Note: Included cases are from August 11, 2021 through September 10, 2021.
Mandamus: In re Abbott, No. 21-0667, 2021 WL 3641471 (Tex. Aug. 17, 2021). Members of the Texas House of Representatives filed suit against the Governor and Speaker of the House, in their official capacity, seeking an injunction to prevent their arrest for having fled the state in order to prevent the establishment of a quorum on pending legislation. The trial court issued an ex parte temporary restraining order (TRO), prohibiting the defendants from compelling members’ attendance by arrest or other confinement or restraint for 14 days. Defendants petitioned for writ of mandamus to compel the trial court to withdraw the TRO.
On a matter of first impression, the Supreme Court granted the mandamus, holding that: (1) the arrest of absent members of the House to secure their presence and establish quorum, in accordance with a House rule, was a valid exercise of power granted to the Speaker under the Texas Constitution; (2) the Texas Constitution provision granting state legislators privilege from arrest during a legislative session did not supersede the authority of the Speaker to have members arrested to secure their presence; and (3) the trial court abused its discretion when it granted members’ ex parte application for TRO to enjoin their arrest.
Ballot Language: In re Petricek, No. 21-0693, 2021 WL 3909908 (Tex. Sep. 1, 2021). A group of voters in the City of Austin petitioned the Austin City Council for a proposed ordinance that, according to the petition, would establish minimum standards for the Austin Police Department “to enhance public safety and police oversight, transparency and accountability.” Rather than adopt the proposed ordinance, the city council chose to place it before the voters for approval at the next general election, and rather than use the caption set forth in the petition as the ballot language, the city council prepared and approved its own description of the ordinance to be used on the ballot. Because that language differed materially from the caption in the petition, Petricek, an Austin voter and one of the signers of the petition, brought a mandamus action challenging the city council’s chosen ballot language.
The court conditionally granted mandamus relief finding that, although the city charter requires the city to place the petitioned caption on the ballot verbatim if the caption complies with applicable law, including the common-law standard for ballot language, the petitioned caption falls short of that standard because it did not mention the proposed ordinance’s cost. Accordingly, the court determined that the city has limited discretion to revise the caption to the extent necessary to bring it into compliance, including adding the cost of the ordinance, but it did not have carte blanche to rewrite the petitioned caption wholesale, and it abused its discretion by doing so.
Tort Claims Act: City of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL 3556216 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021) (mem. op.). This is an interlocutory appeal filed by the City of Houston challenging a trial court’s order denying its summary judgment motion in a suit brought against it by appellee, Jose Sabas Carrizales, for negligence.
Carrizales alleged that a city employee failed to control her speed while driving a sewer jet truck owned by the city, causing the employee to strike his car and causing him to suffer personal injuries. The city filed an answer generally denying the allegations in Carrizales’ petition and asserting that the trial court lacked jurisdiction over the suit because the city is entitled to governmental immunity and the Texas Tort Claims Act (TTCA) did not waive that immunity. The TTCA waives a governmental unit’s immunity for personal injuries proximately caused by the negligence of a governmental unit’s employee acting within the scope of her/his employment if the injuries arise from the operation or use of a motor-driven vehicle. The appellate court held that the uncontroverted evidence conclusively proved that the city employee was not acting in the course and scope of her employment with the city when the collision occurred. Therefore, the city’s governmental immunity had not been waived and the trial court lacked subject-matter jurisdiction over the Carrizales’ suit. Accordingly, the appellate court reversed the trial court’s order denying the city’s summary judgment motion and rendered judgment dismissing Carrizales’ suit for lack of jurisdiction.
Tort Claims Act: City of Houston v. Kim, No. 01-20-00333-CV, 2021 WL 3776750 (Tex. App.—Houston [1st Dist.] Aug. 26, 2021) (mem. op.). Appellee, Young Ran Kim, sued the City of Houston and one of its employees under the Texas Tort Claims Act (TTCA) following a motor-vehicle collision. After moving successfully to dismiss its employee from suit, the city moved for summary judgment arguing its employee was not acting in the course and scope of employment, and; thus, the court lacked subject-matter jurisdiction. However, the trial court denied the city’s motion for summary judgment.
The city filed an interlocutory appeal contending that the trial court erred in denying its motion for summary judgment because it proved its employee was not acting in the scope of employment when the collision occurred, and that TTCA’s limited waiver of immunity did not apply. However, the appellate court found that by moving to dismiss its employee from the suit, the city admitted judicially that the employee was acting in the course and scope of his employment when the accident occurred, and the city agreed vicariously to defend him. Consequently, the city was foreclosed from later arguing in its motion for summary judgment that the employee was not acting in the scope of his employment at the time of the accident. The appellate court affirmed the trial court’s denial of the city’s motion for summary judgment.
