Recent Texas Cases of Interest to Cities

Note:  Included cases are from May 11, 2015 through June 10, 2015.

Official Immunity:  William Marsh Rice Univ. v. Thomas, No. 01-14-00908-CV, 2015 WL 3522915 (Tex. App.—Houston [1st Dist.] June 4, 2015) (mem. op.).  This is a false arrest case in which the First District Court of Appeals reversed the denial of summary judgments based on official immunity and rendered judgment for the university defendants. Officer Cash, an officer for the university, received a radio call that a man on campus may be violating a protective order by attempting to contact his wife.  Cash encountered Thomas on campus, who informed Cash he was there to see his wife.  Cash asked if a protective order was in place and Thomas refused to confirm or deny the existence of such an order. Thomas was detained and his wife confirmed a protective order existed. Thomas was then arrested. However, while being processed officers discovered the order was not a protective order, but a mutual restraining order which did not permit arrest. He was then released. Thomas sued the university, campus police department, and Officer Cash for a variety of claims.  The university defendants moved for summary judgment based on official immunity of Cash, which the trial court denied.  The court held that in questioning, detaining, and arresting Thomas, Officer Cash was performing a discretionary act under the official immunity standard. When evaluating the evidence presented, the court determined a reasonable officer could have believed probable cause existed to make the arrest. Thomas did not present any evidence to counter this argument.  Cash arrested Thomas in the course of his duties as a peace officer assigned to the campus. Therefore, Cash conclusively established he is entitled to official immunity. A slightly trickier analysis occurred for the remaining defendants.  Normally, a city or other entity commissioning an officer is entitled to governmental immunity and if an employee is immune, the entity remains immune. However, the university is a private entity. The court ultimately determined that a private employer is entitled to assert any affirmative defenses its employee has to liability.  Since Cash was immune, the university was immune.

Payday Regulation:  ACE Cash Express, Inc. v. City of Denton, No. 02-14-00146-CV, 2015 WL 3523963 (Tex. App.—Fort Worth June 4, 2015) (mem. op.).  ACE Cash Express, Inc. (ACE) sued the city over its payday lending ordinances.  ACE argued that the city’s ordinances exceeded its police power, violated due process, and exceeded its constitutional authority.  The city filed a plea to the jurisdiction, arguing that the court lacked subject-matter jurisdiction and that the city had not waived its immunity.  The trial court granted the city’s plea to the jurisdiction.  The issue in this case was whether the civil trial court should review the effect of a criminal ordinance.  ACE argued that the trial court should review the ordinance because the threat of prosecution kept ACE from testing the ordinance.  First, the court noted that it was not the customers who would be criminally liable, only the corporation and its employees, and thus, the argument that this prevented the company from testing the criminal ordinance was invalid.  Because customers could not be criminally prosecuted, this case is different from City of Austin v. Austin City Cemetery Ass’n, 28 S.W.528 (1894).   Next, ACE argued it had no way to test the ordinance in a criminal context because the city had refused to enforce ACE’s self-reported violations.  The court held that ACE’s self-reported violations were not enough to show that the city was not enforcing its ordinances as ACE filed no criminal complaints against itself.  Next, ACE argued that the city’s ordinances violated the business’s vested property rights.  The court held that the ordinances did not interfere with a vested property right of the business, cancel previous contracts, or prevent them from operating their business. Instead, the ordinances solely regulated how the business was operated.  The court of appeals affirmed the trial court’s grant of the city’s plea to the jurisdiction.

Public Information Act: Paxton v. City of Dallas, No. 03–13–00546–CV, 2015 WL 3394061 (Tex. App.―Austin May 22, 2015) (mem. op.). In this case, the Third Court of Appeals held that birth dates of certain members of the general public are confidential by law under the Public Information Act.  The case began when the City of Dallas received various, unrelated open records requests.  In each instance, the responsive information included birthdates of members of the public.  The city asserted that it was not required to disclose the birthdates, arguing that the information is confidential under the common law privacy doctrine.  The attorney general rejected that argument and issued a letter ruling concluding that the information must be released.  The city challenged that ruling in court.

The Third Court of Appeals explained that “[u]nder the common-law right of privacy, an individual has a right to be free from the publicizing of private affairs in which the public has no legitimate concern.”   In deciding the issue at hand, the court primarily relied on Texas Comptroller of Pub. Accounts v. Attorney Gen. of Tex., 354 S.W.3d 336 (Tex. 2010), concluding that public employees’ privacy interest in their birth date information substantially outweighed the negligible public interest in disclosure, and that disclosing the information constituted a clearly unwarranted invasion of personal privacy.  Finding the analysis and conclusion in that case equally applicable to members of the general public, the Third Court of Appeals concluded that birth date information of public citizens is confidential by law.

