Recent Texas Cases of Interest to Cities

Note:  Included cases are from May 11, 2014 through June 10, 2014.

Tort Claims Act:  Alexander v. Walker, No. 11-0606, 2014 WL 2535949 (Tex. June 6, 2014) (per curiam).   This is an election of remedies case under the Texas Tort Claims Act, Texas Civil Practices and Remedies Code Section 101.106.  Walker brought claims against two sheriff’s deputies based on false arrest, assault, and various other issues stemming from two different arrests.   The issue was who (the county or deputies) should be sued and how Section 101.106 works. The court goes through a detailed explanation of Section 101.106, especially subsection (f), and holds that the deputies’ conduct was within their “scope of employment” because the plaintiff’s federal suit was against the county for the exact same events.  Because the suit is against the deputies in their official capacities, they were entitled to dismissal of the suit as it is properly brought against the county.

Employment Discrimination:  City of Houston v. Proler, No. 12-1006, 2014 WL 2535994 (Tex. June 6, 2014).  The case begins by asking “Does a firefighter who refuses to fight fires have a ‘disability’ under either state or federal law?”  The Supreme Court of Texas answers no.  When one of its firefighters refused to enter a burning building, the city transferred the individual to the training academy.  He complained and got transferred back.  Again, when presented with a burning building, he could not go into the building.  Again, he was transferred to the training academy, and this time he filed suit under the Americans with Disabilities Act and Chapter 21 of the Labor Code.  The trial court held that the city was discriminating against the firefighter because of his “global transient amnesia” disability and ordered the city to reinstate him and stop discriminating against him and awarded him $362,000(!!!) in attorneys fees.  The Supreme Court of Texas held that the inability to set aside the normal fear of entering a burning building is not a disability and the city did not discriminate against the firefighter when they transferred him.  “A job skill required for a specific job is not a disability if most people lack that skill.”  2014 WL 2535994 at *3.  The firefighter also argued that he was “perceived as” having a disability.  The court held there was no evidence of this claim; the city had only perceived that the firefighter couldn’t do his job.

Tort Claims Act:  City of Watauga v. Gordon, No. 13-0012, 2014 WL 2535995 (Tex. June 6, 2014).  Gordon sued the city when his wrists were injured due to use of handcuffs by officers.  Under the Tort Claims Act, a city can be liable if a person suffers injury due to an employee’s negligent use of personal property, but a city’s immunity is not waived if the act is intentional.  Tex. Civ. Prac. & Rem. Code §§ 101.021; 101.057(2).  The city argued that the injury was not from the negligent use of property which would waive its immunity, but allegedly caused by the intentional use of personal property and was, therefore, a case of battery for which the city’s immunity was not waived.  Gordon argued that either: (1) he consented to being handcuffed; or (2) it was negligence because the officer did not intend to injure him. The court dismissed both arguments.  No one really consents to being handcuffed and the physical contact was intended—even if the injury was not.  Because the plaintiff alleged excessive force (a claim that a battery occurred) the act was intentional and the city is not liable.  The court dismissed the case against the city.

Tort Claims Act:  Brumfield v. Texas Dep’t of Transp., No. 02-13-00175-CV, 2014 WL 2462699 (Tex. App.—Fort Worth May 29, 2104) (mem. op.).  The plaintiff in this case was injured when he crashed his motorcycle on a highway that was under repair by the Texas Department of Transportation (TxDOT).  TxDOT had milled out the road, leaving it grooved and uneven, and left it that way for a couple of weeks before paving it.  TxDOT placed warning signs about the condition of the road.  The crash occurred while the road was still grooved.  The plaintiff sued under the Tort Claims Act (Act), arguing that the grooved road was a “special defect” or “premises defect.” Tex. Civ. Prac. & Rem. Code §§ 101.021(2); 101.022(b).  The state filed a plea to the jurisdiction.  Under the Act, special defects are compared to “excavations or obstructions on highways.” Id. § 101.022(b).  However, the road defect must “pose an unexpected and unusual danger to ordinary users of roadways.”  2014 WL 2462699 at *5.  The evidence showed that the grooving only caused up to a two inch difference in elevation. The court of appeals held that such a small difference was not a special defect under the Act.  The Texas Supreme Court also held that the two inch variation was not unreasonably dangerous and that the state did not have actual knowledge that the road condition would cause accidents. The court affirmed the trial courts order granting TxDOT’s plea to the jurisdiction and motion for summary judgment.

