Note: Included cases are from April 11, 2021 through May 10, 2021.
Preemption: Texas Propane Gas Ass’n. v. City of Houston, No. 19-0767, 2021 WL 1432221 (Tex. Apr. 16, 2021). The Texas Propane Gas Association (TPGA) sued the city, seeking a declaratory judgment that the city’s ordinances regulating liquefied petroleum gas, to include imposing criminal fines for violations, are preempted by state law. The city argued that: (1) civil courts lack subject-matter jurisdiction to adjudicate TPGA’s preemption claim because the local regulations it challenges carry criminal penalties; and (2) TPGA lacks standing to challenge the city’s regulations without showing injury to a TPGA member for each discrete regulation challenged. The appellate court determined that it had jurisdiction over the claim but that TPGA lacked standing, and consequently remanded the case to the trial court for TPGA to amend its pleadings. The city and TPGA filed petitions for review.
The Texas Supreme Court concludes that TPGA’s claim is not a “criminal law matter” that is outside a Texas civil court’s subject-matter jurisdiction. Additionally, the court finds that TPGA has demonstrated standing to bring the singular preemption claim it pleaded. Accordingly, the judgement of the appellate court is reversed, and remanded.
Mandamus: In re City of Galveston, No. 20-0134, 2021 WL 1822939 (Tex. May 7, 2021). The city entered into a block grant agreement with the State, which required the city to administer federal disaster grant funds. The city hired a private contractor to perform some of this work, and agreed to certify the contractor’s application for payment from State funds. A dispute regarding payment and the proper certification procedure for the work arose among the contractor, the city, and the General Land Office (GLO), with the city claiming that the GLO bore ultimate responsibility for paying the contractor. The GLO responded that the city had failed to properly certify the contractor’s work. The private contractor later sued the city for amounts it claimed the city owed it under their agreement. The city settled with the private contractor and sought reimbursement from GLO for the settlement amount that the city paid. As part of the settlement agreement, the city agreed not to sue any GLO employees as defendants in any related proceeding. The city sent the GLO a notice of a claim under Chapter 2260 of the Government Code, which establishes a mediation process for certain disputes between state agencies and their contractors, and allows a contractor to request that the state agency refer the contractor’s claim to the State Office of Administrative Hearings (SOAH). After the negotiation period ended, the city requested that the GLO refer the claim to SOAH, but GLO refused to do so. The city filed suit against GLO Commissioner Bush to compel him to refer the claim.
The Texas Supreme Court found that absent legislative authorization, a state agency may not refuse to refer a claim to SOAH based on its unilateral interpretation of Chapter 2260. However, the court denied the petition for a writ of mandamus because the city agreed not to take the commissioner into court in any proceeding related to this dispute.
Takings: San Jacinto River Auth. v. Medina, Nos. 19-0400; 19-0401; 19-0402, 2021 WL 1432227 (Tex. Apr. 16, 2021). Downstream property owners brought separate suits for declaratory judgment under eminent domain statutes alleging that the river authority, by precipitously releasing water from a dam at an excessive rate in response to a hurricane, had caused or added to the flooding of their land and thereby caused a “taking.” The court of appeals affirmed the trial court’s dismissal of the river authority’s motions to dismiss. The river authority appealed.
The Texas Supreme Court affirmed, holding that: (1) statutory takings claims under the eminent domain statutes are not limited solely to claims for regulatory takings; and (2) the allegations in the downstream property owners’ complaints did not conclusively establish that the river authority’s actions met either the “reasonable good faith belief” test of one exception to eminent domain statutes or the “measured and appropriate response” test of another.
Jurisdiction: Viswanath v. City of Laredo, No. 04-20-00152-CV, 2021 WL 1393976 (Tex. App.—San Antonio Apr. 14, 2021) (mem. op.). Viswanath is the founder of a government watchdog group known as Our Laredo. After Councilman Martinez defeated Viswanath in a runoff election for a council position, Gomez, a member of Our Laredo, filed an ethics complaint against the co-city managers arguing they were required to “ensure” that Councilman Martinez forfeited his seat due to his alleged conflict of interest. Thereafter, Viswanath filed an additional ethics complaint against the co-city managers arguing they unfairly advanced the private interest of certain developers at the expense of the general population by recommending that city council pass two ordinances that increased the overall utility rate. The co-city managers filed a response and requested sanctions against Viswanath and Gomez, arguing both ethics complaints were frivolous. The City of Laredo’s Ethics Commission dismissed both complaints, concluding they did not allege violations of the City of Laredo Ethics Code and therefore did not invoke the commission’s jurisdiction. The commission also found both complaints frivolous, and publicly admonished Gomez and ordered Viswanath to pay the maximum civil fine and attorney’s fees to the commission’s conflicts counsel.
