Recent Texas Cases of Interest to Cities

Note: Included cases are from June 11 through July 10, 2019.

Texas Tort Claims Act: Worsdale v. City of Killeen, No. 18-0329, 2019 WL 2479177 (Tex. June 14, 2019). This is a case involving the notice requirements under the Texas Tort Claims Act. The Texas Supreme Court determined the city had actual notice of the accident despite the fact that the city was unsure if it owned the road at the time of the accident. 

The case arose out of a car accident where a motorcycle collided with a large dirt mound on the road. Within days, the city’s police department investigated the accident.  The investigator spoke with other departments in the city about whether the city was responsible for the road’s maintenance and warning signs. There was a dispute between the city and the county about who owned the road, which is why the city had not removed the dirt mound. After the investigation, the deputy city attorney determined the city had annexed the road and never abandoned the road. Two days after the accident, the city removed the dirt mound and installed permanent road closure signs and barricades. The plaintiffs did not provide written notice, but claimed that the city had “actual notice” under Civil Practice and Remedies Code Section 101.101(c). 

In analyzing whether the city had notice, the court discussed its prior cases holding that a governmental entity must have actual notice, meaning subjective awareness of its fault. In reviewing the actual notice issue de novo, the Texas Supreme Court determined the city had actual notice of its fault in causing the accident. Within the six-month deadline, the city knew the road condition and absence of warning signs were contributing factors and the city was responsible for maintaining the road. The city knew from its deputy city attorney that it never abandoned the road and was responsible for maintaining it; thus, the city removed the hazard. In finding the city had actual notice, the court reasoned that although subsequent remedial measures are inadmissible to prove liability, they are admissible to prove ownership, control, and notice.   

The court declined to find Cathey v. Booth was wrongly decided as urged by the plaintiffs. Cathey required that a governmental entity’s “subjective awareness” of its “alleged fault producing or contributing to the death, injury, or property damage,” meaning “fault as ultimately alleged by the claimant.” 

The court reversed the intermediate court of appeals’ judgment in favor of the city and remanded the case to the trial court for further proceedings.

Texas Tort Claims Act: City of Houston v. Garza, No. 01-18-01069-CV, 2019 WL 2932851 (Tex. App.—Houston [1st Dist.] July 9, 2019) (mem. op.). This is a Texas Tort Claims Act case where the First Court of Appeals affirmed the denial of the city’s summary judgment because the city failed to establish that it was not responsible for the car that got into an accident with the plaintiff in the car.

Garza was arrested by the city’s police department. While she was being transported from the city’s jail to the county jail, the transport car got into an accident and Garza was injured. Garza did not know if it was the city’s car or the county’s car, so she sued both. 

The city filed its plea to the jurisdiction with affidavits from the arresting officer and the officer on duty for transport on the date of the accident and arrest. The arresting officer’s affidavit stated he arrested Garza at about 5:14 a.m. and took Garza to the city’s jail.  The transport officer’s affidavit stated his shift began at 2:00 p.m. and he did not get into an accident on the date and did not observe an inmate displaying any of the things Garza had claimed. The county filed an affidavit stating: (1) it has never been the practice of the county to transport inmates from the city’s jail where Garza was housed; and (2) there were only 2 fleet vehicle accidents on the date of the accident, and neither were driven by an officer assigned to inmate transport.

The Texas Supreme Court held that the denial of summary judgment was proper because the city had a gap in the timeline from 5:14 a.m. to 2:00 p.m. where Garza could have been transported by the city. The city did “not conclusively establish that no City employee was operating the motor vehicle that Garza alleged was involved in the collision that caused her injuries.”

Inverse Condemnation: Schrock v. City of Baytown, No. 01-17-00442-CV, 2019 WL 2621736 (Tex. App.—Houston [1st Dist.]  June 27, 2019). In this inverse-condemnation case, the First Court of Appeals remanded the regulatory-takings claim back to the lower court for a new trial because there was enough evidence that a directed verdict was in error.

