TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00196-CV
Los Indios Ventures, Inc.; City of Austin; Kirk Watson, in his Official Capacity as Mayor
of the City of Austin; Natasha Harper-Madison, Vanessa Fuentes, Jose Velasquez,
Jose (Chito) Vela, Ryan Alter, Krista Laine, Mike Siegel, Paige Ellis, Zohaib Qadri, and Marc Duchen, each in their Official Capacities as Council Members of the City of Austin;
and TJ Broadnax, in his Official Capacity as City Manager of the City of Austin,
Appellants
v.
Barton Creek Southwest Property Owners Association, Travis Country West Homeowners
Association, Wekshi Capital, and Save Our Springs Alliance, Appellees
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-25-001952, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING
MEMORANDUM OPINION
The underlying dispute centers on whether the City of Austin had authority to
enter into and later amend a public restrictive covenant to allow a developer to build a
multifamily development on a 9.6-acre property in southwest Austin (the Property) without
complying with the impervious-cover limit of the Save Our Springs Initiative Petition Ordinance
(SOS Ordinance). We will reverse the trial court’s judgment and remand for further proceedings
because the Property’s owner was not made a party to the suit before the trial court ruled on the
parties’ cross-motions for summary judgment.
BACKGROUND
In 1985, the City annexed the Property, which sits on the Williamson Creek and
Barton Creek watersheds and the Edwards Aquifer Contributing Zone. In 1987, as part of the
Oak Hill Area Study, the City passed an ordinance to zone the Property as Industrial Park–
Neighborhood Plan (IP-NP) and separately passed a Public Restrictive Covenant that required
compliance with the Williamson Creek Watershed Ordinance, limited development to a
maximum .25-to-1 floor area ratio (FAR),1 and limited development to specific uses that did not
include multifamily apartments. The Restrictive Covenant provided that it could be modified,
amended, or terminated by “joint action of both (a) a majority of the members of the City
Council of the City of Austin, or such other governing body as may succeed the City Council of
the City of Austin, and (b) the owner(s) of the Property.”
The Oak Hill Area Study was part of a larger plan for adopting comprehensive
zoning to replace the automatic low-density residential zoning that applied to newly annexed
areas of the city. See Loc. Gov’t Code § 211.004 (requiring zoning to comply with a
“comprehensive plan” and specifying design goals). The Study acknowledges that public
restrictive covenants, a method of “conditional” zoning, were used to add flexibility to a zoning
ordinance to address specific circumstances of individual properties. It further states that
Conditional zoning differs from illegal ‘contract’ zoning, because there is no
agreement that if certain things are done, a certain zoning will be granted. Rather,
an appropriate zoning category is granted on the merits, but because of special
1 See Austin, Tex., Code of Ordinances, § 25-1-21(43) (defining floor area ratio as “the ratio of gross floor area to gross site area.”); see also id. § 25-1-21(47), (48) (defining “gross floor area” as “the total enclosed area of all floors in a building with a clear height of more than six feet, measured to the outside surface of the exterior walls” and specifying that it “includes loading docks and excludes atria airspace, parking facilities, driveways, and enclosed loading berths and off-street maneuvering areas” and defining “gross site area” as “the total site area”).
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circumstances, conditions in addition to these ordinarily applicable are established
to guide development of the property.
Conditional zoning in the Oak Hill Area was meant to protect the Barton Creek watershed,
permit “reasonable development” on properties fully within the Williamson Creek Water Quality
Zone (particularly those exempted from the existing watershed ordinance through
grandfathering), eliminate grandfathered status of certain properties, address various unique
environmental concerns, prohibit uses incompatible with surrounding uses, and enhance planning
for public infrastructure. Under the Study, a goal was to limit FARs either through direct caps or
indirectly via impervious cover limitations.
In 1992, in response to growing concerns regarding the impact of development on
the City’s watersheds, voters approved the SOS Ordinance by a 64% vote. The SOS Ordinance
restricts impervious cover and requires owners to protect watersheds from various pollutants. In
2010, Property owner Los Indios Ventures, Inc. (Los Indios) sought to develop the Property with
an office building and possibly a religious and educational facility, so it sought to amend the
Restrictive Covenant and to rezone the property to General Office–Neighborhood Plan (GO-NP).
