Recent Texas Cases of Interest to Cities

Note: Included cases are from May 1, 2024, through May 31, 2024.

Whistleblower: City of Denton v. Grim, No. 22-1023, 2024 WL 1945118 (Tex. May 3, 2024).  Former city employees filed suit against the city under the Whistleblower Act (Act), based on allegations that they were terminated for having reported violations of law by a city council member who leaked confidential vendor information to a local newspaper reporter in the context of a story about a controversial plan for the construction of new power plant.  The trial court denied the city’s motions, and the Dallas Court of Appeals affirmed.

The Texas Supreme Court reversed, finding: (1) alleged violations by the city council member, who was not a public employee, of the Public Information Act and the Open Meetings Act, could not be imputed to city, and thus, the council member’s violations of law were not violations of law by the city, as an employing governmental entity, within the meaning of the Act; (2) the council member was not acting as an agent for city when she allegedly violated the law, and thus, council member’s violations of law were not violations of law by the city, as an employing governmental entity; (3) whether a government official who had no authority to act on behalf of the government entity was acting in his or her individual or official capacity at the time of the violation of law had no bearing on the issue of whether the official’s violation of law constituted a violation of law by employing government entity, within the meaning of the Act, and (4) the goal of the Act to encourage public employees’ reports of violations of law that were detrimental to public good or society in general without fear of retribution had no bearing on whether a violation of law by a governmental official who had no authority to act on behalf of a governmental entity constituted a violation of law by an employing governmental entity, within the meaning of Act.

Tort Claims Act: City of Houston v. Sauls, No. 22-1074, 2024 WL 2096554 (Tex. May 10, 2024). This is an interlocutory appeal in which the court is asked to decide whether the city is immune from a wrongful-death suit after its police officer, while responding to a suicide call, had an automobile accident with a bicyclist crossing the road.

The bicyclist’s heirs sued the city for wrongful death, alleging that the city’s employee negligently and proximately caused the bicyclist’s death while operating a motor vehicle, such that the employee would be personally liable. The city moved for traditional summary judgment, asserting that its immunity from suit was not waived under the Tort Claims Act because the officer was entitled to official immunity.  The trial court denied the motion, and the city appealed.  A divided court of appeals affirmed.

The Texas Supreme Court reversed and held: (1) the officer was performing a “discretionary” duty when responding to the suicide call; (2) the city satisfied its burden of making a prima facie showing that the officer acted in good faith based on a need factor; (3) the city satisfied its burden of making a prima facie showing that the officer acted in good faith based on a risk factor; and the (4) heirs and estate failed to controvert city’s showing of good faith.

Tort Claims Act/Takings: Tex. Dep’t of Transp. v. Self, No. 22-0585, 2024 WL 2226295 (Tex. May 17, 2024). Landowners sued the Texas Department of Transportation (TxDOT) and its contractor, alleging inverse condemnation and negligence, after employees of the contractor removed trees from a portion of the landowners’ property that was outside TxDOT right-of-way while the contractor was in the process of removing trees from the right-of-way.  The trial court denied TxDOT’s plea to the jurisdiction, and TxDOT appealed. The Fort Worth Court of Appeals, affirmed in part and reversed in part.

Regarding negligence, the Texas Supreme Court determined that the landowners failed to either show that the subcontractor’s employees were in TxDOT’s paid service or that TxDOT employees operated or used the motor-driven equipment that cut down the trees, as required to waive immunity under the Tort Claims Act. With respect to inverse condemnation, the court determined that the landowners offered evidence that TxDOT intentionally directed the destruction of trees as part of clearing the right-of-way for public use.  Accordingly, the court dismissed the negligence claim, and remanded the cause of action for inverse condemnation to the trial court for further proceedings.

Elections: In re Rogers, No. 23-0595, 2024 WL 2490520 (Tex. May 24, 2024). Qualified voters petitioned the board of an emergency services district for a ballot proposition at the next available election to alter the sales tax rates within the district. The board, believing the petition to be legally deficient, refused to place it on the ballot. Relators, three signatories of the petition, sought a writ of mandamus compelling the board to determine whether the petition contains the statutorily required number of signatures or, alternatively, ordering the board to call an election on the petition.

