Recent Texas Cases of Interest to Cities

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

Zoning:  Powell v. City of Houston, No. 19-0689, 2021 WL 2273976 (Tex. June 4, 2021).  Two homeowners challenged the City of Houston’s historic preservation ordinance on the grounds that it was zoning enacted in violation of the city’s charter, which only allows zoning to be adopted after public notice and a voter referendum, and it did not comply with certain provisions of Chapter 211 of the Local Government Code.  The historic preservation ordinance allows for the creation of historic districts in which properties cannot be modified or demolished without the approval of a historical commission.  The court of appeals held that the ordinance is not a zoning regulation because the purposes for which it was created, its function, and its way of regulating property use and development all differ from those of zoning laws.

The Supreme Court affirmed.  The court concludes that the ordinary meaning of zoning is the district-based regulation of the uses to which land can be put and of the height, bulk, and placement of buildings on land, with the regulations being uniform within each district and implementing a comprehensive plan. Zoning regulations also tend to be comprehensive geographically by dividing an entire city into districts, though this need not always be the case.  In contrast, the court finds that the historical preservation ordinance does not regulate the purposes for which land can be used, lacks geographic comprehensiveness, impacts each site differently in order to preserve and ensure the historic character of building exteriors, and does not adopt the enforcement and penalty provisions characteristic of a zoning ordinance.  Accordingly, the ordinance is not zoning and was not enacted in violation of the city charter.

Procedure: Artuso v. Town of Trophy Club, No. 02-20-00377-CV, 2021 WL 1919634, (Tex. App.—Fort Worth May 13, 2021) (mem. op.).  Plaintiff Artuso sued the Town of Trophy Club for negligence and gross negligence with regard to his home’s placement in the town’s Public Improvement District No. 1 (PID) and the special assessments imposed in the district.  Artuso asserted he timely paid all assessments and even overpaid, claimed that the manner in which the town apportioned the PID costs was arbitrary and capricious, amounting to a violation of his due process rights, and complained that the town had not responded to his assessment-reduction petition. The town filed two pleas to the jurisdiction, which were granted. Artuso appealed arguing that the trial court’s oral statements about the grounds for granting the plea were improper as the trial court’s signed order listed no grounds. 

The appellate court asserted it could not look to the oral statements in the record, only to the wording of the actual written order. By applying this policy, the courts and parties are relieved of the obligation to “parse statements made in letters to the parties, at hearings on motions for summary judgment, on docket notations, and/or in other places in the record.”  Because Artuso had failed to challenge all of the grounds upon which the town’s motion could have been granted, and failed to brief all grounds, the court of appeals affirmed the granting of the dispositive motions.*

Discrimination:  Goodlett v. NE. Indep. Sch. Dist., No. 04-20-00203-CV, 2021 WL 2117927 (Tex. App.—San Antonio May 26, 2021) (mem. op.).  Goodlett was a custodian at Northeast Independent School District (Northeast). He was autistic and had a limited ability to navigate social situations as a result of his disability, but performed capably in his job. After completing a task, one of his coworkers challenged him and several other employees to a race.  While running, Goodlett pushed one of his coworkers from behind, injuring her. During an investigation of the incident, it was discovered that Goodlett had previously made two threatening remarks. He was terminated from his employment and sued Northeast under Chapter 21 of the Texas Labor Code, alleging employment discrimination based on his disability. Northeast filed a plea to the jurisdiction, arguing that Goodlett had failed to present a prima facie case of discrimination. The trial court granted the plea to the jurisdiction.

The court affirmed.  In order to establish a prima facie case of discrimination, Goodlett had to show that he was treated less favorably than other similarly situated employees who were not members of the protected class under nearly identical circumstances.  This required that Goodlett identify a comparator employee who was not terminated under nearly identical circumstances.  Goodlett attempted to do so by alleging that the other employees who participated in the horseplay leading up to the pushing incident had not been disciplined, but the court held that these employees were not similarly situated because they had not pushed a coworker or made threats.  As such, Goodlett failed to establish a prima facie case.  The court also found that Goodlett had not established a prima facie case for a failure-to-accommodate claim because he had never requested any accommodation.

