Recent Texas Cases of Interest to Cities

Note: Included cases are from November 11, 2021 through December 10, 2021.

Criminal Penalties/Vested Property Rights: TitleMax of Tex., Inc. v. City of Austin, No. 01-20-00071-CV, 2021 WL 5364773 (Tex. App.—Houston [1st Dist.] Nov. 18, 2021.). TitleMax sought declaratory and injunctive relief against the City of Austin relating to a city ordinance intended to regulate payday lending practices. The city filed a plea to the jurisdiction, asserting that, because the specific ordinance at issue was penal in nature, the civil district court lacked jurisdiction to declare it unconstitutional or to enjoin a prosecution filed thereunder. The trial court granted the city’s plea to the jurisdiction and dismissed TitleMax’s case. TitleMax appealed.

The appellate court found that TitleMax showed a threatened irreparable injury to its vested property rights and the “essence” of its claims was not a “criminal law matter” outside a Texas civil court’s subject-matter jurisdiction. Therefore, the appellate court reversed the trial court because the trial court erred in granting the city’s plea to the jurisdiction dismissing TitleMax’s claims.

Tort Claims Act: City of Houston v. Kim, No. 01-20-00333-CV, 2021 WL 5774173 (Tex. App.—Houston [1st Dist.] Dec. 7, 2021) (mem. op.). The plaintiff sued a city employee and the City of Houston for a car accident when the city employee, wearing his City of Houston Police Department uniform, collided with plaintiff as he was leaving a high school parking lot and entering the roadway. The city moved to dismiss the employee under the election-of-remedies provision under the Texas Tort Claims Act (“Act”). The city then filed a motion for summary judgment alleging the employee was not acting in the scope of his employment at the time of the accident. The trial court denied the summary judgment and the city appealed. The appellate court held that, by moving to dismiss the plaintiff’s claims against the employee under the Act, the city judicially admitted that the employee was acting within the scope of his employment and could not later dispute that admission.

Lease/Breach of Contract: City of Dallas v. Oxley Leasing N. Loop, LLC, No. 05-21-00241-CV, 2021 WL 5275828 (Tex. App.—Dallas Nov. 12, 2021) (mem. op.). The city leased a property near the airport to the plaintiff to carry on a banking business. The lease had several renewal options conditioned on the lessee timely providing the city with written notice of its intent to exercise the option. Whether plaintiff properly exercised the renewal option to extend the lease term beyond the initial term is in dispute; however, after the expiration of the initial term, the plaintiff continued to occupy the property and pay rent. Later, the city sent the plaintiff an eviction letter and the plaintiff sued for breach of contract. The city filed a plea to the jurisdiction and the trial court denied it on the grounds that the city was engaged in a proprietary function when leasing the property. The city appealed. Using the Wasson II factors, the appellate court determined that the city was engaged in a proprietary function when leasing the property and affirmed the trial court’s decision.

Tort Claims Act: City of Irving v. Muniz, No. 05-21-00099-CV, 2021 WL 5410410 (Tex. App.—Dallas Nov. 19, 2021, no pet. h.) (mem. op.). Muniz sued the city for injuries from a car accident that happened when he followed detour signs for construction on a city road and his car slid into a large excavation site. The city filed a plea to the jurisdiction on the grounds that the excavation was not a special defect nor a premise defect and the detour/warning signs were a discretionary act. The trial court denied the plea and the city appealed. The appellate court affirmed, finding: (1) the excavation was a special defect as a matter of law; (2) there was a fact question about what warnings were present and whether the warnings were adequate to warn of a special defect; and (3) the city’s design of the detour and warning signs were not discretionary.

Face Masks: Abbott v. Jenkins, No. 05-21-00733-CV, 2021 WL 5445813 (Tex. App.—Dallas Nov. 22, 2021) (mem. op.). The Dallas County Judge issued a mask mandate in contradiction of Governor Abbott’s executive order banning mask mandates (GA-38). A county commissioner sued the county judge for the issuing order and the county judge filed a counterclaim against Abbott in his official capacity over GA-38. The trial court denied Abbott’s plea to the jurisdiction and granted an injunction in favor of the county judge. Abbott appealed. The appellate court found that: (1) the county judge alleged sufficient facts that Abbott’s ban constraining the county judge’s power to enforce a face-covering requirement within the county, enacted through GA-38, was an ultra vires action; (2) the county judge has standing to sue Abbott; (3) the provision of section 22.002 of the Government Code regarding original jurisdiction in the Texas Supreme Court did not apply to the suit against Abbott; and (4) the trial court did not err when it granted the county judge’s temporary injunction.

