Recent Texas Cases of Interest to Cities

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

Texas Tort Claims Act:  Garza v. Harrison, No. 17-0724, 2019 WL 2237875 (Tex. May 24, 2019).  This is a Texas Tort Claims Act (TTCA) case regarding Civil Practice and Remedies Code Section 101.106(f). The Texas Supreme Court reversed the Fourteenth Court of Appeals and rendered judgment dismissing the suit against the officer.

In this case, an off-duty law enforcement officer fatally shot a suspect during the course of an attempted arrest outside his primary jurisdiction. The decedent’s parents sued the officer in his individual capacity for wrongful death, but the officer asserted the action is actually an official-capacity suit that must be dismissed under the TTCA. The election-of-remedies provision in Section 101.106(f) of the TTCA requires courts to grant a motion to dismiss a lawsuit against a governmental employee sued in an “official capacity” but allows the governmental unit to be substituted for the employee. 

As defined in Section 101.106(f), a governmental employee is sued in an official capacity when the suit: (1) is “based on conduct within the general scope of that employee’s employment”; and (2) “could have been brought under [the Act] against the governmental unit.” The Texas Supreme Court stated that the scope-of-employment inquiry under Section 101.106(f) focuses on whether the employee was doing his job, not the quality of the job performance. Even if work is performed wrongly or negligently, the inquiry is satisfied if, when viewed objectively, “a connection [exists] between the employee’s job duties and the alleged tortious conduct.” The Supreme Court found a connection existed between the defendant law enforcement officer’s job responsibilities and the alleged tort because he was exercising a statutory grant of authority to make a warrantless arrest for a crime committed in his presence—authority he possessed solely through his governmental employment. The Court found that the officer should have been dismissed under Section 101.106(f) and rendered judgment dismissing the officer.

Texas Tort Claims Act:  Tarrant Cty. v. Bonner, No. 18-0431, 2019 WL 2256509 (Tex. May 24, 2019).  This is a Texas Tort Claims Act (TTCA) claim where the Texas Supreme Court held Tarrant County (county) was immune from liability for a defective chair while treating an inmate for his medical condition.

A deputy accidently damaged the leg of a chair while working at the jail where Bonner was housed. The deputy notified his supervisor of the damaged chair, who instructed the deputy to place the chair in the multipurpose room before filling out a report. Bonner, an inmate, had diabetes and entered the multipurpose room for treatment. When he attempted to use the chair, it collapsed. Bonner sued for injuries under the TTCA asserting the negligent use of personal property. At the summary judgment stage, the county argued despite the waiver under the TTCA, it retained immunity under the Texas Code of Criminal Procedure (TCCP) and Texas Government Code. The trial court granted the motion, the court of appeals reversed, and the county filed a petition for review.

Under TCCP Article 42.20, certain individuals and governmental entities are not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. Similarly, under the Texas Government Code Section 497.096, county and sheriff’s department employees are not liable for damages arising from action or inaction in connection with an inmate or offender treatment activity if the action or inaction was not intentional, willfully negligent, or performed with conscious indifference or reckless disregard. After analyzing the statutory sections, the Court held Bonner’s allegations are more than simply the county failing to warn of the broken chair, it was the use of the chair during treatment which caused his injury. The two statutes immunize negligent acts and omissions that are reasonably related to the covered programs or activities, even when the relationship is indirect. As a practical matter, this includes acts or omissions, which give rise to damages during covered programs and activities. The Court recognized the statutes only immunize the county from liability to the extent its corporate actions or omissions were not performed with conscious indifference or reckless disregard for the safety of others. As a result, the county had immunity from liability, not immunity from suit. The county must assert it qualifies for the conditions, thereby placing the burden on the county. Once the defendant establishes that those conditions exist, the burden falls on the plaintiff to establish the statute’s exception to that defense, which is expressed as a heightened liability standard. The Court referred to this as a form of statutory immunity. Under this heightened standard, a defendant must have actual subjective knowledge of an extreme risk of serious harm. Based on the record, the Court concluded no evidence exists of conscious indifference towards Bonner. As a result, the trial court’s granting of the summary judgment was proper.

