Recent Texas Cases of Interest to Cities

Note:  Included cases are from August 11, 2016 through September 10, 2016.

Public Information: City of Houston v. Kallinen, No. 01-12-00050-CV, 2016 WL 4409099 (Tex. App.—Houston [1st Dist.] Aug. 18, 2016).  This is a Public Information Act (PIA) case concerning mootness, governmental immunity, and awarding of attorney’s fees.

Randall Kallinen (Kallinen) made a PIA request to the city regarding a traffic-light camera study that was commissioned by the city. The city granted part of the request and asked for a ruling from the attorney general regarding the remainder of the information.  The case had already gone to the Texas Supreme Court, which remanded the case back to the court of appeals.  The Texas Supreme court agreed with the trial court’s decision that overturned the city’s plea to the jurisdiction (plaintiff filed mandamus suit before receiving ruling from the attorney general), granted Kallinen’s motion for summary judgment, ordered disclosure of the withheld documents, and awarded Kallinen attorney’s fees. On remand, to the court of appeals the issues were whether: (1) the case was moot before the trial court entered its order; (2) Kallinen’s claims were barred by governmental immunity; and (3) the trial court abused its discretion in awarding attorney’s fees.

The court reviewed the city’s claim that the case was moot because the city released the documents.  However, the city did not release the documents voluntarily, but argued they did it by court order and continued to argue the trial court lacked jurisdiction.  Because the city continued to make the argument, the court of appeals found that the controversy was not moot. Next, the court addressed the issue of governmental immunity.  The city stated that Kallinen’s claims were barred by governmental immunity because he did not direct the suit to the public information officer but instead to the governmental body. Based on the changes to the PIA to clear up this jurisdictional problem and various cases, the court rejected the city’s contention that the PIA requires the requestor to name the public information officer as the respondent or face dismissal for lack of jurisdiction and, therefore, governmental immunity does not apply.

Next, the court examined whether the trial court abused its discretion in awarding attorney’s fees.  The court considered whether the trial court: (1) had sufficient evidence upon which to exercise its discretion; and (2) erred in its application of that discretion. Government Code Section 552.323 does provide for reasonable attorney’s fees if the plaintiff substantially prevails.  The city argued that the claimed fees did not account for the fact that some of the plaintiff’s claims were dismissed from the case.  However, Kallinen submitted a supplemental submission that explained the break-down of the fees and the trial court took that into account when it modified the final judgment.  The city then claimed that the fees were not reasonable. The court determined there was sufficient evidence to determine the fees charged were reasonable based on the record that showed that Kallinen’s counsel documented that the case was time, labor, and document intensive.  Therefore, the court determined that the trial court did not abuse its discretion in awarding attorney’s fees and affirmed the trial court’s judgment.

Whistleblower: Swanson v. Town of Shady Shores, Nos. 02-15-00351-CV and 02-15-00356-CV, 2016 WL 4395779 (Tex. App.—Fort Worth Aug. 18, 2016) (mem. op.).  This is a Texas Whistleblower Act, Texas Open Meetings Act, due process, free speech and Sabine Pilot case, but the main thrust of the appeal is litigation/appellate procedure. So, this case will be of primary focus to litigators.

Swanson is the former town secretary. She brought claims asserting she was wrongfully discharged. The town filed a plea to the jurisdiction on the Sabine Pilot and Whistleblower Act claims. After Swanson amended, the town filed traditional and no-evidence summary judgment motions for the remaining claims. The trial court granted the town’s plea to the jurisdiction and Swanson did not file an interlocutory appeal. In separate orders, the trial court denied the town’s traditional and no-evidence motions for summary judgment.  The town filed an interlocutory appeal and asserted the automatic stay was in place. On October 30, 2015, the town filed a motion requesting the trial court to enter an order acknowledging that all of the trial court proceedings had been stayed since Swanson was continuing to file motions and request hearings. According to the town, during one hearing, the trial court granted Swanson leave to file a motion for a permissive interlocutory appeal. When Swanson attempted to hold further proceedings and obtain an order on the permissive appeal, the town filed a separate mandamus action (which was consolidated for purposes of appeal). The San Antonio Court of Appeals stayed all proceedings during the appeal.

