Recent Texas Cases of Interest to Cities

Note:  Included cases are from September 11, 2014 through October 10, 2014.

ETJ:  Town of Annetta South v. Seadrift Dev., L.P., No. 02–12–00171–CV, 2014 WL 5013292 (Tex. App.—Fort Worth Sept. 25, 2014).  Can a city regulate lot size in its extraterritorial jurisdiction (ETJ)?  Texas Local Government Code Section 212.003(a)(4) states that a city shall not regulate in its ETJ “the number of residential units that can be built per acre of land.”  The Town of Annetta South adopted an ordinance requiring that all “lots” in the ETJ be at least two acres. A developer sued the city over the ordinance when it created a subdivision with lots less than two acres in the town’s ETJ. The town argued that its ordinance just required that “lots” be at least two acres but it did not require a certain number of residential units per lot.  The developer, and the court agreed, that the effect of the ordinance was to require one residence per each two acre lot.  The trial court granted partial summary judgment to the developer that the ordinance violated Section 22.003(a)(4) and the court of appeals affirmed.  One justice dissented, arguing that the statute does not invalidate “density” regulations in the ETJ because it does not use the term “density.”

Standing:  City of Arlington v. Texas Oil & Gas Assoc., No. 02-13-00138, 2014 WL 4639912 (Tex. App.—Fort Worth Sept. 18, 2014).   The issue in this case is the associational standing of a group of natural gas operators regarding a new fee and fire code requirements placed on individual natural gas operators by the City of Arlington. The association sued the city alleging that the new ordinances violated property and constitutional rights of its members.  The city argued that the association did not meet the third prong of the associational standing that requires that “neither the claim asserted nor the relief requested requires the participation in the lawsuit of each of the individual members.”  The court of appeals addressed this prong as one of convenience for the parties.  The court held that the association did have standing and that the need for discovery from individual members of an association does not negate the third prong of the associational standing test.  The court further held that the association’s request for a declaratory judgment that the city’s ordinances are invalid is appropriate under associational standing because all of its members would benefit from such a decision.  

Employment Discrimination: Smith v. City of Austin, No. 03-12-00295-CV, 2014 WL 4966292 (Tex. App.—Austin Sept. 30, 2014).  This is an employment dispute case under the Americans with Disabilities Act (ADA) and Texas Commission on Human Rights Act (TCHRA) in which the Austin Court of Appeals affirmed the trial court’s grant of summary judgment for the City of Austin. Smith was an assistant payroll manager who was terminated after she failed three times within almost a year to timely submit the city’s federal income-tax liability to the Internal Revenue Service (IRS), resulting in the city incurring a large tax penalty (which was later abated).  She claims she suffered from a disability, major depression and anxiety disorder which instantaneously limits her concentration and, as a result of the city failing to make a reasonable accommodation, the errors occurred. The city filed a motion for summary judgment, which the trial court granted arguing no evidence existed to establish the city had any knowledge she was disabled or regarded as disabled. Smith timely and properly completed the IRS forms, except these three times over a year period.  The court began by holding “[I]t is important to distinguish between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability.” The court explained that “the ADA requires employers to reasonably accommodate limitations, not disabilities.” Smith made several vague references that her mental illness might affect her job performance, but nothing establishing her illness limited her ability to concentrate or what the limitations might be so that the city knew what to accommodate.  Furthermore, there is no evidence that any doctor placed any limitations on Smith’s work or identified any major life activities that are substantially limited by her mental illness.  Even though after her termination the city explained to the IRS the failure was due to her mental illness, such an explanation is no indication the city knew about it beforehand.   The trial court properly granted summary judgment for the city.*

