CITY OF SAN MARCOS
District judge criticizes city while ordering Becerra to vacate portion of property
A district judge ruled Wednesday that Hays County Judge Ruben Becerra must vacate the city-owned portion of the property beneath his Dixie Cream Donuts business, setting up a tense and convoluted situation.
While Judge Sherri Tibbe largely sided with the city of San Marcos on legal grounds, she sharply criticized the city’s actions during the hearing, calling them “cruel.”
“I can’t for the life of me understand why the city of San Marcos is so hot to close down a business that’s been there for 40 years,” Tibbe said.
Following the hearing, Becerra said he was encouraged by the judge’s remarks.
“I’m grateful that the presiding district judge called the city’s behavior disgusting, trying to do this to a legacy business, to a family institution,” Becerra said.
City attorneys said they plan to issue a formal 30day notice to vacate effective May 1, which would require Becerra to leave the city-owned portion of the property by June 1. If he does not comply, the city may pursue eviction through the courts.
The case centers on the property at 201 S. LBJ Drive, where the Dixie Cream building sits on top of two separate parcels of property. Becerra owns the building housing Dixie Cream Donuts, but the land beneath it is split, with one portion owned by Union Pacific Railroad and the other by the city. Both entities have previously leased the land to Becerra, though the city recently chose not to renew its lease.
The ruling requires Becerra to vacate the portion of the building located on city-owned land, though operations may continue on the section that sits on the property owned by the railroad.
The situation is further complicated by the property’s location within a historic district, where any structural changes would likely require review and approval.
The city argued that it ended the lease legally and provided ample notice to Becerra that the lease would end Jan. 31. Even after receiving multiple letters from the city leading up to the lease ending, Dixie Cream continues to operate at the location nearly three months later.
“He has no legal right to stay,” Jose De La Fuente, who represented the city of San Marcos, said.
Becerra stated during the court proceedings that he didn’t believe those letters were official notification and that they merely represented the city’s “positioning” for leverage in what he expected would be a negotiation.
“I view them as positions and not terminations,” Becerra said. “… when I saw that they were accepting my payments… I was optimistic.”
After the lease expired, Becerra continued making payments in the amount of $476.89, which is the rental rate outlined in the lease. He did so by placing checks in a city utility dropbox, which is not how he had historically paid rent. He testified that he included identifying information on the checks and intended them as rent payments.
City officials said the payments were not processed as rent. Instead, they were applied to Becerra’s personal utility account, which was past due at the time the first check was issued, because the checks did not clearly reference the commercial property and were submitted through a utility payment system that does not handle lease payments.
Becerra’s attorneys argued that the city’s acceptance of those payments created a month-to-month tenancy under Texas law, requiring a new 30-day notice to vacate.
De La Fuente disputed that claim, saying that “cute moves and tricks don’t create an agreement,” and argued that the city had repeatedly made clear the lease would not be renewed.
Tibbe ultimately agreed that a month-to-month tenancy was established enough that her ruling required the city to issue a formal notice to vacate before removing Becerra from the property.
The ruling was in the city’s favor because Tibbe did not grant Becerra a Temporary Injunction, which could have prevented the city from removing Becerra for a longer period of time. However, Tibbe said she had concerns about the ownership of the building itself, which is owned by Becerra, and whether the city could legally take control of it.
“I think there’s a huge question here about that building and what to do with it,” she said.
The lease includes provisions allowing the city to take control of structures left on its property after a lease ends, though Tibbe said that doing so could be considered a “taking” by the government of personal property.
Becerra stated that he has offered to either buy the land from the city or sell the city the building.
City representatives said there are no immediate plans for the building, and that there was not an imminent threat of it being demolished. They also stated the city does not intend to enter or interfere with the portion of the building located on railroad property.
While the next steps were not immediately clear, Becerra said he plans to continue to “fight for our survival” to keep the business operating. He said he intends to comply with the law and is seeking time to determine how to preserve part of the business, potentially by modifying the structure to remain on the railroad- owned portion.
The property is located within a historic district, meaning any demolition or significant alteration would likely require review under city preservation rules. Becerra also noted that this would make it difficult to renovate the building in a way to continue to operate on the side that was over railroad- owned property.
The court extended an existing temporary restraining order while attorneys prepared a formal written order reflecting the ruling.
