Recent Texas Cases of Interest to Cities

Note: Included cases are from January 11, 2018 through February 10, 2018.

Utility Relocation Cost: City of Richardson v. Oncor Elec. Delivery Co. LLC, No. 15-1008, 2018 WL 663159 (Tex. Feb. 2, 2018). This case involves a dispute between a city and a utility over who must pay relocation costs to accommodate changes to public rights-of-way.

The City of Richardson negotiated a franchise agreement with Oncor Electric Delivery Company (Oncor) requiring Oncor to bear the costs of relocating its equipment and facilities to accommodate changes to public rights-of-way. Richardson later approved the widening of thirty-two public alleys. Oncor refused to pay for the relocation. While the relocation dispute was pending, Oncor filed an unrelated case with the Public Utility Commission (PUC), seeking to alter its rates. That dispute was resolved by settlement, but the settlement included the city passing a tariff ordinance. The court had to decide whether a pro-forma provision in a tariff, which sets the rates and terms for a utility’s relationship with its retail customers trumps a prior franchise agreement, which reflects the common law rule requiring utilities to pay public right-of-way relocation costs.

By nature, a franchise agreement represents the unique conditions a city requires of a utility in exchange for the utility’s right to operate within the city. Here, the franchise contract incorporated a conventional right-of-way ordinance (ROW Ordinance) requiring the utility, upon written notice from the city, to remove or relocate “at its own expense” any facilities placed in public rights-of-way. The ROW Ordinance is typical of others throughout Texas. “Tariff” is defined as “the schedule of a utility . . . containing all rates and charges stated separately by type of service, the rules and regulations of the utility, and any contracts that affect rates, charges, terms or conditions of service.” 16 Tex. Admin. Code §25.5(131). A tariff filed with the PUC governs a utility’s relationship with its customers, and it is given the force and effect of law until suspended or set aside. However, the PUC’s rules also contain a “pro-forma tariff,” the provisions of which must be incorporated exactly as written into each utility’s tariff. The city and Oncor sued each other over payment of the relocation costs, each citing the differences between the ROW Ordinance/Franchise Contract and pro-forma tariff. The trial court granted the city’s motion for summary judgment, but the court of appeals reversed and rendered judgment for Oncor.

Under the common law, a utility’s right to use a city’s public rights-of-way is permissive and is subordinate to the public use of such rights-of-way. The Texas Supreme Court has traced this principal back at least as far as 1913.  The Texas Utilities Code mirrors the common law, but specifically apply to “streets.” Oncor argues that the legislature’s use of “street” and not “alley” is significant and precludes these statutes from applying to alleys. Under statutory construction principles, every word included and excluded by the legislature has significance. Looking to the statutory scheme, the court found particularly relevant the legislature’s recognition of the broad authority afforded to home-rule cities. As a home-rule city, the City of Richardson has “exclusive original jurisdiction over the rates, operations, and services of an electric utility in areas in the municipality.” Furthermore, the court held that in the context of home-rule cities, the recognition of a specific power does not imply that the other powers are forbidden. The legislature did not intend to strip municipalities of their common law right to require utilities to bear relocation costs. The language in the tariff does not unmistakably address the relocation costs. The tariff addresses Oncor’s relationship with end-users, which, in this case, does not include the city.  As a result, the city retains the power to address costs through its ROW Ordinance and its franchise contract. The court reversed the judgment of the court of appeals and reinstated the judgment of the trial court.*

Whistleblower: Metropolitan Transit Auth. v. Williams, No. 01-17-00724-CV, 2018 WL 541932 (Tex. App.—Houston [1st Dist.] Jan. 25, 2018) (mem. op.). This is a Texas Whistleblower Act suit where the First District Court of Appeals in Houston reversed the denial of the employer’s plea to the jurisdiction and rendered judgment for the metropolitan transit authority (Metro).

