Recent Texas Cases of Interest to Cities

Note:  Included cases are from November 6, 2013 through December 10, 2013.

International Property Maintenance Code and City Ordinances: State of Texas v. Cooper, No. PD-0001-13 & PD-0202-13, 2013 WL 6501179 (Tex. Crim. App. Nov. 20, 2013).  This case looked at the City of Plano’s property maintenance legislative scheme.  The City of Plano adopted the 2003 International Property Maintenance Code (IPMC) as part of its local property maintenance code.  The IPMC contains offense and penalty provisions that require an individual receive notice of violation before being prosecuted.  However, the city also adopted a separate provision that did not require notice of a violation before prosecution.  The court looked at whether the appellee, Jay Cooper, was entitled to notice of violations of the IPMC before his subsequent violations of the code could result in convictions.  The court held that Cooper was entitled to notice of violations and added that if the city intended to eliminate the required notice, then the city should have deleted the requirement from the IPMC before adopting it.

Workers Compensation:  City of Houston v. Rhule, No. 12-0721, 2013 WL 6164437 (Tex. Nov. 22, 2013) (per curiam).  The city and Rhule entered into a settlement agreement regarding Rhule’s on-the-job injury, in which the city agreed to pay future medical expenses related to his injury.  The settlement agreement was reached in 1988 but the city quit paying his medical bills in 2004. Rhule sued in district court in 2008 without going to the Division of Workers Compensation (Division). The district court granted Rhule damages and the court of appeals affirmed. The Supreme Court, in a per curiam opinion, held that the  district court did not have jurisdiction over Rhule’s case because the Division had exclusive jurisdiction of Rhule’s claim, and he failed to exhaust his administrative remedies before going to district court.

Governmental Immunity-Torts:  Dallas Metrocare Servs. v. Juarez, No. 12-0685, 2013 WL 6128586 (Tex. Nov. 22, 2013) (per curiam).  The issue in this case is whether a whiteboard falling on an individual is considered “use” of governmental property under the Tort Claims Act (Act). A patient, Juarez, at a Metrocare clinic was hit in the head by a falling whiteboard and was injured.  No one was using the whiteboard when this occurred. Juarez sued Metrocare (a governmental entity) under the Act. The trial court and court of appeals both held that Metrocare’s immunity was waived under the Act. The Supreme Court sent the case back to the court of appeals, requiring them to consider all of Metrocare’s arguments regarding whether Metrocare’s immunity is waived under the Act. The Court also held that Metrocare’s immunity was not waived under the “use” doctrine because the entity did not use the whiteboard, it merely allowed the patient to access it.

Procedure:  In re City of Houston, No. 01-13-00200-CV, 2013 WL 6327636 (Tex. App.—Houston [1st Dist.] Dec. 5, 2013).   This is a mandamus case involving a motion for new trial that was granted by a trial court in a governmental immunity case. In the underlying case, an individual sued the city under the Tort Claims Act due to injuries caused by a vehicular accident involving a police car. The plaintiff lost at trial, but the trial court then granted a motion for new trial based on the city’s alleged repeated misconduct in concealing and destroying evidence and due to newly-discovered evidence that was in the city’s possession but not released. The court of appeals held that the merits of the trial court’s reasons for the new trial were not sufficient and granted the city’s request for mandamus overturning the grant of a new trial because: (1) the newly discovered evidence was not used by the city and could have been discovered by the plaintiff by the use of due diligence; and (2) the argument of misconduct was not sufficient because the jury received proper instructions related to any alleged misconduct by the city. The court of appeals ordered the trial court to enter judgment on the trial court’s judgment in favor of the city.

Employment:  Talley v. City of Killeen, No. 03-09-00736-CV, 2013 WL 6153708 (Tex. App.—Austin Nov. 20, 2013).  The Austin Court of Appeals was asked to determine if the City of Killeen Civil Service Rule .053(B)(1), providing that a disciplinary appeal such as Talley’s must be submitted within 240 consecutive hours of receipt of notice, is consistent with Section 143.010 of the Texas Local Government Code, which provides that the appeal must be filed “within 10 days.” In this case, the city provided written notice to Talley that her employment as a city police officer was suspended indefinitely. On the tenth day after receiving notice, Talley filed her appeal, but the city rejected the appeal noting that it was filed beyond the 240-hour mark (she missed by a few hours). Talley sued for declaratory relief asserting the city’s local rule was preempted.  The parties filed competing summary judgment motions and the trial court ruled for the city.  Talley appealed.