Viswanath filed an appeal of the commission’s decision in trial court, seeking a declaration under the Uniform Declaratory Judgments Act (UDJA) that the commission’s decision was arbitrary, capricious, unlawful, and unsupported by substantial evidence, and attorney’s fees. The city filed a plea to the jurisdiction and a motion for summary judgment. Viswanath also filed his own motion for summary judgment. The trial court denied the city’s plea, granted the city’s motion for summary judgment, and implicitly denied Viswanath’s competing motion for summary judgment. Viswanath appealed.
The appellate court affirmed the portion of the trial court’s summary judgment with regard to the commission’s finding that Viswanath’s complaint was frivolous; reversed the portion of the summary judgment ordering Viswanath to pay attorney’s fees as sanctions; and remanded the issue regarding the amount of attorney’s fees to the trial court to determine whether substantial evidence was presented to the commission to support its award of attorney’s fees.
Tort Claims Act: City of Dallas v. Estate of Yolanda Jeanne Webber, No. 05-20-00669-CV, 2021 WL 1573064 (Tex. App.—Dallas Apr. 22, 2021). The plaintiff sued the city in relation to its operation of the 9-1-1 system. When Webber suffered a medical emergency, no one could get through to 9-1-1, and ultimately Webber died. The plaintiff alleged the condition or use of tangible personal property caused Webber’s death. The trial court denied the city’s plea to the jurisdiction and the city appealed. The appellate court found the law was clear that a mere delay in treatment resulting from a malfunctioning 9-1-1 system is not a proximate cause of the plaintiff’s injuries for the purposes of an immunity waiver. As a result, the appellate court reversed the trial court’s denial of the plea to the jurisdiction and rendered judgment in favor of the city.
Contracts: City of Heath v. Williamson d/b/a PCNETSYS, No. 05-20-00685-CV, 2021 WL 1731796 (Tex. App.—Dallas May 3, 2021). The city appealed the trial court’s denial of its plea to the jurisdiction against plaintiff’s breach of contract claims for information technology consulting services. The contract provided that the city would pay plaintiff for the services he provided each month and the city argued there was no balance due and owed as required by Texas Local Government Code Chapter 271, Subchapter I. The appellate court vacated the trial court’s denial of the plea because the loss of future profits were consequential damages for which there is no waiver.
Tort Claims Act: Lewis v. Dallas Cty. Sheriff, No. 05-20-00855-CV, 2021 WL 1783106 (Tex. App.—Dallas May 5, 2021). Plaintiff, an employee at a jail, sued the sheriff who was his supervisor, for the conditions in the county jail during the COVID-19 pandemic, claiming that the sheriff failed to maintain the jail in a clean and sanitary condition. The trial court granted the sheriff’s plea to the jurisdiction and the plaintiff appealed. The appellate court affirmed the trial court, finding that: (1) the sheriff’s actions were not ultra vires; (2) she did not fail to perform a ministerial act; and (3) there is no liability under the Texas Tort Claims Act for failure to perform an act nor for a decision not to perform an act.
Code Enforcement: City of Dallas v. Stamatina Holdings, LLC, No. 05-20-00975-CV, 2021 WL 1826931 (Tex. App.—Dallas May 7, 2021). The city determined there were code violations at an apartment complex, including a gas leak. The city required that the apartment complex shut off the gas. The plaintiff sued to turn the gas back on. The trial court granted an injunction requiring that the code violations be remedied but also requiring that the gas be turned on within 24 hours of the order. However, the trial court did not set the matter for trial. The city appealed on the grounds that the trial court violated rules of civil procedure because it did not set the matter for trial and it did not set a bond for the injunction. Because the trial court order did not set the case for a trial on the merits, the appellate court reversed the trial court’s order.
