Recent Texas Cases of Interest to Cities

Note:  Included cases are from January 11, 2016 through February 10, 2016.

Governmental Immunity:  City of Pearland v. Contreras, No. 01-15-00345-CV, 2016 WL 358612 (Tex. App.—Houston [1st Dist.] Jan. 28, 2016) (mem. op.).  This is a premise defect/Texas Tort Claims Act (TTCA) case involving actual knowledge of a dangerous defect in which the First District Court of Appeals reversed the denial of a plea to the jurisdiction.

In early 2010, the Texas Department of Transportation (TxDOT) expanded SH 35 requiring the city to move its utilities along the highway. At one point, the city received an environmental report funded by TxDOT that stated there was some gasoline contamination at the site, and modified its new water line to further protect from contamination.  One year later, workers were installing a traffic light pole at the same location as the contaminants when welders inside the hole accidentally ignited fumes. Contreras was burned. After the accident, the Texas Commission on Environmental Quality investigated and noted one possible explanation is methane gas accumulated in nearby storm sewer drains. Contreras sued RMJ Miller, the owner of nearby underground storage tanks, the city, and TxDOT for negligence and premises defect.  The city filed a plea to the jurisdiction which was denied.

The city first argued that while it owns the sewer lines within the utility easement, the storm sewers are TxDOT lines. Further, the city noted that the environmental report it received expressly held “exposure to contaminated soil or groundwater within the TxDOT [right of way] should not pose a threat to construction workers since none of the detected contaminant concentrations exceeded the applicable standards for construction worker exposure.” As a result, the city asserts the report is not actual notice of a dangerous condition, even if the city did control the sewers. The court of appeals first held a fact question exists as to the city’s control of the sewers. However, that does not end the inquiry. Any liability against the city must be related to a premises defect associated with the storm sewers themselves. The court held because the alleged buildup of flammable gas within an existing storm sewer is not a roadway excavation or obstruction, the alleged premises defect is not a special defect. Therefore, Contreras must establish the city had actual knowledge of the danger. There is no evidence in the record the city knew that its storm sewers contained a flammable gas (methane) or even anything that would cause gas to build up. The soil contaminants are a different issue than methane gas build up. As a result, the plea was improperly denied.*

Takings:  Savering v. City of Mansfield, No. 02-15-00034-CV, 2016 WL 299638 (Tex. App.—Fort Worth Jan. 21, 2016).  This is an interlocutory appeal from the denial of a temporary injunction.

The plaintiffs are property owners in a neighborhood. After the city built a bridge over the creek to connect the property at issue to a public park, the plaintiffs sued their homeowners’ association (HOA) and the city, seeking a declaratory judgment that the HOA owned the property and seeking to quiet title to the property. They also brought claims against the city for trespass, for breach of restrictive covenants, and for inverse condemnation.  The plaintiffs sought an injunction to place a barricade preventing park people from using the property, prohibit people from entering the property at issue, and place a “no trespass” sign on the property. After a hearing the trial court denied the temporary injunctive relief.

Testimony essentially established the bridge opened up property adjacent to the property owners to ingress and egress, which has previously been limited due to the creek. The property owners felt it diminished their sense of privacy since no fencing could be erected in the floodway. However, the property owners knew of the walking trail allowing public passage which ran through the area and was also accessible through another entryway. Under a temporary injunction standard of review, the trial court had the discretion to believe or disbelieve any of the testimony, to determine that the additional pedestrian access provided by the bridge did not constitute irreparable injury or extreme hardship, and to conclude that the plaintiffs had not made a clear and compelling presentation of extreme necessity or hardship. The holding was not an abuse of discretion given the testimony and therefore the injunction was properly denied.*

Eminent Domain:  Babaria v. City of Southlake, No. 02-14-00068-CV, 2016 WL 287523 (Tex. App.—Fort Worth Jan. 14, 2016) (mem. op.).  This is a condemnation case where the Fort Worth Court of Appeals affirmed the condemnation award issued by the trial court. This is a long opinion. This opinion describes what information a city needs to properly compile for a condemnation proceeding to be upheld. This case also has to deal with admission of evidence.

