Recent Texas Cases of Interest to Cities

Note: Included cases are from December 11, 2014 through January 10, 2015.

Governmental Immunity-Tort: Texas Dep’t of Aging & Disability Servs. v. Cannon, No. 12-0830, 2015 WL 127829 (Tex. Jan. 9, 2015). This is a Texas Tort Claims Act (TTCA) case where the Supreme Court of Texas holds that while individual employees are entitled to dismissal for tort claims, they are not entitled to dismissal for claims outside of the TTCA, such as claims under 42 U.S.C. Section 1983.

Patrick Dyess was a resident of a state supported living center run by the Texas Department of Aging and Disability Services (DADS). Watson, Hubbard, and Turner were employees at the center. Dyess died during an incident where the employees physically restrained him after he became disruptive.   Dyess’ mother, Cannon, initially sued DADS and the employees under the TTCA. DADS filed a motion to dismiss the employees under Texas Civil Practices and Remedies Code Section 101.106(a) and (e). While the motion was pending, Cannon amended her complaint alleging Section 1983 claims (federal claims) against the individuals and agreed to dismiss the tort claims. DADS asserted the employees were entitled to dismissal under the perfected immunity of Section 101.106(e), regardless of the type of claims. The trial court denied the motion entirely. The court of appeals reversed as to DADS, noting it retained immunity for the claims asserted, but affirmed the denial of the employees. The employees appealed.

The sole issue for the court was whether the employees are entitled to dismissal pursuant to Section 101.106(e) which provides as follows: “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” The Supreme Court previously held that all common law claims are brought “under” this chapter, regardless of whether immunity has been waived for them. However, independent waivers in other statutes are not brought under the TTCA. DADS argued an amended pleading brought while a Section 101.106(e) motion is pending should not be considered because the statute requires “immediate” dismissal. However, no dismissal occurs until a court signs an order finding the requirements of subsection (e) are met. Claims brought under 42 U.S.C. Section 1983 are not subject to the TTCA, so the dismissal of an employee under the TTCA does not affect the plaintiff’s ability to bring a Section 1983 claim. Although not directly at issue, the court discussed Section 101.106(f) as a comparator for explanation purposes noting it expressly contemplates amended pleadings and noting their interpretation of subsection (e) does not make subsection (a) inconsistent.*

Regulatory Taking: City of Houston v. Carlson, No. 13-0435, 2014 WL 7204431 (Tex. Dec. 19, 2014). Condominium owners sued the City of Houston after they were ordered to vacate their condominiums for safety reasons. The trial court held that the condominium owners had not suffered a taking and dismissed the case. The court of appeals reversed. Previous to this case, courts had held that the action in question did violate the condominium owners’ due process rights, and overturned the city’s actions. This regulatory takings case was brought after the due process case. The owners argue that the procedure the city followed in the order to vacate led to a regulatory taking of their property. The Supreme Court held that the owners had not alleged a taking because they argued about procedural issues and not whether the building regulations themselves caused a taking. The Court held that a civil enforcement procedure cannot, by itself, be the basis of a regulatory taking.

Extraterritorial Jurisdiction: Bizios v. Town of Lakewood Village, No. 02-14-00143-CV, 2014 WL 7447699 (Tex. App.—Fort Worth Dec. 31, 2014).   The issue in this case is whether a general law city may enforce its building code in its extraterritorial jurisdiction (ETJ). The home in this case was located in the ETJ of the Town of Lakewood Village. The homeowner received all of the required permits, but did not obtain the town’s building permit. The trial court granted the town’s request for a temporary injunction that required the homeowner to stop construction on his home due to his failure to obtain the building permit. The court of appeals reviewed the trial court’s grant of a temporary injunction.

