Recent Texas Cases of Interest to Cities

Note: Included cases are primarily from July 11, 2018 through August 10, 2018.

Attorneys Fees: Propel Fin. Servs., LLC v. Perez, No. 01-17-00682-CV, 2018 WL 3580935 (Tex. App.—Houston [1st Dist.] July 26, 2018) (mem. op.). Propel Financial Services, LLC (Propel) filed a property tax foreclosure suit to recover delinquent ad valorem taxes on property owned by Lupe Perez. The trial court referred the case to a tax master who recommended awarding delinquent taxes and interest to Propel, and recovery of release of lien fees, abstract fees, and late fees, but reduced Propel’s attorney’s fees to a percentage of the delinquent base tax, penalties, and interest. Propel filed a notice of appeal with the trial court challenging the tax master’s recommendation concerning the attorney fees. The trial court held a hearing on the appeal and later asked for more proof from Propel about the attorney fees because the submitted proof was insufficient to meet the requirements in Long v. Griffin, 442 S.W.3d 253 (Tex. 2014), which requires the lodestar method to calculate attorney fees.  Propel did not submit additional proof and the trial court issued a final judgment granting the foreclosure, but awarded no attorney fees and struck the award of release to lien fees, abstract fees, and late fees.

Propel appealed contending that the trial court abused its discretion by (1) awarding no reasonable and necessary attorney’s fees and expenses to Propel; (2) denying recovery of appellate attorney’s fees to Propel; and (3) denying Propel recovery of release of the lien fees, abstract fees, and late fees.  The First Court of Appeals reviewed all three issues under an abuse of discretion review.

The court explained that the recovery of attorney’s fees by a litigant is only allowed if a statute or contract specifically provides for such recovery.  In this case, Section 32.06(e-1)(5) of the Tax Code entitles tax lien “transferees” to collect fees expressly provided under Section 351.0221 of the Finance Code. Section 351.0021 of the Finance Code authorizes the recovery of “reasonable and necessary attorney’s fees, recording fees and court cost for actions that are legally required to respond to a suit filed under Chapter 33, Tax Code or to perform a foreclosure, including fees required to be paid to an official and fees for an attorney ad litem.” Under Section 351.0021, the court determined that Propel was entitled to recover its reasonable and necessary attorney’s fees. Next, the court determined under which method of calculation Propel was to recover attorney’s fees. Propel contended that the trial court erred in holding that the lodestar method was required in this case since this case was not a lodestar case either by law or elected by Propel. The lodestar method requires sufficient evidence of the services performed, who performed them and at what hourly rate, when they were performed and how much time the work required for the court to determined what is considered reasonable and necessary attorney’s fees.  Propel argued that it did not use the lodestar method in this case because it involved a combination of paralegal time, flat fees charges agreed to by Propel, expenses for certified mail, service of citation, filing fees, and other necessary charges. The court stated that though the lodestar method was a method to determine whether attorney’s fees were reasonable and necessary, it was not the only method that governed recovery of attorney’s fees in Texas. And since the record does not show that Propel chose that lodestar method, the trial court should have treated the case as a non-lodestar case and determined if the information that Propel filed with the trial court was sufficient.

Then, the court looked at the evidence provided by Propel concerning attorney’s fees to see if it was sufficient to determine whether the attorney’s fees were reasonable and necessary. The court considered the factors enumerated in Arthur Andersen & Co. v. Perry Equipment Corp., including: “(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). Taking these factors and looking at the evidence that Propel provided for the attorney’s fees, the court determined Propel did provide sufficient evidence to determine what attorney’s fees were reasonable and necessary and reversed the trial court’s judgement and awarded Propel $7,683.06 in attorney’s fees, as represented in their affidavit.

The court also reviewed Propel’s claims for appellate attorney’s fees and the recovery of the other fees. The court awarded appellate attorney’s fees since Propel was successful in its appeal. Also, the court awarded the other fees since Propel was entitled to the fees and established its right to recovery of those fees.  The trial court’s judgment is reversed and judgment is rendered for Propel awarding attorney’s fees, appellate attorney’s fees, and other fees.

