Recent Texas Cases of Interest to Cities

Note: Included cases are from March 11, 2022 through April 10, 2022.

Elections: In re Anthony, No. 22-0193, 2022 WL 817826 (Tex. Mar. 18, 2022). Linda Anthony, a retiree, left the occupation box blank in her candidate application for the office of Mayor of West Lake Hills.  The city secretary rejected Anthony’s application, concluding that, although she is retired, her failure to list an occupation violates the Election Code. Accordingly, the city secretary excluded Anthony from a place on the ballot as a candidate for mayor.  Anthony petitioned the Supreme Court for writ of mandamus seeking to direct the city secretary to accept her application and place her on the ballot as a candidate for mayor.

The Supreme Court held that Anthony’s application is not defective in failing to list an occupation when she currently has no paid employment and the city secretary had no discretion in rejecting Anthony’s application. Therefore, the court granted mandamus directing the city secretary to accept Anthony’s application and place her on the ballot as a candidate for mayor.

Governmental Immunity: Dohlen v. City of San Antonio, No. 20-0725, 2022 WL 983764 (Tex. Apr. 1, 2022). Would-be customers of Chick-fil-A brought action against the City of San Antonio for declaratory and injunctive relief, alleging that the city council violated state law when it voted to prohibit the opening of a Chick-fil-A in the San Antonio airport based, at least in part, on alleged legacy in anti-LGBTQ behavior. The city raised two jurisdictional challenges: (1) governmental immunity; and (2) lack of standing. The trial court denied both, but the court of appeals reversed on governmental-immunity grounds and dismissed the case.

The Supreme Court held that: (1) the complaint was insufficient to invoke a waiver of governmental immunity; and (2) plaintiffs were entitled to an opportunity to amend their complaint as the complaint did not affirmatively negate the existence of jurisdiction.  Accordingly, the Supreme Court reversed the court of appeals’ judgement and remanded to allow plaintiffs an opportunity to replead.

Tort Claims Act: City of Houston v. Nicolai, No. 01-20-00327-CV, 2022 WL 960650 (Tex. App. Mar. 31, 2022) (mem. op.). The Nicolais sued the City of Houston after their daughter was killed in a crash while being transported in a police car to a sobering center with her hands handcuffed and no seatbelt on.

The city filed a motion for summary judgment, asserting that it was entitled to governmental immunity because the officer driving the vehicle was entitled to official immunity, and therefore would not be personally liable to the Nicolais, so governmental immunity was not waived by the TTCA. The trial court denied the motion and the city appealed.

The appellate court held that the officer was entitled to official immunity because in driving Caroline Nicolai to the sobering center she was acting within the scope of her authority, performing a discretionary duty, and acting in good faith. Because the officer would have been entitled to official immunity, the TTCA does not waive the city’s governmental immunity and the trial court lacked subject matter jurisdiction over the claims. The appellate court reversed and rendered judgment for the city. 

Tort Claims Act: Hung v. Davis, No. 01-20-00746-CV, 2022 WL 1008805 (Tex. App. Apr. 5, 2022) (mem. op.). Fabiola Davis sued Hung, a city public safety officer, and the City of Houston when she and her two minor children were injured when Hung’s city-owned vehicle struck the vehicle Davis was driving.

The city filed a motion to dismiss Hung under the election-of-remedies provision of the Texas Tort Claims Act, relying on Section 101.106(e), which requires mandatory dismissal of an employee if a suit is filed against a governmental unit and any of its employees. Davis nonsuited the city and amended her pleading against only Hung. Hung filed a motion to dismiss, arguing that the court lacked subject matter jurisdiction over the claim because Section 101.106(e) conferred immunity on an employee who is sued with the governmental unit.

The appellate court reasoned that Hung had a statutory right to dismissal under Section 101.106(e) that accrued upon the filing of the city’s motion to dismiss, and that Hung’s right to dismissal was an irrevocable consequence of Davis’s election to sue both the city and Hung. The appellate court reversed and rendered, dismissing Davis’s claims against Hung.

