Recent Texas Cases of Interest to Cities

Note: Included cases are from January 11, 2023 through February 10, 2023.

Tim Cole Act: Brown v. City of Houston, No. 22-0256, 2023 WL 1486228 (Tex. Feb. 3, 2023) (mem. op.).  In this case of first impression, the Supreme Court answers a certified question from the Fifth Circuit Court of Appeals related to compensation for wrongful imprisonment under the Tim Cole Act (Act).

Brown, a former prisoner, brought a Section 1983 action against the city, county, police detective, and police officers seeking compensation for imprisonment for wrongful conviction for capital murder of a police officer during a robbery. While the action was pending, Brown received compensation under the Act through a state administrative process. The United States District Court for the Southern District of Texas granted summary judgment to the city as to the Section 1983 claim. Brown appealed. The Fifth Circuit Court of Appeals certified a question of state law to the Texas Supreme Court on whether the Act, which does not allow a person who receives compensation under the Act to “bring any action involving the same subject matter … against any governmental unit or an employee of the governmental unit” bars a person from maintaining a suit after receiving compensation under the Act.

The Supreme Court affirmatively certified the question, finding that the Act bars maintenance of a lawsuit involving the same subject matter against any governmental units or employees that was filed before the claimant received compensation under the Act.

Tort Claims Act: Christ v. Tex. Dep’t of Transp., No. 21-0728, 2023 WL 1871560 (Tex. Feb. 10, 2023).  This is a premise liability case in which the Supreme Court affirmed the Court of Appeals decision.

Motorists injured as result of head-on collision in construction zone brought action against Texas Department of Transportation and others (collectively Department), alleging premises liability based on condition of construction zone. The trial court denied the Department’s plea to the jurisdiction and no-evidence motion for summary judgment. The Department filed an interlocutory appeal. The appellate court reversed and dismissed for want of jurisdiction. The motorists’ petition for review was granted.

The Supreme Court held that use of painted stripes and buttons to separate opposing lanes of traffic when engineer-sealed traffic control plan called for concrete barriers did not create an unreasonably dangerous condition that would allow the motorists to invoke waiver of sovereign immunity under the Texas Tort Claims Act.

Enforcement of Deed Restrictions: Creative Chateau, LLC v. City of Houston, No. 01-21-00327-CV, 2023 WL 162741 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023.) (mem. op.). The City of Houston sued Creative Chateau after Creative Chateau operated a photography business out of a property in violation of the applicable deed restrictions. The trial court granted the city’s motion for summary judgment and granted a permanent injunction to prohibit Creative Chateau from operating the business out of the property, and Creative Chateau appealed.

The appellate court affirmed the trial court’s grant of the city’s motion for summary judgment, holding that: (1) because Creative Chateau’s evidence was filed with the court by a non-attorney, it was incompetent and could not be considered by the trial court; (2) where the deed restrictions expressly prohibited the operation of a business out of the property, operating the photography business was a substantial violation of the deed restrictions; and (3) a change in circumstances after the trial court’s initial order does not qualify as newly discovered evidence to support a motion for a new trial.

Inverse Condemnation: City of Houston v. Commons of Lake Houston, Ltd., No. 01-21-00369-CV, 2023 WL 162737 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023.) (mem. op.). The Commons sued the City of Houston for a regulatory taking when the city amended its floodplain ordinance, making the Commons’ development financially unfeasible. The trial court denied the city’s plea to the jurisdiction and the city appealed.

The appellate court reversed the order of the trial court and dismissed the Commons’ takings claim, holding that: (1) floodplain regulations that track the National Flood Insurance Program cannot constitute a taking; and (2) because reasonable minds could conclude that the amended ordinance’s elevation requirements were substantially related to the health, safety, or general welfare of the citizens and were reasonable, the regulation was a valid exercise of the city’s police power and did not constitute a taking.

Zoning Variance: Martinez v. Northern., No. 01-22-00435-CV, 2023 WL 162743 (Tex. App.—Houston [1st Dist.] Jan. 12, 2023.) (mem. op.). Martinez and two neighborhood associations sued various city officials and entities, including the City of Houston, the City of Houston Housing Authority, and the City of Houston Planning Commission to enjoin the development of certain affordable housing, alleging that the city granted zoning variances to the affordable housing development in violation of the city’s zoning ordinances. The trial court granted the city’s plea to the jurisdiction and Martinez appealed.

The appellate court affirmed the trial court’s judgment of dismissal, holding that the city and city officials were protected by governmental immunity because: (1) the waiver of immunity in the Uniform Declaratory Judgment Act did not apply because the claims did not challenge the validity of Houston’s zoning ordinance; and (2) the city officials had not acted ultra vires because the grant or denial of a variance was within their discretion. 

