Recent Texas Cases of Interest to Cities

Note: Included cases are from March 11, 2018 through April 10, 2018.

Employment: Alamo Heights Indep. Sch. Dist. v. Clark, No. 16-0244, 2018 WL 1692367 (Tex. April 6, 2018). This is a workplace same-sex discrimination, harassment and retaliation case where the Texas Supreme Court held that while the actions complained of were vulgar, they were not motivated by an illegal purpose. Warning, this is a 66-page majority opinion. So, the summary is a bit long.

The Alamo Heights Independent School District (AHISD) employed Catherine Clark as a coach.  Clark asserts her fellow female coach, Monterrubio, began sexually harassing her by making continuous comments about her body. Clark filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).  The principal placed Clark on an intervention plan. Monterrubio was transferred to another campus. However, Clark was ultimately terminated and filed suit. AHISD filed a plea to the jurisdiction which was denied. At the intermediate court of appeals, the panel held the high frequency of the non-severe comments nevertheless created a hostile environment centered around Clark’s gender and affirmed. The Texas Supreme Court granted review.

The facts take up a large section of the opinion. However, the key factual points of note are that Monterrubio would often comment about Clark’s boobs and appearance. Monterrubio would also comment about her own sex life to male and female employees, including sexual escapades involving three men in three nights. She would send vulgar cartoons intended to be humorous.  The court noted the multitude of other events were not sexual in nature, but were merely rude or crass. Monterrubio’s behavior was the same whether it was addressed to a male, female, parent, teach or student. AHISD investigated Clark’s complaints each time, either at the campus level or district level. At one point, the district did transfer Monterrubio to a different campus. However, Clark continued to have personality conflicts with other employees and her performance was continuously documented as being low. AHISD eventually terminated Clark.

The court went through a very detailed analysis of same-sex harassment standards under Title VII and the Texas Commission on Human Rights Act (TCHRA). Citing the seminal case of Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held Title VII’s protection against workplace discrimination “because of . . . sex” applies to harassment between members of the same gender. The court recognized same-sex discrimination cases are more complicated because of their nature. In addition to sexual desire, the court noted a same-sex case can be established by showing general hostility to a particular gender in the workplace or direct comparative evidence of treatment of both sexes. However, all of the methods require conduct to have more than offensive sexual connotations, but to be discriminatory because of the gender.

The court stressed and restressed that the context of the workplace and the individual acts is critical to an analysis of the sexual desire method. Clark never alleged, and no evidence established, Monterrubio was homosexual and none of the contexts demonstrate any sexual desire towards Clark, so the sexual desire method was disposed of. Next, the court noted there was no evidence of a general hostility towards women. None of the record “even hints” that Monterrubio’s behavior, characterized as mistreatment of men and women alike, evinces hostility towards women in the workplace. Finally, the court noted there was no evidence of a comparative discrimination. The court held comments about gender-specific anatomy, alone, does not create an inference of harassment.  Clark made over 100 wide-ranging complaints about Monterrubio and only a handful were about gender-specific anatomy. Focusing “only on gender-specific anatomy and ignoring motivation is legally unsound and is a misreading of Oncale.” Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.  Motivation, informed by context, is the essential inquiry. Under the retaliation claim, the court held that permitting a retaliation case, predicated on a but-for analysis, to proceed to trial when the prima facie case has been rebutted and no fact issue on causation exists “defies logic.”  To qualify as a protected activity, complaining of harassment is not enough. The complainer must show some indication gender is the motive.  Therefore, none of Clark’s internal complaints constitute protected activity. However, the EEOC complaint does qualify as protected. The TCHRA does not protect employees from all forms of retaliation, only those actions which are materially adverse. The only actions taken against Clark which qualified was placing her on an intervention plan and the eventual termination. However, Clark failed to establish causal link between either of these actions and her EEOC complaint. Eight months elapsed between the EEO charge and recommendation for termination. Such is too long in this situation. Further, nothing shows the stated reasons for Clark’s termination were false. It is undisputed Clark failed to follow lesson plans, failed to maintain student grades properly, and had low performance reviews. An employer is not forbidden from addressing performance issues involving employees who have engaged in protected activity, including following through on known pre-existing issues. As the jurisdictional analysis for the plea requires a full analysis of the factual issues, and Clark failed to carry her burden, the plea should have been granted.