Justice Boyd concurred in the judgment, but wrote separately as he disagreed that: (1) conscious indifference is “the same as” gross negligence; or (2) a person cannot be consciously indifferent to a risk that is less than “extreme.”*

Contracts:  Dallas/Fort Worth Int’l Airport Bd. v. Vizant Techs., L.L.C., No. 18-0059, 2019 WL 2147262 (Tex. May 17, 2019).  This is a governmental immunity defense in a breach of contract case where the Texas Supreme Court held Chapter 271 of the Texas Local Government Code did not waive immunity for the specific relief required under the contract.

The Dallas/Fort Worth International Airport Board (board) retained Vizant Technologies, L.L.C. (Vizant) by contract to provide recommendations on how the airport could reduce payment-processing costs. The contract contained provisions where the board would pay Vizant a percentage of savings and/or refunds based on its advice. The contract stated the cap on payments shall not exceed $50,000. The Court commented in a footnote that it appeared this was done to avoid competitive bidding limits or authorizations by delegation to staff without board approval. However, the contract also contained a provision that in the event Vizant’s fee exceeds this cap the Board “will make a good faith effort to receive board authorization to increase the compensation,” and “if approved,” the parties would amend the contract to reflect the higher amount. The board’s staff paid the $50,000 and ultimately asked the board to approve an increase to $330,000, but the board denied that request. Vizant sued. Vizant asserts its fees should have exceeded $300,000, but the airport failed to use a good faith effort to obtain board approval. The board filed a plea to the jurisdiction which was denied, but the court of appeals reversed and dismissed. Vizant filed its petition for review.

The Court first held the board was acting in a governmental not proprietary capacity. The legislature has unambiguously declared that the “maintenance, operation, [and] regulation” of an airport and the “exercise of any other power granted” for that purpose, whether exercised “severally or jointly” by local governments, “are public and governmental functions, exercised for a public purpose, and matters of public necessity.” As a result, the board is immune absent a waiver.

Contract waivers are primarily found in Chapter 271 of the Texas Local Government Code. While it has a waiver of immunity, it has limiting language as to the types of damages allowed and contractual approvals which apply. The “good faith” effort language becomes pivotal for this analysis. A contractual duty to act in good faith does not create a new obligation or independent cause of action; instead, it merely governs the conduct by which the party must fulfill the contractual obligation to which it applies. Under the written terms of the contract, read literally, the board promised to make a good-faith effort to obtain its own authorization for the higher payments. The parties agreed the board’s staff negotiated based on delegated authority and executed the contract on the board’s behalf, with the board’s authority, but without the board’s express approval. Under these circumstances, the Court held it was reasonable to construe the clause as a promise by the board’s staff to make a good-faith effort to obtain the board’s authorization for any higher payment. The staff had no authority to contractually obligate the board to pay anything more than $50,000. To the extent the staff agreed to make a good-faith effort, that promise is not enforceable against the board, and even if it were, the remedy could never be to require the board to pay more than it authorized the staff to negotiate. To the extent the board made any form of agreement, the board merely promised to make an effort to agree to the higher payment, but to do so in good faith. “In this sense, its promise was the equivalent of a promise to negotiate towards a future bargain in good faith.” Agreements to negotiate toward a future contract are not legally enforceable. However, even if such were enforceable, the listed measure of damages constitutes consequential damages incurred as a result of the defendant’s failure to act in good faith, not as a result of the defendant’s failure to perform under the anticipated contract. And since Section 271.153 expressly excludes this type of consequential damages, the board retained immunity.*

Public Utility Regulatory Act: Time Warner Cable Texas L.L.C v. CPS Energy, No. 17-0840, 2019 WL 2147257 (Tex. May 17, 2019).  This case deals with utility-pole-attachment rents. The Texas Supreme Court held that the utility’s failure to take timely action to collect on one provider’s unpaid utility-pole-attachment invoices constituted discrimination between providers in violation of the Public Utility Regulatory Act (PURA).