Land Use/Contracts: City of Buda v. N.M. Edificios LLC, No. 07-20-00284-CV, 2021 WL 1522458 (Tex. App.—Amarillo Apr. 16, 2021). A developer and the city entered into an agreement in which the developer would convey a drainage easement to the city and the city would construct drainage facilities on the easement. The developer then sold the property to another developer. The city refused to construct the drainage facilities and rejected the new developer’s plans because of the drainage issues. The new developer sued and the city filed a plea to the jurisdiction, which the trial court denied in part. The appellate court found that: (1) the agreement was a permit under Chapter 245 of the Local Government Code, but the rules were not changed in a manner prohibited by Chapter 245; (2) the plaintiff had sufficient evidence for a regulatory taking claim because of its reasonable investment-backed expectation; (3) the plaintiff should have the opportunity to amend its pleadings for its land use exaction claim; and (4) the plaintiff’s claims for attorney’s fees against the city should be dismissed.
Takings: Carrasco v. City of El Paso, No. 08-20-00062-CV, 2021 WL 1712209 (Tex. App.—El Paso Apr. 30, 2021). Carrasco purchased a lot located at the end of a sloping cul-de-sac, where he constructed a residential home. Because the city’s sewage system slopes downward, it is not possible to gravitationally disperse the sewage originating from his premises to the sewer main. Additionally, his connection to the sewer main results in accumulation of sewage from the entire subdivision onto his property. Carrasco installed grinding pumps to discharge his own sewage, but they failed to pump upstream and routinely burned out. As a result, he was forced to cap the sewage line to prevent the accumulation of public sewage on his property and thus, does not have access to the sewage system. Because he was unable to obtain a certificate of occupancy, his home is uninhabitable. After reporting the issue to the city numerous times, Carrasco filed suit, requesting injunctive relief. The city filed a plea, which was granted by the trial court. Carrasco appealed, asserting waiver of governmental immunity and a takings claim.
The appellate court held that there was no waiver of immunity because Carrasco did not provide evidence of a cause of action that falls within the three categories that establish waiver of immunity. Additionally, the court concluded that public work design issues are a protected discretionary function for which governmental immunity applies. The court also determined that Carrasco did not plead a viable takings claim because, pursuant to a conveyance agreement, the city only agreed to operate and maintain the sewer mains installed within the public street, and the intentional operation of a sewer system is insufficient to support liability for a takings claim. Lastly, the court found that Carrasco did not have a viable negligence claim as cities are immune from liability for negligence in the operation of a sanitary sewer system, which is a governmental function.
Texas Whistleblower Act: City of Valley Mills v. Chrisman, No. 10-18-00265-CV, 2021 WL 1807365 (Tex. App.—Waco May 5, 2021) (mem. op.). Chrisman and Troxell, while employees of the City of Valley Mills, placed deer feeders on city-owned property. The city administrator moved the feeders and refused to return them until Chrisman and Troxell signed a release of liability. Chrisman and Troxell were both terminated after refusing to sign the release. Prior to their termination, they reported to the mayor and the Valley Mills Police Department that the city administrator had taken their personal property. Chrisman and Troxell sued for wrongful retaliation under the Texas Whistleblower Act. The city appealed, arguing that the trial court improperly denied the city’s plea to the jurisdiction. The city argued Chrisman and Troxell failed to adequately allege and present sufficient jurisdictional facts to bring their claim. The appellate court agreed that the pleadings are insufficient because they do not allege facts that the conduct reported was a violation of the law or that they had a good faith belief they were reporting to an appropriate law-enforcement authority. The appellate court reversed the denial of the city’s plea to the jurisdiction and remanded the case to the trial court to allow Chrisman and Troxell the opportunity to amend their pleadings.
Employment: Sewell v. City of Odessa, No. 11-19-00121-CV, 2021 WL 1706913 (Tex. App.—Eastland April 30, 2021) (mem. op.). Sewell resigned his job with the City of Odessa animal control division and subsequently filed suit against the city and six employees of the city claiming, among other things, constructive discharge, intentional infliction of emotional distress, Section 1983 claims, and slander. The trial court entered a take nothing judgment and dismissed the claims against the individual city employees under Section 101.106(e) of the Texas Tort Claims Act.