The majority’s opinion spends the last several pages responding to the dissent’s analysis, calling the legal theories flawed and the listing of facts a distortion. The court held the purported harassment is “repugnant and unacceptable in a civilized society. But we cannot step beyond the words of the statute . . . . ”  Plaintiff’s claims were therefore dismissed.*

Texas Tort Claims Act: City of San Antonio v. Tenorio, No. 16-0356, 2018 WL 1441791 (Tex. March 23, 2018). An officer of the San Antonio Police Department (SAPD) was involved in a high speed pursuit wherein the fleeing suspect entered a freeway going the wrong way. Once the suspect entered the freeway, SAPD stopped pursuit. The suspect continued driving and struck another vehicle. Tenorio, an occupant of that vehicle, sued the city. The city filed a plea to the jurisdiction asserting it failed to receive notice under the city’s charter, which requires written notice of a claim within ninety days after the injuries or damages were sustained. The trial court denied the plea and the Fourth Court of Appeals affirmed. The City of San Antonio filed an interlocutory appeal with the Texas Supreme Court.

The city argued that the Fourth Court of Appeals applied an erroneous standard. The city maintains that the correct standard is whether it was subjectively aware that some fault on its part caused the collision, not whether it was subjectively aware that it simply played a role in producing or contributing to it. The city maintains that the crash report listing “fleeing or evading police” as a contributing factor to the collision does not raise a fact issue as to whether the city was at fault in causing it.

Tenorio responded that the court of appeals used the proper standard. In her view, the appeals court used the phrase “played a role” to point out that fault is not synonymous with liability in the context of determining actual notice but to imply some responsibility for the injuries claimed. She also argued that the city confused fault with complete liability, meaning that the duty improperly views fault in this context as referencing the city being exclusively at fault. Lastly, Tenorio argued that the court of appeals correctly held that because the crash report listed “fleeing or evading police” as a contributing factor to the collision, there was a fact issue as to whether the city had subjective awareness of its fault.

The Texas Tort Claims Act (TTCA) requires written notice not later than six months after the day that the incident giving rise to the claim occurred with additional notice requirements that can be applied by a city ordinance or charter.  However, written notice is not required if the city has actual notice. To have actual notice, a governmental unit must have the same knowledge it is entitled to receive under the written notice provisions of the TTCA. Actual notice is a fact question when the evidence is disputed, but it is a question of law when the evidence is undisputed. Also, if a governmental unit investigates an accident, whether the information acquired through its investigation meets the actual notice requirements of the TTCA depends upon the particular facts of the case.

The Texas Supreme Court reviewed the information presented by the city which included the SAPD’s investigative report concerning the pursuit and witnesses statements at the time. The court focused on the part of the report and witness statements about the SAPD calling off the pursuit once the suspect drove the wrong way on to the freeway.  The court found that though Tenario correctly asserted that the city did not believe that its employees were negligent in this case, this does not make the city subjectively aware of its fault in causing the crash and Tenario’s injuries. Therefore, the city did not have actual notice under the TTCA and governmental immunity does apply.  The court granted the petition for review, and without hearing oral argument, reversed the judgment of the court of appeals and rendered a judgment dismissing the cause for want of jurisdiction.

Economic Development/Election Contest: Betrand v. Holland, No. 01-16-00946-CV, 2018 WL 1720742 (Tex. App.—Houston [1st Dist.] Apr. 10, 2018) (mem. op.). The City of Friendswood held a special election on May 7, 2016, to authorize a Type B economic development sales and use tax to fund local economic development. The measure passed. Appellants/contestants filed suit challenging the validity of the election arguing that: (1) the ballot language was misleading in that it “did not expressly notify voters that approving the ballot item would approve the formation of a[n] [economic development] corporation which would have separate administrative costs and could have separate staff than the City and the collected taxes would pay for such corporation and overhead versus taxes being directly used for improvements”; and (2) a specific precinct was omitted from the ordinance calling the election. Both parties filed a motion for summary judgment. The trial court granted summary judgement for the city and dismissed the election contest. The contestants appealed.

