Recent Texas Cases of Interest to Cities

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

Eminent Domain: Ball v. City of Pearland, No. 01-20-00039-CV, 2021 WL 4202179 (Tex. App.—Houston [1st Dist.] Sept. 16, 2021) (mem. op.). Appellants previously owned a 5.549-acre tract of land in Brazoria County that the City of Pearland acquired through eminent domain for construction and connection of public safety facilities and other related uses. The appellants subsequently sought a declaration that they had a right to repurchase the property. They argued that a statute enacted in 2003, which provides a limited right to repurchase property taken for public use, should apply retroactively to them. Appellants maintained that the failure to apply the later-enacted statute retroactively to their situation deprived them of due process under the United States and Texas Constitutions. The trial court rejected these arguments and granted the city’s motion to dismiss the case. Appellants appealed the trial court’s order. The court of appeals affirmed the trial court’s order, finding that the later-enacted statute did not apply retroactively and the appellants had no remaining interest in the surface estate of the land that was the subject of the initial condemnation case.

Eminent Domain: Castellanos v. Harris Cty. et al., No. 01-20-00414-CV, 2021 WL 4597109 (Tex. App.—Houston [1st Dist.] Oct. 7, 2021) (mem. op.). Harris County and the City of Baytown filed a petition in condemnation seeking to acquire from the appellants various easements over a 1.5-acre tract of land in Baytown to expand a road within the city. The trial court appointed special commissioners, who assessed the total amount of condemnation damages to be $103,912. The appellants objected to the award and appealed, arguing that: (1) the condemnation award was too low because it did not account for damage to the remainder of the property or the livability of the home after the condemnation, and it was, therefore, legally insufficient to support the judgment; and (2) the trial court erred by refusing their requested jury instruction regarding damage to the remainder. The appellants further claimed error in the court’s charge for not defining “damage to the remainder”. However, the court of appeals affirmed the trial court’s order because the appellants: (1) did not conclusively prove that the cost to cure damage to the remainder was $300,000, which exceeded the total property value as determined by their appraiser; and (2) waived their challenge to the jury charge at trial.

Civil Service: Arlington Prof’l Fire Fighters et al. v. City of Arlington, No. 02-19-00156-CV, 2021 WL 4205012 (Tex. App.—Fort Worth Sept. 16, 2021) (mem. op.). This complex appeal stems from appellants filing a petition alleging ten causes of action, including claims for perceived retaliation in cancelling certain types of discretionary pay previously paid to the firefighters and by failing to promote by denying promotions. Appellants claimed the city retaliated against them because they sought and obtained voter approval to implement the civil-service system provided in Chapter 143 of the Texas Local Government Code. The trial court granted each of the city’s motions for partial summary judgment and agreed that an association representing the firefighters lacked standing to assert retaliation claims on behalf of the firefighters. Appellants sought clarification of whether the trial court had ruled on their declaratory-judgment claim based on the new vacation-leave policy, and the city responded to this motion by asserting that its motions had addressed this cause of action. The trial court then entered a final judgment stating that appellants had withdrawn their motion for clarification and decreeing that appellants take nothing against the city. Appellants filed a notice of appeal and an amended notice of appeal.

The court of appeals concluded that most of the alleged causes of actions failed and that the trial court committed no error by granting summary judgment in favor of the city. However, the appellate court found that appellants had presented sufficient evidence to survive the city’s summary judgment motion for two of their retaliation claims, including claims that: (1) the city cancelled certain types of discretionary pay previously paid to the firefighters; and (2) the city failed to promote by denying promotions. The court of appeals reversed and remanded solely as to these two retaliation claims. With respect to the surviving retaliation claims, the court of appeals further held that the trial court erred when it held that the association representing the firefighters lacked standing to assert those claims.

Employment: City of Richland Hills v. Childress, No. 02-20-00334-CV, 2021 WL 4205013 (Tex. App.—Fort Worth Sept. 16, 2021) (mem. op.). Appellee, a former police chief of the City of Richland Hills, sued the city for age discrimination under the Texas Commission on Human Rights Act (TCHRA) after the city terminated her employment. In the accelerated appeal, the city complained that the trial court erred by denying its motion for summary judgment that asserted a plea to the jurisdiction and challenged appellee’s damages claim for lost wages. The court of appeals affirmed the trial court’s order because: (1) appellee provided sufficient evidence to raise a fact question on her age-discrimination claim; and (2) the city failed to show that evidence of compensable lost wages is a jurisdictional prerequisite to the suit.

