Note: Included cases are from May 11, 2020 through June 10, 2020.
Elections: In re State, No. 20-0394, 2020 WL 2759629 (Tex. May 27, 2020). In this case, the attorney general filed a lawsuit directly with the Supreme Court, claiming that the fear of contracting COVID-19 is not a “disability” that would allow a voter to quality for a mail-in ballot. The attorney general asked that the court issue a writ of mandamus to five county clerks and election administrators to stop them from “misinforming the public to the contrary and improperly approving applications for mail-in ballots.”
Texas voters can ask for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. Texas election law defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”
The court agreed with the attorney general that fear of contracting the virus, by itself, isn’t enough for a voter to request a mail-in ballot. However, it declined to issue the writ of mandamus the attorney general requested.
In issuing its opinion, the court stated: “We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability.’ Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.”
Vested Rights: River City Partners, Ltd. v. City of Austin, No. 03-19-00253-CV, 2020 WL 3164404 (Tex. App.—Austin June 4, 2020) (mem. op.). This appeal arises from a dispute over a City of Austin ordinance that limits the size of retail development in the Barton Springs Zone of Austin.
The property in question was annexed by the City of Austin in 1985. At the time of annexation, the property did not have a permanent zoning classification in place. On the recommendation of the city’s land-development office, the city council made permanent zoning classification for several properties, including the property in question, contingent on meeting floor area ratio (FAR) standards more stringent than required by the city’s general zoning ordinance.
In 1987, River City’s predecessor in title applied to rezone the property to the “community commercial” classification. At the time, the city’s zoning regulations for that classification set a 1:1 FAR. The city conditioned its approval on the owner impressing the land with a restrictive covenant that, among other things, limited development to no more than 0.2:1 FAR. The owner executed and recorded the requested covenant (1986 Covenant) and the city reclassified the property to community commercial. In April 2003, the property owner applied to the city for approval to create an eight-lot commercial subdivision. While the application was pending, the city council enacted the Barton Springs Zone ordinance (BSZ Ordinance), which designates twenty-two activities as retail uses and provides that a principal use and its accessory uses may not exceed 50,000 square feet of gross floor area. In 2004, the city approved the plat application and issued a final subdivision plat (2004 Subdivision Plan) with plat notes that provided that the development on the lots will be limited to 65 percent impervious cover with a maximum FAR not to exceed 0.2:1 pursuant to the 1986 restrictive covenant.
River City subsequently purchased six of the lots and in 2017 applied for permission to construct a 72,272 square foot automobile dealership and 14,866 square foot service center that exceeded the BSZ Ordinance limits on use size. River City sought an exemption on the ground that the BSZ Ordinance conflicted with the 1986 Covenant. The city initially agreed and provided that the project was entitled to rights granted in the 1986 Covenant and would not be subject to the requirements of the BSZ Ordinance. Seven months later the city reconsidered, finding that the 1986 Restrictive Covenant was not applicable. River City sued to enjoin the city from enforcing the ordinance and sought relief under the Uniform Declaratory Judgement Act (UDJA). The city filed a plea to the jurisdiction. The trial court sustained the plea and dismissed River City’s claims. River City appealed, seeking a declaration that: (1) Chapter 245 of the Local Government Code prohibits the city from enforcing the BSZ Ordinance; (2) River City’s application fits into one of the ordinance’s exemptions; or (3) the city should be estopped from applying the BSZ Ordinance.
The court first considered whether the 1986 Covenant or the 2004 Subdivision Plat constitutes a permit application sufficient enough to invoke Chapter 245’s protections. The court found that the 2004 Subdivision Plat constitutes a permit under Chapter 245, and because the subdivision plat application was filed before the BSZ Ordinance’s effective date, vested rights attached to the project on the filing of the application.
The court then considered whether the BSZ Ordinance was exempt from Subsection 245.004(2), which excludes from the requirements of Chapter 245, preexisting municipal zoning regulations that do not affect, among other things, lot size, lot dimensions, lot coverage, or building size or that do not change development permitted by a restrictive covenant required by a municipality. Construing the BSZ Ordinance in the context of the city’s entire land development code, the court determined that River City failed to show that the BSZ Ordinance affects building size.
Additionally, the court concluded that because the 1986 Covenant does not authorize River City to use the land as a car dealership and service center without size restrictions, River City failed to show that the BSZ Ordinance changes development permitted by the covenant. Accordingly, the court found that the trial court did not have jurisdiction under Chapter 245. Finally, the court declined to remand the case back to district court to allow River City an opportunity to amend its pleadings so as to cure jurisdictional effect. The court found that River City had received a reasonable opportunity to amend its pleadings after the city filed its plea to the jurisdiction, and that the amended pleading still did not allege facts that would constitute a waiver of immunity.
