Recent Texas Cases of Interest to Cities

Note:  Included cases are from July 11, 2015 through August 10, 2015.

Referendum:  In re Woodfill, No. 14-0667, 2015 WL 4498229 (Tex. July 24, 2015) (per curiam).  The City of Houston’s charter provides for a petition and referendum process when the citizens wish to rescind an ordinance that the city council has adopted.  A group of citizens filed such a petition with the city over the city’s equal rights ordinance.  The city council rejected the petition on the grounds that it believed the petition was invalid. The citizens appealed this decision and sought a writ of mandamus from the court.   The charter has three steps for a referendum: (a) a petition is signed and verified by qualified voters; (b) the city secretary checks the petition and submits a certificate to council; and (c) the council either revokes the ordinance or holds an election.  In this case, the city secretary did determine the petition was valid, but the city attorney determined it was not valid.  The city council determined that the petition was not valid and the trial court and court of appeals both reviewed the issue.  However, the Supreme Court of Texas held that the city council only has a ministerial duty under its charter to hold the election and that the council “cannot independently evaluate the petition as a predicate to its ministerial duty to act . . . .”  The Court held that the petitioners did not have an adequate remedy on appeal if they were to get the referendum on the November ballot.  The Court also held that mandamus actions can be started in the appellate courts.  The Court held that the city council must repeal the ordinance or hold the election and if it does not do so, then the Court will issue a writ of mandamus.

Separation of Powers:  City of Ingleside v. City of Corpus Christi, No. 14-0548, 2015 WL 4498005 (Tex. July 24, 2015) (per curiam).   This boundary dispute involves the interpretation of an ordinance establishing a “shoreline” as a common border and whether the answer to where a border is can be decided by a court or is a political question that is non-justiciable.  The Supreme Court of Texas in this case held that interpreting the city’s ordinance was a justiciable question and did not require the Court to decide on the non-justiciable issue of where the border actually is.  The Court discussed separation of powers and the determination of boundary disputes.  The Court sent the question of whether the shoreline could be changed by artificial and natural fixtures to the court of appeals.

Governmental Immunity:  Archer Group, LLC v. City of Anahuac, No. 01-14-00664-CV, 2015 WL 4624249 (Tex. App.—Houston [1st Dist.]  Aug. 4, 2015).  This case involves an alleged interlocal agreement between various Anahuac entities, including the City of Anahuac, and the Archer Group regarding a grant seeking project.  Archer and Anahuac disagreed about whether they had entered into a valid agreement.   The city, and others, had paid Archer for services, but then sued Archer for return of the funds and for other causes of action.  Archer counterclaimed for additional money under the alleged interlocal agreement.  The Anahuac entities filed a plea to the jurisdiction arguing that they are protected from Archer’s claims by governmental immunity and the trial court granted the plea.  Archer appealed.  The issue is whether, when the Anahuac entities engaged in litigation against Archer, they waived their governmental immunity pursuant to Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).  In Reata, the Supreme Court of Texas held that a city waives its governmental immunity from suit and from liability up to the amount of any monetary claims it makes against a private party so long as the claims of the city and the private party are germane to one another.  The court of appeals held that the city’s (and other entities’) immunity was waived because the city’s claims and Archer’s claims were germane to one another and were based on the same transaction—the alleged interlocal agreement.  The court of appeals held that the city did not have immunity from suit but may have some immunity from liability depending on the outcome of the case.

