Recent Texas Cases of Interest to Cities

Note: Included cases are from January 11, 2020 through February 10, 2020.

Texas Tort Claims Act: Texas Dep’t of Criminal Justice v. Rangel, No. 18-0721, 2020 WL 596876 (Tex. Feb. 7, 2020).  This is a Texas Tort Claims Act (TTCA) case where the Texas Supreme Court held the Texas Department of Criminal Justice (TDCJ) retained immunity for hitting an inmate with a tear-gas shell because the riot exception to the TTCA applied.

Two groups of inmates were threatening each other in the Pam Lychner State Jail. The groups totaled twenty-six inmates. After giving orders to cease hostilities for almost an hour, which the inmates ignored, a TDCJ warden authorized a lieutenant to use a rifle as a show of force. The armory employee gave the lieutenant the rifle and two shells, including a skat shell. A “skat shell” launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters. The lieutenant accidentally loaded the skat shell. After giving a final order to rack up, which the inmates refused, the lieutenant fired the skat shell at the group of inmates who refused to comply with orders. The skat shell hit Rangel, injuring him. Rangel sued. TDCJ conducted an internal use-of-force review that “revealed several mistakes” as to how the incident was handled, noting that the skat shell was “designed for outdoor areas” only and “that chemical agents should have been administered through the door rather than in the middle of the housing area.” The lieutenant who fired the skat shell was disciplined. TDCJ filed a plea to the jurisdiction, which was denied.

The Texas Supreme Court held the supervisor’s order to use the tear-gas gun was a “use of tangible personal property” under the TTCA. It was not the use by the individual guard following orders, but was a “use” by the supervisor who authorized an order the gun be put into play. The distinguishing factor is the order by the supervisor specifically to use the weapon, and not merely making the weapon available to the guard with no direction. [Comment: the court spent multiple pages in the opinion on this distinction.] The court did not address TDCJ’s argument regarding the intentional tort exception to the TTCA.  However, the immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.” Tex. Civ. Prac. & Rem. Code § 101.057(1). Rangel argued that the circumstances did not constitute a riot or there was a fact issue as to whether a riot existed. The court concluded the plain and ordinary meaning of the term “riot” also includes how the term is used in other statutes, including the Penal Code. The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.” Tex. Penal Code § 42.02(a). While not identical, that definition is in line with the ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events but also the immediate danger. As a result, the undisputed facts of the case constitute a riot as a matter of law. As a result, no waiver of immunity exists and the plea should have been granted.  The court reversed the First Court of Appeals and rendered judgment in favor of TDCJ.*

Texas Tort Claims Act: City of Houston v. Terry, No. 01-19-00197-CV, 2020 WL 370556 (Tex. App.—Houston [1st Dist.] Jan. 23, 2020) (mem. op.).  This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the city’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the city. Terry was employed by a contractor at the time, but he was accompanied by a city employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power. However, when Terry touched the lightbulb that needed replacing 300 feet up the tower, he was electrocuted. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because: (1) power immediately stops running to the tower when the control box’s faceplate is removed, and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence showed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premises defects. The city filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premises defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The TTCA’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premises defect theory, the city only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premises defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premises defect analysis. Under a premises defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off. Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.*

Employment/Civil Service: City of Fort Worth v. O’Neill, No. 02-18-00131-CV, 2020 WL 370571 (Tex. App.—Fort Worth Jan. 23, 2020) (mem. op.). The Fort Worth Court of Appeals reversed-in-part and affirmed-in-part a trial court order regarding whether the court had jurisdiction over an appeal from a hearing examiner’s decision under the Civil Service Act.

Shea O’Neill was indefinitely suspended as a firefighter with the city. O’Neill, while on work-related leave, struck a 70-year-old parent at a football scrimmage with his left hand. The parent alleged he sustained facial injuries, several cracked and broken teeth, and a bloody nose. The fire chief found that O’Neill had violated several fire-department rules and regulations and imposed the suspension. O’Neill appealed and a hearing examiner reversed the suspension. The city appealed to the district court, which granted O’Neill’s plea to the jurisdiction holding it had no jurisdiction over the hearing examiner’s decision. The city appealed.