First, the contestants argued that the ballot was not sufficient because Section 505.251 of the Local Government Code requires voters to approve a sales and use tax “to be used for the benefit of a corporation.” Contestants contend that the city’s failure to specify on the ballot that the tax would be used for the benefit of a corporation did not capture the “measure’s essence” because it omitted the crucial details about how their votes would provide the necessary statutory authorization to levy a sales and use tax to benefit an economic development corporation. The issue that has to be addressed to determine the sufficiency of a ballot is whether the ballot “sufficiently submits the question . . . with such definiteness and certainty that the voters are not misled.” Dacus v. Parker, 466 S.W.3d 820, 826 (Tex. 2015).  Not every detail needs to be on the ballot, and short, general descriptions are often acceptable, but the ballot must identify the measure by its chief features, showing its character and purpose. Id. The test to determine inadequacy is whether the ballot language: (1) affirmatively misrepresents the measure’s character and purpose or its chief features; or (2) misleads the voters by omitting certain chief features that reflect its character and purpose. Id. at 826.

The First Court of Appeals concluded that the ballot wording was sufficient under Dacus because it stated that it would adopt a Type B sales and use tax; the tax would be under Chapter 505 of the Local Government Code that specifically deals with Type B economic development corporations; and that it would “promote new or expanded business enterprises in the downtown area … including but not limited to … maintenance and operations expenses”. The ballot identified the general purpose of the measure, and it substantially submitted the measure to the voters with sufficient definiteness and certainty, without misrepresenting or omitting “chief features that reflect its character and purpose.”

The court next addressed contestants argument that the city “failed to identify one of its precincts in the ordinances calling the election” in violation of Section 42.061(a) of the Texas Election Code. Section 42.061(a) of the Texas Election Code provides “[t]he governing body of a political subdivision other than a county shall establish the election precincts for elections ordered by an authority of the political subdivision.” “The precincts may be established before each election or, once established, remain established until changed, at the governing body’s discretion.” Tex. Elec. Code § 42.061(b). The court found the contestants were misinterpreting the Election Code.  It does not require any particular ordinance relating to an election to list the precincts eligible to vote, nor does it mandate that the way to “establish precincts” is to list them in all ordinances related to an election. So long as the city has established elections precincts before each election or in the past, Section 42.061 is satisfied.  The court overruled this argument and affirmed the trial court’s judgment.

Public Information Act: Ramirez v. Wells, No. 01-17-00262-CV, 2018 WL 1474201 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018) (mem. op.). This is a Texas Public Information Act (PIA) suit where the First District Court of Appeals in Houston affirmed the trial court judgment in favor of the court administration defendants.

Ramirez was removed from the eligibility list to receive criminal court appointments in the Harris County Criminal Courts at Law, after having been on the list for some time. Ramirez filed a PIA request to see all records related to his removal. Ed Wells, the court manager, informed him the judiciary is exempt from the PIA and the rules of judicial administration protect release of internal deliberations of the court. The question under Rule 12 is whether the documents are court administrative files versus judicial records. Ramirez appealed to the Office of Court Administration (OCA), arguing that the decision to remove him from the list was an administrative decision, and thus, the information he requested did not constitute judicial records. The OCA agreed they were administrative, but determined it only had authority over judicial records so could not grant Ramirez any relief. Ramirez filed a petition for writ of mandamus under the PIA to compel release of the records. After opposing summary judgments, the trial court granted Wells’ motion for summary judgment. Ramirez appealed.

Under the PIA, the judiciary is specifically excluded in the PIA’s definition of “governmental body.”  Access to information collected, assembled, or maintained by or for the judiciary is governed by the rules adopted by the Supreme Court of Texas or by other applicable laws and rules. The record demonstrated that regardless of whether the records were “judicial” or “administrative” they qualify as “information produced, maintained, or assembled by the judiciary.”  Access is therefore not governed by the PIA. Since Ramirez’ petition only seeks mandamus under the PIA, the trial court properly denied his summary judgment.*

Concealed Handguns: Holcomb v. Waller Cty., No. 01-16-01005-CV, 2018 WL 1321132 (Tex. App.—Houston [1st Dist.] Mar. 15, 2018). This is a concealed handgun/courthouse civil suit where the First District Court of Appeals reversed a declaratory judgment for the county.