In 1993, Schrock purchased a house to use as a rental property. From 1993 until the beginning of 2010, the house was rented by a series of tenants and there was only ever a few weeks between tenants when the house was not occupied. During this time, the city required that tenants renting houses provide a copy of the lease agreement to the city and pay a larger deposit than home buyers before the city would provide utility services. In 2009, the city informed Schrock that he owed the city $1,999.67 for the unpaid utility bills of his prior tenants dating back to 1993. A city ordinance required that landlords submit a declaration that the property was a rental or they would be responsible for unpaid utilities. Even though Schrock had failed to file the declaration, the city had notice at all times that the property was a rental. Schrock requested a hearing and that amount was reduced to $1,157.39 in unpaid bills that had accrued over the prior four years. The city sent notice to Schrock’s attorney that he would need to pay within fourteen days or the city would place a lien on the property pursuant to a city ordinance. The attorney never provided Schrock with the letter. The city’s ordinance was in direct conflict with provisions of the Local Government Code that prohibited cities from charging property owners for unpaid tenant bills.

In 2010, a new tenant at the rental attempted to pay a deposit and have the utilities turned on but was told that Schrock had to pay the lien before utilities would be turned on. Schrock attempted to pay the lien but was told that in addition to the adjudicated amount, he would also have to pay for an unpaid bill that had happened after the adjudication, even though he had since submitted a declaration. Schrock ultimately did not pay the lien and brought a regulatory-taking and declaratory-judgment claim against the city. Schrock alleges that since 2010, the city has refused to provide water service to the property, which has led to damages. The house has been without a tenant since 2010. With no tenant to maintain the home, it fell into disrepair and became uninhabitable. Schrock sought damages for the loss of the property value and lost revenue from the inability to lease the property.

After a jury trial, the lower court rendered judgment in favor of the city on both the taking and declaratory-judgment claims. Schrock brought this appeal and argued that the lower court erred in granting a directed verdict because there were material fact issues to be determined by the jury.

To determine whether a regulatory-taking occurred, courts weigh the following three factors: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the property owner’s distinct investment-backed expectations; and (3) the character of the government action. The First Court of Appeals held that, after looking at all the evidence, there was at least some of probative value for each of the factors. Therefore, the trial court erred in granting the city a directed verdict. However, the court did affirm the trial court’s directed verdict on the declaratory-judgment claims because the court either did not have jurisdiction to decide them or they were rendered moot during the case.

Charter Amendment Election: Bryant v. Parker, No. 01-18-00400-CV, 2019 WL 2588107 (Tex. App.—Houston [1st Dist.] June 25, 2019). In this case,the First Court of Appeals held that the City of Houston’s ballot proposition regarding term limits was not misleading. 

Bryant and Scarborough were election contestants who challenged a ballot measure about term limits for the city’s elective offices. In the months leading up to the November 2015 elections, the city sought to amend the provision in its charter governing term limits to establish four-year terms of office and two-term limits. Specifically, the language submitted to the voters was:

“(Relating to Term Limits for City Elective Offices) Shall the City Charter of the City of Houston be amended to reduce the number of terms of elective offices to no more than two terms in the same office and limit the length for all terms of elective office to four years, beginning in January 2016; and provide for transition?”

The city’s voters approved the measure. Bryant filed an election contest on the grounds that the ballot language was misleading. Scarborough intervened and said the ballot language was insufficient to submit the issue to the voters. The parties all filed motions for summary judgment. The trial court granted the city’s motion and denied Bryant’s and Scarborough’s motions.

The First Court found that cities have broad—but not unlimited—discretion in the wording of ballot propositions. The court looked at the language of the ballot measure and found that the ballot language communicated the number of terms an individual could serve in the same office and the length for all terms. It also informed the voters that the amendment would provide for transition. The court concluded that the ballot language was not misleading and the city was entitled to judgment as a matter of law.  The court overruled Bryant and Scarborough’s remaining arguments. It confirmed the trial court’s grant of the city’s summary judgment.

Historic Preservation/Zoning: Powell v. City of Houston, No. 01-18-00237-CV, 2019 WL 2588104 (Tex. App.—Houston [1st Dist.] June 25, 2019). In this case, the First Court of Appeals affirmed the lower court’s holding that the City of Houston’s use of historical districts does not constitute zoning.

