Note: Included cases are from June 11, 2022 through July 10, 2022.
Due Process: Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, No. 21-1045, 2022 WL 2283170 (Tex. June 24, 2022). In a case of first impression, the Supreme Court considered the constitutionality of House Bill 1325, which prohibits the processing or manufacturing of hemp-containing products for smoking.
Hemp companies brought action against the Texas Department of State Health Services and its commissioners (the Department) alleging that recently enacted legislation (H.B. 1325) and related state regulations, which allow the manufacture and sale of consumable hemp products within the state but expressly prohibit the “processing” or “manufacturing” of hemp-containing products “for smoking,” violated the due course of law provision of the Texas Constitution. The companies assert that the ban had no rational connection to any possible governmental interest and its real-world effect is so burdensome as to be oppressive in light of any governmental interest. They also sought an injunction prohibiting enforcement. After initially granting a temporary injunction against the rule’s enforcement, the trial court rendered a final judgement declaring the statute violated the Texas Constitution and the rule invalid in its entirety. The Department appealed directly to the Supreme Court, asserting that the hemp companies have neither a liberty interest nor a vested property interest in manufacturing or processing consumable hemp products for smoking.
The Court reversed the trial court’s decision, determining that the due-course clause does not protect the hemp companies’ interest in manufacturing or processing smokable hemp products, concluding that the manufacture and processing of smokable hemp products is neither a liberty interest nor a vested property interest the due-course clause protects. It is, instead, “purely a personal privilege” that the people’s elected representatives in the legislature may grant or withdraw as they see fit.
Tort Claims Act: Rivera v. City of Houston, No. 01-19-00629-CV, 2022 WL 2163025 (Tex. App.—Houston [1st Dist.] June 16, 2022) (mem. op.). Rivera sued the City of Houston for injuries he received from a vehicle collision with Officer Romero, which occurred while Romero was heading to the police station to pick up her partner, after which she intended to respond to a “priority-two” call. The city claimed governmental immunity from suit, arguing that the waiver of immunity in the TTCA did not apply because: (1) Officer Romero would not have been personally liable to Rivera due to her official immunity, so the claim did not fall under the TTCA’s waiver of immunity for claims arising from the negligent operation of a motor vehicle by a government employee; and (2) Officer Romero was responding to an emergency at the time of the collision, so the emergency-response exception to the TTCA’s waiver of immunity applied. The trial court granted the city’s motion for summary judgment.
The appellate court held that Rivera had raised a genuine issue of fact as to whether Officer Romero was performing a discretionary act at the time of the collision, which would entitle her to official immunity, or a ministerial act, in which case she may have been personally liable for negligence. The appellate court also held that a genuine issue of fact existed as to whether Romero driving to the police station to pick up her partner with the intention of responding to a call afterward qualifies as emergency response for the purpose of the emergency-response exception to the waiver of governmental immunity in the TTCA. The appellate court reversed and remanded the case.
Tort Claims Act: City of Houston v. Sukhta, No. 01-21-00703-CV, 2022 WL 2203657 (Tex. App.—Houston [1st Dist.] June 21, 2022) (mem. op.). Sukhta filed suit against the City of Houston for injuries he received in a car accident with a city police officer. The city’s charter requires that notice of suit be provided to the city within 90 days. The 90th day was a Sunday, and Sukhta provided notice the following day. The city filed a plea to the jurisdiction, claiming that Sukhta did not provide notice of his lawsuit to the city in the 90-day limit required by the city charter. The trial court denied the plea, and the city appealed.
The appellate court upheld the trial court’s ruling, holding that Rule 4 of the Texas Rules of Civil Procedure, which extended the deadline by one day, prevails over a conflicting provision in the city charter.
Tort Claims Act: City of Houston v. Giron, No. 01-21-00486-CV, 2022 WL 2347745 (Tex. App.—Houston [1st Dist.] June 30, 2022) (mem. op.). Giron sued the City of Houston for injuries he received in a car crash with Officer Lindsay when Officer Lindsay was driving to assist another officer who was holding two suspects alone at gunpoint. The city moved for summary judgment, claiming that the city was entitled to governmental immunity because Officer Lindsay would not have been personally liable to Giron due to his official immunity, so the case would not fall into the TTCA’s waiver of immunity for negligent operation of a motor vehicle by a government employee. The trial court denied the city’s motion and the city appealed.
The appellate court reversed, holding that Officer Lindsay would not have been personally liable to Giron because in responding to an emergency, he was performing his discretionary duties in good faith and would therefore be entitled to official immunity. Therefore, Giron’s claims did not fall into the TTCA’s limited waiver of governmental immunity for claims arising from the negligent operation of a motor vehicle by a government employee and the city was entitled to immunity.
Elections; Home Rule: City of Floresville v. Nissen, No. 04-21-00042-CV, 2022 WL 2334542 (Tex. App.—San Antonio June 29, 2022). In 2011, Floresville, a home rule city, adopted a resolution moving its elections to November from May pursuant to Election Code § 41.0052 despite its charter providing for elections in May. Then in 2019, after the provision in the Election Code had expired, the city council passed a resolution repealing the 2011 resolution to move its elections back to May. Some residents sued the city, councilmembers, and city secretary on the grounds that the 2019 resolution was passed in violation of the Election Code. After the first appeal on the denial of the city’s plea to the jurisdiction, the appellate court dissolved the temporary injunction against the city and instructed the trial court to determine whether the election date change violated the Election Code. On remand, the trial court granted the residents’ motion for summary judgment on the grounds that the city violated the Election Code. The city appealed.
