Modern Builders, LLC, Alicia Gonzalez, Betsy Darling, Callie Stevens, Grayson Buster, Jaime Cobb Tinsley, Tom Tinsley, Jesse Fox, Kelray LLC, Urban Legacy Properties, LLC, D/B/A Urban Legacy Properties Series a LLC, Lauren A. Brady, Lauren Barrett, Lesa Susi, Trustee of the Susi Living Trust, Lori Dugdale, M and M Pool House LLC, Martha Dominguez, Adulfo Dominguez, Sean Sullivan, Shannon Ross, Susan Harper, Smith-Wallace Properties, LLC, Theresa Riley, Trustee of the TK Riley Family Trust v. City of Fort Worth

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00275-CV
___________________________

MODERN BUILDERS, LLC; ALICIA GONZALEZ; BETSY DARLING;
CALLIE STEVENS; GRAYSON BUSTER; JAIME COBB TINSLEY; TOM
TINSLEY; JESSE FOX; KELRAY LLC; URBAN LEGACY PROPERTIES, LLC,
D/B/A URBAN LEGACY PROPERTIES SERIES A LLC; LAUREN A. BRADY;
LAUREN BARRETT; LESA SUSI, TRUSTEE OF THE SUSI LIVING TRUST;
LORI DUGDALE; M AND M POOL HOUSE LLC; MARTHA DOMINGUEZ;
ADULFO DOMINGUEZ; SEAN SULLIVAN; SHANNON ROSS; SUSAN
HARPER; SMITH-WALLACE PROPERTIES, LLC; THERESA RILEY,
TRUSTEE OF THE TK RILEY FAMILY TRUST; TOM KRAUSE; TRACEY
AMAYA; EDUARDO AMAYA; BROOKVALE HOLDINGS, LLC; AND LUCAS
RUIZ, Appellants

V.

CITY OF FORT WORTH, Appellee
On Appeal from the 352nd District Court
Tarrant County, Texas
Trial Court No. 352-342969-23

Before Sudderth, C.J.; Kerr, J.; and Gonzalez, J.1
Opinion by Justice Kerr

1
The Honorable Ruben Gonzalez, Judge of the 432nd District Court of Tarrant County, sitting
by assignment of the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the
Government Code. See Tex. Gov’t Code § 74.003(h).

2
OPINION

I. Introduction

Following lengthy evaluation, the City of Fort Worth decided in 2018 that

short-term rentals (STRs) are best confined to certain areas of the city, where they are

now expressly allowed, and in 2023, those lawful STRs became subject to registration

requirements.2 The appellants (Owners) own properties in single-family residential

districts where STRs are not—and never were—explicitly allowed under the City’s

zoning scheme.

Raising constitutional and other challenges to their inability to lawfully use their

properties as STRs, the Owners warn darkly of an “Orwellian surveillance apparatus”

deploying “neighborhood informants, police interrogations, and monitoring by city

employees” that is wholly at odds with “Cowtown, Where the West Begins.” Despite

this asserted dystopian hellscape, this case boils down to land uses versus police powers.

For the reasons that follow, we hold that the Owners have no vested right to

lease their properties short-term; that the City’s two STR Ordinances rationally relate

to legitimate government interests in preserving the character of single-family

residential neighborhoods; that those Owners who were operating STRs before the

2018 Ordinance was adopted had no settled and reasonable expectations that they could

so use their properties; and that the Owners’ ultra vires claim is not proper against the

2
We refer to the 2018 and 2023 ordinances collectively as the “STR Ordinances.”

3
City. We additionally hold that the trial court did not reversibly err by admitting the

testimony of the City’s expert and that its award of attorney’s fees to the City was not

an abuse of discretion.

II. Background

A. How the City historically viewed residential rentals of less than thirty days.

As Dana Burghdoff—the City’s Zoning Administrator between 2007 and

2019 and after that the Assistant City Manager—explained, since “at least 2007” the

City “consistently” determined that “STRs were prohibited in single-family residential

districts (and other residentially[ ]zoned districts).”3 When residents or property owners

asked, they would be told of this prohibition.

The City based its determination on existing provisions within its comprehensive

zoning ordinance. In particular, as part of its Chapter 9 “Definitions” section, the

zoning ordinance defined “bed and breakfast home” as an owner–operator’s homestead

or primary one-family residence providing overnight accommodation to transient

3
In one case, the City sued several residential-property owners who had been
leasing their properties on a short-term basis and obtained an agreed order in 2008 that
permanently enjoined the owners from having “more than one lessee per dwelling unit
during any thirty (30) day period.” The record suggests that this was the situation
mentioned in the summary-judgment affidavit of the City’s Deputy Code Compliance
Director, who recounted that “prior to the passage of the 2018 Ordinance, Code
Compliance staff shut down homes in the Arlington Heights neighborhood for hosting
‘transient or short term’ guests during rodeo season.” The street addresses of the
properties covered by the 2008 agreed order place the majority of them within Fort
Worth’s Arlington Heights neighborhood, which is close to the traditional venue for
the annual Fort Worth Stock Show & Rodeo.

4
guests and defined “transient or short[-]term resident” as an individual who occupies

or rents a home or room for less than 30 days.4 According to Burghdoff, because bed

and breakfasts were not a permitted use in single-family residential districts per the

“Residential District Use Table”—Section 4.603 of the City’s zoning ordinance and part

of its Chapter 4 “District Regulations”—neither were their analogs, STRs.

B. As online STR-booking platforms took off, the City took a closer look.

Beginning around a decade ago, such websites as VRBO and Airbnb became

wildly popular ways to book STRs.5 That popularity drove an influx of inquiries to the

City about whether STRs were allowed in residential districts—and a corresponding

increase in complaints from City residents about STRs and their guests, including

complaints about noise disturbances, loud parties, trash, and parking or traffic

congestion.

The City thus began a process in 2016 to research how other cities were dealing

with STRs and to clarify in the zoning ordinance those districts within which STRs were

or were not allowed. A November 2016 City Manager report noted that “[c]urrent

regulations”—presumably referring to those covering bed and breakfast homes—

4
At all relevant times, bed and breakfast homes have been a permitted use—by
special exception from the City’s Board of Adjustment—in two-family residential
districts under the comprehensive zoning ordinance.
5
In her 2024 deposition, one Owner agreed that, since 2016, platforms like
Airbnb have become “much more prevalent” and have “entered into the popular
zeitgeist,” noting that “‘Airbnb’ is a verb now.”

5
“prohibit[ed] the rental of residential property” for less than 30 days in single-family

residential districts, and the report outlined a plan to communicate that fact to

neighborhoods. A little over a year later, another report proposed adding the use

“transient or short-term rental”—already a defined term, as noted—to the use tables

“to clarify that the use is not allowed in residential districts outside of bed and breakfast

homes or inns, and is allowed in mixed-use, commercial, and industrial districts as a

commercial use.”

