Recent Texas Cases of Interest to Cities

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

Whistleblower:  Texas Comm’n on Envtl. Quality v. Resendez, No 13-0094, 2014 WL 6612570 (Tex. Nov. 21, 2014) (per curiam).  This case is a follow up to Texas Dep’t of Human Servs. v. Okoli, 440 S.W.3dd 611, 616 (Tex. 2014), in which the Supreme Court of Texas held that an internal report of wrongdoing is not sufficient to trigger the employee protections available in the Whistleblower Act, Chapter 554 of the Texas Government Code.  The Whistleblower Act protects government employees from adverse employment actions that result from reporting legal violations to “appropriate law enforcement authorities.”   In this case, the employee was terminated from the Texas Commission on Environmental Quality after reporting violations of law to her supervisors and a state senator’s office.  The court affirmed its holding from Okoli, and held that the report of wrongdoing to internal supervisors and a state senator’s office was insufficient because these individuals have no “outward-looking” law enforcement authority.

Governmental Immunity—Contracts: Damuth v. Trinity Valley Cmty. Coll., No. 13-0815, 2014 WL 6612535 (Tex.  Nov. 21, 2014) (per curiam).  The issue in this case is whether Chapter 271 of the Local Government Code, which waives governmental immunity for certain contracts, includes waiver in cases of employment contracts.  Damuth sued his government employer, the community college, when he was fired in the middle of his employment contract.  The college argued that claims of breach of employment contract do not waive a governmental employer’s governmental immunity because: (1) Chapter 271 does not mention employment agreements; and (2) Chapter 271 is within a title of the Local Government Code dealing with acquisition, sale, or lease of property.  The court found these arguments unpersuasive and held that employment contracts are covered under Chapter 271, and that the college’s governmental immunity is waived for these types of claims.  See City of Houston v. Wiliams, 353  S.W.3d 128, 131, 139 (Tex. 2011).

Open Meetings: Tarrant Reg’l Water Dist. v. Bennett, No. 02-13-00354-CV, 2014 WL 6686482 (Tex. App.—Fort Worth Nov. 26, 2014).  This case involves a question regarding the interpretation of Water Code Section 49.064.  Section 49.064 states that water districts are covered by the Texas Open Meetings Act (TOMA), but meetings of committees appointed by a district are not constrained by TOMA so long as there is not a quorum of water district board members at a committee meeting.  The court of appeals holds that Section 49.064, in conjunction with the TOMA definition of a meeting as a gathering where there is a quorum of the governing body in attendance, means that the committees in this case were not required to have open meetings.  The court also noted that the fact that the board may be “rubber-stamping” the committees’ decisions did not make the committees subject to TOMA’s requirements. In this opinion, the court also discounted the persuasiveness of the various Texas Attorney General Opinions that state that a committee of a government body might be covered by TOMA if the committee has the power to control public business or policy.  The court’s discussion of the non-applicability of the attorney general opinions is two-fold: (1) none of the opinions specifically address Section 49.064 of the Water Code; and (2) construing TOMA to cover meetings of less than a quorum renders the term “meeting” within the TOMA meaningless.

Contractual Immunity: Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, No. 04-14-00451-CV, 2014 WL 6687247 (Tex. App.—San Antonio Nov. 26, 2014) (mem. op.).  This case is part of a continuing battle between the City Public Service Board of San Antonio (CPS or CPS Energy) and Wheelabrator.

In this case, the trial court granted CPS’s plea to the jurisdiction as to a claim for attorney’s fees and Wheelabrator appealed. Wheelabrator entered into a design and construction contract with CPS Energy in 2004 and later asserted CPS breached the contract. In 2012, the Fourth Court of Appeals issued an opinion noting CPS retained immunity for claims and damages brought outside of Chapter 271 of the Texas Local Government Code since the proprietary/governmental dichotomy does not exist in a contract context. Wheelabrator brought claims under Chapter 271 and asserted damages including those for attorney’s fees. CPS asserted the contract was entered into prior to 2005 (the date immunity waiver added to Chapter 271) so it retained immunity for the attorney’s fees claim. The trial court granted the plea and Wheelabrator appealed.

