Recent Texas Cases of Interest to Cities

Note: Included cases are from October 11, 2017 through November 10, 2017.

Interlocutory Jurisdiction: City of Magnolia 4A Econ. Dev. Corp. v. Smedley, No. 16-0718, 2017 WL 4848580 (Tex. Oct. 27, 2017). This is a flooding case, however, the issue for the Supreme Court is a litigation procedure issue. The court of appeals held that it did not have interlocutory jurisdiction over claims which were re-raised in a subsequent motion. However, the Texas Supreme Court held the intermediary courts have interlocutory jurisdiction separately for each motion filed.

The underlying claims involved Smedley suing the city, the city’s 4A and 4B economic development corporations (EDCs), and contracted entities alleging that the defendants caused Smedley’s property to flood and retain standing water, causing damages after they facilitated a Chicken Express going onto the lot next to his. The city was dismissed based on its plea to the jurisdiction. However, the EDCs filed their own pleas/Rule 91a motions which were partially denied. The EDCs later filed summary judgment motions, which were likewise denied. When the EDCs attempted to take an interlocutory appeal of the denial of the motion for summary judgment (MSJ), the court of appeals stated the grounds were identical to those raised in the pleas. Therefore, the court lacked interlocutory appeal jurisdiction under Texas Civil Practice and Remedies Code Section 51.014. The EDCs filed a petition for review which the Texas Supreme Court granted.

The crucial question is whether the twenty-day period to bring an interlocutory appeal ran from the trial court’s denial of the plea/91a motion or the date of denial of the MSJ. See Tex. R. App. P. 26.1(b) (providing that a timely interlocutory appeal must be filed within twenty days after the challenged order was signed). The court of appeals held the proper trigger date was the denial of the plea.  The Texas Supreme Court, citing its own prior precedence, noted that if an amended plea was merely a motion to reconsider, then the twenty-day clock did not reset. City of Houston v. Estate of Jones, 388 S.W.3d 663 (Tex. 2012).  The court noted it was compelling that the original plea was a pleadings challenge only and the later motion was an evidence-based motion.  The EDCs asserted that, in light of the discovered evidence, there was no evidence as to the claims under the Water Code or Takings Clause, and that there was affirmative evidence the EDCs did not own or control the lot, preventing them from being able to provide injunctive relief.  The court cautioned that the procedural mechanism, alone, is not dispositive and a court must analyze the substance of the motions. However, after doing so, the court held the EDCs’ MSJ cannot be considered a mere motion for reconsideration of the initial plea. As the MSJ was a distinct motion from the plea, the court of appeals had interlocutory jurisdiction to hear the appeal. It remanded the case back to the court of appeals for analysis.*

Condemnation: State v. Speedway Grapevine I, LLC,  No. 02-16-00144-CV, 2017 WL 4683831 (Tex. App.—Fort Worth Oct. 19, 2017). This is a condemnation case where the Fort Worth Court of Appeals affirmed the jury verdict condemnation award, including the admission of valuation evidence by the owner’s representative.

Speedway owned real property which included a car wash and an Express Lube on a specific lot. In connection with a road-widening improvement project, the State of Texas condemned a portion of the frontage. Speedway asserted the condemnation affected the ability to operate the two businesses.  The state appealed the commissioner’s award, but the jury awarded more than the commissioner’s award. The state’s expert opined Speedway’s remainder property had sustained damages in the amount of $0, excluding a total cost to cure of $105,826.00.  Adding the value of the part condemned ($159,789.00), it opined Speedway was entitled to total compensation in the amount of $265,615.00. Speedway’s experts opined the remainder property suffered a total damage of $2,609,420.00. Adding the value of the part condemned to that figure, Speedway asserted it was entitled to compensation in the total amount of $2,748,822.00.  After a jury trial, the jury found the part condemned had a market value of $92,190.00 and that Speedway’s remainder property was damaged in the amount of $4,401,028.00. The state appealed.