Substandard Buildings: Polecat Hill, LLC, et al., v. City of Longview, et al., No. 06-20-00062-CV, 2021 WL 5702184 (Tex. App.—Texarkana Dec. 2, 2021). The city notified Polecat that its property was in violation of the city’s health and safety standards ordinances. Polecat sued the city and the city countersued seeking an injunction to prohibit violations of its ordinances. The trial court ruled in favor of the city and issued a permanent injunction. Polecat appealed. The appellate court rejected Polecat’s arguments and found: (1) Polecat failed to preserve its complaints about the affidavits to the motion for summary judgment for appeal; (2) Chapter 54 does not require proof of continuing violations; (3) the city carried its burden on its motion for summary judgment; and (4) Polecat could not defeat the city’s no-evidence motion for summary judgment on the inverse condemnation and Equal Protection claims.

Civil Service: City of Amarillo v. Nurek, No. 07-20-00315-CV, 2021 WL 5395986 (Tex. App.—Amarillo Nov. 18, 2021). The plaintiff sued the city, city manager, mayor, city council, and members of the city civil service commission seeking: (1) a declaration that the employment positions within the fire marshal’s office (FMO) should be classified as civil service positions; and (2) injunctive relief classifying the FMO positions as civil service and affording the plaintiffs the rank they would have been entitled to had the positions been classified as civil service positions. After a bench trial, the trial court: (1) found the plaintiff’s position in the FMO was a civil service position; (2) denied the plaintiff relief because it found that the city’s firefighters association was the real party in interest; and (3) found the city classified the plaintiff as a non-civil service employee in good faith. Both the city and plaintiff appealed.

The appellate court: (1) overruled the city’s challenges to the trial court’s findings; (2) found that the trial court erred when it imputed the actions of the city’s firefighters association to the plaintiff based on its conclusion that the association is a real party in interest in this case; and (3) found that the trial court did not have sufficient evidence to support its finding that the city acted in good faith in reclassifying the plaintiff’s position to non-civil service. The appellate court remanded the case to the trial court to consider the injunctive relief and attorney’s fees claims in light of its order.

Governmental Immunity: Edinburg Consol. Indep. Sch. Dist. v. Ayala, No. 13-20-00570-CV, 2021 WL 5828945 (Tex. App.—Corpus Christi-Edinburgh Dec. 9, 2021) (mem. op.). Beginning in 2007, Ayala drove a bus for the Edinburg Consolidated Independent School District (ECISD) until he was injured in a collision. After recovering, he returned to work as a dispatcher and was ultimately terminated in September 2015. Three years later, he applied for employment again with the ECISD. When the District failed to respond to his application, he filed suit alleging a claim for failure to hire based on age, disability, national origin and retaliation. The ECISD filed a plea to the jurisdiction arguing that Ayala’s filings did not allege facts sufficient to waive ECISD’s governmental immunity. The trial court denied the plea, and ECISD appealed.

The Texas Commission on Human Rights Act waives immunity from suit for governmental units for unlawful employment practices. To overcome the government’s immunity, (1) the plaintiff must first allege facts sufficient to create a presumption of illegal discrimination; (2) the defendant may then rebut that presumption by producing evidence of legitimate, non-discriminatory reasons for the employment actions; and (3) the plaintiff must then overcome the rebuttal evidence by producing evidence that the defendant’s stated reason is a mere pretext. In this case, Ayala’s pleadings were sufficient to establish a prima facie case of discrimination, which ECISD’s rebuttals could not overcome; therefore, the appellate court affirmed the trial court’s order.

Governmental Immunity: Galveston Cty. v. Leach, et al., No. 14-20-00181-CV, 2021 WL 5831123 (Tex. App. – Houston [14th Dist.] Dec. 9, 2021). The plaintiffs in this case were injured after being hit by a motor vehicle driven by an unlicensed driver. They sued Galveston County, because the driver of the vehicle was operating the vehicle at the direction and in the presence of a Galveston County Sheriff’s Deputy. The county filed this appeal after its plea to the jurisdiction claiming governmental immunity was denied by the trial court.

The Texas Tort Claims Act (“TTCA”) waives governmental immunity where a personal injury is proximately caused by the wrongful act or omission or the negligence of a governmental employee acting within the scope of employment if the personal injury “arises from the operation or use of a motor-driven vehicle” and “the employee would be personally liable to the claimant according to Texas law.” In this case, the governmental employee was not operating the motor-driven vehicle which caused the injuries; nevertheless, because the driver was in the act of complying with the directions of a governmental employee who was present when the accident occurred, the TTCA waives governmental immunity. The appellate court affirmed the trial court’s order.

*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