The court of appeals noted the waiver of immunity in Chapter 271 is not retroactive. In 2005, the waiver did not contain a provision for the recovery of attorney’s fees but that was amended in 2009. However, that amendment is not retroactive and applies only to contracts executed after June 19, 2009. The court further recognized the Texas Supreme Court’s opinion in Zachry Constr. Corp. v. Port of Houston Auth. of Harris Cnty., 2014 WL 4472616 (Tex. 2014), which disapproved of the Fourth Court’s opinion in  Roma Indep. Sch. Dist. v. Ewing Constr. Co., No. 04-12-00035-CV, 2012 WL 3025927, at *4-5 (Tex. App.—San Antonio July 25, 2012, pet. denied) holding the damages categories applied to immunity from liability only. As a result, CPS retains immunity from suit for attorney’s fee claims under this contract and a plea to the jurisdiction was the proper vehicle to make such a challenge. Next, the court addressed Wheelabrator’s claims that CPS waived immunity by seeking affirmative relief but held CPS only asserted that if found liable, any damages should be offset by amounts owed to another contractor on the same project. That is not the same as “joining the litigation process by asserting claims for affirmative monetary relief” but is merely a defensive stance so no waiver exists. Finally, Wheelabrator had ample time to formulate its pleadings, and the pleadings affirmatively show no fact question exists to prevent the plea at this stage since it is clear the contract was entered into in 2004. Therefore, the grant of the plea was affirmed.*

Zoning: Board of Adjustment of the City of Univ. Park v. Legacy Hillcrest Inv., L.P., No. 05-13-01128-CV (Tex. App.―Dallas Dec. 8, 2014) (mem. op.).  In this Board of Adjustment appeal, the Dallas Court of Appeals reversed the trial court’s judgment granting relief to Legacy Hillcrest Investments (Legacy) in a zoning dispute.

Legacy owns property within the city which is surrounded by single-family, multi-family, parking, and office zones. Legacy sought zoning changes over a span of ten years to allow a planned development.  In the last proposal in 2011, Legacy filed a permit application for above-ground parking next to a single-family zone. The board of adjustment (BOA) denied the permit and Legacy brought a writ of certiorari appeal in district court. After a three day hearing, the trial court ruled in favor of Legacy, issued a permanent injunction against violating the Texas Open Meetings Act (TOMA), and awarded attorney’s fees. The BOA appealed.

Under the city’s code, an above-ground parking structure may not be “adjacent” to a single-family zone. Legacy asserts “adjacent” can have only one meaning, that of being “contiguous,” and it is undisputed the parking structure’s location does not touch the boundary line although it is within 100 feet. The court held the plain and ordinary meaning of “adjacent” means “to lie near, border or, not distant or far from, nearby but not touching.”  Additionally, the districts, by definition, go to the center of the streets, which caused a touching of lines by district.  As a result, the BOA properly interpreted its own code and denied the permit. The evidence did show the BOA did not take any minutes of work sessions to comply with TOMA but has since started doing so. As a result, a permanent injunction serves no purpose and Legacy was not able to demonstrate imminent harm or irreparable injury. The court held TOMA does not specify the term “convene” so it is not necessarily a violation when the board meets in closed session for work sessions without first opening the meeting publically by some formalized process. Additionally, the evidence established the subject of the closed meetings was to properly seek advice from their attorney regarding pending matters and is an authorized subject for executive session. Finally the court reversed the attorney’s fees award and rendered judgment for the BOA.*

Governmental Immunity: City of Diboll v. Lawson, No. 12-13-00344-CV, 2014 WL 6792679 (Tex. App.—Tyler Dec. 3, 2014) (mem.op.). In March 2010, Carolyn Burns tripped on a four inch hollow pipe protruding from the ground at a park owned by the City of Diboll after attending her granddaughter’s softball game. Burns suffered serious injuries from the fall, and brought a premises defect claim against the city (Louie Lawson was later substituted as plaintiff after Burns’ death in an unrelated automobile accident). The trial court denied the city’s plea to the jurisdiction and the city appealed.

