By Gaige Davila
The Texas Supreme Court will now decide the fate of South Padre Island’s food truck ordinance and whether more food trucks can operate there.
On May 17, the City of South Padre Island responded to a Texas Supreme Court petition filed by SurfVive (a South Padre Island-based nonprofit operating a food truck) and brothers Anubis and Adonai Avalos (owners of the since-closed Brownsville food truck Chile De Arbol).
The food truck owners petitioned the state’s highest court to enforce a ruling by Cameron County District Court Judge Arturo Nelson this past December. Nelson ruled that South Padre Island’s food truck ordinance, which required food trucks to receive a “sign off” from a brick-and-mortar restaurant owner before operating and capped the amount of operating permits issued to food trucks, violated the Texas Constitution.
South Padre Island continued enforcing its food truck ordinance, claiming the district court did not give them explicit direction to stop doing so.
South Padre Island Mayor Patrick McNulty, in a statement issued after the January district court ruling, said the court did not give the city “written findings, conclusions or reasoning,” regarding the ruling, and that “no judgement or order of any kind” was given for the city to grant relief or damages. In the statement, McNulty said that the city had not violated any court orders.
In their response to the Texas Supreme Court petition, the city held its ground, saying the order “does not expressly grant any injunctive or declaratory relief.”
The city also says that since the Avalos brothers closed the Chile de Arbol food truck, pursuing the lawsuit was not necessary. The city then said if Chile de Arbol operated from a commissary kitchen, or a central location to prepare food to be sold in a food truck, they would not need a sign-off from a local restaurateur to operate. Lastly, the city said they did not deny Chile de Arbol’s operating permit based on their permit cap. The city said Chile de Arbol did not apply for a permit.
The legal counsel for the Avalos brothers and SurfVive, headed by Institute for Justice Managing Attorney Arif Panju, say the city’s response ignores their central argument: that the district court’s ordering South Padre Island’s food truck as unconstitutional voids their ability to enforce it.
“Once Judge Nelson in Cameron County ruled that the city’s food-truck permit cap and restaurant-permission eligibility scheme were both unconstitutional, there is a constitutional injunction that triggered under Article I, Section 29 of the Texas Constitution,” Panju told the PRESS. “It is self-executing, occurs automatically, and guarantees that the government cannot keep enforcing laws that are unconstitutional.”
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