AFFIRMED IN PART and REVERSED IN PART and Opinion Filed July 18, 2025

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01309-CV

CITY OF DALLAS, Appellant

V.
DALLAS SHORT-TERM RENTAL ALLIANCE, SAMMY AFLALO, VERA
ELKINS, DANIELLE LINDSEY, AND DENISE LOWRY, Appellees

On Appeal from the 95th District Court

Dallas County, Texas
Trial Court Cause No. DC-23-16845

MEMORANDUM OPINION ON REHEARING

Before Justices Smith, Garcia and Rodriguez1
Opinion by Senior Justice Rodriguez
On February 7, 2025, this Court issued its memorandum opinion affirming the

trial court’s order granting appellees’ application for a temporary injunction and

enjoining the City of Dallas from enforcing two ordinances concerning short-term

rentals within the city limits. On February 24, 2025, the City filed a motion for en

banc reconsideration. On the Court’s own motion, we withdraw our February 7

memorandum opinion and vacate our judgment issued the same day. This is now the

1
The Hon. Yvonne T. Rodriguez, Senior Justice, Assigned.
opinion of the Court. We affirm the trial court’s order in part and reverse in part in

this memorandum opinion. See TEX. R. APP. P. 47.4.

Background

The City enacted ordinance numbers 32482 and 32473 in 2023 after studying

the proliferation of short-term housing rentals in the Dallas market. Ordinance 32482

banned short-term rentals in areas zoned for “single-family residential” use while

ordinance 32473 regulated the remaining short-term rentals and provided the process

through which owners could acquire the necessary permits to operate a short-term

rental in Dallas. The Dallas Short-Term Rental Alliance—joined by Sammy Aflalo,

Vera Elkins, Danielle Lindsey, and Denise Lowry—challenged the constitutionality

of these two ordinances and requested injunctive and declaratory relief. After an

evidentiary hearing, the trial court granted appellees’ application for a temporary

injunction and found (1) appellees met their burden to establish they have a probable

right of recovery on their cause of action against the City of Dallas and (2) without

injunctive relief, appellees faced a substantial risk of probable, imminent, and

irreparable injuries.

Issues on Appeal

In four issues on appeal, the City contends the trial court abused its discretion

when it (1) granted appellees’ application, (2) concluded appellees satisfied their

extraordinary burden to prove their probable right to relief, (3) concluded appellees

satisfied their extraordinary burden to prove a probable, imminent, and irreparable

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injury, and (4) granted equitable relief despite the Alliance’s allegedly unclean

hands. More specifically, the City argues the ordinances are not preempted by House

Bill 2127 (which it argues is unconstitutional), the trial court erred when it granted

equitable relief to the Alliance’s members despite it being “likely (if not certain) that

some portion of [its] members have not registered or paid [hotel occupancy tax] on

their [short-term rental] properties,” and the trial court erred when it found appellees

are likely to prevail on their arguments concerning due course of law, equal

protection, regulatory takings, retroactivity, and the Zoning Enabling Act.

Temporary Injunctions and the Standard of Review

The purpose of a temporary injunction is to preserve the status quo of the

subject matter of the litigation pending a trial on the merits. Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 204 (Tex. 2002). We examine each aspect of the trial court’s

injunction for an abuse of discretion. Tex. Educ. Agency v. Hous. Indep. Sch. Dist.,

660 S.W.3d 108, 116 (Tex. 2023). A trial court abuses its discretion when it

misapplies the law to established facts or when the evidence does not reasonably

support the trial court’s determination of probable injury or probable right of

recovery. City of Dallas v. Brown, 373 S.W.3d 204, 208 (Tex. App.—Dallas 2012,

pet. denied). Under this standard, we defer to the trial court’s factual findings if the

evidence supports them, but we review legal determinations de novo. State v. Loe,

692 S.W.3d 215, 226 (Tex. 2024). We view the evidence in the light most favorable

to the trial court’s order, indulging every reasonable inference in its favor, and defer

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to the trial court’s resolution of conflicting evidence. 31 Holdings I, LLC v. Argonaut

Ins. Co., 640 S.W.3d 915, 922 (Tex. App.—Dallas 2022, no pet.).

