Recent Texas Cases of Interest to Cities

Note: Included cases are from February 11, 2018 through March 10, 2018.

Tort Claims Act: City of Killeen v. Worsdale, No. 03-17-00640-CV, 2018 WL 1077242 (Tex. App.—Austin Feb. 28, 2018) (mem. op.). In this interlocutory appeal, the City of Killeen appealed the trial court’s denial of its plea to the jurisdiction of Joy Worsdale’s wrongful-death claim under the Texas Tort Claims Act (TTCA). The lawsuit stems from a motorcycle accident involving Scott Worsdale. The motorcycle collided with a large dirt mound “obstructing the full width” of the roadway. Worsdale and his passenger were seriously injured and later died from the injuries sustained. The City of Killeen Police Department (KPD) arrived on scene shortly after the accident and began investigating. The report by the KPD indicated that officers had conversations concerning who owned the road and was responsible for the maintenance. The report did not, though, make any conclusions about fault.

Appellees’ petition alleged that the dirt mound was a special defect on the city’s property that the city knew or should have known about. The petition also argued the city had a duty to make the premises safe by eliminating the risk of harm, and it failed to do so. The city’s plea to the jurisdiction asserted that: (1) appellees did not provide the city with the required, written statutory notice of their claims within six months of the accident; and (2) the city did not have “actual notice” of appellees’ claims within that same period. The trial court denied the plea, and the city appealed.

Appellees conceded that they did not provide written notice of their claim under the TTCA to the city within six months. Instead, they argued that the city had notice of their claims under Texas Civil Practices and Remedies Code Section 101.101(c): “The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant’s property has been damaged.” The Austin Court of Appeals found the facts in this case similar to those in City of Dallas v. Carbajal. In that case, the court held that “although the report described what apparently caused the accident (i.e. missing barricades), it ‘did not even imply, let alone expressly state, that the City was at fault’ and was no more than a ‘routine safety investigation, which is insufficient to provide actual notice.’” The court concluded that the evidence did not demonstrate a subjective awareness by the city of its fault, as alleged. The court reversed the trial court and rendered judgment in favor of the City of Killeen.

Public Information Act: Rines v. City of Carrollton, No. 05-15-01321-CV, 2018 WL 833367 (Tex. App.—Dallas Feb. 13, 2018) (mem. op.). Mark Rines made a request under the Texas Public Information Act (PIA) to the City of Carrollton for the civil service files of fourteen current or former police officers. The city provided Rines with a cost estimate for the records, and he paid that amount to the city. While processing the request, the city decided to seek an attorney general’s ruling as to whether information was subject to the PIA requirements. While waiting on the ruling, the city provided other requested information and reduced the amounts charged for production, refunding a portion to Rines. The city received rulings from the attorney general and provided Rines with information pursuant to those rulings. Rines then filed a complaint with the attorney general alleging that the city acted in bad faith in providing its initial cost estimates, and thus, Rines was entitled to “three times the amount of the overcharge” pursuant to Government Code § 552.269(b). Shortly thereafter, Rines filed a complaint with the attorney general that the city did not properly comply with PIA requests. The attorney general conducted an investigation, which resulted in a final determination that the city did fail to deliver to Rines “all the material he requested that was required to be public.” Rines then filed suit against the city, alleging violations of the PIA.

The city filed a plea to the jurisdiction and motion to dismiss in which it asserted that Rines’ requested relief fell into one of three categories: (1) requested government action; (2) retrospective monetary relief; and (3) city’s production of documents. Further, the city argued:

(1) “[appellant] cannot compel the City to perform activities that are not required by statute, regulation, ordinance, or common law”;

(2) “monetary relief sought as compensation for conduct occurring before the requested injunction is retrospective in nature” and therefore barred by sovereign immunity; and

(3) “the balance of [Rines’] requested injunctive relief has been made moot” because the city has made “full and complete disclosure of records in its custody that respond to [his PIA] requests” and has “provided evidentiary support that it has disclosed all responsive information it has in its custody.”

