Note: Included cases are from December 11, 2022 through January 10, 2023.
Tort Claims Act: City of Houston v. McGriff, No. 01-21-00487-CV, 2022 WL 17684046 (Tex. App.—Houston [1st Dist.] Dec. 15, 2022.) (mem. op.). McGriff sued the City of Houston for negligence after she was injured when a freightliner driven by a city employee drifted into her lane and collided with the bus she was driving. The city filed a plea to the jurisdiction and a motion for summary judgment. The trial court denied both and the city appealed.
The appellate court affirmed, holding that because the emergency response exception to the Texas Tort Claims Act’s waiver of immunity does not apply if the emergency may have been caused by the negligence of the person under inquiry, the city could not conclusively establish the sudden-emergency defense, so summary judgment was not appropriate.
TCEQ Permitting: Tex. Comm’n on Envtl. Quality v. Save Our Springs All., Inc., No. 08-20-00239-CV, 2022 WL 17659907 (Tex. App.—El Paso Dec. 13, 2022). This is an important case for cities facing increased scrutiny regarding TCEQ wastewater discharge permit applications. It centers around a years-long challenge by the Save Our Springs Alliance (SOS) to the issuance of a wastewater discharge permit to allow the City of Dripping Springs to discharge treated effluent into two waterways. After TCEQ approved a discharge permit, SOS sued, alleging the permit approval was improper as a matter of law and arguing that the administrative record was not sufficient to support approval of the permit. The district court agreed. TCEQ and the city appealed the district court’s ruling, arguing that (1) the TCEQ applied the appropriate standards of analysis, and (2) the administrative record supported issuance of the permit. A court may reverse an agency order if the substantial rights of a party are prejudiced by administrative findings or decisions that are: (1) in violation of a constitutional or statutory provision; (2) in excess of the agency’s statutory authority; (3) made through unlawful procedure; (4) affected by other error of law; (5) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. The appellate court in this case took pains to review the administrative record in great detail with reference to the applicable legal standards. This is a lengthy opinion, and ultimately the appellate court found that the TCEQ had reviewed the permit application in reference to the appropriate standards and reversed the trial court’s judgment denying the permit. This is an important ruling for cities, because SOS was essentially arguing for a different standard for permit review than exists in the law. If the lower court’s ruling had been upheld, the applicable standards for discharge permit approval would have been fundamentally altered.
Declaratory Judgment: City of El Paso v. Pickett, No. 08-21-00147-CV, 2022 WL 17974630 (Tex. App.—El Paso Dec. 28, 2022). Joseph Pickett sued the City of El Paso after the city increased the “environmental franchise fee” (EFF) charged to customers of El Paso Water. The ordinance creating the fee stated that it was charged in order to reimburse the city for the wear and tear on city streets caused by solid waste utility vehicles. In the city’s 2020 budget, EFF funds were allocated not only for street repair but for fire department vehicles and police department major capital equipment. Pickett petitioned the court for a declaratory judgment construing the city’s ordinances and whether the city could obtain funds for street maintenance and public safety equipment through a fee for solid waste disposal services. The city filed a plea to the jurisdiction claiming Pickett (1) lacked standing and (2) failed to plead a waiver of government immunity. The trial court denied the city’s plea, and the city appealed. To have standing, an individual must be able to show that (1) they are a taxpayer, and (2) public funds have been spent on an allegedly illegal activity. Being a property owner in the city, Pickett was a taxpayer, and because his allegations were related the validity of the city expenditure rather than validity of the EFF itself, the court found he satisfied the standing requirements. With regard to the city’s claim of immunity, the Uniform Declaratory Judgment Act contains a clear waiver of immunity for an action involving a municipal ordinance, so the appellate court overruled the city’s second issue as well.
