Recent Texas Cases of Interest to Cities

Note: Included cases are from July 11, 2020 through August 10, 2020.

Breach of Contract: In re Republican Party of Tex., No. 20-0525, 2020 WL 4001050 (Tex. July 13, 2020). In this case, the Texas Supreme Court denied the Republican Party of Texas’s petition for writ of mandamus in response to the City of Houston cancelling the agreement for the Party to use its convention center for its 2020 State Convention.

The termination letter invoked a force majeure clause in the Agreement and cited “the unprecedented scope and severity of the COVID-19 epidemic in Houston.” The next day, the Party sued for a declaration that the city had breached the agreement, an injunction prohibiting termination, and specific performance. The trial court denied the Party’s temporary restraining order. The Party appealed directly to the Texas Supreme Court for mandamus under Section 273.061 of the Election Code to order the city to perform under the contract.

Section 273.061 gives the Texas Supreme Court jurisdiction to “issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention, regardless of whether the person responsible for performing the duty is a public officer.” Section 1.005(10) defines “law” in the Election Code to mean “a constitution, statute, city charter, or city ordinance.” Id. § 1.005(10). Thus, “duty imposed by law” in Section 273.061 is limited to a duty imposed by a constitution, statute, city charter, or city ordinance. The agreement was not a law. Therefore, the Texas Supreme Court lacked jurisdiction and dismissed the petition.

Whistleblower Claims/Employment Law: OakBend Med. Ctr. v. Simons, No. 01-19-00044-CV, 2020 WL 4457972 (Tex. App.—Houston [1st Dist.] Aug. 4, 2020) (mem. op.). In this case, the First Court of Appeals overturned the jury verdict in favor of Simons for her whistleblower claims.

Simons was a staff nurse with OakBend Medical Center (the hospital). Simons made complaints to OSHA for violations because she contended the hospital: (1) did not have adequate security or security guards, which made the workplace unsafe; and (2) retaliated against her for her first complaint by refusing to pay for tuition for her to become a nurse practitioner. After an investigation, OSHA and the Department of Labor determined there was not enough evidence to substantiate either complaint.

Separately, Department of State Health Services investigated a complaint against Simons that she kicked a patient in the foot. The DSHS investigation determined that the hospital had an “immediate jeopardy” situationand instructed the hospital to submit a plan to address how it intended to remove the threat. The hospital suspended Simons on the same day and later terminated her employment.

Simons filed a whistleblower lawsuit claiming the hospital retaliated against her for filing OSHA complaints. At trial, the jury found in favor of Simons. The jury determined that she had made her complaints in good faith and suffered damages because of the retaliation. The hospital appealed the jury verdict.

The hospital argued on appeal that the Texas Whistleblower Act does not protect Simons because she failed to present any evidence that she acted in good faith in filing either of her complaints with OSHA. To prove a claim under the Whistleblower Act, a public employee must demonstrate that she reported a violation of law in good faith and that the adverse employment action by the employer would not have occurred had the report not been made. City of Houston v. Levingston, 221 S.W.3d 204, 226 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see also TEX. GOV’T CODE §§ 554.002, 554.004.

Regarding the first complaint, the hospital argued that Simons did not file her first complaint to OSHA regarding the hospital’s alleged lack of security in good faith because she did not subjectively believe the hospital had violated a law. The First Court of Appeals agreed. Although Simons felt that the security was inadequate, she cited to no law that the hospital violated.

Next, the hospital contended that Simons’s second complaint to OSHA for the denial of her tuition reimbursement cannot form the basis of a retaliation cause of action because she failed to present evidence that the hospital knew about her second complaint before it suspended her and terminated her employment. The appellate court agreed.

Having ruled in favor of the hospital on both issues, the First Court of Appeals reversed the trial court’s judgment and rendered judgment that Simons take nothing on her claims.

Land Rights: City of Mansfield v. Savering, No. 02-19-00174-CV, 2020 WL 4006674 (Tex. App.—Fort Worth July 16, 2020) (mem. op.). In this lengthy opinion, the Fort Worth Court of Appeals holds certain private property owners did not establish a right to declaratory relief regarding fee-simple ownership of lots over which the City of Mansfield exercised some regulatory control, asserting they were public paths.