The state first objected to Speedway’s appraisal expert, McRoberts, arguing he speculated on post-condemnation nonconforming treatment; that Texas law did not recognize his income approach; and that he had improperly relied upon noncompensable impairment of access.  The trial court excluded McRoberts’ income approach, but not his cost approach. It also permitted him to testify regarding internal traffic circulation difficulties, unsafe access, and nonconformance with zoning regulations.  Mr. High, Speedway’s representative as the owner, testified about his experience in the car wash industry; the reasons why Speedway located the car wash where it did; the market value of the whole property; problems with a cure plan devised for the state; and the viability of the car wash after the condemnation. The state acknowledges that a property owner may testify to the value of his property, as High did here, but it argued the owner’s valuation testimony must still meet the same requirements as any other opinion evidence.  The court rejected this argument in part. The Property Owner Rule “is an exception to the requirement that a witness must otherwise establish his qualifications to express an opinion on land values.” Based on the presumptions that an owner is familiar with his property and will know its value, the rule accepts that a property owner is qualified to testify.  However, qualification is not the same as the basis of the opinion. The property owner “must [still] provide the factual basis on which his opinion rests.” But, the burden is not difficult or complex. “Evidence of price paid, nearby sales, tax valuations, appraisals, online resources, and any other relevant factors may be offered to support the claim.” High’s testimony covered a range of topics that, taken together, provided some probative evidence to factually support his valuation opinion.  Such included his great level of experience in, and knowledge about, the car wash industry and the effects of such property reductions. The testimony was properly admitted. McRoberts testified that the condemnation had affected the property’s functionality so greatly that the property had experienced a change in its highest and best use to something like a small veterinary clinic or an office. McRoberts did not base his opinions on only his word, or on mere conjecture; he based it on the issues that began affecting Speedway’s property only after the condemnation—unsafe access, internal circulation, and zoning nonconformities. McRoberts thus provided a reasoned basis to support his damage opinions, reinforced by well-established case law, logic, and mathematics. The court held “[b]oiled down, the State’s argument is nothing more than an evidentiary sufficiency challenge improperly masquerading as an expert opinion admissibility issue. When the highest and best use of property is disputed, the jury is responsible for deciding which use is appropriate when it determines market value.”  Sufficient evidence exists in the record to support the jury’s verdict. As a result, the verdict is affirmed.*

Tort Claims Act: City of Bedford v. Smith, No. 02-16-00436-CV, 2017 WL 4542858 (Tex. App.—Fort Worth Oct. 12, 2017) (mem. op.). This is a Texas Tort Claims Act (TTCA) case involving a pedestrian falling into a manhole where the Fort Worth Court of Appeals affirmed in part and reversed in part the denial of the city’s plea to the jurisdiction.

Smith alleges she was walking across the grass to reach her apartment when she stepped onto a manhole lid which flipped open. Smith fell into the manhole and was injured.  Smith sued the city. The city filed a plea to the jurisdiction. The trial court denied the plea and Smith appealed.

Even though the trial court denied the plea, its order specifically held the manhole was not a special defect. The court performed a cursory analysis citing its own recent precedent and agreed it was not a special defect as it was not excavation-like in nature. Additionally, since Smith did not challenge that finding in the appeal, the plea should have been granted as to the special defect claims. As to the premise defect claims, the court simply stated the pleadings do not support a claim for premise defect. Smith also alleged a general negligence claim. However, Smith did not plead sufficient facts to establish a negligence claim for the negligent condition or use of tangible personal property. But, the trial court was within its discretion to provide Smith an opportunity to amend her pleadings since the city’s evidence and the pleadings did not affirmatively negate an incurable jurisdictional defect. The trial court also has discretion to postpone its consideration of a jurisdictional plea so that the plaintiff has sufficient opportunity to produce evidence that might raise a fact issue. The city filed its plea and held a hearing two weeks after filing an answer, so no time for discovery had elapsed. And while the court cautioned that a trial court is to make a finding on jurisdiction as soon as practical, it could not say, with the record before it, that the trial court abused its discretion in this case. As a result, the plea was properly denied without prejudice to allow Smith an opportunity to replead and produce evidence.*