Defamation: Elias v. Griffith, No. 01-17-00333-CV, 2018 WL 3233587 (Tex. App.— Houston [1st  Dist.] July 3, 2018) (mem. op.). This is a defamation case brought against individual city officials for acts performed within their course and scope of employment.  The First District Court of Appeals held the individuals were entitled to the statutory immunity provided by Section 101.106(f) of the Texas Civil Practice and Remedies Code.

Elias owns a tow truck company. Elias sued First Assistant City Manager Griffith and the Chief of Police Brinkley for defamation, in their individual capacities, for statements made to the city council during a public meeting. The City of Sugarland implemented new procedures for the selection of five (5) tow truck companies to be placed on its non-consent tow truck rotation list. Brinkley manages the list and investigates complaints about companies. Griffith is responsible for overseeing various departments, including the police department. A lottery was held, and Elias was not selected. Elias called multiple officials complaining about the process and other companies. At the next public meeting, the city manager asked Griffith and Brinkley to make a presentation to city council. Griffith and Brinkley listed multiple citizen complaints filed against Elias and that Elias was reported to be misleading and deceptive. They addressed how they responded to Elias’ complaints about the system and the other companies that were selected by the lottery. At one point, Griffith stated “…I have never seen a vendor use lies and threats to this degree to gain a personal financial benefit.” Elias filed suit against Griffith and Brinkley, alleging a cause of action for slander per se. Griffith and Brinkley filed a motion to dismiss under Texas Civil Practice & Remedies Code Section 101.106(f) which requires dismissal of employees acting in their course and scope of employment and substitution of the city, which the trial court granted. Elias appealed arguing he sued Griffith and Brinkley individually and not in their employed capacities.

The appellate court analyzed the history of Section 101.106 and its purpose. The court then analyzed “…whether Brinkley and Griffith conclusively proved that their conduct was within the general scope of their employment and whether Elias’s suit could have been brought under the Tort Claims Act against the City.” Section 101.001(5) of the Tort Claims Act defines “scope of employment” and the court injected Texas Supreme Court precedent. The Texas Supreme Court emphasized that the scope-of-employment analysis “calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it.”  Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). Here, Brinkley and Griffith were asked to advise city council of the conclusions reached following the police department’s investigation of Elias’s complaints. It was within the general scope of Brinkley’s employment, as the administrative head overseeing the program. It is also within Griffith’s general scope of employment, as first assistant city manager responsible for overseeing the police department and as one of the individuals involved in the meetings with Elias regarding his complaints, to report on the conclusions of those complaints.  As a result, Brinkley and Griffith conclusively established their statements made during their presentation to city council, even if defamatory, were within the scope of their employment.

Next, the court held the only cause of action alleged was a tort. As the Texas Supreme Court previously noted, “because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery against the government, all tort theories alleged against a governmental unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659 (Tex. 2008). The court noted Section 101.106 has previously been held constitutional. Brinkley and Griffith are therefore statutorily immune.*

Dual-Office Holding: City of Forest Hill v. Benson, No. 02-17-00346-CV, 2018 WL 3385675 (Tex. App.—Fort Worth July 12, 2018). This is a dual-office holding/statutory construction case where the Fort Worth Court of Appeals affirmed an order removing the official from the second position to which she was elected.

City of Forest Hill has a seven-member council. The city’s public library is a library district established pursuant to Chapter 326 of the Local Government Code and the board of trustees is elected. At the same time as her candidacy for Place 3 on the city council, Benson ran for Place 5 on the board of trustees. Benson filed the city council application before she filed the library board application. The city did not prohibit Benson from running for both offices, her name subsequently appeared on the ballot as a candidate for both offices, and she was elected to both offices. She was sworn in first as a city council member and second as a library board trustee on the same day. The city asked and received an attorney general opinion that the offices were incompatible. The attorney general opined that by taking the oath for the second position (Place 5 library trustee) she automatically resigned her position on the city council. The city council “accepted” her resignation (which she disputed existed) and kicked her off the council. Benson sued and received a temporary injunction prohibiting enforcement of the city’s acceptance and allowing her to remain on the council. The trial court also permanently enjoined the city from interfering with Benson’s occupation of Place 3 of the city council, awarded Benson attorney’s fees, and issued findings of fact and conclusions of law. The city appealed.

