Recent Texas Cases of Interest to Cities

Note: Included cases are from October 11, 2020 through November 10, 2020.

Elections: Abbott v. Anti-Defamation League Austin, No. 20-0846, 2020 WL 6295076 (Tex. Oct. 27, 2020). In July, Governor Abbott expanded the time to deliver mail-in ballots to a polling location for early voting as well as election day, but then limited the locations for delivery to just one location per county in October. Plaintiffs claimed the October proclamation: (1) was an ultra vires act because it exceeds the governor’s authority under the Texas Disaster Act; (2) infringes on the right to vote, in violation of Article I, section 3 of the Texas Constitution; and (3) violates Article I, section 3 by disparately burdening voters in large counties. The Texas Supreme Court overturned the appellate court and dissolved the trial court’s temporary injunction because it found: (1) the July and October Proclamations expand the options otherwise available to voters and that Governor Abbott could amend his proclamations; (2) the burden of waiting in line on voting was de minimis, and thus, not unconstitutional; and (3) the state’s county-based elections system did not disparately impact voters in larger counties.

Tort Claims Act: City of Fort Worth v. Rust, No. 02-20-00130-CV, 2020 WL 6165297 (Tex. App.—Fort Worth Oct. 22, 2020) (mem. op.). Rust sued the City of Fort Worth for an injury when he fell out of a city-owned golf cart at a municipal golf course alleging the city negligently maintained the golf cart, should have removed the cart, and failed to warn him of the dangerous condition. The city filed a plea to the jurisdiction on the grounds that the Recreational Use Statute applied to the case, thus lowering the city’s duty of care to gross negligence, malicious intent, or bad faith. The appellate court held that the Recreational Use Statute applied to Rust’s claims, even though they were for the condition or use of tangible personal property. The court found that the plea should have been granted, but that Rust should have the opportunity to amend his petition.

Promotional Exams: Perrin v. City of Temple, No. 03-18-00736, 2020 WL 6533659 (Tex. App.—Austin Nov. 6, 2020) (mem. op.). Perrin and Powell, both serving as police officers for the City of Temple, participated in a promotional test that includes a written examination and an assessment for promotional eligibility to the rank of corporal. Five officers, including Perrin and Powell, passed the written examination, and after adding seniority points, the publicly posted results showed Powell in third position and Perrin in fifth. After completing the assessment, the final promotional eligibility list showed that Perrin moved up the list to third, and Powell moved down to fourth. Before the eligibility list expired, the city eliminated four corporal positions and created two new lieutenant and two new sergeant classifications. In response, the police chief determined that this sequence of events should have resulted in the promotion of officers Mueller, Perrin, Powell, and Hickman to corporal, then their immediate demotion back to the rank of police officer, and subsequently placement on a re-instatement list for a period of one year in the order of seniority in the department. When the re-instatement list was published, Perrin was ranked last. Perrin sued the city and additional defendants (city defendants) for an ultra vires claim and seeking declaratory, injunctive, and mandamus relief, asserting that the re-instatement list should be based on seniority in the position and not seniority in the department. The city defendants counterclaimed, seeking declaratory relief that Powell was entitled to the promotion, and thereafter Powell intervened. The trial court issued an order denying Perrin’s plea to the jurisdiction and motion for summary judgment and granting the city defendants’ and Powell’s motions for summary judgment. Perrin appealed. The court of appeals determined that under the redundant remedies doctrine, the trial court did not have jurisdiction over Powell’s claim challenging the order of the promotional eligibility list under the UDJA because Section 143.034(a) of the Local Government Code provides a redundant remedy. Similarly, the court found that the trial court had erred in granting summary judgement on Powell’s ultra vires claim and the city defendants’ UDJA claim because the court did not have jurisdiction over an eligibility list that had expired and that the civil service commission had no authority to make changes. The court also found that “seniority” under Section 143.085(a) refers to seniority in the corporal position, and not seniority in the department. Accordingly, the court reversed the trial court’s finding, granting Perrin’s motion for summary judgement and denying Powell’s and the city defendants’ motion for summary judgement.

