Recent Texas Cases of Interest to Cities

Note: Included cases are from May 11, 2022 through June 10, 2022.

Inverse Condemnation: City of Baytown v. Schrock, No. 20-0309, 2022 WL 1510310 (Tex. May 13, 2022). The issue in this case is whether a city’s refusal to reconnect a property owner’s utility service due to outstanding utility bills, which prohibited the owner from renting out the property, constitutes a regulatory taking.

From 1993 until the beginning of 2010, Schrock rented out a house to a series of tenants and there was only ever a few weeks between tenants when the house was not occupied. During this time, the city required that tenants renting houses provide a copy of the lease agreement to the city and pay a larger deposit than homebuyers before the city would provide utility services. In 2009, the city informed Schrock that he owed the city $1,999.67 for the unpaid utility bills of his prior tenants dating back to 1993. Schrock requested a hearing and that amount was reduced to $1,157.39 in unpaid bills that had accrued over the prior four years. The city sent notice to Schrock’s attorney that he would need to pay within 14 days or the city would place a lien on the property pursuant to a city ordinance. In 2010, a new tenant at the rental attempted to pay a deposit and have the utilities turned on but was told that Schrock had to pay the lien before utilities would be turned on. Schrock attempted to pay the lien but was told that in addition to the adjudicated amount, he would also have to pay for an unpaid bill that had happened after the adjudication. Schrock ultimately did not pay the lien and brought a regulatory-taking and declaratory-judgment claim against the city, alleging that since 2010, the city has refused to provide water service to the property, which has led to damages as the house has remained vacant. With no tenant to maintain the home, it fell into disrepair and became uninhabitable. Schrock sought damages for the loss of the property value and lost revenue from the inability to lease the property.

The trial court held that city’s refusal to reconnect property owner’s utility service due to outstanding utility bills, which prohibited the owner from renting out the property, did not constitute a regulatory taking. The court of appeals reversed, holding that fact issues exist as to whether the city’s utility-enforcement actions resulted in a regulatory taking. The Supreme Court reversed, holding that the landlord’s challenge to the city’s enforcement action fails to show the intentional taking or damage for public use necessary to establish a constitutional right to compensation.

General Law City Authority: Builder Recovery Servs., LLC v. Town of Westlake, No. 21-0173, 2022 WL 1591976 (Tex. May 20, 2022). This is a declaratory-judgment action challenging a general law city’s authority to pass an ordinance requiring construction-site waste hauling businesses to obtain a license to conduct business and seeking a declaration that a license fee based on a percentage of a business’s revenue was unlawful.

The town passed an ordinance under Section 363.111 of the Health and Safety Code requiring third-party construction trash haulers to obtain licenses for temporary construction waste services and imposed certain regulations on the license. BRS brought suit asserting, among other things, that: (1) the town as a general law city lacks authority to require BRS to obtain a license to haul construction waste; (2) the town lacks statutory authority to impose a licensing fee based on a percentage of BRS’s revenue; (3) the license fee was not tied to actual administrative costs; and (4) the ordinance was preempted by state law. After a bench trial, the trial judge found largely in favor of the town, but invalidated the license fee calculation. BRS appealed.

The appellate court rejected BRS’s argument that section 361.113 of the Texas Health and Safety Code does not empower the town to issue licenses as a license is an inherent part of the town’s regulatory power. The court further determined the license fee issue was moot due to an amended ordinance, which lowered the licensing fee from 15 percent to 3 percent of gross revenues. However, due to an outstanding issue of attorney’s fees, the court remanded to the trial court for disposition. BRS appealed.

The Supreme Court reversed, holding that: (1) the town’s downward adjustment of the amount of the fee did not moot the license fee issue; and (2) a general law city’s express power to regulate construction trash hauling does not include implied power to charge licensing fees based on a percentage of revenue, and such fees would have to be tethered to the town’s administrative costs. However, the court noted that its decision did not implicate the authority of the city to impose franchise fees on non-construction solid waste collectors under Section 364.034 of the Health and Safety Code. The court remanded to the appellate court to determine whether the remainder of the town ordinance is severable from the invalid fee.

Whistleblower Act: City of Fort Worth v. Pridgen, No. 20-0700, 2022 WL 1696036 (Tex. May 27, 2022). This case concerns the proper interpretation of a “good faith report of a violation of law” under the Texas Whistleblower Act (Act).

