Recent Texas Cases of Interest to Cities

Note: Included cases are from July 10 through August 10, 2019.

Injunctive Relief: Reagan Nat’l Advert. of Austin, Inc. v. City of Austin, No. 03-18-00617-CV, 2019 WL 3756485 (Tex. App.—Austin Aug. 9, 2019) (mem. op.). This case arises from a second appeal filed by Reagan National Advertising of Austin Inc. (Reagan) regarding a billboard assessment charged by the City of Austin.

In 2010, Reagan, the owner and operator of billboards in the Austin area, sued the city in federal court challenging the constitutionality of billboard assessments charged by the city and paid by Reagan (in protest) from 2009-2014. After the federal court dismissed the suit for lack of jurisdiction, Reagan brought suit against the city in trial court. The trial court ordered that Reagan take nothing on its claims. Reagan filed its appeal, challenging the constitutionality of the assessment and seeking a refund of $198,450 and attorney’s fees. Reagan did not seek injunctive relief. In October 2017, the court of appeals held that the billboard assessment was a tax that violated the Texas Constitution, ordered that Reagan recover $198,450 from the city, and remanded the cause to the trial court to determine the appropriate amount of attorney’s fees. The Texas Supreme Court denied the city’s petition for review, and the United States Supreme Court denied the city’s writ of certiorari.

On remand, Reagan asserted that the city had sent it a notice on November 2017, attempting to collect a billboard assessment for the year 2018 at the same rate that the court of appeals had recently held to be unconstitutional. Reagan asked the trial court to prohibit the city from collecting the 2018 assessment. The court denied Reagan’s request. Reagan then filed another motion in trial court requesting that the court render judgement awarding Reagan a refund of the total amounts it paid to the city for the years 2010-2018, enjoin the city from continuing to charge the unconstitutional tax, and award Reagan attorney’s fees. While that motion was pending, Reagan filed a motion for enforcement of mandate, or in the alternative, for clarification with the court of appeals. The court of appeals denied the motion. The trial court then signed a final judgment, after remand, awarding Reagan $198,450 in damages, $303,907 in attorney’s fees, and interest, and conditional appellate attorney’s fees. The court denied Reagan’s request for a refund for the additional years and Reagan’s request for an injunction to enjoin the city from continuing to charge the billboard assessment, concluding that such additional relief was outside the scope of the court’s authority. Reagan appealed.

The court of appeals concluded that it was beyond the scope of the trial court’s authority on remand to award an additional refund to Reagan. Additionally, because Reagan did not seek injunctive relief, the trial court had no authority on remand to reopen the record to consider an injunction. Accordingly, the court affirmed the trial court’s judgement.

Preemption: City of Houston v. Texas Propane Gas Ass’n, No. 03-18-00596-CV, 2019 WL 3227530 (Tex. App.—Austin July 18, 2019) (mem. op.).  This is an interlocutory appeal of the trial court’s order denying the City of Houston’s motion for summary judgement over claims for declaratory relief made by Texas Propane Gas Association (TPGA).

In 2015, the City adopted several ordinances and regulations that had the effect of placing new restrictions on the ability to store, use, handle, or dispense LP-Gas within the city. TPGA sued the city asserting that the ordinances imposed more restrictive conditions on the LP-Gas industry than those imposed by the Railroad Commission’s LP-Gas Safety Rules, adopted pursuant to Chapter 113 of the Texas Natural Resources Code. TPGA sought a declaratory judgement that the ordinances and regulations were invalid because they were preempted by state law and the LP-Gas Safety Rules. In the alternative, TPGA sought declarations that certain portions of the city’s regulations relating to fees and permits, aggregate water capacity of LP-Gas containers, required submission of applications and construction documents, and maximum storage capacity were preempted. TPGA filed a traditional motion for summary judgement on its claims, and the city responded with a motion for summary judgement for lack of jurisdiction and a traditional motion for partial summary judgement. The trial court denied the competing motions, and the city filed an interlocutory appeal on its jurisdictional challenge.