Tort Claims Act: San Antonio Water Sys. v. Smith, No. 04-13-00898-CV, 2014 WL 4723123 (Tex. App.—San Antonio Sept. 24, 2014).  This is an interlocutory appeal in a premise liability case under the Texas Tort Claims Act. The Fourth Court of Appeals affirmed the denial of the plea to the jurisdiction filed by the San Antonio Water System (SAWS) alleging a lack of notice of the claim within the statutory time period. Beatriz Smith sued SAWS for injuries she sustained when she fell into a manhole on a sidewalk in front of a church. The City of San Antonio Fire Department responded, along with other entity responders and the incident reports noted Smith had fallen due to an uncovered manhole and possibly broken her arm.  SAWS personnel were called to repair the missing cover. Smith’s attorney sent a notice of claim letter to the city and to CPS Energy (CPS) pursuant to the Texas Tort Claims Act but did not provide one to SAWS. When Smith sued, she sued the city, CPS, SAWS and the church. SAWS filed a plea to the jurisdiction asserting it did not receive the statutory notice provision, which the trial court denied. The court first analyzed whether SAWS is a separate “governmental unit” entitled to its own statutory notice separate and apart from the city. The City of San Antonio purchased its waterworks system from a private entity in 1925. Pursuant to city ordinance, control and management of SAWS was placed in the hands of a newly created board of trustees. However, the court cited other lawsuits in which SAWS asserted it was part of the city and therefore entitled to tax exempt treatment and was a “special agency” of the city. Citing the most recent ordinance controlling SAWS operations (which also consolidated the city’s sanitary sewer and water reuse system) it defined SAWS as an “agency of the City.”  While the ordinance placed management of SAWS into the hands of the board of trustees, it did not transfer ownership or assets to the board. Importantly, the court determined that SAWS creation is derived from city ordinance only and not the Texas Constitution. It is therefore not a “governmental unit” separate from the city and is not entitled to independent notice under the Texas Tort Claims Act. A fact question exists as to whether the city had actual notice of the claim (on its own and by-and-through notice to CPS, another agency of the city) and therefore the trial court properly denied the plea.*

Mandamus: In re City of Dallas, No. 05-14-00922-CV, 2014 WL 4900455 (Tex. App.—Dallas Oct. 1, 2014). The City of Dallas filed a petition for writ of mandamus requesting that the Dallas Court of Appeals order the trial court to vacate its order denying the city leave to file its fourth amended answer in a case.  The case involves a dispute over whether the vested rights provisions of Chapter 245 of the Texas Local Government Code apply to land owners in Dallas.  The land owners own three lots near downtown Dallas where they operate a petrochemical business that stores flammable liquids in above-ground tanks.

After setting a trial date and agreeing to a scheduling order, discovery began.  The deadline for amending pleadings was agreed upon.  However, the land owners amended their petition for partial summary judgment by adding an attorney’s fee affidavit in support of their request for attorney’s fees.  The city responded to the amended motion but failed to challenge the amended motion as untimely since it was made after the deadline in the scheduling order.  Then, the city attempted to file its fourth amended answer and counterclaim.  The land owners moved to strike the amended answer and counterclaim as untimely, and the trial court granted the land owners’ motion to strike the city’s amended answer and counterclaim.

The City of Dallas then filed a motion for leave to file its fourth amended answer and counterclaim.  The trial court heard argument then orally denied the city’s motion as untimely.  The city then filed this writ of mandamus.  The Dallas Court of Appeals noted that mandamus is an extraordinary remedy that is available only in limited circumstances and is appropriate “only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.”  The court concluded that the city did not show that the trial court has clearly abused its discretion and that the city has no adequate appellate remedy.  Therefore, the court denied the city’s petition.

Civil Service: Zambrana v. City of Amarillo, No. 07-13-00058-CV, 2014 WL 5037808 (Tex. App.—Amarillo Oct. 8, 2014) (mem. op.). This is a civil service case regarding a firefighter where the Amarillo Court of Appeals reversed the granting of a plea to the jurisdiction and sent the case back to the trial court. Zambrana was a City of Amarillo firefighter charged with a Class A misdemeanor for domestic violence.  Zambrana entered into an agreed suspension with conditions tied to the outcome of the criminal charges. Zambrana was convicted and, pursuant to the agreement, the conviction acted as an automatic resignation. However, contrary to the agreement (which waived rights to appeal), Zambrana attempted to appeal.  The city’s civil service commission refused to process the appeal based on the agreement. Zambrana argued the conviction was not final, and the agreement contemplated a final conviction, not simply a conviction at the trial court level. Zambrana filed a mandamus action to force the city to commence the appeal process and declare his rights under the contract. The city filed a plea to the jurisdiction asserting immunity as this was a contract dispute. The trial court granted the plea and Zambrana appealed. The court first noted the city’s plea was really not a challenge to the court’s jurisdiction but an assertion Zambrana’s claims lacked merit. Courts have mandamus power to compel actions by public officials and that is what Zambrana asserted. The court makes a dicta statement that the court has jurisdiction to hear the declaratory judgment claim, but does not analyze why. Essentially, the court decided the plea did not challenge the court’s jurisdiction so all parts were improperly granted.*

