Note: Included cases are from August 1, 2024, through August 31, 2024.
Jurisdiction: City of Houston v. Meka, No. 23-0438, 2024 WL 3995735 (Tex. Aug. 30, 2024) (per curiam). This case stems from a personal-injury lawsuit arising out of a motor-vehicle accident involving a City of Houston employee. The city sought dismissal and argued that post-filing diligence in effecting service of process is a jurisdictional requirement that, under Section 311.034 of the Texas Government Code, may be challenged in a plea to the jurisdiction or summary-judgment motion based on governmental immunity.
The Fourteenth Court of Appeals, relying on a Third Court of Appeals opinion, rejected the city’s contention and concluded that timely service of process does not implicate subject-matter jurisdiction. The Supreme Court subsequently overturned the Third Court’s opinion, clarifying that service that would otherwise be untimely will relate back to a timely-filed original petition if the plaintiff exercised diligence in attempting service from the point that limitations expired until service was achieved.
Accordingly, because the Fourteenth Court of Appeals relied on what it regarded as the state of law at the time, the Supreme Court granted the city’s petition for review, vacated the court’s judgment, and remanded.
Procurement: City of Houston v. 4 Families of Hobby, LLC, No. 01-23-00436-CV, 2024 WL 3658049 (Tex. App.—Houston [1st Dist.] Aug. 6, 2024). The City of Houston issued a request for proposals (RFP) to enter a contract to provide concessions at the city’s three airports. At the time the city issued the RFP, Pappas provided concessions at the airports. The city awarded a new contract to Areas, and Pappas sued the city for breach of contract based on the RFP, breach of its existing contract with the city, violation of the Texas Open Meetings Act (TOMA), violation of the equal protection clause under the Texas Constitution, and for a declaratory judgment that the award of the contract to Areas was void. Another company, Four Families, which had also submitted a proposal, later joined the suit as a plaintiff. Pappas claimed the city’s governmental immunity was waived under Chapter 252 and Chapter 271 of the Local Government Code. The city filed a plea to the jurisdiction asserting governmental immunity, which the trial court denied, and the city appealed.
The appellate court affirmed in part and reversed and rendered in part, holding that: (1) because the concessions contract was a revenue contract rather than an expenditure contract, Chapter 252 did not apply; (2) the RFP did not constitute a contract subject to Chapter 271; (3) the city’s initial contract with Pappas for airport concessions was a contract subject to Chapter 271, and therefore as to Pappas claim of breach of that contract, the city’s immunity was waived; (4) notice under the TOMA was sufficient and therefore the city’s action was not voidable under that act; (5) Pappas had presented a facially valid equal protection claim; and (6) declaratory judgment relief was proper based on Pappas’s allegations of violations of the equal protection clause. The appellate court remanded the claims for breach of the existing contract, the equal protection claim, and the claim for declaratory judgment back to the trial court for further proceedings.
Tort Claims Act: City of Houston v. Hernandez, No. 01-24-00031-CV, 2024 WL 3817374 (Tex. App.—Houston [1st Dist.] Aug. 15, 2024) (mem. op.). Hernandez sued the City of Houston after a police car collided with the trailer attached to the truck he was driving. At the time of the collision, the police car had its sirens activated, and Hernandez had pulled over to the shoulder of the road to allow the police car to pass him. The city filed a motion to dismiss, claiming immunity under the Texas Tort Claims Act (TTCA) and claiming that the emergency exception to the TTCA’s waiver of immunity applied. The trial court denied the motion, and the city appealed.
The appellate court affirmed, holding that Hernandez’s allegations that the police officer was not responding to an emergency and acted with reckless disregard for the safety of others were sufficient to establish a waiver of the city’s immunity and the inapplicability of the emergency exception.
Public Improvement Districts: River Creek Dev. Corp. & City of Hutto v. Preston Hollow Capital, LLC, et al., No. 03-23-00037-CV, 2024 WL 3892448 (Tex. App.—Austin Aug. 22, 2024) (mem. op.). In 2018, the City of Hutto authorized the creation of a public improvement district (PID) and a local government corporation, River Creek Development Corporation (River Creek), to assist with the financing of the improvements. To that end, the city and River Creek entered into several agreements including: (1) a loan agreement and promissory note in which River Creek borrowed $17.4 million from Public Finance Authority (PFA); (2) an interlocal agreement in which the city promised to purchase the public improvements from River Creek through levied assessments paid in installments which would be used to pay off River Creek’s promissory note; and (3) a contract with 79 HCD Development to build the public improvements. Rather than the city or River Creek issuing bonds themselves, River Creek entered into an agreement with PFA (a Wisconsin based governmental entity) to issue the bonds, which it later did. Preston Hollow Capital, LLC (Preston Hollow) purchased those bonds and was to be paid from the River Creek promissory note funds. U.S. Bank National Association was to act as the trustee for the transactions.
