Recent Texas Cases of Interest to Cities

Note:  Included cases are from April 11, 2016 through May 10, 2016.

Preemption: BCCA Appeal Group, Inc. v. City of Houston, No. 13-0768, 2016 WL 1719182 (Tex. Apr. 29, 2016). This is essentially a preemption case where the court determined whether the Texas Clean Air Act (Act) and the Act’s enforcement mechanisms in the Texas Water Code preempt a City of Houston air-quality ordinance.  The court held the city ordinance invalid.

The Act is found in Texas Health and Safety Code Chapter 382. In 1992, the City of Houston enacted an air-quality ordinance to regulate air pollution from facilities that were not already regulated under the Act. Initially, the city contracted and cooperated with the Texas Commission on Environmental Quality (TCEQ) to ensure that TCEQ-permitted emissions sources within the city’s borders complied with state law. The city’s contract with the TCEQ ended in 2005, as did its cooperative arrangement with the TCEQ, because the city desired to enforce the Act and TCEQ rules on its own “due to what it perceive[d] to be TCEQ’s lax enforcement efforts.” In 2007, the city amended the 1992 ordinance to establish its own air-quality regulatory-compliance program and adopted a fee schedule to fund the program. BCCA Appeal Group’s (BCCA) members operate integrated chemical manufacturing plants and refineries in the Houston area. Those plants are extensively regulated by the TCEQ pursuant to the Act. BCCA filed suit to declare the ordinance (and its amendments) invalid.  The trial court granted BCCA’s motion for summary judgment holding the ordinance void but the court of appeals reversed and rendered judgment for the city.  BCCA appealed.

The Texas Supreme Court first noted the ordinance has a severability clause, so any sections which are preempted do not affect the remainder. BCCA argues that the ordinance is expressly preempted by Section 382.113(b) of the Act and is implicitly preempted by the comprehensive structure of the Act and its Water Code enforcement provisions.  The court analyzed the comprehensive structure of the Act and went through all the enforcement variations possible under the Act, including the TCEQ’s policy of first seeking voluntary compliance, seeking criminal penalties, civil penalties, and the authority to decline to enforce even after a violation is found. The statute mandates administrative and civil remedies whenever possible, and the TCEQ is charged with the discretion to make that determination before any criminal proceeding may move forward. The Act limits a city’s power to enact any ordinance only to those subjects which are consistent with the Act and limited the city’s ability to enforce air-quality standards criminally. The way the ordinance is written, any enforcement of the ordinance violations is also subject to enforcement under state law. However, Water Code Section 7.203 requires that a permit-holder’s alleged violation must be reported in writing to the TCEQ before referral to a prosecuting attorney for criminal prosecution. The statute grants the TCEQ forty-five days to determine whether a violation actually exists and whether administrative or civil remedies would be adequate, which the ordinance countermines. Further, prosecution under the ordinance results in a “criminal conviction, which require[s] the prosecutor to prove a culpable mental state,” therefore escalating the violation to a “major violation” in the site’s compliance history even when the violation is not listed as “major” by the TCEQ. The legislature expressed its clear intent to have the TCEQ determine the appropriate remedy in every case. Further, the city’s requirement that a facility must register to operate lawfully effectively moots the effect of a TCEQ permit that has been issued and allows a facility to operate lawfully.  Given the Act’s very specific limitation on a city’s ability to regulate only certain portions of air-quality control, this registration requirement is inconsistent with the Act. The ordinance is therefore preempted.

Next, the court analyzed whether the language in the non-preempted sections (dealing with adopting TCEQ rules) is unconstitutional simply because it references an automatic adoption of any TCEQ rule future amendments. BCCA argues the auto-adoption language unconstitutionally delegates core lawmaking from the city council to the TCEQ. However, a home-rule city’s power comes from the Texas Constitution. No statutory or constitutional provision limits the city’s power to incorporate TCEQ rules. Therefore, when the city adopted the TCEQ rules as they currently exist and as they may be amended, the ordinance complied with the Act’s mandate that any ordinance must not be inconsistent with the TCEQ’s rules and ensured that consistency be maintained on an ongoing basis.

