Recent Texas Cases of Interest to Cities

Note: Included cases are from December 1, 2023, through December 31, 2023.

Contracts: City of League City v. Galveston Cnty. Mun. Util. Dist. No. 6, No. 01-23-00007-CV, 2023 WL 8814635 (Tex. App.—Houston [1st Dist.] Dec. 21, 2023) (mem. op.). The Galveston County Municipal Utility District No. 6 (the MUD) and the City of League City entered a contract in which the city agreed to make certain payments to the MUD to fund the bonded indebtedness incurred by the MUD in the construction of facilities for a water and sewer system. Under the contract, the MUD agreed to expand the water, sewage, and drainage systems and the city agreed to take title to the improvements in phases, take over the maintenance of them, and make payments. Near the end of the 40-year term of the contract, the MUD issued a series of bonds without seeking approval from the city in contravention of the terms of the contract, and proposed another bond issuance, both of which the city objected to. The city and the MUD reached a settlement agreement over that dispute in which the city agreed to continue making payments to the MUD until 2024 and approved the MUD’s bond issuances. A dispute arose over the city’s payments to the MUD and the MUD sued the city for underpayment, delayed payments, and a unilateral offset of one payment taken by the city. The MUD sued for declaratory judgment and breach of contract.  The city filed a plea to the jurisdiction claiming governmental immunity, which the trial court denied. The city appealed.

The appellate court reversed in part and affirmed in part, holding that: (1) the contract was a contract for goods and services as defined by Chapter 271 of the Local Government Code, so the waiver of immunity in that chapter applied; and (2) the city was immune to a suit seeking declaratory judgment because Chapter 271 does not expressly waive immunity from suit for adjudicating a claim for declaratory relief.

Utility Fees: City of Pasadena v. APTVV, LLC, No. 01-20-00287-CV, 2023 WL 8814640 (Tex. App.—Houston [1st Dist.] Dec. 21, 2023) (mem. op.). Two apartment owners sued the City of Pasadena and two city officials seeking the repayment of fees paid to the city through a third-party utility and trash-collection billing. The third party added a 25 percent fee on nonresidential bills for trash-collection, which was then forwarded to the city in exchange for the exclusive right to collect trash in the city. The apartments owners alleged that the fee was an impermissible tax. The city moved for dismissal claiming government immunity and pointing to the failure of the apartment owners to identify a statutory waiver of immunity. The trial court denied the city’s motion and the city appealed.

The appellate court affirmed, holding that the apartment owners were not required to show a statutory waiver of immunity because no legislative consent to sue is needed when a plaintiff seeks reimbursement of an unlawful tax.

Tort Claims Act: City of Houston v. Huff, No. 01-22-00496-CV, 2023 WL 8938406 (Tex. App.—Houston [1st Dist.] Dec. 28, 2023) (mem. op.). Two City of Houston police officers made an improper left turn and struck a vehicle driven by Huff. Huff sued the city asserting negligence under the Texas Tort Claims Act (TTCA). The city filed a motion for summary judgment, claiming governmental immunity because Huff had failed to provide the city timely notice as required by the TTCA and the city’s charter. The trail court denied the motion and the city appealed.

The appellate court affirmed, holding that although Huff had not provided formal notice of his claim for personal injury, the city had actual notice of Huff’s possible injuries due to Huff lying in the road complaining of injuries and being carried away on a backboard, and the city had actual notice of the officers’ alleged fault in contributing to the injury because the city’s accident report expressly assigned fault to the officers.

Tort Claims Act: City of Houston v. Cruz, No. 01-22-00647-CV, 2023 WL 8938408 (Tex. App.—Houston [1st Dist.] Dec. 28, 2023) (mem. op.). Cruz sued the City of Houston under the Texas Tort Claims Act (TTCA) when the car she was driving collided with a vehicle driven by Jamison, an animal control officer who was responding to a call about an animal bite. Jamison’s view was partially blocked by a dump truck, but she proceeded into the intersection and was struck by Cruz’s vehicle. The city filed a motion for summary judgment claiming governmental immunity, and the trial court denied the motion. The city appealed, arguing that it was entitled to government immunity because Jamison did not breach a legal duty as required to trigger the wavier of immunity under the TTCA, the TTCA’s emergency exception applied because Jamison was responding to an animal bite when the collision occurred, and the TTCA does not waive immunity for negligence per se.