A developer filed a final plat in Tarrant County, creating a planned housing development called The Arbors of Creekwood – Gated Community (the Development). The Development was in the city and had two Homeowners Associations (HOA). An amended plat divided the lots into R1 and R2 lots. All R2 lots were in the floodplain, which was governed by city ordinance. The developer created a lake and connected jogging paths ending at the lake. The developer testified the paths were for public use. The boundary line for the R2 lots abutting the lake was to the north of the lake; thus, the lake was not included within the boundaries of these R2 lots. The developer executed a declaration of covenants, conditions, and restrictions (the Declaration) for the Development and filed them in Tarrant County. The Declaration stated the HOAs owned fee-simple title to private streets in the Development and “common properties” which had a complicated definition. In 1997, the Arbors HOA forfeited its right to do business and became a terminated entity. The surviving HOA asserted the Arbors HOA property lots (R2) automatically transferred to it.

In January 2012, the city began planning for a “possible future trail connection” to the jogging path. Construction on the bridge began in 2013 and opened on January 25, 2014. Some owners of R1 lots noticed an increase in people using the jogging path and trespassing on the R1 lots. The R1 owners sued seeking a declaration they owned the R2 lots as common properties, and seeking to quiet title. The court of appeals issued an interlocutory opinion in review of a temporary injunction noting the R2 lots were included in the definition of “common properties.” The R1 Owners also raised claims against the city defendants for trespass and inverse condemnation. The city defendants filed a traditional and no-evidence motion for summary judgment, including arguments that the facts and law had substantially changed since the interlocutory order. They argued the R1 owners did not have a right to possess the R2 lots (which were originally owned by the defunct HOA) and that they did not have a private right to enforce a city ordinance on floodplain development. The trial court denied the city defendants’ motions and granted the partial summary judgment of the R1 owners. The city defendants appealed.

The court first went through a detailed analysis of the evidence submitted, objections to the evidence, and what constituted judicial admissions. The court held the law-of-the-case doctrine only applied to claims fully litigated and determined in a prior interlocutory appeal; it did not apply to claims that have not been fully litigated. The law-of-the-case doctrine is flexible and directs the exercise of court discretion in the interest of consistency but does not limit its power. The interlocutory opinion (which was a complicating obstacle) did not address the R1 Owners’ UDJA claim regarding title to the R2 lots, only a probable right of relief for trespass claims based on an undeveloped record. The court noted they were substantially different arguments, issues, law, and review standards. The city argued the R2 lots owned by the defunct HOA could be distributed only under the terms of the articles of incorporation and could not pass to the live HOA automatically. The court agreed with the city that the R1 owners did not establish a proper conveyance under the articles.

Next, the court turned to the floodplain ordinance, where the R1 owners asserted the city failed to follow its own ordinance by obtaining studies before constructing structures in the floodplain connecting the jogging paths. The city defendants’ argument that no private cause of action to enforce the ordinance exists is one of standing. The R1 Owners did not challenge the validity of the ordinance, but rather asserted that they wanted a construction of the ordinance and enforcement of it against the city defendants. The R1 Owners did not have a right to enforce the ordinance through a UDJA claim, which only waives immunity for ordinance invalidation. Alternatively, under the record, the R1 owners did not establish the city violated the ordinance. The city defendants proffered summary-judgment evidence raising a fact issue on their substantial compliance.  Finally, since the court held the R1 owners could not bring a UDJA claim, the attorney’s fee award was reversed.*

Texas Tort Claims Act: City of Austin v. Anam, No. 03-19-00294-CV (Tex. App.—Austin July 30, 2020) (mem. op.).  In this Texas Tort Claims Act case, the court of appeals upheld the trial court’s denial of the city’s plea to the jurisdiction for a detainee’s death by suicide while in a patrol vehicle.

