Recent Texas Cases of Interest to Cities

Note:  Included cases are from December 11, 2015 through January 10, 2016.

Workers Compensation:  Texas Dep’t of Ins. v. Green, No. 01-15-00321-CV, 2015 WL 9311430 (Tex. App.—Houston [1st Dist.] Dec. 22, 2015) (mem. op.).  The plaintiff sued the Texas Department of Insurance, Division of Workers Compensation (division) and the insurance company paying her workers compensation claim after the division terminated her benefits.  The division found that she had engaged in “injurious practices” and the insurance company stopped paying her claim. The plaintiff asked the trial court to review whether the “injurious practices” defense was still available to workers compensation payees.  The division argued that the trial court should have granted the department’s plea to the jurisdiction because the court lacked jurisdiction over the plaintiff’s declaratory judgment action.  The court of appeals held that the division is protected by sovereign immunity from the plaintiff’s claim because the claim relates to the interpretation of a statute (which is more like an ultra vires claim that can only be against an official), it does not ask that the whole workers compensation statute be declared void.  See City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009).

Public Information:  Harris Cty. Appraisal Dist. v. Integrity Title Co., L.L.C., No. 01-15-00145-CV, 2015 WL 8945574 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015).  The title company sued the appraisal district after the district refused to release certain property information that the district had received from a third party vendor.  After the company requested the information from the district, the district asked the office of attorney general (AG) for a ruling that the information was excepted from disclosure.  The AG issued an open records ruling that the information was excepted from disclosure and the district used that as the basis to refuse to release the information.  The title company sued the district and won at the trial level. The district appealed, arguing that the trial court did not have jurisdiction because the district had only refused to release information that the AG had already ruled to be excepted from disclosure.  The court of appeals held that the court does have jurisdiction to review whether information is public information—even if the AG has already ruled that it is not public.  Under Kallinen v. City of Houston, 462 S.W.3d 25 (Tex. 2015), the Supreme Court of Texas ruled that a court has jurisdiction to consider whether information is public regardless of whether the AG has ruled.  The court of appeals also held that the information was public information under Chapter 552 of the Government Code because the information was generated by a public entity, the county clerk, and that the information had just been manipulated by a private entity.  The court of appeals also held that the AG’s open record decision in this case did not have persuasive value because the district did not give all the pertinent facts to the AG.

Takings:  City of Carrollton v. Hamrla, No. 02–15–00119–CV, 2016 WL 93031 (Tex. App.—Fort Worth Jan. 7, 2016) (mem. op.).  This case is about whether the city is liable for a takings based on flooding damage caused by the city’s non-repair of a retaining wall.  The plaintiffs sued the city for either takings or negligence regarding the flood damage.  The city filed a plea to the jurisdiction based on its governmental immunity and the trial court denied it.  The city appealed, arguing that it retained governmental immunity on both the takings and the Tort Claims Act negligence claims.  The court of appeals agreed with the city and held that city retained immunity for both claims.  For the takings claim, the court held that the plaintiff had failed to prove that the city knew or should have known that its actions would cause flood damage.  The court also dismissed the plaintiff’s tort claim because the plaintiff’s claim did not prove a nexus between the use of motor-driven equipment and the damage, which is required to waive immunity under the Texas Tort Claims Act.

Employment: City of Dallas v. Giles, No. 05-15-00370-CV, 2016 WL 25744 (Tex. App.―Dallas Jan. 4, 2016) (mem. op.).  This is one of several employment disputes filed by Officer Giles. The Fifth Court of Appeals reversed the denial of the city’s plea to the jurisdiction and rendered judgment for the city. Giles is a police officer for the City of Dallas Police Department. Giles filed a separate lawsuit in federal court against the city for employment discrimination. That case has since been dismissed; however, afterwards, the police department’s internal affairs division received a complaint against Giles from a citizen and started an investigation. Giles, while working off duty, allegedly confronted the citizen and pushed him against a car while making inappropriate comments. Giles denies the incident. After an investigation, the complaint was listed as “not sustained.”  Giles was later reassigned from the communications division to the patrol division as a result of a problem in the dispatch center. Several managers in the communications division were reassigned as a result of the dispatch incident. Giles’s rank, pay, days off, and working hours did not change.  In this lawsuit, Giles alleges both of these actions were taken to retaliate against him for filing his federal court lawsuit.  The city filed a plea to the jurisdiction which was denied. The city appealed. After analyzing the standards and facts alleged, the court of appeals held Giles failed to properly establish that he suffered a materially adverse personnel action. Citing Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256 (Tex. App.—Dallas 2009, pet. denied), the panel noted that conducting an investigation which ultimately lead to no disciplinary action was not a materially adverse action. The complaint was of the “type [of] minor annoyances that are not protected by the TCHRA.” And was not the “type of significant harm that needs to be redressed in court.”  Giles also failed to establish working in patrol was an objectively “less desirable” position than communications. “Giles’s subjective preference to remain in Communications is insufficient to make the transfer materially adverse.” Further, nearly every manager in the communications division was reassigned, which demonstrates it was not retaliatory. The plea should have been granted by the trial court. The panel reversed and rendered.*