Tort Claims Act: City of Austin v. Cherry, No. 03–14–00212–CV, 2015 WL 4508819 (Tex. App.―Austin July 21, 2015) (mem. op.). This is an interlocutory appeal in a Texas Tort Claims Act case in which the Austin Court of Appeals reversed the denial of a plea to the jurisdiction, but remanded to allow the plaintiff to replead. Cherry was using a free pass to evaluate using the Montopolis Recreation Center to determine if he wanted to become a paid member for gym use. While working out, a bar fell from the weight machine he was using and struck Cherry on the forehead, injuring him.  He originally sued for premise defect, but later amended his pleadings alleging a defective weight machine caused the injuries. The city filed a plea to the jurisdiction which the trial court denied, and the city appealed.  The plea, however, was filed prior to the amendment and the arguments originally centered on the premise defect condition. The court noted that to properly allege a claim against the city for a defective machine Cherry must assert it lacked an integral safety component.  Cherry’s pleadings make no such allegation and are therefore defective.  However, even though the pleadings are defective, the facts alleged do not demonstrate an incurable defect and Cherry should be given the right to replead.  As a result, the case was remanded.*

Solid Waste Permitting: Texas Comm’n on Envtl. Quality  v. City of Aledo,  No. 03–13–00113–CV, 2015 WL 4196408 (Tex. App.―Austin July 8, 2015) (mem. op.). The cities of Aledo and Willow Park sought judicial review of the Texas Commission on Environmental Quality’s (TCEQ) final order issuing a permit to construct and operate a new municipal solid waste transfer station to Republic Waste Services. At a preliminary hearing conducted by the State Office of Administrative Hearings (SOAH), the cities were denied party status in the contested case to consider issuance of the permit. In their district court suit, the cities asserted that they were improperly denied party status and the TCEQ’s issuance of the permit was reversible error. The trial court agreed and reversed the TCEQ’s final order, vacated the issued permit, and remanded the matter to TCEQ. Both the TCEQ and Republic brought this appeal of the trial court’s decision.

Republic argued that because the cities were not “parties” to the contested-case proceeding, they were not entitled to judicial review. However, the court agreed with the cities that Section 5.351 of the Water Code governs jurisdiction over their administrative appeal and concluded that the district court did have subject-matter jurisdiction over the cities’ petition for judicial review.

The court of appeals analyzed the record of the testimony of both Aledo and Willow Park’s mayors and concluded that each mayor made a minimal showing that the cities’ justiciable interests were not common to members of the general public. Therefore, the court held that the administrative law judge at SOAH did not act arbitrarily or abuse his discretion in concluding that neither city had a justiciable interest. The court then reversed the district court’s judgment and rendered judgment affirming TCEQ’s final order and issuance of permit to Republic.

Zoning: City of Shavano Park v. Ard Mor, Inc., No. 04–14–00781–CV, 2015 WL 4554524 (Tex. App.―San Antonio July 29, 2015) (mem. op.).  This is an interlocutory appeal from the denial of a plea to the jurisdiction involving a challenge to an adjacent development agreement and zoning change. The San Antonio Court of Appeals reversed in part and affirmed in part. Ard Mor operates a child care facility. Lockhill Ventures, LLC, owns two lots of land adjacent to the childcare facility, which is subject to deed restrictions. Lockhill Ventures intends to build a gas station and gas storage tanks next to Ard Mor’s facility. The city’s zoning does not list “gas station” as a permitted use. However, the Lockhill property is subject to a development agreement in which, once annexed, Lockhill is permitted a project which includes a convenience store with gas station. Ard Mor sued the city and Lockhill. The city filed a plea to the jurisdiction, which was denied after the court heard four days of testimony in a temporary injunction hearing. The trial court enjoined Lockhill, but not the city.  The city remained a party to suit. Ard Mor’s numerous requests for declaratory relief against the city fall into four requests for relief: construe various city ordinances, declare the agreement void, declare the annexation ordinance void, and declare the actions of the city and its officials to be ultra vires acts which violated their due process rights. The court first addressed Ard Mor’s request to invalidate the agreement as being contract zoning. The court held that since the city did not set its plea to the jurisdiction for a hearing, but merely urged it during the temporary injunction, Ard Mor did not have the ability to develop the record to establish its jurisdictional basis. Therefore, remand on this claim is proper. Ard Mor’s claims challenging the annexation ordinance are not attacks on procedural irregularities (which can only be brought in a quo warranto proceeding) but an assertion that contract zoning makes the ordinance void. This is a permissible challenge under the Declaratory Judgment Act. However, Ard Mor failed to allege a proper due process claim, mainly because it did not allege it was treated differently than someone else. Additionally, Ard Mor brought ultra-vires claims against the city, not its officials. Such claims can only be brought against officials and therefore the claims against the city are improper. Finally, the court held the city did not properly challenge the claims to interpret its zoning ordinances, so it will not address them on appeal. As a result, the court affirmed in part, reversed in part, and remanded for further proceedings.*