The case boiled down to statutory construction between Texas Election Code Sections 141.033–.034 and 201.025. Section 141.033 provides that the second application is invalid for an election (then arguably she could only have been elected to the first office) and Section 201.025 states the first office is vacated upon being qualified for the second. The city asserts it could not bring a Section 141.033 challenge because Section 141.034 provides that it must wait until after the first early voting ballot is cast.  However, the time limits within Section 141.034 involve challenges to form, content, or procedure, none of which are present. By contrast, Section141.033 addresses the invalidity of an application that a person submits for a place on the ballot for an office that the person is “not permitted by law” to hold. As a result, Section141.033 applies.   Section 201.025 applies only to a person who is a current officeholder when she accepts and qualifies for the second office. However, Benson was elected to the city council and library board offices on the same day, and she took the oath of office and qualified for both offices on the same day. The court held “construing the term ‘officer’ to include a person who only became an officer on the same day that she qualified for the ‘other’ office would be absurd—it cannot be presumed that Benson intended to resign her city council position on the very same day that she took the oath of office for that position.” Like Section 141.034, Section 201.025 has no application under these facts.

The dissent essentially argued that nothing in Section 201.025 says you must already hold the position first and no actual “law” prohibited her from holding the position anyway. As a result, incompatibility standards should apply which are incorporated in Section 201.025. The majority countered by asserting the city did not brief incompatibility as a ground and the dissent’s definition of the term “law” used is incorrect.* 

Ultra Vires: Farr v. Arlington Indep. Sch. Dist., No. 02-17-00196-CV, 2018 WL 3468459 (Tex. App.—Fort Worth July 19, 2018) (mem. op.). In this asserted ultra vires case, the Fort Worth Court of Appeals affirmed the granting of the school district defendants’ plea to the jurisdiction.

Plaintiffs consist of students, employees, and parents who asserted they were exposed to poor air quality at the school causing dizziness, nausea, and a host of other ailments. In addition to suing the school district, plaintiffs sued the individual board of trustees, the superintendent, and several private parties. They originally sued for negligence, gross negligence, and other claims, but after a host of court proceedings, the primary focus ended up centering on injunctive relief. The school district officials counterclaimed for attorney’s fees. They filed a plea to the jurisdiction and motion to dismiss which the trial court granted. The plaintiffs appealed.

The court first held the plaintiffs did not bring a true ultra vires claim. The plaintiffs did not allege the individual school officials acted outside of their authority. Next, the court held the last live pleading omitted the claims against the officials in their official capacities. As a result, ultra vires injunctive relief is not applicable. Next, in the education context, attorney’s fees can be viewed as sanctions. Under a sanctions analysis the strictures of the loadstar method of calculations is not applicable. The record demonstrates sufficient evidence to support the sanction. Given that the officials retain absolute immunity from suit, a reasonable attorney should have known a suit against them was improper.* 

Contractual Immunity: City of Westworth Village v. City of White Settlement, No. 02-17-00211-CV, 2018 WL 3763908 (Tex. App.—Fort Worth Aug. 9, 2018). The City of Westworth Village (Westworth Village), the City of White Settlement (White Settlement) and Allegiance Commercial Development, LP, entered into a Local Government Code Chapter 380 economic development agreement that allowed a Wal-Mart and Sam’s Club to build on a site that was 66% located in Westworth Village, where the stores would be built, and 34% located in White Settlement, where the parking lot would be constructed. Generally, the contract between the three participants had Westworth Village agreeing to make certain periodic payments to White Settlement through Allegiance by assignment, and then after 12 years, Westworth Village would pay White Settlement the payments directly. The term of the contract was 30 years, with a termination of the contract allowed only upon mutual written agreement of all parties to the agreement. However, after 12 years, Westworth Village notified White Settlement it was terminating the contract because of the “inordinate amount of its police and EMS resources” that it devoted to the Wal-Mart and Sam’s Club without assistance from White Settlement. White Settlement sued for breach of contract.