The dissent argued the majority deviated from precedent, noting it should attempt reasonable construction to allow two laws to co-exist without preemption. Chiding the majority for not specifying the language and noting the ordinance “provides only for criminal prosecution without TCEQ involvement . . .” Justice Boyd used statutory construction principles to conclude the ordinance does incorporate TCEQ involvement prior to prosecution. However, the majority disagreed with that analysis.*

Governmental Immunity – Contracts:  Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, No. 15-0029, 2016 WL 1514542 (Tex. April 15, 2016).  This Texas Supreme Court case is another proprietary/governmental dichotomy case regarding contracts where the court held the public utility contract at issue was a proprietary function not protected by immunity.

For those following the split in the circuits and the multiple opinions in the Wheelabrator dispute, this is the Texas Supreme Court’s opinion designed to put to rest several interpretations and varying courts of appeals’ opinions on the subject of proprietary/governmental aspects in contracts. This case follows on the heels of Wasson Interests, Ltd. v. City of Jacksonville, No. 14-0645, 2016 WL 1267697 (Tex. Apr. 1, 2016) where the court held the proprietary/governmental dichotomy does exist in contract cases.  Wheelabrator Air Pollution Control, Casey Industrial, Inc., and CPS Energy (the City of San Antonio’s electrical utility board), entered into a contract for the design and construction of part of a coal-fired power station owned and operated by CPS Energy. Wheelabrator completed all portions of its work but CPS Energy notified Wheelabrator that it was withholding the retainage because of a dispute between Casey Industrial and CPS Energy. Wheelabrator filed suit against CPS Energy alleging breach of contract. After going up and down the appellate chain, with several opinions on the subject, the appellate courts ultimately decided the trial courts had jurisdiction for the claims. CPS Energy then filed a plea to the jurisdiction arguing there is no waiver of immunity for attorney’s fees. Wheelabrator argued CPS Energy was performing a proprietary function under the contract. The trial court granted CPS Energy’s plea to the jurisdiction and dismissed with prejudice Casey Industrial’s and Wheelabrator’s claims for attorney’s fees. Whellabrator sought interlocutory review and the case ended up with the Texas Supreme Court.

The court started out by stating “[t]his contract-claims case requires us to determine whether a claim for attorney’s fees for breach of a contract to install pollution control equipment at a power plant is proprietary or governmental in nature.” The court noted its own precedent has held that a city’s operation of its own public utility is a proprietary function. San Antonio Indep. Sch. Dist. v. City of San Antonio, 550 S.W.2d 262, 264 (Tex. 1976). Furthermore, the Texas Tort Claims Act (TTCA), which the court has previously deferred to when classifying functions in contract disputes, lists operation of a public utility as a proprietary function. See Tex. Civ. Prac. & Rem. Code § 101.0215(b)(1). CPS Energy is a municipally-owned electric and gas utility. It executed the agreement under which Wheelabrator would provide goods and services for the design and construction of pollution control equipment for a coal-fired power station that CPS Energy owns and operates. Both the common-law precedent and the TTCA have classified a city’s operation and maintenance of a public utility as a proprietary function. Under these facts, the court concluded that CPS Energy is not shielded by governmental immunity. Here, the attorney’s fees claim stems directly from Wheelabrator’s breach-of-contract action.  As a result, no immunity is triggered.*

Immunity: Harris Cnty. v. Baker, No. 01-15-00930-CV, 2016 WL 1600819 (Tex. App.—Houston [1st Dist.] Apr. 21, 2016) (mem. op.). This is a negligence case based on injuries allegedly incurred during an arrest. The First District Court of Appeals reversed the denial of the county’s plea to the jurisdiction and dismissed the case.

A deputy with the Harris County Sheriff’s Office arrested Baker for the offense of possession of a controlled substance. Baker was handcuffed and transported to the county jail.  The county asserts the deputies had difficulty fingerprinting Baker because she was intoxicated, was cursing at the deputies, and had trouble balancing. Fearing that Baker might assault him, “[The deputy] raised his arm in an attempt to stop her and to maintain distance from him. Due to her intoxicated state[,] [Baker] lost balance and fell down on her left side between the concrete benches.” The report reflects that Baker was seen by a jail nurse for a bump on the side of her forehead.  Baker alleges her injuries were caused by the deputy’s negligent use of property, specifically, the handcuffs, concrete benches, “and other tangible personal property in the booking area.”  Further, Baker testified the deputy hit her head on the concrete bench intentionally. The county filed a plea to the jurisdiction which was denied. The county appealed.

