Recent Texas Cases of Interest to Cities

Note: Included cases are from July 11, 2014 through August 10, 2014.

Governmental Immunity: Escobar v. Harris Cnty., No 01-12-00391-CV, 2014 WL 3765830 (Tex. App.—Houston [1st Dist.] July 31, 2014). Escobar was killed by a peace officer and the questions are: (1) whether the officer used excessive force; and (2) whether the officer is protected by qualified immunity. The plaintiff (Escobar’s mother) argued that the officer is liable under the Tort Claims Act for negligently using his weapon when shooting Escobar. The court of appeals held that shooting someone is legally an intentional act and does not present a claim under the Tort Claims Act. The plaintiff also made a claim of excessive force but the officer argued that he was protected by qualified immunity. The court of appeals held that there was sufficient evidence to raise a fact question as to whether Escobar appeared to reach for a weapon or not before he was shot by the officer. The court of appeals sent the case back to the trial court for the determination of this fact question which determines whether: (1) the officer used excessive force; and (2) the officer is protected by qualified immunity. The plaintiff argued that the county should be held liable for having a policy that allows unreasonable uses of force pointing to the disciplinary review committee’s decision in this case that the officer was justified in his use of force. The court of appeals held that the committee’s decision not to discipline the officer was not enough to show an “unwritten policy of allowing officers to use deadly force whenever they feel their safety is threatened.” The court of appeals also overruled Escobar’s claim that the officer was inadequately trained or supervised, basing its holding on the county’s evidence that the officer had met the state’s peace officer training requirements. The county was fully dismissed but a fact issue remained as to the claim against the officer for excessive force and the possible protection of qualified immunity.

Public Information Act: City of El Paso v. Abbott, No. 03–13–00820–CV, 2014 WL 3805660 (Tex. App.―Austin Aug. 1, 2014). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Public Information Act (PIA) case. The information request sought messages between council members which occurred on private email accounts. The original request and suit were before the legislature changed the law making such information very clearly public. The city originally filed suit under the PIA to withhold documents from disclosure. Allala intervened with a writ of mandamus to compel disclosure. After the legislature changed the law, the city complied with full disclosure and dismissed its claims; however, Allala continued to pursue the mandamus. The city filed a plea to the jurisdiction, which the attorney general did not oppose but Allala did, asserting that since it complied in full, the trial court lacked jurisdiction to issue a mandamus.

After two hearings on the subject, the trial court denied the plea and the city appealed. Allala asserted that she should be permitted to depose individuals, including council members, to ascertain whether the city fully complied with the PIA request. Allala objected to the affidavits of the city attesting to the city performing a diligent search for records and turning over all responsive information found. The court went through the detailed affidavits of what the city did in order to comply and held “the City’s jurisdictional evidence established that the City searched extensively for responsive documents, officially requested responsive documents from the individuals named in the request, and then ultimately produced to Allala all the documents that it had been able to locate.”   Allala did not produce evidence to counter the city’s assertion it had complied in full. The court then held that Texas Government Code Section 552.321(a), which grants requestors the right to file mandamus actions, requires that the city “refuse” to follow the PIA by expressing a positive unwillingness to comply. The city’s evidence established it was not “refusing” to comply.

Allala’s arguments deal with a situation where the city, even though making reasonable efforts to comply, may have not discovered a possible responsive document. The PIA does not authorize requestors to sue in such a situation. Additionally, the court held that its review of the PIA “reveals no methods by which the City could compel the disclosure of public-information emails located on private email accounts” other than requesting the information from the private email holders. Additionally, the court addressed Allala’s arguments under the state’s record retention laws noting that all records, regardless of location, are public and belong to the city. However, while Texas Local Government Code Section 202.005 provides the city a method to force someone wrongfully withholding its records by petitioning the district court, the city would not have the ability to do so within the “short turnaround time demanded by the PIA.”  To force the city to utilize that provision would “result in the expansion of the PIA’s specific waiver of sovereign immunity by grafting a discretionary Local Government Code provision that does not waive, or even concern, sovereign immunity.” The court held “[w]e are not authorized or willing to do this.” As a result, the trial court was without jurisdiction to hear Allala’s mandamus claims and the plea should have been granted.*