The court of appeals held that a general law city does not have authority to require building permits in the ETJ because the legislature has not specifically given general law cities that authority. The court of appeals interpreted Local Government Code Section 212.003 as limiting a city’s authority in the ETJ to only plats and subdivision regulations, and as specifically denying a city’s ability to regulate buildings in its ETJ. The court also noted that it is a larger city, Little Elm, not the Town of Lakewood Village, that was responsible for the subdivision regulations in this case under Section 212.007 of the Local Government Code. Section 212.049 also states that Subchapter B (Regulation of Property Development) does not give a city the authority to require building permits in the ETJ. The court of appeals also reviewed Chapter 214 (building codes), which only applies within city limits for general law cities. Tex. Loc. Gov’t Code §§ 214.212(b); 214.904. The court of appeals concludes that Section 214.904’s reference to permits in the ETJ refers to those authorized by other law, such as a home rule city’s authority in the ETJ and to other permits allowed in the ETJ, such as those for billboards.

Governmental Immunity: Layton v. City of Fort Worth, No. 02-14-00084-CV, 2014 WL 6997350 (Tex. App.—Fort Worth Dec. 11, 2014) (mem. op.). Layton, a former employee receiving disability benefits from the City of Fort Worth, sued the city and its retirement fund after his disability benefits were discontinued. The court of appeals reviewed whether it had subject matter jurisdiction of the claim. Layton’s three arguments were that the city violated its own procedures, the city violated a vested right in discontinuing the disability benefits, and that the city violated his due process rights. The court of appeals first held that no law allowed judicial review of the fund’s administrative order discontinuing Layton’s benefits. Next, the court held that Layton had no vested right in the disability benefits because the numerous conditions and requirements in the disability administrative rules made the benefits a “mere expectancy” not a “guarantee.” Finally, the court reviewed the case as an ultra vires claim as in City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). The court held that the long list of conditions and requirements, and the fund’s control over the disability determination, precluded an argument that a ministerial duty was violated as in Heinrich. The court of appeals held it had no jurisdiction to hear this case.

Civil Service: Hamilton v. Washington, No. 03-11-00594-CV, 2014 WL 7458988 (Tex. App.―Austin Dec. 23, 2014) (mem. op.).  In this appeal, the Austin Court of Appeals affirmed in part and reversed in part the trial court’s grant of a plea to the jurisdiction in a civil service indefinite suspension case. Hamilton was given notice he was indefinitely suspended for violating both the City of Austin Civil Service Commission (commission) and the City of Austin Police Department rules. The opinion never says what he did or which rules apply. Hamilton’s lawyer advised he wanted an appeal to a hearing examiner. The city attorney advised Hamilton his appeal was deficient because it simply stated he wanted an appeal and not the required language under Section 143.010(b). Section 143.010(b) requires a statement denying the charge, challenging the legal sufficiency of the charge, alleging the action taken does not fit the offense, or some combination of these statements. Hamilton sued for declaratory relief to compel the commission to consider his appeal proper and sufficient to trigger its jurisdiction. He sought reinstatement and back pay. The city filed a plea to the jurisdiction which the trial court granted and Hamilton appealed.

After going through the difference between appealing to the commission versus appealing to a hearing examiner, the court noted that because the commission did not hold a hearing (because it felt it had no jurisdiction), Hamilton could not be appealing a decision of the commission. The suit is therefore an independent action to determine an issue never before addressed by a Texas court, i.e. whether the language of Section 143.010 must not only be included in an appeal to the commission but also in an appeal to a hearing examiner. As a result, this is a standard declaratory judgment action to interpret a statute and immunity from suit must be waived separately from Chapter 143 of the Texas Local Government Code. The trial court lacked jurisdiction over all retrospective relief including back pay, reinstatement, etc. because the commission has exclusive jurisdiction over that dispute. Since the hearing examiner’s powers are equal to that of the commission, the commission level is what has exclusive jurisdiction over retrospective relief. Since the commission rejected his appeal, he has not exhausted his administrative remedies and no retrospective relief can be granted at this point by the court. In short, since no order of the commission or hearing examiner is before the court, the trial court has no jurisdiction to issue retrospective relief. Immunity under the Uniform Declaratory Judgment Act (UDJA) to sue a city is only waived to challenge an ordinance.