The city planned to convert the road that runs in front of the Babarias’ property from a two-lane road into a four-lane divided road. The special commissioner’s court awarded $97,000. The Babarias objected, noting it was not sufficient. They appealed to district court. After a jury trial, the jury awarded $7,000 less than the commissioners, bringing the total to $90,000. The Babarias again objected and brought this appeal, primarily complaining of the admission of evidence by the city.

The Babarias’ appraiser, Hawkins, testified the property taken was worth $167,000.  Mainly, his testimony centered around the part taken not being its own economic unit, but that given city regulations on lot size, the Babarias would lose the ability to plat off and sell a separate part of their property to use as a residential home. Southlake called city engineer Cheryl Taylor and appraisal expert Charles Stearman. The Babarias’ attorney objected to Taylor asserting she was not an expert. The court sustained in part and overruled in part, essentially holding Taylor could testify that a portion of the property was previously dedicated, but not whether the subdivision ordinance would require a future platting. The Babarias then objected to Stearman asserting he never supplemented his report, which was out of date in reference to the time of taking (essentially not taking into account alleged market changes). After a chiding of the Babarias’ attorney for interrupting the court, the objection to testimony was overruled.

After analyzing the discovery provided to the Babarias, the court held the date of Stearman’s report did not make it inadmissible. As a general rule, sales occurring within five years before the taking are not too remote to be admissible. Further, Stearman’s testimony that the report is reliable only as to its issue date was intended as a method to prevent unauthorized use of the report for some other purpose. It was not an assertion that the market was in flux. “This is no different from any other expert’s testimony at trial based upon a report completed before trial.” After a detailed analysis, the court held his methodology was also proper. After analyzing Taylor’s testimony, the court held it was not error for Taylor to testify as a fact witness regarding the Babarias’ dedication of portions of the land. The “testimony on that point was not an opinion about how the ordinance might hypothetically apply in the future, it was an assertion of fact about something that had already happened.” As a result, the testimony was permissible. The Babarias’ issues are overruled and the jury finding is affirmed.*

Tort Claims Act: City of San Antonio v. Tenorio, No.  04-15-00259-CV, 2016 WL 328073 (Tex. App.—San Antonio Jan. 27, 2016) (mem. op.).  This is a high-speed chase/Texas Tort Claims Act case, where the Fourth Court of Appeals denied a plea to the jurisdiction holding a fact question exists as to actual notice. San Antonio Police Department (SAPD) was involved in a high speed pursuit wherein the fleeing suspect entered a freeway going the wrong way. On entry onto the freeway, SAPD stopped pursuit; however, the suspect continued driving and struck Roxana and Pedro Tenorio. The plaintiffs sued the city which filed a plea to the jurisdiction asserting it failed to receive notice under the city’s charter. The trial court denied the plea and the city appealed. The majority held the police investigative report determined that the pursuit by police was a contributing factor to the Tenorios’ injuries. As a result, there was evidence of a fact issue as to whether the SAPD was subjectively aware that it played a role in producing or contributing to the plaintiffs’ injuries. The majority held the crash report need not indicate that SAPD acted unreasonably, but must only provide a “subjective signal” to the city “that there might be a claim, even if unfounded, at issue.” In a dissenting opinion, Justice Pulliam noted that to raise a fact issue regarding a city’s subjective awareness of its potential fault the evidence must at least imply or provide some indication of fault. The dissent found that because the police officers ceased pursuit of the fleeing suspect and because case law holds “pursuit alone is insufficient to place a City on actual notice” the trial court lacked jurisdiction.*