The court of appeals first looked at whether TPGA had standing to sue. The court concluded that it did not. The court determined that, although TPGA had met the first prong of the associational standing test by showing that at least one of its members had already been assessed fees for a permit that was required by the ordinances but not the LP-Gas Safety Rules, TPGA had failed to explain how any TPGA member, as opposed to a TPGA member’s customer, had suffered an injury fairly traceable to enforcement of alleged invalid regulations on LP-Gas. Because TPGA’s challenge to the city’s ordinances was not limited to permitting requirements but to all LP-Gas regulations promulgated by the city, the court concluded that TPGA had failed to meet the second prong of the test, which requires a demonstration that at least one of its members has suffered a particularized injury, distinct from the general public, that is fairly traceable to each of the city’s regulations relating to the LP-Gas industry that the declaration will redress. The court then addressed whether a civil trial court had the jurisdiction to determine the validity of ordinances and regulations that were penal in nature. The court concluded that TPGA’s suit to declare certain regulations invalid may be brought in civil court because there is a threat of irreparable injury to vested property rights. 

Accordingly, the court concluded that the trial court erred in denying the city’s motion for summary judgement, and remanded the case so that TPGA may have a reasonable opportunity to amend its pleadings, if possible, to demonstrate that it has standing to bring suit for declaratory relief.

Subpoena: In re Moore, No. 03-19-00233-CV, 2019 WL 3023973 (Tex. App.—Austin July 11, 2019).  This is a writ of mandamus filed by the City of Austin challenging the trial court’s order denying the city’s motion to quash a subpoena compelling production of police personnel records in a capital murder case.

After a former Austin Police Department (APD) police officer was indicted for capital murder, the police officer’s counsel sought to review the personnel files of five former and current APD officers who had investigated the alleged offense. The State served a subpoena duces tecum on the city seeking production of the requested records. In response, the city filed a motion to quash the subpoena arguing that the records contained confidential material that was not subject to disclosure pursuant to Section 143.089(g) of the Local Government Code. However, the city agreed to tender all confidential records to the trial court to conduct an in camera inspection for Brady material that may be contained in the confidential records. The court denied the motion to quash, including the city’s request for an in-camera inspection of the records.  The city then filed a petition for writ of mandamus.

The court of appeals granted the writ of mandamus. The court found that the trial court has a ministerial duty to conduct an in camera inspection of the personnel files before determining what, if any, portion of them should be disclosed. The court also concluded that because the city lacked an adequate remedy from the trial court’s failure to conduct an in camera inspection, the writ of mandamus was proper. Accordingly, the court ordered the trial court to vacate the order denying the motion to quash; to conduct an in camera inspection; and to enter an order quashing the subpoena to the extent that the subpoena compels production of any materials that the trial court determines are not required to be produced under Brady

Immunity: Loy v. City of Alice, No. 04-18-00969-CV, 2019 WL 3642656 (Tex. App. – San Antonio Aug. 7, 2019) (mem. op.). This case stems from an appeal of a trial court order granting the City of Alice’s plea to the jurisdiction in a personal injury case.

Loy alleged that while she was jogging at a city park, her foot was caught on a severed metal post that was sticking up approximately two inches from the ground and that she fell to the ground and shattered her left elbow. Loy sued the city asserting that because the metal post was camouflaged by leaves, dirt, and grass, the city had created a dangerous condition and was grossly negligent by failing to remove the metal post despite actual knowledge of the dangerous condition. The city filed a plea to the jurisdiction asserting that it did not have actual knowledge or awareness of the severed post, and produced affidavits, testimony, and photo evidence to support its claims. The trial court granted the city’s plea. Loy appealed. 

