Recent Texas Cases of Interest to Cities

Note: Included cases are from July 11, 2023, through August 10, 2023.

Exhaustion: Drew v. City of Houston, No. 01-22-00212-CV, 2023 WL 4872979 (Tex. App.—Houston [1st Dist.] Aug. 1, 2023). Drew sued the City of Houston for sexual harassment, retaliation, and constructive discharge after a co-worker tried to kiss her and masturbated in front of her. The co-worker was placed on leave, Drew was reassigned, and several months later Drew resigned her position and filed a complaint with the EEOC. She filed suit against the city eight months later. The city filed a plea to the jurisdiction, claiming that Drew had not exhausted her administrative remedies with the EEOC because she filed her complaint more than 180 days after the incident occurred. The trial court granted the city’s plea based on the untimeliness of Drew’s complaint, and Drew appealed.

The appellate court affirmed, holding that: (1) the continuing violation doctrine did not apply because there was no evidence in the record to support Drew’s claim that the first incident was part of a series of harassment and retaliation incidents that continued into the period of time that would make her EEOC complaint timely; and (2) there was no evidence in the record to support Drew’s claim of constructive discharge. 

Tort Claims Act: City of Baytown v. Fernandes, No. 01-22-00924-CV, 2023 WL 4937059 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023). Fernandes sued the City of Baytown for negligence after he was injured on a waterslide at a city-owned waterpark. The City filed a plea to the jurisdiction contending that because Fernandes was engaging in a recreational activity on city-owned land, the TTCA’s recreational use statue applied and Fernandes had to plead and prove gross negligence to establish a waiver of governmental immunity. The trial court denied the city’s plea.

The appellate court reversed the trial court and dismissed Fernandes’s claims for lack of subject matter jurisdiction, holding that: (1) riding down a waterslide constitutes recreational use for the purposes of the recreational use statute; and (2) there was no evidence that the city knew of the danger or that the waterpark’s employees acted with conscious indifference to Fernandes’s safety. Therefore, Fernandes had not shown the gross negligence that would be required to defeat governmental immunity under the recreational use statute.

Tort Claims Act: Ferebee v. Law Office of Frank Powell, No. 01-22-00681-CV, 2023 WL 4937501 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023) (mem. op.). Powell sued the City of Shenandoah and Ferebee, the city attorney, for defamatory statements Ferebee allegedly made while giving the city council an update on separate litigation filed against the city by Powell. Ferebee moved to be dismissed from the lawsuit under Section 101.106(f) of the TTCA claiming that because he was acting within the scope of his employment and the suit could have been brought against the city, he was entitled to dismissal of the claims against him. The trial court denied Ferebee’s motion to dismiss and Ferebee appealed.

The appellate court reversed, holding that because Ferebee was acting within the scope of his employment by giving the litigation update, the suit could have been brought against the city and therefore Ferebee in his individual capacity was entitled to dismissal under the TTCA.

Tort Claims Act: City of Houston v. Walker, No. 01-22-00632-CV, 2023 WL 4937495 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023) (mem. op.). Walker sued the City of Houston after her husband died in a collision at an intersection in which he and a car coming in the opposite direction both thought they had green lights. Walker alleged that the collision was caused by the misuse of safety louvers, which are devices designed in traffic lights to deliberately obscure the color of the light until the driver is a certain distance away.

Walker alleged that governmental immunity was waived under the TTCA because her husband’s death was caused by a condition of tangible property. The city filed for summary judgment based on governmental immunity, arguing that the TTCA does not waive a government’s immunity for discretionary acts and that the TTCA’s waiver of immunity for unsafe conditions of personal property is restricted by Section 101.060 of the Act, which generally provides that the TTCA does not waive governmental immunity for claims about the condition of a traffic light unless the city was notified of the condition at issue and failed to correct it within a reasonable time. The trail court denied the city’s motion for summary judgment.

The appellate court reversed, holding that the TTCA did not waive immunity for Walker’s claims because: (1) the use of the louvers was a discretionary act by the city; and (2) Section 101.060 applied because Walker had not provided any evidence showing that the city was notified of the condition of the traffic light.