Tort Claims Act: City of Laredo v. Reyna, No. 04–15–00147–CV, 2015 WL 4479834 (Tex. App.―San Antonio July 22, 2015) (mem. op.).  This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (TTCA) case where the San Antonio Court of Appeals reversed the denial and dismissed the plaintiff’s claims. Reyna was arrested by Officer Rodriguez of the Laredo Police Department.  During the arrest, Rodriguez and Reyna got into a scuffle which resulted in Reyna needing medical attention. Reyna sued the city under the TTCA alleging Rodriguez used a baton (i.e. tangible personal property) to negligently inflict injury. He further alleged the use of the county jail was the utilization of real property and the city negligently supervised and trained Rodriguez. The city filed a plea to the jurisdiction which was denied and the city appealed. The court first held the TTCA does not apply to a claim “arising out of assault, battery, false imprisonment, or any other intentional tort.” As a result, no waiver of governmental immunity exists for the scuffle. As to the false imprisonment by using the jail, the use of real or tangible personal property to accomplish an intentional tort “is encompassed within the exclusion of claims arising from intentional torts.”  The use of the baton and the jail were done intentionally, not negligently, therefore the TTCA does not apply. Additionally, because Reyna’s allegations of negligent hiring, retention, training, and supervision of Officer Rodriguez involve the transfer and receipt of information and not the use of tangible personal property or real property, they do not demonstrate a valid waiver of immunity. And because the facts alleged demonstrate an absence of a waiver of immunity, the issue of official immunity need not be addressed. All of Reyna’s claims were dismissed with prejudice.*

Utilities: Oncor Elec. Delivery Co., L.L.C.  v. City of Richardson, No. 05–14–00843–CV, 2015 WL 4736827,  (Tex. App.―Dallas Aug. 11, 2015) (mem. op.).  The dispute between Oncor and the City of Richardson began in 2010 when, pursuant to the terms of the franchise contract ordinance, the city requested that Oncor relocate its utility poles in 32 alleys for reconstruction and widening.  Even though the franchise required the relocation of Oncor’s facilities – at Oncor’s cost – when required for city construction projects, Oncor refused to do so.

In 2012, the city filed suit in state district court in Dallas to enforce the franchise provisions and, alternatively, to enforce the common law rule on relocation.  The common law rule has come from court opinions over the years that have concluded that the public’s right to use streets is paramount to a private company’s. The trial court ordered summary judgment in favor of the city on all issues.

During the period in which the dispute occurred, Oncor filed a rate case  with  the  Public Utility Commission (PUC) seeking  changes  in  its  rates, operations, and services as set forth in its tariff.  The PUC defines “tariff” as “the schedule of a utility . . . containing all the rates and charges stated separately by type of service, the rules and regulations of the utility, and any contracts that affect rates, charges, terms or conditions of service.”

In 2011, Oncor and the city reached a settlement on the rate changes, and the city enacted an ordinance accepting a proposed settlement with new tariff rates.  There was a dispute at the trial court about whether the tariff documents were properly in evidence.  The appeals court concluded that they were, and that the city had agreed to the tariff in the 2011 settlement ordinance.  Those issues were the deciding factors in the case because the tariff had a standard term providing that “the entity requesting such removal or relocation, shall pay to Company the total cost of removing or relocating such Delivery System facilities.”