The court of appeals applied a burden-shifting analysis to determine whether, pursuant to the recreational use statute, the city conclusively established it lacked subjective awareness, or actual knowledge, of the dangerous condition. The court found that Loy’s allegation that the city created the dangerous condition permits an inference that the city had actual knowledge of the dangerous condition. The court then found that once the burden shifted to the city to produce evidence conclusively establishing it did not create the condition, the city failed to conclusively negate Loy’s allegation because none of the affidavits produced by the city positively and directly asserted that the city did not create the dangerous condition. The court also considered the alternative – if the evidence the city produced affirmatively negated that it did not create the dangerous condition would the city meet its burden.  If that was the case, the burden would have shifted back to Loy to produce evidence raising a fact issue. The court found that Loy had met this burden by producing deposition testimony from city staff who testified that the responsibility falls on park employees to alter or modify the metal posts located in the parks, and it was reasonable to conclude that removal of the posts was done by the city.  As such, the court concluded that the city failed to satisfy its burden to conclusively negate its actual knowledge of the alleged dangerous condition and, alternatively, that Loy raised a fact issue as to actual knowledge, the only issue the city raised in its plea.

Accordingly, the court reversed the trial court’s order of dismissal and remanded the case.

Jurisdiction: Meuth v. City of Seguin, No. 04-18-00205, 2019 WL 3208830 (Tex. App.—San Antonio July 17, 2019) (mem. op.). The case arises from an appeal from the trial court’s order granting the City of Seguin’s second plea to the jurisdiction.

Meuth owns a residence located in a subdivision that backs up to the Guadalupe River.  A steel drainage pipe runs underneath her residence and funnels storm water from a concrete inlet at the street underneath the property and into the river. In 2014, Meuth sued the city seeking monetary damages, declaratory relief, and injunctive relief because the flow of storm water from the subdivision through the drainage pipe culvert under her home caused soil erosion and instability on her property. In response to her suit, the city filed a plea claiming immunity from suit. The trial court granted the city’s plea and dismissed Meuth’s claims for an unconstitutional taking, declaratory judgement, intentional and negligent misrepresentations, fraud in a real estate transaction, and gross negligence. Meuth’s remaining claim for injunctive relief was severed into a separate cause of action. The court of appeals affirmed the trial court’s grant of the city’s plea to the jurisdiction finding that Meuth failed to plead a valid takings claim; her declaratory judgement claim was an impermissible attempt to obtain monetary damages because she sought to hold the city liable for costs associated with removing the drainage culvert and restoring the property; and that the city’s refusal to repair and replace the drainage culvert was a governmental function for which immunity is not waived (Meuth I). However, her claim for injunctive relief was not subject to the court’s decision in Meuth I. After Meuth I became final, the city filed a second plea to the jurisdiction in the severed action asserting that Meuth I controls the disposal of Meuth’s cause of action under the doctrine of “law of the case,” which provides that questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. Meuth amended her petition to include new factual allegations, a claim of nuisance, and broadened the injunctive relief requested. The trial court granted the city’s plea. Meuth filed a motion to reconsider and a new trial, which was denied by the trial court. Meuth appealed.

The court of appeals considered whether the doctrine of the “law of the case” applies to the city’s second plea to the jurisdiction. Because the “law of the case” only applies to questions of law, and not fact, when a party amends its pleadings in the second trial, the issues or facts may sufficiently change so that the law of the case no longer applies. The court determined that the legal analysis of the takings claim in Meuth I was based on the factual allegations in Meuth’s petition, as it existed at the time – allegations of inaction by the city. However, because Meuth amended her petition, before the trial court’s ruling on the city’s second plea, to add new factual allegations of affirmative, intentional acts by the city in support of her broadened request for injunctive relief and claim of nuisance, the “law of the case” doctrine did not apply. Additionally, the court concluded that the city waived any objections to Meuth’s amended petition as the city did not raise an objection to the amendment in trial court. Accordingly, the court reversed the trial court’s judgement and remanded the case.