Civil Service: Jenkins v. City of Cedar Park, No. 03–13–00215–CV, 2014 WL 3732932 (Tex. App.―Austin July 24, 2014) (mem. op.). This is a Chapter 143 civil service appeal from an indefinite suspension of a fire fighter where the Austin Court of Appeals affirmed the city’s plea to the jurisdiction. Jenkins was employed as a fire fighter with the Cedar Park Fire Department. He received a charge for driving while intoxicated and the fire chief indefinitely suspended him.  Jenkins appealed to a hearing examiner who upheld the suspension. Jenkins sued in district court, but the city filed a plea to the jurisdiction arguing Jenkins’ assertions were not that the examiner exceeded his jurisdiction but that he disagreed with the result. The trial court granted the plea, and Jenkins appealed.

The hearing examiner found Jenkins violated Texas Local Government Code Section 143.051 but not any department local rule.  Jenkins argued that section does not provide any grounds for removal or suspension of a fire fighter but merely sets the parameters for the rules that a local commission may adopt.  The question for the court was whether a fire fighter could be suspended for violating Section 143.051 or whether he could only be suspended for violating a local rule adopted under that section. The court held Jenkins’ distinction is form over substance and that Section 143.051 is a “civil service rule,” which can be the basis for discipline, even if no local rule adopts it or is found to be violated by the hearing examiner. The court examined the policy considerations and “absurd results” Jenkins’ reading would create and provided examples. The court found it important to note that the notice letter to Jenkins specifically listed Section 143.051, and Jenkins did not argue he was unaware he was being charged with that as a violation.*

Condemnation: City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951-CV, 2014 WL 3587403 (Tex. App.―Dallas July 22, 2014) (mem. op.). This condemnation case involves an appeal, as well as a writ of mandamus. In both proceedings, the City of Dallas challenges the trial court’s dismissal for want of prosecution in its eminent domain proceeding against Highway 205 Farms. The City of Dallas filed a statement in the county court at law in 2011 seeking to condemn a portion of Highway 205 Farms’ property for a pipeline project. Two years later, a commissioners’ hearing had still not been scheduled, so appellees filed a motion in the county court to dismiss the case for want of prosecution. The city responded that the case was still in the administrative stage of a condemnation proceeding, so the trial court lacked jurisdiction to dismiss the case. The trial court granted appellees’ motion, and the City of Dallas appealed.

The Dallas Court of Appeals noted that the judicial phase of the two-part procedure for an eminent domain action begins only after a party files an objection to the commissioners’ award with the trial court. Furthermore, without a timely filed objection to the commissioners’ award, an eminent domain proceeding never becomes a civil case, and the trial court does not gain jurisdiction. The court concluded that the trial court’s dismissal was not authorized by the condemnation statute and interfered with the commissioners’ ability to set the time and place of their hearing. In addition, mandamus relief was appropriate because the trial court abused its discretion by entering a void order.

Bill of Review: Green v. City of Dallas, No. 05-13-01037-CV, 2014 WL 3587464 (Tex. App.―Dallas July 21, 2014) (mem. op.). In this appeal from a summary judgment, Robert and Marilyn Green (the Greens) challenged a default judgment rendered against them and in favor of the City of Dallas. The Greens owned two apartment buildings in Dallas. The buildings were not in compliance with city code provisions, and the city ordered the Greens to make repairs. When the Greens failed to make the necessary repairs, the city filed a lien against one of the properties. The Greens conveyed the property to another owner, subject to the city’s lien and order requiring repairs. When that owner defaulted on the note, the Greens purchased the property at a trustee’s sale. A year later, the Greens again sold the property, and in the warranty deed, the new owners agreed to assume and pay all indebtedness against the property. The new owner filed for bankruptcy, and the property was surrendered for value to the creditors. During this time, the City of Dallas sued the new owner in state district court for city code violations. Once the new owner surrendered the property in the bankruptcy proceedings, the city amended its petition to add the Greens as defendants.

