Recent Texas Cases of Interest to Cities

Note: Included cases are from June 11, 2017 through July 10, 2017.

Same-Sex Marriage Employment Benefits: Pidgeon  v. Turner, No. 15-0688, 2017 WL 2829350 (Tex. June 30, 2017). Jack Pidgeon and Larry Hicks (Pidgeon) sued the City of Houston and former mayor when the former mayor sent a directive to the city’s human resource director directing that benefits be afforded to same-sex spouses of city employees that are legally married in another jurisdiction based on the ruling in United States v. Windsor,133 S.Ct. 2675, 2689 (2013).  Pidgeon, a tax-payer and qualified voter, argued the city was expending public funds on an illegal activity by allowing same-sex spouses to receive city benefits because the Texas Constitution, Texas Family Code (the Defense of Marriage Act or DOMA), and city charter provide that marriage is between a man and a woman.

The case was on interlocutory appeal to the Fourteenth Court of Appeals (COA) when the United States Supreme Court ruled in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which held that states may not exclude same-sex couples from civil marriages.  After Obergefell, the COA reversed the temporary injunction that the trial court had imposed while the case was on interlocutory appeal and remanded the case back to trial court for further proceedings. The COA decision was appealed to the Texas Supreme Court (court).

The court first explained its jurisdiction over interlocutory appeals.  It is only able to review such a decision if: (1) one or more justices dissented; or (2) the court of appeals holds a different opinion than prior decisions of another court of appeals or the Texas Supreme Court.  The court ultimately concluded that it did have jurisdiction here.

The court went through Pidgeon’s substantive arguments one at a time.  First, was the use of the De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015), case. Pidgeon argued that by instructing the trial court to conduct further proceedings “consistent with” De Leon, the COAs’ opinion could be misread to mean that De Leon is binding on the trial court.  The court stated that De Leon was not binding on the trial court and that the COA should not have instructed the trial court to conduct further proceeding consistent with the case.  However, the Court stated that the trial court should consider De Leon when resolving this case in that it could potentially affect the relief the trial court might provide on remand.

Pidgeon’s second argument was that by the COA reversing the trial court’s temporary injunction instead of vacating or dissolving it, the judgment might be taken to have a res-judicata effect prohibiting Pidgeon from seeking or obtaining the same or similar relief on remand.  The court stated that Pidgeon is not precluded from seeking the same or similar relief because, even though Texas appellate courts have held that the dissolution of a temporary injunction bars a second application for such relief, a change in the circumstances since the first application does not bar a second application. A change in the law, such as the Obergefell case, would be considered a change in the circumstances. Therefore, the trial court must consider Pidgeon’s and the city’s arguments regarding the effect of Obergefell on Pidgeon’s claim and may grant whatever relief is then appropriate.

Pidgeon’s next argument was that the COA should have affirmed the temporary injunction to the extent that the injunction required the city to “claw back” tax dollars it expended on benefits for same-sex spouses prior to Obergefell.  The court found Pidgeon’s and the city’s arguments compelling on this issue, but found two things prevented them from making a decision on this issue.  First, Pidgeon did not request an injunction requiring the city to claw back benefits that were provided before Obergefell. Second, the trial court never granted such an injunction.  The temporary injunction in this case was to prohibit the city from furnishing benefits to a person who was married in other jurisdictions to city employees of the same-sex.  It was to preserve the status quo.  The court could not conclude that the COA erred by failing to preserve an injunction that never had a claw back provision.  Also, the court could not express an opinion on whether Pidgeon had standing to seek such an injunction, but agreed with Pidgeon that the COA opinion and judgment do not prohibit Pidgeon from seeking such an injunction on any other relief on remand.

Lastly, Pidgeon urged the court to instruct the trial court to narrowly construe and not expand Obergefell on remand. The city agrees that the case should be remanded, but contends that Pidgeon lacks standing to challenge the mayor’s directive under Obergefell and rejects that Texas courts can narrowly construe Obergefell.  The court concluded that the parties are entitled to a full and fair opportunity to litigate their positions on remand, but refused to instruct the trial court on how to construe Obergefell. The court also addressed amicus briefs asking the court to make a decision on the merits of this case on this interlocutory appeal.  The court declined to do so, since the parties have not actually had a full and fair opportunity to litigate their positions.

