Recent Texas Cases of Interest to Cities

Note: Included cases are from October 11 through November 10, 2019.

Texas Tort Claims Act: University of Tex. v. Garner, No. 18-0740, 2019 WL 5275579 (Tex. Oct. 18, 2019).This is a Recreational Use Statute case where the Texas Supreme Court reversed the denial of the university’s plea to the jurisdiction and dismissed the claims.

The University of Texas at Austin owns and operates the Colorado Apartments, a student housing complex. Within the complex are four roads that permit two-way traffic around the complex and contain parking spaces that are perpendicular to the road.  They connect to City of Austin streets. Bicyclists commonly use the road. Garner was traveling by bicycle to the trail head at Eilers Park. A university employee, Angel Moreno, was backing out from a southwest-facing parking space and struck Garner. Garner sued the university for negligence, contending that the Tort Claims Act waived the university’s immunity by the operation and use of a motor vehicle. The university filed a plea to the jurisdiction asserting the application of the Recreational Use Statute (RUS), which was denied, and the court of appeals affirmed. The university appealed.

The RUS limits the liability of all landowners — public and private — who permit others to use their property for activities the statute defines as “recreation.” Such landowners are “effectively immunize[d]” from ordinary negligence claims, owing those who use their property for recreation only the duty not to injure them intentionally or through gross negligence. Garner’s only claim against the university sounds in ordinary negligence. She does not allege that the university or Moreno acted with gross negligence, malicious intent, or bad faith. The court of appeals held the RUS did not apply because under subsection (c) it did not grant permission to use the roads for recreational use. However, the RUS subsection (f) states “Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Subsection (f) contains no language (unlike subsection (c)) requiring permission or invitation. Here, it is undisputed that Garner: (1) entered premises owned by a governmental unit; and (2) engaged in an activity on those premises (bicycling) that qualifies as “recreation” under the statute. As a result, no waiver of immunity applies.*

Texas Tort Claims Act/Texas Citizens Participation Act: Houston Forensic Sci. Ctr., Inc. v. Barette, No. 01-19-00129-CV, 2019 WL 5792194 (Tex. App.—Houston [1st Dist.] Nov. 7, 2019) (mem. op.). This is a case involving a former employee of a municipal corporation who sued the municipal corporation for defamation.  The trial court denied Houston Forensic Science Center’s (HFSC) plea to the jurisdiction based on the Texas Tort Claims Act (TTCA) and motion to dismiss under the Texas Citizens Participation Act (TCPA).

HFSC terminated Barette’s employment and issued a press release stating HFSC terminated an investigator because of the use of testing equipment that led to false negatives. Employees of HFSC eventually identified Barette as the terminated investigator. Barette sued for defamation per se because she claimed the allegations were false. 

HFSC filed a combined motion to dismiss under the TCPA and a plea under the TTCA.   HFSC asserted Barette could not prove a prima facie case of defamation per se and that it was entitled to dismissal under the TCPA because it was immune from intentional torts under the TTCA. 

Three days after HFSC filed its combined motion, Barette amended her petition and dropped the claims of defamation against HFSC and added claims of defamation against four HFSC employees. HFSC argued it was entitled to attorneys’ fees, costs, and expenses under the TCPA, despite Barette’s nonsuit. 

The First Court of Appeals first found that HFSC is a municipal corporation created under the Texas Transportation Code and is a “governmental unit” as the term is used in the TTCA. The court next determined defamation is an intentional tort for which immunity is not waived. Finally, the court found that because HFSC was immune from suit, the trial court lacked subject matter jurisdiction to take any action on the defamation claim other than to dismiss it.

The court rejected HFSC’s argument that the TCPA applied and that HFSC was entitled to a monetary award under the cost-shifting provisions. The First Court of Appeals found that it could not issue an advisory opinion, and, based on the facts of the case, the trial court lacked jurisdiction to consider the question at all. The court vacated the trial court’s order denying the TCPA motion to dismiss and dismissed the appeal.

Texas Tort Claims Act: Juarez v. Harris Cty., No. 01-18-00690-CV, 2019 WL 5699741 (Tex. App.—Houston [1st Dist.] Nov. 5, 2019) (mem. op.). This is a Texas Tort Claims Act case where Harris County asserted that the emergency response exception applied to officers’ pursuit of suspected dangerous felons. 

The case involves a police pursuit of three individuals in a stolen truck who were suspected of armed robbery. After seeing the three individuals get into a stolen truck and drive off, the officers attempted to make a routine traffic stop. The suspects then fled and the officers pursued in the chase. The officers noted, among other things, that the driver’s hazardous driving created a danger to the public that required intervention and outweighed the risks of a vehicle pursuit. The officers conducted their pursuit by monitoring their speed and the driving conditions and proceeding carefully through traffic and intersections.