Employment/Whistleblower: Oakbend Med. Ctr. v. Simons, No. 01-19-00044-CV, 2021 WL 3919218 (Tex. App.—Houston [1st Dist.] Sept. 2, 2021) (mem. op.). Appellant, OakBend Medical Center, a municipal hospital authority, appealed the judgment rendered on a jury verdict in favor of appellee, Dawn Simons, on her claims brought under the Texas Whistleblower Act (Act). The hospital authority contended that Simons presented insufficient evidence to: (1) satisfy: (a) the objective and subjective prongs of the “good faith” standard for her first complaint, and (b) the objective prong for her second complaint; (2) demonstrate the hospital authority knew about her second complaint to the Occupational Safety and Health Administration (OSHA) before it suspended her and terminated her employment; (3) support the jury’s award of emotional distress damages; and (4) support the jury’s award of lost wages and benefits.
The appellate court; however, affirmed the trial court’s ruling by concluding that: (1) there was sufficient evidence to support the jury’s finding that Simons had a good faith belief that the conduct reported in what evidence showed to be a first OSHA complaint was a violation of law and that her belief was objectively reasonable in light of her training and experience; (2) the evidence was legally insufficient to support a finding that the hospital authority knew about Simons’ second OSHA complaint before it suspended her or terminated her employment and; thus, her second complaint could not form the basis of a retaliation claim under the Act; (3) the hospital authority waived its appellate review of the jury’s compensatory damage award because it failed to address all elements of the award; (4) the evidence was sufficient to support the jury’s award of $26,000 in lost wages to appellee; and (5) the hospital authority waived review of its sufficiency challenge to the jury’s award of lost benefits.
Tort Claims Act: City of Austin v. Dawson, No. 03-21-00023-CV, 2021 WL 3869728 (Tex. App.—Austin Aug. 31, 2021) (mem. op.). Appellee, Carol Dawson, sued the City of Austin for injuries she sustained after tripping on a public sidewalk. Dawson introduced evidence that showed that the sidewalk was designed and constructed by Civilitude, which had received a complaint regarding the sidewalk after one other person had already fallen there.
The city filed a plea to the jurisdiction, asserting that it is protected from suit by governmental immunity and that Dawson had failed to sufficiently plead a premises defect claim within the scope of the Texas Tort Claims Act’s (TTCA) waiver of immunity. After the trial court denied the plea, the city filed an interlocutory appeal contending that the trial court erred in denying its plea because appellee did not establish that the sidewalk’s condition was a special defect or that it was an ordinary defect of which the city had actual knowledge. However, the appellate court concluded that Dawson’s factual allegations were sufficient to show that the city did indeed have actual knowledge and that, as a result, immunity was waived under the TTCA. Dawson’s allegations regarding Civilitude’s role in the design and construction of the ramp, its receipt of the complaint, and its employee-employer relationship with the city was found to have sufficiently demonstrated that the city was notified of the complaint and; therefore, that the city was aware that the ramp posed a danger to pedestrians. The appellate court affirmed the trial court’s decision.
Board of Adjustment: Alpha Sec., LLC v. City of Fredericksburg, No. 04-20-00447-CV, 2021 WL 3516683 (Tex. App.—San Antonio Aug. 11, 2021). This is a board of adjustment appeal and declaratory judgment action where the appellate court found that no jurisdiction existed, but remanded the case to provide the plaintiff the opportunity to replead.
Alpha Securities, LLC (Alpha Securities) purchased real property in the City of Fredericksburg’s historical district. It sought a variance to expand its doors so the building could be used for commercial uses. The historic district’s review board approved the expansion of one door, but not the other. As a result, Alpha Securities was unable to obtain a certificate of occupancy, water, and electrical services. Alpha Securities appealed the determination to the city’s board of adjustment (BOA), and the BOA denied relief. Alpha Securities then sued the city, which filed a plea to the jurisdiction. The trial court granted the plea and Alpha Securities appealed.