Water Utilities: Mountain Peak Special Util. Dist. v. Public Util. Comm’n of Texas, No. 03-16-00796-CV, 2017 WL 5078034  (Tex. App.—Austin Nov. 2, 2017) (mem. op.). The Public Utility Commission of Texas (PUC) granted the City of Midlothian’s petition for expedited release of a portion of property it owned from the certificated service area of Mountain Peak Special Utility District (Mountain Peak). In Mountain Peak’s suit for judicial review of the release, Mountain Peak contended that the PUC erred in granting the city’s petition for decertification because the statutory requirements of Texas Water Code Section 13.254(a-5) were not met. Specifically, Mountain Peak argued that the property the city sought to have decertified was receiving water service from Mountain Peak and, thus, was not eligible for expedited release under Chapter 13 of the Water Code. In addition, Mountain Peak asserted that the PUC’s approval should be set aside because federal law 7 U.S.C. § 1926(b) preempted the decertification. After a hearing, the district court affirmed the PUC’s order granting the city’s petition for decertification. Mountain Peak appealed.

The court recognized that the determination of whether a tract of land is receiving water service is a fact-based inquiry requiring the PUC to consider whether the utility has facilities committed to providing water to the particular tract in furtherance of its obligation to provide water to the tract pursuant to its certificate of convenience and necessity (CCN). The court of appeals found the city’s affidavits regarding water service compelling and concluded that the evidence provided a reasonable basis for the PUC’s finding. The mere existence of water lines on or near property was not enough to mean that the property was “receiving water service.”

The Austin Court of Appeals relied on its decision in Creedmoor-Maha Water Supply Corp. v. Texas Comm’n on Envtl. Quality, 307 S.W.3d 505 (Tex. App.—Austin 2010, no pet.). In that case, the court determined that in the context of a plea to the jurisdiction, uncontroverted record evidence that the utility “lacked both the infrastructure and water to serve” the development negated any allegations in the water supply corporation’s petition that it had provided or made service available. Creedmoor-Maha, 307 S.W.3d at 523. In this case, the court recognized that there was disputed evidence on that issue. Because the court must presume that the trial court resolved any disputed facts in favor of its judgment, the court affirmed the trial court’s conclusion that 7 U.S.C. § 1926(b) did not preempt the PUC’s order. Thus, the court affirmed the district court’s judgment affirming the PUC’s order. 

Zoning: Risoli v. Board of Adjustment of the City of Wimberley, No. 03-17-00385-CV, 2017 WL 4766724 (Tex. App.—Austin Oct. 20, 2017) (mem. op.). This is a board of adjustment appeal in which the Austin Court of Appeals remanded the property owner’s claims back to the trial court.

Risoli sued the Board of Adjustment of the City of Wimberley (BOA or city) alleging it had improperly revoked the “grandfathered use status” of Risoli’s property, barring her from using it as a short-term rental facility. The city filed a plea to the jurisdiction, which included an argument that she missed the filing deadline. The trial court granted the plea, and Risoli appealed.

A person aggrieved by a board of adjustment’s decision may seek judicial review by presenting a petition “within 10 days after the date the decision is filed in the board’s office.” Tex. Loc. Gov’t Code § 211.011(b). The filing date is jurisdictional. The controlling question is whether the city administrator’s letter was the BOA’s “decision” that was “filed in [its] office” and triggered the deadline.