Williams was a track maintainer for Metro. Williams complained to Metro’s compliance officer asserting a hostile work environment by his supervisor, Ratcliff.  Williams alleged Ratcliff instructed him to “snitch” on anyone or anything going wrong on the track and that when Williams expressed reservations Ratcliff became hostile. Later an incident occurred between Williams and another Metro employee, Fred Burton. Burton reported the incident to the Metro police the next day. Burton asserted Williams began to curse at him, calling him a derogatory name for a black person, and threatening to fight him off Metro property. Three other people were witnesses to the incident, including Ratcliff. Williams wrote a response to the incident but asserts Burton’s accusations were retaliation for Williams’ complaint against Ratcliff. Police charged Williams with assault by threat and Metro terminated Williams. On an aside, after Williams was terminated, another employee reported Ratcliff and Burton for theft of Metro property and Williams cooperated with the investigation.  Williams filed suit under the Texas Whistleblower Act. Metro filed a plea to the jurisdiction which the trial court denied. Metro appealed.

“Snitch” means to report on someone else. Williams’ attempt to change the meaning is unsupported in the text of his report. In the context of the entire passage, Ratcliff asking Williams to be his eyes and ears on the track conveys the idea that Williams would watch what other people were doing and report to Ratcliff. Nothing in this passage indicates that Ratcliff was engaged in any criminal activity and seeking Williams’s help in the process.  Simply because Williams was later charged with a crime by another employee does not mean Williams was retaliated against for his report to the compliance officer. Metro produced evidence that another employee reported the criminal acts of Ratcliff and Burton after Williams was fired. Metro’s evidence established that an officer was assigned to investigate the allegations and that the first time the officer spoke to Williams was after he had been terminated. Metro could, therefore, not retaliate against him because of anything he provided the officer.*

Employment Law: Town of Shady Shores v. Swanson, No. 02-15-00338-CV, 2018 WL 472902 (Tex. App.—Fort Worth Jan. 18, 2018). The Town of Shady Shores City Council terminated Swanson, who served as city secretary, for lack of confidence at a special meeting on February 24, 2014.  Swanson sued the town originally under the Texas Whistleblower Act for wrongful termination because she reported the destruction of a tape recording of a meeting of the town’s investment committee. She also brought a common law claim for wrongful discharge under Sabine Pilot. In response to the suit, the town filed a plea to the jurisdiction asserting governmental immunity for both claims. Swanson then amended her petition to add a claim of violation of her free speech rights under the Texas Constitution, declaratory relief based on town’s alleged violation of the Texas Open Meetings Act (TOMA), and of her right under the “due course” provision of Article I, Section 19 of the Texas Constitution. Swanson did not allege separate and distinct claims for violations of TOMA or the Texas Constitution; rather she alleges that the town committed violation of these provisions in support of her standalone claim for a declaratory judgment.

Before the trial court ruled on the town’s plea to the jurisdiction, the town filed a motion for traditional summary judgment and a separate motion for no-evidence summary judgment that challenged the trial court’s jurisdiction of Swanson’s additional claims. The town asserted that it was entitled to governmental immunity on Swanson’s declaratory judgment claims because she had no evidence that she was entitled to declaratory relief in its no-evidence motion. In the traditional summary judgment, the town asserted that it was entitled to summary judgment on Swanson’s declaratory judgment claims because the claims did not fall within the scope of permissible declaratory judgment actions against governmental entities. In her summary judgment response, Swanson argued the town was not entitled to a no-evidence summary judgment because it bore the burden of proof on establishing governmental immunity and that genuine issues of material fact precluded the traditional summary judgment.  The trial court granted the town’s plea to the jurisdiction as to Swanson’s Whistleblower and Sabine Pilot claims and dismissed them.  However, the trial court denied the town’s summary judgment motions. The town filed an interlocutory appeal challenging the denial of the motions of summary judgment and raised six issues challenging the trial court’s jurisdiction and the trial court’s determination of Swanson’s objection to the town’s no-evidence summary judgment motion.

The Fort Worth Court of Appeals quickly dispatched with the town’s first issue that the trial court had no jurisdiction over Swanson’s TOMA claims, stating that the town did not raise a jurisdictional, government immunity ground on this issue, but raised a traditional summary judgment ground which appellate courts do not have jurisdiction to hear the denial of.  Also, while Swanson asserted grounds for declaratory relief based on TOMA violations, she did not assert a separate, standalone claim under the TOMA and without that distinct claim the court overruled the town’s first issue for lack of jurisdiction.

