Recent Texas Cases of Interest to Cities

Note:  Included cases are from September 11, 2015 through October 10, 2015.

Whistleblower Act:  Office of the Attorney General v. Weatherspoon, No. 14-5082, 2015 WL 5458683 (Tex. Sept. 18, 2015) (per curiam).  This case is similar to Texas Dep’t of Human Svs. v. Okoli, 440 S.W.3d 611 (Tex. 2014) in which the Supreme Court of Texas held that a complaint of alleged violations of law to a supervisor with no law enforcement authority was not sufficient under the Texas Whistleblower Act (Act).  Weatherspoon, an employee at the Office of the Attorney General (AG), reported alleged law violations of two senior AG attorneys to her managing attorney as required by the AG personnel policy.  The managing attorney was required to report such allegations to the AG’s Office of Special Investigations pursuant to the same policy.  The managing attorney accepted her report and told Weatherspoon not to discuss the matter with anyone else.  Weatherspoon did discuss the matter with others.  She alleges she was terminated because of her reports and she sued the AG under the Act.  The Supreme Court of Texas held that reporting this to her supervisor was not sufficient to meet the report to a law enforcement authority requirement in the Act.  The court also held that, while some attorneys at the AG’s office have law enforcement authority, this did not turn the entire AG’s office into an appropriate law enforcement authority.

Governmental Immunity—Tort:  Lawson v. City of Diboll, No. 15-0037, 2015 WL 5458763 (Tex. Sept. 18, 2015) (per curiam).  This trip and fall case involves the Texas Tort Claims Act and the Supreme Court of Texas’ recent decision in University of Tex. v. Williams, 459 S.W.3d 48 (Tex. 2015) that the recreational use statute does not apply to spectators at sporting events.  The person injured in this case was injured in the parking lot of the city’s sports complex while leaving a baseball game at which she was a spectator.  She sued the city for her injuries.  The city raised the recreational use statute at the trial court and the court of appeals, and the court of appeals held that the recreational use statute applied, lowering the standard of care of the city. The Texas Supreme Court reversed, holding, as it did in Williams, that spectating at a sporting event is not a “recreational use” under Chapter 75 of the Texas Civil Practices and Remedies Code.

Red Light Cameras:  Weiderman v. City of Arlington, No. 02-15-00120-CV, 2015 WL 5461516 (Tex. App.—Fort Worth Sept. 17, 2015) (mem. op.).  The City of Arlington had red light cameras in place and contracted with American Traffic Solutions to provide the red light cameras. The citizens of Arlington filed a petition to ban the red light cameras pursuant to the city’s charter. Once the petition was verified, the city council voted to have an election on the issue of the red light cameras.  The issue in this case is whether the issue of red light cameras can be voted on by the citizens or is an issue over which the city council has total discretion under state law.  Before the case arrived at the Fort Worth Court of Appeals, the election had occurred and the voters of Arlington voted to ban red light cameras in the city through its charter.  The question became whether Weiderman, as a city resident, had standing to challenge the election procedures.  The court of appeals held that Weiderman did not have standing because he could show no distinct injury related to the removal of the red light cameras and voter or resident status alone is not enough for standing.

Civil Service: Brown v. Nero, No. 03-14-00231-CV, 2015 WL 5666172 (Tex. App.―Austin Sept. 22, 2015).  This is a civil service case where the threshold question is whether an officer’s termination was disciplinary in nature or the result of her inability to perform the job. Brown was an officer with the City of Georgetown, which has adopted civil service protection for law enforcement. A former boyfriend, Eric Poteet, filed a complaint against Brown alleging she took his prescription medications and used illegal controlled substances. Poteet freely admitted the complaint was made with vengeance in mind. After an investigation, Police Chief Nero determined Brown had used controlled substances illegally and been untruthful when questioned. She was indefinitely suspended and appealed to a hearing examiner. The hearing examiner reduced her suspension to 15 days. Prior to the hearing examiner’s determination, the county and district attorney informed the chief they would not accept cases in which Brown was an investigating officer. As a result, the city again indefinitely suspended her. She attempted to appeal, but the civil service commission informed her that she was ineligible. The commission asserted her termination was not disciplinary in nature, but an inability to perform the job requirements. Brown filed suit and the city filed a plea to the jurisdiction. The trial court granted the plea and Brown appealed. The Third Court of Appeals held that the record does not demonstrate the termination was based on Brown’s qualifications. The evidence showed that the prosecutors’ decision not to accept Brown’s cases was based on Chief Nero’s accusations of untruthfulness, which the hearing examiner found to be groundless. And instead of abiding by the hearing examiner’s award, which was “final and binding on all parties” under Texas Local Government Code Section 143.057(c), “Chief Nero allowed the unilateral decision of elected officials to circumvent the protections of the Civil Service Act.” However, because Brown has not exhausted all of her administrative remedies the trial court does not have jurisdiction to order reinstatement with back pay and benefits.  Her appeal on the second termination must be submitted to the civil service commission as a disciplinary termination.*

