El Paso County - 346th District Court Filed 4/24/2019 3:53 PM

Norma Favela Barceleau

District Clerk
El Paso County
2019DCV1509

THE STATE OF TEXAS, ex rel. §

EL PASO COUNTY ATTORNEY §
JO ANNE BERNAL, §
§
Plaintiff, §
§ No._____________________
v. §
§
DOGFISH, ALSO KNOWN AS FISH BAR, §
AND THE REAL PROPERTY KNOWN AS §
200 ANTHONY ST., EL PASO, TEXAS §
79901 (IN REM), VICTOR JAVIER SUBIA, §
RACHEL CATHERINE O’DELL, AND §
TIMOTHY PAUL BURNS, INDIVIDUAL §
BUSINESS OWNERS, KASSANDRA §
NICOLE PROSPER, MANAGER, RAUL §
CRUZ CASTANEDA, MANAGER AND §
THE CLEAN GROUP, L.P., PROPERTY §
OWNER, §
§
Defendants. §

PLAINTIFF’S ORIGINAL PETITION FOR ABATEMENT OF A COMMON NUISANCE,

AND APPLICATION FOR TEMPORARY RESTRAINING ORDER,
TEMPORARY INJUNCTION, AND A PERMANENT INJUNCTION,
AND REQUEST FOR INITIAL DISCLOSURE

El Paso County Attorney Jo Anne Bernal brings this suit on behalf of the State of Texas, to

enjoin and abate a common nuisance, and files this Original Petition For Abatement of a Common

Nuisance, and Application for Temporary Restraining Order, Temporary Injunction, and

Permanent Injunction, and Request for Initial Disclosure against the named Defendants,

including an in rem defendant, pursuant to the Texas Civil Practices and Remedies Code (CPRC)

and the Texas Alcoholic Beverage Code (TABC). Defendants maintain and/or assist in

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maintaining a common nuisance at a bar known as “Dogfish” (A.K.A. “Fish Bar”) located at 200

ANTHONY ST., EL PASO, TEXAS 79901.

I.
PARTIES

1. Plaintiff, the State of Texas (hereinafter, “the State”), appears and is represented by and

through the El Paso County Attorney Jo Anne Bernal, with her principal office located at 500 E.

San Antonio Ave, Room 503, El Paso, Texas 79901, and is duly authorized under the CPRC to

bring this cause of action to restrain, enjoin and have abated activities declared to be a common

nuisance. The State is not required to verify facts in support of the request and application for

injunctive relief to abate the nuisance activity.1

2. Defendant, “Dogfish” (A.K.A. “Fish Bar”) (hereinafter, “Dogfish”), is a bar licensed by

the Texas Alcoholic Beverage Commission, located at 200 Anthony St., El Paso, TX 79901.

Service of citation may be had upon Dogfish by serving its owners, Victor Javier Subia, Rachel

Catherine O’Dell, and Timothy Burns at 200 Anthony St., El Paso, TX 79901, or wherever they

may be found.

3. Defendant Victor Javier Subia (hereinafter, “Defendant Subia”), is an individual doing

business in El Paso County and maintains and/or assists in maintaining the common nuisances

described herein, as the owner and/or operator of Dogfish. Service of citation may be had upon

Defendant Subia at 14600 Ava Leigh Ave., El Paso, Texas 79938, or wherever he may be found.

4. Defendant Rachel Catherine O’Dell (hereinafter, “Defendant O’Dell”), is an individual

doing business in El Paso County and maintains and/or assists in maintaining the common

nuisances described herein, as the owner and/or operator of Dogfish. Service of citation may be

1
TEX. CIV. PRAC. & REM. CODE § 125.002(a).

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had upon Defendant O’Dell at 14600 Ava Leigh Ave., El Paso, Texas 79938, or wherever she

may be found.

5. Defendant Timothy Paul Burns (hereinafter, “Defendant Burns”), is an individual doing

business in El Paso County and maintains and/or assists in maintaining the common nuisances

described herein, as the owner and/or operator of Dogfish. Service of citation maybe had upon

Defendant Burns at 2920 Rocky Ridge Rd., El Paso, Texas 79904 or wherever he may be found.