Anam was arrested for allegedly shoplifting. The arresting officer performed an inadequate search of Anam and failed to detect a handgun that was attached to the front of Anam’s waistband. The officer handcuffed Anam’s hands behind his back, placed him in a patrol car, and fastened his seatbelt. During the ride, the lap belt portion of Anam’s seatbelt unfastened, and after he revealed to the officer that he was suicidal, he told the officer that he had a loaded firearm pointed at his own head. The officer stopped and exited the vehicle. Anam then shot himself and died. His family sued the city under the Tort Claims Act alleging waiver of the Act applies for death caused by use of a motor-driven vehicle or, alternatively, for death caused by a condition or use of tangible personal property. The city filed a plea to the jurisdiction. The trial court denied the plea, and the city appealed.

The court of appeals concluded that the improper use or failure to use a vehicle’s safety equipment can constitute use of a motor vehicle, and that the officer’s failure to secure Anam’s seatbelt constituted use or operation of a motor vehicle. Additionally, the court found that given the officer’s testimony regarding the suicidal tendencies of detainees, his awareness that Anam was despondent, his general awareness that detainees are often in possession of weapons, and the video showing that for most of the drive, Anam was not property restrained by the seatbelt and was in possession of a weapon, the family had met their burden of raising a fact issue regarding foreseeability. Accordingly, the court affirmed the trial court’s order. The appellate court did not address the issue of whether Anam’s death was caused by a condition or use of tangible personal property.

Texas Tort Claims Act: Webb Cty. v. Lino, No. 04-19-00891-CV, 2020 WL 4218714 (Tex. App.—San Antonio July 22, 2020) (mem. op.). This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the San Antonio Court of Appeals affirmed the denial of the county’s plea to the jurisdiction.

Webb County Sheriff’s Deputy Mauro Lopez witnessed Saldivar pass a vehicle from a no-passing lane on a three-lane highway. Deputy Lopez applied his brakes to make a U-turn prior to initiating his lights and siren. The video from Deputy Lopez’s dash camera shows he slowed down from 70 miles per hour to 16 miles per hour in seven seconds. During this time, he began moving into the center turn lane, effectively blocking all traffic behind him. This caused drivers behind Lopez to brake suddenly, and an 18-wheeler truck to jackknife and skid into the westbound lane, directly into Saldivar’s path. Saldivar’s truck and the 18-wheeler collided, resulting in the death of killing Saldivar and all passengers. The families sued, and the county filed a plea to the jurisdiction. The plea was denied and the county appealed.

The county asserted Deputy Lopez did not control the 18-wheeler which caused the accident, so no waiver of immunity exists. The TTCA waives immunity if the injury “arises from the operation or use of a motor-driven vehicle.” The TTCA does not define the term “arises from” but case law states it requires a nexus between the operation or use of the motor-driven vehicle or equipment and cause of the plaintiff’s injuries. The Texas Supreme Court has “described the threshold as something more than actual cause but less than proximate cause.” The necessary causal nexus requires a showing that the use of the vehicle actually caused the injury. Deputy Lopez testified that a vehicle going far below the speed limit poses a hazard to vehicles traveling behind it. The police crash report notes witnesses stated it was Deputy Lopez’s drastic reduction in speed which caused following traffic to have to take evasive measures. Taking the pleadings in a light most favorable to the non-movants, the court held  the evidence in this case raises a fact question about whether Deputy Lopez’s operation or use of his vehicle was “directly, causally linked to the accident and the damages sustained.”

The court next considered whether Deputy Lopez possessed official immunity. Such immunity is governed by the needs/risk analysis. The court agreed Deputy Lopez was performing a discretionary duty in choosing to pursue the perceived traffic violation. However, Webb County did not conclusively establish that a reasonably prudent officer could have determined Deputy Lopez’s actions were justified under these circumstances. There was no detailed analysis of the need for immediate apprehension versus the risks related to the U-turn at that point and in that manner. Finally, as to the county’s assertion under the emergency responder exception, routine traffic stops were not listed as emergency calls in the department manual, Deputy Lopez did not activate his lights or siren, he did not call dispatch to notify the situation was an emergency, and nothing indicates there was an immediate need to pull in front of oncoming traffic as opposed to waiting for traffic to be more cleared or by activating lights/sirens. As such, the plea was properly denied.