C. The City’s review yielded an amended zoning ordinance in 2018.

The preamble to the adopted Ordinance No. 23110-02-2018 (the

2018 Ordinance) noted that “short[-]term home rentals (homes rented for less than

30 consecutive days) are not specifically defined, expressly permitted[,] or listed in any

of the zoning use categories provided in the use tables for residential, non-residential[,]

or form-based districts”; that in determining whether a property is being used as an

STR, “if the duration of the stay is less than 30 days, that use is not allowed since it is

more analogous to a bed or breakfast home[,] which is allowed in a two-family zoning

district by special exception but is prohibited in one-family zoning districts”; and that

the Zoning Ordinance was being amended to “affirm” that STRs are prohibited in one-

and two-family zoning districts by adding a definition for short-term home rental and

by including that newly defined use in the land-use tables “to clarify that a short[-]term

home rental is not allowed in residential districts but is allowed in other districts as a

commercial use.” Burghdoff’s summary-judgment affidavit explained that STR use, as

6
“commercial,” “is inherently incompatible with a residentially[ ]zoned neighborhood

where there exists a sense of community and camaraderie (or, at least, familiarity)

between neighbors. STR guests, by definition, do not stay in a neighborhood or

community to build and maintain those relationships.”

The 2018 Ordinance defined a “Short[-]Term Home Rental”—which we have

shortened to STR—this way:

The rental for compensation of dwellings or accessory dwelling units for
the purpose of overnight lodging for a period of not less than one night
and not more than 30 consecutive days other than ongoing
month-to-month tenancy granted to the same renter for the same unit as
their primary residence. . . .

The residential-use table was correspondingly amended to add “Short[-]Term

Home Rental” to the “Other” category of uses, with an empty cell in the use table

underneath all the types of residential zoning districts to visibly signal that STRs were

not allowed there (but were an allowed use in non-residential areas). 6

According to Burghdoff, the deliberative process surrounding the

2018 Ordinance generated little in the way of public comment.

D. The City delved further into the STR issue between 2019 and 2022.

Although the 2020 COVID pandemic rekindled the debate over STRs, with the

City’s being asked to consider allowing STRs in residentially zoned districts and

6
See Fort Worth, Tex., Code of Ordinances, app. A, ch. 4, art. 6, § 4.601(d) (“Uses
not allowed. An empty cell [in a table designation] indicates that a use is not allowed in
the respective zoning district.”).

7
receiving more outcry in opposition, the City’s Development Services Department had

already begun, in 2019, to investigate more closely whether STRs could have any place

in residential districts. Over a roughly three-year period, the City—

• researched other cities’ STR ordinances;

• contacted other cities to ask about their STR-regulating experiences;

• consulted organizations in the field of city planning and zoning about STR
regulations;

• reviewed scholarly articles about STRs’ negative impacts on residential
neighborhoods;

• analyzed how the City could ensure that legally operating STRs were paying the
City’s Hotel Occupancy Tax; and

• tracked and compiled STR complaints and violations within the City.

The City received several presentations and reports concerning STRs and

possible regulations between September 2019 and March 2022, after which it opened

up the STR issue for public debate.

E. Further research and public input solicited during 2022 led to the
2023 Ordinance.

During multiple meetings in 2022, the City Council heard public comment both

for and against STRs in residential neighborhoods. The City also set up a publicly

accessible webpage to house STR-related information and created surveys and

questionnaires so that all interested constituencies could share their thoughts and

concerns. Additionally, the City engaged a data-mining company to collect details about

existing STR activity in Fort Worth; that company reported its findings in August 2022.

8
The upshot of the City’s multiyear investigation and community engagement was

(1) feedback from full-time residents and neighborhood associations that, in

Burghdoff’s words, “overwhelmingly” supported continuing to ban STRs by right in

residential districts and (2) consensus that lawful STRs should be subject to a

registration ordinance.

So in February 2023, the City Council adopted Ordinance

No. 26005-02-2023 (the 2023 Ordinance). The 2023 Ordinance did not change the

2018 Ordinance’s prohibition of STRs in residential districts but added regulations

covering those STRs that could lawfully operate in the City’s commercial and mixed-use

districts.7 An owner in a residential district who wants to rent out property for less than

30 days can apply for a zoning change.8

Among the City’s findings underpinning the 2023 Ordinance was that regulating

STRs in the areas where they were allowed was “necessary for the health, safety[,] and

welfare of the general public, the promotion of consistent land uses and development,

and the protection of landowners and residents of” the City. Recognizing the

importance of “support[ing] tourism in a balanced way,” the City Council “determined

7
Those regulations include ones requiring registration with and approval by the
City so that the City can pinpoint STR locations, ensure that all taxes are being paid,
and have contact information for STR owners and agents for any complaints and
emergencies.

The City has approved at least one such requested change by rezoning a duplex
8

and two adjacent single-family dwellings from residential to low-intensity mixed use.

9
that enacting a registration program for STRs will serve to balance the rights of all

stakeholders through a fair and balanced regulatory framework and ensure that the

STRs do not become a nuisance.”

F. This litigation

In June 2023, more than one hundred9 Owners sued for declaratory and

permanent injunctive relief10 against the City over the STR Ordinances, alleging

(1) unconstitutional deprivation of property rights, see Tex. Const. art. I, § 19;

(2) unconstitutionally retroactive deprivation of settled property rights, see Tex. Const.

art. I, § 16; 11 (3) arbitrary discrimination that violates equal protection, see Tex. Const.

art. I, § 3; and (4) ultra vires acts exceeding the City’s authority under the Zoning

Enabling Act, Tex. Loc. Gov’t Code §§ 211.001–.058.

Not all of them are parties to this appeal.
9

The Owners did not seek interim injunctive relief to halt enforcement of the
10

City’s Ordinances while the case was pending.

Twenty-one of the original plaintiffs had purchased their properties before
11

2018; seven are among the appellants, and we will refer to these seven as Retroactivity
Owners for purposes of the Article I, Section 16 claim.

10
After both sides moved for traditional summary judgment, the trial court entered

a final judgment in the City’s favor and awarded attorney’s fees to it. 12 This appeal

followed.

III. Issues on Appeal

The Owners raise these issues:

• Whether the trial court erred in dismissing, on summary judgment, the Owners’
constitutional and ultra vires claims;

• Whether the trial court erred in considering the City’s expert’s affidavit; and

• Whether the trial court erred in awarding attorney’s fees to the City.

IV. Constitutional Claims13

A. Standard of review and applicable law

We first address the Owners’ claims involving the Texas Constitution: due course

of law, retroactivity, and equal protection. See Tex. Const. art. I, §§ 3, 16, 19. Although

we examine the entire record in considering such claims, see Patel v. Tex. Dep’t of Licensing

& Regul., 469 S.W.3d 69, 87 (Tex. 2015), our review of these legal matters—as with our

review of summary judgments generally, see Travelers Ins. v. Joachim, 315 S.W.3d 860,

12
Before taking up the attorney’s-fee issue, the trial court first granted the
summary-judgment motion on unspecified grounds, a ruling that was subsumed within
its final judgment.