On appeal, the city argued that Burns was engaged in recreation while she walked to her car after spectating at the softball game, and as a result the city did not owe a greater degree of care to Burns than is owed to a trespasser on the premises in accordance with the recreational use statute. See Tex. Civ. Prac. & Rem. Code § 75.002(f). Noting that there is a conflict among the courts of appeals regarding whether spectating at a sporting event constitutes recreation, the court held that spectating does, in fact, constitute recreation and that an injury occurring on the premises while walking to and from the activity is part of the larger recreational event. Because the court determined that Burns was engaged in recreation, the city owed no greater degree of care than is owed to a trespasser, which under Texas law is a duty not to injure the person through gross negligence. Lawson conceded in his brief that he had not alleged or attempted to prove that the city acted with gross negligence. Therefore, the court held that Lawson’s petition affirmatively negated the trial court’s subject matter jurisdiction. The court reversed the trial court’s order denying the city’s plea to the jurisdiction, and dismissed the suit for lack of subject matter jurisdiction.

Contractual Immunity: City of Alamo v. Osuna, No. 13-13-00317-CV, 2014 WL 6602387 (Tex. App.—Corpus Christi Nov. 20, 2014) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a breach of contract case for leased property. The Thirteenth Court of Appeals reversed the denial and rendered.

Osuna entered into a lease-purchase agreement with the City of Alamo Economic Development Corporation (EDC). Osuna asserts the city and EDC took possession of and locked him out of the property even though he did not miss any payments. While still denying the allegations, the city and EDC filed a plea to the jurisdiction claiming immunity from suit in a contract. The trial court denied the plea and the city and EDC appealed.

The court first analyzed Osuna’s argument that the lease required him to make improvements (which he did), transforming the agreement into a services contract for which a waiver exists under Chapter 271 of the Texas Local Government Code. The court analyzed the language of the lease and held its primary purpose was for the lease of property (not services to the city), stating there is  “nothing in this lease-purchase agreement that could even arguably support a conclusion that Osuna agreed to provide any services to appellants.” The city was not to provide any payment for services or any compensation for activities on the property. The city and EDC had no way to enforce any alleged services under the contract. As a result, the city defendants maintained immunity from suit. The court then noted Osuna abandoned his quantum merit claims since he omitted them from his amended petition. The court also held it was unable to find any case or statute holding immunity is unambiguously waived for civil conspiracy or unlawful lockout. As a result, the plea should have been granted and the court reversed and rendered. However, in a footnote, the court noted the individual defendants did not file an appeal so the civil conspiracy claim will continue in the trial court.*

Governmental Immunity: Texas Dep’t of Pub. Safety v. Guzman, No.13-13-00590-CV, 2014 WL 6085684 (Tex. App.—Corpus Christi Nov. 13, 2014) (mem. op.). This is an interlocutory appeal in a premise defect case where the trial court denied the Texas Department of Public Safety (DPS) plea to the jurisdiction and the Corpus Christi Court of Appeals affirmed.

Guzman entered the DPS office to deal with a driver’s license matter, slipped and fell on the floor due to water. A DPS custodian was mopping nearby. DPS filed a plea to the jurisdiction alleging a lack of actual knowledge of a dangerous condition and attached the custodian’s affidavit asserting he had not mopped that area at the time Guzman fell. The trial court denied the plea and DPS appealed.

The court held that Guzman’s affidavit asserted she fell due to water on the floor. Given her expressed observations of the area just prior to her fall, she could reasonably infer the water was due to the custodian’s mopping. Since every reasonable inference must be viewed in the light most favorable to the non-movant, the court concluded a fact issue existed as to whether or not the custodian had actual knowledge of the dangerous condition. The fact she did not actually see him mop the area is not determinative. Additionally, the court upheld the trial court’s denial of DPS’s objections to strike the affidavit, noting her statements were reasonably supported in the affidavit with observed facts.*


*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