Uniform Declaratory Judgment Act: Kehoe v. Kendall Cty., No. 04-19-00825-CV, 2020 WL 4045991 (Tex. App. —San Antonio July 15, 2020) (mem. op.). This is a declaratory judgment case involving a private property easement where the San Antonio Court of Appeals affirmed the city’s plea to the jurisdiction and awarded sanctions against the plaintiff.

Kehoe asserts Kendall County improperly accepted a 40-foot easement across her property and sought a declaration no easement exists. She brought suit under the Uniform Declaratory Judgment Act (UDJA) and the Texas Private Real Property Rights Preservation Act (PRPRPA). The county filed a plea to the jurisdiction, which was granted, and sought sanctions asserting that Kehoe previously sued over the easement and lost. The trial court granted sanctions and Kehoe appealed.

The court first held that Kehoe’s arguments in her brief, even broadly construed, do not address the trial court’s jurisdictional dismissal. The briefings consist solely of bare assertions of error, without citations to applicable authority or the record. Since nothing was properly briefed for review, the plea to the jurisdiction remains properly granted. Likewise, Kehoe does not address the standards for sanctions and so they are likewise affirmed.*

Texas Tort Claims Act: Shaw v. City of Dallas, No. 05-19-01233-CV, 2020 WL 4281789 (Tex. App.—Dallas July 27, 2020) (mem. op.). In this Texas Tort Claims Act case, the court of appeals upholds the trial court’s dismissal of the pro se plaintiff’s action against the city.

The plaintiff called an ambulance after suffering severe stomach pain. He alleges that the driver of the ambulance hit potholes on the way to the hospital exacerbating his injuries. The plaintiff had surgery to fix the stomach issue. The plaintiff sued the city under the Tort Claims Act arguing that the bumpy ambulance ride exacerbated his stomach injury. The city argued that there was no evidence that the ambulance ride caused the stomach injury because the injury was a pre-existing condition. The trial court dismissed the plaintiff’s claims for lack of sufficient evidence.

In order to waive the government’s immunity through the Tort Claims Act, the plaintiff has to allege that the government employee caused an injury. Despite the court’s liberal construction of the pro se plaintiff’s petitions and evidence, the only evidence presented that alleged wrongdoing by the city occurred was the statement by the nurse practitioner that the bumpy ride might have “add[ed] more pain to the abdomen area.” The court of appeals agreed with the trial court that this statement alone was insufficient to waive immunity. The court also noted that it does liberally construe pro se plaintiff pleadings but has to hold a pro se plaintiff to the same procedural standard as a plaintiff with counsel in order to avoid giving a pro se applicant an unfair advantage.*

Referendum Petition: Carruth v. Henderson, No. 05-19-01195-CV, 2020 WL 4199065 (Tex. App.—Dallas July 22, 2020).  This is a mandamus action (and second interlocutory opinion) where the Dallas Court of Appeals issued a mandamus against the city secretary of the City of Plano regarding a citizen’s referendum petition and granted summary judgment for the plaintiff citizens.

The City of Plano, a home-rule municipality, has a comprehensive plan for land and use development under Chapter 213 of the Texas Local Government Code. The City of Plano’s charter permits qualified voters to submit a referendum petition seeking reconsideration of and a public vote on any ordinance, other than taxation ordinances. After the city passed an ordinance amending and adopting a new comprehensive plan, several citizens submitted a petition to the city secretary for a referendum to repeal the new plan. The city council held an executive session and was advised by outside legal counsel that the petition was not subject to a referendum vote. When no action was taken on the petition, the citizens filed suit to compel formal submission to the city council and to have the city council either take action or submit the issue to a popular vote. The city secretary filed a motion for summary judgment, which was granted. The citizens appealed.

The legislature may preempt municipal charters and ordinances. However, when preempting a home-rule charter, the language must be clear and compelling. The Plano City Charter itself excepts only ordinances and resolutions levying taxes from the referendum process. And while Chapter 213 of the Texas Local Government Code regulates the adoption of comprehensive plans, the mere fact that the legislature has enacted a law addressing comprehensive plans does not mean the subject matter is completely preempted (which would have foreclosed a referendum application). The city secretary claims Section 213.003 impliedly withdraws comprehensive development plans from the field of initiative and referendum by mandating procedural requirements, including a public hearing and review by the planning commission before cities can act on such plans. This argument ignores that the Section 213.003(b) also allows a city to bypass the procedures set forth in subsection (a) and adopt other procedures in its charter or by ordinance. Thus, the legislature did not limit the power of home-rule cities to adopt comprehensive plans. Further, comprehensive plans, while linked to, are to be treated differently than zoning regulations. So, the cases cited by the city secretary related to zoning referendums are not applicable. The order granting the city secretary’s motion for summary judgment is reversed. 