Houston’s charter provides that zoning ordinances can only be adopted after a six-month hearing and debate period and a binding referendum at an election. In 1995, the city council adopted the Historical Preservation Ordinance (HPO) which allowed for areas to be designated as historical districts. Once a historic district is created, a landowner has to apply to the city council for a certificate of appropriateness when “demolishing, modifying, or developing property” located with the district. In 2010, Houston amended the HPO to allow for a reconsideration process to be initiated by 10% of the owners in a historic district to challenge the historical designation. A group of homeowners in one of these historic districts initiated a reconsideration process which ultimately failed to change the historical designation of their district. These homeowners later brought suit against the city seeking a declaratory judgment that the HPO is void and unenforceable because it is a zoning or de facto zoning ordinance that violates the charter’s prohibition of zoning ordinances.

Zoning ordinances are adopted in accordance with a comprehensive plan and used as a “tool of community planning, allowing a municipality, in the exercise of its legislative discretion, to restrict the use of private property.” Houston argued that the HPO was not a zoning ordinance because it was not adopted as part of a comprehensive plan and the restrictions are on the modification and preservation of the property and not on how property can be used. The homeowners argued that either the HPO itself or Houston’s “general plan” was a comprehensive plan and that the use of the property was regulated and, therefore, the HPO should be considered a zoning ordinance. The First Court of Appeals concluded that none of the documents that the homeowners point to constitute a comprehensive plan because the HPO is meant to preserve an area and does not contain language implementing a comprehensive plan for community development and the general plan does not contain zoning ordinances. Further, the court found that the HPO is not a zoning ordinance because it regulates the style and aesthetic of historical buildings but not what uses or classes of buildings may exist in an area. While historical preservation districts can be part of a comprehensive zoning plan, there is no restriction on these districts being created through other non-zoning means.

Inverse Condemnation: City of Arlington v. Warner, No. 02-18-00427-CV, 2019 WL 2554237 (Tex. App.—Fort Worth June 20, 2019) (mem. op.). In this inverse-condemnation case on interlocutory appeal, the Second Court of Appeals affirmed the lower court’s decision to deny the City of Arlington’s no-evidence summary-judgment motion challenging subject matter jurisdiction.

Warner is the owner of a three-acre piece of property in the city. The city has a drainage easement across her property. Warner alleges that when it rains, water running through the easement causes her pond and property to flood, resulting in damage. Warner filed suit against the city seeking injunctive and monetary relief based on a theory of inverse-condemnation.

At the lower court, the city filed a no-evidence summary judgment motion asserting that Warner had failed to adequately plead her claim and that she presented no evidence of those claims. The city filed the interlocutory appeal after the lower court denied its summary-judgment motion.

The court held that a governmental entity cannot use a no-evidence summary-judgment motion on governmental immunity grounds to avoid the burden of asserting the evidence needed for a plea to jurisdiction. Thus, the trial court’s denial of the motion was proper and the court affirmed the ruling.

Governmental Immunity: City of Richardson v. Phelps, No. 05-18-00753-CV, 2019 WL 2912238 (Tex. App.—Dallas July 8, 2019) (mem. op.). This is an interlocutory appeal in which the court of appeals reversed the trial court’s order denying the City of Richardson’s plea to the jurisdiction in a personal injury case.

Van Phelps sued the city after he sustained an injury while riding his bicycle in a designated bike lane. Phelps alleged that the left side of the bike lane was higher than the right side, resulting in a “lip” that was a hazardous condition, and that this condition was either a premises defect or a special defect. The city filed a plea to the jurisdiction, asserting governmental immunity barred Phelps’s claims because the alleged defect was not a special defect and the city did not have actual knowledge of the condition, which is required for a premises defect. The trial court denied the plea, and the city filed an interlocutory appeal.

The court of appeals concluded that the difference in elevation in the bike lane was not a special defect as a matter of law because there was no evidence that the “lip” presented a condition like an excavation or obstruction for cyclists. Phelps testified that the other cyclists with him avoided the defect and that, if he had known about the condition, he could easily have avoided it. As such, the court determined that if the condition could be easily avoided, it was not in the nature of an excavation or obstruction on the roadway.

Additionally, the court of appeals determined that the condition of the bike lane was not a premise defect because Phelps did not raise a fact issue on the city’s actual knowledge of the dangerous condition. The evidence presented showed that the city was informed about one defect, which was repaired before Phelps’s accident, and the city did not have actual knowledge of the height difference even though the defect was a few yards away from where it had made other repairs. Accordingly, the city was immune from Phelps’s premises liability claim. 