The county asserted it was immune because the officers were responding to an emergency under the emergency response exception. The First Court of Appeals noted that the term “emergency” is construed broadly, and concluded that the facts in the case were sufficient to show that the officers were responding to an emergency. The court found that the officers did not violate the Transportation Code provisions related to operating an emergency vehicle because they did not operate with reckless disregard for the safety of others. The burden shifted to the plaintiff to show that there was a disputed issue of material fact. The plaintiff merely made conclusory statements in opposition, such as the officers could have used other methods to arrest the suspects that would not have ended in a high-speed chase or they did not follow their training.

The First Court of Appeals rejected the plaintiffs’ conclusory arguments, and found that the county presented sufficient evidence to show that the emergency response exception applied and affirmed the trial court. 

Taxpayer Lawsuits: Perez v. Turner, No. 01-16-00985-CV, 2019 WL 5243107 (Tex. App.—Houston [1st Dist.] Oct. 17, 2019). This is a long-standing/multi-opinion dispute challenging the City of Houston’s drainage fee ordinance. In this substituted opinion (substituted for an opinion issued in August of 2018), the First District Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.

Voters in the City of Houston adopted a dedicated charter amendment for a “Pay-As-You-Go Fund for Drainage and Streets.” The city then adopted a regulatory ordinance. One source of funding was a charge imposed on properties directly benefitting from the drainage system. The ballot language for the charter amendment was originally held misleading and invalid. After several disputes from the subsequent ordinance occurred, Perez brought this ultra-vires claim and sought: (1) a judgment declaring the drainage fee ordinance invalid (yet again); and (2) an injunction against the assessment, collection, and expenditure of taxes and fees pursuant to the ordinance, and reimbursement “on behalf of herself and all other similarly situated persons or entities” of taxes and fees assessed and collected pursuant to the ordinance and paid “under duress.” The city filed a plea to the jurisdiction asserting Perez lacked standing because she had suffered no particularized injury separate from the public, which was granted. Perez appealed.

The prior judicial declaration that the charter amendment is void does not address the Drainage Fee Ordinance. Thus, to the extent that Perez’s claims were based on her allegations that the prior opinions invalidated the ordinance, such are misplaced. The charter amendment was only needed to shift a portion of ad valorem tax revenue from debt services and was not required for authority to pass a drainage fee ordinance. Local Government Code Chapter 552 provided independent authority for such an ordinance. Perez pleaded that she paid “illegal” drainage fees, she has cited to no authority declaring the Drainage Fee Ordinance illegal. Further, Perez must demonstrate she “suffered a particularized injury distinct from that suffered by the general public” by the drainage fees collected. The municipal fees were assessed to property owners across the city. The payment of municipal fees, like the drainage fees assessed against Perez’s properties and numerous other properties in the city, did not constitute a particularized injury. Taxpayer standing is an exception to the “particularized injury” requirement.  However, it is not enough for the plaintiff to establish that she is a taxpayer; the plaintiff “may maintain an action solely to challenge proposed illegal expenditures.” A litigant must prove that the government is actually expending money on the activity that the taxpayer challenges; merely demonstrating that tax dollars are spent on something related to the allegedly illegal conduct is not enough. Perez asserted the fees were collected illegally. However, she was unable to establish the city is actually making any “measurable, added expenditure” of funds on illegal, unconstitutional, or statutorily unauthorized activities. As a result, she was not entitled to taxpayer standing. The plea was properly granted.*

Texas Tort Claims Act: Tarrant Cty. v. Green, No. 02-19-00159-CV, 2019 WL 5460679 (Tex. App.—Fort Worth Oct. 24, 2019) (mem. op.).This is a Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals reversed the denial of the county’s plea to the jurisdiction based on an intentional tort.

While Green was a jail inmate, he asserted Corporal Davis at the jail pointed a temperature gun (which utilized a laser for measurements) at his left eye causing injury. Corporal Davis admitted to using a laser temperature gun, but denied the laser impacted Green. Green testified that he does not believe Davis hit him with the laser intentionally. However, he testified Davis pointed the temperature gun at him as a result of Green telling a joke about Davis moments before. The county filed a plea to the jurisdiction asserting Green alleged an intentional tort, even though Green disclaimed the injury was performed intentionally. The trial court denied the plea and the county appealed.

