Recent Texas Cases of Interest to Cities

Note: Included cases are from March 1, 2024, through March 31, 2024.

Appellate Procedure: City of Laredo v. Rodriguez, No. 04-24-00093-CV, 2024 WL 950627 (Tex. App.—San Antonio Mar. 6, 2024) (mem. op.). The trial court granted the plaintiff’s continuance on the city’s plea to the jurisdiction to allow for the taking of pertinent discovery. The city appealed that ruling. The appellate court rejected the city’s argument that the appellate court had jurisdiction because of the implicit denial of its plea to the jurisdiction. The appellate court found it did not have jurisdiction to hear the appeal because: (1) the trial court’s order was not a final judgment; (2) the trial court did not grant or deny the city’s plea to the jurisdiction. Additionally, the city had filed a contemporaneous petition for writ of mandamus, which remained pending.

Tort Claims Act: City of Dallas v. McKeller, No. 05-23-00035-CV, 2024 WL 980356 (Tex. App.—Dallas Mar. 7, 2024) (mem. op.). In 2019, the City of Dallas was notified through a service request that one of its water meter boxes was missing the lid leaving a hole in the sidewalk. Because the repairs could not be made that day, city staff placed a large orange cone over the hole. However, the cone was later removed by an unknown third party, and Evelyn McKeller sustained injuries when she fell into the hole. McKeller then sued the city on the basis of negligence and premises liability. In response, the city filed a plea to the jurisdiction claiming immunity under the Texas Tort Claims Act (TTCA). After a hearing on the matter, the trial court denied the city’s plea to the jurisdiction, and the city appealed.

In its appeal, the city claimed McKeller could not overcome the TTCA’s waiver of immunity for the premises liability claim because it had no actual knowledge that the cone had been removed by a third party. The city relied on Texas Civil Practice & Remedies Code Section 101.060 which states a governmental unit retains its immunity for claims based on the removal of a traffic warning device unless the governmental unit fails to correct the removal within a reasonable period of time after having actual notice. The city further argued that the trial court did not have subject matter jurisdiction over McKeller’s negligence claim separate from the premises defect claim.

As to the premises liability claim, the court of appeals concluded the city had actual knowledge of the defective condition – an open water meter hole. The court reasoned that McKeller’s claim was not based on the failure to replace the cone, and it did not qualify as a “warning device” where it was placed on a sidewalk and not a roadway as required by Section 101.060. As a result, the lower court’s denial of the city’s plea to the jurisdiction was affirmed. However, as to McKeller’s negligence claim, the court of appeals held that because the claim relied on the premises defect in this case, immunity was not waived under the TTCA. For that reason, the court of appeals granted the city’s plea to the jurisdiction and rendered judgment dismissing the negligence claim for lack of subject matter jurisdiction.

Zoning: Badger Tavern LP, 1676 Regal JV, and 1676 Regal Row v. City of Dallas, No. 05-23-00496-CV, 2024 WL 1340397 (Tex. App.—Dallas Mar. 29, 2024) (mem. op.).  This case stems from a certificate of occupancy issued to Badger Tavern, which operated a cabaret in Dallas called La Zona Rosa. In 2021, Badger Tavern applied to the city of Dallas for a certificate of occupancy record change to rename its business to La Zona Rosa dba Poker House of Dallas. During the approval process, there was some indication that Badger Tavern was changing its business operations from a cabaret to a private membership-based poker club. While the city issued the certificate of occupancy record change, it later sent Badger Tavern two notices that it was in violation of the city’s ordinances by failing to obtain the proper certificate of occupancy before changing the use of the property. When Badger Tavern failed to cease operations as a poker club and apply for a new certificate of occupancy, the city sued Badger Tavern seeking injunctive relief.

After a hearing, the trial court granted the city’s request, and Badger Tavern appealed. Badger Tavern argued that: (1) the trial court lacked jurisdiction because the city failed to first exhaust its administrative remedies by appealing to the city’s Board of Adjustment (BOA); (2) the court erred in granting an injunction under Texas Local Government Code Sections 54.016 (applicable to municipal health and safety ordinances) and 54.018 (an action for repair or demolition of a structure) when the city did not request relief under Section 54.018; and (3) the city failed to present sufficient evidence of a “substantial danger of injury or adverse health impact” to support a temporary injunction under Section 54.016.

