Recent Texas Cases of Interest to Cities

Note: Included cases are from December 11, 2020 through January 10, 2021.

Texas Tort Claims Act: Rivera v. City of Houston, No. 01-19-00629-CV, 2020 WL 7502054 (Tex. App.—Houston Dec. 22, 2020) (mem. op.). This appeal arises from a car accident and centers on whether a city police officer held official immunity when she drove her police vehicle through an intersection not realizing she had a red light because she was typing on her mobile data terminal. The city argued she held official immunity, and the trial court granted the city’s summary-judgment motion, ruling that the city established its affirmative defense. The appellate court reversed the trial court’s ruling and remanded for additional proceedings holding that the police officer could not have properly evaluated the risks of her actions against any need to check a priority-two call, thereby taking her actions outside the realm of a good-faith performance of a discretionary act. The court reversed the trial court’s decision and remanded for additional proceedings.

Authority of General Law Cities: Builder Recovery Servs. LLC v. Town of Westlake, No. 02-20-00051-CV, 2021 WL 62135 (Tex. App.—Fort Worth Jan. 7, 2021) (mem. op.). This is a declaratory judgment/ordinance invalidation suit brought by a solid waste collector where the Fort Worth Court of Appeals affirmed the Town of Westlake’s power to require licenses. The town passed an ordinance allowing third-party haulers to obtain licenses for temporary construction waste services and imposed certain regulations on the license. BRS brought suit asserting, among other things, that the license fee was not tied to actual administrative costs and that the ordinance was preempted by state law, and challenging the town’s authority to pass the ordinance. After a bench trial, the trial judge found largely in favor of the town, but invalidated the license fee calculation. BRS appealed. The appellate court rejected BRS’ argument that section 361.113 of the Texas Health and Safety Code does not empower the town to issue licenses as a license is an inherent part of the town’s regulatory power. The court further determined the license fee issue was moot due to an amended ordinance. However, due to an outstanding issue of attorney’s fees, the court remanded to the trial court for disposition.*

Expedited Declaratory Judgment Act: City of Magnolia v. Magnolia Bible Church, No. 03-19-00631-CV, 2021 WL 7414730 (Tex. App.—Austin Dec. 18, 2020). This is an interlocutory appeal from an order granting a new trial and denying the city’s plea to the jurisdiction in a water rate case in which the appellate court affirmed the granting of a new trial and the denial of the city’s plea. The appellate court held that due process does not require personal service in all circumstances, but any use of substituted notice in place of personal notice—e.g., notice by publication—must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” As such, notice by publication is insufficient when the name, address and interest are known.*

Public Information: City of Austin v. Doe, No. 03-20-00136-CV, 2020 WL 7703126, (Tex. App.—Austin Dec. 29, 2020) (mem. op.). Jane Doe sued the City of Austin, its police department, and the police chief (collectively, the “city”) for declaratory and injunctive relief related to the publication of booking photos (a.k.a. “mug shots”) on the city’s website. The city appealed the trial court’s order denying the city’s plea to the jurisdiction. The appellate court affirmed, in part, the trial court’s order related to Doe’s ultra vires claim against the police chief as to whether the information at issue is “confidential,” but reversed the order as to her remaining claims and rendered judgment dismissing those claims.

Texas Tort Claims Act: City of Austin v. Anam, No. 03-19-00294-CV, 2020 WL 7759980, (Tex. App. —Austin Dec. 30, 2020) (mem. op.) (reh’g en banc granted). Anam committed suicide by shooting himself in the head while seated in the backseat of a police department patrol car. Anam’s estate sued the city under the Texas Tort Claims Act (Act), alleging that the police officer’s failure to fasten Anam’s seatbelt caused his death. On interlocutory appeal, the court determined that Anams’ claims did not fall under the Act’s limited waiver of sovereign immunity for death arising from the use of a motor-driven vehicle or caused by a condition or use of tangible personal property because Anam’s death was not proximately caused by the unfastened seatbelt, a requirement for waiver under the Act. The court reversed the trial court’s order denying the city’s plea to the jurisdiction and rendered judgment dismissing Anams’ claims against the city.