The Greens did not file an answer to the city’s amended petition, so the City of Dallas moved for a default judgment against them. The Greens did not appear at the hearing on the city’s motion for default judgment. Thus, the court rendered a default judgment against the Greens. The Greens then filed this petition for bill of review asserting: (1) that they had a meritorious defense because they did not own the properties and the city did not allege it complied with the statutory notice provisions; (2) that they were prevented from filing an answer in the lawsuit when there was still time to file an answer because of their attorney’s negligent advice (Note: The Greens sued their attorney for malpractice); and (3) their failure to answer the lawsuit was not due to their own negligence or fault because they relied on their attorney’s negligent advice.

The city filed motions for summary judgment, which the trial court granted. The Dallas Court of Appeals rejected the Greens assertions noting that the Greens failed to present any argument or show evidence that they were prevented from defending the lawsuit by the city’s fraud, accident, or wrongful act, or that their failure to defend the lawsuit was unmixed with any fault or negligence of their own. Thus, the court affirmed the trial court’s judgment.

Open Meetings: Baker v. City of Farmers Branch, No. 05–13–01174–CV, 2014 WL 3513367 (Tex. App.―Dallas July 15, 2014) (mem. op.). This Texas Open Meetings Act (TOMA) case stems from an executive session agenda item regarding pending litigation. The City of Farmers Branch was involved in a Voting Rights Act lawsuit. While the Voting Rights Act case was pending, the city provided notice that its council would discuss the case in a closed executive session. Specifically, the agenda provided:

J.1 TMP-0171 Consultation with City Attorney regarding pending litigation – Texas Government Code Section 551.071:
. . .
(b) Discuss pending litigation relating to Fabela, et. al v. City of Farmers Branch, et. al.[sic], Civil Action No. 3:10-CV-1425-D in the US Dist Ct. for the Northern District of Texas (Dallas Division).

During the meeting, the council went into closed session, as indicated on the agenda. When the council returned to open session, the council voted to approve a settlement in the Fabela lawsuit. The council voted to dismiss the pending appeal and pay the plaintiffs in the case $240,000.

After learning of the settlement, Mark Baker filed a lawsuit against the City of Farmers Branch alleging that the meeting notice was insufficient under the TOMA. The trial court, however, concluded that the notice was sufficient, and Baker then appealed arguing: (1) the city’s notice of the meeting did not comply with the TOMA; and (2) the council agreed to settle a lawsuit in secret and “merely rubberstamped” the settlement in the open meeting.

The court noted that the written notice of a meeting must “specifically disclose the subjects to be considered” and alert the reader “to the topic for discussion.” It is not necessary, though, to “state all of the consequences which may flow from consideration of the topic” or to divulge specific litigation strategy. The court concluded that Farmers Branch’s notice was specific and alerted the public to the specific lawsuit that would be discussed in the closed session. The court went on to point out three key components of the notice, which led to the conclusion that it was specific enough. The agenda item:

  • included the section of the TOMA giving the council authority to go into closed session;
  • stated that it would discuss “pending litigation” related to the Fabela lawsuit; and
  • identified the lawsuit by name, case number, and court in which the lawsuit was pending.

The court also concluded that Baker failed to cite any evidence showing that the council knew about, discussed, or voted on the settlement agreement prior to the meeting. Additionally, the court stated that the “Open Meetings Act does not prohibit the council members from expressing in a closed session how they intend to vote when they go back into open session.” Thus, the court affirmed the trial court’s judgment in favor of the City of Farmers Branch.