The city asserts the district court had jurisdiction to consider the appeal for two reasons: (1) the hearing examiner’s decision was procured by unlawful means because she considered evidence not admitted at the hearing, and (2) the hearing examiner exceeded her jurisdiction because she concluded that the fire department’s due-process violations compelled her to reinstate O’Neill. The Civil Service Act mandates that a decision be made on evidence submitted at the hearing. A hearing examiner’s decision is “final and binding on all parties.” An appeal is permitted only if the hearing examiner was without jurisdiction or exceeded his/her jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. It is undisputed the hearing examiner conducted her own independent Internet research on the side effects of certain drugs. O’Neill counters the search results were not “procured” through unlawful means. In ordinary usage, “procure” means to “to cause to happen or be done” and to “bring about.” The hearing examiner found the “slap” was defensive in nature and unlikely to have caused the broken teeth or bones and dismissed the nosebleed as being caused by the slap.

The court held a fact issue exists regarding the side-effects evidence and whether it led the hearing examiner to decide that the evidence overall did not support the fire chief’s findings and conclusions. Such was improper and was procured through an unlawful means as the medication issue was not submitted during the hearing as evidence. As a result, the “procured through unlawful means” ground entitled the city to reversal of the order granting the plea and a remand for further proceedings. However, the hearing examiner also determined that the department did not fully investigate the facts and allegations and did not give O’Neill an adequate opportunity to respond to the allegations. Such is within her discretion. Nothing in the Civil Service Act prohibits hearing examiners from reinstating a firefighter based on a finding that the department did not give due process during the disciplinary process. That ground was overruled by the court, even though it still remanded the case.*

Texas Tort Claims Act: City of Fort Worth v. Posey, No. 02-19-00351-CV, 2020 WL 241425 (Tex. App.—Fort Worth Jan. 16, 2020).  This is a premises liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (WRMC). Posey asserts she paid for entry to the coliseum. The city asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the city. After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the TTCA, the city owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee. The city filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the city appealed.

If Posey was a licensee, she must show that the city had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the city should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the city. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the city to rent the premises. However, the city asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the city that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the city’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.*

Competitive Bidding: Tarrant Cty. v. Lerner, No. 02-19-00330-CV, 2020 WL 98143 (Tex. App.—Fort Worth, Jan. 9, 2020) (mem. op.).  This is a declaratory judgment/immunity case where the Fort Worth Court of Appeals held the county retained immunity for declaratory claims alleging violations of the competitive bidding statute.

The county had a contract with Dispute Resolution Services of North Texas (DRS) to manage the county’s alternative dispute-resolution services and was valued at over $400,000 per year. When renewing the contract, Tarrant County did not seek competitive bids for the contract. A competitor, Lerner, sued asserting after the last renewal the contract was invalid due to the lack of bidding. The county filed a plea to the jurisdiction, which was denied.

The immunity waiver contained in the competitive bidding statute is specific and narrowly drawn: “Any property tax paying citizen of the county may enjoin performance under a contract made by a county in violation of [the Act].” Tex. Loc. Gov’t Code § 262.033. The court held the Legislature intended to waive immunity for injunctive-relief claims arising from violations of the statute. However, that does not waive immunity for attorney’s fees or any other form of relief. As a result, the court found the county retained immunity for Lerner’s declaratory judgment claims. The plea should have been granted.*

Age Discrimination: City of San Antonio v. Arciniega, No. 04-19-00467, 2020 WL 214759 (Tex. App.—San Antonio Jan. 15, 2020) (mem. op.). This is an appeal of the trial court’s order denying the City of San Antonio’s plea to the jurisdiction in a claim for age discrimination. 

After Arciniega’s employment with the city was terminated, he sued the city alleging age discrimination. The city filed a plea to the jurisdiction asserting that Arciniega’s lawsuit was barred because he failed to file his administrative complaint with the Texas Workforce Commission within the required 180 days after the date he was terminated.  The trial court conducted an evidentiary hearing, at which the city’s witness testified that she contacted Arciniega by telephone on August 2, 2013, and informed him that he was being terminated effective that day, and that written notice would be mailed to him.  Arciniega testified that he received a voicemail from the city stating that documentation was being forwarded to him and that he signed a “green card” acknowledging receipt of the notice of termination on August 10, 2013. Based on this hearing, the trial court denied the city’s plea. The city appealed. 

The court of appeals concluded that when a defendant asserts and supports with evidence that the trial court lacks subject matter jurisdiction, and the facts underlying the merits and subject matter jurisdiction are intertwined, a plaintiff is only required to show that there is a disputed material fact regarding the jurisdictional issue. Thus, the trial court was required to resolve the jurisdictional issue on the basis of facts that it found during the evidentiary hearing. Additionally, the court found that the trial court was not required to enter findings of facts and conclusions of law. Accordingly, the court affirmed the trial court’s ruling.