As a result, the City passed a rezoning ordinance and passed the 2010 Amendment to the
Restrictive Covenant, which doubled the FAR from .25-to-1.0 to .5-to-1.0 in exchange for
certain deed restrictions on the Property relating to neighborhood access and other items. This
development did not materialize.
In 2024, Manifold Real Estate (Manifold) obtained an option to purchase the
Property from Los Indios, intending to develop a multifamily project called the Sunset Ridge
Apartments, which was set to include a certain number of affordable housing units. Rather than
seeking Multifamily zoning, Los Indios negotiated with the City an amendment to the Restrictive
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Covenant, which doubled the allowable FAR from .5-to-1.0 to 1.0-to-1.0 and allowed the
property to be developed with 55% impervious cover.2 The 2024 Amendment also added a
provision stating that “Multifamily residential is not prohibited by this Restrictive Covenant.”
By amending the Restrictive Covenant to allow multifamily development, Manifold’s proposed
project could have proceeded despite the Property’s GO-NP zoning because it would have been a
“Qualifying Development” under Austin’s Affordability Unlocked Bonus Program, such that
Multifamily zoning was not necessary. According to the City, in exchange for the City’s
agreement to the 2024 Amendment, Los Indios agreed to comply with other facets of the SOS
Ordinance. Manifold’s proposed development met with opposition from neighbors, but City
Council nonetheless approved the 2024 Amendment by a voice vote. Shortly thereafter, on
May 10, 2024, the City made a vested rights determination for the Sunset Ridge Apartments
project, in which it stated that the project would be “subject to regulations in effect on 11/1/2023,
except as modified by [the Restrictive Covenant and its amendments].”
In March 2025, Appellees Barton Creek Southwest Property Owners Association,
Travis Country West Homeowners Association, Wekshi Capital, and Save Our Springs Alliance
sued the City of Austin; Kirk Watson, in his Official Capacity as Mayor of the City of Austin;
Natasha Harper-Madison, Vanessa Fuentes, Jose Velasquez, Jose (Chito) Vela, Ryan Alter,
Krista Laine, Mike Siegel, Paige Ellis, Zohaib Qadri, and Marc Duchen, each in their Official
Capacities as Council Members of the City of Austin; and TJ Broadnax, in his Official Capacity
as City Manager of the City of Austin (collectively, the City). In their original petition,
Appellees sought declaratory and injunctive relief based on assertions that (1) the 2024
2Appellees state that the SOS Ordinance, in the absence of the amended Restrictive Covenant, would limit impervious cover for the Property to 25%.
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Amendment was void ab initio because the City violated its charter, which requires it to legislate
by ordinance, see Austin City Charter art. II § 14 (“Procedure to Enact Legislation”); and (2) the
City violated the Texas Open Meetings Act (TOMA) by posting inadequate notice of the subject
under consideration when the City considered the 2024 Amendment, see Tex. Gov’t Code
§§ 551.001–.146. According to Appellees, on September 23, 2025, Appellees, the City, and
Manifold participated in negotiating a Rule 11 agreement whereby the parties agreed to a
“unique” briefing schedule pursuant to which they would present cross-motions for summary
judgment to the trial court. That same day, Appellees filed an amended petition, which added an
assertion that the Restrictive Covenant is unlawful “contract zoning” that is also an unlawful
delegation of legislative power. See Tex. Const. art. III, § 1 (vesting legislative power in the
House and Senate), art. XI § 5(a) (delegation to home-rule cities); Texas Boll Weevil Eradication
Found. v. Lewellen, 952 S.W.2d 454, 469 (Tex. 1997) (“[P]rivate delegations clearly raise even
more troubling constitutional issues than their public counterparts. On a practical basis, the
private delegate may have a personal or pecuniary interest which is inconsistent with or
repugnant to the public interest to be served.”). Appellees’ amended petition stated that they
sought “mandamus relief to restrain the implementation and enforcement of the modifications
contained” in the 2024 Amendment; they sought a declaratory judgment that the
2024 Amendment was void because of a TOMA violation and also argued that the City
defendants “are subject to mandamus and injunction from recognizing as valid and enforcing and
implementing the unlawfully adopted” 2024 Amendment; and that “Defendants should be
enjoined from recognizing these [contract zoning] provisions [of the Restrictive Covenant] as
binding or otherwise hindering its exercise of its legislative zoning powers.” The petition further
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asserted that as a result of the City’s ultra vires acts, the Restrictive Covenant and its
amendments are “void, unenforceable, and subject to injunctive relief.”