The appellate court affirmed, holding that: (1) there was an issue of fact as to whether Jamison breached a legal duty by proceeding into the intersection with her view partially blocked; (2) the city did not meet its burden to establish the applicability of the emergency exception to the TTCA’s waiver of immunity; and (3) negligence per se is not a separate claim, but a method of proving negligence, and because Cruz had adequately alleged negligence under the TTCA she was not required to establish a separate waiver for negligence per se.

Immunity: Town of Little Elm v. Climer, No. 02-23-00250-CV, 2023 WL 8467513 (Tex. App.—Fort Worth Dec. 7, 2023) (mem. op.). Climer filed a negligence suit against the Town of Little Elm for injuries he received when he fell from his bicycle on a concrete pathway subject to the town’s control, asserting that he did not see the hole in the concrete prior to his fall.  In its plea to the jurisdiction, Little Elm stated that it was aware of the condition of the pathway, had closed that section of the pathway to conduct an investigation prior to repairing the pathway, and it had checked the trail weekly and warned users of the condition of the trail. The trial court denied the plea, and Little Elm appealed.  The court of appeals reversed the trial court’s order, finding that Little Elm’s decision to close the damaged portion of the trail and conduct a geotechnical distress investigation prior to repairing the pathway was a discretionary decision protected by governmental immunity.  Further, the court determined that Climer’s factual allegations did not establish gross negligence as Little Elm presented evidence that it erected barricades to protect the public.

Employment Discrimination: Tex. Workforce Comm’n v. Seymore, No. 02-23-00036-CV, 2023 WL 8467373 (Tex. App.—Fort Worth Dec. 7, 2023) (mem. op.). The Texas Workforce Commission (Commission) challenged the trial court’s denial of its plea to the jurisdiction asserting that Seymore’s discrimination and retaliation claims should have been dismissed because there was no evidence that it failed to provide a reasonable accommodation for Seymore’s disability, no evidence that it constructively terminated her employment, and no evidence that it paid her less than similarly situated white employees.

The court of appeals reversed finding that: (1) the breakdown of the interactive process was attributable to Seymore as she unilaterally withdrew from the interactive process when she resigned when the accommodation negotiations had been ongoing for seven months; (2) there was no evidence that the Commission forced her to resign so as to create a constructive discharge claim; and (3) Seymore did not establish a prima facie case of race-based disparate-pay discrimination.

Employment Law:  Leonard v. City of Burkburnett, No. 02-22-00266-CV, 2023 WL 8940816 (Tex. App.—Fort Worth Dec. 28, 2023) (mem. op.).  Following the filing of motions for rehearing by both parties, the court withdrew its November 2, 2023, opinion and substituted it with this opinion to clarify its holding on Leonard’s claim based on Section 614.023(c) of the Government Code.

Following his termination of employment as a police officer with the city, Leonard filed a lawsuit against the city and two city officials, alleging the following: (1) denial of his rights without due course of law; (2) denial of equal protection under the law; (3) denial of his right to free speech; (4) denial of his right to freely associate and assemble; (5) wrongful termination; (6) denial of his right to petition; (7) violation of section 617.005 of the Government Code because no hearing was held and no one in a position of authority seriously considered his appeal; (8) civil conspiracy; (9) official oppression by the two officials; and (10) violations of the Texas Open Meetings Act. Leonard sought declaratory relief, injunctive relief, mandamus relief, and attorney’s fees, but he expressly denied “seeking money damages.” The city filed pleas to the jurisdiction, requesting dismissal for lack of subject matter jurisdiction.  The trial court granted the pleas, and Leonard appealed.