In this section we address the first three subparts of the Owners’ first issue.
13

Their fourth subpart, a nonconstitutional ultra vires claim, involves different
considerations that we address separately.

11
862 (Tex. 2010) 14—is de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922,

932 (Tex. 1998) (noting that “ultimate question” of zoning ordinance’s constitutionality

is question of law, not fact).

A duly enacted statute or ordinance enjoys a “strong presumption” of

constitutional validity. State v. Loe, 692 S.W.3d 215, 227 (Tex. 2024); see Patel, 469 S.W.3d

at 87; City of Brookside Village v. Comeau, 633 S.W.2d 790, 792–93 (Tex. 1982). A party

challenging an ordinance’s constitutionality shoulders “an extraordinary burden to

show that no conclusive or even controversial or issuable fact or condition existed

which would authorize the municipality’s passage of the ordinance.” Comeau, 633 at

792–93 (citation modified).

A century ago, the United States Supreme Court established a municipality’s right

to enact zoning ordinances, using language that seems prescient in today’s fast-changing

world of the internet and online STR-booking platforms:

[P]roblems have developed, and constantly are developing, which require,
and will continue to require, additional restrictions in respect of the use
and occupation of private lands in urban communities. Regulations, the
wisdom, necessity, and validity of which, as applied to existing conditions,
are so apparent that they are now uniformly sustained, a century ago, or

And as always, we consider summary-judgment evidence in the light most
14

favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.
2008).

12
even half a century ago, probably would have been rejected as arbitrary
and oppressive.

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386–87, 47 S. Ct. 114, 118 (1926).

Accordingly, “no fixed constraints may be placed on the police power for the future.”

Maher v. City of New Orleans, 516 F.2d 1051, 1059 (5th Cir. 1975). Rounding up

then-current United States Supreme Court authority, the Maher court noted the “ample

and protean” boundaries of police power and a legislature’s “rich and flexible” power

to “essay new solutions to new problems.” Id. Although the Fifth Federal Circuit’s

comments came half a century ago, and hot on the heels of another high-court zoning

decision, 15 they apply with equal force today.

Texas recognizes that “[z]oning ordinances and land-use ordinances are valid

exercises of a city’s police power to safeguard the health, comfort, and general welfare

of its citizens.” City of Dickinson v. Crystal Cruise Invs., LLC, No. 01-24-00684-CV,

2026 WL 530391, at *5 (Tex. App.—Houston [1st Dist.] Feb. 26, 2026, no pet. h.); see

Tex. Loc. Gov’t Code § 211.001 (reiterating bases for municipal zoning authority). As

we have explained, zoning ordinances evince “legitimate governmental interests” when

they relate to “(1) safeguarding the life, health, safety, welfare, and property of STR

occupants, neighborhoods, and the general public and (2) minimizing the adverse

15
Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S. Ct. 1536, 1541 (1974) (noting
that a city’s police power is “not confined to elimination of filth, stench, and unhealthy
places” but is “ample to lay out zones where family values, youth values, and the
blessings of quiet seclusion and clean air make the area a sanctuary for people”).

13
impacts resulting from increased transient rental uses in neighborhoods that were

planned, approved, and constructed for single-family residences.” Draper v. City of

Arlington, 629 S.W.3d 777, 786 (Tex. App.—Fort Worth 2021, pet. denied); see

Hignell-Stark v. City of New Orleans, 46 F.4th 317, 328 (5th Cir. 2022) (recognizing

“legitimate local purposes” of “preventing nuisances, promoting affordable housing,

and protecting neighborhoods’ residential character”).

With those principles in mind, we turn to the STR Owners’ constitutional

complaints.

B. Due-course-of-law claim

The Texas Constitution provides that “[n]o citizen of this State shall be deprived

of life, liberty, property, privileges[,] or immunities . . . except by the due course of the

law of the land.” Tex. Const. art. I, § 19. To date, the Texas Supreme Court has found

no meaningful distinction between federal due-process and state due-course-of-law

guarantees. E.g., Klumb v. Hous. Mun. Emps. Pension Sys., 458 S.W.3d 1, 15 (Tex. 2015)

(citing Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995)); see also Patel,

469 S.W.3d at 86 (noting typical—but not mirror-image—federal–state alignment in

this area). 16

But see City of Grapevine v. Muns, 671 S.W.3d 675, 677 (Tex. 2023) (Young, J.,
16

concurring in denial of petition for review) (explaining that waiting for “better vehicle”
to address STR bans’ constitutionality could “allow advocates and scholars to more
fully develop the original—and perhaps distinct—meaning[ ]” of the Texas
due-course-of-law clause).

14
In reviewing due-course claims, we must determine (1) whether a plaintiff has a

property interest that warrants constitutional protection and (2) only if so, “whether the

defendant followed due course of law in depriving the plaintiff of that interest,” Loe,

692 S.W.3d at 227–28, or—put differently—“what process is due,” Tex. Dep’t of State

Health Servs. v. Crown Distrib. LLC, 647 S.W.3d 648, 653 n.16 (Tex. 2022) (quoting Mosley

v. Tex. Health & Hum. Servs. Comm’n, 593 S.W.3d 250, 264 (Tex. 2019)). Under Patel, a

plaintiff who has a constitutionally protected property interest must show that either

(1) the challenged ordinance’s purpose “could not arguably be rationally related to a

legitimate governmental interest; or (2) when considered as a whole, the [ordinance’s]

actual, real-world effect as applied to the challenging party could not arguably be

rationally related to, or is so burdensome as to be oppressive in light of, the

governmental interest.” 17 469 S.W.3d at 87.

1. The STR Owners have no vested right to lease short term.

“[T]o rise to the level of a due[-]process [or due-course] deprivation, [a plaintiff]

must first possess a vested property right.” Rancho De Los Arboles LLC v. Town of Cross

Roads, No. 02-25-00208-CV, 2026 WL 253459, at *6 (Tex. App.—Fort Worth Jan. 30,

2026, no pet.) (first citing Klumb, 458 S.W.3d at 17; and then citing City of Grapevine v.

Muns, 651 S.W.3d 317, 345 (Tex. App.—Fort Worth 2021, pet. denied) (op. on reh’g)).

17
Although the City argues that the “so burdensome” test is limited to
economic-regulation statutes, we assume without deciding that Patel’s second prong
could apply to the situation here but do not reach it. See n.21, infra.

15
A vested right must have “some definitive, rather than merely potential existence” and

be “something more than a mere expectancy based upon an anticipated continuance of

an existing law.” Id. (first quoting City of LaMarque v. Braskey, 216 S.W.3d 861, 864 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied); and then quoting Klumb, 458 S.W.3d at

15). And a “bare contention that the right to use property as an STR is inherently vested

is unsupported . . . in the law.” Id. at *6 n.13.