Sewell appeals, challenging the trial court judgment in nine issues. Sewell does not challenge the dismissal of the individual city employees. Sewell’s first claim is that the city’s summary judgment evidence contained hearsay and was conclusory. The appellate court overruled the objections. His second claim is that the trial court erred by granting the city’s motion to strike his summary judgment evidence (an affidavit by Sewell). The appellate court upheld the trial court’s rulings as to some portions of the affidavit, but not others. Sewell’s third claim is that an inadequate time for discovery had elapsed. The appellate court found the case had been on file for two years; this issue was overruled. His fourth and fifth claims are that the trial court erred in granting the city’s motion for summary judgment on his Section 1983 claims. The court overrules both issues concluding, among other things, that Sewell did not have a protected property interest in his job as he did not dispute he was an at-will employee. All of Sewell’s remaining claims are subject to the Texas Tort Claims Act. The appellate court finds the city has immunity as to his claims for intentional infliction of emotional distress; negligent hiring, training, supervision, and retention; and respondeat superior. Moreover, the claims against the individual city employees were dismissed. The judgment of the trial court is affirmed.
Texas Tort Claims Act: Pryor v. Moore, No. 12-20-00137-CV, 2021 WL 1582722 (Tex. App. Tyler Apr. 21, 2021) (mem. op.). Pryor was involved in a motor vehicle collision with a City of Tyler garbage truck being driven by a city employee, Moore. Pryor sued the city and Moore for negligence. The city moved for dismissal of Moore and also moved for summary judgment. The trial court dismissed the employee from the case and granted the city’s motions for summary judgement, and Pryor appealed. Section 101.106 of the Texas Tort Claims Act provides plaintiffs with the choice of defendants – the governmental entity or the employee acting within the scope of employment – but not both. When a plaintiff sues both a city and the city’s employee, the employee must be dismissed from the case if they were acting within the scope of employment. The appellate court analyzed Moore’s actions as the driver of the garbage truck, found him to have been acting within the scope of his employment, and affirmed the trial court’s dismissal action.
Procurement/TOMA: City of Brownsville v. Brownsville GMS, Ltd., No. 13-19-0031-CV, 2001 WL 1804388 (Tex. App.—Corpus Christi May 6, 2021) (mem. op.). At the time this case was filed in 2019, Brownsville GMS, Ltd. (GMS) had been providing commercial solid waste services to the City of Brownsville. The city’s previous contract with GMS had expired in 2016, so in 2017, Brownsville twice issued requests for proposals (RFPs) for solid waste services. Both times, the city rejected all bids, including bids from GMS. GMS continued providing services month-to-month but filed suit in May 2019, alleging violations of the Texas Open Meetings Act (TOMA), violations of Chapter 252 of the Texas Local Government Code, ultra vires actions, and requesting injunctive relief.
To obtain injunctive relief, one must assert a cause of action; demonstrate a probable right to relief; and imminent injury in the interim. GMS asserted that by rejecting all of the bids responsive to the RFPs, the city ultra vires acts violated the competitive bidding procedures in Chapter 252. To succeed with an ultra vires claim, one must prove that a government officer acted without legal authority or failed to perform a purely ministerial act. Because Section 252.043(f) allows a city to reject all bids at a city’s discretion, the appellate court rejected GMS’s asserted causes of action. GMS was seeking to bar the city from taking any action to interfere with GMS’s month-to-month agreement. The only relief available under Chapter 252 is to bar performance of an improperly procured contract, and there being no contract, GMS could not demonstrate a probable right to recovery. The court declined to extend injunction authority to proposed contracts that have not been awarded. GMS also alleged violations of the TOMA, which provides that actions taken by governing bodies in violation of its requirements are voidable. Because the relief granted by the trial court was well beyond what is allowable under TOMA, the appellate court reversed the trial court’s orders, dissolved the temporary injunction, and remanded the case back to the lower court for further proceedings.
Employment Discrimination: Texas State Technical Coll. v. Owen, No. 13-20-00264-CV, 2021 WL 1567505 (Tex. App.—Corpus Christi Apr. 22, 2021) (mem. op.). While Texas State Technical College (TSTC) is a public entity, not all aspects of governmental immunity jurisprudence that apply to TSTC are equivalent to those that apply to municipalities. Those diverging immunity rules are not being discussed here. After Owen was terminated by TSTC, he sued TSTC under the Texas Commission on Human Rights Act complaining of discrimination and retaliation. TSTC’s plea to the jurisdiction was denied by the trial court, and TSTC filed an accelerated interlocutory appeal of that decision on the grounds that Owen failed to exhaust administrative remedies related to the retaliation claim. Regarding Owen’s age discrimination claim, the court observed that while the plea to the jurisdiction requested dismissal of the claim, the plea did not contain arguments challenging the claim and instead asserted that Owen could not meet the elements. A defendant may not advance a “no-evidence” plea to the jurisdiction; consequently, the trial court did not err in denying the plea with respect to the age discrimination claim.