Tort Claims Act: City of Houston v. Edwards, No. 01-22-00709-CV, 2023 WL 5021217 (Tex. App.—Houston [1st Dist.] Aug. 8, 2023) (mem. op.). Edwards sued the City of Houston for injuries he received when a city police car driven by a police officer who was rushing to get to another location to assist an officer in a foot pursuit of a suspect collided first with a city fire engine that was responding to a medical emergency and then with her vehicle. Edwards claimed that the emergency-response exception to the Tort Claims Act did not apply because both the fire engine driver and the police officer would not have been entitled to official immunity. The city filed a plea to the jurisdiction, claiming governmental immunity. The trial court denied the plea and the city appealed.

The appellate court reversed, holding: (1) that the fire engine driver was entitled to official immunity because he was acting in his discretion in determining that the need to respond to a medical emergency outweighed the risk of harm to the public; and (2) the police officer was entitled to official immunity because he was acting in his discretion in determining that the need to assist another officer outweighed the risk of harm to the public; and (3) because both employees would have been entitled to official immunity, the emergency-response exception to the TTCA’s waiver of immunity to suit applied.

Administrative Rulings: City of Houston v. Jared Waldhoff, No. 01-22-00825-CV, 2023 WL 5110981 (Tex. App.—Houston [1st Dist.] Aug. 10, 2023) (mem. op.). Waldhoff sued the City of Houston seeking to overturn an administrative decision by the city that he had violated the Houston Airport System Operation Instructions, a decision that resulted in the permanent revocation of his access badge and the loss of his employment. He had entered the secure area of the airport through a nonstandard entrance but contended that it was not relevant because he submitted to a security check by a TSA agent before boarding. A reviewing trial court reversed the decision, reinstated Waldhoff’s badge, and issued an order stating that the conclusion that Waldhoff had violated the rule was not supported by substantial evidence nor was it free from legal error. The city appealed the judgment of the trial court, arguing that its administrative decision was supported by substantial evidence.

The appellate court affirmed, holding that the city’s argument amounted to a sufficiency of the evidence challenge, but that the city had not addressed the part of the trial court’s order stating that the administrative decision was not free from legal error. The appellate court reasoned that the evidentiary basis and the legal basis were independent grounds for the trial court’s ruling, so because the city had not challenged the legal basis it had waived any error.

Tort Claims Act: City of Houston v. Bustamante, No. 01-22-00699-CV, 2023 WL 5110982 (Tex. App.—Houston [1st Dist.] Aug. 10, 2023) (mem. op.). Bustamante sued the City of Houstin after she, Elisondo, and their children were injured in a collision with a city emergency vehicle when the vehicle entered an intersection without slowing and struck Bustamante’s vehicle. Bustamante gave notice of her claim under the TTCA about five months after the incident. The city filed a motion for summary judgment claiming governmental immunity, arguing that Bustamante had not provided notice of her claim within ninety days as required by the city charter. The trial court denied the city’s motion and the city appealed.

The appellate court affirmed, holding that although Bustamante had not provided timely notice as required by the city charter, there was a genuine issue of material fact as to whether city had actual notice of a possible claim against it because the city had undertaken an investigation as a result of the incident, showing that the city had the necessary information to alert it of its potential liability.

Civil Service: Nix v. City of Beaumont, No. 09-22-00042-CV, 2023 WL 4781212 (Tex. App.—Beaumont July 27, 2023) (mem. op.). Nix sued the City of Beaumont in district court, seeking review of the City’s Fire Fighters’ and Police Officers’ Civil Service Commission’s order permanently dismissing him from the fire department. The Civil Service Act requires that a petition for review of a commission’s order must be filed within 10 days after the date the final decision is received by the firefighter or his or her designee. Here, Nix’s attorney filed the petition 15 days after receiving the final decision. The trial court dismissed Nix’s petition for review and Nix appealed.