Zoning: City of Leon Valley v. Wm. Rancher Estates Joint Venture, No. 04-14-00542-CV, 2015 WL 2405475 (Tex. App.―San Antonio May 20, 2015) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction arising from the denial of a zoning change. Appellees own varying interest in land within the city and filed an application to change the zoning to better sell the property. A city councilwoman (Baldridge) who is a real estate broker allegedly contacted appellees stating she had a client who wanted to purchase the property and threatened to use her power on the city council to block any zoning changes if they did not accept her client’s offer. Appellees did not accept and the city denied the zoning change request. Appellees also asserted the city trespassed on the property to dig a trench that altered the natural flow of water resulting in flooding. They sued the city and named and unnamed city employees.

The city defendants filed a plea to the jurisdiction which the trial court denied. The city appealed. The court first held that the individual defendants were sued in their individual capacity.  “A person sued only in her individual capacity does not have sovereign or governmental immunity from suit.”  Texas Civil Practice and Remedies Code Section 51.014 (the statute authorizing interlocutory appeals) provides that the courts of appeal have jurisdiction for an interlocutory appeal for an official if the official is appealing a motion for summary judgment.  The court holds individual immunities are affirmative defenses, not jurisdictional defenses.  The officials are appealing the denial of a plea to the jurisdiction; that is not authorized under Section 51.014(a)(5), so their appeal is dismissed.

The court then determined there was no waiver of immunity as to the city for the asserted claims under the Water Code, Health & Safety Code, Natural Resources Code, Penal Code, and Property Code, as asserted by the appellees. Therefore the trial court should have granted the plea as to those claims. The city asserted the appellees’ claims under the Texas Open Meetings Act (TOMA) are not proper because they seek monetary damages for such claims. The city also asserts the pleadings do not indicate TOMA claims against the collective body, only against individuals. The court determined that the assertion of immunity from monetary damages is a claim of immunity from liability, not immunity from suit. Therefore, it is improper to raise in a plea to the jurisdiction. TOMA waives immunity for claims brought to compel compliance or to void actions taken in violation of the Act. The closed meeting allegations involving individuals are still attributable to the city.  The court then noted that some evidence existed (when taken in the light most favorable to the non-movant) that the city failed to properly take minutes of the meetings and did not accurately reflect what occurred. As a result, the trial court has jurisdiction to hear the TOMA claims raised.

The court held the arguments regarding a lack of evidence to establish a conflict of interest were not raised sufficiently to give the other side a fair opportunity to respond, therefore they are remanded. The city contends the minutes and agenda for meeting show the city council’s vote on appellees’ zoning request was unanimous. However, the minutes do not conclusively establish the other city council members would have voted the same way had Baldridge abstained, so the plea was properly denied.  The court did hold the city is immune from trespass claims. The court next chided the city, holding “[w]ithout reference to any of appellees’ specific requests for declaratory relief, the City argues the trial court erred by denying its plea to the jurisdiction because there is no waiver of immunity ‘for monetary damage relief or relief for interpretation of statutory rights’ under the Declaratory Judgment Act.” Since the court already determined declaratory rights were proper to seek under TOMA, the plea was properly denied as to the declaratory judgment.*

Governmental Immunity: Douglas v. City of Kemp, No. 05-14-00475-CV, 2015 WL 3561621 (Tex. App.―Dallas June 9, 2015) (mem. op.).  Lloyd Douglas built a nursing facility in the City of Kemp. He claimed that before he started construction the mayor and city manager negotiated terms of a property tax abatement agreement with him as an incentive for constructing the facility in the city. After the facility was built, Douglas received a tax statement reflecting a full assessment of taxes, with no abatement. Douglas sued the city for negligent misrepresentation, fraudulent inducement, and breach of contract. The city answered and argued that Douglas’s claims were barred by governmental immunity. The trial court granted the city’s plea to the jurisdiction, and Douglas appealed.

The Dallas Court of Appeals stated that assessment and collection of taxes is a governmental function. Under the Texas Tort Claims Act, there is no waiver of immunity for tort claims arising in connection with the assessment or collection of taxes by a governmental unit. Therefore, the court concluded that the trial court did not err when granting the city’s plea to the jurisdiction with respect to Douglas’s negligent misrepresentation and fraudulent inducement claims.

The Dallas Court of Appeals refrained from weighing in on whether the governmental/proprietary dichotomy applies to Douglas’s breach of contact claim. Instead, the court stated that it already concluded that Douglas’s claim implicates a governmental function for which immunity is not waived. The city also argued that a tax abatement agreement is not an agreement for goods or services. Because Douglas did not challenge this independent ground that could support the trial court’s ruling, the Dallas Court of Appeals affirmed the dismissal of the breach of contract claim.     