To obtain a temporary injunction, an applicant must plead and prove three

specific elements: (1) a cause of action against the defendant; (2) a probable right to

the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.

Butnaru, 84 S.W.3d at 204. The applicant has the burden of production to offer some

evidence on each of these elements. See In re Tex. Nat. Res. Conservation Comm’n,

85 S.W.3d 201, 204 (Tex. 2002) (orig. proceeding). At the hearing for a temporary

writ of injunction, the trial court is not determining the ultimate rights of the parties;

instead, the only question before the trial court is whether applicants demonstrated

their entitlement to preservation of the status quo pending trial on the merits. Walling

v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (citing Iranian Muslim Org. v. City of

San Antonio, 615 S.W.2d 202, 208 (Tex. 1981)); Keystone Life Ins. Co. v. Mktg.

Mgmt., Inc., 687 S.W.2d 89, 93 (Tex. App.—Dallas 1985, no pet.) (“[T]he only

question before the trial court was whether to maintain the status quo—not to

determine the ultimate rights of the parties.”).

The City’s brief does not attack appellees’ pleading or proof of a cause of

action against it under the Declaratory Judgment Act. Thus, we focus our analysis

on appellees’ proof of a probable right to the relief sought and a probable, imminent,

and irreparable injury in the interim. See TEX. R. APP. P. 47.4 (“If the issues are

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settled, the court should write a brief memorandum opinion no longer than necessary

to advise the parties of the court’s decision and the basic reasons for it.”).

Findings

In its order granting injunctive relief against the ordinances, the trial court

found (1) appellees introduced evidence the individual appellees had invested

hundreds of thousands of dollars, excluding mortgages which exceed millions of

dollars, into the short-term rental industry in Dallas, (2) the City intended to enforce

the zoning ordinance as soon as December 13, 2023, (3) appellees presented

evidence that the City relied on a June 2023 study when it enacted the ordinances at

issue, (4) appellees presented evidence that said study “is not conclusive” and

“overestimates the associated concerns with [short-term rentals] that the City claims

are the basis for its governmental interests,” (5) appellees presented evidence that

the ordinances “do not rationally relate to the claimed governmental interests based

on any available data,” and (6) appellees established that the registration ordinance

“imposes several oppressive regulations on those few remaining [short-term

rentals]” after the effects of the zoning ordinance are realized. The City does not

challenge any of these findings on appeal. Cf. Badger Tavern LP v. City of Dallas,

No. 05-23-00496-CV, 2024 WL 1340397, at *3 (Tex. App.—Dallas Mar. 29, 2024,

no pet.) (mem. op.) (“Findings of fact and conclusions of law embedded in a trial

court’s temporary injunction order may be helpful, but are not binding, in reviewing

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the court’s exercise of its discretion.”) (citing Tom James of Dallas, Inc. v. Cobb,

109 S.W.3d 877, 884 (Tex. App.—Dallas 2003, no pet.)).

Analysis

A. Probable right to relief

In its second issue, the City argues the trial court erred when it concluded

appellees “satisfied their extraordinary burden to prove a probable right to relief

sufficient to enjoin enforcement of the [o]rdinances.” In support of this contention,

the City cites Thompson v. City of Palestine, 510 S.W.2d 579 (Tex. 1974), for the

proposition that, “When the requested injunction would prevent enforcement of a

municipal ordinance, the burden of proof is ‘extraordinary.’” The City is mistaken;

Thompson did not involve a temporary injunction and the supreme court did not

require applicants for temporary injunctions against municipal ordinances to meet

an “extraordinary” burden of proof. See id. at 581.2

Similarly, the City cites Mayhew v. Town of Sunnyvale for the proposition

that, “To overcome this presumption [of an ordinance’s validity], plaintiffs have the

burden to prove that a challenged ordinance ‘has no foundation in reason and is a

2
Instead, Thompson says:
We have also held that an ‘extraordinary burden’ rests on the party attacking the
ordinance to show that no conclusive or even controversial issuable facts or conditions
exist which would authorize the City Council to exercise the discretion confided to it,
and that if reasonable minds may differ as to whether or not a particular zoning
ordinance has a substantial relationship to the public health, safety, morals or general
welfare, no clear abuse of discretion is shown and the ordinance must stand as a valid
exercise of the city's police power.
510 S.W.2d at 581.
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mere arbitrary or irrational exercise of power.’” See 964 S.W.2d 922, 938 (Tex.