Governmental Immunity-Contract: City of El Paso v. High Ridge Constr., Inc., No. 08-13-00187-CV, 2014 WL 3765932 (Tex. App.—El Paso July 31, 2014). This is a contractual immunity case involving payments made by the city to a vendor providing services to private residential properties as part of a community development grant program. The city entered into a contract with High Ridge Construction, Inc. (High Ridge) to deliver energy assessment and weatherization services as part of a grant received by the city. When the city refused to pay for certain materials and services that exceeded the contractual cap of $600,000, High Ridge filed suit asserting claims for breach of contract, takings, and equitable estoppel.

The city asserts that it has immunity from suit for breach of contract because High Ridge has not provided goods or services to the city. The court begins by explaining the current split among the appellate courts regarding whether the governmental-proprietary dichotomy applies to breach of contract claims. Without clearly indicating its current position on the issue, the court begins with a presumption that the city is immune and works to determine whether immunity is waived under Local Government Code Section 271.152. The court agrees the city was not the direct beneficiary of the weatherization services (the city was just acting as a conduit of federal funds and the services were provided to private residential properties). However, the contract with High Ridge contains warranty and indemnity provisions and the court determines that those operate as a benefit to the city such that the contract does contemplate the provision of services directly to the city. Because High Ridge’s pleadings failed to state a waiver of immunity under Section 271.152, the appellate court reverses the trial court’s order denying the plea to the jurisdiction as it applies to High Ridge’s breach of contract claim and remands the case to give High Ridge the chance to replead.

The city also argues it has immunity from High Ridge’s breach of contract claims because the claims are based on purported unwritten, unexecuted amendments to the contract. The court concludes that this is really an argument that the contract claim will fail on the merits and does not deprive the trial court of jurisdiction.

The city asserts that it has immunity from suit for the takings claim because High Ridge failed to allege that the city intended to exercise its eminent domain powers to take its private property. The court concludes that High Ridge’s pleadings show that it voluntarily provided the property and services pursuant to the contract and the city has withheld payment under a contractual dispute. Thus, the pleadings do not show the city had the requisite intent to take the property and the court reverses the trial court’s order denying the plea to the jurisdiction as to this claim.

The city argues its immunity from suit for the equitable estoppels claim has not been waived because High Ridge’s pleadings do not support application of the limited “justice requires” exception. (A city may be estopped when justice requires its application and there is no interference with its governmental functions.) The court concludes that “the [c]ity does not cite and we have not found any cases holding that a plaintiff must establish the justice requires exception in these circumstances” so the trial court’s order is affirmed in this regard.

Annexation: Hall v. City of Bryan, No. 10-12-00248-CV, 2014 WL 3724069 (Tex. App.—Waco July 24, 2014) (mem. op.). This is an annexation dispute and the third time Hall sued for disannexation. The Tenth Court of Appeals affirmed in part and reversed in part the trial court’s grant of the city’s plea to the jurisdiction.

It is important to note up front this is not a challenge to the city’s ability to annex (which is typical for annexation challenges) but a challenge for the lack of providing services under an annexation service plan, which is authorized by statute. In 1999, the city unilaterally annexed property owned by Hall as part of a larger annexation plan. Hall’s first suit challenged the city’s ability to annex the property but was dismissed upon the city’s summary judgment motion and affirmed by the Tenth Court of Appeals. Her second suit challenged the city’s ability to provide services under the plan and alleged a lack of services. The city filed a plea to the jurisdiction and summary judgment which were granted and affirmed.