6. Defendant Kassandra Nicole Prospero (hereinafter, “Defendant Prospero”), is an

individual doing business in El Paso County and maintains and/or assists in maintaining the

common nuisances described herein, as an operator of Dogfish. Service of citation maybe had

upon Defendant Prospero at 515 Ural Way, El Paso, TX 79907 or wherever she may be found.

7. Defendant Raul Cruz Castaneda (hereinafter, “Defendant Castaneda”), is an individual

doing business in El Paso County and maintains and/or assists in maintaining the common

nuisances described herein, as an operator of Dogfish. Service of citation maybe had upon

Defendant Castaneda at 1741 Dale Douglas, El Paso, TX 79936 or wherever he may be found.

8. Defendant The Real Property Known as 200 Anthony St., El Paso, Texas 79901

(hereinafter, “Property”), located in El Paso County, Texas, is sued in rem under the CPRC §

125.002(b) and TABC § 101.70 and is owned by The Clean Group, L.P. Service of citation may

be had upon the property owner by serving its registered agent, Carlos Fernandez at 908 Cherry

Hill Lane, El Paso, Texas 79912 or wherever he may be found.

9. Defendant The Clean Group, L.P. (hereinafter, “Defendant Clean Group”) is a Limited

Partnership in Texas and the owner of the Real Property Known as 200 Anthony St., El Paso,

Texas 79901, located in El Paso County, Texas. Service of citation may be had upon Defendant

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Clean Group by serving its registered agent Carlos Fernandez at 908 Cherry Hill Lane, El Paso,

Texas 79912 or wherever he may be found.

II.
DISCOVERY AND INITIAL DISCLOSURE

10. The State intends for this case to be governed under Level II Discovery Plan in

accordance with Rule 190.3 of the CPRC. The State affirmatively pleads this case is not

governed by the expedited actions process in CPRC 169 because the relief sought by the State

includes non-monetary injunctive relief.2

11. The State requests that the Defendants disclose the information or material described in

and pursuant to CPRC Rule 194 within fifty days of service of this Petition.

III.
JURISDICTION AND VENUE

A. Chapter 101.70 of the TABC

12. The court has subject matter jurisdiction to hear the Application for Temporary

Restraining Order without hearing because the Defendants are violating, or are about to violate, a

provision of the TABC.3

13. The TABC requires mandatory venue of an action to enjoin and abate a common

nuisance in the county in which the nuisance is alleged to exist.

14. This Court has subject matter and personal jurisdiction over the cause and parties for the

State’s Applications for Temporary and Permanent Injunctions because the business and

property made the basis of this cause of action are common nuisances as maintained.4

2
TEX. R. CIV. P. § 169(c)(1)(b).
3
TEX. ALCO. BEV. CODE § 101.01(a).
4
TEX. ALCO. BEV. CODE § 101.70.

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 B. Chapter 125 of the CPRC

15. Venue is proper in El Paso County, Texas because all or part of the acts or omissions

giving rise to Plaintiff’s claims occurred in El Paso County, Texas, and the property upon which

Defendants maintain a common nuisance or are about to maintain a nuisance is in El Paso

County, Texas.5

16. This Court has subject matter and personal jurisdiction over the cause and parties for the

State’s Application for Temporary and Permanent Injunctions based on the CPRC. The real

property made the basis of this cause of action is a common nuisance as maintained.6

IV.
FACTS

17. From November 16, 2016 to April 22, 2019, there have been over 450 responses by law

enforcement to Dogfish, generating over one hundred (100) police reports.7 At least forty three

(43) of the investigations were for criminal activity that are considered nuisance crimes under the

Civil Practice and Remedies Code. There have been at least fifty five (55) violations of the

TABC observed or reported, in addition to forty four (44) cases of public intoxication.

Fire/medical/emergency services have been called on at least six (6) occasions. Most disturbing,

at least forty four (44) incidents at Dogfish involve minors. Since owning and operating Dogfish,

Commission agents have made contact with Defendants on at least four (4) occasions to make

them aware of the age and alcohol violations, and to discuss the safety issues the bar poses.8

Despite these meetings, the problems with Dogfish persist.