Baker testified in her deposition her injuries were the result of the deputy assaulting her, pulling and breaking her wrist, and slamming her head into the bench.  After the county filed its plea to the jurisdiction, she amended her pleadings indicating there was no intentional assault, and that her injuries were the result of unintentional but negligent acts of using the handcuffs and bench. She asserted in her pleadings that when the deputy put his hands up she fell and received injuries due to property located in the booking room and/or the restraints that were being improperly used.  The county asserted her pleadings “. . . carefully deleted all references to violence and slamming and assault by the deputies[,] but the amended pleading does not delete or diminish the actual sworn testimony of Plaintiff Stefanie Jo Baker herself” in which she described the deputy’s intentional and violent conduct. Baker claims that she testified in her deposition that, due to her injuries, she did not have a clear memory of the events that occurred during her arrest and detention at the jail.  Her current claim on appeal that the cited testimony indicates that she does not remember what happened at the jail does not comport with her sworn testimony, given in the same deposition, in which she stated that the deputy intentionally assaulted her.  No waiver of immunity exists for intentional acts. However, even if the court were to look only at the county’s version of events, an act or omission is a cause-in-fact of the injury if it is a substantial factor in causing the injury without which the injury would have not occurred.  Section 101.021(2) of the Tort Claims Act’s waiver of immunity requires more than the property’s mere involvement. No nexus exists between the use of the handcuffs or bench and her alleged injuries. As a result, the plea should have been granted.*

Civil Service: City of Austin Firefighters’ & Police Officers’ Civil Serv. Comm’n v. Stewart, No. 03-15-00591-CV, 2016 WL 1566772 (Tex. App.―Austin Apr. 14, 2016) (mem. op.). This is a civil service employment dispute where the Austin Court of Appeals reversed the denial of the city’s plea to the jurisdiction and dismissed the plaintiff’s claims.

William Stewart was a police officer employed by the City of Austin’s police department (APD). APD conducted an internal investigation and determined Stewart violated various policies. Rather than appeal, Stewart (while represented by an attorney) entered into a last chance agreement for a sixty-day suspension and probation for a year. Almost 11 months later, Stewart was indefinitely suspended after Austin Police Chief Arturo Acevedo determined that Stewart had committed similar acts of misconduct after his sixty-day suspension.  Stewart attempted to appeal but was told he waived the right to appeal in the Last Chance Agreement.  Stewart sued the city attempting to compel a hearing. The city filed a plea to the jurisdiction, which the trial court denied. The city appealed.

The only question the court determined it must answer is whether the civil service director committed an ultra vires act in refusing to forward Stewart’s appeal to a hearing examiner. If Stewart waived his right to appeal, the director did not act ultra vires, and the trial court lacked jurisdiction over the claim.  The city had entered into a meet and confer agreement (M&C) with the bargaining unit. Under the M&C, if an officer is subject to indefinite suspension, the police chief and the officer may enter into a last chance agreement; if the officer agrees to such an agreement but then commits a same or similar act of misconduct within the agreed probationary period, the officer “will be indefinitely suspended without right of appeal.” The applicable section does not refer to a third-party fact-finder having any authority to make a determination of same or similar misconduct. The court held “the parties did not intend that an officer given a last chance after committing misconduct serious enough to warrant immediate termination should be able to appeal if it was later and again determined that he should be terminated.” Allowing an officer who enters into a last chance agreement as an alternative to immediate termination to “unwaive” his right to appeal would defeat the purpose of the waiver language.  Thus, the director did not commit an ultra vires act in refusing to process Stewart’s notice of appeal.*

Employment: City of Pearsall v. Tobias, No. 04-15-00302-CV, 2016 WL 1588400 (Tex. App.―San Antonio Apr. 20, 2016) (mem. op.). This is an employment case where the San Antonio Court of Appeals reversed a trial court judgment awarding the former city manager severance damages.

In 2013, Robert Tobias entered into an employment contract for the city manager position. The term was for two years but had a severance package of one year’s salary if he was involuntarily terminated or suspended. Within 6 months of being hired, the city council voted to terminate him. When the city refused to provide him the year of severance, Tobias sued. Tobias filed a “motion for declaratory judgment” regarding his rights under the contract. The trial court granted the motion and awarded him $80,400.00 “pursuant to the terms of the severance provision of the employment contract.” The city appealed the final judgment in the case asserting the trial court lacked jurisdiction.