Eight Liners: City of Fort Worth v. Rylie, No. 02-17-00185-CV, 2022 WL 803842 (Tex. App. Mar. 17, 2022). This case was on remand from the Supreme Court to make a determination on the city’s argument that the Texas Penal Code’s fuzzy animal exception does not apply to eight liners because eight liners violate the Texas Constitution. The appellate court determined that eight-liner machines award prizes by chance and for consideration; therefore, eight liners are lotteries. Because the Texas Constitution prohibits lotteries, eight liners are unconstitutional regardless of the fuzzy animal exception. 

Zoning: City of Dallas v. Homan, No. 05-20-01111-CV, 2022 WL 969631 (Tex. App.—Dallas Mar. 31, 2022) (mem. op.). The city received protests from more than 20 percent of the eligible property owners within two hundred feet of a property (Property) seeking a proposed zoning amendment prior to the public hearing. At the hearing, the attorney representing the Property said that one of the protests should be thrown out on a technical issue. Council voted to throw out the protest affidavit, thus reducing the percentage of protestors to below 20 percent so council could pass the zoning amendment by a simple majority instead of three-fourths majority. One of the protestors sued, seeking declaratory relief that the zoning amendment was invalid. The city filed a plea to the jurisdiction and motion for summary judgment, which the trial court denied. The city appealed. The appellate court affirmed the trial court’s denial of the plea and motion for summary judgment, finding: (1) the plaintiff had standing to sue for declaratory relief as a property owner within 200 feet of the Property; and (2) the city’s argument that it could allow the untimely withdrawal of a protest affidavit and then characterize it as something else to avoid triggering the statutorily imposed requirements for notice and a new hearing was without merit.

Public Information Act: City of Georgetown v. Putnam, No. 08-20-00171-CV, 2022 WL 883856 (Tex. App.—El Paso Mar. 25, 2022). Terrell Putnam filed a lawsuit against the City of Georgetown, its mayor, and city manager (collectively, “the city”), to compel the city to provide a specific document to him pursuant to the Texas Public Information Act (PIA). The city had declined to provide the document after receiving an opinion letter from the Texas Attorney General that it was confidential and exempted under the PIA. During the litigation, however, the city voluntarily released the document to Putnam. The city thereafter filed a plea to the jurisdiction, arguing that the trial court lacked subject matter jurisdiction to hear any of Putnam’s claims because the release of the document rendered Putnam’s lawsuit moot, and because Putnam never had a valid claim for relief against the city that waived its immunity. Putnam opposed the city’s plea to the jurisdiction, arguing that he was entitled to a judgment as a matter of law on his claims for declaratory relief under both the PIA and Uniform Declaratory Judgement Act (UDJA), as well as an award of attorney’s fees and costs. The trial court agreed with Putnam.

The appellate court reversed the trial court’s order, finding that: (1) release of the records mooted Putnam’s claims under both the PIA and UDJA; (2) Putnam is not entitled to attorney’s fees under the PIA because he did not substantially prevail in his PIA claim as the city released the records prior to the trial court’s order granting his motion for summary judgement; and (3) Putnam is not entitled to attorney’s fees under the UDJA as the city’s immunity was not waived under the UDJA.

Governmental Immunity: City of Crawford v. DCDH Dev., LLC, No. 13-20-00281-CV, 2022 WL 868056 (Tex. App.—Corpus Christi Mar. 24, 2022) (mem. op.). In 2018, DCDH Development, LLC (“Developer”) and the City of Crawford purportedly entered into a “City of Crawford Developer Agreement” (“Agreement”) which addressed numerous aspects of the development of the Developer’s property, including annexation, subdivision, and the provision of water services. By late 2019, it became clear that the city did not have sufficient water to serve the development, which essentially ended the project. Developer sued the city for breach of the Agreement, promissory estoppel, and several torts. The city filed a plea to the jurisdiction arguing that it was immune from suit, which the trial court denied. The city appealed. The appellate court analyzed the Agreement, focusing on the nature of the agreement rather than the nature of the alleged breaches, and found it to be an agreement for waterworks and the provision of water services, which are governmental functions under the Texas Tort Claims Act. Governmental immunity protects cities from suit or liability when they are acting in their governmental capacity, unless there is an express waiver of immunity. Developer argued that the Agreement was an agreement for goods or services; therefore, immunity was waived pursuant to Section 217,152 of the Texas Local Government Code. The appellate court disagreed with Developer’s waiver argument and reversed the trial court’s dismissal of the city’s plea.

