Recent Texas Cases of Interests to Cities

Note: Included cases are from February 11, 2023 through March 10, 2023.

Tort Claims Act: Rattray v. City of Brownsville, No. 20-0975, 2023 WL 2438952 (Tex. Mar. 10, 2023). This is a Texas Tort Claims Act (“TTCA”) case regarding property damage arising from the operation or use of motor driven equipment in which the Supreme Court of Texas reversed and remanded.

Homeowners brought a negligence action against the city alleging that the city’s negligent use of motor-driven equipment to open and close sluice gates and to pump water resulted in stormwater accumulation that flooded their homes. The trial court denied the city’s plea to the jurisdiction and the court of appeals reversed and remanded. The homeowners filed petition for review, which was granted by the Supreme Court of Texas.

The court determined that the gate was used to control water flow in the resaca, the city closed the gate, and it was the use of the gate that immediately preceded and allegedly caused the flooding. As a result, the court held that the sluice gate was put to “operation or use” within meaning of TTCA and the homeowners met their burden at motion to dismiss stage to create a fact issue on whether their property damage arose from city’s closure of sluice gate.

Pension Funds: McGarry v. Houston Firefighters’ Relief & Ret. Fund, No. 01-21-00624-CV, 2023 WL 2415595 (Tex. App.—Houston [1st Dist.] Mar. 9, 2023). McGarry sued the Houston Firefighters’ Relief and Retirement Fund to receive the pension of her husband under her informal marriage to him. The Fund requires evidence of the informal marriage, but before McGarry submitted the requested documentation, the board changed its policies with regard to informal marriages such that McGarry was no longer eligible to receive the pension. The trial court granted the Fund’s jurisdictional pleadings and dismissed McGarry’s claims.

The appellate court reversed and remanded, holding that: (1) the trial court had jurisdiction to hear McGarry’s claim that the members acted beyond its authority by refusing to process and render a decision granting or denying her application for survivor’s benefits; (2) the trial court had jurisdiction to hear McGarry’s claim that the board acted beyond its authority by applying the revised policies and procedures concerning proof of an informal marriage to her application for benefits; and (3) the trial court had jurisdiction to hear McGarry’s claim that the Fund’s enabling statute is unconstitutional to the extent it authorizes the board to refuse to process her application or apply the revised policies to her application for benefits.

Tort Claims Act: City of Wichita Falls v. Preston, No. 02-22-00265-CV, 2023 WL 2033775 (Tex. App.—Fort Worth Feb. 16, 2023) (mem. op.). This is an interlocutory appeal on a plea to the jurisdiction under the Texas Tort Claims Act (TTCA).

Preston boarded one of the City of Wichita Falls’s buses and was on her way to sit down when she fell and broke her right ankle. Preston sued the city for negligence under the TTCA, alleging that the city’s bus driver had negligently operated the bus, thereby proximately causing Preston’s injuries. The city filed a plea to the jurisdiction, arguing that the city’s immunity had not been waived under the TTCA and relying on the recording of the incident by the bus’s proprietary surveillance camera system. Preston countered the video with a sworn declaration, and the trial court denied the city’s plea. The city filed an accelerated interlocutory appeal on two issues: (1) Preston’s declaration failed to raise a fact issue to sufficiently controvert the city’s video evidence of causation; and (2) there is no causal nexus between the bus’s alleged negligent operation and Preston’s injuries, relying on its video to support these arguments.

Because the video does not conclusively show that Preston’s injuries were caused by another passenger’s act, the court of appeals affirmed the trial court’s order and remanded the case for further proceedings.

Governmental Immunity: San Antonio Water Sys. v. Matiraan, Ltd., No. 04-22-00138-CV, 2023 WL 2290301 (Tex. App.—San Antonio Mar. 1, 2023). This case involves a piece of property for which the San Antonio Water System (SAWS) had a conservation easement because the property was on an Edwards Aquifer recharge zone. The city subsequently annexed the property. A company later purchased the property and petitioned to rezone the property to allow for quarrying. The company claimed it had no knowledge of the conservation easement. The city refused the zoning application based on the conservation easement. The company filed a petition to terminate the conservation easement and SAWS filed a plea to the jurisdiction, which the trial court denied.