Inverse Condemnation: City of Austin v. Liberty Mutual Ins., No. 03-13-00551-CV, 2014 WL 2041867 (Tex. App.—Austin May 16, 2014).  This is an interlocutory appeal in an inverse-condemnation and Texas Tort Claims Act (Act) case where the trial court denied the city’s Rule 91a motion (Rule allowing dismissal for baseless claims). Since the city’s asserted entitlement to a “baseless” challenge is jurisdictional, the appellate court has interlocutory jurisdiction. The Austin Court of Appeals affirmed in part and reversed in part. A wildfire damaged numerous homes and caused injuries. The owners and insurance companies (through subrogation) brought a suit essentially alleging that the city started the fire when the city’s electric utility’s overhead distribution lines came in contact with each other during high winds. Plaintiffs brought inverse-condemnation, negligence, and trespass claims. The factual allegations center on the city’s decision, for cost savings, to go from a regular inspection of lines to a repair-as-needed policy. The city filed a Rule 91a motion for baseless claims. The city asserted the petitions did not sufficiently allege the “intent” and “public use” elements requiredfor a taking, their actions were governmental not proprietary, no proper charter notice was provided and it retains immunity. The trial court denied the motion and the city appealed. The appellate court noted that this is at heart a plea to the jurisdiction and it would analyze the case as such. Under a takings analysis a party must allege that the governmental entity intended the resulting damage, or at least knew that the damage was substantially certain to occur, not merely that it intended the act. This is a question of law. The court concluded the pleadings do not reasonably support a conclusion that the fire and damage was substantially certain to occur. The facts, at best, show “that the City’s conduct furnished a condition that made property damage a substantial risk. That is far different, however, from being the substantial certainty required for a valid takings claim.” It also noted the pleadings do not support a conclusion that the property was damaged for “public use.”  The court then analyzed the city’s immunity under the Act for the activities alleged. The city asserted that while a public utility operation is proprietary, its sub-acts of fire prevention and engineering decisions are still protected.  The court determined the activities complained of were proprietary so no governmental immunity applies. With regards to charter notice, the court held if the city had immunity from suit, the notice is jurisdictional.  If it does not, then the charter notice cannot confer immunity from suit and is nothing more than a liability defense.*

Civil Service:  Thompson v. City of Waco, No. 04-13-00460-CV, 2014 WL 2434589 (Tex. App.—San Antonio May 30, 2014).  The City of Waco adopted an ordinance that allows for thirty-five fire station lieutenants.  When one lieutenant was indefinitely suspended, Chad Thompson, a fire fighter for the City of Waco, was promoted to fire station lieutenant.  The suspended lieutenant appealed the suspension, and the hearing examiner reinstated the fire station lieutenant.  This created a condition where the number of fire station lieutenants exceeded the number of authorized positions.  When this happened, the fire chief demoted Thompson back to his previous position.  Thompson sued the city alleging that his demotion violated the Fire Fighter and Police Officer Civil Service Act (Act). The trial court granted the city’s motion for summary judgment and denied Thompson’s.  Thompson then filed this appeal.  The court of appeals recognized that the legislature has granted cities the authority to establish the number of classified positions under the Act.  The hearing officer’s reinstatement could not create an additional position.  The court concluded that the city provided Thompson with the protections afforded by the Act for force reductions, and the trial court properly granted the city’s motion.     

