Recent Texas Cases of Interest to Cities

Note: Included cases are from June 11, 2021 through July 10, 2021.

Employment Discrimination: Texas Dep’t of Transp. v. Lara, No. 19-0658, 2021 WL 2603689 (Tex. June 25, 2021).  A former employee brought an action against the Texas Department of Transportation (Department) under the Texas Commission on Human Rights Act (TCHRA), alleging that the Department terminated his employment after he exhausted his five months of sick leave while recovering from surgery, that the Department failed to reasonably accommodate his disability by granting him additional leave without pay in accordance with its policy, and that the Department discharged him in retaliation for his request for additional leave.  The trial court denied the Department’s combined plea to the jurisdiction and motion for summary judgment based on sovereign immunity.  The Austin Court of Appeals affirmed in part and reversed and rendered in part. Both parties petitioned for review. 

The Texas Supreme Court affirmed in part, reversed in part, and remanded, holding that:  (1) a genuine issue of material fact exists as to whether the former employee requested leave without pay (LWOP) as a reasonable accommodation, which precludes summary judgment on his disability-discrimination claim; (2) a genuine issue of material fact exists as to whether the former employee’s request for LWOP was a reasonable accommodation or request for indefinite leave, which precludes summary judgment on his disability-discrimination claim; (3) the former employee failed to show that he engaged in activity protected by TCHRA when he requested LWOP as a reasonable accommodation for his medical issues, and thus failed to establish a prima facie case of retaliation based on the Department’s denial of his request and termination of his employment; and (4) the former employee’s pleadings gave fair notice of a claim for disability discrimination under the TCHRA.

Copyright Infringement: Jim Olive Photography d/b/a Photolive, Inc. v. Univ. of Houston Sys., No. 19-0605, 2021 WL 2483766 (Tex. June 18, 2021).  Photolive, Inc. (Photolive), aprofessional photographer, brought an action against the University of Houston System (University), a public university, alleging an unlawful taking based on the University’s unauthorized use of a copyrighted aerial photograph of the City of Houston on the University’s webpage.  The district court denied the University’s plea to the jurisdiction and the University filed an interlocutory appeal. The Houston Court of Appeals vacated and dismissed, finding that a governmental unit’s copyright infringement is not a taking.  Photolive petitioned for review, which was granted.  The Texas Supreme court affirmed, holding that a violation of a copyright, without more, is not a taking of the copyright.

Employment: Houston Cmty. Coll. v. Lewis, No. 01-19-00626-CV, 2021 WL 2654141 (Tex. App.—Houston [1st Dist.] June 29, 2021) (mem. op.). This appeal stems from a trial court’s holding denying the college’s plea to the jurisdiction on a racial discrimination claim and a whistleblower retaliation claim.  The appellate court reversed the trial court’s judgment and dismissed the case finding that the plaintiff provided insufficient evidence of discriminatory intent in her termination and failed to provide causation related to the whistleblower retaliation claim.  The court determined that evidence that a subordinate employee had made a derogatory remark was insufficient to show discriminatory intent, the employer established a reasonable basis for the plaintiff’s termination, and her replacement was also African-American.

The court also found that the plaintiff failed to provide evidence of causation related to the whistleblower retaliation claim because the individuals responsible for her termination did not have knowledge of her report of alleged illegal activity before her termination.  To establish a claim under the Texas Whistleblower Act, an employee must establish that but for a good faith report of illegal activity, the employer would not have taken an adverse employment action against the employee.  The plaintiff failed to produce evidence that the individuals responsible for her termination knew about her report of illegal activity to the veterans organizations at the state and federal level.  This failure meant the causation prong of the whistleblower claim was not met.*

Water Rights: Brazos River Auth. v. City of Houston, No. 03-20-00076-CV, 2021 WL 2677121 (Tex. App.—Austin June 30, 2021). This is a dispute over the right to construct and operate a reservoir on Allens Creek. The City of Houston and the Brazos River Authority (Authority) have jointly held a water-appropriation permit authorizing them to construct the reservoir and to use some of the water impounded there. In 2019, the legislature, pursuant to H.B. 2846, instructed the city to transfer its entire interest in the proposed reservoir, including its permit rights, to the Authority. On cross-motions for summary judgment, the district court granted declaratory relief, finding that H.B. 2846 is “unconstitutional, void, and unenforceable.” The appellate court affirmed the trial court’s judgment.