On October 2, 2025, Appellees moved for traditional summary judgment on all
claims, and the City filed a cross-motion on all of Appellees’ claims, stating that Appellees’
claims “raise pure questions of law, and the parties have agreed by Rule 11 Agreement to present
this case to the Court for final resolution via cross-motions for summary judgment.” The City
and Appellees filed responses to the motions and exchanged letters regarding the content of the
proposed summary-judgment order. The trial court held an oral hearing on the summaryjudgment motions on October 16, at which point the parties “communicated the terms of the
Rule 11 Agreement to the Court, including the hope the Court would rule by October 27, 2025.”
On November 4, 2025, the trial court advised the parties of its preliminary ruling granting
Appellees’ motions for summary judgment and denying the City’s motion and asked them to
provide an order agreed as to form by November 10.
On November 10, 2025, Los Indios filed a petition in intervention, asserting that it
had recently learned of the claim added by Appellees’ amended petition—that the Restrictive
Covenant was void as a result of being contract zoning or an unlawful delegation of authority—
and acknowledging that all of the claims impact its rights as the Property owner. See Tex. R.
Civ. P. 60 (“Intervenor’s Pleadings”). On November 14, Appellees filed a motion to strike the
petition in intervention as untimely because it was not filed “until after the parties fully briefed
cross-motions for summary judgment, after the hearing, and after the Court indicated her
intended ruling.” Los Indios sent a letter to the trial court on November 21 urging the court not
to rule on the summary-judgment motions and explaining that it was seeking to “protect its rights
that were only recently put at issue” and to alert the court that Appellees lack standing. On
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November 25, 2025, the trial court signed an order granting Appellees’ motion for summary
judgment and denying the City’s. The order stated that it “finally disposes of all parties and all
claims and is appealable.”
A few weeks later, Los Indios and the City moved to modify the trial court’s
judgment, arguing that the court did not state the relief it was granting to Appellees. See In re
Guardianship of Jones, 629 S.W.3d 921, 925–26 (Tex. 2021) (per curiam) (recognizing that
order lacking decretal language adjudicates nothing and is not final unless it clarifies through
other language that it disposes of all parties and issues and is intended to be final). Los Indios
argued that the judgment lacked decretal language, that Appellees’ motion for summary
judgment should be denied, and that Los Indios should have been joined as an indispensable
party. Appellees agreed with the City and Los Indios that the judgment lacked decretal language
and asked that the trial court grant the motion to modify “only to the limited extent necessary to
provide decretal language” for the sake of clarifying “that Plaintiffs are entitled to their requested
declaratory and injunctive relief.” Appellees attached a proposed order adding the following
language to the summary-judgment order:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
Restrictive Covenant, adopted in conjunction with zoning case C14-85-288.116,
as amended multiple times, including most recently by Defendants’ approval of
Case No. C14-85-288.166 (RCA2) on May 2, 2024 (recorded as Instrument
No. 2024059849 in the Real Property Records of Travis County, Texas) is void ab
initio, as the result of ultra vires actions, and the Defendants are enjoined from
implementing any actions or approvals that have resulted therefrom.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the approval
of Case No. C14-85-288.166 (RCA2) is void, as a violation of the Texas Open
Meetings Act. The Defendants are enjoined from its implementation, all actions
that have resulted therefrom are void, and Defendants are enjoined from
implementing any approvals that resulted from the action.
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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that nothing in this
Order shall prohibit Defendants from approving a site plan or other approval that
does not rely upon the Restrictive Covenant or its amendments.3
On February 3, the trial court held a hearing on the motion to modify. The City, Los Indios, and
Appellees participated in that hearing. Los Indios argued that it had no notice of the suit, that its
intervention less than two months after the amended petition was filed was not untimely, and that
Appellees chose not to name Los Indios as a defendant despite Appellees’ undisputed awareness
that Los Indios owned the Property. Los Indios therefore asked the trial court to withdraw its
summary-judgment ruling and allow the parties to re-brief the summary judgments to include
Los Indios and to allow it an opportunity to respond. Appellees argued that the scope of the
hearing was limited to the motion to modify and pointed to Manifold’s participation in the
proceedings as evidence of Los Indios’s awareness of the suit. Appellees also asserted that Los
Indios, as an intervenor, had to “take the case as-is” and could defend its rights on appeal.