Westworth Village filed a plea to the jurisdiction based on governmental immunity asserting it acted in its governmental capacity in the collection and distribution of sales taxes and redevelopment of property for economic development purposes. Westworth Village argued Section 271.152 of the Local Government Code, a statutory waiver of sovereign immunity, did not apply. White Settlement responded by arguing that Westworth Village had entered in to the contract in its proprietary, not governmental capacity, and that immunity “did not apply (1) because the agreement was not about tax collection per se but rather about periodic payments for infrastructure construction, the calculations for which were based on the amount of sales tax; and (2) because economic development is not generally considered a governmental function under Texas Torts Claim Act (TTCA).” Also, White Settlement argued that if the contract was considered governmental, then Westworth Village should be equitably estopped from denying the existence of the 380 agreement because Westworth Village received the full benefits of the agreement, without which the retail development would not have been possible. The trial court denied the plea of the jurisdiction and Westworth Village filed an interlocutory appeal arguing that the trial court erred by denying its plea to the jurisdiction when it showed as a matter of law that it was immune from suit under the doctrine of governmental immunity, that the Local Government Code Section 271.152 waiver did not apply, and that White Settlement’s equitable estoppel argument was meaningless because it had never denied the agreement’s existence.

The Second Court of Appeals de novo review begins with an explanation of the difference between governmental immunity and sovereign immunity. A city that enters into a contract in the performance of its governmental functions enjoys immunity, unless the immunity is specifically waived by the legislature. Any such waiver by the legislature must be clear and unambiguous. According to Wasson Interests, Ltd v. City of Jacksonville (Wasson I), 489 S.W. 3d 427 (Tex. 2016), a court must first determine whether immunity exists and its boundaries. The Second Court of Appeals looked at the TTCA as guidance to determine if the Westworth Village contract was considered a governmental or proprietary function. Though the TTCA does list tax collection as a governmental function, the court did not agree that the contract was concerning tax collection. It stated that the tax collection only came into play as the basis for calculation of the periodic payments due under the agreement. Nor did the court think the contract fell under community development or urban renewal under Chapter 373 and 374 of the Local Government Code. Therefore, the court looked at Wasson Interests, Ltd. V. City of Jacksonville (Wasson II), No. 17-0198, 2018 WL 2449184 (Tex. June 1, 2018) analysis to determine if the 380 agreement was governmental or proprietary.

Wasson II set out a four-prong inquiry to determine if a function is governmental or proprietary: “(a) whether Westworth Village’s act of entering into the contract was mandatory or discretionary; (b) whether the contract was primarily intended to benefit the general public or Westworth Village’s residents; (c) whether Westworth Village acted on the state’s behalf or its own behalf when it entered the contract; and (d) whether Westworth Village’s act of entering into the contract was sufficiently related to a governmental function to render the act governmental even if it would otherwise have been proprietary.” The court went through each of these prongs individually and determined that Westworth Village entering into this contract was purely discretionary since Chapter 380 of the Local Government Code does not mandate a city to enter into economic development agreements. It states that a city may take these actions. Next, the court determined that the contract was primarily intended to benefit Westworth Village’s residents since the contract stated that the purpose was “to promote local economic development and to stimulate business and commercial activity” in Westworth Village and White Settlement. Even though the agreement had some economic benefit to the surrounding area and the state as a whole, the agreement was primarily to benefit their respective cities. Third, the court determined Westworth Village acted on its own behalf since there was no evidence in the record that Westworth Village took these actions as a branch or arm of the state government. Actually, the record indicates the opposite and that the contract was primarily for it own behalf. Lastly, the court determined that there was not sufficient evidence that this economic development related to a governmental function as to render the act governmental. The court stated that it depends on the fact of whether economic development is considered a governmental function for which immunity from suit would apply. It looked at various constitutional and statutory provisions and reviewed various court cases that predated Wasson II. Stating from Wasson II that true governmental functions encompass activities that are closely related to or necessary for the performance of the governmental activities designated by statute, and the fact that a city’s proprietary actions “touches upon” a governmental function is insufficient to render a proprietary action governmental, the court determined that Westworth Village failed to provide sufficient jurisdictional facts to meet a summary judgment standard that the activity at issue was governmental, not proprietary in nature. Though the 380 agreement touched on taxation and planning, the agreement’s primary purpose was to foster local economic development to the benefit of the cities’ inhabitants rather than to the general public of the state.  Therefore, the court ruled the trial court did not err in denying Westworth Village’s plea to the jurisdiction and overruled Westworth Village’s sole issue without reaching White Settlement’s Chapter 271 and equitable estoppel arguments and remanded the case back to the trial court for further proceedings.