Before they were demoted, Pridgen and Keyes were serving as assistant police chief and deputy chief, respectively, in the Fort Worth Police Department (Department), where they both supervised the Internal Affairs (IA) and Special Investigations Unit (SIU) divisions. Pridgen and Keyes participated in the internal investigation of an arrest conducted by Officer Martin that was shown on Facebook livestream and gained national attention and media coverage leading to allegations of racism against Officer Martin by many members of the public. Following the Department’s investigation, both Pridgen and Keyes recommended to the police chief that Officer Martin be fired. Instead, the police chief suspended Officer Martin for ten days. Ninety days later, both Pridgen and Keyes were demoted based on the Department’s contention that they had disseminated confidential documents regarding the investigation without the Department’s authorization. 

Pridgen and Keyes brought action against the city under the Act, alleging that they were unlawfully disciplined for making a good faith report regarding Officer Martin’s conduct to the police chief. The trial court denied the city’s motion for summary judgment, and the court of appeals affirmed, holding that the Act waived the city’s immunity.

The Supreme Court reversed, concluding that to “report” under the Act, an employee must convey information, not just conclusions, and that Pridgen and Keyes largely failed to satisfy this requirement. However, the court rejected the city’s propositions: (1) to limit the definition of “report” to “a disclosure of information;” and (2) that public employees forfeit the Act’s protection if they report as part of their job duties.

Plat Approval: Schroeder v. Escalera Ranch Owners’ Ass’n, Inc., No. 20-0855, 2022 WL 1815042 (Tex. June 3, 2022). This is an action by a homeowners association against the planning and zoning (P&Z) commissioners of the City of Georgetown, in their official capacity, seeking mandamus relief directing the commissioners to rescind approval of a plat.

Escalera Ranch is a subdivision within Georgetown’s extraterritorial jurisdiction, and it and a neighboring subdivision contain some 150 homes and 15 vacant lots, combined. Both subdivisions are accessed via Escalera Parkway, a residential street that traverses Escalera Ranch. A developer applied to the P&Z commission for approval of a preliminary plat for a new 89-home subdivision, Patience Ranch, neighboring Escalera Ranch to the north. As planned, Escalera Parkway would provide the only access to homes in the new subdivision. Several Escalera Ranch residents expressed concerns that: (1) the plat did not conform to the city’s Unified Development Code (UDC), thus increasing traffic to an unsafe level; and (2) the plan did not conform to the International Fire Code, which the city had adopted, that there be two separate fire access roads for that area. 

The city argued that: (1) Patience Ranch and Escalera Ranch subdivisions were proposed to connect with future development, which would provide another access point and reduce traffic levels on Escalera Parkway; and (2) a connection with future development was also an express exception to the two-fire-access-road requirement. After analysis, P&Z commission staff reported that “[t]he proposed Preliminary Plat meets all of the requirements of the [UDC]” and at a public meeting, the city’s assistant fire chief agreed that the new subdivision would meet fire code standards. Accordingly, the P&Z commission concluded that it had a ministerial duty to approve the plat as required by statute.

The Escalera Ranch Owners’ Association (Association) sued the commission members asserting that the plat was nonconforming and that their approval of the plat was a clear abuse of discretion. In a plea to the jurisdiction, the commissioners argued that they had a ministerial duty to approve a plat they had determined to be conforming and that the Association lacked standing to sue.

The trial court granted the commissioners’ plea. The Association appealed. The appellate court reversed, and the commissioners petitioned for review. The Supreme Court reversed, determining that the commissioners adhered to their duty to interpret the UDC, consider certain listed items, and determine whether a plat conforms to the standards in the UDC. Accordingly, the trial court lacked jurisdiction to compel a contrary determination by mandamus.

Standing: Jones v. Turner, No. 21-0358, 2022 WL 1815031 (Tex. June 3, 2022). This is an ultra vires action related to the City of Houston allegedly spending tax revenue in violation of the city charter.

Two city taxpayers sued the mayor and the city councilmembers alleging that they misallocated $50 million tax revenue in fiscal year 2020, in violation of the city charter, when they allegedly directed a certain amount of tax revenue allocated to a fund used exclusively for drainage and street maintenance to other city services. The taxpayers claim that the officials acted ultra vires in spending the tax revenue at issue on anything other than the drainage fund. The officials filed a plea to the jurisdiction asserting governmental immunity, and the trial court denied the plea. The court of appeals held that the taxpayers lacked standing and dismissed the case without reaching the immunity issue.