The appellate court affirmed, holding that although the Supreme Court’s orders providing deadline extensions related to Covid-19 were in place, those orders did not extend a jurisdictional deadline to file suit so Nix’s failure to timely appeal the commission’s order deprived the trial court of jurisdiction over the appeal.

Employment: Univ. of N. Tex. Health Sci. Ctr. v. Paul, No. 02-22-00305-CV, 2023 WL 4779480 (Tex. App.—Fort Worth July 27, 2023).  This is an age-and sex-related employment discrimination case.

Paul, a nontenure-track assistant professor sued the University of North Texas Health Science Center (UNTHSC) after her assistant-professor contract was not renewed. She alleged age discrimination, sex discrimination, and retaliation related to UNTHSC’s (1) failure to hire her for the tenure-track position that another younger woman was hired for, (2) failure to promote her to Department chair, and (3) failure to renew her one-year teaching contract.  UNTHSC filed a plea to the jurisdiction on sovereign-immunity grounds, which the trial court denied.  UNTHSC filed an interlocutory appeal.

The court of appeals reversed the trial court’s denial of UNTHSC’s plea to the jurisdiction on Paul’s sex-discrimination claim related to UNTHSC’s nonrenewal of her contract and on her retaliation and age-and sex-discrimination claims related to UNTHSC’s failure to hire her for the Department Chair position. However, the court affirmed the trial court’s denial of UNTHSC’s plea to jurisdiction as to (1) retaliation and age discrimination for the contract renewal and (2) retaliation, age discrimination, and sex discrimination for the failure to hire Paul for the tenure-track position.

Clean Air Act: Tex. Comm’n on Envtl. Quality v. Vecinos Para El Bienestar De La Comunidad Costera, No. 03-21-00395-CV, 2023 WL 4670340 (Tex. App.—Austin July 21, 2023). After the Texas Commission on Environmental Quality (TCEQ) issued an air permit to Texas LNG Brownsville, LLC (Texas LNG) for construction of a liquefied natural gas terminal along the Brownsville Ship Channel, the city of Port Isabel sought judicial review under Texas Government Code Sec. 2001.171. In response, TCEQ and Texas LNG filed a joint plea to the jurisdiction arguing the federal National Gas Act (NGA) provided exclusive jurisdiction to review challenges to state agency permits required by federal law for natural-gas terminals to federal courts under 15 U.S.C. § 717r(d)(1). The trial court denied their plea, and TCEQ and Texas LNG appealed to the court of appeals.

The appellate court reversed, holding that although TCEQ issued the order, it was carrying out its responsibility under the federal Clean Air Act to implement federal standards, and under 15 U.S.C. § 717r(d)(1), the United States Fifth Circuit Court of Appeals has exclusive jurisdiction over permit decisions relating to liquefied natural gas facility construction.

Tort Claims Act: Hous. Auth. of City of Austin v. Garza, No. 03-22-00085-CV, 2023 WL 4872981 (Tex. App.—Austin July 31, 2023).  In 2017, the Housing Authority of the City of Austin (HACA) started a renovation project at one of its apartment complexes to comply with the Americans with Disabilities Act (ADA). As part of the project, HACA contracted with a project developer who subcontracted with S. Cook Construction Company, L.P. (Cook) for construction services. Cook then subcontracted with Specialty Tractor Landscaping, L.L.C. (Specialty Tractor) for landscaping and porch construction services. After the work commenced, Julia Garza, a tenant at the apartment complex, injured herself after stepping on loose dirt concealing thin wooden planks covering landscaping trenches. As a result, Garza sued HACA (and Cook and Specialty Tractor) under the theory of premises liability under the Texas Tort Claims Act (TTCA). Denying HACA’s plea to the jurisdiction, the trial court ruled in favor of Garza. Thereafter, HACA filed an interlocutory appeal asserting governmental immunity and arguing Garza failed to present sufficient evidence for her premises-defect claim.

Citing to the Texas Supreme Court, the court of appeals explained that for a premises liability claim where a subcontractor is working, Garza would need to show HACA either (1) had a contractual right or (2) actually exercised control over the means, methods, or details of the independent contractor’s work. Because Garza failed to show HACA had a contractual right to control the premises where she fell and only alleged that Cook and Specialty Tractor exercised actual control over the premises, the appellate court concluded HACA’s sovereign immunity had not been waived under the TTCA and reversed the trial court’s order.

