Note: Included cases are from April 11, 2023 through May 10, 2023.
Charter Amendment: Hotze v. Turner, No. 21-1037, 2023 WL 3027869 (Tex. Apr. 21, 2023). On a single ballot, voters considered two proposed amendments to the City of Houston’s charter, one submitted at the behest of the city council and the other initiated by local citizens. The election ordinance included a “primacy clause” stating that the council’s proposition would prevail over the citizen-initiated proposition if voters approved the council’s proposition by more votes than the citizens’ proposed amendment.
At the election, voters approved both charter amendments with the council’s proposed amendment garnering more votes than the citizen-initiated amendment. After the court of appeals compelled it to do so in separate litigation, the city adopted both charter amendments. However, the city, relying on the primary clause, claimed that the citizen-initiated amendment did not become effective upon its adoption and that it may delay the effectiveness of an amendment at its discretion. The city further argued that it cannot give effect to both amendments because they irreconcilably conflict.
Several citizens who proposed the citizen-initiated amendment sued the city, seeking the amendment’s enforcement. They argue that the primacy clause violates a state law requiring cities to adopt proposed charter amendments when voters approve of them by a majority vote. They further claim that the city can and must harmonize the two propositions because voters approved both. The trial court concluded that the two propositions could be harmonized. Relying on the primacy clause, however, the court granted summary judgment in favor of the city. A divided court of appeals affirmed.
The Supreme Court found that because the city’s primacy clause requires more than a majority vote to give effect to the citizen-initiated amendment, it conflicts with state law requiring that a city adopt a charter amendment upon its approval by a majority vote. Thus, the city may not rely on the primacy clause to avoid complying with the citizen-imitated proposition. Accordingly, the court reversed and remanded the case to the trial court to determine the extent to which the two propositions may be harmonized under the city’s existing charter provision governing reconciliation of conflicting amendments, and to consider the effect of the citizen-initiated amendment’s severability clause for those provisions that conflict.
Whistleblower: Tex. Health & Human Services Comm’n v. Pope, No. 20-0999, 2023 WL 3267606 (Tex. May 5, 2023). This case concerns when a public employee “reports a violation of law by an employing governmental entity or another public employee” under the Texas Whistleblower Act.
Former public employees of the Health and Human Services Commission (HHSC) brought action against HHC under the Texas Whistleblower Act alleging that they were terminated in retaliation for their good-faith reports about violations of law by HHSC to various law enforcement agencies. The district court denied HHSC’s plea to the jurisdiction and motion for summary judgment. On appeal, the Austin Court of Appeals affirmed.
The Supreme Court granted the petition for review. The court reversed finding that the employees did not expressly report any legal violations by HHSC that could have led to their terminations, and at most voiced disagreement regarding enforcement policies that were within the discretion of HHSC management. As such, their conduct was not protected by the Whistleblower Act.
Tort Claims Act:City of Houston v. Meka, No. 01-22-00002-CV, 2023 WL 3063397 (Tex. App.—Houston [1st Dist.] Apr. 25, 2023.). Meka sued the City of Houston for injuries she sustained in a car accident involving a vehicle driven by a city employee. The city moved for summary judgment, claiming that because Meka had not served the city with notice of the suit before the expiration of the statute of limitations, the trial court had no jurisdiction over the suit. The trial court denied the motion.
The appellate court affirmed the judgment of the trial court, holding that service of process is not a jurisdictional prerequisite to suit under the TTCA.
Inverse Condemnation: City of Webster v. The Moto Kobayashi Trust, No. 01-22-00628-CV, 2023 WL 3311470 (Tex. App.—Houston [1st Dist.] May 9, 2023.) (mem. op.). The Moto Kobayashi Trust and Misutaro Kobayashi Westside Properties, LP (owners) filed suit against the City of Webster in a Harris County district court, alleging that the city’s ordinance requiring removal or demolition of their properties as a public nuisance was an unconstitutional taking. The city moved to dismiss the claims and the trial court denied the motion.
The appellate court reversed and dismissed the inverse condemnation claim without prejudice, holding that property in Harris County is subject to a provision in the Government Code that grants exclusive jurisdiction over constitutional inverse condemnation claims to the Harris County civil courts at law.
