Recent Texas Cases of Interest to Cities

Note:  Included cases are from January 11, 2017 through February 10, 2017.

Public Information:  Paxton v. City of Dallas, No. 15-0073, 2017 WL 469597 (Tex.  Feb. 3, 2017). This is a Texas Public Information Act (PIA) case where the Texas Supreme Court holds the attorney/client privilege, in and of itself, is a compelling reason to prevent disclosure under the PIA, even if an entity untimely requests a Texas attorney general (AG) opinion. This is a case of first impression.

The City of Dallas received two PIA requests for information, but failed to timely notify the AG within the ten-business day deadline of its intent to seek an AG opinion. The city did seek an opinion and asserted the documents are protected by the attorney/client privilege. The AG determined that since the city failed to timely request an opinion, it waived the privilege and all documents must be released. When an entity fails to timely request an opinion, the documents are presumed public unless there is a compelling reason to withhold the information. The AG did not consider the attorney/client privilege a compelling reason. The city filed suit under the PIA to obtain judicial rulings but received conflicting results at the trial courts. The city and AG appealed respectively. At the different court of appeals levels, both courts held the privilege was a compelling reason to withhold the information. The AG filed a petition for review for both cases.

The Texas Supreme Court went into great detail and history (39 pages worth) discussing the balance between the attorney/client privilege (which is for the public’s benefit for governmental advice) and the public’s right to information (which is also for the public’s benefit). It noted the AG has determined through agency precedent that the mere ability to waive the attorney/client privilege automatically and categorically precludes the privilege from constituting a compelling reason even when the privilege has not actually been waived. The court rejected this argument and held “[b]ecause failing to meet the PIA’s deadline to assert a statutory exception to disclosure does not, in and of itself, constitute waiver of the attorney-client privilege, requested information does not automatically lose its confidential status.” It further rejected the AG’s interpretation for all exceptions under the PIA, “that something more is always required to rebut the presumption that arises from a governmental body’s failure to timely request an attorney general decision.”  The court held that certain exceptions (not all but some) can be compelling reasons in their own right. The AG’s interpretation alters the plain language of the PIA. “To require public disclosure of confidential attorney-client communications as an automatic—and irremediable—sanction for missing a statutory deadline is not necessary to achieve the PIA’s objective of an open government and would be a jurisprudential course fraught with peril.”  Finally, Justice Guzman puts an accurate but humorous summary on the entire thing by writing “[r]obotic perfection by a governmental body’s public information officer is a statutory ideal, not an absolute requirement. To err is human, but to conduct a City’s legal affairs without the occasional error would require divinity.”

The dissent writes for 37 pages but essentially states the attorney/client privilege, by itself, is not enough to overcome the presumption of openness which attaches when the PIA deadlines are not met. The dissent would require an additional showing of a compelling reason for the non-release.*

Employment: Colorado Cty. v. Staff, No. 15-0912, 2017 WL 461363 (Tex. Feb. 3, 2017).  This is a Chapter 614 law enforcement termination case where the Texas Supreme Court changed some of the standards for investigating, disciplining, and terminating police officers.  The court reversed the judgment of the court of appeals and rendered judgment in favor of the employer county. This is a significant case.

Colorado County Deputy Sheriff Marc Staff was terminated from the Colorado County Sheriff’s Department. While an at-will employee, his termination notice listed incidents where Staff’s behavior with members of the public was improper. The focus of the notice detailed a complaint where the county attorney advised the sheriff of Staff’s behavior during a traffic stop. The video of the behavior was investigated and the investigating lieutenant recommended termination. Staff was listed as argumentative and abusive.  Further, he unnecessarily arrested an otherwise cooperative motorist. Staff was provided the recommendation by the lieutenant and told he had 30 days to appeal the termination recommendation to the sheriff for a final order. Sheriff Wied advised Staff to “articulate all of his responses to his termination and the reasons for his appeal.” Each incident had been identified in the recommendation with factual details. Staff appealed but rather than contesting the substantive grounds for termination or attempting to contextualize his behavior, Staff’s appeal complained of procedural irregularities in the process leading to his discharge.  Sheriff Wied upheld the termination and Staff sued the county and sheriff for declaratory relief, injunctive relief, and monetary damages.  He asserted the county and sheriff violated Chapter 614 of the Texas Government Code with the procedure used for termination. The central theme of Staff’s argument was that an internal report based on an external complaint alleging misconduct is insufficient to satisfy the statutory requirements. Sheriff Wied asserted Staff was terminated as an employee-at-will, but in the alternative, the process utilized satisfied Chapter 614. The trial court granted the county and sheriff’s motions for summary judgment. The court of appeals reversed and asserted the sheriff violated Chapter 614. The Texas Supreme Court granted Sheriff Wied’s petition for review.