The appellate court affirmed in part and reversed and remanded in part.  Specifically, the court noted that no authority requires a full-blown hearing under Section 617.005 of the Government Code. The court remanded the following claims to the trial court: (1) that the city violated Leonard’s rights to free speech and assembly by wrongfully terminating his employment because of his support of civil-service implementation at the police department and related involvement in the police association; and (2) that one of the city officials failed to comply with Section 614.023(c) of the Government before terminating Leonard’s employment.  The court also remanded the case so that Leonard may be given the opportunity to replead his equal-protection and due-course-of-law claims and the claim that he is entitled to additional rights pursuant to the “formal appeal procedure” delineated in the city’s personnel handbook. The court affirmed the remainder of the trial court’s judgement.

Tort Claims Act: Trevino v. City of San Antonio, No. 04-22-00193-CV, 2023 WL 8607040 (Tex. App.—San Antonio Dec. 13, 2023). A city police officer was pursuing a suspect who stole a truck with activated sirens and emergency lights when the suspect hit the plaintiff’s car, injuring the plaintiff and killing a passenger in the plaintiff’s car. Plaintiff sued and the city filed a plea to the jurisdiction on three grounds, which the trial court granted. The plaintiff appealed. The appellate court affirmed the trial court because the plaintiff failed to address all grounds for the city’s plea to the jurisdiction.

Emergency Orders: Carlin v. Bexar County, et al., No. 04-22-00427-CV, 2023 WL 8793095 (Tex. App.—San Antonio Dec. 20, 2023) (mem. op.). Carlin filed a suit against county defendants alleging minimum health standard protocols issued by Bexar County judge regarding masking violated the Texas Religious Freedom Restoration Act (TRFRA). The county defendants filed motions to dismiss on the grounds of sovereign and government immunity and on the grounds that Carlin had not complied with the pre-suit notice provisions under TRFRA. The trial court granted the motions and Carlin appealed.

On appeal, the court rejected Carlin’s argument that he did not need to provide notice if the substantial burden on his free exercise of religion was eminent. The appellate court affirmed the grant of the motions and found the trial court did not err in dismissing the claims with prejudice.

Department of Transportation v. Sonefeld, No. 07-22-00307-CV, 2023 WL 8856215 (Tex. App.—Amarillo Dec. 21, 2023) (mem. op.). This is a lawsuit over whether a four to six inch deep, six to seven inch wide, and up to two-hundred-foot-long separation in the road is a special defect. The plaintiff was injured when his motorcycle wheel got stuck in the separation on the road. The trial court granted his motion for summary judgment finding the separation was a special defect, and the case proceeded to a jury trial based upon the special defect. TxDOT appealed the verdict on the grounds that the separation was not a special defect.

The appellate court affirmed the judgment and: (1) overruled TxDOT’s argument that the defect could have been avoided so it was not an impediment to an ordinary user of the road; and (2) overruled TxDOT’s argument that the trial evidence was insufficient to demonstrate the separation existed for so long to reasonably discover the existence of the condition and make the condition reasonably safe.

Jurisdiction: Holda v. City of Waco, No. 07-23-00341-CV, 2023 WL 8939230 (Tex. App.—Amarillo Dec. 27, 2023) (mem. op.). The city seized the plaintiff’s animals based on animal cruelty. The plaintiff did not appear at the municipal court hearing to determine if the animals had been cruelly treated and the municipal court issued an order divesting the plaintiff of her ownership of the animals. The plaintiff appealed to the county court and the county court issued a de novo order affirming all of the findings of the municipal court. The plaintiff appealed.

The plaintiff claimed the appellate court had jurisdiction under the federal Servicemembers’ Civil Relief Act, which protects servicemembers from default judgment, and that the SCRA preempts the Texas law governing the animal cruelty case. The appellate court rejected the plaintiff’s argument that the state law actually conflicts with the federal law because the plaintiff still had the option of filing a bill of review in the state trial court.

