September 2019: Recent Texas Cases of Interest to Cities

Note: Included cases are from August 11 through September 10, 2019.

Ordinance Enforcement:  Town of Flower Mound v. Eagleridge Operating, LLC, No. 02-18-00392-CV, 2019 WL 3955197 (Tex. App.—Fort Worth Aug. 22, 2019) (mem. op.).  This is an interlocutory appeal in a temporary injunction case where the Fort Worth Court of Appeals held the zoning restriction on oil and gas equipment at issue was a penal ordinance and no vested property right existed, depriving the trial court of jurisdiction to issue a temporary injunction.

Plaintiff took over operation of a series of oil/gas wells in the Town of Flower Mound. The town passed an ordinance regulating operations, the removal of waste water, and hours of operation. The ordinance stated as part of its purpose that natural gas drilling and production operations involve or otherwise impact the town’s environment, infrastructure, and related public health, welfare, and safety matters. In 2018, plaintiff filed three actions with the board of adjustment (BOA) and board of oil and gas appeals (OGA) regarding variances, which were denied. The town issued several criminal citations for after-hour operations and failure to remove wastewater. Plaintiff sought a temporary restraining order (TRO) and injunction to prevent the enforcement of the ordinance, which was granted. The town, BOA and OGA appealed.

The basic test as to whether a law is penal is whether the wrong sought to be redressed is a wrong to the public or a wrong to an individual. A public wrong involves the “violation of public rights and duties, which affect the whole community, considered as a community, and are considered crimes; whereas individual wrongs are infringements of private or civil rights belonging to individuals, considered as individuals, and constitute civil injuries.”  When an ordinance’s primary purpose is to protect the welfare of a city’s citizens, it “is clearly addressing a wrong to the public at large and is a penal ordinance.” The court held the zoning ordinance was penal in nature. To be entitled to injunctive relief, the plaintiff had the burden to demonstrate irreparable injury to a vested property right. Contrary to plaintiff’s position, allegations of injury to an interest in real property does not equate to irreparable injury of a vested property right. Increases in operating costs does not equate to irreparable harm to their mineral interests. Loss of profitability, alone, also does not equate to irreparable harm to their mineral interest. As a result, plaintiff is not entitled to injunctive relief to prevent enforcement of such a penal ordinance. Under sections of Texas Local Government Code Chapter 211 (dealing with BOA and appeals), no injunction is textually available for an appeal from the BOA to a district court, an appeal is only available from an official to the BOA. The legislature made a distinction between a restraining order and an injunction, and no injunctive relief is available under Chapter 211 for an appeal to district court from a BOA decision.

Chief Justice Sudderth concurred in a majority of the opinion, but dissented as to the interpretation under Chapter 211. She opined a temporary restraining order is a stopgap, place-holding measure to preserve the status quo 14 days until a litigant’s application for temporary injunction can be heard.  For practical purposes, depriving the trial court of the ability to extend the restrained enforcement makes little sense.*

Public Information Act: Brown v. City of Austin, No. 03-19-00035-CV, 2019 WL 4068559 (Tex. App.—Austin Aug. 29, 2019) (mem. op.). This is a writ of mandamus seeking to compel the City of Austin to produce two police reports pursuant to a request under the Texas Public Information Act (PIA).

Brown, an inmate at the Texas Department of Criminal Justice, filed a writ of mandamus in trial court after the city refused to produce two police reports in response to his PIA request. The city filed a motion to dismiss under Chapter 14 of the Civil Practices and Remedies Code, which permits courts to dismiss inmate claims that are frivolous, arguing that because Brown was an inmate, the city’s compliance with his PIA request was purely discretionary. Additionally, the city argued that Brown did not meet the requirements that entitled him to mandamus relief. The trial court dismissed Brown’s suit. Brown appealed.

The court of appeals concluded that the trial court did not abuse its discretion because a governmental body’s duty to disclose information requested by an inmate is discretionary. Accordingly, the court affirmed the trial court’s order.

Ballot Language: In re Blythe, No. 03-19-00577-CV, 2019 WL 4068571 (Tex. App.—Austin Aug. 28, 2019) (mem. op.). This is a petition for a writ of mandamus in which the realtor contends that the court should order the City of Austin to delete certain language from the ballot.