Tort Claims Act: City of Arlington v. Wesson-Pitts, No. 02-22-00326-CV, 2023 WL 415965 (Tex. App.—Fort Worth Jan. 26, 2023) (mem. op.). Stacy Wesson-Pitts and Benard Pitts were involved in a car accident with another vehicle near an intersection of two streets. They sued the city alleging that the city was liable for their damages stemming from the car accident because the city had failed to properly maintain a yield sign near the intersection a yield sign that had previously been located near the intersection but that was missing at the time of the accident. The city filed a plea to the jurisdiction, arguing that it was immune from the lawsuit. Following a hearing, the trial court denied the city’s plea to the jurisdiction.

The city appealed, arguing that the trial court erred by denying its plea to the jurisdiction because: (1) its discretionary decisions as to whether and when to install a yield sign do not waive governmental immunity; and (2) it had no obligation to maintain or replace the yield sign because it neither owned nor exercised control over the sign.

The Court of Appeals determined that there was a fact issue as to whether the city had exercised control over the yield sign and knew of the dangerous condition posed by the missing yield sign but did not correct it within a reasonable time after notice. Accordingly, the court affirmed the trial court’s ruling.

Jurisdiction: Mushtaler v. City of Austin, No. 03-22-00655-CV, 2023 WL 1112520 (Tex. App.—Austin Jan. 31, 2023) (mem. op.). Claiming that the city of Austin’s easements on their properties had “expired due to expiration, frustration of purpose, and abandonment,” Jennifer and Trent Mushtaler and Joshua Bezoni sued the city of Austin seeking declaratory relief. The trial court subsequently denied their summary judgment motion, and the Mushtalers and Bezoni appealed the decision to the court of appeals indicating that because the denial of their motion was dispositive to their remaining claims, the court of appeals had jurisdiction over the matter. The appellate court held that because the denial of a motion for summary judgment was an interlocutory ruling and did not dispose of their claims which remained pending in the trial court, it lacked jurisdiction and dismissed the appeal.

Tort Claims Act: The City of Austin v. Amy-Marie Howard, No. 03-22-00439-CV, 2023 WL 1869645 (Tex. App.—Austin Feb. 10, 2023). While attempting to restrain a suspect, Dylan Woodburn, Austin Police Department Officer Patrick Spradlin’s duty belt malfunctioned and came loose. During this time, the officer attempted to resecure his belt and the suspect escaped to a nearby restaurant and killed Johnathon Aguilar by stabbing him with a freshly sharpened knife a salesman left on the counter. Amy-Marie Howard sued the City of Austin, among others, under the Texas Wrongful Death Act and claimed the city’s governmental immunity was waived under the Texas Tort Claims Act (TTCA) because Aguilar’s death was proximately caused by the condition or use of tangible personal property, namely the duty belt. The city subsequently filed a plea to the jurisdiction, which the trial court denied. The appellate court, in reversing the trial court’s order, concluded that: (1) the use or condition of Officer Spradlin’s duty belt was too causally attenuated to Woodburn’s stabbing of Aguilar and could not be considered the proximate cause of his death; and (2) it was not reasonably foreseeable that the officer’s belt malfunctioning would cause Aguilar to suffer this type of harm.

Contracts: City of San Antonio v. DHL Express (USA), Inc., No. 04-22-00603-CV, 2023 WL 380341 (Tex. App.—San Antonio Jan. 25, 2023) (mem. op.). The city executed a lease agreement with DHL for use of the city’s airport that was to “only be used for aeronautical activities or those that directly support aeronautical activities.” The city notified DHL it was breaching the agreement because its flights landed in another city and then DHL shipped the items via truck to the city’s airport for sorting. DHL sued the city for declaratory judgment and the city filed a plea to the jurisdiction on the grounds of governmental immunity. The trial court denied the plea and the city appealed.

In overturning the trial court, the appellate court found that: (1) entering into the airport lease agreement was a governmental function; (2) the lease agreement was not one for goods and services to support a waiver under Chapter 271; and (3) the city’s immunity was not waived for a declaratory judgment action. The appellate court reversed the trial court’s order and rendered judgment for the city.

Employment: City of Fort Worth v. Birchett, No. 05-22-01170-CV, 2023 WL 1501596 (Tex. App.—Dallas Feb. 3, 2023) (mem. op.). William Birchett sued the city of Fort Worth under the Texas Whistleblower Act (Government Code Section 554.002) claiming he was wrongfully terminated after he reported cybersecurity violations the city failed to remedy to law enforcement agencies. In its first plea to the jurisdiction, the city argued, among other things, that Birchett did not sufficiently allege a causal connection between his reporting the violations and his termination. The court of appeals, in denying the city’s first plea, explained that Birchett was not required to present evidence that his supervisor, Kevin Gunn, knew of his reports when Gunn terminated him, instead the city was required to present evidence rebutting the presumption of causation under section 554.004(a). The city subsequently filed a second plea to the jurisdiction providing proof that Gunn had no knowledge of Birchett’s reports and that Birchett was instead terminated for other reasons. Concluding that the second plea to the jurisdiction amounted to a motion to reconsider because it also addressed the sufficiency of the evidence on causation which had already been determined in the first plea, the appellate court lacked jurisdiction and dismissed the second plea.