In its mandamus petition, the town asks this court to direct the trial court to stay the underlying proceedings and to enter an order voiding all actions taken in the trial court since the town filed its notice of interlocutory appeal. The town is appealing the denial of the summary judgment motions on immunity grounds. As a result, the automatic stay applies. The automatic stay is only available, however, if the jurisdictional motion was filed and a hearing requested within a defined timeframe. The scheduling order required all dispositive motions be filed and heard by October 1, 2015. The town filed its motions for summary judgment and a hearing was set for September 23, 2015. Even though the motions were not heard until October 21, the motions were filed and a hearing was requested prior to October 1. Thus, the automatic stay was triggered. The trial court abused its discretion in conducting hearings in violation of the automatic stay.  However, the trial court did not sign any orders. Therefore, there is nothing in the record indicating any relief can be granted, even though a violation occurred in this case. The mandamus is therefore denied.

Swanson claims that regardless of the fact she filed her appeal over forty days after the order granting the town’s plea to the jurisdiction was signed, her appeal is timely under Rule 26.1(d), which provides that “if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.”  Swanson asserts that she filed her notice of appeal (for the plea to the jurisdiction) within 14 days of the town’s notice of appeal for the summary judgments. However, Swanson cites no cases nor did the court find any authority supporting her contention that she can utilize Rule 26.1(d) in this way.  As a result, her appeal is untimely. Swanson also filed a petition for permission to appeal, but it did not contain an order signed by the trial court granting her permission to appeal (mainly because the court of appeals stayed any further proceedings). Swanson failed to comply with the requirements for bringing a permissive appeal from an interlocutory order because she failed to obtain a written order granting permission to appeal.*

Civil Forfeiture: 2009 Black Infiniti v. State, No. 02-14-00342-CV, 2016 WL 4538553 (Tex. App.—Fort Worth Aug. 31, 2016) (mem. op.).  Appellant was stopped by the City of Wichita Falls Police Department because she abruptly exited the freeway after seeing that there was a drug checkpoint ahead, failed to completely stop at the next intersection, and turned without signaling.  The officer stated that the appellant was extremely nervous and the passenger smelled of burnt marijuana.  Appellant declined to allow the police to search the car, so a K9 officer performed an open-sniff of the car and indicated drugs to the passenger side door.  Officers saw a backpack on the passenger side floorboard and found a marijuana pipe and zippered pouch containing crystal methamphetamine. After a search of the car and finding other evidence, the appellant and passenger were arrested for manufacture/delivery of methamphetamine and seized the car.  The grand jury no billed the indictment and the charges were dismissed against the appellant. However, the State proceeded with the forfeiture proceedings and awarded the possession of the vehicle to the police department.

The appellant contended that the State failed to prove that the vehicle was contraband and that the trial court’s rejection of her innocent-owner affirmative defense was against the great weight and preponderance of the evidence.  The court looked at the legal sufficiency of the evidence to support the contraband finding by the trial court.  According to Chapter 59 of the Code of Criminal Procedure, the State must establish by a preponderance of the evidence a substantial nexus or connection between the property to be forfeited and the statutorily-defined criminal activity. However, there is an affirmative defense within the civil forfeiture statute.  Article 59.02(c)(1) states that the trial court may not forfeit an owner’s interest in property if the owner proves by a preponderance of the evidence that:  (1) the owner acquired and perfected an interest in the property before or during the act or omission giving rise to the forfeiture; and (2) the owner did not know or should not reasonably have known (a) of the act or omission giving rise to the forfeiture or (b) that it was likely to occur at or before the time of acquiring and perfecting the interest.

The court found that because there was enough methamphetamine found in the car to be charged with a second degree felony and that a possession-only felony can establish a car as contraband, there was enough of a preponderance of the evidence for the trial court to establish legal sufficiency of the car being contraband.  The appellant argued that the passenger’s possession of narcotics should not be used to make the car contraband.  The court countered stating Chapter 59 does not require any proof that a person committed a crime, it only requires that the state prove by a preponderance of the evidence that the property is contraband.

