Recent Texas Cases of Interest to Cities

Note: Included cases are from December 11, 2017 through January 10, 2018.

SORRO: City of Krum v. Rice, No. 17-0081, 2017 WL 6390973 (Tex. Dec. 15, 2017). In 2014, Rice pled guilty to sexual assault of a fourteen-year-old. Rice agreed to deferred adjudication, the terms of which barred him from going “within 1,000 feet of a premise where children commonly gather, including a . . . playground” until 2024.

Rice also had to register as a sex offender. At the time, the City of Krum had in place a sex offender residency restriction ordinance (SORRO) prohibiting registered sex offenders who had committed violations involving minors under the age of sixteen from residing “within 2,000 feet of any premises where children commonly gather.”

Rice challenged the city’s ordinance, alleging that general law cities had no statutory authority to enact a SORRO. The city filed a plea to the jurisdiction, arguing that Rice lacked standing to sue. The trial court denied the city’s plea, and the city filed an interlocutory appeal.

At the Second Court of Appeals, the city continued to argue Rice’s lack of standing, stating that his claimed injury was not traceable to the city or the SORRO because the terms of his community supervision already prevented him from living at his parents’ house. The city also argued the trial court lacked jurisdiction to hear Rice’s civil challenge to the SORRO, which the city contended was a penal ordinance. The divided court of appeals affirmed the trial court’s order denying the city’s plea to the jurisdiction and held that Rice had standing because the restriction in the SORRO was broader than that of Rice’s community supervision. Also, the court of appeals, concluded that Rice’s alleged general desire to live somewhere in the city that violated the SORRO was enough to establish an injury, and the SORRO is interpreted as a civil or regulatory ordinance in its intent and effect, despite its penal language.

The city filed a petition for review in the Texas Supreme Court reiterating its jurisdictional arguments. However, while the lawsuit was pending, the Texas Legislature passed House Bill 1111 (codified at Local Government Code § 341.906), which expressly authorizes general-law cities to prohibit registered sex offenders from going near “child safety zones”; caps the distance of any SORRO at 1,000 feet; and requires an exemption for persons who established residence within a restricted zone before the effective date of the relevant ordinance. The bill’s effective date was September 1, 2017. After the bill’s effective date, the city passed an amended SORRO. The amended ordinance prohibits registered sex offenders from living within 1,000 feet of a “child safety zone.”

The Texas Supreme Court held that Rice’s challenge to the SORRO is moot in light of H.B. 1111 because the bill clearly empowers general law cities to enact ordinances that limit the movements of sex offenders, like the city’s amended SORRO. Also, the court stated the alleged basis for Rice’s interest no longer existed and is moot since any ruling by the court about the SORRO’s validity would have no effect on Rice’s right because the community-supervision restriction would still be in place. The court granted the city’s petition for review, vacated the judgments of the court of appeals and the trial court, and dismissed the case for lack of jurisdiction. 

Workers’ Compensation: State Office of Risk Mgmt. v. Martinez, No. 16-0337, 2017 WL 6391426 (Tex. Dec. 15, 2017). In 2001, Martinez, a caseworker for Texas Department of Family and Protective Services (DFPS), was working from home on a Saturday at her kitchen table in preparation for the next week’s hearings when she got up, slipped in her kitchen and fell. She broke her shoulder and hit her head in the fall.  Martinez filed for workers’ compensation with the State Office of Risk Management (SORM).  SORM denied her claim on the grounds that she was not injured in the course and scope of her employment, was not engaged in the furtherance of her employer’s business at the time of the injury, and did not establish a causal connection between her injuries and her employment.