F-5 Employment Termination Reports: McCall v. Hays Cty. Constable Precinct Three, No. 03-18-00355-CV, 2020 WL 2739868 (Tex. App.—Austin May 21, 2020) (mem. op.). In this appeal, the court affirms the trial court’s order finding that a law enforcement officer’s termination was correctly categorized as a “general discharge.”
Brian McCall was a volunteer reserve officer for Hays County Constable Precinct Three (Constable). His employment with the Constable was terminated after an investigation revealed that he had provided and failed to prevent others from providing his 18-year old girlfriend, Vivian Sanchez, with alcohol, and that he had failed to return his equipment when requested to do so. The Constable filed an employment termination report (F-5 Report) with the Texas Commission on Law Enforcement (TCOLE) stating that McCall was terminated with a “general discharge.” McCall filed an administrative appeal seeking to correct the “general discharge” to an “honorable discharge.” The administrative law judge (ALJ) concluded that the Constable had established by a preponderance of evidence that McCall’s termination was appropriately categorized as a “general discharge” and should not be changed to “honorable discharge.” McCall appealed the ALJ’s order in district court. The district court affirmed the ALJ’s order. McCall appealed.
The court determined that McCall’s explanation for never objecting to allowing others to provide alcohol to his girlfriend failed because the doctrine of in loco parentis did not permit McCall’s mother to authorize Sanchez’s drinking. The court also determined that the ALJ was not authorized or required to determine whether the Constable met the requirements of Chapter 614 of the Government Code in the F-5 hearing as an F-5 hearing is a proceeding to contest information in an employment termination report and not a proceeding to challenge disciplinary action. Accordingly, the court affirmed the order denying McCall’s petition to correct the “general discharge” in his F-5 Report to an “honorable discharge.”
Tort Claims Act: City of San Antonio v. Hurón, No. 04-19-00570-CV, 2020 WL 3065426 (Tex. App.—San Antonio June 10, 2020) (mem. op.). In this appeal, the court determines that although the city received no formal notice of a claim, the city had actual notice of the claim under Section 101.101(c) of the Texas Tort Claims Act.
David Arredondo was riding his bicycle westbound on Sioux Street shortly before midnight when he failed to stop at a stop sign, and rode across the unlit intersection. Police Officer Botello, driving southwest on another road, struck Arredondo with his vehicle, and Arredondo died at the scene. City investigators and a supervisor were dispatched to scene where they took a statement from Officer Botello regarding the accident and photographed and took videos of the scene. Thereafter, they filed their reports. Thirteen months after the accident, Arredondo’s sisters, Hurón and Rico, sued the city for wrongful death asserting that the officer was negligent and grossly negligent. The city, in its plea to the jurisdiction, argued that immunity was waived because it did not receive formal notice of the sisters’ claims within the ninety-day notice period required under the city’s charter and it had no actual notice of its alleged fault within the notice deadline. The sisters did not present evidence of formal notice, but presented evidence of actual notice in the form of the city-generated reports. The trial court denied the city’s plea, and the city filed an interlocutory appeal.
Under the Texas Tort Claims Act, actual notice exists only when a governmental unit has subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimant’s injuries. To determine if there was legally sufficient evidence to support a finding that Officer Botello was not maintaining proper lookout at the intersection at the time of the accident in violation of his duty, the court reviewed the city-generated reports submitted into evidence. The court concluded that the vehicle accident report or loss notice completed by Officer Botello was legally sufficient to support such a finding. As a result, the court found that the city had timely notice of its fault in producing or contributing to Arredondo’s death.
City Charter: Suarez v. Silvas, No. 04-19-00836, 2020 WL 2543311 (Tex. App.—San Antonio May 20, 2020).This appeal arises from a decision by councilmembers of the City of Converse to declare that Silvas, a councilmember elected to Place 4 in the city, had forfeited her position on council for violating a provision of the city charter.