Immunity: City of Dallas v. Rodriguez, No. 05-19-00045-CV, 2019 WL 3729504 (Tex. App.—Dallas Aug. 7, 2019). This case arises from an appeal of a trial court’s order denying the City of Dallas’ plea to the jurisdiction in a case involving an accident with a marked police vehicle.

Rodriguez alleged that she was injured after a Dallas police officer disregarded a red light and caused her vehicle to strike the officer’s marked vehicle. Rodriguez sued the City of Dallas alleging negligence, gross negligence, respondeat superior, and negligence per se. The city filed a plea to the jurisdiction arguing that the police officer was entitled to official immunity and the city was shielded from liability by governmental immunity because the officer was performing a discretionary function within the scope of her employment and acting in good faith. The city’s plea was supported by the officer’s affidavit describing the circumstances of the accident and her actions and perceptions of the urgency of the situation and risks involved. Rodriguez objected to the police officer’s affidavit arguing that it was hearsay and that five paragraphs of the affidavit should be excluded. The trial court denied the city’s plea and sustained Rodriguez’ objections to the affidavit except for one statement. The city appealed.

The court of appeals first looked at the sufficiency of the affidavit. The court concluded that Rodriguez did not state the specific grounds on which each identified section of the affidavit was objectionable, and as such the objections were not sufficiently specific.  The court next addressed whether the officer in the performance of discretionary duties acted in good faith so as to sustain the defense of official immunity. The court determined that the following evidence conclusively established that the officer was acting in good faith: (1) the officer was responding to a potentially life threatening emergency involving several unknown people beating on a woman’s door and threatening her with a gun; (2) the officer stopped at the intersection and believed, in good faith, that the need to get to the scene of the emergency call outweighed the perceived minimal risk of an accident; (3) the road was dry, traffic appeared to be yielding to the officer, and her emergency lights, siren, and air horn were activated; and (4) she did not perceive that proceeding through the intersection would cause any danger to any other driver near her location. Accordingly, the court concluded that the trial court erred in denying the city’s plea to the jurisdiction.

Exactions: City of Dallas v. 6101 Mockingbird, LLC, No. 05-18-00328-CV, 2019 WL 3296976 (Tex. App.—Dallas July 23, 2019) (mem. op.). This case arises from an appeal of the trial court’s order denying the City of Dallas’ partial plea to the jurisdiction in a land use claim.

Mockingbird, LLC (Mockingbird) purchased two adjoining properties located at the northeast corner of Skillman Avenue and Mockingbird Lane (Property), in which a gas station was located. The Property was zoned commercial retail, which required a minimum front-yard setback of 15 feet, measured from the edge of a dedicated roadway or highway. Mockingbird planned on developing the Property for medical services, and filed a plat application with the city to create two lots to allow for commercial use other than a gas station. The city approved the plat conditionally, providing that final approval required compliance with certain conditions, including a dedication to the city, in fee simple, of a 10-foot strip of land along Mockingbird Lane in furtherance of the city’s thoroughfare plan. Mockingbird notified the city that it believed the required dedication was an illegal taking and requested that the city perform a rough proportionality analysis pursuant to Section 212.904 of the Local Government Code. The city declined to offer compensation for the required dedication after a city engineer determined that the required dedication was roughly proportional to the impact of the proposed development project.  Mockingbird made the dedication in protest, but appealed the rough proportionality determination to the city’s planning commission claiming the strip of land was valued at $327,603.  The planning commission concluded that Mockingbird had failed to meet its burden of proof to overturn the city engineer’s finding. Mockingbird then appealed to the city council, which affirmed the planning commission’s decision.  As a result, Mockingbird filed suit in county court alleging violations of Section 212.904 and substantive and procedural due-process rights. Mockingbird also alleged that although the city’s setback requirement was not in and of itself an exaction, as applied, in combination with the required dedication, resulted in an exaction. The city filed a partial plea to the jurisdiction challenging the trial court’s subject-matter jurisdiction. The trial court granted the plea as to Mockingbird’s declaratory judgement claim and denied the city’s plea as to Mockingbird’s remaining claims. The city appealed.

