Recent Texas Cases of Interest to Cities

Note:  Included cases are from October 11, 2015 through November 10, 2015.

Governmental Immunity-Tort Claims Act:  Sides v. Texas Dep’t of Criminal Justice, No. 01-15-00004-CV, 2015 WL 6692136 (Tex. App. —Houston [1st Dist.] Nov. 3, 2015) (mem. op.).  This is a Texas Tort Claims Act (TTCA)–inmate suicide case in which the First District Court of Appeals affirmed the granting of the Texas Department of Criminal Justice’s (TDCJ) plea to the jurisdiction.  Thomas Middleton (Sides’ son) was an inmate housed in TDCJ’s psychiatric facility. During an afternoon check of a recreational dayroom restroom, TDCJ guards discovered that Middleton had committed suicide by hanging.  Sides alleges that TDCJ was negligent in: (1) constructing a privacy wall around the restroom area of the dayroom that was too high; (2) providing him with a hooded sweatshirt with a drawstring; and (3) failing to modify the toilet handrail to prevent suicides. The TDCJ filed a plea to the jurisdiction which the trial court granted. Sides appealed.

Under the TTCA, a governmental entity does not “use” property by allowing someone else to use it and nothing more. Nor does the non-use of property waive immunity.  Texas Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001).   And while Sides is correct that the lack of an integral safety component in government property that causes a plaintiff’s injuries can be sufficient to allege a waiver of immunity, the allegation must be one in which the plaintiff put the property to its intended and ordinary use.  The draw string was not used for its intended use, as its ordinary use is not to hang oneself. When a drawstring and handrail are used in their intended manner, they do not present the risk associated with Middleton’s death. Additionally, being no dispute as to the cause of death and facts, Sides was not entitled to an ability to amend. Finally, the Supreme Court of Texas declined to recognize the existence of a “constitutional tort” remedy, so Sides’ declaratory judgment claim seeking a declaration of a deprivation of a constitutional right is not supportable. No future conduct can be enjoined for Sides. As a result, the plea was properly granted.*

Zoning:  Board of Adjustments of the City of Spring Valley Vill. v. Sumner, No. 01-14-00888-CV, 2015 WL 6163066 (Tex. App.—Houston [1st Dist.] Oct. 20, 2015) (mem. op.) Sumner sued the city and its board of adjustment based on a variance decision made by the board of adjustment and various code enforcement decisions made by the city.  Sumner’s neighbors built an addition to their home which Sumner argued violated city ordinances.  The neighbors applied for and received a variance but Sumner found additional things wrong with their property.  Sumner filed various suits in federal court against the city and his neighbors, which were disposed of. In this suit he argues that: (1) the variance was based on insufficient evidence; (2) the board was incorrect in upholding the building official’s grant of a certificate of occupancy to his neighbors; (3) his constitutional rights were violated because he was not able to participate fully in the board’s hearing; and (4) his due process rights were violated by various ordinances adopted by the city.  Finally, Sumner argued that the trial court did not issue a final judgment because it did not address all of his claims. First, the court of appeals held that the trial court’s grant of the motion for summary judgment and plea to the jurisdiction addressed all claims and parties.  As to the variance decision, the court of appeals upheld the board’s variance grant based on Section 211.009 of the Local Government Code and the city’s variance ordinance, both of which give the board broad discretion in granting a variance.   Sumner’s claim on the certificate of occupancy also failed because he failed to exhaust his administrative remedies by not going before the board to protest the city’s grant of the certificate of occupancy to the neighbors before heading to court.  For his claim of a property interest in the enforcement of zoning ordinances against his neighbors, the court of appeals quoted the federal court judge who stated that “an individual has no protected property interest in the continued use of his property for a particular purpose just because such use has commenced or an initial zoning classification has been made.” Sumner v. Board of Adjustments of the City of Spring Valley Vill., No. H-12-2551, 2013 WL 1336604 (S.D. Tex. Mar. 29, 2013). Finally, the court held that Sumner’s constitutional claims against the city’s adoption of various zoning ordinances were invalid because the city’s ordinances are not capricious, arbitrary, or unreasonable.  The court of appeals affirmed the trial court’s judgment in favor the city.

Takings:  1707 New York Ave., L.L.C. v. City of Arlington, No. 02-14-00259-CV, 2015 WL 6457569 (Tex. App.—Fort Worth Oct. 22, 2015) (mem. op.).  In this case, the owner of an apartment complex sued the city for a taking after it filed a notice of demolition against the apartments, which the city determined to be substandard.  The owner was not the original owner of the apartments, and was not the owner when the demolition notice was filed.  Also, the owner of the property when the demolition order was filed did not appeal the municipal court’s order authorizing demolition.  Because neither the plaintiff owner, nor the previous owner, appealed the municipal court order, they lost the right to attack the order in district court.

