Recent Texas Cases of Interest to Cities

Note: Included cases are from December 11, 2018 through January 10, 2019.

Contractual Immunity:  Owens v. City of Tyler, No. 17-0888, 2018 WL 6711522 (Tex. Dec. 21, 2018).  The City of Tyler built Lake Tyler in 1946 and leased lakefront lots to residents in a manner very similar to that in Wasson Interests, Ltd., v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018). Tenants decided to build a new pier and boathouse extending from their lot onto the water. This caused neighboring tenants to object. The neighboring tenants sued the city after it issued a building permit.  After the intermediate court of appeals issued an opinion, the Texas Supreme Court issued the most recent Wasson decision. As a result, the Supreme Court remanded the case back to the court of appeals in order analyze the case under the four-part Wasson test.*

Unconstitutional Local Law:  City of Tyler v. Liberty Util. Corp., No. 01-17-00745-CV, 2018 WL 6693563 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018).  This is a declaratory judgment case where the First District Court of Appeals in Houston held a provision of the Texas Water Code unconstitutional.

Liberty Utilities Corporation (Liberty) provides retail sewer utility service in Smith County under a certificate of convenience and public necessity. The City of Tyler desired to provide sewer service in Liberty’s service areas. State law prohibited the dual service in the area, so the city went to the legislature, which passed Section13.2475, Texas Water Code. This created an exception from the generally-applicable law allowing the city to provide sewer service within its boundaries, even in Liberty’s service areas. Liberty then sued the city, successfully obtaining a declaratory judgment that Section13.2475 is unconstitutional. The city appealed.

In this 21-page opinion, the court analyzed the constitutional prohibition against local laws under Article III, Section 56 of the Texas Constitution. The court analyzed the legislative debate and the author’s stated intended purpose. The court determined the section was bracketed and intended to address City of Tyler and regulated its affairs as a local law. The court further determined none of the constitutional exceptions from the prohibition applied. “The City of Tyler’s legislative strategy to uniquely exempt itself from the operation of Water Code Section 13.247(a) was a violation of the Texas Constitution’s default preference for laws of general applicability and general prohibition of local laws.”  As a result, it held Section13.2475 unconstitutional.*

Public Information Act: Leander Indep. Sch. Dist. v. Office of the Attorney Gen., No. 03-18-00243-CV, 2018 WL 6581523 (Tex. App.—Austin Dec. 14, 2018) (mem. op.). This is a case where the Austin Court of Appeals affirms the trial court’s judgment that certain employee-related investigation information is subject to public disclosure under the Public Information Act (PIA).

The school district received an open records request for policies, procedures, or logs of employee-related investigations. A responsive document prepared by Assistant Superintendent McSpadden listed the affected program, the category of complaint, date of complaint, status of investigation, complainant, employee against whom allegations were made, nature of the complaint, and comments regarding the investigation (document). The attorney general ruled that the complainants’ identity could be withheld, but otherwise the document was subject to disclosure under the PIA. The school district sought a declaratory judgment that the remaining information could also be withheld. The district court denied the school district’s motion and rendered judgment that the information must be released. The school district appealed.

The school district argues the district court erred and that the document is excepted from disclosure as a matter of law under Texas Government Code Sections 552.111, 552.101, 552.103, and 552.107. Section 552.111 excepts an interagency or intraagency memo or letter that would not be available by law to a party in litigation with the entity (encompassing the common law deliberative process privilege and attorney work product privilege). The court concludes the document consists of purely factual and evaluative information used by McSpadden and is raw data upon which decisions can be made, but is not part of the decisional process and does not contain advice or opinions regarding policy matters. Moreover, the school district’s evidence failed to show the document was of a nature to cause a reasonable person to conclude there was a substantial chance of litigation or that McSpadden actually believed there was a chance litigation would ensue. Thus, the document is not excepted from public disclosure under Section 552.111.