Because the original interlocutory opinion held the city secretary has a ministerial duty to present the petition to the city council, the law-of-the-case doctrine prevents the panel from holding otherwise. As a result, the appellate court must grant the citizen’s motion for summary judgment.*

Attorney Fees: Rickert v. Meade, No. 06-20-00002-CV, 2020 WL 4354946 (Tex. App.—Texarkana July 30, 2020) (mem. op.). In this Section 1983 case on an attorney fees award, the appellate court upheld the trial court’s grant of attorney fees in favor of the defendant, City of Bonham, because the plaintiff did not establish even a prima facie case.

The plaintiff was terminated from his city employment after a co-worker filed a sexual harassment claim against him based on an allegedly consensual relationship. The Texas Workforce Commission determined that the sexual harassment claim against the plaintiff was baseless. The plaintiff sued the city under Section 1983 asserting entitlement to a name-clearing hearing. The trial court dismissed the claim for lack of evidence and awarded attorney’s fees to the city. The plaintiff appealed the attorney fee award.

In order for an attorney fee award to be upheld against a plaintiff in favor of a defendant, it has to be shown that “the plaintiff’s action was frivolous, unreasonable, or without foundation even though not brought in subjective bad faith.” Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting Christiansburg, 434 U.S. at 421). The plaintiff’s action was based on the lack of a name-clearing hearing after his termination.  A terminated individual has the right to a name-clearing hearing where the employee’s “good name, reputation, honor, or integrity” is questioned during a termination. Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650, 653 (5th Cir. 2006). In this case, the plaintiff provided no evidence that he was denied a name-clearing hearing, or that he even requested one. Evidence was presented that he was provided a chance to be heard at a hearing prior to termination. The court of appeals held this lack of evidence was sufficient to show that the trial court did not abuse its discretion.*

Texas Tort Claims Act: City of Houston v. Mejia, No. 14-19-00559-CV, 2020 WL 4092253 (Tex. App.—Houston [14th Dist.] July 21, 2020). This is a Texas Tort Claims Act (TTCA) case involving a motor vehicle accident in which the 14th Court of Appeals affirmed an order denying the city’s jurisdictional challenge on interlocutory appeal.

Isabel Mejia was driving her vehicle when Sergeant Michelle Gallagher (Gallagher) of the Houston Police Department failed to yield the right of way at an intersection and hit Mejia’s vehicle. The Mejias sued Gallagher and the city for personal injuries. The Mejias’ claims against Gallagher were dismissed pursuant to the city’s motion under Texas Civil Practice and Remedies Code Section 101.106(e). The city originally admitted Gallagher was in the course and scope of her employment at the time, then later amended responses to Mejia’s request for admissions and denied she was within the course and scope. The city then filed a motion for summary judgment asserting Gallagher was not within her course and scope of employment at the time of the accident. Essentially, the city found out that Gallagher’s husband (a police lieutenant) asked her to drive his “take home” police vehicle from the mechanic’s garage and was delivering it to their home when she was involved in the accident. Gallagher testified that at the time of the accident she was driving home, had no official duties, was not being paid, was not responding to a call for service, criminal activity, or an emergency situation. The motion was denied and the city appealed.

Under the TTCA, “scope of employment” means the performance of “the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Whether she was on duty, off duty, or using a police vehicle or not, is not dispositive. The focus is on the capacity in which the officer was acting at the time of the accident (i.e. what the officer was doing and why she was doing it.) Gallagher’s affidavit reflects that her husband (a superior officer employed by Gallagher’s employer) asked her to pick up his city-issued vehicle from the city garage so her superior officer would have the vehicle available at the beginning of his shift (a benefit to Gallagher’s employer). Gallagher was not merely commuting to work, but running an errand for the city. As a result, the city did not conclusively negate Gallagher’s course and scope.