The Waller County Courthouse houses civil and criminal courts as well as county offices. Outside, the county has a sign, pursuant to Penal Code Section 30.06, indicating it is a criminal violation for a concealed handgun license holder to enter the courthouse carrying a concealed handgun.  Holcomb, a license holder, followed the procedure in Texas Government Code Section 411.209(a), to put the county on notice that he believed the sign was used improperly since it prohibited carrying a handgun in all areas of the courthouse, not just areas accessible to the courts. In response Waller County sued Holcomb seeking a declaratory judgment his interpretation of the statute was incorrect. The trial court denied Holcomb’s plea to the jurisdiction and granted the county’s requested relief. Holcomb appealed.

Holcomb’s letter to the county providing notice of an ostensible violation of Section 411.209(a) is the basis for the county’s suit against him. As a matter of law, however, writing a letter to a political subdivision to complain about perceived unlawful action does not create subject-matter jurisdiction. Holcomb had a statutory right to notify the county of his contention. Even in the absence of a statute, he had a constitutional right to complain. Holcomb’s letter therefore does not constitute a redressable wrong. Further, no harm has befallen the county due simply to the letter. Since the Texas attorney general has the exclusive right to seek enforcement, any legal dispute over the lawfulness of the county’s signage would be between the county and the attorney general, not Holcomb. Waller County effectively sought and obtained a declaratory judgment in its favor as to its disagreement with the attorney general without making that office a party. Because only the attorney general has the authority to decide whether a suit for violation of Section 411.209(a) is warranted, the attorney general was a necessary party and the judgment rendered was an impermissible advisory opinion. Finally, since the county utilized the suit to impact Holcomb’s statutory and constitutional right to complain about perceived unlawful action, its actions entitled Holcomb to attorney’s fees under the Citizens Participation Act (CPA). The declaratory judgment of the trial court is reversed, and the case is remanded for the sole purpose of awarding Holcomb attorney’s fees.

Justice Jennings concurred regarding the lack of subject-matter jurisdiction for the county to sue Holcomb. However, he dissented as to the remand, noting that if no jurisdiction exists, the trial court could not grant the motion to dismiss under the CPA. It would be improper for the trial court to award attorney’s fees in such a case.*

Age/Sex Discrimination: City of Granbury v. Willsey, No. 02-17-00343-CV, 2018 WL 1324774 (Tex. App.—Fort Worth Mar. 15, 2018) (mem. op.). This is an age/sex discrimination and retaliation case where the Fort Worth Court of Appeals affirmed-in-part and reversed-in-part the order denying the city’s plea to the jurisdiction.

Willsey worked for the city for over seventeen years, including nine years as a police officer and almost nine years as a public works inspector. In 2016, the city eliminated her inspector position but reassigned her to be a permit clerk. Three days after she inquired as to how long before her retirement would vest, the city terminated her. The city asserts the inspector and the permit clerk position were eliminated and absorbed into the existing number of employees. The city filed a combined answer/plea to the jurisdiction. The trial court denied the plea. The city appealed.

The court went through a detailed point-by-point prima facie analysis. To be successful in an age discrimination claim, a plaintiff must plead that she was either: (1) replaced by someone outside the protected class; (2) replaced by someone younger; or (3) otherwise discharged because of her age. Willsey did not plea or establish she was qualified for the inspector position, only that she was eliminated. Simply because she was an inspector for nine years does not equate to her continued qualifications for the position. The same goes for her sex discrimination claims. Under the retaliation claims, Willsey asserts that the city pursued her after her termination by “making up false accusations against her and seeking criminal charges against her” for stealing records, interfering with her future employment. However, the court responded “[e]ven construing Willsey’s pleadings liberally in her favor, we are left to guess what the protected activity is that Willsey participated in prior to her termination that the final decision-maker for the city was aware of and the causal link between that protected activity and her termination.”