The Texas Supreme Court concluded that: (1) the court had jurisdiction to grant mandamus relief against the board; (2) as long as the petition had the statutorily required number of signatures, the board had a ministerial, nondiscretionary duty to call an election; and (3) mandamus relief was an appropriate remedy.

Tort Claims Act: City of Denton v. Ragas, No. 02-24-00037-CV, 2024 WL 2202051 (Tex. App.—Fort Worth May 16, 2024) (mem. op.). Ragas fell while crossing a street in Denton, Texas, and sued the City of Denton seeking damages for her personal injuries. She alleged that there was a defect in the street’s pavement that proximately caused her fall, that the defect was a “special defect,” and that the city was negligent in maintaining the street. Alternatively, she alleged that the defect was an ordinary premises defect, that the city had actual knowledge of its existence, and that the city failed to warn her of its existence or remedy the condition. The trial court denied the city’s plea to the jurisdiction, and the city filed an interlocutory appeal. The court of appeals reversed, holding that Ragas’ claims are barred by governmental immunity.

Zoning: Arlington v. City of Arlington, No. 02-23-00288-CV, 2024 WL 2760415 (Tex. App.—Fort Worth May 30, 2024) (mem. op.). Liveable Arlington, Jade Cook, and Gibran Farah Esparza (collectively “plaintiffs”) sued the City of Arlington; the Assistant Director of the Planning and Development Services Department; the Mayor; and City Council Members (collectively the “city”) seeking injunctive, mandamus, and declaratory relief based upon the city council’s approval of the establishment of a drilling zone and new gas-drilling permits on land known as the Fulson Drill Site. The plaintiffs further alleged that the council failed to provide proper notice of its actions. The city filed a plea to the jurisdiction alleging governmental immunity. The trial court granted the plea.  The plaintiffs appealed.

The appellate court affirmed in part, finding that governmental immunity protected the city from claims they violated the Texas Constitution due-course-of-law provision, Section 253.005 of the Local Government Code or a city ordinance.  But the court reversed and remanded, finding that the plaintiffs’ claim under the Open Meetings Act survives the city’s plea.  The court also affirmed the trial court’s order denying the application for temporary injunction.

Condemnation: The City of Dripping Springs, Tex. v. Lazy W Conservation Dist., No. 03-22-00296-CV, 2024 WL 2787270 (Tex. App.—Austin May 31, 2024) (mem. op.). In 2019, the city of Dripping Springs sought to install an underground wastewater pipeline under property owned by Bruce Bolbock and Barbara Wiatrek (the Bolbocks). To protect the property in question from condemnation, the Bolbocks conveyed it to the Lazy W Conservation District. The city proceeded with the condemnation suit against Lazy W and the Bolbocks, and special commissioners ruled in favor of the city. In response, Lazy W and the Bolbocks filed counterclaims, general denials, and objections to the ruling, arguing that: (1) the court lacked subject matter jurisdiction as Lazy W was entitled to governmental immunity, and (2) the paramount public importance doctrine prevented the city from condemning the property. After a hearing on the matter, the trial court granted Lazy W’s plea to the jurisdiction, and the city filed an interlocutory appeal thereafter.  In reversing the trial court’s order, the court of appeals concluded that: (1) even assuming Lazy W is entitled to it, governmental immunity does not apply in eminent domain proceedings between two governmental entities; and (2) the doctrine of paramount public importance does not implicate a jurisdictional issue.

Employment: City of San Antonio v. Diaz, No. 07-23-00275-CV, 2024 WL 2195443 (Tex. App.—Amarillo May 15, 2024) (mem. op.). Diaz sued the city claiming sex and age discrimination and retaliation when she was terminated because she was succeeded by a man who was in his late 30s. However, the city claimed it terminated Diaz because, as a supervisor, she had a subordinate employee help her with a personal project while on the clock. The trial court denied the city’s plea to the jurisdiction and the city appealed.