As for the innocent-owner affirmative defense issue, the court stated that in order for the appellant to use the affirmative defense, the appellant had to actually plead the affirmative defense.  Affirmative defenses are waived unless pled or trial by consent is established.  A trial by consent is when evidence regarding a party’s unpled issue is developed under circumstances indicating both parties understood the issue was in the case, and the other party failed to make an appropriate complaint.  Also, when evidence relevant to both a pled and unpled issue has been admitted without objection, the doctrine of trial by consent should generally not be applied.  The court saw no dispute about the ownership of the car and the appellant did deny knowing about the drugs but, this evidence was also relevant to whether the car was contraband, therefore a trial by consent was not established and the appellant did not plead the affirmative defense.  With that being the case, the court determined that the appellant waived her affirmative defense, overruled her innocent owner affirmative defense issue, and affirmed the trial court’s ruling.

Utilities: City of San Antonio v. Tommy Harral Constr., Inc., No. 04-16-00223-CV,  2016 WL 4444401 (Tex. App.—San Antonio Aug. 24, 2016).  In this interlocutory appeal, the San Antonio Court of Appeals held that a general contractor’s pre-excavation notice that meets the Texas Utilities Code’s notice requirements is effective notice for its subcontractor.

Tommy Harral Construction Incorporated (Harral) was hired by RTM Contruction Company to perform some excavation work for an apartment complex project. During the excavation, Harral damaged some of the City of San Antonio’s City Public Service Board’s (CPS Energy) underground equipment. CPS Energy sued Harral for trespass and negligence and sought damages. CPS Energy moved for summary judgment and asked the trial court to declare that Section 251.151(a) of the Utilities Code requires that the actual entity or person doing the excavation work provide notification prior to a dig.

The trial court construed the statute against CPS Energy finding that Section 251.151(a) does not require the actual entity excavating to provide notification prior to a dig. Instead, a general contractor’s pre-excavation notice relieves the subcontractor of its notice obligation. CPS Energy appealed.

The appellate court rejected CPS Energy’s plain language arguments and concluded that allowing a general contractor to provide notice on behalf of its subcontractor does not produce an absurd result. Furthermore, the court held that Section 251.151’s use of “a person who intends to excavate” includes a general contractor, and the general contractor’s timely notice that complies with statutory requirements relieves a subcontractor from providing a separate, additional notice for the same excavation. Thus, in this instance, RTM’s notice relieved Harral of its duty. The court affirmed the trial court’s order and remanded this case back to the trial court.

Preemption/Plastic Bag Ordinance:  Laredo Merchants Assoc. v. City of Laredo, No. 04-15-00610-CV, 2016 WL 4376627 (Tex. App.—San Antonio Aug. 17, 2016) (mem. op.). This is a statutory construction case concerning solid waste management, where the Fourth District Court of Appeals reversed the trial court’s grant of summary judgment in favor of the City of Laredo against a challenge to a city ordinance that restricted the use of paper and plastic checkout bags.

As part of the City of Laredo’s strategic plan to create a “trash-free city,” the city adopted an ordinance making it unlawful for commercial establishments to provide any plastic or paper one-time-use carryout bags. The ordinance included a list of exceptions and provided that a violation would subject retailers to a fine of up to $2,000 per violation. The Laredo Merchants Association (merchants) filed suit against the city one month before the ordinance was to take effect, seeking declaratory and injunctive relief to declare the ordinance unenforceable because it is preempted by the Solid Waste Disposal Act (Act). The merchants also sought a temporary restraining order to enjoin the city from enforcing the ordinance. The city filed for summary judgment, arguing that the Act does not clearly prohibit a city from banning checkout bags, that it is authorized to regulate checkout bags under the Local Government Code, and that the ordinance is a valid exercise of the city’s police power.

The merchants filed a cross-motion for partial summary judgment, arguing that the ordinance is inconsistent with the Act (Texas Health and Safety Code Section 361.0961) and, therefore, preempted. The merchants also argued that whether the ordinance is within the city’s authority under the Local Government Code or within its police power is irrelevant to the issue of preemption. The trial court, declaring that there exists a reasonable interpretation under which the Act does not preempt the ordinance, granted summary judgment in favor of the city and denied the merchants’ motion.  The merchants appealed.