The court also addressed the city’s and mayor’s interlocutory appeals from the trial court’s orders denying their pleas to the jurisdiction based on governmental immunity. Both pleas were denied before Obergefell. Obergefell might be crucial to deciding if the mayor, in her official capacity, was acting without legal authority (ultra-vires).  Governmental immunity does not bar ultra-vires claims. The city is not a proper party for ultra-vires claims. The city also claims that Pidgeon failed to plead or establish any waiver of the city’s immunity. The court stated that, on remand, Pidgeon will have the opportunity to replead his claims against the city and the city will have the opportunity to file a new plea to the jurisdiction as to any such claims.

Torts Claim Act: Martinez v. Harris Cty., No. 01-16-00140-CV, 2017 WL 2560985 (Tex. App.—Houston [1st Dist.] June 13, 2017). This is a Texas Tort Claims Act/police chase case where the First District Court of Appeals affirmed the dismissal of the plaintiffs’ claims.

Harris County Deputy Constable Johnson was on patrol when he encountered a high-speed police pursuit in progress.  The chase was originally initiated by a City of Houston Police Department motorcycle officer, which Johnson observed in pursuit of a Dodge Caliber. Because the county and the city used different radio systems, Johnson could not communicate with the motorcycle officer directly. However, Johnson took the lead in the pursuit, in compliance with the Harris County guidelines which provided that a constable in a cruiser generally should take over any pursuit initiated by a law-enforcement officer on a motorcycle. While Johnson was unaware of what had caused the initiation of the pursuit, he was able to observe objective factors indicating the fleeing driver apparently was committing the felony offense of evading arrest or detention.  The record also reflected Johnson observed the fleeing driver posed a danger to the general public at various points, which the court outlined in the opinion.  The record also reflected Johnson continually reevaluated the need to pursue the fleeing driver and the risks involved throughout the pursuit. When Johnson attempted to follow the suspect as he made an unexpected turn, Johnson struck Martinez’s car causing injuries to her and her children. They sued the county for the injuries. The county filed a motion for summary judgment, which the trial court granted. The plaintiffs appealed.

The county’s immunity turned on the good faith actions of Johnson. The Texas Tort Claims Act waives immunity for negligent acts of an employee when using a motor-driven vehicle in the scope of employment, so long as the employee would be liable personally.  If Johnson is entitled to official immunity he would not be personally liable. Good faith is measured against a standard of objective reasonableness. The employee’s subjective state of mind or motive is irrelevant. The test is whether a reasonably prudent officer in like circumstances could have believed that the need for the officer’s actions outweighed a clear risk of harm to the public.  The court focused on the fact that the analysis is limited to known risks, not risks discovered later. It is akin to the standard of review for abuse of discretion; only those who are plainly incompetent or knowingly violate the law lack the good faith necessary to be shielded by official immunity. The court went into the specifics in the record regarding Johnson’s evaluations, what he saw, what a typical officer’s thoughts processes would be, and the detail of the analysis. This included affidavits from Johnson as well as other law enforcement officials and experts. Johnson’s affidavit described risks he observed and his efforts to mitigate them. Johnson did not initiate pursuit but joined an existing one. His decision to join or not join does not alter the risk factors in the beginning. In fact, by joining the pursuit and taking lead, Johnson, who was in a cruiser, mitigated the risk to the motorcycle officer who was in a more vulnerable position. The fact Johnson did not know the purpose of the pursuit, or was unaware the motorcycle officer discontinued the pursuit moments before the collision is immaterial. Facts outside of the officer’s knowledge are not relevant to an evaluation of his good faith. Law enforcement officers frequently must make quick decisions based on limited information. Confronted with a high-speed chase involving a vulnerable motorcycle officer, Johnson made the decision to join the pursuit within a few seconds, and his decision to do so was consistent with his employer’s policy. His multiple decisions to continue pursuit were supported at different points in the record. As a result, the county conclusively established a reasonable officer, in similar circumstances, could have believed the actions taken were proper. Johnson is entitled to official immunity thereby entitling the county to dismissal. The remaining portion of the opinion addresses issues raised by the dissent.