The BOA held a meeting on September 6, 2016, regarding Risoli’s appeal of the city administrator’s decision to revoke her property’s grandfathered use. On September 14, the city administrator wrote a letter to Risoli stating the BOA unanimously voted to uphold the determination and that she must immediately cease all such activities. The letter was emailed to Risoli on September 16, and then again on October 18. Risoli filed her petition November 17 but argued the BOA’s minutes had not yet been approved and, therefore, no decision was “filed in the board’s office.” The city argued the letter was filed at city hall, which is the office where the BOA’s records are kept and maintained. However, the BOA did not submit any evidence to the court to back-up or establish these facts.  The BOA did not define what constituted its “decision” and had not adopted protocols defining where its office is located or what it means for a decision to be filed. Given the absence of evidence, mere argument in pleadings is insufficient to factually support the motion. The order dismissing Risoli’s claims was reversed and the case was remanded back to the trial court.*

Appellate Procedure: EMF Swiss Avenue, LLC v. Peak’s Addition Home Owner’s Assoc., No. 05-17-01112-CV, 2017 WL 5150954 (Tex. App.—Dallas Nov. 7, 2017) (mem. op.). This case involves the underlying proceeding in which Peak’s Addition Homeowner’s Association (HOA) appealed the City of Dallas Board of Adjustment’s (BOA) determination that a building permit was properly issued for construction on property owned by EMF. The judgment in the underlying proceeding was declaratory in nature. Specifically, the judgment grants summary judgment for the HOA and reverses the BOA’s decision upholding the building official’s decision to issue a building permit. The issue in this particular case was whether that judgment constitutes a judgment for something other than money or an interest in real property such that the trial court was required to set security pursuant to Rule 24.2(a)(3) of the Texas Rules of Appellate Procedure.

The court relied on the determination in Haedge v. Central Texas Cattleman’s Association that a “judgment that affirmed a private association’s decision stripping certain shareholders of their shared and accompanying right to graze heads of cattle on certain land could be superseded and the amount of security was to be determined under rule 24.2(a)(3).” No. 07-15-00368-CV, 2016 WL 836084, at *1 (Tex. App.—Amarillo 2016) (per curiam). The Dallas Court of Appeals concluded that the judgment at issue in this case was analogous to the judgment in Haedge, because the judgment was entered for something other than money or an interest in real property. Both judgments adversely affected the property rights of appellants. Thus, they should be permitted to be superseded under Rule 24.2(a)(3). The court grants EMF’s motion, vacates the trial court’s order denying EMF’s motion, and remands the case to the trial court to set supersedeas security.

Derivative Immunity: Brown v. Waco Transit Sys., No. 07-16-00258-CV, 2017 WL 4872801 (Tex. App.—Amarillo Oct. 27, 2017) (mem. op.). The Amarillo Court of Appeals reversed an order granting a plea to the jurisdiction by the Waco Transit System, Inc. (WTSI).

Brown alleges he suffered personal injuries while riding a bus operated by WTSI. Specifically, during Brown’s ride the door fell open, striking him on the head and causing injury. Brown sued WTSI, but his petition was contradictory alleging in some portions that WTSI is a non-profit doing business with Texas, but in other portions alleging it is a governmental entity. WTSI filed a plea to the jurisdiction alleging it is immune from suit under governmental immunity because it is the “agent” of the City of Waco. WTSI alleged it contracted with the City of Waco to perform governmental functions, entitling it to derivative immunity. The trial court granted the plea and Brown appealed.

A private entity generally is not entitled to claim governmental immunity unless “‘its actions were actions of the government, ‘executed subject to the control of’ the governmental entity.” Specifically, “[i]f the contractor or agent lacked discretion, its actions were the actions of the governmental unit; if it had discretion, then it may be sued like any other private actor…. ” The contract shows merely that the city and WTSI agreed to the appointment of WTSI as the city’s agent for the limited purpose of operating the city’s bus system. Under the contract, while the city agreed to “provide” the buses, WTSI is the employer of the transit system employees, including the drivers and mechanics. The parties’ agreement thus does not give the city control over the details of the operation or use of the buses, and the record contains no evidence that the work was performed in a manner giving the city such control.  WTSI’s ability to assert the city’s governmental immunity depends on proof its actions were those of the city, and that it exercised no discretion in its activities. Factual evidence may later prove differently, but for plea purposes, WTSI did not show it is entitled to share the city’s governmental immunity. The order granting the plea was reversed.*

Constitutionality of Ordinance: Noble v. State, No. 07-16-00105-CR, 2017 WL 4785327 (Tex. App.—Amarillo Oct. 18, 2017) (mem. op.). In this case, the Amarillo Court of Appeals affirms Noble’s criminal conviction.