Employment Retaliation: Lovelace v. Dallas Indep. Sch. Dist., No. 05-18-00207-CV, 2019 WL 2723801 (Tex. App.—Dallas July 1, 2019) (mem. op.). This is an appeal in which the court of appeals affirms the trial court’s order granting the Dallas Independent School District’s (DISD) plea to the jurisdiction in an employment retaliation claim under the Texas Commission on Human Rights Act (TCHRA).

After her employment was terminated, Jacqueline Lovelace, an African-American Executive Director in the DISD, sued DISD under the TCHRA. She argued DISD had retaliated against her for expressing opposition to discrimination. Lovelace argued that it was discriminatory to invite a LULAC representative to discuss complaints about an African-American principal; a parent’s decision not to meet with Lovelace could be viewed as racist; her supervisor’s meeting with the parent in Lovelace’s absence placed her in a position of marginalization; and in an email she sent to her supervisor, her supervisor’s actions appeared biased, unethical and to have a racist tenor directed toward her and the African-American principal. DISD filed a plea to the jurisdiction asserting governmental immunity from suit and arguing that Lovelace’s claims did not fall within the waiver of immunity provided by the TCHRA. The trial court granted the plea to the jurisdiction and dismissed Lovelace’s suit. Lovelace appealed.

The court of appeals applied the burden-shifting analysis required by McDonnell Douglas to the retaliation claim. The court found that Lovelace’s email to her supervisor and her later termination satisfied the prima facie case of discrimination element of the burden-shifting framework and that DISD’s evidence in its plea to the jurisdiction and supplemental filings rebutted that presumption. However, the court found that Lovelace failed to present evidence raising a question of fact that DISD’s stated reasons for terminating her employment were a pretext for retaliatory intent. Therefore, she failed to establish a waiver of governmental immunity under TCHRA.

Texas Tort Claims Act: Doe v. City of Dallas, No. 05-18-00771-CV, 2019 WL 2559755 (Tex. App.—Dallas June 21, 2019) (mem op.). In this case, the Dallas Court of Appeals affirms the trial court’s order dismissing claims against the City of Dallas.

Jane Doe, individually and as next friend of S.D. (Doe’s minor child), sued the City of Dallas after S.D. was sexually assaulted while performing community service at the Umphress Recreation Center, which the city owns and operates. Doe sued the city for premises liability and personal injury proximately caused by a condition or use of tangible personal or real property. Doe alleged the layout of the recreation center was defective; the security camera system was not installed properly; that management knew about these design defects and broken surveillance system; and that these defects led to the sexual assault. The city filed a plea to the jurisdiction arguing that the city did not receive timely written or actual notice of Doe’s claims as required by the Texas Tort Claims Act (TTCA). The trial granted the plea and dismissed the claims against the city. Doe appealed.

On appeal, Doe argues the city had subjective awareness that it was at fault because of the following facts: the city knew S.D. was instructed to clean the men’s restroom without supervision and knew the men’s restroom was hidden from view because of the facility’s layout; the city knew it was not unusual for only one person to be in the weight room; the city’s employees agreed S.D. did not cause the sexual assault; the city failed to follow its volunteer program policies and procedures with S.D., including failure to timely complete S.D.’s application to the volunteer program, obtain a signed acknowledgement from S.D. to confirm she received a copy of the volunteer program policies, and train S.D.; the city was aware the risk of leaving children alone with adults included potential sexual assault; the city lacked training, policies, or procedures for its staff and employees to protect minor children from sexual assaults; the city had a security surveillance system installed in the building to protect people, and the city knew the system was not working on the day of the incident; the city did not train employees at Umphress to use the camera surveillance system, instruct staff to monitor the surveillance system, and place a display monitor in an area accessible to multiple employees; and the city did not prohibit sex offenders or other violent criminals from using its recreation centers and did not perform background checks for those individuals.