The court then analyzed whether the lack of pleading sufficiency could be cured by allowing her the ability to amend. Because this is a reduction-in-force case rather than a true replacement case, and the city’s arguments focus on a replacement case, it has not established an amendment would be futile. As a result, the case was remanded to allow the trial court to allow an amendment after some level of discovery has occurred.*

Signs: National Media Corp. v. City of Austin, No. 03-16-00839-CV, 2018 WL 1440454 (Tex. App.—Austin Mar. 23, 2018) (mem. op.). The dispute began in 2009 when National Media acquired the sign rights, relocation rights, interests and entitlements in an off-premise advertising display located on real estate owned by a third party, Anchor Equities, Ltd.. Soon after, National Media filed an application with the City of Austin to register the sign as a “non-conforming off-premise sign.” Current city ordinances prohibit off-premise signs in all districts, “[u]nless the accountable official determines that the sign is a nonconforming sign.” 

On November 19, 2009, the city issued “notices of violation” to both National Media and Anchor Equities, and issued a “notice of denial of registration” to National Media. These were issued based on the findings of a city investigation. The investigation found the sign had been dismantled in 2003, with the exception of three support poles. In 2009, National Media built a new sign in its place. Because the sign was dismantled more than five years before reconstruction work began and no permit was obtained, the new sign was in violation of the city’s sign code. National Media filed a lawsuit against the city seeking declaratory relief under the Uniform Declaratory Judgments Act (UDJA) and a determination that it was entitled to register the sign. The city filed three pleas to the jurisdiction, each of which was denied by the trial court.

In 2011, after the city’s third plea to the jurisdiction had been denied by the trial court, the city issued a formal “use determination” to National Media that determined the construction, installation, or maintenance of an off-premises sign at the site does not qualify as a non-conforming use under the city’s zoning code. National Media appealed to the city’s board of adjustment, which upheld the city’s determination. In response, National Media added to its pleadings a request for judicial review of the board’s decision.

Both parties filed cross-motions for summary judgment. The trial court dismissed all of National Media’s claims and found that the board’s ruling in favor of the city was improper and illegal because it misapplied zoning codes. While that appeal was pending before the court, a third-party contractor employed by National Media razed the sign in connection with the construction of apartments on the site.

National Media requested declarations by the court that it was entitled to relocate the sign, and that by denying its right to do so, the city was acting unlawfully. In addition, they asserted a takings claim. The trial court granted National Media’s motions for partial summary judgment, later conducting a bench trial on damages and rendering a final judgment.

Both parties appealed this final judgment. In cross-appeals, the parties dispute the trial court’s decision to deny the city’s plea to the jurisdiction and the final judgment awarding National Media Corporation declaratory relief and damages for their regulatory-taking claim.

The city’s plea challenged the trial court’s authority to determine that National Media was entitled to register and relocate the sign and that the restrictions imposed by the city constituted a regulatory taking under state and federal law. National Media alleged neither a physical taking of its property by the city nor did it challenge the constitutionality of its sign ordinance. Rather, National Media argued that the city illegally applied and enforced its zoning ordinances. This effectuated a total regulatory taking of its property interest in the sign. The court ruled that National Media’s claims did not trigger a waiver of immunity, citing the absence of a properly pled takings claim and the plaintiffs’ failure to challenge property-use restrictions.

To have a property interest in a governmental benefit such as a permit, a person must have more than a unilateral expectation of that benefit. National Media’s expectation of a permit is not a protected property interest, and the receipt of a permit is not a matter of right. National Media does not dispute its violation of registration requirements, one of which was the requirement that National Media register its sign with the city by August 21, 1999, or within 180 days after their purchase. According to the city’s ordinance, a “sign owner may not replace or relocate the sign if it is dismantled before an application for a permit authorizing the replacement or relocation is filed.” Unless properly registered, such determinations are within the province of the city.

The court reversed the trial court’s denial of the city’s plea to the jurisdiction, and granted the city’s plea to the jurisdiction while dismissing all of National Media’s claims.

Texas Tort Claims Act: Ramos v. City of Laredo, No. 04-17-00099-CV, 2018 WL 1511875 (Tex. App.—San Antonio Mar. 28, 2018). This is a Texas Tort Claims Act (TTCA) case where the San Antonio Court of Appeals reversed a jury verdict and rendered judgment against the city.