Martinez requested a benefit review conference to dispute the coverage denial. The Texas Workers’ Compensation Commission (TWCC) conducted the conference. SORM argued that Martinez’s injuries were not compensable because she did not obtain permission to work at home, which is a violation DFPS overtime policy.  The benefit review officer’s report listed two “disputed issue[s]” that remained unresolved when the conference concluded: “Did [Martinez] sustain a compensable injury on June 9, 2001?” and “Did [Martinez] sustain disability as the result of the June 9, 2001, claimed injury, and if so, for what period(s)?”  The case proceeded to a contested case hearing.  SORM reasserted it original argument, but the hearing officer was not persuaded and ruled Martinez was “furthering the business and affairs” of DFPS when she fell, but concluded that her injury “did not arise out of nor [occur] in the course and scope of her employment” and she did not sustain a compensable injury. Martinez appealed to the TWCC’s Appeals Panel which reversed the hearing officer’s decision and rendered a decision that Martinez did sustain a compensable injury and supported the finding of the hearing officer that she had authority to work from home in spite of DFPS’s overtime policy.

SORM appealed to district court arguing the appeal panel’s decision was “contrary to the law and facts.” Both parties filed for summary judgment. SORM did not argue the grounds it did in the administrative phases (violations of DFPS overtime policy). Instead, SORM argued that Martinez violated a statute by working from home. The trial court denied Martinez’s motions for summary judgment and granted SORM’s motion. Also, Martinez appealed the trial court’s ruling that she did not suffer a compensable injury to the court of appeals. However, the court of appeals held that the Labor Code barred the trial court from exercising jurisdiction over SORM’s motion because the Labor Code limited the trial court’s review of the appeal panel’s decision to “issues decided by the appeals panel and on which the judicial review is sought” which did not include SORM’s violation of statute argument.

Martinez also appealed the trial court’s denial of her summary judgment motion stating the SORM waived judicial review of the compensability of her injuries by failing to bring before the appeals panel all of the factual findings that the hearing officer made during the contested case hearing.  The court of appeals did not agree stating that using the hearing officer’s finding to argue the hearing officer determined that Martinez sustained a compensable injury is contrary to the hearing officer’s finding that her injury did not rise in course and scope of her employment and did not sustain a compensable injury.  The court of appeals reversed the grant of SORM’s summary judgment, affirmed the denial of Martinez’s summary judgment, and remand to trial court. Both parties filed petitions for review with the Texas Supreme Court.

The Texas Supreme Court had to consider what the meaning of “issue” was in Title 5 of the Labor Code in order to review this case. The court did a review of the Labor Code by reviewing the different sections that used the word “issue” and those sections that did not use the word “issue,” but where it could be implied.  Specifically, the court reviewed Section 410.301(a) which does not use the word “issue” but discusses ”a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits.” The court determined that since there is no explicit definition, it had to assume the legislature intended the phrase “a final decision of the appeals panel regarding compensability or eligibility” to “describe” the “issues” on which the trial court may render a judgment.

Going through the administrative process and discussing how the parties defined “issue,” the court determined that the parties were disputing the same two issues throughout the administrative process: “Did [Martinez] sustain a compensable injury…?” and “Did [Martinez] sustain a disability…?”.  The different grounds that SORM argued were arguments, not issues, and SORM was free to raise them at any time. The court remanded the case back to the court of appeals for that court to consider the merits of Martinez’s statutory argument and or further proceeding consistent with this opinion.

As for Martinez’s cross-petition’s first issue concerning the hearing officer’s finding, the court agreed with the intermediate court of appeals that Martinez is not free to pick and choose among the hearing officer’s finding of facts and have the court draw a conclusion contrary to the report’s finding of facts. Then, the court looked at Martinez’s cross-petition’s second issue concerning SORM not challenging the hearing officer’s finding that established compensability and, therefore, SORM cannot seek judicial review on that aspect.  The court stated that the Labor Code makes it clear that a hearing officer’s incorrect finding of facts are “errors,” not issues and that a party does not need to appeal every finding related to an issue in order to preserve the issue for judicial review. Since the trial court does a de novo trial on the issues decided by the appeals panel, the trial court is not required to defer to the hearing officer’s factual findings.  Thus, a party’s failure to challenge a factual finding does not preclude a trial court from reviewing the issue that the findings purportedly supported. In conclusion, the court affirmed the intermediate court of appeals’ decision to uphold the trial court’s denial of Martinez’s motion for summary judgment. 