CPS Energy is a municipally-owned utility. It agreed with Time Warner and AT&T to charge the same utility-pole-attachment rent. However, AT&T did not pay the full amount and paid a lesser, older rent amount. CPS Energy did nothing for almost 2 years until it initiated an administrative action with the Public Utility Commission (PUC).  The PUC determined that because CPS Energy failed to take “meaningful,” “serious,” and “timely action to ensure all pole attachers paid the uniform rate it invoiced,” it had violated Section 54.204(b) and (c) of PURA.  CPS Energy appealed.  The district court affirmed and the court of appeals reversed.

The Supreme Court determined that there was no dispute that while CPS Energy charged Time Warner and AT&T the same rates, it collected far more from Time Warner. The Court found that the PUC could have reasonably concluded that CPS Energy violated the plain terms of Section 54.204(b) and did not address whether the same conduct also violated subsection (c). The Supreme Court reversed the court of appeals’ judgment in part and remanded the case to the trial court.

Eminent Domain: KMS Retail Rowlett, LP v. City of Rowlett, No. 17-0850, 2019 WL 2147205 (Tex. May 17, 2019). In this eminent domain case, the Texas Supreme Court held that the condemnation of an easement that conferred an incidental benefit on a private party did not rise to the level of fraud that would prevent the taking.

The City of Rowlett became interested in recruiting Sprouts Farmers Market to put one of their grocery stores in Rowlett. Sprouts was similarly interested in putting a location in Rowlett and entered into a lease with Briarwood Armstrong, L.L.P. (Briarwood) to put a location on a tract owned by Briarwood. Briarwood’s tract was located next to tracts owned by KMS. KMS owned several businesses that had a private drive running in front of them ending in a dead end. The city entered into a deal with Briarwood that required Briarwood to put in a private circulation drive that would provide access to adjacent properties. The circulation drive would begin on the Briarwood property, run across part of KMS’s tract and connect with the existing private drive. Briarwood and KMS entered into negotiations for the purchase of an easement to build the circulation drive but never made a deal. Rowlett decided to condemn the area needed to build the circulation drive and filed a petition for eminent domain, ultimately awarding KMS $31,662 for the taking. KMS moved to dismiss the petition for eminent domain.

The Texas Supreme Court affirmed the lower court and held that the city had the authority to condemn the land. KMS argued that language in Section 2206.001(b) of the Texas Government Code prohibiting a taking “for a public use that is merely a pretext to confer a private benefit on a particular private party” should apply in this case. Section 2206.001(c) states that “the section does not affect the authority of an entity authorized by law to take private property through the use of eminent domain for . . . transportation projects.”  The Court held that Section 2206.001(c) was an exception to Section 2206.001(b), rendering it inoperative when it applied. Here, the Court found that the circulation drive clearly fell within the definition of transportation project and therefore was an authorized taking. KMS argued that the definition of “transportation project” should come from Section 370.031(a) of the Texas Transportation Code. The Court did not agree and found that the broad definition in Section 2206.001(c) was the correct one to use.

KMS next argued that the condemnation was not a constitutionally valid exercise of Rowlett’s eminent domain powers because the circulation drive was not for a public use. The Court concluded evidence relied on by the court of appeals established that the drive was for a public use and therefore constitutional. Finally, KMS argued fraud should preclude the taking because the city used its eminent domain authority to confer a benefit on a private party. The Court held that a private party receiving an incidental benefit from a taking was insufficient to deprive the taking of its public character. That Briarwood received some monetary benefit from the taking did not change the fact that the circulation drive was for public use.

Ballot Measure: Noteware v. Turner, No. 01-18-00663-CV, 2019 WL 2180635 (Tex. App.—Houston [1st Dist.]  May 21, 2019). In this challenge to the sufficiency of a bond measure, the First Court of Appeals affirmed the lower court’s decision to dismiss the case for lack of subject-matter jurisdiction.

Pursuant to a pension reform bill passed by the Texas Legislature, the City of Houston set out to hold an election to approve certain bonds to fund a portion of the unfunded liability with respect to the Houston Municipal Employee Pension System and the Houston Police Officers’ Pension System. The city’s home rule charter includes a revenue cap on the amount that ad valorem taxes may be increased in a fiscal year. The city council adopted an ordinance ordering an election on the issuance of bonds and containing specific language for the ballot proposition. The ballot measure ultimately succeeded and the city sought to have the bonds approved by the Office of the Texas Attorney General (AG).

