Recent Texas Cases of Interest to Cities

Note: Included cases are from October 11, 2021 through November 10, 2021.

Tort Claims Act: Gibbs v. City of Houston, No. 01-20-00570-CV, 2021 WL 4733790 (Tex. App.—Houston [1st Dist.] Oct. 12, 2021) (mem. op.). This is a Texas Tort Claims Act (“TTCA”) case involving a collision between a pickup truck and a city police department vehicle. Brannon was driving a pickup truck when she collided with a city police department SUV, driven by a city employee. Another plaintiff, Gibbs, was one of six passengers riding in the pickup truck.  Brannon sued the city, which the other passengers joined, but Gibbs was not named in the amended petition. After the statute of limitations passed, Gibbs was joined in a later petition. The city filed a motion for summary judgment against Gibbs asserting the statute of limitations. The trial court granted the motion and Gibbs appealed.

The party suing a governmental entity has the burden to establish jurisdiction by pleading—and ultimately proving—not only a valid immunity waiver but also a claim that falls within the waiver. The city argued that neither it nor its employee could be liable to Gibbs under Texas law because Gibbs’s claims are barred by limitations. Thus, the city argued, Gibbs’s claims do not fall within any TTCA waiver. Gibbs asserted the “inadvertent omission” exception which is based on excusable inadvertence or mistake. However, the exception was created when existing parties were inadvertently dropped from suit, then added back later. In this case, Gibbs joined as a party in the suit for the first time after limitations expired. Ordinarily, an amended pleading adding a new party does not relate back to the original pleading. Since Gibbs was not added until after the limitations expired, it was proper for the court to grant the city’s summary judgment.*

Economic Development/Contract Dispute: Town Park Ctr., LLC v. City of Sealy et al., No.01-19-00768-CV, 2021 WL 4994785 (Tex. App.—Houston [1st Dist.] Oct. 28, 2021). In this contract dispute, Town Park Center and the city executed a Chapter 380 Economic Development Agreement (“EDA”) to develop a commercial shopping center on Town Park Center’s property. Under the terms of the EDA, Town Park Center agreed to develop and construct the shopping center according to a development plan that the city had approved. The city in turn agreed to pay annual economic development grant payments (based on sales tax collections) as an incentive and sell storm water detention capacity to Town Park Center. 

Town Park Center nonsuited two suits prior to this third suit seeking mandamus, declaratory relief, injunctive relief, takings, ultra vires claims and claims under the “vested rights provision” of Local Government Code, Chapter 245. The city filed a plea to the jurisdiction and argued immunity as well as arguments similar to res judicata. The trial court granted the plea and Town Park Center appealed.

The court noted that res judicata is an affirmative defense and could not be raised in a plea to the jurisdiction. The court held the EDA constituted a contract for goods or services which can trigger a waiver of immunity. The EDA included a provision for Town Park Central to build and dedicate a road to the City as part of the development, which constituted a service.  Therefore, the trial court erred in granting the plea as to the breach of contract claim. However, as to the Chapter 245 vested rights claim, Town Park Center did not identify any city order, regulation, ordinance, rule, or other requirement in effect when its rights in the project vested that mandates the sale of the detention capacity at issue. With no change in order or rule, Chapter 245 was inapplicable. As to Town Park’s takings claim, the court found it failed to establish the city’s refusal to allow the purchase of detention capacity deprived them of the beneficial use of the property. As to the ultra vires claims, merely failing to comply with a contract does not give rise to an ultra vires claim.  While Town Park Central points to a city resolution allowing for detention capacity purchases, it does not mandate the sale of detention capacity. It instead only provides that the city may sell detention capacity, which is discretionary. As a result, the appellate court held that the ultra vires claims were properly dismissed. In short, the appellate court reversed the dismissal of the breach of contract claim, ultimately affirmed the dismissal of all other claims, and remanded for trial.*

Tort Claims Act: City of Arlington v. Ukpong, No. 02-21-00078-CV, 2021 WL 4783169 (Tex. App.—Fort Worth Oct. 14, 2021) (mem. op.). This is a Texas Tort Claims Act (“TTCA”) premise defect case in which the plaintiff sued the city for injuries she incurred when a dead hackberry tree next to a park’s trail she frequented fell on her. The city filed a plea to the jurisdiction and asserted a lack of waiver of immunity. The trial court denied the plea and the city appealed.