Tort Claims Act: Texas Civil Service Act: City of Beaumont v. Fenter, No. 09-22-00413-CV, 2023 WL 8817684 (Tex. App.—Beaumont Dec. 21, 2023) (mem. op.). Fenter, an EMT with the City of Beaumont, sued the city and the city manager for a declaration that Fenter was a “firefighter” for purposes of the Civil Service Act. Fenter moved for summary judgment for a declaration that he was a firefighter under the Civil Service Act and the trial court granted his motion. The city filed a plea to the jurisdiction, claiming immunity for itself and the city manager. The trial court granted the city’s plea with respect to the city but denied it with respect to the city manager. The city appealed.

The appellate court affirmed in part and reversed and remanded in part, holding that the trial court should not have decided Fenter’s motion for summary judgment because Fenter’s pleadings were insufficient to show that the city manager’s immunity from suit was waived based on his ultra vires act of failing to classify Fenter as a firefighter. Because Fenter’s pleadings did not affirmatively negate jurisdiction, the court remanded the case to the trial court to allow Fenter to replead.

Employment Discrimination: City of Pharr v. De Leon, No. 13-23-00033-CV, 2023 WL 8642683 (Tex. App.—Corpus Christi–Edinburg Dec. 14, 2023) (mem. op.). DeLeon sued the City of Pharr for employment discrimination, alleging that the city failed to provide reasonable accommodations for his disability. He also sued under the Whistleblower Act, claiming the city terminated him in retaliation for a report he made to the Texas Commission on Environmental Quality (TCEQ) about a wastewater spill, and under the Texas Commission on Human Rights Act (TCHRA), claiming the city denied his appeal of his termination in retaliation for a report he made to the Texas Workforce Commission. The city filed a plea to the jurisdiction and a motion for summary judgment, which the trial court denied. The city appealed.

The appellate court affirmed in part and reversed in part, holding that: (1) DeLeon had alleged a prima facie case of disability discrimination; (2) DeLeon’s TCHRA claim failed because the denial of his appeal of his termination did not constitute an adverse employment action within the meaning of the Act; and (3) DeLeon’s Whistleblower claim survived because he was entitled to a presumption that his report to the TCEQ was the cause of his termination.

Eminent Domain: JRJ Pusok Holdings, LLC v. State, No. 14-22-00559-CV, 2023 WL 8939318 (Tex. App.—Houston [14th Dist.] Dec. 28, 2023). In 2013, the Texas Department of Transportation (State) approached Joyce Hutcherson, Rudolph Pusok, and Jimmie Pusok (Owners) with an intent to acquire part of their property for a highway project. The State offered to buy the property for over $496,000, which the Owners rejected. After negotiations failed, the State initiated condemnation proceedings; however, a settlement was quickly reached, and the Owners sold the property to the State for over $680,000 and signed special warranty deeds and Rule 11 agreements, stating they would not seek further compensation.  Years later, the Owners inquired about the status of the property, suspecting that part of it had become surplus due to project rerouting. They sought to repurchase this surplus property under Texas Property Code Chapter 21, which allows repurchase at the original eminent domain price if the property is no longer needed for public use. The State declined the repurchase request, arguing that the property was acquired through settlement, not eminent domain, and hence Chapter 21 did not apply. The Owners sued the State, asserting, among other things, violations of Chapter 21. The State filed a plea to the jurisdiction, which the trial court granted, dismissing the case with prejudice. The Owners appealed.

While other aspects of the case were also appealed, it is the court’s analysis of the Owners’ repurchase rights following condemnation that are most interesting. The court considered whether Chapter 21 waives the State’s immunity from suit for claims based on the right of repurchase. While Chapter 21 contains no explicit waiver language, the court agreed that it implicitly allows for such suits. Central to the case was the definition of “eminent domain,” with the State arguing that property is only acquired through eminent domain following a specific legal process culminating in a court judgment. However, the court, referencing common law and Black’s Law Dictionary, determined that eminent domain does not require a judicial decree and occurs when property is taken for public use with compensation. The court concluded that the nature of the instant property acquisition remained eminent domain despite the eventual settlement to avoid litigation. The involuntary nature of the transaction and the compensation involved underscored this conclusion. Ultimately, the court concluded that the Owners presented a valid waiver of immunity under Chapter 21; therefore, the trial court’s granting of the State’s plea to the jurisdiction was deemed erroneous.