Tort Claims Act: University of Tex. Health Sci. Ctr. v. Rios, No. 16-0836, 2017 WL 6396028 (Tex. Dec. 15, 2017). This is a Texas Tort Claims Act (TTCA) case involving Section 101.106(e) where the plaintiff sued both the entity and employees. The Texas Supreme Court held the employee’s right to “immediate dismissal” is triggered upon the filing of the motion to dismiss, regardless of subsequent pleading amendments.

Dr. Rios was a first-year resident whose relationship with the faculty physicians became strained. Rios sued the university along with faculty physicians Drs. Fuentes, Patel, Smalling, and four others (the “doctors”). The attorney general answered for the defendants and moved to dismiss the doctors under Section 101.106(e). Before the court ruled, Rios amended his petition and dropped his tort claims against the university, leaving only the doctors. He kept his claims against the university for breach of contract. The trial court dismissed the contract claims but denied the motion as to the doctors. The university (since it filed the motion) appealed on behalf of the doctors. The court of appeals affirmed and the university sought a petition with the Texas Supreme Court.

The Texas Supreme Court first held an entity’s immunity is not waived for the acts of an independent contractor under the TTCA.  Rios alleged as fact that the university acted “through” the doctors in tortuously interfering with his employment relationships. To establish a waiver, such actions must be done by an “employee” else there is no waiver. Assuming Rios intended to plead a viable claim, his allegation was a judicial admission.  Further, the factual allegations in the pleadings are those of employees, not contractors. The subjective intent of the individual acting is not relevant to the determination of whether they are employees; the connection between their job duties and allegedly tortious conduct is what controls and it is an objective analysis. As a result, Rios sued the doctors as “employees” of the university, so Section 101.106(e) is applicable. Section 101.106 requires a plaintiff to decide on a theory of tort liability before suit is even filed. A plaintiff must decide at the outset who to sue. The decision is “an irrevocable election at the time suit is filed.”  The court recognized that under Texas Civil Rule of Procedure 65, an “amended” pleading replaces the original as if it did not exist.  However, it is the filing of the motion to dismiss, not its specific content, which triggers the right to dismissal and Rule 65 does not nullify that. Additionally, when a rule of procedure (i.e. Rule 65) conflicts with a statute (Section 101.106), the statute controls. As a result, the doctors were entitled to be dismissed at the moment the university filed its motion.*

Condemnation: Pizza Hut of Am., L.L.C. v. Houston Cmty. Coll. Sys., No. 01-17-00101-CV, 2017 WL 6459550 (Tex. App.—Houston [1st Dist.] Dec. 19, 2017) (mem. op.). This is a condemnation suit where the central issue is a tenant’s standing in a condemnation suit and claim for a pro rata share of the award. The First Court of Appeals held the tenant had no standing.

Pizza Hut was a tenant of the Woodridge Plaza Shopping Center when the Houston Community College System (HCCS) condemned the property. As part of the condemnation proceedings, a condemnation award of $427,100 was designated to be paid to all of Woodridge Plaza’s tenants, and Pizza Hut sought $7,100 as its pro rata share. The trial court concluded, based on language in Pizza Hut’s lease, it had no standing and was not entitled to any of the award. Pizza Hut appealed.

The Pizza Hut lease with the prior owners had a condemnation clause noting “[t]he Condemnation Award shall belong to the Landlord, however, Tenant shall be entitled to the Unamortized Cost of Tenant Improvements, plus Tenant’s relocation expenses as determined by the condemning entity or court of law.” After condemnation, Pizza Hut continued operating its business at the Woodridge Plaza location—using its established equipment and improvements—at a profit and without interruption of physical impairment by the condemnation. In April 2016, while the condemnation proceedings were still pending, Pizza Hut sold all ninety of its Houston locations, including the Woodridge Plaza location. The sale price included improvements to the Woodridge Plaza location but not the leasehold interest. A lessee generally has standing in condemnation proceedings and is entitled to share in a condemnation award when part of its leasehold interest is lost by condemnation. However, a tenant may waive this right in the lease or elsewhere. By the definition in the lease, Pizza Hutt suffered no impairment. The court rejected Pizza Hutt’s argument that the uncertainty created by the condemnation constituted an impairment. It operated with no change in profit and did not establish the “uncertainty” had any impact on its operation. As a result, it lacked standing to sustain a claim against HCCS.*