The court concludes that whether the cumulative evidence implies the city was responsible for the injury is not the proper inquiry; the standard for actual notice is “That a governmental unity has subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries.” Doe testified that she did not inform the city or city staff that the city was responsible for what occurred. Doe’s interaction with the city was limited to identifying the perpetrator. The court holds that the evidence does not show the city had subject awareness that its fault, if any, produced or contributed to the injury. The trial court’s order is affirmed.

Texas Tort Claims Act: Grand Prairie Indep. Sch. Dist. v. Castro, No. 05-18-01415-CV, 2019 WL 2521724 (Tex. App.—Dallas June 19, 2019) (mem. op.). This is an appeal in which the court of appeals affirmed the trial court’s denial of Grand Prairie Independent School District’s (GPISD) plea to the jurisdiction and remanded the case to the trial court for further proceedings.

JIC, a school child, was on a bus operated by GPISD waiting to be transported from his middle school to another destination. At some point after the bus driver started the bus to begin the trip, but while the bus remained stationary, JIC reached beneath his seat to place his backpack out of the way. When he did, three fingers on one of his hands were lacerated by the turning blades of an unscreened fan that became operational when the bus was started by its driver. GPISD personnel knew of the exposed fan blades before the bus was started. JIC’s next friend, Castro, sued the school district for negligence.  The district filed its plea to the jurisdiction claiming immunity because the injuries did not arise from the “operation or use” of the school bus, a motor-driven vehicle, within the meaning of the Texas Tort Claims Act (TTCA).  The district court denied the plea, and GPISD filed an interlocutory appeal.

The court of appeals determined that JIC’s injuries arose from the operation or use of the school bus. The court looked to the ordinary meaning of the term “operation or use” to reject the school district’s claims that because the bus was stationary, and, at most, idling, it was doing or performing a practical work and could not constitute the operation or use of a motor vehicle. The court found that the bus motor powered the fan that caused injury to JIC, and absent the motor’s power, the fan would have been incapable of causing the injury. As a result, the court found that JIC properly pleaded a waiver of the school district’s governmental immunity.

Open Meetings Act: TOMA Integrity, Inc. v. Windermere Oaks Water Supply Corp., No. 06-19-00005-CV, 2019 WL 2553300 (Tex. App.—Texarkana June 21, 2019) (mem. op.). In this Texas Open Meetings Act (Act) case, the Sixth District Court of Appeals affirmed the lower court’s decision to not invalidate an action taken after a violation of the Act because the challenge was not immediate.

The Windermere Oaks Water Supply Co. (Windermere) held a meeting relating to the sale of a portion of their property to another party but failed to include an agenda item describing the action on their meeting notice. After Windermere completed the sale of the property, TOMA Integrity, Inc. sought to void the sale of the property because of the violation of the Act.

The court held that while a violation of the Act had occurred, the action taken was voidable but not void. Instead of seeking immediate relief after the violation of the Act, TOMA Integrity, Inc. waited until the sale had already occurred. Because the sale had already taken place the case was now moot and the court upheld the lower court’s decision to not invalidate the action.

Texas Tort Claims Act: Jarpe v. City of Lubbock, No. 07-17-00316-CV, 2019 WL 2529670 (Tex. App.—Amarillo June 19, 2019) (mem. op.). In this Texas Tort Claims Act Case, the Seventh District Court of Appeals reversed the lower court’s grant of plea to the jurisdiction because the officer’s actions did not fall within the emergency exception to the general waiver of immunity in negligence actions involving the use of a motor-driven vehicle.

Alexa Jarpe and Jeremy Leech were involved in a car accident with a City of Lubbock police officer, Officer Cooke. On the night in question, Jarpe was driving and attempted to exit a parking lot and turn on to one of the main throughways. Officer Cooke was responding to an attempted robbery when his car collided with Jarpe’s car.

Jarpe argued that sovereign immunity was waived by the city under the Texas Tort Claims Act because the officer was operating a motor vehicle at the time of the accident and the officer’s actions did not fall within the official immunity exception to waiver. The city argued that immunity was not waived because the officer was responding to an emergency during the course and scope of his employment. Government employees are entitled to official immunity when they are acting in good faith in the performance of a discretionary duty within the scope of their employment. An officer acts in good faith when responding to an incident if the reasonably prudent officer would have believed that such a response to the incident outweighed the risk to public safety.

