000 and as aCapital Appreciation Bond numbered AGBC-1 in the original principalamount of 1 19,909,593.75, are dated April 1, 2001 and were authorized byOrdinance No.2001-224 of the lssuer passed on March 21,2001 (the"Ordinance"). ln conjunction therewith, the lssuer has also submitted to mefor approval a Guaranty Agreement dated as of May 1, 2001 (the"Agreement").I have examined the law and such certified proceedings and other papers as Ideem necessary to render this opinion,As to questions of fact material to my opnion, I have relied upon representations ofhe lssuer contained n the certified proceedings and other certificatons of public offcialsfumished to me without undertaking to verify the same by independent investigation.I express no opnion relating to the official statement or any other offering materialrelating to the Bonds.Based on my examination, I am of the opinion, as of the date hereof and underexisting law, as follows (capitalized terms, except as herein defined, have the meaningsgiven to them in the Ordinance):(1) The Bonds have been rSued in accordance with law and are vald andbinding special obligations of t(2) The Ponds ars equally and ratably.pgygg fro4 and secured by a lien onthe Pledqed Revenues.(3) The Agreement conforms to the requirements of law.- herefore, the Bonds are aoproved, and pursuantto the provisons of cha!gl!!o;ie Governmen@ rs arso approveo.

)(,F

,fQt, ^- 0o,^o^,

t{o,3395Eoor No 2001_8Att(/ney eneral of tne fltate of Texas

posr oFf tcF Box 12548, Arr\rt\, Trx\5 787 ll 2548 'rFr l5l?\r'1 rrnn .vr

OFFICE OF COMPTROLLER


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OF TH STATE OF TEXAS

l, CAROLE KEETON RYLANDER, Comptroller of Public Accounts of theState of Texas, do hereby ceity that the attachment is a true and correct copy of theopinion of the Attomey Generalapproving the:City of Houston. TexAs. lonvention & Enterainment Facilities. Department HotelOccupancy Tax and Special Revenue Bonds. Sejes 20018 and certain relate_ddocuments. (the "Proceedings")the bond is numbered AGB-I and.AGBC-1. of the denomination of $ various,dated April 1. 2001. as authorized by issuer, interest various percent, under and b yahority of /vficl said bonds/certificates and Proceedings were registeredelectronically h the office of the Comptroller, on the 7th day of May. 2001. underRegstration Number 641 34.

Given under my hand and seal of otfice, at Austin, Texas, the 7th day ofMay, 2001, MP@CAROLE KEETON RYLANDERComptroller of Public Accountsof the State ol Texas


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OFFICE OF COMPTROLLEROF THE STATE OF TEXASt, Melissa Mora, fl Bond Clerk Assistant Bond Clerk in the office of the Comptroller of the Stateof Texas, do hereby certify that, acting under the direction and authority of the Compiroller on the7th day of May. 2001, I sgned lhe name of the Comptroller to the certificate of registration endorsedupon the:City of Hou,ston. Texas. Conventiol & Entertainment Facilities Department Hotel Occupancy Taxand Special Revenue Bonds. Series 20018 and certain related documents. (lhe "Proceedings'),the bond is numbered AGB-1 and AGBC-1. dated Apl 1. 2001, and that in signing the crtificate ofregstration I used the g signature:

IN EOF I have this certificate this

Irving Bond Validation 5thDistrict CityBrief

Documents

Transcript of Irving Bond Validation 5thDistrict CityBrief