Takings; Immunity: City of El Paso Tex. v. Torres, No. 08-22-00058-CV, 2022 WL 17986197 (Tex. App.—El Paso Dec. 29, 2022). Maria Torres owned property on La Senda Drive in El Paso, Texas. The City of El Paso resurfaced an adjacent roadway, and following the road work, Ms. Torres’ property flooded during a rainstorm. Water and mud entered her home, which she slipped on, fracturing her arm. She sued the city alleging that her property had been taken, damaged, or destroyed for public use as well as for personal injuries. The city filed a plea to the jurisdiction, asserting that Torres failed to state a viable taking claim and immunity from personal injury liability. The trial court denied the plea in its entirety. To state a viable takings claim, Torres needed to allege (1) an intentional act by the city acting under its lawful authority, (2) which resulted in the taking or damaging of property, (3) for public use. Analyzing the pleadings, the appellate court found that the city’s road work was intended to change the flow of water on the roadways, which allegedly increased the intensity of water flowing to the Torres’ home and resulted in significant damage to the property. Therefore, the appellate court found a property-pled takings claim and affirmed the trial court’s dismissal of the city’s plea on this ground. With regard to the city’s claim of governmental immunity from the personal injury claims, the appellate court reversed the trial court’s order. Torres claimed that the city’s alleged negligent act which caused her personal injuries was the city’s negligent design of the roadway. The Texas Tort Claims Act does not provide a waiver of governmental immunity for discretionary design decisions. Because immunity is not waived for these claims, the appellate court reversed the trial court and dismissed the claims for personal injury.
Immunity: Jarnail Sihota and GTHCC, Inc. v. City of Midland, No. 11-21-00171-CV, 2022 WL 17996996 (Tex. App.—Eastland Dec. 30, 2022) (mem. op.). After the city of Midland issued an order declaring Jarnail Sihota’s building to be substandard and requiring abatement action, Sihota obtained a building permit to begin making repairs. Several months later, the building repairs had not been completed so the city notified Sihota of its intent to demolish the building in accordance with the abatement order. As a result, Sihota sought emergency relief pursuant to the Texas Uniform Declaratory Judgment Act, and the city filed a plea to the jurisdiction claiming Sihota failed to timely appeal the abatement order as required by Local Government Code Section 214.0014 and claiming governmental immunity. Following a hearing, the trial court granted the city’s plea, and Sihota appealed, arguing the court should have invoked its equitable jurisdiction and estopped the city from the demolition because Sihota believed he had more than thirty days to complete the repairs and had invested $1.8 million on the project. In affirming the trial court’s order, the appellate court concluded that because Sihota failed to timely appeal the abatement order, the trial court was precluded from reaching a determination on the estoppel argument because it lacked subject matter jurisdiction.
Right-of-Way Obstructions: Torres v. Cameron Cnty., No. 13-20-00568-CV, 2022 WL 17844210 (Tex. App.—Corpus Christi–Edinburg Dec. 22, 2022.) (mem. op.). Torres built a fence within a couple of feet of a Harris County road, and the county sued for a declaration that the fence obstructed the road. The trial court declared that the road was properly in the area that had been expressly dedicated to the county and ordered Torres to remove all obstructions with the county’s 60-foot right-of-way. Torres appealed, claiming judgment not in conformity with the pleadings and legal and factual insufficiency.
The appellate court affirmed, holding that: (1) the written judgment controls over prior oral statements by the judge and the written judgment was in conformity; and (2) the county did present legally and factually significant evidence that the area had been expressly dedicated to the county.
Whistleblower Act: City of Pharr v. Bautista, No. 13-22-00278-CV, 2022 WL 17844214 (Tex. App.—Corpus Christi–Edinburg Dec. 22, 2022.) (mem. op.). Bautista sued the City of Pharr under the Whistleblower Act, claiming his termination was in retaliation for a report he made to the Texas Commission on Environmental Quality. The city filed a plea to the jurisdiction, arguing that Bautista had not filed his suit within the 90-day statutory limitations period after exhausting his administrative remedies with the city. The trial court denied the plea and the city appealed.
The appellate court affirmed, holding that because a letter from the city stating that Bautista’s appeal of his termination did not conclusively deny the appeal but merely stated the appeal’s deficiencies, a fact issue remained as to whether that letter constituted a final decision on appeal.