5
TEX. CIV. PRAC. & REM. CODE §§ 15.016 and 125.002(a).
6
TEX. CIV. PRAC. & REM. CODE § 125.002(a).
7
See Exhibits 4 and 5.
8
See Exhibit 1

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 A. TABC Nuisance

18. The County Attorney’s Office Nuisance Abatement Team (NAT) received an affidavit

from Texas Alcoholic Beverage Commission (the “Commission”) enforcement agent, Robert

Chavez, a credible person. Exhibit 1. The affidavit indicates the above named Defendants are

violating and/or about to violate one or more provisions of the Texas Alcoholic Beverage Code

(TABC).

19. As mandated by the TABC, the County Attorney’s Office prepared an application for a

temporary restraining order for proceedings in district court to restrain Defendants from violating

the TABC.9 The State brings this Original Application for Temporary Restraining Order to

temporarily restrain the business known as “Dogfish” from further violations of the TABC.10

20. Dogfish is a building or other place where alcoholic beverages are sold, stored, possessed

or consumed in violation of the TABC, or under circumstances contrary to the purposes of the

TABC.11

21. Records from the El Paso County Clerk’s office show that Defendants Subia, O’Dell, and

Burns have been the owners/operators of Dogfish since at least September 1, 2016. Exhibit 2.

22. Defendant Subia, O’Dell, and Burns have had TABC Permit No. MB960351 for Dogfish

since October 7, 2016. Exhibit 3.

23. Inspections and undercover investigations by Commission agents and El Paso police

officers show that consumption of alcoholic beverages by minors and public intoxication is

common at Dogfish.

9
TEX. ALCO. BEV. CODE, § 101.10(a).
10
TEX. ALCO. BEV. CODE, § 101.10.
11
TEX. ALCO. BEV. CODE at §§ 101.01 and 101.70(a).

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24. TABC violations from March 4, 2017 to present are listed in Exhibit 4, and include but

are not limited to:

a. Thirty eight (38) violations for consumption of alcohol by a minor.12

b. Four (4) violations for selling or furnishing alcohol to minors.13

c. Two (2) violations for allowing consumption outside of the premises.14

d. Two (2) violations for accepting money to allow a minor to drink in the bar.15

e. Seven (7) violations for Sale of an Alcoholic Beverage to an Intoxicated Person.16

25. Dogfish is a place where persons have violated and/or will likely continue to violate

provisions of the TABC, and is a building or other place where alcoholic beverages are sold

stored, possessed, or consumed in violation of the TABC, or under circumstances contrary to the

purpose of the TABC.17

B. Common Nuisance

26. Dogfish is a place where persons habitually go for the purpose of engaging in crimes

which are common nuisance activities in violation of Chapter 125 of the CPRC. Defendants

knowingly tolerate the activity and fail to make reasonable attempts to abate these activities.

27. Crimes prohibited by Chapter 125 of the CPRC are committed at Dogfish and on the

property.

28. From October 7, 2016 to present, there have been approximately number 450 incidents

requiring a response from law enforcement to Dogfish. Exhibit 5. Chapter 125 nuisance crimes

are listed in Exhibit 4, and include but are not limited to:

12
TEX. ALCO. BEV. CODE § 106.04.
13
TEX. ALCO. BEV. CODE §§ 106.03, 106.06
14
TEX. ALCO. BEV. CODE § 28.10.
15
TEX. ALCO. BEV. CODE § 104.03
16
TEX. ALCO. BEV. CODE § 101.63
17
TEX. ALCO. BEV. CODE §§ 101.01 and 101.70(a).

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 a. Thirty seven (37) violations for Disorderly Conduct.18

b. Three (3) violations for Unlawful Carrying of a Weapon.19

c. Two (2) violation for Drug Possession.20

d. One (1) violation for Aggravated Assault.21

C. As to both the TABC and the CPRC

29. While not specifically listed as a violation of the TABC, as applied, or the CPRC,

exacerbating circumstance at Dogfish include:

a. Bouncers of Dogfish are aggressive and often assaultive when removing patrons from the

bar. Many of the cases of disorderly conduct involve charges for assault against the

bouncers.

b. Dogfish facilitates underage drinking by allowing persons under the legal age for

consumption of alcohol to enter the bar.

c. Other Criminal activity habitually occurs at Dogfish, to wit:

a. At least forty four (44) incidents of public intoxication.22

b. Two (2) violations of driving while intoxicated.23

c. Burglary of Vehicle

d. Credit Card Abuse

d. Reports indicate at least 3 incidents involving a fire hazard or other city ordinance, such

as prohibition against possessing open container of alcohol.

