Recent Texas Cases of Interest to Cities

Note: Included cases are from June 11, 2018 through July 10, 2018.

Preemption/Plastic Bag Regulations: City of Laredo v. Laredo Merchants Assoc., No. 16-0748, 2018 WL 3078112 (Tex. June 22, 2018). The Texas Supreme Court held the City’s plastic/paper trash bag ban is preempted.

As part of a strategic plan to create a “trash-free” city, the City of Laredo adopted an ordinance to reduce litter from one-time-use plastic and paper bags. The ordinance makes it unlawful for any “commercial establishment” to provide or sell certain plastic or paper “checkout bags” to customers. The Laredo Merchants Association (Merchants) sued the city to declare the ordinance preempted by state law. The Solid Waste Disposal Act (Act), specifically Texas Health and Safety Code Section 361.0961, precludes a local government from prohibiting or restricting “the sale or use of a container or package” if the restraint is for “solid waste management purposes” not otherwise authorized by state law. The trial court granted the city’s summary judgment motion, but a divided court of appeals reversed and rendered judgment for the Merchants. The city appealed.

A statutory limitation of local laws may be express or implied, but the legislature’s intent to impose the limitation “must ‘appear with unmistakable clarity.’” The Solid Waste Disposal Act’s policy is to reduce municipal waste to the extent feasible. The Act’s preemption of local control is narrow and specific, applying to ordinances that “prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law”. The court held “solid waste management” refers to institutional controls imposed at any point in the solid waste stream, from generation of solid waste to disposal. The definition includes the systematic control of the generation of solid waste. The city’s argument that the bags were not solid waste under the Act’s definition because they had not yet been discarded as waste at the point of regulation was rejected. Further, the court held that a single-use paper or plastic bag used to hold retail goods and commodities for transportation clearly falls within the ordinary meaning of “container.” Under the Act’s immediate context, the words “container” and “package” are not accompanied by words modifying or restricting the terms. The Act is not concerned solely with discarded materials, but also includes regulations applicable to the production, retail sale, and distribution of new consumer goods. Finally, the court held the preemption provision applies to local regulation when the manner is not authorized by state law. Manner is how something can be done, not merely if it can be done. The Act removes a home-rule city’s general power over solid waste, but provides limited authority back in certain situations not applicable here.  The city’s ordinance does not fall within a manner authorized by another state law. As a result, the Act preempts the city’s ordinance.

Justice Guzman concurred, but wrote separately to emphasize the balance needed in such a situation. The city’s ordinance had a valid environmental purpose. “Improperly discarded plastics have become a scourge on the environment and an economic drain.” Her opinion highlighted the damage caused by unchecked waste to animals, ranchers, and the agricultural industry. However, the city’s ordinance listed only a moderate form of impact and had a direct financial impact on the merchants and non-local vendors. She noted a lack of uniform state-wide regulations creates concern and negative impacts, so some preemption is understandable and necessary. In the end, the balance of all competing interests is the purview of the legislative branch, not the judicial branch.*

Texas Citizens Participation Act: State v. Harper, No. 16-0647, 2018 WL 3207125 (Tex. June 29, 2018). This is a Texas Citizens Participation Act (TCPA) case where the Texas Supreme Court held a suit to remove a county official from elected office under Chapter 87 of the Texas Local Government Code (the removal statute) is a legal action under the TCPA. Sovereign immunity is also abrogated for certain types of attorney’s fees under the TCPA.  This is a 30-page opinion, so the summary is a bit long.

Paul Harper was elected to a position on the Somervell County Hospital District Board and allegedly tried to make good on his campaign promises of removing taxes and employees. In response, a county resident named George Best sought to remove Harper under the county removal statute.  Best alleged that Harper violated the district’s bylaws at a board meeting by moving to set the district’s tax rate at zero. Best also alleged that Harper posted a blog that falsely accused the district’s administrative employees of violating the law. Best argued these actions were enough to remove Harper for incompetency. The removal statute authorizes a citizen to file suit, but it also requires the county attorney to “represent the state” in any removal proceedings that take place. The Somervell county attorney opted to appear in this case as plaintiff on the state’s behalf. The state adopted Best’s allegations, and it added an allegation that Harper engaged in misconduct by violating the Texas Open Meetings Act by texting board members. Harper filed a motion to dismiss the case under the TCPA asserting the removal statute impedes the exercise of the right to petition and right of free speech. After conducting an evidentiary hearing, the trial court denied Harper’s motion to dismiss. Harper appealed. The court of appeals reversed, holding that the TCPA applies to the state’s removal action and that the state failed to establish a prima facie case for removal. In the interim, Harper lost the last election and no longer sits on the board. The Texas Supreme Court granted the state’s petition for review.

The court first noted the plaintiffs’ claims are not moot.  While Harper argues mootness cannot be addressed because the record does not contain information he lost the election, a court must consider issues affecting its jurisdiction sua sponte.  Here, the state filed a “status report” with the court of appeals that included an election canvass confirming that Harper lost his reelection bid. Harper does not dispute that he lost the election or that he no longer holds the position. The court then analyzed and held the attorney’s fees issues and sanctions issues still remain, so the case is not moot. However, the court cautioned that such applies only if attorney’s fees are ordered prior to the case being moot. The court of appeals ordered the trial court to award attorney’s fees (since it is mandatory under the TCPA) prior to the election, so this particular case survives. And, since the attorney’s fees are required by the TCPA to a prevailing party, the aspects of whether the TCPA applies remain live.