1998). Again, the City is mistaken. Instead, Mayhew (which does not contain the

words “enjoin” or “injunction”) says,

A court should not set aside a zoning determination for a substantive

due process violation unless the action 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.

Id. (cleaned up and emphasis added). Thus, both Thompson and Mayhew are

inapposite.

Properly construed, the probable right to relief element requires an applicant

to present some evidence supporting every element of at least one valid legal theory

that raises a bona fide issue as to their right to ultimate relief. See Young Gi Kim v.

Ick Soo Oh, No. 05-19-00947-CV, 2020 WL 2315854, at *2 (Tex. App.—Dallas

May 11, 2020, no pet.) (mem. op.). A party can prove their probable right of recovery

by alleging the existence of a right and presenting evidence tending to show that the

right is being denied. Bureaucracy Online, Inc. v. Schiller, 145 S.W.3d 826, 829

(Tex. App.—Dallas 2004, no pet.). State law creates and defines property rights. Bd.

of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

1. The zoning ordinance

Appellees’ pleading alleges they enjoy the right to lease their properties under

Texas law. See Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S.W. 453, 454 (1890)

(“The ownership of land, when the estate is a fee, carries with it the right to use the

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land in any manner not hurtful to others; and the right to lease it to others, and

therefore derive profit, is an incident of such ownership.”); Severance v. Patterson,

370 S.W.3d 705, 709 (Tex. 2012) (op. on reh’g) (“Private property rights have been

described ‘as fundamental, natural, inherent, inalienable, not derived from the

legislature[,] and as pre-existing even constitutions.’”); see also City of Grapevine

v. Muns, 651 S.W.3d 317, 346–47 (Tex. App.—Fort Worth 2021, pet. denied) (“The

right to lease is a stick within a property owner’s metaphorical bundle of rights.”)

(citing Emily M. Speier, Comment, Embracing Airbnb: How Cities Can Champion

Private Property Rights Without Compromising the Health and Welfare of the

Community, 44 Pepp. L. Rev. 387, 395–97 (2017)). The Texas Constitution

provides: “No citizen of this State shall be deprived of life, liberty, property,

privileges or immunities, or in any manner disfranchised, except by the due course

of law of the land.” TEX. CONST. art. I, § 19. Appellees have “a vested right to lease

their properties and this right is sufficient to support a viable due-course-of law

claim.” City of Grapevine, 651 S.W.3d at 347.

Under the circumstances, we conclude appellees Dallas Short Term-Rental

Alliance, Sammy Aflalo, Vera Elkins, and Denise Lowry proved their probable right

to relief against the City’s zoning ordinance under their due-course-of-law argument

because they alleged they possessed well-established rights to lease their property

and presented evidence tending to show that the City would deny them those rights

by enforcing the zoning ordinance at issue. See Bureaucracy Online, Inc., 145

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S.W.3d at 829; see also Young Gi Kim, 2020 WL 2315854, at *2 (requiring “some

evidence supporting every element of at least one valid legal theory” to demonstrate

a probable right to recovery). Thus, the trial court did not abuse its discretion when

it concluded these appellees met their burden to establish that they have a probable

right of recovery on a cause of action concerning the zoning ordinance against the

City of Dallas. See Grapevine, 651 S.W.3d at 346; see also TEX. R. APP. P. 47.4; cf.