Tort Claims Act: City of Austin d/b/a Austin Energy v. Lopez, No. 03-19-00786-CV, 2021 WL 2587718 (Tex. App.—Austin June 24, 2021).  Plaintiff, on behalf of her minor son, sued the city for negligence and negligence per se in relation to the decedent’s death as a result of an alleged accident that occurred on a construction site.  Decedent was working as part of a stucco crew and standing on a metal scaffold that the stucco crew had erected near the city’s power line.  Decedent was electrocuted when he contacted the power line with a 10-foot roll of metal mesh that he was holding while cutting it with metal wire-cutters.   

At trial, the city moved for a directed verdict, contending that the plaintiff’s theory alleging that the city’s failure to maintain its power lines and poles created the dangerous condition that caused the accident was a premises-liability claim, not a general-negligence claim, and that judgment should be rendered in its favor because plaintiff had not alleged or adduced any evidence as required to recover on a general-negligence claim. Nonetheless, the jury found the city negligent and assigned the city with 26 percent responsibility for the accident.  The trial court signed a final judgment: (1) awarding Plaintiff $2,433,600 in damages against the city plus costs, prejudgment interest, and post judgment interest; and (2) ordering the other defendants to indemnify the city for the same amount as required by state law. The city appealed asserting jury charge error and three evidentiary-sufficiency issues.

The appellate court affirmed the trial court’s judgment holding that the city, as a public utility, had a duty to exercise ordinary and reasonable care, but the degree of care required must be commensurate with the danger.  The “commensurate with the danger” standard does not impose a higher duty of care; rather, it more fully defines what is ordinary care under the facts presented.  Here, the city’s failure to remedy the leaning pole was a relevant breach of duty because if the pole had been straightened even five degrees and brought back roughly three and a half feet (which would have placed the line nearly 11 feet away from the overhang), the accident would never have happened.

Annexation: City of Fredericksburg v. E. 290 Owners’ Coalition, No. 04-20-00349-CV, 2021 WL 2445621 (Tex. App.—San Antonio June 16, 2021).  On June 4, 2018, the city sent letters to property owners in the city’s extraterritorial jurisdiction (ETJ) informing them that the city was going to begin annexation procedures on an area that included their property.  Because the property owners’ land was under an agricultural property tax exemption, the city provided the property owners a pre-annexation development agreement in lieu of annexation that informed the property owners that if they did not respond, the city would assume the owners had declined to enter into the agreement and their property might be annexed and public services provided in accordance with a statutory annexation service plan. Under the terms of the proposed pre-annexation development agreement, the city agreed to the continuation of the ETJ status of the owner’s property, to immunity of the property from annexation by the city, and to immunity of the property from city property taxes. In return, the property owner would agree not to use the property for any use other than for agriculture, wildlife management, and/or timber land, except for any existing single-family residential use of the property. Unless terminated earlier, the term of the agreement commenced on the date of execution by both parties and terminated on. May 1, 2033. Some property owners elected not to enter into the proposed pre-annexation development agreement and, instead, began negotiations with the city over other acceptable terms and conditions. On February 26, 2019, the city sent an email explaining what terms and conditions the city would require as part of a “Voluntary Annexation Agreement” with the owners of properties along East U.S. Highway 290. On March 12, 2019, the owners sent a proposed “Voluntary Annexation Agreement” to the city, which the owners contended tracked the proposed terms and conditions. One month later, on April 12, 2019, the E. 290 Owners’ Coalition (Coalition), comprised of unnamed property owners, filed suit against the city, alleging: (1) breach of contract as the February 26, 2019 email constituted an “offer” and the March 12, 2019 responsive email constituted an “acceptance,” thereby creating contractual rights and responsibilities between the parties; and (2) violation of the annexation statute.  The city filed a plea to the jurisdiction alleging: (1) the Coalition lacked associational standing to sue on behalf of unnamed property owners; (2) the trial court lacked subject-matter jurisdiction over the Coalition’s causes of action for breach of contract and its claim for damages because the city had immunity and there is no waiver of its immunity; (3) the lawsuit was not a proper ultra vires suit; (4) the Coalition lacked standing to challenge an annexation proceeding based on alleged procedural defects; (5) enjoining a legislative act violated the separation of powers; and (6) the Coalition’s takings claim is not ripe. The trial court denied the plea, and the city filed an appeal.  The court of appeals reversed the trial court’s order judgment granting the city’s plea to the jurisdiction and dismissing without prejudice appellee’s claims for breach/anticipatory breach of contract, regulatory takings, and requests for declaratory relief.