Breach of Contract: Laredo Jet Center, LLC v. City of Laredo, No. 04-17-00316-CV, 2018 WL 3551255 (Tex. App.—San Antonio July 25, 2018) (mem. op.).  This is a fixed-based operator (FBO) lease dispute in which the court of appeals affirmed-in-part and reversed-in-part a summary judgment motion issued by the trial court in favor of the city.

Laredo Jet Center, LLC, (Laredo Jet) was an FBO at the Laredo International Airport. In 2014, the city and Laredo Jet discussed a contract under which Laredo Jet would demolish an existing hangar and rebuild a larger hangar. Laredo Jet alleged that it told the city it needed a 40-year lease to secure financing and that the city’s airport manager assured them such lease term would be acceptable. The city entered into a lease agreement for a term of three years. Under the 2014 lease, Laredo Jet agreed to complete replacing the hangar within three years. In 2015, Laredo Jet and the city entered into a second lease agreement for a term of 30 years, contingent upon Laredo Jet constructing the new hangar by August 1, 2017, as required by the 2014 lease. Laredo Jet asserted the city made numerous representations that the full 40-year term would eventually be incorporated. However, in 2016 Laredo Jet stopped hanger construction asserting its financiers would not provide payments until a 40-year lease was secured.  The city refused to approve such term. Laredo Jet sued the city, alleging claims for breach of contract, promissory estoppel, and quantum meruit, among others. The city filed a traditional motion for summary judgment, which was granted. The trial court’s summary judgment declared Laredo Jet breached a lease, declared the city validly terminated the lease, and ordered Laredo Jet to vacate the leased premises. The trial court also dismissed Laredo Jet’s claims against the city for breach of contract, promissory estoppel, and quantum meruit. Laredo Jet appealed.

The court of appeals held that the justice of the peace court has exclusive jurisdiction for forcible entry and detainer cases, and as such, the trial court lacked jurisdiction to determine immediate possession rights. The court found that Laredo Jet did not expressly respond to the city’s breach of contract and declaratory claims, and thus, Laredo Jet waived the ability to argue such claims on appeal. The court then determined that the city is immune from Laredo Jet’s estoppel arguments. The court also held that the city failed to conclusively establish its entitlement to judgement as a matter of law on Laredo Jet’s quantum meruit claim. The city did not challenge any of the elements of quantum meruit arguing that Laredo Jet could not recover in quantum meruit when an express contract existed. However, because an exception for “building or construction contracts” exists, the court reversed and remanded the quantum meruit claim.*

Texas Tort Claims Act: VIA Metro. Transit Auth. v. Reynolds, No. 04-18-00083-CV, 2018 WL 3440701 (Tex. App.—San Antonio July 18, 2018) (mem. op.).  This case stems from an interlocutory appeal by VIA Metropolitan Transit Authority (VIA), in which VIA appeals the trial court’s denial of its plea to the jurisdiction in a case involving a motor-vehicle accident.

Reynolds was injured when the VIA bus she was riding as a passenger rear-ended another vehicle. She sued VIA for negligence, alleging VIA owed its passengers a duty to exercise a high degree of care because it is a common carrier, and that her injuries were proximately caused by VIA’s breach of duty. VIA filed a plea to the jurisdiction arguing that: (1) to the extent that Reynold’s negligence claim was based on the “high degree of care” standard of care, the claim should be dismissed for lack of jurisdiction because VIA is immune from suit; (2) VIA was immune from suit because it is a governmental entity that exercises solely governmental functions as opposed to proprietary functions; and (3) immunity is not waived under the motor-vehicle exception under the Texas Tort Claims Act (TTCA) because that exception only waives immunity from tort claims involving ordinary negligence as opposed to the “high degree of care” standard of care.