On appeal, the court analyzed the Wasson factors and found in SAWS’s favor. The court found that when entering into the easement: (1) SAWS was acting in a discretionary capacity, weighing in favor of the company; (2) the easement benefited the public, weighing in SAWS’s favor; (3) SAWS was acting on behalf of the state, weighing in SAWS’s favor; and (4) SAWS was performing an enumerated governmental function of reservoirs. The appellate court reversed the denial of the plea to the jurisdiction and ordered the trial court to dismiss the case but also to determine any relief for which SAWS may be entitled, including attorneys’ fees and costs.

Employment: United Indep. Sch. Dist. v. Mayers, No. 04-22-00424-CV, 2023 WL 2004407 (Tex. App.—San Antonio Feb. 15, 2023). The plaintiff sued her employer, the school district, for discrimination based on sex, national origin, and age and claimed her employer retaliated against her. In her second amended petition, she sued under the Texas Commission on Human Rights Act, the Age Discrimination in Employment Act of 1967, and Title VII of the Civil Rights Act of 1964. The school district filed a plea to the jurisdiction on the grounds that the plaintiff: (1) filed her state law TCHRA claims after the expiration of the applicable two-year statute of limitations; (2) failed to comply with exhaustion of remedies requirements applicable to her TCHRA, Title VII, and ADEA claims; and (3) did not adequately plead her Title VII and ADEA claims until after the expiration of a deadline imposed by federal law. The trial court denied it and the school district appealed.

On appeal, the court found that: (1) the TCHRA were time-barred as a matter of law; (2) the plaintiff filed her Title VII sex discrimination and retaliation claims within 90 days of receiving her right-to-sue letter from the EEOC; and (3) the plaintiff failed to exhaust her administrative remedies for her federal national origin and age discrimination claims. The appellate court reversed and rendered judgment on the plaintiff’s TCHRA, age discrimination, and national origin claims. The appellate court affirmed the denial on the plea for the plaintiff’s claims of sex discrimination and retaliation under Title VII.

Takings: Tex. Dep’t of Transp. v. Robert Dixon Tips Properties, LLC, No. 04-21-00430-CV, 2023 WL 2396807 (Tex. App.—San Antonio Mar. 8, 2023) (mem. op.). The plaintiff sued TxDOT for an unlawful taking for a portion of a road, requested a declaration that the portion a road was not a public road, and sought injunctive relief barring construction on the disputed portion. TxDOT filed a no-evidence motion for summary judgment and motion to dismiss for lack of subject-matter jurisdiction, arguing that the disputed portion of the road was publicly dedicated. The trial court denied both and TxDOT appealed.

On appeal, the court found: (1) the original plat made an express offer of dedication for public use and the offer was accepted; and (2) the trial court lacked subject matter over the declaratory and injunctive relief claims. The appellate court reversed the trial court’s order and rendered judgment dismissing all of the plaintiff’s claims against TxDOT with prejudice.

Eviction Jurisdiction: Town of Anthony v. Lopez, No. 08-22-00052-CV, 2023 WL 2189504 (Tex. App.—El Paso Feb. 23, 2023). In an eviction action, the Town of Anthony, Texas, filed a suit against Robert Lopez for allegedly failing to pay rent on a leased property. The justice court ruled in favor of the town, but Lopez appealed to the county court, claiming that the justice court lacked jurisdiction as he had exercised his purchase option under the lease/purchase agreement. The county court agreed with Lopez, stating that a title issue must be resolved before determining possession of the property. The town appealed the decision. The appellate court found that there was sufficient evidence to suggest a question of equitable title, with the lease/purchase agreement, Lopez’s “Down Payment” check, and his payments exceeding the lease amount. As a result, the justice court could not presume jurisdiction. The court overruled the town’s sole issue on appeal and affirmed the county court’s order granting Lopez’s plea to the jurisdiction.