18
TEX. CIV. PRAC. & REM. CODE § 125.0015(a)(24). Note: There are 42 incidents of disorderly conduct identified in
Exhibit 4; however, the law making disorderly conduct a nuisance crime went into effect on September 1, 2017.
19
TEX. CIV. PRAC. & REM. CODE § 125.0015(a)(14).
20
TEX. CIV. PRAC. & REM. CODE § 125.0015(a)(4).
21
TEX. CIV. PRAC. & REM. CODE § 125.0015(a)(10).
22
TEX. PENAL CODE § 49.02(a).
23
TEX. PENAL CODE § 49.04.

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30. The violations noted above habitually occur and are likely to continue if Dogfish is not

temporarily shut down until a hearing on a temporary injunction can be heard.

31. The frequency of the violations described above is prima facie evidence that the

Defendants collectively and knowingly tolerate the criminal acts.24

32. The general reputation of Dogfish in the community will show the existence of a

common nuisance.25

V.
APPLICABLE LAW AND STATUTORY AUTHORITY

A. Temporary Restraining Order

33. Generally, injunctive relief is properly issued only when an applicant shows a probable

right of recovery, probable injury, and that there is no other adequate remedy at law available.26

34. A county attorney has a duty apply for injunctive relief to restrain a person who appears

to be in violation of or threatening to violate the TABC. Section 101.01 of the TABC sets out the

procedure for obtaining a restraining order. If a credible person informs the county attorney by

affidavit that a person is violating or is about to violate a provision of the TABC, the county

attorney “shall begin proceedings in district court to restrain the person from violating the code

or operating under the permit or license.”27

35. The TABC authorizes injunctive relief, so if the evidence shows that a TABC violation

has occurred, is occurring or is about to occur, the State is entitled to appropriate injunctive relief

to prevent the violation from continuing or occurring. No evidence of imminent harm,

24
TEX. CIV. PRAC. & REM. CODE § 125.004(a).
25
TEX. CIV. PRAC. & REM. CODE § 125.004(c).
26
See PILF Investments, Inc. v. Arlitt, 940 S.W.2d 255, 258 (Tex. App. - San Antonio 1997, no writ); Home Sav. of
America, F.A. v. Van Cleave Dev. Co., 737 S.W.2d 58, 59 (Tex. App. - San Antonio 1987, no writ).
27
TEX. ALCO. BEV. CODE § 101.01(a).

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irreparable injury, or the absence of an adequate remedy at law is necessary to support the State’s

entitlement to injunctive relief. 28

36. The court may issue a restraining order without a hearing, and on notice and hearing may

grant an injunction to prevent the threatened or further violation or operation. The court may

require the complaining party to file a bond in an amount and with the conditions the court finds

necessary.29

37. Relevant violations of the TABC committed at Dogfish and on the Property include, but

are not limited to:

a. Sec. 28.10(b) Consumption Restricted to Premises – A mixed beverage permittee

may not permit any person to take any alcoholic beverage purchased on the licensed
premises from the premises where sold.

b. Sec. 104.03 Conspiracy: Accepting Unlawful Benefit – A retail dealer or his agent,
servant, employee commits an offense if he conspires with another person to violate
or accepts the benefits of a violations of this code or a valid rule of the commission.

c. Sec. 106.03(a) Sale to Minors – A person commits an offense if with criminal

negligence he sells an alcoholic beverage to a minor.

d. Sec. 101.63 (a) Sale to Certain Persons – A person commits an offense if the person
with criminal negligence sells an alcoholic beverage to an habitual drunkard, or an
intoxicated or insane person.

e. Sec. 106.04(a) Consumption of Alcohol by a Minor – A minor commits an offense if

he consumes an alcoholic beverage.

f. Sec. 106.06 Furnish Alcohol to a Minor – A Person commits an offense if he

purchases an alcoholic beverage for or gives or makes available an alcoholic beverage
to a minor with criminal negligence.

g. Sec. 106.05 Possession of Alcohol by a Minor – A minor commits an offense if he

possess an alcoholic beverage.