The school district argues that under 552.101, the constitutional and common law rights to privacy protect the document. The document includes complaints about workplace harassment and discrimination, employee romantic affairs, and CPS investigations.  Noting a recent split among the federal courts as to whether there is a constitutional right to privacy regarding extramarital affairs between public employees, the appellate court concludes that the school district fails to identify a specific zone or zones of privacy for protection under the constitution. As to common law privacy, the record fails to show that the document involves matters relating to a person’s private affairs; instead, the document relates to work conduct and job performance (the court notes that both the CPS investigation and romantic affair constituted the circumstances of the employees’ resignation, which is generally a matter of legitimate concern to the public). The fact that some allegations were determined to be unfounded is of no consequence. The court holds the document is not excepted from public disclosure under 552.101.

Section 552.103 excepts information related to litigation of a civil or criminal nature if the litigation is pending or reasonably anticipated on the date of the open records request. The appellate court holds the record contains no concrete evidence that any litigation was reasonably anticipated at the time of the request; thus, the document is not excepted under 552.103.

Finally, the school district asserts the document is an attorney-client privileged communication and is excepted under 552.107, which provides an exception for information protected under Texas Rule of Evidence 503. McSpadden’s affidavit indicates she may have used the document to consult with legal counsel, but did not assert it was created to transmit information to legal counsel or that it was communicated to counsel. Moreover, the record did not identify exactly which staff McSpadden shared the document with and whether those staff members constitute representatives such that the communication would be privileged, or that the communications were received by staff for the purpose of facilitating the rendition of legal services. The court holds that the document is not excepted under 552.107. The district court’s judgment is affirmed.

F-5 Determination: Stacks v. Burnet Cty. Sheriff’s Office, No. 03-17-00752-CV, 2018 WL 6519584 (Tex. App.—Austin Dec. 12, 2018). This is an appeal of a dishonorable discharge in an F-5 determination.

Patrick Stacks (Stacks) was terminated from his position as a deputy sheriff with the Burnet County Sheriff’s Office (BCSO) for omitting crucial details from an offense report and probable cause affidavit that described his arrest of a suspect, which rendered both documents misleading. As required by law, BCSO reported the termination to the Texas Commission on Law Enforcement stating that Stack’s had been dishonorably discharged. Stacks petitioned to correct the report to reflect an honorable or general discharge. BCSO argued that an honorable discharge was not appropriate because Stacks was fired for untruthfulness. Stacks did not dispute that he was terminated for omitting details from the offense report and affidavit he prepared but argued that the omissions did not amount to “untruthfulness.” He argued that even though further information may have assisted those assigned to the suspect’s case, “every single word” in both documents was true. An administrative law judge (ALJ) issued an order denying the petition. On appeal, the trial court affirmed the order. Stacks appealed the decision of the trial court.

The court reviewed the meaning of the term “untruthfulness” under the Occupations Code, and determined that a discharge for untruthfulness includes a discharge for omitting material information or facts that render a statement misleading or deceptive.  The court concluded that the trial court did not err in affirming the ALJ’s order that Stacks was not entitled to have the termination report changed.

Immunity: City of San Antonio v. Rocha, No. 04-18-00367-CV, 2018 WL 6517169 (Tex. App.—San Antonio Dec. 12, 2018) (mem. op.).  This appeal stems from the trial court’s decision denying a plea to the jurisdiction filed by the City of San Antonio in a motor-vehicle collision involving a city-owned police vehicle.

Gabriela Rocha (Rocha) filed a negligent suit against the city for damages she sustained after a vehicle she was driving was struck by a police vehicle. The city filed a plea to the jurisdiction asserting that the trial court lacked subject-matter jurisdiction over the suit because the city had not received formal or actual notice of Rocha’s claims as required by statute.  Rocha filed a response to the plea accompanied by evidence including an affidavit from her lawyer stating that he had sent a letter to the city advising of Rocha’s claims just weeks after the collision occurred. The trial court denied the city’s plea to the jurisdiction. The city appealed.

The Texas Tort Claims Act (TTCA) requires a plaintiff to provide written notice of a claim within 180 days in order to waive immunity. The TTCA also ratifies a city charter provision that requires notice of a claim. The city charter provided a 90-day window to provide a notice of a claim. The court first looked at whether the city had received formal notice within 90 days required under the City charter. Rocha’s lawyer’s affidavit noted that he “sent” the notice timely, but the plain language of the TTCA and city charter require the notice to have been “received” within the time period. As a result, the court determined that the city had not received formal notice.

