Recent Texas Cases of Interest to Cities

Note:  Included cases are from February 11, 2016 through March 10, 2016.

Whistleblower:  McMillen v. Texas Health & Human Svs. Comm’n, No. 15-0147, 2016 WL 766799 (Tex. Feb. 26, 2016) (per curiam).  This is a Texas Whistleblower Act case where the Texas Supreme Court remanded the case back to the trial court holding McMillen made a report to a  proper law enforcement authority – his own.

Michael McMillen, an attorney, served as deputy counsel for the Texas Health and Human Service Commission’s Office of the Inspector General (OIG). McMillen was asked to research the legality of the Commission’s practice of obtaining payments from certain recipients of Medicaid benefits. McMillen prepared a memorandum concluding the Commission’s actions lacked legal justification. His memorandum, however, cited neither statutes nor case law.  He submitted the memo to an OIG supervisor, the internal affairs division, and the executive commissioner. Several months later McMillen was terminated. He brought suit under the Texas Whistleblower Act. The Texas Health and Human Services Commission (commission) filed a plea to the jurisdiction which the trial court denied but the court of appeals reversed holding McMillen did not report to a proper law enforcement authority.

To be a report in “good faith,” an employee’s belief about the reported-to authority’s powers must be “reasonable in light of the employee’s training and experience.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 321 (Tex. 2002). An authority’s power to discipline its own or investigate internally does not support a good-faith belief.  To qualify the authority must have outward-looking powers. Under 42 U.S.C. Section 1396p(b)(1) any “adjustment or recovery of any medical assistance correctly paid on behalf of an individual under the State plan,” with limited exceptions under which “the State shall seek adjustment or recovery” is prohibited. Based on the record, the court held the report qualifies as a report under this section. And since the commission, “through [its] office of inspector general, is responsible for the investigation of fraud and abuse in the provision of health and human services and the enforcement of state law relating to the provision of those services” McMillen’s report was to the proper law enforcement agency. This authority extends far beyond the commission itself.  If someone is to make such a report, it would be to the OIG. To the extent other Texas agencies violate Section 1396p(b), the OIG also has power to enforce the law. The fact it was an internal investigation does not change the fact the OIG is the proper authority to make any such report and the OIG is the agency with power to enforce such laws.*

Abuse of Official Capacity:  Ex parte Perry, No. PD-1067-15, 2016 WL 738237 (Tex. Crim. App. Feb. 24, 2016).  The question in this case is whether an “abuse of official capacity” charge can be held against a government official for threatening another member of the same governing body.  In this widely publicized case, then Governor Rick Perry threatened to veto, and then did veto, the budget of the Public Integrity Unit of the Travis County District Attorney’s Office after the district attorney refused to resign following a driving while intoxicated arrest.  The Travis County grand jury brought two indictments against Perry: (1) abuse of official capacity; and (2) coercion of a public servant (the district attorney) by threatening to veto her funds if she did not resign.

Texas Penal Code Section 39.02 makes it an offense for a public servant, with intent to harm another, to misuse government property.  The person harmed was alleged to be the district attorney and the misused government property was the public integrity funds.  Texas Penal Code Section 36.03 provides the coercion of a public servant offense occurs when a person attempts to influence a public servant to violate the public servant’s known legal duty.  The allegation against Perry was that he attempted to influence the district attorney to stop performing her job of district attorney.  Perry argued that the indictments, and the underlying statutes, were unconstitutional as applied to his actions in this case.  The trial court denied the requested relief.  Perry appealed.  The court of appeals sustained Perry’s constitutional challenge to the coercion of a public servant charge as being overbroad as related to the First Amendment, but allowed the charge of abuse of official capacity to go forward.  Perry again appealed and argued that the charge of abuse of official capacity violates the separation of powers doctrine because the governor has constitutional authority to veto legislation.  The Court of Criminal Appeals looked at other states that have held that a governor’s veto power is absolute when exercised within the state constitution and that motives behind such vetoes cannot be second-guessed.  The Court of Criminal Appeals agreed, dismissing the charge, and holding that “The governor’s power to exercise a veto may not be circumscribed by the Legislature, by the courts, or by district attorneys (who are members of the judicial branch).”

The Court of Criminal Appeals also held that the second charge of coercion of a public servant was overbroad as applied under the First Amendment, describing various instances where speech would fall under the prohibited conduct of the statute, but be protected by the constitution.  The case was remanded back to the district court, ordering the district court to dismiss the indictment.