The court also dispatched with the town’s second issue.  The town asserted that Swanson presented no viable claim for relief under “due course” provision in Article I, Section 19 of the Texas Constitution. It argued that Swanson had no evidence that she was denied any right to confront her accusers and address the council before a council meeting, no constitutional right to appeal the termination decision, and she was provided with notice and an opportunity to be heard.  However, the court stated that since Swanson only raised these constitutional issues as part of her Uniform Declaratory Judgment Act (UDJA) claim and not as standalone claim, the court did not have jurisdiction and overruled the second issue.

The town’s third issue concerned Swanson’s UDJA claims. First, the town argued Swanson provided no evidence in response to its no-evidence summary judgment motions and the trial court erred by denying it a no-evidence summary judgment as to Swanson’s declaratory claims. However, the court stated that the town had to first produce evidence negating jurisdiction before Swanson had any burden to produce jurisdictional evidence. A governmental entity cannot file a no-evidence motion for summary judgment on governmental immunity grounds to altogether avoid the jurisdictional burden that it would have to demonstrate when asserting a plea to the jurisdiction. So, the court found that the trial court did not err in denying the town’s no-evidence summary judgment and overruled part of the town’s third issue.

Second, the town argued that it is immune from Swanson’s UDJA claims because she does not fit within the category of person entitled to relief under the UDJA. However, the court disagreed with the town by stating that Swanson easily qualified as an interested person seeking to stop, prevent, and reverse violations of the TOMA and therefore a person seeking to obtain a declaration of rights, status, or other legal relations under the UDJA. Then, the town argued that the UDJA does not waive governmental immunity when plaintiff seeks declaration of her rights under a statute or other law. The court explained a plaintiff who sues a governmental entity under the UDJA must allege a waiver of immunity from some other source. The TOMA did provide the waiver of immunity for some of Swanson’s UDJA claims, but the TOMA is a limited waiver for an interested person bringing an action by mandamus or injunction to stop, prevent or reverse a violation or to find an action voidable. Since Swanson seeks a declaration that the town violated the TOMA when terminating her, that the termination was void under the TOMA and seeking injunctive relief, the TOMA does waive governmental immunity for these claims. The court overrules the third issue to these claims.

Third, the remaining requested declaratory relief by Swanson that the town violated the TOMA in certain ways does not have a waiver under the TOMA. Therefore, the trial court should have dismissed Swanson’s TOMA-based UDJA claims for lack of jurisdiction to the extent she seeks relief beyond injunctive or mandamus relief and a declaration that the town’s termination of her employment was void.  This part of the town’s third issue was sustained. Lastly, the court found that Swanson did not allege viable constitution–based UDJA claims. The court did an analysis of whether Swanson had a liberty interest because of her performance review, and if she had a property interest in her employment. The court determined that she did not have a liberty interest since the performance agreement did not have an adverse effect on her reputation.  Also, Swanson did not have a property interest in her job since she was not under a contract nor did statutes or the employee handbook give such an interest. Therefore, the court sustained the town’s third issue challenging the trial court’s jurisdiction over Swanson’s constitution-based UDJA claims.

The town’s fourth issue argued that it was entitled to governmental immunity from Swanson’s free speech claim under the Texas Constitution.  The court explained that it did not have jurisdiction over part of the fourth issue because of the town having to negate jurisdictional claims first before the burden shifts when it comes to a no-evidence summary judgment. Also, the court could not review the traditional summary judgment because the town did not have the ability to appeal the trial court’s denial of its motion as to the free speech claim, but must consider the jurisdictional argument the town made. The court analyzed Swanson’s free speech rights when it comes to her being a public employee and whether she was speaking as a public employee or a citizen when speaking about the town records being destroyed.  Generally, when a public employee makes statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications form employer discipline.  But, a public employee discussing her job duties might be considered citizen speech if the employee is discussing this issue to persons outside the work place in addition to raising them up the chain of command at her workplace. The court used this analysis and determined that Swanson was speaking as a public employee and not a citizen when making reports about the destruction of the records. She only reported the destruction of the town’s record to the people within the chain of command such as council members, mayor, and the town attorney.  Since Swanson did not have a viable constitutional claim, the trial court had no jurisdiction over her claim. Also, Swanson did not have First Amendment protection when she spoke about the mayor intending to call her into the meeting under false pretenses. For the First Amendment to be invoked, the matter had to be related to a matter of public concern. Though the termination of a city secretary is a matter of public concern according to the statutes, the statute has given no such indication for the kind of circumstances alleged by Swanson. Therefore, the trial court did not have jurisdiction and the fourth issue is sustained.