The TTCA provides that “if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property…”  Moreover, when property is open to the public for “recreation,” the Recreational Use Statute (“RUS”) further limits a governmental unit’s duty by classifying recreational users as akin to trespassers. Under the RUS, a landowner has no duty to warn or protect trespassers from obvious defects or conditions. A property owner “may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.” The city did not owe plaintiff a duty to protect her from obvious defects or conditions and generally did not owe a duty to warn or protect her from the dangers of natural conditions in the park, whether obvious or not. Plaintiff’s own pleadings asserted the dead tree was an obvious condition. However, even if the dead tree was not an obvious condition, it was a natural condition, and no duty to warn existed regardless. The appellate court reversed the denial of the city’s plea to the jurisdiction and dismissed the plaintiff’s claims.*

Face Coverings: Abbott v. City of San Antonio et al., No. 04-21-00342-CV, 2021 WL 5217636 (Tex. App. —San Antonio Nov. 10, 2021) (mem. op.).  This is an interlocutory appeal in which the court of appeals upheld the trial court’s order granting a temporary injunction.

In August 2021, the City of San Antonio and Bexar County filed a declaratory judgment suit against Governor Abbott, in his official capacity, alleging that by adopting certain portions of Executive Order GA-38, he acted ultra vires and outside the scope of the Texas Disaster Act (Chapter 418 of the Government Code), and alternatively, the Act violates the Texas Constitution.  The suit also included an application for a temporary injunction.  The trial court, after an evidentiary hearing, granted the temporary injunction, enjoining enforcement of portions of GA-38 that prohibit local governmental entities from requiring individuals to wear face coverings and setting the case for trial on its merits on December 13, 2021. The Governor filed an interlocutory appeal challenging the temporary injunction.

The court of appeals held that: (1) Section 418.016(a) does not provide the Governor with the authority to suspend statutes that concern local control over public health matters or to prohibit local restrictions on face coverings; and (2) the city and county have alleged sufficient facts that, if taken as true, would confer standing for their claim that the Governor acted ultra vires.

Retirement Fund: Emps.’ Ret. Fund of City of Dallas v. City of Dallas, No. 05-20-00494-CV, 2021 WL 5027759 (Tex. App.—Dallas Oct. 29, 2021). The city adopted an ordinance imposing term limits on the retirement fund’s (Fund) board members and the board members filed a lawsuit. Both parties filed cross-motions for summary judgment and the trial court granted the city’s motion. The Texas Trust Code governs the Fund and the Fund’s trust document requires any amendment, including to the board of directors, to be approved in an ordinance approved by the board, adopted by the city council, and approved by a majority of the voters at a general or special election. Because the city failed to comply with the trust document and imposed new requirements on the Fund board members, the appellate court reversed the trial court’s judgment in favor of the city, rendered judgment in favor of the Fund, declared the ordinance establishing term limits void and unenforceable, and remanded the case to the trial court to consider the issue of attorney’s fees.

Texas Tort Claims Act: City of Houston v. Crook, No. 06-21-00036-CV, 2021 WL 4804453 (Tex. App.—Texarkana Oct. 15, 2021) (mem. op.). Plaintiff sued the city alleging a premises defect and special defect. She alleged she suffered injuries when she was driving on a city street and a tire of her car got stuck in a partially uncovered manhole causing her car to spin out of control and hit a light pole. The city filed a motion for partial summary judgment, which the trial court denied and the city appealed. The appellate court found there was no support for plaintiff’s claims that a partially uncovered manhole or improperly sealed manhole constitutes a special defect. Therefore, the appellate court reversed the trial court’s order and remanded for further proceedings.