The City of Amarillo has an ordinance that prohibits “sudden vehicle speed or acceleration” which produces noise, smoking tires, or causes one or more tires to lose contact with the surface of the street. Noble was stopped for violating the ordinance. The stop resulted in a search of the vehicle leading to the discovery of methamphetamine. Noble was arrested without a warrant.

On appeal, Noble argued, among other things, that the city ordinance was unconstitutionally vague because it: (1) failed to provide sufficient notice to give a person of ordinary intelligence notice that his conduct was prohibited; and (2) failed to provide sufficient notice to law enforcement personnel to prevent arbitrary and erratic enforcement. Noble relied on Meisner v. State, 907 S.W.2d 664 (Tex. App.—Waco 1995, no pet.) to attack the noise element of the ordinance. The court distinguished this case from Meisner, concluding that it is not the noise that is prohibited by the city ordinance (as was the case in Meisner) but the conduct of sudden acceleration that produces noise. The police officer testified that Noble was stopped because the officer observed the car accelerate with a “sudden burst of speed” that caused the tires to burn and spin and the end of the vehicle to slide. Noble was not arbitrarily stopped because his vehicle made noise. The court concluded the ordinance is not unconstitutionally vague; both issues are overruled.

Constitutionality of Ordinance: Spaeth v. State, No. 07-15-00395-CR, 2017 WL 4785326 (Tex. App.—Amarillo Oct. 18, 2017) (mem. op.). The Amarillo Court of Appeals affirms Spaeth’s criminal conviction.

The City of Amarillo has adopted ordinances that prohibit U-turns in certain areas of the city. Spaeth was stopped for making a U-turn in a “business district.” The stop resulted in a search of the vehicle leading to the discovery of marihuana. Spaeth was arrested.

Spaeth argues the term “business district” in the city ordinances is unconstitutionally vague because it could mean two different things. First, he argues the term is synonymous with “central business district”. Second, he argues the term could refer to various undefined areas of the city. Applying the rule of statutory construction that a court does not interpret a statue to render any part meaningless or superfluous, the court concluded that the term business district and central business district are not synonymous. The court then noted that an undefined term does not make a statute vague but requires use of the term’s plain and ordinary meaning. The intersection where Spaeth made the U-turn fits within the plain and ordinary meaning of the term “business district” (the intersection is zoned “light commercial” and has businesses on two of the four corners and the other two corners are commercial lots). Spaeth was lawfully stopped and his issue is overruled.

Expungement: Burke v. State, No. 09-16-00091-CV, 2017 WL 5179499 (Tex. App.—Beaumont Nov. 9, 2017) (mem. op.). The Beaumont Court of Appeals affirms the trial court’s decision that a former peace officer waived his right to file a petition seeking to expunge his records.

In July 2009, Burke (a peace officer at the time) was indicted for official oppression. In 2014, Burke reached an agreement with the state enjoining him from working as a peace officer in the State of Texas until December 2024 in exchange for a dismissal of the case. The Agreed Order provides that Burke “waives all rights to file any motion to modify or dissolve this injunction.” In a separate order dismissing the case, the state alleged that it no longer wished to prosecute because of the permanent injunction. About six months after agreeing to the permanent injunction, Burke filed a petition seeking to expunge any and all records arising out of the charges. The City of Beaumont and Jefferson County opposed Burke’s request. The city argued Burke had waived his right to expunge because he agreed that he would not seek to modify or dissolve the injunction. The trial court denied Burke’s petition for expunction. Burke appealed, arguing that he qualified to have the records expunged and that the Agreed Order was legally unenforceable.