Texas Whistleblower Act: City of Killeen v. Gonzales, No. 03–14–00384–CV, 2015 WL 6830599 (Tex. App.―Austin Nov. 3, 2015) (mem. op.). This is a Texas Whistleblower Act case where the Austin Court of Appeals reversed the denial of the city’s plea to the jurisdiction based on a lack of jurisdictional evidence. Barbara Gonzales was the Director of Finance for the City of Killeen until her termination by the City Manager, Glenn Morrison.  Gonzales asserts she reported the City of Killeen Fleet Services Department to the police chief for various alleged violations, including improper expenditure of city funds, unlawful pay raises granted to certain employees, and improper claims for car allowances by other employees. Morrison terminated Gonzales’s employment in December 2012, a few weeks after the Killeen Police Department finished a criminal and internal investigation of fleet services, a city department that Gonzales directly supervised.  Lieutenant Jeff Donohue led the investigation and issued a report in late November in which he concluded that Gonzales had lied, was insubordinate, and had ignored the orders of Police Chief Baldwin not to return to fleet services while the investigation was underway. Morrison’s stated reasons for Gonzales’s termination were: (1) her failure to properly manage fleet services; (2) her insubordination by attempting to interfere with the criminal and internal investigations; and (3) her untruthfulness about whether she had followed direct orders concerning the investigations.

The city filed a plea to the jurisdiction based on a lack of evidence of causation. The trial court denied the plea and the city appealed. To show causation, the employee must demonstrate that the person who took the adverse employment action knew of the employee’s report of illegal conduct and took action because of it. Gonzales presented no direct evidence that Morrison had any knowledge of her reports to Police Chief Baldwin or other officers with the City of Killeen Police Department. Morrison knew of the investigation after it had started, but nothing indicated she knew Gonzales had made the reports. Instead, the court stated that she relied on circumstantial evidence in an attempt to create a material fact issue.  After going through the record, the court held Gonzales did not present more than a scintilla of evidence that the reports were a basis for her termination. Knowledge of a report and a negative attitude towards the reports were not enough under City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). The city’s plea should have been granted.*

Governmental Immunity: Texas Mun. League Joint Self-Ins. Fund v. Housing Auth. of the City of Alice, No. 04-15-00069-CV, 2015 WL 5964182 (Tex. App.―San Antonio Oct. 14, 2015) (mem. op.).  The housing authority is a member of a joint self-insurance pool called the Texas Municipal League Joint Self-Insurance Fund (pool), the purpose of which is to provide liability and property self-insurance coverage to political subdivisions. Under the pool’s coverage documents, if the member and pool cannot agree on the amount of a loss under a covered claim, each shall select an appraiser. The appraisers shall select a disinterested umpire. If the appraisers do not timely select an umpire, one may be appointed by a judge in a court of record.  The housing authority reported a claim for hail damage to its property. The housing authority felt the pool’s evaluation of the amount of loss was insufficient and initiated suit to appoint an umpire. The pool filed a plea to the jurisdiction asserting it maintained immunity from any suit. The housing authority asserted that since this was not a “suit” but merely a request for an appointment, immunity is not implicated. The trial court signed an order naming an umpire, which it termed as a final order. The pool appealed. The selection of an umpire by a judge in accordance with the terms of the property coverage document does not require the filing of a lawsuit or invoke the subject matter jurisdiction of a court. However, the housing authority did not merely ask a judge to select an umpire. It filed a lawsuit.  The “Housing Authority sought and obtained an order of the district court that it now asks this court to affirm.” Whether the pool is entitled to immunity or not, the mechanism and relief sought by the housing authority demonstrates a complete lack of jurisdiction of the court.  There is no case-or-controversy in the relief sought. As a result, the district court’s order is void.*

Gender Discrimination: Thornton v. City of Plano, No. 05–14–01120–CV, 2015 WL 6665124 (Tex. App.―Dallas Nov. 2, 2015) (mem. op.).  In this gender discrimination/retaliation case, the Dallas Court of Appeals affirmed the order granting the city’s plea to the jurisdiction. Erin Thornton was a City of Plano police officer who complained her supervisor made gender-based comments towards her. The police department conducted an administrative inquiry, but the inquiry was closed without findings or resolution upon the transfer of Thornton’s supervisor from her chain of command. A year later, Thornton filed a written complaint against her former supervisor for actions that occurred prior to his transfer. The police department conducted another investigation, exonerated the supervisor on two claims, and determined the remaining claim could not be sustained or declared unfounded. Later, Thornton received a written reprimand relating to her involvement and implications with an unrelated event between two other officers.  Thornton asserted the reprimand was retaliation for her gender-based claims. After the administrative phase, Thornton filed suit against the city.

