Recent Texas Cases of Interest to Cities

Note: Included cases are from October 11, 2022 through November 10, 2022.

Mask Mandates: Abbott v. Cnty. of Fort Bend, No. 01-21-00453-CV, 2022 WL 7180371 (Tex. App.—Houston [1st Dist.] Oct. 13, 2022.) Fort Bend County sued Governor Greg Abbott to enjoin enforcement of executive order GA-38, which provided that no governmental entity could mandate the wearing of face masks. The trial court denied Abbott’s plea to the jurisdiction and granted a temporary injunction against enforcement of GA-38. Abbott appealed the denial of his plea to the jurisdiction, claiming sovereign immunity to suit, that the county had no standing to sue, and that the trial court lacked statutory authority to enjoin the governor. Abbott also appealed the temporary injunction, arguing that the trial court had abused its discretion.

The appellate court upheld the trial court’s denial of Abbott’s plea to the jurisdiction, holding that: (1) the county had alleged ultra vires acts by the governor; (2) the county had alleged a concrete injury caused by GA-38 and therefore had standing to sue; and (3) the trial court did have the authority to enjoin an executive order of the governor. Additionally, the appellate court upheld the temporary injunction, holding that (1) the county was able to show that it had a probably right of recovery because the Texas Disaster Act does not grant the governor preemptive power, the county does not act merely as the governor’s agent in disaster mitigation, and the governor’s power to suspend statutes does not leave the county without a statutory basis to act; and (2) the county doctor’s testimony about the rise in COVID-19 rates and the efficacy of mask mandates was enough to show that the county would suffer irreparable harm in the absence of the temporary injunction.

Criminal Law: Felts v. State, No. 01-21-00545-CR, 2022 WL 14989706 (Tex. App.—Houston [1st Dist.] Oct. 27, 2022.) Felts pleaded no contest to misdemeanor theft of property in the Pearland Municipal Court, a court of record, and the court assessed a fine of $200. The court deferred the imposition of the fine pending Felts’s successful completion of the agreed terms of the deferral, and the court subsequently revoked Felts’s deferred disposition and imposed the fine. On appeal, the county court at law affirmed the trial court’s imposition of the fine, and Felts appealed to the First Court of Appeals.

The appellate court overruled Felts’ 12 points of error and affirmed the county court’s affirmance of the trial court. The appellate court held the following:

  • The court of appeals had jurisdiction over Felts’s appeal from the county court’s review of the trial court’s disposition of the case;
  • The failure of the trial court to create a court reporter’s record was not a denial of Felts’s due process rights because Felts never requested a court reporter;
  • The absence of a record made it impossible for Felts to make the required showing to support his ineffective assistance of counsel claim;
  • Because it was an adjudication of guilt after deferred disposition, Felts was not entitled to the same notice to which a defendant is entitled for revocation of community supervision or deferred adjudication community supervision;
  • The absence of a record made it impossible for Felts to support his claim of legal insufficiency of the evidence;
  • Felts was not harmed by the court’s action in holding the show-cause hearing before the expiration of the deferral period;
  • Felts could not challenge the condition of his deferred disposition agreement that provided that he could not be charged with any criminal offense during the deferral period because he had voluntarily entered into the agreement; and
  • Felts had waived his point of error that the trial court had abused its discretion by failing to raise it in his motion for new trial in the trial court.

Tort Claims Act: City of Houston v. Martha Vogel and Maria Escalante, No. 01-22-00071-CV, 2022 WL 16756378 (Tex. App.—Houston [1st Dist.] Nov. 8, 2022.) (mem. op.). Vogel and Escalante sued the City of Houston for injuries they received when their truck collided with an ambulance driven by an EMT employed by the city.

The city filed a motion for summary judgment, asserting that because the EMT driving the vehicle was responding to an emergency call, governmental immunity was not waived by the TTCA. The trial court denied the motion and the city appealed.

The appellate court reversed and rendered judgment for the city, holding that because the EMT was proceeding through an intersection with emergency lights and sirens activated in response to an emergency call when the collision occurred, the claim fell within the emergency-response exception to the TTCA’s waiver of governmental immunity, so the trial court lacked subject matter jurisdiction over the claims.

Tort Claims Act: City of Gainesville v. Sharp, No. 02-22-00061-CV, 2022 WL 11456903 (Tex. App.—Fort Worth Oct. 20, 2022) (mem. op.). This is an interlocutory appeal of a trial court’s order denying the City of Gainesville’s plea to the jurisdiction on Sharp’s premises liability claim.

