Recent Texas Cases of Interest to Cities

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

Elections: In re Hotze, No. 20-0739, 2020 WL 5919726 (Tex. Oct. 7, 2020). The relators filed a mandamus petition in the Texas Supreme Court at the end of September to prevent expanded early voting and the time to drop off mail-in ballots on the grounds that the Governor’s proclamation violated their due process rights and the Governor’s actions were unconstitutional. The Texas Supreme Court denied the petition because the relators were dilatory in pursuing their rights; they waited 10 weeks after the proclamation was issued to file their lawsuit. Additionally, at the time of the decision, the election had already started, and the United States Supreme Court has repeatedly warned against judicial interference in an election that is imminent or ongoing.

Elections: State v. Hollins, No. 20-0729, 2020 WL 5919729 (Tex. Oct. 7, 2020). The State of Texas sued the Harris County Clerk to prevent the Clerk from mailing out mail-in ballot applications to all registered voters in Harris County. The trial court and appellate court ruled in favor of the Clerk on the State’s preliminary injunction because those courts found the State would not be harmed. The Texas Supreme Court reversed and found that the State would be harmed because the Election Code does not allow for sending all voters mail-in ballot applications (meaning the Clerk would be acting ultra vires) and the State has an interest in maintaining the uniformity of its elections.

Takings Impact Assessments: Lamar Advantage Outdoor Co., L.P. v. Texas Dep’t of Transp., No. 02-19-00368-CV, 2020 WL 5666554 (Tex. App.—Fort Worth Sept. 24, 2020). The owner of a billboard filed suit seeking a declaratory judgment against Texas Department of Transportation (TxDOT) to void a highway construction project because TxDOT failed to prepare a Takings Impact Assessment pursuant to the Private Real Property Rights Preservation Act. The billboard owner claimed the project reduced its revenue because the project reduced the billboard’s visibility. The Second Court of Appeals affirmed the trial court’s grant of the plea to the jurisdiction. The court held the billboard owner lacked standing because it holds only a leasehold interest in a billboard located on real property where TxDOT’s project took neither the land on which the billboard sits nor the billboard itself.

Premises Liability: City of Dallas v. West, No. 05-19-01540-CV, 2020 WL 5834299 (Tex. App.—Dallas Oct. 1, 2020) (mem. op.).  West was injured after she tripped over a protruding metal bolt on the sidewalk. She sued the City of Dallas for premises liability. The city filed a plea to the jurisdiction asserting that the protrusion was not a special defect, that West was a licensee, and that the city did not have actual, prior knowledge of the condition. The trial court denied the plea. On appeal, the court reversed the trial court’s order finding that the protrusion was not a special defect and the duty the city owed to West was that of a licensee.

Employment Discrimination: City of Dallas v. Siaw-Afriyie, No. 05-19-00244-CV, 2020 WL 5834335 (Tex. App.—Dallas Oct. 1, 2020) (mem. op.) Siaw-Afriyie sued the City of Dallas alleging race discrimination, national origin discrimination, and retaliation after he was not selected for a senior manager position and his position was subsequently eliminated. The city filed a plea to the jurisdiction asserting that the city had a legitimate, non-discriminatory reason for not selecting Siaw-Afriyie for the position, and a non-discriminatory and non-retaliatory reason for eliminating his position, and that he had presented no evidence of pretext. The trial court denied the plea. On appeal, the court affirmed the trial court’s denial finding that Siaw-Afriyie had provided evidence that the city’s decision not hire him for the position and to subsequently eliminate his position was a pretext for discrimination and retaliation.

Employment Discrimination: Univ. of Texas Sw. Med. Ctr. v. Vitetta, No. 05-19-00105-CV, 2020 WL 5757393 (Tex. App.—Dallas Sept. 28, 2020) (mem. op.).  After the University of Texas Southwestern Medical Center cut her salary, lab space, and staff, and allegedly sabotaged her role as president of the faculty senate, Dr. Vitetta sued the university for age and sex discrimination and retaliation. The university filed a plea to the jurisdiction, which was denied by the trial court. On appeal, the court affirmed the trial court’s order denying the plea on Dr. Vitetta’s age discrimination and sex discrimination claims related to cuts to her salary and lab, and reversed the trial court’s decision related to retaliation.

Whistleblower: Hennsley v. Stevens, No. 07-18-00346-CV, 2020 WL 5949242 (Tex. App.—Amarillo Oct. 7, 2020). Chris Hennsley, a former police officer with the City of Lubbock, sued the city under the Texas Whistleblower Act. With regard to Hennsley’s claim that he was terminated from employment for reporting Police Chief Stevens’s alleged tampering with witnesses in a pending criminal trial, the court of appeals holds that Hennsley sufficiently alleges the first part of showing a waiver of immunity under the Whistleblower Act. However, Hennsley’s pleadings do not affirmatively show or negate his compliance with the prerequisites for suing (Government Code Sections 554.005 and 554.006 set out the timeframe within which an employee “must sue” the governmental entity; it depends on the timing of when the grievance/appeal process was initiated). Thus, the court of appeals vacates the district court’s judgment of dismissal, and remands this matter solely for the district court to determine whether Hennsley complied with Government Code Sections 554.005 and 554.006.