While Ramos, a motorcyclist, was making a left-hand turn into the park he was struck by another motorcycle with flashing lights attempting to exit the park in the wrong lane driven by an individual Ramos asserted was named Guerra. Guerra is a police officer with the City of Laredo. Ramos sued the city and Guerra. The city claimed that Guerra was on leave on the date of the accident, was not involved in the accident, and was not acting in the course and scope of his employment at the time of the accident. But the city also asserted Guerra must be dismissed under Section 101.106(e) of the TTCA.   In response to the city’s plea to the jurisdiction and motion to dismiss, Ramos non-suited Guerra with prejudice. Guerra testified he was at home, asleep, at the time of the accident. At trial, over Ramos’ objections, the court submitted a question to the jury on whether Guerra was acting within the course and scope of employment.  The jury returned a verdict Guerra was negligent and liable but was not acting within the course and scope of his employment. Ramos appealed the verdict.

Section 101.106(e) of the TTCA is titled “Election of Remedies” and provides that when a claimant files suit “under this chapter” against both a governmental unit and its employee, the employee shall immediately be dismissed from the suit upon the filing of a motion to dismiss by the governmental unit. By filing a Section 101.106(e) motion to dismiss, a governmental unit “effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.” Thus, when the city requested that Guerra be dismissed pursuant to Section 101.106(e), the city confirmed Ramos’s allegation that Guerra was acting in the scope of employment at the time of the accident and agreed to vicariously defend its employee. Because of the election by the city to be held responsible for its employee in its plea, the court held the city was bound to its judicial admission that Guerra was acting in the scope of employment at the time of the accident.

Justice Barnard wrote separately only to emphasize that the Fourth Court prognosticated this type of argument in 2011 and cautioned entities not to shift arguments mid-stream trying to avoid liability. Either the employee is not in the course and scope and no dismissal under Section 101.106(e) applies, or they are in the course and scope and Section 101.106(e) requires a dismissal.*

Zoning: Electro Sales & Svs., Inc. v. City of Terrell Hills, No. 04-17-00077-CV, 2018 WL 1309709 (Tex. App.—San Antonio Mar. 14, 2018) (mem. op.). The dispute began when Electro Sales and Services, Inc. (Electro) bought a strip center consisting of three rental spaces in a single building from Billy and Gin Wei Eng. The strip center had been rezoned from commercial to semi-commercial use in the 1960s. The City of Terrell Hills grandfathered nonconforming commercial use of the suites and allowed the use to continue, unless vacant for more than six months. The middle suite had been vacant for more than six months prior to Electro’s purchase of the strip center. The Engs claim they had informed Electro that the middle suite had lost its nonconforming use rights prior to the sale of the strip center. Elctro disputes this claim.

Electro sent an application to the city to rezone the strip center from semi-commercial to commercial. The city considered the application but, ultimately, denied it. During this time period, the city council amended its ordinance to allow for the issuance of special use permits. The amended provisions contained an application process and procedures for considering special use permit applications. Such applications were required to be accompanied by a site plan and meet other specific requirements. Electro then sent the city a second rezoning request for a special use permit for a barber shop but failed to submit the required site plan, so the permit was denied.

Another similar business was granted a special use permit by the city. This prompted Electro to file suit against the city and the Engs. They alleged regulatory taking and declaratory judgment claims against the city, and alleged fraud, negligent misrepresentation, and statutory fraud claims against the Engs.

The city moved for summary judgment, asserting traditional and no-evidence grounds. In its summary judgment motion to the trial court, the city challenged the trial court’s jurisdiction to consider Electro’s regulatory takings claim on three grounds. The city argued that because its immunity was not waived and Electro had not alleged a viable claim, the trial court lacked jurisdiction to consider the regulatory taking claim. Electro argued that the city’s denial of their rezoning request denied them all economically viable use of the middle suite or unreasonably interfered with their rights to use and enjoy the property. The trial court granted the city’s motion. The claims against the city were severed into a separate cause, making the order final and appealable. Electro appealed.

The court of appeals noted that it was undisputed that Electro continued to receive income from the rental of the two end suites, and Electro produced no evidence that the strip center was rendered valueless by the city’s denial of the rezoning request. Thus, the court concluded that the zoning of the strip center could not have interfered with Electro’s investment-backed expectations because the zoning was in existence when Electro purchased the property. The court further concluded that the city’s denial of Electro’s rezoning request could not qualify as a physical taking, given the failure to produce any evidence to substantiate this claim. Finally, the court affirmed the trial court’s ruling, recognizing its jurisdiction to render judgment in the matter of the city’s no-evidence motion for summary judgment on the regulatory claim.

