Recent Texas Cases of Interest to Cities

Note: Included cases are from February 11, 2021 through March 10, 2021.

Public Camping: In re Durnin, No. 21-0170, 2021 WL 791979 (Tex. Mar. 2, 2021). Petitioners sought an initiative election on an ordinance regarding camping in public places (including sidewalks) and aggressive solicitation for money. The City of Austin called an election for the initiative. When the City approved the ballot language, it stated that the ordinance creates a criminal offense and penalty for anyone sitting or lying down on a public sidewalk or sleeping outdoors. Petitioners sued for mandamus asserting, among other things, that the ballot language inaccurately reflects the ordinance to be voted upon. The court held the wording of the proposed ordinance does not apply to just anyone; rather, the ordinance contains certain exceptions for common uses of the sidewalk. Thus, only a subset of those who engage in the covered behavior—not just anyone—can be penalized under the ordinance. In this regard, the word “anyone” in the City’s ballot language threatens to “mislead the voters” by misrepresenting the measure’s character and purpose or its chief features. Thus, the court issued a mandamus to strike the word “anyone” in two locations on the ballot.*

Breach of Contract: City of Haltom City v. Forrest, No. 02-20-00084-CV, 2021 WL 733057 (Tex. App.—Fort Worth Feb. 25, 2021) (mem. op.). A terminated police officer filed a religious discrimination complaint with the Texas Workforce Commission. The parties entered into a settlement agreement in which Haltom City agreed to pay the former officer nearly $30,000 and process any employment inquiries through Haltom City police department’s human resources department, which was to provide only neutral, non-disparaging information regarding the officer’s title, salary, and dates of employment. The former officer filed suit, alleging that Haltom City police department provided a disparaging job reference which he claimed was retaliatory and a breach of the terms of their settlement agreement.

The City filed a plea to the jurisdiction and hybrid traditional and no-evidence motion for summary judgment, both of which the trial court denied. The court of appeals affirmed the trial court’s denial of the plea to the jurisdiction and motion for summary judgment.

Texas Tort Claims Act: City of Austin v. Credeur, No. 03-19-00358-CV, 2021 WL 501110 (Tex. App.—Austin Feb. 11, 2021). This is a premise defect case where Credeur was injured when she fell walking along a city sidewalk in front of private property owned by Riedel. She sued the City, Riedel, and a utility company. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case as the City produced evidence that showed it had no actual knowledge of the defect, and Credeur failed to raise a fact question as to notice.*

Paid Sick Leave: Washington v. Associated Builders & Contractors of S. Texas, Inc., No. 04-20-00004-CV, 2021 WL 881288 (Tex. App.—San Antonio Mar. 10, 2021). In this case, the Fourth Court of Appeals considered the legality of the City of San Antonio’s paid sick leave (PSL) ordinance. In 2018, various advocacy groups and non-profits initiated a petition to adopt what was labeled the “Paid Sick Leave Ordinance.” One of the most critical components of the PSL ordinance was that it would require many San Antonio employers to provide paid leave to their employees for sick days, doctor appointments, and for other enumerated reasons. Under the ordinance, a business’s failure to comply with the provision of the PSL ordinance could result in fines. Instead of putting the ordinance on the ballot for a vote pursuant to the city charter, the city council decided to adopt the PSL ordinance verbatim. In response, multiple businesses and business associations sought and obtained temporary and permanent injunctions to prevent its enforcement.

The court of appeals concluded that the PSL ordinance was unconstitutional because it established a minimum wage that is inconsistent with the Texas Minimum Wage Act (TMWA). The court’s decision turned on whether paid sick leave constitutes a “wage” under the TMWA. The court relied on dictionary definitions and the common meaning of words within the ordinance. Ultimately, the court held the PSL ordinance was in fact a “wage” and wage regulations are governed by the TMWA. As a result, the ordinance was preempted by state law.*

Premises Defect: City of San Antonio v. Anderson, No. 04-20-00320-CV, 2021 WL 883472 (Tex. App.—San Antonio Mar. 10, 2021) (mem. op.). Anderson was on crutches and exiting a terminal at the San Antonio International Airport. There was deposition testimony that provided that it was raining on that day. Anderson stated that he noticed a rubber mat outside the terminal door, that the ground was wet when he moved his crutches, and that when he moved forward he fell, injuring himself. Anderson alleged both a condition/use of tangible personal property (by failing to use a slip-preventing mat) and, alternatively, a defective condition of the premises (because the city should have known it was raining and needed to have made safe an area where one would not expect to find water). During Anderson’s deposition, when asked if he had any reason to believe anyone from the city knew about the water before he fell, he replied: “not that I know of, no, sir.” The city filed a plea to the jurisdiction and a no-evidence motion for partial summary judgment. The trial court granted the summary judgment but denied the plea to the jurisdiction. The City then appealed the denial.