The court then analyzed whether the city had actual notice.  Rocha argued that the city was placed on reasonable notice by the investigation and the facts of the collision collected and researched on the day of the actual event.  After examining the record, the court found nothing indicated that the city had actual notice of an injury or property damage until it was served with the original petition almost two years after the collision. As a result, the court concluded that immunity was not waived. The court reversed the trial court’s ruling, granted the city’s plea to the jurisdiction, and dismissed Rocha’s suit for lack of subject-matter jurisdiction.

Employment Discrimination: Sanchez v. Texas A&M Univ.-San Antonio, No. 04-17-00197-CV, 2018 WL 6517407 (Tex. App.—San Antonio, Dec. 12, 2018) (mem. op.).  This appeal stems from the trial court’s order dismissing a discrimination claim filed by Francisco Sanchez (Sanchez), a Texas A&M University employee.

Sanchez was serving as Assistant Vice President (AVP) for Enrollment Management when he was transferred to serve as project lead on a software implementation project that was expected to end in two years. Sanchez believed that he still held his AVP position or that the position would be held open for him until the end of the project.  Before the date of the expiration of the project, the university posted a job opening for an AVP for Enrollment. Sanchez complained to his supervisor that the decision to post the job opening for an AVP was wrong and discriminatory. Sanchez applied for the position, but was never interviewed. Instead, in September 2013, Sanchez discovered the university had hired someone else. On May 1, 2014, Sanchez was informed that his current position would be eliminated and the university sought to terminate the position in accordance with its reduction-in-force (RIF) procedure. Sanchez was offered another position with a lower salary, which he accepted in protest. On September 29, 2014, Sanchez filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) complaining that the hiring of another employee for a position he had applied for and the elimination of his position were based on retaliation and his national origin. He received his right to sue letter from the EEOC on February 23, 2015. On April 14, 2015, Sanchez filed suit.

The university filed a plea to the jurisdiction, a motion for summary judgement and a no-evidence motion for summary judgement arguing that Sanchez failed to timely file his EEOC charge and failed to timely bring suit. The university also challenged elements of Sanchez’s employment claims and argued that there was no evidence showing the RIF was a pretext. After a hearing, the court granted the plea and motion without stating the grounds. Sanchez appealed asserting that the EEOC charge was timely filed under the “continuing violations” doctrine.

The doctrine of “continuing violation” applies when an unemployment practice manifests itself over time, rather than as a series of discrete acts. When a charge is timely filed as to one act of discrimination, the doctrine of continuing violation expands the scope of those discriminatory events that are actionable, as long as one of the events occurs within the 180-day period. The court determined that the doctrine did not apply to Sanchez’s claims. Additionally, the court held that the continuing violation doctrine does not apply to demotions because demotions are generally discrete acts. The court also found that Sanchez could not establish discrimination through direct evidence. Further, the court determined that the RIF was a legitimate non-discriminatory reason which was not disputed with competent evidence. As a result, the court affirmed the trial court’s judgement.

Board of Adjustment: EMF Swiss Ave., LLC v. Peak’s Addition Homeowner’s Assoc., No. 05-17-01112-CV, 2018 WL 6836715 (Tex. App.—Dallas Dec. 28, 2018) (mem. op.).  This case stems from an appeal of the trial court’s decision overturning the City of Dallas Board of Adjustment’s (board) decision of a permit to construct a five-story apartment complex.

After the City of Dallas issued building permits to EMF Swiss Avenue LLC (EMF) for the construction of an apartment complex in east Dallas, Peak’s Addition Homeowner’s Association (HOA) appealed, to the board, one of those permits permitting the third floor of the multifamily dwelling.  The board affirmed the permit’s issuance, and the HOA sought judicial review of the board’s decision in district court arguing that the board abused its discretion by misinterpreting the City of Dallas Development Code.  Before the district court’s scheduled date to hear the motion, EMF intervened and moved to continue the summary judgement hearing. The district court granted summary judgement in favor of the HOA.  EMF appealed.  The city and the board filed a joint brief arguing that the trial court erred.