Public Information Act: Miller v. Gregg Cty., No. 06-17-00091-CV, 2018 WL 1386264 (Tex. App.— Texarkana Mar. 20, 2018). This is a Public Information Act (PIA) lawsuit in which the Texarkana Court of Appeals flipped back and forth between sections of the Texas Government Code before modifying the trial court’s order regarding release of certain records held by Gregg County.

Miller sought a PIA request to allegedly “expose the depth and degree of the intimate relationships” between City of East Mountain Police Department officers and deputies of the Gregg County Sheriff’s Office. Miller filed a suit under the PIA seeking a writ of mandamus in County Court at Law #2 to compel Gregg County to disclose certain police phone log information. The county filed a plea to the jurisdiction, which was granted. Miller appealed.

The PIA provides that “A suit filed by a requestor under this section must be filed in a district court for the county in which the main offices of the governmental body are located.” Tex. Gov’t Code § 552.321(b).  “District courts are always the courts of exclusive original jurisdiction for mandamus proceedings unless the constitution or a law confers such jurisdiction on another tribunal.” Miller asserts Section 25.0003(a) of the Texas Government Code states “In addition to other jurisdiction provided by law, a statutory county court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court has concurrent jurisdiction with the district court in: (1) civil cases in which the matter in controversy exceeds $500 but does not exceed $200,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition . . . .” However, the Texas Legislature expressly amended the PIA in 1999 and added the requirement that a suit be brought in district court. The court of appeals held this created a “condition precedent” to bringing a PIA mandamus action under Government Code Section 311.016(3). The court of appeals stated the question then becomes whether Section 552.321(b) trumps other sections of the Government Code. After a statutory construction analysis, the Texarkana Court of Appeals held Section 552.321(b) does not deprive a county court at law of its jurisdiction under Section 25.0003(a). That being said, the court then analyzed the evidence submitted and the extent to which the county searched for responsive phone records requested. The county presented uncontroverted evidence that no responsive documents exist. As a result, the trial court properly granted the plea, but based on the challenge to jurisdictional facts, not the jurisdiction of a county court at law. The court then modified the judgement, taking out references to dismissal of claims for declaratory and injunctive relief, which were not present in Miller’s prayer for relief.*

Civil Service: City of Amarillo v. Nurek, No. 07-17-00120-CV, 2018 WL 1415406 (Tex. App.—Amarillo Mar. 21, 2018). This is a civil service lawsuit where the Amarillo Court of Appeals reversed-in-part the denial of the city’s plea to the jurisdiction.

In Amarillo, firefighter positions have civil service protection and firefighters are contained within the Fire Suppression Department. However, positions in the City of Amarillo Fire Marshall’s Office (FMO) have traditionally been treated outside the protection. Nurek and Stennett were the highest scoring individuals on the promotional exams for positions of an Investigator I (equivalent rank of lieutenant) and Investigator II (equivalent rank of captain) within the FMO. When they were not offered the positions, they sued to declare the positions subject to civil service protection (and therefore eligible for placement via promotional exam). They also sought instatement in the positions and backpay. The city filed a plea to the jurisdiction which was denied. The city appealed.

Immunity bars a declaratory judgment action seeking a declaration of the government’s liability for money damages.  However, that only addresses the plaintiffs’ claim for backpay. The court held jurisdiction exists for the trial court to examine the city’s failure to classify firefighter positions within the FMO as civil service positions.  Under Section 180.006 of the Texas Local Government Code, immunity is waived “for claims to recover monetary benefits that are authorized by a provision of…” the Civil Service Act. However, the claims asserted do not specify the sections which would authorize the payment in the plaintiffs’ pleadings. “While appellees may prove to be right regarding appellants’ erroneous classification of FMO positions outside of the civil service, it is clear that appellees have not affirmatively pled facts demonstrating that their claims for monetary benefits are authorized by a provision of the Civil Service Act.”  Further, the pleadings do not differentiate between acts of the city and any alleged ultra vires acts of individual officials. Nothing indicates where the city manager is responsible for civil service job classification. The failure to allege sufficient jurisdictional facts to demonstrate the trial court’s jurisdiction gives rise to a right to amend the pleadings, unless the jurisdictional defect may not be cured by repleading. As a result, part of the plea should have been granted and part was proper to deny, but amended pleadings should be ordered.*