Inverse Condemnation: The City of Dallas v. Millwee-Jackson Joint Venture and Stephen M. Millwee, No. 05-20-00611-CV, 2023 WL 1813499 (Tex. App.—Dallas Feb. 8, 2023). Stephen M. Millwee sued the city of Dallas after it began development of an arena project, which included abandoning and demolishing a street (Alamo Street) in which Millwee had an easement and construction that resulted in blocking access to and occupying portions of his property. In his lawsuit, Millwee sought an injunction pursuant to Civil Practice and Remedies Code Section 65.015 for the city’s street closure, a declaratory judgment, and claims for inverse condemnation. Following a bench trial, the court denied Millwee’s inverse condemnation claim and combined his declaratory judgment claim with its final judgment granting relief on his section 65.015 claim. In its final judgment, the court ordered the city to either open the street at issue and maintain it as a public street or compensate Millwee through a condemnation suit for the taking of his property rights caused by the city’s abandonment of the street.

The city appealed, challenging: (1) the court’s subject matter jurisdiction to enter the permanent injunction, claiming Millwee lacked standing where evidence was insufficient to show a concrete injury; (2) the legal basis for the permanent injunction where Millwee failed to show evidence of a wrongful act by the city; and (3) the court’s granting of a partial summary judgment on the declaratory judgment claim under Local Government Code Section 245.0002(a), which concluded that the boundaries drawn in a 2001 FEMA 100-year floodplain applied to Millwee’s property.

Affirming the trial court’s judgment, the court of appeals first addressed the city’s subject matter jurisdiction concluding that because Millwee properly alleged that he owned land abutting Alamo Street, the city closed the street, and as a result, his property could no longer be developed, and he did not acquiesce or receive compensation from the city, Millwee had standing under Civil Practice and Remedies Code Section 65.015. Additionally, the court determined that the evidence at trial was sufficient to show Alamo Street remained closed and the city failed to offer Millwee compensation constituting a wrongful act, which supported the trial court’s decision in granting injunctive relief. Lastly, the court agreed that Millwee, by offering substantial evidence of an original 1983 application for a permit to develop the property commercially, was entitled to a summary judgment order declaring which floodplain map would govern the development of his property pursuant to Local Government Code Section 245.0006(a) and thereby determining which regulations would guide the measure of damages if any were to be awarded.

With regard to Millwee’s cross appeal challenging the trial court’s denial of his inverse condemnation claim, the court of appeals declined to address the substantive merits reasoning that Millwee had already been granted a superior recovery by the trial court in ordering the city to either reopen and maintain the street at issue or to initiate a condemnation suit to compensate him for the street closure.

Employment: City of Fort Worth v. Joel Fitzgerald, No. 05-22-00327-CV, 2023 WL 1813525 (Tex. App.—Dallas Feb. 8, 2023) (mem. op.). Joel Fitzgerald sued the city of Fort Worth for wrongful termination after he was fired from his position as Chief of Police. In his suit against the city, Fitzgerald claimed that his liberty interests were violated under Art. I, Section 19 of the Texas Constitution. Specifically, he argued that by characterizing his discharge as “general” instead of “honorable,” holding a press conference disparaging his name, and releasing his termination paperwork to the press, the city discharged him under “stigmatizing circumstances” and was required to provide him with a hearing to clear his name. In addition, Fitzgerald claimed that because he was not an “at-will” employee he had a right to continued employment, and his termination without a public hearing was an unconstitutional violation of his property interest rights under Art. I, Section 19 of the Texas Constitution and a violation of Local Government Code Section 143.013.

The city, in response, filed a plea to the jurisdiction arguing Fitzgerald did not establish a waiver of the city’s governmental immunity. After a hearing on the city’s plea, the trial court ruled in favor of Fitzgerald, and the city appealed.

In its decision, the court of appeals first addressed Fitzgerald’s liberty interest claim and determined that none of the statements in his termination paperwork or at the press conference were so stigmatizing (i.e., implicating his character for honesty or accusing him of criminal activity) as to create a “badge of infamy.” In addition, although the city filed Fitzgerald’s separation as a “general” discharge with the Texas Commission on Law Enforcement when it completed the required F-5 form, Fitzgerald’s record was later changed to “honorable” after a favorable hearing outcome with the State Office of Administrative Hearings. With regard to his property interest claim, the court determined no employment agreement existed and the evidence did not show that Fitzgerald was not an at-will employee. As a result, the court reversed the trial court’s order denying the city’s plea to the jurisdiction.