Last of all, the town’s fifth and sixth issues argues that it properly identified the grounds for its no-evidence motion for summary judgment and that governmental immunity is properly raised in a no-evidence motion for summary judgment. These issues address Swanson’s trail court objection to the no-evidence summary judgment.  The court held that a governmental entity may not raise immunity in a no-evidence summary judgment motion based and therefore both issues are overruled. 

Tort Claims: Tarrant Cty. v. Carter-Jones, No. 02-17-00177-CV, 2018 WL 547588 (Tex. App.—Fort Worth Jan. 25, 2018) (mem. op.). This is a premise defect/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals reversed the denial of a plea to the jurisdiction and rendered judgment for the county.

Marks, a courthouse worker, noticed a puddle of water in front of a restroom, which is in an alcove separate from the hallway. The puddle was confined, was approximately two feet in diameter, and was not expanding. She reported it to maintenance. About an hour later, Carter-Jones slipped and fell on water located in the hallway. Carter-Jones sued the county under a premise defect theory. The county filed a plea to the jurisdiction, which was denied. The county appealed.

Merely referring to the TTCA in a petition does not establish a waiver of immunity. Courts must consider the factual allegations and/or evidence. The court first noted Carter-Jones did not plead and, therefore, did not establish personal property was involved for waiver purposes. Carter-Jones and the county disagree about what the known “dangerous condition” in this case actually was under a premise defect theory. Carter-Jones asserts the water on the alcove floor that later spread to the hallway created an unreasonable risk of harm. The county asserts it must have known of the water in the hallway which caused the fall for a waiver to exist. The county’s evidence established that it did not have actual knowledge of the water in the hallway. Its evidence asserts the facilities-management department would have responded to a water leak or hazard in the corrections-center hallway more quickly than water in front of a closed bathroom in an alcove with no traffic. “Actual knowledge” requires knowing that “the dangerous condition existed at the time of the accident, as opposed to constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time.”  No evidence exists the county had actual knowledge water was in the hallway. While Carter-Jones’s conclusory pleadings state the county had actual knowledge, the evidence established otherwise, with no contravention. As a result, the plea should have been granted.*

Public Purpose: Tarrant Appraisal Dist. v. Tarrant Reg’l Water Dist., No. 02-17-00042-CV, 2018 WL 547777 (Tex. App.—Fort Worth Jan. 25, 2018). The Tarrant Appraisal District (TAD) asserted part of the property owned by the Tarrant Regional Water District (TRWD) was not “used for public purposes” and therefore was not tax exempt. The Fort Worth Court of Appeals affirmed the order dismissing TAD’s suit. [This is a 37 page opinion, but has excellent language on “public purpose” definitions applicable to governmental entities. Sorry, but long opinion equals long summary in comparison.]

TRWD acquired property in connection with a federal control project. Undertaken in concert with the United States Army Corps of Engineers, the program’s purpose was to control flooding on the Clear Fork Trinity River. A portion of the property was not used directly for flood control but was used for public trails, common areas, and river access. In an effort to counteract a lack of use outside of certain areas along the trails and “to encourage development of river-facing businesses on TRWD’s property and adjoining properties,” TRWD determined it would improve and lease to chef Tim Love’s River Shack, LLC, property to run a restaurant on the river front. River Shack pays TRWD rent based on a percentage of its annual sales and “[a]ll income received by TRWD from the [lease] is deposited into the general fund of TRWD and used exclusively for [] TRWD’s public purposes.” TAD asserted the property was not exempt from taxation. TRWD followed the procedures in the Tax Code to challenge the decision, ending in district court. TRWD filed a motion for summary judgment which the trial court granted. TAD appealed.