Takings/Ultra Vires: Consol. Towne E. Holdings, LLC v. City of Laredo, No. 04-22-00130-CV, 2023 WL 4482391 (Tex. App.—San Antonio July 12, 2023). Consolidated Towne East Holdings, LLC (“Consolidated”) sued the city to develop land in the city’s extraterritorial jurisdiction. Consolidated sought water and sewer services from the city as part of its proposed development. The city required annexation before it would provide the services. Consolidated sued on the grounds that the city’s precondition for water and sewer services amounts to an unconstitutional taking and that denial of services is an ultra vires act by the city manager and the city’s director of utilities. The trial court granted the city’s summary judgment motion and dismissed Consolidated’s claims. Consolidated appealed.

The appellate court affirmed and dismissed the case without prejudice, finding: (1) the case was not ripe because whether annexation costs are roughly proportional to their asserted purposes is not ripe for resolution until those costs are authoritatively set; (2) Consolidated’s declaratory judgment claim on the city ordinance requiring annexation likewise failed because it was premature; and (3) Consolidated’s ultra vires claim failed because the city manager and director of utilities had authority in the city’s ordinances to deny providing water and sewer services to Consolidated.

Purchasing: City of Dallas v. Gadberry Constr. Co., Inc., No. 05-22-00665-CV, 2023 WL 4446291 (Tex. App.—Dallas July 11, 2023). This case involves a construction project in which the city of Dallas issued a request for sealed bids. After disqualifying a bidder, Gadberry Construction Company (Gadberry), for lack of experience and mixed reviews from its references, Gadberry sued the city. The trial court, ruling in favor of Gadberry, denied the city’s plea to the jurisdiction and granted a temporary injunction based on Sec. 252.061 of the Texas Local Government Code. The city subsequently appealed, arguing that Sec. 252.043(f) grants cities the authority to reject any and all bids for procurement contracts and Gadberry failed to establish a waiver of immunity. Because the city’s bid documents specifically notified bidders that it reserved the right to reject bidders for lack of experience for equivalent projects within the past three years and the city rejected Gadberry’s bid for that reason, the court determined the city did not violate the competitive bidding requirements of Chapter 252 and reversed the trial court’s order.

Municipal Court: State v. Villa, No. 05-22-00220-CR, 2023 WL 4571923 (Tex. App.—Dallas July 18, 2023). After Whitney Villa was convicted of assault by contact and assessed a fine by the city of Mesquite Municipal Court (a municipal court of record), she appealed the judgment to the County Criminal Court of Appeals No. 1. The county court subsequently reversed the municipal court’s judgment and remanded the case for a new trial. The municipal prosecutor’s office (the State) then appealed the County Criminal Court’s order to the Dallas Court of Appeals.

In its opinion, the appellate court reasoned that Texas Government Code Sec. 30.00014(a) only governs an appeal from a municipal court of record to certain courts such as county courts of appeals, but it does not apply to subsequent appeals from these courts to the courts of appeals. Further, appeals to the courts of appeals, which are governed by Sec. 30.00027, only grant an appellant the right to appeal if: (a) the fine assessed against the defendant exceeds $100 and the judgment is affirmed by the appellate court; or (2) the sole issue is the constitutionality of the statute or ordinance on which a conviction is based. Because this case did not fit within these two categories, the court ultimately concluded that it lacked jurisdiction to hear appeals by the State in these instances.

Immunity/Takings: City of Canton v. Lewis First Monday, Inc., No. 06-23-00027-CV, 2023 WL 4945085 (Tex. App.—Texarkana Aug. 3, 2023) (mem. op.). The plaintiff co-owns property with the city where a flea market operates. The market has an entrance through the historical main gate owned by the city. The city voted to restrict access to the historic main gate to vendors during the flea market and the plaintiff sued for: (1) declaratory judgment for an easement by estoppel; (2) declaratory relief for a taking; and (3) injunctive relief to prevent the city from locking the main gate. The city filed a plea to the jurisdiction, which the trial court denied.

