Recent Texas Cases of Interest to Cities

Note:  Included cases are from February 11, 2014 through March 10, 2014.

Harassment: Texas Dep’t of Aging & Disability Servs. v. Iredia, No. 01-13-00469-CV, 2014 WL 890921 (Tex. App.—Houston [1st Dist.] Mar. 6, 2014) (mem. op.).  This is a case about what constitutes harassment.  In this case, a supervisor at a state supported living center continually made comments to a subordinate about how “skinny” she was, his sexual preferences, and how his preferences related to her body type. The subordinate stated that these comments occurred every day her supervisor was in the office for the three years she worked at the center.   She also stated that he kicked her door in every time he came to see her and treated her coworkers more favorably.  When she was terminated, she filed suit for harassment.  The issue was whether these types of comments could be viewed as “sexual harassment” under Chapter 21 of the Labor Code.  The court held that the comments and other allegations created a hostile work environment based on sexual harassment.  The court held that the supervisor’s actions were not severe, but that there was sufficient evidence that the cumulative effect of his comments and actions were pervasive enough to create an abusive work environment, even if some of the conduct was not “sexual” in nature.

Whistleblower: City of Houston v. Smith, No. 01-13-00241-CV, 2014 WL 768330 (Tex. App.—Houston [1st Dist.] Feb. 25, 2014) (mem. op.).  This case is a fact based inquiry into whether a grievance was timely initiated.  Under the Whistleblower Act, a claimant must, before filing suit, initiate a grievance within 90 days of when the alleged adverse action “occurred” or “was discovered by the employee through reasonable diligence.”  Tex. Gov’t Code § 554.006.  In this case, a peace officer sued the city under the Whistlebower Act for a demotion.  The facts are that the officer was promoted temporarily to an administrator position. While in this position, the officer reported errors and violations of law of a third party to his superiors at the police department.  The officer was then demoted to a different position, but was told that the demotion was temporary and for a special project for which he had special skills.  This was in October 2010.  At the end of May 2011, the demotion was made permanent.  The officer then initiated a grievance.  The grievance was timely filed if dated back from the May 2011 date, but not the October 2010 date.  The issue in this case is whether his grievance was timely initiated.  The court held that there was a fact issue as to whether the grievance was timely initiated because there was evidence that the “discovery” of the adverse employment action under Chapter 554 of the Texas Government Code occurred in May 2011 when the demotion was made permanent.

Governmental Immunity-Contract:  Midtown Edge, L.P. v. City of Houston, No. 01-12-00730-CV, 2014 WL 586232 (Tex. App.—Houston [1st Dist.] Feb. 13, 2014) (mem. op.). This case began when Edge was trying to develop condominiums in the City of Houston.  The city required that Edge build its own wastewater line, and in a letter outlined Edge’s options including:  cost sharing, financing the line, or building the line and requesting future connectors to pay a pro rata share for connections to the line.  Edge chose to build the line without cost sharing.  At some point, a different apartment complex connected to the line that Edge had built and Edge requested that the city reimburse Edge for the new connector’s pro rata share of the line.   The city denied reimbursement and the new connector disconnected from Edge’s line and connected to the city’s line.  The first question is whether the city’s letter outlining Edge’s options and the city’s ordinances regarding this type of exaction created an enforceable contract under Chapter 271 of the Local Government Code.  The court held that a contract was not created because the letter’s terms were not definite enough to create a valid offer to which Edge could accept. Then Edge argued that requiring it to pay for the line was a taking under the Texas Constitution.  The court denied this claim because Edge appeared to have paid for building the line without objection and had consented to the city’s requirements.  The court also held that the Edge’s promissory estoppel claims and declaratory judgment claims were invalid as the city retained its immunity against both claims.