Justice Higley dissented. While conceding Johnson’s original decision to join the pursuit may have been justified, the lack of knowledge regarding the purpose of the pursuit, in her mind, should have caused an uninformed officer to discontinue. In her opinion, the decision to continue without sufficient knowledge negates good faith.*

Sovereign Immunity:  Sarigollu v. City of Arlington, No. 02-16-00413-CV, 2017 WL 2687537 (Tex. App.—Fort Worth June 22, 2017) (mem. op.). Sarigollu sued the City of Arlington for negligence, exemplary damages for gross negligence, and intention infliction of mental distress from the “misleading ‘claims’ process used by” the city for a sewage leak in Sarigollu’s home because of a blockage in the city’s sewer system. At the trial court, the city filed a motion for partial summary judgement on the exemplary damages claim asserting that it had immunity. The city also filed a motion for summary judgment on Sarigollu’s negligence claims, alleging that the trial court did not have jurisdiction because none of the claims fell within the waiver of governmental immunity under Section 101.021 of the Texas Tort Claims Act (TTCA). The trial court granted the city’s summary judgment, holding it did not have jurisdiction in this case because the city had immunity for its performance of governmental functions based on the TTCA and there was no waiver of immunity. Sarigollu appealed.

The court of appeals reviewed the law concerning pleas to the jurisdiction and immunity of cities.  The court stated that the plaintiff has the burden of alleging facts that affirmatively demonstrate that the trial court has subject matter jurisdiction.  The plaintiff has to allege facts that affirmatively demonstrate that the legislature has waived immunity for the claims brought in a case where the governmental entity has immunity from suit.  Also, the court stated that a city is liable for torts arising from the exercise of a proprietary function, but it is generally immune from suit and from liability for torts arising from the exercise of its governmental functions, except for the limited waiver provided by the TTCA.  Section 101.0215 of the Texas Civil Practice and Remedies sets out a nonexclusive list of governmental functions.

In this case, Sarigollu argued that the trial court erred in granting the city’s motion for summary judgment in his negligence claims because TTCA Section 101.0215 makes a city liable for damages arising from its governmental functions, including health and sanitation services, sanitary and storm sewers, and water and sewer service. The city countered that the statute’s use of the phrase “under this chapter” in Section 101.0215 is not a waiver of immunity; rather, the language indicates that, before a city may be liable for the performance of a governmental function listed in the section, the plaintiff must still establish a waiver of immunity under Section 101.021 of the TTCA.  The court applied the plain language of the statute and agreed with the City of Arlington that a city is liable for it performance of governmental function listed in Section 101.0215 only if the TTCA otherwise waives immunity.

The court stated that there was no disagreement between the parties that the city was performing a governmental function. But, the court did not believe that Sarigollu alleged facts necessary to prove the trial court erred. First, the court took up Sarigollu’s allegation that the city failed to: perform proper and timely inspection of the sewer system in his neighborhood, keep proper maps or diagrams of the sewer system so the problem could be quickly discovered, and properly train city employees. The court stated that the TTCA waives immunity for premise defect claims only “if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” Texas Civil Practice and Remedies Code Section 101.012(2) and these claims did not allege an injury from the condition or use of real property necessary to prove a premise defect under the TTCA.

Second, the court held that Sarigollu’s allegation that the city’s failure to maintain the sewer system was negligence which caused his damages was not proven because the failure to maintain property is not itself a dangerous condition.  At the most, the court said that the failure to maintain could furnish a condition that makes injury possible.

Last was Sarigollu’s allegation that the city failed to locate and repair the blockage in a timely manner.  The court, reading Sarigollu’s pleading “very liberally”, did not agree that the city had a duty as a licensee to warn him of the sewer blockage and make the supposed dangerous condition reasonably safe because the city did not cause the blockage or know of the blockage.  The city had no knowledge of the blockage until Sarigollu called about the sewage back up. Therefore, the court affirmed the trial court’s granting of the city’s motion for summary judgment and dismissed Sarigollu’s claims for lack of jurisdiction.