Section 361.0961 provides, in relevant part, that “[a] local government . . . may not adopt an ordinance, . . . to: (1) prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law; . . . .”  Tex. Health & Safety Code § 361.0961. The appellate court held that, based on its plain meaning, a “checkout bag” is a type of “container” or “package” within the meaning of Section 361.0961. And though the ordinance’s stated purpose is to regulate litter, the court considered both the purpose and actual effect of the ordinance. Here, because litter is itself a form of solid waste, the actual effect of the ordinance is to manage solid waste in a way inconsistent with Section 361.0961. The court of appeals reversed the trial court’s grant of summary judgment and rendered judgment that the ordinance is preempted by Section 361.0961 of the Act.

Tort Claims Act:  Torres v. City of Corpus Christi, No. 13-14-00506-CV, 2016 WL 4578392 (Tex. App—Corpus Christi Sept. 1, 2016) (mem. op.).  This is a Texas Tort Claims Act (TTCA) case involving a car accident with a police officer. The Thirteenth Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.

A city police officer, Robert Walker, was responding to a fleeing stolen vehicle. He responded and activated his emergency lights and sirens. On his way to an intercept location in order to set up road spikes, he rounded an “S” curve in the road and lost control. Officer Walker admitted he was traveling faster than the posted speed limit. He explained that his police cruiser’s brakes did not respond as he expected and he lost traction as he entered the curve. He slid sideways into oncoming traffic and Walker’s and Torres’s vehicles collided. Torres sued. The city filed a plea to the jurisdiction which was granted. Torres appealed.

The court first held that a TTCA claim may not be brought against the governmental entity when the claim arises from an employee responding to an emergency call or reacting to an emergency situation, unless the action was taken with conscious indifference or reckless disregard for the safety of others. This is an objective, not a subject standard. Officer Walker’s subjective belief that he was or was not driving in a reasonable and prudent manner does not change the nature of the call to which he was responding. After analyzing the evidence and testimony, Torres was not able to dispute Walker was responding to an emergency call. Section 546.001(3) allows emergency vehicle operators to exceed a maximum speed limit as long as the operator does not endanger life or property. Torres offered no evidence showing Officer Walker’s speed before he entered the curve and immediately before the accident. Moreover, Officer Walker testified that he did slow down once he entered the curve, though not enough to avoid entering Torres’s lane. So he was not consciously indifferent to the situation. Officer Walker testified that he activated his vehicle’s lights and sirens. He explained that he recognized his speed was too fast for the curve and attempted to slow the vehicle. The cruiser did not respond to Officer Walker’s braking efforts as anticipated and he was unable to effectively control his vehicle.  The accident report indicated that both vehicles drove away from the accident. Torres’s airbag did not deploy as a result of the accident and she did not request an ambulance after the collision. There is no evidence or expert testimony estimating the speed of the vehicles prior to the collision based on the amount of damage each vehicle sustained.  Given that Torres presented no evidence to create a fact issue as to what Walker did and why, there is no evidence of recklessness. As a result, the plea was properly granted.*

Age Discrimination:  Bazaldua  v. City of Lyford, No. 13-16-00004-CV, 2016 WL 4578409 (Tex. App— Corpus Christi Sept. 1, 2016) (mem. op.).  This is an age-discrimination case where the Thirteenth Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.

Bazaldua was a forty-nine-year-old laborer employed in the city’s public works department. After the city purchased a new leaf blower, Bazaldua filled it with gasoline but failed to include the oil mixture. This destroyed the blower. Bazaldua’s supervisor, Javier Lopez, issued a written reprimand and informed Bazaldua he would have to pay for a replacement. Bazaldua refused and then was terminated. Bazaldua filed suit for age discrimination. The city filed a plea to the jurisdiction asserting he was replaced with an older employee and the trial court granted the plea. Bazaldua appealed.