Disaster Orders: Abbott v. City of El Paso, No. 08-21-00149-CV, 2023 WL 2265168 (Tex. App.—El Paso Feb. 28, 2023). On July 29, 2021, the Governor of Texas issued GA-38, an executive order prohibiting local governments from mandating face coverings during the COVID-19 pandemic. El Paso filed a lawsuit against the Governor, arguing that GA-38 was outside his authority under the Texas Disaster Act and violated the Texas Constitution. The trial court granted a temporary injunction against enforcing parts of GA-38, leading to this interlocutory appeal. In his appeal, the Governor asserted that the trial court abused its discretion by granting El Paso’s request to temporarily enjoin enforcement of GA-38. He argued that his authority under the Texas Disaster Act allows him to prohibit local governments from implementing face-covering mandates and that his orders preempt local orders. The court disagreed, stating that the Disaster Act does not provide clear guidance on how to resolve conflicts between the Governor’s orders and orders of local authorities. Ultimately, the court concluded that the Governor’s orders do not automatically supersede local orders. With regard to the Governor’s argument that he can suspend local health and safety laws under the Texas Disaster Act, the court also disagreed, stating that the statutes he attempted to suspend are not “regulatory” but rather “grant-of-authority” statutes, which the Governor is not authorized to suspend. Furthermore, the Disaster Act distinguishes between state and local matters, and the court found that the Governor acted ultra vires in suspending various health and safety laws, and the trial court did not err in finding that he acted illegally. Finally, the court pointed out that if it Disaster Act allows the Governor to suspend any and all laws that authorize a city to impose a mask requirement, then the statute itself would violate the Separation of Powers and Suspension Clauses of the Texas Constitution. Because of the foregoing, the appellate court affirmed the trial court’s order granting El Paso a temporary injunction and denial of the Governor’s plea to the jurisdiction.

Employment Discrimination: Cnty. of El Paso v. Flores, No. 08-22-00060-CV, 2023 WL 2435669 (Tex. App.—El Paso Mar. 9, 2023). Flores, a Veterans Assistance Manager, sued the County for discrimination based on sex and disability after his termination in February 2017. The trial court denied the County’s plea to the jurisdiction, leading to an interlocutory appeal. The appellate court determined that Flores met the jurisdictional deadline and found evidence supporting his disability discrimination claim. However, it concluded that he failed to establish a prima facie case for his sex-discrimination claim and retaliation claim based on a complaint in January 2017. The court affirmed the trial court’s order denying the County’s plea to the jurisdiction for Flores’s disability discrimination claim, but reversed and dismissed the sex-discrimination and retaliation claims.

Public Property Finance Act: City of Ames v. City of Liberty, No. 09-22-00092-CV, 2023 WL 2180967 (Tex. App.—Beaumont Feb. 23, 2023) (mem. op.). The City of Liberty sued the City of Ames over a contract under which Ames provided wastewater collection services for Liberty, alleging Liberty had failed to pay service charges due under the contract. Ames filed a plea to the jurisdiction, claiming governmental immunity, and the trial court denied the plea.

The appellate court affirmed the trial court’s denial of Ames’s plea to the jurisdiction, holding that: (1) a contract for wastewater services is a contract for “services” within the meaning of the Public Property Finance Act’s waiver of immunity; (2) the service charges were amounts due and owing under the contract; (3) the contract contained the essential terms of the parties’ agreement; (4) there remained a fact issue as to whether the contract was properly executed; and (5) Chapter 271 applies to a contract between two governmental entities.

Property Tax Refunds: Sundial Owner’s Ass’n, Inc. v. Nueces County, No. 13-21-00069-CV, 2023 WL 2414898 (Tex. App.—Corpus Christi–Edinburg Mar. 9, 2023) (mem. op.). Sundial Owner’s Association paid property tax on behalf of the owners of the units comprising the condominium and subsequently requested a refund from each taxing unit for the years 2010-2015, arguing that it was not the owner of the condominiums and therefore not liable for the tax. The trial court granted summary judgment in favor of the taxing units for tax years 2010, 2011, and 2012 based on Sundial’s failure to timely request a refund and for tax years 2013 and 2014 based on Sundial’s failure to show the tax was paid erroneously.

The appellate court affirmed the judgement in part and reversed in part, holding that: (1) the plain language of statute provides that a right to a refund is waived if a refund request is not made within three years of payment of the tax; and (2) Sundial paid the taxes voluntarily and did not submit evidence to show the payment was “erroneous” as required by statute. The appellate court remanded for further proceedings as to tax year 2012. 