Governmental Immunity/Open Meetings: City of New Braunfels v. Carowest Land, Ltd., No. 03-16-00249-CV, 2017 WL 2857142 (Tex. App.—Austin June 29, 2017). In this appeal, the City of New Braunfels challenged the trial court’s subject matter jurisdiction over the claims by Carowest Land Limited (Carowest).

This case involves the City of New Braunfels’ awarding of a contract to Yantis Company to serve as the contractor on a flood-control project. It is among a series of cases between Carowest, the city, and Yantis. The City of New Braunfels entered into a Rule 11 agreement with Yantis as part of the 2010 lawsuit brought by Carowest against the city and Yantis. The agreement provided that Yantis would fully release the city from Yantis’ asserted delay claim, but if the contract was not awarded to Yantis at the council meeting to be held that night, then the offer would be withdrawn.

During the council meeting, the city council went into a closed meeting immediately prior to consideration of the award of the contract without announcing the statutory basis for the meeting. After the closed meeting concluded, the mayor stated that the council went into executive session under “Item C, deliberate pending/contemplated litigation, settlement offers, and matters concerning privileged and unprivileged client information.” The city council then discussed the award of the contract and voted to award the contract to Yantis. The city provided a copy of the Rule 11 agreement to Carowest, who then filed amended pleadings to include declarations that the contract was void based on the city’s violation of the Texas Open Meetings Act (TOMA) and competitive bidding requirements. The trial court granted a directed verdict on Carowest’s declaratory judgment claim related to the city’s TOMA violation, and the jury found that the city failed to award the contract to the lowest bidder. The jury also found that the agenda for the meeting did not provide “full and adequate notice that the City Council would be considering the Carowest/Yantis suit.” The City of New Braunfels appealed.

The city argued that Carowest’s claims against the city are barred by governmental immunity and, thus, the trial court lacked subject matter jurisdiction. The Austin Court of Appeals cited Zachry Constr. Corp. v. Port of Houston Authority, in noting that the types of relief expressly made available by statue operate as the boundaries for a statute’s waiver of immunity. Because Section 551.142 of TOMA and Section 252.061 of the Texas Local Government Code set the boundaries of their waivers of immunity (injunctive and mandamus relief), the declaratory relief that Carowest sought is barred by governmental immunity.

The court held that the trial court did not have subject matter jurisdiction of Carowest’s declaratory judgment act claims, so the court vacated the trial court’s judgment. Because the prevailing parties changed on appeals, the court remanded the issue of attorney’s fees and costs to the trial court for reconsideration.

Dangerous Dogs: Wrencher v. State, No. 03-15-00438-CV, 2017 WL 2628068 (Tex. App.—Austin June 16, 2017) (mem. op.). This case involves jurisdiction for a civil appeal from municipal court which pinpoints statutory problems existing with certain appeals in certain counties. This issue is part of the reason behind H.B. 4147, which becomes effective September 1, 2017.

Wrencher’s dog “Skip” was declared a dangerous dog by the City of Austin Municipal Court and Wrencher attempted to appeal to county court. Texas Health and Safety Code Sections 822.0421(b) and 822.0423(d) authorize an appeal from a “dangerous dog” determination and provide that the owner of the claimed dangerous dog may appeal in the manner provided for the appeal of other cases from the municipal court.  Texas Government Code Section 30.00014(a) provides a “defendant” has the right to appeal a “judgment or conviction” to county court.  The County Court #8 dismissed the appeal for lack of jurisdiction either adopting the state’s argument that the section only applied to criminal matters or that no defendant was present.  Wrencher appealed.

A line of prior cases, starting with In re Loban, held that when a county did not have a county court at law which had civil jurisdiction, no jurisdiction existed for any dangerous dog appeals. However, the Third Court of Appeals held in this case that while County Court #8 was directed to give preference to criminal cases, its creation, like all other county courts at law in Travis County, was statutorily granted civil jurisdiction. [Comment: not all counties have county courts at law with joint civil or criminal jurisdiction. Some only have criminal jurisdiction.]  Under Section 30.00014, the appellate court concluded that a “defendant” is a person against whom a civil or criminal action is brought, noting the Section also refers to a “judgment or conviction”, supporting the conclusion that a person is to appeal a civil judgment to county court. As a result, Wrencher has the ability to appeal the dangerous dog determination to County Court #8.