The Court of Appeals focused on Anderson’s apparent attempt to couch a premises defect claim as a tangible personal property claim. The Texas Tort Claims Act clearly delineates between the two claims such that one claim cannot be both a condition/use of personal property and a premises defect. The former claim was succinctly dismissed because Anderson expressly alleges it is attributed to a failure to use a certain type of mat, which is not a valid claim under the TTCA. As to the latter, none of Anderson’s testimony created a fact issue as to whether the City had any knowledge or notice of the water on the ground or mat, which is one required element for bringing forth a premises defect claim. As a result, the denial of the plea to the jurisdiction was reversed and Anderson’s claims were dismissed with prejudice.*

Texas Tort Claims Act: Dallas Cty. Hosp. Dist. v. Bravo, No. 05-20-00640-CV, 2021 WL 822916 (Tex. App.—Dallas Mar. 4, 2021). This is a Texas Tort Claims Act (TTCA) case where the Dallas Court of Appeals reversed the denial of Parkland’s plea to the jurisdiction and dismissed the claims.

Plaintiff Bravo visited a sick family member at a Parkland hospital and as he sat in the main lobby, a large glass pane from a second-story walkway suddenly fell on him from overhead, causing him injuries. Bravo sued Parkland for a premises defect. Parkland filed a plea to the jurisdiction, which was denied. Parkland appealed.

Under a premise defect theory, a limited duty requires the owner of the premises to avoid injuring the plaintiff through willful, wanton, or grossly negligent conduct and to use ordinary care either to warn the plaintiff of, or make reasonably safe, a dangerous condition of which the owner is aware and the plaintiff is not. Parkland submitted evidence the glass pane was installed prior to October of 2015 and Parkland received no notice of any potential problems with the pane prior to Bravo’s injury. None of plaintiff’s evidence showed Parkland had any prior actual notice of a dangerous condition or provided a basis from which such notice could reasonably be inferred. As a result, Parkland had no actual knowledge of the condition.*

Confederate Monuments: Carter v. Dallas City Plan Comm’n, No. 05-20-00190-CV, 2021 WL 777088 (Tex. App.—Dallas Mar. 1, 2021). This is a Confederate monument case where the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

After a Confederate monument was originally scheduled for removal from a City cemetery, Plaintiffs brought suit to prevent its destruction, asserting that the City violated its own codes, the Texas Open Meetings Act, the Texas Monument Protection Act, and a few others. The City filed a plea to the jurisdiction, which was granted, except to claims under the Texas Antiquities Act. Plaintiffs appealed after non-suiting the remaining claim.

The City asserted three grounds in its plea to the jurisdiction: standing, governmental immunity, and the political question doctrine. The political question doctrine is not necessarily a component of or necessarily entwined with either of the other two grounds. Plaintiffs challenged standing and immunity, but not the political question doctrine. Because the Plaintiffs did not challenge each independent, standalone ground on which the dismissal of their claims could properly have been based, the court affirmed the granting of the plea.*

Contracts: City of Dallas v. Asemota, No. 05-20-00664-CV, 2021 WL 777089 (Tex. App.—Dallas Mar. 1, 2021). The City impounded a vehicle and sold it at auction to Asemota. A finance company repossessed the vehicle, asserting it did not receive notice that the City had impounded the vehicle. Asemota sued the City for breach of contract because the City had not provided notice to the finance company and created a cloud of title. The trial court denied the City’s plea, and the City appealed. The appellate court reversed because the contract was not for the provision of goods to the City, as required by Chapter 271 of the Local Government Code for a waiver of immunity.

Texas Tort Claims Act: City of Dallas v. De Garcia, No. 05-20-00636-CV, 2021 WL 777087 (Tex. App.—Dallas Mar. 1, 2021). De Garcia sued the City when she tripped over a piece of metal pipe protruding from the sidewalk, which she claimed was owned and controlled by the City. The City filed a plea to the jurisdiction claiming it was immune from suit because it was not responsible for maintaining the sidewalk and was not aware of a defect at the time of De Garcia’s injury. The City provided evidence of a contract with TxDOT and claimed TxDOT was responsible for maintaining the sidewalk. The trial court denied the City’s plea and the City appealed. The appellate court reversed the trial court and dismissed the claims against the City because the City had presented sufficient evidence that it did not have actual knowledge of the defect and De Garcia failed to rebut the evidence.

Property Taxes: Collin Cent. Appraisal Dist. v. Garland Hous. Fin. Corp., No. 05-19-01417-CV, 2021 WL 711478 (Tex. App.—Dallas Feb. 22, 2021). Garland Housing Finance Corporation (GHFC) and TX Collin Apartments, L.P. (collectively Plaintiffs) challenged the Collin Central Appraisal District’s (CCAD) denial of the exemption from property taxes for their housing project. The City of Plano had passed a resolution in support of a four percent housing tax credit for the housing project. The Plaintiffs also got approval for a tax-exempt bond from the attorney general’s office and later refinanced the bond. The CCAD canceled the exempt status after the Plaintiffs refinanced the bond. The trial court denied CCAD’s motion for summary judgment. On appeal, the Court rejected CCAD’s argument that the Chapter 394 exemption was absolute because it was limited by Section 394.005. The Court affirmed the trial court’s decision, finding there was no evidence Plano was required to approve the application of Chapter 394 to the Plaintiffs’ property for the property to receive the tax exemption.