Texas Government Code Section 614.023 states “(a) A copy of a signed complaint against a law enforcement officer . . . shall be given to the officer or employee within a reasonable time after the complaint is filed. (b) Disciplinary action may not be taken against the officer or employee unless a copy of the signed complaint is given to the officer or employee . . . .”  The court first held that “[a]lthough Sheriff Wied could have discharged Staff for any reason or no reason, Chapter 614, Subchapter B nevertheless applies when an at-will employer terminates for cause that derives from allegations in a complaint of misconduct instead of terminating at will for no cause.”  In other words, if no complaint was filed against Staff, the sheriff could simply fire him for no reason.  However, since a complaint was filed, Chapter 614 applies and the procedures must be followed. This process “helps ensure that cause-based removals of a specified nature bear a modicum of proof and that the affected employee has notice of the basis for removal.”  The court then considered, “as a matter of first impression, the kind of ‘complaint’ and ‘person making the complaint’ that is necessary to both activate and satisfy the statute’s procedural safeguards.” After applying various statutory construction principles, the court held the person making the complaint does not need to be the “victim” of the alleged conduct; it may be an investigator or supervisor. The court noted in a separate section that some intermediate appellate courts improperly connected the definition of “complaint” in Chapter 614 with a “complaint” under the civil service laws in Texas Local Government Code Chapter 143. However, they are not the same. Under the court’s definition of “complaint” for Chapter 614 it determined Sheriff Wied followed the requirements.  [Comment: For attorneys practicing in this area, the court’s definition and explanation of what qualifies as a proper and sufficient complaint can be extremely helpful.].  In this case, Staff received the signed deficiency notice within two days of the initiation of an internal investigation. He suffered no disciplinary action until the complaint was in hand.  However, the Court noted “[n]othing in the statute requires the complaint to be served before discipline is imposed or precludes disciplinary action while an investigation is ongoing. Nor does the statute require an opportunity to be heard before disciplinary action may be taken.” Staff had ample opportunity to marshal any evidence and provide his explanation to the sheriff. As a result, the sheriff complied with Chapter 614. The court reversed and rendered in favor of the sheriff.*

Elections: City of Houston v. Bryant, No. 01-16-00273-CV, 2017 WL 17328 (Tex. App.—Houston [1st Dist.] Jan. 12, 2017.) This is an election contest case where the First Court of Appeals out of Houston held Texas Election Code Section 233.008 (requiring process be served within 20 days) is not jurisdictional.

Petitioners challenged a ballot measure concerning term limits for City of Houston elective offices. The city filed a plea to the jurisdiction asserting that while the petition was timely filed and the city received service to the correct person, it did not receive service within the 20 days mandated by Section 233.008. Therefore, the trial court was without jurisdiction. The trial court denied the plea and the city appealed.