Sharp sued the city for injuries she sustained on the Gainesville airport tarmac. Sharp and her instructor pilot landed their plane at the Gainesville airport to purchase fuel for the plane. Sharp deplaned onto the tarmac with a dog and began walking toward a grassy area where she allegedly tripped on an unmarked tie-down protruding from a depression in the ground. She fell sustaining serious and disabling injuries requiring surgical intervention.

Sharp brought a premises defect claim against the city under the Texas Tort Claims Act (TTCA). The city then filed a plea to the jurisdiction asserting it was immune from suit because Sharp was a licensee, not an invitee, and as a licensee she was unable to prove that the city had actual knowledge of an unreasonably dangerous condition. Sharp argued that by landing at the airport for the sole purpose of purchasing fuel, she paid for the use of the airport and was therefore an invitee. Sharp also argued that regardless of whether she was an invitee or a licensee, the overwhelming evidence established fact issues as to the challenged elements of her TTCA claim, which required the trial court to deny the city’s plea. The trial court denied the city’s plea, and the city appealed.

The appellate court held that because Sharp did not pay for the use of the premises, she was not an invitee. However, the court affirmed the trial court’s ruling finding that Sharp has shown that there is a disputed material fact regarding whether the condition was unreasonably dangerous.

Removal of Official: King v. Goodwin, No. 03-21-00293-CV, 2022 WL 7727906 (Tex. App.—Austin Oct. 14, 2022) (mem. op.). Bill Goodwin, a councilmember of the city of Bee Cave, sued the city and its officials after the council unanimously voted to remove him from office for violating city charter provisions. Goodwin brought an ultra vires claim, among other claims, arguing city officials failed to comply with the city’s charter which did not grant authority to remove him from office. The city then filed a plea to the jurisdiction asserting governmental immunity. After Goodwin’s replacement, Courtney Huhl, was sworn in, the city amended its plea to reassert their governmental immunity claim and to argue that because a replacement had been sworn in, a quo warranto action was the only proper action available to Goodwin. In addition, the city filed a motion to dismiss under the Texas Tort Claims Act (TTCA) and a plea to res judicata after a previous suit had been resolved in which Goodwin sued Huhl to try title to his council seat. After a hearing on the city’s plea, the district court, declining to address Goodwin’s constitutional claims, rendered a final judgment in his favor and enjoined the city’s officials from preventing him from serving out the remainder of his city council term until May 12, 2022. Following the ruling, the city filed an interlocutory appeal. Goodwin subsequently filed a motion to dismiss the city’s appeal for want of appellate jurisdiction and to expedite, to which the city filed a motion to dismiss the cause as moot. Reasoning that because Goodwin’s city council term had expired and no exception to mootness applied, the appellate court vacated the district court’s final judgment and dismissed the case for want of jurisdiction.

Condemnation: City of Pflugerville v. 735 Henna, LLC, No. 03-21-00374-CV, 2022 WL 16841702 (Tex. App.—Austin Nov. 10, 2022) (mem. op.). The city of Pflugerville sought to condemn a portion of property owned by 735 Henna, LLC (Henna) for roadway improvements under Property Code § 21.012, at which time the court appointed special commissioners to determine the value of the land the city was seeking to condemn. After the commissioners valued the property at $365,000, the city objected to the award as excessive and requested the case be set for trial. During this time, Henna subdivided the land which included the tract the city was seeking to condemn. As a result, the city sued Henna pursuant to Local Government Code § 212.018, seeking damages for the cost of condemning the tract it was seeking to condemn. The city and Henna subsequently came to a Rule 11 Agreement through mediation in which they agreed that all claims and controversies were settled and agreed settlement for the property at issue was $360,000. After the settlement was signed by the court in the first lawsuit, the city filed a motion for summary judgment in the court in the second lawsuit. The city argued that it was entitled to the full $360,000 settlement amount as well as attorneys fees and costs, as a matter of law, for having to institute condemnation proceedings rather than receiving a dedication of a right of way it would have been entitled to if Henna had not illegally subdivided the property. Henna subsequently filed a motion for summary judgment arguing the city forfeited its claim for damages in the second lawsuit after signing the Rule 11 Agreement. The trial court granted Henna’s motion for summary judgment concluding the city released its claims brought in the second lawsuit, and the city appealed.

Affirming the trial court, the appellate court agreed that the Rule 11 Agreement released “any and all claims between the parties regarding the condemnation matter.”  Although the Agreement did not specifically refer to the second lawsuit, the Texas Supreme Court has previously indicated that a claim does not need to be specifically enumerated to fall within the scope of a release. As a result, the Agreement between the city and Henna included the city’s claims in the second lawsuit.