Tort Claims Act: Roades v. Henderson, No. 13-20-00315-CV, 2022 WL 802983 (Tex. App.—Corpus Christi Mar. 24, 2022). Steven Henderson, Robert Popp, and John Roades were volunteer fire fighters in Wharton County. Returning from a fire in separate vehicles on October 2019, Roades’ vehicle struck the vehicle carrying Henderson and Popp, killing Henderson and severely injuring Popp. Popp’s and Henderson’s estate sued Roades for damages, and Roades filed a motion to dismiss pursuant to the Texas Tort Claims Act (“TTCA”), claiming that: (1) he was an employee of a governmental unit; (2) he was acting in the general scope of employment at the time of the accident; and (3) the claim could have been brought against the fire department. Appellees responded that (1) the fire department was not a governmental unit; (2) Roades was not acting in the scope of employment, because he was on his way home; (3) Roades was a volunteer, not an employee; and (4) the claims could not have been brought against the fire department under the TTCA. After a hearing, the trial court denied Roades’ motion to dismiss, and he appealed. The appellate court analyzed whether Roades was a government employee for purposes of the TTCA. Volunteer firefighters, generally, are not employees under the TTCA, because they are not in the paid service of a governmental entity. However, volunteer firefighters are considered an employee under the TTCA while involved in or providing a response involving fire protection or prevention, rescue, or emergency medical or hazardous material response services. Because Roades was driving home at the time of the collision and not providing emergency response, he could not establish that he was an employee of a governmental unit to invoke dismissal of the case.

Tort Claims Act: City of Houston v. Cavazos, No. 14-20-00284-CV, 2022 WL 777327 (Tex. App.—Houston [14th Dist.] Mar. 15, 2022). This case arose from a collision between a vehicle driven by Erika Cavazos (“Cavazos”) and a garbage truck driven by City of Houston employee Esteban Espinoza (“Espinoza”). Cavazos sued the city for personal injuries, and the city filed a plea to the jurisdiction, which was denied by the trial court. Unless waived, governmental immunity can protect a city from suit or liability by defeating a trial court’s subject matter jurisdiction. The Texas Tort Claims Act (“TTCA”) contains a waiver of governmental immunity for personal injury or damages caused by the wrongful act, omission, or negligence of a governmental employee acting within the scope of their employment, if the damage arises from the operation or use of a motor-driven vehicle. At the trial court, the city failed to conclusively prove that Espinoza’s operation or use of the garbage truck did not cause Cavazos’s alleged injuries, so because there remained a question of fact, the appellate court affirmed the trial court’s denial of the city’s plea to the jurisdiction.

Zoning: City of Austin v. Acuna, No. 14-20-00356-CV, 2022 WL 805953 (Tex. App.—Houston [14th Dist.] Mar. 17, 2022). The City of Austin undertook a comprehensive revision of its zoning ordinances and failed to give individual written notice to landowners as required by state statute. A number of landowners sued the city seeking a declaratory judgment and injunctive relief, which was granted by the trial court, and the city appealed. The city argued that the trial court erred in finding that the city violated Texas Local Government Code §§ 211.006 and 211.007 by failing to provide written notice to all affected property owners of the Planning Commission’s public hearing and by failing to recognize property owners’ protest rights. Because the city was undertaking a comprehensive revision of its zoning ordinances rather a change affecting only a few properties, the city believed that individual notice was not required. The court disagreed, stating that the zoning statute’s notice requirement “must be rigidly performed” and that actions taken without proper notice are invalid. The city further argued that requiring the city to send upwards of 250,000 notices would be an absurd reading of the statutes. The court disagreed with this argument as well and affirmed the trial court’s decision.

*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