Recent Texas Cases of Interest to Cities

Note: Included cases are from March 11, 2017 through April 10, 2017.

Sovereign Immunity: Engelman Irrigation Dist. v. Shields Bros., Inc., No. 15-0188, 2017 WL 1042933 (Tex. Mar. 17, 2017). The Texas Supreme Court issued this opinion holding a governmental entity’s sovereign immunity does not protect it from a monetary judgment which has become final, even if the judgment allowed claims for which the entity is immune.

In 1992, Shields Brothers, Inc. (Shields) sued the Engelman Irrigation District (Engelman), a governmental entity, alleging Engelman had breached a contract to deliver water to Shields. Engelman contended the trial court lacked subject-matter jurisdiction because Engelman had sovereign immunity and the “sue and be sued” language in its incorporation authorization did not waive immunity. The “sue and be sued” language dispute was not ultimately decided in the courts at that time. After going up and down the court of appeals, Engelman lost at trial and the jury awarded damages. This became the Engelman I judgment. Engelman did not pay the judgment but sought permission to declare bankruptcy under the Texas Water Code. The Texas Commission on Environmental Quality denied the request and the district court judgment resulting from that denial is the Engelman II judgment.  While Engelman II was on appeal, the Texas Supreme Court issued its opinion in Tooke v. City of Mexia holding the “sue and be sued” language in many statutes and incorporation documents is insufficient to waive sovereign immunity. In 2010, Engelman brought the pending suit (Engelman III) seeking relief that since it was always immune and the trial court always lacked subject matter jurisdiction, Engelman should not have to pay the Engelman I judgment arguing it was void. The trial court and court of appeals disagreed, holding the final judgment could not be collaterally attacked, and Engelman appealed to the Texas Supreme Court.

The Texas Supreme Court starts out by analyzing long held judicial principals including that a judicial decision, like Tooke, generally applies retroactively. But retroactive application of a judicial decision does not generally extend to allow reopening a final judgment where all direct appeals have been exhausted. The principles of res judicata precluded collateral attacks on final judgments. “The reason for not allowing collateral attack on a final judgment is that such an attack would run squarely against principles of res judicata that are essential to a rational and functioning judicial system.” “For any rational and workable judicial system, at some point litigation must come to an end, so that parties can go on with their lives and the system can move on to other disputes.” However, the court also analyzed the fact that res judicata does not normally apply when the original tribunal lacked subject-matter jurisdiction. In order to resolve these competing issues, the court held sovereign immunity only “implicates” subject-matter jurisdiction, not that it involved subject-matter jurisdiction for all purposes. Immunity may implicate, yet does not necessarily equate, to an absence of subject-matter jurisdiction, because “sovereign immunity includes concerns about both subject-matter and personal jurisdiction but is identical to neither.” Adopting provisions of the Second Restatement of Judgments the court held “[w]hen a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation.” It is one thing to recognize immunity as equating to jurisdiction when dealing with a defense of an existing claim and preventing the waiver of that defense, and quite another to jettison the principles behind the finality of a judgment as a whole. Next, the court addressed Engelman’s separation of powers argument and held its decision does not preclude the legislature from waiving immunity, but merely cements the judicial process of ending litigation through a final judgment not subject to attack. In fact, the court held the reverse of Engelman’s argument is true in that if the legislature had passed a statute adopting Tooke and making it retroactive in a way which allowed collateral attack on final judgments, such a statute would cross the separation of powers line into the judicial process. Finally, the court addressed Engelman’s equity arguments and held “recognizing the continuing validity of the Engelman I judgment is hardly so inequitable or contrary to the public interest as to compel abandoning principles of res judicata and allowing Engelman to avoid that judgment.” As a result, Engelman cannot collaterally attack a final judgment on the basis of immunity.*

Whistleblower Act: Barnett v. City of Southside Place, No. 01-16-00026-CV, 2017 WL 976067 (Tex. App.—Houston [1st Dist.] Mar. 14, 2017). This is a Texas Whistleblower Act case where the Fourteenth Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.

