Recent Texas Cases of Interest to Cities

Note: Included cases are from September 1, 2023, through September 30, 2023. 

Tort Claims Act: Ferebee v. Law Office of Frank Powell, No. 01-22-00681-CV, 2023 WL 5918110 (Tex. App.—Houston [1st Dist.] Sept. 12, 2023) (mem. op. on re’hg.). Powell filed a motion for rehearing after the appellate court issued an opinion on his case against the City of Shenandoah for slander. Among other things, Powell alleged that Ferebee, the city attorney, made defamatory statements about him at a city council meeting.  Ferebee filed a motion to dismiss under the Texas Tort Claims Act (TTCA), arguing that because Powell’s pleadings affirmatively demonstrated that Ferebee was acting within the scope of his employment and the lawsuit could have been brought against the city, Ferebee was entitled to dismissal of the claims against him under the TTCA’s election-of-remedies provision.  

The appellate court reversed the trial court, holding that Powell’s pleadings affirmatively demonstrated that the city officials, including Ferebee, who were defendants in the original suit were acting within the scope of their employment by making the statements during and after a city council meeting. Powell requested rehearing and the appellate court granted it. On rehearing, the appellate court reversed the trial court, again holding that Powell’s pleadings had affirmatively demonstrated that Ferebee was acting within the scope of his employment at the time he made the allegedly defamatory statement.   

Public Information Act: Johnson v. Bastrop Cent. Appraisal Dist., No. 07-23-00173-CV, 2023 WL 6389411 (Tex. App.—Amarillo Sept. 29, 2023) (mem. op.). Johnson requested records from the appraisal district. The appraisal district either failed to provide the information or notify Johnson it was requesting an attorney general opinion and Johnson filed a writ of mandamus, which the trial court denied. The appellate court withdrew its opinion from August 2023 and substituted this one.  

In affirming the trial court’s denial of the plaintiff’s petition for writ of mandamus, the appellate court found that: (1) the plaintiff failed to establish that he requested “public information” from the appraisal district and instead, he requested specific answers to general inquiries; and (2) even accepting the factual allegations in the plaintiff’s petition as true, the petition did not present a justiciable controversy between the parties. 

Delinquent Tax Collection: Rodriguez v. City of El Paso, No. 08-23-00004-CV, 2023 WL 6319337 (Tex. App.—El Paso Sept. 28, 2023) (mem. op.). The City of El Paso sued Eldon and Maria Rodriguez in October 2020 for unpaid property taxes from 2018 and 2019 and any other year taxes that became overdue during the case’s duration. In September 2021, while the city’s case was still pending, the defendants initiated a separate lawsuit to contest the valuation of their property by the El Paso Central Appraisal District for 2020 and 2021. This move halted the city’s ongoing tax collection case. The city intervened in the defendants’ valuation case, challenging the court’s right to hear it. The court sided with the city and dismissed the defendants’ valuation challenge. In July 2022, the city resumed its tax delinquency case, now including taxes from 2020 and 2021 which had also become overdue. The defendants argued that they had paid the 2018 and 2019 taxes and that their property was uninhabitable and worthless in 2020 and 2021. They provided a partial payment receipt and other supporting documents. While the city conceded the receipt of payment, they clarified that the provided check bounced due to insufficient funds. Ultimately, the trial court granted the city’s motion for summary judgment, ordering payment of unpaid taxes for 2018-2021 and authorizing the seizure of the property to cover the debt. 

Defendants appealed the trial court’s ruling, asserting that the city and county appraisal district wrongly denied their 2018 and 2019 tax payments and raised issues related to tax notifications and property valuation, claiming genuine material fact issues that should prevent a summary judgment in the city’s favor. Reviewing the record, the appellate court held that the city stated a prima facie case for a suit to collect delinquent taxes, which shifted the burden to the defendants to show that they have paid all taxes, penalties, and interest that would be due or that there is another defense. The defendants raised five issues against the city, including payment, lack of notice, overvaluation of the property, and two claims related to rejected protests. The court rejected each of defendants’ arguments in turn and affirmed the trial court’s judgment. 

Employment: Moliere v. City of Buffalo, No. 10-22-00391-CV, 2023 WL 6307992 (Tex. App.—Waco Sept. 28, 2023). Gregory Moliere, a City of Buffalo Police Department police officer, violated city policy when he engaged in a high-speed chase with a civilian ride-along in his police vehicle.  Subsequently, the Chief of Police issued Moliere a written reprimand, which was placed in his personnel file.  Moliere did not appeal the reprimand, and the police chief, in an affidavit, considered the disciplinary action resolved. A few weeks later, the city council voted to terminate Moliere’s employment as a police officer with the city.  

Moliere filed suit against the city and the mayor, seeking declarations that the city council lacked authority as a Type A general-law municipality to terminate his employment and that the termination of his employment violated the city’s policies. The city and the mayor filed a joint plea to the jurisdiction and motion for summary judgment, asserting governmental immunity under the Uniform Declaratory Judgements Act and that the city had the authority to terminate Moliere’s employment. The trial court granted the plea.  Moliere appealed. 

The court of appeals reversed and remanded, concluding that a fact issue exists regarding the authority of the city council to terminate Moliere’s employment as a police officer under Section 341.001(a) of the Local Government Code and the city employee manual.  

Mediation Procedure: In re City of McAllen, No. 13-23-00370-CV, 2023 WL 6065087 (Tex. App.—Corpus Christi–Edinburg Sept. 18, 2023). The trial court ordered the mayor and a councilmember of the City of McAllen to personally attend mediation in an ongoing inverse condemnation suit. The city appealed the order. The appellate court reversed, holding that while the trial court does have the authority to require parties to send representatives with full authority to settle the case, it does not have the authority to choose which representatives a party must attend.