Contractual Immunity: City of San Antonio v. Casey Indus., Inc., No.  04-14-00429-CV, 2016 WL 320504 (Tex. App.—San Antonio Jan. 27, 2016) (mem. op.).  In this opinion, the San Antonio Court of Appeal withdraws its original opinion and judgment of July 1, 2015, and substitutes this opinion and judgment. In 2014, the City Public Service Board of San Antonio (CPS Energy) contracted with Casey Industrial, Inc. (Casey) and Wheelabrator Air Pollution Control, Inc. to add pollution control systems to their power stations. After a dispute between the parties, Casey sued CPS Energy for various causes of action, including breach of contract. The trial court granted Casey’s motion for partial summary judgment, which this Court of Appeals heard and then remanded back to the trial court. After remand, CPS Energy filed a motion to dismiss, asserting that Casey’s breach of contract claim is outside the contract and the breach of contract claim must be dismissed. The trial court denied the motion, and CPS Energy filed this appeal. The San Antonio Court of Appeals cited Zachry Const. Corp. v. Port of Houston, 449 S.W.3d 98 (Tex. 2014), in noting that CPS Energy’s waiver of immunity does not depend on whether Casey will prevail on its claim. Further, the court states that because Casey was able to show a substantial claim that meets the Local Government Contract Claims Act, Local Government Code Chapter 271, the trial court properly denied CPS Energy’s motion to dismiss. The court affirmed the trial court’s judgment.

Contractual Immunity: City of San Antonio v. Tommy Harral Const., Inc., No.  04-15-00286-CV, 2016 WL 327886 (Tex. App.—San Antonio Jan. 27, 2016).  In this interlocutory appeal, the City of San Antonio challenges the trial court’s denial of its motion for summary judgment. The court discusses Section 51.014(d) of the Texas Civil Practices and Remedies Code and the rule that appellate courts generally only have jurisdiction over final judgments unless a statute provides otherwise. Additionally, the court notes that to invoke the court’s permissive-appeal jurisdiction, the trial court is required to make a substantive ruling on the controlling legal issue to be appealed. The court of appeals recognizes that the court is being asked to determine a different legal question than the legal question that the trial court could have determined through their ruling on the city’s summary judgment. Therefore, the San Antonio Court of Appeals concluded that the appeal must be dismissed for lack of jurisdiction because the trial court’s order denying the motion does not affirmatively state the trial court’s substantive ruling on the specific legal issue presented, and the court of appeals cannot infer the trial court’s substantive ruling from the record.

Open Meetings Act:  Terrell v. Pampa Indep. Sch. Dist., No. 07-14-00014-CV, 2016 WL 398893 (Tex. App.—Amarillo Feb. 1, 2016) (mem. op.). This is a Texas Open Meetings Act (TOMA) case where the Amarillo Court of Appeals withdrew its October 29, 2015, opinion and replaced it with this one. This is actually the second appeal in the case. The trial court originally granted the school district’s summary judgment. The first appeal resulted in the court remanding the case back to the trial court by holding a fact issue existed on a proper TOMA internet posting. However, the court did not affirm or deny the other summary judgment claims. Upon remand, the trial court only allowed the plaintiffs to try the internet posting allegations. The trial court issued a take nothing judgment on that issue. In the withdrawn opinion, the court held it did not have jurisdiction for the appeal because the judgment was not final and did not dispose of all issues. In this new opinion, the court reconsidered its original holding and noted that the judgment said it was final, is therefore presumed to be final, and the court therefore had jurisdiction to hear the appeal.  However, the court then determined that since the trial court improperly limited the plaintiffs to only the internet posting allegations (not all of the allegations they properly brought) the case should be remanded for a new trial.*

Public Information Act:  Hilburn v. City of Houston, No. 07-15-00158-CV, 2016 WL 269164 (Tex. App.—Amarillo Jan. 21, 2016) (mem. op.). This is a Public Information Act (PIA) case involving promotional examination documentation. The city conducted the Houston Fire Department Senior Captain Examination. Included within this examination, for the first time, were two new exercises: the Subordinate/Organizational Problem Exercise (SP) and the Oral Tactical Exercise (OT).  The SP and OT exercises were video recorded and reviewed by anonymous assessors.  The city received a PIA request for various information, including the SP and OT videos. After going through the administrative process, the attorney general determined some of the testing information was subject to release. The city filed suit under the PIA to withhold the information. Hilburn intervened.  The city and Hilburn filed opposing summary judgments. The trial court granted the city’s motion and denied Hilburn’s.