Takings:  Martinez v. City of Laredo, No. 04-19-00694-CV, 2021 WL 1894905 (Tex. App.—San Antonio May 12, 2021) (mem. op.).  Martinez possessed two taxi permits issued by the City of Laredo.  She was arrested for identity fraud and theft, and while these charges were pending, the city temporarily revoked her taxi permits.  Martinez sued the city, alleging that this was an unconstitutional taking. The city filed a motion to dismiss for lack of jurisdiction. The city argued that Martinez did not have a vested property right in the permits; thus, the city could not have unconstitutionally taken a property right from Martinez, and that there was no claim for which the city waived governmental immunity. The trial court granted the motion.

On appeal, the court analyzed whether Martinez had a takings claim that would vest the court with jurisdiction. First, Martinez sought a damage remedy, which is unavailable under Texas law for unconstitutional conduct.  Second, she had no state constitutional takings claims because she did not allege that the taking was for public use. Third, under Texas law, no person can acquire a vested right to use public streets and highways for commercial business, and therefore Martinez did not have a property right in the taxi permits.

Development Plans: London v. Rick Van Park, LLC, No. 05-20-00813-CV, 2021 WL 1884650 (Tex. App.—Dallas May 11, 2021) (mem. op.). The plaintiff sued the city secretary and former chair of the planning and zoning committee for declaratory and injunctive relief, claiming the city officials acted ultra vires for failing to issue a certificate of no action on a preliminary development plan in the city when the submitted plan was deemed deficient, not properly filed, and substantially incomplete per the Town of St. Paul’s ordinances. The trial court denied the city officials’ plea to the jurisdiction and the city officials appealed. The appellate court found that the officials the plaintiff sued were not the “municipal authority” responsible for the no action certificate.  As such, the court granted the plea, and gave the plaintiff the opportunity to replead.

Coronavirus:  Brown v. Daniels, No. 05-20-00579-CV, 2021 WL 1997060 (Tex. App.—Dallas May 19, 2021) (mem. op.).  Persons detained in the Dallas County jail sued the Dallas County sheriff in her official capacity for her handling of the COVID-19 pandemic within the jail. The sheriff filed a plea to the jurisdiction on the grounds that she was immune from suit: (1) for her actions in managing the COVID-19 crisis at the jail; (2) from plaintiffs’ claims that she denied their rights under the Texas Constitution; and (3) from plaintiff’s claims under the Texas Tort Claims Act (TTCA).  The trial court denied her plea to the jurisdiction and the sheriff appealed.  The appellate court reversed the trial court’s denial and rendered judgment in favor of the sheriff because the plaintiffs’ pleadings affirmatively negated jurisdiction, finding: (1) the plaintiffs’ claims under the Texas Constitution were facially invalid and failed as a matter of law; (2) the plaintiffs had not provided a statute to support their claims that the sheriff acted ultra vires; and (3) the TTCA does not provide for injunctive relief.

Payday Lending: TitleMax of Tex., Inc. v. City of Austin, No. 07-20-00305-CV, 2021 WL 1899357 (Tex. App.—Amarillo May 11, 2021) (mem. op.). TitleMax sued the city, seeking declaratory and injunctive relief relating to a city ordinance designed to regulate companies’ credit-service activities. The trial court granted the city’s plea to the jurisdiction on the grounds that the ordinance was a penal law that could not be challenged in civil court.  The appellate court reversed, relying on the Texas Supreme Court case Texas Propane Gas Association v. City of Houston, which held that a law that contains both civil and criminal aspects can be challenged in civil court if the “essence” of the law is civil.

Jury Selection:  Gomez v. City of Austin, No. 08-19-00250-CV, 2021 WL 2134335 (Tex. App.—El Paso May 26, 2021).  Gomez sued the City of Austin for employment discrimination following his termination.  During jury selection, the city used a peremptory strike on a prospective juror who was Hispanic.  Gomez made a Batson challenge, arguing that the city had struck the juror on racial grounds.  The trial court denied the challenge, and Gomez appealed.