Emergency Management: State v. City of Austin, No. 03-20-00619-CV, 2021 WL 22007 (Tex. App.—Austin Jan. 1, 2021) (per curiam). The Travis County Judge and the Mayor of the City of Austin issued orders that prohibited dine-in food and beverage services from 10:30 p.m. to 6:30 a.m., December 31 through January 3, but allowed takeout, curbside, and delivery. The State of Texas challenged the order in county court, and the trial court upheld the restrictions. The state appealed, and the court of appeals upheld the trial court’s decision. The state filed a petition for mandamus with the Supreme Court of Texas, which granted the mandamus, directing the appellate court to issue relief under Texas Rule of Appellate Procedure 29.3, instanter, thereby enjoining enforcement of the orders pending final resolution of the appeal.

Texas Tort Claims Act: City of Laredo v. Sanchez, No. 04-20-00402-CV, 2020 WL 7364660 (Tex. App.—San Antonio Dec. 16, 2020). Sanchez sued the city on behalf of her son, alleging that he sustained injuries during a transport in a city-owned ambulance as a result of the ambulance abruptly stopping because of a chain across the driveway to the hospital. The trial court denied the city’s plea to the jurisdiction arguing the emergency response exception applied, and the city appealed. The appellate court found that the trial court properly denied the plea to the jurisdiction because, even assuming the city met its burden that the city employee was responding to an emergency call, the son was transported as a precaution, he was not being treated in the ambulance, and the employee did not activate the ambulance lights and sirens.

Breach of Contract: City of Mason v. Blue Oak Eng’g, LLC, No. 04-20-00227-CV, 2020 WL 7365452 (Tex. App.—San Antonio Dec. 16, 2020). The plaintiff sued the city for breach of contract to recover an unpaid amount related to a contract for a landfill permit. The city filed a plea to the jurisdiction, arguing it had not waived immunity because the permit the plaintiff worked on was not the same permit as detailed in the contract. The trial court denied the plea. The city appealed. The appellate court rejected the city’s claims that the plaintiff sued on a new contract or a contract amendment, and affirmed the denial of the plea finding that the contract falls under Chapter 271 of the Local Government Code and that the city waived immunity for adjudicating a claim for breach of contract.

Takings: Santander Consumer USA, Inc. v. City of San Antonio, No. 04-20-00341-CV, 2020 WL 7753730 (Tex. App.—San Antonio Dec. 30, 2020). The plaintiff sued the city for money damages after the city impounded and sold vehicles the plaintiff owned, alleging it amounted to a taking. The plaintiff also challenged the validity of the city’s ordinance. The trial court granted the city’s plea. The appellate court affirmed on the grounds that the plaintiff did not follow the applicable procedures in the city ordinance to recover the vehicles before it filed its lawsuit, thus depriving the court of jurisdiction. Likewise, the court affirmed the dismissal of the declaratory judgment claims finding that there was no existing conflict because the plaintiff was trying to prevent future takings. The court also rejected the plaintiff’s money damages claim because the city was exercising the governmental functions of police protection and regulation of traffic when it impounded the vehicles.

Confederate Monuments: In re Carter, No. 05-20-00279-CV, 2020 WL 7693178 (Tex. App.—Dallas Dec. 28, 2020). The plaintiffs sought injunctive and declaratory relief from the city to prevent the city from removing and destroying a confederate monument. The trial court granted the city’s plea to the jurisdiction dismissing all claims except for the cause of action concerning the city’s plan to remove and demolish the monument. The court of appeals granted the petition for injunctive relief and ordered the city not to sell, dispose of, or damage the monument until the final disposition of the underlying appeal.

Confederate Monuments: Return Lee to Lee Park v. Rawlings, No. 05-19-00456-CV, 2020 WL 7693112 (Tex. App.—Dallas Dec. 28, 2020). The plaintiff sued the councilmembers and the city for injunctive relief and the return of a confederate monument to a city park, alleging violations of the Texas Antiquities Code and criminal mischief. The plaintiff later amended its suit and claimed the city failed to seek competitive bids for the removal of the confederate monument and that the city violated the Texas Open Meetings Act (TOMA) by voting during a “non-voting” meeting. The trial court granted all of the city’s various motions, thereby getting rid of the case, and the plaintiffs appealed. The court of appeals found that the plaintiffs lacked standing, the Antiquities Code did not apply because the confederate monument was not a state archeological landmark, the plaintiffs failed to address the city’s assertion of governmental immunity, and the city did not violate TOMA.