The Uniform Declaratory Judgments Act (UDJA) “does not enlarge a court’s jurisdiction; it is a procedural device for deciding cases already within a court’s jurisdiction.” Although the UDJA contains a waiver of immunity from suit, the waiver is limited to claims challenging the validity of ordinances or statutes. Plaintiffs cannot circumvent immunity by characterizing a suit for money damages, such as a contract dispute, as a declaratory judgment claim.  Immunity is not waived for declaratory judgment claims seeking to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities.  Tobias concedes that his declaratory judgment claim is simply a recasting of his breach of contract claim, but asserts immunity is waived under Texas Local Government Code Section 271.152 (waiver of immunity in contracts for goods or services). However, citing to Lower Colorado River Auth. v. City of Boerne, 422 S.W.3d 60, 66- 67 (Tex. App.—San Antonio 2014, pet. dism’d), the panel determined Chapter 271 only waives immunity for suits that seek the remedies specifically set out in the statute.   Determining rights of the parties in a contract do not fall under Chapter 271.  As a result, no waiver exists for a declaratory judgment claim relating to a breach of contract cause.*

Takings: City of McKinney v. Eldorado Land Co., No. 05-15-00067-CV, 2016 WL 2349371 (Tex. App.―Dallas May 3, 2016) (mem. op.). This is a takings case regarding a dedication of property with a possibility of reverter where the Dallas Court of Appeals reversed the grant of summary judgment and ruled in favor of the city.

Eldorado Land Company (Eldorado) conveyed the property to the City of McKinney with a reverter stating the property had to be used as a community park. In the event the property was not used as a community park, Eldorado had the first option to buy back the property at a set price. Eldorado asserted that, instead of developing the property as a park, the city built a library on part of the land. Eldorado filed suit asserting a taking of the reversionary interest when the city refused to sell the property back at the listed price. Interlocutory opinions exist in this case ultimately holding that a reversionary interest can be the basis of a taking claim, so jurisdiction exists to try the case as pled. Both parties submitted summary judgment motions where the primary arguments and evidence centered on whether the activities and operation at the library also qualify as a community park. The trial court granted a motion for partial summary judgment as to liability in favor of Eldorado. The trial court then held a jury trial on damages.

The court first held the deed defines “community park” in its four corners to mean “a park and recreational facility.” Based on the uncontested set of facts, “[u]nlike a research library, this library truly offers recreation, including story time and music classes for preschoolers, evening computer classes for adults, a glassed-in play area for children, and a large community meeting room for adults.” Further, the deed restriction does not require that every portion of the property must be both a “park” and a “recreational facility,” but rather, “part of it can be park and part can be recreational facility.” Eldorado does not challenge that the rest of the property is used as a park and only challenges the section holding the library. After using various statutory construction canons and references to the record, the court determined the library meets the definition of “recreational facility” under the deed restriction.  Therefore, the trial court erred when it granted Eldorado’s summary judgment.  It should have granted the city’s motion.*

Attorney’s Fees:  Wallace v. Kent Cnty., No. 07-14-00216-CV, 2016 WL 1572274 (Tex. App.—Amarillo Apr. 13, 2016) (mem. op.).  This is an attorney’s fee case, but one which applies when a party sued a governmental entity under the Uniform Declaratory Judgment Act (UDJA). It is mainly of interest to litigators.

Wallace sought a UDJA declaration that a particular roadway was private not public. After going up and down the courts of appeal, Wallace received a judgment in his favor declaring the roadway private. Wallace sought attorney’s fees, but the trial court denied the request. Wallace appealed.

For more than a century, Texas law has not allowed the recovery of attorney’s fees unless an award is authorized by statute or contract. The UDJA does not require an award of attorney’s fees to the prevailing party, but merely permits it pursuant to the discretion of the trial court. A review of a denial of attorney’s fees is based on an abuse of discretion standard. The court held “[h]ere, we do not know the basis of the trial court’s denial of attorney’s fees to Wallace and we must presume that the trial court acted within its discretion unless the record discloses the contrary. In that regard, the record before us contains neither findings of fact nor a request for findings of fact. Without findings of fact establishing the basis for the trial court’s exercise of discretion, an appellate court should not conclude as a matter of law that the trial court abused its discretion…” As a result, the denial of fees is affirmed.*

Employment:  El Paso Cnty. v. Vasquez, No. 08-15-00086-CV, 2016 WL 2620115 (Tex. App.—El Paso May 5, 2016).  This is an employment discrimination/retaliation case where the El Paso Court of Appeals reversed in part and affirmed in part the denial of the county’s plea to the jurisdiction.