Barnett worked as a detective for the City of Southside Place.  Barnett informed the chief of police (McCarty) that he had learned the city implemented an illegal ticket quota system. McCarty included that information in a written memorandum to the Texas Rangers summarizing a list of his grievances against City Manager David Moss.  He also forwarded the Texas Ranger memo to the mayor. After Barnett and McCarty met with Texas Ranger Jeff Owls, Barnett resigned but with an effective date of two weeks later. One day later, the city suspended McCarty pending an investigation for McCarty’s conduct on a variety of matters. Several days later, the city manager informed Barnet of allegations of misconduct against him and provided him the opportunity to respond. The city manager advised that, if true, the allegations would constitute grounds for termination. Barnett refused to respond. One day before Barnett’s resignation became effective the city manager terminated Barnett for insubordination. Barnett’s F-5 separation notice to the state reflected a “dishonorable discharge.”  Barnett sued under the Texas Whistleblower Act (Act). The city filed a plea to the jurisdiction which the trial court granted. Barnett appealed.

To allege a violation of the Act, a plaintiff must allege that an adverse employment action was taken because he, in good faith, reported a violation of law by the employer to an appropriate law enforcement authority. The city argues Barnett failed to raise a fact question as to whether: (1) he suffered an adverse employment action; and (2) the action taken was because he reported a violation of law. However, “Barnett’s assertion that his employment was terminated is belied by his own sworn testimony that he voluntarily resigned before he received the termination letter.” Barnett testified when Moss instructed him to answer written questions and cooperate in the internal investigation, Barnett told him that he had already resigned and that he no longer considered himself an employee of the city. “Although the termination letter might otherwise qualify as an adverse employment action under a different set of facts, it does not here because there is undisputed evidence that Barnett had already resigned his employment . . . .” Further, under the definitions in the Act, a “public employee” means someone paid to perform services for the entity. The Act thus prohibits adverse personnel actions that affect the benefits flowing from an ongoing employment relationship. Since he was no longer employed when the F-5 was issued, it is not an adverse personnel action under the Act.

Finally, Barnett asserted he did not have adequate time for discovery. To preserve an issue for appeal, the record must show the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court: (1) ruled on the request, objection, or motion, either expressly or implicitly; or (2) refused to rule, and the complaining party objected to that refusal. The trial court reset schedules and discovery to accommodate various case management aspects and witness availability for depositions. Since Barnett did not object to any of the resets, Barnett did not properly raise the issue before the trial court.  The plea was properly granted.*

Sovereign Immunity: City of Denton v. Rushing, No. 02-16-00330-CV, 2017 WL 1103530 (Tex. App.—Fort Worth Mar. 23, 2017) (mem. op.). In this breach of contract case, the Fort Worth Court of Appeals affirmed the denial of the city’s plea to the jurisdiction and held the city’s policy manual waived immunity for the plaintiffs’ claims for unpaid on-call time.  The implication being when a city manager creates a policy, regardless of whether city council sees it, that creation can waive immunity from suit and bind the city in contract.

The city, by ordinance, delegated to the city Manager the ability to create policies. The city manager’s office created a policy manual including Policy No. 106.06 which defined and established the city’s pay practices and administrative procedures for response time and on-call duty.  It sets forth the pay the city will provide employees for on-call services and includes charts setting forth specific examples of how on-call pay is calculated.  All three plaintiffs worked week-long on-call shifts in addition to their normal work hours at least one week per month for several years. Plaintiffs allege a unilateral employment contract was created when the city, as the employer, created the policy and agreed to pay them a specific rate in exchange for working on-call shifts. The city filed a plea to the jurisdiction and alternative summary judgment arguing it retained immunity because the policy cannot create an authorized contract and its disclaimers preclude a determination of a contract. The trial court denied the plea and the city appealed.