Blythe filed a writ of mandamus asserting that the court should order the city to delete the phrase “at an election for which the City must pay” from the ballot language because it implies that the city will necessarily incur additional election costs to comply with the voter-approval provisions contained in a proposition to adopt a citizen-initiated ordinance. 

The court of appeals denied the writ finding that the proposed ordinance did not include language that limited voter approval to the “next required uniform election date.” The court determined that the language in the proposed ordinance was ambiguous and could be read to require voter approval at the next uniform election date, whether or not the city was already planning an election on that date. Thus, the inclusion of the phrase “at an election for which the city must pay” in the ballot language is not misleading.  As a result, the court denied the writ.

Public Information Act: San Jacinto River Auth. v. Paxton, No. 03-18-00547-CV, 2019 WL 3952829 (Tex. App.—Austin Aug. 22, 2019) (mem. op.). This is an appeal of the trial court’s order granting the Office of Texas Attorney General’s (AG) plea to the jurisdiction in a case involving the Texas Public Information Act (PIA).

The San Jacinto River Authority (SJRA) received two separate PIA requests on September 18, 2017, asking for information on pre-release of water related to Hurricane Harvey. The SJRA determined that some information responsive to each request was excepted from disclosure and sought decisions from the AG.  On November 8, 2018, the AG issued a decision on one of the requests determining that the information was not subject to disclosure. On December 17, 2017, the AG issued a decision on the other request determining that SJRA had failed to timely submit its request for a decision and that, therefore, the information must be disclosed. The SJRA contended that it “deposited in the mail” each of its two requests for AG decisions on October 2, 2017.  Believing that the AG had erred in its timeliness determination, SJRA’s general counsel contacted the AG’s office and spoke with a representative from its Open Records Division informing him that the PIA allows timeliness to be established by either the postmark or other proof establishing the request was timely mailed, and that another request for a decision mailed at the same time was deemed timely. The representative of the Open Records Division invited the SJRA to submit a request for reconsideration of the timeliness of its request for decision. SJRA did so on December 28, 2017, including an affidavit stating that it had deposited its request for a decision in the mail on October 2, 2017. 

The AG responded on February 6, 2018, citing Section 552.301(f), Texas Government Code, which provides that a governmental body is prohibited from asking for a reconsideration of the attorney general’s decision. On February 23, 2018, the SJRA filed a lawsuit seeking a declaration under the PIA and the Uniform Declaratory Judgement Act (UDJA) that it was not required to disclose the requested information. The AG filed a plea to the jurisdiction. The trial court granted the plea. SJRA appealed.

The court of appeals found that SJRA’s petition was not filed timely because Section 552.324(b) of the Government Code refers to the date the governmental body receives the decision of the AG in determining that the requested information must be disclosed to the requestor, not the date of the post-decision correspondence informing the SJRA that it was prohibited from asking for a reconsideration. The court also determined that the UDJA claim did not confer jurisdiction on the trial court, and that the SJRA could not rely on an estoppel argument to confer jurisdiction on the trial court. Additionally, the court found that the SJRA’s “compelling reason” argument to withhold disclosure of the requested documents was outside the jurisdiction of the trial court and the court of appeals. Accordingly, the court affirmed the trial court’s order.

Ballot Language:  In Re Linder, No. 03-19-00553-CV, 2019 WL 3978582 (Tex. App.—Austin Aug. 22, 2019) (mem. op.).This is a mandamus action seeking modification of ballot language of a proposition to adopt a citizen-initiated ordinance.

Linder and approximately 31,900 registered voters signed a citizen-initiated petition proposing an ordinance regarding the City of Austin’s use of revenue from hotel-occupancy taxes.  The proposed ordinance generally required the city to spend 15 percent of hotel occupancy taxes on cultural arts and 15 percent on historic preservation; limit its spending on the convention center to 34 percent of the hotel-occupancy tax revenue; spend the remaining hotel-occupancy tax revenue to support and enhance the city’s cultural tourism industry; and obtain voter approval for the convention center improvement and expansion costing more than $20 million. The petition was certified, and the city prepared the ballot language that referenced “voter approval for Convention Center improvements or expansions of more than $20 million at an election for which the city must pay.” Linder filed a suit for mandamus asking the trial court to order the city to correct the ballot language so that it adequately describes the ordinance proposed by the citizen-initiated petition. Linder argued that the proposed ballot language includes extraneous and misleading information regarding election costs, and fails to inform voters that under the proposed ordinance, hotel-occupancy tax revenue would be redirected from the convention center to cultural, arts, and other tourism-related programs.