28
8100 N. Freeway Ltd. v. City of Houston, 329 S.W.3d 858, 862 (Tex. App.—Houston [14th Dist.] 2010, no pet.),
and see Schleuter v. City of Fort Worth, 947 S.W.2d 920, 932 (Tex. App. - Fort Worth 1997, pet. denied) (city
ordinance); Bexar County v. North East Indep. Sch. Dist., 802 S.W.2d 854, 859 (Tex. App. - San Antonio 1990, writ
denied) (statute); San Miguel v. City of Windcrest, 40 S.W.3d 104 2000).
29
TEX. ALCO. BEV. CODE § 101.01(b).

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38. If the court issues a temporary restraining order, upon finding a person has violated the

order, the court shall enter a judgment to that effect. The judgment cancels, without further

proceedings, any license or permit held by the person. The district clerk shall notify the county

judge of the county where the premises covered by the permit or license is located and shall

notify the commission when a judgment is entered that operates to cancel a license or permit.30

B. Temporary and Permanent Injunction

1. Chapter 101.70 of the TABC

39. A common nuisance is defined as “A room, building, boat, structure, or other place where

alcoholic beverages are sold, bartered, manufactured, stored, possessed, or consumed in violation

of this code or under circumstances contrary to the purposes of this code, the beverages

themselves, and all property kept or used in the place, are a common nuisance. A person who

maintains or assists in maintaining the nuisance commits an offense.”31

40. The plaintiff is not required to give bond. A nuisance can be temporarily and permanently

enjoined. The final judgment is a judgment in rem and a judgment against the defendants.32

41. If the court finds against the defendants, on final judgment it shall order that the place

where the nuisance exists be closed for one year or less and until the owner, lessee, tenant, or

occupant gives bond with sufficient surety as approved by the court in the penal sum of at least

$1,000.00. The bond must be payable to the state and conditioned that the TABC will not be

violated; no person will be permitted to resort to the place to drink alcoholic beverages in

violation of this code; and the defendant will pay all fines, costs, and damages assessed against

him for any violation of this code.33

30
TEX. ALCO. BEV. CODE § 101.01(c).
31
TEX. ALCO. BEV. CODE § 101.70(a).
32
TEX. ALCO. BEV. CODE §101.70(c).
33
TEX. ALCO. BEV. CODE §101.70(c).

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 2. Chapter 125 of the CPRC

42. A person maintains a common nuisance if they maintain a place to which persons

habitually go for any of the purposes listed in the CPRC and they “knowingly tolerate the

activity and fail to make reasonable attempts to abate the activity.”34

43. The CPRC provides that “[p]roof that and activity described by §125.0015 is frequently

committed at the place involved or that the place is frequently used for an activity described by

§125.0015 is prima facie evidence that the defendant knowingly tolerated the activity.” Evidence

of the general reputation of the place involved is admissible to show the existence of the

nuisance.35 In addition, evidence that persons have been arrested for or convicted of offenses for

an activity described by §125.0015 in the place involved is admissible to show knowledge on the

part of the defendant that the prohibited conduct occurred.36

44. Relevant violations of the CPRC committed at Dogfish include, but are not limited to:

a. Sec. 125.0015(a)(4) – delivery, possession, manufacture, or use of a substance or

other item in violation of Chapter 481, Health and Safety Code.

b. Sec. 125.0015(a)(9) – aggravated assault as described by Chapter 29.03, Texas Penal

Code.

c. Sec. 125.0015(a)(14) – unlawful carrying of a weapon as described by Section 46.02,

Texas Penal Code.

d. Sec. 125.0015(a)(24) – disorderly conduct as described by section 42.01, Texas Penal

Code.

45. In addition, evidence that persons have been arrested for or convicted of offenses for an

activity described by §125.0015 in the place involved is admissible to show knowledge on the

part of the defendant that the prohibited conduct occurred.37 Since March 4, 2017 to April 22,

34
TEX. CIV. PRAC. & REM. CODE §§ 125.0015(a) and 125.004(a).
35
TEX. CIV. PRAC. & REM. CODE §§ 125.004(a) and 125.004(c).
36
TEX. CIV. PRAC. & REM. CODE § 125.004(b).
37
TEX. CIV. PRAC. & REM. CODE section 125.004(b).