Property rights are not “absolute,” Crown Distrib., 647 S.W.3d at 654, and

“[l]imitations on property rights may be by . . . appropriate government action under its

police power.” Severance v. Patterson, 370 S.W.3d 705, 710 (Tex. 2012). No

“constitutionally protected vested right” exists to “use real property in any certain way,

without restriction.” Braskey, 216 S.W.3d at 863 (citing City of Univ. Park v. Benners,

485 S.W.2d 773, 778 (Tex. 1972)); see Zaatari v. City of Austin, 615 S.W.3d 172, 191 (Tex.

App.—Austin 2019, pet. denied) (noting that right to lease for profit can be subject to

restriction under certain circumstances); Consumer Serv. All. of Tex., Inc. v. City of Dallas,

433 S.W.3d 796, 805 (Tex. App.—Dallas 2014, no pet.) (“Property owners do not have

a constitutionally protected, vested right to use property in any certain way.”).

In Rancho De Los Arboles—our most recent foray into the STR issue—we

remanded Rancho’s due-course claim for repleading because neither side had provided

the version of Cross Roads’ ordinance in effect when Rancho acquired the property it

had been using as an STR for many years before receiving Cross Roads’ notice that

STRs were prohibited in single-family residential areas. 2026 WL 253459, at *1, *6–7.

16
For that reason, “Rancho ha[d] not demonstrated that it had a vested property right to

use the property as an STR when it acquired the property and ha[d] not met its pleading

burden for this cause of action.” Id. at *7.

A few years before Rancho De Los Arboles, in Grapevine, we concluded on

interlocutory appeal that the STR owners there had a general vested right to lease as

part of their “bundle of rights” that was sufficient to support a viable due-course claim

challenging Grapevine’s outright ban on STRs anywhere within the city. 651 S.W.3d at

347. But we circumscribed that conclusion: “[w]hether the durational restrictions

imposed by the STR Ordinance violate[d] the Homeowners’ due-course-of-law rights

regarding their right to lease [went] to the case’s merits, an altogether improper inquiry

at [that] stage of the case.” Id. That is, we did not hold that what we viewed as a general

right to lease necessarily or even likely encompassed a vested right to lease on a

short-term basis; we did nothing more than permit the owners’ due-course claim to

proceed to a merits disposition in the trial court. Id. In so doing, we were agnostic about

its eventual fate.

Reading Rancho De Los Arboles and Grapevine together—and together with other

persuasive authority—suggests that a right to lease short-term, if it is to be called

“vested,” can be properly informed by whether that right was enshrined under a

17
preexisting ordinance. 18 See, e.g., Crystal Cruise, 2026 WL 530391, at *6 (holding that

because city’s vacation-rental ordinance had been in place for six years before STR

owner bought the property, the owner “[could not] show that it has any vested right to

use the property as a vacation rental as a matter of law.”); see also Marfil v. City of New

Braunfels, No. 6:20-CV-00248, 2021 WL 8082644, at *5 (W.D. Tex. July 29, 2021)

(agreeing that “the right to lease property for short durations is objectively out of place

on” list of traditionally protected interests as collected in Washington v. Glucksberg,

521 U.S. 702, 720 (1997)), report and recommendation adopted, 2022 WL 18034356 (W.D.

Tex. Sept. 15, 2022), vacated and remanded, 70 F.4th 893 (5th Cir. 2023); cf. Zaatari,

615 S.W.3d at 191 (noting city’s acknowledgement that under earlier ordinances

allowing STRs, “Austinites ha[d] long exercised their right to lease their property” as

STRs, which were “an ‘established practice’ and a ‘historically . . . allowable use’”);

Village of Tiki Island v. Ronquille, 463 S.W.3d 562, 587 (Tex. App.—Houston [1st Dist.]

2015, no pet.) (recognizing narrow vested right in particular use of property when new

law restricts an existing use).

Perhaps, then, a better way to look at the intersection of STRs and municipal

regulation is to view STRs as conditionally allowed uses rather than as having the sort

of “definitive, rather than merely potential existence,” Rancho De Los Arboles,

In Grapevine, we held that STRs had been allowed under the city’s preexisting
18

ordinance but that, under Benners, the owners did not thereby possess a vested right to
lease short-term. 651 S.W.3d at 346.

18
2026 WL 253459, at *6, that exalts them automatically to vested status. Certainly, as

online STR platforms have proliferated, more and more municipalities have responded

with various types of ordinances: banning them altogether (e.g., Grapevine); banning

them but grandfathering in those who had previously used their properties as STRs

(e.g., Marfil v. City of New Braunfels, No. 6:20-CV-00248, 2025 WL 243028, at *2 (W.D.

Tex. Jan. 10, 2025) (order on remand), appeal docketed, No. 25-50025 (5th Cir. Jan. 17,

2025)); banning them without a special-use permit (e.g., Crystal Cruise); creating STR

zones and requiring operating permits (e.g., Draper); and other approaches.19 To us,

these evolving governmental responses are of a piece with the United States Supreme

Court’s recognition, in Village of Euclid, that problems are “constantly” developing that

“require, and will continue to require, additional restrictions in respect of the use and

occupation of private lands in urban communities.” 272 U.S. at 386–87, 47 S. Ct. at

118.

We are not insensitive to Lockean notions of and respect for private-property

rights, but communities have important interests, too, under which municipalities may

“essay new solutions to new problems.” Maher, 516 F.2d at 1059. We recognized as

much in Draper by labeling “legitimate” those governmental interests in

“(1) safeguarding the life, health, safety, welfare, and property of STR occupants,

We express no opinion about the constitutional validity of any ordinances other
19

than those at issue in this appeal.

19
neighborhoods, and the general public” and—equally important—“(2) minimizing the

adverse impacts resulting from increased transient rental uses in neighborhoods that

were planned, approved, and constructed for single-family residences.” 629 S.W.3d at

786.

Answering the question left open in Grapevine, then, we hold that the Owners do

not have a vested common-law right to use their properties as short-term rentals. 20 This

20
This conclusion is bolstered by the Texas Supreme Court’s post-Grapevine
decisions in Crown Distributing and Loe, both of which—unlike Patel—focused on the
critical threshold issue of carefully and narrowly defining the asserted interest. Crown
Distrib., 647 S.W.3d at 653 & n.16 (declining to reach step two because due-course
clause did not protect hemp companies’ asserted interest in manufacturing and
processing smokable hemp products as part of liberty right to “work and earn a living”
and noting that Patel did not engage step one because parties had assumed a protected
interest and focused only on second step); Loe, 692 S.W.3d at 231–33 (noting that
because “parental control and authority have never been understood as constitutionally
mandated absolutes,” “novel treatments for a novel condition [gender dysphoria] are
generally within the Legislature’s power to regulate without facing heightened scrutiny,”
so although challenged statute “limit[ed] the availability of novel medical treatments for
children diagnosed with a novel medical condition, it [did] not deprive those children’s
parents of any constitutionally protected right or undermine a custom embedded in our
history or traditions”).