The court found that the city and board were not proper parties to the appeal, but treated their brief as the equivalent of an amicus curiae brief. The HOA alleged two potential jurisdiction defects with EMF’s appeal: (1) EMF has not exhausted its administrative remedies because EMF did not appeal to the board to preserve its legal argument supporting the permit’s issuance; and (2) EMF lacks standing to appeal.  The court determined that EMF was not required to exhaust administrative remedies by appealing the permit in question to the board. The court also found that EMF had standing to appeal the judgment because it intervened before final judgment was rendered and it asserted an injury that was personal to itself. To determine the merits of the case, the court looked at whether the board misapplied the city’s ordinances. After a review of the applicable ordinances, the court determined that trial court erred by granting the HOA’s summary judgement motion.  However, because the city and the board did not appeal the denial of the summary judgement motion, and because EMF did not move for summary judgement, the court did not render judgement in EMF’s favor.  Accordingly, the court reversed the trial court’s judgement and remanded the case for further proceedings.

Economic Development: City of Lancaster v. White Rock Commercial, LLC, No. 05-17-00583-CV, 2018 WL 6716932 (Tex. App.—Dallas Dec. 21, 2018) (mem. op. on reh’g). The court of appeals issued an opinion on August 20, 2018, which is summarized here.  In response, the City of Lancaster filed a motion for rehearing.  The court of appeals denied the motion, withdrew the initial opinion, vacated the judgement, and issued a new opinion.   Like the initial opinion, the court concluded that the trial court did not err in denying the city’s plea to the jurisdiction. However, the court concluded that the trial court’s damages award was erroneous in certain respects. The court reversed the case to the trial court for the limited purpose of determining: (1) the amount owed by the city after crediting the $1.8 million paid by the Lancaster Economic Development Corporation; (2) the amount of insurance costs and gas-line installation costs, that the court held must be excluded from the court’s damages award; and (3) the recalculation of interest based on the revised damages award.

Immunity: State of Texas v. Dallas Pets Alive, No. 05-18-00084-CV, 2018 WL 6722690 (Tex.  App.—Dallas Dec. 21, 2018) (mem. op.).  This case stems from an appeal of a county court’s decision to deny a plea to the jurisdiction by the State of Texas, by and through, the City of Dallas in a case involving a dog injury.

The City of Dallas Animal Services took in a pit bull terrier-type dog, Rusty, and soon after Dallas Pet Alive (DPA), a non-profit animal rescue organization accepted Rusty and placed him in foster care. The DPA took Rusty to an adoption event held at a public park, at which Rusty bit and injured a two-year old child. Rusty was taken to City of Dallas Animal Services for a mandatory ten-day bite quarantine. After that quarantine period had expired, a city animal control officer signed an affidavit for probable cause requesting a warrant to seize Rusty for causing death or serious bodily injury to a person pursuant to Section 822.002 of the Health and Safety Code. Following a hearing at municipal court to determine whether Rusty caused serious bodily injury to a person by attacking, biting or mauling the person, the court found Rusty had attacked a minor child and caused serious bodily injury, and pursuant to Section 822.003(e) of the Health and Safety Code, the court ordered the dog to be humanely euthanized.

The DPA filed an appeal of the municipal court in the county court of law. Two days later, but before the appeal of the municipal court order was docketed, DPA filed an application for a temporary restraining order (TRO), a temporary injunction, and permanent injunction seeking to stay the municipal court’s order. DPA asserted that the city would not agree to stay the euthanization pending the appeal of the municipal court’s order and that the requested injunction was necessary to preserve the subject matter of the suit.  The court granted the application and signed an order directing the city to cease and desist from euthanizing Rusty during the temporary restraining period and set a hearing date. The city filed a plea to the jurisdiction asserting that the county court at law lacked subject-matter jurisdiction over DPA’s TRO application because of a lack of waiver of government immunity and because Chapter 822 does not provide a right of appeal. The court, after a hearing, denied the city’s plea. The city filed an accelerated appeal.

The court of appeals determined that the city waived its immunity from suit by initiating the underlying proceedings in municipal court. Additionally, the court determined that the county court at law had subject-matter jurisdiction to hear DPA’s appeal of the municipal court’s order pursuant to Section 822.003 of the Health and Safety Code. Accordingly, the court properly issued the TRO to preserve the court’s subject-matter jurisdiction. The court also remanded the case back to the county court at law for further proceedings consistent with its opinion.