The court of appeals determined that because Mockingbird did not assert a free-standing takings claim as to the setback requirement, the setback requirement may factor into the just compensation prong of its takings claim concerning the dedication. 

The court then considered the city’s claim that Mockingbird could not immediately complain about the setback impact because it did not present its complaints about the setback through the Section 212.904 process prior to bringing suit. The court concluded that it did not need to determine whether a complaint about a zoning requirement is a dedication because the setback requirement potentially relates to the just compensation prong of Mockingbird’s dedication takings claim. The court also held that the fact that the city did not condition approval of Mockingbird’s plat on the setback placement does not preclude a claim for the exaction of the 10-foot right-of-way and possibly the consideration of the application of the setback requirement in determining the extent of Mockingbird’s damages. Accordingly, the court upheld the trial court’s judgement with a modification to delete the trial court’s references to setback regulations because Mockingbird clarified that its reference to the setback requirement related to damages it claimed as a result of the required dedication.

Immunity: CJK Trucking, L.P. v. City of Honey Grove, No. 05-18-00205, 2019 WL 3296978 (Tex. App.—Dallas July 23, 2019).  This case stems from an appeal of the trial court’s order granting the City of Honey Grove’s plea to the jurisdiction in a case involving an automobile accident.

Williamson, an off-duty police officer for the city, was traveling north on a highway when he observed a City of Trenton police car with its lights activated parked behind a private vehicle and an unmarked SUV blocking the police car in. Williamson thought the scene was not secure and atypical because he could not see the officer, and the patrol vehicle was blocked in at a liquor store attached to a gun shop after hours, raising concerns that the officer might be ambushed, in distress, in need of assistance or be in physical danger. Williamson engaged his emergency lights and attempted to make a U-turn to go south. Ketan and Manali Amine, who were travelling southbound on the highway, were able to stop and avoid colliding with Williamson; however, they were rear-ended by a tractor trailer that could not stop on time. The tractor trailer was owned or leased by CKJ Trucking and driven by Bond. The Amines filed suit against Bond and CKJ Trucking alleging various claims for negligence. Bond and CKJ Trucking then filed a third party petition against Williamson and the city alleging that the city’s governmental immunity was waived because the accident and the Amines’ injuries were proximately caused by the wrongful act or omission or negligence of an employee acting within the scope of his employment and the accident arose from the operation or use of a motor-driven vehicle or motor-driven equipment. The city filed a motion to dismiss and a motion to sever asserting that the case did not fall within the limited waiver of immunity under Section 101.021 of the Tort Claims Act and that the trial court lacked jurisdiction because Williamson was not acting within the scope of his employment at the time of the accident. The trial court granted the city’s motion to dismiss with prejudice. Bond and CKJ Trucking appealed.

The court of appeals looked at whether Williamson was acting within the scope of his employment at the time of the accident. Police officers have a duty to prevent crime and arrest offenders 24 hours a day, and that public duty is triggered any time an officer observes a crime outside the hours of his official work. As a result, the court concluded that Williamson acted within the scope of his employment with the city as his authority to act as a peace officer was triggered by reasonable suspicion. Accordingly, the city’s immunity was waived. The court reversed the trial court’s order and remanded the case for further proceedings.

Immunity: Socorro Indep. Sch. Dist. v. Hamilton, No. 08-18-00091-CV, 2019 WL 3214154 (Tex. App.—El Paso July 17, 2019). In this Eighth Circuit District Court of Appeals case, the court affirmed the lower court’s decision to deny the school district’s plea to the jurisdiction because the settlement agreement entered into did not have the effect of creating governmental immunity.