Payday Lending:  Consumer Serv. Alliance of Texas, Inc. v. City of Dallas, No. 05-13-00255-CV, 2014 WL 2156263 (Tex. App.—Dallas May 23, 2014). In this case, the Consumer Service Alliance of Texas, Inc. (CSAT) appeals the trial court’s order granting the City of Dallas’s plea to the jurisdiction.  The case involves the ordinance adopted by the Dallas City Council regulating credit access businesses (CABs) in the city.  CSAT, a trade association comprised of CABs, filed a lawsuit requesting a declaration from the trial court that the ordinance was preempted by provisions of the Texas Finance Code and requesting injunctive relief to prevent enforcement of the ordinance.  The city followed with a plea to the jurisdiction.  CSAT filed an amended petition; the city filed a second plea and special exceptions to the amended petition.  The trial court granted some of the city’s special exceptions, and CSAT filed a combined pleading with two intervenors.  The city filed special exceptions to the combined pleading, asserting that the parties failed to plead a waiver of governmental immunity from suit. The parties agreed to amend their pleading and in the second combined pleading alleged that provisions of the Texas Finance Code regulate the field of business in which CABs operate in Texas and the city’s ordinance conflicted with these provisions by placing restrictions on consumer credit that CABs could obtain for consumers.  The city again filed a plea to the jurisdiction.  The city argued: (1) the trial court lacked subject matter jurisdiction to construe, declare invalid, or enjoin enforcement of a penal ordinance; (2) appellants had not asserted, and could not assert, a valid preemption claim to establish waiver of governmental immunity from suit; (3) there is no waiver of immunity for appellants’ request for attorney’s fees; and (4) CSAT lacked organizational standing to assert a claim.  The court first concluded that the ordinance was, in fact, a penal ordinance.  Next, the court laid out the Morales test providing the four types of situations where a claimant may obtain relief from an equity court based on the alleged unconstitutionality of a penal ordinance.  See State v. Morales, 869 S.W. 2d 941, 944-45 (Tex. 1994).  The court concluded that CSAT failed to establish, under the second prong of the test, that enforcement of the ordinance would result in irreparable harm to a vested property interest.  Since a law that does not forbid a lawful business from operating will not be regarded as harming vested property, appellants could not show that they had a vested property right.  The court concluded that the appellants failed to show that the enforcement of the ordinance would cause them any harm other than the harm inherent in prosecution of an offense.  Thus, the trial court did not err by determining that it did not have equity jurisdiction over the claims.  The court added that, for the same reasons that a court exercising civil jurisdiction does not have equity jurisdiction to enjoin the enforcement of penal statutes, it also does not have equity jurisdiction to render a declaratory judgment regarding the constitutionality of a criminal ordinance.

Substandard Structure: Russell v. City of Dallas, No. 05-13-00061-CV, 2014 WL 2090010 (Tex. App.—Dallas May 16, 2014) (mem. op.).  In this substandard building case, Samuel Russell challenged the demolition of a building on his property and brought a takings claim against the City of Dallas.  The city sought and received a demolition order for a building on Russell’sproperty from its municipal court of record.  Russell purchased the real property after the city had begun the process of obtaining authorization to demolish the structure, as an urban nuisance.  Russell sought a declaratory judgment that the structure was not an urban nuisance and asserted a takings claim against the city.  The city responded by filing a counterclaim seeking injunctive relief for Russell to demolish the structure or repair the substandard conditions on the property. The trial court entered a temporary order requiring Russell to take certain actions and make the property available for inspection.  However, after a trial to the court, the court ordered the building be demolished.   The court notes that Russell failed to properly preserve for appeal his challenge to the requirement of a verified pleading.  His takings claim focused on claims not pled and without a proper record to show otherwise, the court found that Russell waived this claim as well.  The court of appeals affirmed the trial court’s judgment.

Taxing Authority: Dallas City Homes, Inc. v. Dallas Cnty., No. 05-13-00033-CV, 2014 WL 2109376 (Tex. App.—Dallas May 14, 2014) (mem. op.).  Dallas City Homes (DCH) is a non-profit corporation that develops low-income housing.  In 2004, DCH granted a deed of trust for real property in the City of Dallas to secure a real estate lien note payable to the City of Dallas for the purpose of creating federally funded affordable housing.  In 2010, the city notified DCH that it was in default for failing to complete construction on the property by the agreed upon deadline.  DCH ultimately decided that it should allow the city to foreclose on the loan.  In 2011, Dallas County, City of Dallas, Dallas Independent School District, Dallas County School Equalization Fund, Parkland Hospital District, and Dallas County Community College (collectively the Taxing Authorities) initiated a lawsuit to collect delinquent taxes pursuant to Section 33.41 of the Texas Tax Code on unpaid property taxes from the property. While the lawsuit was pending, the city foreclosed on its lien on the property, and the city purchased the property at a foreclosure sale.  After the foreclosure, DCH filed a motion for summary judgment claiming the city had taken possession of the property.  The motion argued that the taxing authorities could no longer seek the delinquent taxes because the taxes should have been accounted for when the property was foreclosed upon.  The trial court denied this motion.  In a bench trial, the trial court found that the taxes, penalties, and interests have been paid, but awarded the Taxing Authorities court costs and abstractor’s fees.  DCH appealed this judgment.  The court of appeals concluded that the Taxing Authorities were not a “successful party” and were not entitled to costs associated with collecting the delinquent taxes.  The court reversed the trial court’s judgment and rendered judgment that the Taxing Authorities take nothing.

