Recent Texas Cases of Interest to Cities

Note: Included cases are from February 11, 2015 through March 10, 2015.

Procedure: HS Tejas, Ltd. v. City of Houston, No. 01-13-00864-CV, 2015 WL 1020625 (Tex. App.—Houston [1st Dist.] March 5, 2015). This is the continuation of a case regarding a takings claim based on floodway regulation. The two prior cases, City of Houston v. HS Tejas, Ltd., 305 S.W.3d 178 (Tex. App.—Houston [1st Dist.] 2009, no pet.) and City of Houston v. HS Tejas, Ltd., No. 01–11–00431–CV, 2012 WL 682298 (Tex. App.—Houston [1st Dist.] 2012, no pet.)(mem. op.), dealt with whether HS Tejas had a ripe claim. After holding in 2011 that HS Tejas had shown a ripe claim, the case was remanded to the trial court. The city filed a no evidence summary judgment motion and a plea to the jurisdiction alleging that HS Tejas had not offered evidence of a takings claim. Specifically, the city argued that HS Tejas had not produced evidence that: (1) the city acted intentionally; (2) its action resulted in a taking; or (3) it took the property for a public use. After an evidentiary hearing, the trial court granted the city’s plea to the jurisdiction. The court of appeals held that the trial court improperly granted the plea to the jurisdiction because a defendant may not challenge subject-matter jurisdiction on the premise that the plaintiff provided no evidence to support the pleadings for a plea to the jurisdiction without producing its own evidence negating the plaintiff’s evidence. The city did not produce evidence that the court lacked jurisdiction and so the plea to the jurisdiction should not have been granted. The court of appeals remanded the case back to the trial court.

Declaratory Judgment Act: Guadalupe-Blanco River Auth. v. Texas Attorney General, No. 03-14-00393-CV, 2015 WL 868871 (Tex. App.―Austin Feb. 26, 2015) (mem. op.). The Guadalupe-Blanco River Authority (Authority) filed a suit against numerous entities asserting the San Antonio Water System (SAWS) improperly filed an application with the Texas Commission on Environmental Quality (Commission) that would significantly diminish the amount of water available for a major project by allowing SAWS to reuse effluent that it had previously used and discharged. The Authority alleged that SAWS’ application “creates a cloud over” the revenue pledge made by the Authority to secure bonds to pay for its project because there will be less water available to sell to its customers. All of the defendants filed pleas to the jurisdiction asserting the claims were not ripe and the claims do not fall within the enabling act because the Commission has exclusive or primary jurisdiction over the controversy, and because the claims are barred by sovereign immunity. The trial court granted all pleas to the jurisdiction and the Authority appealed.

The Expedited Declaratory Judgment Act (Act) contained within Texas Government Code Sections 1205.001-.152 was designed to provide a method of adjudicating the validity of public securities in an efficient and quick manner. The Authority argued the Act is the proper vehicle to challenge the permit since allowing the permit would mean the $100 million bond expenditure cannot result in the required total of needed water. However, the court held the Act’s expedited purpose, which relates to only a limited set of topics, is to prevent “one disgruntled taxpayer” from stopping “the entire bond issue by simply filing suit.” The relief sought by the Authority was not concerned with whether the securities were properly authorized or whether the procedures for issuing the securities were followed. Instead, the relief centers on trying to force SAWS to return water to the Guadalupe River for the benefit of the Authority. The relief cannot fairly be construed as bearing on the “legality and validity” of the bonds at issue. As a result the trial court was without jurisdiction to hear the case and properly granted the pleas.*

Employment Law: Draper v. Guernsey, No. 03-14-00265-CV, 2015 WL 868991 (Tex. App.―Austin Feb. 25, 2015) (mem. op.). This is a land use dispute, but the opinion focuses on the dismissal of a city employee under Texas Civil Practice and Remedies Code Section 101.106 versus ultra-vires claims. Draper, pro se, sued the City of Austin and the Director of Planning, Guernsey, regarding property he owns, the development of which is under certain restrictions pursuant to city ordinance. The city filed a motion to dismiss Guernsey under Section 101.106(a) (suit against entity precludes suit against employee) and 101.106(e)(suit against entity and employee means employee entitled to dismissal), which the trial court granted.