In response, Rines filed a document that he titled “Objections to Defendant’s Answer,” in which, he requested in camera review and discovery regarding city files and documents. At the hearing on the city’s plea to the jurisdiction and motion to dismiss, several city officials testified describing their responsibilities and how they conducted the search for records. They also testified that the city has no information responsive to Rines’ requests that was not given to him. Following the hearing, the trial court granted the city’s plea to the jurisdiction. Following a motion for sanctions and accompanying hearing denying the sanctions, Rines appealed listing fifteen issues. In his fifteen claims, Rines argued the trial court violated provisions of the Texas Civil Practices and Remedies Code and that testimony in the trial court was inadequate. Rines also raised several issues that he failed to raise in the trial court. The Dallas Court of Appeals analyzed each issue thoroughly before deciding against Rines on all fifteen issues and affirming the trial court’s order.

Tort Claims Act: Texas Dep’t of Criminal Justice v. Cisneros, No. 09-17-00161-CV, 2018 WL 1095533 (Tex. App.—Beaumont March 1, 2018) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (TTCA) case, where the Beaumont Court of Appeals reversed the denial and ruled in favor of the Texas Department of Criminal Justice (TDCJ).

Cisneros was injured in an accident involving a commercial grade woodworking power saw while incarcerated by the TDCJ. While Cisneros was cleaning the saw with an air hose while it was turned off, another incarcerated individual turned the power on. Cisneros lost his right hand and fingers. He sued the TDCJ for negligence. The TDCJ filed a plea to the jurisdiction, which was denied. It appealed.

The TDCJ asserted Cisneros failed to file a notice of claim within the statutory time period.  Cisneros asserts the TDCJ had actual notice of his claim and therefore, formal statutory written notice is not needed. To have such actual knowledge, the governmental unit must have: (1) knowledge of a death, injury, or property damage; (2) subjective awareness of the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) knowledge of the identity of the parties involved.  Subjective awareness is required because if a governmental entity is not aware of its fault, it does not have the same incentive to gather the information the statute is designed to provide. Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed.

Cisneros asserts that because the guards were called and an incident report was created, TDCJ had actual notice of his claim. However, the report indicated Cisneros acted negligently by failing to follow protocols requiring a supervisor to lock out the machine. The investigation reports do not show TDCJ’s fault. The fact that TDCJ investigated Cisneros’s accident does not constitute subjective awareness. No other evidence existed within the record indicating TDCJ had knowledge of some fault of its own. As a result, the plea should have been granted.*

Contractual Immunity: Diaz v. City of Elsa, No. 13-16-00577-CV, 2018 WL 1192623 (Tex. App.—Corpus Christi March 8, 2018) (mem. op.). In 2010, Jesse Diaz, a warrant officer with the City of Elsa, was offered and subsequently accepted the position of interim police chief. The city manager sent a letter on official city letterhead confirming Diaz’s appointment as interim police chief and providing that if Diaz was not ultimately selected as the permanent chief, he would assume his former position as warrants officer. In 2011, a new city manager submitted a memorandum removing Diaz as interim police chief and terminating his employment with the city. Diaz sued, arguing that he and the city entered into an employment agreement in the form of the initial city manager’s letter, and that the city breached the agreement resulting in damages. The trial court granted the city’s plea to the jurisdiction on the grounds that the city was immune from suit and no valid waiver of immunity existed.

On appeal, Diaz argued that the trial court erred by granting the city’s plea to the jurisdiction, as Local Government Code Section 271.152 waives immunity for purposes of adjudicating a claim for breach of contract. The primary issue on appeal was whether Diaz could establish that the initial city manager’s letter was a contract subject to Section 271.152’s waiver of immunity. Ultimately, the court determined that the city manager’s letter meets each of the five elements required by Section 271.151(2) and was a unilateral employment contract that falls within the scope of the statute’s waiver of immunity. The court reversed the trial court and remanded for further proceedings.

*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 www.rshlawfirm.com.

 

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