Public Information Act:  Brazee v. City of Spur, No. 07-12-00405-CV (Tex. App.—Amarillo June 10, 2014).  This is an appeal from the denial of a writ of mandamus seeking to require the disclosure of documents by the City of Spur.  Under the Public Information Act, a party may seek a writ of mandamus to compel the release of information. Tex. Gov’t Code § 552.321. When a party substantially prevails on the claim, a court may, in some circumstances, assess costs of litigation and reasonable attorneys fees. Id. § 552.323. Brazee asserted, among other things, that the trial court erred in not awarding her attorney’s fees and litigation expenses because the city produced responsive information after her petition was filed.  The court held that a plaintiff does not become a “prevailing party” merely because the defendant voluntarily changes its conduct in a manner mooting the controversy.  Brazee did not “substantially prevail” on her mandamus claim.  The trial court’s judgment was affirmed.

Tort Claims Act:  Texas Dep’t of Pub. Safety v. Bonilla, No. 08-13-00117-CV, 2014 WL 2451176 (Tex. App.—El Paso May 30, 2014). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a vehicle accident case under the Texas Tort Claims Act (Act). The El Paso Court of Appeals affirmed the denial. Trooper Cruz, with lights on but no sirens, ran a red light while pursuing a speeder and struck Bonilla’s vehicle.  The Texas Department of Public Safety (DPS) asserted governmental and official immunity as well as evidentiary objections. The trial court denied the plea and DPS appealed. The first portion of the opinion is dedicated to an evidence dispute where Bonilla attached a report from a DPS reconstruction team which was unfavorable to DPS. The report was created by an internal investigative arm of DPS to explain to itself what happened to Trooper Cruz in a state vehicle. Its statements were party-opponent admissions and the refusal to stipulate to its own teams expert qualifications was not a challenge to their qualifications. Next, DPS argued Trooper Cruz was pursuing a speeding driver who was making multiple lane changes and disobeying traffic control devices, and therefore, triggered the emergency exception under the Act. While the court agreed the situation qualified as an emergency, Texas Transportation Code Section 546.001 sets a standard of care for emergency vehicles requiring a slowing as necessary for safe operation. A fact question exists as to whether Cruz slowed before entering the intersection. And while DPS could have taken advantage of any official immunity granted to Cruz, a fact question exists as to whether his need to chase the speeder outweighed the need to slow (or whatever he did) before entering the intersection.  Since DPS did not provide evidence Cruz actually considered and weighed options, his good faith cannot be considered at this time. The trial court properly denied the plea.*

Taxpayer Standing:  Salazar v. Wilson, No. 08-13-00171-CV, 2014 WL 1940673 (Tex. App.—El Paso May 14, 2014).  In this case, a taxpayer filed suit against a city manager and two state legislators (appellees) alleging misapplication of public funds.  The El Paso Court of Appeals explained that a taxpayer has standing to maintain an action solely to challenge proposed illegal expenditures and may not sue to recover funds previously expended, or challenge expenditures that are merely unwise or indiscreet.  The court concluded that appellants did not have standing and, thus, affirmed the trial court’s order granting appellees’ plea to the jurisdiction.