In defining the interest at stake here, and narrowing it as we should, we thus
distinguish between a right to lease and a right to lease for less than 30 days; the former
is a core incident of property ownership, the latter a specific use carrying no
common-law categorical vested-right protection. See Crystal Cruise, 2026 WL 530391, at
*5–6 (holding no vested right to use property as STR). Although in contending that
“STRs have long been an unexceptional residential use of property in Texas” the
Owners point us to several old cases, e.g., Coalson v. Holmes, 240 S.W. 896 (Tex. 1922);
Williams v. State, 47 S.W.2d 298 (Tex. Crim. App. 1932), those cases merely mentioned
weekly rentals, and such references were incidental to the legal analysis. But STRs in
their current iteration are possible only because of the internet, driving both a qualitative
and quantitative leap from boarding-houses of yore and, it is fair to say, exponentially
accelerating occupant turnover—not to mention incentivizing a property owner to use

20
holding is enough to affirm judgment on the Owners’ due-course claim, but because

rational-basis review applies to the Owners’ equal-protection claim, we will explain here

why the STR Ordinances satisfy that test for due-course purposes as well. 21

2. The STR Ordinances have a rational basis.

Under highly deferential rational-basis review, 22 we uphold ordinances if a city

reasonably believes—if it is “at least fairly debatable”—that they promote a legitimate

governmental objective. See Mayhew, 964 S.W.2d at 938. An ordinance violates due

process if it “has no foundation in reason and is a mere arbitrary or irrational exercise

of power having no substantial relation to the public health, the public morals, the

public safety[,] or the public welfare in its proper sense.” Draper, 629 S.W.3d at

786 (quoting Mayhew, 964 S.W.2d at 938). Our concern is not “whether the ordinance

his property as an STR rather than lease it out for a longer term. Even the Owners, in
their petition, asserted that “[s]hort-term renting is, on a per-diem basis, more lucrative
than longer-term rentals.” Cf. Hogan v. S. Methodist Univ., 688 S.W.3d 852, 854–55,
863 (Tex. 2024) (noting that COVID-era statute “created new rules governing novel
litigation in the wake of a novel and previously unimaginable event”).

We decline to reach Patel’s undue-burden prong, an analysis that is made
21

unnecessary by our holding that the Owners do not have a vested right to engage in
short-term renting.
22
The rational-basis test is “the most deferential of the standards of review that
courts use in due-process and equal-protection analysis.” Rational-basis test, Black’s Law
Dictionary (12th ed. 2024). We note that, in Zaatari, our sister court in Austin struck
down STR regulations not under rational-basis review but under a heightened standard
of review against the city. 615 S.W.3d at 199–202. Here, both sides agree that rational
basis is the appropriate framework.

21
was effective; we ask only if the City could rationally have believed at the time of

enactment that the ordinance would promote its objective.” Id. Framed in the negative,

“[w]e will not set aside an ordinance unless it is clearly arbitrary and unreasonable.” Id.

(citing Mayhew, 964 S.W.2d at 938).

The scope of what qualifies as a legitimate governmental objective embraces

police powers that include not just protecting health, safety, and morals but extend to

such broad concepts as “public welfare,” Mayhew, 964 S.W.2d at 938, and “quality of

life,” City of San Antonio v. TPLP Off. Park Props., 218 S.W.3d 60, 65–66 (Tex. 2007)

(holding that city’s legitimate interest in separating commercial traffic from residential

neighborhood by closing private business’s driveway access to public street both for

safety and to improve residents’ “quality of life” passed rational-basis review). And

precisely because “[t]he concept of the public welfare has a broad range,” an ordinance

must stand if reasonable minds could differ on whether it promotes such welfare. City

of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 805 (Tex. 1984).

When it comes to STR regulations in particular, one court has noted that it could

“clearly understand”—as can we—“how short-term renters could affect the residential

character within neighborhoods, specifically those which are zoned for single[-] or

dual[-]family living.” Marfil, 2025 WL 243028, at *1 (granting summary judgment for

city and finding that “there exists a rational basis for this ordinance at least for the

preservation of residential character” and referring, among other things, to “numerous

statements from affected residents” expressing desire to preserve residential character).

22
We ourselves have said as much: the “residential character of a neighborhood is

threatened when a significant number of homes . . . are occupied not by permanent

residents but by a stream of tenants staying a weekend, a week, or even 29 days” whether

or not STRs have other, unmitigable “adverse impacts.” Draper, 629 S.W.3d at

792 n.21 (quoting Ewing v. City of Carmel-By-The-Sea, 286 Cal. Rptr. 382, 388 (Cal. Ct.

App. 1991)).

Here, the Owners contend that the City’s characterization of STRs as

“commercial” in the 2018 Ordinance is “inherently irrational” and contrary to

controlling authority that—according to the Owners—recognizes that short-term

renters do the same sorts of “residential” things that both long-term renters and

permanent residents do and that receiving rental income does not transform a

residential use into a commercial one.23 They also argue that “zoning-type regulations

must be based on harm”—an iffy proposition under rational-basis review—and that

the record does not show that harm occurs more often in STRs purely because of the

renters’ length of stay.

The Owners principally rely on cases involving restrictive covenants stating that
23

all properties were to be used solely for residential purposes. E.g., Tarr v. Timberwood
Park Owners Ass’n, 556 S.W.3d 274, 291 (Tex. 2018). “But a restrictive covenant is not
the same concept as a zoning regulation.” Villanueva v. Village of Volente,
No. 1:23-CV-1246, 2024 WL 2143596, at *11 (W.D. Tex. May 13, 2024) (denying STR
owners’ motion to preliminarily enjoin ordinance), appeal dism’d, No. 24-50396, 2024
WL 4815039 (5th Cir. June 13, 2024).

23
But the Owners do not refute the City’s other legitimate reason for the STR

Ordinances: preserving neighborhood character, which differs from addressing either

real or theoretical harms such as noise, traffic, and the like. They posit that

neighborhood character is already preserved by the simple fact that their properties are

and have been zoned residential and are used for that purpose, asserting that “[b]anning

a residential use to preserve ‘residential character’ is a contradiction in terms, not a

rational basis for a sweeping ban on STRs.” Even assuming that leasing a residence for

profit is inherently “residential,” as the Owners assert, we aren’t convinced that what

comes down to limiting a subset of an activity contradicts preserving the broader

character of that activity. For example: although driving is allowed in residential areas,

that activity can be limited by imposing lower speed limits, bans on large trucks, etc., to

preserve residential character. This is not a “contradiction” just because “driving” is a

permitted activity. Rather, it is the intensity and nature of the use that matters—constant

high-speed or commercial traffic changes a residential neighborhood’s character in

much the same way that frequent guest turnover, minimal community ties, and

unfamiliar faces do when it comes to STRs. Cf. TPLP Off. Park Props., 218 S.W.3d at

65–66. Moreover, several Owners themselves agreed that “reasonable persons can

differ in their opinions” on STRs and the extent to which they should be allowed in

residential districts.

24
Mayberry might be fictional,24 but a city’s interest in fostering and preserving

residential communities where “people are invested and engaged in their neighborhood

and care about each other,” see Slice of Life, LLC v. Hamilton Twp. Zoning Hearing Bd.,

207 A.3d 886, 900 (Pa. 2019), is real—and rational, and legitimate. Cf. Lombardo v. City

of Dallas, 73 S.W.2d 475, 482–83 (Tex. 1934) (quoting Miller v. Bd. of Pub. Works, 234 P.