Purchase of Real Property: Saum v. City of College Station, No. 10-17-00408-CV, 2020 WL 7688033 (Tex. App.—Waco Dec. 22, 2020) (mem. op.). The city offered to purchase two tracts of land from Saum. Saum signed and returned the agreement on August 19, 2017. The city council met and approved the contract on September 11, 2017. No one from the city physically notified Saum of the city council’s vote. The city manager and the mayor signed the contract on September 12, 2017, and September 14, 2017, respectively. On September 13, 2017, Saum sent a letter to the city revoking her acceptance of the contract as she had received a more favorable offer from another party. The city filed suit to obtain a temporary injunction preventing Saum from disposing of the property until the lawsuit had been resolved. The trial court granted the temporary injunction. Saum appealed. The appellate court held that the trial court did not abuse its discretion in finding that: (1) Saum’s revocation was ineffective as it occurred subsequent to the contract being “fully executed” by adoption of the city council; (2) the parties did not agree to require signatures as a condition of mutual consent; and (3) the contract was valid even though a copy was not delivered to Saum before her attempted revocation. The trial court’s order granting a temporary injunction is affirmed.

Breach of Contract: City of Cleburne v. RT General, LLC, No. 10-20-00037-CV, 2020 WL 7394519 (Tex. App.—Waco Dec. 16, 2020) (mem. op.). The plaintiff sued the city after being evicted from a city airport hangar that it leased from the city. The trial court denied the city’s plea to the jurisdiction, and the city appealed, arguing that the lease lacked essential terms to constitute a contract under section 271.151(2) of the Texas Local Government Code. For the purpose of waiving immunity under Chapter 271 of the Texas Local Government Code, a contract must be written and must state “the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” The court of appeals disagreed, holding that the plaintiff plead sufficient facts to establish a waiver of the city’s governmental immunity to suit under Section 271.152. The city next asserted that the trial court erred by denying the plea to the jurisdiction as to the plaintiff’s inverse-condemnation, declaratory-judgment, and fraud claims, because they attempted to recast barred breach-of-contract claims to avoid the city’s immunity to suit. Because the court held that the plaintiff had plead sufficient claims to establish a waiver of the city’s immunity, each of these claims was overruled. The trial court’s judgment is affirmed.

Texas Tort Claims Act: Garms v. Comanche Cty., No. 11-19-00015-CV, 2020 WL 7413991 (Tex. App.—Eastland Dec. 18, 2020) (mem. op.). The plaintiff sued the county after he was injured in the county jail. The plaintiff, who was an inmate in the county jail at the time of injury, had informed the jail staff that he felt unwell. His blood pressure was checked, but despite a high blood pressure reading, the duty nurse was not notified and the plaintiff was not monitored. The plaintiff lost consciousness and sustained a serious head injury. The plaintiff was also left unattended with a serious head injury, which caused further issues. The plaintiff sued the county for negligence caused by a faulty motorized camera and failure to monitor and provide medical care to the plaintiff. The appellate court affirmed the trial court’s grant of the county’s plea to the jurisdiction because injuries allegedly caused by failure to monitor or provide medical care is a nonuse of tangible personal property which does not waive immunity under the Texas Tort Claims Act.*

Texas Tort Claims Act: Self v. Wet Cedar Creek Mun. Util. Dist., No. 12-20-00082-CV, 2021 WL 56213 (Tex. Ct. App.—Tyler Jan. 6, 2021) (mem. op.) Self and his wife sued the district for, among other things, negligence and premise defect, alleging that the district’s prior repairs to the sewer’s vault system resulted in sewage backing up into their home. The district filed a plea to the jurisdiction asserting governmental immunity under the Texas Tort Claims Act. The trial court granted the plea, and Self filed an appeal. The court of appeals affirmed the trial court’s decision finding that immunity was not waived as Self did not meet the burden of establishing a fact issue as to whether the flooding of his home “arose” from the use of motor-driven equipment and that the district knew or should have known of a dangerous condition of the premises that created an unreasonable risk of harm to him.

*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