Brown, 373 S.W.3d at 208 (a trial court abuses its discretion if the evidence does not

reasonably support the trial court’s determination of probable injury or probable

right of recovery). Thus, we overrule the City’s second issue concerning the zoning

ordinance with respect to the Dallas Short Term-Rental Alliance, Sammy Aflalo,

Vera Elkins, and Denise Lowry.

2. The registration ordinance

The City contends “the Registration Ordinance itself includes no provision

indicating that it incorporates, depends on, or is subordinate to the Zoning

Ordinance.” We disagree. Instead, the registration ordinance refers to the City’s

efforts concerning the zoning ordinance at least nine times. See Arredondo v. City of

Dallas, 79 S.W.3d 657, 660 n.5 (Tex. App.—Dallas 2002, pet. denied) (examining

recitals in a city resolution); accord Draper v. City of Arlington, 629 S.W.3d 777,

792 (Tex. App.—Fort Worth 2021, pet. denied) (examining recitals in a city

ordinance); Elizabeth Benavides Elite Aviation, Inc. v. City of Laredo, No. 04-19-

00717-CV, 2020 WL 2044678, at *3 (Tex. App.—San Antonio Apr. 29, 2020, no

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pet.) (mem. op.) (same); cf. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22

S.W.3d 831, 837 (Tex. 2000) (examining recitals in an ordinance passed by a school

board).

The standard of review for as-applied substantive due course challenges to

economic regulation enactments analyzes whether an enactment’s effect as a whole

is so unreasonably burdensome that it becomes oppressive in relation to the

underlying governmental interest. See Patel v. Tex. Dep’t of Licensing & Regul., 469

S.W.3d 69, 87 (Tex. 2015). Appellees argue the burdens imposed by the City’s

registration ordinance include (1) excessive fees, (2) limits on maximum occupancy,

(3) day limit, (4) parking restrictions, (5) density restrictions, and (6) the homestead

exemption. Here, our analysis focuses on the maximum occupancy limitation. See

Young Gi Kim, 2020 WL 2315854, at *2 (applicants for injunctive relief must

produce some evidence supporting every element of at least one valid legal theory);

see also TEX. R. APP. P. 47.1.

In support of its argument that the registration ordinance’s restriction on

maximum occupancy in short-term rentals is constitutional, the City relies upon (1)

appellees’ response to an interrogatory, (2) an appendix to recommendations from

the Dallas Task Force, and (3) the testimony of Andrea Gilles, the City’s Interim

Director of the Planning and Urban Design Department at the time of the hearing on

appellees’ application for a temporary injunction. The City first argues the response

and appendix constitute a concession that the City has a legitimate governmental

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interest in enforcing a limit of three people to a bedroom in short-term rentals.

Neither document, however, supports the City’s position; the former shows the Task

Force discussed limits on occupancy and that it previously agreed to maximum

occupancy levels while the latter includes Task Force recommendations. Neither the

interrogatory response nor the appendix constitutes an admission concerning the

government’s interests that we can attribute to any specific appellee—much less all

of them—and neither shows appellees’ specific positions on any relevant issue.

Further, the City’s citations to Ms. Gilles’s testimony do not address the three people

per bedroom limitation. See TEX. R. APP. P. 38.1(i).

Thus, we conclude the trial court did not abuse its discretion when it

concluded appellees have demonstrated a probable right to relief with respect to the

registration ordinance because the City has failed to both (1) attack the trial court’s

findings and (2) point us to evidence showing its legitimate governmental interests

associated with restricting maximum occupancy in short-term rentals. Therefore, we

cannot conclude the trial court abused its discretion when it concluded appellees are

likely to prevail on their request for declaratory relief because the registration

ordinance is likely unconstitutionally oppressive in light of the alleged but presently

unsupported governmental interest in limiting the maximum occupancy of short-

term rentals. See Patel, 469 S.W.3d at 87; Tex. Educ. Agency, 660 S.W.3d at 116;

cf. Walling, 863 S.W.2d at 58 (“[T]he only question before the trial court is whether

the applicant is entitled to preservation of the status quo pending trial on the

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merits.”). We overrule the City’s second issue concerning the registration ordinance

with respect to the Dallas Short Term-Rental Alliance, Sammy Aflalo, Vera Elkins,

and Denise Lowry.