The Supreme Court found that the taxpayers had met the requirements of the “tax payer exception” to standing by showing that they are taxpayers and public funds are expended on “alleged illegal activity.” The court determined that when the law requires that a certain amount of money be directed to a specific service, and the plaintiff alleges that it is being directed and spent elsewhere, the taxpayer has alleged an illegal expenditure sufficient to confer taxpayer standing. Accordingly, the court reversed the appellate court’s judgment and remanded to the trial court for further proceedings.

Standing: Perez v. Turner, No. 20-0382, 2022 WL 2080868 (Tex. June 10, 2022). This case stems from a challenge to the City of Houston’s drainage fee in which the Supreme Court affirmed some claims and remanded one claim.

In 2015, Perez filed a lawsuit against the city’s assessment, collection, and expenditure of a drainage fee, alleging that the ordinance authorizing the drainage fee was invalid because the ordinance was premised on a faulty amendment to the city charter. She sought a variety of relief for herself and a class of similarly situated taxpayers, including a declaration of the drainage fee ordinance’s invalidity, an injunction against collection of the fee, and reimbursement of already paid drainage fees. 

The court of appeals held that Perez’s claims based on the charter amendment’s invalidity were not ripe and that she lacked standing. She petitioned for review. While her case was on appeal, the city passed a new charter amendment that cured many of the defects Perez alleged in the drainage fee ordinance. In light of this, the Supreme Court construed that Perez had only two remaining claims: (1) reimbursement of the drainage fees she paid prior to 2018; and (2) a narrow prospective injunction against the future expenditure of fees collected prior to 2018.

The Supreme Court concluded that Perez has standing to pursue these claims, but she did not adequately plead those claims so as to overcome the city’s governmental immunity. Thus, the court of appeals’ judgment of dismissal was affirmed, but that judgment was reversed in part to the extent it denied Perez the opportunity to replead. The case was remanded to the district court to allow Perez to replead in light of intervening events.

Injection Well Permits: Dyer v. Tex. Comm’n on Envtl. Quality, No. 19-1104, 2022 WL 2082193 (Tex. June 10, 2022). This case deals with a permit under the Injection Well Act (IWA) where the Railroad Commission (RRC) issued a no-harm letter required by the IWA that the proposed well would not endanger or injure any oil or gas reservoir but later rescinded the letter. Despite the rescission and after a State Office of Administrative Hearings (SOAH) proceeding on the permit, the Texas Commission on Environmental Quality (TCEQ) granted the permit for the injection well while the RRC’s order rescinding the letter was pending. Many parties affected by the well challenged the permit seeking declaratory judgment, including the City of Conroe. The trial court denied the claims for declaratory relief and the appellate court affirmed.

Affirming the appellate court, the Supreme Court held: (1) the rescission of the RRC’s commission letter after TCEQ granted the permit did not violate the IWA; (2) TCEQ did not act arbitrarily or capriciously when refusing to reopen the record for the permit application in light of the rescission of the RRC’s letter; (3) clerical changes to the order did not violate state law; (4) TCEQ had authority to modify the SOAH’s findings of fact, including adding additional findings of fact; and (5) TCEQ’s findings of fact were supported by substantial evidence.

Elections: Paxton v. Longoria, No. 22-0224, 2022 WL 2080867 (Tex. June 10, 2022). In this case, the Texas Supreme Court was asked to certify three questions from the Fifth Circuit in litigation over provisions in SB 1: (1) whether one of the plaintiffs, a volunteer deputy registrar, is a “public official” to whom the anti-solicitation provision applies; (2) whether certain types of speech constitute “solicitation” under that provision; and (3) whether the Attorney General can enforce the civil penalties.

In briefing, the parties agreed that the answer to the first and third questions were no. Because the parties agreed, the Court found: (1) a volunteer deputy registrar was not a “public official” to whom the anti-solicitation provision applies, stating that the response had no effect beyond the case; and (2) the Attorney General had no authority to enforce civil penalties against the parties, stating the response has no effect beyond the case.

As to the second question, the Court concluded: (1) SB 1’s definition of “solicits” is not narrowly limited to seeking application of mail-in ballots that would violate state law; (2) solicitation under the statute is not limited to demands for submission of an application to vote by mail; and (3) the statute does not cover telling voters they have the opportunity to apply for mail-in ballots.