In affirming the lower court, the court of appeals concluded that because the city was not alleging an error in a zoning decision but instead was enforcing a zoning ordinance violation by Badger Tavern, it was not required to appeal to the BOA. As for the grounds for injunctive relief, the court held that although the city did not present evidence as required under Section 54.016, it also sought temporary and permanent injunctive relief under Texas Local Government Code Section 211.012(c) (zoning ordinance violations and remedies). Because the record reflected that Badger Tavern changed the use of its property without first obtaining the proper certificate of occupancy and failed to cease operations as such, the evidence was sufficient to support temporary injunctive relief under Section 211.012(c).

Immunity: P’ship v. AHFC Pecan Park PSH Non-Profit Corp., No. 07-23-00362-CV, 2024 WL 1185132 (Tex. App.—Amarillo Mar. 19, 2024) (mem. op.). The city, in partnership with a nonprofit, planned to put in housing for the homeless in a hotel. The Chaudhari Partnership (the “Partnership”) and the county attorney sued in separate actions. Once the Partnership learned that the county attorney filed a separate lawsuit, the Partnership intervened and nonsuited the action it initiated with prejudice. The city filed a plea to the jurisdiction, which the trial court granted. Only the Partnership appealed.

On appeal, the court found that: (1) the Partnership failed to address the ground implicating that the Partnership had failed to state a cause of action against the city in its cause of action; and (2) the provision of public housing is a governmental function. The appellate court affirmed the trial court’s dismissal with prejudice.

Workers’ Compensation: City of Stephenville v. Belew, No. 11-22-00273-CV, 2024 WL 968970 (Tex. App.—Eastland Mar. 7, 2024). In 2014, Michael Belew, a firefighter and EMT for the City of Stephenville, passed away after developing pancreatic cancer. His spouse and legal beneficiaries (the Belews) applied for workers’ compensation death benefits under the Texas Workers’ Compensation Act (TWCA), asserting Michael’s cancer originated from his service as a city firefighter. To apply for the death benefit, a claimant proceeds through a benefits review conference, a contested-case hearing, and an appeal, if applicable, through the Texas Department of Insurance’s Division of Workers’ Compensation (TDI-DWC). During the contested hearing stage of the proceedings, a TDI-DWC officer determined that Michael had sustained a qualifying injury in the form of an occupational disease during the course of his employment with the city. The hearing officer relied on the “Firefighter’s Presumption” in Texas Government Code Chapter 607 which allows state governments to shift the burden of proving causation from a claimant to an employer. The officer also relied on a similar decision in which a firefighter suffered from pancreatic cancer and was determined to be eligible for workers’ compensation benefits. After appealing the administrative decision, the TDI-DWC upheld the hearing officer’s decision, and the city appealed to the district court.

The city argued that the presumption did not apply in Michael’s case, because pancreatic cancer did not meet the requirements under Section 607.055. The district court ruled in favor of the Belews, and the city appealed to the court of appeals. At the time of Michael’s death, the “Firefighter’s Presumption” statute required a claimant to show that: “the cancer was known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen … or a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer [IARC].”

After a thorough analysis of the statutory construction and plain meaning of the language, the court of appeals concluded that for the “Firefighter’s Presumption” to apply, Section 607.055 required a claimant to show by exclusively relying on IARC materials and determinations, a general causal link between the cancerous condition originating from the course and scope of the person’s employment and the specific exposures listed in the statute (heat, smoke, radiation, or a known suspected carcinogen). Ultimately, because the Belews failed to establish this causal link, providing no evidence of IARC determinations, the court held that Michael did not sustain a compensable injury under Texas Government Code Chapter 607. The court further held that the “Firefighter’s Presumption” did not apply to the pancreatic cancer Michael developed. As a result, the court reversed the trial court’s decision and rendered judgment in favor of the city.

Tort Claims Act: City of Mission v. Aaron Cervantes, No. 13-22-00401-CV, 2024 WL 1326396 (Tex. App.—Corpus Christi–Edinburg Mar. 28, 2024) (mem. op.).  Cervantes sued the City of Mission under the Texas Tort Claims Act (TTCA) after he was injured on a city-maintained bike path, claiming the city’s failure to warn the public of the dangerous condition of the trail was grossly negligent. The city filed a plea to the jurisdiction claiming governmental immunity under the TTCA and the recreational use statute. The city argued that the dangerous condition at issue was not a special defect, so the city owed only a licensee standard of care and therefore the city’s immunity was not waived under the TTCA. The trial court denied the city’s plea and the city appealed.

The appellate court affirmed the trial court’s denial of the city’s plea to the jurisdiction, holding that because the city had not produced evidence to negate Cervantes’ contention that the dangerous condition at issue was a special defect, it had failed to carry its burden to negate the existence of jurisdictional facts.