The court found that the ballot language affirmatively misrepresents future election costs associated with the ordinance because there is no requirement under the proposed ordinance that the election to approve the convention center’s improvement and expansions costs of more than $20 million be held within a given time. Additionally, the court found that the ballot language omits a chief feature of the proposed ordinance – that the ordinance would require the city to prioritize the spending of hotel-occupancy tax revenue on arts, historic preservation, and the city’s cultural tourism industry. As a result, the court found that the city had abused its discretion.

Time Payment Fee: Dulin v. State, Nos. 03-18-00523-CR; 03-18-00524-CR, 2019 WL 3807866 (Tex. App.—Austin Aug. 14, 2019).  This is an appeal challenging the constitutionality of the time payment fee assessed against a defendant convicted of two offenses in a single criminal action.

Dulin was convicted under two separate cause numbers and sentenced to imprisonment for one count of indecency with a child, nine counts of aggravated sexual assault of a child, one count of continuous sexual abuse of a child under the age of 14, and one count of “super” aggravated sexual assault of a child. The trial court also assessed court costs of $589 and $639 for the count of indecency and for the “super” aggravated sexual assault of a child, respectively. Dulin appealed asserting that the time payment fee assessed against him must be reduced because a portion of the fee is unconstitutional and that duplicative costs must be deleted.

The court first looked at the constitutionality of Section 133.103(b) and (d) of the Local Government Code, which provides that a person convicted of an offense shall pay a fee of $25 if any part of a fine, court cost, fee, or restitution is paid on or after the 31st day after the date judgement is entered with $12.50 remitted to the State Comptroller and $10 retained in the general revenue of a city or county. The court concluded that because these fees are general revenue not sufficiently related to a legitimate criminal justice purpose, subsections (b) and (d) are facially unconstitutional and violate the separation of powers doctrine under article II, section I of the Texas Constitution. The court also concluded that the trial court should not have assessed the same court costs against Dulin in both cause numbers as he was convicted of two offenses in a single criminal action. 

Tort Claims Act: Maspero v. City of San Antonio, No. 04-18-00286-CV, 2019 WL 4044036 (Tex. App.—San Antonio Aug. 28, 2019) (mem. op.). This is an appeal of the trial court’s order granting the City of San Antonio’s plea to the jurisdiction in a personal injury case.

Narcotics detectives requested two police officers, Sergeant Scaramozi and Officer Kory, to conduct a traffic stop of an individual driving a suburban suspected of carrying drugs. Officer Kory responded, followed the suburban, and activated her lights. The suburban slowed down and pulled onto the shoulder, but then suddenly sped up and onto the main lanes of an interstate highway. Officer Kory initiated a chase of the vehicle, which was travelling over 100 mph while weaving in and out of rush hour traffic.  When the suburban drove down a grass median and onto the frontage road, she followed the vehicle and exited the interstate at a speed of up to 94 mph. The suburban then drove through an intersection and lost control. Officer Kory proceeded to where the suburban had crashed, but the suburban suddenly emerged driving towards her. To avoid impact, Officer Kory veered off the right shoulder. The suburban drove past her and crashed head-on into Jimmy and Regina Masperos’ vehicle. The crash killed the Masperos’ sons and injured their two surviving children. The Masperos’ sued the city for negligence alleging that the city was liable because Officer Kory and Sergeant Scaramozi’s negligent and reckless actions proximately caused the crash. The city filed a plea to the jurisdiction, arguing immunity from suit. The trial court granted the plea.  The Masperos’ appealed.

The court of appeals first looked at whether the city’s immunity under the Texas Tort Claims Act (TTCA) had been waived by the operation or use of a motor-driven vehicle.  The court determined that there was a nexus between Officer Kory’s operation of a motor vehicle and the Masperos’ injuries because Officer Kory was actively operating her vehicle at the time of the crash; she used her patrol car to chase the suspect in her efforts to apprehend him; and her decision to use her patrol car to chase the suspect without activating her siren was a “but-for-cause” of the suburban’s crash.

The court then looked at whether the city was immune under the “emergency exception” of the TTCA. The court found that Officer Kory knew the substantial risks to the public of initiating and continuing a high-speed chase of a suspect, and did not care about the result because she continued the chase even though she did not believe she could catch the suburban. As such, the emergency exception did not apply.