Noteware sued the city alleging that the ballot measure was insufficient because it included a materially misleading ballot description for the proposition. He argued that the ballot measure allowed the city to levy a tax in excess of the revenue cap in the city charter. He filed for an emergency temporary restraining order and a temporary injunction, which were not granted.

The AG issued an opinion approving the bonds, concluding that the bonds were payable from proceeds of an annual ad valorem tax levied. The bonds were issued and delivered. The city moved to dismiss the suit for lack of subject-matter jurisdiction and the trial court granted their motion.

The First Court of Appeals first noted that, even if the ballot measure was found to be insufficient, the court could only void the results of the election and not the bonds. Under Section 1202.006, once bonds are approved and issued, they are valid and incontestable. The court notes that the bonds were approved on the representation that the tax levied would be within the revenue cap and the city is bound by terms of the bond. For these reasons, the court held that Noteware lacked subject-matter jurisdiction because the suit was moot.

Public Information: King v. Paxton, No. 03-18-00298-CV, 2019 WL 2392711 (Tex. App.—Austin June 6, 2019). This is an appeal of the trial court’s order requiring the disclosure of certain information and the withholding of other information under the Public Information Act.

On the night in question, police officers from the City of Abilene Police Department arrived at Susan King’s home to initiate a welfare check on King. The officers had discussions with King in her home, on her front porch, in a police cruiser, and eventually in the presence of a mental healthcare professional. The officers’ patrol-car dash cameras that captured video from within the cars and audio from microphones that were worn on each officer’s body recorded the entire encounter. Toward the end of the incident, King accompanied the officers to a location where her mental health could be evaluated. The police vehicle that transported King to that location was equipped with a camera that recorded from inside the vehicle, while the body microphones of the two officers involved in the transport recorded the audio inside the vehicle. Following this  interaction, the city received a public information request for the audio and video recordings from the night of the encounter, incident reports and notes prepared by the officers, and email exchanges among police officers, the city attorney, and the Texas Department of Public Safety (DPS).

The city submitted a request for a ruling from the Office of the Attorney General (attorney general) raising two exceptions: Sections 552.108(a)(2) and 552.101 of the Government Code. The attorney general marked some of the recordings as confidential but concluded that the rest of the recordings could be disclosed. King and her husband filed suit against the city and the attorney general seeking declaratory and injunctive relief to prevent all of the recordings from being released under Sections 552.108(b)(2) and 552.109 of the Government Code, Section 1701.661(f) of the Occupations Code, Section 611.002 of the Health and Safety Code, and constitutional and common-law rights to privacy. The trial court agreed that the material withheld by the attorney general was excepted from disclosure but concluded that additional information should also be withheld, mostly under the doctrine of common-law privacy. The court also ruled that additional information was excepted from disclosure: one of the emails between an officer and DPS, citing Section 411.192 of the Government Code; three portions of the audio recordings of King’s conversations that occurred inside her home, citing Section 1701.661(f) of the Occupations Code; and three portions of audio records of King’s conversations with a mental-health professional, citing Section 611.002 of the Health and Safety Code.  The Kings and the attorney general filed this appeal.

The court of appeals first addressed whether the audio recordings could be excepted from disclosure under Section 552.108 of the Government Code, which excepts information held by a law enforcement agency that relates to investigations that did not result in conviction or deferred adjudication. Although the city did not assert this exception in its request for a ruling, King wished to assert the exception to prevent all of the audio records from being disclosed. The court did not determine whether a third party could assert this exception. Rather, the court determined that this exception did not apply to the audio recordings in question because a welfare check, absent evidence that the welfare check became a criminal investigation, is not a violation of the law that could result in a conviction or deferred adjudication.

The court then addressed whether recordings taken within King’s home and her front porch were recordings made in a “private space” and by a “body worn camera.” The Kings argued that because the recordings at issue were recorded by “cameras that capture video from within a patrol car and audio from microphones on each officer’s body,” the recordings were created by recording devices that are within the statutory definition of “body worn cameras.” The court agreed, concluding that the plain language of the statute encompasses such recording devices. The court also determined that a person’s home is considered a “private space,” and that, under the circumstances, King had a reasonable expectation of privacy on her front porch, making her porch a “private space.”

