Recent Texas Cases of Interest to Cities

Note:  Included cases are from November 11, 2015 through December 10, 2015.

Takings:  Schrock v. City of Baytown, No. 01-13-00618-CV, 2015 WL 8486504 (Tex. App.—Houston [1st Dist.] Dec. 10, 2015) (mem. op. on motion for rehearing).  Schrock, a landlord, sued the city for refusing to provide utility services to his rental property after he refused to pay delinquent utility bills associated with the rental property and caused by its tenants.  Schrock argued that refusing to provide utilities is a regulatory taking of all economic value of his rental property because he cannot rent it without utility services.  Also, Schrock claimed that the city had notice that the property was a rental property and therefore cannot hold him responsible for the delinquent utility bills under Section 552.0025 of the Local Government Code. He filed a declaratory judgment action as well, arguing that the city’s ordinance requiring “a declaration in writing” of the rental status of a piece of property was in conflict with Section 552.0025.   The city argued that the value of the property remains the same despite the lack of utilities and that the city did not have adequate notification that the property was a rental property pursuant to its ordinance’s requirement of a “declaration.”   The trial court granted the city’s motion for summary judgment on governmental immunity as to the takings claim and the declaratory judgment claim.  The court of appeals reversed in favor of Schrock, holding that he had produced sufficient evidence of a regulatory taking and the possible illegality of the city’s ordinance to allow his case to survive the city’s summary judgment motion.  The court of appeals remanded the case to the trial court.

Governmental Immunity: United Healthcare Choice Plus Plan for City of Austin Employees v. Lesniak, No. 03-15-00309-CV, 2015 WL 7951630 (Tex. App.―Austin, Dec. 1, 2015) (mem. op.). In this interlocutory appeal, the City of Austin and its self-funded employee health-insurance plan challenged the trial court’s order denying their plea to the jurisdiction asserting governmental immunity. The underlying controversy stems for a denial of benefits to a city employee named Charles Lesniak. After the denial, Lesniak sued the city and the plan alleging the denial was improper, and the city filed a plea to the jurisdiction. The trial court denied the plea to the jurisdiction, and the City of Austin filed this appeal.

Lesniak argued that the city does not have governmental immunity in this case because the case involves a proprietary function of the city. The court of appeals concluded that in light of Government Code Chapter 2259’s pronouncement that the provision of self-insurance funds is a governmental function that does not waive immunity and the holding in Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self–Ins. Fund, 212 S.W.3d 320, 325–26 (Tex. 2006), the City of Austin is immune from the lawsuit absent legislative waiver. The court reversed the trial court’s order and rendered judgment dismissing Lesniak’s claims.

Whistleblower Act:  City of Lubbock v. Walck, No. 07-15-00078-CV, 2015 WL 7231027 (Tex. App.—Amarillo Nov. 16, 2015) (mem. op.). This is an interlocutory appeal in a Texas Whistleblower Act case where the Amarillo Court of Appeals reversed and rendered in part, dismissed in part, and affirmed in part the denial of the city’s plea to the jurisdiction. Walck was a detective in the city’s police department. During 2013, while enrolled in a masters-degree program at Texas Tech University, Walck sought an interview with the city manager as part of a class project, unrelated to his work as a police officer. The city manager notified the city’s chief of police of the request. Walck received an email notifying him that he was not to contact the city manager without first seeking permission from his supervisors. Walck responded by sending emails to the city council and mayor complaining about the situation. Afterwards, Walck was transferred from his position of burglary-unit detective to administrative assistant pending a formal internal affairs investigation. His permission to obtain outside employment as a security officer was also revoked. Walck filed a grievance. The city manager, after a hearing, reinstated the outside employment permit. Later, the internal affairs investigation revealed Walck violated city policy by conducting school activities while on duty and using city equipment. However, after a grievance hearing the assistant city manager rescinded the reprimand. After he was moved back into his detective position, Walck’s attorney demanded compensation for Walck and threatened litigation. Afterwards, Walck filed suit. The city answered and filed a plea to the jurisdiction with supporting evidence.  The trial court denied the plea and the city appealed. The court first held suit based on the suspension of Walck’s outside work permit as an adverse personnel action is barred by 90 day limitations. Tex. Gov’t Code § 554.005.  Viewing the record in his favor, the continuing violation doctrine cannot aid Walck since the work permit issue was a discrete and individualized act.  The plea should have been granted as to the outside work permit claim. Next, the court held the initiation of the grievance procedure under Government Code Section 554.006(a) is a jurisdictional requirement for the filing of suit. However, Walck neither refused to fully participate in the process nor did he represent to the assistant city manager he was satisfied with the relief he had received.  As a result, the fact he was reinstated and accepted the reinstatement is not dispositive and jurisdiction exists.  Finally, while the plaintiff’s prayer states it seeks civil penalty not to exceed $15,000 against Chief Roger Ellis, individually, Chief Ellis was not a party and was not sued. Because Chief Ellis is not before the trial court, resolving whether Government Code Section 554.008 properly can be read as granting Walck a private right of action against Chief Ellis would amount only to an advisory opinion.  That issue was therefore dismissed.*