The court of appeals held the 30 day deadline by which the petition must be filed under Section 233.006(b) is jurisdictional and non-waivable. It is undisputed the election contest was filed within that deadline.  Thus, according to the court, the trial court obtained subject matter jurisdiction at that time. Section 233.008 is clearly mandatory in that it provides that a citation issued in an election contest “must direct” the officer to return the citation unserved if it is not served within 20 days after it was issued.  However, “just because a statutory requirement is mandatory does not mean that compliance with it is jurisdictional.” Section 233.008 does not require a time to effectuate service and is not expressly jurisdictional.  It does not prohibit the reissuance of a citation or preclude a party from making a second attempt.  It also does not list a specific consequence for non-compliance.  As a result, it is not jurisdictional.  And while “other consequences” may be the result of failing to follow a non-jurisdictional deadline, such is not for evaluation under a plea to the jurisdiction.*

Public Information: McLane Co., Inc. v. Texas Alcoholic Beverage Comm’n, No. 03-16-00415-CV, 2017 WL 474067 (Tex. App.—Austin Feb. 1, 2017). In this Public Information Act (PIA) request lawsuit, the Austin Court of Appeals affirmed the granting of several pleas to the jurisdiction by a state official and the Texas Alcoholic Beverage Commission (TABC).

In 2015, McLane Company, Inc. (McLane) submitted a PIA request to the TABC. The TABC sought an opinion from the Texas Attorney General (AG) under the PIA procedures. The AG determined most of the information must be released, but allowed two exceptions. The TABC filed suit against the AG and McLane intervened. McLane sought a writ of mandamus ordering TABC to produce the requested information. McLane also sought declarations under the Texas Uniform Declaratory Judgments Act (UDJA). It further sued Sherry Cook, TABC’s Chief Administrative Officer and Officer for Public Information, asserting her failure to release the information as an ultra vires activity. TABC filed a plea to the jurisdiction contending sovereign immunity deprived the trial court of jurisdiction over McLane’s UDJA and ultra vires claims. Cook also filed a plea to the jurisdiction asserting that sovereign immunity barred McLane’s suit against her. The trial court granted the pleas, and McLane appealed.

The Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’” Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621–22 (Tex. 2011) (per curiam).  To the extent McLane’s petition seeks the trial court to order “the PIA requires the TABC and Cook to promptly search for and produce” responsive documents, and the method in which they are to search, such a suit falls outside of the confines of the declaratory judgment action authorized by the PIA. Instead, such relief seeks a declaration of McLane’s rights under the statute.  As articulated in the Sefzik case, immunity is not waived under the UDJA except where the invalidity of an ordinance or statute is at play. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. As a result, the UDJA claims raised in the plea were properly dismissed. Further, while sovereign immunity does not bar a true ultra vires claim against a public official, McLane’s claims stem from the belief Cook was not performing a reasonably comprehensive search. The PIA does not authorize a declaration as to the search performed. Further, even if a proper ultra vires claim was factually pled, the redundant remedies doctrine precludes McLane pursuing it.  The legislature created an explicit waiver of sovereign immunity in the PIA and neither TABC nor Cook has challenged McLane’s right to intervene in the underlying PIA suit. McLane has a right of potential recovery under the PIA and therefore cannot sue for the same thing under an ultra vires theory. As a result, the trial court property granted the plea.*

Inverse Condemnation: City of Dallas v. Trinity E. Energy, L.L.C., No. 05-16-00349-CV, 2017 WL 491259 (Tex. App.Dallas Feb. 7, 2017) (mem. op.).  In this accelerated, interlocutory appeal, the Dallas Court of Appeals reversed the trial court’s order granting the City of Dallas’ plea to the jurisdiction.

The city sought additional revenue by leasing minerals on city-owned property to a private party. The city sought bids from private parties and specifically asked Trinity East Energy (Trinity) to submit a bid. Trinity advised the city of specific pieces of property where surface drilling sites would need to be placed and asked for the city’s pre-approval of these sites before closing on the leases. The city refused to do so stating the process would take too long. The parties negotiated the drill sites to be included in the leases. The city accepted Trinity’s bids. In the lease, the city agreed that it “would not unreasonably oppose Trinity’s request for a variance of waiver if necessary for its operations.”

The planning commission voted to deny Trinity’s applications for drill sites, which Trinity appealed to the city council. The motion to override did not receive three-fourths votes. Thus, the applications were denied. Following this denial, the city adopted a new gas well ordinance with more restrictive setback requirements. The new ordinance negated the possibility of locating a drill site on the leased property. In the mean time, the leases expired, and the minerals reverted to the city.