The court analyzed the language of Texas Local Government Code Section 271.152, which waives immunity for written authorized contracts for goods or services in certain situations. It went point-by-point and element-by-element. It held a unilateral contract is created when a promisor promises a benefit if a promisee performs. The policy, according to the court, created such a contract notwithstanding the disclaimer. The reason being the unilateral contract was not a contract altering the employment-at-will or employment relationship, but was a contract only to pay a certain amount for on-call time if such on-call time was worked. So, it’s a limited contract only to on-call payment for performance. The court also determined the contract was “executed” because the city manager had authority to create it, after approval by an executive committee, and put the policy in the policy manual. It was therefore properly approved and adopted by the city. The court then held the constitutional prohibition against paying additional compensation for services already performed does not apply because it promised to pay prior to performance. As a result, it is not immune from a breach of contract claim and the plea was properly denied.*

Public Information: University of Tex. Sys. v. Paxton, No. 03-14-00801-CV, 2017 WL 1315374 (Tex. App.—Austin Apr. 7, 2017). This is a Texas Public Information Act (PIA) case where the Austin Court of Appeals reversed a summary judgment granted to the Texas Attorney General (AG) and remanded the case back to the trial court.

The university received a PIA request seeking several categories of information related to three separate social-science research studies being conducted by a tenured faculty member regarding terrorism.  The university released some information but requested an AG opinion for the remainder of the responsive information.  Specific to this lawsuit, the university asserted the identities of the human research subjects who participated in the study are protected from disclosure by Government Code Section 552.101 (matters confidential as a matter of law – constitutional and common-law privacy). The AG disagreed and determined the identities must be released, noting no highly embarrassing facts exist within the information to keep private. The university filed suit against the AG under the PIA. The parties filed cross-motions for summary judgment.  The trial court granted the AG’s motion. The university appealed the granting of the AG’s motion but did not appeal the denial of its motion. Instead, it sought a remand for trial.

The court noted the AG’s arguments were not that of a traditional summary judgment, but that once the AG determined no embarrassing facts exist, the university must completely negate the lack of embarrassing facts, not simply raise a fact question on the subject. The court rejected this argument outright. The Texas Supreme Court has not limited the type of information that is highly intimate or embarrassing and such a status may be fact driven. The studies were designed to explain and predict individual actions related to terrorism and counterterrorism by using laboratory experiments with human subjects. The experiments captured feelings and behaviors of individuals that they may not otherwise share with the public and their participation could lead to negative inferences about why they were selected, chose to participate, or what their responses may have been.  In a footnote, the court also noted in the context of common-law privacy, a party’s expectation of privacy (encapsulated in a confidentiality agreement) before choosing to participate in a study is relevant to whether a reasonable person of ordinary sensibilities would find disclosure to be an embarrassing fact. Fact-specific questions related to the research study exist, including whether details in the results could be tied to the subjects’ identities, whether a reasonable person would view participation in the study as embarrassing, and the potential consequences. While the university bears the burden at trial to establish the exception, its burden of proof to counter a summary judgment is merely to raise a fact question. The order granting the AG’s motion is reversed and the case is remanded.*

Purchasing: City of Austin v. Utility Assoc., Inc., No. 03-16-00586, 2017 WL 1130397 (Tex. App—Austin Mar. 24, 2017). In this consolidated case, the court reversed the denial of a plea to the jurisdiction and dissolved an injunction order that prevented the City of Austin from utilizing its contract for body-worn cameras.

The city bid and executed a $12.2 million contract with Taser International, Inc., (Taser) for body-worn cameras. One of the vendors that had submitted a competing proposal, Utility Associates, Inc., (Utility) accused city staff of manipulating or corrupting the selection process to favor Taser. Utility sought an injunction to prohibit the purchase and to invalidate the award. The city defendants filed various pleas to the jurisdiction.  The trial court granted the pleas as to the declaratory judgment claims and attorney’s fees but denied them as to other claims. The trial court granted the temporary injunction in order to preserve the status quo. The city appealed.