Tort Claims Act: The City of The Colony v. Rygh, No. 02-17-00080-CV, 2017 WL 6377435 (Tex. App.—Fort Worth Dec. 14, 2017) (mem. op.). This is a Texas Tort Claims Act (TTCA), negligent operation of motor-driven equipment case where the Fort Worth Court of Appeals reversed the denial of the city’s plea to the jurisdiction and dismissed the plaintiff’s claims.

The Rygh’s home was flooded when raw sewage backed up into their home. Prior that morning, Rygh’s neighbor, Harper, advised the city a pipe outside his home was expelling sewage into this yard. City repair crews arrived and determined a blockage was causing the backup witnessed by Harper. The city used a “vac” truck to clear the line. The truck is powered by the engine of the truck and uses a nozzle to break the blockage. The truck uses pressurized water which is propelled downstream out of the back of the nozzle[,] which propels [the nozzle] upstream toward the blockage. When used, the nozzle broke the blockage causing the sewage to immediately begin flowing downstream away from the residences. The Ryghs later sued the city, alleging that its employees’ negligent use of the truck to break through the blockage in the sewer main had caused the sewage to back up into their residence. The trial court denied the city’s plea to the jurisdiction and the city appealed.

The Texas Supreme Court has repeatedly clarified that the phrase “arises from” requires a nexus between the operation or use of the motor-driven vehicle and the plaintiff’s personal injuries and property damage.  As the uncontroverted evidence established, no water was sent upstream toward the residences. Employees were monitoring the sewage levels upstream and noted no sewage reversed course when the nozzle was deployed.  Only a physical object was thrust upward into the line 20 or so feet to break the blockage. The nexus requires more than mere involvement of property; the vehicle’s operation or use must have actually caused the injury. Further, the timing in the different affidavits does not conflict as the Ryghs’ affidavit asserted their home flooded at approximately 7:45 a.m. and the city’s crew did not arrive at the location until after 8:00 a.m.  The jurisdictional evidence conclusively establishes that the property damage sustained by the Ryghs did not arise from the city’s use of the truck. Finally, no waiver of immunity exists for the claims the city failed to notify the Ryghs of work on the sewer line. The plea should have been granted.*

Tort Claims Act: Clegg v. City of Fort Worth, No. 02-17-00040-CV, 2017 WL 6377433 (Tex. App.—Fort Worth Dec. 14, 2017) (mem. op.). This is a Texas Tort Claims Act (TTCA) vehicle accident case where the Fort Worth Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.

Madrigal’s car collided with Howell’s car when Madrigal ran a red light. Clegg was a passenger in Madrigal’s car who suffered injuries. Fort Worth Police Officer Olimpo Hernandez witnessed the accident. He wrote a crash report stating he observed multiple containers of beer inside Madrigal’s car, Madrigal smelled of alcohol, had a blood-alcohol level of .10, and was arrested. Clegg filed suit against the city and Hernandez asserting they failed to regulate traffic through the use of his patrol vehicle. In a separate suit, Clegg sued Madrigal. Hernandez was dismissed pursuant to Section 101.106(e). The city then filed a plea to the jurisdiction asserting the police department was not a jural entity and Clegg’s injuries were not caused by the operation of Hernandez’ vehicle. The trial court granted the city’s plea and issued findings of fact and conclusions of law. Clegg appealed.