Tort Claims Act: City of Henrietta v. Smithson, No. 02-20-00380-CV, 2021 WL 4472629 (Tex. App.—Fort Worth Sept. 30, 2021) (mem. op.). Appellee sued the City of Henrietta for property damage caused by sewage backup. Evidence in the record indicated that the sewer main running outside appellee’s house experienced a blockage several days before and again several days after the sewage entered the home. On both occasions, the city used a piece of motor-driven equipment called a jetter to clear the blockages. During this time, the city discovered that it needed to replace the clay pipes making up the main sewer line located under the street outside appellee’s home; the city replaced the pipes within days of the second blockage.

The city filed a plea to the jurisdiction asserting immunity from appellee’s claims, arguing that the immunity waiver relied on by appellee for property damage caused by the use of motor-driven equipment did not apply. The trial court denied the plea and the city appealed. The city argued that there was no nexus between the use of the jetter and the sewer backup that damaged appellee’s home and that the trial court, therefore, did not have jurisdiction. However, the court of appeals affirmed the trial court’s determination as the evidence within the record did not negate the existence of jurisdictional facts.

Inverse Condemnation: Jesus Life Ctr. v. City of Georgetown, No. 03-21-00236-CV, 2021 WL 4557219 (Tex. App.—Austin Oct. 6, 2021) (mem. op.). Appellant sued Atmos Energy Corporation and the City of Georgetown after appellant was forced to evacuate its premises for several months while Atmos took measures, with the city’s assistance, to vent dangerous levels of residual natural gas that had been trapped underground after Atmos’ repair of a gas leak. Appellant asserted a claim of inverse condemnation against the city and sought damages for its mortgage default and lost revenue allegedly caused by the forced closure of its facility. The city filed a plea to the jurisdiction, which the trial court granted, and appellant filed an interlocutory appeal of the trial court’s order. The court of appeals affirmed the trial court’s order. The appellate court agreed that appellant could not reasonably contend that it would not have suffered its alleged damages but for the city’s alleged actions of assisting with evacuations because even without the city’s actions, appellant would have had been unable to occupy the premises because of the dangerous condition. Appellant’s own pleadings negated proof of the element required for a takings claim that the city be a cause in fact of appellant’s alleged damages.

Removal: Wenger v. Flinn, No. 04-20-00236-CV, 2021 WL 4443705 (Tex. App.—San Antonio Sept. 29, 2021). Six citizens of the City of Castle Hills (“Relators”) sought judicial removal of Wenger and Gonzalez (“Appellants”) from their elected positions as city aldermen by filing a sworn petition pursuant to subchapter B of Chapter 21 of the Texas Local Government Code. Although Chapter 21 authorizes municipal residents to file a removal action, the action is conducted in the name of the State of Texas, and the district attorney represents the state. The district attorney did not enter an appearance in the removal action until it filed a notice of nonsuit. The Relators objected in writing to the notice of nonsuit, and Appellants responded to the objections by requesting damages and sanctions against Relators. The trial court overruled Relators’ objections and granted the district attorney’s nonsuit, dismissing the removal action without prejudice. Thereafter, Appellants requested damages pursuant to section 21.028 of the Local Government Code, sanctions, and a motion for a new trial. The trial court held a hearing on the pending motions but did not rule on them before the trial court’s plenary power expired, and the motions were denied by operation of law. Appellants appealed, and Relators cross-appealed.

The appellate court found that the trial court did not abuse its discretion by denying Appellants request for sanctions as Relators’ petition was filed in compliance with Chapter 21 because their petition alleged grounds of incompetence and misconduct and alleged specific supporting facts as to each ground in compliance with section 21.026. A dispute about the facts and the district attorney’s ultimate decision not to pursue the charges does not mean the petition was groundless when it was filed. Additionally, because the trial court merely granted the district attorney’s nonsuit and dismissed the removal action without prejudice, nothing in the court’s order and judgment settled or proved Appellants’ right to office. Accordingly, Appellants were not entitled to damages under section 21.028. The appellate court affirmed the trial court’s judgement and dismissed the cross-appeal.

Tort Claims Act: City of Dallas v. Ross, No. 05-21-00001-CV, 2021 WL 4304478 (Tex. App.—Dallas Sept. 22, 2021) (mem. op.). A City of Dallas police officer was responding to a 9-1-1 call about an officer needing assistance in an HOV lane on a freeway. The officer turned on his flashing lights and sirens while responding and got into an accident with the plaintiffs when he was entering the HOV lane. The trial court denied the city’s plea to the jurisdiction, which the city filed on the grounds that: (1) emergency response exceptions to the Texas Tort Claims Act applied; and (2) the officer had official immunity. On appeal, the appellate court found that the officer had official immunity because the officer used his discretion within the scope of his authority and in good faith when responding to the call. The appellate court reversed the trial court’s denial of the plea on the grounds that the officer had official immunity and didn’t reach the issue of the emergency response exceptions put forth by the city.