Although the specific intent to inflict injury is unquestionably part of some intentional torts, a specific intent to injure is not an essential element of a battery, which does not require physical injury and which can involve a harmful or offensive contact intended to help or please the plaintiff. The court noted that accidental injuries can sometimes result from an intentional tort. The court drew a distinction between criminal and civil analysis for “intentional” conduct regarding battery. Green’s allegations constitute a common-law battery claim because the contact — either offensive or provocative — was an intentional act made in response to Green’s own provocative statement. As battery is an intentional tort, no waiver of immunity existed. The plea should have been granted.*

Public Information: Paxton v. Escamilla, No. 03-18-00346-CV, 2019 WL 5779912 (Tex. App.—Austin Nov. 6, 2019).  This is an appeal of the trial court’s order finding that Escamilla, the Travis County Attorney, is not required to disclose deferred prosecution agreement (DPA) records due to exceptions to disclosure under the Texas Public Information Act (Act). 

The county attorney received a request under the Act for each DPA that his office had executed in domestic violence cases since April 2015. The county attorney declined to release the records and sought an opinion from the Attorney General’s Open Records Division. The county attorney asserted that the requested records were excepted from disclosure.  The attorney general issued a ruling concluding that DPAs whose terms had concluded could be withheld pursuant to the law enforcement exception, Section 552.108(a)(2) of the Government, but the DPAs whose terms had not concluded were not excepted from disclosure and must be released. The county attorney filed suit seeking declaratory relief from the attorney general’s ruling. The trial court determined that all of the DPAs were excepted from disclosure, dividing them into three categories: (1) DPAs pertaining to dismissed criminal cases that have not been refiled are excepted from public disclosure by Section 552.108(a)(2); (2) DPAs pertaining to dismissed criminal cases that have been refiled and then dismissed again are excepted from disclosure by Section 552.108(a)(2); and (3) DPAs pertaining to dismissed criminal cases that have been refiled and are still pending are excepted from disclosure by Sections 552.108(a)(1), 552.103, and 552.107. The attorney general appealed.

The court of appeals affirmed the trial court’s judgement. The court found that a dismissal pursuant to a DPA, even if conditional until the term of the DPA has run, satisfies the requirement of Section 552.108(a)(2) as an investigation that has not resulted in conviction or deferred adjudication. Similarly, the court determined that the dismissal of criminal charges that were refiled after the execution of a DPA satisfies the requirement of an investigation that has not resulted in conviction or deferred adjudication pursuant to Section 552.108(a)(2). The court also concluded that pending criminal charges that were refiled after the execution of DPA for failure to comply with one or more conditions of the agreement satisfy the requirement of Section 552.108(a)(1), as the release of such DPA would interfere with detection, investigation, or prosecution of a crime. 

Quo Warranto: State v. City of Double Horn, No. 03-19-00304-CV, 2019 WL 5582237 (Tex. App.—Austin Oct. 30, 2019).  This is an appeal of the trial court’s order denying the State of Texas’ petition for leave to file a quo warranto challenging the incorporation of the City of Double Horn as a Type B general law municipality.

The State of Texas filed its “Petition for Leave to File an Information in the Nature of Quo Warranto” (petition) seeking to declare the incorporation of the city invalid and void for failure to comply with statutory requirements for incorporation and to remove the city’s officers from office. The State alleged that the incorporation failed to meet two statutory requirements: (1) that the community intending to incorporate constitutes an unincorporated town or village prior to incorporation; and (2) that the proposed boundaries include only the territory to be used strictly for municipal purposes. The trial court considered the ultimate merits of the case, denied the State’s petition, and ultimately dismissed the suit. The State appealed, arguing that the trial court erred by applying the wrong pleading standard and failing to accept its allegations as true in determining whether it had probable ground to bring a quo warranto action.

The court of appeals reviewed the trial court’s decision for abuse of discretion and determined that the petition stated a probable ground for a quo warranto action. The court concluded that, in making a probable-ground determination, the trial court need only determine if the petition stated a cause of action to proceed. Additionally, the court, after reviewing the State’s factual allegations, found that the State sufficiently stated a claim for relief on its claim of invalid incorporation, and, thus, probable ground for a quo warranto proceeding.  Accordingly, the court determined that the trial court erred in dismissing the State’s petition, and remanded the case for further proceedings. 

Texas Tort Claims Act: Gomez v. City of Houston, No. 14-17-00811-CV, 2019 WL 5580134 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019) (en banc op.). Bobby Joe Simmons, a City of Houston police officer, was responding to a robbery call when his car collided with a vehicle driven by Maria Christina Gomez. Gomez sued the city, alleging negligence. The city filed a plea to the jurisdiction asserting that it was immune from suit, and the trial court granted the city’s plea and dismissed the lawsuit. Gomez appealed.