The court held that sovereign immunity was waived because Officer Cooke did not act in good faith when responding to the incident. Officer Cooke was traveling twenty-three miles over the speed limit and did not have his sirens or lights on, both of which violated the police department’s policy. He also admitted to glancing down at his on-board mobile date computer at the time of the incident. All these actions presented a risk to public safety. At the time Officer Cooke chose to respond, the robbery had been de-escalated. Two other officers had already responded to the robbery and the suspect had fled the scene, thus Officer Cooke’s response to the situation was not reasonable.

The court held that Officer Cooke’s actions were not in good faith because a reasonably prudent officer would have acted differently. Therefore the city’s sovereign immunity was waived because the officer’s actions did not fulfill the requirements of the emergency exception to waiver.

Vested Rights: Jacks v. Zoning Bd. of Adjustment of City of Bryan, No. 07-18-00174-CV, 2019 WL 2998807 (Tex. App.—Amarillo July 9, 2019) (mem. op.). Jon Jacks (Jacks) purchased a piece of property in a residential subdivision with the intent of building a commercial laundromat on the land. Because the original plan for the subdivision had been filed with the City of Bryan in 1960, Jacks contended that he possessed vested rights under Chapter 245 of the Texas Local Government Code that requires that only those zoning laws and regulations that were in effect in 1960 apply to Jacks’ property. When the city denied Jacks’ application for a permit, Jacks appealed to the Zoning Board of Adjustment (board). The board denied Jacks’ request because he failed to identify any specific regulation that had changed since 1960 that affected the development of his property and he failed to identify any permit application that he had submitted to the board that had been denied. Jacks appealed the board’s decision to the district court. Jacks and the board both filed motions of summary judgment asserting both traditional and no-evidence grounds. After holding a hearing, the trial court granted the board’s motion and Jacks filed this appeal with five issues.

The court overruled all of Jacks’ issues and affirmed the trial court’s judgement. The court combined Jacks’ first and fourth issue. Jacks contended that the trial court erred when it failed to find that Jacks possessed vested rights in the property pursuant the Chapter 245 of the Texas Local Government Code. Conducting a de novo review, the court first reviewed whether the trial court properly applied the no-evidence standard for the motion of summary judgment. The motion for a no-evidence summary is required to be granted if the nonmovant fails to produce summary judgment evidence that raises a genuine issue of material fact on the challenged elements. The court determined that Jacks had no evidence that he properly raised the issue of his vested rights by filing an application for a permit which is required by Chapter 245, and therefore it could not conclude that trial court erred in granting the board’s no-evidence summary judgment or that the board improperly analyzed and applied chapter 245.

Next, the court reviewed Jacks’ second and third issues together. Jacks stated the trial court erred when it considered evidence on appeal that was not presented to the board prior to its decision to deny Jacks’ vested property rights and that the trial court considered defective affidavits as proper summary judgment evidence. The only evidence Jacks said the trial court considered that the board was not presented with were the defective affidavits. The court determined that since Section 211.011 of the Texas Local Government Code does allow the trial court to receive additional evidence that was not part of the record before a board of adjustment the trial court did not err in considering the two affidavits. This is especially the case since Jacks did not obtain any ruling on any evidentiary objection he raised at either the trial court nor with the board and he made no effort in establishing how he was harmed by the trial court’s consideration of the those affidavits.

Lastly, Jacks fifth issue contends that the trial court erred in denying his no-evidence summary judgment since the board did not respond to his motion with necessary evidence to defeat his motion. Though Jacks’ no-evidence motion of summary judgment only challenged the propriety of the board’s affirmative offense, which is all that could have been challenged, the trial court still had to determine whether Jacks had asserted a proper claim for vested rights. Since the Court had already determined that he had not properly asserted his vested right claim, the fifth issue was immaterial.

Governmental Immunity/Breach of Contract: Lower Valley Water Dist. v. Danny Sander Constr., Inc., No. 08-17-00261-CV, 2019 WL 3001523 (Tex. App.—El Paso July 10, 2019). The Lower Valley River District (district) solicited bids for contractors for the construction of water lines and other improvements for a construction project located in the Town of Clint and surrounding areas in 2014. Danny Sander Construction, Inc. (Sander) was the successful bidder on the project. The district and Sander entered into a written contract which required Sander to complete all work specified and indicated in the “Contract Document” by furnishing all labor, materials, transportation, and services for the construction of water lines and other improvements and related activities. The contract provided that it could be amended by change orders; the district could terminate the contract for convenience; and that Sander would be paid for work and expenses sustained prior to the termination.