TRWD is a governmental entity created under statute. TRWD is authorized to make and enforce reasonable rules that are necessary to accomplish TRWD’s “authorized purposes,” which include (i) regulating “all recreational and business privileges on any . . . body of land . . . owned . . . by the district,” (ii) promoting “state or local economic development,” and (iii) stimulating “business and commercial activity in the district.” TRWD is further permitted to provide for or participate in the acquisition, construction, development, operation, or maintenance of recreational facilities intended to promote economic development. TAD contends the Tax Code should control over the TRWD authorization statutes and applies only when public property is used exclusively for the use and benefit of the public.  TRWD asserts its creation is dictated by the Texas Constitution and it serves a public purpose as a matter of law. Interestingly, the court, after going through a detailed analysis of the Texas Constitution, statutory construction principles, and the Tax Code, held the Tax Code controls, but the property is exempt as a matter of law.

The court ends up holding unconstitutional, as a local law, a portion of the uncodified statute authorizing TRWD’s creation and authority. The result being the Tax Code controls for purposes of determining the exemption. Under Section 11.11(a) of the Texas Tax Code, a property is exempt from taxation if it is used for a public purpose. The court declined to adopt TAD’s interpretation that it must be used “exclusively” for public purposes with no simultaneous use benefiting an individual private business. The court compared other statutes and constitutional provisions where the legislature expressly inserted “exclusive-use” language. TAD’s argument “has no basis in the text” of either the Tax Code or its constitutional counterpart for exclusivity. Whether property is used for public purposes is a highly fact-specific question that must be answered on a case-by-case basis. The court held “[c]ontrary to TAD’s overly-narrow characterization, the Property is not some run-of-the-mill strip mall that TRWD developed merely for retail purposes. River Shack no doubt operates a business for profit, but that is only one facet of a larger project that, at its core, unquestionably has a public purpose.” TRWD entered into the lease with River Shack “to encourage development of river-facing businesses on TRWD’s property and adjoining properties.” The property “was intended and designed as a trail amenity to provide the public with recreational enhancements ancillary to the public’s use of the Trinity Trails system.” Thus, the evidence conclusively demonstrates, TRWD leased the property to River Shack in connection with its optimistic plan to develop it for economic and recreational purposes. With its pavilion, common areas, and location adjacent to the Trinity Trails, and developed and leased for economic and recreational purposes, the property is used for public purposes as a matter of law.*

Administrative Procedure Act: Fisher v. Public Util. Comm’n, No. 03-16-00540-CV, 2018 WL 454730 (Tex. App.—Austin Jan. 11, 2018). In November 2013, the City of Georgetown and the Chisholm Trail Special Utility District (Chisholm) submitted an application with the Public Utilities Commission (PUC) to transfer Chisholm’s certificated water-service area to the City of Georgetown. The State Office of Administrative Hearings (SOAH) held a contested-case hearing on the matter. The administrative law judge provided a proposal for decision to the PUC, which was considered at an open meeting held in December 2015. The appellants presented oral argument at the meeting, but ultimately the PUC issued a final order approving the transfer application. The appellants received notice of the PUC’s order on January 15, 2016, and filed a motion for rehearing on February 5, 2016. After the PUC took no action on the motion for rehearing, the appellants brought suit for judicial review. The PUC responded with a plea to the jurisdiction, asserting that appellants’ failure to timely file a motion for rehearing with the PUC deprived the trial court of jurisdiction over the matter. The trial court agreed and granted the plea, dismissing appellants’ suit.

Appellants challenged the trial court’s judgment over two specific issues: (1) their motion for rehearing was timely because the Texas Legislature’s 2015 amendments to the Administrative Procedure Act (APA) extended the deadline to file a motion for rehearing from 20 to 25 days; and (2) they were not required to file a motion for rehearing because the PUC lacked jurisdiction over the transfer application.