The parties’ arguments centered largely on the extent to which plaintiffs’ claims were authorized under a provision of Chapter 252 of the Local Government Code regarding competitive bidding requirements. Section 252.061 states, in part, “[i]f the contract is made without compliance with this chapter, it is void and the performance of the contract, including the payment of any money under the contract, may be enjoined….” The court considered the plaintiffs’ public policy arguments and dispelled them, including the argument that attorney’s fees are proper and essential weapons against public corruption. The legislature is best suited to waive immunity, not the judiciary. Next, the court held the plaintiffs are unable to establish an ultra vires claim against city officials under Chapter 252 as the definition of “responsible offeror” has too much discretion built in to be ministerial. While Chapter 252 may require the city defendants weigh specified considerations and factors, it does not limit their discretion in the outcome of these judgment calls. Additionally, ultra vires claims are only prospective, not retrospective. The basis of the plaintiffs’ claims is to retrospectively undo an award, not to prevent awards in the future. As a result, the plaintiffs failed to allege a proper ultra vires claim. The injunction issued by the trial court exceeded the power for enjoining under Chapter 252. Additionally, Utility did not establish it was qualified to act as a plaintiff under Chapter 252, which was the only applicable waiver of immunity mentioned in the pleadings. The pleas should have been granted in their entirety.*

Takings: Guadalupe Cty. v. Woodlake Partners, Inc., No. 04-16-00253-CV, 2017 WL 1337650 (Tex. App.—San Antonio Apr. 12, 2017) (mem. op.). This is a takings case where the San Antonio Court of Appeals reversed the denial of the county’s plea to the jurisdiction holding the county is not liable for property values affected by Federal Emergency Management Agency (FEMA) flood plain adjustments.

In 2007, FEMA revised its 100-year Flood Insurance Rate Maps for Guadalupe County. After the revisions, several lots owned by defendants (Woodlake Partners) became encompassed in a floodway and floodplain. The Woodlake Partners later submitted a development permit application. However, the county asserted the applicant was now required to submit no-rise documentation from an engineer and that federal regulations required the construction to have the lowest floor elevated to or above the base flood level. Woodlake Partners filed suit asserting a taking and that the new regulations would require new homes to be built 8-12 feet above ground, which was against their restrictive covenants. They also asserted it would negatively affect home values. The county filed summary judgment motions, asserting immunity. Both were denied by the trial court and the county appealed.

The court first held the county’s no-evidence motion for summary judgment is improper as such motions should not be utilized to establish a lack of jurisdiction given the change in burden shifting. However, in the traditional summary judgment motion, the county challenges the existence of jurisdictional facts, including causation. Woodlake Partners based their takings claim on the portions of the county’s order requiring them to obtain a no-rise certificate and construct the houses 8-12 feet above ground level.  However, these same requirements appear in the federal regulations setting forth flood plain management criteria for flood-prone areas, specifically 44 C.F.R. § 60.3. Additionally, uncontested evidence established that if the county had not adopted the FEMA maps, neither flood insurance nor financing would be available for homes built on the lots. Woodlake Partners was required to follow the same federal standards regardless, so the county’s adoption of the FEMA maps did not cause any damage. And since the inverse condemnation claim was the only pled waiver of sovereign immunity, the trial court should have dismissed the claims.*

TML Intergovernmental Risk Pool: Housing Auth. of the City of Alice v. Texas Mun. League Joint Self-Insurance Fund, No. 04-15-00813-CV, 2017 WL 1161195 (Tex. App.—San Antonio Mar. 29, 2017) (mem. op.). In this dispute over the amount owed for storm damage to property, the Housing Authority of the City of Alice (authority) sued its insurer, the Texas Municipal League Intergovernmental Risk Pool (IRP). The authority purchased an insurance policy from IRP to protect against damage to the authority’s property. The policy required that the authority provide signed and sworn proof of loss to IRP within 60 days.

In May 2014, a storm damaged 120 of the authority’s properties. The authority reported the damage to IRP the next day by telephone. The authority sent a signed, written report of the loss two days later. IRP determined that the authority’s reimbursable loss minus their deductible was $429,143.72 and tendered payment to the authority. The authority disputed the proposed amount of loss and asserted that its actual losses exceeded $3 million. To support this claim, the authority attempted to invoke the appraisal process described in their insurance policy. IRP resisted this, and the authority sued for breach of contract.