Ultra Vires: Officials Acting in Their Official Capacities for City of Austin Dev. Services Dep’t v. Austin Nightlife, LLC, No. 03-22-00637-CV, 2023 WL 3010766 (Tex. App.—Austin Apr. 20, 2023). After receiving various noise violation citations, Austin Nightlife, which operates a roof-top lounge in downtown Austin, sued city officials for ultra vires conduct when the Austin city officials: (1) failed to recognize its lounge as a warehouse district venue; (2) required the lounge to apply for a temporary modification of its permit and sound-impact plan during the spring festival season; and (3) for issuing citations when not properly designated as “accountable officials” in Austin’s noise ordinances. In response, city officials filed a plea to the jurisdiction asserting that governmental immunity barred Austin Nightlife’s suit. After the trial court denied the city officials’ plea, the city officials appealed.
Reversing the trial court’s order with respect to Austin Nightlife’s first and third issue, the court explained that for a successful ultra vires claim, Austin Nightlife would have to prove Austin city officials acted without legal authority or discretion. Reviewing the record, the court of appeals reasoned that because Austin’s ordinance regarding district boundaries was not unambiguous, the city officials had discretion to construe the boundaries of the warehouse district as not including Austin Nightlife’s roof-top lounge. In addition, the court concluded that nothing in Austin’s noise ordinance suggested that only an “accountable official” could enforce violations, such as the issuance of citations. However, as to Austin Nightlife’s second issue, the court affirmed the trial court’s order stating Austin’s ordinance regarding spring festival season did not allow for the exercise of discretion by the city officials because it automatically allowed most venues, including Austin Nightlife’s roof-top lounge, to operate at higher decibels during the spring festival season. Therefore, Austin Nightlife’s pleadings were sufficient to give the trial court jurisdiction over this claim when the city officials acted ultra vires in requiring Austin Nightlife to obtain a temporary modification of its permit during the spring festival season.
Governmental Immunity: Watson v. City of San Marcos, No. 03-22-00307-CV, 2023 WL 3010938 (Tex. App.—Austin Apr. 20, 2023). Watson sued the city of San Marcos alleging tortious interference with a contract and unjust enrichment after he was unable to close on a real estate transaction due to the city’s requirement that liens on the property be paid prior to closing. In response, the city filed a plea to the jurisdiction asserting governmental immunity. After the trial court granted the city’s motion, Watson appealed. In affirming the trial court’s order, the court of appeals concluded, among other things, that governmental immunity could not be waived for intentional torts, such as tortious interference with a contract. In addition, because unjust enrichment was not an independent cause of action, Watson’s second claim could not support a waiver of governmental immunity.
Civil Service: City of San Antonio Fire Fighters’ & Police Officers’ Civil Serv. Comm’n v. Saenz, No. 04-22-00347-CV, 2023 WL 3103852 (Tex. App.—San Antonio Apr. 27, 2023). Saenz, a Canyon Lake firefighter, sued when he applied to be a firefighter in San Antonio and his application was disqualified, claiming he was entitled to appeal under Section 143.015 of the Local Government Code. The San Antonio civil service commission filed a plea to the jurisdiction on the grounds that Saenz was not a firefighter entitled to civil service protections and he filed his appeal beyond the 10-day deadline. The trial court denied the plea and the civil service commission appealed.
On appeal, the court determined that Saenz was not a firefighter of the San Antonio fire fighters’ civil service commission and his membership to the Canyon Lake civil service commission did not entitle him to the right to appeal the San Antonio civil service commission’s decision. The court reversed the trial court order denying the plea and rendered judgment dismissing the claims.
Tort Claims Act/Inverse Condemnation: Renee Kirchoff Chapa, et al. v. Wyatt Ranches of Texas, LLC, No. 04-22-00589-CV, 2023 WL 3328195 (Tex. App.—San Antonio May 10, 2023) (mem. op.). Wyatt Ranches sued Chapa, a county commissioner, and the county for trespass, negligence, and inverse condemnation when the county cut down trees on the Ranches’ property at the direction of Chapa, contending none of the trees obstructed or otherwise impeded the right-of-way. The county and Chapa filed a plea to the jurisdiction, which the trial court denied.
On appeal, the Court found that: (1) Wyatt Ranches had alleged an injury from the use of motor-driven equipment under the Tort Claims Act by demonstrating proximate cause; (2) Wyatt Ranches’ trespass claim was barred by the intentional tort exception; and (3) the inverse condemnation claim failed because Wyatt Ranches failed to allege the county acted with specific intent to take the property for public use.