The court first determined the city complied with Texas Government Code Section 552.3221, allowing the filing of responsive documents in camera. It also noted that such filing is permissive, not mandatory, so failing to follow this provision does not equate to a waiver of arguments. The court then determined the city properly raised the Section 552.101 exception and did not waive any arguments. Texas Local Government Code Section 174.006 states the city’s collective bargaining agreement supersedes the civil service statute. The city’s collective bargaining agreement specifically noted that video exams were permitted; therefore, Texas Local Government Code Section 143.032 (which makes it a criminal offense to knowingly or intentionally reveal part of a promotional examination) was properly raised. The court then held that properly raising the exceptions does not automatically equate to entitlement. The court held that even though the attorney general determined the video portions were not a “written” exam entitled to protection, the record clearly indicates video exams were intended to be confidential under the collective bargaining agreement. Further, Section 552.122 excepts test questions developed by a licensing agency from public disclosure. However, the assessor’s names do not fall under any of the designated exceptions to disclosure, so neither do the rating forms. In the end, the questions and videos were excepted, but the rating forms of anonymous assessors were not.*

Premises Liability:  City of El Paso v. Collins, No. 08-14-00319-CV, 2016 WL 240882 (Tex. App.—El Paso Jan. 20, 2016).  In this case, plaintiffs brought a premises liability and negligent use action against the city after their child suffered injuries at a city swimming pool.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

In this case (the second interlocutory appeal), the court held that plaintiffs sufficiently alleged that the city had subjective knowledge that dangerous conditions existed at the pool on the day of the accident, as would be required under the Recreational Use Statute.  The court also held that the alleged condition of the pool (a malfunctioning drain) constituted a hidden defect capable of supporting a determination that the city had a duty to warn or rectify thus, potentially precluding the city’s plea to the jurisdiction as to the premises liability claim, and that claim was dismissed for lack of jurisdiction.  Finally, the court held that the parent’s negligent use claim under the Tort Claims Act was not a separate, valid claim from the plaintiffs’ premises liability claim.  The case was affirmed in part, reversed in part, and remanded for further proceeding on the premises liability claim.

Candidate Eligibility:  In re Perez, No. 08-15-00381-CV, 2016 WL 116178 (Tex. App.—El Paso Jan. 11, 2016, orig. proceeding).  This is a candidate eligibility case.  A candidate may be declared ineligible administratively under Election Code Section 145.003 only if: (1) the information on the candidate’s application shows the candidate to be ineligible; or (2) facts indicating that the candidate is ineligible are conclusively established by another public record.  In this case, Perez requests the court to issue a writ of mandamus to make certain officials remove Quintanilla from the March 1, 2016 Democratic Primary ballot for County Commissioner Precinct 3 because he does not meet the voter registration requirement imposed by Texas Election Code Section 141.001(a)(6).  [Effective September 1, 2015, HB 484 amended Election Code Section 141.001 to provide a new general rule (for most offices) that a candidate must be a registered voter of the territory elected from as of the filing deadline (unless outside law conflicts).]  Perez argues that Election Code Section 141.001(a)(6)’s requirement that a candidate be registered to vote “in the territory from which the office is elected” means that, in this case, Quintanilla must be a registered voter in Precinct 3 rather than all of El Paso County.  The court agrees.

Perez also argues that reading Subsections 141.001 (a)(5) (residency requirement) and (a)(6) together requires that Quintanilla be registered to vote in Precinct 3 for six months  before the filing deadline.  The court disagrees with the argument that the requirement to be a registered voter is tied to the required length of residence in (a)(5).

Finally, the court considers whether a public record conclusively established that Quintanilla was not a registered voter in Precinct 3 on the filing date.  The court concludes that the answer is yes.  Public records show that Quintanilla was a registered voter in Precinct 2 prior to December 7, when he submitted an address change form.  Quintanilla’s voter registration for Precinct 3 was not effective until 30 days after he submitted his address change (Jan 6).  Thus, the court holds Quintanilla was ineligible to be a candidate in Precinct 3 because he wasn’t a registered voter on the filing date, should have been declared ineligible administratively, and must be removed from the ballot.