The city filed a plea to the jurisdiction along with a motion for summary judgment.  The court granted the plea. In her first two issues, Thornton complains of inadequate notice of the basis for the city’s plea to the jurisdiction and the hearing on same.  Thornton’s complaints regarding notice are based on the fact the city filed its plea to the jurisdiction with its motion for summary judgment, asserting a lack of 21 days of notice before the hearing.  However, the notice received specifically noted only the plea to the jurisdiction would be heard, not the summary judgment motion. After reviewing the record, the court held it was not an abuse of discretion to hear the plea with 15 days of notice and the notice provided was sufficient. Thornton also did not preserve her objections to the evidence attached to the plea. Finally, no pleading amendments could rectify the lack of jurisdictional elements and the city was not required to file special exceptions. Thornton was not entitled to replead. As a result, the plea was properly granted.*

Open Meetings:  Terrell v. Pampa Indep. Sch. Dist., No. 07-14-00014-CV, 2015 WL 6689494 (Tex. App.—Amarillo Oct. 29, 2015) (mem. op.). This is a Texas Open Meetings Act (TOMA) case where the Amarillo Court of Appeals held the judgment for the school district at the trial court was not yet final since the trial court did not try all of the claims at the bench trial like it should have. This is the second court of appeals opinion (and possibly not the last) regarding the non-renewal of Terrell’s employment contract as a first grade teacher with the Pampa Independent School District (PISD).

Terrell and her husband essentially alleged the PISD violated TOMA when it terminated her employment. The first opinion, found at 345 S.W.3d 641, reversed the trial court’s order granting the PISD’s summary judgment motion and remanding back to the trial court. The remand was based on a fact issue of whether the PISD was entitled to the good faith exception for attempts to timely post a TOMA agenda notice on the internet. The parties held a trial to the bench, however, the court limited the entire trial to the attempted internet posting and did not allow Terrell to present any evidence of other TOMA violations. The trial court held for PISD on the merits and Terrell appealed. The live pleadings claim that PISD violated TOMA by: (1) failing to post meetings on its internet website; (2) failing to post physical notice on the bulletin board in its central administrative office; (3) not having notices posted for the statutorily required period of 72 hours before meetings; (4) not specifying the place of meetings in its notices; (5) not following the proper process to close the March 26, 2009, meeting; and (6) having notices signed by a person not designated or authorized to sign the notices.  While the original appeals opinion held a fact question existed as to the internet posting, the court held that ruling was dispositive of the appeal and not a limitation on Terrell’s claims. Nothing in the opinion affirmed the trial court’s granting of the motion for summary judgment on the other five claims. As a result, the judgment issued on remand did not address all claims by all parties and was, therefore, not final for purposes of appeal. The court of appeals dismissed the appeal, but essentially ruled the case is still active at the trial court.*

Utility Relocation: Texas Transp. Comm’n v. City of Jersey Village, No. 14-14-00823-CV, 2015 WL 6081972 (Tex. App.—Houston [14th Dist] Oct. 15, 2015). The Texas Department of Transportation is widening U.S. Highway 290 to include additional lanes which requires the acquisition of public right-of-ways. The improvement project likely will require the relocation of two additional utility lines owned by the City of Jersey Village. Texas Transportation Code Section 203.092(a) provides, in relevant part, that the state shall pay for the relocation of a utility facility if the relocation is required by improvement of any segment of the state highway system and the utility “has a compensable property interest in the land occupied by the facility to be relocated.” Because the city contends that it has a compensable property interest in its utility easements, it requested the department to pay for the relocation of its utility lines.  While the parties entered into a partial settlement for removal of the lines, the department refused to agree to pay for the costs of obtaining new easements for placement of new lines.  The city sued. The department filed a plea to the jurisdiction which was denied. The trial court granted summary judgment for the city.

The city’s “request for declaratory relief” is nothing more than an ultra vires claim contending that the Texas Transportation Commission, a state agency, and Houghton, a state official, have refused to perform a ministerial act by refusing to pay certain relocation costs that the city contends are owed.  The commission is immune from ultra vires claims. The court then turned to statutory construction principles to determine if Houghton failed to follow a ministerial duty under Section 203.092. The dispute centers on whether the city has a compensable property interest in its easements, and whether replacement easements are costs that are “properly attributable to the relocation.” The court first held that the city does have a compensable property interest in the easements. Thus, the city is entitled to costs, but only those properly attributable to the relocation. After analyzing the text, the court held the costs for replacement easements are not costs “properly attributable to the relocation.”  As a result, Houghton did not fail to perform a ministerial act and is not required to reimburse the city for replacement easements.*

Condemnation: City of Rosenberg v. State, No. 14-15-00745-CV, 2015 WL 5935819 (Tex. App.—Houston [14th Dist] Oct. 13, 2015). The City of Rosenberg owns property the state is seeking to obtain for purposes of highway improvement and over which it initiated condemnation proceedings against the city. The city responded to the state’s petition by filing a plea in abatement and a plea to the jurisdiction, alleging that the state had not met the prerequisite to filing suit of making a bona fide offer for the property. The trial court denied the city’s plea to the jurisdiction and the city filed this interlocutory appeal.

In condemnation proceedings of this nature, the condemning authority must make a bona fide offer for the property under Chapter 21 of the Property Code and, if rejected, can initiate a condemnation suit. In 2004, the Supreme Court of Texas concluded that Section 21.012’s requirements are not jurisdictional, although the requirement for a bona fide offer was not contained within the statute at that time. Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 183 (Tex. 2004). After analyzing the Hubenak case and the 2011 legislative amendments, the court determined the bona fide offer requirement is likewise not jurisdictional.  As a result, it was proper for the trial court to deny the plea.*

*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