The court in this case seems to do away with the common law rule and replace it with a new interpretation of the language in a utility’s tariff. Although state statute still mandates that an electric utility pay for relocations for the widening or straightening of a street, the court claimed that an alley is not a street.

The court of appeals overturned the trial court ruling that had affirmed municipal authority to require private utilities to relocate their facilities for public projects. The ultimate result is that, for projects that don’t involve the widening or straightening of a street, cities may have to pay for electric utilities to relocate their facilities.

Zoning: City of Dallas v. East Village Assoc., No. 05–14–01406–CV, 2015 WL 4456214 (Tex. App.―Dallas July 21, 2015) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case challenging the validity of a city zoning change via ordinance. The city changed its zoning in a particular location to allow for the construction of a Sam’s Club store. The City of Dallas Development Code (ordinance) allows a variety of retail uses as a matter of right, but “big box” stores are only allowed with a special use permit, which carries its own requirements for issuance. Contending that they were surprised and upset by the news that a Sam’s Club store was coming to their neighborhood, property owners near East Village formed the East Village Association (Association) to challenge the sufficiency of the notice given of the proposed change in zoning. The city filed a plea to the jurisdiction which was denied. The court first determined that the Association has standing to bring suit. The city argued its purpose was to challenge the zoning which is not a proper non-profit purpose.  However, the court held protecting the quality of neighborhood living is a civic purpose and qualifies.  While the Association does not own property within 200 feet of the zoning change, at least one of its members does live within 200 feet, objected to the zoning, and would be adversely impacted. Next, for jurisdictional purposes, immunity is waived under the Declaratory Judgment Act if a party challenges the validity of an ordinance.  Unlike a Texas Tort Claims Act case where jurisdiction is intertwined with the merits, declaratory judgment actions are not interconnected with the underlying claim. Because lack of sufficient notice is a basis upon which the ordinance would be void, the Association has pleaded a claim.  When an ordinance is challenged for lack of sufficient notice as to the scope of the change in zoning, the issue of sufficiency of the notice is not a jurisdictional question, but rather a question as to the merits. Further, the Association presented competing evidence of the sufficiency so a fact question exists anyway. Finally, the Association brings ultra-vires claims seeking an order mandating that any permits already issued under the new zoning change be cancelled.  The Association sought permanent injunctive relief for ultra vires conduct predicated on a void ordinance.  While the city does maintain immunity from such claims, the city officials do not.*

Annexation: City of Dallas v. D.R. Horton-Tex., Ltd., No. 05–14–01414–CV, 2015 WL 4162286 (Tex. App.―Dallas July 10, 2015) (mem. op.).  In 1971, the City of Dallas annexed a large area of land, of which D.R. Horton owned more than 50 percent. In 2008, D.R. Horton filed a petition with the city requesting that the city disannex the area for failure to provide services that were substantially equivalent to the services provided to similar areas. The city did not act on the petition, and D.R. Horton took no further action. Five years later, a second petition for disannexation was filed. When the city did not act on the petition within 90 days, D.R. Horton filed a suit against the city seeking disannexation. The city filed a plea to the jurisdiction asserting immunity, which the trial court denied. The City of Dallas appealed.

Both parties stipulated that the Municipal Annexation Act of 1963 (Act) applied in this case. The court of appeals concluded that the Act expressly permits a petitioner seeking disannexation to file suit against a city if the city does not timely disannex the area. Therefore, the Act waived the city’s governmental immunity.

The City of Dallas argued that D.R. Horton had to file suit within 60 days of the city’s failure to act on the first disannexation petition, or the appellee was forever barred from seeking disannexation under the Act. D.R. Horton asserted that it timely filed its suit because the suit was filed within 60 days of the city’s failure to grant the second petition for disannexation. The court noted that the statute is silent on whether landowners and voters in the annexed area can bring only one petition for disannexation. Stating that judicial imposition of a restriction on the number of petitions for disannexation would not further the legislature’s intent in passing the Act, the court concluded that the statute does not bar landowners and voters from bringing a second petition when suit was not filed under the first petition.