On appeal, the court reversed the trial court. The appellate court found that: (1) Diaz did not provide any comparators for her disparate discipline claim because none of the comparators put forward by Diaz were accused of violating the same city policy or using their position to obtain free labor from a subordinate employee so her claims of discrimination failed; (2) Diaz’s evidence failed to show that she engaged in any protected activity of opposing an illegal practice so her retaliation claim failed; and (3) Diaz’s request for a “name clearing hearing” was not included in the relief she sought so that claim also failed.

Contracts: Quadvest, L.P. v. San Jacinto River Auth., No. 09-23-00167-CV, 2024 WL 2064487 (Tex. App.—Beaumont May 9, 2024) (mem. op.). The San Jacinto River Authority (SJRA) and Quadvest, L.P. and Woodland Oaks Utility, L.P., (the Utilities) entered into a series of contracts which were used by SJRA to secure payment of seven bond issuances. The contracts were based on a water conservation plan that was later declared void in court, and the Utilities then stopped making payments under the contracts. SJRA sued the Utilities and the Utilities asserted several affirmative defenses, including that the contract failed for lack of consideration. SJRA filed a motion for partial summary judgment, claiming that the Utilities’ affirmative defenses could not be raised because three statutes in the Government Code and the Water Code made the contracts incontestable after they had been approved by the Attorney General and Comptroller of Public Accounts. The trial court granted SJRA’s motion for partial summary judgment and the Utilities appealed.

The appellate court affirmed, holding that: (1) Sections 1202.006(a) and 1371.059(a), Government Code, and Section 49.184(e), Water Code, operated to prevent the Utilities’ affirmative defenses contesting the contract because those statutes provided that a contract to secure the payment of bonds that has been approved by the Attorney General is incontestable; and (2) the Utilities had not reserved those affirmative defenses in the contract.

Employment: Adams v. City of Pineland, No. 12-23-00289-CV, 2024 WL 2064384 (Tex. App.—Tyler May 8, 2024) (mem. op.). Robert Adams III, a probationary patrol officer for the City of Pineland, was terminated due to his inability to perform essential job functions. Adams sued the city, alleging disability discrimination, claiming the city regarded him as disabled due to his pancreatitis and related medical treatments. The trial court granted the city’s motion for summary judgment, and Adams appealed. To prevail, Adams needed to show he was qualified for his position and that he was terminated due to his perceived disability. Evidence showed Adams was often unable to perform required tasks like patrolling and initiating traffic stops due to his medical condition and that he was frequently in pain, not actively patrolling, and even sleeping on duty. Ultimately the appellate court affirmed the trial court’s summary judgment in favor of the city, concluding that Adams failed to establish a prima facie case of disability discrimination.

Employment: Hadnot v. Lufkin Indep. Sch. Dist., No. 12-23-00144-CV, 2024 WL 2334631 (Tex. App.—Tyler May 22, 2024). The Lufkin Independent School District posted openings for two school resource officer positions, and Mickey M. Hadnot, a black applicant, applied. Hadnot, with a bachelor’s degree in criminal justice, had extensive law enforcement experience including working for the Lufkin Police Department, the district as a school resource officer, and the Texas Department of Public Safety, where he was a Lieutenant at the time of his application. Juan Tinajero, who is Hispanic and fluent in Spanish, also applied. Tinajero had an associate’s degree in criminal justice and diverse experience, including working as a reserve officer and private investigator. Despite Hadnot’s extensive qualifications, the district hired Tinajero and Jeffrey Taylor, another black applicant. Hadnot filed a race discrimination complaint with the EEOC, which was dismissed, and subsequently filed a lawsuit under the Texas Commission on Human Rights Act. The district filed a motion for summary judgement, which the trial court granted, and Hadnot appealed. Hadnot alleged multiple instances of racial discrimination and cronyism within the hiring process. He claimed another lieutenant, David Rodriguez, accused him of attempting to take Rodriguez’s job; manipulated the interview panel to favor Tinajero; and insisted on hiring a Spanish-speaking candidate. Hadnot argued that the district’s stated preference for Tinajero’s personality and interaction skills with students was a pretext for racial discrimination. The court focused on whether Hadnot presented more than a scintilla of evidence for his claims, finding that he had. Upon meeting this burden, the district had to provide legitimate, nondiscriminatory reasons for their decision, which it did. Hadnot then needed to demonstrate that these reasons were pretextual, which the court found he failed to do. Despite suggesting potential cronyism, Hadnot did not establish that race-based discrimination influenced the hiring decision; therefore, the trial court’s summary judgment in favor of the district was affirmed.