Substandard Building: City of El Paso v. Fox, No. 08-12-00264-CV, 2014 WL 5023089 (Tex. App.—El Paso Oct. 8, 2014).  This is an interlocutory appeal from the denial of a plea to the jurisdiction in which the El Paso Court of Appeals reversed the denial and dismissed Fox’s claims. The city issued an order removing the electric meters on an apartment complex which Fox owned jointly with Perkins. Perkins sued for due process violations and inverse condemnation and Fox intervened asserting he was the primary owner. The city filed a plea to the jurisdiction (among other things) but the trial court denied the plea. The court first noted that Fox filed an amended petition seeking declaratory judgment and injunctive relief which sought only equitable damages, therefore he was not recasting a damages claim as a declaratory judgment action. Next, the court noted that Texas Local Government Code Section 214.0012 grants a party the right to file a verified suit to challenge an order like the one issued by the city, but only as a writ of certiorari to declare part or all of the order illegal. Interestingly enough, the court held it could take judicial notice on appeal of the official minutes of the city council meetings posted on the website, even though the city’s counsel did not provide them to the court in its brief. It then noted the minutes reflect Fox’s appearance, the city’s proceedings, the city’s order giving Fox time to fix the problems and that the problems were not fixed.  This essentially destroys Fox’s due process claims.  However, the court does not hold that. Instead, it simply states that regardless of all of those facts, Fox did not file a verified pleading pursuant to Section 214.0012 and therefore did not invoke the court’s jurisdiction. Fox had filed a previous appeal on a collateral issue and the court took notice of the fact it had determined Fox failed to file a verified plea at that time. His claims were dismissed.*

Whistleblower: Bell Cnty. v. Kozeny, No. 10-14-00021-CV, 2014 WL 4792656 (Tex. App.—Waco Sept. 25, 2014) (mem. op.).  This is a Whistleblower Act case where the Waco Court of Appeals reversed the denial of the county’s plea to the jurisdiction but remanded to allow plaintiff to replead. Kozeny was an employee of Bell County Juvenile Center and had been tasked with investigating the falsification of training records. He reported to the first assistant district attorney and discussed at length the falsification of such records. He alleges he was terminated within 90 days of making that report. The county filed a plea to the jurisdiction which the trial court denied. The crux of the county’s appeal is that Kozeny’s pleading did not specify the criminal law allegedly violated. The court agreed the conclusory statement in the pleadings that only asserted he reported “the falsification of training records . . . which is a crime” was insufficient to invoke jurisdiction. However, the pleadings do not negate jurisdiction either, so the plaintiff should be given the opportunity to replead and allege more than vague conclusory statements sufficient to invoke the trial court’s jurisdiction.*

Employment Discrimination: Barnes v. Texas A & M Univ. Sys., No. 14-13-00646-CV, 2014 WL 4915499 (Tex. App.—Houston [14th Dist.] Sept. 30, 2014) (mem. op.). This is an employment discrimination, hostile work environment, retaliation case where the Houston Court of Appeals reversed in part and affirmed in part the granting of the defendants’ summary judgment motion.

Barnes, an African American female, was an employee who complained of treatment by her supervisor, Lupe Linderos. Barnes was ultimately authorized to work from home; however, four months after authorization, her employment was terminated. Barnes filed suit but the trial court granted the summary judgments filed by the university. Barnes appealed.

The court first held there was no evidence that Barnes received disparate treatment compared to similarly situated employees outside her protected class. Barnes’ references to other employees were too dissimilar to be proper comparators and the trial court properly granted summary judgment for her discrimination claims. Barnes did establish she engaged in protected activities by complaining about racist comments of colleagues. However, she offered only a temporal relationship between when she complained and her termination as evidence of causation which is insufficient. As a result, her retaliation claim was properly dismissed. Her hostile work environment claim survived due to the fact the university did not raise the argument in its no-evidence motion (the one the court granted).  The court did not rule on the traditional summary judgment evidence motion. Therefore it was improper to grant the no-evidence motion as to that claim.*

*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