Official Immunity: Oxford v. City of Ballinger, No. 03-13-00108-CV, 2014 WL 858857 (Tex. App.—Austin Feb. 25, 2014) (mem. op.).  This is an appeal from the granting of a plea to the jurisdiction where the plaintiff alleged the City of Ballinger destroyed his mobile home and stole other property, which was relevant to another civil lawsuit. The Austin Court of Appeals affirmed the dismissals.

Oxford’s mobile home was condemned and demolished by employees of the City of Ballinger. The city filed a motion to dismiss the individual defendants under Section 101.106(e) of the Texas Tort Claims Act because they were employees of the city. The city filed a plea to the jurisdiction asserting the only claims pled were intentional torts (i.e. intentional infliction of emotional distress). The trial court granted the city’s motions and Oxford appealed. The court of appeals first held that since Oxford did not dispute he was bringing only tort claims and the individual defendants were employees, the court affirmed the dismissal of the employees.  The court next analyzed the wording in Oxford’s pro se petition and held that he did not actually say anyone was negligent, but instead claims the city intentionally acted in the demolition of his property.  As a result, the city retains immunity for such intentional torts and the claims were properly dismissed.*

Employment Law: Rodriguez v. City of Poteet, No. 04-13-00274-CV, 2014 WL 769286 (Tex. App.—San Antonio Feb. 26, 2014) (mem. op.).  This is an age discrimination and retaliation case where the trial court granted the city’s traditional motion for summary judgment and the appellate court affirmed. Rodriguez, the Director of Public Works, received a salary reduction then initiated an age discrimination suit in 2008, but settled in 2009.  In 2010, two subordinates filed complaints against Rodriguez, and after an independent investigation, Rodriguez was terminated for violating the city’s sexual harassment policy. He sued alleging age discrimination and retaliation for filing the 2008 suit. The city filed a traditional motion for summary judgment, which the trial court granted. Rodriguez appealed, claiming the trial court judge erred in excluding affidavits he filed countering the city’s evidence. The appellate court noted Rodriguez’s first attempt to file the affidavits was by fax, which is not permitted by the local rules.  The second attempt was by Federal Express.  Although the package was delivered by the deadline, Rodriguez was unable to show the affidavits were “put under the custody or control” of the clerk, which is required by the Texas Rules of Civil Procedure.  Further, the city specifically objected that an affidavit produced by Rodriguez in the discovery period was unsworn.  The trial court sustained the objection and did not consider the affidavit.  The court of appeals concluded that the trial court properly excluded the affidavits in question.

The court briefly examined Rodriguez’s claim that two officials had retaliatory biases against him. However, the court found that Rodriguez offered no evidence suggesting the two officials were the ones making the termination decision.  The court then held the city properly met its burden of production establishing a legitimate non-discriminatory basis for the termination, which negated Rodriguez’s retaliation and age discrimination claims. As a result, the trial court judgment is affirmed.

Uniform Declaratory Judgment Act: City of San Antonio v. Rogers Shavano Ranch, Ltd., No. 04-13-00623-CV, 2014 WL 631484 (Tex. App.—San Antonio Feb. 19, 2014) (mem. op.). This opinion addresses whether a plaintiff can recover attorney’s fees under the Uniform Declaratory Judgment Act (UDJA) for claims brought under the vested rights provision of Chapter 245 of the Texas Local Government Code.  The appellate court held they could.