Tort Claims Act: Caldwell Cty. v. Genfan, No. 07-21-00087-CV, 2021 WL 4306215 (Tex. App.—Amarillo Sept. 22, 2021) (mem. op.). The plaintiffs filed a wrongful death lawsuit against the county alleging the county failed to adequately warn against flood waters covering a road that two individuals drove on and subsequently drowned when their vehicle was washed away. The trial court denied the county’s plea to the jurisdiction, which was based in part on the emergency response exception to the Texas Tort Claims Act and the actions the county took in closing the road. The appellate court rejected the plaintiffs’ arguments that the emergency response exception didn’t apply, including arguments that: (1) the county failed to provide evidence it was responding to an emergency; (2) the county had time to prepare for the situation and, therefore, it wasn’t an emergency; and (3) the county’s signs and barricades closing the roads didn’t comply with the Texas Manual on Uniform Traffic Control devices. The appellate court found the pleadings establish that the county was responding to an emergency, reversed the trial court, and granted the plea.

Retaliation: Flores v. Tex. Dep’t of Criminal Justice, No. 08-20-00050-CV, 2021 WL 4437506 (Tex. App.—El Paso Sept. 28, 2021).  This is an employment retaliation suit in which the appellate court affirmed the trial court’s judgement.

Flores, a former employee of the Texas Department of Criminal Justice (TDCJ), filed a discrimination and retaliation claim under the Texas Commission on Human Rights Act, alleging that she was terminated on the day she returned to work in 2013 from authorized leave under the Family and Medical Leave Act. TDCJ filed its initial plea to the jurisdiction in 2016 claiming sovereign immunity barred Flores’s claims because she was unable to establish a prima facie case of either her discrimination or retaliation claims under the burden-shifting scheme established in McDonnell Douglas Corp. v. Green. Following the trial court’s denial of TDCJ’s first plea to the jurisdiction, TDCJ sought interlocutory review by the appellate court, which: (1) reversed the trial court’s order as to Flores’ discrimination claim; (2) rendered judgment dismissing the discrimination claim; and (3) affirmed the trial court’s order with respect to the retaliation claim, finding Flores “presented sufficient evidence to raise a fact issue to whether she was constructively discharged.”

Upon return to the trial court, TDCJ filed a second plea to the jurisdiction accompanied by a motion for summary judgment approximately one year after the appellate court’s first opinion, urging updated case law and newly-discovered information defeats jurisdiction over Flores’s retaliation claim. In support of its plea and motion, TDCJ attached an affidavit from a former warden who worked with Flores.  Flores claims that the affidavit violates the sham-affidavit rule because it directly contradicts a previous affidavit from the same witness which Flores relied upon in opposing TDCJ’s initial plea.  Additionally, Flores relied upon the “law of the case” doctrine to support her position that because the appellate court previously determined issues of fact exist regarding her retaliation claim, TDCJ is precluded from re-litigating those same issues to the extent they are merely being rehashed in TDCJ’s second plea and motion for summary judgment.

The appellate court disagreed with Flores, and found that she failed to meet her burden of pleading a prima facie case of retaliation under the TCHRA.  Accordingly, the appellate court affirmed the judgement of the trial court.

Seized Property: City of Brady v. Scott, No. 08-20-00155-CV, 2021 WL 4237150 (Tex. App.—El Paso Sept. 29, 2021). [The court withdrew its opinion and judgement of August 16, 2021, and substitutes it with this opinion.]This is an interlocutory appeal under Chapter 47 of the Code of Criminal Procedure (Code) to determine ownership of seized property in which the court of appeals determined it did not have jurisdiction to hear the appeal.

This case began when police officers seized $11,450 from Scott when searching his home after an investigation for alleged fraud based on complaints that he was operating some form of scam.  Several years later, Scott filed suit, specifically under Article 47.01 of the Code, which allows for a specific hearing to determine the person with the superior right to possession of property. In his petition, he complained that although the police opened a case file in the matter and provided him with a receipt stating that it had taken $11,452 in cash from him, the police never returned the cash to him and criminal charges were never filed. The city filed a plea to the jurisdiction, asserting that the funds were not seized as part of a criminal investigation, but to determine their ownership. The city asserted it no longer had the funds as they were disposed of under Article 18.17 of the Code, which allows for disposing of funds when the owner is unknown. Under that article, the police placed an advertisement in the local City of Brady newspaper stating that it had cash in excess of $500 in its possession, and that anyone claiming the money had 90 days to contact them. After no one responded the department obtained an order from a Brady municipal court judge awarding the funds to the city. The city alleged that Scott only had 30 days to appeal or otherwise contest the municipal court’s disposition order, and that doing so was a “statutory prerequisite” to filing a Chapter 47 petition. The trial court denied the plea and in the same order it issued a final judgment granting Scott’s relief. The city filed an appeal only on the trial court’s interlocutory order denying its plea but did not appeal the final judgement.