The state asserted a removal suit is not a “legal action” under the TCPA, because it is a specific statute seeking political relief which is controlling over the general TCPA. The term “legal action” is defined within the TCPA. Using rules of statutory construction, the court held a “remedy” is another word for “relief” and the TCPA authorizes relief as a legal action. As a result, the TCPA applies. Further, the court held the TCPA’s dismissal provisions compliment, rather than contradict, the removal statute. The rule that a specific provision controls over a general provision applies only when the statutes at issue are ambiguous or irreconcilable. The court found no ambiguity or irreconcilable language after analysis.

Next, the court noted that the TCPA “does not apply to an enforcement action that is brought in the name of this state . . . by . . . a county attorney.”  However, the TCPA’s purpose includes a very distinct intent to encourage participation in government to the maximum extent permitted by law. Enforcement action is not defined in the TCPA. Again, using rules of statutory construction, the court held the term “enforcement action” refers to a governmental attempt to enforce a substantive legal prohibition against unlawful conduct. Under this definition, a removal petition is not an “enforcement action” by itself or in all cases. Instead it is a procedural device, and as such a party cannot initiate a removal action to enforce the removal statute itself. When a removal action has its basis in unlawful conduct, the “enforcement action” exemption renders the TCPA inapplicable. However, when it is not unlawful conduct, it is not an enforcement action. Incompetency and drunkenness are both a basis for removal under the removal statute, but neither is against the law. “Best’s incompetency claims are a transparent retaliation against Harper’s quixotic political beliefs.  … Harper’s detractors may disagree with his politics, but no law requires elected officials to support the status quo upon arriving in office. Best’s removal petition was a pretext for forcing Harper to cease acting on the beliefs that won him his office in the first place.”  “We are not fooled. We doubt anyone else is. Harper’s refusal to capitulate to Best’s demands does not render him incompetent.” Even if a jury agreed that Harper was unfit for office, he would face no criminal or civil penalty other than removal itself. Therefore, Best’s claims are not enforcement actions and the TCPA still applies.

However, the removal statute also allows removal for “official misconduct,” which may include allegations or evidence that a public official has acted unlawfully. Best did not allege official misconduct against Harper, but the state did in the form of a Texas Open Meetings Act violation. This is sufficient to form the basis of an enforcement action. The court held Harper may benefit from the TCPA’s expedited-dismissal provisions for the grounds that Best’s initial removal petition raised, but not for the state’s additional ground.

The state then argued the attorney’s award and remand were improper against it given its immunity. The court held the state waived its immunity from liability as it did not raise it. The state only raised immunity from suit. The court then went through a myriad of arguments back and forth regarding immunity from suit. Ultimately, the court held “[b]ecause the state should not be suing to prevent its own citizens from participating in government—especially when it lacks even a prima facie case against them—and because when it does sue, it risks paying only attorney’s fees (rather than damages or some other uncapped sum), abrogating the state’s sovereign immunity in the TCPA context does not present any grave danger to the public fisc. … Because the state was not operating within sovereign immunity’s bounds when it joined Best’s suit, the TCPA allows Harper to recover costs against the state pursuant to the TCPA’s terms.”

The dissent argued the majority ignores the governing statute’s language and undermines the court’s well-established sovereign-immunity precedent. The dissent asserts the removal statute’s application of incompetence and drunkenness applies only to remove an officer from his official duties. A county officer’s “official duties” are substantive duties imposed by statutory law and therefore the entire case is an enforcement action exempt under the TCPA. The dissent took great issue with the court’s abrogation of immunity from suit for attorney’s fees.*

Public Information Act/Pensions: City of Houston v. Houston Mun. Emps. Pension Sys., No. 17-0242, 2018 WL 2749728 (Tex. June 8, 2018). The City of Houston created several local government corporations to which it transferred some of its employees. Specifically at issue is the adoption of resolutions by the Houston Municipal Employees Pension System’s Board of Trustees (the board) related to those employees, their status, and the city’s obligation to contribute to the pension fund. Under the state statute applicable to Houston’s board, the board has authority to interpret the statute and such interpretation is considered final. The system interpreted the term “employee” subject to the pension fund to include employees of several local government corporations, especially those where the corporation is controlled by city appointees and funded by the city (such as the pension system employees). The city refused to fund those individuals and the system sued under an ultra vires theory. It also sued for failure to provide information under the Texas Public Information Act (PIA).

The court first held that the statute provides the pension system can file suit on behalf of the board, therefore the system has standing. The court agreed with the city that the system was trying to use an ultra vires claim to enforce a contract where the end result is the payment of funds. However, the contract in this case was simply the mechanism used for the city to comply with the requirements of the statute. The city must still follow the statutory requirements for funding the pension plan, so the system can bring an ultra vires claim to compel compliance with the statute. However, the court interpreted the pleadings to read the system seeking prospective relief only. Strangely enough, the court held that the identity of the party is not relevant to the jurisdictional situation in the PIA portion of this case (city vs. public information officer) as a mandamus is proper against the entity under the PIA. However, the PIA is not applicable to the other defendants who are not the public information officer or the city. It also held that where the city has a right of access to the information (that of the other corporations), the information is subject to the PIA. Therefore jurisdiction is proper for the system’s claims.

Texas Tort Claims Act: City of Houston v. Johnson, No. 01-17-00654-CV, 2018 WL 2925705 (Tex. App.—Houston [1st Dist.] June 12, 2018) (mem. op.). Shirley Johnson sued the City of Houston after she suffered injuries falling into an uncovered storm sewer drain. The city filed a plea to the jurisdiction, arguing immunity because it had no knowledge of the missing drain cover before the date of the accident. Johnson claimed she did not have to show that the city had actual knowledge of the missing drain cover but only constructive knowledge of the defect. The city did not respond to Johnson’s argument and the trial court denied the city’s plea.