In 2021, after concerns arose about whether the city had lawfully entered into the agreements, the city and River Creek filed a lawsuit seeking declaratory relief under the Uniform Declaratory Judgment Act that the related agreements, bonds, and note were void and unenforceable because: (1) the “installment sales contract” provision in the interlocal agreement does not authorize the installment payments to be allowable costs of improvements under the PID Act (Local Government Code Section 372.024); (2) the bonds issued did not comply the PID Act as they had not been issued by an authorized issuer; and (3) promissory notes must be submitted to the attorney general for examination as required by state law. Preston Hollow filed counterclaims and a motion for summary judgment, which the court granted. The city and River Creek then filed this appeal.
The court of appeals affirmed the trial court’s judgment holding that: (1) Sections 372.026(f) and 372.023(d) specifically authorize a city to enter into an interlocal agreement that serves as an installment sales agreement in which the city pledges assessments it receives as installment payments to secure a corporation’s indebtedness which it issued to finance construction of the public improvements; (2) because the bonds were not issued to fund the city’s payment of its costs to purchase the public improvements from River Creek, the requirement in Section 372.024 that the issuer be a political subdivision of this state did not apply; and (3) because the legislature did not expressly provide for a remedy or consequence, failing to obtain attorney general approval under Transportation Code Section 431.071 does not render the agreements, bonds, or promissory note void or unenforceable.
Recreational Use: City of San Antonio v. Nadine Realme, No. 04-23-00885-CV, 2024 WL 3954217 (Tex. App.—San Antonio Aug. 28, 2024) (mem. op.). The plaintiff participated in a Turkey Trot and tripped over a metal object protruding in the ground and broke her arm. She brought a premises liability claim against the city and the city filed a no evidence summary judgment motion claiming it was immune under the recreational use statute. The trial court denied it and the city appealed. The appellate court affirmed the denial, finding that: (1) the recreational use statute did not expressly include a footrace; (2) a footrace did not include “enjoying nature or the outdoors” under the catchall definition; and (3) a footrace did not fall in the common usage of recreation.
Tort Claims Act: City of Whitesboro v. Diana Montgomery, No. 05-23-00979-CV, 2024 WL 3880627 (Tex. App.—Dallas Aug. 20, 2024) (mem. op.). In this interlocutory appeal, the City of Whitesboro challenged the trial court’s order denying its plea to the jurisdiction in a premises liability and premises defect suit. Diana Montgomery sued the city after she fell while using restroom facilities at the city’s swimming pool. In her suit she claimed the city was grossly negligent when it, among other things, removed slip mats in the restrooms and refinished the floors with an epoxy that contained a gritty, non-slip additive. In addition, Montgomery claimed a pool activity instructor told her lifeguards had been having a “shampoo or soap fight” in the restroom earlier in the day making the floor slick. The city objected to the testimony as hearsay filing a motion to strike, but the trial court denied the motion. The court of appeals, in reversing the trial court’s order, held that no exceptions to the hearsay rule applied to the witness’s testimony, including statements made by a party’s agent as the witness was an independent contractor, excited utterance, present sense impression, and statements against interest. In addition, Montgomery failed to provide evidence that the city had actual or subjective knowledge that the new epoxy floor presented a serious hazard or that there was a dangerous condition on the restroom floor at the time of her fall.
Elections: Lamar “Yaka” Jefferson and Jrmar “JJ” Jefferson v. Adam Bazaldua and Eric Johnson,No. 05-23-00938-CV, 2024 WL 3933886 (Tex. App.—Dallas Aug. 26, 2024) (mem. op.). In May 2023, the City of Dallas held an election in which the mayor and District 7 councilmember positions were on the ballot. Lamar Jefferson and Jrmar Jefferson filed for a place on the ballot for these positions but were later disqualified for failing to meet the candidate requirements. After Adam Bazaldua and Eric Johnson were elected to the positions, the Jeffersons filed a joint lawsuit to contest the election results under Title 14 of Election Code.