Takings; Easements: City of Friendswood v. Tostado, No. 01-20-00398-CV, 2022 WL 2070407 (Tex. App.—Houston [1st Dist.] June 9, 2022) (mem. op.). Joseph Tostado sued the City of Friendswood when the city made several improvements, including erecting a locked gate, on the city’s easement on his property. The trial court denied the city’s plea to the jurisdiction and the city appealed.

The appellate court reversed in part and affirmed in part the order of the trial court, holding that: (1) governmental immunity bars a trespass-to-try-title claim against a city; (2) the Uniform Declaratory Judgment Act does not waive a city’s immunity from a suit to determine the existence and ownership of an easement; (3) because the city’s actions were substantially certain to restrict Tostado’s access to his property, it constituted a taking; and (4) Tostado’s claim was not time-barred because the statute of limitations began to run when the city made the complained-of improvements rather than when Tostado originally took title to the land subject to the easement.

Immunity: Doe v. City of Fort Worth, No. 02-21-00026-CV, 2022 WL 1496527 (Tex. App.—Fort Worth May 12, 2022). The case stems from a sexual assault of a volunteer by a city employee at a city-owned animal shelter in which the volunteer alleges immunity was waived under the Texas Tort Claims Act (TTCA).

Jane Doe was repeatedly sexually assaulted while working at an animal shelter as a teen volunteer for the city. At the time, the city owned the animal shelter and employed Doe’s assailant. Doe sued the city for negligent supervision, premises liability, and other torts. She alleged that the shelter’s surveillance cameras, keycards, and animals as the items of personal and real property that triggered the TTCA. She further alleged that the city failed to properly use and monitor its surveillance cameras, that it provided Doe with a keycard that allowed her to access the shelter and to work alone with her assailant without adequate supervision, and that it used animals to lure her to the dangerous work environment. All of this, Doe alleged, was part of the city’s failure to adequately supervise and protect her from her assailant—himself a dangerous condition—and all of it caused her sexual assault. Doe also noted that the city partnered with PetSmart for aspects of its volunteer program, and she claimed that this partnership constituted a joint enterprise that waived the city’s immunity. The trial court concluded that Doe’s claims were barred by sovereign immunity, so it dismissed her case. Doe appealed. 

The appellate court affirmed, holding that the city was immune as it was performing a governmental function—animal control—when it engaged in alleged tortious conduct. The court further held that Doe did not plead facts showing that: (1) the city’s provision of keycards and maintenance of a keycard system qualified as uses of tangible personal property, or that they caused her injuries; (2) the city’s surveillance cameras and rooms qualified as premises defects, or that any such defects were known to the city but not to Doe; and (3) that PetSmart was liable for Doe’s injuries at all.

Tort Claims Act: City of Fort Worth v. Beasley, No. 02-21-00448-CV, 2022 WL 1573403 (Tex. App. Fort Worth—May 19, 2022) (mem. op.). This case stems from a motor-vehicle accident involving a City of Fort Worth police officer in which city asserts that it is immune from liability.

Officer Towns was in pursuit of a suspected truck thief who had fled another officer’s traffic stop when he lost control and crossed the street towards a resident’s fence. Beasley was standing near the fence talking to someone who was standing directly next to the fence. Towns’s vehicle hit the fence but did not hit any person; Beasley saw the car approaching and jumped out of the way. Beasley subsequently sued the city alleging that he had been injured by the fence. He alleged that the city’s immunity had been waived under Section 101.021 of the Texas Tort Claims Act (TTCA) because his injuries had been caused by Towns’s negligent operation or use of a motor-driven vehicle. The city filed a plea to the jurisdiction asserting immunity. The trial court denied the motion, and the city brought this interlocutory appeal.

The appellate court reversed the trial court’s decision, finding that Officer Towns had met the good-faith requirement for official-immunity purposes. Accordingly, he was entitled to official immunity and cannot be liable to Beasley, and the TTCA thus does not waive the city’s immunity from Beasley’s suit.

Tort Claims Act: City of N. Richland Hills v. Quinonez, No. 02-21-00432-CV, 2022 WL 1682411 (Tex. App. Fort Worth—May 26, 2022) (mem. op.). This case stems from a vehicle collision involving a City of North Richland Hills police officer in which the appellate court affirmed the trial court’s decision.