In the current suit, Hall asserts the city failed to provide services “in good faith” consistent with the Local Government Code. The city filed a plea to the jurisdiction which was granted and Hall appealed. Hall’s claims center around Texas Local Government Code Section 43.141(b), which states in part that a registered voter can bring suit for disannexation after several years if the “municipality failed to perform its obligations in accordance with the service plan or failed to perform in good faith.” The appeallate court held that the city’s arguments of res judicata, collateral estoppel and statute of limitations cannot be raised in a plea to the jurisdiction as they are affirmative defenses, so all of the city’s arguments centered on those defenses are not considered in this appeal. The court next held that Hall’s complaints about the adequacy of the service plan and that the plan should have provided for additional services are not claims she has standing to pursue as those relate to the annexation process, which can only be challenge via a quo warranto suit by the state. The court explained that Hall’s arguments of failing to perform “in good faith” are not separate from providing services under the service plan and not an independent basis for challenge. The statute can only mean the failure to perform under the service plan in good faith, not other good faith challenges to other parts of the annexation statute. Further, since the service plan did not provide for water or sewer services paid for by the city, Hall cannot challenge the adequacy of providing a service not in the plan. However, the plan does specifically state the city would provide police protection with routine preventative patrols. Hall alleges the police presence in the area is far less than those in the rest of the city. And while this issue was addressed in her prior suits, a plea to the jurisdiction is not the proper place to raise prior rulings on the issue. Hall properly alleges a cause of action for failing to provide sufficient police protection and the city must go back to the trial court to establish whether that issue is barred by res judicata. As a result, the court affirmed in part and reversed in part the trial court’s judgment and remanded.*

Governmental Immunity: Texas Music Library & Research Ctr. v. Texas Dep’t of Transp., No. 13-13-00600-CV, 2014 WL 3802992 (Tex. App.—Corpus Christi July 31, 2014) (mem. op.). This is mainly an agency dispute over the providing of grants. However, the important piece for local governments to get out of this opinion relates to the arguments an individual cannot sue to control governmental body functions through declaratory judgment or injunction.

Texas Department of Transportation (TxDOT) approved a project from the Texas Music Library and Research Center (Library) for funding to build a music history museum consistent with legislative directives. After the Library expended funds as part of preparing the project, TxDOT changed its mind and advised it intended to divert the funds elsewhere. The Library sued under a variety of claims, but mainly sought to stop TxDOT’s divergence of funds and to force it to change its allocations. TxDOT filed a plea to the jurisdiction which was granted and the Library appealed.

The Thirteenth Court of Appeals first held that the Library’s claims under the Administrative Procedures Act allow it to challenge a rule of the agency; however, that is not what it is doing in this case. The Library is challenging a decision to divert funds or do away with a project which has not been finally approved. As such, issuing an opinion on TxDOT’s rules does not resolve their dispute and therefore they lack standing to bring such a challenge. This claim is “one involving a government officer’s action or inaction.” To succeed under its declaratory judgment claims the Library must establish TxDOT’s executive director “acted without legal authority or failed to perform a purely ministerial act.” Even assuming the Library’s assertions were true—that TxDOT’s director has no authority to withhold funds—it would not establish that TxDOT’s executive director has an obligation to make federal funds available to the Library. The relief requested by the Library would not resolve the actual controversy between the parties because it would not establish whether the Library has a statutory or constitutional entitlement to payment.  Further, nothing in the record shows TxDOT received the federal funds. The alleged duty not to divert federal funds away from the Library’s project is not actual, but rather, hypothetical and contingent and not proper for declaratory relief. The Library has no right to receive federal funds or recoup “sunk costs that were voluntarily incurred in pursuit of governmental funding.” The fact the Library voluntarily prepared the proposal, spent funds on it, and submitted “trade secret” information to TxDOT in order to obtain the funding does not entitle it to any due process or taking claims. Finally, TxDOT’s director has no ministerial duty to fund the project so no mandamus action is proper. The court held that, in its view, the “real substance” of the Library’s suit “is an attempt to control state action by seeking to establish the existence and validity of a contract between TxDOT and the FHWA for the Library’s project, enforce performance thereunder, and thereby impose liability on the state.” No waiver of immunity exists. In a single paragraph the court also notes that to the extent TxDOT made inducing representations, there is no waiver of immunity by conduct.*

Tort Claims Act: Bernhard v. City of Aransas Pass, No. 13-13-00354-CV, 2014 WL 3541677 (Tex. App.—Corpus Christi July 17, 2014) (mem. op.). This is a Texas Tort Claims Act/Recreational Use Statute case in which the Thirteenth Court of Appeals reversed the granting of the city’s plea to the jurisdiction and remanded.