The court first noted that the pleadings are not very clear, but it appears some claims by Draper are ultra-vires claims to force the defendants to recognize some form of vested right under Chapter 245 of the Texas Local Government Code. The proper defendant to an ultra-vires claim seeking to restrain allegedly unlawful actions by the city would be Guernsey, not the city. However, Draper also sought monetary damages exceeding $10 million asserting various improper acts by Guernsey and other city officials.   The court analyzed the interplay between subsection (a) and (e) and ultimately held: (1) all claims against Guernsey, individually, were properly dismissed; (2) suit against Guernsey in his official capacity only is a suit against the city, but must be brought against Guernsey in his capacity as an official for ultra-vires purposes; and (3) the trial court’s wording that dismissed Guernsey in all respects was error. So, Guernsey individually is let out but the ultra-vires claims remain.*

Condemnation: City of Highland Haven v. Taylor, No. 03-12-00732-CV, 2015 WL 655278 (Tex. App.―Austin Feb. 12, 2015) (mem. op.). Eugene Taylor and Charles Fenner brought suit against the City of Highland Haven seeking damages for an alleged inverse condemnation caused by the construction of a bridge near their property. After heavy flooding, a bridge was built in the Wolf Creek Channel, which cut off the city’s access to Wolf Creek. Following a heavy rainfall after the bridge’s construction, the property owners complained about sediment accumulation. Taylor and Fenner filed suit arguing that the sedimentation constituted inverse condemnation of their waterfront properties. The City of Highland Haven filed a plea to the jurisdiction claiming governmental immunity, which the district court denied. This appeal resulted.

The City of Highland Haven argued that Taylor and Fenner lacked a property interest in the channel near their waterfront property that would support their takings claim. The appeals court agreed concluding that Taylor and Fenner’s pleadings affirmatively demonstrated that they have no property interest in the channel sufficient to support a takings claim. Because they failed to do so, the district court lacked jurisdiction over the claims. Thus, the court of appeals reversed the district court’s denial of the city’s plea and rendered judgment dismissing Taylor and Fennder’s claims.

Public Information Act: City of Dallas v. Paxton, No. 13-13-00397-CV, 2015 WL 601974 (Tex. App.—Corpus Christi Feb. 12, 2015) (mem. op.). This is a Public Information Act (PIA) case involving the attorney-client privilege and the city’s alleged failure to timely file a request with the attorney general (AG) under the PIA. As part of a docketing control order from the Texas Supreme Court, the case was transferred to the Corpus Christi Court of Appeals.

The City of Dallas received a PIA request which sought, among other things, all communications regarding a local hotel. Some of the information contained attorney-client privileged communications which the city sought to exempt from release under Texas Government Code Sections 552.101 and 552.107. However, the request for an AG opinion was not timely sent within 10 business days so the AG determined the privileged communications must be released. The AG opinion did not address the city’s claim that the information constituted information which was confidential as a matter of law. The city filed suit under the PIA. The trial court granted, in part, the city’s motion for summary judgment (MSJ) holding the information was attorney-client privileged information, but did not address whether it was a compelling reason to withhold the information. It denied the rest of the city’s MSJ and granted most of the AG’s MSJ. The city appealed.

The court of appeals first noted the striking resemblance of the case to Abbott v. City of Dallas, No. 03-13-00686-CV, 2014 WL 7466736 (Tex. App.—Austin Dec. 23, 2014, no pet. h.) where the Austin Court of Appeals recently held the attorney-client privilege could be raised under Section 552.101 as information made confidential as a matter of law, instead of the overly-restrictive interpretation by the AG that the privilege is discretionary and can only be raised in Section 552.107. The panel found the Abbott case compelling and adopted its reasoning. Since Section 552.101 is a mandatory section for non-disclosure, the city demonstrated a compelling reason to justify non-release, despite the failure to follow the procedural elements of the PIA. The court of appeals then reversed the award of attorney’s fees to the AG. The case was reversed and rendered in favor of the city.*

Public Information Act: Paxton v. City of Liberty, No. 13-13-00614-CV, 2015 WL 832087 (Tex. App.—Corpus Christi Feb. 26, 2015) (mem. op.). This is a Public Information Act (PIA) case regarding phone records belonging to a city police officer. The City of Liberty received a PIA request for all calls made or received from a specific phone number belonging to a city police officer for six months. The city submitted a request to the attorney general (AG) for a ruling, arguing the information was excepted under the informer’s privilege and ongoing criminal cases exceptions. The AG determined the city did not properly comply with requesting an opinion and thereby waived all exceptions. The city filed suit under the PIA asserting a compelling reason to still withhold the information. The trial court determined the officer’s name and the numbers used must be released, except for the phone numbers of victims, witnesses, and informers which could be redacted. The AG filed a notice of appeal.