The developers sought declarations that either a water contract or a development sewer report constituted an “original application for the permit” under Chapter 245 thereby vesting their rights and preventing application of future ordinances and regulations. In addition, the developers sought attorney’s fees under the UDJA. The city filed a plea to the jurisdiction asserting it retains sovereign immunity for the attorney’s fee claims which the trial court denied. The city appealed. Citing to the Texas Supreme Court’s holding in Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011), the San Antonio Court of Appeals noted that sovereign immunity is waived under the UDJA only for claims challenging an ordinance, not for claims challenging or seeking the construction of another statute, law, or written instrument. The court pointed out some inconsistency under Sefzik with the language of the UDJA, but held that Sefzik “is the more recent pronouncement, and we are bound by its holding.”  The court went further stating that under Sefzik and the Heinrich line of cases, even if another statute authorized declaratory relief against a city it is not a clear and unambiguous waiver for attorney’s fees under the UDJA.  This is a recently developing area of law where the UDJA application is being limited only to claims challenging the validity of an ordinance and the local governmental entity retains immunity for all other UDJA claims. Further, if another statute authorizes a UDJA action against an entity, that does not waive immunity from attorney’s fees, since only acts challenging ordinances can do so.  The Fourth Court of Appeals, in this case, held that the award of attorney’s fees is also redundant since the attorney’s fee claims are “incidental to [the] central theory of relief.”  Citing to Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 301 (Tex. 2011), the court held that such incidental claims do not waive immunity for the awarding of fees. This essentially means that if the statute authorizing the initial claim, in this case Chapter 245, does not authorize attorney’s fees, then the UDJA cannot be used to create such an award. If the initial statute does authorize such fees, then they are recoverable under the UDJA. As a result, the trial court erred in denying the city’s plea.*

Zoning: Abbott v. City of Paris, No. 06-13-00092-CV, 2014 WL 895195 (Tex. App.—Texarkana Mar. 7, 2014).  This case has a fairly complex history involving a previous lawsuit and appeal.  Both suits involve a piece of property Ranger Abbott purchased, half of which was being used as a mobile home park.  This property was being used as a mobile home park prior to the City of Paris’ annexation of the property.  The remainder of the property was unused; however, Abbott intended to expand the mobile home park to encompass the entire property.  The property was zoned “commercial” when Abbott acquired it, but the city manager at the time informed Abbott by letter that a mobile home park was an “approved, non-conforming use” of the property.  Abbott submitted a plan to the city’s planning and zoning department detailing his proposal for roadways, driveways, and new trailer pads.  The department informed him that placing additional mobile homes on the property would require a change in zoning.  Abbott believed this rezoning requirement was a breach of the letter he received from the city manager, and he sued the city.

In the first suit, the city filed a plea to the jurisdiction, which the trial court granted with respect to the claims Abbott filed under the Texas Tort Claims Act.  However, the trial court denied the city’s plea to the jurisdiction relating to Abbott’s claims for inverse condemnation, due process, equal protection, and breach of contract.  The city appealed, and the appeals court reversed and rendered judgment dismissing the lawsuit.

Abbott filed a second lawsuit against the city in October 2012.  The city filed a plea to the jurisdiction alleging that Abbott failed to present any evidence that there was a waiver of governmental immunity.  The trial court granted this plea.  Abbott appealed.  After analyzing and dismissing each of Abbott’s claims, the Texarkana Court of Appeals affirmed the judgment of the trial court.

Whistleblower:  City of Fritch v. Coker, No. 07-13-00287-CV, 2014 WL 812915 (Tex. App.—Amarillo Feb. 27, 2014) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Whistleblower Act case in which the appellate court reversed the lower court, dismissing all claims.

Coker was the Chief of Police for the City of Fritch. The city received complaints about the status of property within the city owned by Alana Gariepy. After obtaining an administrative search warrant, the city began abatement procedures. However, when Coker arrived with personnel to begin abating the nuisance, he spoke with Gariepy, believed the city had not followed the proper procedures and withdrew personnel from the property. Coker then contacted the Texas Rangers, the local district attorney, the attorney general’s office and the Texas Department of Public Safety informing them that he believed the city trespassed on Gariepy’s property violating her civil rights because it did not follow the proper abatement procedures. The city terminated Coker and he filed suit. The city filed a plea to the jurisdiction. The trial court granted the plea as to Coker’s Sabine Pilot claims but denied it as to the Whistleblower claims. The city appealed.