As to his first argument, the Beaumont Court of Appeals holds that the Agreed Order functions like a pre-trial diversion agreement or a negotiated plea agreement, which are similar to contracts. Because Burke’s petition to expunge would necessarily result in the destruction of the Agreed Order, the court concludes that the trial court was authorized to deny the petition.

The Beaumont Court of Appeals then concludes Burke’s argument that the Agreed Order is unenforceable is without merit. Even if the Agreed Order couldn’t function as a final judgment (an issue the appellate court does not decide), the agreement Burke made with the state is enforceable through a new suit alleging Burke’s request to expunge the records is a violation of the agreement with the state.  The trial court’s order is affirmed, it did not abuse its discretion in concluding that Burke waived his right to file a petition seeking to expunge the records.

Employment: In re City of Beaumont, No. 09-17-00304-CV, 2017 WL 5179785 (Tex. App.—Beaumont Nov. 9, 2017) (mem. op.).  In this case, the Beaumont Court of Appeals conditionally grants the city’s mandamus petition as to the trial court’s role in reviewing the decision made by an independent hearing examiner in an employment dispute between the City of Beaumont and one of its firefighters.

James Matthews was a firefighter for the City of Beaumont until 2008 when he was indefinitely suspended. He had the right to either appeal the decision to the city’s civil service commission or to an independent third-party hearing examiner. Tex. Loc. Gov’t Code §§ 143.053, 143.057. In 2011, the Beaumont Court of Appeals overturned the first hearing examiner’s decision. In August 2012, a second hearing examiner dismissed Matthews’ challenge. Thereafter, Matthews sued the city in district court, challenging the validity of that decision. In July 2017, nearly five years after Matthews appealed the second hearing examiner’s decision to the district court, Matthews asked the trial court to allow him to litigate the matter before the civil service commission instead of a hearing examiner. Relying heavily on City of DeSoto v. White, 288 S.W.3d 389 (Tex. 2009), Matthews argues the city’s 2008 notice to him about his right to appeal was deficient. The trial court entered an order allowing Matthews to re-litigate the dispute before the city’s civil service commission. The city brings this mandamus proceeding arguing that: (1) the trial court abused its discretion by incorrectly applying the law; and (2) a regular appeal following a final decision before the civil service commission would be insufficient to remedy the trial court’s alleged error.

The Beaumont Court of Appeals concludes that there is evidence that Matthews knew his rights under the law in 2008 and certainly by 2011. Thus, this case is distinguishable from White and Matthews waived any claim to seek a change in forums. In addition, the court notes that: (1) the Local Government Code does not provide a remedy if a city issues a notice that does not contain the information required in Local Government Code Section 143.057(a); and (2) the law presumes individuals are fully aware of their statutory rights. The trial court abused its discretion by misapplying the law in this case.

The Beaumont Court also concludes that the benefits of issuing the writ outweigh any detriment. The city lacks an adequate remedy by appeal. The city’s mandamus petition is conditionally granted and the trial court is directed to vacate its order.

Red Light Cameras: Hunt v. City of Diboll, No. 12-17-00001-CV, 2017 WL 5167554 (Tex. App.—Tyler Nov. 8, 2017). Paul Hunt and ADE-WIFCO Steel Products, Inc. (collectively, appellants) both received notices of infractions for red light violations captured by red light cameras in 2015. Appellants sued the City of Diboll pursuant to the Uniform Declaratory Judgment Act challenging the validity of two city ordinances dealing with red light cameras that, at that point, had not been published in the city newspaper. Appellants also sought a declaratory judgment that three city officials acted ultra vires by installing red light camera systems and collecting red light camera penalties. The trial court granted the city’s pleas to the jurisdiction and dismissed all claims against the city and city officials.