Characterizing Clegg’s briefing as a “garbled morass,” the court held it was not required to guess at what causes of action he was trying to advance but would attempt to decipher them based on the pleadings. However, under Section 101.055, the TTCA unequivocally does not apply to a claim arising “from the failure to provide or the method of providing police or fire protection.” Such is the heart of what Clegg is alleging. Further, no negligent act of Hernandez caused the accident.  “[T]he (vehicle)’s use must have actually caused the injury.” That is not the case here. Therefore, no waiver of immunity exists.  Moreover, the Texas Supreme Court “has never held that non-use of property can support a claim under the [TTCA].”  The plea was properly granted.*

Governmental Immunity/Declaratory Judgment: Luttrell v. El Paso Cty., No. 08-16-00090-CV, 2017 WL 6506402 (Tex. App.—El Paso Dec. 20, 2017). There is no way to categorize this case in a single sentence. In the thirty-nine page opinion, the El Paso Court of Appeals addressed a challenge to El Paso County’s use of a special assignment judge who would issue and handle all contempt proceedings when a juror would fail to appear for duty. Long opinion means long summary—sorry.  The court held the county retained immunity based on the pleadings but the plaintiff should be afforded the opportunity to amend. The case was remanded.  For government attorneys or those suing governments, this opinion provides a good basis and starting point for various immunity issues and Uniform Declaratory Judgment Act (UDJA) claims.

Appellants filed a lawsuit on behalf of themselves and others, naming Judge Woodard and El Paso County, requesting a declaration that their contempt judgments were void for lack of jurisdiction and that Judge Woodard imposed court costs and fees in an “illegal” manner.  Apparently, when a juror failed to respond to a jury summons in a particular court in El Paso County, that court would either “refer” or “transfer” the matter to Judge Woodard for the purpose of allowing him to conduct contempt proceedings against the recalcitrant juror.  The collective jurors sought to have their court costs and fees removed and the process stopped.  The case has many implications and court performed various analyses of statutes discussing the power of the courts and the counties. By the time the case hit the court of appeals, Judge Woodard had been dismissed under judicial immunity and the only issue was the immunity of the county. The county filed a plea to the jurisdiction, which the trial court granted. The collective jurors appealed.

The court began with a history of governmental immunity and transitioned into immunity in declaratory judgment proceedings. The court cited various cases, noting the UDJA only waives immunity if the validity of a statute (or ordinance) is in play. The appellants failed to identify a statute being challenged. Their pleadings “reveal that the true nature of their claims center on their belief that the actions of Judge Woodard and/or the County violated existing law, i.e., that they were held in contempt in violation of their due process rights, and that they were accessed illegal court costs and fees….”  Such claims cannot be brought under the UDJA. Additionally, the UDJA may not typically be used to collaterally attack, modify, or interpret a prior court judgment. The contempt proceedings were declared to be criminal in nature, not civil. Civil courts may only exercise “equity jurisdiction” in cases involving criminal proceedings in a “narrow” set of circumstances, which are not present here. The UDJA is the wrong vehicle for making a challenge to the validity of a criminal contempt judgment.   There is a line of cases stating the UDJA can be used to collaterally attack void judgments. The proper method to collaterally attack a criminal contempt judgment as being void is through either a petition for a writ of habeas corpus when the contemnor has been subjected to jail time, or a petition for a writ of mandamus when, as here, the contemnor is subjected only to a fine. Such are exclusive mechanisms.