The trial court denied the authority’s motion for summary judgment and granted IRP’s partial summary judgment motion. The authority filed a notice of appeal. The court of appeals looked at whether the summary judgment order was final, and thus, whether the court had appellate jurisdiction. The authority claimed that the case involved only two parties and one cause of action, so the trial court’s order inescapably disposed of its breach of contract claim and the entire case.

The court of appeals concluded that the trial court’s order granted only a partial summary judgment and does not dispose of the entire case. Because there was no other circumstance making the order final, the order was interlocutory. Thus, the appellate court did not have jurisdiction and dismissed the appeal for want of jurisdiction.

Immunity/Contracts: City of Leon Valley Econ. Dev. Corp. v. Little, No. 04-15-00488-CV, 2017 WL 1066829 (Tex. App—San Antonio Mar. 22, 2017) (mem. op.). This is a breach of contract case where the Fourth Court of Appeals reversed a jury award against an economic development corporation, holding it was immune from liability.

This is the second appellate case involving this dispute. The Leon Valley Economic Development Corporation (EDC), which is a Type B EDC, agreed to purchase certain land from Little as part of a project if the EDC could obtain specific financing terms from a state loan program. When the EDC was unable to obtain the financing under the conditions and time frame it desired it did not purchase and Little sued claiming a breach of contract. The EDC originally filed a plea to the jurisdiction, but the court of appeals eventually determined that because it is a non-profit creature of statute, it was only entitled to immunity from liability, not immunity from suit. The interlocutory opinion remanded the case for trial. The jury found that Little and the EDC “intend[ed] to be bound by agreements relating to the Larry Little-Leon Valley Town Center project without the execution of a written agreement” and that the EDC “fail[ed] to comply with the agreement.” The jury awarded over $100,000 for expenditures Little made in performance of the agreements, and over $1,400,000.00 in lost past and future profits. The EDC appealed.

The court reiterated a Type B EDC is not immune from suit for breach of contract. However, Texas Local Government Code Section 505.106(a) states that an EDC is not liable for damages arising from pursuing a project. Actions taken pursuant to the Development Corporation Act of 1979 (Act) to develop projects authorized by the Act are governmental functions. While the EDC approved the state’s loan commitment component as part of the project, the Act requires such projects also be approved by the city council by resolution. The city council did not approve the project in time for the loan amount to be authorized by the state program. After analyzing the project and undisputed actions of the EDC, the court held it was performing the governmental functions of a Type B corporation in its dealings with Little and the project and proposed expenditures were authorized by the Act.  As a result, it is immune from liability for all damages. While Little argued the acts of the EDC were not for public benefit, but his own private benefit, the court did not find the argument persuasive. The project was intended and expected to revitalize the specific town center area, create jobs, and expand the tax base. Moreover, the Act expressly provides that a corporation may provide direct financial incentives to a private business enterprise, provided there is a performance agreement.  As a result, the jury award is reversed and judgment was rendered in favor of the EDC.*

Immunity/Contracts: JAMRO Ltd. v. City of San Antonio, No. 04-16-00307-CV, 2017 WL 993473 (Tex. App—San Antonio Mar. 15, 2017) (mem. op.). This is, in essence, a breach of contract claim against the City of San Antonio where the Fourth Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.

The city created a tax increment reinvestment zone (TIRZ) to finance public improvements in the Palo Alto Trails Development (project). The city clerk received an application from JAMRO seeking the use of tax increment financing for the project, and the application proposed public improvements for the project. The ordinance included findings that the improvements in the TIRZ will significantly enhance the value of all the taxable real property in the TIRZ and was in compliance with Texas Tax Code Chapter 311. However, before the city signed any agreements with developers or the TIRZ board, the city terminated the zone. JAMRO sued for breach of contract and a host of other claims asserting the city was performing a proprietary function, that city officials were the ones who originally approached JAMRO about the zone and it relied upon the city’s initial actions in creating the zone to its detriment. JAMRO made changes to its plans and specifications at the city’s request and completed the construction but was never notified the TIRZ had been terminated. The city filed a plea to the jurisdiction which the trial court granted. JAMRO appealed.