The motor-driven vehicle exception of the TTCA “waives immunity for personal injuries proximately cause by an employee’s negligent operation or use of a motor-driven vehicle if the employee would be personally liable to the claimant under Texas law.”  The court noted that nowhere in the motor-driven vehicle exception are specific standards of care expressly mentioned, and thus, to determine whether VIA’s immunity is waived, the court has to determine whether the bus driver would be liable. The court found that in cases involving common carriers, a motor vehicle operator would be liable if he or she failed to exercise a “high degree of care.”  Accordingly, the court held that the motor-driven vehicle exception is not limited to tort claims alleging only an ordinary standard of care; rather, the exception incorporates whatever standard of care, including a “high degree of care,” may be applicable to the case.

Attorneys Fees: State v. CPS Energy, No. 04-18-00063-CV, 2018 WL 3440703 (Tex. App.—San Antonio July 18, 2018) (mem. op.). This case stems from an appeal of a trial court’s order denying the State of Texas’ (on behalf of the Texas Department of Transportation) plea to the jurisdiction and awarding CPS Energy attorneys’ fees and expenses.

The State of Texas filed a petition to condemn two tracts of land, naming CPS Energy and another entity as defendants, and alleging that they were owners of the properties.  The special commissioners appointed by the trial court made an award of the amount of damages the state was required to pay CPS Energy and the other owner for the condemnation. CPS Energy and the other owner filed objections to the award. Shortly thereafter, the state filed an amended petition dropping CPS Energy as a defendant. CPS Energy then filed a motion to recover its attorneys’ fees and expenses pursuant to Section 21.0195 of the Property Code, which allows a landowner to recover reasonable and necessary attorneys’ fees if the court dismissed a condemnation proceeding on the motion of TxDOT or as a result of TxDOT’s failure to bring the proceeding properly. The state argued that CPS Energy could only recover attorneys’ fees and expenses if the state dismissed the entire condemnation proceeding, not simply a party to that proceeding. The court of appeals upheld the trial court’s holding finding that a landowner is entitled to recover fees and expenses when the condemning authority dismisses the landowner as a named defendant because only such holding would discourage the condemning authority from commencing and abandoning a condemnation proceeding against a given defendant.

Dangerous Dogs: Washer v. City of Borger, No. 07-16-00413-CV, 2018 WL 3637379 (Tex. App.—Amarillo July 31, 2018) (mem. op.). In this case the Amarillo Court of Appeals affirms the dismissal of the plaintiffs’ claims challenging the constitutionality of an animal control ordinance and a dangerous dog determination preemption issue.

The City of Borger, a home-rule city, has an animal control ordinance and a dangerous dog determination ordinance adopted pursuant to Texas Health and Safety Code Section 822.0421. Borger’s ordinances established an animal control authority to investigate dangerous animals (not just dogs), secure impoundment, if necessary, and provide a process for appeal. Appeals go to municipal court. The animal control authority’s written determination that the animal is dangerous gives rise to a rebuttable presumption that the animal is a dangerous animal. Appeal from the municipal court goes to a county court or county court at law. Washer sued to prevent the application of the ordinance against her and her dog. She obtained a temporary injunction, but on final hearing, the court dismissed her claims. She appealed, but due to the lack of a reporter’s record, the court considered only those issues reviewable by reference to the clerk’s record.