Hamilton had been employed by the Socorro Independent School District (SISD) since 1996. In 2014, Hamilton entered into a contract to work as the head orchestra director at William D. Slider Middle School for the 2014-2015 school year. He was informed sometime later that his contract would not be renewed for the 2015-2016 school year. At this point Hamilton was over the age of forty and believed his nonrenewal was due to age discrimination. After some negotiations with the school district, he signed a “Separation Agreement and Release of Claims.” Hamilton released his rights to any federal or state law claims including claims for discrimination under Federal and Texas law in exchange for the school district agreement to pay Hamilton up to the date of his resignation and provide neutral references to prospective employers. A year later Hamilton filed suit against SISD alleging they had breached the settlement agreement by providing references that were not neutral. SISD filed a plea to jurisdiction which was denied at the lower court, asserting that Hamilton’s claims were barred by governmental immunity.

The court held that governmental immunity had been waived in this case on Hamilton’s age discrimination claim. The court explained that if a claim asserted would have waived governmental immunity at the time that the settlement was signed then entering into the settlement agreement does not create governmental immunity. Further, the settlement agreement acknowledged SISD’s exposure to discrimination claims. Hamilton signing the agreement precluded him from asserting his age discrimination claims during the required time frame, but did not have the effect of creating governmental immunity.

Immunity: Houghton v. City of Cisco, No. 11-18-00029-CV, 2019 WL 3023539 (Tex. App.—Eastland July 11, 2019) (mem. op.). In this interlocutory appeal, the Eleventh District Court of Appeals held that the City of Cisco waived its government immunity on an inverse-condemnation claim, but not under the Texas Tort Claims Act (TTCA).

Lloyd Houghton, Vicki Johnson, and Mark A. Smith all leased property from the city located along the shore of Lake Cisco. Lake Cisco and the attached dam that controls the water level of the lake are also owned by the city. In 2016, the lessees’ properties were flooded which resulted in damages to the properties. The lessees alleged that the city’s decision to continue to pump water into the lake and not open the sluice gates to the dam, even though the water had risen to higher levels due to rain, caused the flooding. The lessees sued the city under theories of inverse condemnation and negligence under the TTCA. The city filed a plea to jurisdiction on all claims which was granted at the lower court. The lessees appealed that decision.

In reviewing a plea to jurisdiction, a court must look at the plaintiff’s jurisdictional evidence contained in their pleadings, construe them in a light most favorable to the plaintiff, and determine if jurisdiction is affirmatively demonstrated. The Eastland Court of Appeals held the lower court did have jurisdiction over the inverse condemnation claims and immunity had been waived because, taking the lessees’ allegations as true, their pleadings sufficiently alleged each element of an inverse condemnation claim. However, the court held that immunity was not waived on the TTCA claim because the city’s actions fell within the discretionary acts exception to the waiver of government immunity for property damage. Specifically, the court had held in past cases that a governmental entity’s decision to release or not release water was a discretionary action.

Immunity: City of Waco v. Citizens to Save Lake Waco, No. 10-17-00202-CV, 2019 WL 3047205 (Tex. App.—Waco July 10, 2019) (mem. op.). Citizens to Save Lake Waco filed suit against the City of Waco for breaching a settlement agreement in which the city agreed, among other things, not to expand the boundaries of a landfill. The city filed a plea to the jurisdiction on the basis that it is immune from suit under the doctrine of governmental immunity. The trial court denied the city’s plea, and the city appealed.

The appellate court held that the underlying claims of Citizens to Save Lake Waco are not ripe. The only action the city has taken is to purchase two tracts of land adjacent to the landfill. Nothing in the record shows the city has expanded or intends to expand the landfill. Accordingly, the case is remanded to the trial court with instructions to vacate its Order Denying Defendant’s Plea to the Jurisdiction and dismiss the suit for want of jurisdiction.

Immunity: City Of Tyler v. Owens, No. 12-16-00128-CV, 2019 WL 3024756 (Tex. App.—Tyler July 10, 2019) (mem. op.). In this interlocutory appeal, the Twelfth District Court of Appeals affirmed the lower court’s denial of a plea for jurisdiction because the City of Tyler waived its governmental immunity through proprietary contracting.  