Governmental functions are “functions enjoined on a municipality by law . . . to be exercised by the municipality in the interest of the general public.” JAMRO argues the city’s actions were proprietary because it sought out a specific private developer “to spur development in a specific area of town for the benefit of only those inhabitants and the City itself.” Chapter 311 of the Texas Tax Code also known as the Tax Increment Financing Act gives the city the authority to create reinvestment zones to promote development or redevelopment of an area that would not occur solely through private investment. The city’s ordinance allowed the use of tax increment financing for proposed public improvements for the project including streets, drainage, water, sewer, etc., which are statutorily defined as governmental acts. The city’s ordinance contained express findings that the TIRZ met the criteria for a reinvestment zone contained within the Tax Code. After analyzing the Tax Code provisions and the definitions of governmental and proprietary functions contained within the Texas Tort Claims Act, the court held the city’s actions were directed at financing public improvements and were governmental functions. The city was entitled to immunity, and the plea was properly granted.*

Substandard Buildings: Topletz v. City of Dallas, No. 05-16-00741-CV, 2017 WL 1281393 (Tex. App.—Dallas Apr. 6, 2017) (mem. op.). This is an interlocutory appeal of the trial court’s order granting a temporary injunction requested by the City of Dallas.

Dennis Topletz owns and/or manages approximately 225 rent houses in the city. The City of Dallas filed suit against Topletz for a variety of code violations and for maintaining nuisance properties. After the city filed its lawsuit, Topletz sent a letter to its tenants directing them to refuse to allow any city inspectors to enter their houses and to tell city inspectors there were no issues with their houses that needed to be addressed.

Two tenants, James Choice and Reneka Towers (tenants) intervened in the city’s lawsuit alleging violations of the Texas Property Code and Deceptive Trade Practices Act. Shortly after the tenants intervened in the suit, Topletz sent someone to the tenants’ homes asking them to sign documents stating their rent house complied with city codes and the tenants were satisfied with the condition of the house. After this encounter, the tenants amended their petition to include an application for a temporary restraining order, temporary injunction, and permanent injunction. The city joined in the tenants’ application for a temporary restraining order and a temporary injunction. The trial court granted the relief requested by the tenants. Topletz filed this interlocutory appeal.

Topletz raised six issues contending that the temporary injunction should be vacated or modified. The only issue the court found compelling was that the injunction improperly enjoins Topletz from engaging in lawful activities and exceeds the scope of the pleadings. Because the injunction would prohibit Topletz from raising rent, properly initiating eviction proceedings, or carrying out evictions, the court concluded that the injunction enjoins activities Topletz otherwise has a legal right to perform. Thus, the injunction is too broad. The court modified the temporary injunction order to delete the paragraph and affirmed all other portions of the trial court’s temporary injunction order.

Takings: City of Beaumont v. Ermis, No. 09-15-00451-CV, 2017 WL 1178348 (Tex. App—Beaumont Mar. 30, 2017) (mem. op.). This is a demolition/takings case where the Beaumont Court of Appeals reversed the denial of the city’s plea to the jurisdiction and dismissed the case.

Ermis acquired her property interest in 2002 Park Street in 2008. However, in 2007 the city found the structure to be a dangerous structure and scheduled it for demolition. The notice that the structure was dangerous came at multiple levels, including an initial order by a field supervisor, an ordinance signed by the acting mayor declaring the property dangerous and a public nuisance, formal mailed notice to the owners of the property in 2007 (the Seymours) that the building must be demolished within 10 days, and a signed certified mail return receipt from the Seymours noting it was received within one week of being mailed. In 2008, the Seymours conveyed the property to Brian Muldrow by special warranty deed. The city submitted evidence that Muldrow and Ermis were married at the time of the conveyance. In 2010, Ermis filed suit challenging the ordinance and declaration for demolition. The city filed a plea to the jurisdiction, which the trial court denied. Afterward, Ermis sued several city officials including the assistant city attorney who had done work on the matter. They appeared, joined the city’s plea which was already denied, and requested the court rehear the plea. The court denied their requests and the city defendants appealed.