City regulations ancillary to and in harmony with the general scope and purpose of state law are not preempted. Further, Texas Health & Safety Code Section 822.047 allows a city to place additional regulations on the state law dangerous dog determination criteria. Using statutory construction principles, the court held the ordinance was not in conflict with state law or the constitution. The ordinance provides for the taking of sworn statements in addition to interviewing individuals, examining the animal, and reviewing other relevant information. Being more specific or providing additional information is not a contradiction. State law does not limit the investigation to sworn testimony. Further, state law is silent on whether a presumption exists of dangerousness after an authority makes a determination.  As a result, the judgment is affirmed.*

Criminal Trespass: Castro v. State, No. 08-16-00354-CR, 2018 WL 3629380 (Tex. App.—El Paso July 31, 2018). Castro was arrested for criminal trespass on private property of the City of El Paso and fined $200 by the trial court. He challenges the sufficiency of the evidence supporting his conviction.

Castro climbed on and took photographs of a 400-foot-long star made out of light bulbs and located on city property on the side of the Franklin Mountains. The evidence showed that Castro parked his car near a “no trespassing” sign and that there were multiple such signs on the property, including signs on the star itself. The evidence was sufficient to establish Castro had notice his entrance was forbidden because the signage was reasonably likely to come to the attention of intruders. The judgment of the trial court is affirmed.

Employment: Jefferson Cty. v. Jackson, No. 09-17-00197-CV, 2018 WL 3580858 (Tex. App.—Beaumont July 26, 2018). This is an interlocutory appeal from the denial of a plea to the jurisdiction in an employment suit where the Beaumont Court of Appeals reversed and dismissed the plaintiff’s claims.

Jackson sued the county alleging the sheriff and Deputy Werner discriminated and retaliated against her after she failed to cooperate in an investigation against another county employee, April Swain. Werner was investigating whether Swain and an inmate had been involved in a sexual encounter at the jail in 2014. Jackson claimed that Deputy Werner approached her to determine whether Jackson had witnessed the alleged encounter. When she told Werner she did not see the incident, Werner allegedly then asked for a written statement claiming she had seen the incident while viewing a security monitor. Jackson refused and asserts she was later demoted, and then not given a lieutenant’s position. Jackson later filed a complaint with the Equal Employment Opportunity Commission (EEOC) asserting retaliation and discrimination for failing to give the statement in violation of the Texas Commission on Human Rights Act (TCHRA). Six days after Jackson filed her EEOC claim, she sued the county under the Texas Whistleblower Act. The county filed a plea to the jurisdiction which the trial court denied. The county appealed.

The county asserts Jackson failed to establish a causal connection between the failure to cooperate and the adverse actions. It claims Jackson was demoted following a disciplinary review board (board) hearing, which found that in May 2015, Jackson engaged in insubordinate conduct toward Lieutenant Hawkins, a superior officer. The court held the documents attached to the county’s plea support the county’s allegation that it demoted Jackson because Lieutenant Hawkins filed a grievance against Jackson that a board determined had merit. The investigation and the disciplinary proceedings involving Jackson consumed nearly the entirety of the six-month period during which Jackson was eligible to be considered for a promotion to lieutenant. Once produced, the burden shifted to Jackson to rebut with evidence of pretext, which she was unable to do. Under the TCHRA, Jackson asserts she participated in an investigation, so the anti-retaliation provisions apply. However, under the TCHRA exhaustion of remedies must occur before a trial court can acquire jurisdiction over a party’s TCHRA claims. The court held Jackson exhausted her administrative remedies only for two of her claims, that the county demoted her then refused to promote her. But she failed to establish a causal connection. Further, as to Jackson’s Texas Constitution claims, none of the evidence the parties asked the trial court to consider established that Jackson had been treated any differently than other, similarly situated, employees. The collective bargaining agreement did not provide a protected property interest in rank. Additionally, any “free speech” claims she brought relate only to her internal communications as part of her job and are not protected. Finally, since Jackson failed to follow the mandatory arbitration provision of the collective bargaining agreement, she cannot sue for breach.  As a result, the plea should have been granted.*

Civil Service: Butler v. City of Big Spring, No. 11-16-00247-CV, 2018 WL 3763813 (Tex. App.—Eastland Aug. 9, 2018).  Fabian Scott Butler, a lieutenant in the Big Spring Fire Department, was indefinitely suspended after an incident in which he was allegedly rude and discourteous after being denied access to a correctional facility for failing to produce identification. Butler appealed his suspension to an independent hearing examiner. The hearing examiner found that Butler was negligent for not having his identification and was rude and derogatory, but determined that his past disciplinary record did not merit a termination. He cited to an arbitration treatise on progressive discipline to support his decision to reduce the discipline to a one-week suspension. The city appealed to the district court, arguing that the hearing examiner exceeded his authority by imposing principles of arbitral law by relying on the arbitration treatise. The court ultimately granted the city’s motion for summary judgment. Butler appealed.