The appellate court first analyzed Coker’s affidavit in response to the city’s plea and held that certain statements were conclusory. Coker claims he was informed that the correct procedures had not been followed regarding the appeal of the Gariepy abatement. Yet, nowhere in the record is there provided either information about the nature of the defect, the proper procedures, or even why Gariepy makes such a claim. Further, there is no support for his claim that the police were on the property illegally. Next, the court analyzed the administrative search warrant issued by the municipal court judge and the official minutes of the city council meeting declaring a nuisance and ordering abatement. Both supported lawful presence on the property.  As a result, Coker could not have believed he was reporting a violation of law in good faith. The city therefore negated an essential jurisdictional element and the plea should have been granted.*

Collective Bargaining:  Orange Assoc. of Fire Fighters v. City of Orange, No. 14-13-00061-CV, 2014 WL 891591 (Tex. App.—Houston [14th Dist.] Mar. 6, 2014) (mem. op.). This is a collective bargaining case where the trial court held a grievance was not subject to the collective bargaining agreement’s (CBA) arbitration provision.  The Fourteenth Court of Appeals reversed and remanded (but really rendered).

Orange Association of Firefighters (association) filed suit against the City of Orange and its city manager (the city), seeking declaratory and injunctive relief to compel arbitration of a grievance pursuant to the parties’ CBA. The basis of the grievance was that the fire chief assigned an employee involuntarily to the position of fire marshal when, in the past, the position had been filled by voluntary assignment. The association alleged that the change from its past practices was a violation of the CBA.  The city refused to submit to arbitration noting the CBA expressly provided an exclusion for assignments of work.  The association brought suit. The trial court granted the city’s traditional motion for summary judgment, denied the association’s motion and the association appealed.

The appellate court held despite the express clause reserving the right to management to assign work, the city violated the CBA’s “maintenance of standards” provision by altering its past practices of filling the position of fire marshal by voluntary assignment. The court focused on the lack of an exclusion for “maintenance and standards” from the arbitration provision even though there was an express exclusion clause for assignments of work.  The court further held the grievance involves the “interpretation, enforcement, or application” of the CBA and, thus, would be subject to the specified grievance procedure including arbitration. The trial court’s order was reversed and a judgment compelling arbitration rendered. The court then reversed the award of attorney’s fees against the association.*

Governmental Immunity:  Parker v. Hunegnaw, No. 14-13-00031-CV, 2014 WL 800998 (Tex. App.—Houston [14th Dist.] Feb. 27, 2014) (mem. op.). City of Houston Mayor Annise Parker appeals the denial of her second amended plea to the jurisdiction in this trespass-to-try-title suit. The appellate court affirmed the denial.

Hunegnaw owned several lots and executed a durable power of attorney (POA) to an agent to handle the property, including selling or conveying the property. Hunegnaw asserts the instrument applied only to lots 36F and G while Mayor Parker contends it applied to all property in the track. In 2004, five lots were transferred to Treasa Antony via deed bearing Hunegnaw’s signature which was a stamp given to his agent under the POA. Antony sold three lots to the City of Houston via general warranty deed. Hunegnaw asserts the deeds were invalid because Antony’s deeds were forged and not authorized. Hunegnaw sued the agent, Antony, the notary, and the city’s sitting mayor at the time. He asserts the city is wrongfully withholding possession of the property.  Mayor Parker asserts the claims against the city are barred by governmental immunity and the mayor, as a public official, is immune unless she acted in an ultra vires manner. The trial court denied the plea, Parker appealed.  This court previously affirmed the denial in a former opinion.  The court notes that in the former opinion, no claims against Parker were viable against her individually, but only in her official capacity.  Parker filed a second plea/motion for summary judgment (MSJ) with supporting evidence. The trial court denied the second plea/MSJ and Mayor Parker appealed.