Tort Claims Act: Town of Highland Park v. McCullers, No. 05-19-01431-CV, 2021 WL 2766390 (Tex. App.—Dallas June 29, 2021).  The Town of Highland Park hired a Southern Methodist University police officer to perform extra duty work to guard a private residence under construction.  While guarding the residence, a storm flooded the area and the officer died.  The officer’s estate sued and the town filed a plea to the jurisdiction on the grounds that the plaintiff failed to provide the city notice. The trial court denied the plea. The appellate court reversed the trial court and granted the plea. It found that: (1) the plaintiffs did not provide notice within six months as required by statute or within 30 days as required by the town’s charter; and (2) the town did not have actual or subjective awareness of the incident. The appellate court also rejected the plaintiff’s argument that the town was acting in a proprietary capacity when providing private security.

Governmental Immunity: City of Houston v. Ayala, No. 14-20-00164-CV, 2021 WL 2472804 (Tex. App.Houston [14th Dist.] June 17, 2021).  Ayala slipped and fell on an orange substance when exiting an escalator in the George Bush International Airport and sued the city for negligent activity and premises liability. The city filed a plea to the jurisdiction arguing governmental immunity, which was denied by the trial court, and the city appealed. A governmental unit is immune from suit unless its immunity is expressly waived. The Texas Tort Claims Act can waive immunity for cases based on premises defects.  Because Ayala was merely the holder of a plane ticket and did not specifically pay for entry to the airport, the city owed her the duty of care due to a licensee rather than an invitee, which means the city had to protect her from a dangerous condition of which it actually knew. The court determined that because Ayala failed to establish actual knowledge of the dangerous condition, her claims should have been dismissed.  Furthermore, the court held that because Ayala’s claims were founded in premises liability, the negligent activity claims should also be dismissed. Accordingly, the appellate court reversed the trial court’s order and rendered judgment dismissing the case.

Governmental Immunity: City of Houston, v. Gonzales, No. 14-19-00768-CV, 2021 WL 2586242 (Tex. App.Houston [14th Dist.] June 24, 2021) (mem. op.).  Gonzales sued the City of Houston asserting negligence after a city crane operator allegedly swung a crane arm in his direction to scare or strike him. The city filed a Rule 91a motion to dismiss a baseless cause of action, asserting immunity from intentional tort claims, which was denied by the trial court. The city appealed. The Texas Tort Claims Act does not waive governmental immunity for intentional torts; therefore, the trial court lacked jurisdiction over the claim. The appellate court reversed the trial court’s order and rendered judgment dismissing the case.

Governmental Immunity: Chappell Hill Sausage Co., v. Durrenberger, No. 14-19-00897-CV, 2021 WL 2656585 (Tex. App.—Houston [14th Dist.] June 29, 2021) (mem. op.).  Chappell Hill Sausage Company (Landowner) filed suit against seven Washington County officials in their official capacities alleging ultra vires failures to maintain a culvert in a county road. The county filed a plea to the jurisdiction based on governmental immunity, which was granted. The Landowner appealed. Even if a governmental entity’s immunity has not been waived, a suit may be brought against an official if the official engages in ultra vires conduct (i.e. acting without legal authority or failing to perform a purely ministerial act).  The Landowner’s original petition failed to plead facts establishing jurisdiction, but also did not demonstrate incurable defects in jurisdiction. Construing the Landowner’s pleadings liberally in their favor, the appellate court reversed the trial court’s order dismissing the case.

*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