Employing the Batson framework, the court concluded that Gomez had raised an inference of discrimination and that the city had provided a race-neutral explanation for its use of the strike.  The court thus examined whether the totality of the circumstances suggested that the city had purposefully discriminated.  It considered five factors: (1) statistical data about the city’s use of peremptory strikes; (2) comparative juror analysis; (3) use of the jury shuffle; (4) quantity and quality of questions posed to minority panel members; and (5) the city’s history of striking minority jurors.  All but one of these considerations weighed in favor of the city. The court upheld the trial court’s overruling of the Batson challenge.

Public Information: City of Odessa v. AIM Media Texas, LLC, No. 11-20-00229-CV, 2021 WL 1918968 (Tex. App.—Eastland May 13, 2021) (mem. op.). This is a Public Information Act (PIA) case where the Eastland Court of Appeals held the plaintiff is properly under the jurisdiction of the PIA.

AIM Media, a newspaper company, sued the City of Odessa for mandamus under the PIA, asserting that the city failed to timely provide the information requested and improperly redacted information.  The city asserted that it provided all requested information and that AIM Media plead conclusory allegations only, with no facts.  The city filed special exceptions to the bare pleadings and then filed a plea to the jurisdiction, which was denied. The city appealed.

The court noted that the city challenged the pleadings only, so the pleadings were taken as true for purposes of the plea. The PIA allows a requestor to sue for mandamus.  While the court appeared to acknowledge that a lack of factual allegations can be grounds for a plea, the court held that the city failed to obtain a ruling on its special exceptions. As a result, whether the special exceptions properly put AIM Media on notice of any jurisdictional defects was not before the court. Taking the pleadings as true, the court held that AIM Media pled the minimum jurisdictional requirements.  The plea was therefore properly denied.*

Jurisdiction:  Leach v. City of Tyler, No. 12-21-00004-CV, 2021 WL 2371417 (Tex. App.—Tyler June 9, 2021) (mem. op.).  In trial court, Leondra Leach alleged that an improperly secured board flew from a city truck and struck Leach and the truck Leach was driving. Leach’s employer, who owned the vehicle Leach was driving, gave timely notice to the city of the $207.19 claim for minor damage to the vehicle, but the notice did not include claims related to personal injuries suffered by Leach individually. The city moved for summary judgment based on Leach’s failure to comply with the pre-suit notice requirements found in the Texas Tort Claims Act (TTCA), and the trial court granted the motion. Leach appealed. The appellate court determined that the notice given by Leach’s employer was inadequate to convey to the city its “perceived peril” due to Leach’s potential claim and was therefore inadequate notice under the TTCA.  The appellate court affirmed the trial court’s ruling.

Governmental Immunity:  Hidalgo Cty. Water Improvement Dist. No. 3 v. Hidalgo Cty. Irrigation Dist. No. 1, No. 13-20-00355-CV, 2021 WL 2154081 (Tex. App.—Corpus Christi May 27, 2021) (mem. op.).  After the Hidalgo County Water Improvement District No. 3 (Improvement District) condemned a subsurface easement to run a pipe beneath a canal owned by the Hidalgo County Irrigation District No. 1 (Irrigation District), the Irrigation District sued, claiming immunity to a condemnation lawsuit as a governmental entity.  The trial agreed with the Irrigation District and dismissed the case on the basis of governmental immunity.  Ultimately the appellate court held that, “where a governmental landowner objects to an award on a non-monetary basis . . . the costs of defending the lawsuit would constitute ‘unforeseen expenditures’” and that, “[ ] this consideration weighs in favor of applying immunity.” The court affirmed the lower court’s dismissal.