Referendum Petition:  Parker v. Wilson, No. 01-15-00687-CV, 2016 WL 921404 (Tex. App.— Houston [1st Dist.] March 10, 2016) (mem. op.). This is a mandamus case involving a referendum and whether the city secretary had a duty to count signatures or certify a number.

In 2015, Wilson conducted a petition drive with the stated purpose of amending Article II, Section 22 of the City of Houston City Charter which prohibited the city from using sexual preference as a factor in employment or in defining gender identification. Wilson filed his original petition for writ of mandamus alleging the city secretary failed to perform her ministerial duty under the city charter to count the number of signatures on the petition and certify the petition to the city council.  Wilson alleged that if the city secretary did not count the signatures and certify the petition, “the Charter Amendment cannot be placed on the ballot in November 2015,” resulting in irreparable harm.  After a hearing the trial court granted Wilson’s mandamus petition and ordered the city secretary to count and certify the petition. The city filed an interlocutory appeal. A flurry of motions and emergency motions were filed. Ultimately, the petition issues were not placed on the November ballot.

An appellate court is prohibited from deciding a moot controversy or rendering an advisory opinion. After analyzing all of the motions and original proceedings filed by Wilson, the court determined Wilson’s objective was to have his proposed amendment placed on the November 2015 ballot. Because the deadline and election have passed the case is moot. A case may be dismissed as moot at any stage of the proceedings, including on appeal.

Candidate Residence:  State of Texas v. Wilson, No. 01–14–00783–CV, 2016 WL 796999 (Tex. App.—Houston [1st Dist.] March 1, 2016).  This case discusses residency for purposes of candidacy under the Election Code. The state filed a quo warranto proceeding against David Wilson when he tried to run for office in Houston, Texas.  The state argued that his residency was not within the boundaries of the specific district to which he was seeking election because the apartment he claimed to live in was actually a warehouse which had been red-tagged for residential purposes, because his wife lived in a house outside the district, and because he paid taxes on the house outside the district as a homestead.  Wilson was registered to vote at the warehouse and claimed that he lived in an apartment on the second floor of the warehouse which he considered his residence.  The trial court held in favor of Mr. Wilson and the state appealed.

First, the court of appeals held that it is irrelevant that a person moved just to run for office in that district.  The court next held that where someone’s “homestead” is for tax purposes is relevant, but not conclusive in establishing residency.  Other factors include: (1) record of voting; (2) where a person sleeps; (3) where a person stores personal possessions; (4) where a person performs day-to-day activities; and (5) the residence the individual chooses and to which the individual intends to return.   In this case, Wilson paid taxes on the house outside the district as a homestead, the apartment he claimed to live in was red-tagged by the city as inappropriate for residential purposes.  The apartment was actually owned by someone else and Wilson had no lease and paid no rent.  Wilson stated that he does live at the apartment during the week and wants it to be his residence where he always intends to return.  The court of appeals held that there was sufficient evidence that the apartment within the district was Wilson’s residence to affirm the trial court jury’s fact ruling that Wilson’s residence was at the apartment. The court of appeals held that none of the evidence presented by the state was conclusive of residence sufficient to negate a jury’s fact finding.

Takings:  City of Friendswood v. Horn, No. 01-15-00436-CV, 2016 WL 638471 (Tex. App.—Houston [1st Dist.] Feb. 11, 2016). In this case, property owners adjacent to city property sued the city for inverse condemnation and nuisance when the city changed the residential property it owned into a park.  After Tropical Storm Allison destroyed the Imperial Estates Section One subdivision, the City of Friendswood acquired most of the subdivision’s 42 lots through a federally-subsidized flooding mitigation program from Federal Emergency Management Agency (FEMA).  The program required the city to leave the lots open for flood control, but the lots could be used for specific purposes, including a park.  Four property owners did not sell and rebuilt their homes. Ten years later, the city decided to develop the lots into a park (consistent with federal guidelines) and the home owners sued asserting the park was inconsistent with deed restrictions, was an inverse condemnation, and a nuisance. The trial court denied the city’s plea to the jurisdiction and the city appealed.