Tort Claims Act: City of El Paso v. Cangialosi, No. 08-22-00155-CV, 2023 WL 2904594 (Tex. App.—El Paso Apr. 11, 2023) (mem. op.). In March 2016, a car driven by suspected burglars Aaron Roacho and Jacob Sanchez, followed by unmarked and marked police vehicles, collided with the car of Joanna Cangialosi at an intersection in El Paso, Texas. The crash resulted in the death of Annette Martinez, and injuries to Cangialosi and her infant daughter. The city of El Paso attempted to argue for governmental immunity, stating that the officers were not personally liable as they were protected by official immunity and that the accident was due to Roacho’s actions, not the police pursuit. The trial court denied this plea to jurisdiction, maintaining that there was a sufficient link between the police pursuit and the accident. El Paso filed a second plea, providing officers’ affidavits and an expert report arguing that the officers’ actions were necessary and reasonable given the circumstances. The trial court denied this plea as well, leading to the current appeal.
El Paso claimed immunity from plaintiffs’ claims under the Texas Tort Claims Act (TTCA), arguing that the emergency and intentional tort exceptions applied. The court found that the plaintiffs had raised a fact issue as to whether a city officer violated an El Paso ordinance by speeding in response to an emergency without sounding an audible signal. The officer’s decision to speed without a siren in the context of heavy traffic made his actions potentially unreasonable, creating a fact question and preventing dismissal of the case. The court also found the intentional tort exception inapplicable because the plaintiffs’ claims stem from alleged negligence, not intentional tortious conduct by the officers. Ultimately, the appellate court affirmed the trial court’s denial of El Paso’s plea to the jurisdiction.
Tort Claims Act: Massey v. El Paso, Tex. City Attorney’s Office, No. 08-22-00090-CV, 2023 WL 3138087 (Tex. App.—El Paso Apr. 27, 2023) (mem. op.). Gus Massey Jr. filed a pro se complaint against the El Paso City Attorney’s Office in small claims court, alleging a civil rights violation and the loss of $19,250 worth of items due to an encounter with a police officer. The city challenged his standing to sue and his failure to demonstrate a waiver of immunity, also claiming Massey failed to comply with pre-suit notice requirements. The initial trial court upheld the city’s plea. Massey then appealed to the County Court, which also ruled it did not have jurisdiction, leading to the dismissal of Massey’s claim. Once again, Massey appealed, arguing that the city’s immunity was waived under the Texas Tort Claims Act (TTCA). The TTCA permits claimants to sue the state or other government units through a limited waiver of governmental immunity. However, Massey did not cite the TTCA or explain how governmental immunity was waived. Instead, his pleadings only allege an intentional tort of assault, which the Act does not cover. Consequently, the trial court’s ruling was affirmed.
Delinquent Tax Claims: Michael R. Nevarez, as Tr. of the 1010 S. Oregon Family Tr., in rem only, et. al., Appellants, v. The City of El Paso, Appellee., No. 08-22-00061-CV, 2023 WL 3325197 (Tex. App.—El Paso May 9, 2023) (mem. op.). The City of El Paso sued to recover delinquent taxes, penalties, interest, attorney’s fees, and costs for three tracts of land in El Paso County, Texas. The city claimed it was owed a total of $41,842.34 for the years specified, including special assessment liens on two of the tracts. The defendants claimed they had not been notified about the delinquent taxes or appraised property values and provided multiple defenses. The city then moved for a summary judgment against the defendants and default judgment against those who did not answer or appear. The court granted the city’s motions and awarded a total of $53,029.59. Additionally, the court ordered foreclosure of the liens against the properties. On appeal, the defendants challenged the trial court’s grant of the city’s combined motion for summary judgment on ten issues. They argued that the city’s no-evidence motion was conclusory and did not challenge specific elements of the defendants’ defenses. They also claimed that the city failed to prove all elements of a delinquent tax claim and that they had evidence of a genuine issue of material fact on the defense of notice, which would preclude a traditional summary judgment.
The court determined that while the city’s no-evidence motion did not meet the specificity requirements to challenge the appellants’ defenses, the city was successful in its traditional motion for summary judgment. It proved there was no genuine issue of material fact, and it was entitled to judgment as a matter of law regarding its delinquent tax claim. The court further concluded that the defendants could not raise their notice defenses for failure to exhaust their administrative remedies. Additionally, seven of defendants’ issues were dismissed due to insufficient briefing, which lacked citations to legal authorities and the record, violating briefing requirements, resulting in a waiver of these issues. Finally, the defendants lacked standing to argue that the trial court erred in granting default judgment to other named parties, because they failed to show how the default judgement against other parties prejudiced their interests. Ultimately, the court affirmed the judgment of the trial court, rejecting all of the defendants’ issues.