Finally, the court looked at whether the trial court erred in dismissing the Masperos’ claim of negligent implementation of a policy, Procedure 609, which permits an officer to engage in a chase only when the benefit of apprehension outweighs the risk to the public. The court concluded that the Masperos’ had established some evidence sufficient to create a fact issue about whether Procedure 609 was violated. They showed that Officer Kory’s chase began as routine traffic stop of a driver who was only a suspect, and that Sergeant Scaramozi did not verbally authorize Officer Kory to pursue the suspect. As a result, the trial court erred in dismissing the Masperos’ negligent implementation of a policy claim. 

The court reversed the trial court’s order and remanded the case for further proceedings.

Premise Defect: City of San Antonio v. Herrera, No. 04-18-00881-CV, 2019 WL 3937279 (Tex. App.—San Antonio Aug. 21, 2019) (mem. op.). This is an interlocutory appeal of the trial court’s order denying the City of San Antonio’s plea to the jurisdiction in a premise defect case. 

Elena Herrera was exiting an elevator and fell as a result of a condition created by the curb and ramp leading to the parking garage owned and operated by the city.  She sued the city for injuries she sustained as a result of the fall alleging that the city negligently created the dangerous condition, allowed it to exist, and failed to warn about the condition. The city filed a plea to the jurisdiction asserting that the premise liability claim arose out of its discretionary powers, for which the city retains immunity. The trial court denied the plea. The city appealed.

The court of appeals analyzed whether the city’s failure to provide visible contrast between the curb and flares or to warn about the alleged hazard in the garage falls within the discretionary function exception to the waiver of governmental immunity.  Because the city is not required by law to create contrast between the curb and flares, the court concluded that city’s decision about what safety features to use and whether to provide additional warnings are discretionary decisions for which the city may not be sued. Accordingly, the court reversed the trial court’s order denying the city’s plea to the jurisdiction.

Breach of Contract: Torres v. Dallas/Ft. Worth Int’l Airport, No. 05-18-00675-CV, 2019 WL 4071994 (Tex. App.—Dallas Aug. 29, 2019) (mem. op.).This is an interlocutory appeal of the trial court’s order granting Dallas-Fort Worth International Airport Board’s (DFW) plea to the jurisdiction in a breach of contract claim.

Torres entered into a contract to provide human resources consulting services to Pursuit of Excellence (POE), a corporation that contracted with DFW to provide operations services. In July 2016, POE filed suit against Torres for breach of contract, breach of fiduciary duty, misappropriation of trade secrets, unjust enrichment, tortious interference with contract and business relationships, and commercial disparagement.  Torres filed an answer, denying the claims, asserting counterclaims against POE, and added third-party claimants, including DFW. DFW filed a plea to the jurisdiction asserting governmental immunity from tort and contract claims. The trial court granted the plea. Torres appealed.

The court of appeals determined that the operation of DFW airport is a governmental function as a matter of law, and immunity applies. The court also concluded that the waiver of immunity for breach of contract under Section 271.152 of the Local Government Code does not apply because DFW did not directly contract with Torres.  The court overruled Torres’ remaining issues as they were not properly before the court.  Accordingly, the court affirmed the trial court’s grant of DFW’s plea to the jurisdiction.

Open Meetings Act: City of Plano v. Hatch, No. 05-18-00927-CV, 2019 WL 4010777 (Tex. App.—Dallas Aug. 26, 2019). This is an interlocutory appeal of the trial court’s order denying the City of Plano’s plea to the jurisdiction in an action alleging a violation of the Texas Open Meetings Act (TOMA).

The Hatches sued the city after city council voted to rename and expand the city’s non-discrimination policy, alleging that: (1) although the vote occurred at a public meeting, council actually held deliberations and voted on the ordinance in prior closed meetings in violation of the TOMA; (2) the city surveyed councilmembers for their policy positions, establishing a “walking quorum;” (3) the city failed to maintain an adequate certified agenda; and (4) the city’s public notice was “deliberately dishonest” about the fact that the ordinance was new. The Hatches sought a declaration that the ordinance is void; the city’s actions violated the Hatches’ rights and the rights of the city’s citizens and Texas law; and a declaration preventing the city from simply “reenacting” the ordinance.