Chief Justice Frost’s dissent asserts the majority used the wrong legal standard. Nothing in the record shows that in picking up her husband’s work vehicle and driving it to their home, Sergeant Gallagher was acting on the instructions of a supervisor or other superior in her chain of command. The mere conferring of an employer benefit is not the proper legal test.*

Sales Tax Delinquency: State v. Hunter, No. 14-18-00678-CV, 2020 WL 4211241 (Tex. App.—Houston [14th Dist.] July 23, 2020) (mem. op.). The Texas Comptroller of Public Accounts audited Hunter Agri Construction, Inc., and determined that the company had underreported sales taxes. Hunter Agri Construction and the comptroller entered into an “Agreement on Insolvency Relief,” which included a term designated Jerry Hunter (Hunter) as the co-guarantor. Hunter signed the agreement with the designation “President” underneath his signature. Hunter also signed a separate “Payment Agreement” with the comptroller, which he signed with the designation “Taxpayer Title: Pres” underneath his signature. The Payment Agreement included a signature line for “co-guarantor” that was left blank. After Hunter missed two required payments, the state and multiple cities and counties (state) sued Hunter for breach of contract, alleging he was individually liable for Hunter Agri Construction’s tax liability under the payment agreement as a “co-guarantor of payment.” Both the state and Hunter filed motions for summary judgment. Ultimately the trial court denied the state’s motion, granted Hunter’s motion, and rendered a take-nothing judgment against the state. The state appealed.

The first issue on appeal was whether the state conclusively showed that a breach of contract occurred. The court of appeals held that the contract at issue expressly stated that Hunter is the co-guarantor, and states that upon default the comptroller could collect the amounts due from either the taxpayer, Hunter Agri Construction, or the co-guarantor, Hunter. According to the court, to conclude that Hunter signed the payment agreement only in his personal capacity would render the guaranty language meaningless.

The state also contended that it conclusively established the delinquency and amount of sales taxes owed by presenting the comptroller’s certificate of delinquency in support of the state’s motion for summary judgment. The certificate showed a total liability of $84,642.20. Hunter had the burden to present conclusive evidence to overcome the presumption of correctness in the certificate of delinquency. But Hunter only provided an affidavit reflecting payments totaling $29,000. The court held that Hunter did not offer proof that would overcome the presumption of correctness in the certificate of delinquency.

The court concluded that the trial court erred in granting summary judgment in favor of Hunter and against the state on its breach of contract claim. The court reversed the trial court’s judgment, rendered judgment in favor of the state, and remanded for a determination of attorney’s fees.

Drainage Fees: Beck Steel, Inc. v. City of Lubbock, No. 14-19-00060-CV, 2020 WL 4461277 (Tex. App.—Houston [14th Dist.] Aug. 4, 2020) (mem. op.). Beck Steel and John Beck sued the City of Lubbock claiming that the city improperly levied certain assessments against the Storm Water Utility Fund. More specifically, Beck asserted claims for reimbursement, money had and received, unconstitutional taking, and injunctive relief relating to payments from drainage fee revenue in the form of payments in lieu of taxes, payments in lieu of franchise fees, and pledges towards general obligation debt. The trial court denied Beck’s motion for summary judgment and granted the city’s motion. Beck appealed.

On appeal, Beck argued that the city couldn’t collect payments in lieu of taxes and franchise fees from the drainage fee fund, because those assessments represent “fictional amounts,” and “[o]nly actual costs can be included” in the city’s drainage fee assessments. Beck also asserted that the city improperly used drainage-fee revenue to repay general-obligation debt. However, the court agreed with the city’s contention that the challenged assessments could be properly levied against the Fund’s drainage-fee revenue under Section 552.054, which states that the subchapter “does not: …preclude a municipality from imposing impact fees or other charges for drainage authorized by law.” (emphasis added.) The court held that the plain language of this provision — read in light of the deference afforded city ordinances — supports the conclusion that the payments in lieu of taxes, payments in lieu of franchise fees, and repayment of general-obligation debt fall within the phrase “other charges for drainage authorized by law.” The court affirmed the trial court’s judgment.

*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