On appeal, the court first addresses appellants’ claim that the city’s initial red light camera ordinance is unconstitutional because it deprives them of their presumption of innocence and other constitutional protections. The city argues that appellants were not charged with any criminal offense, only a civil penalty, and must challenge the constitutionality of the ordinance in criminal court. The Tyler Court of Appeals agreed with the city on this point. The alleged harm flowed directly from the city’s enforcement of its ordinance, making appellant’s claim an impermissible attempt to obtain a naked declaration of the ordinance’s unconstitutionality. In other words, appellants made no showing that enforcement of the ordinance caused irreparable injury to personal or property rights.

Next, the court addresses whether appellants failed to exhaust their administrative remedies. While Chapter 707 of the Transportation Code creates a pervasive regulatory scheme to handle claims arising out of the use of red light camera systems, because the city did not publish its red light camera ordinance as required by city charter, the court held that appellants were not obligated to exhaust their administrative remedies. The court analyzed the language in the city’s charter and concluded that the city did not publish the ordinance in accordance with its charter. The ordinance was not effective at the time appellants were assessed the red light penalties, so appellants were not required to exhaust their administrative remedies. The city also argued that its later publication of the ordinance in 2016 rendered appellants’ claims moot. The court disagreed because the penalties were assessed prior to the city’s publication of the ordinance.

On the issue of the ultra vires claims against the city officials, the court stated that the only available remedy in an ultra vires suit is prospective, as measured from the date of an injunction. In this case, the pleadings seek reimbursement of penalties paid in the past, a remedy that would not be available in an ultra vires suit. Therefore, the court held that the trial court did not err in granting the city’s plea to the jurisdiction on appellants’ ultra vires claims for relief.

Open Meetings Act: City of Donna v. Ramirez, No. 13-16-00619-CV, 2017 WL 5184533 (Tex. App.—Corpus Christi Nov. 9, 2017). Oscar Ramirez, a former city manager in the City of Donna, brought causes of action against the City of Donna under the Texas Open Meetings Act and the Texas Whistleblower Act after being terminated. He alleged he was terminated after he reported to the police chief and a municipal judge that city officials ordered him to waive or discount certain city fees or charges for city services. He also alleged the city’s agenda giving notice of Ramirez’s termination violated the Texas Open Meetings Act’s notice provision because the word “cancelled” was written on the agenda notice posted near the front door at city hall, and the city conducted the meeting anyway. The trial court denied the city’s plea to the jurisdiction and the city appealed.

On appeal, the city argued that Ramirez failed to identify a violation of any provision of the Texas Open Meetings Act, and that Ramirez did not have standing to complain of a violation under the Act because he was present at the meeting and therefore didn’t suffer any injury. On the standing issue, the court held that because the Act allows an “interested person” to bring an action to correct a violation of the Act, a plaintiff need to only show that he shares the general public’s interest in ensuring that the protections of the Act are enforced.

The substantive issue regarding the Texas Open Meetings Act before the court was whether the presence of the word “cancelled” prominently displayed on the agenda demonstrates a violation of the Act, even if other required notices did not indicate the meeting was cancelled, if the city council continued with the meeting. The court held that viewing the agenda notice in its entirety would lead a member of the general public to conclude that the city council would not be holding a meeting at the time indicated to discuss any matter. The meeting notice did the opposite of informing the general public that a meeting would be held. As a result, the court concluded that Ramirez has presented facts supporting a violation of the Act, specifically Section 551.041’s requirement that a governmental body “give written notice of the date, hour, place, and subject of each meeting held by the governmental body.”

The city also argued on appeal that Ramirez failed to identify a violation of the Texas Whistleblower Act. The court disagreed, holding that Ramirez presented evidence in good faith that elected city officials had ordered him to waive or discount certain bills and charges for city services. Such actions, if true, could potentially violate Article III, Section 52 of the Texas Constitution and Section 39.02 of the Penal Code. The court affirmed the trial court’s order denying the city’s plea to the jurisdiction.