In December 2018, a panel of the Fourteenth District Court of Appeals reversed the trial court’s judgment and remanded the case to the trial court. The city filed a motion for en banc reconsideration, which was granted. The court withdrew the earlier opinion and issued this en banc majority opinion, although the result does not vary from the opinion issued in December of 2018.

On appeal, the first question was whether Officer Simmons could be personally liable to Gomez under Texas law, as required under the Texas Tort Claims Act to waive governmental immunity. The city contended that the evidence conclusively established that Officer Simmons responded to the robbery call in good faith, and therefore could not be personally liable to Gomez under Texas law, meaning the city should retain its governmental immunity. But the court held that the city’s evidence of good faith assumes the truth of a disputed fact – that Simmons was using his overhead emergency lights as he approached the intersection. No witnesses testified that the standard for good faith was satisfied if Simmons did not use his car’s overhead emergency lights. Consequently, the court held that the city did not meet its burden to conclusively prove Officer Simmons’ good faith. The trial court erred to the extent it granted the city’s plea to the jurisdiction on the ground that the city’s governmental immunity had not been waived under the Texas Tort Claims Act.

In her second issue, Gomez argued that the trial court erred to the extent it granted the city’s plea based on the emergency exception to the waiver of immunity in Section 101.021 of the Civil Practice and Remedies Code. The city claimed that because it established that Officer Simmons did not act recklessly, the city was immune from suit. The court disagreed, holding that there was a material question of fact regarding whether Officer Simmons acted recklessly or with conscious indifference to the safety of others. Evidence showing that Officer Simmons did not slow his speed to compensate for the wet conditions, did not use his patrol car’s siren and possibly the emergency lights, and did not maintain visual contact with the road as he approached the intersection could support a finding that he acted recklessly. Because there was a fact issue on whether Officer Simmons’ acted recklessly, the court sustained Gomez’s second issue.

The court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings consistent with the opinion.

Inverse Condemnation: City of Houston v. Commons at Lake Houston, Ltd., No. 14-18-00664-CV, 2019 WL 5158725 (Tex. App.—Houston [14th Dist.] Oct. 15, 2019). The Commons at Lake Houston, Ltd. (Commons) began development of a master-planned community called “The Crossing” that contained portions located in the 100-year and 500-year floodplains. Following Hurricane Harvey, the city adopted an ordinance imposing new restrictions on building within the floodplain. The Commons sued the city before the effective date of the ordinance, asserting claims for inverse condemnation and a declaratory judgment. After the suit was filed, an individual working on the development project emailed a city engineer asking about the application of the vested rights statute. The city engineer responded by stating that some of the proposed improvements are not part of the plat and therefore would not be vested. The city filed a plea to the jurisdiction arguing that The Commons’ claims were not ripe because the city had not made a final decision applying its floodplain regulations to the development. The Commons responded by using the emails between the developer and the city engineer as evidence that a decision had been made by the city. The trial court denied the city’s plea to the jurisdiction and the city appealed.

On appeal, the city contends that The Commons’ claims were not ripe, since the city has not made any final decision applying the ordinance to deny a permit application for The Commons’ property or decided whether the ordinance applied to The Crossing. First, the court held that the inverse condemnation claim was not ripe, as it was undisputed that The Commons did not have any permit or plat applications denied as a result of the amended ordinance. The Commons claimed that its inverse condemnation claim was ripe upon enactment because the ordinance prohibits the precise use intended for the property. However, the court points out that the ordinance allows for variances. Nothing in the ordinance prevents The Commons from seeking a variance from the ordinance. Because The Commons had not given the city the ability to exercise its discretion, the inverse condemnation claim was not yet ripe.

Similarly, the court held that The Commons’ vested rights claim also was not ripe. The Commons argued that the email exchange with the city engineer shows that the city had finally decided that Chapter 245 of the Local Government Code was inapplicable. The court held that the email exchange did not constitute “official action” by the city. The Commons asked a general question about unspecified tracts of land, and the city employee, after specifying that she was not an attorney, gave a general answer. This did not constitute evidence that the city made a final decision to apply the new ordinance to the developed property, and the Chapter 245 claim was not ripe.

The trial court erred because The Common’s inverse condemnation and vested rights claims were not ripe. The court sustained the city’s issue, reversed the trial court’s order, and rendered a judgment that The Commons’ claims were dismissed without prejudice.

*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