The court overruled Alpha Security’s first argument that the city did not timely seek a ruling on the plea. Subject matter jurisdiction cannot be waived, and courts cannot acquire subject matter jurisdiction by estoppel. The court also denied Alpha Security’s attempts to bring ultra vires claims that did not include any specific officials. To the extent Alpha Securities intended to establish that the review board and BOA violated the law, including its constitutional rights, the Uniform Declaratory Judgement Act does not waive the city’s governmental immunity. Next, the court analyzed the timeliness of the appeal. The appeal clock does not start to run at the time of the BOA decision; rather, when the BOA’s decision “is filed in the board’s office.” The pleadings did not establish the date when the BOA’s decision was filed in the board’s office. Because Alpha Securities’ pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the trial court should have given Alpha Securities the opportunity to replead. [Comment: this appears to require pleadings to affirmatively list the specific dates for deadline compliance in order to establish jurisdiction]. The city also asserted that Alpha Securities repled three times and should not be allowed to do so again. However, the appellate court determined that was inconsequential in this case, holding that if the trial court determines the plea is meritorious and the pleadings are deficient, the plaintiff must then be given a reasonable opportunity to amend the pleadings to cure the jurisdictional defects. As a result, the case was remanded.*
Emergency Powers: Abbott v. City of San Antonio, No. 04-21-00342-CV, 2021 WL 3819514 (Tex. App.—San Antonio Aug. 19, 2021) (per curiam). This case arises from an emergency motion asking the appellate court to exercise its authority under Rule 29.3 of the Texas Rules of Appellate Procedure to reinstate the trial court’s temporary injunction during the pendency of an appeal.
On August 10, 2021, the City of San Antonio and Bexar County filed a declaratory judgment suit challenging Executive Order GA-38. The suit alleges that the governor acted ultra vires and outside the scope of his authority under the Texas Disaster Act of 1975 (the Act) and, alternatively, that the Act violates the Texas Constitution. The city and county’s suit also included an application for a temporary injunction. After a hearing on the temporary injunction application on August 16, 2021, the trial court signed an order granting the temporary injunction restraining the governor from enforcing sections of the executive order that prohibit the city and the county from requiring city and county employees or visitors to city-and county-owned facilities to wear masks or face coverings or to prohibit the public health authority from requiring masks in schools in the city and county. The temporary injunction order set the trial on the merits for December 13, 2021. Hours after the trial court signed the temporary injunction order, the governor filed a notice of appeal, which effectively suspended the trial court’s temporary injunction. However, the city and county asked the court, in an emergency motion, to preserve their rights by issuing an order reinstating the trial court’s temporary injunction.
Based on the temporary injunction order and the evidence attached to the emergency motion, the appellate court determined that the city and county demonstrated that reinstating the trial court’s temporary injunction was necessary to prevent irreparable harm. The court concluded that because the Texas Supreme Court has found that an appellate court has “great flexibility in preserving the status quo [when] unique facts and circumstances [are] presented,” it will exercise its inherent authority under Rule 29.3 to maintain the status quo and preserve the parties’ rights until the disposition of the accelerated appeal. Accordingly, the court granted the emergency motion and reinstated the trial court’s temporary injunction pending final disposition of the appeal.
Emergency Powers: In re Abbott, No. 05-21-00687-CV, 2021 WL 3610314 (Tex. App.—Dallas Aug. 13, 2021) (mem. op.). The appellate court denied Governor Abbott’s petition for writ of mandamus challenging the trial court’s temporary restraining order enjoining certain portions of Executive Order GA-38. Applying the plain language of the Texas Disaster Act (the Act), the appellate court concluded that the Dallas County Judge “demonstrated a probable right to relief that the Governor’s power to suspend certain laws and rules under section 418.016(a) [of the Government Code] does not include the power to suspend the Act’s grant of authority to mayors and county judges to declare and manage local disasters under section 418.108.”
Land Use: City of Dallas v. PDT Holdings, Inc., No. 05-21-00018-CV, 2021 WL 3733059 (Tex. App.—Dallas Aug. 24, 2021) (mem. op.). The city approved the plaintiff’s development plans for a duplex but then issued a stop work order for a violation of the residential proximity slope ordinance. The city’s board of adjustment (BOA) denied a variance to the plaintiff and the plaintiff sued for a violation of due course of law, estoppel, laches, and waiver, requesting the court reverse the BOA’s decision or award it damages for complying with the ordinance. The city and the BOA filed a plea to the jurisdiction and the trial court denied it. The appellate court determined it could review the BOA’s decision as a court of review but reversed in part and dismissed the plaintiff’s claims for damages and for violation of due course of law.
Public Information Act: In re City of Lubbock, No. 07-21-00070-CV, 2021 WL 3930727 (Tex. App.—Amarillo Sept. 2, 2021) (mem. op.). This is a Public Information Act (PIA) case where the city appealed the criminal trial court’s ex parte order that directed the Lubbock Police Department to allow the attorney for a criminal defendant to review certain records that dealt with a minor while prohibiting the city from disclosing the existence of the contents of the order to the State or any other party, including the child victim and outcry witnesses.