The court first declared the city’s actions were governmental not proprietary, although they assert Ermis did not argue they were proprietary, so it’s unclear why they brought it up. Ermis did not own the structure at 2002 Park Street when the city declared it dangerous and ordered that it be repaired or demolished. Her pleadings must establish she had standing to pursue her claims against the city for issuing Ordinance Number 07-105 and for the decisions she alleged the city made afterwards. Ermis’ pleadings state she knew the city had declared the property a dangerous structure and ordered it demolished before she and her husband acquired the property. Under Texas law, the injury occurred when the city declared the structure on the property dangerous and ordered it demolished. At that time, Ermis did not own it and nothing indicates she acquired such a claim from the Seymours as part of the purchase. Her standing cannot rest on rights owned by the Seymours in the absence of an express assignment.  Subsequent purchasers of a property cannot recover for injuries to the property that were committed prior to their purchase. Further, given the facts alleged by Ermis, the standing deficiencies cannot be cured by repleading. But even if they could, she was already given ample opportunities to replead and did not. As a result, the plea should have been granted.  The remainder of the opinion deals with whether the court had jurisdiction over the individual city defendants’ appeals. The court holds it did not so dismissed the appeals to await an appealable order.

Justice Johnson concurred but wrote separately as she felt the proper analysis was to examine the language of Chapter 214 of the Texas Local Government Code, the mechanism used by Ermis to sue originally. Section 214.0012(a) states that “[a]ny owner, lien holder, or mortgagee of record of property . . . ” may sue to declare an order illegal. Ermis does not qualify under the statute since she did not own the property at the time of the injury and therefore has no standing. Additionally, the owner has 30 days to seek judicial review, which did not happen. Further, Section 214.001(e) expressly provides notice of a demolition order is binding on subsequent grantees and lienholders if filed in the public records office, which occurred.*

Tort Claims: Port of Beaumont Navigation Dist. v. McCarty, No. 09-16-00356-CV, 2017 WL 1089604 (Tex. App.—Beaumont Mar. 23, 2017) (mem. op.).  This is a Texas Tort Claims Act case where the Beaumont Court of Appeals reversed and rendered in part, and reversed and remanded in part a trial court’s order on a plea to the jurisdiction.

Plaintiff McCarty alleges he was injured when the car he was driving was struck by a train at a crossing leased to the Port of Beaumont Navigation District (port). He asserts an unreasonably dangerous condition existed at the crossing, the port knew or should have known of the condition, and failed to properly warn him. Essentially he asserts the crossing is at a curve in the tracks and the crossing tracks and inadequate lighting did not let him see the oncoming train. The port filed a plea to the jurisdiction asserting it did not possess the premises, and that it merely held a roadway easement to the crossing. The port also asserted McCarty ran the stop signal and collided with the train. The trial court denied the plea and the port appealed.

In analyzing whether or not the pleadings indicate a special defect or an ordinary premise defect, the court held the question turned on the objective expectations of an ordinary user of the roadway. The court held: “In our opinion, an ordinary user on a road that crosses railroad tracks at a crossing equipped with a crossbuck—the familiar black-and-white, X-shaped signs that read ‘RAILROAD CROSSING’—is expected to cross railroad tracks only after looking for trains to determine if any trains are in hazardous proximity to the crossing.” The mere presence of railroad tracks and the transitory nature of a train passing through a crossing is unlike an obstruction or excavation and nothing indicates the tracks caused the accident. As a result, no special defect exists. Under a theory of a premise defect regarding the tracks or land, McCarty was unable to establish the port breached any duty. The evidence established signs were present near the crossing that provided warnings about the presence of trains at the crossing.  As a result, the plea should have been granted as to all claims regarding the tracks.  However, under an inadequate lighting premise defect theory, the court was not convinced the record established or negated such a claim. The court went over each way McCarty could establish a waiver and each way the port could negate it and held it could not establish either determination based on the record. As a result, it remanded the inadequate lighting claim to allow McCarty the ability to replead.*

Immunity: Hidalgo Cty. v. Herrera, No. 13-15-00167-CV (Tex. App—Corpus Christi Mar. 30, 2017) (mem. op.). This is a wrongful death claim brought under the Texas Tort Claims Act where the Thirteenth Court of Appeals reversed the denial of the county’s plea to the jurisdiction and dismissed the case.