Sander commenced work on the project in January 2016. There were two change orders presented to the district, which the district approved contingent upon release of funds by the Texas Water Development Board. The funds were released for Change Order 2, but not for Change Order 1. In February of 2017, the district sent an email to notify Sander that it was terminating the contract due to problems acquiring a right of entry to the site and problem encountered in a probate-court proceeding. Sander sent the district a summary of expenses incurred, but the district refused to pay the invoiced expenses. Sander filed suit asserting breach of contract for the unpaid expenses and a claim for withholding of retainage for the project. The district filed a plea to the jurisdiction asserting it had not waived governmental immunity for the expenses because they were based on Change Order 1, which was not incorporated into the contract. Sander responded to the plea stating that the expense did not included Change Order 1 only expense from the contract and Change Order 2. The trial court denied the district’s plea.

The only issue argued by the district was that it did not waive its immunity regarding delays or expenses caused by denial of funding for Change Order 1 because the change order was never incorporated into the contract and therefore the trial court lacked subject matter jurisdiction. The court disagreed with the district. Conducting a de novo review, the court stated that governmental immunity has two components: immunity from liability and immunity from suit. In this case, immunity from suit is not waived just because a governmental entity enters into a contract. Section 271.152 of the Texas Local Government Code does waive qualifying local governmental entities’ immunity from suit for certain breach of contract claims. To determine if immunity is waived under section 271.152, three elements must be established: (1) the party against whom the waiver is asserted must be a “local government entity” as defined by Section 271.151(3); (2) the entity must be authorized by statute or the Constitution to enter into contracts; and (3) the entity must in fact have entered into a contract that is “subject to this subchapter” as defined by Sections 271.151 and 271.152.

The court determined that the district is a “local governmental entity” and that it is authorized to enter into contracts. The court analyzed if the district entered into a written contract stating the essential terms of the agreement for providing goods or services to the local government entity that is properly executed on behalf of the local governmental entity. The court determined that the district did since the district acknowledged that it did enter into a properly executed contract with Sander and the trial court had jurisdiction over claims arising out of that contract. However, the district’s argument that Sanders’ claims are based on Change Order 1 is an argument that the claim will fail on its merits. The court stated that such a claim does not deprive the trial court of subject matter jurisdiction.

Official Immunity: Hernandez v. Blackburn, No. 09-17-00452-CV, 2019 WL 2455272 (Tex. App.—Beaumont June 13, 2019) (mem. op.). In this case, the Beaumont Court of Appeals affirms the trial court’s judgment granting the motion for summary judgment.

Kevin Blackburn, an officer employed by the City of Livingston Police Department and working as a school resource officer sprayed Hernandez with pepper spray during an altercation at a high school soccer game. Hernandez sued Blackburn asserting causes of action for assault and battery and negligence. Blackburn filed a motion for summary judgment based on the affirmative defense of official immunity. The trial granted the motion and Hernandez appealed.

A government employee is entitled to official immunity: (1) for the performance of discretionary duties, (2) performed within the scope of the employee’s authority, (3) provided the employee acts in good faith. The Beaumont Court of Appeals holds the evidence established all three elements of the defense. Blackburn was performing a discretionary function. He had to make several decisions when the fighting began, he decided (was not instructed) to go on to the soccer field, he was responding to an emergency, and the force used to break up the fight was a judgment call. Blackburn was acting within the scope of his authority. Even though Blackburn was working the soccer game off-duty, as an officer of the Livingston Police Department, he was subject to his peace officer’s oath and once the fighting started Blackburn became an on-duty officer. Blackburn acted in good faith. The key facts about the fight are not in dispute. Blackburn was the only law enforcement official present at the soccer game. After issuing verbal commands and physically trying to stop the altercation involving Hernandez, Blackburn administered the pepper spray. The evidence established that Blackburn needed to break up the fight quickly before one of the boys was hurt and to address other fights that were occurring. Once the burden shifted, Hernandez failed to present evidence that no reasonable officer could have believed using pepper spray under the circumstances was warranted.