The City filed a plea to the jurisdiction alleging that: (1) only a writ of mandamus or injunction, and not declaratory relief, is available under TOMA; (2) TOMA requires the Hatches sue the individual councilmembers, not the city; (3) the Hatches improperly “attempt to block” the city’s legislative right to pass future ordinances; (4) there is no waiver of the city’s immunity for the Hatches’ claims that the city violated criminal statutes; (5) the Hatches’ claims are moot, because only one of the members of the council who allegedly violated TOMA is still serving on the council; (6) because the city posted and conducted a public meeting where the ordinance was passed, any prior alleged TOMA violations are moot and “barred by ratification”; and (7) the Hatches claims against the city manager are improper because he is not a member of the city council. The Hatches responded by filing a supplemental petition adding an allegation that the city’s immunity was waived under TOMA, and pleaded additional causes of action for declaratory judgement, injunction, and mandamus. The court denied the city’s plea to the jurisdiction. The city appealed.

The court of appeals first considered whether TOMA’s waiver of immunity under Section 551.142 (permits suits “to stop, prevent, or reverse a violation or threatened violation  . . . by members of a governmental body”) and Section 551.141 (“[a]n action taken by a governmental body in violation of this chapter is voidable.”) applies to cities. The court concluded that a city is a “governmental body” under which an action can be brought under Section 551.142 of the TOMA.

The court then considered whether TOMA or the Uniform Declaratory Judgement Act (UDJA) waive immunity for declaratory relief. Reading Sections 551.141 and 551.142 together, the court concluded that, in addition to requests for mandamus and injunctive relief, TOMA waives immunity for a request to declare void an action taken in violation of TOMA. The court determined that the trial court did not have jurisdiction over the Hatches’ remaining requests for declaratory relief. The court also found that the subsequent ratification of the Ordinance did not deprive the trial court of jurisdiction over the Hatches’ complaints about the city’s actions. Accordingly, the court reversed the portion of the trial court’s order denying the plea as to the Hatches’ claims for declaratory relief other than their request to declare the ordinance void, and affirmed the remainder of trial court’s order.

Firearms Regulation: Thomas v. State, No. 10-17-00138-CR, 2019 WL 4072073 (Tex. App.—Waco Aug. 28, 2019) (mem. op.). In this case, the Waco Court of Appeals overrules challenges to the application and constitutionality of Texas Penal Code Section 46.03’s prohibition against possessing a firearm on the premises of a court.

Thomas entered the screening area of the Guinn Justice Center carrying a firearm inside her purse. She was subsequently convicted of carrying a weapon in a prohibited place and sentenced to five years’ probation. Thomas challenged her conviction in five issues, three of which involve the application and constitutional validity of Texas Penal Code Section 46.03 which provides, in relevant part: “A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm … on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court….” Section 46.035(f)(3) defines “premises” as “a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”

Thomas asserts that Section 46.03 is unconstitutionally vague because the definition of “premises” is insufficient to provide notice of what the statute prohibits. The court explains that the term “premises” does not include the exterior of a court facility, but does include areas inside a “building or a portion of a building.” The common areas inside a building that are adjacent to courtrooms and offices used by the court are clearly part of the definition of “premises.” Here, the security screening area is directly in front of and to the right of the 413th district court. Individuals who pass through the screening area are thus in a portion of the premises of a building housing a government court. In addition, there is a warning sign posted at the bottom of the stairs leading into the Guinn Justice Center. The Waco Court of Appeals overrules this issue.

Thomas also asserts that a judicial decree by the sitting judges of Johnson County that applied 46.03 to the entire Guinn Justice Center violated the separation of powers clause of the Texas Constitution (by usurping the power of the legislature in defining the word “premises”), and is unconstitutional as applied to her. The Waco Court of Appeals overrules this issue, holding that the decree merely applies the language of Section 46.03(a)(3) and 46.035(f)(3) to the Guinn Justice Center, and does not expand the definition of premises.

Thomas also argues that 46.03 does not apply to the entryway to the Guinn Justice Center and that the attempt by the sitting judges to change the definition of “premises” is void and invalid. The court overrules this issue holding that “the plain language of § 46.003(a)(2), in conjunction with § 46.035(f)(3), covers the entryway to the Guinn Justice Center where Thomas was found with a firearm.”