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2019, there have been at least forty seven (47) arrests for criminal activity defined as a nuisance.

Exhibit 4.

46. A county attorney has authority to enjoin and abate a nuisance in the county where the

nuisance exists. The suit may be brought against any person who maintains, owns, uses or is a

party to the use of a place for purposes constituting a nuisance, and may bring action in rem

against the place itself. All named Defendants either maintain, own, use or are a party to the use

of the property.38

47. If, after notice and hearing on a request by a plaintiff for a temporary injunction, a court

determines that the plaintiff is likely to succeed on the merits in a suit brought under the CPRC,

the court shall require that each defendant execute a bond.39 The bond must be payable to the

STATE OF TEXAS at El Paso County; be in the amount set by the court, but no less than $5,000.00

or more than $10,000.00; have sufficient sureties approved by the court; and be conditioned that

the defendants will not knowingly allow a common nuisance to exist at that place.

48. Should any condition of bond or any injunctive order by a court be violated, suit upon the

bond in the name of the State of Texas should be allowed; and upon a showing of a violation of

any condition of the bond or injunctive order, the whole sum of the bond should be ordered

forfeited to the originating entity.40 Further, the court may impose a laundry list of sanctions

under section 125.045(b) including cutting off utilities to the place, revoking the occupancy

permit, prohibiting access through public streets or alleys, limiting hours of operation, ordering

termination of the tenant’s lease, or any other legal remedy available under the laws of Texas.

38
TEX. CIV. PRAC. & REM. CODE § 125.002(b).
39
TEX. CIV. PRAC. & REM. CODE §125.045(a) and Exhibit 1.
40
TEX. CIV. PRAC. & REM. CODE section 125.003(a)

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Subsequent to the bond forfeiture, the court shall order the place where the nuisance exists closed

for one year from the date of the order of bond forfeiture.41

VI.
REQUEST FOR RELIEF

A. Temporary Restraining Order

49. The State incorporates, adopts and re-alleges by reference the allegations contained in

each and every preceding paragraph of this petition.

50. The County Attorney received an affidavit from a credible person informing her that the

named Defendants are violating provisions of the TABC.42 Upon confirmation that Defendants

were violating and will continue to violate the TABC, and after additional investigation into

police activity at Dogfish, the County Attorney brought this action in district court in the name of

the State of Texas.43

51. Defendants have knowingly maintained Dogfish as a place where public intoxication,

underage drinking, disorderly conduct, and violations of the TABC are habitually committed. As

such, Dogfish is a common nuisance as defined by the TABC.44

52. The evidence shows that TABC violations have occurred or are occurring; so the State is

entitled to appropriate injunctive relief to prevent the violation from continuing or occurring. No

evidence of imminent harm, irreparable injury, or the absence of an adequate remedy at law is

necessary to support the State’s entitlement to injunctive relief.45

41
TEX. CIV. PRAC. & REM. CODE § 125.003(a) & (b).
42
See Exhibit 1.
43
TEX. ALCO. BEV. CODE § 101.01(a).
44
TEX. ALCO. BEV. CODE § 101.01.
45
Cook v. Tom Brown Ministries, 385 S.W.3d 592 at 601 (Tex. App. – El Paso 2012), and see TEX. ALCO. BEV.
CODE section 101.01.

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53. The State requests that the Court issue a temporary restraining order without a hearing,

and grant an injunction to prevent further violation or operation of the bar, until such time a

temporary injunction hearing may be heard.

54. An order of closure is the only remedy reasonably likely to prevent the use of Dogfish and

the owners/operators from using Dogfish as a common nuisance, pending further hearing.

Therefore, the State requests the Court:

a. Enjoin all named Defendants immediately from operating or maintaining Dogfish in

violation of the TABC for the duration of a Temporary Restraining Order or until

further order of the court.

b. Order all records and documents from October 7, 2016 to present, relating to the

business of Dogfish, including but not limited to the ownership, rental/lease, and

records relating to taxes, employees, clients and the business operation of the Dogfish

be preserved.

c. Restrain and enjoin Defendants from operating as a business at 200 Anthony St., El

Paso, Texas 79901;

d. Order a sign provided by the County Attorney’s Office that reads “NOTICE Dogfish

is temporarily closed by court order Posted: (Date posted)” remain posted and visible

until the temporary restraining order expires.