Retaliation: City of Dallas v. Nkansah, No. 05-18-00069-CV, 2018 WL 6599025 (Tex. App.—Dallas Dec. 17, 2018) (mem. op.). This case stems from the trial court’s order denying the City of Dallas’ plea to the jurisdiction regarding a former employee’s claims for retaliation.

Nkansah worked for the city for over 17 years. In May 2014, he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) asserting that he had been passed over for three promotions over the year despite being well qualified and that he was harassed, discriminated against, and retaliated against on the basis of his national origin, gender, and age. In November 2014, Nkansah was suspended without pay for five days. His supervisor cited several reasons for his suspension, including failure to inform his supervisor of his absence from work to attend a training session, his discourteous and argumentative behavior, his discourteous emails to his supervisor and other city employees, inappropriate face-to-face interaction with a coworker, and his spending time during work hours on personal matters. After his suspension, Nkansah filed a second charge of discrimination with the EEOC, maintaining that he had been discriminated against and alleging retaliation for participating in protected activities, specifically citing five internal grievances he had filed with the city between July 2013 and December 2014 and his previous EEOC charge. In June 2015, the city sent Nkansah a letter notifying him of possible disciplinary action, including termination of his employment due to alleged violations of personnel rules, including an incident in April 2015, during which Nkansah allegedly became combative in a meeting with his supervisor and created a workplace disturbance, and not following the earlier directive to not spend time on personal matters at work. In July 2015, after Nkansah had had an opportunity to respond to the allegations, he was notified that his employment was terminated for the reasons provided in June 2015.

In October 2016, Nkansah sued the city for retaliation under the Texas Commission on Human Rights Act (TCHRA), alleging that he was suspended and later wrongfully discharged in retaliation for filing grievances due to the city’s discriminatory promotion purposes. The city filed a plea to the jurisdiction asserting that the TCHRA’s waiver of governmental immunity does not apply because Nkansah cannot establish a prima facie case of retaliation by showing a causal link between Nkansah’s protected activity and the adverse employment action. The trial court denied the city’s plea to the jurisdiction with respect to his retaliation claims.

To prevail in a retaliation action under the TCHRA, the plaintiff must prove that a causal link existed between the protected activity and the adverse action. Violations can be established by either direct or circumstantial evidence. For circumstantial evidence, the burden-shifting framework set out in McDonnel Douglas Corp. v. Green applies.  After reviewing the affidavits of Nkansah’s three former coworkers provided in response to the city’s plea, the court determined that Nkansah had produced direct evidence of discrimination. As such, the court determined that the McDonnell Douglas burden-shifting analysis did not apply. Thus, the court concluded that the trial court properly denied the city’s plea on the retaliation claim.

Open Meetings Act: Terrell v. Pampa Indep. Sch. Dist., No. 07-17-00189-CV, 2019 WL 150884 (Tex. App.—Amarillo Jan. 9, 2019). This is a Texas Open Meetings Act (TOMA) case where the Amarillo Court of Appeals affirmed a take-nothing judgment in favor of the Pampa Independent School District (PISD).

PISD hired Terrell as a teacher on a probationary basis. At the end of the school year, the PISD board voted to terminate her. Terrell brought suit asserting PISD committed TOMA violations in twenty-one separate meetings and demanded that all actions taken during those meetings (including her termination) are void. Physical notice for each of the twenty-two challenged meetings was posted to the inside of an external glass door of the administrative building for PISD in a manner in which the public could view them at any hour. These physical notices identified the date, time, and place of each respective meeting. Meeting notices were also posted to PISD’s website most of the time. Due to an issue arising from a transfer to a new website for PISD, notice of meetings were not posted on PISD’s website for five months. PISD was unaware of the website glitch, but upon learning of it, the board took corrective action. PISD also only posted notices on the outside bulletin board and not the one inside its administrative offices. The trial court issued a take-nothing judgment against the plaintiffs and they appealed.