3. Danielle Lindsey

Appellee Danielle Lindsey, is differently situated because—according to

appellees’ petition—she “runs a business that provides cleaning, maintenance, and

other such support services to rental properties.” We assume without deciding this

constitutes an occupational property interest. See Tex. Dep't of State Health Servs. v.

Crown Distrib. LLC, 647 S.W.3d 648, 655 (Tex. 2022) (citing Tex. S. Univ. v.

Villarreal, 620 S.W.3d 899, 908 (Tex. 2021)). To be constitutionally protected, a

property interest must be “vested.” Id. (citing Honors Acad., Inc. v. Tex. Educ.

Agency, 555 S.W.3d 54, 61 (Tex. 2018)). Interests are not vested when they are

predicated upon the anticipated continuance of an existing law and subordinate to

the Legislature’s right to change the law and abolish the interest. Id. Appellees have

not briefed whether the Legislature—or the Dallas City Council—has the right to

change the law or abolish Lindsey’s interest. See TEX. R. APP. P. 38.1(i). Therefore,

we reverse the trial court’s judgment with respect to appellee Danielle Lindsey

because she has failed to show a probable right to relief concerning either ordinance.

B. Irreparable injury

While the City’s brief purports to assign error concerning the trial court’s

findings that enforcement of the ordinances exposed appellees to irreparable injury,

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its arguments are restricted to (1) “A regulatory-taking claim necessarily implies that

the purported harm is readily compensable with money damages,” and (2)

“injunctive relief is inappropriate if a plaintiff has stated a viable regulatory takings

claim.” The City cites no authority in support of the former and quotes Patel v. City

of Everman in support of the latter. See 179 S.W.3d 1, 13 (Tex. App.—Tyler 2004,

pet. denied) (“[Where] a party seeks monetary damages, he seeks a legal remedy,

not an equitable one.”).

Appellees did not make a regulatory-taking claim and their petition does not

seek monetary damages. Instead, appellees sought injunctive and declaratory relief

based on the alleged unconstitutionality of the City’s ordinances. See Wilburn v.

Dacus, No. 05-16-00522-CV, 2017 WL 2464679, at *2 (Tex. App.—Dallas June 7,

2017, pet. denied) (mem. op.) (“It is an appellant’s burden to discuss his or her

assertions of error, and appellate courts have no duty—or even the right—to perform

an independent review of the record and the applicable law to determine whether

there was error. . . . ‘We will not do the job of the advocate.’”) (quoting Happy

Harbor Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.—Houston

[1st Dist.] 1995, no writ)). We recognize the City extensively briefed the viability of

appellees’ regulatory-taking claim, that appellees alleged the zoning ordinance is a

taking, and that the City apparently perceived appellees’ allegation to constitute a

regulatory-taking claim. We disagree; instead of requesting monetary relief,

appellees’ allegation supported their argument for injunctive relief.

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 Additionally, the record contains both ordinances, both of which state they

“take effect immediately from and after [their] passage and publication in

accordance with the provisions of the Charter of the City of Dallas with enforcement

action being taken no earlier than six months” from and after passage. This evidence

supports the trial court’s finding that without injunctive relief, appellees—other than

Danielle Lindsey—would suffer probable, imminent, and irreparable injury to their

vested property rights. See City of Grapevine, 651 S.W.3d at 347 (concluding

homeowners had “a vested right to lease their properties and that this right is

sufficient to support a viable due-course-of law claim.”); cf. State v. Morales, 869

S.W.2d 941, 943–44 (Tex. 1994) (to overcome prohibition against civil challenge to

penal statute, litigant must allege that penal statute is unconstitutional and “threatens

irreparable injury to vested property rights”). Finally, the record contains at least

some evidence supporting the trial court’s effectively unchallenged finding that

appellees would suffer irreparable injury without injunctive relief. Thus, we overrule

the City’s third issue.