Court Fees: Ovalle v. State, No. 05-19-00136-CR, 2020 WL 364140 (Tex. App. – Dallas Jan. 22, 2020). This is a constitutional challenge to certain allocations of court fees imposed under Section 133.103 of the Local Government Code.

Ovalle challenged the allocation of the $25 fee imposed under Section 133.103 whereby 50 percent of the fee is sent to the comptroller for deposit in the general revenue fund and 40 percent is deposited in the general revenue account of the county or municipality. The State asserted that Ovalle had waived the issue by failing to object in trial court. The court of appeals found that the allocations were unconstitutional as violating the separation-of-powers provision of the Texas Constitution. Additionally, the court found that Ovalle did not have the opportunity to challenge the fee in trial court as the court costs was not imposed in court or itemized in the initial judgement, rather, the itemized bill of costs did not show the fee until one month after the judgement was signed.

Tort Claims Act: Zapata v. City of Gonzales, No. 13-18-00065-CV, 2020 WL 486489 (Tex. App.—Corpus Christi Jan. 30, 2020) (mem. op.). A city police officer was responding to an emergency when his patrol car collided with a vehicle in an intersection containing Alejandra Zapata, Yarely Zapata, Antonio Morales, Jr., and Miguel Morales. The officer, along with several bystanders, maintained that the officer had a green light when he entered the intersection and collided with the other vehicle. However, in their statements, Alejandra and Yarely Zapata both maintained that they had a green light. After being sued, the city filed a plea to the jurisdiction arguing that its immunity from suit was not waived by the Texas Tort Claims Act and the “emergency response exception” to the statutory waiver of immunity applied in this case. The trial court granted the city’s plea to the jurisdiction and dismissed appellants’ claims with prejudice.

On appeal, appellants argue that the trial court erred in granting the city’s plea because a genuine issue of material fact existed as to whether the dispatch call was considered an emergency call and whether the officer’s conduct was reckless. On the first question of whether the officer was responding to a minor car accident or an emergency, the court of appeals determined that the appellants did not raise a fact question as to whether the officer was responding to an emergency. The officer was dispatched to an accident at a highway intersection and it was unknown whether the occupants were injured. Further, the officer was authorized to run a “Code 3” with his emergency lights and sirens activated.

On the second issue, appellants argued that a genuine issue of material fact existed as to whether the officer’s conduct was reckless. More specifically, the appellants argue that the officer acted in a reckless manner by speeding through the intersection, failing to see the vehicle passing in front of him, and failing to slow down to an appropriate speed to avoid the accident. Viewing the evidence in the light most favorable to the appellants, the court of appeals noted that Alejandra and Yarely Zapata contended that they had the green light as they travelled through the intersection. This would mean that the officer drove through the intersection on a red light without slowing his vehicle or waiting for the cross traffic to yield. This evidence created a fact issue as to whether the officer’s conduct was reckless. For this reason, the court sustained the appellants’ issue, reversed the trial court’s order granting the city’s plea to the jurisdiction, and remanded the case for further proceedings.

Public Information: Roane v. Paxton, No. 14-18-00264-CV, 2020 WL 428861 (Tex. App.—Houston [14th Dist.] Jan. 28, 2020) (mem. op.). This is a Public Information Act (PIA) lawsuit where the Fourteenth Court of Appeals agreed with the attorney general that certain records must be released.

Roane served as superintendent of the Seguin Independent School District (District) who had a sexual harassment charge filed against him. After he had left the District, the District received several PIA requests which included information on the complaint. Roane was notified he could file a third-party objection, which he did asserting common law privacy to withhold the information. While the attorney general (AG) allowed the District to withhold other responsive information, it opined the complaint information was subject to release. Roane filed suit to prevent the release and filed a motion for summary judgment. The AG also filed a motion for summary judgment. The trial court granted the AG’s motion and denied Roane’s motion. Roane appealed.

The common-law right to privacy protects information from disclosure when “(1) the information contains highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person, and (2) the information is not of legitimate concern to the public.” However, the highly intimate or embarrassing facts must be “about a person’s private affairs.” The summary judgment record failed to demonstrate that the information involved matters relating to Roane’s “private affairs.” Matters of workplace harassment, discrimination, and policy violations in a governmental body, by their very nature, generally do not qualify. The court noted the complainant’s name and other individuals’ names have been redacted from the information ordered to be disclosed by the AG’s opinion.  As a result, all that remains are public matters. Therefore, the trial court ruled properly regarding the competing motions.*

*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