While leaving the apartment complex parking lot en route to a hit-and-run call, Officer Brown’s vehicle hit Quinonez’s vehicle. As a result of the collision, Quinonez sustained injuries to her back and neck. Two years later, Quinonez filed suit against the city for negligence, seeking past and future damages for medical care, physical pain and suffering, and mental anguish. The jury awarded Quinonez damages of $34,910.77 for past medical care and $40,000 for past physical pain, and the trial court signed a $74,910.77 judgment on the verdict.

The city appealed the legal sufficiency of the jury verdict, arguing that: (1) the trial court erred in denying its motion for directed verdict because Quinonez failed to plead or offer any proof that Officer Brown acted with conscious indifference or reckless disregard while responding to an emergency call or situation; and (2) the evidence was insufficient to support a jury verdict of $40,000 for physical pain sustained in the past.

The appellate court determined that although the city filed special exceptions in response to Quinonez’s lawsuit, the city did not specially except to Quinonez’s failure to allege that Officer Brown acted with conscious indifference or reckless disregard while responding to an emergency call or situation. Because the city failed to specially except to this alleged pleading defect with particularity, as required by Rules 90 and 91 of the Texas Rules of Civil Procedure, the city cannot now complain of the pleading defect on appeal. Thus, the court overruled this issue. On the legal sufficiency argument, the appellate court determined in order to preserve error on a factual sufficiency challenge, a party must complain in a motion for new trial that the evidence is factually insufficient to support a jury answer or that the answer is against the great weight and preponderance of the evidence. Because the city did not file a motion for new trial, the court overruled this issue.

Tort Claims Act: City of Austin v. Powell, No. 03-21-00146-CV, 2022 WL 1509304 (Tex. App.—Austin May 13, 2022) (mem. op.). Noel Powell sued the City of Austin and Austin Police Department (APD) Officers Brandon Bender and Michael Bullock for negligence after they struck his car while in pursuit of a fleeing suspect in response to a “shots fired” call. The city filed a plea to the jurisdiction claiming governmental immunity under the “emergency exception” to the Texas Tort Claims Act (TTCA). After a hearing on the matter, the district court denied the plea and the city appealed. Although the TTCA waiver of immunity does not apply in instances when a governmental employee is responding to an emergency, the employee’s actions must be in compliance with laws and ordinances applicable to emergency action, or in the absence of such laws or ordinances, the employee’s actions must not be made with conscious indifference or reckless disregard for the safety of others. Here, the accident occurred when Officer Bullock collided with Officer Bender’s car after failing to maintain a safe distance between his car and Bender’s car as required by Transportation Code section 545.062(a), which does not include an exception for drivers of emergency vehicles. The appellate court concluded that because there was enough evidence in the record that indicated Officer Bullock “was inattentive, failed to control his speed, and failed to maintain a safe following distance” which caused the serious collision, Powell raised a sufficient issue of fact that Officer Bullock was reckless. As a result, the appellate court affirmed the district court’s denial of the city’s plea to the jurisdiction.

Annexation: Diamond Envtl. Mgmt., L.P. v. City of San Antonio, No. 04-21-00058-CV, 2022 WL 1559095 (Tex. App.—San Antonio May 18, 2022). In 2013, the city entered into a development agreement with Diamond for Diamond to delay annexation. In 2019, the city: (1) notified Diamond that it had breached the agreement; (2) notified the relevant emergency services districts that also served Diamond’s property; and (3) passed an ordinance to annex Diamond’s property. One of the emergency services districts sued the city and the city filed a plea to the jurisdiction, which the trial court granted.

In affirming the grant of the plea, the appellate court: (1) found that the city’s pre-annexation notice to the emergency services district satisfied the statute’s requirements; (2) rejected the emergency services district’s argument that the development agreement created a permit; and (3) rejected the emergency services district’s argument that the Uniform Declaratory Judgment Act waived the city’s immunity.

Immunity: City of Garland v. Jordan, No. 05-21-00377-CV, 2022 WL 1498121 (Tex. App.—Dallas May 12, 2022) (mem. op.). Plaintiff sued the City of Garland and Garland Civil Service Commission (commission) after testing for a firefighter promotional exam and later appealing to the commission to regrade his exam because he was not given a fifteen-minute warning, per the exam instructions, which resulted in his inability to transfer answers from his test booklet to a scantron answer sheet before the testing time expired. His claims included: (1) “Denial of Right to Petition and Statutory Grievance Rights;” (2) “Denial of Due Course of Law;” (3) declaratory judgment; (4) injunctive and mandamus relief to compel the Commission to regrade his exam and accept the answers marked solely in his test booklet; and (5) injunctive relief compelling the commission to award him with the promotion and compensation he would have received had the commission adjusted his test grade, or if not possible, damages for “lost wages, loss of employment benefits, pecuniary losses, emotional pain, suffering, mental anguish, inconvenience, damage to his reputation, and other damages.” The trial court denied the commission’s plea to the jurisdiction, and the commission appealed.