The trial court signed the modified order on the following day. Los Indios and the
City filed notices of appeal.
DISCUSSION
The City asserts in five issues that the trial court erred in granting summary
judgment in favor of Appellees. In its first two issues, the City argues that Appellees’ challenges
to the Restrictive Covenant and its Amendments implicate Chapter 245 of the Local Government
Code. See Harper Park Two, LP v. City of Austin, 359 S.W.3d 247, 250–51 (Tex. App.—Austin
2011, no pet.) (explaining the framework for Chapter 245). In its remaining issues, the City
3 According to the City, the project has been “derailed” by the trial court’s ruling, but the City maintains that “because the issues in the lawsuit impact the Property’s development rights, the case is not moot regardless of what happens with the affordable housing project.”
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argues that it did not delegate legislative authority, it did not violate the TOMA, and that
Appellees did not properly raise the validity of the 1987 Restrictive Covenant in their motion for
summary judgment. In addition to joining the City’s issues, Los Indios argues that Appellees’
failure to join Los Indios “deprived the court of authority to proceed and enter the summary
judgment order for Appellees”; that the “trial court erred by granting a summary judgment on
grounds that were not presented and relief that was not requested as to the 1987 Restrictive
Covenant and 2010 Amendment”; and that the trial court erred by ruling that the Restrictive
Covenant and its Amendments are void ab initio.
We first address Appellees’ failure to join Los Indios. “We review a trial court’s
rulings on issues concerning joinder of parties for an abuse of discretion.” Crawford v. XTO
Energy, Inc., 509 S.W.3d 906, 910–11 (Tex. 2017). “A trial court abuses its discretion if it acts
in an arbitrary or unreasonable manner without reference to any guiding rules or principles.”
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). “Texas Rule of Civil Procedure
39 provides the framework for determining when joinder of a party is mandatory.” Crawford,
509 S.W.3d at 911. Rule 39 provides:
(a) Persons to be Joined if Feasible. A person who is subject to service of
process shall be joined as a party in the action if
(1) in his absence complete relief cannot be accorded among those already
parties, or
(2) he claims an interest relating to the subject of the action and is so
situated that the disposition of the action in his absence may
(i) as a practical matter impair or impede his ability to protect that
interest or
(ii) leave any of the persons already parties subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
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obligations by reason of his claimed interest. If he has not been so
joined, the court shall order that he be made a party. . . .
Tex. R. Civ. P. 39(a). The supreme court has indicated that, despite Rule 39(a)’s language that
certain persons “shall be joined,” “there is no arbitrary standard or precise formula for
determining whether a particular person falls within its provisions.” Cooper v. Texas Gulf
Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974). Each case under Rule 39 turns on an application
of the Rule to its facts. See Pampell v. Pampell, 554 S.W.2d 20, 21 (Tex. App.—Austin 1977,
no writ) (“As there is no litmus paper test for determining whether or not a party is
indispensable, the facts in each case should determine whether or not an indispensable party has
not been joined as plaintiff or defendant in a suit. This determination should be made in
conformity with” Rule 39).
Appellees sought declaratory and injunctive relief. Specifically, they sought—
and received in the amended final judgment—declarations that the Restrictive Covenant for
Los Indios’s Property was void ab initio and that the City’s notice of the meeting at which the
2024 Amendment was adopted violated TOMA. See Tex. Civ. Prac. & Rem. Code § 37.006(a)
(“When declaratory relief is sought, all persons who have or claim any interest that would be
affected by the declaration must be made parties. A declaration does not prejudice the rights of a
person not a party to the proceeding.”); Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex.
2004) (declaratory judgment was “purely advisory” as to owners from sections of property not
before the court, resulting in risk of inconsistent judgments for party that did not seek to join all
homeowners in suit); see also In re Kappmeyer, 668 S.W.3d 651, 655 (Tex. 2023) (orig.
proceeding) (“When a party seeks to compel joinder of persons as parties to a proceeding,
including a declaratory-judgment action, Texas Rule of Civil Procedure 39 governs.”); Twin
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Creeks Golf Grp. v. Sunset Ridge Owners Ass’n, 537 S.W.3d 535, 547 (Tex. App.—Austin 2017,
no pet.). The trial court also declared that “Defendants” were correspondingly “enjoined from
implementing any actions or approvals” resulting from the void Restrictive Covenant. See In re
Texas Educ. Agency, 442 S.W.3d 753, 755 (Tex. App.—Austin 2014, orig. proceeding) (noting
that petition seeking injunctive relief should name as party defendants all those against whom
injunction must run and whose interests will be injuriously affected in order to make it effective).