Trinity sued the city alleging breach of contract. The city filed a plea to the jurisdiction. Trinity argued that the city acted in its proprietary capacity when it leased the mineral rights to Trinity and governmental immunity does not apply to proprietary acts. The city responded that the “governmental-proprietary dichotomy” should not be extended to breach of contract claims. The trial court granted the city’s plea to the jurisdiction based on governmental immunity.

Shortly after the trial court granted the city’s plea, the Supreme Court of Texas concluded that the governmental-proprietary dichotomy does apply to claims for breach of contract in Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427 (Tex. 2016). The Dallas Court of Appeals cited City of Corpus Christi v. Gregg, 289 S.W.2d 756 (Tex. 1956), in concluding that the city was engaging in a proprietary function in leasing mineral rights.  Thus, governmental immunity did not apply. The court also concluded that Trinity raised fact issues about whether the city’s actions resulted in the deprivation of all economically viable use of Trinity’s mineral interests. The court reversed the trial court’s decision and remanded the case back to the trial court.

Takings:  Wells v. Texas Dep’t of Transp., No. 13-15-00175-CV (Tex. App—Corpus Christi Feb. 2, 2017) (mem. op).  This is a takings case involving allegations that the Town of South Padre Island took sand from the plaintiff’s property without due process or just compensation. However, this opinion focuses on a subsequent settlement and its enforceability.

Wells purportedly owns various properties along Park Road 100 on South Padre Island. The Texas Department of Transportation (TxDOT) maintains Park Road 100, including keeping the roadway clear of sand.  Wells filed suit against the Town of South Padre Island (town) and TxDOT alleging TxDOT removed sand from his property adjacent to the road and transported it to town beaches. The town filed a summary judgment asserting, among other things, that it only provided trucks via a subcontractor and did not actually remove or take anything.  After granting the town’s motion (which was interlocutory), the trial court ordered the parties to mediation.  At mediation the parties settled and sign the mediated settlement agreement (MSA).  However, one month later Wells withdrew his consent asserting it was not a knowing and willful consent. The town counterclaimed to enforce the MSA and filed an additional summary judgment motion. The trial court denied the town’s enforcement motion, but severed the case so the original MSJ could become final. The parties appealed and cross-appealed.

The central issue in this appeal is the town’s right to enforcement of the MSA. The town produced conclusive evidence to establish a valid contract. The terms of the MSA state that in consideration of $10,000 paid by the town to Wells within twenty-one days Wells agreed to execute a full and final release and would dismiss the town with prejudice. The MSA states it is enforceable as a Rule 11 agreement. Wells did not establish the lack of an essential term (i.e. the ownership disposition of the sand) as his own affidavit states the ownership interest was transferred to TxDOT, not the town. So the town could not agree on the ownership of property it does not own. Second, despite Wells’ complaints about his own counsel, he signed the MSA and the town conclusively established it complied with the terms by tendering payment by the deadline. As a result, the trial court should have granted the summary judgment motion on the town’s counterclaim.*

Elections:  City of Houston v. Dacus, No. 14-16-00123-CV, 2017 WL 536647 (Tex. App––Houston [14th Dist.] Feb. 9, 2017) (mem. op.).  This is an election case involving posting of an alleged misleading charter amendment where the law of the case doctrine required the trial court to rule against the city.

The Texas Supreme Court already issued one opinion in this matter, and held the drainage charges to be imposed on benefitting real property was among the ballot measure’s chief features, and that Proposition 1 was misleading because it failed to mention the charges.  Dacus v. City of Houston, 466 S.W.3d 820 (Tex. 2015). The court remanded the case for trial because only the city moved for summary judgment, not the contestants. On remand, the contestants sought summary judgment on the grounds that: (a) the Texas Supreme Court had decided the issue in Dacus II, which became the law of the case; or (b) even if Dacus II did not constitute the law of the case, the trial court should reach the same result for the same reasons. The trial court granted the motion and the city appealed.