Bazaldua asserts he provided direct evidence of age discrimination in his affidavit where he avers Lopez would routinely address him as “viejo” which means “old man” in Spanish.  In a true replacement case, to establish a prima facie case of age discrimination, the plaintiff must show that he was: (1) a member of the protected class; (2) qualified for his employment position; (3) terminated by the employer; and (4) replaced by someone younger.  A plaintiff who is replaced by someone older is unable to meet the fourth element.  In order to avoid this burden shifting framework, a plaintiff can provide direct evidence of discrimination. Direct evidence of discrimination “is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” “If an inference is required for the evidence to be probative as to the employer’s discriminatory animus in making the [adverse] employment decision, the evidence is circumstantial, not direct.” Statements and remarks may serve as direct evidence if, among other things not relevant here, the remarks are close in time to the employment decision and related to the employment decision at issue. Bazaldua has provided no evidence that the use of the term “viejo” was proximate in time to his firing or related to the employment decision at issue. He provided no direct evidence and since he was replaced by an older employee, he cannot satisfy the McDonnell Douglas framework.  The plea was properly granted.*

Pensions:  City of Houston v. Houston Firefighters’ Relief & Retirement Fund, No. 14-14-00437-CV, 2016 WL 4705928 (Tex. App—Houston [14th Dist.] Sept. 8, 2016).  The City of Houston sued the Houston Firefighters’ Relief and Retirement Fund (fund) seeking a declaration that the statute establishing the current pension system for the city’s firefighters is unconstitutional. The city appealed the trial court’s grant of the fund’s motion for summary judgment. The Houston Court of Appeals affirmed, holding that the statute is constitutional.

The opinion outlines the history of the city’s pension system for firefighters through 1997, when the legislature enacted Texas Revised Civil Statute Article 6243e.2(1), establishing a “Firefighters’ relief and retirement fund” in each incorporated city with a  population of at least 1.6 million and a fully paid fire department. Based on the defined population, the statute currently applies only to the City of Houston. The city filed suit in 2014, seeking a declaratory judgment that the statute violates four provisions of the Texas Constitution: (1) the separation-of-powers principle; (2) the prohibition against special and local laws; (3) the constitutional requirement that cities have a choice in their pension systems; and (4) the requirement that pension benefits be reasonably related to a participant’s contributions.  The trial court granted the fund’s motion for summary judgment.  The city appealed.

The court of appeals examined the city’s four grounds separately. The legislature may delegate powers to municipal and state agencies so long as it establishes “reasonable standards” to guide the agency. See Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 467 (Tex. 1997).  The city argued that the fund is not a public entity and, even if it is public, the legislature failed to set forth reasonable standards for guidance. The court of appeals found that the fund is a public entity because it is expressly authorized in the Texas Constitution, because its board is comprised of public employees, because it is treated like a governmental body for other purposes, and because other courts have found municipal pension systems to be public entities.  Furthermore, the standards set forth by statute are reasonable because the statute does not give the board arbitrary power and it limits the board’s procedures and powers are “not inconsistent with the Act.”

The court of appeals also found that the statute does not violate the constitutional prohibition against special and local laws.  “The primary and ultimate test of whether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equally on all within the class.” Rodriguez v. Gonzales, 227 S.W.2d 791, 793 (Tex. 1950). Because the city is larger and more industrialized than even other large Texas cities, there is a reason to treat firefighters in the City of Houston differently than those in other cities with respect to benefits.

The city also argued that Article XVI, Section 67(c) of the Texas Constitution permits the city to choose the pension system for its firefighters and thus, the statute imposed on the city by the legislature is unconstitutional. The court of appeals instead agreed with the fund that Section 67(c) was not intended to make pension systems exclusive for cities and counties and that it does not invalidate legislature-imposed pension systems.

Finally, the court found that the city could not show that the statute violates the constitutional requirement that pension benefits be reasonably related to a participant’s contributions. The requirement, found in Article XVI, Section 67(c)(2), applies to pension systems created by a city or county or a statewide system in which a city or county may choose to participate. However, the statute was not established under Section (c)(2), but (a)(1) – the provision granting the legislature power to enact general laws establishing systems for retirement benefits.

*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