55. Because of the ongoing illegal activity, an ex parte hearing on temporary restraining

order is warranted to prevent continuing harm to the community which would occur should the

court require service of a lawsuit and notice of hearing.

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56. The State will likely succeed after trial on the merits because the evidence of criminal

activity occurring at Dogfish constitutes a showing of a common nuisance within the meaning of

the TABC.

57. The State requests any other reasonable requirements to prevent the ongoing nuisance

activity at Dogfish and the property in accordance with TABC.

58. Pursuant to El Paso Local rule 1.05(d), the State has information that Mark Davis may

have represented Defendant Dogfish in other matters. After the State files its application and

there is a court assignment, the State will advise Mr. Davis of the time and the place of the ex

parte hearing.

B. Temporary Injunction

1. Chapter 101.70 of the TABC

59. The State incorporates, adopts, and re-alleges by reference the allegations contained in

each and every preceding paragraph of this petition.

60. A violation of the TABC subjects a property to a nuisance claim. At least fifty six (56)

incidents at Dogfish violate the TABC.

61. The TABC, section 101.70(c) specifically states the plaintiff is not required to give a

bond.

62. Since Defendants have failed or refused to abate the nuisances and are likely to continue

to maintain the property as a common nuisance unless restrained by injunctive orders, the State

requests temporary injunctive relief against the named Defendants, enjoining them from

operating in violation of the TABC.

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63. The frequency of the violations described in this document and attached as Exhibit 4, is

prima facie evidence that Defendants collectively and knowingly tolerated TABC violations, and

other illegal and nuisance acts.

64. The final judgment is a judgment in rem against the property and a judgment against the

defendant. If the court finds against the defendant, on final judgment it shall order that the place

where the nuisance exists be closed for one year or less and until the owner, lessee, tenant, or

occupant gives bond with sufficient surety as approved by the court in the penal sum of at

$1,000. The bond must be payable to the State and conditioned:

a. that this code will not be violated;

b. that no person will be permitted to resort to the place to drink alcoholic beverages in

violation of this code; and

c. that the defendant will pay all fines, costs, and damages assessed against him for any

violation of this code.46

2. Chapter 125 of the CPRC

65. The State incorporates, adopts, re-alleges by reference the allegations contained in each

and every preceding paragraph of this petition.

66. Violations that occur at Dogfish are a common nuisance within the meaning of CPRC.

67. The State has evidence of forty seven (47) arrests for offenses described in section

125.0015 to show that Defendants had knowledge of the conduct.47 See Exhibit 4.

68. The Defendants have failed or refused to abate the nuisances and are likely to continue to

maintain Dogfish as a common nuisance unless restrained by injunctive orders, so the State

46
TEX. ALCO. BEV. CODE § 101.70(c).
47
TEX. CIV. PRAC. & REM. CODE § 125.004(b).

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requests temporary injunctive relief against the named Defendants, enjoining them from

operating in violation of the CPRC.

69. After notice and a hearing, if the court determines that the State is likely to succeed on

the merits, the court shall order reasonable requirements to prevent the use and maintenance of

Dogfish as a nuisance and require each Defendant to execute a bond.48 Each bond must be

payable to the STATE OF TEXAS at El Paso County; be in the amount set by the court, but no

less than $5,000.00 nor more than $10,000.00; have sufficient sureties approved by the court;

and be conditioned that each defendant executing a bond will not knowingly allow a common

nuisance to exist at that place.

70. Should any condition of the bond or any injunctive order by this Court be violated, suit

upon the bond in the name of the State of Texas should be allowed; and upon a showing of a

violation of any condition of the bond or injunctive order, the whole sum of the bond should be

ordered forfeited to El Paso County.49

C. Permanent Injunction

1. Chapter 101.70 of the TABC

71. The State incorporates, adopts, re-alleges by reference the allegations contained in each

and every preceding paragraph of this petition.