Bazaldua and Johson both filed a plea to the jurisdiction arguing the Jeffersons lacked standing as they were not “candidates” as required in Election Code Section 232.002. The trial court granted both motions and dismissed the cases, and the Jeffersons appealed. Interpreting the legislature’s intent, the court of appeals concluded that rather than the broader definition of “candidate” in Title 15 of the Election Code (“a person who knowingly and willingly takes affirmative action for the purpose of gaining nomination or election to public office”), a more limited definition—“a person whose name appears on the ballot for an office on Election day”—was consistent with the purpose of an election contest. Because the Jeffersons did not appear on the ballot, they were not candidates and lacked standing for election contest purposes. For those reasons, the court of appeals affirmed the trial court’s judgment.
Board of Adjustment: TCHDallas2, LLC v. Espinoza, No. 05-22-01278-CV, 2024 WL 3948322 (Tex. App.—Dallas Aug. 27, 2024) (mem. op). In 2020, the city’s building official issued TCHDallas2 (TCH) a certificate of occupancy (CO) for commercial amusement use. Later in 2022, an assistant building official revoked TCH’s CO after determining it had been issued in error as TCH, according to its original land use statement, had been operating a gambling establishment in violation of Texas Penal Code Section 47.04. TCH appealed the revocation to the city’s Board of Adjustment (BOA), and the BOA subsequently reversed the building official’s decision and reinstated TCH’s CO. In its decision, the BOA presumed TCH’s use of its property was legal as its operations may have fallen within the “safe harbor” provision of Section 47.04(b). Further, TCH had worked with the city attorney and city council for two years to obtain the CO and had not been prosecuted by the district attorney or found by a court to have been operating illegally.
Shortly thereafter, the city appealed the BOA’s decision to the trial court. In reversing the BOA’s decision, the trial court found that based on evidence presented at trial the BOA had abused its discretion by reversing the building official’s revocation as she was obligated to revoke the CO because TCH had been operating an illegal gambling establishment. TCH appealed, and the court of appeals held that the trial court had impermissibly substituted its own discretion in place of the BOA’s. Because the BOA could have reasonably reached more than one decision in the case, the trial court was required to give deference to the BOA’s decision. As such, the court reversed the trial court’s judgment and affirmed the BOA’s reinstatement of TCH’s CO.
Property Tax Delinquency; Bodine v. City of Vernon, No. 07-24-00089-CV, 2024 WL 3879520 (Tex. App.—Amarillo Aug. 20, 2024) (mem. op.). The city and other governmental entities obtained a judgment to foreclose on a property to recover delinquent ad valorem taxes, naming the record owners, the heirs of the record owners, and other unknown persons who may have a claim of ownership to the property. Bodine filed a petition for a bill of review to vacate the judgment because she was not named as a defendant and had entered into an executory contract to purchase the property from the record owner’s brother. The city filed a plea to the jurisdiction, which the trial court granted.
In affirming the plea to the jurisdiction, the appellate court found Bodine did not have standing because there was no evidence of any conveyance, deed, or other instrument transferring title to the property at any point before the sheriff’s sale. The appellate court also found: (1) Bodine had no interest in the property so her due process rights were not violated; and (2) Bodine was not entitled to personal service of the suit.
Tort Claims Act: Wolf v. Mickens, No. 09-21-00382-CV, 2024 WL 3980616 (Tex. App.—Beaumont Aug. 29, 2024) (mem. op.). Wolf sued Mickens, Verret, and Pierre (employees) in their individual capacities under the Texas Tort Claims Act (TTCA) for ultra vires actions, for fraud and civil conspiracy, and for an unlawful taking of her commercial building after the city ordered it demolished. She alleged that the employees required a bribe of $25,000 in exchange for issuing a permit for Wolf to rehabilitate the building and, when she did not give them the money, ordered the building demolished. The trial court granted the employees’ plea to the jurisdiction claiming immunity, and Wolf appealed.
The appellate court affirmed in part and reversed and remanded in part, holding that: (1) since Wolf was suing for monetary damages rather than prospective injunctive relief, her claims were not actionable as ultra vires acts; (2) because the TTCA does not waive liability for intentional torts alleged against employees in their individual capacity, the employees were not immune to Wolf’s claims of fraud and civil conspiracy related to the $25,000 bribe; and (3) Wolf’s takings claim should have been pursued in a direct appeal from her administrative hearing. The court remanded the claims for fraud and civil conspiracy and dismissed the remaining claims.
Tort Claims Act: Jefferson Cnty. v. Hadnot, No. 09-23-00052-CV, 2024 WL 3973070 (Tex. App.—Beaumont Aug. 29, 2024) (mem. op.). Hadnot sued Jefferson County for injuries she received after Nguyen, a sheriff’s deputy, rear-ended the vehicle she was driving. The county filed a plea to the jurisdiction, claiming governmental immunity was not waived under the Texas Tort Claims Act (TTCA) because Nguyen was responding to an emergency at the time of the collision.