Solid Waste Permitting: Post Oak Clean Green, Inc. v. Guadalupe Cnty. Groundwater Conservation Dist., No. 04-21-00087-CV, 2022 WL 6815191 (Tex. App.—San Antonio Oct. 12, 2022) (mem. op.). Post Oak applied for a solid waste permit from the Texas Commission on Environmental Quality and the conservation district opposed it, arguing that the permit violates a conservation district’s rule because the landfill would be over an aquifer recharge zone. The conservation district sued Post Oak and TCEQ. Post Oak and TCEQ filed pleas to the jurisdiction, which the trial court denied.

The appellate court reversed, finding that the District’s Uniform Declaratory Judgment Act claim is barred by the “redundant remedies” doctrine. The UDJA claim would provide the same remedy as the administrative appeal challenging TCEQ grant of the permit. The appellate court dismissed the conservation districts UDJA lawsuit.

Tort Claims Act: Morales v. Wilson Cnty., No. 04-21-00338-CV, 2022 WL 14656817 (Tex. App.—San Antonio Oct. 26, 2022) (mem. op.). The plaintiff was in an accident with a county employee. The plaintiff sent a letter to the Texas Association of Counties as the insurer and the county notifying them of the accident within the time period required by the Texas Tort Claims Act. The county filed a plea, arguing it did not have notice because it had no record of receiving the letter, which the trial court granted. The appellate court reversed, finding that the county had actual knowledge through imputed knowledge to its liability carrier because the liability carrier had a duty to investigate and contact the county regarding the claim.

Public Health: Blue Window Cap., LLC v. City of Dallas, No. 05-22-00042-CV, 2022 WL 9765467 (Tex. App.—Dallas Oct. 17, 2022) (mem. op.). The city of Dallas sued Blue Window Capital, LLC (Blue Window) after issuing public health and safety ordinance violations at three properties owned by Blue Window. After Blue Window failed to make necessary repairs in compliance with city ordinances, the city sought temporary and permanent injunctions, civil penalties, and requested that the court appoint a receiver to take control of the properties. After appointing a court representative to assist Blue Window in remedying the infractions and ordering Blue Window to deposit funds into an escrow account to fund the required materials and repairs, Blue Window failed to comply with the court’s orders. The court then granted the city’s motion for supplemental receivership authority, appointing a receiver under Chapter 64 of the Texas Civil Practice and Remedies Code and Local Government Code § 214.003. In its order, the court determined the receiver was necessary because “Blue Window (1) failed to abate Dallas City Code violations, (2) failed to implement reasonable security measures on the properties, (3) violated the court’s orders of November 20, 2020, February 3, 2021, May 3, 2021, and June 30, 2021, and (4) lacked sufficient funds to operate the property legally.” Blue Window subsequently filed a motion to set aside the order, but it was later denied. Blue Window appealed arguing the court abused its discretion by appointing a receiver based on reports of crime at the properties. Rejecting this claim, the appellate court concluded that an increase in crime was not the reason for appointing a receiver. Rather, the trial court’s ruling was based on Blue Window’s failure over three years to comply with court orders, pay for repairs, complete necessary maintenance, and to install security cameras. As a result, the appellate court affirmed the trial court’s order appointing a receiver for the properties.

Public Information Act:Groba v. City of Galena Park, No. 05-21-00305-CV, 2022 WL 16549068 (Tex. App.—Dallas Oct. 31, 2022) (mem. op.). After Mark Groba was denied a building permit and failed to receive a response after submitting a public information request for all relevant city ordinances, Groba sought a writ of mandamus compelling the city to issue his building permit and to make all city ordinances available to the public. In response, the city filed a no-evidence motion for summary judgment, which the trial court granted and Groba later appealed. Because he failed to show his permit application complied with all the relevant laws and building codes, the appellate court upheld the grant of summary judgment as to his claim challenging the city’s denial of his permit. However, the appellate court reversed the grant of summary judgment as to his claim for mandamus relief under the Texas Public Information Act (TPIA) after concluding Groba raised a genuine issue of material fact as to whether the city violated the TPIA. The court determined the city: (1) failed to show that having ordinances on “” excuses a city’s duties to respond under the TPIA and whether the website was reliable; and (2) could have but never requested clarification or responded under Government Code § 552.222(b) to Groba’s second request through his attorneys.