Employment: Schovanec v. Assadi-Porter, No. 07-17-00426-CV, 2018 WL 1404494 (Tex. App.—Amarillo Mar. 20, 2018) (mem. op.). This is a due process in employment case where the Amarillo Court of Appeals reversed the denial of Texas Tech University’s plea to the jurisdiction and dismissed the case.

Assadi-Porter was on a twelve-month, non-tenure track as an associate professor at Texas Tech University. She received a notice of termination at one point and was told she could grieve the termination. She asserts she relied upon the advice of human resource personnel and met with her supervisors to contest the termination. By the time she formally grieved the termination, the university deemed her grievance untimely. She sued the university and its president asserting due process violations. The university and president filed a plea to the jurisdiction, which was denied. They appealed.

A two-part test applies to due process claims: (1) does the plaintiff have a recognized liberty or property interest; and 2) if so, what process is due. In the employment context, a recognized property interest exists when an employee can only be dismissed for cause.  Under Texas law, an employment relationship is presumed to be at-will, and an employer may terminate at-will employees “for good cause, for bad cause, or no cause.” An at-will employment relationship creates no property interest in continued employment. A faculty member’s employment is subject to her contract and the school’s operational policies. The university’s policies state that for non-tenure professors, they can either be terminated for cause prior to the expiration of a term or non-renewed at the close of a term. However, the court held the policies must not be read in isolation and the next policy in the manual states the dismissal provision applies only to non-tenured faculty who have served more than six years. Assadi-Porter served for less than two.  As a result, since no specific contract or policy adoption applies to Assadi-Porter; she is presumed to be an at-will employee and has no property interest in continued employment.*

Contractual Immunity: Castle v. City of Victoria, No. 13-17-00013-CV, 2018 WL 1755816 (Tex. App.—Corpus Christi Apr. 12, 2018) (mem. op.). In 2008, Kenneth Castle and the City of Victoria entered into a contract for the transfer of Castle’s water rights associated with property he owned along the Guadalupe River to the city. The city executed a leaseback provision in the contact and a separate lease agreement whereby Castle could divert 108 acre feet of water for irrigation use for 15 years in exchange for annual payments by Castle. In 2015, the Texas Commission on Environmental Quality (TCEQ) notified Castle that he never had the right to legally pump water under the lease provisions because TCEQ had not been notified and because the city had amended the certificate of adjudication from the state and used all the water allotment given under the certificate. Castle sued the city for breach of contract and fraud. The city claimed governmental immunity under a plea to the jurisdiction, which was granted by the trial court.

On appeal, Castle alleged that because the city was acting in proprietary fashion, governmental immunity does not apply. In reviewing the governmental-proprietary distinction in the Texas Tort Claims Act, the court determined that the provisions of the water rights contract would fall into the “waterworks” category of the Texas Tort Claims Act in Texas Civil Practice and Remedies Code Section 101.0215(a)(11). Therefore, Castle’s claims involved the city’s governmental functions.

Castle argued that even if his claims involved governmental functions, the water being leased back to him by the city is a good, not a real estate right, and immunity is therefore waived under Local Government Code Section 271.152. The court found that even if the water leased back to Castle could be considered a good or service, Castle requested damages for “loss of use, lost profits, lost earnings, lost earning capacity, injury to real or personal property, and damages to crops and livestock.” The requested relief is not recoverable under Local Government Code Section 271.153 for a balance due and owing, for additional work, or for any other amount that would fall within the statutory scheme. The court concluded that the city did not waive its governmental immunity for the claims raised by Castle because the contract between Castle and the city did not fall under the provisions of Chapter 271 of the Local Government Code, and affirmed the trial court’s ruling on the city’s plea to the jurisdiction.

*Indicates 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 www.rshlawfirm.com.

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