Vasquez was a collection specialist with the El Paso County’s Bond Forfeiture Unit. Vasquez suffered a heart attack at home and had a quintuple bypass heart surgery. While at the hospital, she contracted tuberculosis (TB). Vasquez took an employer-approved leave of absence from work. When Vasquez returned to work, she was able to perform her job as a collection specialist with reasonable accommodation. Nevertheless, she was involuntarily transferred to a new position in the “hot checks” unit of the county attorney’s office. According to Vasquez, one of the assistant county attorneys informed her she was not permitted to return to her position because one or more employees had threatened to either walk off the job or sue the County if she returned to work and they acquired TB. Vasquez filed a charge of discrimination (the original charge) in which she alleged the county discriminated against her based on age and disability. She later filed an amended charge for retaliation, being “regarded as” disabled, and for the unauthorized disclosure of a medical condition.  However, she did not sign that charge under oath or penalty of perjury. The county filed a series of pleas to the jurisdiction but they were ultimately denied.

Because of the amended charge, the county asserted the retaliation claim and “regarded as” claims are not ripe since Vasquez did not exhaust her administrative remedies for those claims. The county asserted (1) the original charge did not raise retaliation; (2) the amended charge raising retaliation was not signed under oath; and (3) Vasquez failed to file her retaliation claim with the Texas Workforce Commission (TWC). Vasquez responded that her amended charge relates back to her original charge and that she dually-filed her charge with both the Equal Employment Opportunity Commission and TWC. Generally, amendments that raise a new legal theory of discrimination do not relate back to the initial charge of discrimination, unless the facts supporting both the amendment and the initial charge are essentially the same. Courts will not construe the charge to include facts that were initially omitted. The charge must contain an adequate factual basis to put the employer on notice of the existence and nature of the claims against it. A lawsuit under the Texas Commission on Human Rights Act will be limited in scope to only those claims that were included in a timely administrative charge and to factually related claims that could reasonably be expected to grow out of the agency’s investigation.  Here, there are no factual allegations contained in Vasquez’ original charge to implicate a claim for retaliation. Rather, her amendment raised a new legal theory, separate and distinct from her disability and age claims, thereby negating the application of the relation back doctrine. The plea should have been granted as to the retaliation charge. However, the “regarded as” claim naturally flows from the original “actual disability” claim, so the plea was properly denied as to it under a failure to exhaust challenge. But, the court held Vasquez failed to properly plead sufficient facts to establish a prima facie case of disability discrimination. Instead, she has affirmatively established that she cannot prove a crucial element of her disability claim—that she suffered from a disability at the time of the county’s alleged adverse actions. Not only had she recovered from her heart attack, government health officials had released her to resume work because she successfully completed her course of treatment for TB. Finally, no actual cause of action exists in an employment context for release of confidential medical information for a non-covered entity. So the plea should have been granted as to that claim. In the end, the “regarded as” claim is the only one to survive and is remanded.  All others are dismissed.*

Procurement:  City of El Paso v. Waterblasting Techs., Inc., No. 08-15-00130-CV, 2016 WL 1465691 (Tex. App.—El Paso Apr. 13, 2016).  This is an appeal from the denial of a city’s plea to the jurisdiction where the Beaumont Court of Appeals reversed the lower court.  In this case, an unsuccessful bidder, Waterblasting Technologies, Inc., (WTI) and a city resident, Thomas G. Wicker, Jr., (Wicker) sought a declaration that a bid contract awarded by the city was void and an injunction to prevent performance of the contract.

WTI and Wicker claimed that the city awarded a contract for a “water blasting unit” to remove paint and rubber deposits from airport runways in violation of the competitive sealed bidding requirements in Chapter 252, Local Government Code.  They argued governmental immunity was waived by Local Government Code Section 252.061 and that city council representatives were not entitled to immunity because they had committed an ultra vires act in voting to award the contract.  The city filed a plea to the jurisdiction arguing, among other things, that the claims were moot; it was denied by the trial court and this appeal followed.