Texas Whistleblower Act:  Beaumont Indep. Sch. Dist. v. Thomas, No. 09-15-00029-CV, 2016 WL 348949 (Tex. App.—Beaumont Jan. 28, 2016) (mem. op.). This is a Texas Whistleblower Act case where the Ninth Court of Appeals affirmed in part and reversed in part the denial of a plea to the jurisdiction filed by the Beaumont Independent School District (BISD). Thomas was an In School Suspension (ISS) teacher at BISD.  The principal had informed Thomas that he was on the payroll until the summer, but that is when the new directives were given. Thomas asserts he was told to not have ISS students sign in at the classroom, but he ignored that instruction and continued to require a sign-in sheet.  Thomas asserts he reported the order to require a different type of sign-in process to the Texas Education Agency (TEA) and local law enforcement as a form of attendance fraud. Thomas asserts in the fall term he was told he was not on the payroll for that term.  BISD filed a plea to the jurisdiction asserting Thomas does not hold a teaching certificate, was an employee at will, and it was entitled to immunity.  Further Thomas’ claims were barred by the statute of limitations. The trial court denied the plea and BISD appealed. The court first held Thomas’ Sabine Pilot claims for wrongful-discharge are barred by governmental immunity.  Second, the Texas Whistleblower Act requires an employee seeking relief under the Act to file suit no later than the 90th day after the date on which the alleged violation either occurred or is discovered, however the employee must complete any grievance procedure first. “Reading sections 554.005 and 554.006 together, the time used by the plaintiff in following the grievance procedures is tolled and excluded from the ninety-day time limit to bring a suit.”  Therefore, Thomas did not file outside the statute of limitations. Further, the court held the statute of limitations is an affirmative defense, not proper in a plea. [Comment, this is part of a split in the circuit’s involving a statute of limitations being jurisdictional after a change in the legislature as outlined in DeMagaloni v. Bexar Cnty. Hosp. Dist., No. 04–12–00691–CV, 2013 WL 4829133, at *2 (Tex. App.—San Antonio Sept. 11, 2013, no pet.) (mem.op.) and  El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 151 (Tex. App.—El Paso 2010, no pet.)]   Finally, the court held that given the lack of a response from Thomas and his assertion he was not given notice of the plea hearing to know he should file a response, it is reasonable for the trial court to deny the plea to allow the record to be developed and a proper hearing notice provided. As a result, the plea should be granted in part and denied in part at this time.*

Uniform Declaratory Judgment Act: Cameron Cty. Appraisal Dist. v. Rourk, No. 13-15-00026-CV, 2016 WL 380309 (Tex. App.—Corpus Christi Jan. 28, 2016) (mem. op.). This is primarily a Uniform Declaratory Judgment Act (UDJA)/ultra vires case but with the underlying claim asserting an illegal tax on travel trailers and recreational vehicles (RVs).

Rourk filed a UDJA suit to hold the appraisal district’s tax on travel trailers and RVs is an unauthorized tax under the Texas Constitution and Texas Tax Code Section 11.14.  Rourk sued the appraisal district and the chief appraiser, Frutoso Gomez. In a prior opinion (Rourk II), the court held certain travel trailers and RVs were exempt from taxation, but remanded on the issue of attorney’s fees. In another opinion, Rourk III, the appellate court held the district retained immunity from attorney’s fees. However, the Thirteenth Court of Appeals allowed Rourk to amend to sue an individual official. On remand, Rourk amended the pleading to add Gomez. The trial court held Gomez acted in an ultra vires manner in assessing the tax. The trial court then awarded attorney’s fees to Rourk. The district and Gomez appealed.

An ultra vires suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer either acted without legal authority or failed to perform a purely ministerial act. An agency determination that is wrongly decided does not render that decision outside the agency’s authority. Further, an incorrect agency determination rendered pursuant to the agency’s authority is not a determination made outside that authority. The court of appeals noted that, in Rourk III, the plaintiffs “are not challenging the validity of a provision of the tax code; instead, they are challenging [the appraisal district’s] actions under it[.]” “Likewise, we conclude that the substance of Rourk’s amended allegations are complaints about Gomez’s interpretation of the Tax Code, not that he acted illegally or without controlling authority.” Such is not an act exceeding authority. Applying the Tax Code’s exemptions requires discretion. The tax appraiser must determine whether the property is a manufactured home, a mobile home, or a recreational vehicle based on the facts at hand. As a result, it is not a ministerial act and there is no waiver of immunity and the plea should have been granted.