381, 387 (Cal. 1925), in observing that with ownership of single-family residences come

“stability, the welding together of family ties, and better attention to the rearing of

children”; “increased interest in the promotion of public agencies, such as church and

school, which have for their purpose a desired development of the moral and mental

make-up of the citizenry of the country”; and “recognition of the individual’s

responsibility for his share in the safeguarding of the welfare of the community and

increased pride in personal achievement which must come from personal participation

in projects looking toward community betterment”); Robert D. Putnam, Bowling Alone:

The Collapse and Revival of American Community 307 (20th anniv. ed. 2020)

(“Neighborhoods with high levels of social capital[25] tend to be good places to raise

24
See The Andy Griffith Show (CBS 1960–68); The Andy Griffith Show, IMDB,
https://www.imdb.com/title/tt0053479/ (last accessed May 27, 2026).

Putnam defines “social capital” as “connections among individuals—social
25

networks and the norms of reciprocity and trustworthiness that arise from them.”
Putnam, supra, at 19.

25
children. In high-social-capital areas, public spaces are cleaner, people are friendlier, and

the streets are safer.”).

That such a goal is not easily quantified—or even, in today’s atomized society,

that this goal is perhaps unlikely to (re)gain purchase—does not make it any less

rational. Indeed, under rational-basis review, “courtroom fact-finding” is not the

standard, and a city’s legislative judgments “may be based on rational speculation

unsupported by evidence or empirical data.”26 Klumb, 458 S.W.3d at 13 (quoting F.C.C.

v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 2102 (1993)).

In short, the STR Ordinances rationally address a legitimate governmental

interest.

26
Of course, as we detailed above in Part II.B–E, the City did in fact amass quite
a lot of information from its multiyear investigation, including soliciting citizen input
and considering other cities’ STR experiences. See City of Renton v. Playtime Theaters, Inc.,
475 U.S. 41, 51–52, 106 S. Ct. 925, 931 (1986) (holding that city could rely on other
cities’ experiences in enacting zoning ordinance; city need not “conduct new studies or
produce evidence independent of that already generated by other cities, so long as
whatever evidence the city relies upon is reasonably believed to be relevant” to the
particular problem); Villanueva, 2024 WL 2143596, at *8 (noting that Village’s STR
ordinance “was passed only after the Village’s careful consideration of other
municipalities’ experiences with STRs and hearing the concerns of many Village
residents” over many years); Draper, 629 S.W.3d at 788 (declining to reverse denial of
preliminary injunction against STR ordinance that derived from “public comment and
input” even though no “data set” substantiated city’s claim that excluding STRs allowed
neighborhoods to maintain quiet and repose). Fort Worth’s leaders did not wake up
one morning and decide on a whim to adopt the STR Ordinances.

26
C. The Retroactivity Owners’ 27 claim

The Texas Constitution provides that “[n]o bill of attainder, ex post facto law,

retroactive law, or any other law impairing the obligation of contracts shall be made.”

Tex. Const. art. I, § 16. “A retroactive law is one that extends to matters that occurred

in the past.” Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 707 (Tex. 2014); see Subaru of

Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002) (defining a

retroactive law as “a law that acts on things which are past”). But not all retroactive laws

are unconstitutional. See Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 139 (Tex.

2010) (“Mere retroactivity is not sufficient to invalidate a statute.” (quoting Tex. Water

Rights Comm’n v. Wright, 464 S.W.2d 642, 648 (Tex. 1971))).

Three considerations inform a retroactivity challenge: (1) the nature and strength

of the public interest the legislation serves; (2) the nature of the prior right that is

impaired; and (3) the extent of the impairment. Id. at 145. To satisfy the second prong,

a plaintiff must show that he has a settled and reasonable expectation of the

constitutional right asserted. Id. at 148; see Zaatari, 615 S.W.3d at 190. We “first consider

the nature of the rights claimed and the statute’s impact on them,” and only if a party’s

“settled expectations” are disturbed do we consider “whether the statute serves a public

interest.” Fire Prot. Serv., Inc. v. Survitec Survival Prods., Inc., 649 S.W.3d 197, 201 (Tex.

2022) (noting that “a law is not retroactive in the constitutional sense unless it disrupts

See supra n.11.
27

27
or impairs settled expectations”); see Hogan, 688 S.W.3d at 854–55, 863 (concluding that

COVID-era statute protecting schools from monetary liability for altering their

activities in response to the pandemic did not retroactively withdraw student’s right to

seek contract damages from university for breaking promise of in-person education; no

“settled rules” existed governing ability to recover damages when government forced

university to go online, and statute “created new rules governing novel litigation in the

wake of a novel and previously unimaginable event”).

Here, then, the Retroactivity Owners must show that they had a reasonable and

settled expectation that they could operate their single-family residential properties as

STRs when the City passed the 2018 Ordinance. They argue that they have carried this

burden and that “[t]his case is just like Zaatari,” in which the Austin court invalidated

that city’s amended STR ordinance as unconstitutionally retroactive. But critical

differences exist.

Most important, Austin had—by ordinance—expressly allowed STRs since

2012 if property owners satisfied certain eligibility criteria and obtained a license.

Zaatari, 615 S.W.3d at 180. Many people invested heavily in properties in reliance on

that ordinance. Id. at 191. But in 2016, the city amended its regulations to suspend the

licensing of any new STRs in single-family residences that were not owner-occupied or

associated with an owner-occupied principal residential unit (“type-2” STRs) and to

eliminate type-2 STRs altogether by 2022. Id. at 181. The State intervened in the

28
property owners’ lawsuit to assert that this aspect of the 2016 ordinance was

unconstitutionally retroactive. Id.

Our sister court first held that because the city had not shown that its purported

public-interest issues were unique to type-2 STRs—as opposed to

homestead-designated STRs also in residential areas—the ordinance did not advance a

compelling interest. Id. at 189–90 (“Nothing in the record before us suggests that the

City’s reasons for banning type-2 rentals address concerns that are particular to

type-2 rentals or that the ban itself would actually resolve any purported concerns.”). It

then held that the type-2 STR owners had a “settled interest” in their right to lease short

term because, as the city acknowledged, “Austinites have long exercised their right to

lease their property by housing short-term tenants”; “short-term rentals are an

‘established practice’ and a ‘historically . . . allowable use”; and property owners “who

rented their individual properties as type-2 short-term rentals before” the city eliminated

that type of rental “did so after investing significant time and money into the property

for that purpose.” Id. at 191.

On those facts, Austin’s ordinance was held to have unconstitutionally taken

away settled expectations—a holding that is not terribly surprising. But Fort Worth’s

pre-2018 posture on STRs was quite different. No ordinance allowed them at all.