Next, the court addressed whether all the recordings between King and the officers could be excepted from disclosure under Section 611.002 of the Health and Safety Code, which applies to communications between a patient and a medical professional. The court held that the officers did not fall within the meaning of this provision and therefore only King’s conversations with the actual healthcare professional were confidential while her conversations with the officers were not.

Finally, the court looked at whether the remaining parts of the recordings could be excepted from disclosure under constitutional, common-law, and statutory privacy rights. The court held that some of the information relating to King’s marriage and family on the recordings fell within constitutional “zones of privacy” and could not be disclosed. However, the court found that the rest of the information did not fall within the common-law right to privacy because it did not rise to the level of “highly intimate or embarrassing facts the publication of which would be highly objectionable to a reasonable person.”

Governmental Immunity: City of New Braunfels v. Carowest Land, Ltd., No. 03-17-00696-CV, 2019 WL 2127743 (Tex. App.—Austin May 16, 2019). This is an interlocutory appeal of the trial court’s order denying pleas to the jurisdiction each filed by the City of New Braunfels and its contractor, Yantis, in a suit brought by a local property owner, Carowest.

Carowest owned property within the city, a portion of which it voluntarily conveyed to the city for the construction of a drainage channel. The city hired Yantis to construct the drainage channel. There were two parts of the project, the South Tributary Project and the North Tributary Project. The South Tributary Project did not go smoothly, and the city and Carowest entered into an agreement allowing Carowest to modify the location and design of the channel in exchange for Carowest paying for certain costs related to the modification and to indemnify the city for any claims brought by, incurred by and claimed by Yantis attributable to the modification. Without telling Carowest, the city and Yantis entered into several agreements that had the effect of releasing all of Yantis’ claims against the city for the Carowest portion of the South Tributary Project. Yantis sent several delay claims to the city which the city then forwarded to Carowest.

Carowest brought this suit against both the city and Yantis after the city refused to rescind its request that Carowest handle the delay claims and Yantis refused to drop the delay claims.  Carowest asserted multiple declaratory claims related to the validity of Yantis’s delay claim and the parties’ corresponding obligations under the agreements. The city and Yantis each filed a plea to the jurisdiction.  The trial court denied the pleas and the city and Yantis appealed.

The court of appeals held that the city had not waived governmental immunity because this was a bare claim for declaratory judgment relief in which the city did not assert an affirmative claim of relief.  Additionally, the court found that because there was no pending breach of a contract claim, Chapter 271 of the Local Government Code did not waive the city’s immunity from suit.  Finally, the court held that because Yantis had not shown that it is a governmental unit, it was not entitled to an interlocutory appeal of a ruling on a plea to the jurisdiction. 

Public Information Act: Paxton v. City of Dallas, No. 06-18-00095-CV, 2019 WL 2119644, (Tex.  App.—Texarkana May 15, 2019) (mem. op.). In this Texas Public Information Act (PIA) case, the Texarkana Court of Appeals held noncore attorney work product is confidential and not subject to public disclosure under the PIA.

The city received seven PIA requests for reports and other records relating to specified incident investigations, each conducted in response to a notice of claim for damages received by the city. In each case, the city sought an attorney general (AG) opinion and was told to release the information. The city filed suit as an appeal. In cross-motions for summary judgment, the trial court ruled for the city holding the information was confidential. The AG appealed.

“Core public information” (also referenced as “super-public” information) is protected from disclosure only “if it is confidential under either the PIA or other law.” Core public information includes “a completed report, audit, evaluation, or investigation made of, for, or by a governmental body.” Tex. Gov’t Code § 552.022(a)(1). It is confidential only if made so by other law. The city asserted the information is noncore work product under Rule 192.5 of the Texas Rules of Civil Procedure and, therefore, is “confidential under . . . other law.” The Texas Supreme Court has described the level of protection accorded to core work product as, “inviolate,” “flatly not discoverable,” and “sacrosanct and its protection impermeable.”