In reversing the trial court and granting the plea, the appellate court: (1) concluded the Uniform Declaratory Judgment Act (DJA) did not apply to plaintiff’s claims because the DJA only waives immunity for claims that a statute or ordinance is invalid – not in instances involving claims that governmental actors violated the law; (2) concluded that decisions regarding how promotional examinations are conducted and graded are not final decisions concerning a promotion, but merely a step in the process of making a final decision, and therefore not appealable; (3) rejected the plaintiff’s claims that sections 24.007 and 24.008 of the Government Code and Article V, Section 8, of the Texas Constitution waive the commission’s governmental immunity because of a prior, unrelated lawsuit; (4) rejected the plaintiff’s claims that section 180.006 of the Local Government Code waives immunity for monetary benefit because he has not been denied any monetary benefit under chapter 141, 142, or 143 of the Local Government Code; and (5) found plaintiff’s claims for mandamus and injunctive relief were barred because they were requests for equitable relief that were retrospective in nature – seeking a regrading of his exam and compensation for losing out on the promotion – and his claims were brought against the commission and city, not governmental actors in their official capacity.

Tort Claims Act: In re Verastique, No. 05-22-00397-CV, 2022 WL 1514675 (Tex. App.—Dallas May 13, 2022) (mem. op.). Jantzen Verastique was arrested during a protest in Dallas. Following the incident, she filed a petition with the trial court pursuant to Texas Rule of Civil Procedure 202.1 seeking an order allowing her to depose a Dallas Police Department (DPD) representative to investigate potential claims or suits under the Texas Tort Claims Act. The trial court granted her petition, and DPD appealed the order. Verastique filed a motion to dismiss DPD’s appeal for want of jurisdiction, asserting that the trial court lacked jurisdiction over the appeal as the trial court’s order is interlocutory because DPD is an anticipated defendant. DPD argued that Rule 202.1 does not contemplate a future suit but instead allows the taking of a deposition only in an anticipated suit. However, the appellate court reasoned that Rule 202.1 does contemplate a future suit so that petitioners can investigate the exact nature of the possible claims and learn the identities of potential defendants. Agreeing that it lacked jurisdiction to hear the appeal because the trial court order was not appealable or a final order, the appellate court granted Verastique’s motion to dismiss DPD’s appeal.

Standing: Robinson v. Scripps, No. 05-21-00349-CV, 2022 WL 1577210 (Tex. App.—Dallas May 19, 2022) (mem. op.).  Eugene Jalon Robinson sued the City of Dallas and its Director of Cultural Affairs for disassembling and removing a Confederate war monument while working under an expired Certificate of Demolition (CD). After the trial court denied his temporary restraining order, Robinson sought an injunction to enjoin the city from removing the monument. The city filed a plea to the jurisdiction, claiming among other issues, Robinson lacked standing and his claims were moot because the monument had already been removed and placed in storage. Without indicating the legal basis, the trial court granted the city’s plea to the jurisdiction and dismissed Robinson’s claims. Robinson appealed, claiming the “capable of repetition, yet evading review” exception to the mootness doctrine applied. However, the appellate court found no evidence the city routinely demolished or removed property without a valid CD and considered Robinson’s argument that the city could remove other Confederate monuments throughout the city illegally was merely a “theoretical possibility.” Because Robinson failed to show he would be subjected to the same action in the future, the appellate court held the exception did not apply and affirmed the trial court.

Tort Claims Act: City of Cleveland v. Lafrance, et al., No. 09-20-00189-CV, 2022 WL 2068858 (Tex. App.—Beaumont June 9, 2022) (mem. op.). Lafrance sued the City of Cleveland for injuries she received when she got an electrical shock plugging her phone charger into an outlet while volunteering at a concession stand at the city’s livestock show. The city filed a plea to the jurisdiction and no-evidence motion for summary judgment, arguing that Lafrance had submitted no evidence to show willful, wanton, or grossly negligent conduct to trigger the TTCA’s waiver of governmental immunity or to show that the city controlled the concession stand with the faulty wiring at the time of the incident. The trial court denied the city’s motion and plea and the city appealed.