Face Coverings: In re Paris Indep. Sch. Dist. et al., No. 06-21-00103-CV, 2021 WL 5140152 (Tex. App.—Texarkana Nov. 5, 2021) (mem. op.). Governor Abbott issued Executive Order GA-38, which stated, “[n]o governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering . . . .” After the Executive Order was issued, the Paris Independent School District (PISD) issued a mask mandate and the state of Texas sued the school district. The trial court granted the state’s temporary restraining order and temporary injunction. PISD filed a writ of mandamus. The appellate court denied the writ of mandamus because PISD could appeal the temporary injunction, which means it had an adequate remedy by appeal and had not established it was entitled to the extraordinary relief of mandamus.

Governmental Immunity: Freeman v. City of Waxahachie, No. 10-19-00379-CV, 2021 WL 4898801 (Tex. App.—Waco Oct. 20, 2021). Sheree Freeman was injured when her foot slid into a curb opening and stormwater drainage inlet which were part of a roadway maintained by the city. She sued for damages alleging that the defective design and construction conditions posed an unreasonable danger and risk of serious injury and harm to roadway users and that the city was on notice of the dangerous conditions.

The city filed a plea to the jurisdiction asserting governmental immunity and lack of pre-suit notice, which the trial court granted. The Freemans appealed. While governmental entities are generally immune from suits seeking to impose tort liability, this immunity can be waived by the Texas Tort Claims Act (TTCA) when injuries are caused by a condition or use of tangible personal or real property such that the governmental entity, were it a private entity, would be liable. To perfect the waiver of immunity, a claimant must meet written notice requirements found in the TTCA along with any city-level notice requirements found in the city charter or ordinances. The City of Houston requires written notice of claims to be made within 60 days of the injury, and in this case, the Freemans failed to timely provide this notice. The Freemans argued that the 60-day notice requirement violates the Open Courts Clause of the Texas Constitution and is unconstitutional, and that Mrs. Freeman was so severely incapacitated by her injuries, compliance was impossible. The appellate court was unconvinced, and the appellants’ sole issue was overruled.

Charter Amendment: Hotze v. Turner, No. 14-19-00959-CV, 2021 WL 4738876 (Tex. App.—Houston [14th Dist.] Oct. 12, 2021). This dispute stems from two amendments to the Houston City Charter which prescribed certain limitations on the city’s revenue collection, both of which were approved at an election in 2004. In 2014, Hotze sued the city to enforce one of those amendments and declare the other unconstitutional. The trial court granted summary judgment in favor of the city and Hotze appealed. Hotze was challenging a “primacy clause” in one of the propositions which stated, “[i]f another proposition for a Charter amendment relating to limitations on increases in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective,” asserting that this clause violated state law and the Texas Constitution. After analyzing the propositions’ language and the city’s process of adopting the propositions, the court overruled Hotze’s statutory and constitutional challenges and affirmed the trial court’s summary judgment order.

Governmental Immunity: City of Houston v. Gantt, No. 14-20-00229-CV, 2021 WL 4783070 (Tex. App.—Houston [14th Dist.] Oct. 14, 2021) (mem. op.). Gantt sued the city alleging injuries after being struck by a patrol car driven by a Houston police officer. The city filed a plea to the jurisdiction claiming it was immune from suit due to Gantt’s failure to properly notify the city of the claim, but the trial court denied the plea. The city appealed.

The city can be subject to tort liability under the Texas Tort Claims Act (“TTCA”), but the TTCA contains notice requirements which must be followed. Alternatively, the TTCA’s notice requirements would have been satisfied if the city had actual notice that: (1) an injury had occurred; (2) to a particular individual; and (3) that was at least partially the city’s fault. Additionally, cities may by ordinance or charter put additional notice requirements in place, which the city had done. In this case, police reports and fire department transport records related to the crash were not sufficient to put the city on actual notice of a claim, and Gantt was unable to show that he had otherwise complied with the city’s or TTCA’s notice requirements. The appellate court reversed the trial court and dismissed the case for want of jurisdiction.

*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