On appeal, the city argued that the trial court erred in denying its plea because Johnson presented no evidence that the city should have known the storm drain was missing its cover. At trial, Johnson presented evidence that the city had not inspected the drain after its installation in 1983, which violated the city’s infrastructure inspection policy. The court determined that Johnson did not meet her burden of presenting constructive evidence that the city should have known that the cover was missing. The fact that the city didn’t inspect the drain since 1983 only shows the possibility that the defect existed long enough for the city to have discovered it. Johnson’s evidence did not show the length of time that the cover had been missing, as testimony from someone who observed the drain without its cover before the fall could have highlighted.

Because the city did not argue in the trial court that Johnson failed to present evidence that the city should have known about the missing cover, the appellate court determined that Johnson is entitled to a remand to attempt to cure the jurisdictional defect. The court reversed the trial court’s order and remanded back for further proceedings.

Civil Service: City of Austin Firefighters’ & Police Officers’ Civil Serv. Comm’n v. Casady, No. 03-17-00763-CV, 2018 WL 3321192 (Tex. App.—Austin July 6, 2018) (mem. op.).  This case stems from an interlocutory appeal by the City of Austin Firefighters’ and Police Officers’ Civil Service Commission, the City of Austin Firefighters’ and Police Officers’ Civil Service Director, Chief Brian Manley, and the City of Austin (collectively, city) challenging the district court’s denial of the city’s plea to the jurisdiction and granting Casady and the Austin Police Association’s (collectively, association) claim to compel arbitration.

The association filed a grievance regarding the expiration of the eligibility list for promotion to the rank of police sergeant while candidates whose names remained on the list had not been promoted. The grievance complained that the exam for promotion to commander had not be formulated so that promotions to commander (and subsequent vacancies and promotions in lower ranks, including sergeant), had not occurred, thereby aggrieving the corporals over their intent to seek promotion to sergeant before the list expired. The association requested that the test for promotion to commander be held in time for a promotion list to commander to be created and filled in time for a vacancy to be created for lieutenant and subsequently for sergeant before the expiration of the eligibility list. Alternatively, the association requested a “pro forma or temporary promotion to commander, lieutenant, and sergeant in order to create the vacancies requested in accordance with past pattern and practice or a two-month extension of the eligibility list for promotion to sergeant.”  The city denied the grievance and refused to participate in arbitration asserting that: (1) while there were two commander vacancies at the time, there was no existing promotional eligibility list from which to fill those vacancies so that no “trickle-down promotions” could be lawfully be made;” (2) because there were no sergeant vacancies at the time, no promotions to sergeant could be lawfully made; (3) no past pattern of “pro forma” promotions existed and the prior instances involved formal action by the city council and were factually distinguishable from the instant request; and (4) extension of the expiration date of the eligibility list was not authorized by the meet and confer agreement and would require a negotiated contract amendment ratified by city council.  The association sued the city seeking an order compelling the city to arbitrate the parties’ dispute.

The city argued that the district court erred in denying its plea to the jurisdiction because governmental immunity – and official immunity as to the commission, the commission director, and Manley – deprived the district court of subject matter jurisdiction. The association asserted waiver of immunity under Section 143.306(c), which provides that a district court has full jurisdiction “on the application of either party [to a meet and confer agreement] aggrieved by an act or omission of the other party related to a right, duty or obligation provided by the meet and confer agreement.” For a suit to proceed against a governmental entity under a statute that waives governmental immunity, the court must first look to the terms of the act to determine the scope of its waiver and then consider the particular facts of the case to determine whether it comes within that scope. The city claimed that the association could not identify any violation of a “right, duty, or obligation,” provided under the meet and confer agreement. The association asserted that the violation that brings the suit within the jurisdiction waiver of Chapter 143 is the city’s refusal to arbitrate. The appellate court overturned the trial court’s decision, determining that: (1) the refusal to arbitrate alone cannot constitute a violation of the meet and confer agreement; and (2) the association did not identify any provision in the meet and confer agreement that the city violated by not making any promotions to sergeant when there were no vacancies at the rank of sergeant.

Employment Wrongful Death: City of Austin v. Lopez, No. 03-18-00107-CV, 2018 WL 3235585 (Tex. App.—Austin July 3, 2018) (mem. op).  This appeal stems from an order of the trial court denying the city’s plea to the jurisdiction in a wrongful death case.

Membreno, twenty-six years old and a citizen of El Salvador, died in 2009 when he came into contact with one of the city’s overhead power lines while working on a construction job. Membreno was never married to Maria Lopez, but she asserts that after his death she gave birth to Membreno’s son in El Salvador where she lived. Lopez filed a wrongful death and survival action against the contractor who employed Membreno, the owner of the building under construction, and the building’s property manager, asserting negligence, negligence per se, gross negligence and premises liability. Later, she amended her pleadings to add an electrical-utility contractor and the city as defendants, claiming that the city “failed to use reasonable care to safely operate and maintain the electric-distribution system and overhead distribution lines and poles.” The city filed a plea to the jurisdiction challenging the minor child’s standing to maintain suit pursuant to the Wrongful Death Statute (Texas Civil Practice & Remedies Code Section 71.004).