Overruling all of Thomas’s issues, the judgment of the trial court is affirmed.

Breach of Contract: Wasson Interests, Ltd. v. City of Jacksonville, No. 12-13-00262, 2019 WL 4125973 (Tex. App.—Tyler August 30, 2019) (mem. op.). After the Texas Supreme Court held in 2016 that the proprietary-governmental dichotomy applied to breach of contract cases, it remanded this case back to the Tyler Court of Appeals to address the merits of the city’s initial no-evidence motion for summary judgment.

The basic fact pattern is as follows. Wasson Interests, Ltd. (Wasson) was the successor in interest of a 99-year lease of city property specified for residential use for two separate lots – lot 43 and lot 46. Wasson began leasing the property for one week at a time. The city sent an eviction notice holding the short-term rentals constituted a commercial use of the property in violation of the lease. The city agreed to excuse past violations and cancel the eviction in exchange for Wasson entering into a reinstatement agreement under which the city imposed more specific conditions concerning the property’s acceptable uses and occupancy limitations. Later, the city discovered an advertisement to rent the home on lot 43. The city sent notice to Wasson that the advertisement and rental terms violated the reinstatement agreement and that the city would terminate the leases if Wasson failed to cease all commercial activity within ten days. The city ultimately sent an eviction notice and Wasson sued the city for breach of contract. The city filed a traditional and no-evidence summary judgment which the trial court granted and Wasson appealed.

After remand from the Texas Supreme Court, the court of appeals considered Wasson’s argument that the trial court erred when it granted summary judgment in favor of the city due to a fact issue on Wasson’s breach of contract and wrongful eviction claims. The city alleged that Wasson breached the reinstatement agreement in three ways: (1) Wasson advertised the properties online for use as a vacation rental; (2) Wasson’s rental scheme obligated a renter to stay a minimum of only one week (instead of 30 days); and (3) Wasson allowed its employees to stay at the properties in consideration for their labor. The court addresses whether Wasson carried its burden to create a fact issue by producing more than a scintilla of evidence that it did not materially breach the reinstatement agreement.

The reinstatement agreement expressly prohibited the advertisement. Nevertheless, Wasson advertised the house on lot 43 on VRBO.com. The court held that the advertisement constituted not only a breach of the agreement, but also authorized the city to terminate the leases and evict Wasson on lot 43. (Note: although Wasson didn’t carry its burden to show a fact issue regarding the advertisement for the lot 43 property, no advertisement for lot 46 was in the record, so Wasson presented more than a scintilla of evidence that complied with the reinstatement agreement’s advertisement provision as to the lot 46 property.)

The court also sided with the city’s contention that the rental scheme’s obligation that a renter stay a minimum of only one week violated the reinstatement agreement. In doing so, the court again referenced the online advertisement for the property on lot 43. The agreement required any rentals to have a term that exceeded 30 consecutive days. Wasson did not offer sufficient evidence showing that it did not breach the 30 consecutive day requirement in the agreement in relation to the property on lot 43. Again, without any advertisement pertaining to the property on lot 46 in the record, Wasson raised a fact issue as to whether the city’s termination of the lease for lot 46 and eviction was improper.

The reinstatement agreement also prohibited Wasson from renting the property as a vacation home “whether rent is paid in money, goods, labor, or otherwise.” The city claimed that Wasson violated the agreement for both lots when it allowed employees to stay at both properties in consideration for their labor. But the court found no evidence in the record that Wasson allowed employees to stay at the property in consideration for their labor. The only evidence in the record showed that Wasson allowed employees to stay at the property gratuitously at times. The city therefore was without cause to terminate either lease and evict on this ground.

For the reasons stated above, the court held the city was authorized to terminate the lease and evict Wasson on lot 43, but Wasson raised a fact issue concerning the city’s termination of the lease and eviction on lot 46. The court affirmed the trial court’s order in relation to lot 43, but reversed the trial court’s order and remanded as to lot 46. 

Finally, Wasson argued that it should retain the equity for the improvements made to the city’s land even if it violated the reinstatement agreement. Although Wasson was lawfully evicted from the property on lot 43, the court held that it would be inequitable for the city to retain the full value of the improvements made by Wasson to lot 43. According to the court this case represents an “unusual scenario” in which the city provided only the land and the leases authorized the tenant to construct permanent homes and other improvements. The city would be unjustly enriched to retain the full value of the extensive improvements without providing any compensation to Wasson. The court remanded the issue to the trial court to determine the amount of equitable reimbursement due to Wasson for the improvements to lot 43.