The 1958 deed restrictions dictated that lots were dedicated “for residential purposes only.” Since the city owned 38 lots, it had the ability to amend the restrictions under the express terms of the deeds and did so through a properly posted meeting. The city’s actions were in furtherance of flood control and public park development, which are governmental functions as a matter of law, not proprietary. As a result, immunity applies. Under the takings analysis, the court determined the city did not enter onto the plaintiff’s property, but merely moved forward with developing the lots it already owns. The homeowners’ live pleadings do not allege that any diminution in the value of their lots occurred when the city acquired the lots in 2001. Rather, the homeowners allege that the city’s decision to place a park adjacent to their property 10 years later impairs the peaceable use and enjoyment of their property. These allegations cannot support an inverse condemnation claim for compensation. The court stated that “increased traffic and noise to a community do not give rise to a compensable taking.”

Public Information Act: City of Houston v. Paxton, No. 03-15-00093-CV, 2016 WL 767755 (Tex. App.―Austin Feb. 23, 2016) (mem. op.). This is a Public Information Act (PIA) case where the Austin Court of Appeals affirmed the order requiring the release of the documents at issue.

The mayor of the City of Houston issued executive order 1-39 which created the Office of Inspector General (OIG) within the city which was charged with investigating employee misconduct. During an investigation an OIG attorney interviewed several witnesses, including the employees accuse of wrongdoing in a particular case. The documents at issue in this lawsuit are two of the sworn statements by employees. An attorney representing a different employee requested the investigations under the PIA. The city filed a request for an attorney general ruling to withhold the documents. The attorney general opined most of the information was protected by the attorney/client privilege and excepted from disclosure, but the two employee statements were not and must be released. The city filed suit, but the trial court ruled in favor of the attorney general holding the documents must be released. The city appealed.

Relevant to the circumstances here, the PIA provides that a completed investigation made by or for a governmental body is public information and not exempted from disclosure unless it is expressly confidential under other law. Tex. Gov’t Code § 552.022. Texas Rule of Evidence 503(b)(1) provides: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or a representative of the client and the client’s lawyer or a representative of the lawyer.” Tex. R. Evid. 503(b)(1). The privilege extends to a “representative of the client” only if the representative is “a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client,” or is “any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.” Tex. R. 503(a)(2). After analyzing the explanations provided by the city, the court held the city failed to meet its burden under the PIA that the documents fell under the privilege. The statements contained an admonition page noting the employees were not to share the information with anyone other than their own lawyers. The OIG’s purpose was not the rendition of legal services to these employees, but to investigate them. There is no evidence that the employees at issue knew their statements to the OIG investigator were for the purpose of the attorney effectuating legal representation for the city.  As a result, they are not protected by the attorney/client privilege and are subject to disclosure.*

Employment Discrimination: Butcher v. City of San Antonio, No. 04-15-00338-CV, 2016 WL 889306 (Tex. App.―San Antonio Mar. 9, 2016) (mem. op.). This is a race discrimination case where the San Antonio Court of Appeals affirmed the dismissal of the plaintiff’s claims based on lack of pretext.

Butcher was employed by CPS Energy, the city’s electric utility. Butcher was not assigned to the Energy Development Department, but applied for a manager position within the department. Due to a hiring freeze and pursuant to policy, CPS only promoted from within the department so Butcher was not eligible. Further, the position was eliminated after budget concerns. Butcher sued for discrimination. The trial court granted CPS Energy’s traditional and no evidence summary judgment motions. The only claims Butcher appealed were discrimination based on race and color.

The court went through the burden shifting analysis for employment discrimination cases. It assumed, without deciding, that Butcher established his prima facie case. The only issue to address was whether CPS Energy’s offered legitimate, non-discriminatory reason for its employment action was a mere pretext to discrimination. CPS Energy listed and established budgetary adjustments eliminating certain positions and its hiring freeze.  Further CPS Energy offered the policy that the manager position could only be filled from within the department. All qualify as legitimate non-discriminatory reasons for not promoting Butcher. Butcher did not offer any legitimate evidence the reasons were pretextual. His only evidence was a remark in the operations and maintenance budget analysis that the position is in the staffing budget. However, Butcher ignored the language on “the form preceding the remark which stated the position would be filled through an internal posting so that it would not result in an increased headcount. Thus, reading the language of the form as a whole, the inference Butcher attempts to draw from the isolated remark is not reasonable.”  As a result the trial court properly granted summary judgment.*

Building Permits: Board of Adjustment of the City of San Antonio v. Hayes, No. 04-15-00021-CV, 2016 WL 929220 (Tex. App.―San Antonio Feb. 24, 2016) (mem. op.). This is a board of adjustment (BOA) case where the Fourth Court of Appeals held the BOA had jurisdiction to hear a second, but materially different, appeal regarding a fence.