Tort Claims Act:  City of Beaumont v. Garrett, No. 09-15-00093-CV, 2015 WL 8468510 (Tex. App.—Beamont Dec. 10, 2015).  This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (TTCA) case in which the appellate court affirmed the trial court.

Garrett and Gates were driving separate cars that collided in an intersection in which a traffic light was out.  The city admitted having received notice that the light was out approximately 30 to 90 minutes before the accident.  Under the TTCA, a city is liable for operating and maintaining traffic signals only if the malfunction is not corrected within a reasonable time after notice.  The city tried to argue that its duty was equivalent to that owed a licensee—the duty to use ordinary care to reduce or eliminate an unreasonable risk of harm after being notified.  The city also tried to argue that the degree of hazard posed by the light malfunction was not unreasonable.  The court rejected these arguments.  Because there was no evidence about the nature of the problem with the light or how long it sould have reasonably taken the city to correct the problem, the appellate court affirmed.

Tort Claims Act: City of Houston v. Kelley Street Assoc., L.L.C., No. 14-14-00818-CV, 2015 WL 7739754 (Tex. App.—Houston [14th Dist.] Nov. 30, 2015) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (TTCA) case in which the Fourteenth Court of Appeals reversed and dismissed the plaintiff’s claims.

Two water utility workers were dispatched to an area to deal with a flooded street. They utilized a backhoe to lift up a slab of concrete sidewalk to get to a valve and replaced it using various hand tools. Kelley sued the city alleging its office building was damaged by flooding after the city repaired a water meter and valves in front of its office building.  Essentially, Kelley alleges that in using the backhoe (i.e. motor driven equipment), the workers loosened debris which entered the piping system rupturing the plumbing in its building, causing flooding and damage. The city filed a plea to the jurisdiction which was denied. The city appealed.

The Texas Supreme Court has “consistently required a nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiff’s injuries” under the Texas Tort Claims Act. The city contends there was no nexus between the city’s use of the backhoe and Kelley’s alleged flooding because the backhoe was used only to remove the concrete sidewalk for access, was then shut down, and hand tools were used to open the pipe. For liability to attach, the use of motor-driven equipment must have actually caused the injury. After analyzing the facts, the court held the operation of the backhoe did no more than furnish a condition making the alleged damages possible. The court focused on the fact hand tools were used primarily to get at the pipe and valve and the backhoe simply lifted the sidewalk to allow access. Even if the backhoe dislodged rocks, dirt, and debris, the operation and use of the backhoe did not cause the debris to enter the open pipe. When the city’s workers ceased using the backhoe, the wheel valve had not yet been removed and the pipe had not yet been exposed for any rocks or debris to enter. Use of the hand tools exposed the pipe and created an opportunity for entry of rocks or debris.  As a result, there is no waiver of immunity and the claims were dismissed.*

*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