72. The State requests permanent injunctive relief against Dogfish, enjoining Defendants

from operating in violation of the TABC.

48
TEX. CIV. PRAC. & REM. CODE § 125.045(a).
49
TEX. CIV. PRAC. & REM. CODE § 125.003(a).

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73. If final judgment favors the State, the Court shall grant a final judgment in rem against

the Property and a judgment against the Defendants, ordering the place where the nuisance exists

closed for one year.50

2. Chapter 125 of the CPRC

74. The State incorporates, adopts, re-alleges by reference the allegations contained in each

and every preceding paragraph of this petition.

75. The State requests permanent injunctive relief against Dogfish, enjoining Defendants

from operating in violation of the CPRC.

76. If successful, the State requests the Court order the named Defendants to abate the

nuisance and enjoin them from maintaining or participating in the nuisance. The State requests

the Court to order reasonable requirements to prevent the use of maintenance of the place as a

nuisance.51

77. As Dogfish and the Property are named as in rem defendants, the State requests the Court

order a judgment in rem, and order the place where the nuisance exists to be closed for one year

after the date of judgment.52

78. If a defendant violates any condition of the bond or any injunctive order of this Court, the

El Paso County Attorney Jo Anne Bernal shall sue on the bond in the name of the State. Upon a

showing of a violation of any condition of the bond or injunctive order, the whole sum of the

bond, plus cost and attorney fees, should be ordered forfeited to El Paso County, Texas, the

originating entity. Subsequent to the bond forfeiture, the court shall order the place where the

nuisance exists closed for one year from the date of the order of bond forfeiture.53 In addition,

50
TEX. ALCO. BEV. CODE § 101.70(c).
51
TEX. CIV. PRAC. & REM. CODE § 125.002(e).
52
TEX. CIV. PRAC. & REM. CODE § 125.002(e).
53
TEX. CIV. PRAC. & REM. CODE § 125.003(a) & (b).

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the court may impose the laundry list of sanctions under CPRC section 125.045(b); including

cutting off utilities to the place, revoking the occupancy permit, prohibiting access through

public streets or alleys, limiting hours of operation, ordering termination of the tenant’s lease, or

any other legal remedy available under the laws of Texas.

79. A person who violates a temporary or permanent injunctive order is subject to the

following sentences:

a. fine of not less than $1,000.00 or more than $10,000.00;

b. confinement in jail for a term of not less than 10 or more than 30 days;

c. both a fine and confinement.54

VII.
DEMAND FOR JURY

80. The State demands a jury trial.

VIII.
CONDITIONS PRECEDENT

81. All conditions precedent to the State’s claim for relief have been performed or have

occurred.

IX.
ATTORNEY’S FEES

82. In order to litigate this case, it was necessary to secure the services of attorneys and

investigators. Based on sections 125.003(b) of the CPRC and section 101.70(c)(3) of the TABC,

the State requests the Defendants be ordered to pay reasonable attorney and investigator fees and

costs, including investigative costs, witness fees, court costs, and deposition fees.

54
TEX. CIV. PRAC. & REM. CODE § 125.002(d).

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 X.
PRAYER

83. WHEREFORE, PREMISES CONSIDERED, the State prays that the Court grant

judgment in favor of the State for a temporary restraining order, temporary and permanent

injunction and other such relief; and issue an order in rem against Dogfish and the premises,

located at 200 Anthony St., El Paso, Texas 79901, closing it for business until a hearing within 14

days of the signing of a temporary restraining order. Further, the State prays for a temporary and

permanent injunction, and other such relief; and issue an order against Dogfish and the Real

Property, ordering all Defendants, their associates, and managers, to not operate Dogfish until a

hearing on a temporary injunction can be heard. The State prays that no bond be required. Plaintiff

specifically requests that a temporary injunction hearing be set within 14 days of the issuance of

the temporary restraining order.

Respectfully submitted,

JO ANNE BERNAL
El Paso County Attorney
500 East San Antonio, Room 503
El Paso, Texas 79901
Bus: (915) 546-2050
Fax: (915) 546-2133

BY: __ ________________________
__________
________
__ ______________
__
AMY MONSIVAIS
MONSIV IVAIS
IV
Assistantt County
Co ty Attorney
Att
Texas Bar No. 24010472

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