Two hundred forty hours is ten days worth of hours, however, the court analyzed the statutory meaning of the word “day” and compared the Civil Service Act’s different references to “day” versus “hours” deadlines. As a result, the court held that the legislative intent was to allow ten days for an appeal, which deadline ends on the last full day, irrespective of the consecutive hours in between. The court also analyzed the phrase “after the date the action occurred” in holding the beginning of the clock runs after the day notice is received, not the hour upon which it is received.  The court reversed the trial court’s summary judgment for the city and remanded.*

Employment:  Bracey v. City of Killeen, No. 03-12-00199-CV, 2013 WL 5979624 (Tex. App.—Austin Nov. 6, 2013).  This case involves the civil service relationship between police officer and city. The court was asked to decide whether an independent hearing examiner “exceeded her jurisdiction” within the meaning of the Civil Service Act’s judicial-review provisions in upholding a police officer’s indefinite suspension (i.e., dismissing him) when the disciplinary action fully complied with the requirements specified within the Civil Service Act, yet originated with “complaints” that were not reduced to writing, signed, and provided to the officer.

The Austin Court of Appeals analyzed the notice and specificity requirements for informing an officer of an alleged rule violation under the Civil Service Act. The court analyzed Subchapter B of Government Code Chapter 614 which regulations—including a type of notice requirement—apply when certain law enforcement agencies are presented with a “complaint” against one of their officers. The court noted that Chapter 614 includes civil service complaints, and only meet and confer and collective bargaining complaints are excluded from its application. In December of 2010, following an internal investigation, the police chief indefinitely suspended Bracey based on his alleged violation of several city civil service rules. The chief prepared, filed, and delivered to Bracey a letter of disciplinary action detailing the civil service rules that Bracey had allegedly violated (mainly dealing with providing false information to the department). Bracey timely perfected an appeal before an independent hearing examiner who confirmed the suspension and Bracey appealed to district court. The trial court dismissed Bracey’s case which he again appealed. The court went through a lengthy analysis of the power of the hearing examiner and what can and cannot be done within his/her jurisdiction. It examined whether compliance with Subchapter B of Chapter 614 was jurisdictional or merely mandatory, a distinction which grants or denies the power to reinstate for non-compliance. The court ultimately held Bracey was protected by Subchapter B and was entitled to a written complaint prior to disciplinary action; however, failure to provide the written complaint does not equate to automatic reinstatement. Bracey’s sole complaint is that the hearing examiner “exceeded her jurisdiction” by failing to reinstate him based on Subchapter B. The court concluded that the hearing examiner had no jurisdiction to award him that remedy based solely on any failure by appellees to provide him one or more written “complaints” required by Subchapter B. Bracey did not preserve any complaint that the hearing examiner failed to enforce Subchapter B through a remedy that would be within her jurisdiction to award. Accordingly, the hearing examiner did not “exceed her jurisdiction” as a matter of law.*

Governmental Immunity: Munoz v. City of Balcones Heights, No. 04-13-00439-CV, 2013 WL 6115994 (Tex. App.—San Antonio Nov. 20, 2013) (mem. op.). This is kind of an odd case, but is mainly just for litigators. Munoz sued Star Shuttle and three governmental entities for declaratory relief (the court never really says what type of declaratory relief). All three governmental entities filed pleas to the jurisdiction, which were granted. No dispositive motion for Star Shuttle was evident in the record. After some detailed rendition of the court’s requests from the plaintiff to clarify whether any dispositive order exists as to Star Shuttle, the court determined that Star Shuttle had not been dismissed. The governmental defendants were never severed. The orders granting the pleas were therefore interlocutory.  While the plaintiff can appeal the granting of the plea at this point, the interlocutory deadlines are what govern.  Motions for new trial do not extend to interlocutory deadlines. Plaintiff missed the accelerated deadlines depriving the appellate court of jurisdiction. The court analyzed a provision for extension of time if the party files a “reasonable explanation” as to why certain extensions are necessary (mainly for briefing purposes). The explanation can be of help to litigators.  However, the court determined that the explanation of “I did not intend to file an interlocutory appeal” and the insults to the courts listed by the plaintiff are not a “reasonable explanation.”  The notice of appeal is untimely and therefore the court lacks jurisdiction.*