The city asserted that in order to have standing to sue under the Wrongful Death Statute, an illegitimate child must comply with the requirements of the Texas Family Code establishing a father-child relationship. However, the Texas Supreme Court has previously concluded that the requirements of legitimation under the Family Code should not be included into the Wrongful Death Statute. Additionally, the city asserted that there was no proof that the minor child was the decedent’s biological son. The court found by providing, among other things, a DNA test performed on the decedent’s brother showing a 99.8% chance that the minor child and the brother were nephew and uncle, Lopez had marshaled proof from which a fact finder could conclude that clear and convincing evidence showed that Maria’s minor child was the son of the decedent.  Lastly, the city asserted that Lopez did not have the capacity to assert a person-injury action pursuant to the Survival Act.  The court, however, found that lack of capacity to sue, unlike standing, is not a jurisdictional defect. Accordingly, the court affirmed the trial court’s order denying the city’s plea to the jurisdiction.

Retaliation: City of Austin v. Baker, No. 03-16-00607-CV, 2018 WL 3060044 (Tex. App.—Austin June 21, 2018) (mem. op.).  This appeal stems from an order of the trial court denying the city’s plea to the jurisdiction and motion for summary judgement in an employment retaliation case.

In 2013, the city began restructuring its police department’s organized crime division to address inefficiency and pervasive unprofessionalism.  In the ensuing restructuring, Baker was transferred to another division due to his alleged reluctance to implement requested changes. While additional personnel changes were ongoing, Baker heard rumors that older employees and minorities were being disproportionately affected by the restructuring, and after reviewing the data, began to voice his concerns regarding age, race, and ethnic discrimination. His concerns were forwarded up the chain of command at subsequent meetings of the police department’s leadership. Thereafter, Baker became the subject of two internal investigations, which resulted in the police department issuing him one or more written reprimands. Baker then applied to serve as assistant chief but was passed over twice in favor of other candidates. Baker alleged that before he voiced his concerns about possible discrimination, the police chief had personally encouraged him to apply for a position as assistant chief. The city asserts that the most qualified candidates for the positions were selected.

Baker filed a claim of retaliation with the Texas Workforce Commission, and upon receiving a permission-to-sue letter, sued the city under Section 21.055 of the Labor Code for retaliating against him for reporting possible discrimination. The city filed a combined plea to the jurisdiction and motion for traditional summary judgement, and a motion for no-evidence summary judgement, arguing that Baker did not allege a prima face case necessary to establish the trial court’s jurisdiction over the retaliation claim.  The trial court denied the motion and the city appealed.

To overcome the city’s governmental immunity and establish jurisdiction, Baker had to generate a genuine issue of fact as to each element of his retaliation claim (i.e. did he engage in a protected activity; did he experience a material adverse employment action; and was there a causal link between the protected activity and the adverse action?).  If Baker meets his burden, the city has to produce “evidence of a legitimate, nondiscriminatory reason for the disputed employment action.” If the city’s evidence is sufficient to rebut Baker’s prima facie case, Baker must produce sufficient evidence of pretext and causation to survive the plea to the jurisdiction. The court found that: (1) Baker had engaged in a protected activity when he reported the possible discrimination; (2) the investigations negatively impacted his professional standing and ultimately factored into the police chief’s decision not to select him as assistant chief; and (3) causation was established due to the proximity between his reporting possible discrimination and the adverse employment action. However, the court found that the city rebutted Baker’s prima facie evidence of retaliation by showing that the internal investigations were conducted in accordance with the police department’s policy and, with respect to the selection of the assistant chiefs, other candidates were equally or more qualified than Baker. The court, finding that there was a genuine question of fact as to whether Baker suffered retaliation for reporting possible discrimination, determined that it cannot disregard evidence “necessary to show context” in evaluating Baker’s allegations of pretext. Accordingly, the court affirmed the trial court’s order denying the city’s plea to the jurisdiction.

Real Property: Rio Grande City Consol. Indep. Sch. Dist. v. City of Rio Grande, No. 04-17-00346-CV, 2018 WL 3129457 (Tex. App.—San Antonio June 27, 2018) (mem. op.). This appeal stems from an order of the trial court granting the city’s plea to the jurisdiction/motion for summary judgment and dismissing all of the school district’s claims against the city.

The school district claimed that it owned a 0.64-acre tract of land in the city, and sued the city for trespass to title and declaratory judgement. The United States intervened to preserve its interests in the tract of land. The city filed a joint plea to the jurisdiction and summary motion judgement alleging that the school district: (1) failed to establish that the city’s immunity had been waived; (2) was not entitled to prevail on its trespass to try title claim because the school district was not the legal owner of the tract of land; and (3) could not prevail on its declaratory judgement claim because the dispute involved the determination of title to a well-defined parcel of land.  Alternatively, the city argued that the affirmative defense of laches applied because it had acquired a valid leasehold to the real property. On the day of the hearing of the city’s motion, the school district filed an amended petition, deleting the declaratory judgment claim and adding an unconstitutional takings claim. The trial court declined to consider the school district’s newly-amended petition. The trial court granted the city’s plea and motion for summary judgement and dismissed all of the school district’s claims.

On appeal, the court concluded that the trial court did not err in dismissing the school district’s trespass to try title claim because the trial court did not have jurisdiction to determine title to real property in which the United States claims an interest.  Additionally, the court reversed the trial court’s judgement disposing of the school district’s takings claim against the city and remanded the case because a party may not be granted judgement as a matter of law on a cause of action not addressed in a summary judgement proceeding.

Texas Tort Claims Act: San Antonio Indep. Sch. Dist. v. Hale, No. 04-18-00102-CV, 2018 WL 3129436 (Tex. App.—San Antonio June 27, 2018) (mem. op.).  This appeal stems from the trial court’s denial of San Antonio Independent School District’s (district) plea to the jurisdiction in a personal injury case.