The city owns the property around Lake Tyler which it leases out to people for the purpose of building lake houses. The Chatelains lease property on the lake that is pie-shaped and is located between property owned by the Owens and the Terrys. The Chatelains wanted to build a boathouse and dock. Because of the shape of their property they had a limited waterfront which resulted in their neighbor’s claiming that the boathouse and dock would encroach on their lot lines extending into the water. The city granted the Chatelains construction permit to build. The Owens and Terrys filed suit against the city and the Chatelains asserting several claims for actual and exemplary damages, injunctive, and declaratory relief. The city filed a plea to jurisdiction, asserting that they had governmental immunity from suit which was denied by the lower court. The city filed this interlocutory appeal.

A governmental entity waives immunity in a breach of contract claim when the entity is engaged in a proprietary function during the period the contract is entered into and not when the breach occurs. The court considered four factors when determining whether the city engaged in a proprietary or governmental function, whether: “(1) the City’s act of entering into the leases was mandatory or discretionary, (2) the leases were intended to benefit the general public or the City’s residents, (3) the City was acting on the State’s behalf or its own behalf when it entered the leases, and (4) the City’s act of entering into the leases was sufficiently related to a governmental function to render the act governmental even if it would otherwise have been proprietary.” The city argued that this test should not apply to their actions, but the court held that the lessees’ claims are based on the breach of the lease between the city and the tenants so it is the correct test.

The court held that the contract between the city and the tenants was made in the city’s proprietary function after weighing all four of the factors. The decision to lease the property was discretionary. The city entered into the lease to benefit its own residents rather than the general public. The city acted on its own behalf when making the decision to lease the property. Finally, leasing the land was not essential to the operation or maintenance of the lake. Based on all these factors, the city acted in a proprietary manner when it contracted with the lessees which waived its immunity.

Texas Tort Claims Act: City of McAllen v. Quintanilla, No. 13-18-00062-CV, 2019 WL 3023325 (Tex. App.—Corpus Christi July 11, 2019) (mem. op.). In this Thirteenth District Court of Appeals case, the court reversed and rendered judgment in favor of the City of McAllen, dismissing the case for lack of jurisdiction.

Quintanilla slipped and fell at a bus station owned by the city. He did not have a bus ticket but was there to send off his aunt who did have a ticket. Quintanilla brought a premises liability claim under the Texas Tort Claims Act (TTCA). The city filed a plea to jurisdiction, which was denied at the lower court. The city appealed that decision and asserted that the lower court did not have subject matter jurisdiction.

The TTCA provides a limited waiver of immunity for the conditions or use of real property. The defendant must prove that the governmental entity breached the duty owed for immunity to be waived. Governmental entities owe a lesser duty to licensees than they do to invitees. Quintanilla argued that the city owed him the duty owned to an invitee because he was there with his aunt who had purchased a ticket. To be an invitee, a person must have paid to be on the premises. The court concluded that the purchase of a ticket by Quintanilla’s aunt did not mean he paid to be on the premises and thus was only owed the duty owed to a licensee.

The duty owed to a licensee required the owner to not “injure a licensee by willful, wanton, or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not”. The court held that there was no evidence that the city was grossly negligent in its behavior, nor did any of the employees have actual knowledge of the hazardous condition. Therefore, the city did not breach its duty and immunity was not waived under the TTCA.

Police Officers: Williams v. City of Austin, No. 14-18-00262-CV, 2019 WL 3227513 (Tex. App.—Houston [14th Dist.] July 18, 2019) (mem. op.). In this Fourteenth District Court of Appeals case, the court affirmed the district court’s decision to grant the city’s plea to jurisdiction.