Nuisance: City of El Paso v. Varela, No. 08-21-00116-CV, 2022 WL 14485863 (Tex. App.—El Paso Oct. 25, 2022). Luis Varela owned a property in El Paso that had been damaged by fire. The City of El Paso through its Building and Standards Commission held a hearing, finding the structure to be a dangerous structure that constituted a health hazard, and ordering the building to be secured and remediated by Mr. Varela. This Demolition Order also ordered demolition of the structure by the city if the other requirements were not met. Ultimately, Mr. Varela failed to remediate the structure according to the order, and the city notified him of its intent to demolish the structure. Mr. Varela filed suit to enjoin the demolition, among other things, and the trial court issued a temporary restraining order (“TRO”). The city responded with a plea to the jurisdiction and a motion to dissolve the TRO. The trial court denied the city’s plea, issued a TRO, ordered the city to issue a building permit to allow remediation to begin, and set a trial date. The city appealed. As a threshold issue in its appeal, the city argued that Mr. Vela failed to demonstrate that the trial court had jurisdiction over the case at all, because he failed to appeal the Demolition Order within 30 days, as required by Texas statute. Without timely appealing the underlying order, Mr. Vela’s present suit was an unpermitted collateral attack on the Demolition Order, which he failed to directly appeal. Ultimately, the appellate court ruled that the trial court had no jurisdiction over the case and reversed the trial court’s order.

Annexation: City of Patton Vill. v. Concerned Citizens Against Wrongful Annexation by Patton Vill., No. 09-21-00368-CV, 2022 WL 16640620 (Tex. App.—Beaumont Nov. 3, 2022.) (mem. op.). Concerned Citizens, a coalition of property owners, sued the City of Patton Village challenging the validity of two ordinances annexing territory that included the property they now own, one from 1992 and one from 2004. Concerned Citizens argued that the ordinances were void and that the city’s imposition of taxes and fees on the property constituted a constitutional and statutory taking. The city filed a plea to the jurisdiction which the trial court denied, and the city filed an interlocutory appeal.

The appellate court reversed the denial of the city’s plea to the jurisdiction and rendered judgment dismissing the case. The court held that the ordinances were not void because the law does not require the territory annexed to be described by metes and bounds and that the evidence showed that, contrary to Concerned Citizens’ claim, the described boundaries of the annexed territory formed a closure. Because the ordinances were not void, Concerned Citizens’ claims were barred by various applicable statutes of limitation. Further, the jurisdictional evidence showed that Concerned Citizens failed to establish that the legislature waived the city’s immunity on their takings claim. Finally, because none of the plaintiffs owned their property at the time the ordinances were passed, they all lacked standing to sue.

Residency: In re Guillotte, No. 10-22-00331-CV, 2022 WL 10893236 (Tex. App.—Waco Oct. 18, 2022) (mem. op.). This is a petition for writ of mandamus related to a residency issue.

Guillotte filed an application for a place on the ballot for trustee of the Coolidge Independent School District (“CISD”) located in Limestone County. The secretary of the CISD board declared him ineligible to be on the ballot, asserting that he was not a resident of the CISD geographic boundaries based on testimony he had provided under oath at another public entity’s meeting that he was a resident of Tarrant County and a public document indicating he had filed a homestead exemption for a property located in Tarrant County. Guillotte countered by providing a printout from the Texas Secretary of State voter registration website, which showed his address in Coolidge and that he is registered to vote in Limestone County, Texas. 

The appellate court concluded that the public records that secretary referenced did not conclusively establish Guillotte’s ineligibility as a candidate for the CISD Board of Trustees. Accordingly, the writ was granted, and the secretary ordered to certify Guillotte’s name as a candidate in the general election.

Elections: In re Cnty. of Hidalgo, No. 13-22-00510-CV, 2022 WL 14787073 (Tex. App.—Corpus Christi–Edinburg Oct. 26, 2022.) The City of Penitas filed suit against the County of Hidalgo to stop the county from proceeding with early voting without opening the Penitas Public Library as a polling location. At an ex parte hearing, the trial court granted a temporary restraining order that ordered the county to add the public library as a polling location. The county appealed, arguing that the cause was moot and that the restraining order was deficient.

The appellate court overruled the trial court, holding that (1) because the statutory deadlines for adding a polling place had passed before the city sought relief, the case was moot; and (2) the restraining order was deficient because the trial court did not explain why it was issued without notice to the county and did not adequately explain its conclusion that the city would suffer irreparable harm without the temporary restraining order. 