This is a companion case, of sorts, to a case the Thirteenth Court of Appeals issued on March 14. The family of Reynaldo Herrera sued various entities resulting from a vehicle accident. A City of Pharr police officer attempted to make a traffic stop for violations of the Transportation Code, only to have the suspect vehicle flee. Various entities joined the pursuit as the fleeing vehicle went through different jurisdictions. The city’s officer eventually disengaged his pursuit but the other agencies continued. While being pursued by law enforcement, including sheriff’s deputies of Hidalgo County, the suspect vehicle struck Herrera’s vehicle, killing him. The companion case was against the City of Pharr and resulted in the city defendants’ plea being granted since the city’s officer disengaged the pursuit prior to the collision with Herrera. This case encompasses the sheriff’s deputy who followed the suspect vehicle until it struck Herrera’s vehicle. The county filed a plea to the jurisdiction which the trial court denied. The county appealed.

The court first held that for purposes of analysis, it assumed (without deciding) that Herrera’s death “arises from” the deputy’s operation of a motor vehicle and that the need to apprehend the suspect presented an “emergency situation” under Texas Local Government Code Section 101.055(2). The county’s immunity remains intact unless Deputy Ortega acted with reckless disregard for the safety of others. The court noted that any pursuit by police invariably creates some degree of risk to the public of a collision. Therefore, the mere fact a pursuit exists is not ipso facto evidence of reckless disregard. Next, Deputy Ortega’s affidavit established undisputed evidence of key facts including the grounds on which the pursuing officers believed it was a possible narcotics transport, the high speed at which the suspect vehicle was being driven, the fact Ortega did not know the city police officer had disengaged pursuit, the distance the suspect was from Ortega and the road configurations preventing Ortega from quickly overtaking the suspect vehicle, the traffic conditions Ortega observed, and Ortega’s actions while he searched for the suspect on dirt roads. While searching for the suspect vehicle Ortega came upon the accident scene after the collision had occurred. Witness affidavits established the collision occurred at least two minutes before Deputy Ortega arrived at the scene. To counter this evidence, the plaintiffs only submitted the report of a police expert stating Deputy Ortega should not have joined the pursuit if he knew it was only based on a minor traffic offense.  However, the court determined the expert report offered only conclusory opinions regarding Ortega’s deliberate indifference. Based on this uncontroverted evidence, the court held Ortega was not deliberately indifferent, but operated his vehicle with due regard for the safety of the public. As a result, the county retains its immunity and the plea should have been granted.*

Age Discrimination: Kaplan v. City of Sugar Land, No. 14-15-00381-CV, 2017 WL 1287994 (Tex. App.—Houston [14th Dist.] Apr. 6, 2017). In this case, Leon Kaplan sued the City of Sugar Land for age discrimination under the Texas Commission on Human Rights Act, Texas Labor Code Section 21.051, after Kaplan’s employment with the city was terminated in 2011. The city filed a motion for summary judgment on Kaplan’s age-discrimination claim, and the trial court granted the city’s motion and dismissed Kaplan’s suit with prejudice. Kaplan appealed.

On appeal, the court found that the trial court properly granted summary judgment in favor of the city. According to the court, Kaplan established a prima facie case of age discrimination by showing that he was a member of the class protected by the Texas Commission on Human Rights Act, that he was qualified for his position, and that he was terminated from his position and replaced by someone younger than him. However, the court found that the city conclusively proved legitimate, nondiscriminatory reasons for firing Kaplan, as the city provided several instances of Kaplan’s poor work performance. Further, Kaplan offered no evidence that the city’s reasons for firing him were a pretext for unlawful discrimination. The court overruled Kaplan’s sole issue on appeal and affirmed the trial court’s final judgment.

*Case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to