Code Enforcement: Benitez v. City of Dallas, No. 05-13-01368-CV, 2015 WL 3511476 (Tex. App.―Dallas June 3, 2015) (mem. op.).  The City of Dallas filed a petition alleging Benitez was using property illegally for outside salvage and reclamation. The city sought an injunction enjoining the illegal land use. Benitez did not file an answer, and the city filed a motion for default judgment. At the trial court’s hearing, a code enforcement officer testified that Benitez did not have a specific use permit, which would have allowed the otherwise illegal use. The trial court entered a default judgment granting the city injunctive relief and awarding civil penalties. Benitez filed a motion to set aside the default judgment. When that was overruled, Benitez appealed. The Dallas Court of Appeals concluded that the evidence was legally and factually sufficient to support the trial court’s award, citing the testimony and photographs produced at the hearing. The appeals court affirmed the trial court’s judgment.

Tax Foreclosure: Roal Global Corp. v. City of Dallas, No. 05-14-01049-CV, 2015 WL 2407827 (Tex. App.―Dallas May 21, 2015) (mem. op.). This is an interlocutory appeal from the granting of the city’s plea to the jurisdiction in a case involving an interpretation of the Tax Code which the court of appeals affirmed. The main issue is whether the declaratory judgment claims are permitted since no challenge to an ordinance or statute exists. Roal Global alleges it purchased two properties from the city which the city acquired through tax foreclosure, but the city subsequently asserted Roal Global owed the outstanding property taxes. Roal Global sued the city which responded with a plea to the jurisdiction. The trial court granted the plea and Roal Global appealed. Roal Global was essentially seeking a declaration of its rights and status under sections of the Tax Code by asserting the city should have applied the sale proceeds to the back taxes. However, the Uniform Declaratory Judgment Act does not waive the government’s immunity from a suit seeking a declaration of rights under a statute or that government actors violated the law, only that a statute or ordinance is invalid. As a result, the plea was properly granted.  And since this is an interlocutory order and other parties remain, once the stay under Texas Civil Practices & Remedies Code Section 51.014(b) is lifted, Roal Global can add ultra-vires claims if it wishes, but there is no need to allow suit against the entity to continue and no need to allow them to re-plead against such entity.*

Nuisance/Trespass:  Sciscoe v. Enbridge Gathering (North Texas), L.P., No. 07-13-00391-CV, 2015 WL 3463490 (Tex. App.—Amarillo June 1, 2015) (mem. op.).  This is a consolidation of three separate cases with multiple parties and multiple defendants with certain procedural complexities. For the government lawyer, the important thing to take away from the case is the ability of a city to sue for damages (lost tax values) due to nuisance and trespass.

Eighteen property owners and the City of DISH sued six different energy production companies (Energy Defendants) alleging noise, light, odors and chemical particulates emanating from the facilities constituted trespass and a nuisance and a decrease in property value. Essentially, the facilities were natural gas pipeline compressor stations near the outskirts of the city. There appears to be no dispute the Energy Defendants were operating within federal and state regulations for production and emissions. Nevertheless, the city and property owners sued due to the damage in property values and loss of enjoyment of property. The trial court granted various motions ultimately dismissing the claims and the city and property owners appealed.

The Amarillo Court of Appeals spent considerable time explaining why odors and particles may constitute trespass and a nuisance. The court then explained that simply because the Energy Defendants complied with regulations on emissions does not mean they are immune from the consequences those emissions may cause. “Stated another way, just because you are allowed by law to do something, does not mean that you are free from the consequences of your action . . . .  Regulatory compliance or licensure is not a license to damage the property interests of others.”  However, the court also held that diminution in future value or a damage of $1,000 per day is more akin to a penalty or future regulation which is preempted by federal and state law. One Energy Defendant argued the city lacked authority to sue for actions taken outside of its extraterritorial jurisdiction.  The court first noted the city has authority to sue for damages.  That is different than suit to enforce regulations or to attempt to regulate outside of its boundaries. “Here, DISH does not seek to regulate or abate any of Enterprise’s operations but, instead, seeks to recover damages allegedly resulting from lost tax revenues occasioned by the diminution in value of its tax base . . . .” which is permissible. The court made other holdings which were specific to the property owner claims and are not addressed here.*

Abandoned Personal Property: Sierra v. City Of Pharr, No. 13-14-00425-CV, 2015 WL 2452707 (Tex. App.—Corpus Christi May 21, 2015) (mem. op.). This is an appeal from the granting of a plea to the jurisdiction involving the alleged wrongful sale of an impounded vehicle. The Thirteenth Court of Appeals affirmed the granting of the plea.