Tort Claims Act: City of Edinburg v. Balli, No. 13-17-00183, 2017 WL 5184495 (Tex. App.—Corpus Christi Nov. 9, 2017) (mem. op.). Melinda Balli sued the City of Edinburg after she was struck by a vehicle as she used a crosswalk near the Hidalgo County Courthouse. The pedestrian traffic light displayed a “walk” signal for pedestrians at the same time the vehicle traffic light at the intersection displayed a green left-turn arrow. According to her petition, the city was aware of the problem with the traffic signals due to a similar collision on January 17, 2012. She alleged that the city’s negligent acts and omissions were a proximate cause of the collision and of her resulting injuries. The city filed a plea to the jurisdiction arguing that the traffic lights were not malfunctioning so as to cause a waiver of immunity under the Texas Tort Claims Act. The traffic signals were working exactly as intended by the Texas Department of Transportation, which designed the traffic lights to simultaneously display “walk” and left-turn signals.  The trial court denied the city’s plea to the jurisdiction, and the city appealed.

On appeal, the city argued that it retained immunity because the traffic lights were functioning as intended and therefore didn’t constitute a wrongful condition of real property and because Balli complains of a discretionary decision concerning design of the roadway. The city claimed that it assumed responsibility for the traffic lights in 2012 and had not changed the lights’ programming since that time. As a result, the traffic lights did not qualify as a wrongful condition of real property for which immunity would be waived. The city included with its plea its agreement with the Texas Department of Transportation regarding the lights as well as affidavits and deposition transcripts showing the city had not altered the lights’ design and programming. Based on these transcripts, the city carried its initial burden by negating the “condition” component of Balli’s proposed waiver of immunity. The burden therefore shifted to Balli to introduce evidence supporting the existence of a fact issue. Balli argues that there was a conflict between the “walk” signal and the protected left-turn signal. But according to the court, this evidence simply attacks the wisdom of the discretionary design choices of the city for which immunity is not waived. The court sustained the city’s issue.

Tort Claims Act: City of Houston v. Gutkowski, No.14-17-00234-CV, 2017 WL 4679287 (Tex. App.—Houston [14th Dist.] Oct. 17, 2017). This is an interlocutory appeal from the denial of a plea to the jurisdiction involving a Texas Tort Claims Act (TTCA) claim. The Fourteenth Court of Appeals reversed the denial and dismissed the plaintiff’s claims.

Patricia Gutkowski fell out of bed and was unable to move. Her family called 9-1-1 which dispatched City of Houston firefighters to the scene. Upon arrival, the family of Patricia Gutkowski alleged firefighter personnel did not have a portable lifting device, lift board, or lift sling. As a result, they were unable to place Gutkowski in a proper position for lifting resulting in an injury and laceration to her leg. The laceration caused significant blood loss which allegedly caused a heart attack later that day. The Gutkowski family sued the city, which filed a plea to the jurisdiction. The trial court denied the plea and the city appealed.

The court first analyzed the pleadings and evidence and determined the Gutkowski family’s claim relating to property lacking an integral safety component was actually a claim for the non-use of personal property in disguise. While the Gutkowski family alleged the emergency service vehicle was tangible personal property lacking an integral safety component of a lifting device, they did not allege the vehicle was improperly used. They only alleged it did not have something firefighter personnel should have used in the bedroom. Further, the integral safety component doctrine is limited to and turns on the governmental entity negligently providing personal property missing an integral safety component, not the non-use of certain medical equipment over others. Further, the allegation that firefighter personnel negligently wrapped the laceration with tangible supplies is insufficient to trigger a waiver of immunity. It is not enough that some property is involved; the use of that property must have actually caused the injury. Here, that is not the case. As a result, the plea should have been granted.*

*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.

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