And while not discussed in the opinion, be aware, H.B. 4147 changes Section 30.00014(a) by adding the following: “If a county does not have a county court at law under Chapter 25, the county court has jurisdiction of any appeal.”  This has the effect of providing that constitutional county courts have jurisdiction if no statutorily created county courts are present in the county. It does not appear to address the situation where a county court at law exists, but the courts have only criminal jurisdiction.*

Tort Claims: City of El Paso v. Viel, No. 08-16-00177-CV, 2017 WL 2823901 (Tex. App.—El Paso June 30, 2017). This is an accelerated interlocutory appeal filed by the city from the trial court’s denial of the city’s plea to the jurisdiction.

Viel filed suit against the city due to injuries he sustained when an overhead rolling service door collapsed on him while he was working for an air cargo business that leased a portion of a cargo warehouse owned by the city on its airport property.  The city argued that because it was engaged in a governmental function in leasing the warehouse, all of Viel’s claims had to comply with the requirements of the Texas Tort Claims Act (Act); that Viel didn’t comply with pre-suit notice requirements of the Act; that Viel failed to establish a premises defect claim or a tangible personal property claim under the Act; that all claims filed outside the Act were barred by immunity; and that exemplary damages are not permitted under the Act.

The appellate court agreed that the city was engaged in a governmental function in leasing the cargo warehouse, as statutorily permitted under Transportation Code Section 22.021(a)(1). Thus, the city retained immunity except to the extent waived by the Act.

As to the pre-suit notice claim, the court concluded that the evidence raised a factual issue as to whether the city had subjective awareness of its fault contributing or producing the injury thus, excusing Viel from providing formal notice.

The court ultimately affirmed the trial court’s order denying the plea to the jurisdiction on all other claims except the premises defect claim. As to that claim, the appellate court found that the evidence raised a factual dispute as to whether the city retained control over repair and maintenance of the door, and that a fact question remained on the issue of the city’s liability for a premises defect. Thus, the trial court’s order was affirmed and the case remanded to the trial court for further proceedings on that claim.

Red Light Cameras: City of Willis v. Garcia, No. 09-16-00164-CV, 2017 WL 2871414 (Tex. App.—Beaumont July 6, 2017).  This is an accelerated appeal of an interlocutory trial court order denying the city’s plea to the jurisdiction where the Ninth Court of Appeals reverses and renders judgment for the city.

Garcia sued the city on behalf of himself and “others similarly situated” who have paid a civil penalty under the city’s red light camera ordinance; other individual plaintiffs subsequently joined the suit. Plaintiffs challenged the constitutionality of the state red light law (Transportation Code Chapter 707 and Government Code Section 29.003(g)) and the validity of the ordinance (plaintiffs argued the city failed to comply with Chapter 707 because it didn’t conduct a traffic engineering study before installing the cameras).

As required by Chapter 707 the city’s ordinance provides for an administrative adjudication procedure to contest the imposition of a civil penalty. None of the plaintiffs initiated the administrative process. The city filed a plea to the jurisdiction which was denied by the trial court.

The city appealed, arguing that plaintiffs failed to exhaust their administrative remedies and that their claims are barred by governmental immunity.

Agreeing with Edwards v. City of Tomball, 343 S.W.3d 213 (Tex. App.—Houston [14th] 2011, no pet.), the appellate court held that a city that sets up a Chapter 707 red light enforcement program must establish an exclusive administrative procedure to handle disputes related to the program.  And even if the city failed to conduct a traffic engineering study before installing the cameras, such an irregularity does not allow a party to completely circumvent or ignore the administrative procedures. And after disposing of several of plaintiffs other arguments, the court explained that exhaustion of remedies can even be required before raising constitutional claims where, as here, the legislature has provided in the governing statute that the administrative remedies are the exclusive means for remedying issues related to the scheme.

The trial court’s order is reversed. The appellate court doesn’t address plaintiffs’ arguments as to the constitutionality of the state law or the validity of the city red light camera ordinance.