Appellants also sought the recovery of the fines, fees, and costs, which they believe Judge Woodard wrongfully imposed.  However, appellants’ request for a “refund” cannot be brought in a UDJA proceeding in the absence of legislative permission. When fees are paid in the context of a judicial proceeding, the aggrieved party may challenge the imposition of those fees (illegal or otherwise) in the context of those proceedings, thus satisfying the requirements of due process.  When a party pays an illegal tax or fee “under duress” in an administrative matter they may challenge it, but these were judicial proceedings. In a judicial proceeding, once a defendant pays the fee, it is voluntarily given. To avoid paying the fee, the defendant must challenge it in the proceedings or utilize another system established for the challenge.  Appellants had other means of challenging the validity of the costs and fees imposed on them. They could have challenged it in the proceedings, filed a mandamus, or brought claims under article 103.008 of the Texas Code of Criminal Procedure, which provides a separate statutory remedy to correct erroneous or unsupportable court costs.  They failed to do so.  As to appellants attempted ultra vires claim, they only named the county. Such claims must be brought against an official. Additionally, claims of judicial court action versus county administrative action, falls outside the scope of any takings claims under the Texas Constitution. As to the appellants Section 1983 claims, a judge has judicial immunity from a lawsuit brought under Section 1983 and, therefore, cannot be named as the “person” who violated the plaintiff’s constitutional rights, when the lawsuit is based on the judge’s judicial actions.  A county may only be held liable in a Section 1983 case if the plaintiffs are able to demonstrate that the county had an “official policy or custom” that caused them to be subjected to a denial of a constitutional right.  Appellants have not alleged in their current pleadings that the county had any policy or custom that deprived them of their federal constitutional rights and only allege Judge Woodard acted without authority. There is nothing in the pleadings or the record to suggest that Judge Woodard was executing any county policies and, to the contrary, everything points to him acting in his judicial capacity (for which he is immune from suit).  Finally, the court noted that while the panel “expresses no opinion” as to whether the appellants can successfully amend, they recognized they should be given the opportunity. The court ends by stating “[w]e do caution Appellants, however, that any amendment to their pleadings must focus on the liability of the County as the only remaining party in the proceeding, with the recognition that Judge Woodard is no longer a party to the proceedings, and expressly explain what actions the County took that would render them liable to Appellants.”  The case was then remanded.*

Governmental Immunity: City of Beaumont v. Interflow Factors Corp., No. 09-17-00284-CV, 2017 WL 6521345 (Tex. App.—Beaumont Dec. 21, 2017) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a contract dispute claim.  The Beaumont Court of Appeals affirmed the denial.

Interflow Factors Corporation (Interflow) sued the city and a contractor named Barnett alleging the city waived immunity by contracting with Barnett to perform landscaping services. Barnett hired Interflow to deal with her invoices and assigned the right to the collected payments on the present and future accounts. The city was provided notice of the assignment. The city allegedly began submitting payments to Interflow for the work performed by Barnett. However, Interflow alleged that, at Barnett’s request, the city directly paid Barnett for four invoices that totaled $11,847.00. According to Interflow,  because the city had received notice of the assignment, the city’s payments to Barnett did not discharge the city’s liability to Interflow pursuant to the invoices. The city filed a plea to the jurisdiction, which the trial court denied. The city appealed.

The first issue addressed by the court was that the city did not have a contract with Interflow, only Barnett. Therefore, the waiver of immunity under Texas Local Government Code Section 271.152 came into question as it relates to assignments. The court performed a mild analysis of the language, and citing to First-Citizens Bank & Trust Co., 318 S.W.3d 560 (Tex. App.—Austin 2010, no pet.), held the statute does not limit who can collect under the contract. An assignee steps into the shoes of the assignor. Therefore, as long as the contractor would have a right to seek payment, so does the assignee. The court held immunity was therefore waived. [Comment: the court analyzed the issue of Barnett no longer having the right to seek payment since she was already paid, as that was, apparently, considered a merits-based argument which was not necessary to analyze for jurisdictional purposes.]*

Criminal Trespass: Hudson v. State, No. 09-17-00092-CR, 2017 WL 6559183 (Tex. App.—Beaumont Dec. 20, 2017) (mem. op.) (not designated for publication). This is a case where the Beaumont Court of Appeals affirms the trial court’s conviction of criminal trespass.

On September 7, 2016, after consulting with and receiving permission from the city manager, the city librarian requested a trespass warning against Hudson for making a disturbance at the library. Hudson was issued a verbal trespass warning by Detective Steele. On September 13, 2016, the librarian reported that Hudson had returned to the library in violation of the trespass warning. Officer Medina arrested Hudson for criminal trespass.