Hale’s son was riding on the bus when the rear exit door opened, and he fell out, sustaining a traumatic brain injury. Hale alleges the accident was caused by a defect in the rear exit door’s latching mechanism, which caused the door to open while the school bus was in motion. In addition to suing the designers and manufacturers of the school bus, Hale sued the district alleging that the district’s governmental immunity was waived under Section 101.021 of the Texas Tort Claims Act. The district filed a plea to the jurisdiction, which was denied. The district then appealed.

To fall under Section 101.021 waiver, the tortious actions must relate to a government employee’s actual operation of a vehicle, rather than some other aspect of the employee’s conduct.  Hale did not allege that: (1) any affirmative acts or omissions by the bus driver or that the bus driver’s actions or inaction caused her son’s injury; or (2) the bus driver negligently or otherwise improperly operated or used the school bus.  Rather, Hale alleged that the district, not the bus driver, was “negligent in failing to maintain an acceptable latch mechanism for the bus and in delivering it over to the bus driver to operate and transport children in that negligently maintained condition.”  The court concluded that maintenance is not “operation or use” of the school bus that would waive immunity.  As such, the plea should have been granted.*

Employment Contract: City of Carrizo Springs v. Howard, No. 04-18-00061-CV, 2018 WL 2943795 (Tex. App.—San Antonio June 13, 2018) (mem. op.).  This case stems from an interlocutory appeal of the city’s denial of a plea to the jurisdiction.

The city hired Howard as its city manager and entered into a two-year employment contract with him. The contract provided that Howard “accepts employment as the City Manager for a term commencing November 5, 2013, and ending December 31, 2015.” Additionally, the contract provided that the city may, at its option, with notice to Howard, unilaterally terminate the contract.  In the event of such termination, the city was required to pay Howard, as severance pay, all of the “aggregate salary and other compensation he would have earned” under the contract from the actual date of termination to the date the contract expired.  About eight months into the two-year contact, the city terminated Howard’s contact.  Howard sued the city for breach of contract.

The city argued that its immunity from suit was not waived because the contract was not properly executed. The city asserted that because Howard’s severance pay provision was not contemplated to be paid from the current revenues of the fiscal year 2013-2014, the contract constituted a debt under Article XI, Section 7 of the Texas Constitution. The city did not meet the tax and sinking fund requirements to validate the contract, and thus, the contract did not invoke waiver of immunity under Section 271.152 of the Local Government Code. The Texas Constitution prohibits a city from incurring a debt unless it meets certain tax and sinking fund requirements.  However, a contract that runs for more than one year is a commitment only of current revenues, and so is not a debt if it reserves to the governing body the right to terminate at the end of each budget period. The court of appeals concludes that because the city had the right to unilaterally terminate Howard’s contract before the end of each budget period, or at any other time, the contract did not create a debt. Accordingly, the court affirmed the trial court’s decision, and held that the employment contract was not void.

Jury Charge: City of San Antonio v. Aguero, No. 04-17-00369-CV, 2018 WL 2943952 (Tex. App.—San Antonio June 13, 2018) (mem. op.).  This appeal stems from a judgment entered based on a jury verdict awarding Aguero damages for injuries he sustained in an automobile accident. The sole issue was whether the trial court abused its discretion in refusing to charge the jury with determining Aguero’s percentage of responsibility.

Raul Champion was a passenger in a vehicle being driven by Aguero when the vehicle was struck by a vehicle being driven by an employee of the city.  Champion sued Aguero and the city for injuries he sustained. He alleged that Aguero was negligent based on driver inattention, failing to control his speed, and disregarding a red traffic signal, and that the city’s employee was negligent based on driver inattention and failing to take adequate evasive action. The city filed an answer and included a section titled “contributory negligence.” Aguero filed a cross-claim against the city for injuries he sustained alleging various negligent acts by the city’s employee, including failing to yield the right of way. The city filed an original answer to the cross-claim, asserting, among other defenses, that the accident was the sole and proximate cause of negligence by the other parties to the suit. Subsequently, Champion filed a motion to dismiss his claim against Aguero based on a settlement, and the court dismissed those claims.  Aguero submitted his proposed jury charge which contained a question requiring the jury to assign a percentage of responsibility to the city and to Aguero. The city amended its answer to Champion’s petition and Aguero’s cross-claim asserting its right to have any damage award offset by the contributory negligence of Aguero and any previous settlements.  At some point before the trial, the city and Champion settled Champion’s claims against the city. Aguero filed a motion to strike the city’s amended answer asserting that it was filed after the deadline set forth in the docket order for amending pleadings.  The city argued that the docket control order was superseded when the trial setting was continued.  After hearing arguments, the court granted Aguero’s motion to strike. The case proceeded to a jury trial.  At the charge conference, the trial court denied the city’s request to submit a question requiring the jury to assign a percentage of responsibility to the city and to Aguero. Instead, the jury charge asked whether negligence of the city was a proximate cause of the accident. The jury answered affirmatively and awarded Aguero damages.

In any cause in which the jury is required to apportion the loss among the parties, the court shall submit a question or questions inquiring what percentage, if any, of the negligence or causation, as the case may be, that caused the occurrence or injury in question is attributable to each of the persons found to have been culpable. Texas follows a “fair notice” standard for pleading, which looks at whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. Additionally, when a party fails to specifically except, courts should construe the pleadings liberally in favor of the pleader. The trial court focused exclusively on the city’s answer to Aguero’s cross-claim in which the city asserted “the accident was the sole proximate cause of negligence by the other parties to this suit.” Because the city’s answer referred only to “sole and proximate cause” and not to “contributory negligence,” the trial court denied the proportionate responsibility question.  However, the court should have considered the city’s answer to Champion’s claim as well. As the city’s pleadings contained fair notice of allegations to support a proportionate responsibility question, the trial court abused its discretion in excluding such question from the jury charge. The trial court’s judgment is reversed and remanded for a new trial.