The court looked at the 2015 amendments to the APA and found that, in the amendments, the legislature specified that the changes to the deadline apply only to an administrative hearing that is set on or after September 1, 2015. The SOAH judge set the underlying administrative hearing for July 20, 2015. The court concluded that because the administrative hearing was set before September 1, 2015, the APA’s 20-day deadline for motions for rehearing applied, not the newly enacted 25-day deadline.

Appellants also argued that the phrase “administrative hearing” did not just apply to the SOAH hearing. Instead, the phrase included all matters up to and including the agency final order or decision. The court noted that the phrase “administrative hearing” is not defined by the APA. The court cited a number of cases and SOAH’s enabling legislation in concluding that “administrative hearing” means the evidentiary hearing held before a SOAH administrative law judge. Thus, the court overruled appellants’ first issue.

The court quickly disposed of appellants’ second argument stating that the court had already reviewed and rejected the argument in Chisholm Trail SUD Stakeholders Group v. Chisholm Trail Special Utility District, in which appellants were intervenors. The court affirmed the trial court’s judgment.    

Performance Bond: City of Wolfe City v. American Safety Cas. Ins. Co., No. 06-17-00075-CV, 2018 WL 792108 (Tex. App.—Texarkana Feb. 9, 2018). In December 2011, the City of Wolfe City entered into a contract with Mckinney and McMillen, LLC (M&M) to enhance its water distribution and treatment system. American Safety Casualty Insurance Company (American Safety) issued a performance bond in favor of the city for the total value of the contract with M&M. In March 2013, the city engineer signed a certificate of substantial completion. Attached to the certificate was a pre-final inspection punch list of items that needed to be corrected or completed within 30 days. Shortly after the certificate was issued, the city began experiencing significant problems with the installed system. The city worked with M&M in an attempt to resolve the ongoing problems but was unsuccessful. On November 4, 2013, the city contacted American Safety to trigger its performance bond requirements. The city then filed suit in March 2014. American Safety filed both traditional and no-evidence motions for summary judgment. The trial court granted both motions, and the city appealed.

The Texarkana Court of Appeals noted that under the terms of its bond, American Safety bound itself to perform M&M’s contract with the city if M&M failed to do so. The bond specifically incorporated the terms of the contract, and American Safety is liable to the city if M&M breached the contract. The court looked at the specific terms of the contract in question and determined that M&M was obligated to repair or replace any defects in the work discovered within one year after substantial completion of the project. When viewed in the light most favorable to the city, as required, the court concluded that the summary judgment evidence produced by the city was more than a scintilla of probative evidence. Thus, the trial court erred in granting American Safety’s no-evidence motion for summary judgment.

The court next looked at American Safety’s traditional motion for summary judgment. American Safety argued that it was entitled to rely on the certificate of substantial completion. Specifically, the issuance of the certificate discharged American Safety’s duty under the performance bond. The court states that “Texas courts have long held that a surety’s liability under a performance bond issued to secure performance of a construction contract is determined by examining the underlying contract.” The court cites a number of cases and points out that none of the cases held that the issuance of a certificate of substantial completion would discharge the surety of liability on a performance bond. The court concluded that the contract required a fully functioning system, and a certificate of substantial completion did not release M&M from that duty. Thus, American Safety would still be liable under the performance bond, which incorporated the contract provisions. The court reversed the judgment of the trial court and remanded the case back to the trial court.

Whistleblower: City of Hereford v. Frausto, No. 07-17-00400-CV, 2018 WL 445657 (Tex. App.—Amarillo Jan. 16, 2018) (mem. op.). This is a case where the Amarillo Court of Appeals affirms the trial court’s order denying the city’s plea to the jurisdiction.

Frausto was employed with the City of Hereford. Following an initial investigation by local police, he was tasked with investigating a dog complaint. Frausto ultimately forwarded the matter to the municipal court judge who set the matter for hearing to determine whether the dog was a “dangerous dog” under state law. The city attorney became aware of the hearing, reviewed the reports, and decided to cancel the hearing. Frausto believed this to be illegal and reported it to the local police chief. Several weeks later, Frausto was terminated. He sued the city arguing a violation of the Texas Whistleblower Act (Act).  The city filed a plea to the jurisdiction which was denied. The city appealed.