Tort Claims Act: City of Houston v. Gonzales, No. 14-21-00482-CV, 2023 WL 2259766 (Tex. App.—Houston [14th Dist.] Feb. 28, 2023) (mem. op.). In January 2016, while driving with his training officer, Houston Police Department probationary peace officer Daniel Iwai collided with the rear bumper of another vehicle while responding to a priority-two call for assistance. Jonathan Gonzalez, who was in the other vehicle, sued the city for injuries he sustained in the collision and was awarded $250,000 at the conclusion of trial. Houston raised several issues on appeal, but the only one reached by the court was regarding an abuse of discretion by the trial court for not dismissing the case for lack of jurisdiction. Generally, cities have immunity from liability and lawsuit unless that immunity has been waived. The Texas Tort Claims Act provides a limited waiver of governmental immunity for torts committed by city employees “acting within the scope of their employment” arising from the operation or use of motor-driven vehicles under certain circumstances. However, an exception to this waiver exists when a city employee is responding to an emergency. Houston argued that it established the emergency response exception and that Mr. Gonzalez failed to present evidence that Officer Iwai was responding to an emergency. The court agreed, dismissed the case for lack of jurisdiction, and reversed the trial court’s judgment.

Tort Claims Act: City of Houston v. Fisher, No. 14-21-00573-CV, 2023 WL 2322971 (Tex. App.—Houston [14th Dist.] Mar. 2, 2023) (mem. op.). Officer Pinkney of the Houston Police Department was involved in a car crash with Fisher while on duty. Pinkney admitted the crash was his fault as he was distracted while trying to put on his seatbelt. Fisher filed a lawsuit against the city alleging negligence, negligence per se, and gross negligence. The city claimed governmental immunity, arguing that Officer Pinkney was not acting within the scope of his employment during the crash. Fisher responded that a limited waiver of immunity applies as Officer Pinkney was an on-duty officer at the time of the collision. The trial court denied the city’s plea to the jurisdiction, leading the city to file a timely notice of interlocutory appeal. The Texas Tort Claims Act provides a limited waiver of governmental immunity if certain conditions are met. The city argued that the trial court should have granted its plea to the jurisdiction as Officer Pinkney was not acting within the scope of his employment during the accident since he was returning from lunch and had not yet performed any official duties. The court examined what the police officer was doing and why he was doing it, considering the connection between the employee’s job duties and the alleged tortious conduct. As a patrol officer, Pinkney’s responsibilities resumed once he got back to his patrol car. The court could not conclude that the city had rebutted the presumption that Officer Pinkney was acting within the scope of his employment at the time of the crash; therefore, the court rejected the City’s contentions and affirmed the trial court’s order denying the city’s plea to the jurisdiction.

Breach of Contract: City of Houston v. James Construction Group, LLC, No. 14-21-00322-CV, 2023 WL 2423127 (Tex. App.—Houston [14th Dist.] Mar. 9, 2023) (mem. op.). The City of Houston signed three contracts with James Construction Group (JCG) for repairs at Bush Intercontinental Airport. The completion of the work was significantly delayed. JCG claimed, in part, that the city’s mismanagement caused delays and increased costs, while the city argued that JCG’s workers were inexperienced and used inadequate materials. The contract called for the City Engineer to resolve all claims, which the City Engineer attempted to do. After some back-and-forth concerning change orders and contract adjustment, JCG sued the city for an additional $13,416,633 after receiving payments from the City. Houston filed a plea to the jurisdiction and a motion for summary judgment on res judicata grounds, due to the City Engineer’s involvement in the claim resolution. The trial court denied the city’s motions, and Houston appealed. The city’s motion summary judgment was based on its assertion of res judicata but did not make jurisdictional assertions based on immunity and could therefore not be construed as a plea to the jurisdiction or any other jurisdictional challenge. Because the order denying summary judgment was neither a final judgment nor an order falling within the scope of an interlocutory appeal statute, the appellate court lacked jurisdiction over that aspect of the appeal. With regard to the city’s plea to the jurisdiction, the appellate court reversed the trial court, because JCG failed to plead or prove misconduct by the City Engineer, which was required to waive the city’s immunity to suit. Ultimately, the court reversed the trial court’s ruling on the city’s plea to the jurisdiction and dismissed related claims.