The Converse City Charter provides that except for inquiries and investigations into the official conduct of a city department, agency, office, officer or employee, the mayor and all councilmembers shall deal with city officers and employees who are subject to the direction of the city manager solely through the city manager. The charter further provides that a councilmember or the mayor shall forfeit his office if he or she violates any provision of the charter. In preparation for an October 15, 2019, city council meeting, John Quintanilla, the city’s director of development services, submitted to council a report of total permits and inspections completed for a specific time period. Silvas contacted the city manager and asked that Quintanilla contact her regarding the report. Silva asked Quintanilla if the report included data on commercial reports. What transpired after is disputed. In an email to the city manager, Quintanilla stated that Silvas requested that he run a report for the last five fiscal years and conduct an analysis for discussion at the upcoming council meeting. Silvas testified that Quintanilla voluntarily offered to run the five-year report and denied asking him to perform an analysis or that she even requested such an analysis. On October 22, 2019, the mayor called a special meeting of council with the sole item on the agenda being a closed meeting under the personnel exception “to hear a complaint or charge against . . . Silvas.” At the end of the meeting, one of the councilmembers moved that council forfeit Silva’s position on the council for violating the city charter provision because Silvas gave a directive to a city employee subject to the city manager. The decision was solely based on the “directive” referenced in Quintanilla’s email.
Silvas filed suit seeking declaratory judgment or injunctive relief to compel a governmental official to cease ultra vires activity and comply with statutory or constitutional provisions. She also sought a temporary restraining order and temporary injunction to stop the city manager and city secretary from listing Place 4 on the council as vacant and a notice that council was accepting applications for Place 4. The trial court granted a temporary restraining order. Before the trial court’s hearing on the temporary injunction, council held another special meeting to reconsider its declaration that Silvas forfeited her position on city council. At the conclusion of the temporary injunction hearing, the trial court enjoined the city, the mayor, the remaining councilmembers, the city manager, and the city secretary (collectively, appellants) from taking any action to obstruct, hinder, or remove Silvas from her duly elected office or blocking her access to city-issued electronic accounts and key cards. Eventually, the trial court denied the city’s plea. The appellants appealed.
The court first looked at whether a city charter is an ordinance or statute for purposes of determining whether the charter’s forfeiture provision was lawful under the Uniform Declaratory Judgment Act. The court determined that the trial court had erred in denying the plea to the jurisdiction as to Silvas’s claims seeking declarations involving the construction or validity of the charter because a city charter is a city’s constitution and not a statute or ordinance. Thus, injunctive relief was precluded. The court then looked at whether Silvas had alleged a proper ultra vires claims. The court found that she had alleged a proper ultra vires claim and was entitled to prospective injunctive relief against all the appellants, other than the city. The court also found that the appellants’ actions were not protected by legislative immunity as the actions taken to enforce the city charter forfeiture provision were non-legislative acts. Finally, the court rejected the Silva’s challenge to the constitutionality of the city charter under the Open Meetings Act, finding that injunctive relief was not available in this instant case. Accordingly, the court remanded the case to trial court for further proceedings.
Nonconforming Use: Tejas Motel, L.L.C. v. City of Mesquite, No. 05-19-00667-CV, 2020 WL 2988566 (Tex. App.—Dallas June 4, 2020) (mem. op.). In this appeal, the court affirms the trial court’s order granting the city’s plea to the jurisdiction in a case involving the amortization of a nonconforming use.
In 2006, Tejas acquired the property on which Tejas Motel is located and has been in operation since 1970. The use of the property as a motel was initially authorized under the city’s 1973 Comprehensive Zoning Ordinance, but the continued use of the property as a motel became a nonconforming use when the zoning ordinance was amended in 1997. The city did not specifically address nonconformance until April 2018, when it passed an ordinance changing the manner in which the city’s board of adjustment (BOA) could amortize nonconforming properties. The BOA scheduled and held a public hearing in June 2018, where it determined that Tejas Motel’s continued operation as a nonconforming use would adversely affect other nearby properties. At the hearing, Tejas agreed to the amortization of the property provided that it could cease operations or bring the motel into compliance by May 1, 2019. After the hearing, Tejas’s attorney reviewed and edited a draft of the BOA’s decision and electronically signed that draft before Tejas and the city jointly submitted it to the BOA on July 30, 2018. The BOA executed the decision on July 31, and the city emailed the decision to Tejas’s attorney the following day.