Director of the city’s development services department revoked a permit issued for the construction of a metal railing citing the permit was issued in error because the BOA previously determined the railing would be a sports court/tennis court fence subject to a 20 foot setback requirement. The homeowner, Torres, appealed to the BOA which unanimously rescinded the revocation and permitted the fence without the 20 foot setback. Hayes, Torres’ neighbor, sued the BOA asserting it lacked authority to permit the fence without the setback because he had won the previous BOA appeal holding the fence was part of a sport’s court. The trial court held the BOA lacked jurisdiction over the appeal and reversed the BOA decision allowing the fence. The BOA appealed.

Judicial review of a BOA decision is by filing a writ of certiorari asserting the decision by the BOA is illegal.  However, a BOA decision can be collaterally attacked by asserting the BOA lacked jurisdiction in the first place. The court interpreted the Hayes judicial review as a collateral attack because Torres failed to appeal the original decision in the trial court. However, although the second application for the railing was essentially the same as the first application, Torres amended the second application during the course of the BOA’s proceeding altering its design. As a result, it became materially different than the first application and the trial court errored in concluding the BOA did not have jurisdiction to hear the change.*

Civil Penalties: Texas West End, Inc. v. City of Dallas, No. 05-11-00582-CV, 2016 WL 890883 (Tex. App.―Dallas Mar. 9, 2016). This is a civil enforcement case which is on remand from the Texas Supreme Court. After analyzing the case based on the Supreme Court’s order, the Dallas Court of Appeals switched its prior holding and upheld the award of civil penalties issued by the trial court. This is a long case with a lot of statutory construction involved. The main thing to take away is that the city can receive civil penalties for non-compliance with zoning ordinances such as those applicable in a historic overlay district.

The central issue is whether the City of Dallas may recover civil penalties from TCI West End, Inc. based on TCI’s demolition of the MKT Freight Station without prior approval. According to the city, prior approval of the landmark commission was required by city ordinance. The Dallas Court of Appeals original opinion held, among other things, the civil penalty provision for health and safety violations did not apply to zoning ordinances. The Texas Supreme Court disagreed, holding that the penalty provision could be applied.

TCI attempted to avoid enforcement in a variety of ways and arguments, mostly of technical challenges to ordinance wording. TCI would have the court read the cited case law “to mean that every requirement pertaining to ordinances, regardless of the language used in the requirement, must be rigidly performed or the ordinance is invalid.”  The court expressly declined to do so. The fact the city did not file a structure list with the county before enforcing the ordinance does not mean the ordinance is not effective. Using statutory construction principles, the court held the express language of the ordinance does not make enforceability contingent upon such a filing. TCI next contended the ordinance does not require landmark commission approval for demolition unless the building sought to be demolished is a “contributing structure.” TCI’s construction of the ordinances is incorrect. Whether a building is a “contributing structure” determines which of two application processes the property owner must follow. The property owner must obtain the approval of the landmark commission before demolishing a building under either process. Next, the court held the general rule is that when a statute is adopted by reference, the adoption takes the statute as it exists at that time, and the subsequent amendment of the statute is not incorporated into the terms of the adopting act. The phrase “as amended” has been found to incorporate future amendments to statutes adopted by reference.  However, such amendments apply to the sections referenced, in this case only to demolition and removal procedures. “The clear intent was that ordinance 22158 was to work in conjunction with the city development code. To hold that future amendments to the development code were not incorporated into section 7.1 would lead to unnecessary confusion in the application process and make it even more difficult for those seeking demolition or removal permits to determine what is required of them.” Having concluded that the jury properly found that TCI violated the ordinances, the court then examined once again whether the city was entitled to recover a civil penalty. The city’s only burden under the instruction given was to show that, after TCI was notified of its violation, TCI either committed acts in violation of the ordinances or took no action to comply with the ordinances. TCI argued that since it had already demolished the building when it received notice it could not do anything to cure or come into compliance. “Impossibility is a plea in avoidance on which the party making the plea bears the burden of pleading and proof.” Since TCI did not plead the defense at trial, the award cannot be reviewed based on the doctrine of impossibility. The $750,000 penalty in the trial court’s judgment does not hold TCI liable for the demolition itself, but for TCI’s post-demolition failure to take action to comply with the ordinance. This is an ongoing violation until TCI takes the required action. Because TCI never submitted an application to the landmark commission, (even after demolition) the possible daily penalty continued to accrue. Accordingly, the jury could have awarded over $1 million in penalties, but chose to award $750,000. The court of appeals appeared reluctant to accept the Texas Supreme Court’s interpretation, but it sustained the civil penalty award in the end.*

Tort Claims Act:  Tavira v. Texas Dep’t of Criminal Justice, No. 07-14-00046-CV, 2016 WL 736062 (Tex. App.—Amarillo Feb. 24, 2016) (mem. op.).  This is a Texas Tort Claims Act (Act) case where an inmate was injured by a lift machine when performing acts as part of the prison’s community service squad.