The criminal defendant sought the information for use in a criminal prosecution within that criminal case. The city did not receive notice of the ex parte motion prior to the trial court’s ex parte order so the court granted the city’s request for rehearing. The State still did not receive notice of the rehearing and the trial court again ordered the city to produce the records, but this time for an in camera inspection. The city appealed, seeking mandamus relief. The appellate affirmed the trial court’s order, finding that the city it is a non-party in the criminal proceedings and has no adequate appellate remedy and that the trial court did not abuse its discretion.
Seized Property: City of Brady v. Scott, No. 08-20-00155-CV, 2021 WL 3615830 (Tex. App.—El Paso Aug. 16, 2021). This is an interlocutory appeal in which the court of appeals determined it did not have jurisdiction to hear an appeal to determine ownership of property under Chapter 47 of the Code of Criminal Procedure (Code).
This case begun when police officers seized $11,450 from Scott when searching his home after an investigation for alleged fraud based on complaints that he was operating some form of scam. Several years later, Scott filed suit, specifically under Article 47.01 of the Code, which allows for a specific hearing to determine the person with the superior right to possession of property. In his petition, he complained that although the police opened a case file in the matter and provided him with a receipt stating that it had taken $11,452 in cash from him, the police never returned the cash to him, and criminal charges were never filed. The city filed a plea to the jurisdiction, asserting that the funds were not seized as part of a criminal investigation, but to determine their ownership. The city asserted it no longer has the funds as they were disposed of under Article 18.17 of the Code, which allows for disposing of funds when the owner is unknown. Under that article, the police placed an advertisement in the local City of Brady newspaper stating that it had cash in excess of $500 in its possession, and that anyone claiming the money had 90 days to contact them. After no one responded the department obtained an order from a Brady municipal court judge awarding the funds to the city. The city alleged that Scott only had 30 days to appeal or otherwise contest the municipal court’s disposition order, and that doing so was a “statutory prerequisite” to filing a Chapter 47 petition. The trial court denied the plea and in the same order it issued a final judgment granting Scott’s relief. The city filed an interlocutory appeal but did not appeal the final judgement.
The court of appeals held that when a trial court has already entered a final judgment, an appellate court has no jurisdiction to hear a governmental body’s interlocutory appeal from an order denying its plea to the jurisdiction, and the governmental body must instead pursue an appeal from the final judgment. Because the city did not timely appeal the final judgment or file an appeal bond for a Chapter 47 appeal, the appellate court has no jurisdiction to hear the city’s arguments. Accordingly, the case was dismissed.*
Takings: City of El Paso v. Ramirez, No. 08-18-00216-CV, 2021 WL 3827441 (Tex. App.—El Paso Aug. 27, 2021). This case involves an inverse condemnation action in which the court of appeals affirmed the trial court’s ruling.
Multiple property owners (appellees) sued the City of El Paso, alleging that the city had committed a compensable taking of their properties under Article I, Section 17 of the Texas Constitution. The appellees claimed that the city’s continued operation and maintenance of the Clint Landfill (the Landfill) caused exacerbated flood damage to their properties following a two-day rainfall in July 2006. Appellees alleged that, absent the city’s continued operation of the Landfill—including the continued deposit of solid waste and other refuse—the damages would not have occurred. Appellees further alleged the city knew that the Landfill’s construction, operation, and maintenance was substantially certain to damage appellees’ properties by continuing to flood them during heavy rain events. Following a bifurcated bench trial on the issue of liability, the trial court found appellees had established all required elements of a taking under the Texas Constitution ruling the evidence sufficiently established the city’s continued operation and maintenance of the Landfill after 2002—while knowing its history of wash out, runoff and drainage problems—established the city knew that specific property damage was substantially certain to result from such action. The trial court further found the remedial measures taken by the city were inadequate since problems occurred in July 2002, September 2004, and again in July 2006. Along with issuing findings of fact and conclusions of law, the trial court entered an interlocutory judgment on liability for appellees. The city appealed.
On appeal, the city asserted that no evidence supported the trial court’s findings as to the required elements of proximate cause and intent. The appellate court overruled the city’s assertions, finding that the record contains legally sufficient evidence to support the trial court’s ruling, and affirmed the trial court’s findings.
Emergency Powers: In re Abbott, No. 08-21-00140-CV, 2021 WL 3828464 (Tex. App.—El Paso Aug. 27, 2021) (per curium). This case arises from an emergency motion for temporary relief filed by the governor seeking a stay of the temporary restraining order (TRO) granted by the trial court enjoining the Governor from enforcing, in its entirety, Executive Order GA-38, against any local governmental entity, or employee or official of a local governmental entity in the City and County of El Paso. The TRO was ordered pending a temporary injunction hearing set for August 31, 2021, in the trial court.