Hamilton challenged the constitutionality of Section 143.010(b) as being vague and ambiguous as applied by the city. While this is not a city ordinance, the court interpreted the “as applied” challenge as a challenge to the city’s pronouncement of the statute and immunity is therefore waived. As a result, the trial court erred regarding the “as applied” constitutional challenge. Further, a party can sue an official in their official capacity for prospective relief of a ministerial job duty. Hamilton sued officials for ultra-vires actions and no immunity exists for such a suit for prospective relief except under City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). Finally, since Hamilton is not a police officer “authorized to act” on behalf of the Austin Police Association (he was only suing for himself), he does not qualify as a party to the collective bargaining agreement for purposes of a breach of contract suit. And while he is a third-party beneficiary, he has not yet exhausted his administrative remedies which are required before he can bring suit. So, the trial court has jurisdiction to hear the “as applied” constitutional challenge and the ultra-vires claims for prospective relief, but nothing else. The court seems to indicate that Hamilton should have sought the prospective relief first, then if successful in getting a hearing, he could have sued after the exhaustion of that process.*

Contractual Immunity: City of San Antonio v. Casey Indus., Inc., No. 04-14-00429-CV, 2014 WL 7437638 (Tex. App.―San Antonio Dec. 31, 2014) (mem. op.). This is one of several cases involving contracts between CPS Energy (CPS), Casey Industrial Inc. (Casey) and Wheelabrator Air Pollution Control Inc., (Wheelabrator) regarding a set of breach of contract claims. In this case, the San Antonio Court of Appeals affirmed the denial of CPS’ plea to the jurisdiction, holding Casey met its burden to hold immunity was waived. In August 2004, CPS contracted with Casey and Wheelabrator to add pollution control systems to a CPS coal-fired power station. After a contract dispute, Casey sued CPS for breach and quantum meruit, which already went through one appeal. That case resulted in a declaration that the contract was not void and no quantum meruit claim could go forward. CPS moved to dismiss Casey’s breach of contract claim asserting it was an “extra-contractual” claim for which CPS maintained immunity. The trial court denied the motion and CPS appealed.

It was essentially accepted that the contract falls within the waiver of immunity found in Texas Local Government Code Sections 271.152 and 271.153, but only as to the contract’s terms and payments. CPS argued Casey did extra work not envisioned by the contract and CPS did not issue a change order to authorize it. Casey argued paragraph 14.1.2 allowed it to change the scope of work if Wheelabrator fell into default and request additional compensation for the adjustments. Casey presented evidence via a CPS letter declaring Wheelabrator in default. The court agreed immunity was waved. As far as damages, Casey’s original scope of work did not include the additional work, but such work was defined in the contract which Casey was attempting to compensate for due to Wheelabrator’s default. Casey further argued Wheelabrator, as the CPS general contractor, ordered it to do that additional work. Without much in the way of explanation, the court simply stated Casey established a waiver of immunity under the contract for this type of damages and CPS failed to conclusively establish otherwise. As a result, the trial court properly denied the plea.*

Public Information Act: Abbott v. City of Dallas, No. 03-13-00686-CV, 2014 WL 7466736 (Tex. App.―Austin Dec. 23, 2014). In this case, Attorney General Greg Abbott (AG) appealed the trial court’s determination that documents the City of Dallas sought to withhold from public disclosure under the Public Information Act (PIA) as confidential attorney-client communication are excepted and may be withheld. The City of Dallas received a PIA request for information pertaining to the operation of a landfill. The city sought to exclude certain documents from the request and requested an opinion from the AG’s office as to whether they were subject to disclosure. In a letter ruling, the AG concluded that because the city had failed to comply with the deadline under the PIA for requesting an attorney general’s opinion within ten business days of receiving the request, the city was required to demonstrate a compelling reason for withholding the information. This compelling reason must be independent of the privileged nature of the information. The letter ruling went on to conclude that the city failed to demonstrate a compelling reason to withhold the information and ordered the city to release it. This led the city to file suit against the AG seeking a determination that the information consisted of privileged attorney-client communications, not subject to disclosure. The trial court agreed with the city and granted the city’s motion for summary judgment.