Concealed Handguns: Paxton v. Waller Cty., No. 07-20-00297-CV, 2021 WL 833978 (Tex. App.—Amarillo Mar. 4, 2021). This is a conceal/carry notice case where the Amarillo Court of Appeals reversed the denial of the Texas Attorney General’s plea to the jurisdiction and dismissed the case.

The Waller County Courthouse has a sign noting a person cannot carry any weapons, including knives and guns, in the courthouse. Section 411.209 of the Government Code prohibits a political subdivision from posting notices barring entry to armed concealed-handgun license holders unless entry is barred by statute. Terry Holcomb filed a complaint with the County regarding the sign. The County did not remove the sign and instead sued the Texas Attorney General seeking a declaration that the signs do not violate Section 411.209, which was resolved in a prior case. Separate from the declaratory judgment action, the Texas Attorney General brought a mandamus action against Waller County and various county officials. Waller County filed counterclaims seeking a declaratory judgement. The attorney general filed a plea to the jurisdiction as to the counterclaims, which was denied. The attorney general appealed.

The Uniform Declaratory Judgments Act (UDJA) is not a grant of jurisdiction, but rather is a procedural device for deciding cases already within a court’s jurisdiction. The UDJA does not allow “interpretation” claims against a governmental entity or official. The County’s counterclaims seek interpretation of Section 411.209, not its invalidation. The UDJA does not waive sovereign immunity for “bare statutory construction” claims. To sue the AG for ultra vires claims, the AG must not be exercising his discretion. Because the AG has discretion to bring or not bring an enforcement claim, no ultra vires action is possible. Section 411.209 of the Government Code authorizes the Attorney General to investigate alleged violations of the statute and decide whether further legal action is warranted. When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous; “[o]nly when these improvident actions are unauthorized does an official shed the cloak of the sovereign and act ultra vires.” As a result, the counterclaims should be dismissed.*

Whistleblower: Raymondville Indep. Sch. Dist. v. Ruiz, No. 13-19-00597, 2021 WL 822699 (Tex. App.—Corpus Christi-Edinburg Mar. 4, 2021). Ruiz sued his employer, Raymondville Independent School District (Raymondville ISD), under the Texas Whistleblower Act, claiming that Raymondville ISD terminated his employment after he complained to the Raymondville ISD Chief of Police of conduct by a Raymondville ISD police officer that allegedly constituted official oppression. Raymondville ISD filed a plea to the jurisdiction, asserting sovereign immunity. The trial court denied the plea. Raymondville ISD filed an interlocutory appeal.

The court of appeals affirmed the trial court, finding that there was a good faith belief that Ruiz believed that the officer’s treatment of him constituted as “mistreatment” under the official oppression statute, and that the Chief of Police qualified as an “appropriate law enforcement authority” under the Texas Whistleblower statute.

Pregnancy Discrimination: South Texas Coll. v. Arriola, No. 12-19-00222-CV, 2021 WL 497237 (Tex. App.—Corpus Christi-Edinburg Feb. 11, 2021). Arriola sued her employer, South Texas College (College), claiming that the College discriminated against her and terminated her employment after she stated that she was trying to become pregnant, and that, after making this statement, she was harassed and discriminated against by her co-workers and supervisors. The College filed a plea to the jurisdiction, asserting that intending to become pregnant is not a protected class and; therefore, Arriola had no case under the Texas Commission on Human Rights Act (TCHRA). The trial court denied the College’s plea to the jurisdiction, and the College appealed.

The Court of Appeals affirmed the trial court’s holding, concluding that the intent or ability to get pregnant is protected under sex discrimination protections because federal case law related to Title VII has held that being able to become pregnant is a protected class.

Breach of Contract: City of League City v. Jimmy Changas Inc. No. 14-19-00776-CV, 2021 WL 629618 (Tex. App.—Houston [14th Dist.] Feb. 18, 2021). The City entered into a “Chapter 380 Economic Development Incentives Grant Agreement” with Jimmy Changas, Inc., (Changas) in which the City offered incentives to Changas to develop a restaurant within the city limits. Changas later sued the City for breach of contract, alleging that it had fully performed the contract, but the City had failed to pay as agreed, and that the City was not immune from suit because the City performed a proprietary function in entering into the Grant Agreement, or alternatively, the Legislature waived the City’s immunity under Chapter 271 of the Local Government Code. The City filed a plea, later amending it and combining it with a motion in the alternative for summary judgement on the merits. The trial court denied the City’s plea and summary judgement motion. The City filed an interlocutory appeal.

The court of appeals affirmed the trial court finding that the contract was not a governmental function within the scope of the Texas Tort Claims Act, and as the contract was primarily intended to benefit the city and not the general public, the city’s action in entering the contract was proprietary. As a result, the city did not have governmental immunity from suit.

*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