Annexation: Hill v. City of Fair Oaks Ranch, No. 07-19-00037-CV, 2020 WL 5552887 (Tex. App.—Amarillo Sept. 16, 2020) (mem. op). In this case, landowners challenge five involuntary annexations. The issue is whether the landowners have standing. While the landowners did not properly brief some arguments, they did properly allege the annexations exceeded the area allowed within a given year under Local Government Code Section 43.055. If proven, those allegations establish the city’s annexation ordinances are void, not merely voidable. As a result, the court of appeals reversed the grant of the city’s plea to the jurisdiction and remanded the case for trial.

Attorney’s Fees: Kirk v. City of Lubbock, No. 07-19-00069-CV, 2020 WL 5581352 (Tex. App.—Amarillo Sept. 17, 2020) (mem. op.). The Kirks, along with other plaintiffs, filed suit to enjoin the city from annexing their property. Initially, the district court granted a temporary restraining order (TRO) against the city, conditioned on plaintiffs posting an injunction bond. Six days after the bond was posted, the district court dissolved the TRO on the city’s motion. Thereafter, the city filed a motion for forfeiture of the bond and an award of attorney’s fees. Plaintiffs failed to appear or answer the motion. The district court ordered the bond to be forfeited and awarded attorney’s fees to the city. The Kirks raised five issues on appeal regarding the bond forfeiture hearing and award of attorney’s fee. The court of appeals overruled all five issues, and affirmed the judgment of the district court.

Tort Claim: City of El Paso v. Aguilar, No. 08-19-00262-CV, 2020 WL 5987623 (Tex. App.—El Paso Oct. 9, 2020). Aguilar was helping with a float in the December 2016 City of Lights Parade when she was hit by a vehicle/float. Aguilar filed suit alleging the city was negligent in failing to oversee and control parade traffic, and in instructing the driver of the float (Ortega) to move forward when it was unsafe to do so. She alleged that her injury arose from the operation or use of a motor vehicle and the use of tangible personal property. Aguilar also alleged that the city was liable for the conduct of the person who instructed Ortega to move forward, either by vicarious liability or respondeat superior, and that it was also directly liable for negligently training and supervising that person. The court of appeals affirms the order of the trial court insofar as it denies the city’s plea to the jurisdiction challenging Aguilar’s claim for negligence in instructing Ortega to move his vehicle when it was not safe to do so based on respondeat superior liability. The order is reversed insofar as it denies the city’s plea to the jurisdiction challenging Aguilar’s remaining claims. On remand, Aguilar is to be given an opportunity to replead those claims to allege sufficient jurisdictional facts, if such facts exist, in support of those claims.

Breach of Contract: Dowtech Specialty Contractors, Inc. v. City of Weinert, No. 11-18-00246-CV, 2020 WL 5740865 (Tex. App.—Eastland Sept. 25, 2020) (mem. op.). In this case, Dowtech sued the city for breach of contract and sought to recover both the contract balance and charges for additional work to the city’s water system. The trial court awarded Dowtech $2,052.50 for certain work, but held Dowtech did not complete all work required by the contract so was not entitled to the contract price. It also denied the request for attorney’s fees and interest. The court of appeals affirmed the trial court judgment holding, in part, that attorney’s fees for breach of contract under Local Government Code Section 271.153 are valid only if equitable and just.

Subdivision Platting: City of San Benito v. Cameron Cty. Drainage Dist. No. 3, No. 13-19-00194-CV (Tex. App.—Corpus Christi Sept. 24, 2020). In this case, plaintiffs sought to require the city to re-instate a process by which the city would approve a plat only if it has received prior approval from overlapping drainage and irrigation districts (each of which have their own platting rules). The city filed a plea to the jurisdiction in the trial court, which rejected the plea. The court of appeals reversed the trial court’s denial, but remanded for further consideration. The underlying issue is whether the city may “negate and require non-compliance with the rules and regulations” of the districts, and that the city’s actions have placed subdividers in the position of either bypassing/failing to follow the districts’ rules regarding plats, or having the city refuse to approve a proposed plat.

Elections: State v. Hollins, No. 14-20-00627-CV, 2020 WL 5584127 (Tex. App.—Houston [14th Dist.] Sept. 18, 2020).  In this case, the Harris County Clerk proposed sending an application for a mail-in ballot to every registered voter in the county. The attorney general challenged the proposal, and both the trial court and court of appeals denied his request for an injunction.  [Note:  The attorney general immediately appealed the decision to the Texas Supreme Court, which issued a temporary injunction on October 7. The Supreme Court concluded that “the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerk’s doing so results in irreparable injury to the State. We grant the State’s petition for review, reverse the court of appeals’ judgment, and remand the case to the trial court for entry of a temporary injunction prohibiting the Harris County Clerk from mass-mailing unsolicited ballot applications to voters.”]

*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