Collective Bargaining: Jefferson Cty. v. Stines, No. 09-16-00058-CV, 2017 WL 2698094 (Tex. App.—Beaumont June 22, 2017). This is a collective bargaining case to compel arbitration where the Beaumont Court of Appeals reversed the denial of Jefferson County’s plea to the jurisdiction and dismissed the case. Warning, if you want to read this opinion, it’s 74 pages long, including the dissent. However, it provides an in-depth analysis of Chapter 174 language regarding contracting power, “police department” and governmental immunity. So the summary is also very long.

The Jefferson County Deputy Constables Association (association), Jefferson County (county)  and various constable precincts entered into a collective bargaining agreement (agreement) set to end in September 2014. Article 25 of the Agreement governs disciplinary actions taken by the constable against deputy constables. Stines, a former deputy constable, filed suit against the county after he was later terminated.  Stines attempted to compel binding arbitration. The county refused.  Stines sought a declaratory judgment and mandamus action to compel arbitration. The county filed a plea to the jurisdiction which the trial court denied. At the same time, the trial court granted Stines’s motion for summary judgment and ordered arbitration. The county appealed.

The court first noted that a trial court’s prejudgment letter (which occurred in this case) is not necessarily competent evidence of the basis for its judgment. However, the trial court in the present case did not enter formal findings of fact and conclusions of law specifically relating to its ruling on the county’s plea to the jurisdiction so did not disclaim the basis set forth in the letter ruling. As a result, it will hold the trial court to the basis of the judgment spelled out in the letter.

Next, the court held a governmental entity such as the county retains immunity from suit even after entering into a contract, absent a statutory waiver.  The Uniform Declaratory Judgment Act (UDJA) is not a blanket waiver of immunity. Claims, including those for declaratory judgment, that seek to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities are claims that attempt to control state action by imposing liability on the entity. Such claims are barred by governmental immunity. Stines’s UDJA claims “as to the applicability of Chapter 174 of the [Texas Local Government Code] to deputy constables” are actually claims for a declaration of the parties’ contractual rights and obligations under the agreement. They are therefore barred. Likewise, Stines’s mandamus claim seeks to compel the county to perform its alleged contractual obligations and are barred.

Chapter 174 of the Texas Local Government Code, titled the Fire and Police Employee Relations Act (FPERA), waives immunity for proper claims brought within its scope. As a general rule, “Texas law prohibits a state political subdivision from collective bargaining with public employees” unless there is express statutory authority. So the question becomes whether FPERA encompasses the constables. The FPERA specifically permits “fire fighters, police officers, or both . . . to organize and bargain collectively with their public employer . . .” upon the adoption of the FPERA by a political subdivision.  For a claim to be brought under Section 174.251 of FPERA, it must, among other things, be asserted by “a party aggrieved by an act or omission of the other party that relates to the rights or duties under [the FPERA.]”

The county asserts constables are not “police officers” under the definition of FPERA. The FPERA defines the term “police officer” to mean “a paid employee who is sworn, certified, and full-time, and who regularly serves in a professional law enforcement capacity in the police department of a political subdivision.” There is a current split in the Texas circuits as to whether constables are a “police department” of a political subdivision. Most courts acknowledge that a sheriff’s office is a “police department” as the wording notes a single entity with a department of enforcement. However, as to constables’ offices, the San Antonio Court of Appeals says they are not a “police department” and the Corpus Christi Court of Appeals says they are. After an extremely lengthy statutory construction analysis, the court held the phrase “the police department of a political subdivision” refers only to the department of law enforcement officers of a political subdivision who provide “essential and emergency” services to the public and whose absence due to strikes, lockouts, work stoppages, or slowdowns would cause injury to “the health, safety, and welfare of the public.”  The sheriff’s department is the department charged with such duties and obligations and is a “police department” but a constable’s office is not. While constables are law enforcement individuals, the court finds the county constable’s office is not a department of a county that provides the critical, emergency services to the public that are contemplated by the FPERA. Given the statutory duties of a constable’s office, in comparison with the sheriff’s department, a strike of the constable’s would not pose a health and safety hazard to the general public. Stines’s claims under FPERA are therefore barred by governmental immunity.