The AG appealed the trial court’s decision. In its appeal, the AG argued that “[b]ecause a client may waive the attorney-client privilege, it is discretionary, and because Rule of Evidence 503 and Disciplinary Rule of Professional Conduct 1.05(b) do not make information confidential for purposes of section 552.101, the City may not assert the privilege under than exception.” Instead, the AG argued that the city must assert privilege under Section 552.107(1) of the Texas Government Code. Since Section 552.107(1) protects a city council’s interests, it is discretionary and waived by the city’s failure to comply with procedural requirements of the PIA.

The court of appeals stated that the fact that the attorney-client privilege may be waived is not determinative of whether attorney-client information falls within the purview of Government Code Section 552.101. The court of appeals concluded that Section 552.101 exempts from disclosure information that is protected by the attorney-client privilege and that the City of Dallas established that the information is protected by the attorney-client privilege. The court affirmed the trial court’s judgment.

Building and Standards: Gold Feather, Inc. v. City of Farmers Branch, No. 05-13-01175-CV, 2014 WL 7399271 (Tex. App.―Dallas Dec. 17, 2014) (mem. op.). This is a structural standards case where the Dallas Court of Appeals affirmed a summary judgment order in favor of the city because Gold Feather failed to comply with an order from the city’s structural standards commission. The city sent notices to Gold Feather of ordinance violations including a parking lot in disrepair, structural disrepair, improper signage, weeds, and more. Gold Feather asserted it recently purchased the property and intended to have it developed but was refusing to bring the property into compliance in the meantime. The city’s structural standards commission held Gold Feather was in non-compliance and assessed civil penalties if the violations were not repaired within thirty days. After giving substantial time for repairs, the city assessed civil penalties in the amount of $22,000 ($500/day for each day of a continued violation) and brought suit to enforce and collect. Gold Feather asserts it was verbally promised an extension (which was later rescinded) so did not comply as quickly as it could have but should not have been assessed a civil penalty. The city filed a summary judgment which was granted and Gold Feather appealed. The court first held that Gold Feather’s assertion of ineffective assistance of counsel does not apply to civil cases and the city’s penalties are civil in nature, not criminal. Next, Gold Feather failed to appeal the commission’s order so it could not raise a takings or due process claim by asserting the taking was performed by a non-judicial body. Without deciding whether such a defense/claim is even proper, it must still be raised in an appeal from the commission’s order, which did not occur. As a result, the summary judgment order is affirmed.*

Whistleblower: Lubbock-Crosby Cnty. Community Supervision & Corrs. Dep’t v. Lance, No. 07-14-00222-CV, 2014 WL 7369938 (Tex. App.—Amarillo Dec. 22, 2014) (mem. op.). This is a Texas Whistleblower lawsuit where the Seventh District Court of Appeals reversed the denial of the entities plea to the jurisdiction.

Lance was jointly employed by the counties’ corrections department and juvenile board. (Such a situation is not uncommon when dealing with juveniles in the correction systems.) Prior to his joint employment he worked in the Child Protective Services Division of the Texas Department of Family and Protective Services (CPS). Lance was approached by co-workers at the county corrections department and juvenile board about the care being given to a specific child by the mother. Lance contacted a former assistant at CPS regarding the matter; however, nothing in his call or email indicated any immediate danger to the child. Several months later the child went missing and was found dead. Lance allegedly reported to various law enforcement entities, including the sheriff and Texas Rangers, that CPS had decided a nonemergency removal was needed but was never executed. Lance contacted CPS legal counsel and informed her that CPS employees were going to go to jail due to the mishandling of the case. He also released confidential autopsy reports. Lance was later terminated for threatening CPS employees and releasing confidential information. Lance sued both employers. The trial court denied the pleas and the entities appealed.