The concurring and dissenting opinion divided the issues up into three groups of plaintiffs. The concurring portion agreed the groups who did not have exempt property or those who were added later were not entitled to relief. However, the dissent believes the Plaintiffs who had exempt property and were parties in Rourk II, should be entitled to attorney’s fees under the ultra vires exception.*

Texas Tort Claims Act: University of Tex. M.D. Anderson Cancer Ctr. v. Jones, No. 14-15-00266-CV, 2016 WL 269160 (Tex. App.—Houston [14th Dist.] Jan. 21, 2016). This is a negligent use of tangible personal property case where the Fourteenth District Court of Appeals held that dispensing prescribed medications to a patient waives sovereign/governmental immunity.

Karen Jones was a smoker who participated in a blind study of a drug combination expected to help people stop smoking. Jones notified the study’s candidate screener of her depression and her adverse reaction to Chantix (one of the two drugs in the combinations) when she applied for the study. In the study, Jones was placed in a partial control group; she was prescribed Chantix and a placebo of the second drug. Afterwards, Jones attempted suicide. She survived but with permanent injuries. She sued the University of Texas M.D. Anderson Cancer Center (UTMDA) alleging it negligently prescribed and dispensed the drug to her, which is what caused her depressed state and suicide attempt. UTMDA filed a plea to the jurisdiction which was denied. UTMDA appealed.

The court first noted the negligent use of information is not a waiver of immunity.  However, UTMDA physically handed Jones the drugs, which are tangible personal property. The court then held dispensing the drug into Jones’ possession is a “use” of the drug. Next, the court noted that for immunity to be waived the requirement of causation by tangible personal property is more than mere involvement. However, Jones alleged and offered expert evidence that her suicide attempt was “proximately caused by the use of tangible personal property, namely the [Chantix] that was prescribed and dispensed” by UTMDA.  The court rejected the argument that it must be the “direct” cause of the injury. The court determined “evidence show a nexus between UTMDA’s prescribing and dispensing Chantix and the injuries the drug allegedly caused Jones.”  Therefore, the panel concluded the pleadings indicate sufficient jurisdiction that a waiver of immunity exists.*

Whistleblower Act: Ward v. Lamar Univ., No. 14-14-00097-CV, 2016 WL 145817 (Tex. App.—Houston [14th Dist.]  Jan. 12, 2016). This is a Texas Whistleblower case. The panel previously issued an opinion, but after a motion for rehearing, withdrew that opinion and issued a new one addressing an additional argument of mootness. However, the end result was still the trial court’s order being affirmed in part, reversed in part, and remanded.

Without restating most of the facts and holdings, this summary will simply list the differences from the prior opinion. However, for ease of reference, the general facts are simply that Ward worked in the finance department of the University System and noticed what she termed suspicious financial transactions. Her report on the subject was provided to the media and law enforcement. Afterwards, Ward’s duties were rearranged and she lost the ability to approve and review certain documents. She remained employed but resigned after the appeal was filed.

The original panel opinion noted a fact issue existed as to the adverse personnel action regarding the employer (Lamar) but the System is a different entity. The majority chided the trial court for sua sponte dismissing the constitutional claims; however, the dissent asserts Ward did not challenge the dismissal on appeal and the majority reversed an unassigned error. Lamar and the System argue for the first time on rehearing that Ward’s free speech retaliation claim under the Uniform Declaratory Judgments Act and the Texas Constitution became moot because she resigned before appellate briefing was filed.  The majority was not happy Lamar and the System did not address this argument in its original brief. The majority held that the claims were not technically moot because Ward sought attorney’s fees.  A party does not need to “win” to get attorney’s fees under the Uniform Declaratory Judgment Act, and therefore the claims are not moot.*

*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