Tort Claims Act: City of San Antonio v. Peralta, No. 04–15–00254–CV, 2015 WL 5438910 (Tex. App.―San Antonio Sept. 16, 2015).  Osvaldo Peralta rode his bicycle to work along the San Antonio River Walk when his bicycle crashed into a sanitary and storm sewer drainage facility. Peralta was thrown off of his bicycle and suffered injuries. He sued the City of San Antonio and San Antonio River Authority (SARA) for damages. Peralta alleged that the city’s immunity was waived under the premises defect and special defect liability provisions of the Texas Torts Claims Act. The city, though, argued that the recreational use statute applied.

Peralta argued that he was bicycling to commute to work, not for recreation, so the recreational use statute did not apply. The court recognized that Peralta’s subjective intent with respect to the activity does not control. Instead, the activity he was engaging in when he was injured is what controls. Since he was bicycling when he was injured, the court concluded he was engaged in recreation and the recreational uses statute applied. Because the recreational use statute applied, the city owed a duty to Peralta to not injure him by gross negligence. The court concluded that Peralta alleged facts showing the city’s gross negligence. Thus, the burden shifted to the city. Because the city failed to meet its summary judgment standard of proof, the trial court properly denied the city’s pleas.

Zoning: City of Dallas v. East Village Assoc., No. 05–14–01406–CV, 2015 WL 5836980 (Tex. App.―Dallas Oct. 7, 2015).  The court withdrew its July 21, 2015, opinion in this case and substituted this opinion. This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case challenging the validity of a city zoning change via ordinance. The city changed its zoning in a particular location to allow for the construction of a Sam’s Club store. The Dallas Development Code allows a variety of retail uses in Mixed Use 3 Districts as a matter of right, but “big box” stores are only allowed with a special use permit (SUP), which carries its own requirements for issuance. Contending that they were surprised and upset by the news that a Sam’s Club store was coming to their neighborhood, property owners near East Village formed an association to challenge the sufficiency of the notice given of the proposed change in zoning. The city filed a plea to the jurisdiction, which was denied.

The court first determined that the association has standing to bring suit. The city argued the association did not have standing because it does not own property within 200 feet of East Village.  The court held that while the association does not own property within 200 feet of the zoning change, at least one of its members does, objected to the zoning, and would be adversely impacted. Next, for jurisdictional purposes, immunity is waived under the Declaratory Judgment Act if a party challenges the validity of an ordinance.  Unlike a Texas Tort Claims Act case where jurisdiction is intertwined with the merits, declaratory judgment actions are not interconnected with the underlying claim. Because lack of sufficient notice is a basis upon which the ordinance would be void, the association has pleaded a claim.  When an ordinance is challenged for lack of sufficient notice as to the scope of the change in zoning, the issue of sufficiency of the notice is not a jurisdictional question, but rather a question as to the merits. Further, the association presented competing evidence of the sufficiency so a fact question exists anyway. Finally, the association brings ultra vires claims seeking to enjoin the city and its officials from issuing a building permit or certification of occupancy for any building that does not comply with the pre-ordinance zoning on East Village. The court concluded that the association failed to establish the existence of facts to invoke a waiver of the city’s immunity to maintain an action for injunctive relief. Therefore, the court affirmed the trial court’s order denying the city’s plea to the jurisdiction and remanded for further proceedings.