The panel opinion noted the Texas Supreme Court has indicated that substantial compliance with TOMA’s notice requirements is sufficient. To determine whether a governmental entity substantially complied with the requirements of TOMA, courts look to whether the notice fairly identifies the meeting and “is sufficiently descriptive to alert a reader that a particular subject will be addressed.” Courts are not to determine whether the entity could have posted a better notice in a better manner; rather, courts are tasked with determining whether the notice was sufficient to notify the public of the specific meeting and its topics. Physically posting the agendas in a glass case outside the building for all to see at any time was sufficient for substantial compliance under TOMA.  PISD provided sufficient evidence to constitute a good faith effort to post on the website, explained how the glitch occurred, and what was done to fix it.

Terrell next argued that PISD violated TOMA by including only a partial description of the place of the meetings, such as “Pampa High School,” without identifying the meeting room, full street address, or name of the city. TOMA requires that the notice identify the “place” of the meeting. The panel held that while it would be more helpful if the notices had identified the specific room, it finds the school title descriptions were sufficiently specific to alert the public of the location of the school board meetings. As a result, the take-nothing judgment was affirmed.*

Plea to the Jurisdiction: Orr v. City of Red Oak, No. 07-17-00281-CV, 2018 WL 6581721 (Tex. App.—Amarillo Dec. 13, 2018). Nathan Orr (Orr) owns Republic Heating & Air located in the City of Red Oak. Orr purchased a parcel of improved land with an existing building for the relocation of his business. When he submitted a parking lot permit application for his newly purchased property, the city’s director of public works (director)  reviewed the permit application for general compliance with certain ordinances and issued comments on Orr’s proposed parking lot expansion plans. Orr objected to the comments and instead of appealing the city’s board of adjustment (BOA), Orr filed suit in district court. In his petition seeking a declaratory judgement and injunction, Orr claimed the city’s requirements are not required by applicable city ordinances, and pre-purchase assurances by the city estop the city from imposing the requirements.

The city filed a plea to the jurisdiction asserting the district court lacked subject matter jurisdiction because Orr did not exhaust his administrative remedies by first presenting his claims to the BOA as required by the Local Government Code and the city’s ordinances. Orr amended his petition and alleged the conduct of city officials involved were “ultra vires in nature” because the director was without jurisdictional authority and continued to prevent him from obtaining the legally required parking permit. After the hearing on the plea to the jurisdiction, the trial court granted the city’s plea to the jurisdiction, dismissed Orr’s suit with prejudice, and denied Orr’s motion to modify, correct and reform the judgment or, in the alternative, motion to reinstate.

Orr appealed, raising two issues challenging the trial court’s order granting plea to the jurisdiction and two issues related to the trial court’s refusal to allow discovery.  With a de novo review of the trial court’s ruling, the court first analyzed whether the trial court correctly granted the city’s plea to the jurisdiction. Generally, district courts are authorized to resolve disputes unless the Texas Constitution or other law conveys exclusive jurisdiction on another court or an administrative body. If an administrative body has exclusive jurisdiction, then a party must exhaust all administrative remedies before seeking judicial review of a decision. Section 211 of the Local Government Code provides administrative remedies that must be exhausted before a party may seek judicial review of a determination. In this case, Orr did not exhaust his administrative remedies. The court found that Orr’s lawsuit stemmed from a decision by an administrative official of the city authorized by the city’s ordinance to make decisions that Orr is complaining about. Because Orr failed to pursue all available administrative remedies within the city’s ordinance and the Local Government Code before he filed suit in district court, the district court lacked jurisdiction to hear his claims.

Next, the court analyzed whether Orr had an ultra vires claim. For a claim to fall within the ultra vires exception to governmental immunity, a plaintiff must plead an ultra vires claim as a suit against the official in his official capacity and prove that the officer acted without legal authority or failed to perform a purely ministerial act.  As for Orr’s ultra vires claim, the court determined Orr did not prove his claim. The court found Orr did not sue the director or any other city official. Also, he did not present any evidence that: (1) the director was acting outside of his official capacity when the director issued the decision letter; or (2) the director or the city failed to perform a purely ministerial act. It was not enough that Orr did not agree with the director’s decision. Additionally, Orr argued that the city did not address his ultra vires claim; however, the court found that the City did address it.