Texas Whistleblower Act: City of Dallas v. Worden, No. 05-17-00490-CV, 2018 WL 3238138 (Tex. App.—Dallas July 3, 2018) (mem. op.). This is an interlocutory appeal from the trial court’s partial denial of the city’s plea to the jurisdiction, in which the city argued that the trial court lacked subject matter jurisdiction over Worden’s suit under the Texas Whistleblower Act (Act).

Worden, a police officer, responded to a suspicious-persons call at a Wal-Mart Supercenter parking lot regarding a group of juveniles. Multiple officers arrived and separated various suspects. During the stop, Officer Nicholas Smith and Sergeant Fred Mears told Worden to take the handcuffs off of a juvenile they had detained. Worden was unaware at the time that Smith had been threatening to fight the juvenile or that Mears was mocking him. When Worden realized the antagonism, he again handcuffed the juvenile and placed him in the squad car. Worden reported the juvenile incident to his supervisor and other investigators. Months later, Worden and other officers responded to a report of an active shooter in a vehicle. Video of the confrontation reportedly showed Worden “body-slamming” the suspect against the side of his car and inappropriate force. Worden was placed on paid administrative leave during the internal affairs investigation. Worden was later suspended for 10 days due to the juvenile incident and an additional 15 days due to the active-shooter incident. Worden appealed internally. His record was cleared for the juvenile incident and his suspension for the active-shooter incident was reduced. After returning to work, Worden was reassigned to the Communications Division. He then brought this case under the Act, based on the juvenile incident.

Under the Act, an employee may sue only for adverse employment actions. The test for adverseness under the Act is an objective one: the action taken “must be material, and thus likely to deter a reasonable, similarly situated employee from reporting a violation of the law.”  Worden alleged that the Communications Division had “a stigma attached to it,” and that it was “for ‘troubled’ or ‘problem’ officers,” but he offered nothing more than his personal opinion to support that judgment. A police officer’s subjective preference for assignment is insufficient to prove a materially adverse personnel action. Worden further alleged that his assignment to the Department’s Employee Development Program (EDP) was a retaliatory adverse action taken against him for reporting his concerns regarding the juvenile incident. Worden testified that the EDP has a “negative connotation to it” because it operates under the Internal Affairs Department and he believes the program is a remedial one. The record established that Worden was “boarded and identified as a candidate” for the EDP in June 2015, shortly after he returned to work from his suspension and was assigned to the Communications Division.  However, Worden did not do anything under the EDP and was not required to. A year later, he was notified that because he had not had any further trouble, he did not need to be part of EDP. A host of other complaints were determined to be minimal issues which did not rise to the level of an adverse action. Finally, the court held Worden failed to establish a causal connection between any alleged actions and his reports. The court declined to apply a conduit theory of liability due to alleged animus from other officers. As a result, the plea should have been granted. The case was reversed and rendered in favor of the city.* 

Zoning: Mbogo v. City of Dallas, No. 05-17-00879-CV, 2018 WL 3198398 (Tex. App.—Dallas June 29, 2018) (mem. op.). This case stems from an appeal of the trial court’s order granting the city’s plea to the jurisdiction in a constitutional challenge to zoning laws.  The court of appeals released its initial opinion on June 19, 2018, but vacated that judgment and issued a new opinion on June 29, 2018.

Mbogo leased land and opened a general repair shop on Ross Avenue in Dallas, Texas, in 1986. At that time, the city’s zoning ordinances allowed automobile-related businesses on Ross Avenue. After performing a study which found automobile-repair shops were a concern in the area based on the connected roads and services in the area, the city amended its zoning ordinance in 1988 prohibiting such uses in the area. At that time, Mbogo was fully aware that continued use of the property as a repair shop was a “non-conforming” use.” In 1991, Mbogo purchased the property, expanded and upgraded his repair shop, fully aware that the use was nonconforming.  In 2005, the city again amended the zoning ordinance and codified specific provisions related to non-conforming uses and provided deadlines for nonconforming use properties to comply.  A property owner could appeal to the board of adjustment (BOA) to extend the deadlines to comply with the requirements. The BOA gave Mbogo a new compliance date of April 13, 2013. Mbogo then received a zoning change and special use permit (SUP) which expired in 2015. Mbogo applied for a new SUP in February 2016, which was denied. The city filed suit seeking a permanent injunction to prevent continued operation of the repair shop and sought fines of $1,000 per day. Mbogo counterclaimed and added various city officials to the suit. The city filed a plea to the jurisdiction, which was granted by the trial court.  Mbogo appealed.

Mbogo argued that the city’s ordinances, as applied to him, were unconstitutionally retroactive because they attach new legal consequences to his business that were legal when he opened his business but became illegal years later. A retroactive law is one that extends to matters that occurred in the past. Mbogo asserted that in 2005 and 2013 he had no notice the city would at some point make his use illegal. However, a law is not retroactive because it upsets expectations based in prior law. Further, there are strong policy arguments and a demonstrable public need for the fair and reasonable termination of nonconforming property uses. The city’s 2005 ordinance change allowed the owner of a nonconforming use to apply for a later compliance date if the owner would not be able to recover his investment in the use by the designated conformance date. The ordinance did not change any use but prospectively altered a property owner’s future use of the property. The 2013 ordinance likewise set a deadline for when it expired. As a result, the ordinances are not retroactive. Additionally, the court noted not all retroactive laws are unconstitutional. Here, any interest that Mbogo had in the use of his property was not “firmly vested.” There is no bright-line rule and, generally speaking, an individual has no protected property interest in the continued use of his property for a particular purpose. The process provided likewise did not deprive Mbogo of due process or single him out in any respect. The city allowed Mbogo to run a business from 1991 through 2015 as either a nonconforming use or under a SUP; however, his use became illegal once his SUP expired. Mbogo’s position under his takings argument was that any restriction on his desired use of the property resulted in an unconstitutional damage or destruction to his property. The court found that this was not the case as he had no vested right to perpetual, guaranteed use of his property in a specific way. As a result the plea was properly granted.*