Employment Discrimination: El Paso Cnty. Water Improvement Dist. No. 1 v. Trevizo, No. 08-21-00206-CV, 2023 WL 1069706 (Tex. App.—El Paso Jan. 27, 2023). Rogelio Trevizo worked as an equipment operator for the El Paso County Water Improvement District No. 1 (District) for over a decade operating heavy equipment and performing a variety of manual labor. He developed a blood clot in his foot which led to numbness in his left leg, causing him to have to take time away from his job. Trevizo returned to light duty and then to full duty, and alleged that after returning to full duty, he was given more physically demanding work to do and older, broken equipment to do it with. He complained to his supervisors and to the EEOC, and after a number of incidents, his employment with the district was terminated. Trevizo filed a lawsuit against the District alleging discrimination based on age and disability, retaliation and creating a hostile work environment. The District filed a plea to the jurisdiction and a motion for summary judgment based on a lack of jurisdiction. The trial court denied the plea and the motion, and the District appealed that order. After consideration of the alleged facts, the appellate court held that Trevizo failed to properly state a case for age or disability discrimination, retaliation, and hostile work environment. The court dismissed most of the claims but remanded the case to the trial court to allow Trevizo to replead facts related to his age discrimination claims.

Jurisdiction: Jaramillo v. City of Odessa Animal Control, No. 11-23-00012-CV, 2023 WL 1826753 (Tex. App.—Eastland Feb. 9, 2023) (mem. op.). After animal control officials with the city of Odessa determined her dogs were dangerous, Allie Jaramillo filed a pro se notice of appeal with the court of appeals citing to Health and Safety Code § 822.0421 and claiming the court had jurisdiction to review interlocutory orders and judgments in violation of her due process rights. Dismissing the appeal for lack of jurisdiction, the court of appeals concluded that: (1) a municipal court judgment in this case would have to be appealed to the county courts at law of Ector County that have criminal appellate jurisdiction pursuant to Section 30.00771 of the Government Code; (2) no specific statutory authority permits the appellate court to hear interlocutory appeals from municipal court orders; and (3) the Health and Safety Code does not authorize a direct appeal to the court of appeals, but instead provides that a party may appeal the decision to a county court or county court at law in the county in which municipal court is located.

Reappointment of Municipal Judge: Bellamy v. City of Brownsville, No. 13-22-00087-CV, 2023 WL 413583 (Tex. App.—Corpus Christi–Edinburg Jan. 26, 2023.) (mem. op.). Bellamy sued the City of Brownsville for a temporary injunction requiring the city to reappoint him to his office as municipal judge after the city declined to reappoint him after the expiration of his term arguing that because more than ninety days had elapsed since the expiration of his term, he was reappointed as a matter of law. The trial court denied the temporary injunction and Bellamy appealed.

The appellate court affirmed, holding that Bellamy was not entitled to a temporary injunction because he had failed to show an irreparable injury because his claim amounted to a wrongful termination claim, for which damages would be available. 

Tort Claims Act: The City of Edinburg v. Maribel Reyna, No. 13-22-00420-CV, 2023 WL 1831125 (Tex. App.—Corpus Christi–Edinburg Feb. 9, 2023.) (mem. op.). Reyna sued the City of Edinburg for injuries she received after she tripped and fell on a city-owned sidewalk, claiming the city was negligent in maintaining the sidewalk. The trial court denied the city’s plea to the jurisdiction claiming governmental immunity and the city appealed.

The appellate court reversed the trial court’s denial of the city’s plea to the jurisdiction and dismissed the claim, holding that the TTCA did not waive the city’s immunity for the suit because: (1) Reyna had knowledge of the sidewalks defects; and (2) Reyna did not present evidence that the city had knowledge of the sidewalk’s defects.

Tort Claims Act: Pardo v. Iglesias, No. 14-22-00338-CV, 2023 WL 363024 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023). Rafael Iglesias sued two police officers for damages stemming from an altercation at a night club. At the time of the incident, the police officers were off duty, but they were still in uniform while working security for the night club. The officers moved to dismiss the claims against them pursuant to the Texas Tort Claims Act (TTCA), but the trial court denied their motion. They appealed. Under the election of remedies section of the TTCA, if a suit for damages is: (1) brought against an employee of a governmental entity, (2) based on conduct within the employee’s general scope of employment, and (3) the case could have been brought against the employer, then: (1) the suit is considered to be against the employee in their official capacity only, and (2) the employee must be dismissed from the suit. Police officers have a duty to stop crime whenever it occurs; therefore, intervening in a fight at a night club would fall within a police officer’s general scope of employment, even if the officer is off duty. Because the officers were employees of a city and were stopping a criminal act, they were immune from personal liability and should have been dismissed from the case. The appellate court reversed the trial court’s order and dismissed the cases against the two officers.