On appeal, Butler argued that the district court erred because the hearing examiner’s references to the arbitration treatise were consistent with the fire department rules regarding progressive discipline. The court of appeals disagreed, primarily because the fire department rules expressly provide that a higher form of disciplinary action may be imposed whether or not a lesser form has previously been imposed. The hearing examiner imposed an interpretation of progressive discipline discussed in the treatise that differed from the existing fire department rules. Accordingly, the court overruled Butler’s sole issue on the basis that the trial court properly granted the city’s motion for summary judgment because the hearing examiner exceeded his jurisdiction.

Texas Tort Claims Act: City of Stafford v. Svadlenak, No. 14-18-00089-CV, 2018 WL 3734021 (Tex. App.—Houston [14th Dist.] Aug. 7, 2018) (mem. op.). Joe Svadlenak asserted a premises liability claim under the Texas Tort Claims Act against the City of Stafford after injuring himself falling down the stairs at the Stafford Civic Center. At the time of his injury, Svadlenak was touring the facility with the city’s recreation director, Susan Ricks. After Ricks walked down a small flight of stairs, Svadlenak attempted to walk down the same stairs but fell and was injured. According to Svadlenak, Ricks stated that the city had installed step lighting in another auditorium and planned to do the same in the civic center. Ricks’ affidavit stated that she was not aware the stairs were hazardous in any way. The court denied the city’s plea to the jurisdiction, and the city appealed.

The city’s argument on appeal was that the court erred in denying its plea to the jurisdiction because the city was not aware of a dangerous condition on its premises prior to the accident as required to waive immunity under the Texas Tort Claims Act. In looking at the evidence, the court concluded that the city had no actual knowledge of the dangerous condition at the time of the incident. Svadlenak presented no evidence to rebut Ricks’ statement regarding prior incident, and the record contained no evidence indicating that anyone else previously fell down the stairs at issue. Svadlenak asserted that the city knew of the condition because of Ricks’ statement in her affidavit about installing step lighting. However, the court held that this statement, at most, suggested that the city knew of an alternate design that would increase lighting on the stairs. This does not indicate that the city had actual knowledge of a dangerous condition. The court sustained the city’s issue on appeal, reversed the trial court’s order, and rendered a take-nothing judgment in favor of the city.

Sex Offender Residency Restrictions: Texas Voices for Reason & Justice, Inc. v. City of Meadows Place, No. 14-17-00473-CV, 2018 WL 3469086 (Tex. App.—Houston [14th Dist.] July 19, 2018) (mem. op.). This is a challenge to a sex-offender residency restriction ordinance (SORRO) which the Fourteenth Court of Appeals held is now moot given legislation effective September 1, 2017.

The City of Meadows Place’s SORRO prohibits certain sex offenders from permanently or temporarily residing within 2,000 feet of any premises where children commonly gather. Plaintiff sued asking the trial court to declare the SORRO unconstitutional because the city, as a general-law city, had no authority to enact it. The city filed a plea to the jurisdiction, which the trial court granted. Plaintiff appealed.

After the dismissal, H.B. 1111 became effective (codified at Texas Local Government Code Section 341.906) which authorizes general-law cities to enact such ordinances. In response to H.B. 1111, the City of Meadows Place passed two ordinances to bring its SORRO into compliance with Section 341.906. A case is moot when the court’s action on the merits cannot affect the parties’ rights or interests. This includes while the case is on appeal. After the city came into compliance with Section 341.906 it possessed the ability to pass and enforce a SORRO. Plaintiff’s claims focus only on the validity of the ordinance. Therefore, the case has become moot.*

 

*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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