Nuisance: Gaddi v. City of Tex. City, No. 14-20-00655-CV, 2022 WL 11551168 (Tex. App.—Houston [14th Dist.] Oct. 20, 2022). Mr. and Ms. Gaddi owned a commercial building in Texas City that was in need of repairs. The city started abatement proceedings, and ultimately Mr. Gaddi entered an agreed order in municipal court giving the Gaddis 180 days to make needed repairs. After 180 days, the city could demolish the building if the Gaddis failed to make the agreed repairs. Ms. Gaddi was not a party to the municipal court case. Ultimately, the Gaddis failed to make the repairs agreed by Mr. Gaddi within 180 days, and when Ms. Gaddi learned that the city was planning to demolish the building, she filed the present suit. She argued that while the municipal court order could be effective against Mr. Gaddi, judgment was never taken against her ownership interest in the building. She made state constitutional due process, equal protection, and takings claims, and raised issues related to impossibility of performance due to city inaction on permits as well as violations of the city’s COVID-19 emergency order. The city filed a plea to the jurisdiction, including arguments that Ms. Gaddi had failed to timely appeal the court order, res judicata, and governmental immunity. The trial court granted the city’s plea, and Ms. Gaddi appealed. Because Ms. Gaddi was not a party to the municipal court’s agreed order, her suit collaterally attacking that order did not require her to appeal that order. Additionally, res judicata is a defense rather than a basis for a plea to the jurisdiction, and the city failed to properly plead and argue a res judicata defense. Finally, the appellate court determined that the city failed to properly plead governmental immunity with regard to all Ms. Gaddi’s claims and appeared to have abandoned the immunity arguments altogether in the appellate filings. Ultimately, the appellate court reversed the trial court’s order and remanded the case for further proceedings.

Texas Tort Claims Act: City of Houston v. Junior, No. 14-21-00128-CV, 2022 WL 15522096 (Tex. App.—Houston [14th Dist.] Oct. 27, 2022) (mem. op.). Jimmie Lee Jones, Jr. sued the City of Houston after a vehicle he was driving was struck by a vehicle being driven by Sergeant Kim of the Houston Police Department. Sergeant Kim was planning to initiate a traffic stop on another vehicle when he drove through a red light and struck Jones’s car. In response to Jones’s suit, the city filed a motion for summary judgment arguing that Sergeant Kim was entitled to official immunity. The trial court denied the city’s motion, and the city appealed. A government employee is entitled to official immunity for their good faith performance of discretionary duties within the scope of the employee’s authority. The city failed to conclusively establish that Sergeant Kim acted in good faith given that he was focused on the car ahead of him, did not look at the traffic light as he entered the intersection, failed to activate his sirens or lights, and did not brake or slow down as he entered the intersection; therefore, the appellate court affirmed the trial court’s denial of the city’s motion for summary judgment.

Sexually Oriented Businesses: 5826 Interests, Ltd. v. City of Houston, No. 14-21-00682-CV, 2022 WL 16645503 (Tex. App.—Houston [14th Dist.] Nov. 3, 2022) (mem. op.). 5826 Interests, Ltd. operated an unpermitted sexually oriented business (“Bunny’s”) at a 6213 Richmond Avenue in Houston, Texas. The city received a large number of complaints of criminal activity around the Bunny’s location. After investigating Bunny’s, the city filed suit seeking a declaration that no one could receive a permit to operate a sexually oriented business at that location due to its proximity to schools and churches. The city also sought a temporary restraining order against the owners from operating any business at this location. The trial court issued the TRO, and the owners appealed. The appellate court held that the trial court did not abuse its discretion when issuing the TRO and affirmed the lower court’s ruling.

Tort Claims Act: City of Houston v. Gilbert, et al., No. 14-21-00604-CV, 2022 WL 16842193 (Tex. App.—Houston [14th Dist.] Nov. 10, 2022). Two children suffered electrocution injuries while participating in a little league softball practice at a City of Houston (Houston) park. The incident was witnessed at close range by several bystanders. The representatives of the children and the bystanders sued Houston for personal injuries based on negligence and premises liability. Houston filed a plea to the jurisdiction arguing that Houston should be protected from suit by governmental immunity because (1) the claimants were licensees rather than invitees, (2) Houston had no actual knowledge of the dangerous conditions at the park, and (3) the claimants failed to establish gross negligence. The trial court denied Houston’s plea, and Houston appealed. While a city is generally immune from suit when performing a governmental function, the Texas Tort Claims Act (TTCA) waives this immunity under certain circumstances. In a premises liability case, the TTCA waives immunity for a city as to personal injury if the city would have been liable for the injury if it were a private person. After analyzing the facts, the court determined that a fact question remained as to whether the children were invitees on the property, but the court determined that that one bystander was a licensee. Licensees must show that the city (1) had actual knowledge of the dangerous situation and (2) acted with gross negligence to prevail on a premises liability claim. Because the license-bystander failed to allege facts supporting gross negligence, their claims were dismissed. With regard to the children, the trial court’s denial of Houston’s plea was upheld by the appellate court, and the case was remanded to the trial court for further proceedings to determine whether the children are invitees.