The court recognized that its holding essentially means the county entered into a contract it was not legally allowed to sign. But that does not waive immunity. Even if the language in the agreement on which Stines relied could properly be construed as an agreement between the parties to waive the county’s immunity from suit, it does not constitute a waiver of immunity by the legislature. Only the legislature, not contracting parties, may waive immunity. Therefore, the court declined to recognize the “waiver-by-conduct” exception to immunity from suit. However, even if that were not the case, and jurisdiction existed, Subchapter E’s arbitration provisions of FPERA apply only to arbitration for collective bargaining impasses; they do not apply to arbitration of disputes pursuant to the contractual terms of a fully-negotiated collective bargaining agreement. As a result, Stines would still lose as the arbitration provision does not apply to termination disputes.

Justice Johnson dissented. She believes constables’ offices do qualify as a “police department” of the county and are entitled to collectively bargain. She asserts the majority opinion focused on the statutory duties and did not examine the record to determine if the constables factually performed such duties. She also disagreed with the lengthy statutory construction analysis.*

Forcible Detainer: Lewis v. City of Conroe, No. 13-15-00464-CV, 2017 WL 2608292 (Tex. App.—Corpus Christi June 15, 2017) (mem. op.). When the city purchased a property from a school district it discovered the house was occupied by the Lewis family. The Lewis family asserted they obtained a property interest through adverse possession. They settled with an agreement that the city would lease the property to the family for a specified time then provide an offer to purchase to the Lewis’ family at the end of the lease. The Lewis family did not comply with their lease agreement and the city filed a forcible entry and detainer eviction suit. The court ruled for the city and the Lewis family appealed.

The family asserted the city failed to establish the elements for eviction.  However, the court noted they failed to properly brief and list record references in their appellate briefs. The court refused to consider their arguments due to a lack of proper briefing. As a result, the eviction was upheld.*

Eminent Domain: State v. Luby’s Fuddruckers Restaurants, LLC, No. 13-16-00173-CV, 2017 WL 2608296 (Tex. App.—Corpus Christi June 15, 2017) (mem. op.). The State of Texas filed this condemnation suit to take a strip of the cafeteria’s parking lot for purposes of a project to widen U.S. 290. Both parties agreed that the taking also rendered the cafeteria incapable of operating in its current form; with a substantial amount of parking gone, the cafeteria could not comply with a Houston parking ordinance. The cafeteria further contended that the parking situation was inadequate to meet customer demand and would also breach a restriction in the cafeteria’s deed which set minimum parking requirements. The special commissioner’s court awarded $1,795,853 and both parties appealed. The State asserted the cafeteria could not obtain lost profits but the court order overruled the objection. Both parties objected to the jury charge for different reasons. A jury returned an award of $1,334,183, which was the amount proposed by the State and its experts. Separately, the jury also awarded $480,000 for lost profits, which was the amount proposed by the cafeteria.

If a governmental entity condemns only part of a tract, adequate compensation is required for both the part taken and any resulting damage to the remainder, but not all types of damages are compensable. Texas law allows income from a business operated on the property to be considered in a condemnation proceeding in two situations: (1) when the taking, damaging, or destruction of property causes a material and substantial interference with access to one’s property, lost profits may be awarded as damages; and (2) when only a part of the land has been taken, evidence relating to lost profits is admissible, not as a separate item of damage, but as a means of demonstrating the taking’s effect on the market value of the remaining land and improvements.  The State argued since this was a full taking, instead of a partial taking, the lost profit analysis was inapplicable.  A property’s ability to foster profit is “an inherent factor [in comparable sales approach] because a willing buyer will normally pay more for a tract containing a profitable enterprise than for a similar tract containing an unprofitable enterprise. Thus, ‘[t]he ability of a business to make a profit is reflected in its market value.’” Because “the profitability of [the] restaurant was a factor in arriving at the ‘market value’ of the property, it cannot also recover for lost profits.” The court reversed the jury award for lost profits. The cafeteria’s challenges to the jury charge were not sustained. Not all statements of law belong in a jury charge and broad statements are preferred to avoid improper comments on the weight of the evidence.*

*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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