Employment:  City of San Antonio v. Salvaggio, No. 04-13-00172-CV, 2013 WL 6086935 (Tex. App.—San Antonio Nov. 20, 2013).  This is a hearing examiner case where the City of San Antonio appeals the trial court’s summary judgment in favor of Police Lieutenant Salvaggio affirming the hearing examiner’s award overturning his indefinite suspension and reinstatement. The San Antonio Court of Appeals affirmed the reinstatement. Salvaggio took a promotional exam for captain. This was the first time post-it notes were used to designate assigned setting.  Despite the fact no exam procedures were given out, no definition of “exam materials” was provided (but a rule prevented testing materials from being taken out of the exam room), and no prohibition against scribbling on the post it-notes was expressed. Salvaggio used the post-it note as scratch paper, writing down notes about topics he wanted to review during the mid-day break.  The note was confiscated and was reported to his supervisors. Several months later, some incidents involving several candidates taking test booklets out of a detective promotional examination were reported to the media. During an investigation of these incidents by the city, the post-it note incident with Salvaggio was mentioned and a separate investigation was opened.  Salvaggio was eventually suspended indefinitely and appealed to a hearing examiner who reinstated him. The city appealed to the district court which affirmed the hearing examiner’s determination.

The city asserts the hearing examiner exceeded his authority because the definition of “testing materials” is a policy decision over which the examiner has no jurisdiction.  The San Antonio Court of Appeals noted that if the hearing examiner had created a new rule by defining “testing materials” it would be improper.  However, that is not what the examiner did in this case. Reading the hearing examiner’s written decision as a whole, the hearing examiner did not define “test materials” to exclude, or include, the post-it note. The examiner based his decision on the fact that the term “test materials” had never been defined by the city’s civil service commission, which was the sole entity authorized to define the term. The chief had no authority to define the term to include the post-it note. Since the city failed to establish the note was testing material, it failed to properly assert a violation. The reinstatement was affirmed.*

Vested Rights:  City of San Antonio v. Greater San Antonio Builders Assoc., No. 04-13-00013-CV, 2013 WL 6086930 (Tex. App.—San Antonio Nov. 20, 2013).  This is a vested rights case under Chapter 245 of the Texas Local Government Code. The City of San Antonio appealed from a declaratory judgment invalidating its “fair notice ordinance” and the San Antonio Court of Appeals affirmed. In relation to permits for development, the city passed an ordinance requiring the applicant to fill out a specific city form which flags the permit for the city to recognize vested rights. The purpose is “to provide standard procedures for an applicant to accrue rights under Chapter 245 of the Texas Local Government Code.”  The Plaintiffs are organizations whose members include individuals and entities who are concerned with issues affecting the real estate industry in the greater San Antonio area or who own real property in the city. In a separate interlocutory appeal, the Plaintiff’s standing was affirmed and they were permitted to proceed at the trial court level. The Plaintiffs filed traditional summary judgment motions (two of them on different issues) which the trial court granted. The city appealed.

The city asserted the fair notice ordinance ensures the city will have enough information about a project to determine whether the project has changed and, therefore, is subject to current development regulations. Plaintiffs countered that the fair notice ordinance allows the city to prevent owners from obtaining or utilizing vested rights that have already been authorized by the legislature under Chapter 245. The city conceded it would not recognize a vested right without the fair notice form since its absence makes an application incomplete.  However, the court held that Chapter 245 expressly defines the documents and information that cause the accrual of a vested right. Tex. Loc. Gov’t Code § 245.002(b). The city’s form requires additional information beyond what is recognized in the statute and therefore fails to recognize rights which vest under state law. Unfortunately, the court then held that since the city did not present z severance clause argument in response to the summary judgment, they could not do so on appeal. The entire ordinance is therefore invalid.  This seems a little extreme since the law is the law and whatever provision may be invalid, the presence of a severance clause separates it as an operation of law.  But the Fourth Court of Appeals did not see it that way and invalidated the entire ordinance.*

Ethics:  Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498 (Tex. App.—El Paso Dec. 4, 2013).  In this case, Tidwell appeals his convictions of misuse of official information, retaliation, and official oppression.  The convictions arose out of Tidwell’s investigation and criminal prosecution of two nurses who filed complaints with the Texas Medical Board (TMB) against a doctor.  Tidwell was a county attorney at the time.