In November, three months after the BOA’s decision, Tejas appealed the decision asserting the following causes of action: (1) the decision was void based on a Texas Open Meetings Act violation; (2) declaratory judgement that the city’s ordinances are unconstitutional as applied to Tejas and otherwise invalid; (3) a claim for monetary judgement based on the allegation that the city’s ordinances were unconstitutional as applied to Tejas; and (4) a claim for declaratory relief based on ultra vires actions taken by the BOA. The city filed a plea to the jurisdiction and a conditional summary judgement motion as to the Open Meetings Act claim. Tejas responded to the motion for summary judgement, but two days prior to the hearing on the motions, Tejas amended its petition adding new claims against the BOA members in their official capacities, and a petition in intervention on behalf of a frequent guest of the motel seeking relief for the city’s alleged violation of the Open Meetings Act. The day before the hearing, Tejas filed a supplement to its amended petition and a response to the city’s plea, and within its response, requested a continuance to allow it to conduct additional discovery related to when the BOA filed its minutes on its hearing. The city objected to the amended petition and supplement as untimely. A hearing was held, but no record was made. Shortly thereafter, the trial court granted the city’s plea in its entirety, dismissed Tejas’s claims for lack of jurisdiction, and denied the city conditional summary judgement motion as moot. Tejas appealed.
The court first considered the timeliness of the Tejas appeal challenging the BOA’s decision. The court determined that because Tejas did not timely appeal the BOA decision within the statutorily-required 10 days after the decision is filed with the BOA, the trial court lacked jurisdiction over Tejas’s state-law claims, including the Open Meetings Act claim and the as-applied constitutional challenges. The court next examined whether Tejas had any viable federal takings claim. The court determined that Tejas did not have a vested property interest in maintaining a nonconforming use as Tejas purchased the property long after it became a nonconforming use and it had no reasonable investment-backed expectations in continuing that use. Finally, the appellate court determined that the trial court did not abuse its discretion by denying Tejas’s request for a continuation in order to conduct discovery as Tejas failed to specify what discovery it sought and provided no information about the steps it had taken to pursue discovery. Accordingly, the trial court’s order granting the city’s plea and dismissing Tejas’s claims is affirmed.
Immunity: Texas Dep’t of Transp. v. Ives, No. 05-18-01527-CV, 2020 WL 2715367 (Tex. App.—Dallas May 26, 2020) (mem. op.). [Note: On the court’s own motion, the court withdrew its original opinion and judgement from April 20, 2020, and substituted this new opinion and corresponding judgement in its place. The court reverses the trial court’s order, grants the city’s plea to the jurisdiction, dismisses Rodriguez’s claims for want of subject matter jurisdiction, and remands the case to the trial court for further proceedings consistent with this opinion.]
In this appeal, the court found that the Texas Department of Transportation’s (TxDOT) immunity was not waived under the Texas Tort Claims Act (TTCA) in a personal injury case.
Ives was driving his car in Collin County when he ran out of gas. He left his car on the shoulder of the road, and as he walked in the grass along the road toward a gas station, he fell into a drop inlet grate and badly injured his leg. TxDOT owned the drop inlet grate. An engineer for TxDOT testified that the area where Ives walked was intended to facilitate water drainage and was not intended for pedestrian traffic.
After a jury trial, TxDOT filed a motion for judgment notwithstanding the verdict, arguing it retained its sovereign immunity. The trial court denied the motion. TxDOT appealed, arguing that it retained its sovereign immunity because there was no evidence that it had the requisite actual knowledge of the alleged danger posed by the drop inlet grate.
The court first addressed whether there was evidence that TxDOT had actual knowledge of the alleged danger posed by the grate. To show that TxDOT had actual knowledge that the drop inlet grate was unreasonably dangerous, Ives relied on google images showing three orange traffic control panels on the side of the road near a drop inlet grate to show that TxDOT attempted to warn of the dangerous condition, make it safe, or maintain it in a reasonably safe manner by placing the panels on either side of the grate where he fell. However, Ives did not identify the location of the panels, and did not know why they were placed where they were when the image was taken. Further, a TxDOT engineer opined that the panels were used by maintenance crews to divert traffic to another lane in the event of a flood, not to warn pedestrians of the grate. He also opined that once the excess water cleared, someone saw the panels on the road and tossed them to the side. The appeals court agreed with TxDOT finding that there was no evidence that TxDOT had actual knowledge of the alleged danger posed by the drop inlet grate.
The court then addressed whether the grate constituted a special defect which only requires proof that the governmental unit should have known of the dangerous condition. The court determined that because the grate was located in the grass a couple of feet off the roadway, it did not pose a threat to an ordinary user travelling on the road in the normal course of travel. Ives walking beside the road in the grass was not an ordinary user on the road. The court, therefore, concluded that the grate was not a special defect, in the same class as an excavation or obstruction on the roadway.
Because the court found that there was no evidence showing TxDOT had the actual knowledge required to waive its immunity under the TTCA and that the grate was not a special defect, the court did not consider whether TxDOT is immune from suit because its conduct fell within the discretionary function exception to the TTCA’s waiver of immunity. As such, the court reversed the trial court’s judgment, and dismissed the case.