C. Irrelevance of House Bill 2127

In its first issue, the City argues the trial court abused its discretion when it

granted appellees’ request for injunctive relief. Here, the City does not address

whether appellees pled or proved a cause of action against the defendant, a probable

right to the relief sought, or a probable, imminent, or irreparable injury in the interim.

See Butnaru, 84 S.W.3d at 204. Instead, the City argues that its ordinances are not

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pre-empted by House Bill 2127 (which it argues is unconstitutional). The City also

expressly argues that “to determine whether the trial court abused its discretion in

granting the [temporary injunction application], it is necessary to address the merits

of [appellees’] statutory pre-emption claim.”

Assuming arguendo that House Bill 2127 does not preempt the City’s

ordinances, the constitutionality thereof is irrelevant to our review of the trial court’s

order for an abuse of discretion concerning appellees’ due-course-of-law point. See

TEX. R. APP. P. 47.1. Thus, we overrule the City’s first issue on appeal.

D. Hotel occupancy taxes

In its fourth issue, the City argues the trial court erred when it enjoined the

City from enforcing the two ordinances at issue because (1) at least 40% of existing

short-term rental properties in Dallas have not registered or paid their hotel

occupancy taxes, (2) it is more likely than not that some portion of the Alliance’s

members have not registered or paid their hotel occupancy taxes, and (3) the Alliance

therefore sought equitable relief with unclean hands. However, the City cites no

cases—and we have found none—in which the payment or nonpayment of hotel

occupancy taxes by short-term rental owners prevents the granting of a temporary

injunction where an applicant has proven a cause of action against the defendant, a

probable right to the relief sought, and a probable, imminent, and irreparable injury

in the interim. See Butnaru, 84 S.W.3d at 204. Further, the City has failed to show

that the Alliance has a duty to pay such taxes or enforce the payment of such taxes

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amongst its members. Finally, while there is evidence that appellee Elkins was not

current on her hotel occupancy tax payments at one time, there is also evidence she

has paid it “faithfully since learning of her obligation to do so”; there is no other

evidence in the record regarding non-payment of the hotel occupancy tax by any

other appellee. We therefore conclude the City has not shown the trial court abused

its discretion and overrule the City’s fourth issue.

Conclusion

The only question before the trial court was whether appellees demonstrated

their entitlement to preservation of the status quo pending trial on the merits. See

Walling, 863 S.W.2d at 58. We conclude appellees—other than Danielle Lindsey—

pled and proved a cause of action against the City, a probable right to the relief

sought, and a probable, imminent, and irreparable injury in the interim. See Butnaru,

84 S.W.3d at 204. We therefore reverse the trial court’s order with respect to

Danielle Lindsey, overrule the City’s four issues on appeal with respect to the Dallas

Short-Term Rental Alliance, Sammy Aflalo, Vera Elkins, and Denise Lowry, and

affirm the trial court’s order.

/Yvonne T. Rodriguez/
YVONNE T. RODRIGUEZ
JUSTICE

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CITY OF DALLAS, Appellant On Appeal from the 95th District

Court, Dallas County, Texas
No. 05-23-01309-CV V. Trial Court Cause No. DC-23-16845.
Opinion delivered by Justice
DALLAS SHORT-TERM RENTAL Rodriguez. Justices Smith and Garcia
ALLIANCE, SAMMY AFLALO, participating.
VERA ELKINS, DANIELLE
LINDSEY, AND DENISE LOWRY,
Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED IN PART and REVERSED IN PART.

We REVERSE the portion of the trial court’s December 6, 2023 temporary

injunction concerning Danielle Lindsey.

We AFFIRM the trial court’s December 6, 2023 temporary injunction in all

other respects.

It is ORDERED that appellees DALLAS SHORT-TERM RENTAL

ALLIANCE, SAMMY AFLALO, VERA ELKINS, AND DENISE LOWRY
recover their costs of this appeal from appellant CITY OF DALLAS and that
DANIELLE LINDSEY bear the costs of her own appeal.

Judgment entered this 18th day of July 2025.

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