The court first noted the determination of whether a violation of law is reported is a question of law, not fact. The reporting of a violation invokes the waiver of sovereign immunity only if the conduct reported by the plaintiff constitutes a violation of law. And while Lance listed eleven statues allegedly implicated by his report, none of the conduct, if true, would constitute a violation. Lance’s report did not indicate any deficiencies in the investigation only that CPS did not follow through on the nonemergency removal after the investigation was complete. Further, included in Lance’s eleven statutes are such things as the Texas Penal Code section defining “culpable mental state,” which does not criminalize anything but only define matters criminalized by other statutory sections. In the end, Lance’s report was the failure to effectuate the nonemergency removal of the child, which CPS could not have done anyway. CPS must seek and obtain a court order for such removal. Failing to file the appropriate paperwork is not a violation. Since no violation of law was specified, no Whistleblower protection attaches, and no waiver of immunity exists. The plea should have been granted.*

Civil Service: Stubbs v. City of Weslaco, No. 13-14-00054-CV, 2015 WL 124310 (Tex. App.—Corpus Christi Jan. 8, 2015) (mem. op.). This is an appeal from the dismissal of a mandamus action where the Thirteenth Court of Appeals reversed the dismissal and ordered the trial court to consider whether the firefighter’s appeal from indefinite suspension should be submitted to a hearing examiner.

Stubbs was a firefighter for the City of Weslaco when he was injured in an accident unrelated to his employment and was temporarily disabled. After a year of not receiving any updates on his condition, the fire chief put Stubbs on indefinite suspension. Stubbs filed an appeal with the civil service commission, however, the director of the civil service commission denied the submission noting he did not follow the proper procedure. Texas Local Government Code Section 143.057(b) requires a request for an independent hearing examiner be submitted to the director and not to the commission. Stubbs sued for writ of mandamus to compel the director to submit the appeal to a hearing examiner, for injunctive and declaratory relief, and for monetary relief. The trial court dismissed the claims and Stubbs appealed.

The court first held the city could not be sued for mandamus, only its officials. The claims for monetary damages and declaratory relief also do not survive against the city as it retains immunity. The commission is the exclusive authority over reinstatement, not the trial court so the trial court did not err in dismissing those claims. The only claims that survive are the mandamus, injunctive relief, and declaratory judgment claims against the civil service director. The court expressed no opinion on the merits of the remaining claims, only that the trial court has jurisdiction to hear them and remanded those claims. The court affirmed in part and reversed in part.*

Tort Claims Act: Texas Dep’t of State Health Servs. v. Gonzalez, No. 13-14-00259-CV, 2014 WL 7205332 (Tex. App.—Corpus Christi Dec. 18, 2014) (mem. op.). This is a Texas Tort Claims Act (TTCA) motor vehicle accident case where the Thirteenth Court of Appeals reversed the denial of a plea to the jurisdiction and rendered judgment for Texas Department of State Health Services (DSHS).

Gonzalez was in a four car pile-up. A car driven by Pena hit a concrete barrier in front of Gonzalez who hit her brakes to stop. Three cars behind her, a car driven by Olivarez collided with the car driven by a DSHS employee, Ramos, who was pushed into a car driven by Morales, who then collided with Gonzalez. Gonzalez sued everyone involved. DSHS filed a plea to the jurisdiction asserting Gonzalez failed to provide notice of DSHS’ fault and the accident was not proximately caused by the use of a motor vehicle by DSHS employee Ramos. The accident report by police indicated no fault on the part of Ramos and no actual notice was provided that Ramos was at fault. The trial court denied the plea and DSHS appealed.

The court first noted that Gonzalez missed the six month notice deadline under Texas Civil Practice & Remedies Code Section 101.101 by two days and that the “mailbox rule” does not apply to save her. The statute expressly states the entity must “receive” notice within six months, not that it be sent within that time. Further the “mailbox rule” only applies to court filings and service of process. Since the notice is not filed with the court, the rule does not apply. Section 101.101 does state that written notice within six months is not necessary if the entity had actual notice of its fault. However, merely investigating an accident does not provide actual notice of a subjective awareness of fault. Neither the police report nor any information submitted to DSHS after the accident indicated Ramos was at fault in any respect. Gonzalez presented no evidence to create a fact issue that DSHS had a subjective awareness of its possible fault for her injuries. Even the fact that Ramos took photos of the accident shows only a “cursory investigation” of the accident, not an awareness of fault. As a result, the plea should have been granted.*

*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