On appeal, the appellate court reversed the trial court and found: (1) the plaintiff had no easement interest in a public roadway; (2) regulating traffic is a municipal governmental function; (3) the Private Real Property Rights Preservation Act only applies in the extraterritorial jurisdiction and the city’s act did not take place in the ETJ; and (4) the plaintiff did not have a takings claim because the act took place on city-owned property, the city did not restrict access to the plaintiff’s property, and the city did not deny plaintiff a permit. The appellate court vacated the trial court’s temporary injunction, reversed the denial of the plea, and rendered judgment for the city.

Tort Claims Act: Buchanan v. City of Bogata, No. 06-23-00011-CV, 2023 WL 4980974 (Tex. App.—Texarkana Aug. 4, 2023). Plaintiff sued the city over a car accident with a city employee when she was a passenger in a car. The city filed a plea to the jurisdiction based on lack of notice, which the trial court granted. The appellate court affirmed, finding that: (1) the city did not receive statutory notice under the Tort Claims Act; and (2) the city did not have actual notice because nothing in the police report provided notice to the city that the plaintiff was injured or that her injuries were caused by the employee’s negligence.

Immunity: El Paso Water Utilities Sys.-Pub. Serv. Bd. v. Marivani, No. 08-23-00071-CV, 2023 WL 4771207 (Tex. App.—El Paso July 26, 2023) (mem. op.). Aryan Marivani sued the City of El Paso and the El Paso Water Utilities System-Public Service Board (collectively “EPWU”) for negligence after a vehicle being driven by Gabriel Ramirez, an employee of EPWU, collided with Marivani’s parked car. EPWU answered the complaint with a plea to the jurisdiction, arguing that the case should be dismissed because Ramirez was commuting home at the time of the collision and was therefore not acting within the scope of his employment. The trial court denied the plea to the jurisdiction, and EPWU appealed. Municipalities generally have immunity from lawsuits unless the immunity has been waived. The Texas Tort Claims Act can provide such an immunity waiver for property damage caused by employee negligence, if the damage is caused by a motor vehicle being operated by an employee who is acting within the scope of their employment. An employee is typically not acting within the scope of their employment while they are commuting to and from work. This rule is known as the “coming-and-going” rule and can apply even when the employee is driving a city-owned vehicle. Exceptions exist if the employee is on a special mission for the employer or performing another service for the employer. Despite driving a company vehicle at the time of the collision, evidence supported the fact that Ramirez was merely commuting home at the time of the collision. Marivani argued that certain company policies might indicate that Ramirez was in his employment scope; however, the court found otherwise, taking pains to analyze and distinguish this case from other relevant cases. Ultimately, the appellate court reversed the trial order denying EPWU’s plea and rendered judgment in favor of EPWU.

Tort Claims Act: Franz and South Texas Elderly Services, Inc., v. Interim Police Chief Romero Rodriguez and City of Hidalgo, No. 13-22-00413-CV, 2023 WL 5108966 (Tex. App.—Corpus Christi–Edinburg Aug. 10, 2023) (mem. op.). Franz sued the City of Hidalgo under the TTCA and Rodriguez and Sanchez in their individual capacity after Rodriguez and Sanchez removed a political sign located on Franz’s property under the Election Code’s prohibition on certain placement of political signs. Franz alleged that Rodriguez and Sanchez had violated 42 U.S.C. Section 1983. The trial court dismissed the individual claims against Rodriguez and Sanchez under Section 106.101(e) of the Texas Tort Claims Act, which requires that an employee be dismissed from a lawsuit that could have been brought against the city. Franz appealed, arguing that the trial court should not have dismissed his Section 1983 claims against the employees individually.

The appellate court affirmed, holding that because Franz had not pleaded any of the elements of a Section 1983 claim, the trial court correctly dismissed the claims under Section 106.101(e) of the Texas Tort Claims Act.