Governmental Immunity: Houston Firefighters’ Relief & Retirement Fund v. City of Houston, No. 14-17-00533, 2019 WL 2536652 (Tex. App.—Houston [14th Dist.] June 20, 2019). Following the passage of S.B. 2190 in 2017, which made amendments to the Houston Firefighters’ Relief and Retirement Fund statute, the Fund sued the City of Houston and various city officials alleging that the legislation violated Article XVI,

Section 67(f) of the Texas Constitution by infringing upon the exclusive authority of the Fund’s board of trustees to determine “sound actuarial assumptions.” The city and city officials asserted pleas to the jurisdiction on various grounds, including that their governmental immunity had not been waived. The trial court sustained the pleas to the jurisdiction and the Fund appealed.

On appeal, the Fund asserted that by pleading a claim for a declaratory judgment that S.B. 2190 violates the Texas Constitution, it established a waiver of the city’s governmental immunity under both the Declaratory Judgments Act and the common law. The city argued that the city’s governmental immunity is waived only to the extent the Fund pleaded a viable or valid constitutional claim, which the Fund did not do. The court goes on to examine whether the Fund asserted a viable claim that S.B. 2190 facially violates Article XVI, Section 67(f).

For a statute to facially violate a constitutional provision, the statute must by its terms always and in every instance operate unconstitutionally. The Fund asserted that S.B. 2190 facially violates the constitutional mandate that the board adopt sound actuarial assumptions by: (1) mandating the required assumptions; (2) requiring the averaging of contribution rates; and (3) requiring the use of the independent-actuary assumption. With regard to all three provisions, the court held that the facial challenge failed as a matter of law because the statute does not always operate unconstitutionally. Consequently, the Fund did not plead a viable or valid constitutional claim, and therefore the city’s governmental immunity was not waived. The court held that the trial court did not err in dismissing the Fund’s claims for lack of subject-matter jurisdiction. 

Workers’ Compensation: City of Dallas v. Thompson, No. 12-19-00032-CV, 2019 WL 2710247 (Tex. App.—Tyler June 28, 2019) (mem. op.). Following a determination by a hearing officer with the Texas Department of Insurance’s Division of Workers’ Compensation (DWC) that Gregory Thompson sustained a compensable injury while employed by the City of Dallas, and the subsequent final decision by the DWC, the city ultimately filed suit for judicial review of the hearing officer’s determinations and final decision of the DWC. Thompson filed counterclaims complaining that the DWC’s determination that the city’s notice of denial of compensability was sufficient to contest compensability of the claimed injury. Thompson also requested attorney’s fees. The city filed a plea to the jurisdiction challenging the trial court’s jurisdiction over Thompson’s counterclaims. The trial court denied the city’s plea to the jurisdiction regarding Thompson’s complaints about sufficiency of the notice, but sustained the city’s plea as to the counterclaim for an award of attorney’s fees. Each side appealed.

On appeal, the city argued that the trial court had no jurisdiction regarding Thompson’s failure to seek judicial review of his counterclaims within 45 days after the date the DWC mailed the final decision to the parties as required by Section 410.252 of the Labor Code. The court relies on the Texas Supreme Court decision from April 2019 in Tex. Mut. Ins. Co. v. Chicas to dismiss the city’s argument. That decision provided that the 45-day deadline to file suit for judicial review of a DWC decision is not jurisdictional. Therefore, the trial court did not err in denying the portion of the city’s plea complaining that Thompson’s counterclaims were not timely.

In his cross point, Thompson argued that the trial court erred in granting the city’s plea as to his claim for attorney’s fees, contending that the legislature intended that cities are to be held liable for attorney’s fees pursuant to Section 408.221(c) of the Labor Code. The city argued that governmental immunity protected the city against Thompson’s claim for attorney’s fees. The court held that the city availed itself of its statutory right to challenge Thompson’s award by pursuing an appeal of the administrative decision, and that decision by the city did not result in a loss of the city’s governmental immunity from Thompson’s claim for attorney’s fees. The trial court did not err in sustaining the city’s plea as to Thompson’s counterclaim for attorney’s fees.

*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