Using the Texas Supreme Court’s four-prong analysis in Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009), the appellate court held that Section 252.061, Local Government Code, does “waive governmental immunity of a municipality for a party with standing under the statute to sue the municipality for declaratory relief that the contract is void and injunctive relief to prevent enforcement of a void contract and to prevent payment of money under that void contract.”  The court explained that two classes of plaintiffs have standing to sue under Section 252.061:  “(1) any property tax paying resident of the municipality; or (2) a person who submitted a bid for a contract for which the competitive sealed bidding requirement applies, regardless of residence, if the contract is for the construction of public works.”  In this case, the court held that Wicker had standing as a property taxpaying resident, rejecting the city’s argument that Wicker had no standing because the funds used for the water blasting unit were not tax dollars but revenue from the airport enterprise fund.   And after discussing the meaning of the phrase “construction of a public work,” the court held that WTI did not have standing because this contract involves the procurement of equipment and is not for the construction of a public work.

The court then concluded that the plaintiffs’ claims for declaratory relief and injunction are moot because the contract in question has been fully performed.  As for plaintiffs’ request that any payments made by the city should be refunded, the court notes that such relief is not available under Section 252.061.

Finally, the court takes up plaintiffs’ ultra vires claims against the mayor and city council.  In an ultra vires action, a plaintiff may not seek money damages and may seek only prospective rather than retrospective remedies.  Here, the contract has been fully performed so the city officials are not committing any ongoing violations of Chapter 252.  The only thing plaintiffs could ask at this time is a declaration that an already-performed contract is void, a remedy the court says is both moot and retrospective and thus, not permitted in an ultra vires action.  The court dismissed the claims against the city officials.  The trial court’s order denying the city’s plea to the jurisdiction is reversed and the claims against the city officials are dismissed with prejudice.

Tort Claims Act:  Hagelskaer v. Texas Dep’t of Transp., No. 09-15-00279-CV, 2016 WL 1600342 (Tex. App.— Beaumont Apr. 21, 2016).  This is an appeal from the granting of Texas Department of Transportation’s (TxDOT) plea to the jurisdiction where the Beaumont Court of Appeals modified the judgment, but affirmed the granting of the plea. This is a personal injury case where a bicyclist was in a TxDOT detour lane and was hit by oncoming traffic when TxDOT employees accidentally let both directions of traffic into the same lane.

TxDOT repaired the northbound shoulder of a two-lane roadway. In the course of its repairs, TxDOT closed the northbound lane of FM 1486, and allowed traffic on the road to alternate the use of the southbound lane. TxDOT stationed flaggers at each end of the project to control the use of the southbound lane who utilized radios to coordinate traffic. Hagelskaer, travelling south, approached the construction zone on her bicycle with a group of other cyclists.  As the cyclists were passing through the construction zone, Hagelskaer managed to safely pass one northbound vehicle but she encountered a second, injuring her. Hagelskaer sued asserting, among other things, that TxDOT allowed both directions of traffic to share the same land and the equipment in the closed lane prevented the second vehicle from being able to safely pass her (essentially creating a bottleneck effect). The trial court granted TxDOT’s plea to the jurisdiction, which she appealed.

The court first held the Texas Tort Claims Act (TTCA) does not waive immunity for the negligent handling of traffic flow. There was also no nexus between TxDOT’s “maintainer” equipment which was off to the side of the roadway and the accident. The evidence before the court demonstrated that Hagelskaer and the truck driver’s shared use of a single lane of traffic by accident caused Hagelskaer’s injuries, not the lanes of travel created by TxDOT’s equipment. The maintainer merely furnished the condition that made the accident possible. Hagelskaer never alleged that the maintainer being used in the northbound lane was being operated in a negligent manner. TxDOT’s equipment was in the closed lane, and did not protrude into the southbound lane being used by the traffic.  Hagelskaer has also not shown that the TTCA contains a waiver for activity that is based on decisions involving a lane closure and decisions by government employees that allowed commuter traffic to share a single lane. Next, under a premise defect theory, Hagelskaer alleged TxDOT was aware of the danger it created and did not warn her of the dangers present in her lane of travel. However, the court held such facts cannot be classified as a premise or special defect. The defect on which Hagelskaer premises her claim concerns the existence of equipment and vehicles on a lane of the road closed for construction which is merely a detour. Additionally, the existence of oncoming traffic in a single lane was not unexpected from Hagelskaer’s point of view.  Further, even if the condition were a premise defect, TxDOT had no duty to warn her of a condition of which she was already aware (i.e. she avoided the first vehicle in the lane).  TxDOT cross-appealed noting the dismissal should be with prejudice. After going through the pleading record, the court agreed Hagelskaer had an opportunity to replead and chose not to do so. As a result, the court should have granted the plea with prejudice.*

Disorderly Conduct:  Ex parte Poe, No. 09-15-00373-CR, 2016 WL 1600607 (Tex. App.—Beaumont Apr. 20, 2016).  This is a criminal prosecution in which the defendant, Poe, was charged with disorderly conduct.  Poe filed an application for pretrial writ of habeas corpus, asserting that the disorderly conduct statute was facially unconstitutional.  The trial court denied the application, and defendant appealed.