The Act, at Section 554.002 of the Government Code, provides that a local government may not suspend or terminate an employee “who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” The city argues that Frausto didn’t satisfy the good faith component of the Act. Reading the allegations in the live pleading in a light most favorable to Frausto, the court concludes that a question of fact exists regarding whether Frausto’s belief about the city attorney violating the law was held in good faith. The trial court’s order is affirmed.

Governmental Immunity: Davis v. City of Lubbock, No. 07-16-00080-CV, 2018 WL 736344 (Tex. App.—Amarillo Feb. 6, 2018) (mem. op.). This is an immunity case where the Amarillo Court of Appeals affirms the trial court’s order sustaining the city’s plea to the jurisdiction and dismissing the case.

The City of Lubbock holds a permit from the Texas Commission on Environmental Quality (TCEQ) to pump effluent from its wastewater system to a site used for crop irrigation. By the terms of the TCEQ permit, the city must conduct grazing and harvesting activities on the irrigated land according to an approved crop management plan. One crop grown and harvested by the city on the site is Tricticale, harvested by bailing into hay. Though not required by the TCEQ permit, the city sells some of the hay to the public. Davis purchased some of the hay and fed it to her horses. Two of her horses subsequently died and a third was disabled.

Davis sued the city arguing the employees had baled the hay in a way that led to the presence of bacteria and failed to exercise ordinary care in harvesting the hay. She also alleged the employees negligently failed to test the hay for bacteria before selling it and that the harvesting was performed by use of motor-driven equipment. The city filed a plea to the jurisdiction, asserting the activity was a governmental function for which its immunity from suit was not waived. The trial court sustained the city’s plea to the jurisdiction and Davis appealed.

The Amarillo Court of Appeals concludes that the sale of the baled hay is sufficiently related to the performance of the city’s TCEQ-permitted activities as to come within the governmental functions authorized by the permit and the city is immune from suit. The court also finds that the facts do not show Davis sustained any damage arising from the city’s use of a vehicle or motor-driven equipment. Thus, the court overrules her second issue regarding whether the city’s immunity was waived under the Tort Claims Act. The trial court’s order is affirmed.

Open Meetings: State v. Doyal, No. 09-17-00123-CR, 2018 WL 761011 (Tex. App.—Beaumont Feb. 7, 2018). In this case, the state appeals the trial court’s dismissal of an indictment alleging Doyal, as a member of the Montgomery County Commissioner’s Court, violated Section 551.143 of the Texas Open Meetings Act (TOMA) by knowingly conspiring to circumvent the TOMA by meeting in a number less than a quorum. Doyal filed a motion to dismiss asserting that Section 551.143 is facially unconstitutional because it violates the First Amendment, and is overbroad, vague, and confusing. The trial court dismissed the indictment and the state appeals.

The state argues the trial court erred by dismissing the indictment on the ground that: (1) the statute is facially unconstitutionally vague and ambiguous; and (2) the statute facially violates the First Amendment and is overbroad.

The Beaumont Court of Appeals concludes that Section 551.143 is directed at conduct, not speech, and thus, rejects that strict scrutiny must be applied in reviewing the section. That means the court presumes the statute is valid and that the legislature did not act arbitrarily or unreasonably in enacting it. The Beaumont Court of Appeals applies the plain meaning to the terms “conspire,” “circumvent,” and “secret.” The court then finds that the attorney’s general’s reasoning that use of the term “deliberation” in Section 551.143 is not vague but consistent with the definition of the term in Section 551.001 “because meeting in numbers less than a quorum describes a method of forming a quorum, and a quorum formed this way may hold deliberations like any other quorum.”

In sum, the court concludes that Section 551.143 describes the criminal offense with sufficient specificity that ordinary people can understand the prohibited conduct, that the statute provides reasonable notice of the prohibited conduct, and that the statute is reasonably related to the state’s legitimate interest in assuring transparency in public proceedings. Doyal does not meet his burden to prove the statute is unconstitutionally vague and overbroad. The Beaumont Court of Appeals reverses the trial court order and remands the cause back to the trial court for further proceedings.