Easements: Johnson v. Town of Fulton, No. 13-23-00436-CV, 2024 WL 2198665 (Tex. App.—Corpus Christi–Edinburg May 16, 2024) (mem. op.). In 2012, the Town of Fulton by ordinance granted a 30-foot-wide portion of an easement to Johnson, who owned the underlying fee, so that Johnson could erect a building in the portion of the city’s right-of-way that was not being used as a road.  Subsequently Johnson erected a fence that blocked the portion of the easement that was being used as a public road. The city sued Johnson for injunctive relief and a declaration stating that the fence constitutes a nuisance and that the city’s right-of-way had not been abandoned. Johnson argued that previous surveys, except for one, had been mistaken about the size of the block associated with the easement. He argued that under that survey, the 30-foot-wide grant of the easement extended into the paved portion of the road. The city filed a motion for summary judgment and attorney’s fees, which the trial court granted. Johnson appealed.

The appellate court affirmed in part and reversed in part, holding that: (1) the 2012 ordinance relied on a certain survey when the city granted the 30-foot-wide portion of the easement to Johnson, and therefore Johnson could not try to enforce that ordinance by reliance on a different survey; and (2) because the declaratory relief added nothing to the judgment, the lower could not rely on the Uniform Declaratory Judgment Act for statutory authority to award attorney’s fees.

Tort Claims Act: City of San Antonio v. Magri, No. 13-23-00280-CV, 2024 WL 2340826 (Tex. App.—Corpus Christi–Edinburg May 23, 2024) (mem. op.). Magri sued the City of San Antonio under the Texas Tort Claims Act (TTCA) after she slipped at the public library while walking over a grate. She claimed the slippery grate was a dangerous condition and that her claim fell under the TTCA’s waiver of immunity for premises liability. The city filed a plea to the jurisdiction, which the trial court denied, and the city appealed.

The appellate court reversed and rendered judgment, holding there was no genuine issue of material fact as to whether the city had actual knowledge of the defect because the city had submitted an affidavit from an employee stating that there had been no previous reports of the dangerous condition of the grate in the preceding two years.

Employment: Clifton v. City of Pasadena, No. 14-23-00143-CV, 2024 WL 2206056 (Tex. App.—Houston [14th Dist.] May 16, 2024) (mem. op.). Susan Clifton, the first female assistant chief in the Pasadena Police Department, sued the City of Pasadena for gender discrimination and retaliation under the Texas Commission on Human Rights Act (TCHRA) after being demoted by acting chief Al Espinoza. Clifton alleged her demotion was due to her gender and in retaliation for reporting sexual harassment involving Espinoza’s son. The trial court granted the city’s plea to the jurisdiction and dismissed Clifton’s suit, so she appealed. The appellate court considered whether Clifton provided sufficient evidence to create a fact issue on her discrimination and retaliation claims under the TCHRA, applying the McDonnell Douglas burden-shifting framework. Ultimately the appellate court reversed the trial court’s dismissal, finding that Clifton produced sufficient evidence to create fact issues on both her claims and remanded the case for further proceedings.

Code Construction: Albertson Companies, Inc. v. Cnty. of Dallas, No. 14-23-00279-CV, 2024 WL 2279191 (Tex. App.—Houston [14th Dist.] May 21, 2024). Dallas and Bexar counties sued various pharmaceutical manufacturers, distributors, and pharmacies, alleging negligence in dispensing opioids and ignoring red flags of abuse and diversion. The pharmacies moved to dismiss the suits under the Texas Medical Liability Act (TMLA), arguing that the counties failed to serve expert reports within 120 days as required by the TMLA. The pharmacies’ motions to dismiss hinged on whether a county is a “person” for purposes of the TMLA. Because “person” is a legal term of art, it must be construed according to common law rather than simply looking to the Code Construction Act. The court examined numerous court precedents and definitions and held that in most cases under the common law, “person” does not include governmental entities; therefore, the counties in this case were not subject to the TMLA’s expert report requirement.