In contrast, noncore work product is “[a]ny other work product” that is not core work product.  The record indicates the information at issue includes the city’s investigations and evaluation of claims filed against the city and liability analysis prepared by the city’s employees and agents after the city received the notices of claim. The city employees testified the information constitutes material prepared or mental impressions developed in anticipation of litigation or for trial. Each of the notices of claim in question constituted statutory notices required by the Texas Tort Claims Act. As such, they satisfy the objective standard for anticipated litigation. The in-camera review of the records indicated to the court that the city’s investigations were conducted for the purpose of preparing for potential litigation, therefore qualifying for the subjective prong of the anticipated litigation analysis. Thus, the records are “noncore” work product under Rule 192.5. After a lengthy analysis of Rule 192.5, the court held the noncore work product was confidential. The trial court judgment was affirmed.*

Governmental Immunity: County of El Paso v. Baker, No. 08-18-00012-CV, 2019 WL 2315005, (Tex. App.—El Paso May 31, 2019). This is an interlocutory appeal in a premise defect case where the El Paso Court of Appeals held the County of El Paso was entitled to governmental immunity.

While entering an elevator in the El Paso County Courthouse, Baker claims the doors shut on her causing bodily injury. She reported the injury that day. After Baker sued, the county filed a plea to the jurisdiction, which was denied. The county appealed.

Under a premise defect theory, a landowner owes a duty not to “injure a licensee by willful, wanton or grossly negligent conduct,” and to “use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.” Baker’s petition asserts the county failed to inspect and failed to discover the malfunction in the doors. Such is applicable to an invitee status, not a licensee status. Baker filed four amended pleadings and was not able to properly plead the claims. Therefore, the court was not inclined to remand for a fifth opportunity.

Under the licensee status, actual knowledge rather than constructive knowledge is required. The county’s affidavit noted the last time the elevator had been inspected, that no notice of the defect was reported prior to Baker’s incident, and no report has reoccurred. Baker’s evidence of a newspaper article that a woman got stuck in the elevator a year and a half later is insufficient to show the county had actual knowledge the doors were likely to close on Baker. Nor would the fact that the county knew that the elevators were “old” and should be replaced show the kind of knowledge required for a valid licensee-premises-liability claim. The plea should have been granted.*

Governmental Immunity: University of Tex. of the Permian Basin v. Banzhoff, No. 11-17-00325-CV, 2019 WL 2307732 (Tex. App.—Eastland May 31, 2019) (mem. op.). This is an ultra vires and abuse of process case where there Eastland Court of Appeals held the University of Texas at Permian Basin (UTPB) retained governmental immunity.

UTPB hired Banzhoff as a golf coach but terminated him within a year. He was issued a criminal trespass notice prohibiting him from attending UTPB sporting events. Shortly after his termination, Banzhoff was arrested at the Odessa Country Club for criminal trespass.  Banzhoff sued UTPB, the athletic director (Aicinena), and the interim coach who replaced him (Newman) alleging seven different causes of action. Aicinena and Newman moved to be dismissed under Section 101.106(e) of the Texas Tort Claims Act (TTCA) and UTPB filed a plea to the jurisdiction. The trial court granted the dismissal as to Aicinena and Newman, and partially granted UTPB’s plea. The trial court allowed the abuse of process and ultra vires claims to proceed. UTPB filed this interlocutory appeal.

As to the abuse of process claim, no waiver of governmental immunity exists for such a tort. To fall within the ultra vires exception, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”  Suits complaining of ultra vires actions must be brought against government officials in their official capacity and may seek only prospective injunctive remedies. In this case, UTPB—a governmental entity—is not a proper defendant to Banzhoff’s ultra vires claim. As to the individuals, the general allegations in the pleadings are insufficient to plead an ultra vires claim against Aicinena or Newman. Further, Banzhoff failed to plead any facts that support a finding that Aicinena or Newman exceeded any delegated authority, failed to perform a ministerial duty, or violated Banzhoff’s constitutional rights.  The court expressly noted the criminal trespass notice in the record was not issued by either Aicinena or Newman and that there was no specific allegation either man called the police regarding Banzhoff’s presence at the Odessa Country Club. However, even if the court were to take Banzhoff’s allegations as true, “he fails to explain how issuing a criminal trespass notice or calling the police—even if done erroneously—are anything but discretionary actions by Aicinena or Newman.”  As a result, the plea should have been granted in its entirety.*