Elections: Hughs v. Move Texas Action Fund, No. 03-20-00497, 2020 WL 6265520 (Tex. App.—Austin Oct. 23, 2020) (per curiam.). Move Texas Action Fund (MOVE) sought an injunction ordering Hughs, the Texas Secretary of State, to refrain from enforcing an Election Code provision that requires a physician certification be provided when an applicant requests a late mail-in ballot because the applicant has a disability that originates on or after the deadline for requesting a mail-in ballot. MOVE alleged that the physician certification requirement is satisfied by the existing public health orders regarding quarantine as to any voter who is diagnosed positive for COVID-19 after the 11-day cutoff or that the Election Code provision is unconstitutional. The district court granted a temporary injunction ordering Hughs to refrain from enforcing the physician’s certificate requirement and from advising election officials to enforce the requirement. Hughs appealed, which automatically superseded the temporary injunction. MOVE filed an emergency motion seeking to reinstate the injunction. The court of appeals denied the request finding that granting the injunction at that time would change the longstanding requirements governing late mail-in ballots and risk voter confusion.

Petition Signatures: In Re Martinez, No. 04-20-00424-CV, 2020 WL 6048768 (Tex. App.—San Antonio Oct. 14, 2020) (mem. op.). Martinez, a candidate for Val Verde County Attorney, sought, by a writ of mandamus, to decertify and remove his opponent, Smith, from the ballot, asserting that Smith’s ballot petition signatures were invalid because two of her circulator’s affidavits did not contain dates, which would have resulted in the total number of valid signatures falling below the requisite number. The court denied the writ of mandamus. It considered the affidavits in the context of their purpose, which is to ensure that a candidate has submitted a sufficient number of valid ballot petition signatures, and determined that invalidating the signatures due to the missing dates would not be a just and reasonable result.

Property Tax Exemption: Dallas Cent. Appraisal Dist. v. City of Dallas, No. 05-19-00875-CV, 2020 WL 6334805 (Tex. App.—Dallas Oct. 29, 2020) (mem. op.). The City of Dallas leases property from a private party and uses such property exclusively for public purposes. The city’s lease with the property owner provides that the city is responsible for paying taxes on the property. Upon receipt of notice of property taxes due on the property, the city filed a protest with the Dallas Central Appraisal District Review Board (DCAD), asserting that it is entitled to a tax exemption because a leasehold held by a public entity and used for a public purpose constitutes public property. DCAD denied the city’s request, and the city filed a petition for judicial review. The trial court ruled that the city was entitled to a public property exemption from paying property taxes on its leasehold interest in the property. DCAD appealed, arguing that the property is not exempt because it is not owned by the city. The court of appeals reversed the trial courts order finding that the city is not entitled to a tax exemption because it does not hold legal or equitable title to the property.

Tort Claims Act: Gonzales v. City of Farmers Branch, No. 06-20-00054-CV, 2020 WL 6494922 (Tex. App.—Texarkana Nov. 5, 2020) (mem. op.). Gonzales sought damages for alleged injuries he suffered when a city police officer fired rounds into a vehicle in which Gonzales was a passenger. Because there was only a summary judgment hearing (not a trial) held in this case, Gonzales’ claim that he should have been present for the “non-jury trial” is overruled. And because his third amended petition was filed after the hearing, and without leave of court, the court was not required to consider it. The trial court’s summary judgment in favor of the city is affirmed.

Excessive Fine: Duisberg v. City of Austin, No. 07-20-00171-CV, 2020 WL 6122951 (Tex. App.—Amarillo Oct. 16, 2020) (mem. op.). Duisberg seeks to nullify civil penalties which accrued after he allowed his house to deteriorate to the level of becoming a “public nuisance.” He argues the penalties imposed by the city are excessive and violate the Eighth Amendment of the United States Constitution. Noting it was Duisberg’s own delay in bringing his house into compliance over the course of many years that created the $33,000+ in penalties, the court of appeals affirms the trial court’s order granting the city’s summary judgment motion.

Removal from Office: Brown v. State, No. 08-19-00110-CV (Tex. App.—El Paso Oct. 12, 2020). In this case, an elected official, appearing as a pro se litigant, appeals her removal from office for misconduct and incompetence. After giving her multiple chances to cure, the court of appeals holds that the elected official’s failure to clearly state her issues and provide a reporter’s record requires the court to affirm the trial court’s order of removal.