The court held there is no evidence to support the city’s contention that either exception protects third party interests which would justify withholding despite non-compliance. “The City had the burden to show both an exception to disclosure and a compelling reason to withhold the information, but it has made no effort to establish a compelling reason to withhold the requested information apart from the fact that the information falls within the exceptions it asserted.” The court further held the city did not raise the issue of constitutional privacy or common-law physical safety exception in its summary judgment so it could not raise those issues on appeal. As a result, the trial court erred in allowing the redaction.*

Open Meetings Act: In re City of Galveston, No. 14-14-01005-CV, 2015 WL 971314 (Tex. App.—Houston [14th Dist.] March 3, 2015) (mem. op.). This is a Texas Open Meetings Act (TOMA) case involving the authorization to conduct executive sessions for the purpose of obtaining privileged legal advice. The City of Galveston was sued by a property owners’ association (POA) on the grounds that the city council’s approval for a property owner to operate a dog kennel on her property was void for being in violation of the TOMA. More specifically, it is alleged that the city council’s executive session was illegal because it involved discussion of factual issues that were outside of the exception for attorney-client communications authorized by Section 551.071 of the Government Code. The trial court concluded that the executive session “exceeded the scope” of Section 551.071 and ordered the city to disclose the recording of the executive session to the POA. The city sought mandamus relief from the trial court’s order to disclose the recording of the executive session, asserting that the trial court’s order conflicts with TOMA’s authorization to conduct closed executive sessions for the purpose of obtaining privileged legal advice.

In reaching its decision on the city’s request for mandamus relief, the court of appeals took an in-depth look at the parameters of Government Code Section 551.071. Notably, the court concluded that the means by which a city council solicits and receives legal advice from its attorney does not necessarily follow a formulaic construct, and the conveyance of factual information or the expression of opinion or intent by a city councilmember may be appropriate in a closed meeting pursuant to Section 551.071 if the purpose of any such statement is to facilitate the rendition of legal advice by the city attorney.

With regard to the city’s request for mandamus relief, the court held that because the trial court ordered the disclosure of parts of the meeting that were properly closed under TOMA, in addition to the portion of the discussion that exceeded the scope of Section 551.071, it abused its discretion. The court conditionally granted the city’s petition for writ of mandamus to the extent the trial court ordered the disclosure of portions of the executive session audio recording that were properly closed to the public under Section 551.071. The appellate court directed the trial court to vacate its order to disclose the audio recording of the entire discussion relating to the zoning decision, and instead exclude from the order those parts of the discussion that were for the purpose of facilitating the rendition of legal advice. The court of appeals stated that it will issue the writ of mandamus only if the trial court fails to act in accordance with its opinion.

Substandard Buildings: Henderson v. City of Houston, No. 14-13-01025-CV, 2015 WL 971227 (Tex. App.—Houston [14th Dist.] March 3, 2015) (mem. op.). After the City of Houston Buildings and Standards Commission ordered all occupants to vacate a house and ordered the owner or lienholder to repair or demolish a house and garage within a certain timeframe, the occupant of the property, Joe Henderson, filed a petition for judicial review of the commission orders. He alleged that he was deprived of due process, that the buildings did not violate city codes, and that the commission improperly considered evidence regarding the condition of the house and garage because the inspections were illegal. The city filed a plea to the jurisdiction alleging that Henderson lacked standing to seek judicial review. The trial court granted the city’s plea to the jurisdiction and Henderson appealed.

On appeal, the court pointed out that both Local Government Code Section 54.039 and Local Government Code Section 214.0012 only confer standing on an “owner, lienholder, or mortgagee of record” to seek judicial review. Because Henderson was the occupant of the property and not an owner, lienholder, or mortgagee of record for the property, he did not have standing to challenge the commission’s determination. Therefore the trial court did not err by dismissing Henderson’s claims for want of jurisdiction.

*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