The First District Court of Appeals rejected the city’s argument that the case is a challenge to “the post-election implementation of the charter amendment” instead of an election case. The trial court is not deprived of jurisdiction over this election contest merely because additional steps were taken after the election to implement the measure, and the city cited “. . . no authority that voters can bring an election contest challenging the sufficiency of a ballot description only in the rare case in which the measure itself is self-executing.”  Second, the case is governed by the questions of law decided in Dacus II, but only if the questions of law were answered by the Texas Supreme Court. The Texas Supreme Court explained that even voters already familiar with the measure to be voted on can be misled by ballot language that fails to sufficiently describe the measure.  The court then compared the ballot’s language (which is undisputed) to the proposed charter amendment’s language (which also is undisputed). From that comparison, the court determined that “[t]he ballot did not identify a central aspect of the amendment . . . .”  Such holdings are not dictum but are explicit findings by the court. “The question of whether the ballot language misled voters by omitting one of the measure’s chief features calls for a yes-or-no answer, and the state’s highest civil court has answered that question in the affirmative.”   As a result, the law of the case required the trial court to rule against the city.*

Texas Tort Claims Act: City of Houston v. Collins, No. 14-16-00449-CV, 2017 WL 421988 (Tex. App—Houston [14th Dist.] Jan. 31, 2017). This is a Texas Tort Claims Act vehicle accident case involving official immunity where the Fourteenth Court of Appeals reversed and rendered the denial of the city’s plea to the jurisdiction.

Houston Police Department Officer James Brown responded to a dispatch for assistance where another officer was pursuing a motorcycle whose driver was standing up, driving recklessly, and traveling at a high rate of speed. Collins’s vehicle exited a parking lot and turned right onto the road in front of Officer Brown. She then changed lanes into the left lane, then back to the right lane in front of Brown. Brown struck Collins’s vehicle while attempting to go around. Collins sued claiming Brown recklessly operated his vehicle. The city filed its first plea to the jurisdiction, which the trial court granted but the Fourteenth Court of Appeals reversed, noting the record did not contain sufficient evidence to establish Brown’s good faith immunity. On remand, the city filed a second plea with new evidence which the trial court denied.

In the first appeal, the Fourteenth Court of Appeals held that the city established Brown was acting in the course and scope of his employment and was performing discretionary actions. It remanded based on a lack of record evidence that no reasonable officer would have acted the way Brown did under similar circumstances. For this appeal, the court held the officer must assess “both the need to which an officer responds and the risks of the officer’s course of action, based on the officer’s perception of the facts at the time of the event.” The city’s second plea produced various affidavits from officers and dispatchers. The supervising sergeant on duty who overheard the radio exchange regarding the pursuit noted the pursuing officer had stress and urgency in his voice, made it clear the suspect was not stopping and was endangering lives, and that a reasonable officer would conclude an emergency existed.   Various officers provided affidavits that such situations require immediate responses from law enforcement for the safety of motorists and the public. The circumstances reasonably qualify as evading arrest which is a state jail felony under Section 38.04 of the Texas Penal Code. The court of appeals went into specific detail regarding the testimony supporting each of these statements. The court felt it was important to note the affidavits proffered by the city in support of the first plea stated that the suspect evaded arrest; they did not explain how a reasonable officer could have determined from the radio broadcast that the suspect was fleeing. The evidence for the second plea provided a great deal more detail and specific evaluations which go through an officer’s mind. The court analyzed the “need” and “risk” assessment under the detailed statements and what alternative actions Brown could have used.  In response to Collin’s assertions that the new affidavits are conclusory because they analyze things differently than the first set of affidavits, the court held “[t]he new affidavits do not change the underlying factual assertions, but instead provide additional context to explain Officer Brown’s response considering what he reasonably understood to be the situation. The new affidavits were substantiated with facts showing that Officer Brown assessed the need for his response against the risks to the public” and “provide[d] the missing link explaining that reasonable officers’” mindset.  After going through the analysis, the court held that the city established Officer Brown was entitled to official immunity. Therefore, the city’s plea should have been granted. Reversed and rendered.*

*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 www.rshlawfirm.com.

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