Tort Claims Act: Texas Dep’t of Transp. v. Lopez, No. 11-13-00064-CV, 2014 WL 2210602 (Tex. App.—Eastland May 22, 2014). This is an interlocutory appeal from the denial of a jurisdictional summary judgment in a Texas Tort Claims Act case involving a vehicle collision. The Eastland Court of Appeals affirmed in part, reversed in part, and remanded. Lopez worked for a tow-truck company dispatched to an accident scene in a Texas Department of Transportation (TxDOT) construction zone. TxDOT crews placed cones and funneled traffic into an outside lane away from the accident and placed a TxDOT vehicle with flashing lights warning of the closing lane. During the scene cleanup, another driver, Walker, lost control of her vehicle and struck Lopez, killing him. The Texas Department of Public Safety investigation report noted Sibley (driver of first vehicle in the first accident scene) had hit a pothole and lost control. Apparently, TxDOT crews filled the pothole but other aspects of the construction area, including a drop-off of several inches, may have contributed to Walker’s loss of control. Plaintiffs alleged (1) TxDOT was negligent in how it implemented traffic control and warning devices; and (2) several premise defects. They also allege the pothole, a steep drop-off, and the first accident itself were special defects. The appellate court first held the act regarding the design of the construction project and the use of traffic control and warning devices for both the project and the accident clean-up are discretionary actions retaining TxDOT’s immunity. The court then examined the special and premise defect claims, holding the alleged pothole was, at best, a premise defect and no evidence of actual knowledge existed to waive immunity. The court also held the first accident scene was not a special defect and TxDOT had no duty to warn or make safe in connection with the wreck site. However, the court then held a fact question existed as to whether a drop-off was present and its depth, which are necessary to determine a special defect or premise defect standard (as well as causation). In short, the only claim that could go forward is the claim alleging a drop-off caused Walker to lose control.*

Tort Claims Act: Cameron Cnty. v. Vano, No. 13-13-00114-CV, 2014 WL 2093481 (Tex. App.—Corpus Christi May 15, 2014) (mem. op.). This is an appeal from the denial of a summary judgment asserting jurisdictional defenses under the Texas Tort Claims Act (essentially an interlocutory appeal from the denial of a jurisdictional defense). The appellate court reversed, but remanded for further action. Vano entered the Cameron County Courthouse for jury duty when a door slammed shut on her right shoulder after an unidentified man exited the stairway. She sued the county asserting the premises were poorly designed—the door had no window and the door insufficiently secured—creating a dangerous premise defect. The county moved for summary judgment asserting: the design of the area was a discretionary action for which immunity is not waived, the door must remain unsecured under fire code regulations, and the non-county employee who caused the door to slam shut was the cause-in-fact. The door merely furnished the condition that made the injury possible. The trial court denied the motion and the county appealed. The appellate court first held the design claims were discretionary functions and the county was entitled to immunity for such claims. However, the court then noted that, in this case, the panel felt it proper to remand and allow Vano the opportunity to replead since the defects may not be incurable. Further, the court held Vano did not yet plead a premise defect case and since the remaining arguments of the county were based on a premise defect which was not pled, the court declined to rule on them. The case was reversed and remanded.*

Tort Claims Act:  City of Houston v. McGowen, No. 14-13-00415-CV, 2014 WL 2039856 (Tex. App.—Houston [14th Dist.] May 15, 2014) (mem. op.). This is an interlocutory appeal from the denial of a plea to the jurisdiction in a vehicle accident case under the Texas Tort Claims Act. The appellate court reversed the denial due to a lack of actual or formal notice of claim. McGowen was allegedly involved in a vehicular accident with a city public works vehicle and brought suit. The city filed a plea to the jurisdiction asserting no notice of claim within the time period required by the city charter. McGowen asserted the city had actual notice through a driver’s crash report and verbal statements. The trial court denied the plea and the city appealed. After going through the facts, the court noted none of the investigative reports (police or supervisor accident report) reflect the city was at fault for the accident or that McGowen was a passenger or even present.  The driver of the vehicle McGowen was allegedly a passenger in was noted at fault. McGowen asserted she told a purported city employee (Russell) at the hospital that she believed the city was at fault. She also asserts that she drafted a crash report and mailed it to Russell (which turned out to be mailed to the Texas Department of Transportation, not the city).  The report produced as evidence noted several significant differences in the facts of the case including the individuals involved and location of the accident.  The report also contradicted McGowen’s own testimony. McGowen acknowledged during her deposition that she did not tell Russell her full name and address, claim that the city was at fault in the accident, or identify either of the drivers involved in the accident. The court stated accident reports are often insufficient, standing alone, to establish actual notice and the fact these did not even mention McGowen was involved at all is telling. The court held there was no evidence to establish that a fact issue existed regarding whether the city had subjective awareness of its alleged fault or of McGowen’s injuries and therefore no actual notice exists. As a result, the plea should have been granted. The court reversed and rendered.

 *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