Collective Bargaining: City of Houston v. Houston Prof’l Fire Fighters’ Ass’n, Nos. 14-18-00976-CV; 14-18-00990-CV, 2021 WL 1807311 (Tex. App.—Houston [14th Dist.] May 6, 2021). The city and the Houston Professional Fire Fighters’ Association, Local 341 (Association) attempted to negotiate and mediate a collective bargaining agreement in 2017 but could not come to an agreement. The Association sued the city for violation of Chapter 174 of the Local Government Code. The Association filed a motion for summary judgment on the city’s governmental immunity defense, and the city filed a plea to the jurisdiction and its own motion for summary judgment. The trial court denied the city’s motion for summary judgment and the city filed this interlocutory appeal, arguing that the Association failed to establish a waiver of governmental immunity by failing to present evidence of good faith collective bargaining for compensation and benefits based on private sector labor standards, and that Chapter 174 violates the Texas Constitution’s separation of powers doctrine.
The appellate court affirmed the trial court’s denial of the city’s plea, finding that, because Chapter 174’s governmental immunity waiver language does not require good faith collective bargaining based on private labor standards, the Association had no duty to plead such facts. The appellate court also determined that because the legislature chose sufficiently detailed, yet not-too-confining, language to create reasonable standards for the delegation of authority to the judicial branch within Chapter 174, the statute does not violate the separation of powers doctrine.
Civil Service: City of Houston v. Reyes, No. 14-19-00291-CV, 2021 WL 1685230 (Tex. App.—Houston [14th Dist.] Apr. 29, 2021). The City of Houston and the Houston Professional Fire Fighters’ Association, Local 341 (Association) entered into a Collective Bargaining Agreement (CBA) in 2011 that governed point calculations for promotional examination test scores. The CBA expired on June 30, 2017. Reyes and Rodriguez took the promotional exam on July 12, 2017, and the exams were scored by the Civil Service Commission (Commission) in accordance with the rules of the then-expired CBA, which cost them each ten additional points on the exam. They appealed the Commission’s decision. The Commission reversed itself and rescored the exams pursuant to Chapter 143 of the Texas Local Government Code. Other firefighters appealed this reversal, and Commission reversed itself again, holding that the exams would be scored according to the CBA. Reyes and Martinez filed suit. The city moved for summary judgement on the grounds that the Commission lacked subject matter jurisdiction to issue the orders they had issued. The trial court denied this motion, and the City filed this interlocutory appeal, arguing that the Commission did not have jurisdiction to issue said orders, because Reyes and Martinez should have followed the CBA’s notice filing rules and deadlines rather than Chapter 143.
When deciding whether notice provisions are jurisdictional, the court considers: (1) the plain language of the statute; (2) whether there was a statutory prerequisite for filing a lawsuit or appeal; (3) whether there was a specific consequence for noncompliance; and (4) the consequences flowing from interpretation of the statute. The appellate court affirmed the trial court’s dismissal and declined to impose a jurisdictional requirement on the notice of appeal as there was no clear statutory requirement to do so.
Ultra Vires: Pidgeon v. Turner, No. 14-19-00214-CV, 2021 WL 1686746 (Tex. App.—Houston [14th Dist.] Apr. 29, 2021). The parties to this appeal have been engaged in related litigation since 2013, when the City of Houston extended benefits to spouses in same-sex marriages on the same terms as spouses in opposite-sex marriages. The plaintiffs sued specifically to: (1) enjoin the mayor’s allegedly ultra vires expenditures of public funds and claw those funds back; (2) declare the mayor’s directive extending the benefits to be in violation of state law; and (3) declare that city officials have no authority to disregard state law merely because it conflicts with their personal beliefs. The city filed a plea to the jurisdiction and motion for summary judgment, which the trial court granted, dismissing all plaintiffs’ claims with prejudice. Plaintiffs appealed.
The appellate court found that, in providing same-sex benefits, the mayor and the city had not committed any ultra vires impermissible acts in light of the United States Supreme Court’s decision upholding same-sex marriage, and that there is no basis to eliminate spousal benefits for all city employees.
*Indicates case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry. To sign up for the firm’s blog, go to www.rshlawfirm.com.