Hudson complains that: (1) he was deprived of due process because the city library’s trespass policy was unconstitutionally vague and violates due process; (2) the criminal trespass statute is unconstitutional on its face and as applied because it violated his First and Fourteenth Amendment rights; and (3) the evidence is insufficient to sustain his conviction.

In regard to the due process claim, Hudson had the burden to establish that there was no procedure in place to challenge the decision to ban him from the library. In the absence of any evidence regarding the city’s process to challenge a decision by the city manager, issue one is overruled. As to his second issue, the court determines the forum analysis applicable to the library, concluding that it is “public property which is not by tradition or designation a forum for public communication.” In addition to time, place and manner regulations, the state may reserve the forum for its intended purposes so long as the regulation on speech is reasonable and not an effort to suppress expression merely because of the speaker’s views. In reaching its conclusion about the forum analysis applicable to the library, the court notes that just because Hudson used the internet in the library this did not create a designated public forum. Hudson concedes that he wasn’t visiting the library for expressive purposes, but argues his First Amendments rights were violated because he was banned. The jury heard testimony that Hudson was banned because he created a disturbance not because of his speech. The court overrules the second issue, stating that the constitution does not forbid a state to control the use of its property for its own lawful nondiscriminatory purpose. Moreover, one element of criminal trespass is proving that the entity in possession of the property warned the defendant that he could not return to the property so the defendant doesn’t have to speculate about what aspect of his conduct the statute proscribes. The record does not support the argument that the criminal trespass statute is unconstitutional as applied. As to the third issue, the court concludes that, based on the evidence presented, a rational juror could have found the essential elements of the offense of criminal trespass beyond a reasonable doubt.

Disannexation: Hall v. City of Bryan, No. 10-16-00044-CV, 2018 WL 327142 (Tex. App.—Waco Jan. 3, 2018) (mem. op.). This is a disannexation lawsuit where the Waco Court of Appeals affirmed the trial court’s summary judgment motion dismissing the plaintiff’s claims for disannexation.

This is the third lawsuit (fourth appeal) brought by Hall in order to disannex property which was annexed by the city back in 1999. The procedural history entails various trips to the Waco Court of Appeals. In 1999, the city annexed a strip of land leading up to the city’s airport, one section belonging to Hall. Hall initially sued for disannexation in 2004 asserting the city failed to follow the annexation service plan. That suit was unsuccessful. She sued again in 2010 and was unsuccessful. She sued again in 2012.  Each time Hall attempted different grounds and claims seeking disannexation. In the present case (Hall III), the city filed a plea to the jurisdiction which the trial court granted and Hall appealed. The Waco Court of Appeals affirmed in part and reversed in part, holding that the court had jurisdiction to hear the claims that the city failed to provide proper police patrols under the annexation plan created in 1999.  All other claims were dismissed. The case was remanded for the police patrol claim and Hall amended her petition again trying to reinject the dismissed claims. The city filed a motion for summary judgment as to all claims, which the trial court granted. Hall appealed.

The Waco Court of Appeals first examined whether Hall’s amended petition after remand raised new claims or if they simply recast the claims already dismissed. The court determined she simply re-labeled claims that the city failed to provide sanitary sewers, fire suppression with hydrants, or a water line capable of supporting fire hydrants. Under the law of the case doctrine, the court would not revisit such claims and they remain dismissed. As to the police patrol claims, the city first asserted the claims were barred by res judicata since Hall raised or could have raised the same claims in Hall I. Hall’s twist on the police patrol claim is that even if the city provided police patrols, it did not provide them “in good faith” under Chapter 43 of the Local Government Code. The court analyzed the evidence submitted in the city’s summary judgment and noted Hall expressly agreed that in her 2004 petition, she was complaining that the city was not conducting routine and preventative police patrols. Further, she agreed that, in anticipation of supporting her petition for disannexation in 2004, she had recorded 130 hours of video purportedly showing no routine patrols on a street in the annexed area. This is some of the same video evidence she contends supports her claims in her 2014 petition. Regardless of whether the specific claim of no regular or routine preventative police patrols was actually pursued in the 2004 petition for disannexation, Hall knew the claim was present in 2004 and could have raised it. Under the principle of res judicata, such claims are precluded in the present case. The judgment of the trial court is affirmed.*

Street Abandonment: The Jesus Christ Open Altar Church, LLC  v. City of Hawkins, No. 12-17-00090-CV, 2017 WL 6523088 (Tex. App.—Tyler Dec. 21, 2017) (mem. op.). This is a property dispute case in which the Twelfth Court of Appeals affirmed the trial court’s declaratory judgment regarding the city’s control over it right-of-way. 