The state asserts that three days after Christmas 2013, during evening hours when the Parkdale Mall was crowded, Poe harnessed and shouldered an assault rifle and began walking around the mall.  Both mall patrons and workers called 911.  When police officers approached Poe, he allegedly became belligerent, but eventually gave the rifle to the police officers, after explaining that he was carrying the gun to exercise his Second Amendment Rights.  The state charged Poe with “intentionally and knowingly display[ing] a deadly weapon, namely a firearm, in a public place and in a manner calculated to alarm” in violation of Section 42.01(a)(8) of the Penal Code.  Poe argued in his application for pretrial writ of habeas corpus that the statute is unconstitutionally vague, overbroad, and violates his constitutional rights to free speech and to bear arms.

The court determined that the statute punishes conduct rather than just speech and thus, should not be analyzed under the strict scrutiny standard of review.  The court then concluded that the statute describes the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited (i.e., provides fair notice of the prohibited conduct) and that it is reasonably related to the state’s legitimate interest in protecting the public from harm.  In overruling Poe’s issues, the court observes that “there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm” and that Poe’s own evidence shows the statute is rarely employed against protestors and has not resulted in the conviction of any protestors exercising their First and Second Amendment rights.  The trial court’s order denying Poe’s application for writ of habeas corpus is affirmed.

Property Taxes:  Haider v. Jefferson Cnty. Appraisal Dist., No. 09-14-00311-CV, 2016 WL 1468757 (Tex. App.—Beaumont Apr. 14, 2016) (mem. op.).  The main issue in this case is whether the City of Beaumont is entitled to collect taxes from parties who own mineral interests associated with a tract that lies outside the city’s tax boundary.  More specifically, the question is whether the pooling of mineral interest resulted in the owners of the tract at issue owning minerals that lie within the city’s tax boundary. The trial court denied the mineral interest owners’ summary judgment and granted a summary judgment in favor of the city, holding that the city did have the right to collect ad valorem taxes on the minerals.  The owners of the mineral interest appealed.

The Tax Code and related case law require that property lie within the city’s tax boundary before the property can be subjected to ad valorem taxes.  And under Texas law, the effect of pooling on the question of whether the leaseholders who have agreed to pool their minerals acquire a legal interest in the minerals located elsewhere in the pool depends on the language found in the lease.  As a general matter, if the lease language affects a cross-conveyance among the owners of minerals of the various tracts placed in the pool, the owners of the pooled leases “all own undivided interests under the unitized tract in the proportion their contribution bears to the unitized tract.”  Because the relevant mineral lease wasn’t filed in support of either party’s summary judgment motion, the trial court should have denied both the motions.  The court remands the case back to the trial court for further proceeding.

The appellate court also reverses the lower court’s ruling in relation to two matters.  First, the court holds that by accepting royalties on the production from the pooled unit, the owners of the mineral interest have not necessarily taken positions that are inconsistent with their claims.  Thus, the doctrine of quasi-estoppel does not apply to prevent them from challenging the city’s assessment of an ad valorem tax on their minerals.  Second, the court holds that the mineral interest owners did not forfeit their right to contest the assessment for the tax year 2012 by failing to pay the 2012 assessment before it became delinquent.

(“Anti-SLAPP” Statute): Harper v. Best, No. 10-15-00105-CV, 2016 WL 1613546 (Tex. App.—Waco Apr. 21, 2016).  This is a suit to remove a board member from the Somervell County Hospital District for alleged incompetence and misconduct arising from his desire to eliminate or decrease the hospital’s property tax, an alleged blog post critical of the hospital administrator and other board members, and allegations of violations of the Texas Open Meetings Act.