Because the trial court’s interlocutory order denying the city’s plea to the jurisdiction was merged into the final judgment, and because the city did not properly perfect an appeal from that final order, the appellate court concluded that it lacked jurisdiction to hear the appeal. Additionally, the court overruled the city’s motion for rehearing and denied the city’s motion to amend the notice of appeal, finding that permitting an amended notice of appeal would be futile as there is no amendment to the notice of appeal that could meet requisite statutory requirements. Therefore, the city’s appeal was dismissed.*

Inverse Condemnation: City of Robinson v. Leuschner, No. 10-19-00278-CV, 2021 WL 4595736 (Tex. App.—Waco Oct. 6, 2021). The Leuschners own a home in the City of Robinson. In 2000, the city built a sewer lift station near their home and the Leuschners began complaining to the city of a foul odor coming from the lift station. In 2018, the Leuschners filed suit alleging damages due to the city’s creation of a permanent nuisance, constitutional takings, and negligence. The city filed a plea to the jurisdiction, which was denied by the trial court. For the court to have jurisdiction over a constitutional takings claim, there must be evidence of intent on the part of the city. Additionally, to sustain a nuisance or negligence claim, the Leuschners would need to assert waiver of governmental immunity. No evidence of intent was alleged or provided by the Leuschners to support the takings claim and no waiver of immunity was alleged to support the other claims. The court reversed the lower court’s action and dismissed the Leuschner’s case with prejudice.

Constitutional Takings: City of Robinson v. Rodriguez, No. 10-21-00075-CV, 2021 WL 4595743 (Tex. App.—Waco Oct. 6, 2021). The Rodriguezes owned a home in the city that suffered from sewer backups, and in 2019, they sued the city alleging a constitutional taking, seeking money damages and injunctive relief. The city filed a plea to the jurisdiction asserting governmental immunity, which was denied. The city appealed. While governmental immunity is waived for a valid takings claim, to make a valid claim, a claimant must show that the governmental actor took or damaged property for public use intentionally. A governmental entity acts intentionally if it: (1) knows that the specific act is causing identifiable harm; or (2) knows that the specific harm is substantially certain to result from authorized government action. Evidence of a governmental entity’s failure to avoid preventable damage may be evidence of negligence, but it is not necessarily evidence of the entity’s intent to damage the claimant’s property. In this case, the court reversed the trial court’s ruling and dismissed the plaintiffs’ takings claim, because the plaintiffs provided no evidence of an intentional act on the part of the city.

Governmental Immunity: Carl Owens, Jr. et al. v. City of Tyler, No. 12-21-00009-CV, 2021 WL 4617790 (Tex. App.—Tyler Oct. 6, 2021) (mem. op.). The plaintiffs in the underlying case are landholders on Lake Tyler, which is a man-made lake constructed by the city in 1946. The city controls the bottom of the lake, and the city allows lakeside landowners to build piers into the lake itself. After the city approved an application for the plaintiffs’ neighbor to construct a boathouse and pier, the plaintiffs sued the city and the other neighbor, requesting an injunction on the project, alleging that the pier and boathouse would devalue the plaintiffs’ property. The city filed a plea to the jurisdiction asserting governmental immunity. The trial court denied the plaintiffs’ motion for a temporary injunction as well as the city’s plea to the jurisdiction. Both parties filed appeals, which resulted in previous appellate court denials of the city’s plea and remand to the trial court for further proceedings. Defendants filed a traditional summary judgement motion, which was ultimately granted. Plaintiffs appealed that judgment, raising ten issues with regard to the evidence, procedures, and the various claims the plaintiffs had alleged. In a lengthy opinion, the appellate court disposed of all of plaintiffs’ issues on appeal and sustained the lower court’s granting of the motion for summary judgment, except as concerned the issues of cost apportionment for prior appellate litigation.

Tort Claims Act: City of Corpus Christi v. Martinez, No. 13-20-00527-CV, 2021 WL 4313109 (Tex. App.—Corpus Christi Sept. 23, 2021) (mem. op.). Mr. Martinez was struck by a city vehicle while walking in a crosswalk and he sued the city for damages. The city filed a plea to the jurisdiction, arguing that governmental immunity was not waived because the city employee driving the vehicle was taking an unpaid lunch at the time of the collision. The trial court denied the city’s plea, so the city appealed. The Texas Tort Claims Acts (TTCA) waives governmental immunity for personal injury caused by the negligent acts of governmental employees acting in the scope of their employment if the injury arises from the operation of a motor-driven vehicle. Even though the city’s evidence showed that the employee was going home to have lunch when the collision occurred, the court affirmed the trial court’s denial of the city’s plea because when viewed in the light most favorable to the non-moving party (here, the plaintiff), the evidence supported a waiver of governmental immunity under the TTCA.

*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