Red Light Cameras: City of Richardson v. Bowman, No. 05-16-01126-CV, 2018 WL 3135228 (Tex. App.—Dallas June 27, 2018).  After receiving a notice of violation of the red light camera ordinance, Bowman filed suit to enjoin enforcement of the ordinance and for a declaration that the ordinance and enabling statute are unconstitutional. The trial court denied the city’s partial plea to the jurisdiction and motion for judgment and granted Bowman’s motion.

In 2005, the city entered into a contract with a red light camera operating company to install a red light camera system. Following the legislature’s enactment of Chapter 707 of the Transportation Code in 2007 authorizing cities to adopt red light camera systems, the city adopted a red light camera ordinance. A red light camera recorded Bowman entering an intersection when the traffic signal was red, and he was notified of a registration hold on his vehicle for failing to pay the civil penalty associated with the violation. Bowman requested an administrative hearing as authorized by Chapter 707, that the hearing be before a jury, and that the hearing declare Chapter 707 unconstitutional. Before an administrative hearing was scheduled, Bowman filed suit for declaratory judgment and injunction against enforcement of the ordinance.  Alternatively, he asserted that the city could not enforce the ordinance against him because it failed to comply with sections of Chapter 707, which require the city to conduct an engineering study and present the study to a citizen’s advisory committee before installing a red light camera.

When the legislature expressly or impliedly grants an administrative agency sole authority to make an initial determination in a matter, the agency has exclusive jurisdiction over the matter. If an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. The mere claim that an administrative agency acted outside its authority does not authorize litigation before administrative remedies are exhausted, nor does failure to perfectly comply with all of the intricacies of the administrative process necessarily constitute extra-jurisdictional action by an agency. As such, the appellate court concluded that the city’s failure to conduct a traffic engineering study and present it to the citizen’s advisory committee did not exempt Bowman from exhausting his administrative remedies. Accordingly, the court vacated the denial of the partial plea to the jurisdiction, reversed the trial court’s judgment, and rendered judgment dismissing Bowman’s claim based on non-compliance with the enabling statute for want of jurisdiction and denying Bowman’s claim for a declaration that the ordinance and enabling statute are unconstitutional.

Texas Tort Claims Act: City of Dallas v. Duressa, No. 05-17-01238-CV, 2018 WL 2949441 (Tex. App.—Dallas June 13, 2018) (mem. op.).  This case stems from an appeal of the trial court’s denial of the city’s plea to the jurisdiction related to an ambulance accident claim.

Duressa was involved in a car accident and the city dispatched an ambulance driven by Officer Wyatt. Because Duressa was stable, the ambulance lights and siren were not activated while she was being transported to the hospital. Duressa’s son also rode with her in the ambulance. The roadway was icy and the ambulance slid and collided with cars that were stopped at an intersection. Duressa sued under the Texas Tort Claims Act (Act). The city filed a plea to the jurisdiction asserting that the city was immune because Wyatt was performing discretionary actions and was entitled to official immunity.  The trial court denied the plea and the city appealed.

Courts apply an objective standard to determine whether an officer has acted in good faith, balancing the need for the officer’s actions with the risks those actions pose. In an emergency response situation, an officer acts in good faith if a reasonably prudent officer under the same or similar circumstances could have believed the need for the officer’s actions outweighed a clear risk of harm to the public from his actions. There must be evidence addressing “what a reasonable officer could have believed under the circumstances” substantiated with facts showing the officer assessed each of the need/risk balancing factors. The needs and risk analysis, however, demonstrated the lights and sirens were not active and there was no immediate need for a rush. The affidavits do not set out facts explaining the seriousness of the accident, the extent of any injuries, or any other circumstances requiring urgent transport of the patient to the hospital. Similarly, the affidavits do not state facts showing Wyatt considered the availability of any possible alternative courses of action, but simply conclude that, because the officers had been dispatched through the 9-1-1 system and were expected to respond urgently to the scene. Because a material fact issue remains as to whether Wyatt acted in good faith the trial court properly denied the plea.

Texas Tort Claims Act: City of Corpus Christi v. Resendez, No. 13-18-00090-CV, 2018 WL 3151572 (Tex. App.—Corpus Christi June 28, 2018) (mem. op.). In May 2015, Resendez and her daughter were passengers in a vehicle that collided with a City of Corpus Christi garbage truck. Nearly one year later, in May 2016, Resendez sent a formal notice of her claim to the city, claiming that the collision was proximately caused by the negligence of the garbage truck driver. Resendez later filed suit individually and as next friend of her daughter, Esmerelda Ramirez.

The city filed a plea to the jurisdiction, alleging that the formal notice was not filed within six months of the collision as required under the Texas Tort Claims Act. Further, the city asserted that while actual notice may serve as a substitute for formal notice, the city had no actual awareness that its employee caused the accident and that the driver of the other vehicle was solely to blame. The city submitted the police report as evidence, which attributed fault for the collision exclusively to the driver of the other vehicle. The trial court granted the city’s plea to the jurisdiction with regard to Resendez individually, but denied the city’s plea with respect to Resendez as next friend of Ramirez. The city appealed.