For the reasons set out above, the Beaumont Court of Appeals also reverses the orders dismissing the indictments against two related defendants. See State v. Riley, No. 09-17-00124-CR, 2018 WL 757037 (Tex. App.—Beaumont Feb. 7, 2018); State v. Davenport, No. 09-17-00125-CR, 2018 WL 753357 (Tex. App.—Beaumont Feb. 7, 2018).

Tort Claims: Delameter v. Beaumont Indep. Sch. Dist., No. 09–17–00045–CV, 2018 WL 651268 (Tex. App.—Beaumont Feb. 1, 2018) (mem. op.). This is a wrongful death/Texas Tort Claims Act case where the Beaumont Court of Appeals affirmed the granting of the school district’s plea to the jurisdiction.

A disabled/wheelchair bound child was receiving therapy while attending school in the Beaumont Independent School District (BISD). The bus BISD used to pick up the child had both a driver and an attendant. After his chair was placed on the bus, it was locked in place. The duties of the District’s employees required them to lift the chair onto the bus, to lock the chair in place, and to monitor the child’s condition on the way to school. During transport the child became unresponsive. The driver and attendant stopped the bus and called BISD headquarters. They did not drive the bus to any emergency room, but awaited the arrival of an ambulance consistent with District policies.  Unfortunately, the child died. The family brought suit against BISD asserting the bus was driven in a negligent manner causing the child to become nonresponsive. The District filed a plea to the jurisdiction, which was granted. The family appealed.

According to the Delameters, the bus’s movement eventually caused the restraints to tighten around the child causing him to lose consciousness. The Delameters also argued that stopping the school bus and waiting for an ambulance when the driver could have made it to a nearby hospital involved the use or the operation of the bus. However, after analyzing the evidence submitted, the court held nothing indicated the driver drove the bus at an unsafe speed or that he engaged in any unsafe maneuvers. Even though the Plaintiff’s evidence suggests that the child’s harness may have required adjustment, this statement amounts to no evidence to show that the harness injured or caused his death. Further, the failure to drive the bus to the hospital is a non-use of property, which does not waive immunity. As a result, the plea was property granted.*

Governmental Immunity: City of Hidalgo v. Hodge, No. 13-16-00695-CV, 2018 WL 460808 (Tex. App.—Corpus Christi Jan. 18, 2018) (mem. op.). Mary Hodge was injured at a concert event after stepping into a hole. She sued the City of Hidalgo under a premises liability theory. The city filed a plea to the jurisdiction claiming immunity, which was denied by the trial court.

On appeal, the city argued that it did not have the duty to treat Hodge as an invitee for purposes of the provision of Texas Tort Claims Act waiving city immunity because Hodge could not show that the city had possession or control of the premises, because she did not pay the city to enter the premises, and because the hole was not a special defect. With regard to the city controlling the premises, the city contended that it leased the premises to the Borderfest Association and therefore did not control the premises when Hodge fell. However, the court concluded that not only did no written agreement exist leasing the premises to Borderfest, but Hodge introduced evidence demonstrating the city’s involvement in the actual operation of the event. The court concluded that Hodge’s evidence sufficiently established as a matter of law that the city had control of the premises at the time Hodge fell.

The city also contended that because Hodge paid an entrance fee to Borderfest, as opposed to the city, that she was not an invitee under Texas Civil Practice and Remedies Code Sec. 101.022(a) and instead was a licensee. The court held that no authority allows Hodge to be treated as a licensee just because Borderfest, and not the city, received the entry fee for use of the premises. According to the court, the relevant question was whether Hodge paid for entry onto the premises and not whether the city received the payment.

On the question of whether the city had actual or constructive knowledge of the defect (using invitee status) the court found that adequate evidence was presented that city employees inspected the ground around the bleachers, that the hole was man-made, and that the city was solely responsible for setting up the bleachers and maintaining the grounds. The court overruled the city’s issues on appeal and affirmed the trial court’s judgment.

*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