Whistleblower Act: Loer v. City of Nixon, No. 13-14-00582-CV, 2015 WL 9257031 (Tex. App.—Corpus Christi Dec. 17, 2015) (mem. op.). During a two year period of employment with the City of Nixon Police Department, Jimmy Loer reported several violations of law regarding the police chief to the police chief himself and to city councilmembers. Loer was ultimately terminated, and he filed suit under the Whistleblower Act asserting that he was terminated for reporting violations of the law. The city asserted that Loer failed to bring a proper whistleblower suit because he did not report violations to the appropriate law enforcement authority. The trial court granted the city’s plea to the jurisdiction and Loer appealed.

On appeal, Loer argued that the court erred in granting the city’s plea to the jurisdiction because he established the elements of a whistleblower claim. More specifically, the primary issue before the court of appeals was whether it was appropriate to report a police chief’s violations of law to the police chief under the Whistleblower Act. Relying on a handful of decisions from other appellate courts, the court concluded that an experienced peace officer could not reasonably believe that the wrongdoer receiving such a report would investigate or prosecute his own violations of the law. Consequently, Loer failed to establish that his report was made in good faith to the appropriate law enforcement authority, and the trial court did not err in granting the city’s plea to the jurisdiction.

Manufactured Housing: City of Anahuac v. Morris, No. 14-15-00283-CV, 2015 WL 9249830 (Tex. App.—Houston [14th Dist] Dec. 17, 2015).  The City of Anahuac adopted an ordinance that regulates the placement of mobile homes and manufactured homes. Among other things, the ordinance prohibited a manufactured home that did not meet Wind Zone III specifications from being located in the city limits, and required the owner of a manufactured home complying with Wind Zone III specifications to receive a permit from the city to locate in the city limits. In 2013, Wayne Morris placed a manufactured home on his property without a permit. The city informed Morris that he had violated the city’s ordinance, and did not issue a permit due to unspecified deficiencies that Morris was unable to cure.

Morris filed suit seeking a declaration that the ordinance was preempted by state statute. The court rendered a declaratory judgment in favor of Morris that stated the following: “It is therefore ordered and declared that the language ‘Zone 3 or better specifications’ of [the ordinance] is invalid, illegal, and unconstitutional.” The city appealed.

On appeal, the city argued that the trial court erred because there was no justiciable controversy since nothing in the record established either the standard under which Morris’ manufactured home was constructed or the age of the home. The court disagreed, concluding that the city’s enforcement of the ordinance created a justiciable controversy and Morris’ suit sought to resolve the controversy.

In addition, the city argued that the trial court erred by granting Morris’ declaratory judgment because the ordinance is valid and not preempted by state statute. Morris’ preemption argument relied on Texas Occupations Code Section 1201.256(c), which provides: “A manufactured home constructed before September 1, 1997, may be installed in a Wind Zone I or II county without restriction.” The city is located in Chambers County, which is considered to be a Wind Zone II county under Occupations Code Section 1201.256(a). Because the manufactured home in question was constructed in 1996 and Chambers County is a Wind Zone II county, the court held that there is a direct conflict between the city’s ordinance and Section 1201.256. Further, the court stated that the city’s use of its police powers cannot supplant or take supremacy over a contrary act of the state legislature. The court concluded that Morris carried his burden of showing that the city’s ordinance is preempted as to his manufactured home.

Nevertheless, the court also held that the trial court’s declaratory judgment was overbroad. The court modified the trial court’s judgment to state that the city’s ordinance is preempted and unenforceable as to a manufactured home constructed before September 1, 1997.

*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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