On appeal the city contends that: (1) Resendez failed to provide a notice of claim to the city within six months of the collision, as required by the Texas Tort Claims Act; and (2) the lack of notice is not excused because the city had no actual awareness that its employee was at fault in causing the collision. The primary question for the court was whether the city was subjectively aware of its responsibility for Ramirez’s injury. The sole evidence before the court was the police report filed by the city, which attributes fault solely to the driver of the vehicle that collided with the city garbage truck. Nothing in the report apprised the city that its employee was in any way responsible for the collision. Because the only relevant evidence in the record (the police report) provided that the city employee was not at fault for the collision, the city did not have actual notice of its fault. The court sustained the city’s issues, reversed the trial court’s denial of the city’s plea, and rendered judgment dismissing the case for lack of subject matter jurisdiction. 

Texas Tort Claims Act: City of Weslaco v. Trejo, No. 13-18-00024-CV, 2018 WL 3062575 (Tex. App.—Corpus Christi June 21, 2018) (mem. op.). This is an interlocutory appeal from the denial of the city’s plea to the jurisdiction in a Texas Tort Claims Act case where the Thirteenth Court of Appeals reversed and remanded the case. 

The Trejos began to develop land into a residential subdivision. The Trejos hired Rio Delta Engineering to develop plans and designs for the subdivision’s infrastructure. Before lots could be sold, essential services such as water and sewer would have to be designed, built, and approved by the city. The city elected to combine the sewer and water plans of the Trejos as well as another client of Rio Delta, the Apostolic Church. The Trejos alleged the city delayed the sewer extension unreasonably, costing them the ability to timely sell lots. The Trejos filed suit alleging that the city was negligent in managing the sewer construction project, which “involved the use of motorized vehicles.” The city filed a plea to the jurisdiction, which was denied. The city appealed.

Because the legislature has deemed sanitary and storm sewers to be a governmental function, immunity applies to the design allegations. The Trejos did not establish a waiver for such a claim. No waiver exists for negligent training of personnel or supervisors. As to the claims for negligent operation of bulldozers, there must be a causal nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiff’s property damage. This causal nexus is not satisfied by the mere involvement of vehicles or equipment, nor by a use that “does no more than furnish the condition that makes the injury possible.” The Trejos “have drawn a thin thread of causation across the span of many years and several intermediary steps—the use of equipment led to the design flaws, which led to problems with the sewer, which led to construction delays, which led to the Trejos’ inability to sell houses in 2008, which led to the project’s insolvency in 2009, which led to the bank’s foreclosure—in an effort to link the use of motorized equipment to the underlying harm of foreclosure.”  Such is too tenuous to be a causal link. However, the court held the Trejos should be given the opportunity to amend so remanded the case.*

Vested Rights: Village of Tiki Island v. Premier Tierra Holdings, Inc., No. 14-18-00014-CV, 2018 WL 3352235 (Tex. App.—Houston [14th Dist.] July 10, 2018). Premier Tierra Holdings, Inc. (Premier) purchased property in early 2009 and sought to develop or sell the property for a mixed-use marina development project to include residences and elevated dry boat storage. On April 22, 2010, Premier submitted a plat application to the city reflecting the project’s plan of development. At that time, the city had no formal land use regulations – no subdivision ordinance, zoning ordinances or any comprehensive land use plan. Five days later, the city approved a new zoning ordinance, which precluded dry boat storage and apartment classifications on the property. After submitting several plats, which were denied, Premier ultimately filed suit requesting a declaratory judgment in its rights in the project and alleging a takings claim. At trial, the city claimed that the denial was based on existing regulations, rather than the subsequently enacted zoning ordinance, and therefore no justiciable controversy existed regarding the application of the vested rights statute in Chapter 245 of the Local Government Code. The trial court denied the city’s plea to the jurisdiction, and the city appealed.

On appeal, the city contended that Premier did not plead a claim to which Local Government Code Chapter 245 applies because Premier alleged that the city used the subsequently enacted zoning ordinance to interfere with Premier’s vested rights. The city claims that it denied the plat applications based on a preexisting “general plan” at the time, which is permissible under Chapter 245. According to the court, the city did not identify any preexisting general plan or existing regulations that were applied to the project, nor did the city make any attempt to explain a vague reference to a denial based on a general plan that is reflected in the city’s existing streets and bridges. The court was unaware of any authority authorizing a general law city to rely on an unwritten general plan that is immune from review to deny a permit applicant’s vested rights in a project. The court found that a dispute exists concerning the primary jurisdictional fact as to whether the city properly denied Premier’s plat based on regulations that preexisted the initial plat applications or if the city refused to recognize Premier’s vested rights in the project by denying the plat applications based on subsequently enacted ordinances. The court rejected the city’s argument that Premier did not plead a claim to which Chapter 245 applies.

In its second issue, the city claims that the trial court erred in denying their plea because Premier failed to plead a viable regulatory takings claim. Construing Premier’s pleadings liberally in favor of jurisdiction, the court concluded that Premier’s petition adequately alleges that a taking occurred through regulatory action that unreasonably interfered with Premier’s right to use and enjoy its property. Further, Premier adequately pleaded that it had a reasonable investment-backed expectation to develop the property as a marina with elevated dry boat storage and the city interfered with those expectations by denying Premier’s vested rights based on items irrelevant to plat applications or ordinances adopted after Premier’s rights vested. The court overruled the city’s issues and affirmed the trial court’s order denying the city’s plea to the jurisdiction.

*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