Texas Tort Claims Act: City of Corpus Christi v. Trevino, No. 13-18-00442-CV, 2019 WL 2381455 (Tex. App.—Corpus Christi June 6, 2019) (mem. op.). In May 2016, the City of Corpus Christi issued a 12-day water boil advisory. Becilia Trevino filed suit against the city, claiming that she was out of water for two weeks and forced to pay for services she wasn’t receiving. She alleged causes of action for negligent misrepresentation, negligence, common law fraud, breach of contract, and violation of civil rights. The trial court denied the city’s plea to the jurisdiction and the city appealed.

On appeal, the court first analyzed Trevino’s negligence and negligent

misrepresentation claims. The court held that although Trevino alleged a viable negligence claim for personal injury under the Texas Tort Claims Act (TTCA) based on the condition of the water, the trial court lacked jurisdiction because Trevino failed to comply with the TTCA’s notice requirement. Trevino alleged that the water boil advisory itself was proof of actual notice, but the court held that the city’s notice to the public at large about a potential health hazard does not constitute actual notice that Trevino subsequently suffered an injury from the hazard. Because Trevino did not satisfy the TTCA’s notice requirements, the trial court erred in denying the city’s jurisdictional challenge to her negligence claim.

The court also resolved Trevino’s fraud claim in favor of the city, since the TTCA specifically exempts intentional torts from its limited waiver of immunity. The court held that the trial court erred in denying the city’s jurisdictional challenge to Trevino’s fraud claim.

On the breach of contract claim, Trevino contended that the city had a duty to provide water to Trevino but failed to do so, thereby breaching its contract with Trevino. According to the court, the agreement between Trevino and the city did not fall under the limited waiver of immunity from suit in Local Government Code Section 271.152 because the city was providing goods or services to Trevino (the goods and services were not being provided to the city). Trevino further argued that her breach of contract claim was not subject to governmental immunity in the first place because the city was performing a proprietary function. However, the court determined that the city was performing one of the TTCA’s enumerated governmental functions by providing Trevino water services, which foreclosed Trevino’s argument. The trial court therefore erred in denying the city’s jurisdictional challenge to Trevino’s breach of contract claim.

Lastly, the court addressed Trevino’s civil rights violation claims. While the court expressed no opinion on the validity of these claims under the circumstances of the case, because federal constitutional claims enjoy supremacy over governmental immunity, the court held that a plea to the jurisdiction was not an appropriate procedural vehicle to dispose of Trevino’s civil rights claims. The court affirmed the trial court’s order denying the city’s plea to the jurisdiction on the civil rights violation claims.

Texas Tort Claims Act: City of Corpus Christi v. Muller, No. 13-18-00443-CV, 2019 WL 2384162 (Tex. App.—Corpus Christi June 6, 2019) (mem. op.). Marie Muller was employed by the City of Corpus Christi and injured herself when she stepped in a pothole in the city hall parking lot on her way into the office. She filed a lawsuit against the city under a premises liability theory pursuant to the Texas Tort Claims Act (TTCA). The city filed a plea to the jurisdiction, arguing that because Muller’s injury occurred in the course and scope of employment, her remedy was limited solely to the benefits under the workers’ compensation insurance offered by the city. The trial court denied the city’s plea and the city appealed.

On appeal, the central question for the court was whether Muller was in the course and scope of her employment when she suffered her injuries. The court cited the general rule in Texas that travel to and from work is not considered to be within the course and scope of the employee’s employment. The city contended that the facts of the case fit within the “access doctrine” exception to the general rule that applies when the employer has evidenced an intention that a particular access route be used by an employee going to and from work when such a route is so closely related to the employer’s premises as to be fairly treated as part of the premises. However, the court found that the city presented no evidence along with its plea indicating that the city implicitly or directly intended, authorized, or instructed Muller to use the city hall parking lot as her access route to work. The court overruled the city’s sole issue.

*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