Williams became a police officer with the city in 2008 and in the following years was involved in several incidents that he received suspensions for. The first incident was in 2011 when he was in an altercation while off-duty for which he was suspended and placed on probation. Williams later asked for and received an expunction order for certain information relating to the incident. The second incident occurred in 2013 in which Williams was suspended indefinitely for off-duty dishonesty and negligence of duty. Williams appealed the indefinite suspension to an independent hearing examiner. While the appeal was pending, Williams’ name rose to the top of the promotion eligibility list. Officers at the top of the list must be promoted unless there is a valid reason not to promote them. The police chief passed over Williams for promotion three times because of the indefinite suspension that was pending. Williams appealed this decision to an independent examiner as well. In the appeal for the second incident, the examiner upheld the dishonesty charge, shortened the suspension, and Williams was allowed to return to duty. In Williams’ promotion appeal, the independent examiner determined that the police chief had a valid reason to pass over Williams, but that the chief had improperly included documents related to the first incident in the materials he presented. Williams appealed that decision and asserted three points on error.

In municipal civil service promotional bypass cases, a police officer may appeal to the Fire Fighters’ and Police Officers’ Civil Service Commission or to an independent hearing examiner. If a police officer chooses an independent hearing examiner they lose their right to appeal to the courts unless they can prove that the examiner either was without jurisdiction or exceeded their jurisdiction. Williams asserted that the lower court had jurisdiction because the examiner was sent documents prior to the hearing, the examiner exceeded his jurisdiction because the meet and confer document preempted several statutes and policies, and the examiner exceeded his jurisdiction by considering expunged documents.

The court held that the electronic submission of documents to the examiner before the hearing did not make the resulting order invalid. Examiners are required to make their decisions based only on evidence at the hearing. There was no evidence that the examiner had viewed the documents before the hearing and even if he had the documents presented at the hearing were the same ones that were submitted. Therefore, his decision was based on documents that were submitted at the hearing.

Next, the court held that all of Williams’ arguments regarding preemption were without merit because there was no conflict between the meet and confer document and statutes or policies. Finally, the court held that the examiner did not exceed his jurisdiction because the examiner did not rely on the expunged information when making his decision. The examiner expressly stated in his opinion that he did not consider that information and that it had been improperly included in the materials.

Texas Tort Claims Act: Nguyen v. SXSW Holdings, Inc., No. 14-17-00575-CV, 2019 WL 3231057 (Tex. App.—Houston [14th Dist.]  July 18, 2019). After a driver maneuvered around a barricade and accelerated into a group of South by Southwest (“SXSW”) festivalgoers (“plaintiffs”), killing four people and injuring several others, some of the injured parties and their survivors filed a civil action against the City of Austin and organizers of SXSW (the driver was charged with capital murder and convicted). The plaintiffs’ sued to recover on claims of negligence, premises liability, and public nuisance, arguing that the safety measures were inadequate to protect pedestrians and that it was foreseeable that a vehicle would penetrate the barricades and collide with festivalgoers. The defendants filed several different summary judgment motions. The trial court merged all defendants’ summary judgment motions into a final take-noting judgment. The plaintiffs appealed.

The trial court’s final judgment did not identify which one of the city’s summary judgment motions it granted, so on appeal the court considered the city’s jurisdictional argument that the city did not waive its governmental immunity.  The court held that the trial court should have granted the city’s jurisdictional challenge, primarily because the plaintiffs’ complaints relate to the adequacy of police protection, barricades, traffic control plans, and the maintenance of traffic hazards, all of which would be considered to be a governmental function for purposes of the Texas Tort Claims Act. Plaintiffs’ contended that the city was actually engaged in a proprietary function because it was operating an amusement along with the other defendants. However, because the city did not own SXSW, the court could not conclude that the city engaged in a proprietary function on that basis. Because the plaintiffs’ pleadings were unable to clearly articulate a valid waiver of immunity, the city retained its immunity. The court concluded that the trial court should have dismissed the plaintiffs’ claims against the city for want of jurisdiction.

*Indicates case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry.  To sign up for the firm’s blog, go to www.rshlawfirm.com.

All Rights Reserved