City of Pharr police reported that it was informed by an agent with Customs and Border Protection that the agency had Sierra in custody. At the time of her arrest, she was driving a Cadillac Escalade which was impounded. While Sierra provided proof of ownership of other property seized, she could not provide proof of ownership of the vehicle, noting it was purchased from a friend but the ownership transfer had not yet occurred. When the vehicle remained unclaimed for more than twenty days, the city put notices in a newspaper then sold it. Later, seeking return of the vehicle, Sierra and Trevino filed suit asserting the seizure was improper and the city had no valid claim to the title. The city filed a plea asserting the recorded title owner (Armando Guadalupe Bazan Garcia) made no claim and that Sierra and Trevino had no standing as they were not the title owners. The court granted the plea.

Although Sierra and Trevino alleged that Trevino owned the vehicle, they provided no evidence to establish title or standing to seek recovery of the vehicle. Instead, the city provided a bill of sale, which it attached to its plea to the jurisdiction that identified Garcia as the registered owner of the vehicle. This conforms with Sierra’s statement to police that the sale had not been completed. Sierra and Trevino did not respond to this evidence by disputing it with contrary evidence. As a result, they did not establish standing and the plea was properly granted.*

Workers’ Compensation: Harvel v. Texas Dep’t of Ins., No. 13-14-00095-CV, 2015 WL 2452703 (Tex. App.—Corpus Christi May 21, 2015) (mem. op.). This is an interlocutory appeal from the granting of a plea to the jurisdiction in a workers’ compensation case. The court affirmed the granting of the plea.

While in route to firearms training in his personal vehicle, Harvel collided with a vehicle which failed to yield the right of way. The City of Austin, which self-insures, denied Officer Harvel’s claim for workers’ compensation benefits. Officer Harvel challenged that decision and received a contested case hearing before a division hearing officer who denied the coverage.  See Tex. Lab. Code § 410.15.  Harvel filed suit for judicial review which was joined by the Austin Police Association (Association);  they sued the state agencies and officials, not the city. The city filed a plea to the jurisdiction which the trial court granted.

Judicial review of a final agency order and a Uniform Declaratory Judgment Act (UDJA) action are separate proceedings authorized and governed by different statutes. The court held the issue of whether the state agencies and actors are proper parties to the dispute was improperly briefed and unsupported, so the granting of the plea on that claim is affirmed. Next, the court held Harvel’s declaratory judgment claims are essentially claims seeking declarations of his rights and status under a statute, not the attempt to invalidate a statute. As a result, the agencies retain sovereign immunity from such claims. And because the relief requested under the UDJA are mere recasts of the appeal of the agency orders, he will not be given the opportunity to re-plead. Also, the allegations affirmatively negate the existence of jurisdiction, so no right to re-plead is allowed. The Association’s claims are mere hypotheticals, and therefore seek an advisory opinion which the court is not permitted to consider. The plea was properly granted.*

Governmental Immunity: City of Brazoria v. Ellis, No. 14-14-00322-CV, 2015 WL 3424732 (Tex. App.—Houston [14th Dist.] May 28, 2015) (mem. op.). In 2012, Officer Nicholas Dayton of the City of Brazoria police department was involved in a traffic collision with Walter Ellis. Dayton was responding to a call for emergency assistance when his patrol car crashed into the driver’s side door of Ellis’s vehicle. Ellis filed a negligence suit against the city. The city filed a plea to the jurisdiction, arguing that the trial court lacked jurisdiction over the claims because it had not waived its governmental immunity because: (1) Officer Dayton’s official immunity preserved the city’s governmental immunity; and (2) the emergency exception in the Texas Tort Claims Act (Act) barred any possible waiver of its governmental immunity. The trial court denied the city’s plea to the jurisdiction, and the city appealed.

On appeal, the city contends that because Officer Dayton retained his official immunity by responding to the emergency call in good faith, that he could not be personally liable to the clamant under Texas law, and therefore the city’s governmental immunity was not waived under the Act. See Tex. Civ. Prac. & Rem. Code § 101.021(1)(B). To address this question, the court analyzed whether the city met its burden to conclusively prove Officer Dayton’s “good faith.” The court held that the city’s evidence of good faith was inconclusive because the city failed to mention the officer’s blocked field of vision as he entered the intersection, and there was conflicting evidence about whether Officer Dayton was using his siren prior to the collision. As a result, the trial court did not err when it denied the city’s plea to the jurisdiction asserting that the city’s immunity had not been waived under the Act. The above considerations also raise a fact issue as to whether Officer Dayton’s conduct could be considered reckless. Accordingly, the court of appeals held that the trial court correctly denied the city’s plea to the jurisdiction based emergency exception to the Act’s waiver of immunity.

*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