Zoning: Donalson v. City of Canton, No. 12-20-00164-CV, 2020 WL 6164470 (Tex. App.—Tyler Oct. 21, 2020) (mem. op.). The City of Canton sued a church and its owner, and later added additional defendants, because the church violated the city’s zoning ordinance by using a former nursing home property as a residential complex. The city nonsuited some of the defendants without prejudice and the trial court entered a stipulated permanent injunction and final judgment against the remaining defendants. One of the dismissed defendants filed the appeal. The court dismissed the appeal as moot because there was no longer a justiciable controversy between the city and the dismissed defendant.

Tort Claims Act: City of Brownsville v. Rattray, No. 13-19-00556-CV, 2020 WL 6118473 (Tex. App.—Corpus Christi Oct. 15, 2020) (mem. op.). Rattray’s and other homeowners’ homes were flooded as a result of storm water accumulation. They sued the City of Brownsville claiming the city and its employees negligently operated motor-driven equipment by untimely activating such equipment. The city filed a plea to the jurisdiction, which was denied by the trial court. The city then filed an interlocutory appeal, asserting that its immunity from suit was not waived. The court of appeals reversed the trial court’s decision, finding that the city’s actions constituted nonuse of property that does not invoke the Texas Tort Claims Act’s waiver of immunity.

Zoning: City of Dickinson v. Stefan, No. 14-18-00778-CV, 2020 WL 6280945 (Tex. App.—Houston [14th Dist.] Oct. 27, 2020). Stefan asked the trial court for a declaratory judgment, declaring his property a legal nonconforming use as a special event venue. He also asserted an inverse-condemnation claim under article I, section 17 of the Texas Constitution because the city refused to issue him a special use permit to operate a special event center. On appeal, Stefan argues that he pleaded an independent claim for declaratory relief under Local Government Code chapter 245. The court of appeals holds that Stefan did not plead a claim under chapter 245 and did not seek judicial review of the board of adjustment’s (BOA) decision under Local Government Code section 211.011. And because Stefan failed to exhaust his administrative remedies by seeking review of the BOA decision, the trial court lacked subject-matter jurisdiction over Stefan’s declaratory-judgment claim and his takings claims is barred. The trial court’s order is reversed and the court of appeals renders judgment dismissing Stefan’s claims for lack of subject-matter jurisdiction.

Premises Liability: Harris Cty. Hosp. Dist. v. Peavy, No. 14-19-00953-CV, 2020 WL 6142887 (Tex. App.—Houston [14th Dist.] Oct. 20, 2020) (mem. op.). Peavy was injured when she tripped and fell on the lip of a door brace on the premises of Lyndon B. Johnson Hospital, which is a part of the Harris County Hospital District (HCHD). Peavy failed to raise a genuine issue of material fact showing that HCHD actually knew of the alleged defect/dangerous condition. Thus, Peavy’s claim is barred by immunity and her suit is dismissed.

Employment: Fields v. Houston Indep. Sch. Dist., No. 14-19-00010-CV, 2020 WL 6073758 (Tex. App.—Houston [14th Dist.] Oct. 15, 2020). Fields was dismissed from the Houston Independent School District (HISD) alternative-certification program for teachers. After receiving a right to sue letter, Fields sued for discrimination and later retaliation. The court of appeals first holds that Fields’ retaliation charge was factually related to her discrimination charge. Next, the court finds HISD presented evidence of legitimate, non-discriminatory reasons for the discharge, which Fields was unable to rebut to establish pretext under her discrimination charge. When an employer presents jurisdictional evidence rebutting the prima facie case, the presumption of retaliation disappears. The employee must present sufficient evidence of pretext to survive a plea to the jurisdiction. All elements of a circumstantial-evidence retaliation claim are jurisdictional. Because Fields failed to present any evidence of pretext on the part of HISD, she failed to establish a waiver of immunity. As a result, HISD’s plea to the jurisdiction was properly granted by the trial court.

*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