Governmental Immunity: Hale v. City of Bonham, No. 06–15–00021–CV, 2015 WL 5577681 (Tex. App.―Texarkana Sept. 23, 2015).  Sidney Hale leased a hangar from the City of Bonham. After a large ice storm, the hangar’s roof collapsed and caused damage to Hale’s property. Hale sent a demand letter to the city requesting damages. After receiving the letter, the city filed a suit for declaratory judgment requesting a finding that Hale’s claims were barred by governmental immunity. Hale filed counterclaims against the city. The city filed a motion for summary judgment that was granted by the trial court, and based on the motions for summary judgment, the trial court entered an order of dismissal of the suit. Hale appealed.

The court noted that operation and maintenance of an airport is among the list of governmental functions in the Texas Tort Claims Act (TTCA). The court then concluded that Hale’s lawsuit for property damages alleged neither (1) that his damage resulted from the negligent operation or use of a motor-driven vehicle or piece of equipment nor (2) that it was a suit to recover damages for personal injury or death. Thus, the TTCA does not waive governmental immunity for Hale’s claims.

The court also concluded that Hale’s claims do not fall under the contract waiver provisions of Local Government Code Chapter 271. Since Hale did not show that by virtue of the lease agreement he was obligated to perform any service for the city or that he was to provide any goods, the immunity waiver of Chapter 271 does not apply. Thus, the court affirmed the trial court’s dismissal of the case.

Breach of Contract:  J.R.’s Landscaping & Sprinkler Sys., Inc. v. City of Crosbyton, No. 07-14-00019-CV, 2015 WL 5560002 (Tex. App.—Amarillo Sept. 21, 2015) (mem. op.).  J.R.’s Landscaping and Sprinkler Systems, Inc. (J.R.’s) was hired by the city to construct some sidewalks, curbs, and related facilities.  The city was dissatisfied with the work and disagreed with the engineer (“owner’s representative”) that the work was substantially complete.  The city never formally accepted the work or paid the final amount owed on the contract.   J.R.’s brought suit against the city alleging breach of construction contract.  The city brought a counterclaim asserting failure to perform.  Each sought damages.  The trial court awarded the city its damages for the cost of completion of the project.  J.R.’s appealed.

J.R.’s argues that acceptance of the project by the owner’s representative was conclusive and binding on the city. The court rejected this as the only reading of the contract, pointing out that one portion of the contract provides that final payment was to be made “[a]fter final inspection and acceptance by the Owner.”  And another section of the contract indicates that the owner’s representative will recommend action to the owner.  J.R.’s also argues that there is no evidence that it materially breached the contract and relies on the evidence that the owner’s representative concluded the work was substantially complete.  Having rejected the assertion that the owner’s representative had final and binding authority over the quality of the work, the issue is overruled.  The trial court’s judgment for the city is affirmed.

Tort Claims Act: Riddle v. City of Abilene, No. 11-14-00146-CV (Tex. App.—Eastland Oct. 1, 2015). This is a premise defect/Texas Tort Claims Act (TTCA) case where the Eastland Court of Appeals affirmed the granting of a plea to the jurisdiction for the city.

Riddle worked for the recreational league operated by the Abilene Slowpitch Softball Association.  While working for the association, Riddle was at Nelson Park which is owned by the city.  She went to turn off a score booth light and stepped on the plywood floor in the booth which collapsed. She sued the city for a premise defect.  The city filed a plea to the jurisdiction which the trial court granted.  Riddle appealed.

Riddle presented the affidavit of a carpenter as an expert who opined the score booth floor was improperly constructed. The joists underneath the floor were too far apart and since no weather stripping had been installed, the floor had been soaked by various rains. Riddle presented affidavits from other people stating the city had stored equipment under the booth so would have seen the spacing of the joists and the leaking from the rains. The city presented evidence that it neither designed nor constructed the booth or flooring. No one at the city was aware the floors had developed or posed problems and no prior incidents had been reported. The city performs maintenance on an “as-needed” basis at the parks and had no prior knowledge of defects. Under the premise defect waiver of immunity in the TTCA, the city is only liable if it had actual knowledge of a dangerous defect. This requires the city to know that the dangerous condition existed at the time of the accident and not merely of the possibility that a dangerous condition could develop over time. “A plaintiff cannot establish an owner’s actual knowledge by piling inference upon inference.” Riddle did not present any evidence that someone had made the city aware that the flooring was rotten or improperly constructed.  All she presented was the possibility of a danger and an argument the city should have known it was there. That is insufficient. The plea was properly 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