Texas Tort Claims Act: Kirstein v. City of South Padre Island, No. 13-18-00574-CV, 2019 WL 4200298 (Tex. App.—Corpus Christi Sept. 5, 2019) (mem. op.). Sean Kirstein was arrested for public intoxication in June 2018. While detained in jail, Kirstein was attacked by his cellmate and suffered multiple injuries. Kirstein sued the city, arguing that the city’s arresting officer and jailer should have known that due to the many prior times they had arrested Kirstein for alcohol-related offenses that he was a violent drunk. According to Kirstein, the city was negligent for a number of reasons, including the lack of adequate facilities for separating and monitoring inmates, for failing to follow written policies and procedures governing the jail; for the jailers not receiving adequate training, and for allowing the jailers to watch television at the booking desk thereby taking their attention away from the assault. The city filed a plea to the jurisdiction, which was granted by the trial court. Kirstein appealed.

In his sole issue on appeal, Kirstein argued that the trial court erred in granting the city’s plea to the jurisdiction because his injuries were proximately caused by negligent actions involving a condition or use of tangible or real property (the jail), and the city’s immunity was therefore waived under the Texas Tort Claims Act. However, the court held that Kirstein’s claims do not allege more than mere incidental involvement of the jail and the cell he was placed in, and he did not show that the condition or use of the jail were substantial factors in bringing about his injuries. Thus, the court rejected Kirstein’s arguments that the city waived immunity because it lacked adequate facilities or failed to transfer one of the inmates. Further, because written information in the form of instructions and manuals is not tangible personal property, the court held that the city’s alleged failure to provide adequate “jail detention training” did not give rise to a claim under the Texas Tort Claims Act.

Kirstein also claimed that allowing the jailers to watch television at the booking desk in violation of the city’s rules and regulations represented the negligent implementation of a formulated discretionary policy for which the Texas Tort Claims Act waives immunity. However, the court held that the use of the television by the jailers was not the cause-in-fact or proximate cause of Kirstein’s injuries, so the city’s immunity was not waived. The court overruled Kirstein’s issue and affirmed the trial court’s judgment.   

Texas Tort Claims Act: City of Houston v. Cruz, No. 14-18-00080-CV, 2019 WL 4021881 (Tex. App.—Houston [14th Dist.] August 27, 2019) (mem. op.). Francisco Cruz sued Jailene Reyes in November 2017 after Reyes ran a red light at an intersection and collided with Cruz’s vehicle. In April 2017, Reyes moved to add the City of Houston as a third-party defendant, arguing that the city was negligent under theories related to the red light. The city filed a plea to the jurisdiction arguing that Cruz did not give the requisite 90-day notice under the city’s charter, or the six-month notice under the Texas Tort Claims Act. Cruz’s attorney did send the city a letter related to the incident in March 2017, but referenced an accident on behalf of their client “Francisco Lopez” instead of a “Francisco Cruz.” The city secretary submitted two affidavits indicating that it did receive notice of a claim for damages on a Francisco Lopez but not Francisco Cruz. Cruz did not dispute that the attorney failed to timely provide the requisite notice, but attached documents indicating the city was aware of the malfunctioning traffic signal on the day the accident occurred. The trial court ultimately denied the city’s plea and the city appealed.  

The only question on appeal was whether the evidence raised a fact issue as to the city’s actual, subjective notice of (1) a death, injury, or property damage; (2) the city’s fault that produced or contributed to the death, injury, or property damage; and (3) the identity of the parties involved. The court recognized the city secretary’s affidavits as evidence supporting the city’s assertion that it lacked the subjective notice required under the Texas Tort Claims Act. Cruz did not object to those affidavits or offer controverting evidence, but instead submitted records showing the city knew there was a problem with the traffic lights at the intersection. The court held that because Cruz did not file either an affidavit explaining the need for further discovery or a verified motion for continuance, there was no evidence in the record that the city received timely notice of Cruz’s claim or had actual notice of it. Lack of notice is an incurable jurisdictional defect. The court rendered judgment dismissing Cruz’s claims against the city for lack of subject matter jurisdiction. 

*Indicates 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 www.rshlawfirm.com.

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