The city operated a water amusement park, which Bernhard frequented. After going down a water slide, the lifeguard on duty allowed a second patron to follow even though Bernhard had not exited the landing zone. The second patron collided with Bernhard resulting in a fractured neck. He sued, but the trial court dismissed his suit by granting the city’s plea to the jurisdiction based on the Texas Recreational Use Statute. Bernhard appealed.

The appellate court first noted that Chapter 75 of the Recreational Use Statute applies and establishes the city owed Bernhard only the duty owed a trespasser. However, “although Bernhard’s current allegations are insufficient to invoke the trial court’s jurisdiction, his pleadings do not affirmatively demonstrate incurable jurisdictional defects to require dismissal.” Essentially, the court turned the pleadings standard of review on its head and noted that he did not plead jurisdictional facts, but he did not plead a total lack of possible jurisdiction either. He could have still pled gross negligence which would defeat the City’s governmental immunity. The court basically told him he did not plead it correctly and gave him a roadmap (and opportunity) to replead. Finally, the court did reject the argument that different standards and duties apply to different types of trespassers, noting the Texas Supreme Court rejected the argument in 2006.*

Retaliation Claim: Adeshile v. Metropolitan Transit Auth. of Harris Cnty., No. 14-12-00980-CV, 2014 WL 3734140 (Tex. App.—Houston [14th Dist.] July 24, 2014) (mem. op.). This is a sex discrimination employment lawsuit where the panel withdrew its opinion issued on January 16, 2014 and substituted this opinion. The court upheld the trial court’s dismissal of Adeshile’s claims.

Adeshile worked as a bus driver for Metropolitan Transit Authority of Harris County (METRO). Adeshile filed a federal sex discrimination against METRO in 2006 which was later dismissed.  In 2010 she was given a verbal counseling for excessive sick leave and, in response, filed this retaliation charge alleging unwarranted write-ups and denying her a promotion. The trial court issued a directed verdict for METRO at trial and Adeshile appealed.

The court first held Adeshile presented no probative evidence of an adverse employment action. Petty slights, minor annoyances, and simple lack of good manners do not qualify. The trial court record contains no evidence Adeshile was given an adverse write-up. Adeshile did not present evidence raising a fact issue on whether the verbal counseling was a material adverse employment action. Further, she presented no causal evidence she was denied her promotion due to her former federal lawsuit. Despite her “colorful descriptions” of prior sexual harassment, those alleged events went to the merits of her federal claim, not her retaliation claim. This opinion’s analysis is a good one to review when deciding whether a particular action is an adverse employment action or whether a causal connection exists, as the court goes through an evidentiary analysis of what occurred and why it did not qualify. The trial court upheld the directed verdict.*

Condemnation: Farabi, Inc. v. Harris Cnty., No. 14-13-00443-CV, 2014 WL 3698451 (Tex. App.—Houston [14th Dist.] July 24, 2014) (mem. op.). This is a condemnation suit where the property owner, Farabi, appealed the trial court’s grant of the county’s summary judgment motion and jury verdict.

The county created a pedestrian and bicycle trail project and attempted to negotiate an easement for the federally funded project on part of Farabi’s land. The county decided that since it needed the easement for the trail, it should acquire the entire property for a pocket park and trailhead. After a condemnation hearing, Farabi was awarded $88,000 which the county agreed to pay. Farabi objected to the award and argued the county had no right to take the entire property since the county failed to establish public necessity for the entire tract. After partial summary judgment was granted for the county on its right to take the entire tract, a jury awarded Farabi $176,000.  Farabi appealed.