In regard to the misuse of official information, the El Paso Court of Appeals explains that under Penal Code Section 39.06(b), a public servant commits an offense if with intent to obtain a benefit or harm or defraud another, he discloses or uses information for a nongovernmental purpose that: (1) he has access to by means of his office or employment; and (2) has not been made public.  Information has not been made public if it is information to which the public does not generally have access and that is prohibited from disclosure under the Public Information Act (PIA).  Noting that the PIA doesn’t actually prohibit the disclosure of any information, the court concludes that the phrase “prohibited from disclosure” contemplates the exceptions to disclosure found in Subchapter C of the PIA.  Tidwell then tries to argue that because the TMB did not request an attorney general decision to withhold the information, the complaint was presumed to be subject to required public disclosure.  The court rejects this argument for several reasons including the fact that the information is confidential by law, which constitutes a compelling reason to withhold the information.  Tidwell also argues that the complaints were used for a governmental purpose (he argues they were used to investigate and prosecute the nurses for misuse of official information).  The court rejects this argument because Tidwell was found to be involved with the sheriff in impermissibly obtaining the complaints from the TMB.  Specifically, the sheriff had led the TMB to believe that he was investigating a TMB license holder (the doctor) rather than the nurses.

In regard to the retaliation conviction under Penal Code Section 36.06 and the official oppression conviction under Penal Code Section 39.03(d), the court concludes the evidence was legally sufficient to support Tidwell’s conviction.   Both of those offenses require an “unlawful act.”  The court discusses the fact that the jury charge in this case defined the term “unlawful” as meaning conduct that is criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.

Billboards:  State v. Moore Outdoor Props., LP, No. 08-12-00034-CV, 2013 WL 6002035 (Tex. App.—El Paso Nov. 13, 2013).  This is an inverse condemnation case arising out of the state’s exercise of eminent domain over a billboard and the property on which the billboard was located.  Of particular interest to cities is the discussion by the court of the city’s permit that allowed use of the land for a billboard structure.  The appellate court concludes that the sign or billboard permit obtained by the property owner from the city is not a compensable property right in the context of a condemnation proceeding, but that the existence of the permit would be taken into consideration in determining the fair market value of the property.

Dangerous Dog:  Romano v. State, No. 09-13-00250-CV, 2013 WL 6145782 (Tex. App.—Beaumont Nov. 21, 2013).  This is a dangerous dog case where the court held that even though the Texas Health and Safety Code does not provide for an appeal, a person wishing to appeal a dangerous dog determination by a trial court can appeal a justice court judgment to county court at law.

The underlying facts are simple. Gus the dog, who was being fostered by a third party for Jennifer Romano of Maggie’s House Rescue, attacked the foster caregiver.  The Montgomery County animal control officer issued an affidavit for seizure. The justice court issued a warrant for Gus’s seizure and subsequently determined that Gus caused serious bodily injury and should be destroyed.  Romano appealed to County Court at Law No. 2 (CCL No. 2), but the state argued Texas Health and Safety Code Chapter 822 does not authorize an appeal from the justice court’s judgment so CCL No. 2 lacked jurisdiction. The CCL No. 2 granted the motion to dismiss and Romano appealed.

The Beaumont Court of Appeals held that Subchapter A of Chapter 822 of the Texas Health and Safety Code does not contain any appellate provisions. Nevertheless, a county court at law has original and appellate jurisdiction over all causes and proceedings prescribed by law for county courts. Tex. Gov’t Code Ann. § 25.0003(a). Chapter 822 does grant jurisdiction to hear dangerous dog cases to county courts (albeit as the trial court).  Additionally, even when an appeal is not expressly provided by other laws, Section 51.001(a) of the Texas Civil Practice & Remedies Code states that a party may appeal a justice court’s ruling when the judgment or amount in controversy exceeds $250. Accordingly, even without express authorization from Subchapter A, the county court at law had jurisdiction so long as the amount in controversy was met. Since the record is silent as to the amount in controversy, the case was remanded.*

*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