The appellate court affirmed in part and reversed and rendered in part, holding that: (1) Hadnot’s failure to negate the emergency exception to the TTCA’s waiver of immunity in her pleading was a pleading defect, not a jurisdictional defect, and so there was a genuine issue of material fact as to whether the emergency exception applied; and (2) Hadnot had not established the trial court’s jurisdiction over the part of her claim alleging that Nguyen had operated her vehicle with reckless disregard for the safety of others because her pleadings did not allege facts supporting that allegation.
Terms of Office: In re Moreno, No. 13-24-00404-CV, 2024 WL 3843520 (Tex. App.—Corpus Christi–Edinburg Aug. 16, 2024) (mem. op.). Moreno filed a petition for writ of mandamus to compel the City of Donna to order an election for two council seats that had come up for election after the expiration of their three-year terms. At the same election in which those two seats had been filled, the voters had approved a charter amendment to extend the terms of council members to four years each. The city did not order an election when the three-year terms expired, and Moreno petitioned for mandamus to compel the city to order the election.
The appellate court granted the petition, holding that the language of the charter amendment did not specifically state that the length of terms would change retrospectively, and therefore the presumption that laws are enacted prospectively applied so that the councilmembers elected at that election were elected to the three-year terms applicable at the time of the election.
Mandamus: In re Starnes, No. 13-24-00408-CV, 2024 WL 3843483 (Tex. App.—Corpus Christi–Edinburg Aug. 16, 2024) (mem. op.). Starnes filed a petition for writ of mandamus to compel the County Judge of Victoria County to order an election to incorporate the Village of Bloomington as a municipality. The appellate court denied the petition, holding that Starnes had not met his burden to obtain relief.
Utilities: McAllen Public Utility v. Brand, No. 13-23-00020-CV, 2024 WL 4001814 (Tex. App.—Corpus Christi–Edinburg Aug. 30, 2024) (mem. op.). McAllen Public Utility (MPU) sued the board of the Hidalgo County Water Improvement District No. 3 (the district) for ultra vires actions after the district changed the rates it charged MPU for delivery of raw water from the Rio Grande. MPU claimed that the district had changed its rates in violation of Section 11.036, Water Code, which requires that a person that supplies conserved or stored water must follow certain rules about prices and terms. MPU also sought a declaration that the district violated S.B. 2185 (2021), legislation that requires the district to post certain information on its internet database. The district board members filed a plea to the jurisdiction and the trial court granted the plea. MPU appealed.
The appellate court affirmed, holding that: (1) Section 11.036 did not apply because water from the Rio Grande is not stored or conserved; and (2) MPU did not have standing to sue the district for violating S.B. 2185.
Tort Claims Act: City of Houston v. Moore, No. 14-23-00316-CV, 2024 WL 3616697 (Tex. App.—Houston [14th Dist.] Aug. 1, 2024) (mem. op.). Michael Moore sued the City of Houston for injuries sustained when he tripped over a steel ground plate while working for Southwest Airlines at Hobby Airport, which is owned by the city. The city moved for summary judgment, arguing that Moore failed to provide timely notice of his claim, as required by both the Texas Tort Claims Act (TTCA) and the city charter, thereby preserving the city’s governmental immunity. The trial court denied the motion, and the city appealed.
Moore’s injury occurred in February 2022, but the city did not receive notice until July 6, 2022, well past the 90-day deadline in the city’s charter. The court found that Moore’s failure to provide timely notice barred the suit under the TTCA. Moore then contended that the condition that caused his injury was a special defect, potentially waiving the city’s immunity; however, the court rejected this argument, finding that a steel ground plate on an airport tarmac did not meet the TTCA’s definition of a special defect, which applies to conditions like excavations or obstructions on roadways. Ultimately, the court reversed the trial court’s denial of summary judgment and dismissed the case for lack of subject-matter jurisdiction due to Moore’s failure to provide timely notice.
Tort Claims Act: City of Houston v. Sanchez, No. 14-23-00152-CV, 2024 WL 3713206 (Tex. App.—Houston [14th Dist.] Aug. 8, 2024) (mem. op). Lorraine Sanchez sued the City of Houston for negligence after a city-owned vehicle driven by Lisa Thom, a city fire department employee, rear-ended Sanchez’s SUV. The city moved for summary judgment, arguing that governmental immunity barred the claim, because Thom was not acting within the scope of her employment at the time of the accident. The trial court denied the city’s motion, and the city appealed.