The City of Dallas also contended that appellee’s suit was barred because D.R. Horton did not comply with statutory requirements for the petition. Viewing the Act as a whole, the court disagreed with the city’s interpretation that the Act required a voter to sign the petition and attach affidavits because this interpretation would make other parts of the Act unworkable. Therefore, the court of appeals affirmed the trial court’s order denying the city’s plea to the jurisdiction.

Governmental Immunity:  Northcutt v. City of Hearne, No. 10-14-00012-CV, 2015 WL 4727197 (Tex. App.—Waco July 30, 2015) (mem. op.). This is an appeal from the granting of a plea to the jurisdiction in a vehicle accident case. The Waco Court of Appeals affirmed the granting of the plea citing a lack of evidence supporting a nexus. James Bell died in a motorcycle accident when he swerved to avoid a Hearne police vehicle, which had just initiated its lights to pursue another vehicle. Northcutt asserted a negligence cause of action against the city and sought wrongful death and survival damages. The city filed a plea to the jurisdiction which the trial court granted. Northcutt appealed. Under Texas Civil Practice and Remedies Code Section 101.021, sovereign immunity is waived for an accident which “arises from the operation or use of a motor-driven vehicle . . . .”  The term “arises from,” as used in the section, requires a nexus between an injury negligently caused by a governmental employee and the operation or use of a motor driven vehicle and requires more than simply the involvement of property.  Essentially, the question before the court is whether the evidence creates a fact question on the nexus between turning on the lights and pursuing a vehicle and Bell’s accident. The court noted the investigative report in the record was objected to as hearsay and the objection was sustained. Additionally, Northcutt did not file a formal objection to the plea and did not submit any other evidence. The affidavit of the officer involved (Sullivan), described the accident. Nothing indicated he was negligent in triggering his lights and pursuing another vehicle or acted negligently in any other way.  The evidence does not support a nexus and therefore there is no waiver of immunity. The dissent believes the evidence was sufficient to create a fact question. Justice Davis actually quoted the majority of the affidavit testimony and portions of the investigative report and did a bullet point listing of the evidence he felt created the fact issue. However, the majority was not convinced the inferences made created a fact issue on nexus.*

Retaliation: Taylor v. State, No. 11-13-00207-CV, 2015 WL 4522871 (Tex. App.—Eastland July 23, 2015) (mem. op.). This is a retaliation case brought under the Texas Labor Code in which the Eastland Court of Appeals affirmed the granting of the Department of Criminal Justice’s plea to the jurisdiction.

Taylor resigned her position with the Department of Criminal Justice (Department) and originally brought discrimination charges centered on a particular supervisor. However, she did not pursue the charges to conclusion. When she discovered the supervisor was retiring she reapplied for her position as a sociologist. The supervisor was on the hiring panel and wrote a comment attacking her integrity and honesty. However, Taylor did not discover the comment until a year after she was told she would not be rehired. She brought suit for retaliation and the Department filed a plea to the jurisdiction which was granted.

To exhaust her administrative remedies, Taylor would have had to file her retaliation charge within 180 days of the alleged wrongful practice. Taylor argued the discovery rule applied to this deadline. The court noted no case law supported that assertion, however, even if they were to assume the discovery rule applied, Taylor still failed to properly follow the procedure. The issue is not when she learned of the alleged acts, but when she “knew of facts, conditions, or circumstances that would cause a reasonable person to make inquiry leading to discovery of her cause of action.”  She learned she was not to be rehired in 2010, but waited until almost a year later to file a Public Information Act request which led to her discovery of the supervisor’s comments. She knew, or should have known, of facts that in the exercise of reasonable diligence would have led to the discovery of her injury, (i.e. the decision not to rehire her). As a result, she failed to exhaust her administrative remedies. Finally, the court held the trial court is not required to make findings of fact and conclusions of law in a case such as this based on a plea to the jurisdiction.*

*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