Delinquent Tax Claims: Montgomery Cnty. v. Mission Air Support, Inc., No. 09-22-00063-CV, 2023 WL 3101508 (Tex. App.—Beaumont Apr. 27, 2023.) (mem. op.). The City of Conroe, among several other political subdivisions of this state, sued Mission Air Support to recover delinquent property taxes. The city filed a plea to the jurisdiction claiming that the trial court lacked jurisdiction over Mission’s three affirmative defenses because Mission had failed to exhaust the administrative remedies provided under the Tax Code and was therefore barred from raising them at trial. Mission responded by asserting that its affirmative defenses were exceptions to the requirement that a taxpayer exhaust its administrative because: (1) it was asserting that it did not own the property on which the tax was imposed; and (2) the property was not located in the taxing unit when the tax was imposed. The trial court denied the city’s plea.
The appellate court reversed the judgment of the trial court, holding that Mission’s affirmative defenses did not fall into the Tax Code’s exceptions to the exhaustion of administrative remedies requirement because: (1) the suit was in rem and not for personal liability, so Mission could not assert that it was not the owner of the property on which the tax was imposed; and (2) the lien was on personal rather than real property, so Mission could not assert that the property was not located in the taxing unit.
Employment: Vice v. E. Tex. Mun. Util. Dist., No. 12-21-00225-CV, 2023 WL 3033146 (Tex. App.—Tyler Apr. 20, 2023) (mem. op.). Tommy Vice, former general manager of the East Texas Municipal Utility District (ETMUD), appealed a trial court ruling in favor of ETMUD, which denied his claim for more than $1,000,000 in compensation through 2028 after his resignation. The court reviewed both parties’ motions for summary judgment, affirming that Vice had materially breached his contract, thus excusing ETMUD’s continued performance. Vice disputed the court’s decision, arguing that the amended employment agreement lacked consideration. However, the court found the agreement to be illusory due to its terms that would obligate ETMUD to pay Vice even if he resigned. Additionally, the court confirmed Vice’s material breach of contract through workplace misconduct and destruction of company data, thereby justifying ETMUD’s termination of performance upon discovering these breaches. Therefore, the trial court’s decision to grant ETMUD’s motion for summary judgment and deny Vice’s claim was upheld.
Public Property Finance Act: City of Harlingen v. Sun Valley Aviation, Inc., No. 13-21-00182-CV, 2023 WL 3238983 (Tex. App.—Corpus Christi–Edinburg May 4, 2023.) (mem. op.). Sun Valley Aviation (SVA) sued the City of Harlingen for breach of contract arising from an optional provision in a lease of airport land owned by the city, claiming that the city’s immunity was waived under the Public Property Finance Act. The lease provided that SVA had the option to lease an additional area subject to terms within the lease. When SVA sought to exercise its option, SVA and the city could not agree on the rent or lease term, and SVA sued. The city filed a plea to the jurisdiction claiming governmental immunity, and the trial court denied the plea.
The appellate court reversed the trial court’s order and rendered judgment for the city, holding that because rent and the term of the lease were essential terms of the contract and those terms had been expressly left open for future negotiation, the city’s immunity to suit had not been waived.
Contracts: The City of Houston, Appellant v. James Construction Group, LLC, Appellee, No. 14-21-00322-CV, 2023 WL 3301739 (Tex. App.—Houston [14th Dist.] May 8, 2023) (mem. op.). The City of Houston entered into contracts with James Construction Group, LLC (JCG) in 2016 for repairs at Bush Intercontinental Airport, totaling $64,445,036.30. After setbacks, the city terminated the contracts for its own convenience. JCG sought payment for services rendered and termination expenses. After payments totaling $2,081,365.63 from the city, JCG claimed it was still owed $13,416,633. The city moved for summary judgment on res judicata grounds and asserted its immunity. The trial court denied both motions, and the city appealed.
A city cannot be sued without a waiver of its governmental immunity. The Local Government Contract Claims Act can create such a waiver when a city enters into a contract. In this case, the contracts’ provisions required resolution of certain disputes by the City Engineer. The court considered whether the City Engineer was guilty of fraud, misconduct, or such gross mistake as would imply bad faith or failure to exercise an honest judgment when resolving the disputes. Because the court found no such malfeasance by the City Engineer, the city’s immunity was not waived. Additionally, the appellate court lacked jurisdiction to review the denial of summary judgment as it was not based on a jurisdictional challenge. The trial court’s order denying the plea to the jurisdiction was reversed, and the remainder of the City’s appeal was dismissed due to lack of jurisdiction.