Lastly, the court determined that the trial court properly exercised its discretion concerning Orr’s discovery claims. The trial court must determine at its earliest opportunity whether it has the constitutional or statutory authority to decide the case before allowing the litigation to proceed. In this case, the trial court determined that discovery was not necessary to determine the city’s plea to the jurisdiction because Orr’s pleadings clearly showed the trial court did not have jurisdiction since Orr did not exhaust his administrative remedies before filing his lawsuit. Overruling all of Orr’s claims, the court affirmed the trial court’s granting the city’s plea to the jurisdiction.

Texas Tort Claims Act: City of Fort Worth v. Hart, No. 10-17-00258-CV, 2019 WL 91676 (Tex. App.—Waco Jan. 2, 2019) (mem. op.). This is a vehicle accident/Texas Tort Claims Act (TTCA) case where the Waco Court of Appeals reverses the denial of the city’s plea to the jurisdiction.

Plaintiffs assert a City of Fort Worth police officer, Castaneda, negligently drove a vehicle within the course and scope of his employment with the city and caused damage to their vehicle and injuries to the passengers. The city filed a plea to the jurisdiction. After a hearing, the trial court denied the plea and sustained objections to several exhibits presented by the city as evidence in support of its plea (including excerpts of Castaneda’s deposition).

The court of appeals holds that deposition excerpts attached to a city’s plea to the jurisdiction do not require separate authentication and that highlighting portions of the deposition does not constitute a modification that changes the details of the deposition. In sum, the trial court’s order was an abuse of discretion that resulted in the exclusion of evidence material to the ultimate issue—whether Castaneda was acting within the scope of his employment when the accident occurred.

The court of appeals then holds that, at the time of the accident, Castaneda was off-duty, not being paid for his time, had no official duties, and was merely commuting to work. The fact that the accident occurred during his scheduled work hours; that he failed to file a report regarding the off-duty use of the city-owned vehicle in violation of city policy; that he was issued a mobile phone and radio to respond to after-hours calls; that he identified himself as a police officer after the wreck; and that he was incorrectly advised to name the city as the financially responsible party on the police report did not alter Castaneda’s off-duty status. The city’s plea should be granted.

Civil Procedure: In re City of Tatum, No. 12-18-00285-CV, 2018 WL 6715889 (Tex. App.—Tyler Dec. 21, 2018). This is a writ of mandamus original proceeding where the Tyler Court of Appeals conditionally granted the city’s relief and precluded a potential party from taking pre-suit depositions pursuant to Texas Rule of Civil Procedure 202.

Peterson filed a petition for a pre-suit deposition of the police chief pursuant to Texas Rule of Civil Procedure 202. The grounds for the deposition are that Peterson asserts a City of Tatum police officer sexually assaulted her when the officer arrived in response to a call for assistance at the home. She alleged that the city knew the officer “exhibited indicators” of this type of behavior; negligently hired, trained, controlled, supervised, and monitored the officer; did not have a policy to prevent such behavior and she anticipated being a party to a lawsuit involving the city. The city objected.  The trial court signed an order allowing the deposition and the city filed this original mandamus proceeding.

Pre-suit discovery is not intended for routine use; it creates practical and due process problems because discovery demands are made of individuals or entities before they are told of the issues. Rule 202.4 states a trial court must order a pre-suit deposition to be taken only if it finds: (1) allowing the deposition may prevent a failure or delay of justice in an anticipated suit (to be used if the purpose is to collect evidence for a lawsuit); or (2) the likely benefit to investigate a potential claim outweighs the burden or expense of the procedure (to be used in order to investigate if a claim even exists). The verified statements in a Rule 202 petition are not considered competent evidence. Peterson presented no evidence to support possible claims to investigate or collect. That a party (i.e. city) may be in possession of evidence pertinent to the subject matter of the anticipated action or to the petitioner’s potential claims does not alleviate the petitioner of her burden of providing evidence to support a Rule 202 request for pre-suit deposition. Further, the order does not contain the findings required to make it a proper order. The Texas Supreme Court has made clear that Rule 202.4 findings cannot be implied from the record and the findings are mandatory. Because the requirements of Rule 202.4 are mandatory, the city’s failure to object in the trial court does not result in waiver. The court conditionally granted the writ and stated an unconditional writ will issue only if the trial court’s order is not corrected.*