Elections: In re Coon, No. 09-24-00091-CV, 2024 WL 1134038 (Tex. App.—Beaumont Mar. 15, 2024) (mem. op.).  Coon and Arthur, two candidates for public office in the City of Conroe, filed petitions for writs of mandamus in the appellate court to compel the city secretary to reject applications of two other candidates to appear on the city ballot. Coon and Arthur contended that the two candidates were not physically present when the city secretary notarized their applications, and that because the applications were not properly notarized, the city secretary had a ministerial duty to reject them. The court denied the petitions, holding that Coon and Arthur had not shown that mandamus relief was warranted.

Tort Claims Act: City of Houston v. Manning, No. 14-23-00087-CV, 2024 WL 973806 (Tex. App.—Houston [14th Dist.] Mar. 7, 2024) (mem. op.). In a case involving a collision between a City of Houston Fire Department truck driven by Wilhelm Schmidt and a car carrying Chelsea Manning and three minors, the appellate court previously affirmed the denial of the city’s initial motion for summary judgment on negligence claims. In Manning I, the city argued for immunity, citing the driver’s official status and exceptions under the Texas Tort Claims Act (TTCA), but failed to conclusively prove absence of negligence or that the emergency and 9-1-1 exceptions applied. The Supreme Court declined to review the appellate court’s decision in Manning I.

This appeal originates from a second summary judgment motion in which the city reiterated its immunity defense, added additional TTCA arguments, and challenged certain plaintiffs’ standing. The trial court denied this motion and allowed two additional plaintiffs to join the case, leading to the city’s current appeal.

Generally, a city cannot be vicariously liable for the negligent acts of its employees unless its governmental immunity has been waived. The TTCA contains waivers of governmental immunity when the negligence of a city’s employee, acting within the scope of their employment, proximately causes personal injury to another person, arising from the use or operation of a motor driven vehicle, if the employee would be personally liable for the injuries. The city argued that Schmidt would not have been liable for the injuries, since he was protected by official immunity, which can protect government employees from liability from lawsuit if at the time of the injury, they were performing discretionary job functions with good faith. As in Manning I, the court in this case held that there were fact questions surrounding Schmidt’s good faith and overruled the city on this issue.

There are also exceptions to the TTCA’s immunity waiver when an employee is responding to an emergency situation or a 9-1-1 call for assistance, if the employee’s actions are essentially reasonable, lawful, and not taken with reckless disregard for the safety of others. The city raised each of these exceptions, but again, the court overruled these issues, pointing to evidence that Schmidt may have been operating the truck recklessly at the time of the collision.

The only issue on which the court found in favor of the city was a standing issue. Two of the claimants who were minors at the time of the collision had reached the age of majority by the time the appeals in Manning I were decided, after which, a Second Amended Petition was filed seeking additional damages for medical expenses by these claimants. Because claims for the medical expenses of minors belong to the minors’ parents, the appellate court overruled the trial court on this issue. Ultimately, the court overruled all the city’s claims other than the standing issue and remanded the case to the trial court for further proceedings.

Tort Claims Act: Rebeca Garcia v. The City of Austin, No. 14-23-00241-CV, 2024 WL 1326113 (Tex. App.—Houston [14th Dist.] Mar. 28, 2024) (mem. op.). Rebeca Garcia and Mike Ramos were in a car when the police, responding to a 9-1-1 call about drug use and a possible gun, commanded them to exit the vehicle. Ramos, after initially complying, became non-compliant and was fatally shot while attempting to drive away. Garcia, who was in the car but not physically injured, sued the City of Austin for negligent infliction of emotional distress, claiming severe shock and emotional distress from witnessing the incident.

The City of Austin filed a plea to the jurisdiction, asserting immunity from Garcia’s suit. The trial court granted the plea, dismissing Garcia’s suit. Garcia appealed, arguing the trial court erred in granting the plea and that the city did not meet its burden to establish governmental immunity. Generally, a city is protected from liability from lawsuit by governmental immunity, but that immunity may be waived by statute. The Texas Tort Claims Act provides limited waivers of immunity for certain negligent conduct, but it does not waive immunity for injuries arising from intentional torts. Garcia argued that her injuries sounded in negligence; however, neither the trial court nor the appellate court agreed, since the shooting in question was clearly an intentional act. Consequently, the appellate court affirmed the trial court’s final judgment, dismissing the case for lack of jurisdiction.