The appellate court found: (1) that the plain language of section 41.0052 says home-rule cities were not permitted to change their general election date to the November uniform election date after December 31, 2016; and (2) the statute had no similar limitation on a home rule city to change the election date from November to May. Therefore, the appellate court found city had the authority to change its election date from November to May, reversed the trial court, and rendered judgment that the residents take nothing from the city.
Tort Claims Act: City of Dallas v. Peltier, No. 05-21-00760-CV, 2022 WL 2167800 (Tex. App.—Dallas June 16, 2022) (mem. op.). Lynn Peltier sued the City of Dallas and a city garbage truck driver under the TTCA after a garbage truck caught fire and caused damage to her property. Her suit initially alleged the city was negligent in maintaining the garbage truck and the driver acted negligently, but her suit was later amended to include only the driver’s negligence claim. At a preliminary hearing on the city’s plea to the jurisdiction, Peltier raised an issue of fact about whether the driver was negligent after failing to follow city-prescribed safety protocols that included: (1) pulling the truck over to a safe location, (2) immediately turning off the engine, and (3) grabbing a fire extinguisher before inspecting the truck. As a result, the trial court denied the city’s plea, and the city appealed. In its appeal, the city alleged Peltier’s claims did not arise out of the driver’s operation of the garbage truck, rather the claims and damage was a result of the fire. However, in upholding the trial court’s order denying the city’s plea to the jurisdiction, the appellate court concluded Peltier’s claims were based on the driver negligently operating the garbage truck before discovering the fire. Additionally, the court stated that because the city’s training required employees to shut off the engine and grab a fire extinguisher before investigating a truck malfunction, the driver should have known there was a risk of fire.
Immunity: Midland Firemen’s Relief & Ret. Fund v. Midland Cent. Appraisal Dist., No. 11-20-00204-CV, 2022 WL 2252654 (Tex. App.—Eastland June 23, 2022) (mem. op.). Midland Central Appraisal District (MCAD) brought a suit to recover delinquent property taxes for properties acquired by the Midland Firemen’s Relief and Retirement Fund (retirement fund). After the retirement fund failed to appear, the trial court entered a default judgment against the retirement fund in the amount of $39,740.48 for delinquent property tax, interest, and attorney’s fees. The retirement fund subsequently filed a restricted appeal alleging error in the judgment was apparent on the face of the record because the retirement fund is a statutorily created retirement system entitled to governmental immunity from suit. The appellate court reasoned that because the retirement fund was a statutorily created pension system for the benefit of the City of Midland’s municipal firefighters, the court could judicially notice that it was a governmental entity entitled to governmental immunity. As such, because MCAD did not plead a waiver of the fund’s governmental immunity, the appellate court reversed the judgment and remanded the case to the trial court.
Municipal Jurisdiction: City of Corpus Christi v. City of Ingleside, No. 13-20-00513-CV, 2022 WL 2163878 (Tex. App.—Corpus Christi–Edinburg June 16, 2022) (mem. op.). The City of Ingleside sued the City of Corpus Christi for a declaratory judgment that Ingleside was permitted to exercise jurisdiction over and tax wharves, piers, docks, and similar man-made structures that: (1) originate on certain land which is either within Ingleside’s city limits or is within its extra territorial jurisdiction; and (2) project into adjacent waters of Nueces Bay and Corpus Christi Bay. The trial court granted Ingleside’s motion for summary judgment and Corpus Christi appealed.
The appellate court affirmed, holding that because the structures are connected to the mainland located in Ingleside, they are under Ingleside’s jurisdiction.
Tort Claims Act: City of Brownsville v. Nezzer, No. 13-21-00150-CV, 2022 WL 2251818 (Tex. App.—Corpus Christi–Edinburg June 23, 2022) (mem. op.). Lili Nezzer sued the City of Brownsville when a metal structure marking the start of a city-sponsored foot race fell and struck her. The city filed a plea to the jurisdiction, claiming immunity to suit under the TTCA. The trial court denied the city’s plea, and the city appealed.
The appellate court reversed, holding that: (1) sponsoring the foot race was a governmental as opposed to proprietary function, so the TTCA applied to Nezzer’s claims; and (2) Nezzer failed to plead facts that would support a premises defect claim, so the waiver of governmental immunity for claims based on a premises defect did not apply.
Whistleblower Act: City of Edinburg v. Torres, No. 13-21-00320-CV, 2022 WL 2513512 (Tex. App.—Corpus Christi–Edinburg July 7, 2022) (mem. op.). Torres sued the City of Edinburgh under the Whistleblower Act, claiming he was terminated from his job as Chief of Police by Garza (the city manager) in retaliation for notifying the FBI about an internal affairs investigation involving another officer, and that he experienced various other retaliatory adverse employment actions. The city filed a plea to the jurisdiction, claiming that Torres’s claim was filed more than ninety days after the complained-of adverse action and was therefore outside the ninety-day deadline imposed by the Whistleblower Act. The trial court denied the city’s motion and the city appealed.
The appellate court affirmed, holding that the ninety-day deadline does not begin to run until a retaliatory action is alleged, so that any adverse action taken before Garza was made aware that Torres had notified the FBI about the internal investigation of the other officer could not have been retaliatory and therefore did not trigger the ninety-day deadline. Because it was not clear from the pleadings which, if any, of the complained-of adverse employment actions took place inside of the ninety-day window, the court remanded the case to allow Torres to amend his pleadings.