The appellate court upheld the ruling of the trial court, holding that: (1) the recreational use statute, which further limits a city’s liability, does not apply to volunteering at a concession stand; and (2) Lafrance had produced more than a scintilla of evidence that the city controlled the concession stand at the time of the incident.

Tort Claims Act: Wolf v. City of Port Arthur, No. 09-20-00236-CV, 2022 WL 2068819 (Tex. App.—Beaumont June 9, 2022) (mem. op.). Wolf sued the city of Port Arthur for damages to her property that occurred when the city demolished her building due to substandard conditions. Wolf filed a petition and application for a temporary restraining order, and the city filed a plea to the jurisdiction and motion for summary judgment. The trial court granted the city’s motion.

The appellate court upheld the judgment of the trial court, holding that: (1) Wolf’s failure to file a direct appeal of the city’s administrative determination that the building was in substandard condition barred a collateral attack on that determination; and (2) the claim under the Texas Tort Claims Act failed because the demolition work was not performed by the city itself but by a contractor.

Tort Claims Act: City of Raymondville v. Elizondo, No. 13-21-00375-CV, 2022 WL 1669438 (Tex. App.—Corpus ChristiEdinburg May 26, 2022.) (mem. op.). Isabel Elizondo sued the City of Raymondville for burying her deceased husband in the wrong burial plot, claiming that the city was negligent and breached its fiduciary duty. The trial court denied the city’s motion for summary judgment and the city appealed.

The appellate court reversed on the basis of governmental immunity, holding that: (1) the use or misuse of information (burial records) does not constitute the use of personal property to trigger a waiver of immunity under the TTCA; and (2) the use or misuse of information does not establish a premises defect claim under the TTCA. 

Attorney’s Fees: Jimenez v. City of Rockport, No. 13-21-00079-CV, 2022 WL 2069212 (Tex. App.—Corpus ChristiEdinburg June 9, 2022) (mem. op.). Jimenez sued the City of Rockport, challenging the city’s order requiring demolition of buildings on Jimenez’s property. The city filed a motion for summary judgment and claimed attorney’s fees. The trial court granted the city’s motion for summary judgment and granted the city’s claim for attorney’s fees.

Jimenez challenged the trial court’s award of attorney’s fees. The appellate court upheld the award, holding that although attorney’s fees are not appropriate after the grant of a plea to the jurisdiction, the trial court had reached the merits on one of Jimenez’s claims so attorney’s fees were appropriate.

Occupational Freedom: City of South Padre Island v. Surfvive, et al., No. 13-20-00536-CV, 2022 WL 2069216 (Tex. App.—Corpus ChristiEdinburg June 9, 2022) (mem. op.). Surfvive, a food truck operator, sued the City of South Padre Island for an injunction against the city’s food truck ordinance, which requires that a food truck operator have the signature of an owner of a free-standing restaurant on the island and limits the number of permits to be issued per month. Surfvive argued, among other things, that the ordinance violated its protected economic liberty interest of occupational freedom. The trial court granted Surfvive’s motion for summary judgment for declaratory relief, an injunction, and nominal damages. The city appealed. 

The appellate court reversed the order of the trial court. Noting that in a case alleging a constitutional violation, governmental immunity is waived only if a plaintiff’s constitutional claims are facially valid, The court held that because Surfvive did not present evidence to show that their claims were facially valid, governmental immunity was not waived. 

Jurisdiction: Banes v. City of Houston, No. 14-20-00382-CV, 2022 WL 1633812 (Tex. App.—Houston [14th Dist.] May 24, 2022) (mem. op.). Neva and Bryant Banes (“Plaintiffs”) alleged that a city construction project on their street created a nuisance that gave rise to a constitutional takings claim, so they filed an inverse condemnation claim against the City of Houston (“Houston”) in a Harris County district court. Houston filed a plea to the jurisdiction arguing governmental immunity, which the trial court ultimately granted. Plaintiffs appealed. At the appellate court level, all parties agreed that the initial action was incorrectly filed in district court, and that the county court at law is the only court with jurisdiction over the claims. The major disagreement was whether the dismissal should be with or without prejudice. When a trial court lacks subject matter jurisdiction over a case, the case must be dismissed without prejudice; consequently, the appellate court did just that.

*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