Paul Harper, unhappy with the operation of the Somervell County Hospital District and its tax rate, ran and was elected to serve on the hospital district’s board of directors. Once elected, he stated in a public meeting that he would vote for a tax rate of zero. Later, a blog posted by Harper’s wife was critical of the hospital administrator and other board members. Further, Harper communicated with other board members through text messages where various issues pertaining to the hospital district and its administration were discussed. Darrell Best, a citizen of Somervell County, filed a petition to remove Harper from the hospital district under Chapter 87 of the Texas Local Government Code. The State, which appeared as the plaintiff in the suit as required under the Texas Local Government Code, argued that Harper was incompetent and had committed official misconduct because of his efforts to set the tax rate at zero, the blog post, and the text messages.

Harper filed an Anti-SLAPP motion to dismiss under the Texas Citizens Participation Act (TCPA), arguing that his actions were protected by his freedom of speech and freedom to petition. The trial court denied the motion. On appeal, the Waco Court held that “the government cannot proceed with this type of litigation against a citizen engaged in that public discourse, even when that citizen is trying to dismantle the entity to which they are elected.” The Waco Court held that Harper’s statement regarding the tax rate, his alleged blog post, and his text messages were exercises of his right of free speech and his right to petition.

The Court reasoned that the intent of the TCPA is to protect citizens from retaliatory lawsuits seeking to intimidate or silence them in matters of public concern.  In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015). Under the TCPA, the burden is on the party moving to dismiss the case to show that the plaintiff’s claim “is based on, relates to, or is in response to the [defendant’s] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”  Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West 2014).   Once the moving party meets this burden, the burden shifts to the plaintiff to establish by “clear and specific evidence a prima facie case for each essential element of the claim in question.”  Id.

The Court held that Harper’s statement regarding the tax rate, his alleged blog post, and his text messages were exercise of his right to free speech and right to petition because the communications were made in connection with matters of public concern. Therefore, the burden shifted to the State to defeat dismissal by establishing by clear and specific evidence a prima facie case for incompetence and official misconduct. The Court discussed in detail the evidence the State presented in support of its prima facie removal suit based on Harper’s incompetence and/or official misconduct and concluded that the State did not meet its burden. Specifically, the Court found no evidence that Harper took an official action or made an official motion regarding the tax rate, no evidence that he ran the blog or wrote the blog post, and no evidence that there were any deliberations by a quorum of the hospital district outside of a meeting of the hospital district through the text messages. This is the first case in which an appellate court has found that a governmental entity is in violation of the TCPA.  The case has been remanded to the trial court for rendition of an order granting Harper’s motion to dismiss and for a determination of Harper’s request for court costs, reasonable attorney’s fees, and sanctions, which are mandatory under the TCPA.**

Inverse Condemnation:  Ambrose v. City of Brownsville, No. 13-15-00039-CV, 2016 WL 1732194 (Tex. App.—Corpus Christi Apr. 28, 2016) (mem.op.). Dennis Ambrose sued the City of Brownsville and the Brownsville Public Utility Board (city) after the city dredged and restored a resaca (channel) abutting Ambrose’s property. Ambrose claimed that by entering the property with the dredging equipment, the city violated his rights under Article I, Section 19 of the Texas Constitution, 42 U.S.C. Sec. 1983, the Private Real Property Rights Preservation Act, and Texas Water Code Section 11.035. The court granted the city’s plea to the jurisdiction and dismissed all of Ambrose’s claims. He appealed, arguing that the trial court erred in granting the city’s plea to the jurisdiction.

On appeal, the court affirmed the trial court’s judgment in favor of the city. In its opinion, the court of appeals went through each of Ambrose’s arguments to demonstrate why the court lacked subject matter jurisdiction. On his “due course of law” claim under Article I, Section 19 of the Texas Constitution, the court held that because the due process provisions of the Texas Constitution do not provide a cause of action for monetary damages, and Ambrose sought monetary damages, that the trial court did not have jurisdiction. On his Section 1983 claim, the court held that because Ambrose failed to bring an inverse condemnation claim under the Texas Constitution, his Section 1983 claim was not ripe. With regard to the Private Real Property Rights Preservation Act, the court held that Ambrose did not comply with the jurisdictional 180-day filing deadline. And finally, the court held that Ambrose’s claims under the Texas Property Code and Texas Water Code were without merit because neither provision cited by Ambrose waives government immunity for the city.

**Case summary provided by Mary Barkley and Chris Brown, Cantey Hanger LLP, and reprinted with permission.  Ms. Barkley can be reached at (817) 877-2889 or at

*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