Tavira was an inmate incarcerated in Childress County. He was on the community service squad and was assisting with installing netting to prevent foul balls from hitting spectators. He was instructed by guards to retrieve ties to hold the netting which were located on the opposite side of a boom on the lift machine. While retrieving the ties, the machine tipped forward, striking and pinning him. As a result, he is a paraplegic paralyzed from waist down. Tavira sued the Texas Department of Criminal Justice (TDCJ) alleging various acts of negligence. The TDCJ filed a plea to the jurisdiction which was granted. Tavira appealed.

Under the Texas Tort Claims Act, the TDCJ can be liable for the negligent operation of motor driven equipment (i.e., the lift machine) by an employee. It is undisputed that inmate Altamira was operating the telehandler when Tavira was injured. Tavira alleged Altamira was the TDCJ’s “agent.” The court found no case law indicating that an inmate on work detail meets the Act’s definition of an employee. In 1995, the Legislature added Section 101.029, which provides a waiver of the TDCJ’s immunity for damage or injury caused under some circumstances by the negligence of a prison inmate not applicable here.  However, this addition would be unnecessary if inmates qualified as “employees.” The guard’s direction, alone, is also insufficient to establish the negligent operation of the lifter qualifying as a waiver as there is no waiver for negligent supervision. Further, nothing indicates Tavira was provided property which lacked an integral safety component. The failure to provide a helmet to perform work is different than providing property which is defective. No waiver exists and more detailed pleadings would not cure the defects. As a result, the plea was properly granted.*

Tort Claims Act:  Jefferson Cnty. v. Akins, No. 09-14-00017-CV, 2016 WL 747477 (Tex. App.—Beaumont Feb. 25, 2016).  This is a Texas Tort Claims Act slip and fall case in a county jail. The jury awarded Akins damages and Beaumont Court of Appeals affirmed.

Akins, a Mid-State Services, Inc. employee working at the Jefferson County Jail, slipped and fell while leaving the jail after her shift ended. She was in control of the kitchen area of the jail and supervised between eight and twenty-two inmates in food preparation. When inmates took prepared food down the hall on trays, sometimes water would spill down the cart and onto the floor. After her shift was over and she was leaving, Akin noticed a county employee mopping the floor some ways away. Akins testified that she spoke to the employee as she walked through the doorway and then her foot hit something slippery on the floor.  She fell and was injured. The mop bucket had a sign noting the floor area was slippery.  Witnesses said the floor appeared damp and wet but the employee who was supervising the mopping testified the floor where Akins fell was not wet.  After a jury returned a verdict for Akins, the county filed a motion for judgment notwithstanding the verdict which was denied. The county appealed.

The county argues the evidence is legally and factually insufficient to support the jury’s findings. In evaluating a factual sufficiency (insufficient evidence) challenge, courts consider and weigh all of the evidence, not just the evidence that supports the finding. Akins alleged and argued at trial that the county failed to warn her of a dangerous condition that created an unreasonable risk of which the county was aware and she was not. A number of Texas courts have found that indoor wet floors can pose an unreasonably dangerous condition. While the parties dispute whether there was water on the floor, sufficient evidence exists for a reasonable trier of fact to conclude water existed and was the cause of Akin’s fall. The jury could also have disbelieved the employee’s statement of knowledge and sufficient evidence exists for a reasonable jury to believe the county crew had mopped the area and knew of the dangerous condition. Next, a jury could have reasonably concluded Akins did not have knowledge of the slippery area prior to her fall and had no proportionate responsibility for the injuries. [Comment: essentially all of the holdings are that sufficient evidence existed for a jury to find they way they did and the court will not disturb the jury’s decision.] Finally, the damages were proper.

The dissent asserts the evidence is legally insufficient to establish the county had actual knowledge of a dangerous condition. Proximity to a defect is not knowledge of the defect or that it is dangerous. Further, the county is under no obligation to warn a plaintiff of a condition they are responsible for; Akin testified part of her responsibilities included ensuring clean-up of spills while delivering food.*

*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