When a city vehicle is involved in a collision, there is a presumption that the employee was acting in the scope of their employment so the city would be liable under the Texas Tort Claims Act. This presumption can be rebutted with evidence showing the employee was engaged in personal activities. Under the “coming-and-going” rule, the act of commuting to or from work is excluded from an employee’s scope of employment. In this case, the city provided an affidavit from Thom stating that she had completed her duties for the day and was commuting home at the time of the collision. This rebuttal successfully shifted the burden to Sanchez to demonstrate that Thom was, in fact, within the scope of her employment, which she was unable to do. The court concluded that the city’s governmental immunity was not waived, and the court reversed the trial court’s denial of summary judgment, dismissing Sanchez’s claims.
Dangerous Dogs: City of Baytown v. Jovita Lopez, No. 14-23-00593-CV, 2024 WL 3875941 (Tex. App.—Houston [14th Dist.] Aug. 20, 2024) (mem. op.). Three pitbulls owned by Jovita Lopez attacked and killed a neighbor’s Labrador. The City of Baytown seized the pitbulls and classified them as “dangerous dogs” under its ordinance, ordering them to be euthanized. Lopez appealed to the county court, which affirmed the dangerous dog designation but vacated the euthanasia order while also modifying other conditions applicable to Lopez. The county court lowered the insurance liability requirement applicable to Lopez from $300,000 to $100,000, to bring it in line with Harris County regulations, and limited her financial responsibility to the city for the boarding of the dogs to $2,500. The city appealed, arguing that the county court’s orders violated its ordinance. The appellate court agreed, ruling that such deviations were improper as Lopez failed to prove that the city’s ordinance was arbitrary or unreasonable. The court of appeals reversed the county court’s order and remanded the case, instructing the lower court to enforce the $300,000 insurance requirement per dog and recalculate the boarding fees owed by Lopez in accordance with the city ordinance.
Tort Claims Act: City of Houston v. Rogelio Cervantes Hernandez, 2024 WL 3867828 (Tex. App.—Houston [14th Dist.] Aug. 20, 2024) (mem. op.) Rogelio Cervantes Hernandez sued the City of Houston after a collision with a police officer who was responding to an emergency. Cervantes claimed the officer negligently caused the crash and that the city was negligent in hiring, training, and supervising the officer. The city filed a Rule 91a motion to dismiss, asserting immunity under the Texas Tort Claims Act’s (TTCA) emergency and 9-1-1 exceptions. The trial court denied the motion, and the city appealed.
After the city provided evidence that the emergency and 9-1-1 exceptions applied, the burden shifted to Cervantes to plead facts sufficient to overcome these exceptions, which he failed to do. The court also rejected Cervantes’s negligent hiring and supervision claims, as they are not covered by the TTCA’s waiver of immunity. Ultimately, the court reversed the trial court’s denial of the motion to dismiss and rendered judgment dismissing Cervantes’s suit with prejudice for lack of jurisdiction.
Tort Claims Act: City of Houston v. Morris, No. 14-23-00570-CV, 2024 WL 3980209 (Tex. App.—Houston [14th Dist.] Aug. 29, 2024) (mem. op.). Rachel Morris and Mia Sanders, daughters of Steve Sanders, sued the City of Houston after Sanders was struck and killed by a Houston police officer who was participating in a prostitution sting operation at the time. The officer was driving above the speed limit without activating emergency lights or sirens when Sanders, dressed in black and crossing the street, was hit and killed. The city moved for summary judgment, claiming governmental immunity, asserting that the officer was protected by official immunity, and arguing that the Texas Tort Claims Act’s (TTCA) emergency exception applied. The trial court denied the city’s motion, and the city appealed.
The court applied the test for official immunity, which protects city employees from suit while they are performing discretionary duties in good faith and within the scope of their authority. The officer testified that he exercised discretion in deciding not to activate lights and sirens to avoid compromising the undercover operation and that he believed his speed was reasonable under the circumstances. The court found this sufficient to show that a reasonably prudent officer could have believed his actions were justified. The appellees then faced the burden of presenting evidence sufficient to raise a genuine issue of material fact to counter the officer’s claim of good faith, which they were unable to do. Because the officer was, therefore, entitled to official immunity, the city retained its governmental immunity under the TTCA, which shields municipalities from liability when their employees are immune from suit. Ultimately, the appellate court reversed the trial court’s denial of summary judgment and dismissed the claims for lack of subject matter jurisdiction.