The two components of “public use” are the county must intend a use for the property that constitutes a “public use” and the condemnation is a “public necessity.” As the appealing party, Farabi must negate any reasonable basis for determining what and how much land to condemn. The county not only established the property as a critical component of the trail project, the entire Farabi property was an ideal location for a pocket park as it was located across from a school and at the front entrance to a neighborhood, or for a trailhead where joggers or bicyclists could exercise. The court does not require an express statement of the condemnation’s necessity within an official resolution, order, or minutes. The court considers all the evidence to determine whether the county, in fact, determined that the condemnation was a necessity. The fact the county initially was only interested in a 30-foot easement, but later moved to condemn the entire property after Farabi refused to negotiate is not a basis for an arbitrary and capricious holding. Finally, the court held Farabi failed to object and preserve his evidentiary challenges on appeal. As a result, the trial court ruling is sustained.*

Condemnation: Thornton v. Northeast Harris Cnty. MUD 1, No. 14-13-00890-CV, 2014 WL 3672897 (Tex. App.—Houston [14th Dist.] July 24, 2014). This is an interlocutory appeal in a condemnation case where the property owner filed counter-claims. The appellate court reversed in part the summary judgment motions granted for the municipal utility district (MUD) and affirmed in part with a remand.

After discovering during a project that the MUD did not have a recorded easement on certain land, the MUD filed an eminent domain suit to acquire part of a drainage easement on the Thornton’s land. The special commissioners awarded the Thorntons $2,300 in damages. The Thorntons objected to the award and refused to allow the MUD’s contractors onto his property to complete the project already underway. The trial court granted the MUD’s partial summary judgment motion regarding its “right to take.” The Thorntons filed counterclaims for inverse condemnation, trespass, negligent trespass and nuisance. The MUD filed a plea to the jurisdiction and summary judgment as to the counterclaims. The trial court granted the MUD’s summary judgments and did not rule on the plea. The Thorntons filed an interlocutory appeal but the MUD argued that since the plea was not ruled upon, there was no right to interlocutory appeal.

The court first determined that the MUD’s traditional and no-evidence summary judgments made sovereign immunity arguments essentially the same as their plea and therefore the Thorntons had the right of interlocutory appeal from the ruling on sovereign immunity. The court next spent some time discussing the “negligent trespass” claim. After a detailed analysis, the court determined the MUD maintained immunity for such a claim. Essentially, the only basis for waiver of governmental immunity the Thorntons alleged in their petition was article I, section 17 of the Texas Constitution. Because the Thorntons asserted no other grounds for a waiver of MUD’s governmental immunity, and a claim for constitutional taking cannot be based on mere negligence, the Thornton’s pleadings failed to invoke and affirmatively negated the trial court’s jurisdiction. However, as to the inverse condemnation, trespass and nuisance, the Thorntons established jurisdiction through their pleadings. The MUD entered onto their property (presumably because it incorrectly believed it had a recorded easement) and began excavations and project development. The MUD had knowledge that its excavation process could lead to lead-contaminated soil which could destroy the property for purposes other than a drainage easement. As a result, the inverse condemnation element of intent was satisfied. Since the project was for a necessary drainage easement, the Thorntons satisfied the “public use” requirement.

However, the most significant holding was when the court determined that it was improper to make a jurisdictional ruling based on a no-evidence motion for summary judgment. Adopting the reasoning in Green Tree Servicing, L.L.C. v. Woods, 388 S.W.3d 785 (Tex. App.—Houston [1st Dist.] 2012, no pet.), it held allowing defendants to challenge subject matter jurisdiction by way of no-evidence motion would force plaintiffs to “put on their case simply to establish jurisdiction” and would eliminate any burden on the defendant other than to identify the specific ground he believes to be lacking evidentiary support.  The defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue.  Without analyzing whether the evidence submitted was sufficient, the court summarily determined the no-evidence summary judgment motion is simply improper to use.  As a result, the “negligent trespass” claims are dismissed and the remaining claims are remanded for trial.*

*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