Subdivision Regulations: Korr, L.L.C. v. County of Gaines, No. 11-18-00130-CV, 2020 WL 2836491 (Tex. App.—Eastland May 29, 2020) (mem. op.). This case involves a claim under the Uniform Declaratory Judgment Act (UDJA) regarding an interpretation of a county regulation dealing with plats. The court of appeals held that the UDJA cannot be used if there is no ripe injury.
Korr, a land developer in the county, filed suit against the county under the UDJA based on a county regulation that requires a bond to cover the cost of electrical infrastructure prior to a plat being reviewed. Korr argued that the provision was preempted by the Public Utility Commission’s authority. Korr presented a plat that had already been approved and indicated but did not state Korr had an interest in this and other properties in the county. The county filed a plea to the jurisdiction, which was granted. Korr appealed.
Korr presented no proof of Korr’s ownership of land in the county or active plat applications before the county. In addition, the listed plat had not required the type of bond at issue in the claim. Korr argued that despite not having a ripe injury, the UDJA should still allow the suit, because Korr wished to develop property in the future. The court of appeals reviewed the requirements for standing in a UDJA claim, including the ripeness of a controversy. The court held that a ripe controversy is still required and noted Korr’s arguments in the trial court were all based on “hypothetical” situations. The court held that it could not issue an advisory decision and affirmed the trial court’s dismissal.*
Contractual Immunity: City of Pharr v. Cabrera, No. 13-18-00559-CV, 2020 WL 2988641 (Tex. App.—Corpus Christi June 4, 2020) (mem. op.). Gabriel Cabrera, an employee with the City of Pharr, was terminated by the city and the city refused to pay Cabrera accrued sick leave. Cabrera alleged that he was entitled to be paid for his accrued sick leave based upon the city’s personnel policy, which provided for payment of accrued sick leave for certain qualified retirees. Cabrera sued the city, arguing that the city’s personnel policy constituted a contract between him and the city for the payment of benefits. The city filed a plea to the jurisdiction on the grounds of sovereign immunity, which was denied by the trial court. The city appealed.
On appeal, the first issue considered by the court was whether the city entered into a unilateral contract with Cabrera by passing the ordinance adopting the personnel policy. The city’s personnel policy contained a disclaimer, which Cabrera signed, indicating that the manual was not a contract. The court pointed out that Texas law disfavors employee manuals forming contractual obligations, particularly when there is a specific disclaimer. Due to the disclaimer language, and because the city’s policy did not specify compensation for Cabrera’s classification or specify hours of service, the court held that the city did not waive sovereign immunity under Local Government Code Section 271.152, and therefore, the trial court erred by denying the city’s plea to the jurisdiction. The trial court’s judgment was reversed, and the court dismissed all claims against the city for want of jurisdiction.
Texas Tort Claims Act: City of Kingsville v. Dominguez, No. 13-19-00236-CV, 2020 WL 2776543 (Tex. App.—Corpus Christi May 28, 2020) (mem. op.). This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the Corpus Christi Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the plaintiff’s claims.
Dominguez alleged that Oscar Mendiola, while operating a city fire truck, failed to yield the right of way at a signal light which resulted in a collision with Dominguez’s vehicle. The record demonstrated the fire truck was traveling behind an ambulance and the truck’s siren and emergency lights were both activated. Mendiola slowed as he approached, visually confirmed traffic had stopped, then proceeded. According to the official accident report, the investigating officer concluded that the fire truck driver was facing a red light and failed to yield the right of way to Dominguez. The officer also concluded that Dominguez “disregarded an Emergency Vehicle while operating emergency lights.” The officer did not issue a citation to either driver. The city filed a plea to the jurisdiction based on the emergency responder exception of the TTCA. The plea was denied and the city appealed.
Part of the policy behind the emergency responder exception is because imposing “liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks” and would “allow for judicial second-guessing of the split-second and time-pressured decisions emergency personnel are forced to make.” However, compliance with the requirements of Chapter 546 of the Texas Transportation Code does not relieve the driver of liability if they act recklessly (i.e. he understood the risks but did not care about the result). The city argued Mendiola acted to minimize the risk to others as he entered the intersection, thereby demonstrating that Mendiola “clearly did care about the result” of his actions.
Dominguez responds that Mendiola’s actions of entering the intersection against a red light without stopping were evidence of recklessness. The court held the fire truck driver slowed below the speed limit, visually confirmed stopped vehicles, had the lights and sirens on, and therefore, did not act recklessly. As a result, the plea should have been granted.*
*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 www.rshlawfirm.com.