Following a vote by the justices that resulted in a plurality with no single rationale commanding a majority vote, the appellate court granted the governor’s emergency motion for temporary relief in part and denied it in part. The court held that enforcement of Sections 3(b), 3(g), (4), and 5(a) of Executive Order GA-38 is restrained by the TRO to the extent it applies: (1) against any school district within El Paso County; (2) against the City of El Paso to the extent the city requires all employees to wear a mask or face covering; and (3) against the City of El Paso to the extent the city requires all visitors to the city-owned or managed facilities to wear a mask or face covering, including senior citizen centers, recreational facilities, and city-operated public transportation. The court also held that enforcement of GA-38 is not restrained by the TRO as to all its remaining sections.
Jurisdiction/Bill of Review: Richter v. City of Waelder, Nos. 13-20-00494-CV & 13-20-00495-CV, 2021 WL 3555984 (Tex. App.—Corpus Christi Aug. 12, 2021) (mem. op.). The Richters sued the City of Waelder after leaks in a city water pipe caused flooding at the Richter’s property. The trial court granted the city’s plea to the jurisdiction, dismissing the case. The Richters then filed a bill of review in a separate cause of action, which the trial court granted, thereby vacating the earlier judgment. The trial court then signed a second judgment in the first case granting, again, the city’s plea to the jurisdiction. The Richters appealed that action, and the city cross-appealed the granting of the bill of review. A bill of review is an equitable proceeding to set aside a judgment that is not void on its face but is no longer appealable or subject to a motion for a new trial. When a trial court grants a bill of review, a trial on the merits must occur in the bill of review proceedings and not in the underlying case. Because the trial court granted a bill of review and did not hold a trial in those proceedings but instead issued a second judgment in the underlying case, the appellate court did not have jurisdiction over the bill of review appeal. Ultimately the appellate court vacated the trial court judgment granting the city’s plea to the jurisdiction and dismissed both appeals. Further action is anticipated in this case.
Tax Rate/Open Meetings Act: Leftwich v. City of Harlingen, No. 13-20-00110-CV, 2021 WL 4096148 (Tex. App.—Corpus Christi Sep. 9, 2021) (mem. op.). Robert Leftwich sued the City of Harlingen alleging errors were made when the city adopted its 2019 tax rate as well as related violations of the Texas Open Meetings Act (TOMA). He sought injunctive relief and various declaratory judgments including the voiding of the tax rate ordinances. Harlingen filed a plea to the jurisdiction, which the trial court granted, dismissing Leftwich’s petition entirely, and Leftwich appealed.
The appellate court took pains to review the jurisdictional facts at length, including the tax notices, meeting notices and recordings of the meetings, and affirmed the trial court’s dismissal of Leftwich’s petition, finding the city had not erred in its tax rate setting or violated TOMA. One detail of interest is that Harlingen requires two readings to approve ordinances. The appellate court worked through the hypothetical wherein if the city failed to follow TOMA at the first reading of the tax rate ordinance, that violation would not render the ordinance voidable, because it is at the second reading where the “action” to adopt the ordinance is taken.
Governmental Immunity: Metro. Transit Auth. of Harris Cty. v. Douglas, No. 14-19-00714-CV, 2021 WL 3923972 (Tex. App.—Houston [14th Dist.] Sept. 2, 2021). Viola Douglas sued the Metro Police Department of the Metropolitan Transit Authority of Harris County (Department), alleging gender discrimination in the Department’s promotion process and retaliation against her for filing a related complaint. In the trial court, the Department filed a motion for summary judgment and a plea to the jurisdiction, which the trial court denied. The Department then filed an interlocutory appeal.
Governmental entities are immune from suit absent an express waiver of governmental immunity. A limited waiver of immunity exists when a governmental entity has discriminated against an employee on the basis of age, sex, or other protected classification or has retaliated against an employee for complaining of such discrimination. In this case, Douglas claimed disparate treatment based on her gender, which can be proved either by direct evidence of discrimination or indirect evidence of discriminatory intent following what is known as the McDonnell Douglas framework. Under this framework, if the plaintiff can raise an inference of discrimination, the burden shifts to the defendant to prove a legitimate, non-discriminatory reason for the allegedly discriminatory action. After reviewing the record, the appellate court found that Douglas’s assertions related to the Department’s alleged discrimination were worthy of credence and raised genuine issues of fact. Additionally, Douglas presented sufficient evidence to support a prima facie case of retaliation. Accordingly, the appellate court affirmed the trial court’s denial of the Department’s motion for summary judgment and plea to the 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.