The court first held that the fact that a grantee is an innocent purchaser is immaterial because one cannot obtain bona fide purchaser status when there is a forged deed. The court analyzed several challenges to Hunegnaw’s affidavit but determined Parker waived several by not objecting.  They were complaints as to defects in form as most (but admittedly not all) of the statements were supported by evidence and therefore not conclusory.  The court’s standard of review does not permit the inferences argued by Parker, and Hunegnaw properly raised genuine issues of material fact precluding both the plea and MSJ.  The court next concluded that it is unclear whether Hunegnaw learned of the alleged fraud prior to the city’s purchase and should have acted. Finally, even though Parker was not the mayor at the time of the transfer, she is the one currently “wrongfully possessing” the property.  While Parker asserts the head of the Parks and Recreation Department is the proper official, she presented no evidence identifying the official, negating she lacks control over the decisions regarding the property, or that the department head is the proper party. As a result, the court held that the trial court properly denied her second plea/MSJ.*

Texas Tort Claims Act: University of Tex. Health Science Ctr. v. Dickerson, No. 14-13-00232-CV, 2014 WL 708521 (Tex. App.—Houston [14th Dist.] Feb. 20, 2014) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction arising under the Texas Tort Claims Act. The appellate court reversed the denial and dismissed the claims in which the plaintiff alleged physicians and staff improperly utilized tangible personal property resulting in the death of an infant.

Dickerson brought suit against the University Health Science Center (university) alleging a variety of negligent uses of personal property and motor driven equipment resulting in the death of his daughter from a streptococcus infection.  However, all of the allegations essentially stem from the belief that university staff misused and misread test results and failed to inform him of the results before discharge. The university filed a plea to the jurisdiction which the trial court denied and the university appealed.

The appellate court first held that the “use” of property requires more than reading and interpreting data. The use of information is not actionable. Dickerson cited old case law for the proposition that a waiver exists for misreading test data.  The court went through several cases examining and detailing the differences in the use of information versus the misuse of equipment.  The court ultimately determined that Dickerson’s claims are for the misuse of information for which the university retains immunity. Although focused on medical equipment, the case analysis can be helpful to an attorney dealing with a misuse of information type case. Since no waiver exists in this case, the claims were dismissed.

Law Enforcement: Harris Cnty. Sheriff’s Civil Serv. Comm’n v. Guthrie, No. 14-12-00474-CV, 2014 WL 576255 (Tex. App.—Houston [14th Dist.] Feb. 13, 2014). This is an appeal from a district court order reversing the Harris County Sheriff’s Civil Service Commission’s (commission) order affirming the termination of a deputy after he engaged in and interfered with an investigation into the theft of $17 out of his wife’s car at a local car wash. The appellate court reversed the district court order and remanded.

Guthrie’s wife reported $17 stolen from her car while at a local car wash. The theft was reported to and investigated by Humble Police Department (PD). Guthrie, a sheriff’s deputy, arrived at the scene and attempted to take over. Ultimately, he caused at least four sheriff’s deputies to respond to the scene even though PD officers were already present. After receiving verbal complaints about the matter, Guthrie’s supervisor, Major Hitchcock, signed a letter addressed to Internal Affairs who conducted an investigation and obtained witness statements.   Guthrie received a proposed termination letter and was given the opportunity to respond before the letter became official.  Guthrie appealed to the commission, which affirmed the termination. Guthrie appealed to district court which held that the department failed to follow Section 614.023 of the Texas Government Code requiring a signed complaint to be provided to the officer before disciplinary action is taken.  The commission appealed.

The appellate court first held that a “signed complaint” under Section 614.023 could only be a complaint written and signed by a person claiming to be the victim of misconduct. However, the evidence established the car wash owner’s “complaint” was for the temporary shutting down of the business, which was not the basis of termination. The termination letter listed several violations of civil service regulations including untruthfulness regarding the incident and a gross overreaction. As a result, Guthrie received a proposed termination letter listing the grounds alleged and was given the opportunity to respond. Further, Guthrie was provided the detailed signed statements of car wash employees, including the general manager, which spelled out the factual basis demonstrating the overreaction and untruthful behavior. As a result, the court held the signed statement qualified as a complaint under Section 614.023. The district court’s order was reversed.*

*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