The city filed a declaratory judgment action against the church regarding whether a plat recorded in 1909 dedicated fee simple ownership or any easements for roads to the city as well as whether the city had abandoned the roadway. Apparently, the city executed an “abandonment” deed in 1994 and questions arose regarding the scope of the abandonment. After a hearing, the trial court defined the scope of the property at issue. It further held the 1909 plat conveyed easements in and to the streets and alleys of the city, and the city holds an easement over the property at issue. Also, the court determined that the city has not conveyed or abandoned its easement. The church, which was claiming ownership of the property, appealed.

Once a road is dedicated to public use, that road remains subject to that use unless it is abandoned. The purpose of a public road, particularly one of local character, is to provide access to property abutting upon it, as well as a thoroughfare between distant points. To show common law abandonment, one must show intent to abandon and acts of relinquishment. The testimony showed that the named street (i.e. Ash Street) was not built on the land where the 1909 plat shows it to be. The city has not used its easement across the disputed tract of land and has no plans to use it. However, there is no evidence of an express intention to abandon the city’s easement. There is no evidence that it would be impossible or highly improbable to build a street on the disputed property or that the object of the easement wholly fails. Although it was established more than 100 years ago and no street has been built, mere nonuse of the easement does not amount to abandonment. In early 1994, English Funeral Home, which at the time owned the church property at issue, petitioned the city to abandon certain unused streets and alleys, referencing the original 1909 plat. The city did expressly abandon certain streets under the request and referenced them by block number. The record includes deeds showing the chain of title of the church property from 1993 until the church’s 2015 purchase. Utilizing incorporation by reference, the court determined the church’s assertion of the location of the easements and scope contradicts the deeds. The trial court’s determination that the church property is south of the abandoned easement, and not included in it, is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Judgment was affirmed in favor of the city.* 

Annexation: In re City of Pearland, No. 14-17-00921-CV, 2018 WL 344036 (Tex. App.—Houston [14th Dist.] Jan. 9, 2018) (supp. mem. op.). The Fourteenth Court of Appeals in Houston granted the city’s petition for mandamus compelling a trial court to lift its temporary restraining order issued in an annexation lawsuit.

Senate Bill 6, which requires certain cities to obtain consent by a majority of the property owners in an area before it can annex, went into effect December 1, 2017. The City of Pearland attempted to annex an area prior to the bill’s effective date. On November 20, plaintiffs filed their First Amended Petition, which alleged (among other things) that the city, in the annexation process, had failed to comply with certain provisions of the Texas Open Meetings Act. Plaintiffs requested a temporary restraining order restraining the city from considering the annexation ordinance, which the trial court granted and set an injunction hearing for December 4, 2017. Pressed for time, the city filed a mandamus and request for emergency relief in the court of appeals.  The court issued an order for the trial court to remove the restraining order on November 27 but, filed this supplemental brief explaining its legal reasons.

Under Government Code Section 551.142(a), a property owner, whose property has been annexed, has standing to challenge the validity of and enjoin an annexation ordinance based on violations of the Open Meetings Act.  Therefore, if the city did violate the Texas Open Meetings Act, the property owners have a legal remedy to challenge the annexation (after it occurs) for violations of the Act. The purpose of a TRO is to preserve the status quo. By restraining the city’s actions and setting a hearing after the deadline, the district court essentially had made a final, non-appealable adjudication affecting the city. That is not maintaining the status quo but issuing a ruling on the merits.*

*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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