29
Further, the Retroactivity Owners variously admitted that, before 2018, they had

not researched whether STRs were allowed;28 did not know whether STRs were or were

not allowed in the City; or, at a minimum, understood that whether they could lease

their properties short-term was an “unsettled” issue. One Retroactivity Owner, who

bought his several STR properties between 2021 and early 2024, testified that he knew

in 2021 that the issue was “unsettled” and that he bought his properties “with that

understanding. It is an unsettled issue. It is in debate. It is, hopefully, going to get

worked out.”

From this record, especially when contrasted with Zaatari, the Retroactivity

Owners lacked any reasonable—much less settled—expectation that they could lease

their residential properties short-term.

28
One Retroactivity Owner did submit an unsworn declaration stating that, in
2017, she “reached out to the City’s planning and zoning department to inquire about
whether leasing of a guest house was permissible” and “learned that . . . short-term
renting was allowed,” a conversation she relied on to build a guest house on her
property. But any such “statements or assurances regarding zoning” made by a city
official “are not binding.” Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660,
678 n.89 (Tex. 2004) (quoting City of Pharr v. Pena, 853 S.W.2d 56, 62 (Tex. App.—
Corpus Christi–Edinburg 1993, writ denied), and similar cases). And this Owner
testified in deposition that she could not recall whether she was told that STRs were
allowed in residential districts or that no ordinance specifically banned them. She also
testified that up until the 2023 Ordinance, the issue of whether STRs would be allowed
in the City was unsettled, although she now understands that they were “not expressly
allowed” before 2018, a difference she did not understand at the time and so “thought
[they were] fully allowed.”

30
D. Equal-protection claim

To state a viable equal-protection claim under the Texas Constitution, see Tex.

Const. art. I, § 3, a plaintiff must show that he was “treated differently from others

similarly situated.” Klumb, 458 S.W.3d at 13. And when “neither a suspect classification

nor a fundamental right is involved,” the plaintiff “must further demonstrate that the

challenged decision is not rationally related to a legitimate governmental purpose.” Id.

Equal-protection challenges are analyzed the same way under both the federal and

Texas Constitutions. See Bell v. Low Income Women of Tex., 95 S.W.3d 253, 266 (Tex. 2002).

The United States Supreme Court instructs that “[a] classification does not fail

rational-basis review because . . . in practice it results in some inequality. The problems

of government are practical ones and may justify, if they do not require, rough

accommodations—illogical, it may be, and unscientific.” Heller v. Doe, 509 U.S. 312, 321,

113 S. Ct. 2637, 2643 (1993) (cleaned up).

For the same reasons we concluded above that (a) the Owners do not have a

vested right to short-term leasing and (b) the STR Ordinances rationally relate to a

legitimate governmental purpose, we hold that the Owners do not have a viable

equal-protection claim. 29 The trial court did not err by granting summary judgment on

this claim.

We need not reach the City’s argument that STR owners are not a “class” at all
29

and therefore that the Owners failed to even state an equal-protection claim.

31
* * *

We affirm summary judgment on the Owners’ three constitutional claims.

V. Ultra Vires Claim

The Owners argue that even if the STR Ordinances are constitutional, the City

acted ultra vires when it enacted them, exceeding its authority under the Zoning

Enabling Act, Tex. Loc. Gov’t Code §§ 211.001–.058. In the trial court, the City raised

governmental immunity as an affirmative defense and, in its summary-judgment

motion, asserted that it was “debatable” whether the court had jurisdiction, citing Patel,

469 S.W.3d at 76 (“[S]uits complaining of ultra vires actions may not be brought against

a governmental unit, but must be brought against the allegedly responsible government

actor in his official capacity.”).30

As we recently reiterated in Rancho De Los Arbores, a claim of ultra vires action is

proper only against the appropriate government official, not the entity; “[t]he

governmental entities themselves remain immune from suit because unlawful, ultra

30
Although the City did not, in its appellate briefing, mention its earlier
jurisdictional uncertainty, we can raise jurisdictional issues on our own. See, e.g., In re
J.J.R.S., 627 S.W.3d 211, 225 n.15 (Tex. 2021) (“Courts may raise jurisdictional issues
sua sponte for the first time on appeal.”); City of Houston v. Rhule, 417 S.W.3d 440,
442 (Tex. 2013) (“[A]ll courts bear the affirmative obligation to ascertain that subject
matter jurisdiction exists regardless of whether the parties have questioned it.” (cleaned
up)); McDaniel v. Crowley Indep. Sch. Dist., No. 02-24-00053-CV, 2025 WL 876777, at
*5 (Tex. App.—Fort Worth Mar. 20, 2025, pet. denied) (“Sovereign and governmental
immunity sufficiently implicate subject matter jurisdiction such that it cannot be waived
by failure to assert it in the trial court and can be raised for the first time on appeal,
even if the appellate court raises it sua sponte.”).

32
vires acts of officials are not acts of the State.” 2026 WL 253459, at *7. We held that

because “Rancho’s live pleading alleges a substantive ultra vires claim [for exceeding its

authority under the Zoning Enabling Act] against the municipality itself . . . —rather

than against any specified official—Rancho has failed to plead a justiciable ultra vires

claim.” Id. *8; see Tex. Dep’t of Ins. v. Reconveyance Servs., Inc., 306 S.W.3d 256, 258–59 (Tex.

2010) (concluding that when a plaintiff’s claims are substantively ultra vires claims, they

must properly be brought against the appropriate government official in his official

capacity rather than the entity). Rancho’s ultra vires declaratory claim was thus

“incurably deficient and deprived the trial court of jurisdiction.” Rancho De Los Arbores,

2026 WL 253459, at *8.

Having considered the Owners’ ultra vires claim as pleaded and briefed to us, we

conclude that jurisdiction is lacking. As in Rancho De Los Arbores, the Owners’ “live

pleading alleges a substantive ultra vires claim [for the City’s exceeding its authority

under the Zoning Enabling Act] against the municipality itself” and not “against any

specified official.” Id. We thus dismiss the Owners’ claim that the City exceeded its

authority under the Zoning Enabling Act and do not address its merits.

VI. Admission of the City’s Expert Testimony

The Owners complain that the trial court abused its discretion by “impliedly”

denying their motion to exclude the summary-judgment affidavit of the City’s expert,

Dr. Peter Tarlow, a sociologist with expertise on tourism and, in his words, “the effects

33
of transient populations on local communities.”31 But the Owners give no explanation

of the affidavit’s alleged harm.

The Owners objected to Dr. Tarlow’s expert affidavit, arguing that his opinions

were irrelevant and unreliable and that he was not qualified as an expert witness. They

continue that challenge on appeal.

As for relevance, the Owners take issue with the City’s using Dr. Tarlow’s

affidavit in its summary-judgment motion to “corroborate[] Burghdoff’s view of STRs,”

arguing that due to the City’s “limited” use of the affidavit, “the most Tarlow’s

testimony was intended to do was echo a city official’s ‘view’ that the City adopted the

Ordinances to preserve and protect residential neighborhoods from alleged harms and

commercial uses while also ‘supporting tourism.’” The Owners attack the reliability of

Dr. Tarlow’s opinions because, they say, his expertise was unrelated to anything specific

to STRs or the City and because he admitted that he has no expertise on residential

rentals.