Governmental Immunity:  San Jacinto River Auth. v. Ray, No. 14-19-00095-CV, 2021 WL 2154081 (Tex. App.—Houston [14th Dist.] May 27, 2021) (mem. op.).  This case arises from flooding produced by the rainfall from Hurricane Harvey in 2017. Appellees (more than 300 property and business owners) asserted that the San Jacinto River Authority (SJRA) released water from Lake Conroe knowing that this action would flood thousands of downstream homes and businesses and alleged constitutional inverse condemnation claims under Article I, Section 17 of the Texas Constitution in Harris County district court.  SJRA filed a plea to the jurisdiction: (1) challenging the subject matter jurisdiction of the district court over constitutional inverse condemnation claims; and (2) alleging that appellees failed to plead sufficient facts demonstrating a waiver of governmental immunity. Appellees countered that: (1) fair notice pleading should save their constitutional takings claim; and (2) they also pleaded statutory takings under Government Code Chapter 2007.  SJRA replied that if Appellees filed statutory takings claim, only one of the appellees filed their case in time and the others should be time-barred.  The trial court denied SJRA’s plea to the jurisdiction, which SJRA appealed.

Texas Government Code Section 25.1032 squarely places jurisdiction over eminent domain proceedings brought in Harris County with the county civil court at law rather than the district court.  Additionally, in their original petition, appellees made no reference to Chapter 2007 of the Government Code, nor did they allege waiver of SJRA’s immunity under that chapter.  The appellate court held that appellees failed to make a statutory takings claim, reversed the trial court’s order denying SJRA’s plea to the jurisdiction, and rendered judgment dismissing appellees’ claims for lack of subject matter jurisdiction.

Governmental Immunity:  City of Houston v. Gonzales, No. 14-20-00165-CV, 2021 WL 2154155 (Tex. App.—Houston [14th Dist.] May 27, 2021) (mem. op.).  Appellee slipped and fell at the salad bar of a restaurant located in the George Bush International Airport and sued the city for negligence and gross negligence, invoking the Texas Tort Claims Act’s (TTCA’s) immunity waiver.  United Airlines controlled the area where the incident occurred pursuant to a lease with the city, and based on its lack of control over the area, the city filed a plea to the jurisdiction arguing governmental immunity and seeking dismissal of appellee’s claims.  The trial court denied the city’s plea, and the city appealed.  A governmental unit is immune from suit unless the TTCA expressly waives immunity, which it can for premises defects.  However, when a landlord, such as the city in this case, does not control the leased premises, they owe no duty to tenants or their invitees for dangerous conditions.  The appellate court remanded the case to the trial court with instructions to dismiss the suit against the city.

Jurisdiction:  City of Galveston v. Jolly, No. 14-19-00599-CV, 2021 WL 2324943 (Tex. App.—Houston [14th Dist.] June 8, 2021) (mem. op.).  After the city received an order from the municipal court ordering the demolition of structures on John Jolly’s property, Jolly obtained a TRO from the County Court at Law enjoining the demolition.  The city filed a plea to the jurisdiction and motion to vacate the TRO.  The County Court at Law declined to vacate the TRO, and the city appealed.  The appellate court held that the county court at law has jurisdiction to order the TRO and affirmed the lower court’s ruling.

Governmental Immunity:  Rogers v. City of Houston, No. 14-19-00196-CV, 2021 WL 2325193 (Tex. App.—Houston [14th Dist.] June 8, 2021). Noris Rogers sued defendants, including the City of Houston, for several torts, among other claims, based on events that occurred when employees of a tree trimming service contracting for the power company, accompanied by a City of Houston police officer, came to Rogers’ property to trim an oak under a power line. The city filed a plea to the jurisdiction, which was granted by the trial court. Rogers filed a 15-point appeal, most of which will not be discussed here. In his claims against the city, Rogers argued that the off-duty police officer was acting in a proprietary function rather than a governmental function.  The appellate court disagreed, holding that even though the officer was off duty and being paid by the power company, the provision of police services is closely related to the governmental function of “police and fire protection and control” for which the city is immune from suit or liability in tort.  The appellate court affirmed the trial court’s dismissal of all claims against the city.

*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