Annexation: Jimenez v. City of Aransas Pass, No. 13-17-00514-CV, 2018 WL 6565090 (Tex. App.—Corpus Christi Dec. 13, 2018) (mem. op.). On September 8, 2015, the City of Aransas Pass announced plans to annex a neighborhood in San Patricio County. On December 28, 2015, Daniel Jimenez filed a suit seeking a temporary restraining order and injunction to prevent the city from annexing the land. The trial court denied relief and the city annexed the neighborhood on January 4, 2016. The same day, Jimenez filed suit seeking, among other things, a declaratory judgment that the annexation was void because the city failed to comply with two requirements set out in the annexation statute: (1) the requirement to establish a three-year annexation plan; and (2) the requirement to complete the annexation proceedings within 90 days after they were instituted. The trial court granted the city’s motion for summary judgment against all claims and Jimenez appealed.

On appeal, Jimenez’s first claim was that the city failed to establish and adhere to a three-year annexation plan, which rendered the annexation wholly void. The city argued that even assuming the three-year plan requirement applied, the city’s failure to establish a three-year plan is a procedural defect that does not render the annexation void, but only voidable. Because the annexation was not wholly void, the city argued that Jimenez had no standing to challenge the procedural error. Agreeing with the city, the court held that failure to adhere to a three-year plan renders an annexation voidable, and a citizen only has standing to bring a private challenge where an annexation ordinance is wholly void. The only means to attack the failure to establish a three-year plan is a quo warranto action brought by the state.

In his second issue, Jimenez complained that the city’s failure to complete the annexation proceedings within 90 days after they were instituted made the annexation proceedings void. The court rejected Jimenez’s argument that the notice of hearing instituted the annexation proceedings and 90 day window. According to the court, the proceedings were only instituted when the annexation ordinance was passed. Because the annexation ordinance was passed on January 4, 2016, that date represented both the institution of and completion of annexation proceedings. Because the annexation proceedings concluded the same day they began, the court held that as a matter of law the city did not exceed the 90-day timetable for completion of the proceedings.

The court concluded that the trial court properly granted summary judgment concerning all claims addressed in the city’s motion, as Jimenez lacked standing to complain about the first error because it was procedural only, and the record established that as a matter of law the second error did not occur.

Texas Tort Claims Act: Gomez v. City of Houston, No. 14-17-00811-CV, 2018 WL 6722345 (Tex. App.—Houston [14th Dist.] Dec. 21, 2018) (mem. op.). Bobby Joe Simmons, a City of Houston police officer, was responding to a robbery call when his car collided with a vehicle driven by Maria Christina Gomez. Gomez sued the city, alleging negligence. The city filed a plea to the jurisdiction asserting that it was immune from suit, and the trial court granted the city’s plea and dismissed the lawsuit. Gomez appealed.

On appeal, the first question was whether Officer Simmons could be personally liable to Gomez under Texas law, as required under the Texas Tort Claims Act to waive governmental immunity. The city contended that the evidence conclusively established that Officer Simmons responded to the robbery call in good faith, and therefore could not be personally liable to Gomez under Texas law, meaning the city should retain its governmental immunity. But the court held that the city did not meet its burden to conclusively prove Officer Simmons’ good faith, as the city’s evidence did not address the risks created by Officer Simmons’ decisions not to reduce his speed due to the wet street conditions, to not use his siren, and to look down and away from the road when he approached an intersection he knew had a quick light. The trial court erred to the extent it granted the city’s plea to the jurisdiction on the ground that the city’s governmental immunity had not been waived under the Texas Tort Claims Act.

In her second issue, Gomez argues that the trial court erred to the extent it granted the city’s plea based on the emergency exception to the waiver of immunity in Section 101.021 of the Civil Practice and Remedies Code. The city claimed that because it established that Officer Simmons did not act recklessly, the city was immune from suit. The court disagreed, holding that there was a material question of fact regarding whether Officer Simmons acted recklessly or with conscious indifference to the safety of others. Evidence showing that Officer Simmons did not slow his speed to compensate for the wet conditions, did not use his patrol car’s emergency lights and siren, and did not maintain visual contact with the road as he approached an intersection he knew he had a “quick light,” could support a finding that he acted recklessly. Because there was a fact issue on whether Officer Simmons’ acted recklessly, the court sustained Gomez’s second issue.

*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 www.rshlawfirm.com.

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