It is undisputed, and evident from the pleadings, that the City and Appellees were
at all relevant times aware that Los Indios owns the Property and that Los Indios’s property
rights were at issue in the suit. In addition to undisputedly having an interest in the suit, the
record shows that Los Indios claimed an interest in the suit by intervening. See EIS Dev. II, LLC
v. Buena Vista Area Ass’n, 715 S.W.3d 689, 702–03 (Tex. 2025) (distinguishing between
“having” an interest and “claiming” one for purposes of joinder); Crawford, 509 S.W.3d at 913
(Tex. 2017) (“Rule 39 does not require joinder of persons who potentially could claim an interest
in the subject of the action; it requires joinder, in certain circumstances, of persons who actually
claim such an interest.”). Appellees generally assert that Los Indios was aware of the
proceedings, implying that Los Indios could have intervened sooner, and they conclude that,
“[t]o the extent Los Indios was a required party, the Rule 39 remedy was joinder,” which
occurred when Los Indios intervened. But the record contains no evidence that Los Indios was
aware of the proceedings prior to intervening in the suit, and, as Appellees themselves explained
in their motion to strike the petition for intervention in the trial court, Los Indios’s petition in
intervention was filed after the City and Appellees had fully briefed and argued their motions for
summary judgment and the trial court had indicated its ruling. Los Indios states that the City and
Appellees reached a Rule 11 agreement that they would not conduct discovery and “also agreed
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to a compressed briefing and hearing schedule for their motions for summary judgment.” The
result of that agreement, which was reached the same day that Appellees amended their petition
to challenge the 1987 Restrictive Covenant as void ab initio, and the timing of Los Indios’s
intervention was that Los Indios was not able to protect its property interest.
Los Indios states that “Appellees’ failure to join Los Indios resulted in Los Indios
being prevented from conducting discovery, participating in the summary judgment briefing,
attending the summary judgment hearing, and presenting support for any proposed order.” Los
Indios clarified at oral argument that had it been able to conduct discovery, it could have shown
that “the homeowner’s association” had previously agreed to the Restrictive Covenant and the
2010 Amendment, that there was no issue with respect to some of the alleged objections to the
proposed Multifamily development, that waiver and collateral estoppel should have prevented
the trial court’s ruling, and that the Save Our Springs Alliance lacked standing.
We are mindful that “today’s concern is less that of the jurisdiction of a court to
proceed and is more a question of whether the court ought to proceed with those who are
present.” Cooper, 513 S.W.2d at 204. Here, although Los Indios ultimately intervened, it was
not present until after the final hearing on the merits and after the trial court had indicated its
ruling. Consequently, the trial court issued a ruling that necessarily impacted Los Indios’s rights
as the owner of the Property without Los Indios having had an opportunity to participate in a
hearing on the merits. On this record, we conclude that Los Indios was a party needed for just
adjudication. See Kodiak Res., Inc. v. Smith, 361 S.W.3d 246, 251–52 (Tex. App.—Beaumont
2012, no pet.) (holding that all lessors under single mineral lease were necessary parties to a suit
filed by some of lessors against operator lessees for declaratory judgment that lease had
terminated); In re Estate of Bean, 120 S.W.3d 914, 921 (Tex. App.—Texarkana 2003, no pet.)
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(all beneficiaries under will with interest in estate such that their interest in estate property
will be affected by construction are persons needed for just adjudication); Page Airways, Inc.
v. Associated Radio Serv. Co., 545 S.W.2d 184, 190 (Tex. App.—San Antonio 1976, writ ref’d
n.r.e.) (holding trial court erred in striking Page’s intervention in suit by API against Radio on
note because Page was party needed for just adjudication because any judgment rendered would
necessarily involve construction and interpretation of note and joint Loan Agreement and would
affect Page’s legal and equitable rights.). Accordingly, we sustain Los Indios’s joinder issue and
need not address the appellants’ remaining issues. See Tex. R. App. P. 47.1.
CONCLUSION
Having determined that Los Indios was a party needed for just adjudication of the
claims in the underlying suit, we reverse the trial court’s judgment and remand this case to the
trial court for further proceedings.
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Reversed and Remanded
Filed: October 23, 2026
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