But even if the Owners are right, they must show more. We “cannot reverse a

trial court’s judgment based on the erroneous admission of evidence unless the error

Among his opinions were that the “proliferation of STRs in residential
31

neighborhoods . . . degrades the balance between transient visitors and residents and is
incompatible with the characteristics of a community,” and that “the transitory nature
of STRs is inherently incompatible with residential neighborhoods.” He concluded that
because of these differences between “a resident (wherever a city may draw the line)
and a non-resident transient visitor,” it is “reasonable and rational to treat a short-term
renter different[ly] than a long-term and/or permanent resident.”

34
‘probably caused the rendition of an improper judgment.’” Jackson v. Takara, 675 S.W.3d

1, 6 (Tex. 2023) (quoting Tex. R. App. P. 44.1(a)(1)). And it is the complaining party

who must “demonstrate that the judgment turns on the particular evidence admitted.”

Id. (quoting Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004)). In addition,

“[c]learly, erroneous admission is harmless if it is merely cumulative,” Nissan Motor,

145 S.W.3d at 144, and the Owners themselves characterized Dr. Tarlow’s affidavit as

cumulative of Burghdoff’s. 32

Here, the Owners have neither argued nor shown that Dr. Tarlow’s affidavit

drove the resulting judgment in ways large or small. 33 They have thus not satisfied Rule

44.1(a)(1)’s standard for reversible error. See Tex. R. App. P. 44.1(a)(1). We overrule the

Owners’ appellate complaint about Dr. Tarlow’s testimony.

32
Dr. Tarlow’s opinions track those of Burghdoff, who holds degrees in city
planning from the Massachusetts Institute of Technology and has many years’
experience in the City’s Planning and Development Department, including as Zoning
Administrator. In her summary-judgment affidavit, Burghdoff averred that STR use “is
inherently incompatible with a residentially[ ]zoned neighborhood where there exists a
sense of community and camaraderie (or, at least, familiarity) between neighbors. STR
guests, by definition, do not stay in a neighborhood or community to build and maintain
those relationships.” Burghdoff also made the self-evident point that “if a dwelling in a
single-family residentially[ ]zoned neighborhood is being used for STRs, it is not
available on the market for a long-term or permanent resident.”
33
The Owners attempted to address harm in their reply brief, but we are not
persuaded. Moreover, we have our doubts about whether the City even needed to
submit an expert affidavit, given a municipality’s wide latitude in its police-power
regulations and the deference given to its rational choices.

35
VII. Attorney’s Fees

In their final issue, the Owners contend that the trial court erred in awarding

attorney’s fees to the City under the Texas Uniform Declaratory Judgments Act

(UDJA), see Tex. Civ. Prac. & Rem. Code § 37.009, which provides that a court “may

award . . . reasonable and necessary attorney’s fees as are equitable and just” in “any”

Chapter 37 proceeding. “The reasonable and necessary requirements are questions of

fact to be determined by the factfinder,[34] but the equitable and just requirements are

questions of law for the trial court to decide.” Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d

143, 161 (Tex. 2004) (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). A

defendant that requests attorney’s fees in answering a declaratory-judgment suit—as the

City did here—may be entitled to fees as the prevailing party. Cadle Co. v. Harvey,

46 S.W.3d 282, 289 (Tex. App.—Fort Worth 2001, pet. denied).

The Owners argue that courts do not award attorney’s fees to the government

in constitutional cases unless the claims are frivolous or brought in bad faith, relying on

cases dealing with other statutory bases for such awards—none of which involved the

UDJA. See Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412,

421, 98 S. Ct. 694, 700 (1978) (holding that prevailing defendant in Title VII case could

recover fees only if plaintiff’s claim was “frivolous, unreasonable, or groundless,”

The Owners do not challenge the amount or necessity of the City’s attorney’s
34

fees.

36
referencing 42 U.S.C. § 2000e-5(k)); Vaughan v. Lewisville Indep. Sch. Dist., 62 F.4th 199,

207 (5th Cir. 2023) (addressing attorney’s fees authorized under the Voting Rights Act,

28 U.S.C. § 1927); Rickert v. Meade, No. 06-20-00002-CV, 2020 WL 4354946, at *3 (Tex.

App.—Texarkana July 30, 2020, no pet.) (addressing fees under Civil Rights Act,

42 U.S.C. § 1983); Ubiñas-Brache v. Dall. Cnty. Med. Soc’y, 261 S.W.3d 800, 802–03 (Tex.

App.—Dallas 2008, pet. denied) (addressing fees under Texas Medical Practice Act,

Tex. Occ. Code § 160.008(c), and federal Health Care Quality Improvement Act,

42 U.S.C. § 11113). The Owners contend that unless the claims are patently baseless,

“[c]ourts are reluctant to award attorney’s fees against plaintiffs undertaking to enforce

their constitutional rights.” Stenseth v. Greater Ft. Worth & Tarrant Cnty. Cmty. Action

Agency, 673 F.2d 842, 848 (5th Cir. 1982). 35

But under the UDJA, a trial court’s touchstone is whether a fee award would be

“equitable and just.” Tex. Civ. Prac. & Rem. Code § 37.009. Although these are

questions of law, see Ridge Oil Co., 148 S.W.3d at 161, “[m]atters of equity are addressed

to the trial court’s discretion,” Bocquet, 972 S.W.2d at 21. And Texas courts have

affirmed awards of attorney’s fees in favor of the government in declaratory-judgment

suits, most notably in Save Our Springs Alliance, Inc. v. Lazy Nine Municipal Utility District.

ex rel. Board of Directors, 198 S.W.3d 300 (Tex. App.—Texarkana 2006, pet. denied).

Stenseth involved an unsuccessful Section 1983 claim, with the Fifth Circuit
35

holding that the district court had abused its discretion in finding that the plaintiff had
pursued a frivolous claim when its futility was revealed only in hindsight. Id.

37
There, the nonprofit organization that had sought declaratory relief argued on appeal

that the trial court’s award of attorney’s fees to an arm of the local government was not

equitable and just.36 Id. at 318–19. The court of appeals disagreed, noting the trial court’s

discretionary power and concluding that “[b]ecause reasonable minds can differ

concerning whether the attorney’s fees are just and equitable, we cannot say the trial

court abused its discretion in awarding such fees to” the local-government arm. Id. at

319. We cannot say that here, either, just as we could not say that the trial court had

abused its discretion if it had declined to award attorney’s fees to the City. We overrule

the Owners’ final issue.

VIII. Conclusion

Having overruled each of the Owners’ issues, we vacate the trial court’s judgment

on the ultra vires claim and dismiss that claim for lack of jurisdiction, and we affirm the

remainder of the trial court’s judgment.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Delivered: May 28, 2026

The nonprofit had challenged the constitutionality of the legislative bill that
36

created the municipal utility district at issue. Save Our Springs All., Inc., 198 S.W.3d at
308.

38